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Zimmerman to be charged in Trayvon Martin shooting

[ 125 ] April 11, 2012 |

With what charge exactly is not yet clear.

Over/under on the first talking head who draws an analogy to Leo Frank and/or the Scottsboro Boys: Three hours and 17 minutes.

UPDATE [SL]:  According to reports, it will be the appropriate charge of 2nd degree murder.


The lottery in Babylon

[ 59 ] April 11, 2012 |

An acquaintance of mine, a professor at a top business school, is a big fan of state-run lotteries. “It’s a tax that poor people pay voluntarily!” he tells me with starry-eyed wonder. This is the kind of thing that makes me sympathetic to Marxist accounts of false consciousness. Clearly a considerable amount of weight is being put here on the concept of what counts as “voluntary.”

Lotteries are interesting examples of the practical limits of providing people with transparent information. It seems probable that even poorly educated and relatively innumerate people understand that purchasing a lottery ticket is on average a markedly losing proposition for the purchaser, since it’s well known that the government makes a lot of money on lotteries. So why do people buy lottery tickets? The most benign explanation is that playing the lottery is a form of consumption — that people enjoy gambling for its own sake and therefore derive psychic income from it, even though gambling has a negative return on investment in simple pecuniary terms. Less benign explanations include magical thinking and its near cousin desperation.

The less benign accounts take on particular force when one sees statistics on how much money poor people spend on lottery tickets relative to middle class and upper class people (Supposedly people with incomes of less than $13,000 per year spend something like 9% of their income on lotteries).

Increasingly, choosing to attend law school is coming to resemble purchasing an enormous number of lottery tickets. Let us count the ways:

(1) Collective outcomes are markedly negative for law school graduates as a group. In other words, the winners in the law school game are now seriously outnumbered by the losers, in both simple numerical and aggregated utility terms. This is certainly true for law graduates as a whole, and is also true at a very large majority of individual schools, indeed quite possibly all schools outside the top X (X here being a very small number whose precise identity I’m not interested in quibbling about at the moment).

(2) The law school game, like the lottery, is based in large part on redistributing wealth from some students to other students. This is most obvious in the context of tuition cross-subsidization via “merit” scholarships (these “scholarships consist of simply discounting the tuition charged to some students, which in effect raises the tuition paid by everyone else) but is true in a deeper sense in that, under contemporary conditions, winning at the law school game requires that there be many losers whose losses are precisely what make one a winner (in other words the game has become strongly negative sum). You can’t finish in the top 10% of the class unless 90% of your classmates don’t.

(3) Outcomes are largely random. People do well in law school not because they work hard (everybody works hard, at least until they recognize outcomes are largely random) but because they have a knack for doing well on issue-spotting exams, that do a very good job of measuring how well people do on issue-spotting exams but measure nothing else of value. In this sense law school grades are not much different than lottery numbers. Some come up, most don’t, and this fact doesn’t have much to do with the inherent virtue or vice of the players.

(4) In the case of both lotteries and law schools, the crucial ideological justification for the game is that the participants are entering into it voluntarily. This is why the one thing on which even the most dedicated defenders of the legal academic status quo agree is that law schools should be transparent about outcomes. Nobody is willing to defend a gamble in which those who run it lie about the odds. But here is where the analogy between lotteries and law schools is most troubling. After all, the state doesn’t need to lie about the odds to get the poorest of its citizens to spend nearly one out of every ten dollars on lottery tickets. “All you need is a dollar and a dream!” appears to work just as well, in at least some social contexts, as “98% of our graduates have jobs nine months after graduation.”

In other words, what if you give people good information about the extent to which you’re ripping them off, and they insist on getting ripped off anyway? Of course in the world in which rational agents maximize their utility on the basis of adequate information regarding costs, benefits, and risk this can’t happen by definition. But it turns out we don’t live in that world. We live in a world of markedly bounded rationality, where people are prone to optimism bias, have short time horizons and poor options within them, and are therefore more than willing to spend a dollar on a dream — or $150,000 that they don’t have as the case may be.

Progress of a sort

[ 54 ] April 7, 2012 |

houses of the holy

National Review has disassociated itself from John Derbyshire.

For those who would complain about the violation of Derbyshire’s supposed First Amendment rights, keep in mind the Constitution no longer applies to foreigners.

The decline of journalism

[ 15 ] April 6, 2012 |

The decline of American journalism has some things in common with the decline of the legal profession. Consider this piece of “journalism,” published yesterday in Forbes, purportedly one of the nation’s leading financial magazines: Read more…

Obama orders DOJ to ignore valid federal court order

[ 87 ] April 5, 2012 |

Obama and Holder

Two days ago, a three-judge Fifth Circuit panel ordered “President” Obama’s Department of Justus to produce a letter of at least three single-spaced pages, explaining the dusky usurper’s position on whether he is bound by the laws of the United States, as interpreted from time to time by the nation’s federal courts.

Not surprisingly, Barack Hussein Obama’s hirelings flouted this authoritative judicial command, by filing this document in response.

Under the Plain Meaning rule of interpretation, as passed down via Magna Carta and the Common Law courts, at least three single-spaced pages means AT LEAST THREE SINGLE-SPACED PAGES.

It does not mean two and one third pages, especially when at least one third of the first page is taken up by addressee’s contact information.

Where are my pills?

Right wing memes gone wild

[ 66 ] April 3, 2012 |

Scott links below to Ruth Marcus’s inane pearl-clutching over how Obama criticizing the Supreme Court could be interpreted as an Assault On the Rule of Law and Thus Our Most Sacred Freedoms. Apparently some sort of signal went out from the Bat Cave today. Behold the Fifth Circuit of our federal appellate court system:

In the escalating battle between the administration and the judiciary, a federal appeals court apparently is calling the president’s bluff — ordering the Justice Department to answer by Thursday whether the Obama Administration believes that the courts have the right to strike down a federal law, according to a lawyer who was in the courtroom.

The order, by a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, appears to be in direct response to the president’s comments yesterday about the Supreme Court’s review of the health care law. Mr. Obama all but threw down the gauntlet with the justices, saying he was “confident” the Court would not “take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

Overturning a law of course would not be unprecedented — since the Supreme Court since 1803 has asserted the power to strike down laws it interprets as unconstitutional. The three-judge appellate court appears to be asking the administration to admit that basic premise — despite the president’s remarks that implied the contrary. The panel ordered the Justice Department to submit a three-page, single-spaced letter by noon Thursday addressing whether the Executive Branch believes courts have such power, the lawyer said.

The panel is hearing a separate challenge to the health care law by physician-owned hospitals. The issue arose when a lawyer for the Justice Department began arguing before the judges. Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law.

The DOJ lawyer, Dana Lydia Kaersvang, answered yes — and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago, according to the lawyer in the courtroom.

Smith then became “very stern,” the source said, telling the lawyers arguing the case it was not clear to “many of us” whether the president believes such a right exists. The other two judges on the panel, Emilio Garza and Leslie Southwick–both Republican appointees–remained silent, the source said.

Smith, a Reagan appointee, went on to say that comments from the president and others in the Executive Branch indicate they believe judges don’t have the power to review laws and strike those that are unconstitutional, specifically referencing Mr. Obama’s comments yesterday about judges being an “unelected group of people.”

I’ve reached out to the White House for comment, and will update when we have more information.

Now it’s always difficult to beat a federal judge for sheer pomposity so in a sense there’s nothing particularly surprising about this sort of thing. But reading His Honor’s stern inquisition of the unfortunate DOJ lawyer — who I imagine was taken aback by the need to take time from her argument to cite Marbury v. Madison — brought to mind the following little story: A very distinguished professor of constitutional law — a man widely viewed as a conservative at least in legal academic circles — was asked recently to write an essay for a prominent conservative opinion magazine on some current legal controversies, including Citizens United decision and the ongoing litigation over same-sex marriage rights. He used the essay as an occasion to reiterate certain fundamental criticisms of the culture of judicial review, and in particular the mental habits that culture inculcates in judges.

The essay had gone through the editorial process and was in press when the Editor in Chief of the publication decided not to run the piece. Needless to say the author was both surprised and annoyed by this reversal, and had several conversations with the EIC about it. In sum, the EIC explained that it was now the policy — or what I believe in another time and place would have been referred to as “the line” — of the publication that it should not be encouraging basic criticisms of judicial review as a legal practice and cultural phenomenon “at this time.” In the course of these conversations it became very clear to the author that “at this time” meant “when this practice has once again become on the whole beneficial to the political goals of American conservatives.”

BTW the author is one of maybe five people in legal academia who is genuinely critical of judicial review without regard to outcomes in particular cases.

Congratulations to the University of Kentucky Wildcats

[ 19 ] April 2, 2012 |


As Coach John Calipari is surely banking on, the thing about actually winning the title is that the NCAA won’t vacate your Final Four appearance afterwards. (Thanks a lot Chris Webber).

I’m bitter because the outcome of this game cost me my NCAA pool, and hence a dinner at Frasca. Also.

Dominque Strauss-Kahn hit with yet more false charges of committing sex crimes

[ 14 ] March 26, 2012 |

This guy has worse luck than Ben Roethlisberger and Roman Polanski combined.

Hopefully he still has Bernard Henri-Levy on speed dial.

The myth of the “reasonable consumer”

[ 35 ] March 22, 2012 |

Here’s the key passage in Judge Melvin Schweitzer’s decision, granting New York Law School’s motion to the dismiss the class action suit brought against it by nine graduates for publishing misleading employment and salary data: Read more…

Tebow to Sin City

[ 116 ] March 21, 2012 |

Traded to the Jets for a fourth round pick fourth and sixth round pick, plus the Jets get a seventh.

At least he and Rex Ryan can reprise The Odd Couple.

This has got to be one of the most inexplicable moves ever. The Jets just signed the Sanchise to a huge extension, although given the structure of NFL contracts for all I know only $12.34 of it is guaranteed. Still, not a confidence-booster for their incumbent.

Plus, Rex Ryan is a foul-mouthed wife swapper foot fetishist or something.

At least Tebow will get to escape the media circus in Denver for the calmer and more lyrical waters of New York sports talk radio, where elevated discourse isn’t just the name of a New Wave band.

It has been observed that the Lord works in mysterious ways

[ 32 ] March 19, 2012 |

manning tebow

From a hermeneutic perspective, the “text” of Manning making aliyah to Denver can be interpreted literally, emblematically, allegorically, didactically, and, not least, probabilistically.

I like those odds.

Career Opportunities

[ 11 ] March 19, 2012 |

If I had a dollar for every time I’ve heard somebody inside a law school complain about the school’s career services office I could buy a brand new case book (that’s a whole other topic). Apparently over the last few years just about every CSO out there was staffed by incompetent do-nothings. That, at any rate, has become a popular explanation within law schools for why it’s gotten so hard for our graduates to get actual law jobs. Read more…

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