Ah, the End

I graduated yesterday. Phew. Three years + 87 credits = 1 law degree. On a magnificent Sunday afternoon in Williamsburg, all the work, fun, and enlightenment of law school culminated in a wonderful commencement ceremony on the Sunken Garden, in the heart of the undergraduate campus of William & Mary. Sandra Day O'Connor gave the keynote address, advising the graduating class of 2010 to do public service and as lawyers, to "disagree agreeably," a fine piece of wisdom. Her speech and presence (she's the Chancellor of W&M) delighted us all, as evidenced by the bursting of flash bulbs when she took the podium.

There is much I will miss about this place, and about law school. First and foremost, the people. The friends I've made here are incredible people, and I am truly, decidedly excited to see how their futures develop. The moment commencement ended, we began fanning out all over the country, from D.C. to Dallas to L.A. to Portland, and many places in between. Of course a good chunk of us will stay in Virginia, even in Williamsburg for the summer to study for the Bar, as I will do. I will also miss the professors and other staff at the law school, who have added so much to this experience. Several professors have done so much for my friends and me that I can hardly express sufficient gratitude. Well, if you're reading, thank you.

So, what next? It's still up in the air. After the Bar, I'll work at a public defender's office in northern Virginia for at least ten weeks. Then there are several possible directions. I've interviewed for a job in Richmond that I should hear about soon, or I could find my way into a PD's office, or I could do something else entirely.

Wherever I land, I'm excited to be done, and to move on to the next phase of my life. Goodbye, Burg Law.

—Rob, J.D.

Finally, a Bar decision

After many months of deliberation, a pros and cons list that took about a dozen states into account, and after interviews for jobs in New Hampshire, Colorado, California, and Virginia (with one more in Wisconsin yet to come), I have decided to take the Virginia Bar this summer. This was one of the hardest decisions I've ever had to make. California still holds much appeal for me, but the job climate is so bad there—and getting worse—that I can't move out there in good conscience, knowing that it's entirely possible I could pass the California Bar, one of the two hardest in the country, and still not find a law job. I also thought long and hard about returning to the Midwest, perhaps Illinois, but having gone to school in Virginia and knowing more attorneys here, I have a much better chance of making connections that will lead to a job. (If I were to get the job in Wisconsin, I would have to take the February Bar there.)

There are many upsides to taking the Bar here, in addition to the connections I've made, which could lead to job opportunities that I might not have elsewhere. Some have to do with location: Virginia is a beautiful, geographically diverse state, with ocean, mountains, rolling hills and plenty to do outside. It's right in the middle of the East coast, seemingly just a few hours from everywhere. The weather in southern Virginia is terrific most of the year. It's also close to D.C., so if I were to get a job in the District, after passing the Virginia Bar I could waive into the D.C. Bar and practice there. There's also the fact that Virginia has the death penalty, and one of my greatest passions in the law is capital defense. And of course, many of my law school friends will remain in D.C. or Virginia.

The two biggest downsides are one, that I'll remain 1,000 miles from my family and friends in the Midwest; and two, the Virginia Bar exam. The latter requires me to learn things like Secured Transactions, Trusts & Estates, and Virginia Civil Procedure. Ugh. But of course, I hope only to have to take the Bar once. The family and friends part will be harder. I will continue to miss lots of birthdays, holidays and everyday life events. Without getting too emotional about it now, I'll simply say that it will be hard, and that I did not reach this decision easily. There was no right decision, only a choice to be made, and I was the only one who could make it.

So I'm committed to another two and a half months at my townhouse in Williamsburg. Starting May 24, eight days after graduation, I'll attend Bar prep class in the same room where I took Civil Procedure nearly three years ago, with some of the same people. Each day after class I'll come home to study, as if it were my job. In late July, I will drive to Roanoke, put on a suit—still a requirement in Virginia—and sit for the Bar exam over two grueling days. Then I'll wait, as will we all, for nearly three months, until the results are posted. This is the path to lawyerdom, the part they never told me about on Law & Order. Ah well. I'm ready.

One more paper, one more exam, then 3L year is done.

9500 Liberty

During the summer after my 1L year, I worked on a criminal case in Manassas, Va., and part of my job involved poring over news articles, letters, and blogs, searching for incendiary comments about illegal immigrants. Such comments were not hard to find. After decades as a sleepy, distant suburb of Washington D.C., Manassas — located about 30 miles from the Capitol — and the rest of Prince William County had turned into one of the fastest-growing counties in the nation. The demand for cheap housing labor had brought thousands of Hispanic immigrants to the area so that by 2008, the group comprised nearly 20 percent of Prince William County's population.

Change that quick does not come without conflict. The new film, "9500 Liberty," beautifully details the battle waged between "Help Save Manassas," a grassroots anti-immigration group, and the immigrants and their allies in the community over the span of several years. The film follows the actions of the Prince William County Board of Supervisors, which due to pressure from Help Save Manasssas, enacted one of the most stringent anti-immigration policies in the nation.

Last night one of the filmmakers of "9500 Liberty," Eric Byler, came to William & Mary for a screening of this outstanding documentary. Byler and his girlfriend/co-documentarian, Annabel Park, are also co-founders of Coffee Party USA, a movement formed in response to the often incendiary antics of the Tea Party. The Coffee Party has nearly 200,000 fans on Facebook, and I've heard Annabel on the Washington D.C. NPR station and seen her on CNN. Last month, the Coffee Party held meetings in 44 states, with an aim toward introducing civility into our political discourse. In her interview on NPR, Annabel spoke of the common grounds (NPR's pun, not mine) the Coffee Party shares with the Tea Party — both loathe corporate influence in government. But unlike the Tea Party, the Coffee Party believes that government has a significant and perhaps even a positive role to play, if we the people will only get involved in it.

The film's website does not say when "9500 Liberty" will be available, but last night a professor of immigration studies at W&M said that she had seen many movies on this issue, and this one was "fantastic." I agree. Check out the trailer here.

The existential plastic bag

Sartre wrote that we are condemned to be free, forced all our waking hours to make choices that will decide our essence as human beings. He also wrote of the absurdity of our existence.

ab•surd•i•ty | əbˈsərditē; -ˈzərd- |
noun ( pl. -ties): the quality or state of being ridiculous or wildly unreasonable

Yes, for life on this planet, that sounds about right.

So it was with great pleasure that I encountered "Plastic Bag," a remarkable 18-minute short film by Ramin Bahrani and narrated by the great German director Werner Herzog. The protaganist is no ordinary plastic bag, but one with an existential crisis of epic proportions. This is a beautifully shot, poignant film about the environment (particularly the horrendous plastic vortex in the Pacific), but it is also a fun exercise in existentialism. Enjoy.

LAW NOTE: In response to your comment, Tony, several U.S. cities have passed ordinances banning plastic bags as well, including San Francisco and Los Angeles, and several others, such as Madison, require that plastic bags be recycled. No state has yet banned plastic bags (Virginia's legislature has killed such a plan, unsurprisingly). L.A.'s ban, which is set to start July 1, will not go into effect if California imposes a 25-cent tax first. China banned plastic bags prior to the 2008 Olympics in Beijing.

That Disturbingly Pleasant War Criminal, John Yoo

The W&M Law chapters of the Federalist Society and the American Constitution Society, along with the Institute of Bill of Rights Law, were kind enough to invite war criminal and Berkeley Law Professor John Yoo to campus yesterday, the last stop on his book tour. I don't fault them for wanting him to appear. Of course the author of the torture memos drew a packed room of more than 100, mostly law students, for a Thursday lunch lecture. People who are largely responsible for the atrocities at Abu Ghraib and Guantánamo Bay have a way of drawing a crowd.

As our way of showing discontent, a handful of us from the W&M Law ACLU wore t-shirts (see photo) and handed out Glenn Greenwald's comprehensive guide to John Yoo's War Crimes to those who attended the lecture. In case you don't want to read the entire article, here's a sampling of John Yoo's work:

If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network. In that case, we believe that he could argue that the executive branch's constitutional authority to protect the nation from attack justified his actions.

And here's Greenwald's tidy, accurate analysis:

John Yoo's Memorandum, as intended, directly led to -- caused -- a whole series of war crimes at both Guantanamo and in Iraq. The reason such a relatively low-level DOJ official was able to issue such influential and extraordinary opinions was because he was working directly with, and at the behest of, the two most important legal officials in the administration: George Bush's White House counsel, Alberto Gonzales, and Dick Cheney's counsel (and current Chief of Staff) David Addington. Together, they deliberately created and authorized a regime of torture and other brutal interrogation methods that are, by all measures, very serious war crimes.

If writing memoranda authorizing torture -- actions which then directly lead to the systematic commission of torture -- doesn't make one a war criminal in the U.S., what does?

Yoo, in his disarming way, diffused any possible tension by beginning with a story about his appearance on The Daily Show, and spending the remainder of the lecture discussing his new book on evaluating our greatest and worst presidents. In a room full of peers and professors, to accuse Yoo of the worst crimes imaginable — crimes he is almost certainly guilty of — would have garnered almost universal scorn. Still, I feel a pang of disgust with myself this morning. Instead of making such an accusation yesterday, I asked Yoo what would bring about an end to the war on terrorism, and which branch of government can and should make that call. He said that this is perhaps the toughest legal question, and suggested that much legal work remains to be done on how conflicts with non-state actors (i.e., terrorist groups) can come to a successful conclusion. (His answer, by the way, is that the President or Congress—not the courts—can and should make that call, but when and how that will happen remains a mystery.)

But it seems to me that a more difficult question looms: when will someone—whether a president, a member of Congress, or a third-year law student—muster the necessary courage to confront a war criminal like John Yoo and force him to accept responsibility for the reprehensible acts that have led directly to our diminished standing in the world? And will such a confrontation ever bring about the kind of justice we should expect here in the United States?

Spinning the Globe

When I was a kid I used to love to play "spin the globe," always imagining that I would someday go to the places where my finger landed — Ivory Coast, Afghanistan, Palau, Uruguay. The more exotic sounding, the better. I'd alternate between putting my finger along the Tropic of Cancer and the Tropic of Capricorn before I closed my eyes and spun, not wanting to land in the Northwest Territories, Siberia, or Antarctica. Iowa was cold enough. The game was so central to my sense of adventure that when I left for college, I asked my mom for a new globe to take with me to my dorm room.

When I moved halfway across the country to Virginia I left my globe at home, but it turns out I could use it, this time for real. It has almost come to this — within weeks I will decide which Bar exam to take, and in so doing, will pick the state in which I will live and (hopefully) work for the foreseeable future. Like many of my law student compatriots across the country, I will likely graduate without employment:

Although numbers are not available yet, many members of the class of 2010 and 2011 may graduate without a job, and those who are lucky enough to find employment likely will collectively have lower salaries than their predecessors. In short, the job market is more challenging than it has been in many years, as well-paying jobs are in short supply.

ABA Commission on the Impact of the Economic Crises on the Profession and Legal Needs, "The Value Proposition of Attending Law School," http://www.abanet.org/legaled/prelaw/The%20Value%20Proposition%20of%20Attending%20Law%20School.doc.

Having chosen a career, public defense, that theoretically allows me to go anywhere in the country, I am bound only by a few practical considerations: one, how much more I am willing to go into debt; two, whether I want to do death penalty work; and three, whether my desire for close proximity to family overrides my interest in capital punishment.

First, the debt part: law students graduate prepared to study for the Bar exam, but not prepared to take it. Shortly after graduation — either the following week or literally the next day — we begin taking Bar review courses, usually at a cost of about $2,500. These courses are the ultimate teach-to-the-testers, giving us the form and the substance we need to please the lawyers who'll soon be grading our Bar exams. During this two month Bar review time, from mid-May to late July, none of us will be working. Then, after we take our respective Bar exams the last week of July, comes another break while the state Bar associations grade the exams. During this time we are neither law students nor lawyers — just graduates, hoping for a license. Depending on where you take the Bar, this state of flux can last from about six weeks (North Carolina), till about Labor Day, to nearly three months (California), almost until Thanksgiving.

For those of us who don't have jobs and have a hard time finding them because we're not licensed to practice, this can be an extremely costly wait. To offset those costs, I can choose a state where I know lots of people and can live on the cheap, such as Virginia or in the Midwest. The alternative is California, where it would be incredibly difficult to live cheaply, and I would incur thousands more in debt while waiting for gainful employment.

Second is the death penalty, which makes me passionate about practicing law. For that, I can stay in Virginia or go to California, or to Illinois, or to any number of places in the South, like North Carolina, Texas, or Alabama. (There is also one bonus to staying in Virginia: because I came to law school here, this is where I have the most law-related connections. I am not guaranteed a job, by any stretch, but I have as good or better a chance at finding one here than anywhere else.) I cannot go to places like Wisconsin, Minnesota, or Iowa, however, and expect to do death penalty work. These states don't have capital punishment.

But they are fine places to live, which brings me to the last consideration: proximity to family and, by extension, quality of life. Virginia, California, and the Midwest all have their pros and cons, but the Midwest has that unique distinction of also being home to my family (not to mention a lot of important friends, though I can say the same now about having many close friends in Virginia). Illinois, then, would seem to be the only place that has both the death penalty and proximity to family. It also has Chicago, an extraordinary city and the home of my beloved Cubs and Bears. The only problem is that I have precious few legal connections in Chicago. But I could still go, volunteer, and hope that I land on my feet.

Well, there is my globe-spinning thinking laid bare. Sweet home, Chicago?

Lessons in Futility: Senator Warner's Job Fair

Pavlov would have had a field day with law students. The other day a fellow law student and I discussed our respective addictions to checking our email. That particular compulsion stems not only from self-indulgence, though — this institution has conditioned us well. We check our email dozens of times a day, if not constantly (thanks to Gmail Notifier) so that we don't miss class assignments, updates on some law school happening that needs urgent attention (e.g., registering for classes), or the latest job opportunity. In an economy some have dubbed—OK, Above the Law has dubbed—"the worst legal economy ever," we can't afford to miss an entire career fair that grows from mere announcement into actual existence in a matter of five days.

So there I was this morning, panting and drooling to the sound of the potential employment bell, fighting the strange confluence of Palin bumper stickers, cigarette smoke, and absurd traffic along US-17 North through Fredericksburg, Va., on my way to a federal government job fair. Virginia's junior U.S. Senator and former governor, Mark Warner, trumpeted the job fair in an email last Wednesday:

U.S. Senator Mark Warner is hosting a job fair on Monday, March 8th, for Virginians looking for work in the federal government.  The event is free and open to the public.

More than three-dozen federal agencies will participate, including: the Federal Aviation Administration, the U.S. Fish and Wildlife Service, Defense Intelligence Agency, FBI, IRS, the Office of Personnel Management, FEMA, the Peace Corps, the Transportation Security Administration, the Department of Labor, and the U.S. Secret Service.

Here are the details:

DATE: Monday, March 8, 2010

TIME: 9 a.m. - Noon 

LOCATION: Univ. of Mary Washington - Stafford campus 

College of Graduate and Professional Studies, University Hall 

125 University Boulevard, Fredericksburg, VA

For more information, and to RSVP, visit: http://warner.senate.gov/jobsfair

Honestly, it sounded too good to be true. In this economy, who wouldn't want a cushy job working for the federal government? One guy I talked with in Fredericksburg this morning said he'd told his duly-employed son to come home for the occasion, in the event that he could land better, more secure employment. The dad later called back and listened to an "I told you so, Dad" speech. But I'm getting ahead of myself.

After having several discussions about the job fair, I tentatively decided to go, even if it meant going alone. Then yesterday, a second email from Sen. Warner's office arrived: "There has been an overwhelming response to this event.  In anticipation of close to 5,000 attendees, the hours have been extended from 9 a.m. to 4 p.m. and additional parking locations have been added." I began to get a sinking feeling about my chances at this job fair but still felt that going was the prudent thing to do. So I went.

I found the Stafford campus of Mary Washington College around 9:30 a.m. this morning, surprised that it took me 45 minutes just to get through Fredericksburg. As I waited to turn left off US-17, I noticed a few things: a Walmart to my left, several police cars strategically placed to direct traffic, and a man wearing a suit and holding a sign that said, in black permanent marker, "More parking @ Walmart." Three minutes later, as I trolled the Walmart parking lot searching for a spot, I would discover that at 9:30 a.m., half an hour after the start of the job fair, the man in the suit's sign was already outdated. I parked in a residential area, just beyond Walmart.

Already the masses of people had become obvious to me, and I quickly identified with them. We came in all shapes and sizes, all ages, all races, our business suits alternately expensive, cheap, and worn. There were optimistic undergraduate women and dapper gray-haired men who could just as easily have been Wall Street executives. But mostly there were lots of middle-aged men and women—black, white, Asian, well-dressed, shoddily dressed, carrying suitcases and canvas bags in various states, from top of the line to beyond repair. They all walked in one direction, with determined looks on their faces. My sinking feeling from yesterday had morphed into futility. I was not getting a job today, I knew that before I came, but I had thought that I might get to speak with some person who at least worked for the federal government.

Then I saw the line. Starting at the entrance to the Mary Washington building, it wrapped around one line of cars, then another, then another, then one more. One person estimated the number of people at 2,000, and it seemed close enough to me. But estimating that number, difficult as it seemed, would prove less futile than standing in the line itself. (The final tally was more like 7,000, according to the Virginia Business Journal.) I reached the end and took my place next to a middle-aged man in a wool suit full of holes which seemed to have come from a cat; a bright-eyed senior from George Mason, who wore four-inch heels and her best pearls; and a woman who professed to having two master's degrees, in English and anthropology.

As I gazed at the ecclectic crowd, my sinking feeling morphed into one of surreal futility. The guy and the wool suit and I had a similar sensation — that a person could have made quite a bit of money simply by walking around the parking lot with a cart full of coffee and other goodies. For a moment, we both longed to have thought of that ahead of time. A minute later, he bid adieu and left his place in line. I soon followed, roughly five minutes after I had come to the end of the line. I wished the undergrad and the Ph.D student the best, and walked toward Walmart.

Inside, as I searched for a beverage, I found more scenes of surrealism. The store was virtually empty, save for a few like-minded souls wearing suits and a "manager's meeting," described to me by a cashier. The Walmart managers were meeting to discuss their plan of action for the long day ahead, a day with a parking lot full of cars owned by people waiting in a long line — across the street. In the juice section, I met the dad I described earlier. He and his wife told me of their own economic woes — the woman ran a struggling photography business, but said they would persevere. I told them my situation, said I'd be fine, and they wished me luck. I left the store heartened. Of course everything will be fine.

Just outside the door, a gathering of old men, some of them embittered by the day's events so far. One had a new, juicy bit of information: one of the federal government employers, sensing the hopelessness of the long day ahead, had stepped outside to inform the people in line that only a few of the employers were actually accepting resumes, and that our best bet was to go online to apply for jobs with these federal agencies. To USAJobs.gov, that unobliging harbinger of hopelessness that we'd all visited at one time or another — long before we drove to Fredericksburg.

On the drive home, after reading Alice in Wonderland to put surrealism in proper perspective, I called Sen. Mark Warner's D.C. office. I had a pleasant conversation with a young male staffer and told him of my experience, and of the overwhelming sense of futility the day had wrought. He empathized in a genuine way, commended me on getting a law degree, and asked what message he could pass along to the senator on my behalf. I told him that, aside from finding employment, I worry most about getting health insurance after graduation. COBRA premiums run about $250 per month through the university, and that's just not something I can afford. I told the staffer that I hoped his boss would continue to support health care reform. He thanked me, and I felt that the day had not been quite so futile. It was barely after noon, the sun was shining, and spring break had just begun.

Ode to Spring, Break, and the Light at the End of the Tunnel

It's late February and Virginia still clings to winter like a pop radio station clings to Gloria Estefan: it hasn't done much for this place, no one cares for it, and yet it just won't go away. Lately the wind's intensity here has rivaled that of the Great Plains at times, though it will never have a Midwestern wind's endurance. The snow here has finally melted but flurries taunt us in this week's forecast. The rhythm is going to get you. Come on, sunshine and green.

(Before I go further, I should say that the title of this post is a tribute to my Cornell friend Aaron in Los Angeles, who writes a blog called Odeable Edibles, "A slapdash flight into a world of poems that should not exist." Check it out.)

The end of law school is now clearly in sight. On the other side of Spring Break, which starts next weekend, is the last half of the last semester of the last year. New editorial boards have taken the helm of William & Mary's four law journals, a new executive board has been elected to the Student Bar Association, and the administration has released the class ranks that determine who will join the Order of the Coif, that fraternal order of law students not unlike Phi Beta Kappa for undergrads. My own involvement in the law school has dwindled in its breadth, if not its depth. For the first time this year I will not be joining the Student Hurricane Network's now annual Spring Break trip to New Orleans. Fourteen others will, however, and of that I am glad. The ACLU leadership has finally changed to optimistic, energetic 1Ls. I was once one of those (now I'm just optimistic and energetic). I am lucky to be a student representative on a law school committee examining Legal Skills, one of our school's signature programs. It seems that now, every law school must look inward to make its students more prepared for a difficult legal job market. These days I also find pleasure in giving tours to prospective students, finally able to explain this place to strangers with some confidence. They ask fun questions like, "How do the students treat each other? Do they really tear pages out of each other's textbooks?" and "What's it like to live in Williamsburg?" I tell them the truth: we're good people, a decent community. No, we don't tear out pages; we share outlines. The competitive moments do come, but they're primarily reserved for exam days and Moot Court tryouts. And living in the Burg is a pleasant experience, thanks to the historical charm and the other people who live here.

It's difficult to say whether anxiety or relief pervades my classmates, so close to the end. I fluctuate between the two moods myself, depending on how much sleep I get. When I squeak by with four or five hours, I stress the future, wondering when I'll finally know where I will take the Bar exam, whether I'll have a job before graduation, and when I'll be able to tell my parents that their investment in me was a good one. When I'm fortunate enough to get seven or eight hours, I cast worries like those aside, and push through my day with a sort of debonair delight, realizing that I may never again enjoy a time like this. All the uncertainty aside, here I am, on the cusp of graduating from a laudable institution, amongst friends and future leaders of society, enjoying good health and good company on a daily basis. There is much I am thankful for.

On the filibuster, and the SOTU

Here's my recent post to the W&M American Constitution Society blog, on "Mitigating the Filibuster." Without the Republicans' abuse of the Senate's arcane rules, President Obama would already have signed health care reform and climate change reform into law. Period.

As for the State of the Union last night, I thought it was an excellent speech. Obama made his priorities clear and reaffirmed his belief in the principles that we elected him for — that the American people are resilient, that Washington must change the way it governs, that we must end the war in Iraq, and that government must provide a better social safety net for the least among us. Since his election, a new priority has emerged of necessity: that government must do a better job of regulating the financial system. Our growth in the 2000s was largely the result of speculation and the housing bubble. The growth went largely unnoticed for the average American, who saw his wages decline during that period. We can't keep building on a house of sand. He was also right to say that without the stimulus package, we would be in much, much worse shape than we are today.

I disagreed with him on a few points. A three-year spending freeze on discretionary spending is unrealistic, won't do much to cut the deficit, and is essentially pandering to the Blue Dogs in the House. He basically quoted that part from a speech that John Boehner gave last year, but I'm sure Republicans will still find a way to criticize him for it. He's also wrong about the Citizens United decision, the one that allows corporate spending on campaigns. The outcome's going to be bad, at least in the near term, but you can't criticize a Supreme Court decision simply because you don't like the outcome. The conservative justices got the law right — the First Amendment protects the right of people who incorporate to speak about political candidates. Any legislation that Congress passes in response will be a waste of time, and will probably get struck down.

I found the reaction of the Republicans to a few key parts of the speech absolutely amazing. They paint Obama as a tax and spend liberal but when he said — quite truthfully — that his administration has not raised taxes once, but in fact has cut taxes 25 times, the Republicans sat on their hands. They don't like lower taxes? Hmm, that's funny. When he said that the biggest banks (not all the banks, just the ones that got TARP funds) should have to pay a fee until the rest of the bailout money is repaid, the Republicans sat on their hands. Really!?! The banks shouldn't have to repay the bailout money? Also, why do Senate Republicans (except Judd Gregg) oppose the creation of a bipartisan commission on reducing the federal deficit? I thought it was clear last night that Republicans will oppose Obama even if he proposes initiatives that are consistent with their ideology.

Also, he was right to tell Democrats not to "run for the hills" just because of the special election in Massachusetts. They do still have huge majorities and if they pass a jobs bill, and the economy keeps growing, they'll keep most of those majorities in November. He's also right to keep calling for more transparency. It's Congress that's sitting on its hands. They should post all earmark requests online, so that we know which members are increasing the deficit, by how much, and for which projects. And it's about time we repeal Don't Ask, Don't Tell. What a moronic policy, keeping people in the closet. Finally, health care reform will get done, as it should.

A Big Week for Old Media

The world of media is changing so fast even the New York Times, the paper of record, can't always keep up. This week three developments marked significant shifts in the future of the media business model. All three could benefit the struggling daily newspaper industry, or at least what's left of it.

The first is perhaps the most obvious, because it comes from the newspapers themselves. The New York Times this week announced that it would begin charging nonsubscribers for frequent access to its website, starting in 2011. This is bad news for frequent news consumers, bloggers, and probably even cite-checking law students, who all rely on easy access to the Times' incredible archive of reliable information. But it's probably good news for the newspaper itself, which will see an immediate spike in revenue. With ad sales and circulation declining, the Times Company's decision to charge for access to online content will temporarily anger readers (like me) but undoubtedly will help the paper retain its invaluable news staff. This isn't a panacea for the newspaper industry, but others will watch to see if the Times' decision helps stop the bleeding. If it does, other large newspapers still standing in 2011 will likely follow suit.

Second, the Wall Street Journal claims to have confirmed rumors that Apple will unveil its long-anticipated iSlate tablet device next Wednesday. If it sells half as well as the iPhone, this device will revolutionize the way we access digital information. Few people enjoy reading large quantities of text on computer screens, iPods, or Blackberries but increasingly, not doing so leaves a person in the dark. Most of us need to access digital information with great speed and frequency, so we do it in spite of these reservations, and our preference for paper. I'm not suggesting that books will disappear, of course, only that Apple is filling a need. The iSlate is great news for newspapers because it decreases the need to distribute the paper versions of their product, cutting circulation costs without losing readers. (As an aside, the iSlate could also be fantastic news for college and law students. Think of the potential for digital textbooks to drive down costs.)

The third development is more subtle, and comes packaged in what seems like bad news: the U.S. Supreme Court held yesterday, 5-4, that people using the corporate form have the same free speech rights in political campaigns as the rest of us. Since Congress passed the McCain-Feingold Bipartisan Campaign Finance Act, for-profit and non-profit corporations, as well as labor unions, were limited in the ways they could donate to and speak about political candidates. The Act exempted media corporations, meaning that a giant corporation like Fox News could say whatever it wanted about a candidate up until Election Day, while a non-profit group like the ACLU had no such ability to endorse or criticize a candidate. Media corporations, now on a level playing field with other corporations, have mixed views about the ruling. The Wall Street Journal hailed the ruling as a victory for the Constitution and free speech rights, while the New York Times (long a supporter of campaign finance reform) assailed it as a "blow to democracy". Whatever your feelings, until Congress makes a change, corporations are free to start buying political advertisements. Who will get all this money? The old media. The same New York Times Company that criticized the ruling will undoubtedly accept these advertising dollars. The Times editorial board may continue to support campaign finance reform but the Times Company's board of directors surely will not stop this new flow of money.

Not a bad week for old media.

The beginning of the end, and televising the Prop 8 trial

My final semester of law school began this week. It feels a bit surreal to know that, to know that in a few months the people I've grown accustomed to seeing in the halls will be on their way to jobs at law firms across the country, clerking for judges, or moving back in with their parents (as I may do myself, sorry Mom and Dad). But here we are, not quite sure why we're taking classes like Selected Topics in Corporate Governance, Natural Resources Law and Legislative Redistricting, except that we need the credits to graduate. My schedule is a healthy mix of practical lawyering skills and abstract curiosity satiation:

• Philosophy of Law: Is there a moral duty to obey the law? What is the essence of a law
• Domestic Violence Clinic: seeking protective orders for victims of domestic abuse
• Law & Literature: essentially a book club in which we read four novels, and meet with food and wine at a prof's house to discuss them
• An externship with a local public defender's office: hoping to do a ride-along with the police department!
• Trial Advocacy: running through all the steps of a mock trial
• Select Topics in Criminal Justice Seminar: comparing how different common law countries handle criminal justice issues differently, such as police interrogation, equal protection, punishment, sentencing, etc.

Many of us are still job-hunting, of course. Having read an article that says this is the worst legal job market since the Great Depression, though, I'm not stressing too much about it, except that I'm not quite sure where to take the Bar exam. Oh well. Good things come to those who wait.

I want to comment on a frustrating decision the U.S. Supreme Court handed down yesterday. A pair of California lesbians filed suit in federal court, challenging the constitutionality of Proposition 8, the 2008 referendum that made same-sex marriage illegal in California. The women's lawyers are David Boies and Ted Olson, two of the most experienced Supreme Court advocates in the country, who just happened to argue both sides of Bush v. Gore back in 2000 — against each other (Olson argued for Bush, Boies for Gore). Olson, a well-known Republican conservative, believes that people like him should start accepting gay marriage, and he feels passionate enough about it that he's willing to take this case all the way to the Supreme Court.

The federal judge presiding over the trial, which started Monday, agreed with the plaintiffs' request to put each day's proceedings on YouTube after court ended for the day. This was an unprecedented step for a federal judge, and a fantastic one. We expect openness from the executive and legislative branches of government (C-Span and C-Span 2 are good examples) and though we don't always get transparency, we're at least frustrated by it. The judiciary, however, has gotten away with largely shutting us out, and we don't even make them apologize for it. We give federal judges the ability to open civil trials by putting broadcasts of the proceedings online. (Criminal trials are quite different, because of defendants' rights, and would command a more careful set of broadcasting rules.)

The defendants objected to the webcasts (why? are they afraid they'll look bad?) and eventually appealed to the Supreme Court, which on Monday issued a temporary stay, preventing the webcasts until it had time to make a more informed decision. The Court issued that "more informed" decision yesterday, blocking the YouTube webcasts for the remainder of the trial. The Court did not say, however, that broadcasting is a bad idea, or that it would offend some constitutional right of the defendants (it wouldn't). The Court merely said that the federal judge may have violated a federal statute by not providing enough time for public comment on his decision to change a local rule and allow the broadcasts.

If this decision seems downright silly, it's because the judge did allow a couple of days of public comment and during that time, he received nearly 139,000 comments. Of those, all but 32 were in favor of televising the Prop 8 trial. Would more time have yielded more negative comments? Probably. Would it have yielded exponentially more positive comments? I think it's likely. The public favors openness.

The Supreme Court's (unsigned) decision blocking the broadcast of the trial was 5-4, with the conservative members in the majority and the more liberal members dissenting. I'm optimistic that in time, the Court will change its mind about broadcasting federal civil proceedings. When it comes time to decide the merits of this issue, I hope that at least one of the conservative justices will change his mind.

Winding Down the Fifth Semester

Traveling has dominated the first semester of my third year, and I've enjoyed every bit of it. Early on I had an election law class in D.C. on two different weekends, and a job fair there another weekend. I stuck around to attend an oral argument at the Supreme Court with a good friend, one of the best experiences of my three years here.

Because it was only the second day of the term, we got in line around 5:30 a.m. We were numbers 53 and 54. At 9:30 the guards let in the first 50 people, but we stood there waiting nervously. Twenty minutes later, ten minutes before the start of the argument, the guards let us in. We sat in the back row and watched the nine Supreme Court justices take their seats in United States v. Stevens, a First Amendment case involving a man who'd been sentenced to three years for showing videos of dogfighting. My friend and I enjoyed every minute of it, and afterwards we spent an hour and a half discussing the case and all its implications. An awesome day.

More recently I've made weekend trips to New Hampshire to visit friends, Iowa to visit family, and New Haven, Connecticut for a conference at Yale Law School (pictured) on the "New Media Ecology." I drove with two friends from W&M. We learned a lot about the future of media in the digital age, sustainable business models for newspapers, the unbundling of news, and the increased reliance on Wikipedia, among other things. Mostly we gleaned that we have little to fear from the future — the delivery of news will undoubtedly continue to change, but this creates as many opportunities for engagement as it does crises. Though some academics worry that society is becoming more polarized and seeking out news outlets that confirm their opinions, it's also true that more people are paying attention to news and participating in it to some degree. Many more of us see opportunities to add content to online sites or at least send articles to our family and friends, stimulating conversation and creating debate. Some argued that these developments do not bode well for society but others, including me, believe that these changes will make us a better, more engaged democracy.

For several hours the last two nights I have made phone calls on behalf of the law school admissions office, contacting admitted students and answering their questions about the law school experience. It's a strange thing to feel like, at least for these future law students, I'm a bit of an expert on all this — being at William & Mary, living in Williamsburg, knowing the people here. It doesn't seem that long ago at all that I was in their shoes, excited to get to law school but with no idea what I was in for. I'm looking back at it all rather fondly now, though of course it's not over yet. I have chosen my classes for the final semester. The job search continues.

In the last week or so I've spent some time reflecting on how my worldview has changed over the last two-plus years. I have come to this conclusion, and sorry if it seems rather obvious, but I think it's worth stating:

We human beings are all deeply flawed creatures. Each of us has countless faults, some glaring, some visible to others but not to ourselves, some obscured to most people but painfully known to those closest to us. We tread always on dangerous ground when we begin to judge others for their faults, though judging others is impossible to avoid. It's part of our human condition, making value decisions about the people around us, the people we hear about on the news, the people we see at work and at school. Still, we so rarely know the full story. Indeed, we almost never know the whole story, what makes others tick, the pressures that bear down on them, the difficulties they endure and likewise the privileges they have known.

I'm learning to keep this in mind, in no small part because it will be necessary when I become a public defender. To represent clients with rough histories, one must learn to love them, and loving them means appreciating all the hardships they've endured, all the choices they've made under difficult circumstances. I have led a relatively privileged life, with the love and support of family and friends and communities, so much of this is new to me. But over the past two-plus years, I have only had to open my eyes and walk into one incredible new experience after another, meeting so many inspiring attorneys, investigators, and clients along the way.

We are all deeply flawed creatures. But we all have so much potential for goodness. Ayn Rand once wrote, "Judge, and prepare to be judged." I once agreed with this, but now I would advocate a different approach. (I've been listening to Stoic podcasts lately.) Be slow to judge. In the words of Epictetus, "When you are offended at any man's fault, turn to yourself and study your own failings. Then you will forget your anger." Ah, philosophy, how I've missed you.

Equal Justice Works

Last Saturday I attended the Equal Justice Works Conference and Career Fair in Washington D.C. The two-day event is one of the largest gatherings of public service law employers and law students in the nation. EJW also puts on a similar job fair later in the fall at the University of Richmond, and between the two, I've landed both my summer jobs. So I get pretty excited about EJW. The way it works is students apply for interviews through a website, a month or so before the career fair. Employers take a few weeks to sort through the applications, then decide who they want to interview, and we get notified by checking the website. This year I had two half-hour interviews, both of which went fairly well, and I stopped to talk with a third employer that did not offer me an interview, but was willing to take another look at my resume, transcript, and writing sample.

Another great part about EJW is the speakers they bring in. This year's featured speaker was Ralph Nader, consumer advocate (we can thank him for seat belt laws) and of course, perpetual presidential candidate. Many people blame Nader for Bush's election in 2000, but I tend to side with the camp that believes there were a lot of other things going on — the butterfly ballot in Palm Beach, the 200,000 Florida Democrats who voted for Bush, the Gore campaign's weak effort to win a recount and of course one of the worst decisions ever to come out of the U.S. Supreme Court: Bush v. Gore. All of this is to say that it's certainly useless and most likely wrong to blame Nader for Bush's presidency. A Harvard Law grad, Nader is amazingly smart and a dynamic speaker, so it was fun to hear him lecture a bunch of eager law students frantically searching for jobs. At 75 years old and with an accomplished career of activism, Nader can take the long view.

Nader spoke about the deficiencies of legal education, a topic that interests me a great deal. In particular, he talked about how the law school curriculum focuses on areas of the law that serve to protect corporate interests. He used an example from his Harvard days. He asked the crowd, "How many of you studied landlord/tenant law?" Because we all took property as first-year law students, we all raised our hands. Nader said he was excited to study landlord/tenant law as well, but at Harvard, somehow they never got to the "tenant" part. That is to say, the vast majority of landlord/tenant law has to do with a landlord's rights. Tenants have few rights. This is no accident. Nader then discussed the deficiencies of how the subject of contracts is taught. He focused on contracts of adhesion (e.g., the lengthy, standard form contracts you sign every time you sign for a loan, download a piece of software, or purchase a cell phone plan). Nader said that 99% of the contracts we sign in our lifetimes are contracts of adhesion, but most contracts professors don't even spend a day of class discussing them. (I believe my contracts professor spent several days more than that, but his point is well taken.) A big problem with contracts of adhesion is that large corporations tend to use the same language in their contracts, so that if you don't like the terms of a loan that one bank offers you, it will do little good to "shop around," because other banks offer essentially the same terms. In Nader's view, there is too much collusion, too little competition, and a whole lot of oppressing the person who signs for the loan. The "pull yourself up by the bootstraps" refutation of Nader's argument, of course, is that if you don't like the terms, don't get the loan. And that would be fine for A) someone who comes from a family with a lot of money who doesn't need to worry about loans, or B) someone who never plans on going to college, buying a car, or buying a home. "There is no freedom of contract," Nader said. Contracts of adhesion "represent the private legislature of the corporation." In other words, these contracts suck, and the best way to fix them is through federal legislation and regulations, which is what Nader has pushed for most of his adult life.

Nader also spoke about the need for law students to organize to do social good in the 21st century. We have more ways of connecting with one another than ever before, and yet we think of our cell phones and email "as toys, not as tools." The guy from EJW who introduced Nader used this opportunity to recall the Student Hurricane Network, which was started at an EJW conference in 2005, shortly after Hurricane Katrina, when law students from Tulane University in New Orleans connected with law students from around the country who wanted to help however they could. Nader wants us to do more of that. Nader spoke of the need for law students and young lawyers to have passion so that they can affect social change. "What does it take to get law students angry — really angry?" he asked. "If you don't have fire in your belly, it doesn't matter." Finally, he called on us to raise the level of small talk in law schools across the country. Instead of asking each other about the latest drinking adventures and job interviews, we might ask one another about what we're doing to change the world.

The other phenomenal speaker at EJW was Harold Koh, formerly the dean of Yale Law School and now legal adviser to the U.S. Department of State. Koh gave a hilarious, inspiring talk in which he discussed the Top 10 reasons to do public interest legal work. He was preaching to the choir, of course, because we were all at the conference seeking this kind of work, but it was still a great speech. In addition to being an incredibly accomplished lawyer, he's a self-deprecating humorist. He talked about his wife, Mary Christy-Fisher, who is director of the New Haven Legal Assistance Program, which provides legal aid to the poor people of Connecticut. Koh spent his first years as an attorney working at a large law firm, so in his marriage, his wife has at least historically been more of the public interest lawyer of the two. "When I got this invitation to speak, I asked my wife," Koh said, "'Honey, in your wildest dreams did you ever think I'd be speaking at Equal Justice Works?' She replied, "Dear, I'm sorry to tell you this, but you're not in my wildest dreams.'"

Koh spoke at length about why it does not make sense to take a job at a big law firm after school simply to pay off loans. He said that taking a job for the money is the same as taking a job for no reason at all. "People who say they're taking a firm job to pay off loans are admitting they don't know why they came to law school," he said.

Koh told several stories about his family, and how they had influenced his career choices. At his law school graduation, a distinguished professor came over to congratulate Koh on his "accomplishments" — graduating in the top 10% of his class, becoming a member of a well-known legal fraternity, etc. When the professor walked away, his sister told him, "Harold, you haven't accomplished anything." He asked what she meant, because he had all these awards, which were all accomplishments to him. She said that lots of people who have never gotten degrees or awards have accomplished more in a day through real work than he ever accomplished at law school. Another time, when he told his mother about the offer he got to work at a big law firm, she congratulated him and then proceeded to screw up the name of the firm. She asked who his clients would be, and he told her (mostly big corporations). "Then she told me something I'll never forget," Koh said. "She said, 'You have the most privilege. Shouldn't you be working to serve those with the least privilege?'" Finally, Koh told a story about his young son's view of his father's work. One night on television the son saw his dad speaking about a case. The caption read, "Harold Koh, human rights lawyer." The son asked his dad what a human rights lawyer was. Koh replied, "A human rights lawyer is an international lawyer who got mad." Later, the son presented a paper in class about the person he loves the most: his father. He gave two reasons, Koh said. "The first reason is that my dad loves beer." The second reason was that his dad works for people who don't have much, people who are told by others that they can't do the things they want to do. "My dad is a human rights lawyer."

Koh wrapped up his talk by saying that public interest lawyers can do lot of good, even if they aren't perfect people themselves. He said that principle reminded him of someone—Michael Jackson. Koh ended by quoting Jackson, to huge applause: "If you want to make the world a better place, you gotta look in the mirror and make a change. And, don't stop till you get enough."

Death Costs More

The New York Times has an excellent editorial this morning, "High Cost of Death Row." Most people believe that killing someone is cheaper than putting them in prison for life but solitary confinement, execution chambers, and lengthy capital trials — to say nothing of the absolutely necessary federal habeas corpus proceedings — all result in a much higher cost. As the Times correctly informs us, "Money spent on death rows could be spent on police officers, courts, public defenders, legal service agencies and prison cells."

Cost is not the most morally persuasive argument but when you consider the other ways in which we could spend the money, the right thing to do is quite clear.

Habañero

At a chili cook-off the other day, a friend dared me to eat half a habañero pepper in exchange for $20. I ate half, and it tasted pretty good, so I ate the other half, too, just for kicks. After about a minute and a half, I started to feel the heat. Drank about half a beer, which seemed to help. About five minutes in, the worst of the heat set in, and I sweated it. After half an hour, I ate a roll of antacid tablets, mostly as a precaution against further damage, because friends were telling me of dangerous times ahead. I'm happy to report that I'm in fine health. And for another $20, I'd probably do it again.

This guy wouldn't.

Live-blogging David Baugh, Virginia civil rights attorney

8:56 a.m.—This morning the William & Mary Law Library is hosting David Baugh, a civil rights attorney and the Capital Defender in Richmond, Va. He has lectured the last two years, and is always a dynamic speaker. He'll be discussing "The Bill of Rights and the Roberts Court." Should be an excellent hour. There are about 50 people in attendance at the law school this morning, many of them first-year law students, public policy graduate students and many from the Williamsburg community. A fine turnout for a Friday morning.

9:01 a.m.—Jim Heller, head librarian, has introduced David Baugh, the son of a Tuskegee Airman. "I don't like the Supreme Court," Baugh says.

9:02 a.m.—Baugh says the justices should not care about the outcome of a case. "They're there to protect the rules, and the rules are in our Constitution. The Supreme Court does not understand that."

9:05 a.m.—Baugh is often introduced as a civil rights scholar. "I'm not, I'm a trial lawyer. I'm a thug. I go to court and I beat people up." Baugh is plugging Judge A. Leon Higginbotham's open letter to Clarence Thomas, which I haven't read. Here's the cite: An open letter to Justice Clarence Thomas from a federal judicial colleague, 140 U. Penn. L. Rev. 1005-1028 (1992).

9:08 a.m.—Most law schools don't teach the Constitution. We're going to talk about why we have it. "Thomas Jefferson was one of those guys who really was a genius. He knew that the key to life was happiness. Yeah, they screwed slaves, but he knew what he was talking about." Another plug: download The Universal Declaration of Human Rights, adopted by the United Nations in 1948.

9:10 a.m.—"Government always will be in opposition to freedom." Two opposing forces: one is freedom. No issue is taboo. "What do you think about the Man-Boy Society?" (He's talking about NAMBLA here.) "We ought to talk about it."

Baugh is talking about his former client, a grand dragon of the KKK. "If any one of you believe there's a superior race, talk to a Klansman. He was dumb as a rock."

9:12 a.m.—On one side is freedom, and on the other side is order. "Those forces are in opposition because the greater the freedom, the less order. We have to have order, but we have to have freedom. The opponents of freedom will always be the government, the majority, and you when you're scared." So we have to maintain a system of laws that recognizes freedom while keeping order in place. It will always be a sliding scale.

9:15 a.m.—We're the only government in the world that swears allegiance to a philosophy, to a document. That's brilliant. Others swear an allegiance to a king or queen. He's talking now about freedom of religion, "which is a brilliant idea." The only way to allow everyone to practice the kind of religion they want is to have no laws establishing religion. "That's kung fu crap. That's like, 'The only way for everyone to have religion is to leave religion alone, Grasshopper." (Big laughs from the crowd.)

9:18 a.m.—Talking about harm to others and the First Amendment. Up until 10 years ago, consensual sex between married adults was illegal in this state. How does gay people getting married harm others? "It's going to destroy the American family. Don't look now but heterosexuality and monogamy destroyed the American family."

9:25 a.m.—On defending clients: every time someone walks, the rules get stronger. Most people view the Constitution and the Bill of Rights as an impediment to convicting guilty people. Only the ACLU and criminal defense attorneys protect the rules.

9:26 a.m.—"For every freedom, there is a corresponding responsibility. If I want freedom of speech, I have to tolerate the rights of other dumb son-of-a-bitches to talk, too."

9:28 a.m.—On to the KKK case. (I should mention here that Mr. Baugh is black. He represented a KKK Grand Dragon who burned a cross.) How to tell a Klansman from anyone else: it's not a cross burning, it's a "cross illumination."

9:29 a.m.—"When it comes to constitutional issues, there are only two sides. There's the government on one side, and everybody else on the other side." The reason Baugh took the case is because he and the Klansman were on the same side.

9:32 a.m.—"Human beings are basically good." Baugh says he's never defended someone he thought was bad. Even bigots aren't bad people, he says. They're good people who pay their bills and love their kids but who have a distorted sense of values.

9:34 a.m.—Baugh on his mother, who he says, "should have been a Nazi," for her stances on pornography. She didn't want him defending someone accused of having pornography, and he told her he believed it was important to protect that person's freedom of speech. "I've been called a bastard before but never by the person who really knows."

9:35 a.m.—A few links to articles about David Baugh and his former client, Barry Elton Black, the Klansman: http://www.abanet.org/irr/hr/fall00/oneil.html and http://www.nytimes.com/1998/11/20/us/klan-case-transcends-black-vs-white.html.

9:38 a.m.—On human rights: should we support countries who oppress their women? Should we support countries that discriminate against minorities? How about the burqa issue? Baugh did the bombing case at the U.S. Embassy in Nairobi. He represented an al-Qaida member who blew up 200 people. He started researching and realized he didn't know anything about Islam. A friend recommended him a book called, "Teach Yourself Islam." He highly recommends it, even though it's the equivalent of "Islam for Dummies." The book is about 250 pages (224, to be exact).

9:40 a.m.—On suicide bombing: Suicide is a sin in Islam, but giving your life for the cause of war is not. That's how Islamic extremists draw the distinction. It's easier to extend rights to other people if you understand those people and their religion.

9:42 a.m.—On rights in America: We rank about 33rd in infant mortality. "I think it's obscene that we have bombers that cost $2 billion and we have dying children." Health care is a right.

9:45 a.m.—"You have a duty, not just to get educated, but to understand other cultures, other people. Every time you get a chance to study another culture, take it."

On Tim Kaine (the current governor of Virginia): He came from Harvard and moved to Richmond. The most segregated place in America is a church on Sunday morning. Well Tim Kaine went to a black church and joined the choir.

9:46 a.m.—"For those of you who are law students, if you know why you're doing it, it's the greatest job in the world." That's the end of the lecture. On to questions.

9:47 a.m.—"Should we have voluntary slavery? Other than prostitution and marriage."

9:58 a.m.—A little experiment. Baugh stands in the middle of the room and says, "I think Dick Cheney is an evil bastard who should die and rot in hell." There. He says in most countries, a person couldn't do that without the threat of being imprisoned. But not a single person in this room, he says, believes that saying that deserves a criminal penalty. "And that's what gives me hope, hope for our Constitution and for our country."

Maybe the best line of the day. Baugh's final point is about having courage. "It's not enough to be smart, and you all are smart. You have to have kahones, too. Oh wait, excuse me. You have to have ovarian fortitude."

On that note, Baugh heads to the public policy class to discuss upcoming Supreme Court cases.

From the Execution Chamber Back to the Courtroom

Romell Broom's lawyers will return to court tomorrow, just days removed from the botched execution of their client. They will argue that trying to execute Broom a second time would constitute cruel and unusual punishment, in violation of his Eighth Amendment rights, as well as a violation of his 14th Amendment due process rights. Lawyers for the state of Ohio will likely argue that because the three-drug lethal injection cocktail never reached Broom's veins, that a second go-around is just fine.

It's worth taking a look at some pertinent language from the Supreme Court's 2008 ruling in Baze v. Rees, when the Court upheld Kentucky's lethal injection procedure as constitutional. In his plurality opinion, Chief Justice John Roberts hinted at where the Court might say, "Enough is enough":

Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of “objectively intolerable risk of harm” that qualifies as cruel and unusual. In Louisiana ex rel. Francis v. Resweber, a plurality of the Court upheld a second attempt at executing a prisoner by electrocution after a mechanical malfunction had interfered with the first attempt. The principal opinion noted that “[a]ccidents happen for which no man is to blame,” and concluded that such “an accident, with no suggestion of malevolence,” did not give rise to an Eighth Amendment violation.

As Justice Frankfurter noted in a separate opinion based on the Due Process Clause, however, “a hypothetical situation” involving “a series of abortive attempts at electrocution” would present a different case. In terms of our present Eighth Amendment analysis, such a situation—unlike an “innocent misadventure”—would demonstrate an “objectively intolerable risk of harm” that officials may not ignore. In other words, an isolated mishap alone does not give rise to an Eighth Amendment violation, precisely because such an event, while regrettable, does not suggest cruelty, or that the procedure at issue gives rise to a “substantial risk of serious harm.”

Roberts suggests in Baze that multiple execution attempts may indeed prove too much for the Constitution to bear. Let's see if the lower courts follow that logic. I certainly hope so.

A Re-Execution in Ohio

To legally kill death row inmates, most states use a three-drug lethal injection protocol. One drug is designed to anesthetize the inmate (sodium thiopental), one drug paralyzes him and stops his breathing (pancuronium bromide), and the third drug stops his beating heart (potassium chloride). Executions without an anesthetic drug would be unbelievably painful, and would almost certainly violate the Eighth Amendment's ban on cruel and unusual punishment. Executions would simply fail without the drug that kills. The paralytic drug, however, serves no humane purpose. In fact, quite the opposite: when the anesthetic drug doesn't work, the inmate is paralyzed but feels incredible pain when the death drug arrives. It's a shocking thing our government does, behind closed doors. The ACLU has of course challenged the use of this paralytic drug in federal court, after several botched executions in California, the state with the nation's most populous death row. This legal challenge helped impose California's current 3 1/2-year moratorium on executions. More California death row inmates have committed suicide than have been executed since 1976.

But the paralytic drug isn't the only problem with lethal injection. As many medical personnel know, some people have difficult veins to stick. The same holds true for death row inmates, including Romell Broom of Ohio. In an appalling story that should give us all pause, executioners in the state of Ohio this week gave up on their attempt to execute Broom, a convicted rapist and killer, when they could not find a suitable vein to inject the drugs. Broom, to his credit, squeezed his fist (and sweated bullets) in an attempt to assist his killers.

Broom's lawyers are headed to court. Now Ohio and likely some federal courts will have the sick task of coming up with a rationale for the state to execute Broom a second time, without violating the Eighth Amendment. The state could, of course, simply commute his sentence to life imprisonment without chance of parole, but that would be too simple (and heck, it might encourage other death row inmates to make their own veins difficult to stick). No, the state will undoubtedly argue that executing the same person twice does not constitute cruel and unusual punishment, and the Ohio courts will without question rubber-stamp that logic. But should the case reach the federal courts, Ohio's attorney general may have a tougher time convincing a judge that the state's lethal injection protocol, which failed to execute Broom, is constitutional after all. It's a case worth watching.

UPDATE, 9/19:
A federal judge has stepped into Romell Broom's case, giving him and his lawyers a 10-day reprieve. The temporary restraining order prevents Ohio from executing Broom next week, as the state had planned. Instead, Broom will testify in court Monday about his botched execution. This is fantastic news.

In Defense of Vegetarianism

A little more than a year ago I stopped eating meat. It was a goal I had held for several years, based primarily on the health benefits of not eating red meat in particular, but one I found difficult to accomplish. Ironically enough, I had not achieved my goal because I did not know how to sustain a healthy vegetarian diet — basically, I didn't know how to cook good food. Though it seems counterintuitive, many vegetarians live on a junk food diet, eating primarily cheese and carbs and gaining weight along the way. I didn't want to go that route.

The past year has blessed me with the opportunity to spend time with a great vegetarian cook and live a summer in the Bay Area, home to an incredible array of farmer's markets. I am now a passable cook, and will not drift into "junk vegetarianism" anytime soon. But only in the last couple of months have I acquired a real rationale for the way I eat. People become vegetarian for a multitude of reasons: health, spirituality, sustainability, as protest against animal cruelty, even economic populism. Most often, vegetarians I've met combine these rationales or start with one and gravitate toward another. When the logic for one reason falters, as it almost inevitably does, they argue another point and most often win the argument with meat-eaters.

I mention these rationales because now that I've learned how to sustain myself on a vegetarian diet, I find that the most difficult part of being a vegetarian is explaining the decision to carnivores. Most do not appear threatened by vegetarians — they're not converting anytime soon — but they want to push them anyway, see why anyone who otherwise appears smart would be dumb enough to give up eating meat.

Finding the real reason for my vegetarianism has taken quite a while. Plenty of people live healthy lives while eating meat regularly. Moreover, because the animals we eat subsist on grains and vegetables, the same vitamins and minerals found in meat exist in most vegetarian diets. (I'm leaving veganism out of this discussion because of its sheer rarity. I learned this summer that the only vegan I knew has dropped the lifestyle.) If it's the saturated fat in meat that you're trying to avoid, then you'd have to drop a lot more than just meat. Some oils, cheese, yogurt and other flavorful sources of protein contain plenty of saturated fat. Moreover, saturated fat may not be as evil as we once thought, anyway. There are plenty of health benefits from becoming vegetarian but at least in my experience, they tend to come not from the vegetarian diet itself, but from buying fresh ingredients and learning how to cook.

Ever since I read Plato's Allegory of the Cave and Friedrich Nietzsche's Twilight of the Idols, spirituality has taken a backseat to other priorities, to put it mildly. Spirituality, thus, is not my rationale. I still get plenty of satisfaction from eating mouth-watering meals, but I will not claim that it puts me in touch with a higher power.

Sustainability is a powerful argument for vegetarianism, and has gained much attention with the rise of Michael Pollan, the UC-Berkeley journalism professor and author of The Omnivore's Dilemma, In Defense of Food, and numerous op-eds in the New York Times. The argument as I understand it goes something like this: to produce one pound of beef, a cow such as a cow must consume 16 pounds of grain. That's a lot of wasted energy. Wouldn't we be better off if we just grew more fruit, vegetables, and grain instead of trying to eat all those inefficient cows? Moreover, and here's where Pollan has really devoted his time, the fossil fuels required to move all this meat across the country is incredibly damaging to the environment. We would be much better off to grow and buy all our food locally. But as you can see, Pollan's argument (at least this last one) applies with equal force to all kinds of food: California strawberries consumed in Virginia, Iowa corn consumed in China, Wisconsin cheese consumed in Florida. This system exists (and here's where the economic populism argument comes into play) because we continue to subsidize the agribusiness industry and its factory farmers with billions of taxpayer dollars each year. Even if we all stopped eating meat tomorrow, our food distribution system would still place an unconscionable burden on the environment. We need to do much more than become vegetarian. We need buy local food and convince our farmers, grocers and senators to change the way they think about feeding America and the world.

And so I find myself back in a place I hadn't imagined, eating a vegetarian diet primarily because of the way we treat our animals. This summer I listened to Peter Singer's powerful book (on CD), The Way We Eat: Why Our Food Choices Matter. He illustrates, in an unabashedly graphic way, the repulsive ways that we raise and kill chickens, just to collect their eggs. We raise them in cages and breed them to lose their wings so that they pose less of a "flight risk." Then to try to kill them, we hand-dip them in scalding water. The chickens, if you can still call them that, live pathetic lives yet before dying, feel intense amounts of pain. It's enough for me to make sure that every carton of eggs I buy comes from "cage-free" hens. And having grown up in Iowa among hog confinements, I know that the way we treat pigs and cows leaves much to be desired. I will never believe that humans have a right to use the rest of Earth's creatures as they wish. It's just another example of where the Bible and I part ways.

And yet, even the animal cruelty brand of vegetarianism leaves a potential gap: what about those farmers who do everything they can to treat their animals well? Moreover, what about the farmers who, in addition to humane farming, sell their meat locally? And here's where my vegetarianism ends. Yesterday I bought a pound of ground beef from a local farmer who grass-feeds her cows. It may not be the most efficient pound of food I eat this month, but I can feel good about supporting her, much more so than I could about buying a bunch of bananas from Ecuador, produced with the labor of exploited workers and shipped thousands of inefficient miles to my grocery store.

Thinking about food, it seems, is a life-long endeavor, filled with complexities. But I believe I've found an argument that can withstand the scrutiny of non-discriminating carnivores, who eat whatever meat is put on their plates. And it might even hold up against other vegetarians, too.

Back to School

Apparently I still have some readers out there, so here we go, for one more year. I just finished the last class of my third week, and I can now say with some authority that the third year of law school is by far the best. The old cliché, once again is: the first year they scare you to death, the second year they work you to death, and the third year they bore you to death. But you can't get too bored if you take great classes or solid professors, and somehow I've managed to pull that off. This semester I'm branching out from my usual comfort zone of criminal law. My classes include Business Associations, a popular topic on the Bar exam, and three others dealing with highly relevant topics: Health Law & Policy (tonight we did a comparative analysis of the health care plans in Congress); Media, Technology & the Courts; and an Election Law class studying Bush v. Gore and other Supreme Court gems. I'm also doing a fantastic externship (I think that means "internship for credit," in law school jargon) with a federal public defender's office.

I returned from my summer in California—not to mention a 4,600-mile road trip—happy, relaxed, and refreshed. I learned an incredible amount this summer, but unfortunately I can't blog about it. For anyone who's interested, let me know, and I'll send the essay I wrote to fulfill my summer funding requirement.

It seems impossible that my fellow 3Ls and I have ascended to the last tier of law school, just two sets of exams away from graduation. An energetic group of 1Ls has filled the W&M Law Library, brandishing their highlighters and looking to us for advice. We start the year with a new, terrific dean, Dave Douglas, whom many in my class had (and loved) as a Con Law professor during first year. Most of us 3Ls are looking for jobs, or in the case of the firm crowd, waiting to hear about offers. Many of us, including me, applied for judicial clerkships over the summer. Clerkships typically last a year, and if you get an offer from a judge, you're basically obligated to take it. After two-plus years of spending time with my classmates, I find it fascinating to see who goes where. People will scatter all over the country and the world. Many will work at firms, some in the federal government, others at prosecutor's and public defender's offices. A few people won't even take the Bar, and may go back for more graduate degrees. One of my classmates learned to brew beer over the summer while living at his parents' house. More power to him. (I'm still waiting to taste the beer.)

This year should afford me more time to write. Before I close this entry, I do want to mention a particularly important case that the Supreme Court heard in a special session yesterday, and which we've discussed in my Media class. It's called Citizens United v. Federal Election Commission. Briefly, in 2007, a conservative group funded at least partially by corporations wanted to show a 90-minute documentary criticizing Hillary Clinton (to put it lightly). The FEC ruled that because the group was funded by corporations, and because the documentary mounted an attack on a political candidate, broadcasting the documentary would violate a 2002 federal campaign finance law — the McCain-Feingold Act. The Supreme Court upheld the constitutionality of that Act back in 2003, though in recent years it has stripped a few provisions away from McCain-Feingold. But this time, the Supreme Court wants to decide whether restricting the broadcast violated the free speech rights of Citizens United, and the corporations that fund it. The case pits the interests of free speech advocates, from the Swift Boaters to the ACLU, against campaign finance advocates, from Bill Moyers to John McCain.

Normally I'm a big free-speech guy, but I do not believe that corporations should have the same First Amendment rights as individuals. Although McCain-Feingold is a flawed law, I agree that we should be able to regulate how much money corporations can pour into political campaigns. Unfortunately, we likely have a Supreme Court with five members who believe that corporations do have the same free-speech rights as you and me. A decision in the case will probably come later this fall.

It's great to be back in the Burg.