Busy

Not posting because I'm busy.

Also, I'll be busy all weekend. Day trip downashore one day and a family thing in the outer 'burbs another day. In order to fit all that in, I'm having to front-load my bar prep study assignments this week.

Will try to post more later, and hopefully not just "after the bar exam" later.

Driberally tonight

Drinking Liberally is a weekly social gathering where progressives talk politics and get to know one another. In Center City Philadelphia, we meet on Tuesday nights at Triumph Brewery's upstairs bar, where there are drink and food specials from 6:00 to 9:00 p.m. I hope to see you there!

Triumph Brewery is at 117 Chestnut Street in Old City. It's conveniently SEPTA-accessible via the Market-Frankford El (2nd Street station), all the buses that turn around at or near Penn's Landing (5, 12, 17, 21, 33, 42, 48), and a few other buses that pass nearby (9, 25, 38, 40, 44, 47, 57, 61).

This week's topic: Tonight we're giving our bartender a hearty send-off as he leaves for a brief vacation before starting (gulp) law school in late August -- and a hearty welcome to the new kid as well.

"Come for the beer, stay for the check"

Robert McNamara, 1916-2009

Good riddance to war-mongering, conscience-comes-late rubbish.

Happy Independence Day!

Off to the 'burbs for the day.

I don't know what to wear.

What would Thomas More do?

Were you curious to know exactly why the dean of Villanova Law abruptly resigned this week?

Police investigating a prostitution ring in Chester County relied on two customers, including the dean of Villanova Law School, to provide information that culminated last week in a no-contest plea by the man promoting the business, documents show.

Mark A. Sargent, who was appointed dean in 1987, resigned suddenly Monday, citing personal and medical reasons.

According to a report by the Pennsylvania State Police, Sargent was a customer at a Kennett Township house suspected as a site for prostitution when police raided it Nov. 25. He was not charged.

Classy! He's married, he's Catholic, and he's a co-founder of a blog on Catholic legal thinking. Here's what the police caught the married, Catholic, legal scholar doing:

Sargent paid [one of the defendants] $170 for 35 minutes of sexual contact between noon and 1 p.m. on Nov. 25, according to the police report. Sargent said he saw an ad on Craigslist, "got curious," and responded to it, the report said.

Yeah, right, "got curious." He'd heard of the Craigslist on the Internet, and he was curious to know if those news stories about the sex ads were really for true. And then he just happened to decide to drive 30-odd miles from Villanova to somewhere in darkest Chester County for lunch a couple of days before Thanksgiving.

In any event, however implausible his "how'd that happen" defense, he's not going to be prosecuted. Apparently, in most prostitution cases like this one in Pennsylvania,

[c]ustomers are not charged or identified in prostitution busts. [Rather,] authorities use them to build their case and they often testify if the case goes to trial.

And in fact, Sargent was treated with kid gloves when he was arrested:

"If you watch the taped interview, the police are almost apologetic with this guy," [alleged pimp Stephen] Clark said of Sargent. "They told him, 'You just happened to be in the wrong place at the wrong time,' and they agreed to contact him at his office, not his home."

And as for the woman whom Sargent paid for a half-hour of sex, she pleaded guilty and got 8 to 23 months.

From Villanova Law's mission statement:

Villanova is rooted in the Catholic tradition that emphasizes the unique value of individual human lives and our endowment with free will. It inspires us to provide a professional education emphasizing honesty, integrity, and responsibility. This aspect of the tradition is embodied in St. Thomas More, whose figure graces the main entrance in Garey Hall, and whose principled resistance to corruption has been an exemplar of integrity for centuries.

What does this mission statement mean to Sargent? Well, a few years ago, when asked to justify Villanova's not providing fellowship money to law students doing pro-choice legal work, he declared, "[Villanova Law's] Catholic identity is not casual, sentimental, or merely historical."

I never did get around to reading Utopia. Maybe I'll put it on my reading list for August.

If I had an iPod I would be listening to this constantly

There's nothing to the video at all; just listen:

If I took the bar exam today, I wouldn't pass it

To tell the truth, about the only thing carrying me through bar exam prep at the moment is my personal acquaintance with at least one deeply stupid, socially dysfunctional knucklehead who passed the Pennsylvania bar successfully on the first try (recently, after they made the exam harder than it used to be).

Further details about Knucklehead, Esq., omitted, though I'm almost certain they don't read this blog.

I'm happy that I still have a month before the bar exam. I wish I had more than a month, even though I've been keeping up with the assignment schedule -- and the housework, surprisingly.

But enough whining. Time to head off again to the bar prep salt mines. I really, really don't want to have to take this lousy exam twice.

Driberally tonight

Drinking Liberally is a weekly social gathering where progressives talk politics and get to know one another. In Center City Philadelphia, we meet on Tuesday nights at Triumph Brewery's upstairs bar, where there are drink and food specials from 6:00 to 9:00 p.m. I hope to see you there!

Triumph Brewery is at 117 Chestnut Street in Old City. It's conveniently SEPTA-accessible via the Market-Frankford El (2nd Street station), all the buses that turn around at or near Penn's Landing (5, 12, 17, 21, 33, 42, 48), and a few other buses that pass nearby (9, 25, 38, 40, 44, 47, 57, 61).

This week's topic: Almost a full week later, I'm still trying to understand why Justice Clarence Thomas thinks that it's perfectly acceptable for a male vice-principal to strip-search a 13-year-old girl at school on an unverifiable, anonymous tip that she's carrying ibuprofen (PDF).

"Come for the beer, stay for the check"

Speaking softly and carrying a big stick

The U.S. Air Force has had a successful ICBM test from Vandenberg AFB to an atoll off the Marshall Islands -- which is conveniently about the same distance between Vandenberg AFB and North Korea.

On clothes and dates

It has been not-so-gently suggested to me that I might have more luck getting laid if I would only dress better.

In my defense, it's a lot easier to dress well when one has an income. I haven't had an income for a while, but if I remember correctly income is a situation where you "trade" your "time" and "work" for "currency," which you can then "exchange" for "goods and services" provided by other people. And, in the process, the numbers on your bank statement do not continue to dwindle and go to zero, so long as you "save" more of this "income" than you "exchange" away.

But until I have an income, I'll be making do with ill-fitting jeans, hand-me-down shirts, and D.I.Y. haircuts.

And maybe that's a vicious circle, too -- I'd be more appealing to a potential employer if I had more than 2 suits that fit me, and if the suits I have were better styled and tailored. Let's just say that I'm on a "banana republic" budget right now.

Anyway, I have a long history of dressing badly, and if you think my hair looks crazy now, you didn't know me in the 1980s. Childhood snapshots of my family generally show me wearing pants that are too large, a shirt that is too small, and a hairstyle that looks like a dead muskrat stapled to my scalp. When I was an undergrad, my uniform was jeans, a t-shirt with a tea stain toward the front hem, and a rolled-up bandanna holding my hair back. At least nowadays I know how to use black clothing, spandex, and hair product, and I can blame the pot belly on pregnancy.

Speaking of which, have you actually been shopping for women's clothes lately? What the hell is up with these maternity-looking shirts? Hanger after hanger of them, and hung up all over display windows. Blouses, frilly sleeveless tops, even professional shirts all have extra pleats in the front, I guess to cover up how fat American women are becoming. Folks, I didn't look good in maternity wear when I was pregnant, let alone now. Ugh. It makes me want to go back to wearing jeans, tea-stained t-shirts, and bandannas.

And I think the lack of dates is more due to my abrasive personality, and the fact that I have a kid at home, than my wardrobe, really. But on the off-chance it helps, a few days ago I went out and got some new-to-me summer clothes for myself from the upscale consignment shop down the street. Then I came home and put a slightly greater quantity of clothes in bags to donate to a charity thrift shop.

Classes I'm glad I took in law school

Classes I'm glad I took in law school, so that I'm not looking at the material now for the very first time:

• 1st Amendment
• Employment Discrimination
• an upper-level contracts course
• 1st Amendment
• Corporations, Partnerships, Agency Law
• Trusts and Estates
• 1st Amendment
• Entertainment Law (invasion of privacy torts)
• did I mention 1st Amendment?

I wouldn't say that Administrative Law was a complete waste of time. I don't think Chevron is going to show up on the bar exam, but being able to explain why and how the FDA can suddenly regulate cigarettes can be handy at parties. The kinds of parties I usually end up at, anyway.

Because, really, that's the only reason anyone goes to law school: to be able to tell people what to do when they get pulled over for speeding but there's a nickel bag in their pocket, or whether they should go ahead and declare bankruptcy, or explain the finer distinctions between warrantless wiretapping, legal eavesdropping, pinhole video surveillance, and closed-circuit security cameras.

Does anyone even say nickel bag any more?

Tonight at Fergie's: the Dill Pickles

For the best in old-timey fiddle tunes and jug band stomps, head to Fergie's tonight, Friday 26 June 2009, 6:00 to 8:00, to see The Dill Pickles! Fergie's is at 1214 Sansom Street in Philadelphia.

Free! No cover! Buy [me lots of] beer and tip the bartenders!

Profoundness: on practice bar exam questions

Snakes on a Plane: actionably negligent aircraft design or unforeseeable intervening force? (For those of you playing along with Pennsylvania Bar/Bri, it's question #14 in Torts Set 2 in the MPQ1 book.)

This must mean that law school has come full circle for me now. I went and saw Snakes on a Plane at the Bridge with friends for my birthday a week or so before orientation in 2006.

Driberally tonight

Drinking Liberally is a weekly social gathering where progressives talk politics and get to know one another. In Center City Philadelphia, we meet on Tuesday nights at Triumph Brewery's upstairs bar, where there are drink and food specials from 6:00 to 9:00 p.m. I hope to see you there!

Triumph Brewery is at 117 Chestnut Street in Old City. It's conveniently SEPTA-accessible via the Market-Frankford El (2nd Street station), all the buses that turn around at or near Penn's Landing (5, 12, 17, 21, 33, 42, 48), and a few other buses that pass nearby (9, 25, 38, 40, 44, 47, 57, 61).

This week's topic: The canceled then uncanceled then canceled meeting with the neighbors has been uncanceled again. If I make it tonight, I'll be really late. See you next week!

"Come for the beer, stay for the check"

Bar exam study notes to self

A preliminary list of things I've learned while studying for the bar exam:

- Don't sign over the deed to your house to someone and then toss the document in a desk drawer. Unless you don't like your heirs and you're trying to cause them problems.

- When you buy some real estate, get insurance on the property that takes effect upon signing the contract of sale -- don't wait until closing. You're just inviting a month's worth of arsonists, earthquakes, and tidal waves.

- When 2 neighbors are talking by the fence, the one who thinks he should win loses.

- Get it in writing and "record," whatever that means.

RSS mechanism appears broken

Stuff is not getting propagated via the RSS feed mechanism. Dunno why -- maybe you should just affirmatively check in here once a day or so rather than rely on your feed aggregator.

I'll see if I can force it somehow, but I'm kinda busy doing other things lately.

Friday jukebox: G-Love and Special Sauce

I'm pretty sure these guys are too young to know "East River Drive," but this tune cracks me up anyway.

Laurence Tribe: "Calm the fuck down, anti-DOMA people"

So DoJ filed a brief in the 9th Circuit urging that Smelt v. United States be dismissed, and anti-DOMA activists are upset at this perceived betrayal by the Obama Administration. But Laurence Tribe figures that it's not that President Obama wants DOMA to stand. Rather, he sees DoJ's move as strategic: Obama doesn't want DOMA to go to the Supreme Court on this case, because the plaintiffs aren't nearly as well situated legally as the ones in Massachusetts:

A strategic Justice Department interested in a litigation strategy that has some realistic chance of success certainly would not have taken [the Smelt] case as the one in which the constitutional vulnerabilities of DOMA should be explored.

Bad cases make bad law, people. No matter how strongly you oppose DOMA, you really, really don't want the Supreme Court to get their hands on Smelt.

Comments making puns about fish are not only welcomed, but encouraged.

Anyway, here's an interesting paragraph from the brief:

When States began to consider adopting historically novel forms of marriage, Congress took a wait-and-see approach. It codified, for purposes of federal benefits, a definition of marriage that all fifty states had adopted (i.e., that between a man and a woman) and continued to accord financial and other benefits on the basis of that historical definition. At the same time, it cautiously declined to extend federal benefits on the basis of a newer definition of marriage that no States had adopted at the time of DOMA's passage (and only a very small minority of States have since). Thus, by defining "marriage" and "spouse" as the legal union of a man and a woman and affording federal benefits on that basis, Section 3 of DOMA simply maintained the status quo: it continues the longstanding federal policy of affording federal benefits and privileges on the basis of a centuries-old form of marriage, without committing the federal government to devote scarce resources to newer versions of the institution that any State may choose to recognize.

Does that sound to you as if the Obama Administration is saying, "Dear Congress, please repeal or amend DOMA, and I'll be more than happy to sign a new federal definition of marriage into law"? 'Cause that's the vibe I'm getting from that paragraph, myself.

Here's some bad news for the plaintiffs, if it's true (I haven't read the complaint, though):

Plaintiffs fail to allege that they have ever applied for any federal benefits that are available on the basis of married status -- let alone that they have been denied any as a result of DOMA.

D'oh! No harm, no standing! No standing, no jurisdiction! So kick it out of court without even addressing the merits, which would be great for the President.

You should feel free to download the brief and read all 54 pages for yourself, because I'm going to do only a short wrap-up of it right now.

The plaintiffs are arguing equal protection. When you make an equal protection argument, you're saying that Congress has passed a law that identifies a certain class of people and treats those people differently from other people, and that the way the law does it is not allowed under the Constitution. Congress has to articulate a really, really good reason for the discrimination, and the law has to be very closely drawn to address Congress's articulated reason. And if the law involves a fundamental right (e.g., privacy, raising and educating your children, free speech), then the law is almost certainly unconstitutional. In the context of this case, for plaintiffs to have DOMA declared unconstitutional, they need to get the Supreme Court to agree with their view that same-sex marriage is a fundamental right.

Now, I agree with that view, and you agree with that view. But right now, the Supreme Court doesn't agree with that view. So if Smelt gets there, even with Judge Sotomayor on the bench, the risk is that the Supreme Court will affirmatively declare no fundamental right for same-sex people to marry. Then DOMA will go away only through Congressional action; states with constitutions that will allow it will be able, under the U.S. Constitution, to enact restrictions on same-sex marriage, and feel welcome to do it; and progress toward recognition of same-sex marriages and full equality for gay people throughout the country will be set back for years, if not decades. I think it would even open the door to reviving the Federal Marriage Amendment. Jesus christ on a pogo stick, people.

So I agree with Professor Tribe's view. Let Smelt get dismissed with prejudice, and let's find a better case and wait for a better bench.

Now I'm picturing a POSITA of glass dildos. Actually, no, I'm not.

Patent law treats the word obvious with a meaning specific to that area of law. It means that, if you look at a particular device (patented or unpatented) and figure you could improve it, you can't get a patent on your invention if someone familiar with the original device's industry or science would have thought that your improvement was straightforward and predictable. The rationale here is that patent law rewards innovation. So if your improved device isn't new enough, you don't deserve the monopoly that patent law awards to truly innovative inventions.

A very good way to show that your invention was not obvious is to find relevant scientific literature that "teaches away" from the way you solved a particular problem. So, for instance, if you find a textbook that says "you can never make a battery with these chemicals," but you make a perfectly functional battery with those very chemicals, you can get a patent for your battery. But, on the other hand, if other people have used something to solve a problem, and you're just changing out some basic materials or components or techniques, your solution -- even if it's an improvement over the state of the art -- is likely not worthy of a patent. Science ever advances, you see, but not all of it is patentable.

Sex toys, including dildos, can be patented (NSFW, NSFW, and NSFW, just to name a few). And you can buy a dildo made out of glass (NSFW). And we all know that, if your improvement to a device is innovative enough, you can patent your new invention. So the question presented in Ritchie v. Vast Resources, Inc. was, can a new glass dildo be patented as new 'n' improved, if we make it out of Pyrex?

Judge Richard Posner, sitting specially on the Federal Circuit, says no: making a dildo out of Pyrex rather than glass is too "obvious" to make the new dildo patentable (PDF, NSFW, especially if your workplace would ban the word lubricious). It's not enough of an innovative change; it was merely a novelty and a predictable variation in the, uh, market sector of glass sex toys.

It looks as though the patent holder argued that Pyrex isn't just smoother ("more lubricious") than ordinary glass, but it's also better than ordinary glass because it's resistant to electricity . . . presumably a desired quality for dildos in some people's bedrooms. I, uh, wouldn't know about that.

In closing, I'll paraphrase KSR v. Teleflex, 550 U.S. 398 (2007):

The proper question to have asked was whether a [dildo] designer of ordinary skill, facing the wide range of needs created by developments in the field of endeavor, would have seen a benefit to upgrading [glass dildos] with [Pyrex].

(I don't have the U.S. Reports pincite for that paragraph handy, but it's near the end.) It's difficult to get a patent declared invalid; there's a heavy presumption in favor of the Patent Office's decision to award one in the first place. Judge Posner did it in 6 pages.

Driberally tonight

Drinking Liberally is a weekly social gathering where progressives talk politics and get to know one another. In Center City Philadelphia, we meet on Tuesday nights at Triumph Brewery's upstairs bar, where there are drink and food specials from 6:00 to 9:00 p.m. I hope to see you there!

NOTE: This week we will meet at Triumph, but not at the upstairs bar. Please check in at the host stand to find out where we are meeting! Next week, we'll be back upstairs.

Triumph Brewery is at 117 Chestnut Street in Old City. It's conveniently SEPTA-accessible via the Market-Frankford El (2nd Street station), all the buses that turn around at or near Penn's Landing (5, 12, 17, 21, 33, 42, 48), and a few other buses that pass nearby (9, 25, 38, 40, 44, 47, 57, 61).

This week's topic: Death to all software patents (PDF)! But sadly it looks as though I won't be able to attend and bore you with my views on the unpatentability of computer software, because last week's meeting with the neighbors has been rescheduled for tonight.Uncanceled meeting is canceled again. (If that doesn't sound like a LOLcat, I don't know what does.) This means you get to hear me expound about software patents . . . a sad state of affairs that you can prevent by buying me drinks.

"Come for the beer, stay for the check"