The Right Coast

March 30, 2006
By Mike Rappaport

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Sicilian gesture gate update
By Tom Smith

You can't make this stuff up. Did the reporters get their legs broken? Their car blown up? Did Michael put a .22 slug into their throat over the clam linguini? No. So stop complaining. It's not personal. It's business.

Not only are we ugly and whiny, we're also responsible for bad music
By Tom Smith

Will the depradations of conservatives never cease? (hat tip JK)

March 29, 2006
The Israeli Election
By Mike Rappaport

David Bernstein and Ilya Somin discuss the Israeli Election results, and the fact that they don't bode well for free markets. I share their disappointment and pessimism. One thing they don't mention. In recent years, the Shinui Party has stood for free markets (and separation of church and state) in Israel. I have thought that I would probably vote for them if I could cast a ballot in Israel. Yet, somehow the party has imploded, and has gone from 15 seats to none. While the members have gone to other parties, the elimination of this party is another discouraging sign from Israel.

Update:Another interesting fact about the elections. Likud was cut down to 11 members, and the 11th person on their list: Natan Sharanksy. Unless I am misinterpreting things, he just barely kept a seat in the Knesset.

Further Update: For information about Shinui and its decline, see this very informative Wikipedia entry.

Scandal at Columbia (Part II)?
By Gail Heriot

Avery Katz of Columbia Law School wrote to draw my attention to a Letter to the Editor written by Columbia's Dean David Schizer in response to Curt Levey's op-ed:
"Curt A. Levey's column titled "Bollinger on the Spot" implied that Columbia University President Lee Bollinger was personally involved in the recent appointment of Olati Johnson to the Columbia Law School faculty [Opinion,March 24, 2006]. This is not the case. Although President Bollinger is a member of our faculty, he obviously has many responsibilities throughout Columbia University, and was not personally involved in the Law School's decision to hire Professor Johnson. Professor Johnson, a former clerk to Justice Stevens on the United States Supreme Court, has been serving as a Kellis Parker Fellow at the Law School for the past two years. She brings a wealth of knowledge to her scholarship and teaching, and she will teach courses here in civil procedure and constitutional law.The ethics charges referred to in the column arose in a highly partisan atmosphere and involved many disputed issues of fact that were never adjudicated, principally because the complaints were dismissed in the jurisdiction (New York) where Olati Johnson is licensed to practice law. As Mr. Levey himself noted in his column, she is personable, extremely articulate, and exceptionally bright. We're pleased to
welcome her to the faculty."

In addition, Avery, who was chair of entry-level hiring, added the following points:

"1. Olati Johnson is a superb appointment for our law school, and we were fortunate to hire her in the face of stiff competition from other top schools, including Harvard....

2. At Columbia Law School, the president of the university is not involved in entry-level hiring. While Columbia President Bollinger's formal academic appointment is in law, he does not participate in law school faculty deliberations or teach law school classes; and we did not consult him or consider his possible views regarding Olati's candidacy.

3. Our faculty was aware of CFIF's allegations and the associated ethicscomplaints it had filed at the time it considered Olati's candidacy. As lawyers and law teachers, we take allegations of professional misconduct extremely seriously; and before we voted the appointment we reviewed and discussed the CFIF complaints and Olati's formal responses to them.

4. Based on this review, we concluded that CFIF's allegations did not warrant our rejecting an otherwise outstanding appointment. This conclusion was based on the following considerations:

-- Even if the allegations were assumed arguendo to be accurate, our judgment was that, taken in context, they would at most constitute an error in judgment that ought not disqualify someone from pursuing a career in teaching.

--We did not feel we had any reliable basis to conclude that the allegations were accurate. In particular, they arose in the context of an intensely partisan atmosphere; and many of the relevant facts, including several of the assertions stated as fact in the Sun editorial, are disputed.

--None of the ethics complaints that CFIF filed in connection with these allegations resulted in any finding of wrongdoing. In particular, the complaint that CFIF filed in New York state, the jurisdiction where Olati Johnson is licensed to practice law, was summarily dismissed on the merits -- a fact not mentioned in the Sun editorial. [In addition, the editorial does not mention that the complaint filed against Elaine Jones before the Virginia state bar was also dismissed.]"

March 28, 2006
Bernard Siegan
Distinguished Professor of Law
University of San Diego School of Law
By Gail Heriot

Our beloved friend and colleague Bernie Siegan passed away last night. Bernie had remained hospitalized since suffering a stroke late last year, but his death was nevertheless unexpected.

Bernie was a friend and inspiration to many. He will be sorely missed. I will post further information when I receive it.

Scandal at Columbia University?
By Gail Heriot

Curt Levey in an op-ed for the New York Sun has the following story:


Columbia University and its president, Lee Bollinger, have some explaining to do. The university recently announced that its law school had awarded a coveted faculty position to Olatunde "Olati" Johnson, a woman with a scandal-plagued connection to Mr. Bollinger.

Ms. Johnson played a central role in the two-year-old Senate scandal known as memogate, which involved, most notoriously, her recommendation that the judicial confirmation process be rigged to influence the outcome of a pair of pending federal court cases. The cases were the landmark challenges to affirmative action at the University of Michigan, and the defendant was the university's president at the time, Lee Bollinger. That Ms. Johnson should now find herself working under Mr. Bollinger raises questions about a conflict of interest and a possible payoff for services rendered.

The scandal came to light in late 2003 with the disclosure of memos prepared by Ms. Johnson and other Democratic staffers on the Senate Judiciary Committee. The memos--whose authenticity was never denied--disclosed that Senate Democrats were cynically manipulating the judicial confirmation process, and that liberal outside interest groups were calling the shots on which of the president's nominees would be blocked. It was all very unseemly, though probably not unethical--with one exception.

In April 2002, Ms. Johnson recommended a delay in the Judiciary Committee's hearing for Julia Smith Gibbons, a nominee to the U.S. Court of Appeals for the Sixth Circuit, the court that was poised to decide the University of Michigan cases. Johnson, who was working for Senator Kennedy (a Democrat of Massachusetts), was surprisingly blunt about the reason for the delay: "The thinking is that the current 6th Circuit willsustain the affirmative action program, but if a new judge with conservative views is confirmed before thecase is decided, that new judge will be able, under Sixth Circuit rules, to review the case and vote on it."

Ms. Johnson conceded that "the 6th Circuit is in dire need of additional judges" and that Ms. Gibbons was an"uncontroversial" nominee. And she recognized the ethics problem, noting that she and another Kennedy staffer "are a little concerned about the propriety of scheduling hearings based on the resolution of a particular case." Nonetheless, Ms. Johnson recommended a delay because "the Michigan case is important."

Ms. Johnson's recommendation grew out a request by her previous boss, Elaine Jones, president of the NAACP Legal Defense and Educational Fund. Ms. Jones and Ms. Johnson had a big interest in the outcome of theMichigan cases. Ms. Jones was serving as counsel to an intervening party seeking to defend Lee Bollinger from the charge that his university's race-based undergraduate admissions system was unconstitutional. Ms. Johnson was her co-counsel on the case until moving to the Senate months earlier. It turned out to be a fortuitous move, with Ms. Johnson now in a position to help her former boss and clients, as well as Mr. Bollinger.

And help she did. Ms. Gibbons's hearing in the Judiciary Committee was delayed. Then, when the Committee finally approved her, Ms. Gibbons's confirmation was delayed almost another three months. Only four of 101 judicial nominees waited longer. A full discussion of the ethics rules that govern all attorneys, including Ms. Johnson and Ms. Jones, is beyond the scope of this article. However, a few things should be obvious to even the layman. Ms. Johnson's participation in the Sixth Circuit scheme would have been avoided had she, upon moving to the Senate, recused herself from all matters involving the Michigan cases or Sixth Circuit nominations. Failing that, Ms. Johnson should have recognized that an attorney is duty-bound to refrain from improperly influencing a court outside the confines of normal legal proceedings.

That duty is foremost among the ethical principles governing attorneys because the integrity and impartiality of the judicial system depends on it. Each of us need to know that, when we go into court,the lawyers for the other side have not bribed the judges, surreptitiously packed the jury pool, or--as Ms. Johnson and Ms. Jones did--secretly manipulated which judges sit on the court.

In light of [the ensuing scandal], I was surprised to hear of Olati Johnson's good fortune. First, Columbia awarded her the prestigious Kellis Parker Fellowship in Law and now, a coveted faculty position at one of the nation's top law schools. Then it dawned on me that Lee Bollinger is the president of Columbia University and a member of its law school faculty. I began to wonder whether it is mere coincidence that Ms. Johnson wound up at the university headed by the very person who stood to gain the most from the delay in Ms. Gibbons's confirmation. ... Had she gotten a position at virtually any other law school, the assumption would be that the school had impartially concluded that Ms. Johnson's talents outweighed the ethical implicationsof her involvement in Memogate. Unfortunately, because of the positions held by Lee Bollinger, Columbia could not make such a judgment impartially even if it tried. As a result, there are now serious questions surrounding Lee Bollinger and his university...."

((Sadly, the Memogate mess that Curt is writing about here was not the only scandal associated with the Sixth Circuit's decision in Grutter v. Bollinger. Judge Danny Boggs, who dissented in the case took the highly unusual step of including a "Procedural Appendix" to his dissenting opinion in which he protested improper procedural manipulations by Chief Judge Royce Martin designed to ensure that the University of Michigan's controversial racial preference programs would be upheld. One of the unhappiest aspects of the race-based admissions policies is their tendency to result in this kind of deceit and manipulation. Once the colleges and universities are themselves infected, the problem spreads to the courts and to the Senate. And there's no end in sight. Whether the hiring of Ms. Johnson at Columbia is part of it or just a conincidence we'll probably never know.))

March 27, 2006
Should the US Take Military Action Against Iran?
By Mike Rappaport

One of the strongest arguments against the US doing so is the view that a single country's possession of nukes does not constitute an undue risk. After all, we have lived with many countries, including nondemocratic ones, controlling nukes for many years.

But the counter is that Iran is just not "any nonliberal country." Their fanatical religious ideology, which embraces martyrdom or suicide, makes them different. Charles Kruathammer makes the case.

Deciding what to do in Iran is a tough one, especially given all of the problems in Iraq at the moment. But I do think Iran's fanaticism makes them different from the Soviets or the Chinese. We can't simply assume their leaders will behave as self interested commissars.

AP Plagiarism
By Mike Rappaport

The MSM is just so, well, evil.

The AP plagiarizes a story -- copying its work, without attribution -- and its excuse is that it does not give attribution to blogs.

Do these people listen to themselves? Unbelieveable. It sounds a lot like, well we stole his property, but it doesn't count, because he is from some particular minority group. They are inferior and don't count.

Of course, the MSM has an incentive to treat bloggers as inferior, but we shouldn't let them get away with it. (Hat Tip: Instapundit)

Republican men better in bed
By Tom Smith

So says a very informal survey in GQ magazine. Scientifically valid? No. But stop being so sensitive. Sensitive is not sexy. Not really. (Hat tip to PC)

We're back!
By Tom Smith

We were locked out of our blog all weekend by the evil spam prevention robots at Blogger. The RC may be a lot of things, but being identified as a spam blog, even if it was by a robot, was pretty insulting. What on earth did we do to get inside of that algorithm? I have a theory. Shortly before we were locked out, I linked both to a post on VC and to another post on VC, which the first post itself linked to. This might have made the robot think we were engaged in some sort of crawly behavior. But that's just a guess.

In any event, Blogger's stock with me is at an all time low. I really want the RC to make the switch to Typepad. Be alert for news on this score.

March 26, 2006
Selling "Her" Story
By Gail Heriot

The San Diego Union Tribune ran a story today entitled "Rossum Unlikely to Turn Lurid Crime Tale into Riches." Kristin Rossum, a beautiful, talented, young San Diego Woman, was convicted in 2002 of the premeditated murder of her young husband (although as far as I know she continues to maintain his death was a suicide). The story was indeed a lurid one, complete with drugs, adultery and deception. The evidence of her guilt was ample. She is serving life in prison without the possibility of parole.

Last week, a civil jury awarded her husband's family $100 million in punitive damages. Apparently, the family argued that Rossum might be able to sell the rights to her story and make a handsome profit on her crime. A "marketing expert" apparently opined that Rossum could make "at least $2.5 million" from such a sale. The Union Tribune interviewed the jury foreman shortly after the verdict was announced: "'We simply wanted to make sure that there wasn't a profit that could be made by her,' said Lyle Koonts of San Carlos, the jury foreman ...." (The jury also found the County of San Diego liable, but that should be the subject of another post.)

Criminals do sometimes profit from the publicity surrounding their crimes (and like most Americans, I agree that that's a bad thing.) California used to have a law against criminals profiting through book or movie deals, but that law was overturned by the California Supreme Court on First Amendment grounds a few years back. Still, it's worth pointing out something that seems to have been missed by the San Diego Union Tribune and that is that criminals don't "own" their stories in the first place. Sure, Rossum could write a book or screenplay about her exploits and possibly make a lot of money. Alternatively, writers or movie producers could, if they wished, pay Rossum to cooperate in their projects. One of them might even pay her to cooperate exclusively with him. But the "rights" to the story are not Rossum's to give. Anyone may write or produce a movie about the Rossum murder; it is unnecessary to seek her (or anyone else's) consent or cooperation. The murder has already been the subject of an extensive criminal trial and a civil trial. The record is there for everyone to use.

Consequently, it seems unlikely to me that anyone would pay her $2.5 million just for her cooperation. No, that doesn't necessarily mean that the jury was wrong to award punitive damages the way they did. I'm simply tired of hearing people talking about buying the "rights" to a story that is already very much in the public domain. It doesn't work that way. The most one can buy is the exclusive right of cooperation. Anyone who knows the story is free to tell it. A movie producer who pays millions for a story that is already known cannot guarantee that a dozen movies on the same subject won't appear.

(Addendum: I wrote this post on Sunday, but due to technical difficulties, it was not posted till Monday.)

March 24, 2006
Some Realism about Affirmative Action
By Maimon Schwarzschild

A revealing and important post by Michael Livingston, a law professor at Rutgers-Camden, about what really happens when affirmative action takes over academic faculty hiring:
Because it is so costly [given the affirmative action pressures] to dip below the required minimum of diversity faculty, in practice almost anything has to and is done to ensure that they are happy. At my school, I have watched sadly as one after another of the unwritten faculty rules--the level of publication expected, the expectation that one's work would be presented to the faculty before tenure, even the assumptions regarding physical presence at the law school--were compromised or abandoned to accomodate female or minority candidates who the law school simply could not "afford to lose" under the new dynamic. Once these principles are given away, of course, the same concessions are demanded by other professors, so that the entire system of expectations that cements a faculty begins to come crashing quickly down. A case in point is the tenure and promotions review process: since we began our diversity commitment in earnest, not one tenure candidate has been turned down, and I am hard pressed to think of a single serious criticism in a tenure report. Indeed, the only serious debates have concerned conservative candidates who disagreed with the diversity program, which should give a fairly clear idea of what is happening.

This leads to [another] and in my view most significant problem with diversity programs: their effect on civility and free speech at the relevant institution. Because everyone knows that the people other than the best candidates are being selected, but in the nature of things cannot really say so, they tend to develop a habit of dishonesty and "wink-nod" compromises that is extremely difficult to limit to this one area. The entire trust and honesty that characterize academic exchange accordingly tends to atrophy in very short order.
These consequences of affirmative action are by no means unique to Rutgers-Camden, of course. Meanwhile, the people who now control the ABA accrediting process for law schools want to pressure the schools to turn over even more of their hiring to affirmative action than is already the case.

Do read Livingston's entire post.

March 22, 2006
Liberals vs. conservative: hot or not?
By Tom Smith

Jessica Wilson apparently thinks, or thinks it is funny to say, that liberals are on average better looking than conservatives. But is this really true? Here is a liberal. And here is a conservative. How are we doing so far? Well, let's try this. A liberal, and a conservative. Hmmm. A conservative? Oh dear. A liberal. On the other hand, said to be a conservative. But then, this is San Diego, and maybe our standards are a little, ah, different.

The artist formerly known as the tenant
By Tom Smith

Don't rent your house to Prince. Unless you really like purple.

The Power of Lies
By Mike Rappaport

Reading the blogosphere, one can usually get past most of the misinformation in the MSM. I am often reminded of this when I speak with colleagues who still get all of their news from the New York Times and NPR. The problem, though, is you have to be paying attention.

So, having looked at the headlines which said "Bush Says U.S. Troops Will Stay in Iraq Past '08" and "Bush Commits Until 2009", I thought that the President had said something new and significant. But I was fooled; the Newspapers apparently are a pack of liars. See Powerline for the details.

March 20, 2006
Good News, if true
By Mike Rappaport

According to the Jerusalem Post:

Gary Berntsen, the former senior CIA operative who led the search for Osama bin Laden in Afghanistan in late 2001, believes the United States has the ability to easily destroy Iran's nuclear facilities. He said the US could use bunker-buster bombs and other weapons to carry out the operation.

"We can take care of it in a couple of days with air strikes and they wouldn't be able to stop us," he added. "It wouldn't be difficult to plan. They'd be some dangers but I think the United States can do it." Berntsen, who left the CIA in June last year after more than 20 years of service, believes it will be difficult to persuade Iran to stop its nuclear program.
I hope its true, but Gary Berntsen's listed credential is not exactly comforting.

By Mike Rappaport

Jessica Wilson: Conservatives are not only evil, they're ugly too.

Backdating corporate stock options
By Tom Smith

If the plaintiffs' lawyers haven't piling on this one, they soon will.

Among other things wrong with the practice, it eliminates at least part of the incentive effect of stock option based compensation. While you can say anything can be validated by contract, it's hard to see why a rational shareholder would ever approve this practice.

National Law Journal article on law prof blogging
By Tom Smith

Interesting article. (Hattip to JPC.) Of course, one cannot let go unchallenged Prof. Litvak's remark that blogging "has nothing to do with scholarship," further proof, if any is needed, that one should never say silly things to a reporter. It has lots to do with scholarship. The only question is, can one list ten things it has to do with scholarship in less than 120 seconds. So . . .

1. gives you a chance to try out new ideas and get criticisms fast
2. helps you break down writer's block
3. raises your profile so people will actually download and read your articles, see Barnett, Leiter, many other examples
4. gives you a chance to write things and clarify your own ideas. You may discover in writing you have less or more to say than you thought.
5. gets people to send you emails on stuff you should read
6. for some people like Dick Posner, they blog as fast as they write articles anyway so why not just blog and let the rest of us enjoy their insights faster
7. sometimes what you have to say will fit in a longish post but is still very much worth saying, so why bother to dress it up with a bunch of stupid footnotes, which are mostly for the benefit of students who are not the intended audience anywayl.
8. many more people read blogs than law review articles anyway. 40 percent of law review articles go completely unread; if your blog is unread you can quit without wasting so much time
9. A lot of so called scholarship is inferior to a lot of blogging. When Volokh posts something on the first amendment or Bainbridge says something about boards of directors they are drawing on a deep well of knowledge that comes out in the post. They create a public good much more valuable than another article by someone who will know less than they do even after months of research
10. Lots of people much more distinguished than Litvak blog and do think it has 'something to do' with scholarship.
11 . in case 10 doesn't really count, blogging is a conversation, which brings network effects to bear on the usual marketplace of legal ideas at a much faster time scale. Blogging is efficient!

(typed but not proofed.)

OK, I took more than 120 seconds, but I was typing fast and continuously, with no pausing for cogitation. How many reasons can you come up with that blogging has "something to do with" legal scholarship? Remember, no pausing to think.

March 19, 2006
Another Challenge in Iraq
By Mike Rappaport

The challenge, of course, is the possibility of a civil war. But, as with the other challenges throughout, the real challenge, sorry to say, is the excessive fear and pessimism of many in the United States. This time, many of the culprits are Republicans.

For a review of the history of pessimism, and its lack of justification, see here.

Big news on Big Bang
By Tom Smith

It looks like the universe did inflate from extremely tiny to the size of a grapefruit in a trillionth of a second about 13.7 billion years ago. The rest is history.

This is supposed to be a really good book by the guy, Alan Guth, who came up with the inflationary theory. It seems like more of the MSM stories might at least mention his name. I mean, he did come up with idea of inflation, which now looks like it has been confirmed in spectacular manner. Maybe he will get the Nobel Prize.

Same sex marriage and polygamy
By Tom Smith


I think arguments over patriarchy should take in account how polygamous marriages typically work. I'm no expert, but my impression is that it really does take a village, and an isolated and coercive one at that, to make polygamy happen. Polygamy, in practice, seems to me essentially a slave trade in underage females, who are bullied and brainwashed by their religious rulers into marrying some nonsense-spouting ogre three times their age. If you rigorously enforced laws that prohibited marriages of women under 18, a lot of polygamy just would not occur.

You aren't going to see several men marrying one woman, because men are, well, men. Several women marrying a single man will be unappealling in any world where girls are made aware of their options. OK, you might see Donald Trump married to several super models, but beyond peculiar cases such as that, it is hard to believe it would ever be more than a fringe occurrence, even if it were legal. Polygamy is a feature of real patriarchy; not the, patriarchy is everywhere sort beloved of paranoid feminists, but the, lock her in the closet for five days with no water sort. If criminal and child welfare laws were enforced, you see little of it.

Myth of passive Jews rebutted
By Tom Smith

This is interesting.

George Will on Iraq
By Tom Smith

Not very encouraging.

What I don't like about this situation is that anything but victory will be very bad for American prestige and power, and I don't see how victory is attainable, give that we have defined victory as a successful democracy in Iraq.

March 18, 2006
Anti-Capitalism From Rawls
By Mike Rappaport

In a letter written shortly before his death, Rawls wrote:

The large open market including all of Europe is aim of the large banks and the capitalist business class whose main goal is simply larger profit. The idea of economic growth, with no specific end in sight, fits this class perfectly. If they speak about distribution, it is most always in terms of trickle down. The long-term result of this — which we already have in the United States — is a civil society awash in a meaningless consumerism of some kind. I can’t believe that is what you want.

So you see that I am not happy about globalization as the banks and business class are pushing it. I accept Mill’s idea of the stationary state as described by him in Bk. IV, Ch. 6 of his Principles of Political Economy (1848). (I am adding a footnote in §15 to say this, in case the reader hadn’t noticed it). I am under no illusion that its time will ever come – certainly not soon – but it is possible, and hence it has a place in what I call the idea of realistic utopia.
Tyler Cowen is upset, as he should be. But as much as I admire much of what Rawls tried to accomplish -- in A Theory of Justice, not so much in Political Liberalism -- I can't say that I am surprised. Rawls formed his views during the 50s and 60s, when capitalism was not properly appreciated. And it would be quite remarkable for him to have "grown" enough to have done so. Rawls struck me as very conventional about his views -- conventional for a Harvard Professor -- and therefore would have little inclination to change his mind on these basic questions.

Say It Ain't So, Ropes & Gray, Part III
By Gail Heriot

I'm still getting fresh e-mail about my posts (here and here) on Ropes and Gray. Maybe somebody linked to them today. Here are my responses to the arguments made:

1. Again, my point is not that Ropes & Gray should be required to take a case that its attorneys don't want to take. Ropes & Gray is perfectly free to refuse to take (almost) any case for (almost) any reason. My point is that they did take the case. That part of it was a done deal. No one denies that Catholic Charities was a client of Ropes & Gray and that a fiduciary duty towards Catholic Charities had therefore arisen. No one denies that Ropes & Gray specifically undertook to assist Catholic Charities with its efforts to obtain a religious dispensation from Massachusetts law requiring adoption agencies to treatment gay couples the same as straight couples. (That's why the Harvard law students were threatening to picket Ropes & Gray.) If Ropes & Gray had had a problem with representing an adoption agency that does not wish to adopt children out to gay couples, it should have said so earlier.

What caused Ropes & Gray to withdraw was not its moral objections to Catholic Charities' conduct. Although there may have been lawyers at Ropes & Gray who were disappointed with their firm for refusing the representation on that ground, the decision had been made. Instead, the firm withdrew after its managing partner met with a representative of the Harward Law School chapter of Lambda--an organization that was threatening to protest/boycott/picket Ropes & Gray on future recruiting trips to Harvard if it continued to represent Catholic Charities in connection with the adoption issue. It is difficult to avoid the conclusion that there was a causal connection between these treats and the decision to withdraw (and Ropes & Gray has not denied such a connection). And, as far as I can see, it is impossible to deny the appearance of a causal connection. The conduct of Ropes and Gray was thus utterly inappropriate. Lawyers cannot put their interests ahead of their clients. Yet that is exactly what Ropes & Gray apparently did. Given a choice between a pleasant and successful recruiting season and the interests of a client, Ropes & Gray seems to have chosen its own interests.

Spinelessness is an unattractive quality in any person. In a lawyer, it is ...well...disabling.

2. Caving to pressure like that threatened by the Harvard law students is a disservice to the client. The client is worse off than if the representation had never been undertaken. If a powerful firm like Ropes & Gray turns and runs in the face of pressure like this, how are other law firms supposed to act? Will any qualified firm step in? Will the now-triumphant students press for more? It is telling that Catholic Charities gave up its quest just a week after Ropes & Gray announced that it would withdraw as Catholic Charities' counsel. Evidently, no law firm was eager to step in after Ropes & Gray's hasty retreat.

3. Some letter writers have suggested that Ropes & Gray should not be required to stick its neck out for a pro bono client. First, I'm sure it would come as a surprise to most lawyers to learn that their fiduciary duty to a client only applies if the client is paying the big bucks. Second, Catholic Charities does not appear to have been a pro bono client. (And I'm surprised that anyone would suppose that it was. The Catholic Church is not exactly impecunious.) The Boston Globe article cited in my first post stated that a Catholic Charities representative said that Ropes & Gray would not be billing Catholic Charities. In the context, the clear implication was that Catholic Charities would have been billed if Ropes & Gray had continued in its representation.

March 17, 2006
By Mike Rappaport

That's the name of the new bestseller about the attempt to capture John Wilkes Booth after he shot Lincoln. I knew the author, James Swanson, a bit at OLC when we both worked there during the Reagan Adminstration.

This New York Times article suggests that he is making (a minimum of) $1 million on the book and movie rights, presumably with more on the way. All in the pursuit of his obsession. An enviable man! Congratulations James.

Something the Canadians do right?
By Tom Smith

Manage their forests.

South Park v. Scientology
By Tom Smith

More cartoonish controversy.

Read about Ireland
By Tom Smith

My mother is Irish American (Coughlin, from Cork), as was my mother-in-law, and over the years I've read a fair bit about that strange, sad, beautiful country and its people. Some leads:

The definitive history of modern Ireland is F.S.L. Lyons, Ireland Since the Famine. Lyons also wrote a magnificent biography of Charles Stuart Parnell, the great Irish stateman of independence. For an insightful and elegantly written treatment of the Irish question in the context of 20th century British politics, you must read George Dangerfield, The Strange Death of Liberal England. (It's such a good book you should read it no matter what.)

Irish poetry: William Butler Yeats was one of the greatest, perhaps the greatest 20th century poet. This looks like a good edition of his poetry. His later poetry is generally accounted his best, but his early 'Celtic twilight' poetry is redolent of various Irish moods and evocative of the Irish landscape. Less known is that Yeats was a master of prose as well. His autobiography and collections of Irish folklore make wonderful reading for those interested in Irish traditions.

Irish fiction. James Joyce, of course. But for my money, Dubliners is the best thing to read. "The Dead" might be the most perfect short story ever written. Profoundly sad, of course. Ulysses is too much of a good thing, for my taste, but English majors will disagree. Finnegan's Wake is just a waste of time in a world of more good books than you will have time to read anyway.

Seamus Heaney is a very accomplished contemporary Irish poet, and this looks like a nice selection of his poems. His poetry is highly skilled and crafted, but also accessible.

Traditonal Irish music. The Chieftans, of course. Jeanne and I had the muscians play Ag Taisteal Na Blarnan at our wedding, and it still brings a tear to me oy.

There is a huge popular literature of things Irish, springing from the Irish diaspora. Angela's Ashes is good, with its almost unbearable depiction of the "miserable Irish Catholic childhood." It's anti-Catholic, of course. How the Irish Saved Civilization was a big seller. Here is a good popular history of the Great Rebellion of 1798 . And a very good popular novel about the same.

And in honor of St. Patrick's Day, I am reliably informed that the Bishop of San Diego has issued a general dispensation, allowing Catholics to consume such things as corned beef in honor of the feast, even though it is a Friday in Lent. I am much relieved.

San Diego boy makes good, or bad, depending on your POV
By Tom Smith

UFC is in the news with this WSJ story.

On the Vegas Strip,A Fast, Brutal SportDeals Blow to Boxing
'Ultimate Fighting' MatchesScore Fans, Ads, Bettors;Luring the 'Maxim' Crowd

By PETER SANDERSMarch 15, 2006; Page A1
LAS VEGAS -- With its history of glitzy championship bouts, this city's famous gambling Strip is boxing's home turf. But when longtime fans Brian Schulz and Derek Ellis drove five-plus hours here from northern Utah one recent Saturday night, the hottest fight in town wasn't staged in a boxing ring. It was inside "the Octagon."
The Octagon is the eight-sided, fenced-in battleground used by the Ultimate Fighting Championship, the martial arts-inspired circuit that is fast gaining popularity nationwide. Here in Las Vegas, the sport -- known for its chokeholds, elbow punches and acrobatic takedowns -- is making a run at boxing's supremacy.
Rich 'Ace' Franklin throws David 'The Crow' Loiseau to the mat during a March 4 Ultimate Fighting bout at the Mandalay Bay Events Center in Las Vegas.
For decades, Las Vegas was the biggest venue for boxing's prizefights, featuring ring stars like Evander Holyfield, Mike Tyson, Riddick Bowe and Lennox Lewis. But with few new marquee names and younger spectators craving harder, faster action, heavyweight boxing's golden era has faded. The Ultimate Fighting Championship is muscling in with corporate sponsors, pay-per-view specials and star-flecked audiences. On Feb. 4, boldface names like Paris Hilton, Cindy Crawford and Charles Barkley showed up for a championship Ultimate Fighting event at the MGM Grand Hotel & Casino.
Dana White, the UFC's 36-year-old president, says the sport fills a void left by boxing's failure to adapt to fans' changing tastes. "The UFC is the most exciting combat sport in the world because there are so many ways to win and so many ways to lose," he says. "Boxing is your father's sport."
On March 4, Mr. Schulz, 41, was among more than 10,000 fans who paid between $50 and $450 to watch the action at the Mandalay Bay Events Center, also in Las Vegas. He likes to describe Ultimate Fighting as "a purer sport than boxing." For one thing, it's more violent.
Ultimate Fighting is a so-called mixed martial-arts event that combines karate, judo, jiu-jitsu, boxing, wrestling and old-fashioned street fighting. The result is a sport that features many more ways for combatants -- wearing thin, fingerless gloves, not the padded boxing kind -- to effect maximum carnage.
The object is simple: overwhelm the opponent by whatever means necessary, save a few banned tactics like biting. If a fight doesn't lead to a knockout or surrender, then a panel of three judges uses a scoring system to determine the winner.
The early March card at Mandalay showcased Ultimate Fighting's fast pace and brutality. In one match, Jason Lambert and Rob MacDonald sparred like boxers for a minute or so. Then, Mr. Lambert drove his head into Mr. MacDonald's midsection and piled him into the mat. Squatting on his face, Mr. Lambert twisted and wrenched his opponent's left arm backward in an unnatural and painful trajectory. Grimacing in pain, Mr. MacDonald "tapped out," banging his free hand on the mat in the UFC's universal "mercy" signal.
In a later match, Mike Swick was quickly tossed to the mat by opponent Steve Vigneault. But Mr. Swick instantly turned the tables with a move called "The Guillotine Choke." Cradling his opponent's head in his elbow, between bulging biceps and his forearm, Mr. Swick squeezed hard and temporarily cut off Mr. Vigneault's ability to breathe.
Boxing promoter Gary Shaw attributes Ultimate Fighting's rise to a generation inured to violence and mayhem -- the sort commonly depicted in movies and videogames. "The mixture of wrestling with boxing and the fact that it's not staged goes to the bloodthirsty segment of the population," he says.

The above mentioned Jason Lambert used to train with Roy Harris at the Harris International Academy here in San Diego. A few weeks ago I attended the BJJ Over 40 seminar Roy Harris taught, and I found it very rewarding. (One of the participants called it "geri-jitsu"-- pretty clever, I thought.) I did not know what to expect, but the atmosphere was friendly and informal, and the dozen other guys did not have fangs or mumble "kill, kill" in their spare moments. The quality of instruction and depth and subtlety of the knowledge conveyed was very impressive. It would have been a bargain at twice the price.

I have been watching a little UFC on TV, and I obviously got the wrong idea from watching the Ultimate Fighter reality show, where I was left thinking the contestants just weren't that good. But at the championship levels, where people like Lambert are competing, you do indeed see scary impressive martial arts skills, with a good combination of both striking and grappling skills. It strikes me as a crazy way to make a living, but then so is working yourself to death in a giant law firm.

I don't know if anyone has died in the Octagon, but it is bound to happen sooner or later. In the UFC Best of 2005 I was watching the other night, I saw a shorter, stockier fighter (whom I favored, of course) shoot in for a take-down, which had worked very well for him against the taller fighter in the first round, only to catch a flying knee right in the head. He was knocked out so fast, his heels literally bounced on the canvas. Had the knee come up a little sooner, the downed fighter would have been killed, or at least gotten many bones in his face broken. But there's no denying it was a thrilling spectacle to watch, even if I'm a little queasy about its propriety. By contrast, jujitsu, Brazilian or otherwise, if practiced in good faith, need not injure anybody.

I do think, however, that the WSJ overplays the brutality of UFC fighting. I'm not sure at the end of the day it really is much worse than boxing. Boxing is a war of attrition on brain tissue. It looks a lot less awful than it is. A choke or arm bar in UFC typically does a lot less damage, I would think, than any well landed jab. The choke-ee taps out, after all, before any serious brain damage is done. About knock out punches or kicks in UFC, I don't have any defense. They are indeed likely to inflict permanent damage; but then so are many of the punches thrown in boxing, gloves or not.

Short workouts are the thing
By Tom Smith

Short intense workouts are better, this study says. It's good to know I've been wasting my time.

March 16, 2006
Say It Ain't So, Ropes & Gray, Part II
By Gail Heriot

I've gotten several e-mails as a result of my first post (immediately below) as well as comments posted on the Volokh Conspiracy as a result of Jim Lindgren's reference to that first post. Here are some of my thoughts:

1. First, I'm not saying that Ropes & Gray should have been required (on the facts of this case) to undertake the representation of Catholic Charities even if the attorneys there found Catholic Charities' conduct morally repugnant. That's not what's at issue here. Ropes & Gray had apparently already undertaken the representation of Catholic Charities. It's a little late in the day to claim moral repugnance. My point is that Ropes & Gray should not have allowed itself to cave to the pressure of third parties who were threatening to protest/boycott/picket the firm when it came to recruit at Harvard Law School. Ropes & Gray seems to have been given a choice between its own interests in a pleasant and successful hiring season at Harvard Law School and representing its client's interests. It apparently chose its own interests. That's choosing its own interests over an existing client's interests, not over a prospective client's interests.

2. One reader asked me whether I would be willing to take on the representation of a child molester and murderer. (And I think one of the Volokh Conspiracy commentators mentioned something about Saddam Hussein). The answer is yes, definitely. If a child molestor/murderer (or Saddam Hussein) wanted me to represent him and no one else more expert in the area were available, I would be happy to serve. For the right price, I would be happy to serve ahead of other lawyers (who like me know nothing of criminal procedure). I am also willing to do my share of pro bono work. I am a hired gun and proud of it. That's the way our legal sytem works. You don't have to love your clients to represent them effectively, and in fact it often helps if you don't. If you harbor fears that members of the community will mistake the arguments you make on behalf of your client for your own views and you find this a serious problem, you probably should seek another line of work. None of this has anything to do with this case, however, because Ropes & Gray had apparently already undertaken to represent Catholic Charities.

3. One commentator on the Volokh Conspiracy voiced a concern that I believe it is inappropriate for an attorney even to appear to cave to threats like those of the Harvard students. (I put it this way: "If Ropes & Gray had been even considering terminating its representation of Catholic Charities for any reason before receiving the student threats (or even a whiff of threats), it should have insisted on continuing once that message was received." He or she apparently viewed it as childish to change course just to spite the students. But think of it this way: Suppose you spy a homeless person sitting out in front of the grocery store as you go in. You feel sorry for him and resolve to give him $5 when you come out. You even put a $5 bill in your pocket as you are about to leave the store, so you'll have it handy to give to him. But when you get outside, he standing up (perhaps a bit unsteady on his feet) and he threatens you, "If you don't give me $5, I'll take your groceries!" Do you give him the $5? I suspect not. If you are inclined to, I urge you to reconsider. It will encourage him to do the same with other, perhaps more vulnerable shoppers in the future.

Now imagine Ropes & Gray, which last time I checked (admittedly a long time ago) was the largest and arguably most prestigious law firm in Boston. If it appears to cave to student demands, those students will be emboldened to make similar demands of other law firms, knowing that if it worked on Ropes & Gray, it will probably work on other firms too. How are they supposed to know that Ropes & Gray had other reasons for wanting to terminate the representation? When the first (and largest) law firm appears to have caved, it will be harder for the next one (and the next) to hold firm. That's a terrible disservice to the legal community and to clients everywhere.

4. One commentator on the Volokh Conspiracy thought that I might not respect law students, because I referred to the Harvard students involved in this case as "snot-nosed brats." No, I don't call all law students "snot-nosed brats," just those who plan to boycott law firms for representing clients they don't happen to like. The plan to sign up for Ropes & Gray interview slots for the purpose of lecturing Ropes & Gray attorneys on morality I find particularly annoying. Send them a letter. Other students may wish to be interviewed in those slots.

5. One commentator believed that I had my facts wrong and that folks at Catholic Charities had earlier been more than happy to allow gay couples to adopt, but that the bishop had later prohibited them from doing so. I can check on that tomorrow, but I'm not sure how that changes anything even if true. (It was not mentioned in the two Boston Globe articles I read.)Ropes & Gray had undertaken to represent Catholic Charities in its quest for a religious dispensation from Massachusetts law on non-discriminatory adoptions. That's why the Harvard students were planning a picket line. In the past, the folks at Catholic Charities may have had different views from the Bishop's and Ropes & Gray may well have been happy to represent them too if they were then in control. But who cares?

6. That's all for tonight. Maybe more tomorrow.

Addendum: See Part III.

Say It Ain't So, Ropes & Gray
By Gail Heriot

Lawyers in Boston have a fine history of ensuring that everyone--no matter how politically unpopular--gets legal representation. That history dates back at least as far as the Boston Massacre in 1770, when John Adams--at some risk to his own political popularity--undertook to represent the British soldiers who had been accused of murder. Adams was not about to allow an angry mob to tell him whom he could represent and whom he could not.

Ropes & Gray, Boston's leading law firm, however, may not be part of that grand old tradition. If yesterday's Boston Globe story is to be believed, the estimable Ropes & Gray attorneys may have been intimidated into abandoning an existing client by a group of (gasp!) unhappy Harvard law students who threatened not to like them anymore.

Up until two weeks ago, Ropes & Gray represented Catholic Charities of Boston, which in addition to its other charitable work, provided adoption services. In particular, it excelled in "hard to adopt cases" in which the child involved was older than the average adopted child, handicapped, or bore the scars of abuse or addiction. Catholic Charities came under fire, because its policy was not to place children with gay couples, and Massachusetts law now prohibits adoption agencies from discriminating on the basis of sexual orientation. Catholic Charities felt it could not abandon Catholic teachings in this area and apparently sought a religious dispensation from the law.

This did not sit well with Harvard's gay and lesbian students, according to the Boston Globe. (The Globe reports that Ropes & Gray was helping Catholic Charities to "explore ways to prevent same-sex couples from adopting children," but this is almost certainly error. Other reports state that Catholic Charities' position is simply that, given its religious views on the matter, it should not be required to assist in such adoptions. See Jeff Jacoby's column.)

According to the Globe:

To publicize that many students viewed Ropes's work for Catholic
Charities as anti-gay, Lambda members discussed staging protest rallies when
Ropes arrived on campus this fall to recruit new associates, stationing
themselves outside interview rooms to tell entering students about the firm's
work for Catholic Charities, or signing up for interview slots and using the
time to voice their dismay.'

'The words 'boycott-slash-picket' were thrown around," said Peter Renn, a
third-year student and Lambda board member who said he had wanted to shame Ropes
into ending its work on behalf of Catholic Charities and warn the firm that the
issue could hurt recruiting at Harvard.

''Big firms like this are very concerned about public relations, and who in
this game is maximally positioned to exert pressure on Ropes & Gray? It's
law students," said Renn, who will clerk for a federal district court judge in
California after he graduates. ''Attorneys at the firm are in a horrible
position, because they don't want to get canned, so they can't say, 'How dare
you take that case' and insist the firm withdraw."

Instead of an actual boycott, a representative of the students met with Ropes & Gray's managing partner. That seems to have been enough to send Ropes & Gray running for cover. Thereafter, it announced it would no longer represent Catholic Charities in connection with the gay adoption issue. A week later, Catholic Charities caved to pressure and announced it would no longer provide adoption services, because it could not reconcile Catholic doctrine with the requirements of Massachusetts law.

Of course, Ropes & Gray does not admit that it was intimidated by a bunch of law students. (Startlingly, however, it does not deny it.) But the ONLY acceptable response to a bunch of snot-nosed brats telling it whom to represent is to tell them to take a hike. If Ropes & Gray had been even considering terminating its representation of Catholic Charities for any reason before receiving the student threats (or even a whiff of threats), it should have insisted on continuing once that message was received. And that would be true whether the students were angry because Catholic Charities opposes gay adoptions, angry because it supports them or just plain angry. Even appearing to cave to such tactics is inappropriate. And an attorney who fails to understand this isn't fit to appear before a court of law.

Note to all Ropes & Gray clients and prospective clients: Pray that your cause never becomes unpopular with law students, because if it does, Ropes & Gray may be willing to abandon you as quickly as it seems to have abandoned its representation of Catholic Charities.

If you're in the vicinity of the First Unitarian Church in Quincy, Massachusetts, that noise you're hearing is John Adams spinning in his grave.

Addendum: See Part II above.

March 15, 2006
"The Federalist, the Anti-Federalists and the Constitution They Created"
By Gail Heriot

Thanks to everyone who made last weekend's Liberty Fund Conference, "The Federalist, the Anti-Federalists and the Constitution They Created," a success. Thanks especially to Liberty Fund Representative Hans Eicholz and Conference Director Eugene Meyer and to assistants Sarah Roderick and Sarah Moore. I learned a lot, and I suspect that even the most knowledgeable of the participants learned a little something too. Again, I apologize for failing to deliver San Diego's usual perfect weather. I plan to give the folks at the Board of Tourism a tongue lashing ....

By Gail Heriot

Loyal Right Coast readers may have observed that I have not exactly been a diligent correspondent over the last month or so (and that I appear to be trying to make up for it today).

Part of the reason is the American Bar Association. You may have read David Bernstein's fine piece in the Wall Street Journal about the ABA's new accreditation standards on diversity. What you may not know is that the ABA (or more precisely the ABA Council of the Section on Legal Education and Admissions to the Bar) is the U.S. Department of Education's officially-recognized law school accrediting agency. A law school that is not accredited by that body cannot receive federal funds, and its students are not eligible for federally guaranteed loans. In other words, a loan school that is not so accredited is road kill. The Department of Education renews its recognition of accrediting agencies every five years. And it just so happens that the ABA is up this year and that the deadline for public comment was March 8th.

Below I have reproduced a letter that Steve Balch and I submitted to the Department of Education on behalf of the National Association of Scholars. Due to the limitations of the medium, I have left out the footnotes, some of which were important. You can read the document in full here (click on "LETTER").

Ms. Robin Greathouse
Accreditation and State Liaison
United States Department of Education
Room 7105, MS 8509
1990 K Street, N.W.
Washington, D.C. 20006

Re: Renewal of Recognition of the ABA Council of the Section on Legal Education and Admissions to the Bar as Law School Accrediting Agency

Dear Ms. Greathouse:

On behalf of the National Association of Scholars, an organization of over 3,500 college and university professors, graduate students, and independent scholars, we write to oppose the renewal of recognition of the American Bar Association Council of the Section on Legal Education and Admissions to the Bar (the "ABA") as the accrediting agency for law programs in legal education that lead to the first professional degree in law, as well as free standing law schools offering such programs. Unless the ABA eliminates all requirements of racial, ethnic, and gender diversity from its accreditation standards, it would be inappropriate for the Department of Education to renew its recognition.

The ABA has long used its position as the law school accrediting agency recognized by the Department of Education to pressure law schools into adopting diversity policies that many of these schools would not, in the exercise of their best independent academic judgment, have chosen to adopt. Some might have chosen to reject the use of racial and ethnic preferences in their admissions policies altogether. Others might have chosen to put only a tiny thumb on the scale in favor of minority applicants. But they were instead pushed by the ABA into the extensive use of preferences. Their federal funding depended on it.

The ABA’s Accreditation Standard 211 originally read:


Consistent with sound legal education policy and the Standards, a law school shall demonstrate or have carried out and maintained, by concrete action, a commitment to providing full opportunities for the study of law and entry into the profession by qualified members of groups, notably racial and ethnic minorities, which have been victims of discrimination in various forms. This commitment typically includes a special concern for determining the potential of these applicants through the admission process, special recruitment efforts, and a program that assists in meeting the unusual financial needs of many of these students, but a law school is not obligated to apply standards for the award of financial assistance different from those applied to other students.

Until recently, the ABA has been comparatively cautious in implementing that standard, perhaps out of a concern that a more aggressive stance would attract unwanted attention to its policies by the Department of Education or by the courts. Since the Supreme Court’s decision in Grutter v. Bollinger, 539 U.S. 306 (2003), however, the ABA has become emboldened. In part as a result of a misinterpretation of that case, it has drafted a considerably more aggressive version of Standard 211, which covers faculty and staff in addition to the student body. The new version reads:


(a) Consistent with sound legal education policy and the Standards, a law school shall demonstrate by concrete action a commitment to providing full opportunities for the study of law and entry into the profession by members of underrepresented groups, particularly racial and ethnic minorities, and a commitment to having a student body that is diverse with respect to gender, race, and ethnicity.

(b) Consistent with sound legal education policy and the Standards, a law school shall demonstrate by concrete action a commitment to having a faculty and staff that are diverse with respect to gender, race and ethnicity.

This new version of Standard 211 was adopted on February 11, 2006 by the ABA, but must be approved by the American Bar Association House of Delegates at its August 3- 8, 2006 meeting in Honolulu before it will go into effect.

A number of differences between the old and new versions jump out–some of which are in the title, some of which are in the text, and some of which are in the official interpretations. For example, the title change from "Equal Opportunity Effort" to "Equal Opportunity" makes it clear that the emphasis will no longer be placed on "effort." Numerical results will matter. This theme is made even more concrete in the interpretations. The original version stated that the "satisfaction of [each law school’s] obligations is based on the totality of its actions." The new version expands the basis on which law schools will be judged to include "the results achieved." (Compare old Interpretation 211-1 to new Interpretation 211-3.)

No law school that is up for its seven-year review will fail to recognize the implicit message: A law school must do what’s necessary to obtain the undefined, unspecified diversity "results" that will satisfy the ABA or face the disastrous possibility that its accreditation will be revoked or held up. If that means employing racial, ethnic or gender preferences that the law school faculty believes are academically ill-advised, then so be it. Anything is better than de-accreditation.

New Interpretation 211-2 informs law schools for the first time that they "may use race and ethnicity" in their admissions decisions. The reality, however, is that under the ABA Accreditation Standards, they must do so. As the Supreme Court recognized in Grutter v. Bollinger, short of generally relaxing its admissions standards, the only realistic method by which an elite law school can get the kind of diversity the ABA advocates is to lower its admissions standards for underrerpresented minorities considerably. Mid-level and less competitive law schools must follow suit if they want similar levels of diversity, since minority students whose academic credentials would have qualified them for admission at those schools are often instead attending elite schools as the beneficiaries of preferences.

This general theme continues. A clause in the original text of Standard 211 that stated "a law school is not obligated to apply standards for the award of financial assistance different from those applied to other students" has been deleted in the new version. The obvious implication here is that it will no longer be true that law schools are not so obligated.

Just in case some law schools fail to understand the ABA’s message, it has taken the extraordinary step of deleting the word "qualified" from its new version of Standard 211. Hence, instead of requiring law schools to provide opportunity to "qualified members" of minority groups, the new version requires law schools to provide opportunity to "members." Evidently, in the future, qualifications will not be so important.
By far the most troubling of all the changes, however, is the new version of Interpretation 211-1:

The requirement of a constitutional provision or statute that purports to prohibit consideration of gender, race, ethnicity, or national origin in admissions or employment decisions is not a justification for a school’s non-compliance with Standard 211.

This is an astonishing provision. It is difficult to avoid the interpretation that the ABA is attempting to pressure law schools into breaking the law. If so, it is highly irresponsible. Doing so under color of authority of the Department of Education is simply appalling.

No doubt ABA members will protest that that is not what they meant. They will likely argue that they meant the law schools prohibited by law from engaging in preferential treatment will be required to find other methods of keeping up their minority numbers. But the ABA’s own statements before the Supreme Court belie that argument. In its amicus curiae brief in Grutter v. Bollinger, the ABA complained bitterly about the impossibility of complying with the laws of those jurisdictions that ban what the ABA euphemistically calls "race conscious admissions standards" and its own expansive vision of diversity. It told the Supreme Court that "[r]ace-[c]onscious [a]dmissions [a]re [e]ssential to [i]ncreasing [m]inority [r]epresentation in the [l]egal [s]ystem." "[I]t is unquestionable," the ABA wrote, "that the improvement in minority participation in our law schools, and thus in our legal system, has been achieved largely by the use of race-conscious admissions policies such as those under attack here." According to the ABA, prohibiting racially preferential admissions policies nationwide, as California and Washington have done statewide, would cause "a precipitous decline in minority participation in the institutions of our legal system" and "undo much of what has been accomplished in the last several decades." (Amicus Brief at 18-21.)

For further evidence concerning the ABA’s intention, consider the curious deletion of old Interpretation 211-2. That provision originally stated that each law school shall "prepare a written plan describing its current program and the efforts it intends to undertake relating to compliance with Standard 211" and "maintain a current file which will include specific actions which have been taken by the school to comply with its stated plan." It is conspicuously absent from the new version. No doubt, experience has taught the ABA that such documents almost inevitably fall into unsympathetic hands when lawsuits are filed (and lawsuits based on violations of California’s Proposition 209 and Washington States Initiative 200 can surely be expected sometime in the future). Evidently the ABA has determined that the preservation of written plans and records is not so important after all. It is not difficult to guess why.

The notion that the ABA has any authority to require that law schools adopt a diversity policy (much less the aggressive policy it now plans to pursue) is based on a fundamental misinterpretation of the Supreme Court’s decision in Grutter v. Bollinger. In that case, the Court upheld the University of Michigan Law School’s authority to discriminate on the basis of race, despite the usual overwhelming presumption against state-sponsored race discrimination embodied in the strict scrutiny standard. It held that, as an academic institution, the University of Michigan Law School was entitled to deference on the issue of whether "diversity" would to be regarded as a "compelling purpose." Nowhere, however, did the Court require institutions to follow the University of Michigan Law School’s lead and engage in racially preferential admissions policies. Institutions were expected to exercise their best independent academic judgment on the matter.

The ABA (i.e., the American Bar Association Council of the Section on Legal Education and Admissions to the Bar) is not an academic institution. Its consists of 25 officers, members, delegates, and liaisons. These include several practicing lawyers, several judges, several academics, a law student, a non-lawyer journalist, and a non-lawyer former president of the League of Women Voters. It is a part of the American Bar Association–an organization composed primarily of practicing lawyers. Similarly, the Department of Education is the arm of the executive branch of the United States government charged with the regulation of academic institutions; it is not a college or university itself. Grutter entitles neither of them to deference in their academic judgments. Indeed, the ABA and the Department of Education are precisely the kind of institutions that the concept of academic deference is supposed to protect colleges and universities from. State action is involved when, as here, the Department of Education essentially confers upon the ABA the authority to de-accredit a law school for the failure to provide preferential treatment to minority members and hence cut off law schools from federal funding. That action is therefore subject to the full weight of strict scrutiny–scrutiny that we do not believe it can survive.

Racially preferential admissions policies have always been highly controversial in law schools, and in colleges and universities generally. It is safe to say that no two law professors agree precisely about whether racial preferences in admission are appropriate, if so, how strong those preferences ought to be, if not, what should be done instead and why. But there is reason to believe that racially preferential admissions policies have become less favored by law school faculty since the Grutter decision. Recent empirical evidence demonstrates that, contrary to what had been assumed, racially discriminatory admissions polices may actually decrease the number of minority attorneys who pass the bar rather than increase that number. See Richard H. Sander, A Systematic Analysis of Affirmative Action In American Law Schools, 57 Stan. L. Rev. 367 (2004). The reason is simple: Minority students who are preferentially admitted to elite law schools frequently do poorly there, while their similarly-credentialed peers at less competitive law schools perform significantly better at their schools. Perhaps these "misplaced" minority law students end up frustrated and alienated as they are forced to compete with their better-credentialed fellow students at schools where the skills and knowledge necessary for bar passage are not usually emphasized. What’s clear is that their bar passage rate is lower than the bar passage rate of their similarly-credentialed peer group at less competitive law schools. The result may well be that racially preferential policies reduce the number of minority students who pass the bar.

Given the intense and sometimes fierce debate within legal academia, it would be unconscionable for the ABA–an organization of lawyers entitled to no deference–to decide the issue in favor of discriminatory policies for all law schools.6 And for it to do so on behalf of the Department of Education would, in our opinion, be contrary to law.

The Department of Education has long recognized that the improper conduct of the organizations it recognizes as accrediting authorities implicates the department in that conduct, especially in such controversial areas as racial, ethnic and gender preferences. It therefore has a duty to scrutinize carefully the "diversity" requirements of its officially-sanctioned accreditation authorities. As Secretary of Education (now Senator) Lamar Alexander asked in 1991, "Should ... [an] accrediting agency dictate to institutions whether or how they should balance their students, faculty, administration and governing boards by race, ethnicity, gender or age?" The obvious answer is no. If the ABA nevertheless insists upon doing so, it should be terminated as the Department of Education’s recognized accrediting agency for law programs.
The NAS would appreciate the opportunity to elaborate on these points and answer any questions the Department of Education may have in an oral presentation.
Thank you for your kind attention.

Sincerely yours,

Stephen Balch

Gail Heriot
Chair, NAS Section on Law & Professor of Law at the University of San Diego (the latter affiliation is for identification purposes only)

Addendum: David Bernstein has a new post on the subject today on the Volokh Conspiracy.

Happy (almost) St. Patrick's Day!
By Gail (My Ex-Mother-in-Law was a Murphy) Heriot

In view of my last post, I figured I would put this up a little early. It's another holiday tradition from the Right Coast ....

Calling them dirty, lazy and ignorant hasn’t always been regarded as rude or inappropriate. At one point it was considered a simple fact, amply demonstrated by the evidence. They were not like the rest of us; they were different. Anyone who thought otherwise could try wandering into one of their inner city neighborhoods unarmed. Even the police would venture in only in groups of six or more....

Racism? Perhaps. But the "race" I am referring to is the Irish-–a "racial group" that has become so mainstream today that... well... it is the mainstream. Everyone seems to have a mother (or in my case an ex-mother-in-law) whose maiden name was Murphy. To say that you’re an Irish American is to say that you’re an ordinary American, a member of the "majority."

But it was not always thus. Nineteenth-century Ireland--from which the ancestors of present-day Irish Americans fled in boatloads--was a remarkably dismal place even before the Great Potato Famine. As Gustave de Beaumont, traveling companion to Alexis de Tocqueville, wrote in the 1830s:
"I have seen the Indian in his forests and the Negro in his chains, and
thought, as I contemplated their pitiable condition, that I saw the very extreme
of human wretchedness; but I did not know then the condition of unfortunate

The evidence seems to bear him out. At 19 years, the Irish peasant's life expectancy was less than the American slave's 36 years (which was not a great deal less than that of other Americans). While the American slave lived in crude log cabins, the Irish peasant lived in even cruder mud huts. And while the American slave ate only small amounts of meat and the meat was of poor quality, the Irish peasant, like peasants across Europe, often had none at all. The world of the 19th century was still a grim place nearly everywhere, but the Irish peasant's world was extraordinarily grim.

With the famine, things took an almost unimaginable turn for the worse. In a remarkably short period of time, the potato, Ireland's staple crop, essentially disappeared. One and a half million, half-starved souls were cast on American shores in the years between 1845 and 1855. And these were the lucky ones. One million out of Ireland's population of eight million died.

When these immigrants got off the boat, they were largely illiterate, unskilled, unwashed and ill-equipped for urban life. What they knew how to do was grow potatoes, something there wasn't much of a call for in New York, Boston or any other American city. Not everyone sympathized with their plight. Friedrich Engels, who fancied himself a champion of the workingman, regarded the Irish immigrant to Great Britain as having a "crudity" that "places him little above the savage." For work requiring skill or patience, Engels complained, "the dissolute, unsteady, drunken Irishman is on too low a plane."

Here in America, many agreed with Engels. Signs reading "No Irish Need Apply" started popping up soon after large numbers of Irish began arriving. Some employers no doubt thought they were being more polite by expressing a preference for "Protestant" applicants; other made sure they were understood by insisting on "any color or country except Irish." Almost nobody thought these Irish immigrants were just like the rest of us.

I would like to be able to say that each and every one of them struggled heroically against all these obstacles, refusing to let his dignity or sense of responsibility flag even for a moment. But the world's not like that. That's why most of us should thank our Creator that circumstances have never put us to the test; real human beings, unlike the characters in melodrama, can be disappointing. Irish neighborhoods had more than their share of crime, prostitution, and other urban pathologies. Family abandonment was more common among the Irish than among other immigrant groups at the time. And in 1914, more than half a century after the first great wave of Irish immigration, about half the Irish families living on the West Side in New York were still (for that and other reasons) without fathers.

It would also be nice to report that the notion of the hard drinking Irishman is just an untrue and vicious stereotype. But in fact, as a group, the Irish were justifiably known for their drinking. When the Irish began to pour into Boston between 1846 and 1849, the number of liquor dealers increased from 850 to 1200. Most catered to the newcomers. Even as late as World War II, more Irish Americans were rejected from the military for alcoholism than Blacks, Italian Americans or Jews.

But why rehash the sins of the fathers? Why not tell the many positive stories about Irish immigrants to America? Well, perhaps it's not good to dwell on the negative side for too long, but I think in this case it says something great about America and its people: If these scruffy Irish immigrants (and I've been told that I'm a tiny bit Irish too, so I hope that gives me a bit of license)... if they can assimilate and have their grandchildren can become part of the American Establishment, anyone can. It may (and usually does) take generations for a group to become just another part of the majority. But everybody can do it. After a while, we're all as American as ... well ... the potato.

What are the implications of all this for today's immigration policy? Maybe very little. The issues that confront us there are difficult and complex. Reasonable people disagree and will continue to do so. But St. Patrick's Day is not a day for resolving thorny issues of public policy. It's a day for raising a glass and toasting all things Irish or even partly Irish. Like baseball and apple pie ... and the Great American middle class.

B'gosh and Begorrah, Have a Happy ... uh ... Green Day!
By Gail Heriot

My friend Bob Gaglione of the Gaglione Law Group here in San Diego reports that his daughter, who is Vice President of her school's student council, was helping to plan a St. Patrick's Day Carnival for the students. She and her fellow members of the council were told by the school's administration that the name "St. Patrick" could not be used in the event's name. It's against school rules--too religious, you see. They therefore worked hard to find an acceptable alternative name for their lunchtime event and came up with one--"Green Day."

Green Day? Perhaps we can re-name all of our religious holidays for the color scheme they suggest. Thanksgiving can be Brown Day, and Christmas can be Red & Green Day. I can think of no better way to drain these celebrations of any real color than to do exactly that. It's the "Party Store" vision of religious celebration: It's all a question of getting the right color cocktail napkins; beyond that, any excuse for a party will do.

What's odd is that anybody would bother to pick on St. Patrick's Day for this purpose, since it has long ago been drained of its religious significance and become essentially an excuse for hitting the bars (and in some cities for a nice parade). Is it necessary to send the further message to young people that all reference to religion must be obliterated not matter how unobstrusive? (If there's one thing I find annoying, it's a puritanical atheist.)

The latest word is that the event has now been moved to March 31, and that yet another name has been selected--Lucky Lunch. All I can say is this: Patrick, if you're listening to all this foolishness, I hope you have a sense of humor.

March 14, 2006
The Palestinians, once again, live up to their agreements
By Mike Rappaport


But will the world, once again, blame the Israelis?

March 13, 2006
Crunchy Cons
By Tom Smith

In the news now, because of the book. But some of us have been crunching for a while. I gave up my Birkenstocks when I got orthodics, but I have been checked out of the blue blazer YAFfie crowd for a long time. Good to see NR is catching up, however. Dreher seems to get it mostly right. Family first is the big thing. There is nothing sacred about business; corporate culture is often anti-culture. The natural world is a good thing, and it should be preserved against the meatheads, who are many.

Why Did the Law Professors Get Shutout?
By Mike Rappaport

Ever since the Solomon Amendment case was decided 8-0 in favor of the military and against the liberal law professors, I (like others) have wondered why the professors lost so badly. Why didn't the liberal law professors even get a single vote from the liberal wing of the Supreme Court. They got dissed by Stevens, Ginsburg, Souter and Breyer.

David Bernstein quotes from a New York Times story exploring the question:

There is the reactionary Supreme Court hypothesis. William N. Eskridge Jr., a Yale law professor who helped shape the losing side's arguments, said the defeat demonstrates the "ridiculously obvious" point that the Supreme Court is "a justificatory instrument" for military policy.

Then there is the clueless law professor theory.

Peter H. Schuck, a Yale law professor who thought the law schools' legal position was misguided, said that many professors were so indignant about the military's treatment of gay men and women and so scornful of the military itself that their judgment became clouded.

"There is often a feeling that if something is morally wrong it must be legally wrong and that clever arguments can bring those two things into alignment," Professor Schuck said.

The elite law schools have for decades been overwhelmingly liberal, Professor Schuck said, and that may have blinded professors to problems with their arguments.
My guess is that both Eskridge and Schuck's explanations might be necessary to explain what happened. Schuck is right that the liberal law professors' ideology got in the way of their analysis. Anyone familiar with the professors' discussion of these matters can confirm that they considered it a moral imperative, not a legal issue to be analyzed.

But I think there is more to the resolution. Professor Eskridge was able to win at the Supreme Court in a case where there was arguably even less legal basis for his side: In Lawrence v. Texas, Eskridge and others were able to persuade the Supreme Court to hold laws against same sex sodomy to be unconstitutional. If the liberals could win there, when they had nothing but their moral principles on their side, why not here?

In the end, I think the liberal justices on the Supreme Court believed that there was not a moral imperative on this matter, as they seemed to believe about the Texas sodomy case. They also might have believed that the nation would not necessarily be sympathetic to what might be viewed as an attack on the military. So Eskridge, in a convoluted way, might be right: the Supreme Court (or at least the liberal justices) was influenced by the popularity of the military and its mission in the war on terror. That didn't lead the justices to ignore the law; but it may have led them not to ignore the law in the service of their moral views.

Boola boola moola moola
By Tom Smith

The Taliban Yale Man saga continues.

Biowar update
By Tom Smith

Scary stuff (via instapundit).

Guy lit update
By Tom Smith

A few years ago, I made a request for "guy lit" recommendations, saying I was going to put together a list. I have not yet, my little life being as busy as it is. But I still have all the emails, and someday, well, I will try.

In the meantime, a couple of new recommendations.

A.B. Guthrie wrote a series of novels about the American West, including The Way West, and The Big Sky. I just read the third in this series, These Thousand Hills. He writes with such skill and economy, it is easy to miss the considerable literary merit and his depth of his knowledge of the Old West, and all that went with it. Guthrie knows the gear Texans prefered, what the inside of a whorehouse looked like, and what sort of gun fighting and trouble with Indians actually went on at this time and place, as opposed to the Hollywood version. Though, Guthrie had his success in Hollywood -- he wrote the screenplay for Shane.
The themes in TTH are classic and adroitly handled. You see the gains and the losses that come with bringing civilization to Montana (incomplete though that process may have been), including the gains and losses of spirit. The cowboy hero has to ride a narrow trail between irreconcilable differences. He is a rigidly honest man, but to get his stake he has to steal, but he does so from a man who owes him money won in a fair bet. He owes something to the prostitute who helped him get started and whom he loved, but marrying her is out of the question. He owes his wife his fidelity, but he is not going to disown his past either. But he loses and ruins a friend when he won't stand next to him when his friend decides to marry his whore. His brand of Christianity, which means respectability, won't allow that much. Every good thing has to be bought and paid for several times over, and some of that is lost anyway; good men won't finish last, but they won't finish first either. Among many things to like about this book is the absolute fidelity with which it captures the several ways the settlers of the mountain West looked at their struggles, sufferings, and prospects.

On a more contemporary front, if you are an English professor at midwestern state university, in a cooling marriage, and thinking about following your Franco-Caribbean mistress to her native island, where Voudon rituals, Colombian militiamen, and dangerous reefs await, you might want to read this book first, Bay of Souls by Robert Stone. Middle age angst leads to moral dissolution, but at least it is not a long book. Reviewers at Amazon don't like it much, but I couldn't put it down, even if it was ultimately unsatisfying. Ultimately unsatisfying is, I suspect, part of the point of books like this. If you dump your reasonably hot wife for a dangerous, dark, but fairly evil caribbo-vixen, it is not supposed to turn out well for you. All sorts of deep themes are swirling around, but don't seem to amount to much.

Milosevic remembered
By Tom Smith

Richard Holbrooke recalls a man for whom hell is not bad enough.

March 12, 2006
Shamans everywhere can breath a sigh of relief
By Tom Smith

This is an interesting case, and a nice opinion by new CJ Roberts. In it, the Court upholds a preliminary injunction that I take it will allow a certain Brazilian syncretic church that drinks huasca tea sacramentally to continue doing so.

This sounds like some pretty gnarly tea. It is brewed out of the "vine of the soul," first scientifically described by the legendary Harvard ethnobotanist Richard Schultes. Schultes was the real, honest to God thing; a real life Indiana Jones character who spent much more time crawling through the rain forest and eating and drinking things given to him with gravity by various shamans, warlocks and heaven knows who else, than he did in the Harvard faculty club. Wade Davis has written an engrossing book about him and about the quest for psychotropic plants in South and Central America.

Maybe by 'evil' Google means something different?
By Tom Smith

Google sponsors service that keeps terrorists in touch. Would China approve?

March 11, 2006
Immigration and Big Government
By Mike Rappaport

Gary Becker writes:

Open immigration to America worked well during the 19th century because the government did very little for immigrants and their families. How immigrants voted after becoming citizens also mattered little because government decisions were not so important. With the growth of government during the past half century, neither of these conditions continues to hold, so the case for open immigration is fatally weakened.

The Decline of Europe
By Mike Rappaport

Fareed Zakaria makes the case. In a way, it is really quite sad. I am sure there are complex causes, but to my mind, much of the blame is big government and the attitudes that go along with it.

One question is when the European will realize what is going on and admit it to themselves. I suppose they could still reverse the decline, but it is hard to see them doing so.