Begging The Question

Saturday, July 10, 2004


I'm moving in about a month. This is a picture of the house into which I'll be moving. If you happen to be driving by, please stop and say hello. I know it looks like a lot of other houses, but trust your instincts -- it's probably the right one. If the house you think is mine is a different color, I've simply painted it or added a wing or something. I'm sure your memory won't fail you, and you'll find me just fine. If you see this house, hop out and knock on the door. I'll gladly welcome you into my home. If I answer my door and pretend not to know who you are or what the hell you're talking about, that's just my wicked sense of humor. You'll know it's me if I don't immediately invite you inside. This is especially so if the person answering the door appears to be a woman and/or the hour is very late. In any event, what you need to do is refuse to leave until I give in and admit I'm Milbarge and we all share a big laugh over it. I suggest something along these lines: "You're a damn dirty liar and I'm coming in that house whether you like it or not!" If I "threaten" to call the police or fetch a firearm, that's just my code for "I'll get you a beer." No matter what happens, wait on the porch until I break "character" and say that I'm actually Milbarge.

I look forward to seeing you.

Friday, July 09, 2004

Bad Timing
If you're a regular reader (stop laughing!), you already know that I'm taking part in De Novo's Survivor: Blogosphere competition. Our first challenge was to discuss a legal issue relating to the presidential election. My meager attempt to produce something is here. I was crunched by work yesterday, and suffering from sleep deprivation, so when I narrowed my options to two, I basically flipped a coin and went with a brief discussion of the then-pending Class Action Fairness Act. I thought it might be worth following because of the merits of the class action issue, but also because it looked ready to subsume lots of other pet issues.

Anyway, in a classic case of bad timing, the bill was, for all intents and purposes, defeated and is dead for this session (pointer here and for more see here). Perhaps I can at least take credit for jinxing it.

But what makes this even funnier is that my other choice, the one I abandoned, was the dispute over Yucca Mountain in Nevada. George Bush won Nevada in 2000, but has lost a lot of support there over the Government's plan to ship nuclear waste from the other states to Yucca. (To be clear: Most Nevadans oppose this, and Congress had to override the Governor's veto of the plan.) This editorial from Las Vegas notes that John Kerry has a perfect (for Nevada) voting record on Yucca. John Edwards has been less pure, but has apparently assured Sen. Harry Reid (D-Nev) that he will defer to Kerry's position on this. But that editorial and this one from Reno (both found via The Note yesterday) suggest that Nevada is being overlooked by both parties.

So, that was what I was thinking about writing about. And wouldn't you know it, today the D.C. Circuit issued this 100-page opinion (pointer here) turning back all of Nevada's administrative law challenges to the Yucca Mountain plan. (The court did remand the case back to the EPA to come up with a plan to keep the site safe beyond its original stated 10,000 year period.) For a briefer synopsis of the ruling, see here (pointer here).

This certainly isn't the worst thing that's happened to me because of nothing more than bad timing. It's not exactly "Dewey Defeats Truman" or "Kerry Picks Gephardt," either. But it is kind of funny that if I had simply waited a day (we were given no deadline in challenge #1), the best topic to post on would have been obvious -- and obviously not the one I chose. Oh well. Par for the course for Milbarge.

There goes the neighborhood
alternative post title: Looks like I'm not the only waste product they're shipping to Nevada

Nevada lost another round in the 20+ year fight over the Yucca Mountain Nuclear Waste Disposal Site case. Today's ruling (link via HA) by the D.C. Circuit Court of Appeals upheld the actions of the EPA, DOE, and the Nuclear Regulatory Commission in selecting Yucca Mountain as the nation's repository for nuclear waste. The court rejected Nevada's argument that the process of selecting Yucca Mountain was unconstitutional, but handed the State a victory on another issue, holding that the federal government's standard that the public would have to be protected from radiation leaks only for 10,000 years would have to be revised to protect the public well beyond 10,000 years.

State officials are hopeful that the victory on this narrow issue may still spell the end of the Yucca Mountain project. "'The Yucca Mountain site cannot meet the (radiation) standard' beyond 10,000 years, said Bob Loux, Nevada's state nuclear project director. He called the Yucca project 'effectively dead - over.'"

For anyone following the 2004 presidential election, look for this issue to play a key role in John Kerry's efforts to woo Nevadans come November.

No word yet on how Nevada intends to keep me out of the state. Seeing as how I have a half-life of only about 33 years, they may not be too concerned.

(simul-posted at L-cubed)

Thursday, July 08, 2004

America (via Fitz-Hume) to Tom Ridge: No shit, Sherlock. They hate us and they want us all dead. Of course they are planning attacks.

The July Surprise
In this New Republic article by John B. Judis, Spencer Ackerman and Massoud Ansari (link via Goldberg at NRO) the authors assert that the Bush administration has put the screws to Musharraf's government by forcing a deadline for the death or capture of bin Laden, Mullah Omar, and their associates believed to be hiding in the northern frontier provinces of Pakistan. That deadline? According to an unnamed Pakistani Inter-Services Intelligence (ISI) official, "a White House aide told [the ISI director Lieutenant General Ehsan] ul-Haq last spring that 'it would be best if the arrest or killing of [any High Value Targets] were announced on twenty-six, twenty-seven, or twenty-eight July' - the first three days of the Democratic National Convention in Boston."

I don't know how much weight to give this story, but it would not shock me to learn that the Bush Administration is pressuring Pakistan to deliver bin Laden & Co. before November. Of course, if this article turns out to be accurate, the real question is why wasn't the Administration putting this kind of intense pressure on Pakistan in 2002 and 2003? What does the obvious answer to that question say about this Administration?

As they say, read the whole thing.

(simul-posted at L^3)

Only in America: Suing your employer because you are too fat to do your job
Here is a sample of the kinds of cases I work with every day as a clerk to a federal administrative law judge. Complex issues of statutory construction? Nope. Constitutional challenges? Nah. Just fat guys suing their bosses. After reading this you may begin to understand why ALJs are the least respected federal judges. From BNA's Daily Labor Report No. 130, Thursday, July 8, 2004:
A Roadway Express truck driver who contends he was illegally denied "call-in" pay after refusing to drive a truck with a steering wheel that rubbed against his stomach can proceed to a hearing on his claim that the employer violated the employee protection provision of the Surface Transportation Assistance Act, the Labor Department's Administrative Review Board ruled June 30 (Samsel v. Roadway Express Inc., DOL ARB, No. 03-085, 6/30/04).

Reversing an administrative law judge's ruling granting Roadway's motion for summary decision, and remanding the case, Judges Judith S. Boggs and Oliver M. Transue said there was a triable issue over whether Roadway subjected James S. Samsel to an adverse employment action by refusing to grant him call-in pay.

Samsel, who has worked as a Roadway driver for 11 years, is about 5 feet 5 inches tall and weighs 350 pounds. Samsel alleged that on various occasions between November 2001 and May 2002, he was assigned to tractors that had been modified in a way that caused the steering wheel to rub against his stomach. Each time, he notified management that the situation created an unsafe condition. He asked to be assigned to a different truck, but his requests were denied, the board recounted.
(emphasis mine)

To quote my co-worker, "Hmmm. I am pretty sure that the tractors were not 'modified' to have a steering wheel that hit his stomach. I am sure that the fact that he looks 20 months pregnant had more to do with it."

At least the ALJ came to the correct decision even if the Administrative Review Board is off its rocker.

(simul-posted at L^3)

Wednesday, July 07, 2004

They like me, they really like me!
My job hunt has been successful. Finally. At the conclusion of my current clerkship I will be joining the office of legal counsel for the state legislature of a sparsely populated western state. (Which state? Let's just say that you should be looking for a Fitz-Hume cameo in future episodes of Reno 911!.) Just like Milbarge, I have successfully avoided, and will continue to avoid, practicing law.

My job search statistics are not encouraging. Over a period of 18 months, I sent out roughly 250 resumes and applications. Out of those applications, I received 3 offers to interview. I interviewed with two, and was given an offer by just one. Three interviews out of 250 tries? A .012 batting average is not what you are looking for. Still, the stat that matters is that one offer.

Now if we can just find Milbarge a girlfriend. . .

Vaccines, Autism, and Nuts
A little while back I mentioned an article in Mother Jones about a possible link between a preservative containing mercury used in children's vaccines and the rise in autism diagnoses. My take was basically, "Hmm...that's interesting and disturbing." I used the words "might" and "possible" when discussing the chances of a link (correlative or causative). Feel free to read what I said there (it's near the bottom of the linked post), but I really don't think it was a screed of any kind.

Then, Dylan at The Slithery D responded (and my co-blogger Fitz seconded) by pointing to other articles debunking "vaccines cause autism" myth. None of the excerpts he posted mention mercury specifically. I haven't read the full stories because they are from a subscription-only site. I accept the articles for what they say, but I was a little taken aback by Dylan's apparent linking of me to the anti-vaccine crowd.

So, I responded, and Dylan graciously included my response as an update to his post, so you can read it there. My reason for writing was to say that I think vaccines are generally good, and I do not crusade against them. I understand that the evidence in the Mother Jones story wasn't proof. I believe in the concept of "herd" or "community immunity." If I end up having kids, I plan to get them vaccinated early and often. I merely wondered if it was a good idea to pump kids with mercury if we could avoid it, even if it wasn't proven to cause autism. It's not as if mercury is healthy for kids in any event.

Dylan responded by saying, "These are valid and thoughtful points, for a anti-vaccine radical."

I think he was sort of kidding, but I'm not sure. So I wanted to take an additional opportunity to try to distance myself from the anti-vaccine radical stand. I'll admit that I don't really know anything about this, and have no intention of becoming an expert on the issue. It's just something I read and found interesting. I was aware of the controversy, but Dylan's response surprised me a little. It makes me wonder how anybody can ask reasonable questions about this sort of thing. I'm sure that the CDC and pro-vaccine folks don't want to give any fodder to those who would distort data in order to rail against vaccines generally.

But this experience made me feel like I had merely said, "I'm not sure if Lee Harvey Oswald was the only person who wanted John Kennedy dead," and suddenly I'm branded as the bastard love-child of Jim Garrison and Oliver Stone. I'm not championing conspiracies or anything; just asking questions. But I'm sorry if it got misinterpreted. To avoid the chance of that in the future, this is the last thing I'm going to say about the matter.

Um, Correction: Don't Worry If You're Seeing Triple
I know you've been asking yourselves, "Is there anyone in all the land whom I like so much that I wish I could read what he has to say in three places at once?" And I know the answer that sprang from your foreheads like Athena from Zeus: Milbarge.

Yes, your humble correspondent is going to be publishing on three blogs for a while. In addition to your home away from home, BTQ, and my guest-blogging stint at Life, Law, Libido this week, I have entered Survivor: Blogosphere, a guest-blogger contest at the blog De Novo. I think we're kicking it off tomorrow.

This wasn't something I planned; it's not like I have designs to overtake the blogging world. But, like a goldfish, I grow to the size of whatever bowl I'm in. I guess two blogs weren't enough to contain all my wisdom and erudition. Or maybe these other folks were just that desperate. Tomato, tomahto.

Anyway, look for me this week at L^3 and also look for me at De Novo for as long as I survive. I'll keep you posted on developments at both places. Until then, I'm going to go rest my fingers for a while. I've got a lot of typing coming up.

UPDATE: See this De Novo post for the official kick-off, and here for my introduction. And I forgot to say before: Go there, read the blog, and vote for me while this thing is going on!

Tuesday, July 06, 2004

Virginia, Open 24/6
I've been following this odd little quirky story via the very fine Southwest Virginia Law Blog. The latest post is here, and older posts are here, here, and here.

Here's what's going on. In Virginia, like many states, it was once illegal to operate a business on a Sunday. These "blue laws" are still on the books in various forms in lots of places (most commonly regarding the sale of alcohol). This is so despite sundry court challenges to the laws and our collective desire to be able to buy whatever we want whenever we want.

Anyway, this year Virginia's legislature finally decided to clean up the statute books. But, alas, there was a "scrivener's error":
The glitch occurred earlier this year when the legislature approved a bill intended to formally abolish Virginia's "blue laws," which prohibited most businesses from opening on Sundays. The housekeeping measure attracted little attention because the laws were declared unconstitutional in 1988 and were not being enforced.
In ending the blue laws, lawmakers accidentally erased a list of business exemptions that also protected manufacturers, utilities, restaurants, hospitals and some retailers from Virginia's "day of rest" laws.
Those laws guarantee workers a day off each week, and give them the right to specify Sunday as their chosen day of rest. Saturdays also can be designated in some cases.
Companies that violate those laws face fines of $250 to $500 per offense, and workers have the right to sue for back wages at triple their regular rate of pay. (source)
Basically, they included a wrong statute in the list of those to be repealed, and nobody noticed. So now, workers can demand a day off per week, and the employer can't force them to work that day. Naturally, employers ran to court.

A power utility, a big manufacturing plant, and the chamber of commerce all sought an injunction against enforcement of the law, crying that they would suffer all manner of hardship if no one wanted to come to work on a Sunday. A judge reluctantly agreed, issuing a 90-day injunction but strongly hinting that the legislature ought to clean up its own mess.

The legislature hasn't sounded too keen on convening an expensive special session just to fix this glitch. The Democratic governor suggested that the law might be unconstitutional anyway, if it gives a special benefit to religious people, and suggested that maybe the state just shouldn't enforce it until the legislature comes back into regular session next year. The Republican attorney general accused the governor of not wanting to enforce the law, although I don't see any reason the attorney general couldn't issue a formal opinion on the law's constitutionality. If nothing else, waiting for that decision would kill a lot of time before the legislature would have to come back.

Anyway, it's just funny how good intentions can go awry. This kind of mistake will probably have the effect of making legislatures even less eager to clear outdated laws from the books. I sure hope the L^3 guys don't have a blue law question on the bar exam this summer!

This also reminds me of a funny "Simpsons" episode written by Conan O'Brien. It's the one with the monorail, and when the monorail goes out of control, Mayor Quimby and Chief Wiggum scour the town charter to determine who has final authority in a crisis. They get off track (pun intended) when Wiggum discovers that, "as Chief Constable, I'm supposed to get a pig each month, and 'two comely lasses of virtue true'!" Quimby: "How many broads do I get?" Well, despite the fun stuff one can find in old laws, I hope the outdated stuff is culled more carefully than Virginia has done. Or perhaps this is all happening because the governor and attorney general can't agree on who gets how many comely lasses.

(Simul-posted at L^3.)

UPDATE: They're going to have a special session to fix it after all.

Not well done, but done well.
We finally topped 100 degrees yesterday - and it felt like 110 with the humidity. Still, I was not deterred from grilling steaks to celebrate my State-sanctioned holiday. For all the grill-masters looking for a simple and delicious rub, I offer to you the recipe for the steak rub I have used with much success.

Steak Rub:

4 parts coarse ground kosher salt
4 parts coarse ground black pepper
2 part granulated garlic (NOT garlic powder)
1 part ground red pepper

Mix the ingredients together and store in an airtight container. Apply to each side of steaks prior to grilling.

You can certainly use other ingredients (or, for purists, none at all), but you really can't go wrong with this mix.

The JD Stands for "Just Downloaded"
I've been periodically following the controversy over online law schools. I get interested in theories of legal education, and in fact, when I was in law school and section membership was free, I was a member of the ABA Section on Legal Education and Admission to the Bar. My law school had a site visit from the ABA accreditation team while I was there, and they scheduled an open meeting with students. About a dozen showed up, and it quickly turned into a bitch session about everything they didn't like, as if the ABA cared about a few gripes about professors and classes. (Plus, my school -- top tier but not upper crust -- was not worried about losing accreditation, so the whole visit was kind of pointless anyway.)

But the accreditation game and the debate over online law schools really go to the heart of what it means to be a law school, and what kind of education we expect law students to get. And I'm trying to come up with a conclusion that doesn't sound terribly protectionist and elitist but at the same time recognizes the value of a solid legal education.

The biggest hullabaloo is over Concord Law School, an online, for-profit school owned by Kaplan (the test prep people), which is itself owned by the Washington Post Co.. For a little more about the school and some of the fuss, see this article from from last year. The upshot is that the ABA won't accredit correspondence law schools, and most states won't allow people who haven't graduated from an ABA-approved law school to take the bar exam. See here for more from the ABA perspective.

An interesting thing has happened since then, though. The article quotes Barry Currier, from the ABA's accreditation committee, defending the ABA guidelines for accreditation and denying that the body is protectionist. Since then, Concord has hired a new dean: Barry Currier. This article (registration required) discusses that move in the context of many other schools' hiring of ABA folks as deans. Under the best spin, the schools are looking for someone with experience in many facets of legal education. Currier, for example, was dean at Cumberland School of Law at Samford University before working for the ABA. Under a less charitable spin, these schools, seeking the golden ticket of accreditation, look to the old boys' network and are doing little more than bribing their way into the Select.

I can understand this move on the schools' part. For an established law school, the priorities in a dean search will be things like maintaining a standard of excellence and trying to inch the school up the reputational ladder a bit. But for a start-up law school, the top priority has to be getting accredited. I don't see anything wrong with hiring a dean who knows how to get that done.

The question, then, is whether that should be a goal an online school can attain. Concord touts its California Bar passage rate of 60%, higher than the statewide average. This number might mean a little less to you when you realize it represents, literally, six out of ten graduates. But even assuming all the students enrolled in Concord (now over 1000) keep up that rate, is bar passage the only measure, or even the best measure, of a legal education?

I'll admit that I am of the "education is its own reward" and "education for its own sake" school of thought. I never saw law school as a vocational school, and indeed, two years out, I'm still not practicing law and have no desire to do so. The work I do now is remarkably similar to what I did in school, and it's no accident. So perhaps I'm not the best one to gauge whether online legal education is "good enough." I'm sure that some of these folks are capable of practicing law as well as lots of lawyers who graduated from accredited schools. And call me an elitist if you must, but I don't think they're as good as the cream of the crop from accredited schools, though.

I'm basing that judgment partly on my own experience of how much I learned by being surrounded by other students, how much I learned out of the classroom, how much I learned from books that aren't online, and how much I learned from instant feedback instead of waiting for my question to be answered in an email. There's also an issue of learning the people skills I would hope lawyers have but far too many don't. I think online law school have inherent limitations that can't overcome the positives. And I do think there are some positives. I think people who want to learn about the law should be able to do so, despite age or time or distance from an accredited school. I have some problems with the way the law is often taught, and it's helpful to think about whether that information can be delivered in a better way.

I saw a vignette that I think illustrates both sides of this coin. This story about Concord mentions a 62-year-old surgeon in rural Virginia who wanted to study the law. So, he signed up at Concord and gets by on three hours' sleep while he juggles both his medical career and his legal education. For a busy person miles from the nearest law school, online education is a "dream come true." But the good doctor says that he wants to use his legal education to help his patients "get the care they need" by helping them fight with insurance companies. However, he cannot take the Virginia bar with his Concord degree. So I hope he doesn't plan on actually practicing law, or giving legal advice, to those patients of his. I don't see how he can achieve his stated goal without violating the unauthorized practice of law regulations. Also, one has to wonder if the doctor's medical patients knew he was burning the midnight oil as a law student and then waking up and cutting them open.

I don't really have a solution to all this. I just thought it was an interesting issue (and I haven't even touched on the antitrust issues swirling around here). To come to a definitive answer on the issue of online law school sort of requires you to decide what the essence of a legal education is, and I'm not prepared to do that. And although I don't want to say that it was only about the bricks and mortar of the old building, I think it had enough to do with it that I don't want to say it was irrelevant. I think I ended up as a better law student, and better lawyer, because I actually sat in a law school building. But I don't want to say that it's the only way one should study, either.

(Simul-posted at L^3.)

Last night, I was hanging out with some friends who wanted to celebrate the holiday by watching some fireworks on tv. Our host had a sincere affinity for the Boston Pops, so we watched most of the CBS broadcast of their concert on the Charles River. I have to say that, much as I like the Pops most of the time, I was disappointed. Not with the orchestra; I thought they were fine. I was a little confused by the choice of special headline guest: David Lee Roth.

David frickin' Lee frickin' Roth.

Yeah, because nothing says "America" like watching Diamond Dave trying to do the roundhouse kicks without herniating himself. I even like some of the old Van Halen stuff. It just seems like an odd choice to me for a Fourth of July Boston Pops concert. I'm just glad I didn't have to sit through him squawking through "California Girls," but according to this review of the concert, the crowd wasn't so lucky.

Note to the guys watching with me: The article informs me that the reason we didn't hear "The 1812 Overture" during the fireworks was that the Pops moved it to the mid-point of the concert, to open the televised portion. I'm sure that had the effect of pumping up the crowd for the time they were on tv, but I still think it works better during the 'splosions.

Finally, as a personal reflection, I have seen the DC fireworks show twice, and for me it's worth the crowd and hassle because it's the best there is. Others might be longer or louder or more whatever, but DC has the best setting for fireworks, bar none. Discuss amongst yourselves.

(Simul-posted at L^3.)

Monday, July 05, 2004

Don't Worry If You're Seeing Double
This week, Fitz and I have the distinct honor and pure pleasure of being invited to guest-blog at Life, Law, Libido, one of our favorite blogs. My first post there, immediately lowering the property value of that acre of the blogosphere, can be found here.

We'll be simul-posting here most of our guests posts, so you'll be able to read them either at L^3 or BTQ. But, since some of the stuff will be exclusive to L^3, and because it's such a good blog in its own right, I encourage you to visit over there.

Anyway, after a week of travel, a week trying to catch up, and a long holiday weekend away, I'm finally back to my usual routine. So, I'm going to try to do as much blogging as possible this week. If you're dying to get my opinion on anything, let me know and if it interests me enough I'll blog on it. I'm responsive to the people that way.

In the meantime, enjoy the remnants of what I hope is a long weekend for you as well.

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    The views presented here are personal and in no way reflect the view of my employer. In addition, while legal issues are discussed here from time to time, what you read at BTQ is not legal advice. I am a lawyer, but I am not your lawyer. If you need legal advice, then go see another lawyer.

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