Opostrophe

"All stereotypes are, to some extent, true"

2006-03-12T11:43:00.000-05:00

So I watched The McLaughlin Group today. (Transcript for today's episode currently unavailable).

Now, I know that Pat Buchanan pisses me off on a regular basis... but what he said today really needed my response:

Pat Buchanan: "All stereotypes are, to some extent, true"
Saucy(yelling at the tv): "Especially the one about old men being useless."

Rumsfeld v. FAIR

2006-03-07T03:12:00.000-05:00

So it's not really news at this point, but the Supreme Court ruled against the Forum for Academic and Institutional Rights (FAIR) yesterday.

Although I was initially floored by the prospect that the 8-0 (unanimous) decision meant that Lawrence would soon be a distant memory, but it seems that things may have been a little more complicated than I initially thought.

FAIR wanted the court to hold that the Solomon Amendment (coupled with the military's "Don't Ask, Don't Tell" policy) created an "unconstitutional condition" that would deny funding to law schools who protested the military's recruiting policies. They also wanted the court to hold that forcing law schools to host the military violated the schools' rights to free speech under the First Amendment. The court didn't really rule on that first issue, because it found that there wasn't a First Amendment right infringed by the government's practice.

Again, I was really upset by this ruling at first, and I'm still not happy that the ruling didn't go the right way, but upon reflection, I think that there are definitely good things to take from the ruling.

(1) We weren't going to win anyway
Even though Alito hasn't taken his seat, without O'Connor to take a middle-of-the-road approach, there was no way that 5 of the 8 remaining judges would rule in favor of exclusion of the military in order to allow free expression of the homos.

(2) Narrow vs. Broad
Even if we did win on the unconstitutional conditions doctrine, at best (and in a dream world), the ruling would have been 5-3, and wouldn't have lasted longer than another SCOTUS term. By not even reaching the unconstitutional conditions question (with respect to legal recruiting), the court leaves it open to be decided when the issue has seen some more litigation, and once the underlying right has been more clearly explored by courts.

The narrower question of whether the Solomon Amendment infringed on a law school's right to oppose the military's policy was the issue the court heard. Without going into too much detail here, I'll say that the court viewed the First Amendment rights of the law schools very narrowly here, and found that none of their rights were infringed by the requirements of the Solomon Amendment.

(3) Questions unanswered
The narrow holding in Rumsfeld v. FAIR means that military recruiters can continue to recruit on law school campuses, and can deny funding to schools that attempt to prohibit military recruiting. It does not mean that the "Don't Ask, Don't Tell" policy is unquestionably constitutional or that law schools have no means to exclude military recruiters.

The question whether "Don't Ask, Don't Tell" is unconstitutional has not, to the best of my knowledge, been placed before the Court. FAIR doesn't even mention those words in the opinion at all. Although most of us understand that SCOTUS is about as likely to rule against the policy of another branch of government as it would be to find that Article III (creating the judiciary) was unconstitutional, it's important to note that the question was NOT there, and can be addressed potentially through litigation or through social pressures.

Whether law schools can exclude military recruiters for some other means was also not decided. Although it's unlikely that any subsequent court will permit a total exclusion of the military - the court hinted that Congress would be within its power to require preferential treatment to military recruiters, and the language of the current statute seems to require equal treatment at a minimum. However, this question was ultimately not decided because there was no right infringed. If FAIR could articulate a true First Amendment right, the Court would in theory have to rule on whether the Solomon Amendment infringed on this right.

So, considering that we were destined to lose, and that the loss was definitive (8-0), the end result of Rumsfeld v. FAIR is that law school recruitment practices are not protected speech. While it's still a loss, it somehow doesn't seem as devastating that way.

(4) Parting thought
Assuming that the Solomon Amendment doesn't require a law school to give preferential treatment to military recruiters, and only requires equal treatment, there may be a potential loophole. Schools could end certain recruiting practices, including OCI (on campus interviewing). However unpalatable that solution may be, it may be a measure some of the FAIR schools may wish to undertake.

Ending OCI would be a reversal of sorts. The "unconstitutional conditions" doctrine deals with the Spending Clause of the Constitution, governing those situations where Congress conditions funding on certain circumstances. This funding, usually for education or for highways, may be conditioned on a state changing its liquor laws or using the funding for a certain purpose. Although the states (or in our case, law schools) may not have a right to that funding, the condition may create an unconstitutional class of those who may receive funding and those who may not. If Congress disagrees with the Court's ruling in an unconstitutional conditions case, Congress may cease spending entirely.

The reversal here would be for schools to end a practice to avoid compliance with a Congressional Act.

Well. It's just a thought

Further Reading (and most of my sources):
http://www.scotusblog.com/movabletype/archives/2006/03/early_thoughts.html
http://volokh.com/posts/1141690331.shtml
http://www.scotusblog.com/movabletype/archives/2006/03/court_upholds_s.html
http://scotus.ap.org/scotus/04-1152p.zo.pdf (the slip op.)

Mission Statement

2006-02-28T18:21:00.000-05:00

So what then, should Opostrophe be?

Well, I want it mostly to be what OBD should have been, or at least, what my part should have been.

POSTING: Generally, I'll try not to post less than twice each week.

TOPICS: My part in OBD was supposed to be to write about what interests me - law, politics, LGBT issues, and silly ridiculous gossip as it relates to the previous three things. (Let's get real, that last topic is all about gawker reposts)

COMMENTS: OBD was pretty freeform in this department... I don't plan to be. First of all, I will not allow anonymous comments, because it was hard to pick out whether there was one person throwing rotting vegetables or if there were twelve. I'm also turning on the word verification. In addition to keeping out a significant amount of spam, it may also temper rash comments. Because there aren't any anonymous comments, this also will allow commenters to delete their comments.

AUTHORS: Opostrophe is just gonna be me.

That's it, at least for now. It's not perfect, but that's what I hope I'll be able to keep up with.

EDIT: I decided rather than start another new blog, I'd simply move the old one lock stock and barrel over to opostrophe. This means that my "poorly maintained" blog will hopefully become a "reasonably maintained" blog.

Bitter Dicta - Behind the Music

2006-02-28T18:20:00.000-05:00

So many people have asked, in a variety of forms, what exactly happened to Oh, Bitter Dicta?

The answer is complicated. A number of things happened.

Time Constraints
Let's be honest, here, people. Writing a blog in addition to being a law student can be a little difficult at times. Take all your schoolwork, add in extracurricular commitments, social interaction to preserve sanity, consumption of alcohol and sleep, and you've got only so much time to write.

On the other hand, you have plenty of time to surf the web, check your email, and become a connoisseur of pr0n. So in the end, there isn't much of an excuse here.

Disappointment
When we started OBD, we had planned to write two posts per week each until things got to be too much. The idea behind this was that with five bloggers, we could keep the interests of readers by regularly updating, and the onus of updating wouldn't fall too much on one or another of us.

That didn't really happen, even from the beginning. Although I managed to keep up with the posting most of the time, most of the time, only one or two of my co-bloggers kept up. This situation only got worse after a while. It got to the point that I would post, and wouldn't want to post again so that it wouldn't seem like OBD was just about me, but was about everyone. That didn't work either. I would wait for someone else to post, but by the time they did, I didn't want to steal their thunder by posting immediately after. By the time I felt it was my turn to post, I had lost my inspiration. I had about a dozen Harriet Miers links saved up to blog about, and while waiting for others to post, the issue was mooted.

Not to complain about my co-bloggers. I love them. All. But they had their own time constraints that sort of just meant that all the fireworks I'd imagined were really just a flash in the pan. Which is okay. But I digress --

Comments
The last problem on OBD was the comments. Anonymous comments that ranged from puerile, insulting, to just plain boneheaded. While I was at worst slightly intimidated by these comments (and at best determined to one up those morons), my co-bloggers felt somewhat differently. They wondered why they should continue to post when it seemed like the only people reading only cared about when we talked about feces or how hot someone was.

Although I did manage to unmask one of the commenters as a patent naysayer who offered up manufactured statistics to cover up for a lack of consistent argument, the attacks continued. To me, his fangs had been removed, but my co-bloggers still felt that the blog was something of a hostile environment.

In the end, it all sort of accumulated to kill OBD. Maybe not forever. Maybe not for everyone. But for me. OBD was about spreading the responsibility of maintaining a blog while maintaining, and possibly even increasing the Menlovian audience. It was about offering different angles on the law school experience, on how 2L would affect us as opposed to the first year experience. Well, considering everything that happened, the experiment was a failure.

Again, though, this is not the fault of my co-bloggers. We've all got our own crap going on, and considering the issues we had with OBD, I don't blame them at all for not continuing. And if they decide to pick it up again, that's great too. But it's time for me to strike back out on my own.

Coming soon: What I want Opostrophe to be

Why Broochtastic Noise?

2005-10-06T09:51:00.000-04:00

See OBD for an explaination

And, as always:

Vist Oh, Bitter Dicta!

August 15th already??

2005-08-12T23:26:00.000-04:00

Oh, Bitter Dicta

Rue the day!

Guilty Pleasures

2005-08-12T10:52:00.000-04:00

Sigh. I love "The Law Firm". So sad to see it go.

But at least, I'm not alone in my love any more.

Word of the Day

2005-08-08T19:59:00.000-04:00

From whatever Miss[ter] Thang is calling ~~her~~himself now.

malapert \mal-uh-PERT\ adjective
: impudently bold : saucy

Example sentence:

I had never imagined that Phyllis could be so malapert as to
interrupt the professor right in the middle of his lecture.

Did you know?
"Malapert" debuted in English in the 14th century, was a favorite
of Shakespeare, and is still used sporadically today.
The prefix "mal-," meaning "bad" or "badly" and deriving from the Latin "malus," is found in many English words, including "malevolent" and "malefactor."
The second half of "malapert" comes from the Middle English "apert," meaning"open" or "frank."
Apert" further derives from the Latin word "apertus"("open"), which gave us our noun "aperture" (meaning "an opening").
Putting the two halves together gives us a word that describes someone
or something that is open or honest in a bad way -- that is, a way that is bold or rude.
The noun "malapert" also exists, and means "a bold or impudent person."

Lame and busy

2005-06-28T07:06:00.000-04:00

That's me. My job is awesome, the summer goes on... and I haven't had time to blog. Look forward to an eventual post on the best wedding ever.

Keep looking forward!

Seriously guys!

Dan Savage vents a little

2005-05-25T20:50:00.000-04:00

Some gay guys are Web-surfin', crystal-abusin', load-takin', slow-motion suicides, completely beyond help. Even so, gay guys who aren't suicides and/or sociopaths have to open their mouths and confront stupidity when and where we encounter it.

I gotta say, I don't know how much that's going to help, Dan. I don't know if people will actually listen when you yell at them. But at least you're trying to keep people talking about it... that's more than a lot of other people are doing.

Another menlovian related post

2005-05-09T07:04:00.000-04:00

(I guess this is what happens when Menlove cuts me off from commenting on his blog)

But I'm glad to admit I'm wrong, menlove. You did in fact raise the money and for that I'm amazed.

We need to find out though if we can actually use the school's name in the donation... If not, I suggest we use "Brooklyn Law School Menlovian Society", or "The BLS Menloves"

I only hope that with my nihilistic trolling that I somehow helped motivate people. I know I certainly motivated you :)

Kudos.

Menlovian thins the fratmosphere

2005-05-09T01:04:00.000-04:00

I have to say, I definitely appreciate that he finally took a stand against the sometimes puerile personas of the menlovian comments boards. I only got a second hand synopsis of what actually went down, but after some of the shit that happened in January/february, I'm not at all surprised that some people started thinking with their dicks again.

God knows I'm certainly guilty of objectifying people every now and then... but I certainly don't lay into people like some of the people I'm sad to say I attend law school with. Again, though, it's another one of the reasons I'm glad I'm a gay man.

Gays just don't pull that kind of shit, saying that there are "only three hot guys" in their class... and even if they did... they'd almost certainly be excluding themselves... I don't know.. It'd very upsettting to me that (a) guys do this at all, (b) guys do this in law school, and (c) that it's quite possibly guys that I know.

All I know is, guys who talk that way about girls aren't very likely to find happiness (sexual or otherwise), because there'll always be a hotter girl than the one you're with... and more importantly... there'll always be a guy that she could be sleeping with who isn't a dickhead.

Wherever there's porn...

2005-05-02T08:15:00.000-04:00

You'll find a Bard alum.

In typical blog fashion, it takes three clicks before you get anywhere... but:

Gawker hipped me to the news that they are making porn in my neighborhood.(By the way, that is a NYT article that links directly to porn).

I guess it's no surprise that they're filming porn in billyburg. you put enough 'artists' in the same area, and some of them are bound to realize that 'art' and 'masturbation' go hand in hand, as it were.

So, as a friend once said of Williamsburg: "You can't swing a dead cat in Williamsburg without hitting another Bard student ... who's also swinging a dead cat."

I guess now you can say: "without hitting another Bardian Pornographer". And maybe substituting more colorful language for the feline.

How scary is this?

2005-04-24T11:19:00.000-04:00

"Understanding Criminal Law" - m4m

Reply to: anon-69731325@craigslist.org
Date: 2005-04-22, 6:46PM EDT

You were sitting across from me reading a book entitled as above. You caught me looking at you and then winced in apparent disgust. Was it so horrible of me to catch a glimpse of you, someone I thought was cute who was sitting directly in front of me?

* this is in or around M Train To Union

I'll tell you that I sure as hell would've winced if some hottie caught me reading for crim. Torts, on the other hand. That'd be sexy!

Of course, most people on the train would see that book and think you were reading the biggest, most boringest cookbook ever.

One nation, under your belief system...

2005-04-23T13:48:00.000-04:00

And thus begin's thecraptain's descent into a volokh repost site.

Just to prove that there are other sources, I'll eliminate the middle man on this one.

Everything's coming up Milhouse!

2005-04-13T22:54:00.000-04:00

In keeping with my willy-nilly blog habits, I'm going to vent about something that has nothing to do with Fred Durst. Although you can definitely file this one under litigious.

Reading my property casebook (as I catch up from all my appellate brief/moot court insanity), I stumbled across the following footnote:

Far more opinions by Judge Posner have been selected by casebook editors for inclusion in their casebooks than those of any other judge. Why do you suppose this is so? See Mitu Gulati & Veronica Sanchez, Giants and Pygmies, 87 Iowa L. Rev. (forthcoming 2002) (suggesting reasons why even reputedly liberal academics choose the opinions of reputedly conservative judges like Judge Posner and his colleage on the Seventh Circuit, Judge Easterbrook, who came in second to Posner).
-Dukeminier & Krier, Property, 5th Ed. p. 550

Before I get to the reasons why I think casebook authors use Posner opinions more than others, I'd just like to let my three readers know exactly who Judge Posner is. Some of you may have followed that link to find out who he is (I encourage it even just to see what he looks like), and others will simply read (or pretend to read) what I have to say.

Judge Posner is from University of Chicago Law School, where our dear friend Justice Scaly also taught. Like Scaly, Posner is rather conservative. He's a very prominent proponent of the so-called "Law and Economics" perspective, which views the law as a means to decrease the costs associated with inefficient practices.

That, for most of you (two out of my three readers), will be terribly confusing. The bottom line there, is that Posner's bottom line is THE bottom line: money. Not people, money.

However, in my opinion, the one thing Judge Posner has over every other Judge who's opinions I've read is that he writes really good opinions. They're eloquent, they're ordered, they're relatively clear, very well organized. Often you disagree with the result, but there's little room for arguing that the man is a brilliant writer.

That's the first reason, if you ask me, why you'll so often see his name in casebooks.

The second reason, of course, is that they're controversial. There's nothing like a detailed economic critique of a city ordinance that's been challenged on constitutional grounds to raise the eyebrow. The issue with his controversiality though, is that it's often very difficult to penetrate his argument in order to refute it. He's a lot like Kant in that respect. Maddeningly right in one way, and frighteningly wrong in another. But the fact that it's so maddening to the liberal (rights-based) side of things, and so defensible from the conservative (economic) side, really does encourage thought on the part of almost all of his readers.

In that respect, he's the perfect author of casebook opinions. The neocons love him because he's such a powerful voice, and the liberal law professors love to either toy with his arguments or look for chinks in his armor. And in the end, law students benefit from both sides.

Well, sorry for the boring trip into my brain, kids. While that certainly wasn't saucy, you probably all feel as though you've intruded just a little too much into my brain :).

But, to sum up, I think that (knock on wood) if one of the sitting justices were to no longer be in office (*cough* Rehnquist *cough*), Judge Posner would probably be the best replacement, in my opinion, that George W. could possibly nominate.

Also, to bring it back to me, I think that this law school thing has finally done something to me. I think I get what it is they're looking for from me. Who knows though. Only the finals can truly tell. Well, then there's the law review competition. Sigh. But other than that, everything really is coming up Milhouse.

Who DOESN'T love a gay party?

2005-04-01T01:25:00.000-05:00

Hey hey, all of my two readers! How's it going.

Saucy Intruder's a little drunk, and mostly happy.

Before he goes on about the party he went to tonight, he wants to bitch at his good friends who chose NOT to comment on the last post. Come on. I even told you specifically that I had updated the site. The outcome of all that means that basically this site is about me, and whatever the fuck I want to talk about... since nobody decided to tell me whether they wanted lusty fred, litigious fred, or lovey fred.

Sadly, no one even mentioned Lovey Howell.

But anyway, I went to a kickin shindig tonight, hosted by one of my new favorite organizations. (It's not that they weren't my favorite before, but I just hadn't met anyone from there.)

Well, I got there early to help set up. I like setting up for events. It's like helping to cook a delicious meal. It's only tastier because you had a hand in it.

Well, after helping set up the auction, and putting programs on all the chairs, the real party got started and things really got going.

I didn't necessarily expect to network, so much as I expected to just meet some good people who I might call on later in my career when I needed them.

Well, I didn't even need to try to network. Every person I met was more fabulous than the one before. One person hooked up my fellow General of the Gay with someone who can help her get a job, or just someone who is an excellent contact for her intended field. Another person assured me that my indiscretions at a past event were wholly forgiven (which was an assurance I sorely needed. I expected these people to shun me like the plague!) And my favorite Bardian law graduate was there with her friends (my least favorite bardian law graduate was there too, but that's another story for another time).

Everyone there was so relaxed and so nice... in many ways it was the opposite of the high stress receptions I'd attended before.

And to top it all off, I ran into another law student who had witnessed me at my worst, and was still willing to talk to me, which was great. We talked for a while, and grabbed a drink after the whole thing was over, and I remembered just why it was I was in law school, and why it is that I'm happy I'm gay.

Brooch soundoff

2005-03-21T14:10:00.000-05:00

Okay. Two people now have asked me to update this site. If you read the caption, it tells you what I'm about.. which means if ya'll don't inspire me, I got nuthin to write about.

That said, I'm still curious how you found out that I even have it. Yes, some people see me checking it in class and have very good eyesight, some have more sinister means of discerning the URL . So, that said, to all my many readers, please let me know you're reading, so I know that I should update more often. Please refer to yourself either by name or by pseudonym, as I'll make sure to gear my posts more directly towards the interests of my readers.

For example, some people are interested in the sex lives of celebrities.

Some people are more legally inclined.

And then of course some people are only interested in flowers and love notes

So please! Sound off with name or pseudonym and which Fred you are (lusty, litigious, or lovey).

My favorite latin phrase...

2005-03-08T08:36:00.000-05:00

... is "Sic Semper Tyrannis" For those who don't know, it is the state motto of Virginia.

At some point, after I'd learned a decent amount of latin, I stumbled across the seal of Virginia, and decided to translate what I saw.

The first word: "sic" means thus in classical latin, but by medieval times had come to mean "yes", hence "si" in italian or latin. So, assuming that this was the meaning, I moved on to the second word.

"Semper". That one was easy. Always.

"Tyrannis". Well. That one is a little complicated. In greek, tyrranos only meant king, but by the time the romans used it, it meant pretty much what it does today - tyrant. It's a dative, which means it's "to tyrants" or "for tyrants".

Then I strung it all together -- "Yes" "Always" "To Tyrants". Now that seems like an authentic Virginian sentiment!

Soon after my laughter subsided, I realized that the correct translation was: "It is always thus for tyrants"

The rabbit died!

2005-03-03T07:07:00.000-05:00

As a child, I remember learning that a rabbit could be used as an early version of a pregnancy test.

Today I learned that not everyone knew this.

And then i thought to myself, that's ridiculous! People never did that, it's not possible! It's right up there with Santa Claus and Social Security in terms of childhood fictions.

Snopes to the rescue!

Turns out that in the 1920's, when we discovered that women have hormones, we injected them into female rabbits. If the rabbit's ovaries became enlarged, the woman was pregnant. Of course, to find that out, the rabbit had to be killed and its ovaries removed. In that sense, the 'rabbit always died'.

Menlovian (repost from the345wall.blogspot.com)

2005-02-28T09:06:00.000-05:00

It turns out that one of my classmates has been blogging his experiences (legal, sexual, fecal) on menlovian.blogspot.com, and he cited our blog as a fellow BLSer's blog. yay. Slightly inaccurate, but appreciated. Now we just need some content... hrm..

EDIT: Menlovian is a reference to a case: Vaughn v. Menlove where the defendant (Menlove) stacked his hayrick too high. It subsequently caught fire (think of the haystack like a compost heap) and his neighbor's house caught on fire. He sued Menlove, and hence the suit. Menlove's torts professor, while discussing some exceptionally stupid activity, referred to it as: "Menlovian". The author of menlovian.blogspot.com (who has successfully managed to keep his identity a secret from most of BLS) considers himself to be performing in a 'menlovian' manner in school, and chose his self-deprecating (and hilarious) name accordingly.

REPOST EDIT: this would be a much more accurate description of a BLSers blog. Too bad I didn't advertise :)

A lesson in civil procedure

2005-02-04T17:21:00.000-05:00

In response to the recent court ruling, Erin said the following:

I would be interested in knowing peoples' opinions on whether raising the gay marriage issue last year was poorly timed. This decision can still be overturned on appeal before reaching the Supreme Court, can't it? I'm of the opinion that the issue should have been raised, but doing so in an election year against a candidate who appeals to the Christian right as it is was kind of not-so-good a move.....anyway I hope this works!!!

If the city chooses to appeal (which they most likely will), they will appeal to the Appellate Division (an intermediate level court). This decision will be binding in all lower courts (I'm not sure but I think it would be all NYC courts, but it's possible that it'd be only Manhattan).

The party that loses at the Appellate Division can appeal to the New York State Court of Appeals. The decision from that court binds the whole state, and because it's a State Constitutional Issue, there is no further appeal. That's why the Massachussetts ruling wasn't appealed to the Supreme Court too. The Supreme Court can only hear state cases if there's a U.S. Constitution issue. So there would have to be a conflict between the State Constitution and the U.S. Constitution on the issue of same-sex marriage, and unless that Amendment magically passes, there is no U.S. constitutional issue.

When I met with Jeff, he mentioned that there is another appeal process that lets someone appeal directly to the Court of Appeals, instead of going through the Appellate Division. I doubt the city will do that, because it might bind the entire state if they lost. Jeff also mentioned that the New Paltz case (which is being handled by a different firm) might beat them to the court of appeals. We'll see how it goes.

But I love this stuff, and no, erin, it's not going to get to the Supreme Court.

Procrastination

2005-02-04T16:57:00.000-05:00

Ah.. I should be working on my brief for legal writing, but instead I've been surfing the web all day. Well. Now there's a blog. We'll see where this goes. My money's on nowhere.