"Supreme Court Rejects Challenge to Surveillance Law."

"In a 5-to-4 decision that broke along ideological lines, the Supreme Court on Tuesday turned back a challenge to a federal law that authorized intercepting international communications involving Americans."

This was a predictable decision based on existing standing doctrine.

"Kerry defends liberties, says Americans have 'right to be stupid.'"

Lucky for him.

Typical rich bastard, always looking out for his own interests.

"When does a fantasized crime become an actual crime?"

"A federal prosecutor, Randall W. Jackson, told jurors that [New York City police officer Gilberto Valle] had been plotting real crimes to kill actual victims, while Officer Valle’s lawyer, Julia L. Gatto, contended that he had merely been living out deviant fantasies in Internet chat rooms, with no intention of carrying them out."

One outside expert, Joseph V. DeMarco, an Internet lawyer and former head of the cybercrime unit in the United States attorney’s office in Manhattan, said in a recent interview that beyond its sensationalism, the Valle case highlighted the fact that there were “dark corners” of the Internet “where a whole range of illegal and immoral conduct takes place, and the general public has only a vague and fleeting knowledge that these places exist.”



He noted that the Internet, as a medium of expression and communication, also made it possible for people with interests as benign as stamp collecting or as grisly as cannibalism to find and validate one another in community forums.

“If you were someone mildly interested in cannibalism 30 years ago, it was really hard to find someone in real space to find common cause with,” Mr. DeMarco noted. “Whereas online, it’s much easier to find those people, and I think when you have these communities forming, validating each other, encouraging each other, it’s not far-fetched to think that some people in that community who otherwise might not be pushed beyond certain lines might be.”...

Ms. Gatto, Officer Valle’s lawyer, said in her opening statement that if the jurors had been scared by what the prosecution had described, “who could blame you?” The allegations were shocking and gruesome, she said, “the stuff that horror movies are made of. They share something else in common with horror movies,” she added. “It’s pure fiction. It’s pretend. It’s scary make-believe.”

Ms. Gatto suggested that the stakes for Officer Valle, who has been charged with conspiracy to commit kidnapping, a charge that carries a maximum sentence of life in prison, went far beyond his case. She said cases like his test “bedrock principles, the freedom to think, the freedom to say, the freedom to write even the darkest thoughts from our human imagination.”

IN THE COMMENTS: Nonapod said: "Real space? The term meatspace is often used as a silly antonym to the cyberspace, but this gives it a whole new meaning."

Which prominent Republicans are signing a Supreme Court brief supporting same-sex marriage?

"The list of signers includes a string of Republican officials and influential thinkers — 75 as of Monday evening — who are not ordinarily associated with gay rights advocacy, including some who are speaking out for the first time and others who have changed their previous positions."

Among them are Meg Whitman, who supported Proposition 8 [a ban on same-sex marriage] when she ran for California governor; Representatives Ileana Ros-Lehtinen of Florida and Richard Hanna of New York; Stephen J. Hadley, a Bush national security adviser; Carlos Gutierrez, a commerce secretary to Mr. Bush; James B. Comey, a top Bush Justice Department official; David A. Stockman, President Ronald Reagan’s first budget director; and Deborah Pryce, a former member of the House Republican leadership from Ohio who is retired from Congress....

Actually, this isn't such an impressive list of names. It seems pretty pathetic to me.

[T]he presence of so many well-known former officials — including Christine Todd Whitman, former governor of New Jersey, and William Weld and Jane Swift, both former governors of Massachusetts — suggests that once Republicans are out of public life they feel freer to speak out against the party’s official platform, which calls for amending the Constitution to define marriage as “the union of one man and one woman.”

Or it suggests Republican governors of New Jersey and Massachusetts aren't that conservative.

But then there's Huntsman:

Jon M. Huntsman Jr., the former Utah governor, who favored civil unions but opposed same-sex marriage during his 2012 presidential bid, also signed. Last week, Mr. Huntsman announced his new position in an article titled “Marriage Equality Is a Conservative Cause,” a sign that the 2016 Republican presidential candidates could be divided on the issue for the first time.

This is the first reference I've seen to Huntsman's article, and I'm constantly scanning the web for news stories, especially on the subject of same-sex marriage, especially with the Supreme Court decision pending. Why isn't Huntsman more influential? It's uncanny that this man, a former governor, very nice looking, doesn't get more play among conservatives. Here he is trying to tell conservatives what's conservative, and I don't have to read his article or any response to it to know that conservatives will reject what he's saying out of hand, designating him not a conservative.

But how about not rejecting it out of hand? Put aside your Huntsmanophobia for a moment. He connects marriage equality to free market capitalism:

Marriage is not an issue that people rationalize through the abstract lens of the law; rather it is something understood emotionally through one’s own experience with family, neighbors, and friends. The party of Lincoln should stand with our best tradition of equality and support full civil marriage for all Americans.

This is both the right thing to do and will better allow us to confront the real choice our country is facing: a choice between the Founders’ vision of a limited government that empowers free markets, with a level playing field giving opportunity to all, and a world of crony capitalism and rent-seeking by the most powerful economic interests.

Adam Smith was not only an architect of the modern world of extraordinary economic opportunity, he was a moralist whose first book was The Theory of Moral Sentiments. The foundation of his thought was his insight that free markets and open commerce strengthened our moral fiber by reinforcing the community of shared and reciprocal economic interests. Government, he thought, had to be limited lest it be captured and corrupted by special business interests who wanted protection from competition and the reciprocal requirements of community.

We are at a crossroads. I believe the American people will vote for free markets under equal rules of the game—because there is no opportunity or job growth any other way. But the American people will not hear us out if we stand against their friends, family, and individual liberty.

I'd say that's a bit under-theorized. There's so much padding at the beginning of the article — Republicans need to win over the younger generation and so forth. The ending is a mishmash — a mere hint of an idea that might make sense. What does he say other than equality is good and free market capitalism is also good? There's this odd concession that law doesn't matter, because this is something that people are going to understand emotionally. Rather than make an "abstract" legal argument — why is law only abstract? — he appeals to emotion. You should be for equality because equality is the right principle. First of all, that's abstract. Secondly, the go-with-your-heart, emotion-is-the-answer approach is what leads so many people to oppose same-sex marriage.

The other argument seems to be that the economic issues are what's really important, so let's get this pesky marriage issue behind us so we can move on. People will "vote for free markets" if there are conditions of equality. That suggests that marriage equality is the kind of equality in the marketplace that Adam Smith was talking about. Is it? Maybe, but Huntsman doesn't even attempt to connect that all up. As I said: under-theorized. That's my abstract legalistic view and my from-the-heart emotional view.

Ted Cruz's office says "in the mid-1990s, the Harvard Law School faculty included numerous self-described proponents of 'critical legal studies'..."

"... a school of thought explicitly derived from Marxism – and they far outnumbered Republicans."

That's in response to a New Yorker article quoting something Cruz said in a speech 3 years ago. (What Cruz said back then, at an Americans for Prosperity conference, was that when he was at Harvard Law School "There were fewer declared Republicans in the faculty when we were there than Communists! There was one Republican. But there were twelve who would say they were Marxists who believed in the Communists overthrowing the United States government.")

The Cruz spokesperson called it "curious that the New Yorker would dredge up a three-year-old speech and call it 'news.'"

Curious... there's a noncommittal word. I don't see anything wrong with digging stuff out of old Cruz speeches. He's a new character on the national stage, so it's not like old territory is being reworked. It was an inflammatory statement, and he needs to stand by it (and back it up), defend it as hyperbole, or concede he was wrong.
The New Yorker writer, Jane Mayer, was following up after Barbara Boxer had compared Cruz to Joseph McCarthy. That was pretty inflammatory too (as I said at the time). What Boxer said made it a valid line of inquiry for Mayer and not odd at all. What you say to your base will be heard by the outsiders too, and any politician needs to be prepared for that. Republicans hoping for a new star better not forget how badly Mitt Romney faltered when he had to deal with the 47% remark he'd used on the insider group. This Cruz quote is the same kind of thing. Don't minimize it.

Mayer talked to Charles Fried, the Harvard lawprof who was probably the one Republican referred to by Cruz. Fried says:

"I have not taken a poll, but I would be surprised if there were any members of the faculty who ‘believed in the Communists overthrowing the U.S. government".... Fried acknowledged that "there were a certain number (twelve seems to me too high) who were quite radical, but I doubt if any had allegiance or sympathy with anything called ‘the Communists,’ who at that time (unlike the thirties and forties) were in quite bad odor among radical intellectuals.” He pointed out that by the nineteen-nineties, Communist states were widely regarded as tyrannical. From Fried’s perspective, the radicals on the faculty were "a pain in the neck." But he says that Cruz’s assertion that they were Communists “misunderstands what they were about."

Clearly, it was rhetoric to call the Critical Legal Studies professors "Marxists" who believed in "Communist" revolution, and Cruz chose to do that at a particular place and time. Cruz is accountable for that. It's a shibboleth of the right to rely on the words "Marxist" and "Communist." It wasn't the way the lefty lawprofs of the time talked about themselves. I have a vivid memory of saying to a CLS lawprof — a very good friend, during a casual conversation — "I'd like to know about the connection between CLS and Marxism." She snapped: "There's none." I got the message: You sound right wing. It was understood that to sound right wing was to become toxic.

Here's a useful passage from the classic 1983 CLS book by Harvard lawprof Duncan Kennedy, "Legal Education and the Reproduction of Hierarchy: A Polemic Against the System":

Left-liberal rights analysis submerges the student in legal rhetoric, but, because of its inherent vacuousness, can provide no more than an emotional stance against the legal order. The instrumental Marxist approach is highly critical of law, but also dismissive. It is no help in coming to grips with the particularity of rules and rhetoric, because it treats them, a priori, as mere window dressing. In each case, left theory fails left students because it offers no base for the mastery of ambivalence. What is needed is to think about law in a way that will allow one to enter into it, to criticize without utterly rejecting it, and to manipulate it without self-abandonment to their system of thinking and doing.

"I feel like I just won the Academy Award. If an artist can offend so many people that he has to go to prison..."

"... to protect society, that's really saying something. Most shock artists dream of this kind of attention, without the prison part."

Ira Isaacs, sentenced last month by a federal judge — this is in the United States— for 4 years, for violating obscenity law. The Huffington Post — considered a liberal website, and, again, this is in the United States — began its article about the sentencing with a joke: "Looks like someone's career went down the toilet." (The movies included the simulated consumption of feces.)

There is no shame anymore. And yet there still are obscenity trials. Absurd.

I'm finding this story now because I happened across an account to the trial in an article published last March at Reason.com: "Porn So Icky That It Can't Be Obscene" (by Jacob Sullum), describing the argument made at trial, which describes the argument made by Isaacs's lawyer:

"My intent is to be a shock artist in the movies I made," [Isaacs] testified, "to challenge the viewer in thinking about art differently... to think about things they'd never thought about before." Similarly, [his lawyer Roger] Diamond argued that the films have political value as a protest against the government's arbitrary limits on expression, illustrating the "reality that we may not have the total freedom the rest of the world thinks we have."

Sullum wrote:

I will be impressed if Isaacs, who faces a possible penalty of 20 years in prison, can pull off this feat of legal jujitsu, transforming the very qualities that make his movies objectionable into their redeeming value — especially since at least some of the jurors... found the evidence against him literally unwatchable. But if the jurors want to blame someone for making them sit through this assault on their sensibilities, they should not blame Isaacs. They should blame the Justice Department, which initiated the case during the Bush administration, and the Supreme Court, which established the absurdly subjective test they are now supposed to apply. Will they take seriously Isaacs' references to Marcel Duchamp, Robert Rauschenberg, Kiki Smith, and Piero Manzoni, or will they dismiss his artistic name dropping as a desperate attempt to give his masturbation aids a high-minded purpose?

But here's some up-to-date news from 2 days ago: Minutes before Isaacs was to turn himself in to the  federal Bureau of Prisons, Isaacs go a call from his lawyer saying "don't go." The judge had approved his motion for bail pending appeal.

Isaacs told XBIZ that today's events were so surreal he had felt like he was in an episode of the "Twilight Zone" or a Quentin Tarantino movie....

"Last night, I was thinking it would be my last night of freedom," he said. "I really thought that this would be it; that I would be sleeping in prison the following night... and that would continue for a very long time."

We'll see what happens in the 9th Circuit Court of Appeals and — if we're lucky — the Supreme Court.

The Obama administration's brief in the Supreme Court's DOMA case.

Lyle Denniston summarizes the briefs filed yesterday in United States v.Windsor — the case attacking the federal law that excludes same-sex couples, married under state law, from being treated as married for the purposes of federal benefits and tax laws.

The brief continued the efforts by the administration, begun two years ago tomorrow, to persuade the courts to adopt a rigorous test when they judged laws that discriminated against gays and lesbians.  Instead of the much more tolerant “rational basis” test, the government has been pressing for what is called “heightened scrutiny.”  And Friday’s brief defended that approach energetically.



This is the first time the federal government has proposed that constitutional test in a gay rights case before the Supreme Court.  The Court itself has never specified just what constitutional standard it will apply in such cases, but it may have to settle that this Term.

The DOMA benefit ban for married same-sex couples, the brief argued, cannot withstand the tougher standard.  “This Court,” the brief said, “has understandably reserved the application of heightened scrutiny to a small number of classifications.”  While the Court has not yet spelled out its own view of what the test is, the brief said, “under the factors articulated by this Court, such classifications warrant heightened scrutiny.”

More detail about the argument for heightened scrutiny at the link, and you can read the whole brief here (PDF).

There's a second pending Supreme Court case dealing with California's Proposition 8, and although the administration hasn't filed a brief in that case, the brief Windsor refers to Prop 8 as it makes the argument for heightening scrutiny, which — under standard equal protection doctrine — looks at a number of factors including whether a group has been excluded from political power.  From the brief:

Although some of the harshest and most overt forms of discrimination against gay and lesbian people have receded, that progress has hardly been uniform (either temporally or geographically), and has in significant respects been the result of judicial enforcement of the Constitution, not political action....

[There is no] convincing record of political power rendering protection unnecessary.

The brief cites various recent successful political efforts against same-sex marriage, including this footnoted reference to Prop 8:

By way of example, in May 2008, the California Supreme Court held that the state was constitutionally required to recognize same-sex marriage.... In November 2008, California’s voters passed Proposition 8, which amended the state constitution to restrict marriage to opposite-sex couples.

My guess is the Court won't heighten scrutiny, but it will find an equal protection violation in both of the cases. I predict a 6-3 decision.

Speaking of being called to a higher law and speaking of speaking....

In the previous post, we're talking about what Jesus wrote in the sand and what he said out loud, in the New Testament story where the scribes and Pharisees present Jesus with the question of what to do with a woman who was caught in the act of adultery. In the Gospel text, we're told Jesus that wrote on the ground, but not what he wrote, and we're told that he subsequently spoke and said "Let him who is without sin among you be the first to throw a stone at her."

I'm putting up a separate post because I found the scene that sydney said he loved in the movie "The King of Kings." Made in 1927, it's a silent movie, so no one is saying anything out loud. We see what Jesus says written out on the intertitles, and we also see what he writes in the sand.



Beautiful filmmaking, particularly as the sand-words, not written in Roman letters, transform into our English words, naming the sins that the men in the crowd realize they've committed, and that's why they all turn and walk away.

That's not an accurate depiction of what happens in the biblical text though. The movie shows a mob on the verge of stoning the woman and Jesus intervenes and announces his rule about casting the first stone. Only thereafter, does he write the names of the sins in the sand. But in the Bible story, there is no angry mob with stones in hand. There are scribes and Pharisees demanding that Jesus deliver a legal opinion. Jesus bends down and writes on the ground instead of answering the question.  Only after they persist does he stand up and pronounce his new rule, which causes the scribes and Pharisees to walk away — "beginning with the older ones." The movie would have you see the members of the mob acknowledging their sins and their consequent lack of qualification to cast the first stone. But the text has intellectuals trying to box Jesus in on a question of law, and Jesus getting the better of a conversation he didn't want to have in the first place.

It's not surprising that a movie plays up the visible drama, and it's also not surprising that when I — a law professor — read the text, I see something akin to a law school class. The professors try to stump the student and the student transcends their tricky game. To me, the part where Jesus bends over and writes in the sand is like what happens in a law school class when the lawprof poses a difficult hypothetical and the students bend their heads down and go through motions of writing. They don't want to answer. It's not that they're writing something magically revelatory and startling. But if the lawprof keeps pushing and calls on someone, an answer will be spoken out loud.

I guess the law-professorly interpretation of the text isn't terribly cinematic. It's no wonder the movies present an angry mob with stones in hand and Jesus miraculously knowing and changing the hearts of the sinners. (And the adulteress is an actress evincing exactly the form of sexiness that was fashionable in the year the movie was made. I love the eyeliner!)

But to me the lawprof interpretation is thrilling and dramatic. The professors think they've got the upper hand. They know the legal text and it's tough. And then the brilliant student who will soon be the greatest professor of all gets on top of the dialogue and says something they must accept as correct: If you're going to have strict rules and severe mechanisms of enforcement, you must apply them equally to everyone. This is the structural safeguard of equal protection of the laws that is the necessary component of a democratic system. If there can't be exceptions and special treatment for preferred people, legislatures will resist imposing harsh rules and painful punishments.

In this context, let me give you my favorite Justice Scalia quote, which happens to include one of the key words of Christianity: "Our salvation is the Equal Protection Clause, which requires the democratic majority to accept for themselves and their loved ones what they impose on you and me."

What did Jesus write in the sand? (Or: things I should have learned in church that I figured out from the Althouse comments.)

Yesterday, when many blogs were talking about the Islamist Facebook page with a cartoon showing how to stone a person who had committed adultery, I added the New Testament story, from John 8, in which Jesus said: "Let him who is without sin among you be the first to throw a stone at her." Jesus had just been teaching some people, and the scribes and the Pharisees, looking for a way to trip him up — they wanted to bring charges against him — present Jesus with a woman who had been caught in the act of adultery and remind him that the Law of Moses commanded that she should be stoned. "So what do you say?" Instead of answering, Jesus bends over and writes in the dirt. They keep pushing for an answer, and it's only then that he says: "Let him who is without sin among you be the first to throw a stone at her."

I didn't include the next few sentences, but the story was very familiar. After Jesus makes his brilliant remark — which finds a new way into the question — the crowd disperses and Jesus tells the woman to "go and... sin no more."

Some of the commenters focused on what it was that Jesus wrote on the ground. I'd always assumed that what Jesus was writing was irrelevant and that he was simply gesturing I'm not going to talk to you. He invoked his right to remain silent, as we say in the United States of America. He knew whatever he said would be used against him. Later, when he arrives at the New Testament doctrine — the higher law — he speaks up and articulates it pithily. He doesn't write it. Jesus isn't the put-it-in-writing type. The scribes are the bad guys here, and he's about talking to the people. The Word is spoken. (It's only written down later.)

But, reading the comments, I see interest in the subject of what Jesus wrote.

Sydney says: "In the movie The King of Kings, each accuser comes up to Jesus and sees written in the dirt his own sin, and turns and walks away. I love that scene." Is that the standard theory of what Jesus wrote?

And Chip Ahoy, linking here, says: "But what did he write in the sand?" At the link, we get added details from The Urantia Book (which I'd never heard of). There, the idea is that Jesus knew the woman's husband was a "troublemaker" and "perceived" that he'd forced the woman into prostitution and that the husband was now cooperating with the Pharisees to get Jesus to say something that could be used to arrest him. In this version of the story, Jesus doesn't just bend over and write in the dirt right where he is. He walks over to the troublemaker husband and writes something in front of him that makes him rush off. Jesus comes back to his original place and writes on the ground again, and the men, "one by one," leave. Last to go, is "the woman's companion in evil," who gets his own special message written in the dirt.

Kentuckyliz gives us the Old Testament quotes (the law of Moses, which is what the Pharisees threw at Jesus to trip him up):

Deuteronomy 22:22 "If a man is found sleeping with another man's wife, both the man who slept with her and the woman must die."

Leviticus 20:10 "If a man commits adultery with another man's wife — with the wife of his neighbor — both the adulterer and the adulteress must be put to death."

Kentuckyliz adds:

What's interesting about the Jesus scene, is that the law had become misogynistic in practice. The man is not being stoned according to the mandates of the law. In fact, I suspect he was standing in the crowd holding a stone.

Note that even in the extremely concise story told in John 8, we hear that the woman was "caught in the act." Whether he was in the crowd or not, the adulterer was known. Why aren't the authorities proposing to stone both the man and the woman? Kentuckyliz doesn't refer to what Jesus wrote in the sand, but this made me imagine that Jesus wrote "the man and the woman." And if the woman was a prostitute, all of the men who had ever slept with her would deserve stoning too.

In this scenario, Jesus acknowledges the written law of Moses by writing it. That's the Old Testament, which Jesus won't reject, even as his enemies are trying to lure him into rejecting it. He's showing that he knows the law, and in very few words, he's made it obvious to the legal experts that they are getting the law wrong and making them see their own faint-heartedness about equal justice, applying the strict law strictly on its written terms and to everyone. Then Jesus speaks, and the spoken word is the New Testament, calling us to a higher place, above the strict rules, under which we are all sinners. The New Testament demands that we look at our own sins. Go and sin no more.

That ought to keep you busy for the rest of your life. Now, leave other people alone.

ADDED: A second post includes the "King of Kings" clip and more.

"A South African magistrate granted bail Friday to double amputee Olympian Oscar Pistorius..."

"... who is accused of murdering his girlfriend, Reeva Steenkamp. Pistorius is charged with premeditated murder in the death of Steenkamp."

CNN breaking news email.

Wow.

If you were him now, wouldn't you attempt to flee?

ADDED: Think he's too recognizable because of his lack of feet? What about the 1-armed man on "The Fugitive"? He escaped notice for years.

"We made an industry out of cigarettes, we made an industry out of alcohol and now we're creating an industry out of marijuana – frankly, it's surreal sometimes."

Says Mary Beth Susman, a member of Colorado's Amendment 64 Implementation Task Force, which is about to report on a plan to regulate marijuana in Colorado (which is part of the United States, which criminalizes the production, sale, and possession of marijuana).

On one hand, the task force has considered new rules for what Colorado should do when it inevitably becomes a center of "pot tourism," it has debated whether smokers can use their backyard patios to light up, and it has considered how to deal with "marijuana clubs" that will appear....

How it converts a massive black market into what experts call "problematic adult commerce" on the fringes of society – akin to gambling, drinking, and go-go clubs – all amid lingering legal concerns, could provide a framework for other states to follow....

New ad includes Laura Bush, Colin Powell, and Dick Cheney expressing support for same-sex marriage.

Laura Bush didn't approve of the use of this video clip (which comes from a 2010 interview with Larry King) and she's voiced her objection to it:



Who knows what she secretly thinks, but officially, she's saying you shouldn't have used me without asking. Of course, the group that made the ad — the Respect for Marriage Coalition — has the right to appropriate this clip and use it in their political message. Imagine how hard it would be to make political ads if you couldn't use clips like this. I suspect that secretly she's happy to influence opinion this way — especially as she's able to hold herself at some distance from politics. She clearly likes to seem modest and completely unpushy, as you can see in the longer clip from the Larry King show:



What a terrible shame that the Republican Party didn't accommodate itself to this idea at least 10 years ago. Really, it's a shame they didn't buy in even earlier, 18 years ago, when Andrew Sullivan's "Virtually Normal" came out. At the time, the left-liberals I knew were antagonistic to the institution of marriage and viewed Sullivan's contribution as an unwelcome conservative intrusion on the gay rights movement, which they saw as belonging within a left-wing ideology that transcended traditional institutions. Back in the 90s, I sat through serious, lawyerly presentations aimed at stopping the marriage equality proponents from changing the focus of the movement. There was a wonderful opportunity then for conservatives to embrace the issue, and they missed it.

The Republican Party saw the advantage elsewhere, and now they're stuck with the result.

UPDATE: The Respect for Marriage Coalition withdraws the ad.

"The Dutch experiment in legalised prostitution has been a disaster..."

What have we learned from this experiment — that can never work at all or that the Dutch did it wrong? 

The Dutch government hoped to play the role of the honourable pimp, taking its share in the proceeds of prostitution through taxation. But only 5 per cent of the women registered for tax, because no one wants to be known as a whore — however legal it may be. Illegality has simply taken a new form, with an increase in trafficking, unlicensed brothels and pimping; with policing completely out of the picture, it was easier to break the laws that remained. To pimp out women from non-EU countries, desperate for a new life, remains illegal. But it’s never been easier.

Legalisation has imposed brothels on areas all over Holland, whether they want them or not. Even if a city or town opposes establishing a brothel, it must allow at least one — not doing so is contrary to the basic federal right to work. To many Dutch, legality and decency have been irreconcilably divorced. It has been a social, legal and economic failure — and the madness, finally, is coming to an end.

The brothel boom is over. A third of Amsterdam’s bordellos have been closed due to the involvement of organised criminals and drug dealers and the increase in trafficking of women. Police now acknowledge that the red-light district has mutated into a global hub for human trafficking and money laundering. The streets have been infiltrated by grooming gangs seeking out young, vulnerable girls and marketing them to men as virgins who will do whatever they are told. Many of those involved in Amsterdam’s regular tourist trade — the museums and canals — fear that their visitors are vanishing along with the city’s reputation.

That reminds me: How's the marijuana legalization experiment going? Because that's the Dutch experiment that's catching on in the U.S. It's appealing to think that if we legalize something, we can regulate it and tax it, and the bad people will withdraw and cede the commerce to upstanding entrepreneurs who will abide by the regulations and pay their taxes punctiliously.

I got to that article via David Frum, who quotes Friedrich Hayek: "To say we cannot turn back the clock is to say that human beings cannot learn from experience."

"I remember the fur coats of the girls returning from Miss This-or-That’s..."

"... and the chatter of frozen breath and the hands waving overhead as we caught sight of old acquaintances, and the matchings of invitations: 'Are you going to the Ordways'? the Herseys'? the Schultzes'?' and the long green tickets clasped tight in our gloved hands."

That other sentence — "At the hookah bar, Jordan and Emily Wernet, a 25-year-old freelance illustrator of comics and tattoos, joked about the grotesqueness of a hand appearing inside a belly and about 'parasites,' 'popping one out,' and 'horrible little grubs' in the midst of more serious conversation about their fears of relinquishing sole ownership of one’s own body" —  made some readers feel that there was a "Gatsby" sentence gestating somewhere inside the womb of my Blogger account, so I thought I'd better pop out this post. I hope you don't find it grotesque, this string of words that F. Scott Fitzgerald, in full possession of the autonomy of authorship, determined to be, in fact, a sentence, worthy of a place in the pages of "The Great Gatsby."

And I hope it's not horrible that I ripped it out of his context and put it in my context as I, clasping tightly to my bloggerly autonomy, decided that this — this! — is a blog post. It is not for the professors, journalists, and literary critics to resolve the difficult question of when some quotes from this-or-that tossed together with some connective prose amount to a blog post. It's enough to say there's a divergence of thinking on this most sensitive and difficult question, and therefore it's up to me to decide what is worthy of publication here. My blog, my choice.

This "Gatsby" sentence has a simple structure. The subject is "I" and the predicate is "remember." How many sentences in the history of humanity begin "I remember...."? There's no end to where you can go from there (especially if you're not hung up on nonfiction and truthtelling). So string along the memories — the memorabilia, the "things... worthy of being remembered."

I remember the Michael Jackson memorabilia, the Bruce Lee memorabilia, the Martin Luther King Jr. memorabilia, Malcolm X memorabilia, the Jimi Hendrix memorabilia, the $43,350 Rolex watch, the fur capes and parkas....

I mean... I remember the fur coats.... They — the girls returning from Miss This-or-That’s — weren't wearing their fur in cape or parka form back in 1922.

Things remembered: fur coats, chatter, hands waving, matchings of invitations, and long green tickets. These remembered things give the reader a sense of the incompletely delineated human beings. Who are the unnamed girls and who are the "we"? There's the overspecificity of the people offstage, Ordways, the Herseys, and the Schultzes. There's the silly half-specificity of Miss This-or-That. These people — or, really, places (hence the possessive) — are, like fur coats and gloves, appurtenances to the human beings we are trying to see in this picture.

This is a mass of faceless humanity, cluttered with hands, waving and clasping. Hands appears twice in the sentence — the grotesqueness of a hand appearing — first, waving (connecting with others), and second, clasping a ticket (intent on getting to one's predetermined destination). The hands of the others reaching out are grubby and horrible and we've got a fear of relinquishing sole ownership of our long green tickets.

Warren Lee Hill was sentenced to death for bludgeoning Joseph Handspike with a nail-studded board.

Handspike, Hill's fellow inmate, had been sleeping and other prisoners begged Hill to stop. Hill "was already serving a life sentence for murder in the 1986 slaying of his girlfriend, Myra Wright, who had been shot 11 times."

The Handspike murder took place in 1990, 23 years ago, and just as Hill was being prepped for the lethal injection, the 11th U.S. Circuit Court of Appeals granted a stay, so that it may be determined, after all these years, whether Hill is — as his lawyer put it — "a person with mental retardation."

Hill has received support from various activists and from former President Jimmy Carter and his wife Rosalynn.

"Georgia should not violate its own prohibition against executing individuals with serious diminished capacity," President Carter said in a statement....

Georgia passed a law in 1988 prohibiting the execution of mentally disabled death row inmates, and the U.S.Supreme Court ruled in 2002 that the execution of mentally disabled offenders is unconstitutional....

Before trial, Hill's family members described him as "the leader of the family" and "a father figure," the state notes. He was not in special education classes and served in the Navy, where he received promotions, the state said.

"The Supreme Court reentered the controversial field of campaign finance Tuesday, agreeing to consider a Republican challenge..."

"... to decades-old limits on the total amount a person can contribute to candidates, political parties and political action committees."

"I want to hear about the least plausible constitutional arguments that have ever been made."

Writes Orin Kerr. He's looking for the "weirdest, strangest constitutional arguments," saying "I’m sure most of them will be arguments that trial courts readily rejected, or even never bothered to analyze it on the merits."

I'd be more interested in the weirdest, strangest constitutional arguments that courts have accepted. It's harder to see them as weird when the authorities endorse them, and our whole concept of what is weird is affected by what we see respected figures accept. "I suspect that many of these claims will be made by pro se plaintiffs such as prisoners or tax protestors," says Kerr. Kooks will be kooks. Why assemble the ravings of madmen... unless the madmen are sitting on the courts?

"There are some short transitory passages between the various sexual episodes..."

"... but, for the most part, they only set the scene and identify the participants for the next orgy, or make smutty reference and comparison to past episodes."

An amusing sentence from Justice Clark's dissenting opinion in the 1966 case Memoirs v. Massachusetts, attempting to explain what is in the text of "Memoirs of a Woman of Pleasure," because he is "obliged to portray the book's contents, which causes me embarrassment." He avoids actual quotations from the book because it would "debase" the set of volumes that contain U.S. Supreme Court opinions. I was also amused by: "The pubic hair is often used for a background to the most vivid and precise descriptions of the response, condition, size, shape. and color of the sexual organs before, during and after orgasms."



The narrator in "Memoirs" is a prostitute named Fanny Hill, and Justice Clark, addressing actual legal arguments made in this First Amendment case, writes: "To say that Fanny is an 'intellectual' is an insult to those who travel under that tag. She was nothing but a harlot — a sensualist.... As an empiricist, Fanny confines her observations and 'experiments' to sex, with primary attention to depraved, lewd, and deviant practices."

I was also amused by Clark's dismay that one expert at trial had claimed that the book had literary merit because the verb "waddles" was used instead of "walks" to describe a fat woman entering a room and that another expert said that the 18th century book contributed to an understanding of history through its repeated descriptions of "the male sexual organ as an engine... which is pulling you away from the way these events would be described in the 19th or 20th century."

It's funny now, when you can get the book through a simple click. Feel free to read just the dirty parts, in other words — if I am to believe Justice Clark's opinion and as they say in the blogosphere — read the whole thing.

ADDED: I love the idea of insulting those who "travel under the tag" "intellectual." That's something I know I try to do whenever I can. And I'm fascinated by the expert's inadvertently causing us to picture a giant penis-locomotive dragging us into the past. That's quite a time machine you've got there! And the notion of pubic hair as a background for a visualization of male genitalia. It's like pubic hair is to cock as black velvet is to Elvis.

AND:  Why the sudden interest in Justice Tom Clark? My conlaw casebook has a squib on this case:

[I]n Memoirs v. Massachusetts, 383 U.S. 413 (1966), a plurality of three (Warren, Brennan, and Fortas) restated Roth as follows:

[T]hree elements must coalesce: it must be established that (a) the dominant  theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.

As Chief Justice Burger later noted in  Miller, “While  Roth presumed ‘obscenity’ to be ‘utterly without redeeming social importance,’  Memoirs required that to prove obscenity it must be affirmatively established that the material is ‘utterly without redeeming social value,’ [a] burden virtually impossible to discharge under our criminal standards of proof.” Nevertheless, this formulation was the most widely applied, even though no majority of the Court could agree on a standard to determine what constituted obscenity. Warren, Brennan, and Fortas subscribed to the Memoirs variation; Black and Douglas asserted that obscenity was constitutionally protected; Harlan held to his Roth view; and Stewart thought that both federal and state governments could suppress “hard-core” pornography. Justice Stewart’s famous epigram in his concurrence in Jacobellis v. Ohio, 378 U.S. 184 (1964), dramatized the problem of defining “obscenity.” Speaking of hard-core pornography, Stewart said: “I know it when I see it.”

I'm counting: Warren, Brennan, Fortas, Black, Douglas, Harlan, Stewart. That's only 7. Somebody's not getting any respect. The other unmentioned Justice? Byron White.

"I loved the D.C. Circuit... and I could've stayed there. But I think I got maneuvered into this job. And then I had a really bad interview."

Said Clarence Thomas in this wonderful hour-long conversation with Harvard Law School Dean Martha Minow. The Harvard law students give him a standing ovation as he arrives in the room, and he jokes "I should quit while I'm ahead."

In fact, he goes on to be warm, interesting, deep, smart, and there's just way too much good stuff in here for me to quote everything that jumps out, because, really, everything jumps out. If you skip over the long introduction and get to the first question, he talks about growing up among illiterate but good and loving people and then discovering reading at a segregated library in Savannah. The librarians introduced him to Dr. Seuss.



Minow and Thomas talk about their mutual love for a book about introversion called "Quiet," and Thomas characterizes himself as very introverted. He talks about working in all 3 branches of government and greatly preferring the judiciary because in the EEOC and in the legislature, though he loved the people, it was too political. "I don't understand politics.... It made my head hurt.... It was like new math."

ADDED: He says Ruth Bader Ginsburg and Elena Kagan are delightful. When Kagan arrived, he said to her: "You know, it's going to be a joy disagreeing with you for years to come."

AND: At oral arguments, Justice Breyer doodles stick figures. The 2 of them sit together at oral argument and share jokes and laugh. "You know, he's very smart, but he's sort of a moving around smart," he says, making a gesture as if he were moving Breyer's little stick figures around. "And I tend to be someone, I lock into something, I want to think it through for a long time, and he likes to move around, and I sort of rein him in. Every so often, what I'll is I'll say, 'What about this, Steve?' and he'll pop up and ask and a question." So that's how Clarence Thomas asks questions at oral argument. Thomas laughs because it's "just something I'm throwing out," and Breyer makes it into a question.

New York's "rape is rape" bill.

The New York penal code only uses the word "rape" for forced vaginal penetration. Crimes involving anal and oral penetration are punished just as severely, but the statutory name for the crime is "sexual assault."  There's a current effort in the NY legislature to extend the term "rape" to all 3 forms of forced penetration. This effort arose out of a case involving a victim named Lydia Cuomo (who is not related to the NY governor, Andrew Cuomo).

Lydia Cuomo... said the difference in terminology can lead to a rape victim’s attacker being convicted of a crime other than rape — as happened in her case last year. She said such an outcome makes it harder for the victim to heal.

The word "rape" conveys more emotional meaning than "sexual assault," which is the supposedly modern terminology found in the Model Penal Code. It's like changing from "murder" to "homicide." But whether you prefer the old words that convey our culture's deep moral condemnation or the new bureaucratic style that organizes everything into a big catalog, pick one approach and stick to it. It's terrible to say to a woman who was raped 3 ways — as Cuomo was — that only the vaginal penetration is — for official purposes — called "rape." In Cuomo's case, the jury failed to convict on the rape charge but convicted on the sexual assault charges, conveyed the unintended but outrageous message that she was not raped.

Now that the problem is plainly exposed, you'd think the fix is simple:

Assemblywoman Aravella Simotas (D-Queens) submitted the “rape is rape” bill...

Hours after Lydia Cuomo and Simotas held a press conference last week, a co-sponsor of the bill, state Sen. Catharine Young (R-Cattaraugus County), withdrew her support and filed an alternative measure. Young’s bill is backed by prosecutors across the state, who fear the change Lydia Cuomo is seeking could make it both harder to convict rapists and more difficult for judges to apply sentences consecutively, thereby maximizing prison time.

Young’s alternative would no longer require that penetration of any sort be proven for a rape conviction. Prosecutors instead would have to meet a less onerous standard of vaginal contact, which is the same threshold used for criminal sexual act.

The suddenly obvious need for one thing creates the momentum to try to get other things. The will to legislate is unleashed and the prosecutor's wish list pops out.