Begging The Question

Thursday, June 03, 2004

Update on Old Business
I just wanted to give a nod to the gang at SCOTUSBlog for keeping me apprised of the most recent developments in a couple of cases I've been watching.

A few months ago, I discussed a case asking how the Americans with Disabilities Act applies to stadium-style movie theaters. The Justice Department has been suing cinemas based on its interpretation of the ADA that wheelchair-bound patrons have to have access to seats with lines of sight comparable to everyone else in the theater, including the higher rows of the stadium. A theater petitioned for cert after losing in the Ninth Circuit. The issue is largely one of administrative law, depending on how the ADA implementing guidelines are interpreted, but there's a lot of money at stake. The Sixth Circuit agrees with the Ninth, and the Fifth Circuit disagrees. Anyway, SCOTUSBlog informs me that the Solicitor General has filed a brief recommending that the Court deny cert, depsite the circuit split. The SG says that pending amendments to the implementing regulations should clear it all up. (There are some other reasons the SG gives for denying cert, but that's the big one.)

Also, I posted here and here on RLUIPA cases, which I find fascinating. That RLUIPA site has plenty of info on other cases, too. Well, SCOTUSBlog discusses here and links here to the SG's brief recommending granting cert in a Fourth Circuit case involving a prisoner RLUIPA suit. There's a circuit split here too.

My bet, because it's always the safe one, is that the Court will follow the SG's recommendations in both cases. In any event, I'll be watching the order list.

Wednesday, June 02, 2004

Milbarge At Large (bad language edition)
What I am doing at work: One of my favorite things: getting paid to read. There may be no better example of how big a law nerd I am than the fact that I consider our free subscriptions to the U.S. Law Week and the Criminal Law Reporter to be among the best perks of my job. These are both weekly newsletters from BNA giving summaries of recent court decisions and a little analysis here and there. The Law Week's coverage is general, and the CLR is one of several specialized publications BNA does. It's relevant for us because we do so much criminal law stuff. We also get some monthly and quarterly newsletters, but these are the biggies. We're expected to read them and keep abreast of what's going on in the legal world. When I was in law school, I subscribed to the Law Week, and now I get it for free! And it's just fine for me to read it during work hours! Kick ass! So, my copies have piled up and I don't feel like doing much heavy lifting on my caseload, so I think that after lunch I'm going to put my feet up and read a little.

What I am doing at home: See this post about me joining a gym. That's been the big news. I'm also starting to sort through my books to see which ones I will take with me when I move, which ones I want to hold on to but don't need to take with me (they will probably end up at my dad's house), and which I can sell to the used bookstore.

What I am reading: The Fuck-up by Arthur Nersesian, the chronicle of a hapless slacker in the bowels of New York. It's odd, but fun. Also, Stiff: The Curious Life of Human Cadavers, by Mary Roach, which I have just started, but seems fun as well.

Two book-related questions while I'm on this topic. First, has anyone read Blue Blood, a book by an NYPD officer about his life on the job? If so, recommended? Wait for the paperback? Second, should I feel guilty for wanting to read Pledged? Maybe I'll just wait for the movie. Come to think of it, I think I've already seen that movie.

What I am watching: Fitz turned me on to a weirdly comic movie called The Survivors, starring Robin Williams and Walter Matthau. I was skeptical, because I am no fan of Robin Williams. But I liked this film a lot. Williams and Matthau are both down-on-their-luck mopes who witness a robbery and are targeted by the robber, Jerry Reed, who is also a mob hit man. Reed swears to kill them, and Williams takes to the mountains to join a survivalist camp in Vermont. I know it sounds crazy, but it mostly works. And I'll say to anybody to will listen that Jerry Reed is a good actor, and makes a good bad guy. Exhibit A: Gator. Reed was simply excellent there. In fact, I'm nominating Jerry Reed as the perfect actor to be Quentin Tarantino's next comeback discovery, like Robert Forster in Jackie Brown.

I've actually watched very little in the last few weeks, but I did catch Things to Do in Denver When You're Dead, which I always like seeing. It has one of my favorite movie lines, when the Jack Warden character is talking to whoever will listen in the malt shop: "Did I ever tell you about Jimmy the Saint? Oh, in his day he was the bitch's bastard." One day, I want them to say that about me.

What I am listening to: Inspired by a comment I'll never find on a blog I can't recall, my Mighty Mighty Bosstones album, "Live From the Middle East." I think my favorite tune is "The Rascal King," but the more famous singles of theirs are damn catchy. Also, my Ramones album, "Mania." The reason I had the Ramones on my mind was because I've been listening to Little Steven's Underground Garage, the radio show by the E Street Band member and Sopranos co-star. I read in an interview that the hub of his show is the Ramones. He plays a lot of their stuff, stuff from bands that influenced them, and stuff from bands influenced by them. And there's a lot of fun songs you'll never hear on the radio otherwise. Check local listings, as they say.

What I am thinking about: Well, I was thinking about what John Kerry's "Sister Souljah moment" was going to be, assuming he has the guts to make one. Publius thinks it will be, or should be, Ralph Nader. I was thinking Michael Moore. But my real bet is that he won't have one at all.

But anyway, I got to watching some of the Stanley Cup finals. I don't really care much for hockey during the regular season, but playoff hockey is a horse of a different color. It's tense and taut and compelling. The refs (usually) swallow their whistles, and there's (usually) little fighting. In many ways, a good Stanley Cup finals game is like watching a pitcher try for a no-hitter in baseball. The whole thing could be over at any moment, and at the end the winners are relieved as much as joyous.

So, I got to thinking about why hockey isn't more popular in America, which got me thinking the same thing about soccer. I don't think the answer is simply that it is low-scoring, because other sports are low-scoring as well, but I think that's part of it. Part of it is that these sports are transplanted, and not homegrown, but that hasn't stopped the popularity of golf. To the novice, the rules and strategy can be difficult to understand, but that's true of other sports. I'm not sure what the answer is to this. I'll be giving it some more thought and see if I come to any conclusions. I will say that my long-standing proposal to make soccer more popular is to use a smaller field (like the size of the indoor field), and shrink the goal to about the size of a hockey goal, and take away the goalie and the offsides rule. Institute a rule like basketball's three-second rule to prevent defenders from becoming de facto goalies. Anyway, Major League Soccer can have that plan for free. I think another big factor against hockey and soccer is that they don't have the regular stoppages of play that most American sports do, but neither does auto racing, and look how popular NASCAR is. Maybe the key is that none of these alone is sufficient to explain why hockey and soccer aren't more popular, but together they're enough. Anyway, more on this at a later date.

Peeve of the week: My peeve this week is people who hate carbs. So, it's really more of an anti-peeve, because I love carbs. I adore them. As Mary would say, I llluuuuuuurrrrvvvee carbs. I want to marry them and have like ten million of their babies. (American Beauty reference) So you say they're going to kill me? Whatever. I joined a gym, so I'm squared away, folks. I'm just living my life and waiting for the pill that will make all these carb worries go away. Until then, I think I'll have another bread sandwich with a side of fries.

Links of the week: Good luck to Sherry as she tries to figure out what to do with her life after leaving her job. See here and here and here and here for her ruminations.

Eric Muller has been all over the issue of who in the Justice Department and specifically the Office of Legal Counsel and the Solicitor General's Office knew what, and when, about abuse of prisoners in Iraq. It makes for some very interesting reading. See here and here and here and here and here and here and here and here and here and here and here (I think I got them all, and in chronological order, but my apologies if I missed something).

Finally, I added some new sites to my blogroll. I play around with it every once in a while, but I really do try to keep it updated with blogs I'm actually reading, if not as often as I'd like. Anyway, Lone Star Expat (my latest blog crush) and Soup's BBQ & Day Care and Will Work for Favorable Dicta are three I had been reading via Fitz's links and I just got tired of scrolling down. Sua Sponte was one I had been reaching from somewhere else, but I was reading it enough that I wanted my own link. Those four are fun and interesting and well worth your time. And, in an effort to see what is going on around the country, I added a few blogs I like that focus on specific areas, although they aren't always confined to those places: Abstract Appeal covers Florida and the Eleventh Circuit, Criminal Appeal covers California and the Ninth Circuit, Direct Appeal covers the Tenth Circuit, Texas Law Blog covers Texas, of course, and Naked Ownership covers the nutty doings in Louisiana. I'm always looking for good locale blogs. And don't forget for state-by-state news! And there's Fed Lawyer Guy, who covers news important to lawyers working for Team America, like me. Also, I added Dave Barry because he's funny. He's like Mr. Poon with sun stroke.

Tuesday, June 01, 2004

Judge to Law: Drop Dead
Via How Appealing, I see news that a federal judge in San Francisco has declared the Partial Birth Abortion Ban Act unconstitutional. I have to say that this doesn't surprise me. (You can follow the link to How Appealing if you want to read the 117-page decision.)

Then, via The Corner, I see the press release from the National Right to Life Committee in reaction to the decision. Here is their explanation for the decision:
Judge Hamilton's deep personal hostility to the law has been evident throughout the judicial proceedings, and is evident in many passages in her 117-page injunction.
That's right. The act wasn't struck down because Judge Hamilton concluded, based on her interpretation of the constitution, the act was inconsistent with Stenberg v. Carhart, the 2000 Supreme Court decision striking down state partial birth abortion ban laws.

No, according to the NRLC, today's decision came because Judge Hamilton hates the law. One wonders if they mean that she hates this law or The Law itself. Then again, some people wouldn't see a distinction.

Look, I believe in fairly broad abortion rights and I think this law is unconstitutional. But I understand that reasonable people can differ, and I have great respect for the deep feelings about this issue from people on both sides. I just don't think it helps anything for people to toss around allegations like this. It's just as irresponsible as if someone like Planned Parenthood goes around saying "Antonin Scalia hates women!" No, he doesn't. He just disagrees about the interpretation of the constitution. I think we would all be a lot better off if we could remember that just because someone disagrees with you, it doesn't make them evil.

[Note: This post's title is a play on the famous New York Daily News headline after President Ford refused to bail New York City out of bankruptcy, "Ford to City: Drop Dead." And while I recognize that some of you might think the more appropriate spin would be "Judge to Babies: Drop Dead," I disagree, because the NRLC press release accused Judge Hamilton of being hostile to the law, not to babies.]

Monday, May 31, 2004

Missed Connection
I called up Fitz the other night and said, "I have a story that starts off great but winds up sucky." Fitz: "Is it about me?" Me: "By now, haven't you figured out that all my stories are about me?"

I was in the Barnes & Noble Thursday night, just browsing. I was looking in the magazine rack, and was crouched down examining the bottom shelf. I stood up and turned around, and at just that moment, a very cute young woman was walking past me about six feet away. She was a few inches shorter than me, nice figure, blond hair up, glasses...and she was looking at me and smiling. As in making eye contact and smiling longer than necessary for simple politeness you might give to anyone you pass. This was a moment!

So we walked on in our opposite directions, although I circled back through some heretofore unexplored section (math or computers or something) to try to see her again and consider my course of action. I was a bit perplexed, and thought for a minute that maybe I had a big stain on my shirt or something. But really, I was feeling really nice, really good about myself. "I've still got it!" It was just the kind of little ego-shot I needed right then. But I was pretty sure this was nothing more than that. I didn't want to read too much into one smile. I didn't do one of those, "Who, me?" looks over my shoulder, so for all I know she might even have been looking past me. She might have just been a pleasant person who smiled at everyone or mistaken me for someone else. In short, I wasn't ready to leap to the conclusion that she was in love with me yet. I needed verification. Just as with Captain Ramius, one ping only wasn't enough.

Anyway, just a few minutes later, I was in another part of the store, looking at a book -- and she walks by again, this time a little further away. And again, long eye contact and a smile! OK, no flies on me. One smile might be interesting, but two is a pattern. So, I dropped whatever I was holding and took off after her with an alacrity only slightly less than would warrant macing if my approach was unwanted.

...And I lost her. As Charlie Brown would say when a similar fate befell him, "Aauugghh!" I followed her path, turned a corner, and she was gone. I looked all over that darn store, and could not find her. I cursed my fate all night.

I know what you're saying. I should have followed her the first time. But you've got the benefit of hindsight. While, yes, I agree now that this would have been the smart move on my part, in that flickering moment, it didn't seem to have any import. It just seemed like a nice smile from someone walking past me. What should I have done, ladies and gentlemen of the jury? Turned on my heel and set off helter-skelter after her? Is there no value to being somewhat smooth and suave, and not traipsing behind her doing my Jerry Lewis, "Hey nice LADY!!" You have to trust me that I just didn't see a way to track her down the first time without seeming like a spaz.

But don't miss the point here. The point is, Now what? I have seriously been thinking about taking out one of those goofy "missed connection" ads in the local free weekly paper personals. On a longshot, and because I never decided what I wanted to buy Thursday, I went back Friday night and of course didn't see her. I saw a woman who, from a distance, looked like her, but before I could get close enough to be sure (her hair was down this time), she started talking to a boyfriend. And, chances are I'll find myself back at B&N this Thursday in case this is some kind of weekly thing for the girl.

I'm really trying to maintain a positive spin on this, so don't harsh my mellow, dudes. I would like to take away from it the notion that an attractive woman might find me worth smiling at twice. I literally got a second look! So don't tell me I blew it; we're going to make a collective decision to look past that possibility. Tell me what I can do about it now.

Philosophy Bleg
I don't know much about phiosophy, but I would like to. Can anyone recommend a good, comprehensive, readable one-volume introduction to the basics of philosophy? Assume I know nothing. At the end of this book, I don't expect to be an expert, but I would like to understand the biggest philosophical movements and be able to have some sense of what the major philosophers thought. There are times I think about reading some philosophy, but I never really know where to start or with whom. I see a book by a particular author that looks interesting, but I'd like to be able to put it in a larger perpective. Yes, I realize I should have taken an Intro to Philosophy course in college, but there are a lot of things I could have done better back then. Thanks for whatever help you folks can offer.

Beating the Buffet
[Note: This was the post I lost about a week ago, so if it's not as good as you thought it was going to be, trust me: it was good the first time. This is the entry for "What I've been doing at home" in my latest bio post.]

One day back when I was in college, I was hanging out in a dorm room with some friends, including a guy named Eric. His buddy Tom came in and said, "Eric, let's go." Eric was unenthusiastic. Tom cajoled, "Come on, we've got to beat the buffet!" At this my ears perked up. "You're going to a buffet?" Tom explained it to me as if I were a child. "No. We joined a gym and we've got to get our money's worth, like when you try to eat enough to get your money's worth at a buffet."

This was the first time I ever heard the term "beat the buffet," but I understood it instantly. One of my favorite stories from my Dad (and I'm not sure if I've told it here before or not) involves a trip he and some college buddies took to a restaurant with an all-you-can-eat shrimp special. When they asked for a second plate (second!) the manager got pissy about it. This upset my Dad, as things like this are wont to do. He later explained it to me: "We weren't going down there to close them down, we just wanted some shrimp. But we were four football players and one plate wasn't enough." Anyway, irked by the manager, my Dad told his buddies, "We're going to eat every damn shrimp they've got." By the end of the night, the manager was thawing shrimp out in the back and charging them for cocktail sauce. My Dad beat the buffet.

I did a little research into this, and got so interested in it that I plunked down a couple of dollars to get an article from the Toronto Star archives. The author tried to beat the buffet at a Chinese restaurant in Ontario:
We could have had a beer, listened to the warbling muzak, and left after that. But there's a reason why so many buffets are in Las Vegas. It's because buffets appeal to the gambling nature as much as they do to gluttony. At any buffet, it is difficult not to try and eat as much as you possibly can. Casual buffet eaters do it to get fair value, but a serious buffet booster tries to "beat the buffet"- essentially eat so much that you get more food than what you even paid for. But just like winning at Vegas, and unlike your waistline after eating at a buffet, your odds of pulling this off are very slim.

The average restaurant typically pays about 40 per cent of the cost they charge you for the food they serve. I suspect buffets stretch the food they buy further, but if we use that charitable number, then the Mandarin is paying roughly $8 for its food, and charging you $21 (at dinner) so you can eat it. So if the average person eats two plates, that means the Mandarin is paying $4 in food costs per plate. That means you'd have to eat five plates of food to nearly break even ($20 worth of food at the Mandarin's cost), and at least six ($24 worth) if you're going to eat enough so you beat the buffet. If we factored in labour and rent costs, then the Mandarin's cost per plate would be significantly higher, so it's possible its actual profit margin would be hurting- along with your stomach- if you have more than a couple of plates.
It's a fun and interesting article, even though it has the mandatory superior Canadian dig at gluttonous Americans with a mention of a man who ended up on The Tonight Show after he called the cops when a buffet tried to overcharge him.
So stop at four plates or far before, unless you really want to meet Jay Leno. Even four, you'll regret later. On our way out, hands on our bellies and barely able to walk with 20 minutes until closing, our hostess sprints to a basket of mints, and hands us each one. Her efforts are in vain -- we have no more space. But outside, obscenely full, our moans of pain quickly turn to laughter. Just to the left of the exit, on the sidewalk, are 15 or so of the mints, tossed by others who couldn't eat another bite. A perfect testament that the buffet will not be beat.
So, anyway, back to Tom and Eric. I guess that trying to beat the buffet at a gym is a good motivational tool, but I'm not sure you can actually do it. They have the capital outlay for equipment, but my guess is that this expense is covered by the joining fee, and anyway, can't they take that as a deduction? They've got labor costs, rent or mortgage, insurance, and other expenses, but you're paying a hefty monthly fee too.

Maybe someone who understands economics better than me (read: anyone in the world) or someone who has worked a gym can enlighten us if I'm wrong, but my bottom line is that I just don't see any way that you can go to a gym enough to make your visit unprofitable. Maybe if you went so darn much that you wore out the equipment sooner than they budgeted for, but how likely is that? Obviously, if not enough people join, the gym will lose money; I'm not arguing that opening a gym equals guaranteed profit. In the same vein, if no one goes to a restaurant, it will go out of business. But whereas a restaurant's buffet can be beat if you eat enough, I don't think a gym can be "beat" just by exercising there too much. Maybe, maybe you could make an opportunity costs argument if the membership is at its maximum and everyone is using the gym so much that the gym can't add new members, then maybe that will eventually be unprofitable, although I suspect the gym will make up the shortfall in joining fees through the accumulation of monthly fees.

Anyway, if someone can think of a good argument that you can actually beat the gym buffet, I'd love to hear it. I think it just comes down to how much you value your time and money and health and how much anxiety you feel about "wasting" money by not using a membership. If your personal pocketbook equation works out that you're going enough to get your money's worth, in your mind, you've beaten the buffet, right?

Well, the point of all this nonsense is that I joined a gym. So far, I'm not beating it. But I feel like I'm going enough right now; I just haven't gotten it into my rhythm yet. (Funny aside apropos how much money they're making. The gym is actually a branch of the YMCA near my place. I said to Fitz, "They actually have a pretty sophisticated operation over there." I guess I sounded surprised, because Fitz replied, "What, for Christians?" Me: "No, for a non-profit." Fitz: "Oh, somebody's profiting.")

Let me also say that I don't want any compliments for this. This is not me being all proactive and can-do and doing something good and healthy for a change. No, this is a sign of my disgust with myelf and how close to rock bottom I am. There is nowhere to go but up for Milbarge. But I am decidedly not happy about going to the gym. I trudge over there, toil away for a half hour or so on some cross-trainer full-body workout contraption, and trudge home. All the while I resent myself and wallow in self-loathing for what I've gotten myself into.

And for goodness sake, please don't say how I can use this as opportunity to meet women. I can think of several reasons that won't happen. First, I'm sure I don't exactly make the best impression panting and sweating through my seven-year old college frat party t-shirt. (Actually, I'm no fool. I usually wear a t-shirt that announces where I went to law school.) Second, the only time I'm really in proximity to a woman is on the machines, and it's not exactly conducive to conversation, especially if she's wearing her iPod headphones. Third, I tend to go later in the evenings when it's not as crowded as it is right after work. Most of the time I am one of only a handful of people in there. So there are rarely any women around even if I did want to strike up a conversation. Fourth, I don't recall the exact context, but I remember reading a story about this branch of the Y in our local free weekly alternative paper with the words "taken over" and "by gays" in close association. My apartment is located on the block between the Y and a gay bar. So who knows if any of the women there would even find me attractive in theory. Fifth, there is my general reticence to be rude and interrupt a woman who is probably there to work out. I think I can spot a woman who is dolled up for the gym and just waiting for a hunky guy to help show her the proper technique for a machine, which usually involves liberal application of his hands to her hips. I don't see anyone like that here. I should point out that I am by far the most out-of-shape person I've seen there. It's not that I think I'm ready for an intervention with Richard Simmons or anything, but I'm clearly the Private Pyle of this platoon. Anyway, my point is that everyone I see there seems to be serious about working out. It doesn't seem to be a very social place, although it may be different in the classes or if they have a juice bar or something, I don't know. So the sum of it is that I don't go there intending to meet women and I haven't seen any opportunities yet even if I were.

Well, I know it took a long time to tell, but that's what I've been doing at home lately. Trying to get in a semblance of shape by making myself feel like crap on a nightly basis. I thought I had a grand point to all this, but maybe it got lost last week if I did. Anyway, now I'm off to go eat a Krispy Kreme. Now there's a restaurant I would like to eat out of business....

Conclusion: No Respect
A few months ago, I commented on the scandal engulfing the University of Colorado football team. In short, there were allegations of several rapes by football players, including againt a female kicker on the team; there were reports that recruits were plied with alcohol and sex; and coach Gary Barnett basically behaved like an ass. So, Barnett got suspended, commissions had meetings, there was much hand-wringing, and....nothing happened.

Nobody got fired. Not Barnett, not the Athletic Director, not anybody in the administration. Everyone agrees there were serious problems within the football program, that there was a terrible lack of communication between the football program and the administration, that some really awful things happened at CU that, according to the official report, compromised the safety of students. The Athletic Director, Richard Tharp, was heavily criticized in the report, which concluded he hovered in a fog of "plausible deniability" of what went on. Now, Barnett has been reinstated, and the whitewash is being swept under the rug...or whatever.

Some members of the commission CU formed now suspect that it was just so much CYA. The school never had any interest in real change; it just wanted to seem like it was doing something so the state legislature wouldn't crack down. I find this all to be inexplicable. And saddening.

My first post on this subject was titled "Respect." My conclusion then was that, based on Barnett's actions and statements, he deserved no respect from anyone associated with CU or college football. Now, I extend that to all the powers that be at CU. Look, I understand that a showy firing and saying all the right things might not have led to actual, substantive change. But hey -- it's a start! CU isn't even doing that much.

I concluded my first post with a quote from former North Carolina basketball coach Dean Smith. So, I'll return to the Tar Heel theme here. The motto of the state of North Carolina is "Esse Quam Videre," or "To be, rather than to seem." As far as I'm concerned, CU has woefully failed to live up to that ideal.

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