One Down

Law students everywhere, rejoice with me! One exam down! Five to go...

Chernobyl, 21 years on

Yesterday was the 21st anniversary of the nuclear disaster at Chernobyl.

In the Ukraine, there is a zone in which it's said nobody can live for a thousand years. While many scientists dispute this claim, Gorbachev has said that no one will live in Chernobyl until Jesus returns.

Our world is broken. Let us pray, for it has been subjected to sin in hope that all will be made right.

I have a link to a photo essay, but I am not going to post it. I looked at it and it is profoundly wrenching. It will ruin your day. It includes pictures from an orphanage in Belarus where the children are suffering severe mental and physical deformities which appear to be linked to the radiation from Chernobyl. If you want to see it, I'll email a link to those who leave a comment. Be warned.

Splitting atoms has so much promise for the good of mankind. I am a strong supporter of nuclear power, but seeing these things and reflecting on Chernobyl gives me pause.

Reid and Petraeus, pt. 2

I couldn't pass this up. I got a real kick out of Senator Reid's logic yesterday, how he either completely misunderstood or blatantly misquoted General Petraeus.

The Senator has obliged to give me a wonderful way of summing up his position on Patraeus. When asked about the General's remarks that the situation in Iraq was improving, the Senator responded simply: "I don't believe him."

Awesome. I don't believe him unless I misunderstand him to agree with me. Now I know that politicians on both sides of aisle are famous for, uh, suboptimal reasoning--but you've got to admit that the disconnect here is funny.

How can we ever get down the substance and merits of the stuff these guys argue about if their arguments are about as precise as a drunken game of Marco Polo?

Favorite Sky

I love the way the sky looks today. I reminds me of El Greco's Vista de Toledo.



Blue sky and dark clouds. Is there an omnipresence brooding out there?

Exam Preparation, Rhetoric, and the Debate on Iraq

It's exam time! This fact means that I am training my mind to do two things right now: first, I am cramming as much raw information into my head as will fit without causing me to explode or wet myself; second, I am brushing up on the rules of logic.

Often, law professors test students by presenting partial problems. The trick is to determine whether the limited facts justify applying a law meant to address a more developed problem. I like to employ the old distinction between necessary and sufficient causes.

The classic example is that oxygen is a necessary condition for human life: no air, no humans. Oxygen, however, is not a sufficient condition. There are lots of places where we find oxygen but no people. Or, to refer back to my favorite professor this semester, I could say that being a smart person is a necessary but not sufficient cause of being a good teacher. Good teachers require intelligence, but lots of smart people are terrible teachers.

I saw an example of Senate Majority Leader Harry Reid failing to recognize this distinction in the news today. See if you can catch the error he makes in evaluating a statement by General Petraeus. It's not too subtle.

I'll give you the General's comments, and then an excerpt from an interview with the Senator. (Note: Reid was not present when the General made his comments).

Gen Patraeus: "And I think, again, that any student of history recognizes that there is no military solution to a problem like that in Iraq, to the insurgency of Iraq. Military action is necessary to help improve security, for all the reasons that I stated in my remarks, but it is not sufficient."

***

Interviewer:Is there something to that, an 18- and 19-year-old person in the service in Iraq who is serving, risking their lives, in some cases losing their life, hearing somebody like you back in Washington saying that they're fighting for a lost cause?

Reid: General Petraeus has told them that.

Interviewer: How has he said that?

Reid: He said the war can't be won militarily. He said that. I mean he said it. He's the commander on the ground there.

***

It appears, by the Senator's logic, that since air is not sufficient to create and sustain human life, air is not important to us humans. If we can't win by force alone, then I guess force isn't important. Right, Senator. That's exactly what Petraeus said.

I mean, heck, didn't the General actually use the words "necessary" and "sufficient?"

A Chesterton Quote

G.K. Chesterton is one of my favorite authors. He seems to have lived a life that consisted solely of getting involved in controversies and debates in literary and philosophical magazines. He was a top hat sort of dude who also wore that snooty little one eye glass thing. If memory serves, he was about 6'4'' and almost 300 pounds.

And he really knew how to turn a phrase. I was reading one of his more famous works, Orthodoxy, last night and came across these sentences (p.221 in Vol. I of his "Collected Works"):

It is the happy man who does the useless things; the sick man is not strong enough to be idle. It is exactly such careless and causeless actions that the madman could never understand; for the madman (like the determinist) generally sees too much cause in everything.

I am not sure if I fully agree with Chesterton, perhaps on account of considering myself a bit of a determinist and at least a bit sane. I would prefer to think he was anticipating the great conspiracy theories and laughing at them in advance.

But I have to acknowledge that he is speaking directly at my idea of the brooding omnipresence.

Looking for the mystery behind the mundane could easily be the mark of madness.

When Jesus told stories, most of them seemed to appeal to common sense rather than to some advanced understanding. The Kingdom of Heaven is like a hidden treasure, a pearl, some seed on some soil, and things like these.

Perhaps the mystery is not behind the mundane, it's in the mundane. Isn't that incarnation?

Chief Justice Roberts

It takes a thoughtful judge to write judicial opinions that read like good prose. It takes a really bright judge to use devices like puns and antimetaboles to make a point clear.

But only a Chief Justice could have the sheer elegance to play on Latin words. Today, in criticizing what he considers to be a revisionist interpretation of death penalty law, the Chief Justice wrote:

Still, perhaps there is no reason to be unduly glum. After all, today the author of a dissent issued in 1988 writes two majority opinions concluding that the views expressed in that dissent actually represented "clearly established" federal law at that time. So there is hope yet for the views expressed in this dissent, not simply down the road, but tunc pro nunc. Encouraged by the majority's determination that the future can change the past, I respectfully dissent.

Tunc pro nunc? All you latin scholars out there are scratching your heads: isn't it supposed to be "nunc pro tunc," now for then?

But that's the play on words. Roberts says "then for now" on purpose, satirizing the majority's reasoning as ad hoc.

Let's all form our own opinions about the Chief Justice. We're all entitled to agree or disagree with him at will. But, dang, there aren't many smarter people out there.

(h/t Bench Memos)

Joel Scott Davis

Joel Davis, ladies and gentlemen, is the finest musician I know. And I know some fine musicians.

All of you should check out his music. Joel is going off to California to work on his grownup choral and instrumental compositions, but he is also a sick bassist (in the Sting mold), a sick guitarist, and a piano player of no mean skill. He is one of the few guys who can legitmately say he digs Arvo Pa:rt and the Doors. He is also rumored to have worked with a shadowy figure known as "David Brooks" on some very risky projects...

Check out his blog.

His idea of "the song I've always known" is something that he has talked about with me for years now. The song that the composer "discovers" is the musical analogy that goes along with Holmes's musings about the law being a "brooding omnipresence."

Joel, may we be on the same page, if not in the same city, forever. Bodacious Cowboys, such as yourself, will always be welcome here.

Your Worst Ever...

I took a class this semester called "Alabama Trial Practice and Procedure." It was awful. It was awful in a "The Office" sort of way. Our "professor" decided that, in lieu of teaching, it would be a good idea to assign every student in the class a section of the Alabama Rules of Civil Procedure and let the students teach. Seriously. She just sat there and said maybe 30 words per class.

It was worse than the blind leading the blind. It was like a bunch of blind people got together and hired a person who could see to lead them, and the seeing person shrugged and laughed while the blind stumbled around. I can't make this up. I have no idea how she thought that our combined ignorance was somehow going to be less than the sum of its parts.

Being mostly third year law students, we realized the futility of the class rapidly. We turned to the internet in vast numbers. People brought headphones and watched movies. Dedicated chatrooms were created to provide a commentary along the lines of Mystery Science Theater 3000 or Dave Barry's live blogging of 24. I tried to listen to the drivel, but lapsed in a sudoku-induced stupor most weeks. I don't want to exaggerate, but I would be surprised if there were more than 3 or 4 people (out of a class of 70) paying attention at any given time.

Last week, when the last student presented his lame presentation, our fearless leader (in full Michael Scott form) acknowledged that some mistakes were made and "the presentations were a kind of failed experiment."

Indeed.

Does anybody else have a brief story than could tell me that would make me feel better? Can anybody relate to me an exerpience that is so bad that it will make me willing to study for the exam I have coming up?

Definitions in Action, part 1

Blogger and runner extraordinaire Mary has given me a hard time on my occasional use of "big" words. Instead of deterring me from their use, she has incited me to beginning a recurring feature, the illustration of a "big" word in a humorous setting.

Today's word is arbitrage. It is a noun. It is the practice of buying some asset (usually marketable securities) and immediately reselling that asset in another market. Arbitrageurs are big time, hotshot Wall Street investment types, the Top Guns of stockbrokers. To be successful at arbitrage, you've got to really master the differences between markets and have a sense of which directions the different markets are heading. It's heady stuff.

But arbitrage is fun for you and me, too--mostly owing to the fact that people are lazier than they are smart. For example, a first edition copy of Cormac McCarthy's Pulitzer Prize-winning novel "The Road" is currently selling on Amazon for $14.40. On ebay, some enterprising chap is selling a first edition of The Road for $50.00 (Buy It Now for $85!). Amazon and ebay are different markets-- buying on one and selling on the other could be really profitable stuff, especially if you could delay shipping you ebay orders so that you wouldn't even have to order from Amazon until some joker paid you 5 times too much on ebay.

So now you know all about arbitrage. And you should also know that The Road is a pretty good book.

A troubling lingering thought

Since last Monday, I have been wondering how a guy can kill so many people with only a pair of handguns. I have avoided reading a "play by play" of what happened, so I am perfectly ignorant. This ignorance is important to what I have to say next, because I want to make perfectly clear that I am not only not judging the people at Virginia Tech but completely incapable of judging them. Remember, I blame the shooter.

But here's my troubling thought. Every time something like this happens, I, probably like most of you hypothetical readers, think about what I would do if somebody started shooting in a public place. I find myself repeating the terrible maxim "I don't know what I would do, but..." This is a terrible maxim indeed, because it makes cowardice the default position.

I need to think proactively, not passively. Think Flight 93 instead of the Ecole Polytechnique Montreal Massacre. And don't just think about mass shootings. How many of us feel like spectators in life? How many of us enjoy that feeling?

If I am going to run the gunfire (actual or metaphorical) when That Day comes, I have to think about it now. So, instead of saying that I don't know what I will do, let me say only that I know what the right thing to do is.

And knowing is half the battle.

The End of an Era

I figured up this morning that I have sat through about 10,350 classes in my lifetime. Number 10,351, my last, just ended.

What do I do now?

Piano

Like my house, my piano is quite old. I'm not real sure how old, but I think it was Melissa's great-grandmother's at some point. The piano lives at my house courtesy of my in-laws, who not only let us have it but hauled it up from the steaming plains of South Georgia this spring. Thank you!

I haven't had a piano in seven years, since I was in high school and living with my parents. It takes some time to get to know a new piano, especially if the piano is old.

New pianos are like many new things these days: they do just about anything you want them to just fine. Old things take a little more coaxing, but I think the process is rewarding.

I plunked out a couple of Sufjan songs last night and it made me happy. I'm not sure the sound was worthy of recording and I'm not sure the neighbors enjoyed it that much, but it's good to have a piano again.

Sufjan Stevens

If you read Melissa's Blog (and you know you should), you know that I am obsessed (in a healthy, heterosexual way) with Sufjan (soof-yaan) Stevens.

If you haven't listened to his music, stop and listen. With most music, even really good music, the first thing I notice is the sound of the instruments: Radiohead's newest oddities, The Edge's delay, Beck's juxtoposition of instruments. Alternatively, good songs have a riff or a hook that grabs my attention: Nirvana's Come as You Are, The 13 chord on Whitacre's "When David Heard," or the guitar riff on Wild Sweet Orange's "Ten Dead Dogs."

But Sufjan transcends that stuff. The first thing I notice are full blown melodies, fully developed and thought out. In constrast to most songs I hear (even good ones!) that really only feature one real musical idea stretched out for 3 minutes, Sufjan has many songs with four or five solid melodies. What amazes me in when, at the end of a song, he reveals that all the myriad melodies work together. The guy understands the guts of music, its anatomy, its chemistry.

And he understands that music is about beauty. Most of his stuff is quite easy to listen to and lyrically compelling.

Perhaps the most interesting thing about him is that he's a Christian. His music drips redemption and doesn't shy away from hard issues.

But he's so good that people argue that he's not a Christian. He could not be less Contemporary Christian if he tried.

Illinoise and Michigan are the albulms to start with. But don't stop there. Get Seven Swans and his 5 disc Christmas collection (it's only $20).

It's a Heavy Week

Man, this week has been tough. Being a shameless introvert, I find that my moods are primarily affected by current events.

If I stop to hear the sound of the sorrow of the world, I get overwhelmed.

Carhart II, one more time

When I said that today's partial birth abortion opinion was "big," I meant it. I just read one commentator at Scotusblog talking about what, if anything, is left of Roe v. Wade. While I certainly don't go as far as that commentator, we will be talking about this decision for a long time. The landscape of abortion jurisprudence has changed.

But don't go too far. Today's opinion only addressed one abortion procedure--Roe addressed every abortion procedure before viability.

I think the most lasting effect of this decision will be that states and pro-life litigators will become more active in testing the foundation of Roe. There will be a lot of abortion cases for the next few years. What, if anything, comes of those cases is still up in the air.

This Partial Birth Abortion Decision is BIG

As someone entering the legal profession (but not there yet) I don't feel comfortable offering my opinions on issues like this one.

But, even in the driest legal sense, my first reading of the partial birth abortion decision sounds a new note in abortion jurisprudence. I encourage you to read the decision (along with the concurrence and dissent).

What is so shocking to me is that Justice Kennedy, writing the majority opinion, goes to such great lengths to explain the various procedures at issue in the opinion. It is not for the faint.

Today at the Supreme Court: Brentwood and Partial Birth Abortion

If you have never been to scotusblog (and if the Supreme Court is interesting to you at all) you should check it out. I am amazing at how sharp these men and women are, and am humbled to learn that much of the analysis is done by people no older than I am. On the other hand, I can take pride in the fact that I almost certainly read more Calvin and Hobbes than they do.

Anyway, two things of interest are happening at the Court today. The first involves a subject dear to many of my Nashville friends' hearts, Brentwood Academy. Brentwood was sued by a state high school sports association because the association objected to some of Brentwood's recruiting practices: Brentwood gave free tickets to prospective athletes and sent them personal letters.

This gets really complicated. I'll do my best. I will try to use a "good for Brentwood / bad for Brentwood" mode of analysis.

Brentwood argues that its practices are protected as speech under the First Amendment and that the association is so similar and closely associated with local government that it should be considered an arm of the government (a "state actor"). Governments are held to much higher standards than private parties are, and Brentwood was able to convince the Court several years ago that the association is a state actor. All of this is good for Brentwood.

However, on the other side, the association argues that it is not a state actor, that Brentwood consented to the association's rules when it voluntarily joined the association, and that the association's conduct should not be too carefully scrutinized by the Court. (The Court has developed three levels of scrutiny which is uses to analyze cases. I won't explain them, but if the Court uses the easy one, the government wins. If it uses the hard one, the government loses. The middle one can go either way, but the government loses more than it wins. The association is arguing for the middle level, intermediate scrutiny). A couple of years ago, the Supreme Court had the chance to require the hardest level of scrutiny in the case, but it did not do so. All of this is bad for Brentwood.

There are four possible outcomes as I see it. The most simple is that the Court affirm the lower decision and Brentwood, which won at the first appellate level, wins. Alternatively, the Court could find some error in the appellate or trial courts and reverse, making Brentwood lose the battle but not the war. Let's call these the "minimal" solutions because they are pretty simple and only confined to the narrow issues.

However, the Supreme Court sometimes likes to rock the boat. If it chooses to revisit either of its earlier two decisions in this case, there could be some major changes. If it decides that the association is not a state actor, Brentwood (and lots of private schools) will lose something they think they are entitled to: some degree of protection from state schools in extracurricular activities. Alternatively, if the Court decides that strict scrutiny should apply to the association's conduct, Brentwood and the private schools win big time. To understand how big a deal this is, consider this fact: the government of the United States of America has intervened in this case to argue that intermediate scrutiny should apply.

I hope this clears things up a little for those of you who care. The Court should issue its opinion in June. I will hold on to my legal opinions for the time being, but in my heart you can hear, if you listen carefully, Go B.A. Eagles.

In much more serious news, the Court surprised a lot of people by upholding (5-4) the ban on partial birth abortion which was passed by Congress in 2003. The decision is, I think, the first ever to allow an across-the-board prohibition of an abortion procedure. I will read the opinion and talk about it later. I am sure you'll be hearing about it...

I blame the shooter

In light of what happened yesterday in Blacksburg, I know there will be finger pointing today. I should hope we will take time to remember that life is short and that our days are numbered. Remember the end, the brokenness of life, and groan for newness.

But if we must blame, do not forget to blame to bad guys. There will be a lot of time to improve campus security, argue about whether guns make our lives more or less dangerous, and uncover a conspiracy. Don't do these things yet.

Blame the shooter. Remember that he shot people and killed them. Call evil deeds evil. All the other people, the campus police especially, are on the side of good guys. If they made mistakes, we will have time to address those things. But one man determined to kill his peers and himself. Against him we have no real deterrent.

We live in a kind of compact with each other. When we pass on the road, I do not swerve to hit you. I don't poison you drink at mealtimes. I don't shoot you when I'm angry. You extend me the same courtesy. This man at Virginia Tech abandoned that compact.

How do you stop a man who wants to kill and to die? Are there enough police in the world to stop him? How do we approach society knowing that there are shooters out there?

Civil security is based on the idea that most people will abide by the compact. Statistically, this idea is sound. In particular cases, it is terribly false. The choice that faces us is to what extent we will continue to abide by the compact and trust one another.

Instapundit quoted Roger Kimball this morning. Kimball recalled a Roman historian (Publius Flavius Vegetius Renatus, a Roman Sun Tzu for those of you keeping score) who advised "si vis pacem, para bellum:" if you want peace, prepare for war. I believe that the Roman general was right, but I am not sure that I am willing to follow his advice. Perhaps peace and security are not our highest aims as individuals.

The Mind's Cry for Irrationality (or An Unconventional Method of Exam Preparation)

It is almost exam time for me, which means that my mind is starved for irrationality. The burden of memorizing these thousands of rules (with their exceptions and the exceptions' exceptions) is constantly trying to fuse my cerebelum.

What I need is a solid dose of irrationality. I need a novel- a good one. I am rereading The Lord of the Flies for starters, but I'll be done with it in no time. Does anyone have a good book suggestion?

Incidentally, I think that reading a novel is a great way to prepare for tests. By the end of the semester, I know that I have heard and learned everything I need to know for these exams I have upcoming. Instead of spending all my time relearning, I think it is wise to spend a good bit of time learning how to remember. Nothing gets my mind working in peak condition like reading a good novel. Good writers know how to evoke powerful memories from all over the brain.

This Happened Sooner Than I Expected

Terry Moran has recently written an article about how he doesn't "feel too sorry for the dukies." I really have a hard time with his line of reasoning.

First of all, I bet that even those of you who haven't read his article know what he said: blah blah money, blah blah privilege, blah blah good lawyers, blah blah white kids, blah blah they are all jerks anyway. While I am certainly of the opinion that people who don't hire strippers seldom get accused of raping strippers, it is hard for me to stomach Moran saying that these guys earned what they got. And even if they are privileged jerks, they are not especially privileged or especially jerk-ish.

But they are different in one huge way, and it's a way that Moran ignores. These boys were tried and convicted in the court of public (read: media) opinion on the barest of accusations. Moran argues that we should not feel too bad for these boys because prosecutors go on vendettas all the time and these boys were lucky enough to get out from under the charges against them. Most less privileged victims are not so fortunate. We can argue about whether Moran's facts about prosecutorial misconduct are correct, but the vast majority of the falsely accused never have their alleged crimes bandied about in the media for a year. Most of the falsely accused don't have their professors start organizations that openly antagonize them. Most of the falsely accused will not be instantly known as the "[place] [verb]ers" ("Duke rapists" in this case) forever and everywhere.

This alleged crime fit a mold that many people, including many people in the media, wanted to highlight. This whole prosecution was never about these boys. It was about all the blah blah blahs.

The problem is that, while the blah blah blahs may or may not be true for the country at large, but these boys did not commit any crimes. Why not be on their side? Is every person at Duke a scumbag who only deserves whatever rights a $400 per hour attorney can secure for them, or are they entitled to human rights as well? Let us be glad that justice was done in this case and seek to do justice in every other case as well.

I fear that our country's media has embraced the idea of "false but accurate." Don't buy it. Feel sorry for all, including the falsely accused, who suffer unjustly. Do justice to individuals, not disembodied classes or races. Love all people, even those of us who committed the crimes for which we have been accused.

In a story, the characters must yield to the theme.

In real life, the characters last forever and the media is gone by the bottom of the hour.

Stewardship and Housing

I've been stewing over an idea for a while. The house that Melissa and I bought last year was built in 1915. 1915! That's older than any of my grandparents. I can't believe how many people have lived in this house over the last 97 years.

A dear friend of ours has done some research on our behalf and discovered who many of the early occupants of our house were. It is odd for me to think about all these people living in our house. Where did they put their bed? How big was their dining room table? What color did they paint the walls? Did they have a garden? A car? And, even more interesting, what would they think of the way that we are treating the house? Do we park our cars where their kids used to play? Have we done something totally wrong?




These questions fascinate me. I grew up in houses where I felt like nobody had ever lived in other than my family. The houses seemed like blank paper on which we wrote and drew our lives. I simply cannot see our "new" house as a blank paper--at most, we are getting to scribble in the margins.



The real thrust of this line of thinking has made me think about how fleeting life really is. If all of these people have lived in this house before me, it seems likely that a whole bunch will live there after me. Our thinking about our house has to change to fit that model. Instead of seeing our house as something we are slowly consuming, we have to see it as some kind of trust given to us. We hold it as stewards. When we leave, others will take it. Will it be better than it was when we got it? Will the soil be better for gardening? Will the foundation be stronger or weaker? Will the roof leak? Will the windows and trim be painted with precision?

I love the idea of stewardship. May we all aspire to take better care of those things and those people entrusted to us

The Best Blog in the World

Every day, we are allocated only so much time to waste on the information superhighway. If you haven't spent yours today, go visit Melissa's Blog. While I may be slightly biased, I think that there is nobody who sees the world quite as perfectly as Melissa does.

Morality and Iranian Hostage Taking

I was thinking about the Iranians today. I don't have a good box to put them into. Seriously-- they do stuff that I thought was reserved for Jack Bauer. Recently, they kidnapped 15 British soldiers in Iraqi waters, held them for a few days, and released them. Right after that, they annouce that they have a full-fledged nuclear fuel industry. All the while, the British people are comparing Iranian morality to British morality and finding Iranian morality to be superior.

Here's an article on that subject. I found interesting.

While I agree that a culture with a moral anchor (i.e., Iran) will maintain its morality longer than a culture without an anchor (i.e., England), it does not follow that any morality is better than none at all. Amorality is, to my view, a huge problem facing the Western world, but it is not the only problem. There are moralities that are worse than amorality. The morality of kidnapping, for instance, is worse.

Morality is not good in and of itself. Only good morality is good (yes, I know that this argument is circular) and there are plenty of bad ones. Amorality is merely nothingness, but zero is higher than a negative number.

So let's be careful about praising morality for its own sake.

An interesting Saturday

Oh that my heart would long more and more for tomorrow! Oh that I might live in the eternal light of the day that breaks tomorrow!

It blows my mind that even if the world lasts for a thousand millinea more, we will always look back at what happened on Easter Sunday as the greatest event of all time.

An Ode to Ben Folds

I drove to Atlanta last night with my wife and little sister. The drive was disorienting to me, even though I've driven it at least a hundred times. A Red Bull did me no good. I couldn't get comfortable. I needed something to lock me in...

Enter Ben Folds. Wherever you are, Ben, thanks for being a fine musician. Besides the quality of your piano playing, you have mastered something even more impressive. There is one thing that you do better than anyone else I have ever heard in my entire life. Seriously.

Nobody pulls off the casual cussword better than you, Ben Folds. Nobody.

We were "rocking the suburbs" on I-20 last night. Zac and Sara--brilliant. Fred Jones pt. 2-- moving. Fired--best of all. You are the man. Is it fun to be the man?

The Titanic

Some guy has uncovered the Titanic conspiracy! Oh my gosh! How do we sleep at night!

The mockery of Christ

I am very thankful for this article by John Piper about the willingness of Christ to be mocked. It makes Him different.

Two things make this subject timely to me. First, more than any other week, this week exists for us to remember the suffering of Christ--both his physical and his spiritual sufferings. Let us remember His nature and earnestly seek the grace to be made more like Him--"... becoming like Him in His death and so somehow to attain to the resurrection of the dead."

Second, I am always puzzled by the way that Christ seems to be singularly mocked today. I shouldn't be, but I am. Have you seen "My Sweet Lord," the chocolate statue of Christ which was on display in Manhattan last week? What, if not the work of Spirit, makes a person respond to Christ in such a way that he makes a chocolate statue of Him? There has got to be something deeper going on.

A closer look at the EPA decision

For a nerd like me, this case is really interesting. Let me see if I can bring you along.

If you want to sue somebody, you have to have some kind of injury. The legal term is "standing," as in "you have to have standing to sue." The federal courts usually apply a test something like "a plaintiff must allege [an actual] personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." There are several elements to this test for standing--actual personal injury, traceability, redressibility. Personal injury is the most tricky of the elements because courts usually require that injuries be somehow unique or special to the plaintiffs- i.e., injuries shared by everyone or a huge class of people don't give rise to standing. Injuries also have to be relatively certain and not purely speculative.

In EPA, the Court apparently had some new standing ideas they wanted to share with us. Massachusetts claimed that the EPA's refusal to regulate carbon dioxide as an air pollutant caused global warming, which in turned caused the sea to rise, which then caused Massachusetts to lose coast lands. The state estimated that it waters could rise as much as 70 centimeters by 2100, causing an injury to the state. The Supreme Court accepted that the state had standing.

Chief Justice Roberts took the court to task in his dissent, pointing out that global warming doesn't harm Massachusetts in any particular way, that the models predicting rising ocean levels are both incomplete on their own terms and fail to take account of all relevant factors, that the relief sought by Massachusetts (having the EPA regulate new cars and engines only) is so narrow that no scientist believes that any regulation could possibly change the presence or pace of global warming, and that the opinion ignores the greenhouse emissions of the rest of the world. Needless to say, the Court's standing analysis is novel and presents serious problems to those of us who try to assimilate these opinions into cohesive doctrines.

If anything mitigates the flaws of the standing analysis, it is the fact that Court relied heavily on the fact that Massachusetts, as a state, can have "special solicitude" not available to ordinary citizens. States can have "quasi-sovereign" interests, meaning that they can have interests that underlie the interests of the citizens of those states, i.e., a state has a quasi-sovereign interest in its lands, even if the state does not own the land, because the state has a kind of title in the land. Alabama therefore has quasi-sovereign interests in Alabama land against out-of-state polluters or trespassers.

It is important to note that the Court apparently changed the quasi-soveriegnty standing analysis as well as the normal standing analysis because quasi-soveriegnty standing has traditionally allowed states to have standing only where that state's citizens have standing--the state stands in the shoes of its citizens. But, as noted above, traditional standing analysis would suggest that nobody has standing. Furthermore, the Chief Justice noted that states have never before been allowed to claim their quai-sovereign interests against the federal government because the federal government presumably has the same interests as the state.

Quasi-sovereignty does not come up all that often (the Court went back to 1907 to find the exemplar case) and therefore I hope that this special solicitude analysis will not be often applied.

Should the Court choose to loosen standing generally, everything I have learned in my federal courts class will be instantly obsolete.

Standing is important. Courts exist to solve disputes (short for "cases or controversies") between parties. "Disputes" comprise a subset of "problems." If too many "problems" become "disputes" because of weakened standing requirements, courts get too busy and become involved in addressing issues for which they are less and less compotent. Legislatures are much better at solving problems.

A Busy Day at the Supreme Court

The high Court has been busy today. Here it denied to hear an appeal by some Guantanamo detainees until they have exhausted their remedies under the Military Commissions Act of 2006.

And, in other news, here is the Court's opinion in Massachusetts v. EPA, in which the Court found against the government and gave the EPA jurisdiction over regulating carbon dioxide. It seems that a five-vote majority was willing to bend the administrative procedures in order to reach what it considered to be a necessary result. The four dissenters seemed more focused on procedures.

I haven't read the EPA opinion yet, but I have read the denial of certiorari. I'll have a more complete breakdown later.