There's a question going around some of the blogs I read which I thought I would pass on to you. What is the worst Supreme Court decision ever? If you could remove one case from the books, what would it be, and why?

The rules: You can't say Roe v. Wade. If you don't like abortion, that's just too easy. And, removing a case also wipes out all the cases relying on it. So, for example, if you took out Roe, that would eliminate Casey and Carhart and all the other abortion cases. Oh, and you can't say Marbury v. Madison either, because that would just screw everything up. If a case has already been overruled, you can't choose it (but you can choose the overruling case). And if somebody takes your first choice, please give us your second.

My tentative first candidates would be Hans v. Louisiana or The Slaughterhouse Cases. But I'm still thinking about it. Anyway, if you want to, feel free to suggest your own choices in the comments. Once I come to a final decision, I'll update the post.

By the way, I know we have at least one regular reader who is not a lawyer. I'm not trying to exclude him with this post. In fact, I would be interested to see what he (or any other non-lawyer readers we have) would say. My guess is that the lawyers' choices have more to do with particularly distasteful doctrines, or maybe progeny of cases that we feel have taken the original too far. (I think my suggestions above probably fit that bill.) But my hunch is that a non-lawyer's decision will have more to do with the real world. Obviously, I wouldn't require a non-lawyer to provide exact citation; saying something like "the flag burning case" or "the gay sex case" will probably give us enough to figure it out.

Sorry for the overt law-geekiness, but I find this a fun little mental exercise in historical revisionism, or something.

[By the way, the original posting of this question was on a blog called Sugar, Mr. Poon?, a reference I'm sure at least one of our readers will find incredibly funny. His post had 60 comments when I checked it, so if you need suggestions, try those.]

I'm not trying to make this blog an advetisement for other blogs, but there was something on the Patent Pending blog the other day that really made me laugh. The author there goes by the pseudonym "IA" for Incompetent Attorney. He practices patent law for a big NYC firm. His posts are usually funny, and are nice vignettes of life in a big firm (and NYC). He hates most of the partners, and spends most of his days doing mind-numbing work. IA makes me feel good that I'm not doing what he's doing.

Anyway, he had a post yesterday I really liked. He doesn't have permalinks, but it was called "Mathematics" and appeared on December 4. I'll quote in full:

I've been telling this partner that I needed help with this project. He's been telling me to keep working on it. This has been going on for a few weeks now.

So I averaged out my work this past week and did some math. I went into his office last night with the following:

"Over the past two weeks, I have averaged reviewing 10 documents per hour. There are over 13,000 documents. At my current rate, it would take me 130,000 hours to review all of the documents by myself. If I bill 2,000 hours a year, it will take me 65 years to review all of the documents."

He said he would try to get someone to help me. But in the meantime, he said I should keep working on it.

Now, some of you may have already caught what several of IA's commenters quickly pointed out: His math was way off. He multiplied instead of divided. In fact, it would take him 1300 hours to do this work. Still a long time, but not 65 years. My favorite comment: "We had a meeting. Everyone admitted to the patent bar is now ashamed of you."

OK, so the math error is funny. But what is really hilarious to me is that the partner was told the project would take 65 years to finish, and didn't even question it! And even if the partner believed it would take 65 years to finish, he apparently didn't find that enough of a problem to find someone to help IA! He was probably thinking, "Hmmm...65 years of billable hours..." (Who is the client? Jarndyce?)

I didn't really have much to say here. I wasn't going to recommend going back to June and reading all of IA's posts, although there's plenty of funny stuff in there. But this post just struck me as just so emblematic of how miserable his existence must be at that firm.

The New Republic has an essay up about the "reality" show "Average Joe." (The essay is available only to subscribers, so I won't link, but I will quote liberally and call it Fair Use.) I have never watched this show, but I think we have all seen the ads and understand the premise: Hot Girl thinks she's going to choose from a buffet of Hot Guys, but instead is presented with allegedly average guys.

She starts thinning the herd, after which she is routinely accused of being superficial. The TNR author points out: "If Melana isn't attracted to the beefy Joes, is it really shallowness? Every single person I know who is in a relationship is attracted to their partner. That doesn't mean everyone I know is gorgeous. It means we all want to be with someone who, well, turns us on."

The other great line from the essay: "No one ever--not once--questions the superficiality of all these Joes--average, less-than-average, whatever--as they vie for their cheerleading goddess. Not one of their gripes about Melana invites even a lick of introspection as to why these guys feel such a sense of entitlement to this young lovely. . . . But make no mistake: Melana's good looks are central to her suitors' attraction. In case there were any doubt, each week features footage of Melana jogging down the beach slo-mo, breasts akimbo, tantalizing every Joe in the house. In turn, the vast majority of these guys say they never thought they could 'get a woman like that.' Believe me, they ain't talking about her dazzling intellect."

It turns out that Big Twist #1 in this show was bringing in some allegedly above-average guys to tempt the Hot Girl. According to the promos that run only slightly less often than promos for big weather news, she has narrowed it down to one of each, but the "average" guy turns out to be rich. (Big Twist #2) Hmm...which is more shallow – choosing someone just for looks or just for money?

I don't care whom she chooses. But the TNR story got me wondering about trying this from the other angle. In googling for the link to the show, I saw that they have already taped two seasons, which is apparently a regular reality show trick, and explains how the second batch of contestants doesn’t know the twists. But after we have to put up with that, I'm predicting it – you heard it here first: "Plain Jane."

We'll get some hunky guy and set him up with a cast of "average" women. Of course, in TV-land, they think "ugly" is like the women of "Coyote Ugly". (aside: wow) But two obvious questions: (1) Would self-respecting women really do this if they knew the premise? (to the extent anybody in reality tv is self-respecting) (2) Assuming the Big Twist is bringing in Hot Women to compete, is there any possibility the guy would choose one of the "average" women?

Oooo – how about this for Big Twist #2: It turns out that the Hot Girls are really call girls! Hmm...maybe that’s a little too racy for NBC, though.

Anyway, I still don't think I would watch "Plain Jane" (but I will sue for royalties), but the questions interest me. I hesitate to answer the first one, but here is one man’s opinion. I think they will have no problem finding women for those spots. And it's not because women are more fame-hungry than men or anything. While the guys on “Average Joe” appear to accept the fact they are toads, but urge Hot Girl to find the prince within, I think the "Plain Janes" are more likely to see themselves as beautiful on the outside too (I still predict they will be much hotter than the literal average American woman) and will want a guy to see that too. And that’s not to say that these women will be delusional or anything; there are probably women out there who find the "Average Joes" hot as well. Partly this is based on my own observation that plenty of women I'm not attracted to have mates. But also I think women today have fewer illusions about what sells.

As for the second question, barring the "call girl twist" (I won't provide a link for that move), I'm not optimistic for Jane. And maybe not even with the twist. Wow. Am I saying that men are more superficial than women? Hmm...I may have to rethink my whole world view.

Well, I can't come to any conclusions about this. And I don’t know if we have any women readers (if so, we’re happy to have ya!), but I would love to hear your thoughts on this. Thanks.

I usually try very hard to avoid thinking about pro football, but this story starts there. I happened to see a blurb in Sports Illustrated noting that, due to NFL scheduling quirks, the New York Jets had played at the Oakland Raiders each of the last five seasons (plus two playoff games), and might play there next year too. My thoughts did not turn to scheduling oddities, fairness or parity within the league, or any other on-the-field matters.

Instead, my first thought was this. The California tax code sets pretty high tax rates on entertainers and athletes appearing in the state. So, those players have to pay California taxes for every game they play there. For a pro football player, that could amount to thousands of dollars for a day's work. Several states now have a "jock tax," but California was first, in 1991 (allegedly in retribution for the Bulls beating the Lakers in the NBA Finals), and it brings in $80 million a year.

Well, that sucks for the Jets, but it made me wonder how Arnold Swarzenegger's been doing since we last heard from him. And it looks like the answer is "fair to poor." He got one victory when the legislature agreed to repeal the law giving illegal immigrants drivers' licenses, which became the first bill he signed as the Gubernator.

But Swarzenegger is also proposing this huge $15 billion bond program which will put the state that much more in debt. And the spending cuts already made are looking pretty drastic. The proposed budget cuts even go after education and transportation, but still only amount to $2 billion. Next year's budget is $14 billion in the hole. There simply aren't enough cuts to make without shutting the place down. The Democrats want tax increases, but one commentator suggests it is "fanciful" that they could even get half the difference in tax increases.

It's times like this I'm glad I don't know nothing 'bout economics, because it makes me free to say I have no idea how they're going to fix this. Swarzenegger's budget director had an op-ed in the Wall Street Journal today, basically proclaiming "All is well!" She talks a lot about spending cuts, but doesn't say how they will add up to enough to "make California solvent," as she promises Swarzenegger will do.

I don't live in California, but I'm still concerned about such a large economy going into the sewer. I don't think Swarzenegger is a fool, but more and more it's looking like he bit off more than he can chew. Maybe the jock-in-chief should at least consider raising the jock tax. Sorry, Jets.

"There are 10 types of people in the world...those who understand binary, and those who don't."

Last night, after a long, dreary slog of a day, I finally lay down to go to sleep. I'm laying there for a good while and all of a sudden I think to myself, "You know, it might be easier to get to sleep if you turned the light off. Ugh.

Today's song lyric:

I see today with a newsprint fray
My night is colored headache gray.
Don't wake me with so much.
--"Daysleeper," by R.E.M.

Finally, these thoughts, found here:

Wednesday blows. Monday, for all its problems, at least offers the prospect of a fresh start; and Friday we love, of course. But Wednesday? Vile. Squatting between what you hoped to have accomplished by now and what you might eke out if you haul ass for the rest of the week, Wednesday points to where you come up short. It's a captious narc of a day. Wednesday, you suck.

A relatively new blog with which I have become quite enamored is Iraq Now. The blog author is a US Army officer stationed in Iraq. Whatever your think of our efforts in Iraq, you would do well to inform your opinions about the situation via Iraq Now. Once you check it out, I am sure you will agree that Captain Jason van Steenwyk's in-country perspective on the situation is an indispensable source.

We're still getting the hang of this whole thing, and the blog may be in a state of flux from time to time. We're still not sure about the color scheme, for example.

But I wanted to point out a couple of minor changes. First, we have a new, easier-to-type-out email address, which you can see in the left column. The old address still works, and we'll check it too.

Also, we have added a few more links in the right column. Obviously, these aren't the only sites we visit, and some of these aren't even visited by both of your humble bloggers. But we didn't see any need to act as a news clearinghouse. Speaking only for myself, I linked to these sites because I read them very often and think they are worth pointing out. If readers have any suggestions for sites that may be worth linking to, please let us know.

While Milbarge tends to put a lot of stock in Dahlia Lithwick's musings regarding the Supreme Court, I am less inclined to do so. I am more inclined to approach her analysis with some skepticism. For another take on her analysis of Locke v. Davey, take a gander at Eugene Volokh's post here.

With a day to think about some of the questions raised in Locke v. Davey (first discussed here below), I am now at least hopeful (though not optimistic) that the result might actually be 5-4 in favor of the Washington scholarship program. This is based in part on summaries of the argument session here from Slate's Dahlia Lithwick and here from the Post's Charles Lane.

As always in close cases, Justice O'Connor is the key. I know it's dangerous to make these sorts of predictions based on questioning at oral argument, but she seemed nervous about the scope of Davey's argument. Ever the pragmatist, O'Connor appeared uncomfortable with Davey's contention that the state must fund religious education. The liberal Justices tried to convince their more conservative colleagues that Davey's position would constitutionalize vouchers, and not only that, but would require government funding of proselyzation in all manner of contexts.

I think the Court will be desperate to draw a line of some kind. I don't think it's so terrible that Davey gets a few dollars that he can use to study business or ministry as he chooses. But his overall position just goes too far. Justice Ginsburg asked his lawyer: "We know we can give funding to religious schools if we want to, but what if we don't want to?"

I will be surprised if Justice O'Connor says that states have no choice here. Her support in the vouchers case was premised on the individual choice given to families, but I think she will be less supportive of a system where the state hands money directly over to churches. She noted to Solicitor General Ted Olson that we have "a couple of centuries of practice in this country of not funding religious instruction with tax money."

We also have a couple of decades of practice in this country of Justice O'Connor agreeing with the conservatives on the principle of a matter, but waffling when the rubber meets the road. Her Penry/Atkins flip on executing the retarded, her affirmative action flips, and her flips in the Washington Legal Foundation IOLTA cases are the examples that spring to mind first. I think (hope) that here, she will say that vouchers are constitutional if the state wants to have them, but she'll back off and won't say that states have to fund them. It wouldn't surprise me to see her write separately (leading to a 4-1-4 result) striking down the Washington program on narrow tailoring grounds but not reaching the broader questions. I could live with that. I will try to answer some of the other attendant questions if time permits.

I pass along two posts from Eugene Volokh, and I’ll just point to them rather than repeat him, because all I could really say is “ditto.”

In this one, a legislator in Georgia has proposed a law allowing local governments to post the Ten Commandments, and declared that if a public official in one of those governments does not believe in God, “then that person is more likely to be corrupt.” I agree with Volokh that this is a bigoted statement, and I doubt it has basis in fact either.

In this one, the ACLU is all atwitter over a Louisiana teacher disciplining a student. Waiting in line for recess, one second-grader was talking to another and asked about the child’s mother and father. The boy, 7, responded that he didn’t have a father; he had two mothers, because his mother is gay. When asked what “gay” meant, the boy answered that this is when a girl likes a girl. A teacher overheard and kept the boy inside and made him write sentences promising not to use the word “gay” in school because it is insulting. He was made to fill out a disciplinary form (Volokh has the links to pictures, and they are worth seeing) noting that he had “sed bad wurds.” This would be funny if it weren’t so appallingly sad and wrong. Maybe the teacher's time would be better spent teaching her students how to spell.

The hamster responsible for smooth operation at Blogger seems to have fallen off the wheel tonight. I know we run a pretty rinky-dink operation here, but this appears to be a fairly regular occurrence at Blogger, and not our fault. Anyway, sorry if you came looking for us and couldn’t find us. We’re always available via email (well, at least Hotmail zonks out a lot less often).

If you are really desperate for something to do, try your hand at Mr. Picassohead (link via Volokh).

The word is out! It is official! Dennis Kucinich's presidential campaign has obtained the endorsements of Father Twilight and the creatures of the forest. What a coup! Here is the story, but I provide below the text of the "official" statement:

"We the creatures of the forest have a deep kind of knowing Humans call "instinct." With that we see Dennis Kucinich as uniquely qualified to stand for us and Mother Earth as well as all of Humankind. We hereby endorse him for the Presidency of the United States of America in 2004."

< rambling musings>I admit no surprise that "candidate" Kucinich is a few trees shy of a forest (although perhaps the trees will soon follow the creatures' lead and remedy this particular deficiency), but this kind of story on his official campaign website!!! just makes me wonder if there is anyone in charge of the Democratic party. Can't the DNC schedule an intervention or something? This guy is getting air time in every Democratic debate and yet Ralph Nader and Alan Keyes were both denied air time in major debates during the last presidential election season (proof that censoring some candidates in the debates is at least possible). I am not crazy about any of the Democratic candidates, but the serious candidates (and the American public which is trying to decide which, if any, of the real candidates they should vote for) ought not to be required to deal with Dennis Kucinich and Father Twilight.< /rambling musings>

Now a few words about a case being argued before the Supreme Court today. In Lee v. SCS, the issue is how to calculate the interest rate owed to a creditor under the Bankruptcy Code's "cramdown" provision. Uh, wait. I meant to talk about the other case being argued today, Locke v. Davey. Sorry about that. Locke involves a Washington state scholarship program, and whether it's constitutionally permissible to deny that scholarship to a student who wants to study theology.

First, a few links. Here is an editorial from the New York Times (free registration required). Here is NPR's Nina Totenberg if you don't like reading. Here is Tony Mauro of the Legal Times (free registration required). Here is a nutshell from Northwestern's Medill School of Journalism, including a link to the Ninth Circuit decision under review today. Here is a longer summary (at what point is something too long to be a summary?) from Supreme Court lawyers Goldstein & Howe. Finally, here is Eugene Volokh on the case, back from when cert was granted. If you're only going to read one of these, read the Volokh post -- it sets up the positions well and includes many links to relevant cases.

After all that, I'm not sure what I can add that would be worthwhile. But I won't let that stop me.

Josh Davey won a scholarship run by the state of Washington and went off to college. He declared a major in Pastoral Studies, which has little to do with Beethoven symphonies, but rather is a theology program designed for would-be ministers. The state agency administering the scholarship said he couldn't use the money for that purpose, thanks to a state law (and state constitutional provision) barring the use of state funds to support religious instruction. Davey was given a choice: drop the major (note: he could still have taken theology courses), or give up the money. Davey chose the latter, but then sued the state agency and the Governor, Gary Locke, asserting that the scholarship's restrictions violated his federal constitutional rights. Davey is now a first-year student at Harvard law School, by the way. How would you like to have Con Law with a kid whose case is in the book?

This case raises a whole bunch of tricky constitutional questions. Tony Mauro summed it up by referencing the case from a couple of years ago allowing vouchers that go to religious schools: "If the establishment clause is interpreted to mean that governments could provide taxpayer dollars to religious schools, does the free exercise clause mean that they must do so?"

The district court ruled that the state couldn't discriminate on the basis of religion, but it could decide not to fund Davey's religious education. It analogized the case to older Supreme Court cases (Rust v. Sullivan and Harris v. McRae) that held that the state didn't have to fund the exercise of constitutional rights (there, abortion). Also, there are some cases saying that the state can impose a neutral law even if it incidentally makes it tougher for someone to exercise his or her religion.

The Ninth Circuit reversed, holding that Washington had created a "public forum" and couldn't deny Davey a place in it (citing Rosenberger v. UVA). That court said that Rust and Harris didn't apply because those were cases involving government speech. As such, Davey's free exercise rights trumped Washington's establishment defense. I will also note that the Ninth Circuit called the state's purported interest in not establishing religion "less than compelling." The court said the scholarship program was facially discriminatory and couldn't survive.

In the Supreme Court, I think this will go for Davey 5-4. That would mean upholding a Ninth Circuit opinion, but I think they'll do it anyway. (By the way, the Court reversed the Ninth Circuit 9-0 in a search-and-seizure case today, in an uncharacteristically biting Souter opinion.)

I think the Court won't use the forum analysis the Ninth Circuit did, though. I'm not sure how Davey's right to free speech has been infringed anyway, and even when the state creates a public forum, it doesn't have to pay for your soapbox. But at least five Justices have taken the position that states cannot discriminate in the dissemination of benefits based on religion. The voucher case is the biggest example of this.

If I were on the Court (dare to dream!), I would urge the Justices to take the narrower ground and say that this particular program is not narrowly tailored to meet the state's needs. Even assuming not establishing religion is a compelling state interest, only denying funds to religion majors doesn't make much sense. As the Goldstein & Howe summary notes, it is both overinclusive and underinclusive. (They say it much better than I could -- see page 3 of that document.) This would leave for another day the tougher question of which wins when the establishment clause and free exercise clause butt heads.

I know some of our readers are non-lawyers (or maybe just not-good-laywers), so if you have any questions, feel free to ask and I'll try to find someone to answer them. I am still not one hundred percent sure how I think this case should come out, but I think it will be one of the more interesting of the Term, so I wanted to post something about it. I look forward to any thoughts you might have.

I'm working on some longer stuff (not to mention my real job), but a quick word about online dating. Long-time readers will remember my first post on the matter below. Well, yesterday I created a profile on Match.com, not so much so I could put myself out there on the market, but more so I could see the full profiles of the women already on the market.

I searched for women within 25 miles of my city between the ages of, I think, 23 and 29. (I'll be 28 next month.) Those age ranges aren't absolute for me, but I thought it was more realisitc than seeking an 18-year-old ingenue (although the number of 18-year-old women seeking men between 18-35 is a little bizarre to me). And, I don't have anything against 30-year-old women as a class, but I was frankly a little afraid that women over that age would lie -- I saw plenty of women who looked a good bit older than every age range I tried there. Just searching for that, the site returns several hundred matches.

Anyway, the site also allows you to refine your search based on a host of largely meaningless details. For example, you can search for someone based on whether he or she rates "thunderstorms" a turn-on or a turn-off. I tried to be very broad-minded, and put "any" in many cases where I really had a preference. For example, are tatoos and body piercings a turn-on or turn-off? Well, they don't really do anything for me, so I wouldn't call them a turn-on, but I don't want to rule out every girl with just a belly button ring or a tiny discrete tatoo, so I wouldn't call them a turn-off either. But I don't want to date the painted lady from the circus. So, I put "any."

The point is that I don't think I was being overly picky in my criteria, but I did stick by the few things that are really important to me. For example, I don't want kids, and I don't want to date a girl who has been married.

So, I ran the search. Number of matches: Zero.

*Sigh*

So, I refined the search to broaden things a little more. I included women who "defintely" wanted kids, and I included women who called their political views "conservative," and I included women of any religion, even though I don't think I would be very compatible with a very religious woman (see church comments at the previous dating post).

This time the search returned maybe 25 or 30 matches, about half of whom seemed interesting (read: attractive) enough for me to look at the profile. Some of them had things in their profiles that made me realize why my first, more honest, search excluded them.

(An aside: allowing for "conservative" women resulted in a hit for a woman who looked like a porn star and who said the last book she read was "Treason" by Ann Coulter I link to Coulter's main site instead of directly to a "Treason" site because the front page is a must-see. The headline is "Massachusetts Supreme Court Abolishes Capitalism!" By the way, there is a link to a "find single conservatives" dating site there too.)

In the end, I would say there were maybe four or five women who interested me enough to think about engaging in whatever courtship rituals Match.com proscribes. But I'm not convinced that the effort is worth it. I can name way more than four or five women right now who interest me at least that much. And I don't have to take a picture of myself and describe, in less than 250 characters (!), what I'm looking for.

I know what you're response is: Well, then, get out there and give those women whatever the real-world equivalent of the Match.com digital "wink" is. I guess that would be an actual wink. Ah, but if I could do that, I wouldn't be going through all this mess -- and, I probably wouldn't have time to blog. I will continue to update as necessary.

One topic I wanted to write about all weekend was President Bush's trip to Iraq. Not surprisingly, there has been a lot of, well, "debate" would be too polite a word, over it. Bush-lovin' Righties say it was a genuinely nice gesture from a genuinely good guy. Bush-hatin' Lefties say it was a PR stunt that will take the place of the flight suit/"mission accomplished" photo in the campaign ads.

Anyway, I don't care anymore. My overall take is that it's a little of both, and I don't see a whole lot wrong with that. One of the positives about being President is that everything you do can be called "Presidential," but one of the negatives is that (at least during the first term) everything you do can be cast as a re-election campaign maneuver. You take the good, you take the bad....

Well, if you are really psyched to read about this, I'll give you a link: this post from the very good group blog En Banc. They had several posts on the issue, and linked to some others, but I think that was the last of them, so go there and follow the links back in time if you want to. (By the way, I think I recall someone among all those posts saying that Bush was serving gravy with a fork. I don't know if that's true, or if Bush-haters will try to turn that into Quayle's potatoe. I also don't know enough about Army food to know if that might be a feasible way of serving Army gravy. But I find it funny anyway.)

This does not mean that I am getting all apathetic about posting on you. Au contraire. In fact, part of the reason I'm not too fired up about Bush's Iraq excursion anymore is that I have several other things I want to post on. So, stay tuned.

By the way, I was quite excited about the explosion in readership evinced by the many comments to my "Bubba" post immediately below, even if most of them appeared to be from someone worried about breathless nouns. I hope my final, chopped-in-half post in the comments section did not scare him or her off. I have no desire to reverse-engineer IP addresses to find out who our anonymous commenters are, even assuming it could be done. I simply wanted to make sure I knew I was talking to the right anonymous person. If the multiple anonymice in the comments section are in fact the same person, I would advise professional help. As always, thanks for reading, and I promise a return to (beginning of?) substantive posts soon.

Sorry for the light (well, non-existent) posting over the long holiday weekend. And just to prime the pump and get back in the swing of things, I present this lovely story about a man who legally changed his name to Bubba Bubba Bubba.

To answer your two most obvious questions, no, it doesn't appear that this is the only word he can spell. And he's from Illinois.