Saturday, November 23

Old Eli's Hopes We Are Dashing

Harvard 20, Yale 13.

Catching Up: Commandments

The First Amendment's establishment clause, the focus of so much attention in last June's Pledge of Allegiance decision by the Ninth Circuit, returned to the headlines this past week with U.S. District Court Judge Myron H. Thompson's decision in Glassroth v. Moore that the Ten Commandments monument in the Alabama Judicial Building violates the establishment clause and must be removed. Judge Thompson's opinion (pdf link) is cautious, repetitive, and overlong, no doubt in recognition of the sensitive nature of the issues raised by the case. But, given the facts and the current state of the law, the decision is clearly proper. For Judge Thompson to have reached a different result, he would have had to ignore or overrule established Supreme Court precedent, courses of action that are not open to district judges.

Matthew Yglesias and Kevin Drum, two bloggers whose opinions I respect, have suggested that, even though the monument is objectionable, it would have been smarter politically to let it be. However right the plaintiffs may have been as a matter of constitutional principle, they argue, the decision will only further ignite resentement of Democrats among evangelical Christians, in the South and elsewhere. And at a time when the Democrats are trying to find ways to reconnect with the electorate, the party cannot afford to alienate large blocs of voters in this manner.

I understand this argument, and, as applied to the Pledge of Allegiance case, I agree with it. The pledge has been around, unchanged, for nearly fifty years; whatever the merits of the case (and, as I explained when the decision was rendered, I believe the Ninth Circuit panel decided the case correctly), the timing of the appeal, coming as it did with the country still adjusting to life post-September 11, was unfortunate.

But the Alabama case is different. The monument in question is newly-installed, at the instigation and under the authority of the Chief Justice of the Alabama Supreme Court. And Chief Justice Moore made it clear, in his public statements and in his trial testimony, that his purpose in placing the monument prominently in the courthouse rotunda was to acknowledge the sovereignty of God—the Judeo-Christian God—over the state. As such, Chief Justice Moore's actions represented a clear and powerful governmental endorsement of a particular family of religions. They amount to a frontal assault on the Supreme Court's establishment clause jurisprudence by the most prominent judicial officer in the state.

Three members of the Supreme Court (whose identities should come as no surprise) have suggested that inclusion of the Ten Commandments in a display of otherwise secular documents related to the founding principles of American law does not violate the First Amendment. My own view is that any text that prominently features the words, "You shall have no other God before Me," is difficult to treat as secular in most circumstances. But if this case involved such a display, featuring the Ten Commandments as a peer text of the Magna Carta, Declaration of Independence, the Bill of Rights, and the post-Civil War amendments, for example, I would be inclined to agree that there are more important battles to be fought.

But that's not this case. There are growing forces seeking to advance a radically different vision of the First Amendment than the one that currently prevails in Supreme Court jurisprudence and to bar contrary voices from the courts. Chief Judge Moore's monument is an important part of this effort. Here we have a religious document, prominently placed in an important government building, for an express religious purpose. If the establishment clause is to retain meaning beyond barring government endorsement of one particular Christian denomination, this action cannot be allowed to pass unchallenged.

Friday, November 22

Hot Coffee

With tort reform back on the agenda following the Republicans' electoral victory, it's not surprising to see conservatives invoking Liebeck v. McDonald's, the infamous case in which the plaintiff won a $2.9 million jury award after being burned by hot coffee from a drive-through window. The fact that the judge reduced the punitive damage portion of the award from $2.7 million to $480,000 is rarely mentioned. Neither, as Charles Kuffner notes, are the underlying facts in the case, facts that fully justify a substantial award of damages against McDonald's.

As I'm trying to cut back a bit on my blogging, I'll resist the temptation to import my entire product liability course into this site. So I'll keep this short. We have here a company that sold a product in a dangerous condition (McDonald's served its coffee at about 180 degrees Fahrenheit, roughly forty degrees above the temperature at which hot liquids begin to scald the mouth and throat), that had received hundreds of complaints of injuries as a result of the dangerous condition of the product, and that took no remedial action. The plaintiff (whose comparative negligence was taken into account by the jury) suffered third-degree burns as a result of the entirely foreseeable act of trying to get the lid off the cup so that she could add cream and sugar. People understand that coffee is hot, and that contact with hot liquids can cause burns. But no reasonable person (without advance warning of the excessively high temperature at which McDonald's coffee was served) would expect the kinds of injuries that the plaintiff suffered. There are some examples of outrageous jury decisions out there. This is not one.

Update: Dwight Meredith of P.L.A. reflects on the myths that have grown up around Liebeck, writing:

In Georgia, at least, taking frivolous positions has a substantial downside. There a large number of cases in which the filing of a frivolous suit resulted not in a substantial recovery but rather in substantial sanctions being imposed against the lawyer, the plaintiff or both.

Nonetheless, we keep hearing that insurance companies and businesses pay out million dollar settlements and verdicts in frivolous cases. That sounds pretty good. The normal contingency fee is 33%-40% of the recovery. With a couple of those suits, we could buy the kids some new shoes.

We have, therefore, searched high and low for the list of companies that pay out millions of dollars for frivolous claims. We must have missed class in law school on the day that list was handed out.

If there were such a list, you'd think that, as a products liability and civil procedure professor, I'd have access to it. Hmm.

The Game

Via The Kitchen Cabinet (newly added to the blogroll), I stumbled upon this Yale Daily News article, which reports that Harvard quarterback Neil Rose and wide receiver Carl Morris (a sure all-Ivy pick) will not play in tomorrow's Harvard-Yale game, in Rose's case because of injury and in Morris's case because of a boycott. Kate Malcomb, the Cabinet member responsible for the post, is ebullient at the prospect of Harvard confronting Yale without its two best players, writing: "HA! That Morris guy is a tool. Whatever happened to love of the game? I can tell you I love to beat Harvard."

I must admit my heart sank when I started to read the article. But then: elephantiasis? A boycott to protest a ban on kegs at tailgates? Harvard's coach saying, "We might as well just give up now"? Kate, do you think it's possible, just remotely possible, that maybe the Yale Daily News article is a spoof, not to mention a bit of wishful thinking?

Prepare to lose, Yalies. And badly.

(Yes, I realize Kate's joking, too. At least I really hope she is. For her sake.)


Today, November 22, marks the 39th anniversary of President John F. Kennedy's assassination. Even as the event retreats into the ever-more-distant past, it's still a somber day. The murder of a president leaves a lasting mark on the nation's psyche, for at least as long as those who remember the event survive.

I was not yet born when President Kennedy died. Yet November 22 is a particularly sobering day for me, because it marks the anniversary of the day my life almost ended before it began. Upon learning of the assassination, my mother, in the early weeks of pregnancy and deeply distraught, began to bleed; her doctor feared that she would miscarry. She didn't, of course—I'm the living proof. And yet I can't help but ponder every year the ways in which large events can produce so many ripples, and how tenuous and contingent our lives are.

You've Got Mail, Part II

My post about the prospects for a new baseball stadium in Washington and Major League Baseball's plans to have the Montreal Expos play one quarter of their home schedule in San Juan, Puerto Rico, drew a doleful response from an Expos fan, who writes that the San Juan scheme simply increases the likelihood that the Expos would wind up in Washington. Baseball, he suggests, is reluctant to attempt to move the Expos permanently while the lawsuit between former minority owners and former majority owner Jeffrey Loria is ongoing, but is determined to poison the well further in Montreal, thus ensuring that the Expos could not possibly stay put beyond this coming season.

It strikes me as plausible that the lawsuit played a role in Major League Baseball's decision to keep the Expos in Montreal for at least most of the season in 2003. And there's no question that Montreal has been badly served by baseball and by Loria (who has since moved on to commence the destruction of the Florida Marlins). But, sad as I know it is for Expos fans, the well doesn't need to be poisoned any more than it already has been. One way or another, the Expos are leaving Montreal, and soon.

Thursday, November 21

You've Got Mail, Part I

Rachel Lucas, whose post on Molly Ivins I critiqued yesterday, writes to suggest that I was unfair in my comments. She writes that, while Glenn Reynolds described her post as a fisking, that wasn't her intent. She wasn't attempting to mount a systematic attack on the Ivins column; rather, she was simply responding off-the-cuff to something she found silly—sort of like heckling the television with a friend, she suggests. To that degree, perhaps it would be more accurate to describe her post not as a fisking but as a misting (but without the robots).

I apologize to Rachel for misunderstanding her intent and for taking her post too seriously. If she wasn't trying to formulate a coherent, persuasive response to the Ivins column, it's no wonder (and no failing on her part) that she didn't do so. But the fact that so many of those who responded positively to her post, including Glenn himself, embraced it as a fisking, and an effective one at that, does still show the essential emptiness of that form of argument.

A Quick Note

Busy, busy, busy. So just a quick link for now: this is the funniest thing I've read all week.

Wednesday, November 20

Ou Se Trouvent Les Expos?

D.C. denizen Eric McErlain has been keeping a careful eye on developments surrounding the Montreal Expos, a team without a viable future in its current home. Washington, by far the largest city in the country without a major league team, is the natural choice—or it would be if Peter Angelos, owner of the Baltimore Orioles, weren't so determined to block competition to his south. Eric today reports on the five stadium sites under consideration in Washington to replace aging RFK Stadium, as well as Major League Baseball's odd plan to have the Expos play one-quarter of their home schedule in a minor league ballpark in San Juan, Puerto Rico.

As a law professor (and former resident of the District), I find myself contemplating what life would be like at the Georgetown Univerrsity Law Center with a major league ballpark just up the street. I'm reasonably sure that I, for one, would be a season ticket holder in a flash.

To Fisk or Not to Fisk

Glenn Reynolds enthusiastically plugs a "fisking" of Molly Ivins's latest column by Rachel Lucas. Why, I don't know—the post in question is a perfect example of why fisking is such a banal and unpersuasive exercise.

For example, Ivins opens her column: "Osama bin Laden is back, and suddenly no one gives a damn?" To which Rachel responds, in a passage quoted by Glenn:

First of all, Molly, if he's alive, he's just alive. Not "back." Unless they cryogenically froze him and have now revived him.

This no doubt is meant as a smart retort, one that would cause Ivins to cower before Rachel's fearsome intellect and wit if only Ivins were aware of it. But really it's just stupid pedantry. And erroneous pedantry at that: when someone has not been heard from for awhile makes a statement or an appearance, it's common English usage to say that the person is "back."

The rest of the post is no better. It harps obsessively on individual word and phrase choices, and in doing so it repeatedly ignores or mischaracterizes the larger point. This isn't missing the forest for the trees; this is missing the forest because of a relentless fixation on one square foot of bark after another.

Look, Molly Ivins doesn't write precise, analytical prose. She writes breezily, and often with a large dose of sarcasm. She tends to go over the top a bit, and so she's easy to criticize. But Rachel's fisking has all of the flaws of Ivins's own writing, and adds new ones on top. It is so smug, so self-satisfied, yet so infantile that it can only appeal to readers who already share Rachel's views. It cannot possibly persuade those not already persuaded.

Awhile back, Kevin Drum critiqued fisking by applying the technique to the Gettysburg Address. In response, a number of warbloggers rose in defense of their favored method of argumentation. And, to be fair, there are times when the method, in the hands of a truly skilled writer, can be employed to devastating effect. But the number of writers with that degree of skill is small, and there are likewise few pieces of writing that lend themselves to effective rebuttal by fisking. This is not one of those situations, and Rachel is not one of those writers. All Rachel's post does, then, is prove Kevin's point.

Tuesday, November 19

They Might Be Giants—Or Maybe Not

The New York Giants had a fairly impressive win over Tennessee a couple of weeks ago—a game in which head coach Jim Fassel took over offensive playcalling duties, and the offense responded with one of its most effective games of the season. Since then, the Giants have won two more games, but in sloppily unimpressive fashion—the offense has sputtered, the defense has given up big third-down plays, and the special teams have been awful. Nevertheless, the team is now 6-4, one game behind first-place Philadelphia in the division, and with the Eagles' Donovan McNabb now apparently out for the season, a playoff spot looms as a real possibility.

Dan Lewis has a full rundown of the Giants' prospects for a playoff bid. But no one, including the Giants themselves, should have illusions. This is a thoroughly mediocre team, one that's only in playoff contention because mediocrity pervades the NFL, and while it may return to the playoffs, there won't be any Super Bowl trips this year.

Hero to the Downtrodden

How can you not love a post that ends as follows:

All I can say is that it's about time we had an Attorney General willing to fight for the rights of decent and hard-working pornographers. Bravo, John Ashcroft.

Thanks, Jeanne, for a much-needed grin.

Monday, November 18

Medical Oddity

I've had a steady ache in a rather sensitive area of the male anatomy for the last couple of weeks, and I was concerned. So this morning I went to the doctor. Twenty minutes later, I emerged with a referral. To a podiatrist.

The human body is a strange and wonderful thing.

Not With a Bang

Adam Felber has discovered how the world will end.

Homeland Insecurity

Lest anyone think that the absence of civil service and collective bargaining protections is a sure prescription for accountability in the proposed Department of Homeland Security, Nathan Newman points to a DOJ inspector general's report suggesting that the FBI (which lacks such protections) is rife with buck-passing, cover-ups, favoritism, and other failures of accountability.

As I've written before, the president's insistence that the power to fire or discipline all homeland security employees at will is necessary for the new department's success is belied by the experience of the FBI. There is plenty of evidence of serious shortcomings in the FBI's performance prior to September 11, yet to date no significant firings or reorganizations have taken place, and the administration has actively opposed an independent investigation into the agency's pre-September 11 conduct. For as long as this remains the case, I will continue to believe that the provision to remove civil service and collective bargaining protections from all homeland security employees has nothing to do with accountability and job performance, and everything to do with union-busting and the extension of political patronage.

Glenn Reynolds has further thoughts today on the manifold flaws in the Homeland Security Bill, as well as a very interesting proposal for watching the watchmen.

Sunday, November 17

Wine of the Week
Penfolds Bin 407 Cabernet Sauvignon 1990

Penfolds is an enormous company with a dizzying array of wines, ranging from Grange, arguably Australia's finest wine, down to the light and inexpensive Rawson's Retreat bottlings. This means that there is a Penfolds wine for every taste and budget. Can't afford Grange (and who can)? The Coonawarra Bin 128 and Kalimna Bin 28 are fine Shirazes in the twenty-dollar range, and the Bin 389 is a hearty Cabernet-Shiraz blend for a few dollars more. Can't afford that? The Koonunga Hill Shiraz-Cabernet is a great bargain at eight to ten dollars—I drank enormous quantities of it when I first got interested in wine, and it was served at my wedding, with great success, three years ago. Can't afford that? The Rawson's Retreat is a couple of bucks less. While I haven't tasted the Rawson's Retreat and thus can't vouch for it, I've never had a bad Penfolds wine (my least favorite in the range is the Bin 2 Shiraz-Mourvedre, which I simply find uninteresting).

Penfolds makes an exceptional Cabernet Sauvignon called Bin 707 (named after the old Boeing jets). As the price of that wine climbed, however, Penfolds decided to introduce a second, more affordable Cabernet, this one called Bin 407, beginning in the 1990 vintage. As it happens, I still have a couple of bottles of that inaugural vintage; when my wife bought some beautiful fillets the other night, it seemed like a good occasion to give the wine a try.

Priced as it is (then at about $15 a bottle, now at around $20-25 for the current release), the Bin 407 isn't built to age for decades like the 1961 Chateau Montrose I wrote about last week. But twelve years on from the harvest it's doing very nicely, thank you. The wine retains a youthful ruby purple color and gives off a lovely aroma of blackcurrant, cedar, and vanilla. There's oak here (a mix of French and American), but it's kept well in balance. The flavors are moderately intense, featuring wonderfully pure blackcurrant and plum fruit, with cedar and tobacco notes and a hint of mint. The tannins are soft but sufficient to provide a sense of structure, and the finish is surprisingly long. The 1990 vintage was exceptional in Australia (as in just about everywhere else in the world), and it would be a mistake to expect every vintage of the Bin 407 to be this good. But this really is a textbook Cabernet Sauvignon—if I were teaching an introductory wine class, I'd want to use this as the model Cabernet. That doesn't mean it's the best Cabernet out there, but it nicely captures the varietal's aroma and flavor profile; it would serve as an excellent baseline against which other wines could be compared. Since I'm not teaching a class, I'll just drink it, and quite happily, with Friday night's steaks and tonight's vegetarian lasagna.*

* (I'm not a vegetarian, nor is my wife—it's a meat and dairy thing).

Site Update

Right on schedule, Cooped Up had its 50,000th visitor at 1:48 yesterday afternoon. Like the 10,000th visitor back in early August, she or he arrived by way of a link from Ann Salisbury's Two Tears in a Bucket. Thanks to the reader, and thanks, Ann.

Traffic like this wouldn't be possible without links, of course, and with that in mind I've further updated my blogroll. In particular, I've added blawger Fritz Schranck to the list of lawblogs and blogger-cartoonist Ampersand to the list of regular reads. I've also linked to the group anti-war blog Stand Down. Although I am at this point inclined to support military action against Iraq (assuming, as seems likely, Saddam Hussein defies the UN inspectors), I recognize that there are intelligent arguments against that course of action (yes, warbloggers, there really are); Stand Down usefully serves as a source for many of them. And I should note More Like Mary, Less Like Martha by Amy Kropp, a graduate of the institution where I now teach.

Continuing the exodus from Blogger and Blogspot, Tim Dunlop and Michael Tinkler have switched over to Movable Type (crankily or not, Michael seems to have dropped me from his blogroll during his move, but I won't hold it against him). Given the ongoing Blogspot weirdness this weekend, and the random disappearance of Blogger archive links (check the gaps in my archives, for example), I really must get around to following them.

Finally, I should note a number of bloggers who have, at least temporarily, suspended their efforts. Some, like Diane E., Joe Katzman, Ted Barlow, and Alex Whitlock, announced their intentions; others simply ceased writing (I can only assume that the folks at In Arguendo were so stunned by the appearance, and subsequent success, of their beloved Anaheim Angels in the World Series that they simply lost the ability to communicate). I've kept links to these sites on my blogroll, but for now at least they're pining for the fjords.

Update: Michael Tinkler sent me a gracious email to say that my absence from his new Movable Type blogroll was inadvertent, the product of a glitch when he attempted to copy the blogroll from his old Blogger site. Given all of the problems people have had with Blogger templates, that's an eminently plausible explanation. I'm pleased to be back on his blogroll. Check out his new site: he has an interesting post about the structural defects in the publication of historical scholarship that make problems like the Bellesiles fraud difficult to prevent.

Bills: Homeland Security, Safire, and Joel

Musically-inclined humorist Madeleine Begun Kane delivers again, this time skewering the invasive information-collection provisions of the Homeland Security Bill (the subject of Bill Safire's critical op-ed last Thursday) in "Say Goodbye to Privacy."