the Rising Jurist

Into the Sunset

2011-05-12T20:25:16-07:00

With this post, I am retiring The Rising Jurist.

—

Too often, life gets in the way of itself. That neatly sums up where a persistent ruminative state has landed me. As I sat on the warm, white sand of Key West, nursing a rock-gouged elbow, I didn't think, "I am so blogging about this later." Even though I took my camera with me, I hardly used it. I took the above shot of the sunset, and a wonderful shot of my beautiful wife. Otherwise, I simply enjoyed myself. I would not say that I have trouble living in the moment; I could, however, do better.

I don't want to give the impression that I've had some zen awakening brought on by sudden proximity to the Tropic of Cancer. I have planned to shut this down for a few months now. The truth is that I don't enjoy this as much as I once did. I started this blog eight years ago, to chronicle the law school experience. Once I'd graduated, I figured I'd just keep on going.

But over time, what was once something I looked forward to has, at times, turned into a burdensome chore. This is partly my own fault. I moved away from writing a journal and moved towards something that aspired to be a more scholarly endeavor. This was more rewarding for me, and presumably more entertaining for the reader. But that's a hard standard to hit every day.

Having already set my mind on penning a final post, all that remained was picking a date. An undertaking this big required an ending that properly bookended the project. As it happens, it is five years to the day since I graduated from law school. It took me nearly that long to figure out how to turn my law school aspiration—"something with public policy"—into an actual career. But I am finally in a position where I don't feel like I am wasting my talent, and where I don't sit in pointless meetings wondering why I bothered earning a Juris Doctorate.

I started the blog as a person embarking on a return to education as a first step towards a new career. In many ways, now seems like a perfect time to call that journey, in a sense, complete. And so, after eight years of daily blogging, and nearly 2,000 posts, that's exactly what I am doing.

Thank you all for reading.

The Magic of the Keys

2011-05-11T20:06:15-07:00

I spent the past three days in Key West, on a mini-vacation that I packed full of fun: a visit to the Hemingway House, snorkeling in the Straits of Florida, kayaking the interior salt ponds and mangrove creeks, delicious food, and cigars. I have returned burned and slightly mangled, and I wish I was still back in that bone-deep heat.

As I lay on the bed, on my stomach (to avoid upsetting my burned back), with drops in my ear (to purge deafening residual moisture), and rubbing a paddle-sore shoulder, my wife was inspecting the various cuts and scrapes I picked up during my extreme snorkeling.

She said, and I am paraphrasing here, "That's what I love about you: the amount of punishment you will inflict on your body in pursuit of enjoying life."

"Nugent's Law," I replied. You're born at Point A. You die at Point B. Kick maximum ass in between. I don't always manage it. Too often, life gets in the way of itself. But I am trying to be better about it. I had more fun in about 52 hours than I've had in a long while. Now I just have to keep it going.

Copyright is a Tool

2011-05-10T19:44:31-07:00

How copyright law hurts musics:

To legally sample a recording you have to negotiate a separate sample clearance fee with two different rights-holders: whoever owns the sound recording (the actual sound that's been fixed to magnetic tape, CD, etc.) and the song publisher (who owns rights to the underlying melody and lyrics). This takes a lot of money and time. For well-known songs, licensing fees can be very expensive—and sometimes rights-holders won't agree to a sample clearance for any price.

But it gets way more complicated when you start sampling songs that contain samples, which is increasingly the case today. If you wanted to sample, say, "Fight the Power" by Public Enemy—well, that song contains 20 samples. You'd have to get permission from Def Jam, which owns the sound recording rights, and then Public Enemy's song publisher. Then you'd have to go to the other 20 song publishers and get permission to use the song—it creates kind of a domino effect. This licensing logjam is only going to get worse and worse and worse as people increasingly sample the recent past, since that recent past is already a collage. It just becomes impossible to do all these clearances.

The thing that is so infuriating about copyright is that it was created to help promote content creation. Why would someone waste time creating anything if some lazy poacher could just steal and profit from that effort? By assuring artists that their work would be protected, they could invest the creative (and monetary) capital necessary to produce a new work.

But all this requires is protecting the original work for a period of time sufficient to supply the market demanding that work, and to appropriately compensate the creator. Instead, protections were extended, and extended again, until we were left with an astounding protection that lasts well beyond the artist's life. This is not the point.

The result is crippling:

We figured out—song by song, sample by sample—how much it would cost to release each record. Sticking with the example of Paul's Boutique: there are about 2.5 million units sold of that record. Incidentally, a lot of the samples on Paul's Boutique actually were cleared—but they were cleared at a time, 1989, when the industry didn't really see the value of sampling yet, so the rates for copyright clearances were much lower. Today, the rates they'd have to pay would make it impossible. Based on the number and type of samples in that record, Peter figured out that Capitol Records would lose 20 million dollars on a record that sold 2.5 million units. Fear of a Black Planet is similar.

The article notes that sampling already saw its peak between 1987 and 1992. That's when hip-hop was taking off, but before record companies had wrapped their heads around what sampling meant. It was the golden age before the lawyer's got involved.

And that's what this all really comes down to. Copyright is a protection, automatically conferred. But a violation has to be handled legally by the copyright holder. In other words, copyright holders have a choice. Copyright is a tool; copyright holders must choose to wield it. They could just as easily choose not to.

The Cost of Legal Scholarship

2011-05-09T19:33:42-07:00

This is horrifying:

What is the total cost of a law review article written by a tenured professor at a top-flight law school?

It's in the neighborhood of $100,000, according to Hofstra University School of Law professor Richard Neumann. His estimate factors in the salary and benefits for a tenured professor at a high-paying school who spends between 30% and 50% of his or her time on scholarship and publishes one article per year.

....

Even articles written by assistant professors at lower-paying law schools come with a price tag between $25,000 and $42,000, he estimated.

I initially sat down to dispute the assumptions used to arrive at this figure. Surely one article per year is low-balling it. But I did some digging and it's spot on. Even my good profs at UW were putting out only one or two articles a year. And some weren't managing that!

This might not be such a terrible thing if the articles that are getting written were stellar pieces of work, or at least serving as meaningful reference to the legal community. No such luck.

Neumann also pointed to research suggesting that 43% of law review articles are never cited by anyone. "At least a third of these things have no value," he said. "Who is paying for that? Students who will graduate with six figures of debt."

Part of the problem is that every last rinky-dink law school has a legal journal; some schools have over a dozen. And each of those publishes multiple issues a year, with multiple articles in each issue. Maybe there just isn't that much legal scholarship to be done. And if that's the case, maybe we should be demanding more from our profs than just teaching the occasional class.

The Heart of a SEAL

2011-05-06T14:28:10-07:00

In the post-bin Laden world, the Navy SEALs are getting some much-deserved love. I think everyone is pretty well familiar with who they are; the rigors of SEAL training are the stuff of legends. That said, I particularly enjoyed this passage, by the author of a book on the heart of SEAL training:

What kind of man makes it through Hell Week? That's hard to say. But I do know—generally—who won't make it. There are a dozen types that fail: the weight-lifting meatheads who think that the size of their biceps is an indication of their strength, the kids covered in tattoos announcing to the world how tough they are, the preening leaders who don't want to get dirty, and the look-at-me former athletes who have always been told they are stars but have never have been pushed beyond the envelope of their talent to the core of their character. In short, those who fail are the ones who focus on show.

Any endurance athlete will tell you that it's mental toughness that separates the weak from the strong. Even as my own body begins to rebel against the strain I subject it to (and at the advanced age of 32, no less), I strive to maintain that mentality. If I fail, I don't want it to be for lack of trying. Or as this SEAL put it:

A man enters a new world aiming to become something greater, and having subjected himself to the hardest tests of his life, he has either passed or failed.

DOJ Fires Antitrust Shot At NCAA

2011-05-05T21:25:21-07:00

And DOJ blinks:

In a letter to the NCAA disclosed Wednesday, the Justice Department said it has received several requests for an antitrust investigation into the current Bowl Championship Series system, and it wants information to help it decide what to do.

Honestly. It was bad enough when the government demanded that baseball players appear before Congress to discuss drug use (and then indicted them for having the audacity to be uncooperative). Now they're going to swoop in and fix football! Please. What is the NCAA doing wrong, anyhow? Well, that DOJ letter [PDF] makes clear where they're headed with the issue:

1. Why does the Football Bowl Subdivision not have a playoff, when so many other NCAA sports have NCAA-run playoffs or championships?

2. What steps, if any, has the NCAA taken to create a playoff among Football Bowl Subdivision programs before or during your tenure? To the extent any steps were taken, why were they not successful? What steps does the NCAA plan to take to create a playoff at this time?

3. Have you determined that there are aspects of the BCS system that do not serve the interests of fans, colleges, universities, and players? To what extent could an alternative system better serve those interests?

Look, I am no fan of the BCS system. The bowl qualification system is fundamentally unfair, a poor attempt at introducing some parity along inherently unequal components (see, e.g., the Notre Dame Rule). And I might endorse any number of alternatives (requiring conference championships springs to mind).

But I don't care for the presupposition that a playoff system is the answer. And the fact that this is all moving forward largely at the behest of Orrin Hatch, of Utah, just illustrates how woefully underqualified DOJ would be at solving this problem.

Yes, Utah fans are annoyed. I would be, too, if my team twice finished undefeated and was twice denied a shot at the national title. But does that mean we have an antitrust issue to address? Or does Utah just play Wyoming every year?*

Apparently, the NCAA is not legally required to respond to the DOJ inquiry, though it's expected they will. The folks at Dawg Sports have helpfully suggested some questions that might be directed at DOJ. I especially liked #7:

When you consider the rank hypocrisy of so-called small-government conservatives like Joe Barton and Orrin Hatch asking for the national government to involve itself in matters such as these, do you manage successfully to restrain yourself from laughing out loud? If so, how?

* Note that, after romper-stomping its pitiful conference cohorts for years, Utah was invited to a real conference, and one with a championship, no less. The last undefeated Pac-10 champ was Oregon, and they played for a national title. Now that the Utes have made it to the bigs, they will get their shot if they can continue to put up the numbers.

War Dogs

2011-05-04T21:09:37-07:00

That's a dog, along with his 10th Special Forces Group soldier handler, leaping from a CH-47 Chinook helicopter. It's one of several great shots in this photo essay from Foreign Policy. As FP notes, reports are emerging that a dog was involved with the strike team that took out Osama bin Laden.

The question of how the dog got into bin Laden's compound is no puzzle -- the same way the special ops team did, by being lowered from an MH-60s helicopter.

That is just too cool. I knew that dogs were used in military operations; I'd just never thought about how they might arrive at the location to do their work. The fact that dogs will tolerate tandem skydiving puts a Cartman smile on my face.

I also found this quite touching:

Not only are these dogs fierce assault weapons, they are loyal guardians. When Private First Class Carlton Rusk was shot after his unit came under Taliban sniper fire during a routine patrol in Afghanistan, Rusk's bomb-sniffing dog, Eli, crawled on top of his body, attacking anyone -- including Rusk's fellow Marines -- who tried to come near him. Rusk did not survive the assault, but Eli was granted early retirement so he could live with Rusk's family.

Man, now I want a dog.

Birth of a Fake Quote

2011-05-03T22:56:34-07:00

Following news of Osama bin Laden's death, I saw this popping up a lot:

"I will mourn the loss of thousands of precious lives, but I will not rejoice in the death of one, not even an enemy. Returning hate for hate multiplies hate, adding deeper darkness to a night already devoid of stars. Darkness cannot drive out darkness; only light can do that. Hate cannot drive out hate, only love can do that." —Martin Luther King, Jr.

I also saw an abbreviated version, specifically on Twitter:

I will mourn the loss of thousands of precious lives, but I will not rejoice in the death of one, not even an enemy. -MLK

A nice quote, and one that echoes my own thoughts. Funny thing though: King didn't say it.

Everything except the first sentence is found in King's book, Strength to Love, and seems to have been said originally in a 1957 sermon he gave on loving your enemies. Unlike the first quotation, it does sound like King, and it was easy to assume that the whole thing came from him.

So how did they get mixed together?

Thanks to Jessica Dovey, a Facebook user, that's how. And contrary to my initial assumption, it wasn't malicious. Ms. Dovey, a 24-year old Penn State graduate who now teaches English to middle schoolers in Kobe, Japan, posted a very timely and moving thought on her Facebook status, and then followed it up with the Martin Luther King Jr. quote.

To be clear, Ms. Dovey posted the following:

I will mourn the loss of thousands of precious lives, but I will not rejoice in the death of one, not even an enemy. "Returning hate for hate multiplies hate, adding deeper darkness to a night already devoid of stars. Darkness cannot drive out darkness; only light can do that. Hate cannot drive out hate, only love can do that." MLK jr

The first line—the line that later got misattributed to King all over the place—was Dovey's. The rest was King. But it got copied and pasted, stripped of the quotation marks, then pasted some more. Thus a fake quote was born.

Thoughts on the Killing of Osama bin Laden

2011-05-02T11:07:51-07:00

When I awoke this morning, my wife was listening to the news. “We killed Bin Laden,” she said. I didn’t process it, and asked her to repeat it. After she said it again, I said, “Had to be the Democrats.”

I don’t think the politics of the President, or of Congress, are especially relevant at the moment. This has been a sustained effort with bi-partisan support. Bush was right to go after Al-Qaeda, and Obama was right to continue that pursuit. Now that we've killed him, I consider it a victory not just for Obama, nor for the United States alone. This is a victory for for a set of beliefs, for an ideal.

Nonetheless, I knew I’d have to endure the yammering of idiots at work, talking about Obama accomplishing what Bush could not. Sure enough, Political Over-sharer #1 walked in and said, “So they got Bin Laden.” And Over-sharer #2 replied, “Not on Bush’s watch.” This is a deeply misguided framing of the issue. Also curious in this case is that a pacifist (Over-sharer #2) is cheerleading the current administration by applauding the death of a military target.

—

I am flying this weekend. As I was brushing my teeth this morning, I wondered whether this small victory would mean that the TSA would lighten up. Every time I have to Tetris-pack my toiletries into a sandwich bag, I have to chuckle at the absurdity of our security rules. But those won’t change.

In fact, the coming days and weeks could very well get worse. We no longer use the color-coded threat level system, but if we did, I am sure we would see it elevated in short order. Bin Laden’s death, and our reaction to it, will only embolden our enemies.

—

Speaking of reactions, I am disappointed to see groups in the street, waving flags and chanting, “USA! USA!” I certainly understand the desire to do so; if it’s ever right to celebrate a death, this is as worthy an occasion as any. What I do not care for is that we look exactly like the Palestinians who took to the streets to celebrate on September 11, 2001. I support treating this a mission accomplished and a job well done. I would simply prefer if it did not take mob form.

—

For similar reasons, I am glad we buried him at sea. Apparently it was motivated, in part, by the desire to not create a shrine for his supporters. I suppose it also prevents creating a destination for his detractors. Either way, it also elevates us above the kind of people who capture our troops (and civilians) only to desecrate their bodies. Being dumped into water was about as close as he was going to get to proper Muslim ritual, and I think it speaks well of us that we provided it.

—

My distaste for revelry notwithstanding, I hope the members of SEAL Team Six get to have beers with the guys from FDNY. I will permit them limitless high-fives.

As for the rest of us, let's simply enjoy the words of Clarence Darrow (or perhaps Mark Twain, to whom the latter sentence is also attributed): All men have an emotion to kill; when they strongly dislike someone they involuntarily wish he was dead. I have never killed any one, but I have read some obituary notices with great satisfaction.

The Economics of The Jetsons

2011-04-29T18:34:34-07:00

Huh:

George is married to Judy Jetson, a full-time homemaker who’s assisted by a robot maid named Rosie. They have two kids and enjoy high material living standards. Essentially imagine a world in which productivity grows by an average of 2.5 percent per year for the next fifty years and Mr and Mrs Jetson have chosen to take the cumulative 418 percent increase in income by reducing hours worked to one quarter of present-day standards rather than vastly increased consumption.

That seems like a valid choice. But what happens to income inequality in this kind of world? Imagine another couple, the Hardworkers where both parents put in a 30-hour workweek and their combined household income winds up being 20 times that of the Jetsons. Do we need to redistribute income to George & Jane? Or is the fact that their absolute living standards are high the relevant issue?

I wonder what increase in income it would take before people voluntarily scaled back hours. I certainly wouldn't wait for a 418% increase. In fact, a three three-hour-day workweek seems like a lot of wasted time. I'd be happy with a 25% increase and a three-day weekend.

Also, although it was not my favorite, I am familiar with The Jetsons. At what point was it revealed that he had such a cushy work schedule?

Truther Case Dismissed, Sanctions Sought

2011-04-28T17:53:02-07:00

One of those nutty conspiracy theorists actually filed a lawsuit alleging government involvement in the September 11, 2001 terrorist attacks, specifically relying on a common law tort of conspiracy and the Antiterrorism Act. Last month, her suit was dismissed, a decision she immediately appealed. Earlier this month, she lost that appeal. From the opinion [PDF] of the 2nd Circuit Court of Appeals:

[April] Gallop, represented by counsel in the District Court and on appeal, alleged that defendants, former senior government officials, caused the September 11, 2001 attacks against the United States in order to create a political atmosphere in which they could pursue domestic and international policy objectives and to conceal the misallocation of $2.3 trillion in congressional appropriations to the Department of Defense. We hold that the District Court did not err in concluding that Gallop’s claims were frivolous, and affirm the dismissal of her complaint. In addition, Gallop’s counsel are ordered to show cause why sanctions should not be imposed under Federal Rule of Appellate Procedure 38, 28 U.S.C. ' 1927, and the inherent power of this Court.

That last bit there refers to a prohibition on "an appeal [that] is frivolous." The court notes that both the original complaint and the appeal had no chance of success, both for procedural reasons, as well as for failure to make any factual assertions. The original complaint was full of theories on what the various government actors may have done: may have employed Muslim extremists, may have been a missile strike, et cetera. Sadly for Gallop, "conclusory, vague, or general allegations of conspiracy" are not enough.

So, now both she and her lawyer have to explain why they shouldn't have to pay $15,000 in penalties. For, as the court noted, "this appeal was an unnecessary imposition on the government which is forced to defend against the appeal and on the taxpayers who must pay for that defense."

Another fun tidbit is that Gallop had previously unsuccessfully sued American Airlines for allowing Flight 77 to crash into the Pentagon, where she was working on September 11, 2001. Yet, in her subsequent suit, she claims there was no Flight 77. Of course, her complaint also notes that a ceiling collapsed on top of her and that she sustained "lasting head and brain injuries.” I'll say.

I Always Wondered Why They Were on Hoth

2011-04-27T17:43:47-07:00

A roundtable discussion on The Economics of Death Star Planet Destruction began with this question:

What’s the economic calculus behind the Empire’s tactic of A) building a Death Star, B) intimidating planets into submission with the threat of destruction, and C) actually carrying through with said destruction if the planet doesn’t comply? It doesn’t seem to make good economic sense.

To which the following insightful comment was offered:

This is a pretty standard imperial tactic for dealing with rebellion. The Romans would do this in the eastern empire every once in a while. A city would become a hotbed of rebellion, threatening to pull other cities into the action. The Romans would wipe out that one city, no matter how wealthy (Palmyra comes to mind) to put any other potential rebels on notice.

....

To my mind, this is why the rebels are on Hoth in the second film. Palpatine, the absolute monarch, had a new apocalyptic technology... He nukes Alderaan and so all the habitable planets have turned the rebels away – too afraid of the Empire’s new weapon. Why else would the rebels set up shop in such an inhospitable place?

"Impossible-to-Answer Questions"

2011-04-26T20:25:06-07:00

Check out the newly proposed DS-5513 [PDF], aka the Biographical Questionnaire for a U.S. Passport. According to the Federal Register notice [PDF], this will take 45 minutes to complete. I am going to go ahead and call BS on that. I mean, some of these are just ridiculous.

Street address for my mother at the time of my birth
Mother's place of employment at the time of my birth
Full address for all residences since birth
All places of employment, including supervisor's name and telephone number

This is more exhaustive than the security clearance packet required to work in the intelligence community. Seriously. Sure, that one asks for all kinds of references. But even it sets reasonable limits on how far back you have to reach for info.

Requiring information that dates back to birth is absurd. It's a difficult enough requirement for anyone, but will be especially onerous on people who don't have parents to ask. I only have a vague idea where I lived in the first three years of my life. And I have no idea what my parents did for money at that time.

But, the real question here is this: is any of this really necessary to establish clearance for leaving/returning to the country? What problem is this a solution for? It sure looks like they're just ginning up a way to deny more passports.

(Via The Agitator.)

The Birth of a Word

2011-04-25T20:19:03-07:00

This is one of the most incredible things I have ever seen.

New Computer

2011-04-22T22:06:01-07:00

I built my first computer in 2000. I remember using an AMD Athlon chipset, which was the new non-Intel hotness. I also recall that it had a massive 15GB hard drive. It was a state-of-the-art gaming machine that I christened Aurelian. Over the years, Aurelian got two motherboard/processor upgrades, three new video cards, and progressively more RAM.

Aurelian served me well over the span of ten years. But the inevitable march of technology had passed Aurelian by. So I decided it was time to retire the aging machine, which I will do as soon as I complete this post.

Update: Greetings from the new world! The new beast is up and running. At the suggestion of reader and BFF Umbrage, I have dubbed the new machine The Cheese Cracker.* 2.8GHz i5 processor, 6GB of RAM, and a 1.5TB hard drive. This thing was inconceivable in Aurelian's heyday. 1.5TB! Are you kidding me?

*Cheese Cracker is the term I use for Wisconsin rednecks.