Class Application

Some of my veteran readers may remember my posting on Fisher v. Lowe, a 13 line Michigan court decision distinguished only by the fact that it is presented in rhyming couplets. It's funny in of itself, but I never thought it would have any real significance, classroom or otherwise.

But alas, today I was proven wrong, as my Political Science professor used Fisher to press on the issue of what makes something recognizably a judicial opinion (drawing from Stanley Fish, Working on the Chain Gang: Interpretation in Law and Literature, 60 Tex. L. Rev. 551 (1982)). Because while Fisher is certainly not a classic opinion, most people, upon reading it, would recognize it as one--especially if they saw it in a legalistic context (e.g., a reporter). But of course, not everything a judge writes would be so recognized--if a judge sent West a copy of his grocery list and said "report this", there would probably be some push back.

So what about it? What makes an opinion recognizably judicial?

So Very Very Tired

This week has been brutal, and things don't look to clear up until at least the weekend. And right now I got a booming headache for no discernable reason. So that's why posting has been so sporadic. Sorry guys.

The Cynic In Me

"Do not commit the error, common among the young, of assuming that if you cannot save the whole of mankind you have failed." --Jan de Hartog

Blog emperor Jim Chen (no offense, Paul Caron!) has revealed that he regrets his decision to go to law school. Over at Joint Strike Weasel, law student Ivan Ludmer explains why he does not want to become a legal academic, contrasting himself to little ol' me, for whom it is the "dream" job. Dissatisfaction in the ranks? Maybe I should re-evaluate.

So why do I want to become a law professor? Well, just in terms of tangible concerns, it's a pretty sweet gig. Good benefits, solid pay, interesting work, and "time off" in the summer. Yes, I know that this "time off" isn't actually just downtime, but that's just it: I actually enjoy this stuff. It isn't "work" in the sense that pushing papers or filling in data sets is.

But generally, there is another context in which I end a statement with "that's why I want to become a professor." It stems from pure and total disillusionment. One of Ivan's objections to the noble professoriate is that the vast majority of the scholarship is both unread tripe. And even if it is read, it isn't being read by the right people. I think he might be slightly overstating the case, but I'll concede the general point. Insofar as I still hang on to my "save-the-world" mentality, a professor is in a surprisingly bad position to do it. However, I'm sufficiently disenchanted with the world such that I don't think I'll be able to save it (or that it is savable) from any positon I choose to take.

Hence we get our phrase. "That's why I want to a professor. I want to sit back and hurl rocks at the establishment from my Ivory Tower." The ideal, of course, is that one of them might bludgeon a stray politician on the way down, and he, upon waking up, might pull a Paul of Tarsus and see the light. That's the dream. And just in case I hit that lottery, I want to be in a position so that my rocks actually contain good ideas. Put differently, if I became, say, a lobbyist, the odds that I'd have an impact on the world would be significantly higher than the odds as a professor, but the odds that the impact would be good would be quite a bit lower. I'd rather fail at doing good, than succeed at doing evil (or to be more charitable, succeed while remaining acquiescent in the big injustices).

But at the end of the day, my desire to become a professor isn't really dependent on even that tiny beacon of hope that I might not only have the freedom to create The Idea That Saves Humanity, but implement it as well. I don't believe it will happen. I just want to be left alone. You can continue to make dumb arguments, and oppress gay people, and wonder just how excruciating the pain has to be before torture becomes torture. Just let me have my little slice of tenure, and stay off my turf.

One can certainly chide me on this regard. It's a cheap way out to assert that, just because the world doesn't behave exactly as you like it, the solution is to retreat into a few isolated fortresses of intellegensia and barcade yourself from external hate and misery. Hit the trenches, man! Charles Fried once admonished: "As so often happens, the skeptic here is a disappointed absolutist, taking his revenge on the world for depriving him of all the right answers at once." Maybe so. But when the world continually answers wrong on the simple yes/no question, "it's okay to tolerate genocide", I feel some degree of cynicism is justified. I'd turn the question around: If I'm not the only academic-prone person who feels this way (and I know I'm not), what is causing this ailment? What is it that is causing despair to win out over hope?

The cynic, as I once read, is rarely someone who doesn't care but someone who cares too much. And while the post comes on a downswing, I do vacilate between focusing on the possibility that the world could come to its senses on the issue of, say, genocide (yay!) versus the reality that it hasn't (boo!). Even so, and even though I may be a particularly bad case, I do think that this sort of disenchantment is setting in earlier than normal on my generation. And I think we have to ask ourselves why.

Homosexuality versus Pedophilia

Mark E. Pietrzyk has a quite fascinating article on the alleged link between homosexuality and pedophilia. He examines the question on two axes: The scientific data as to whether homosexuals are more likely to be pedophiles, and the analytic argument as to whether liberal views on sexuality are breaking down the "traditional" norms present in the Judeo-Christian ethos which serve as the primary barrier to adult-child sexual relations. In both cases, he finds that the Christian right has completely abused the statistics and the history to suit its agenda. The scientific data proves the exact opposite of their point, and the history of both Medieval Judaism and Medieval Christianity show a shocking acquiesence to pedophilia, especially regarding the sexual betrothment of pre-pubescent girls. In fact, he argues, the modern taboo against child sexual relations has only recently (past two centuries) begun to solidify, and reflects the enlightenment liberal tradition which places particular emphasis on the ability of children to consent (as well as more modern liberal norms about the automatic power imbalance between adults and children in a relationship, and the physical and psychological harms such relationships can cause).

A brief snippet of the scientific section, because I think that point is really important:

A. Nicholas Groth is a pioneer in the scientific study of sexual offenders against women and children, who has treated over 3000 child molesters over the course of two decades. A former director of the Sex Offender Program at the Connecticut Department of Corrections, Groth is the author of Men Who Rape: Psychology of the Offender, a work widely regarded as a classic textbook on the psychology of sexual violence. In his work, Groth has found that approximately one‑third of all cases of child molestation involve an underage boy and an adult male, a statistic which has been used incessantly by certain conservative activist groups in an effort to prove that homosexuals are disproportionately responsible for acts of child molestation. However, Groth explicitly states that it is a myth that men who molest boys are homosexual.

According to Groth, child molesters can be divided into two types: "fixated" and "regressed." The fixated offender is attracted primarily to children and has little or no interest in adult relationships; such a person is known in clinical terms as a "pedophile." The regressed offender is interested in and capable of adult sexual relationships; however, this person may on occasion regress to sexual encounters with children, often as a result of difficulties and frustration in his adult relationships.

Groth writes that the fixated offender, or pedophile, tends to select boys more often than girls, but for reasons having nothing to do with homosexuality:

In general, fixated child molesters are drawn to children sexually in that they identify with the child and appear in some ways to want to remain children themselves. It is for this reason that the trend for fixated offenders is to target boys as victims. . . . They see the boy as a projected representation of themselves. They feel themselves to be more child than adult – more boys than men – and therefore find themselves more comfortable (especially sexually) in the company of children. . . .

Groth stresses that "these same individuals are uninterested in adult homosexual relationships. In fact, they frequently express a strong sexual aversion to adult males, reporting that what they find attractive about the immature boy are his feminine features and the absence of secondary sexual characteristics such as body hair and muscles." The second type of offender, the regressed offender, is predominantly heterosexual. However, he may temporarily turn to boys or girls as a result of complications in his adult relations. Although regressed offenders are more likely to choose girls than boys as victims, writes Groth, what attracts the regressed male offender to boys are the feminine characteristics of pre‑ pubescents. Groth found no cases of boy molestation in which the offender had an adult homosexual orientation. Concludes Groth,

Homosexuality and homosexual pedophilia are not synonymous. In fact, it may be that these two orientations are mutually exclusive, the reason being that the homosexual male is sexually attracted to masculine qualities whereas the heterosexual male is sexually attracted to feminine characteristics, and the sexually immature child’s qualities are more feminine than masculine. . . . The child offender who is attracted to and engaged in adult sexual relationships is heterosexual. It appears, therefore, that the adult heterosexual male constitutes a greater sexual risk to underage children than does the adult homosexual male.

The religion part of Pietrzyk's article is eye-opening. The science section is just a classic smackdown. The entire thing is worth reading.

H/T: Andrew Sullivan

Midget Insurgents and Other Tales

Via Kevin Drum, Time Magazine printed a letter from a Marine officer stationed in Iraq, kind of a High School year book "best..." "most..." "coolest..." "worst..." type of thing. There's plenty of depressing news in it, I'll spare you the details. Instead, I'll just pick out the funniest stories.

Most Surreal Moment -- Watching Marines arrive at my detention facility and unload a truck load of flex-cuffed midgets. 26 to be exact. We had put the word out earlier in the day to the Marines in Fallujah that we were looking for Bad Guy X, who was described as a midget. Little did I know that Fallujah was home to a small community of midgets, who banded together for support since they were considered as social outcasts. The Marines were anxious to get back to the midget colony to bring in the rest of the midget suspects, but I called off the search, figuring Bad Guy X was long gone on his short legs after seeing his companions rounded up by the giant infidels.
[...]
Coolest Insurgent Act -- Stealing almost $7 million from the main bank in Ramadi in broad daylight, then, upon exiting, waving to the Marines in the combat outpost right next to the bank, who had no clue of what was going on. The Marines waved back. Too cool.
[...]
Best Chuck Norris Moment -- 13 May. Bad Guys arrived at the government center in a small town to kidnap the mayor, since they have a problem with any form of government that does not include regular beheadings and women wearing burqahs. There were seven of them. As they brought the mayor out to put him in a pick-up truck to take him off to be beheaded (on video, as usual), one of the Bad Guys put down his machinegun so that he could tie the mayor's hands. The mayor took the opportunity to pick up the machinegun and drill five of the Bad Guys. The other two ran away. One of the dead Bad Guys was on our top twenty wanted list. Like they say, you can't fight City Hall.

Oh, by the way, the Marine has been IDed. He's Col. Pete Devlin, Chief of Intelligence for the Marine Corps, and the author of the report claiming that we have lost the Anbar province. Interesting.

Swift-Boated

Navy Lt. Commander Charles Swift, military attorney for Salim Hamdan (e.g., the plaintiff in the landmark case of Hamdan v. Rumsfeld), is out of the Navy (involuntarily) after being denied a promotion to full Commander. The Navy has an "up-or-out" system whereby persons not promoted to Commander are then retired from the Navy. Swift received word he would not be promoted two weeks after defeating the Bush administration in front of the Supreme Court as to the subject of whether the President could unilaterally deprive Hamdan and other detainees of due process rights and the right to a trial in front of a regularly constituted courts (rather than the mutant abominations of justice we call military tribunals). The Seattle Times illuminates just how unjust this decision is:

n the opinion of Washington, D.C., attorney Eugene Fidell, president of the National Institute of Military Justice, Swift was "a no-brainer for promotion," given his devotion to the Navy, the law and his client.

But, he said, Swift is part of a long line of Navy defense lawyers "of tremendous distinction" who were not made full commander and "had their careers terminated prematurely."

"He brought real credit to the Navy," said Fidell. "It's too bad that it's unrequited love."

Swift's supervisor, the Pentagon's chief defense counsel for Military Commissions, said the career Navy officer had served with distinction.

"Charlie has obviously done an exceptional job, a really extraordinary job," said Marine Col. Dwight Sullivan, a former American Civil Liberties Union attorney, calling it "quite a coincidence" that the Navy promotion board passed on promoting Swift "within two weeks of the Supreme Court opinion."

In June, the prestigious National Law Journal listed Swift among the nation's top 100 lawyers, with such legal luminaries as former Bush administration Solicitor General Theodore Olson, 66; Stanford Law constitutional-law expert Kathleen Sullivan, 50; and former Bush campaign recount attorney Fred Bartlit, 73.

"Quite a coincidence" indeed. Let's be clear: the above accolades show quite clearly that Swift was not denied his promotion because he was unqualified. He was denied it because he was too qualified. Swift was a Pentagon appointee to this case, and apparently they were taken aback by the zeal with which he defended his client. So they got rid of him.

It's also worth noting that this sordid episode obliterates any claim towards the independence of the "military tribunals" that Bush wants to be the ultimate arbiters of guilt and innocent for detainees. Swift did his job as a defense attorney for the military. And he was kicked out. I'm quite confident all the other JAGs and military personnel who would be assigned to defend alleged terrorists have got the message loud and clear.

In the spirit of a true Navy lawyer, Swift says that he would do it all over again, even if he knew that defending Hamdan woul lead to the premature end of his military service. Good for him. And thanks to the broke no dissent culture of the Bush administration, the Navy has lost one of its best.