Know Your Audience

Law students are apparently not exactly the most street-savvy of people:

During a party attended by members of the rival Crips and Bloods gangs, Garcia, one of the Bloods, began “talking smack” to (deliberately insulting) Crips members who were present

United States v. Garcia (9th Cir. 1998)

The people who need that kind of explanation are the people like my Property professor, who steadfastedly claims to be completely mystified by “young people.” He’s in his 60’s; that’s not that much older than me. I rather think that he’s mystified because he chooses to be, and probably was equally mystified by his law school contemporaries at the time. This edition of my Criminal Law casebook was published in 2007; is there anyone who still can’t at least figure out what “talking smack” means by context alone?

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Scalia still cracks me up even as he infuriates me. His dissent in Planned Parenthood v. Casey focused, as his opinions invariably do, on a slavish devotion to stare decisis and a very limited worldview predicated on the way things were (conveniently ignoring how fraught and constructed history always is) at the time of the writing of the Constitution:

The issue is whether [the power of a woman to abort her unborn child] is a liberty protected by the Constitution of the United States. I am sure it is not. I reach that conclusion not because of anything so exalted as my views concerning the “concept of existence, of meaning, of the universe, and of the mystery of human life.” Rather, I reach it for the same reason I reach the conclusion that bigamy is not constitutionally-protected–because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed.

The desire to hold on to things because “that’s the way we’ve always done it” is one that has made its way into other areas of our life as well. Have you ever wondered why carrots have to be orange? (It’s beta-Carotene, but not quite in the way you’d think it is).

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Justice Stewart, in dissenting with a majority overturning a 1965 Connecticut statute forbidding married couples from using contraception:

I think this is an uncommonly silly law. [But] we are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that I cannot do.

On second thought, let’s not go there. ‘Tis a silly place.

In fact, let’s cut this off right now. It’s all getting too silly.

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Yes, I know this will make me look even more like a huge dork.

Yes, I know there are privacy and security concerns with giving Google this much information for this much of the day, everyday.

Yes, I know there’s an excellent argument to be made about constructing these artificial barriers between yourself and the rest of the world, and the more removed and layered we make our apprehension of day to day existence, the less relevant and real that existence becomes, and truly “being” present in the world and in the moment is nigh-impossible to do when you’re looking at it through a screen.

Yes, I know that this has just as much, if not more, of a chance of keeping me increasingly isolated from the world and my friends and family, instead of the idyllic hyper-connection the video purports.

Yes, I know all of these things.

But damn it, I still want these sooooooooooo bad:

Google Glass.

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What a wonderful concept. Maintaining job security at the expense of actual investment in your job (and, by extension, your students/subject)? Yes, please. Let’s utilize a system that encourages faculty no longer remotely interested in teaching around because they know they’ll get paid no matter how much they shirk their responsibilities.

That makes this line from a case even funnier. The scene is set at Odessa Junior College, and a professor faced with a lack of contract renewal has sued for a Procedural Due Process violation in face of what he calls Odessa’s “de facto tenure program,” which states:

The college had stated in a faculty guide that, despite the lack of an actual tenure system, it “wishes each faculty member to feel that he has permanent tenure so long as his teaching services are satisfactory and as long as he displays a cooperative attitude.”

So it’s tenure, but without tenure, and… no. No, it’s not tenure, it’s at-will employment, but it sounds and feels like tenure. It’s all about the feeling, man! You gotta feel the tenure wrapping around you and it’s like… it’s like… it’s like the universe just giving you a great big hug,  man!

This was a suit brought in the 70’s, by the way.

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Gaze Into the Apocalypse

This is why copyright should not be something that lasts forever, and why works eventually passing into the public domain is a good thing.

You can’t expect auteurs not to sell out, and we need to protect them from themselves:

I feel like my childhood hopes and dreams have been ripped out through my eyes and placed in a steaming pile of Jar Jar droppings.

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Begrudging Respect

I disagree with almost every decision Justice Scalia has made, whether in dissent or writing for a majority decision, but goddamn if the man isn’t the funniest justice writing on the Court today. The bastard is starting to grow on me…

The “educational benefit” that the University of Michigan seeks to achieve by racial discrimination consists, according to the Court, of “cross-racial understanding,” and “better prepar[ation of] students for an increasingly diverse workforce and society,” all of which is necessary not only for work, but also for good “citizenship.” This is not, of course, an “educational benefit” on which students will be graded on their Law School transcript (Works and Plays Well with Others: B+) or tested by the bar examiners (Q: Describe in 500 words or less your cross-racial understanding). For it is a lesson of life rather than law — essentially the same lesson taught to (or rather learned by, for it cannot be “taught” in the usual sense) people three feet shorted and twenty years younger than the full-grown adults at the University of Michigan Law School, in institutions ranging from Boy Scout troops to public-school kindergartens.

Grutter v. Bollinger (US 2003)

This is in response to a lawsuit against Michigan law claiming its “affirmative action” holistic approach of evaluating applicants was unconstitutional under the 14th Amendment.

Scalia is also inordinately fond of saying that judgments with which he disagrees lead to “words no longer have meaning!” He makes me laugh, and while I disagree with his decisions, I love reading his writing.

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