"If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?"

Justice Scalia is out and about, antagonizing — antoninonizing — students, this time at Princeton, with "a form of argument that I thought you would have known, which is called the 'reduction to the absurd.'"

Scalia said he is not equating sodomy with murder but drawing a parallel between the bans on both.

Then he deadpanned: "I'm surprised you aren't persuaded."

[The student] said afterward that he was not persuaded by Scalia's answer. He said he believes Scalia's writings tend to "dehumanize" gays.

Actually, he's humanizing you by crediting you with the capacity to comprehend rhetoric and engage in an on-the-fly verbal interchange. But it is easier to dehumanize your adversary. Afterwards.

What do they teach you at Princeton?

ADDED: Jaltcoh has 3 thoughts about this.

AND: David Lat reminds us about what Judge Posner said about horse meat: "a state is permitted, within reason, to express disgust..."

I'm shocked, shocked to learn that the Harvard Law School Human Rights Journal doesn't want right-wing articles.

If you're going to expose liberal bias on law student-edited publications, you'll have to show me something other than a journal that displays lefty pride in its name.

What's wrong with a student publication with a political bias? If conservative lawprofs want to publish more articles, let them found their own publication or hoodwink tantalize law students to work their right-wing will. Or cut out the middleman and blog.

Live freely in writing... or die.

Lawprofs, whining about not getting enough of what they deserve — is there anything less likely to inspire sympathy?

"Retire to the dirt, usurper of American freedom."

Sign at a protest before a speech by Justice Antonin Scalia at Wesleyan University.

""[I]t’s no surprise that a visiting professor is teaching Admin; professors at Yale love to dump..."

"... the black-letter teaching duties on visitors, so the YLS tenured professors can teach 'Law and Literary Theory' or 'Law and Robots' or 'Law and __' (yes, blank in the original; this meta-course was all about the interdisciplinary study of law)."

David Lat, discussing a current student problem at Yale Law School, in the larger context of the differences among law schools. He continues:

In the grand scheme of things — global poverty, domestic unemployment, the war in Afghanistan, climate change (presumably you believe in it) — the inability of third-year students at Yale Law School to take Administrative Law is not a huge problem. But it is an interesting illustration of the very real differences between law schools. At how many other law schools would students take to the streets — Occupy 127 Wall Street, if you will — over being denied the right to wallow in the nuances of Chevron deference?

"You can hear the 'thwack' when Chief Judge Jones smacks her hand on the table — a benchslap, quite literally. DIVA-LICIOUS!"

When 5th Circuit Chief Judge Edith Jones told Judge James. L. Dennis to shut up.

Hey, settle down. It's not like she strangled him.

"Should Professor Campos’s authorship of Inside the Law School Scam come as a surprise?"

"In hindsight, perhaps not. The universe of law professors writing negatively about the legal academy is not huge. For a law prof, saying that the status quo in legal education has problems constitutes a declaration against interest."

Says David Lat. Me, I've been hearing professors saying negative things about legal education since the day I started work in the legal academy (in 1984). But then I stepped right into the hotbed of Critical Legal Studies. Back then, everyone was reading "Legal Education and the Reproduction of Hierarchy: A Polemic Against the System," by Duncan Kennedy. Campos's criticisms are mild compared with that! Has everyone forgotten that 1983 book? The so-called "little red book" barely even has a Wikipedia entry. From the Preface:

The general thesis is that law schools are intensely political places, in spite of the fact that they seem intellectually unpretentious, barren of theoretical ambition or practical vision of what social life might be. The trade school mentality, the endless attention to trees at the expense of forests, the alternating grimness and chumminess of focus on the limited task at hand, all these are only a part of what is going on. The other part is ideological training for willing service in the hierarchies of the corporate welfare state.

To say that law school is ideological is to say that what teachers teach along with basic skills is wrong, is nonsense about what law is and how it works. It is to say that the message about the nature of legal competence, and its distribution among students, is wrong, is nonsense. It is to say that the ideas about the possibilities of life as a lawyer that students pick up from legal education are wrong, are nonsense. But all this is nonsense with a tilt, it is biased and motivated rather than random error. What it says is that it is natural, efficient and fair for law firms, the bar as a whole, and the society the bar services to be organized in their actual patterns of hierarchy and domination.

Because most students believe what they are told, explicitly and implicitly, about the world they are entering, they behave in ways that fulfill the prophecies the system makes about them and about that world. This is the link-back that completes the system: students do more than accept the way things are, and ideology does more than damp opposition. Students act affirmatively within the channels cut for them, cutting them deeper, giving the whole a patina of consent, and weaving complicity into everyone’s life story.

Resist! 

Now, that's not really a declaration against interest for Kennedy, and Campos's book isn't a declaration against interest either. Both men were/are promoting their own work from a safe position of tenure.

"Pregnant Woman Takes Bar Exam While in Labor, Delivers Baby Right After!"

David Lat writes:

Before the start of the afternoon session on day two of the Illinois bar exam (Wednesday), the very pregnant [“Mother Bar Exam,” AKA “MBE"] mentioned to the proctors the possibility that she might give birth during the test. She asked if she could leave early in the event that she went into labor; they agreed.

So Mother Bar Exam sat down for the afternoon session of the Multistate Bar Exam (“MBE”). Not long after, she started going into labor — not a little discomfort, but full-on labor....

She continued to answer MBE questions, while in labor. She then finished the exam early, at 4 p.m....

Upon completing the exam, Mother Bar Exam notified the proctors that she was done and needed to leave, seeing as she was, you know, in the middle of giving birth and all. Normally candidates are not allowed to leave the room early, but in this case the proctors accommodated her (especially since she had mentioned the issue to them beforehand).

Impressive! But I can understand the determination to finish the exam. After all the preparation and getting through the first day, to have to wait and take the exam months later would be a huge setback. And in the months ahead, she'll be dealing with an out-of-the-womb baby, keeping her up at night, making all sorts of babyish demands. Better to get it done while you can, especially since the hospital was right across the street.

By the way, what about the other test takers in the room? Were they unaware of what was going on? Were they distracted?

IN THE COMMENTS: Joan, who is a doctor, says:

I think taking an exam would be a great way to get through labor. The thing about contractions is that they hurt while they're happening, but when the contraction stops, so does the pain -- completely. It's like a light switch: off, on. It amazed me all 3 times I was in labor (anesthesia-free, too). It's terrific to have something to occupy your mind during this time. If you're distracted your body can just do its thing, whereas if you're stressed, you'll interfere with those things happening.

This woman does not sound like the type to make a disturbance to those around her. I was furious during my last state licensing exam when the guy in front of me had a chronic, severe cough. Every 30, 45, 60 seconds or so he'd cough hard enough to shake my desk. I spoke to the proctor about it but there wasn't anything he could do. But the 30 or so of us in that room (a high school classroom) were definitely disadvantaged. (One thing that made it so bad was knowing he was going to cough again but not knowing when it was going to happen -- I was distracted by anticipating the next cough. At least with labor contractions, they come at regular intervals.)

"If you’re going to be a diva, then own it."

Says David Lat:

Was this lesson was lost on Yale law professor Amy Chua, the author of an incendiary essay in last weekend’s Wall Street Journal, Why Chinese Mothers Are Superior, and a new book about Eastern versus Western parenting styles, Battle Hymn of the Tiger Mother?...

After her controversial essay about the superiority of Chinese mothers and hard-ass Asian parenting set the blogosphere on fire — and sent her book rocketing to #5 on the Amazon bestseller list — Chua backtracked a bit, instead of defiantly standing her ground....

Lat read the book and says the WSJ piecce is "a collection of the book’s most inflammatory, anti-Western-parenting portions, collected from far-flung chapters" that "lacks the nuance and the narrative arc of Chua’s full memoir." Nevertheless, the WSJ piece got the book immense attention (including the attention she's as she remakes her image), so how can she complain?

What troubles me about the book is the idea that other parents, with less good sense and less naturally talented children, will extract advice that will lead to child abuse... or something close to it. Children need to play to develop their minds. They need to find intrinsic delight in their experiences. What good is hyper-achievement for its own sake?

Jan Crawford interviews Justice Scalia at the Federalist Society annual dinner.

David Lat reports:

Crawford asked Scalia if he ever found himself in a situation where he was torn between his personal conscience and his professional duty as a justice. He said no. After Crawford expressed a hint of incredulity — you’ve never encountered such a situation, in your many years on the bench? — Scalia quipped, “Maybe I have a lax conscience.” The resulting laughter cleared the air nicely.

Conversation turned to whether the Supreme Court’s opinions offer adequate guidance to the lower courts and litigants — a topic recently raised in this fascinating New York Times article by Adam Liptak, which Crawford explicitly referenced. Scalia appeared to agree with the general thrust of the piece.

“You can write a fuzzy decision that gets nine votes,” Scalia said, “or a very clear decision that gets five votes.”

On the subject of putting Supreme Court oral arguments on video, Scalia said he disapproved. He thought it would mainly lead to out-of-context clips. He thought he'd look great in those clips though: "I could ham it up with the best of them on television... I’d do very well." Lat calls that boasting, but I see modesty. Best of them implies that he doesn't think he is the best oral-argument entertainer. But he is!

On the subject of attending the President's State of the Union Address, he said: “It is a juvenile spectacle, and I resent being called upon to give it dignity…. It’s really not appropriate for the justices to be there.”

On the subject of hiring clerks from Harvard and Yale law schools:

"The best minds are going to the best law schools. They might not learn anything while they’re there [laughter], but they don’t get any dumber."

I should reprise that Vonnegut quote from my 10:20 post. What if you had to argue that they do get dumber? I'll bet you could.

Lat says:

Note how Scalia did not use politically correct terminology. The PC approach calls for referring to the “highest ranked” law schools rather than the “best” law schools.

I must chide Lat for not seeing the political incorrectness of saying "the best minds." Or has Allen Ginsberg's "Howl" made "best minds" seem like a standard phrase? "I saw the best minds of my generation destroyed by madness, starving hysterical naked...." That's not innocuous. "Best minds" should prick up our attention and make us feel that something is not right.

Surely, the applicants that Harvard and Yale smile upon are not really our "best minds." Perhaps they are the "best minds" that are applying to law school in any given year, but I don't think even that is true. You have to do too many things right, too diligently, too early in life to hit the law school application sweet spot and get into the most selective schools. The best minds will have resisted acquiring the conventional indicia of career promise.

Come to think of it, Lat is also wrong to say that "highest ranked" is the preferred terminology for law schools. In academia, "highest ranked" implies highest ranked by U.S. News, and it is the proper thing to loathe U.S. News. It lacks the nuance to perceive the subtle qualities that make our favorite law schools so damned special.

Seriously... I think Scalia, being a good writer and speaker, simply believes that short, simple words are... best.

"Racist Harvard Law Email: The Cat Fight That Turned Into a National Scandal."

Oh, no!

We cannot absolutely rule out the the possibility that women are, on average, genetically predisposed to be....

Ha. How horribly, embarrassingly messy for everyone at Harvard who took the bait. They got sucked into the vortex. They got played.

AND:  David Lat has some details. And some opinion:

Heck, this episode probably won’t even stop Steph from landing a Supreme Court clerkship. If I were in her shoes, I’d focus my efforts on Justice Clarence Thomas. Of all the members of the Court, he’d probably be most open to hiring the victim of what some conservatives might call, to paraphrase CT himself, the “high-tech lynching [of conservative females] who in any way deign to think for themselves, to do for themselves, to have different ideas.”

He also has an update from the woman whom some accused of leaking the email. She writes:

There was no fight over a guy (this isn’t Mean Girls). I certainly didn’t yell that I would ruin Stephanie’s life.

Moreover, I didn’t forward the e-mail to BLSA, anyone in BLSA, or ATL....

I know that you would prefer anything related to two girls to be a catfight... but that just isn’t how it happened.

***

If you're trying to remember the "Seinfeld" reference for "cat fight," it's "The Summer of George":

Jerry: Did you tell Peterman about this?

Elaine: Well, I tried, but he thought it was some sort of cat fight.

Kramer: Cat fight?

Elaine: Ok, why? Why do guys do this? What is so appealing to men about a cat fight?

Kramer: Yeye cat fight!

Rumor no sooner heard than shot down.

So did you hear the one about John Roberts resigning from the Supreme Court?

(That link does not go to the sites that boosted their traffic by reporting this rumor. It goes to my Google search for the rumor.)

ADDED: David Lat traces the rumor to a lawprof.

Above the Law Idol — and I'll be a judge.

Here's the explanation. And here's a comment I completely predicted when David asked me to be a judge:

Althouse = Paula Abdul.
No contest.
Drunk and batshit crazy.

Here's where you're wrong, oh, predictable "guest" commenter. Paula is on the "American Idol" panel to love and support the kids and cushion them from Simon's meannesss. I will not be performing that function. You need to think a lot harder— and identify yourself with a real name so I can come over there and kick your ass. You took a comment cliché and did nothing even to attempt to make it your own.

And Dahlia Lithwick wants to be the Paula, anyway.

"Hangings? C'mon, Dean Velvel -- shouldn't a liberal like yourself view that as violating the Eighth Amendment?"

David Lat has at that law school that's hosting a conference about whether George Bush should be convicted of war crimes — and executed.

What law school is this? It's the Massachusetts School of Law at Andover, which I'd never heard of. I note that it's a law school that does not require the LSAT:

Massachusetts School of Law interviews every applicant who wishes to attend the school. We believe the true measure of a person’s capabilities to be a good lawyer cannot be measured solely by sterile statistical data, which can never measure drive, dedication, obstacles overcome, perseverance, and a good heart....

Also, because of the considerable criticisms of the LSAT, Massachusetts School of Law does not consider the LSAT when making admissions decisions. Instead, it considers an essay test that the school itself has developed. The test is given at the time of the interview, and, most importantly, it is read and graded by a full time MSLAW professor who, based upon years of practical and academic experience, is well qualified to assess an applicant’s ability to think and write well. The requirement of a mandatory interview, the review of an applicant’s entire record in school and the work force, and the essay aptitude test enable the Admissions Committee to identify worthy students who would be denied admission to traditional law schools simply because of their LSAT scores.

This is an intriguing idea, actually! An applicant has to be interested enough in them to go there for an interview and to sit down and take a test. You can tell a lot about lawyerly aptitude by the way a person presents himself (or herself) in an interview. And I haven't seen the test, but if it's done right, it could very well be as good as the LSAT — and probably is more like a law school exam.

And, frankly, the conference isn't even such a terrible idea. It got our attention, it's a little bit inflammatory, but if the issue of war crimes is taken seriously and presented in an appropriately legal fashion, what is so bad about it?

ADDED: My Wisconsin Law School colleague Anuj Desai emails:

[Massachusetts School of Law Dean Lawrence] Velvel was the one who wrote an amicus brief in Grutter arguing that it is the over-reliance on the LSAT that necessitates affirmative action. You see whispers of the idea in Justice Thomas's opinion. (i.e. in the idea that Michigan's real gov't interest was not simply "diversity", but rather being elite and exclusive, while simultaneously having racial diversity).

From the amicus brief (PDF)

The type of affirmative action practiced by the University of Michigan Law School, and at issue in this case, is one that has been necessitated in significant part by the numbers-oriented admissions tools used by most law schools, especially the schools' heavy focus on the LSAT. Perhaps no other tool used in graduate school admissions has come under such attack in recent years as the LSAT, which for many decades has been the only admissions test approved by the ABA's Section of Legal Education. Because MSL uses a “holistic” approach to admissions, not a by-the-numbers approach, and does not rely in any way on the LSAT or any other standardized test, it does not need to use affirmative action in order to enroll qualified minority students. Rather, it considers a variety of factors when determining whether to admit a candidate, but race is not a “plus” or special factor in admissions decisions. In fact, MSL's admissions committee generally is not even aware of the race of an applicant. Yet MSL's minority enrollments are generally higher, year after year, than those of scores of the predominantly white ABA accredited schools. This is true even though New England has a low percentage of minorities, and a low percentage of minority college graduates, in comparison with such sections of the country as the Mid-Atlantic States, the South, and the industrialized upper Midwest where the instant case originates, and in comparison with major urban areas such as New York City, Chicago and Los Angeles, which are home to millions of minority citizens and to many law schools.

"Hillary Clinton As A Gay Icon."

David Lat points to this 1999 article by Michelangelo Signorile.

ADDED: Based on some of the comments here, I can see I'd better clutter this post with some clues: 1. gay icon ≠ gay, 2. it's a compliment.

NOTE: Signorile's article is titled "Hillary: Viva la diva!"

"I will discover to my shock and chagrin ... Glenn Greenwald has already written about it, and I’m totally hosed."

TRex frets:

[S]ome days I think I’ve got the post to end all posts lined up in my head and I will discover to my shock and chagrin that Digby or Glenn Greenwald has already written about it, and I’m totally hosed. Approaching a topic after one of those two has already handled it is kind of like approaching the all-you-can-eat food bar at Ryan’s Steakhouse after Rush Limbaugh has come through. There’s, like, nothing left.

Well, a lot of times Glenn Greenwald just chews up food and spits it out all over the floor and the walls and the furniture month after month until it piles up and congeals and grows into mold, turning the room into a repulsive, health-threatening mess. Then, there's a lot left.

What is it with these lefty bloggers and their food metaphors? It's enough to make you think they're all... doughy.

ADDED:


"Wheeee! I'm blogging!"

SPECIAL MESSAGE TO TREX:


"Wheeee! I'm blogging!"


AND: David Lat says: "Ann Althouse: We love it when she gets medieval -- or should we say me-diva? -- on a hapless blogger's a**." Hey, that's good for the banner!

UPDATE: TRex writes, then deletes, something about me.

"Maybe she should sue AutoAdmit?"

Rueful punchline. If you don't get it, David Lat and I provide the background here.

ADDED: The comments at the first link are harrowing.

"Bong Hits 4 Lawyers."

That's the name of the name of the new Bloggingheads episode with me and David Lat. Topics:

How David became a muckraking law-blogger (13:04)

Virtual crossdresser exposed! (11:12)

Money-grubbing lawyers exposed! (15:17)

The AutoAdmit scandal: Can you sue an emoticon? (21:17)

Ann on Hillary's onion rings, Bill's carrots (12:47)

Judicial puffery in the "Bong Hits 4 Jesus" case (08:29)

"Harnessing irrational law firm egotism" for the public good.

David Lat has an op-ed in today's NYT, about the giant bonuses law firms are giving to Supreme Court clerks: $250,000, on top of a salary of nearly $200,000.

In recent years, the practice of law at the nation’s largest firms has become much more of a business and much less of a profession. Firms have been squeezing more billable hours out of their associates, abandoning less lucrative practice areas and showing the door to partners who don’t bring in enough business — measures that would have been unheard of in the profession’s more genteel days.

So this bizarre competition among prestige-hungry law firms to collect the most young legal rock stars actually represents a healthy check, however modest, on this profit-maximizing behavior. By harnessing irrational law firm egotism to serve the rest of the profession, enormous clerkship bonuses achieve an impressive, increasingly difficult feat: getting top law firms to contribute to something other than their own bottom line.

You can make up all kinds of theories about why some ridiculous behavior is actually for the good. I'll have to think about this one some more. It may seem hard to care if law firms compete with each other self-destructively, but try.

"You're referring to the Notorious Greenhouse Effect."

David Lat has notes on a law firm lunch talk given by Linda Greenhouse.

She discussed various predictors (attributed to various scholars) regarding ideological movement, including whether the justice is new residents to the DC area (those who have prior DC experience are less likely to change their positions in the context of DC culture), whether the justice has prior executive branch experience (those with prior experience are less likely to change their ideology), and any life-changing events that the justices have experienced (e.g. Justice Thomas's confirmation hearings). She indicated that Justice Thomas is unlikely to become more liberal over time because his defenders on the right during his confirmation hearings so firmly anchored him to that ideology. Her conclusion seemed to be that Justices Roberts and Alito are unlikely to change their ideological stances over time based on the first two tests (both have prior DC experience and both worked in the executive branch)....

On the idea that justices become more liberal as they get older because they're tired of being criticized in the media and they want people to write nice things about them: "You're referring to the Notorious Greenhouse Effect." "This is the idea that justices become more liberal as they get older because they want the east coast liberal media, such as the New York Times, to write nice things about them in their obituaries." She was skeptical of this as an explanation for ideological movement.

Maybe it's for the law professors.

The "new media" panel at the 7th Circuit conference.

I'm reading Christine Hurt's comments on the "new media" panel from yesterday's 7th Circuit conference, and I realize I still haven't put my comments in writing.

As Christine notes, one of the questions asked by the moderator -- Judge Diane Sykes -- was "What impact does law blogging have on the judiciary and are there any ethical considerations that are triggered by judges reading blogs?" I think all of us bloggers -- Christine, me, Howard Bashman, Richard Garnett, Jason Czarnezki, and Eugene Volokh -- thought that blog posts that might influence real decisions are no more worrisome than newspaper op-eds. They're published openly, so what's the problem?

[O]ne questioner in the audience questioned the ethical propriety of trying to influence a judge on a pending case. Again, the panel did not believe that this phenomenon was any more troubling that op-eds about pending cases or law review articles arguing what the law ought to be in general in a specific area. However, from overhearing the audience participants after the panel, I understood that the questioner's concern was widespread.

I formed a hypothesis that at least some practitioners (the ones that I overheard) were concerned that blogs created a one-way advantage in the way that ex parte conversations do. If one litigant can get the attention of the blogs, then is the other litigant at a disadvantage? One woman near me said to her colleague "The thing about blogs is that if they say something about me, I can't respond." I wanted to assure her that most blogs have "comment" functions, but I didn't want to fuel her paranoia. What is it about blogs that non-bloggers find so dangerous (and "unduly influential")?

Interesting! I think people do feel threatened by blogs. Suddenly, a new set of individuals have amplified voices and a daily audience. That has always been the case with mainstream media, but this seems so strange and chaotic. You might want to tell them that since anyone can do it, it's less disturbing than mainstream media, which used to dominate and monopolize. But with blogs, there are so many of them and they might say anything about anything. They might make a point of being completely unfair. Some of the most popular blogs got popular that way. And what must be even more confounding is that it seems that in order to balance the blogs that go against you, you're supposed to blog too. It's horrifying to think that you may be required to blog. Blogging is a new kind of speech competition -- a speech rat race. What?! Now we have to keep up with the Instapundits?!

But this insinuation that the legal bloggers are unethical -- I think that's a desperate ploy to get us to stop or at least feel constrained. They feel threatened, so they'd like to make us feel threatened back. But it's such a lame argument to suggest blog posts are somehow like ex parte communications with the judge.

Anyway, I enjoyed this subject of judges reading blogs. Howard Bashman had a story of someone seeing that Chief Justice Roberts having How Appealing shamelessly displayed on his computer screen. Do they have to think now about how their opinions will play in the blogs? And is it good -- or somehow degraded -- for them to be thinking about such things? Do they suspect the other judges of writing lines that the bloggers will quote? But that's not much different from looking at what the newspapers think or seeing what lines get quoted in the newspaper, and as Eugene Volokh said on the panel, at least the bloggers link to the original texts. The newspapers choose what they want to quote or paraphrase, but then that's all the readers get. The law bloggers as a rule link to the text of the case or the transcript of the oral argument, and if we've taken something out of context, our readers can go right to the source, and they can call us on our distortions in our comments sections or on their own blogs.

I noted that the panel was heavily stocked with academic bloggers. It was a relatively sedate group, if I was the edgiest person there. I said I thought it was good for judges to read the more irreverent bloggers like David Lat because judges -- even more than law professors -- are often surrounded by people who are extremely deferential to them, and they ought to want to expose themselves to some different attitude. Law blogs are a handy way for them to transcend the cocoon.

More about the panel later, maybe. I've got a huge deadline to meet in the next 16 hours. Plus, "American Idol" is on tonight.

ADDED: It occurs to me that lawyers just don't know how to use Google or Technorati to check to see if anyone is blogging about their cases, so that the discussion really doesn't seem to be going on openly and in public. The solution is obvious: They need to learn.