Summer Abroad 03 - Tiananmen Square and the Forbidden City

Some parts of Beijing are still pretty old, and have not been touched by the rebuilding frenzy. They may have acceded to the beat of the commercial pulse, but they are nevertheless old homes. I remember reading that there was much concern that too much of the old housing around the Forbidden City was being seized for renovation. Still, some samples of older structures remain, and I recognized them from having seen similar buildings in Taipei before.

The southern tower of Tiananmen Square (天安門廣場) is very ornate ...

... and it faces the Chairman Mao Memorial ...

... behind which is the Hall of the People's Heroes.

The rest of the square is huge. The next three images show how far the actual Gate of Heavenly Peace (天安門) really is.

At least the guard here, unlike the ones on the square, was almost as rigid as a Beefeater. I'd seen similar guards in Taipei's public monuments as well. The guards on the square itself in Beijing couldn't help turning their heads all the time to indulge in a bit of people-watching while on the job; I was far less than impressed with them.

This is the Meridian Gate, one of the main gates that leads to the main courtyard and throne room. The first picture doesn't give a great idea of just how huge the walls are, but the one below gives an idea of scale.

The audio tour is very modern: The audio recording for specific sections switches on when the visitor is near that section. Location is monitored through a GPS unit in the device, which includes a map.

The main courtyard and throneroom are stupendously large. There's no doubt that the emperor intended to intimidate his visitors.

These dragon heads are in the rear part of the main throneroom; they are reminiscent of European gargoyles.

This cauldron, and others like it, are not just for decoration; they hold water for purposes of extinguishing fires, and in the winter, wood and coals are burnt in slots in the stone platforms these cauldrons rest on, so that the water does not freeze.

This posterior courtyard leads to the Inner Forbidden City, where the residential palaces were.

The north or posterior side of the relatively smaller rear throne room features stone carvings of dragons cavorting in the clouds. Exorbitant sums were spent bringing the source stone from faraway quarries. Several stone carvings came together to remind visitors that the throne room sits in the clouds with the dragons.

This lion is one of a pair guarding the entrance to the residential palaces.

Some of the side palaces featured models replicating scenes from scroll paintings.

If I heard the audio recording correctly, only the best concubines were able to climb up to this pavilion.

The last Ming Emperor hung himself from the eaves of the central of three pavilions on the man-made hill. Why? The Manchurians, who would establish the Qing (or Ch'ing) Dynasty, had invaded, and breached the Forbidden City.

To see everything in the Forbidden City, the visitor is advised to reserve at least a full day.

Summer Abroad 02 - Beijing in General

Beijing was not confined to simple, barely urban areas like the environs of UIBE. UIBE itself is north of Beitucheng, which marks the northern city walls when Beijing was first made the capital of China under the Yuan Dynasty almost 800 years ago. Inside of the Old City, Beijing gets a lot bigger, and more modern, including some good-looking steel-and-glass concoctions.

Of course, what's "modern" without a Pizza Hut?

Of course, not all the new building is confined within the Old City. The Olympic Park straddles the North Fourth Ring Road, which is really an expressway that, with the East, West, and South Fourth Ring Roads carves out a square in Beijing. The track stadium is south of the North Fourth Ring Road, and the main venue, the so-called "Bird's Nest", is north of the expressway.

At one of the corners of one of the "rings" is the Lufthansa Center, near which is the Hard Rock Cafe, bearing an interesting warning.

Wangfujing (王府井) is known as the Rodeo Drive of Beijing; I guess the Ferrari dealership just about cements that reputation.

At the other side of town, near Beijing (or Peking) University (北京大學) and Qinghua (or Tsinghua) University (清華大學) (the top two universities in China), is Huaqing Jiayuan Wudaokou (華清嘉園五道口), also known as the Koreatown of Beijing. Above a bookstore is a 24-hour burger joint called Lush (see food entry), and there's also a bar and dance floor called Propaganda (see clubbing).

But there are treasures near UIBE as well. Sara found this stenciled portrait of Chairman Mao.

Summer Abroad 01 - UIBE

This summer, a group of students from Loyola Law School, Brooklyn Law School, and Fordham Law School converged on the University of International Business and Economics, or (對外經濟貿易大學), for a 2-week academic program.

On the day we arrived, there was a dust storm; in fact, Ted had thought we were still in the air about 5 seconds before the plane touched down at the airport. This picture is from late afternoon, so the orange-tinted haze isn't so apparent.

Our accommodations were humble but sufficient. At least we didn't have our shower head right over our toilet, even if four guys had to share one bathroom.

UIBE students used glow sticks to point to the venue for a student inter-organization show.

We walked along this walkway every day on our way to the western Main Gate.

The law school building where we ultimately had our final had Loyola colors.

We were told that the log cabins represented ethnic minority groups.

What log cabin is complete without a log bridge nearby?

Even the main lawn, just inside the Main Gate, shows some school pride.

The program had to find separate accommodations for many members because much of Building 0 that was not already occupied by other foreign students was claimed by governmental programs. This particular banner bade a warm welcome to the ganbu (party representatives) of the Treasury Department of Jin City in Shanxi Province.

Professor Atik and Mike Mou steered the class of 58 students through the nuances of international trade and WTO law.

The official name of this on-campus mart is "Education Supermarket". We Americans called it "Target", for obvious reasons.

Behind the proud announcement of the school's name is Cheng Xin Building, where class was held.

Be sure to check out the entries above for more pictures!

End of Finals Party - Hollywood Canteen

Several of the graduating third year students decided to arrange to party at Hollywood Canteen, a favorite watering hole for the Stud. Non-graduating students were also invited. With finals two or three days behind and fading fast into memory, they dolled themselves up and brought out the fun.

Congratulations to those that are graduating, and don't forget about us once you've made it big!

End of Finals Party - Day After

The last day of finals was officially on Tuesday, 15 May 2007. The Stud finished his Patent Prosecution final a bit early, headed home to change, and rolled out for one of the biggest bashes of the school year.

Congratulations to the first years, who have passed an important milestone. The Stud remembers his first encounter with Day After; nothing until graduation will match the elation you will have felt as you finished that Constitutional Law final. If you haven't got work this summer, don't worry, and make the most of your time off. They really do work you to death during second year.

End of Finals Party - Busby's II

Most 2Ls and 3Ls finished by Monday, 14 May 2007, with Business Associations being the last major final. The Stud had a Patent Prosecution final the next night, but joined his fellow advanced students for some celebratory fun.

Finals Distraction - Bruce Lee - The "Lost" Interview

Here is Pierre Burton's December 1971 interview of Bruce Lee in Hong Kong:

Finals Distraction - Technological Terror

Lord Vader really doesn't like it when people forget to turn off their cell phone at the staff meeting.

Finals Distraction - Ryan vs. Dorkman 2

This lightsaber duel hits the spot on a busy weekend of cramming.

(Hat-tip: Namerz)

The LLS 2007 Spring Criminal Procedure Discussion

Following a tradition begun last semester, Law Law Stud is hosting a discussion for bar courses he is enrolled in. If anyone would like to get a thread going for another bar course the Stud is not in, please advise him.

This discussion will be for Criminal Procedure. Specifically, the Stud is enrolled in Professor Stanley Goldman's class.

On the last day of class, Prof. Goldman handed out a short outline, which the Stud reproduces here as is:

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1. Exclusion (its' Limitations) and the Fruit of the Poisonous Tree Doctrine
   1. The exclusionary rule is one of the constitutional remedies available to anyone who has been personally subjected to an unconstitutional search and seizure, interrogation or identification. The rule gives such individuals the right to exclude the illegally procured evidence from their subsequent criminal prosecution, unless one of the exceptions, limitations or exemptions applies.
   2. General exceptions or limitations to exclusion: (Exclusion is not an available remedy in civil cases, or quasi-criminal proceedings such as deportation hearings. Defendant can only get exclusion if the search violates the federal constitution or a federal statute so providing.)
      1. Exclusion does not apply to grand juries proceedings.
      2. Impeachment of the defendant's own testimony (this exception to exclusion does not apply to coerced confessions or, for the purposes of this examination, to Massiah violations.) Improperly Mirandized confessions, pre or post arrest unMirandized silence, illegally seized evidence and Jackson violations, though inadmissible in the prosecution's case in chief, may nevertheless be introduced as evidence for the purpose of impeaching the "defendant's" testimony if he personally takes the stand at trial and testifies in a manner inconsistent with the unconstitutionally obtained evidence (or silence).
      3. Good faith reliance on:
         1. a statute or ordinance later declared unconstitutional; or

         2. a defective search warrant as a result of insufficient probable cause.

            Exceptions to the Good Faith Reliance on a Defective Search Warrant:

            1. Affidavit so lacking in probable cause no reasonable officer could rely on it.
            2. Warrant is defective on its face (e.g., failure to state with particularity the place to be searched or things to be seized).
            3. Affiant lied to or misled the magistrate.
            4. Magistrate has wholly abandoned his judicial role.

      4. Fruit of the Poisonous Tree: (Excludes all evidence obtained or derived from illgal police act as tainted "fruit.")

         Exceptions:

         1. Free will. Independent Acts that break the chain of taint between the original unlawful police action and the illegally derived evidence (can include the free will of the accused or the witness).
         2. Inevitable Discovery (Including independent source rule.)
         3. Miranda violations - No fruit of the Poisonous Tree exclusion of 3rd party statements or physical evidence.
         4. Knock and Announce violations - No Fruit of the poisonous tree exclusion for all or most evidence discovered in the residence.
2. Search and Seizure Model
   1. Was there State Action?

   2. Does defendant have standing to object?

      Does defendant have reasonable expectation of privacy? A defendant only has standing to object when he/she has a reasonable expectation of privacy in the area searched or the item seized. Seizure of items already exposed to public view implicates no right of privacy.

      Example: Ease dropping.

   3. Did the police have a search warrant?
      1. Was there a probable cause for its issuance?
      2. Did a neutral and detached magistrate issue the warrant?
      3. Was the warrant properly executed?

   4. If there was no warrant or the warrant is not valid then did the search fall within any of the following exceptions (or can the state use the "good faith" defense to exclusion in order to justify the introduction of the seized items?)

      The Warrant Exceptions - Can the search fit squarely within one of the eight narrowly drawn exceptions to the warrant requirement?

      1. Evanescent
         1. Example - extraction of blood for alcohol test
         2. Intrusion must be reasonable
      2. Plain view
         1. Legitimately on the premises
         2. Discovery of fruits or instrumentalities of crime or contraband
         3. In plain view
      3. Consent
         1. Voluntary and intelligent
         2. Third party consent - where two or more persons have or are reasonably believed to have right to use or occupy a piece of property or premises, then either one can consent to a warrant less search and bind the other (unless the opposing occupant is present and inform police of their objection).
      4. Stop and Frisk
         1. Reasonable suspicion to stop
         2. Frisk and pat down for weapons
         3. What if other evidence that weapon is found? Ho much like a weapon could it seem from the outside?
      5. Border Searches
         1. Searches at border do not require probable cause or even reasonable suspicion.
         2. Searches away from border do require probable cause
      6. Hot Pursuit - Real Hot
      7. Search Incident to lawful arrest
         1. Arrest must be lawful
         2. Contemporaneous in time.
         3. Geographic span - the person and his wingspan
         4. More lenient for automobile searches but may be limited in future by the Court
      8. Automobile Exception
         1. Full probable cause, but no warranty required based upon
            1. Exigency of the car's mobility
            2. Lesser expectation of privacy justifies
         2. Warrant less search of the whole car and packages or containers that could reasonably contain the item for which the police had probable cause to look.
3. Pre-Trial identification
   1. Counsel needed at post-indictment line-ups
      1. Not needed for photo line-up
      2. Not needed for handwriting sample, etc.
   2. Denial of due process if line-up is unnecessarily suggestive
   3. If line-up is unconstitutional for either reason then:
      1. Line-up identification is inadmissible
      2. Trial I.D. also inadmissible unless proven independent by clear convincing evidence.
4. Double Jeopardy
   1. Once jeopardy attaches, a defendant cannot be retried for the same offense by the same sovereign after a dismissal, acquittal or conviction not reversed by defense appeal
   2. Separate sovereigns

   3. Jeopardy attaches when jury sworn or first witness takes the stand

      Exceptions:

      1. Hung-jury
      2. Mistrial
      3. Successful defense appeal
5. Confessions - Defendant can object to the admissibility of his confession.
   1. Miranda
      1. Essentials
         1. Custody and
         2. Interrogation
         3. If both a & b are present, then the police must give the Miranda warnings and obtain a waiver.
         4. Waiver must be voluntary and intelligent - Burden on suspect to clearly exercise. Police need not seek to clarify ambiguities.
         5. Edwards
            1. Right to remain silent
            2. Right to counsel
      2. Exceptions
         1. waiver (see above)
         2. spontaneous statement (no interrogation)
         3. not custodial (e.g., probation interviews, tax audit interviews and early in routine traffic stops not considered sufficiently custodial settings - no Miranda warnings required)
         4. use for impeachment (including silence except post-warnings silence)
         5. fruit of the poisonous tree (non-testimonial evidence)
         6. substantial compliance
         7. public safety (not applicable to coercion)
   2. Massiah (Blockburger Limitation)
      1. Represented by counsel
      2. Formal proceedings have commenced
   3. Jackson (Counsel requested but not yet appointed)
   4. Must be voluntary
      1. Coercion.
      2. Not incriminatory. (Immunity)

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Let the discussion commence!

The Second Amendment

The recent mass shooting at Virginia Tech have been occasion for many to think about the state of gun control and the Second Amendment in the United States. As students of the law, Law Law Stud invites you to participate in the discussion.

The Second Amendment is not, as perhaps some would prefer to think of it, simply an outdated relic of the 18th Century. It is not a political compromise of the sort that preserved slavery in the South. It was part of a group of amendments that were ratified by the states as guarantees against the terrifying prospect of an overreaching Federal Government. This group of amendments are now known to us as the Bill of Rights.

Nonetheless, because guns and firearms are the most specifically recited tangible, physical objects, and because they can be used to end lives, they and the Second Amendment are source for much debate.

The Second Amendment reads:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Arms
First, there is the matter of what constitutes "arms". The modern interpretation is that it means firearms. Given that the Founding Fathers had, less than ten years before the ratification of the Constitution, ended a shooting war with Great Britain, it is likely that they also had such a definition in mind. Since there hasn't exactly been a great public controversy over the right of private citizens to own swords and catapults, we shall focus on firearms.

State vs. People
Second, to whom does this right apply? There are two principal interpretations. The first interpretation focuses on the word "State": Since a State necessarily regulates its Militia, the argument goes, it could dictate the terms of gun ownership. The second interpretation focuses on the fact that the amendment says specifically that "the right of the people to keep and bear Arms shall not be infringed." From a textual position, this second interpretation seems strongest, as it is unencumbered by apostrophes or supporting clauses. From another point, a principal rule of Constitutional Law is that governments have powers, people have rights. This is particularly spelled out in the Ninth and Tenth Amendments.

Militia
Third, what is the point of reciting the need for a well regulated Militia? A principal rule of statutory interpretation is that every word means something. By extrapolation, every clause has a reason. What then is the reason for the reference to the Militia, and what does it have to do with the right of the people? The traditional explanation has been the linkage between the yeomen Minutemen of Massachusetts and their involvement in the War of Independence. The war brought realization to all doubters that, whether federal or local, a free state relies for its security on its militia, or military forces. At the time of the ratification, the United States was still largely in debt, such that the provisioning of military arms was not affordable. In much the same way as ancient Spartan hoplites, then, it made sense for citizens to provide for their own arms. Besides, given the initial battles of Lexington and Concord, it was apparent that private control of military arms kept alive the specter of resistance to any government. Indeed, the nation saw in Shay's Rebellion and the Whiskey Rebellion that armed resistance was credible resistance.

Thus, an armed citizenry not only provided the government with soldiers (a State free of occupation), it also kept government on its toes (a State of free men).

State Power
Fourth, assuming that the Second Amendment, despite its clear language, can be read expressly as granting States power to regulate firearms, what if any impact do subsequent history and amendments have? Bruce Ackerman and Kurt Lash, proponents of "regime theory", hold that the introduction of the Civil War Amendments may require incorporation of the Second Amendment. Incorporation, students of Constitutional Law will remember, is the application of the Bill of Rights against State governments. The Thirteenth Amendment, which explicitly abolished slavery, has been interpreted also to forbid "badges and incidents of slavery". Civil Rights Cases, 109 U.S. 3 (1883). Professor Lash notes that if the right to keep and bear arms is interpreted as a right of self-defense, then any State law which restricts self-defense would violate prohibitions on "badges and incidents of slavery", because slaves were not allowed to defend their persons, nor to hold, much less defend, their own property.

Infringement
Fifth, there is the matter of what exactly "infringement" means. Returning again to statutory interpretation, note that the Second Amendment states that "the right of the people to keep and bear Arms shall not be infringed." (Emphasis mine.) This is a different limiting word than that of the First Amendment, which prohibits "abridging the freedom of speech, or of the press, or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." Why this difference?

Dictionary.com defines infringe and abridge slightly differently.

infringe

1. (v.t.) to commit a breach or infraction of; violate or transgress: to infringe a copyright; to infringe a rule.
2. (v.i.) to encroach or trespass (usually fol. by on or upon): Don't infringe on his privacy.

abridge

1. to shorten by omissions while retaining the basic contents: to abridge a reference book.
2. to reduce or lessen in duration, scope, authority, etc.; diminish; curtail: to abridge a visit; to abridge one's freedom.
3. to deprive; cut off.

Law Law Stud takes the position that an infringement is a total abridgment, such that all infringements are abridgments, but not all abridgments are infringements. This seems to make sense in light of how most people tend to think about the difference between Second and First Amendment rights. While most reasonable people may find hate speech disgusting, but protected, most reasonable people would probably tolerate certain aspects of gun control, such as requiring safety education, locks, and automatic but speedy background checks. Certainly, nobody wants a mentally unstable person to have easy access to guns.

Use?
Finally (at least for now), the Second Amendment is interesting in what it leaves out. While it explicitly discusses "the right of the people to keep and bear Arms" (emphasis mine), it says nothing about their use. Presumably, it leaves this to state common law and criminal law. Certainly, killings not justified by self defense would be proscribable. This, of course, seems to make eminent sense, though supporters of gun bans would be livid. Even if we assume, then, that any abridgment would be an infringement, contra the discussion above, and that the Second Amendment can be incorporated against the States, all that it protects is "the right ... to keep and bear Arms," not to use them. In plain English, this means that an individual would have the right to have a gun, and even a right to carry a gun, perhaps even by concealed carry. But that individual might not have the right to use that gun without a license. Since use is not governed by the Second Amendment, then, it is governed by state common and criminal law, and under the doctrine of state police powers, use may be heavily regulated, even to the point where only shots fired in self-defense are ever permissible. Still, that would provide legal cover for those who do use their guns to stop mass shooters before many more are killed, cover that is already available under common sense.

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This promises to be an interesting debate, and Law Law Stud welcomes your thoughts, so long as you do not lose your point in name-calling. Have at it!

Bar Review - Brass Monkey

The last bar review of the semester was a festive occasion for a last hurrah from many 3Ls, and from some non-graduating students as well. This bar review was at the famed Brass Monkey.

Best of luck to the 3Ls, and don't forget us. To everyone else, good luck on finals, and we'll see you at the bar next year!

American MI5?

The Seventh Circuit Court of Appeals' Judge Richard Posner addresses the question of the lack of adequate domestic intelligence in the United States:

The FBI came under heavy criticism last week when it was reported that the agency had failed properly to supervise the issuance of national security letters, a form of administrative subpoena used in terrorist investigations. The bureau, it turns out, was unable even to determine how many such subpoenas it has issued.

Just weeks earlier, it was discovered that the FBI had been misreporting the statistics that it uses to track its intelligence activities. The bureau attributed that lapse to its continued struggle -- five and a half years after the 9/11 attacks -- to master modern information technology. The FBI also inflates its counterterrorist statistics by defining terrorism to include the acts of obnoxious but minor political criminals, such as white supremacists, animal-rights extremists and makers of idle (but frightening) phone threats.

Is it the case that the FBI is "incapable of effective counterterrorism," as an editorial in this newspaper wondered? Does the country need "to debate again whether domestic antiterror functions should be taken from the FBI and given to a new agency modeled after Britain's MI5"?

The answer to both questions is yes.

Quite a scathing pronouncement indeed. Fans of James Bond books and movies may be delighted at the prospect of having an MI5-styled domestic intelligence agency here in the United States, but civil libertarians are apprehensive. Judge Posner notes:

Civil libertarians worry about abuses of domestic intelligence. But an agency that had no powers of arrest or prosecution, and that conceived its primary role to be to prevent the alienation of Americans who have religious or family ties to nations that harbor terrorists, rather than to run up arrest statistics, would be less likely than the FBI to engage in the promiscuous issuance of administrative subpoenas.

How would an agency that had "no powers of arrest or prosecution" do its work? This can be quite befuddling, particularly if one views counterterrorism as nothing more than routine law enforcement. This is an understandable attitude, but only because the United States has never had a real domestic intelligence unit. In the popular media, the FBI or the CIA spies on citizens within the United States itself; but the CIA is not empowered to conduct domestic intelligence gathering, and the FBI's abuses are (supposedly) checked by the Bill of Rights, particularly the Fourth (addressing searches and seizures, including nontraditional searches and seizures such as wiretapping), the Fifth (addressing self-incrimination), and the Sixth (addressing right to counsel) Amendments.

The idea of an analog to MI5 has been around for a while, particularly after 9/11, when it was apparent that FBI agents did not act on tips from Arizona regarding some of the 19 hijackers taking flying lessons but never moving on to lessons on landing planes. And yet the FBI seemed mostly to have played by the book; indeed, its extra zeal now, particularly in taking advantage of the Patriot Act, seems like an overcompensation.

The remaining worry, then, is whether or not a domestic intelligence agency with no arresting or prosecuting powers would be at all effective. Further, to whom would it report? The Secretary of the Interior? The Secretary of State? And should it be placed under the Department of Homeland Security? Should it be placed under the Director of National Intelligence? How independent should it be from the FBI? What about turf wars between the FBI and a Domestic Intelligence Agency?

My gut instinct is that Judge Posner is right. He has articulated a great rationale for having a DIA. How that would be implemented, in the current political atmosphere, is another story.

Wit of Mandamus III

On Friday, March 16, 2007, at 7:30pm in the Student Lounge at Loyola Law School, the third incarnation of a renewed tradition took place: Wit of Mandamus III. Law Law Stud proudly reported from Wit of Mandamus II, and continues to bring you reportage from the leading edge of LLS social life.

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Article I

The show began with one of the student founders of the show, Cameron Fredman, jazzing along on the piano with the House Band, bringing out the Master of Ceremonies, Lenny "Ham Sandwich" Sansanowicz, another of the student founders of the show.

Abstract (part 1 of 3)

Abstract (part 2 of 3)

Abstract (part 3 of 3)

After Lenny's introduction, Zack Domb kicked off the musical performances with an original piece, "Melanie":

"Melanie" (part 1 of 3)

"Melanie" (part 2 of 3)

"Melanie" (part 3 of 3)

Taking the show in a slightly different direction, Mike Hanna wowed the audience with amazing beatbox skills. (Video clips courtesy of youngotti888.)

Mike Hanna (part 1 of 2)

Mike Hanna (part 2 of 2)

Next up, Carley Mak brought her friends back to a choreographed swing dance routine based on "Sister Kate", and to a jam with the House Band.

"Sister Kate"

Swing Dancin' with the House Band

Following up was the Stud himself. Lenny gave a most moving introduction as he passed the Wit of Mandmaus torch. Curiously, there are currently no video clips of this act.

Scott Wilson, President of the Day Student Bar Association, performed Frederic Chopin's "Valtz in A#, Op. 42".

Scott Wilson Playing Chopin (part 1 of 2)

Scott Wilson Playing Chopin (part 2 of 2)

Teresa Straley, an LLS alumn, was next with her original work, "Once Upon a Time", accompanied by Professor Jay Dougherty.

Stephen Cawelti, another LLS alumn, then joined them to sing the Beatles' "I Saw Her Standing There".

Next, Professor Allan Ides and 3L Alex Diaz joined them to play "Ruby Tuesday".

Closing out the first half of the show, Craig Kirkwood sang as he and the House Band brought the audience George Gershwin's "Summertime" from Porgy and Bess.

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Article II

Ushering in the second half, albeit without an intermission, playwright-scholar Jose "Oldman" Garcia, and a quickly assembled cast, brought us "In re Tramp", a hilarious series of law school jokes regarding a claim brought against one Miss Hilton for adverse possession of a love interest.

Due to the sudden shift in schedule, the Stud didn't quite catch Dennis "Funhouse" Martin in "Stolen Moments".

Shifting back again to law-related humor, Professor John Nockleby and the Noklebettes, with the House Band in support, sang their hearts out in "All I Care About is (Torts)". The Stud regained his equanimity just in time to catch the last part on video.

Next up was singer-songwriter David Jonelis, who had already made his mark at the 2006 PILF Auction. For Wit of Mandamus III, David played an original work, "Reflections".

Zack Domb officially introduced the audience to Bill Shafton as they performed Zack's new original piece, "Angie". (By request, a clip of "Angie" will not be posted.)

Then, Bill was on his own as he played an amazing rendition of "Redemption Song", first softly with finger picking style, then strumming with an energetic pick.

"Redemption Song" (part 1 of 2 - finger picking)

"Redmption Song" (part 2 of 2)

Not to be outdone, Director Jonathan Stout displayed his talent in "Dark Eyes", backed up by Zack Domb on the guitar and John Given on the bass. Jonathan is a regular Django Reinhardt!

As the show neared its end, Puya Partow delighted the audience, dancing and twirling to "Billie Jean".

Finally, to close out the night, the Professors returned to the stage for a medley, including "Midnight Hour", "We Gotta Get Outta This Place", and "Gimme Some Lovin'". Preparing to wrap things up, the Stud did not obtain video of the entire medley (only "Midnight Hour"), but rest assured, it was a thing of beauty!

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And thus the night came to an end. The Stud thanks all the performers for putting on such a terrific show; the audience, for making the performance worth putting on; all those who helped with last minute changes (you know who you are); and Giancarlo, for manning the ticket table.

Finally, if you were not able to attend or perform this year, the tradition will keep going. Get on the boat early, and we'll see you next year!

Acknowledgments

Credits

• Producer: Bruce Chang
• Director: Jonathan Stout
• House Band: Zack Domb (guitar), John Given (bass), Cameron Fredman (piano), Jonathan Stout (drums)
• Master of Ceremonies: Lenny Sansanowicz
• Spotlight: Tim Oppelt
• Publicity: Mike Hanna

Special Thanks

• Marti Reynolds, for showing us the ropes
• Ernesto Lozano, for coming through
• Professor John Nockleby, for inspiring us at 8am
• Lenny Sansanowicz and Cameron Fredman, for starting a tradition
• Tim Oppelt and Jenn Rich, for continuing the tradition
   
  - and -
   
  
• The Staff of Loyola Law School

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(All videos except for Mike Hanna's beatbox routine were taken with a Canon Powershot S70, set at a resolution of 640x480.)

Barristers Ball 2007

Barrister's Ball came a little earlier this year, but that worked well for the hundreds of fun-starved law students and their friends and significant others that descended on the Music Box @ Fonda in Hollywood on the night of Saturday 24 February 2007. As Law Law Stud sauntered toward the front door, a bright yellow bus pulled up with dozens of hooting partygoers.

This year, there was no special rate for couples, as the Student Bar Association tried to incentivize stags to go and party anyway, despite the characterization of the party as "Law School Prom". Whatever the rationale, the turnout was fantastic. Law Law Stud had a nice, sedate dinner with friends, and before much time had passed after the arrival at the Music Box, the night frittered into a frenzy of meet-and-greets. Law Law Stud caught up with friends from all years of law school. Of the 2Ls, the former Section 3 made the best showing.

First Amendment Symposium

This weekend past, a First Amendment Symposium was held at Loyola Law School in honor of esteemed alumnus Steven Shiffrin. It was attended by eminent constitutional law scholars, including Erwin Chemerinsky, Kurt Lash, and Eugene Volokh. The topic was commercial speech, particularly in the context of Kasky v. Nike, Inc., 27 Ca. 4th 939 (2002). I've broken down just a hint of the arguments that each of the distinguished speakers made.

First Amendment Theory

Martin Redish
The arguments for reduced protection for commercial speech tend to fall into three categories:

1. Rationalist: This group claims to be neutralist, and rationalist policies tend to be suspiciously underinclusive, and tend to exempt media corporations because their very product is speech, but restrict other corporations because they advocate non-speech products.
2. Intuitionist: Dan Farber was the main advocate of this group; it is both anti-intellectual and intellectually arrogant. It cannot be responded to, and there is no way to decide whose intuition is correct.
3. Ideological: This side tends to want to suppress speech because of a paternalistic notion that commercial speech makes people buy things they don't need. There is no trust of individual choice.

Robert Post
We cannot begin under the premise that all speech is protected, and that any derogation is a violation. What is actually covered is much less than the universe of all speech. For example, contractual terms and confidentiality agreements and relationships are not covered. If all speech were covered/protected, then daily life becomes an unceasing constitutional question. In fact, viewpoint discrimination happens all the time, such as when grants are distributed, when public school students are corrected, and so on.

We protect only that speech which lays a part in democratic self-governance--that speech which contributes to political diversity. Political statements are not compelled, but commercial statements may be compelled, such as disclosures and disclaimers. As to, for example, Consumer Reports criticisms of commercial products, it is not whether we should differentiate between political and commercial speech, but rather, where the boundaries lie.

Steven Shiffrin
What's wrong with intuitionism? That's how the common law is developed, after all. Some regulation is okay, such as the FTC and the SEC--it's all for the protection of the consumer.

By the way, self-government is a fiction, an illusion of participation. Also, commercial speech, by making materialists of us, undermines the development of participation and of an active citizenry.

James Weinstein
It is incorrect to call all who disagree "ideologically hostile to the premises of capitalism." E.g., Rehnquist, O'Connor, Posner, and others, are unarguably capitalists, and yet they would disagree with Prof. Redish.

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First Amendment Principles in Practice

David Vladeck
Early commercial speech cases involved anti-competitive regulations (about 50%) or anti-vice regulation (about 50%). Nike v. Kasky was the first one to address expressive commercial speech. Contra Prof. Shiffrin, the FTC/SEC/FDA are not the pit bulls he thinks they are. In fact, under strict scrutiny, the regulatory agencies have retreated. E.g., dietary supplements have been permitted to make unverifiable claims (so long as they are not verifiably false). Interestingly, pharmaceutical manufacturers have begun lobbying Congress to expand the department which pre-screens their commercials.

Bruce Johnson
Nike v. Kasky has not been revisited in any other case in the U.S. Supreme Court. They key issue in Nike v. Kasky turned on whether or not Nike's claims about the manufacturing, in response to Consumer Reports, constituted commercial speech. One reason for the lack of a follow-up to Nike was because of Proposition 64, which limited the free rein that California had once given to anyone with a bar license to sue any corporation, even without a showing of damages.

Judge Robert Lasnick
There is a ring of truth to claims of judges' power to decide what is educational, what is obscene, etc. Much is context-specific. Bill Gates speaking as Chairman of Microsoft is heard with some skepticism, but is given a wider berth as Director of the Bill and Melinda Gates Foundation. In essence, it's a lot more pragmatic than some of the loftier principles discussed by the law professors.

Note: Reckless disregard is a lower standard than intent, and in the era of easily saved e-mails, much more evidence can be swept into scope.

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Philosophical Underpinnings of the First Amendment

Seana Shiffrin
Defense of autonomy: voluntary associations should be able to exclude for any reason--including invidious ones--or for no reason at all. This forms the basis for private regulation, as individuals govern their speech differently for different fora. We already regulate corporations in economic contexts.

Glickman and United Foods both involve compelled advertising. Such advertising was ruled constitutional in Glickman because the advertising was germane to the purpose for which the association was formed. In United Foods, the advertising was struck down because it was not germane to the associational purpose.

We should not encourage markets to see themselves as amoral. In the commercial context, there is reason to differentiate between that speech which is purely self-interested, and that which carries a moral and/or political message. Restrictions on commercial speech should be much lighter for non-self-interested speech.

C. Edwin Baker
Three reasons commercial speech should be completely denied First Amendment protection (despite first having approached this from a libertarian perspective):

1. The capitalist economy really leaves economic actors no choice but to act in the most efficient behavior possible, and thus to engage only in speech that leads to profit.
2. A business enterprise is only a person in the legal, fictitious sense, not a flesh-and-blood person, so corporate behavior which is harmful to society should be proscribable.
3. There may be paternalism, but it doesn't stop a message, except where the only persons, natural or not, that are willing to get the message are the sellers--in which case, is it really so bad? Besides, the very notion of a democracy is paternalistic, and empowers further paternalism.

Exercises of power may be appropriate in some contexts. Government exercises of power are legitimate anyway; market exercises of power are not subject to democratic processes, so are illegitimate. [Martin Redish characterizes this view as Jacksonian in its distrust of money.--LLS]

Charles Fried
I couldn't disagree more with Ed Baker. The most important liberty is liberty of the mind. Since we are embodied minds, it's an easy step to liberty of the body, as recognized in Lawrence v. Texas. An embodied mind necessarily leads to expression of the mind through emobided words--speech. Baker proposes to treat all cooperatvie work as radically different than individual exertions. Is, then, a performance by the L.A. Philharmonic, then, to be treated radically different from a solo performance? What if I pay other musicians to play with me as a string quartet? Baker's proposal that any cooperation which is compensated is somehow unfree, diametrically opposed to pure, individual existence, simply does not stand up to reality.

Cooperation, like a symphony orchestra, or a string quartet, or a couple making love, is a group of people organized for a common effort. We should not reify such organizations. We should not treat speech differently because a corporation does it rather than an individual.

Rebecca Tushnet
There is no problem with assigning different meanings to words per se; the problem arises when the speaker's definition is not disclosed--and even more so when the listener has a different definition. We often solve this problem by designating an entity to decide in conflicts of definition; those proposing more protection for commercial speech propose a different decider--the jury. But choosing a different deciding agent does not resolve the underlying problem--people have different definitions for the same words.

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Concluding Reflections

Tamara Piety
The field of regulating commercial speech based on truth or falsity has become, like the debate about obscenity and fighting words, an empty set.

Eugene Volokh
Some broader trends in First Amendment jurisprudence have arisen over the years. The basic theory is that there may be some speech that is less or not protected.

Steven Shiffrin's reaction against materialism runs some risks. First, materialism is not necessarily bad; after all, sometimes we show our love for our families through giving materialist goods. Second, societies that have retreated away from consumerism have often come to bad ends, including utopians who run totalitarian states. In fact, the equal rights movement may have been well-driven by the desire to have equal access to riches--and a religious focus may not have given rise to such a movement, because in religion, only the afterlife mattered, and all were equal before god. [But what about the British abolitionist movement?--LLS]

Be skeptical about theories, and how we apply them, e.g., in deciding which speech should be protected. Also, most people underestimate the amount of speech that is incontrovertibly protected or incontrovertibly unprotected.

C. Edwin Baker
Most speech that is recognized as valuable is speech that nobody thinks to regulate. [This seems to place the cart before the horse.--LLS]

We should not personalize the corporate speaker.

We need an image of the First Amendment. The "marketplace of ideas" does not work. The dissenter, which Shiffrin proposed, may be more apt.

We allow all kinds of viewpoint discrimination anyway, but no one has made an argument against restricting commercial speech other than alleging paternalism. [But what about the corporate right of reply?--LLS]

What about corporate political speech? If we can limit press political speech through equal time requirements because of their power and reach, shouldn't we also limit corporate commercial speech for the same reason?

Is Law School a Waste of Time?

The second half of second year is well under way now, and the Stud is feeling a little burnt out, to the degree of actually missing a bar review. At times like this, one can't help but wonder if law school is a waste of time. Here's a snippet:

The Carnegie Foundation is correct in observing that law schools are weak at teaching prospective lawyers the kinds of client-representation skills that Stracher’s adversary had mastered so well on his own. The fact, however, that it is quite possible for people like him to learn those skills somewhere other than in a law school ought to cause us to wonder if a formal educational setting is really the best place for lawyers to develop the representational skills they need. That competent paralegal may have been so good because he observed lawyers in action. If he had spent three years in law school, he probably would have known less about how to advocate for his clients.

We at Loyola Law School are fortunate in that LLS does not shy from employing adjunct professors for practical as well as theoretical coursework. In fact, Loyola is well-known for the continuing practical legal education it provides for Los Angeles-area attorneys. My fellow Legal Lions, take heart! And since you're in it already, make the best of it!

The LLS 2006 Fall Evidence Discussion

Pursuant to a request, I am starting a discussion for Evidence. Unlike the discussion for Con Law 2, I am starting this before my outline is completed. There are enough readers that know enough about different parts of the subject to help each other out. Further, consider this a gathering place, a bulletin board, for students to trade information on helpful suggestions. Because Loyola Law School has the most helpful students!

Update: (2006.12.18.01:50 PST) Goldman students: Here are notes from the review he had on Monday 4 December:

Agency theory
If the only evidence you have to support a theory of agency is the fact that the agent declared himself an agent, that is not admissible in any jurisdiction to prove its point; however, in federal court, if it has been admitted for other purposes, it is admissible as partial proof of agency

Present recollection refreshed vs. past recollection recorded
When can something be read into evidence, and when can it not? You can read into the record a past recollection recorded; if it is a present recollection refreshed, the refreshing document may not be read into the record on direct examination. A present recollection refreshed does not qualify as a past recollection recorded because one of the elements of a past recollection recorded is missing: that the person does not remember.

State of mind
California requires, for past state of mind, that the declarant is unavailable, and that there is high degree of trustworthiness (that the statement was what the declarant believed).

Corrections
In the chart on state of mind, there is a mistake. Where it talks about “future conduct by someone other than declarant”, change CEC 1251(b) to CEC 1250(b). Actually, scratch it out. It should be “yes, according to case law”.

Authentication
You always have to authenticate. For example, a business record needs to be authenticated before you can even object to it as hearsay, much less claim an exception for business records. If a witness does not authenticate a writing as hers, you can still authenticate in some other way, for example by using a handwriting expert.

Prior convictions
California doesn’t follow a strict collateral rule like the federal courts. California pretty much only goes by CEC 352, so it’s a case-by-case determination.

Attorney-client privilege
Gossip is not included.

Prior inconsistent statements
California seems to have the most flexible rules, allowing a court to keep a witness on call after examination. This may consume a lot of time, but California is more concerned with fairness.

Statements identifying a person
If a witness has identified a person, but subsequently claims not to remember, is that a consistency issue? Is there a problem with the prior identification? There is no problem; in fact, if the identification has been made, there’s no point to try to establish the identification again. By the way, there is no requirement that the prior identification have been made under oath.

Prior consistent statements
In federal rules and common law, there is only one trigger—an allegation of “recent fabrication”; in California, there are two triggers—an allegation of “recent fabrication” and prior inconsistent statement.

Best evidence rule
If a doctor looks at an X-ray and also determines from other methods that his patient had a broken leg, is his testimony that the patient had a broken leg admissible? It may be. In order to exclude this, we’d have to isolate his diagnosis to the X-ray alone, triggering the best evidence rule.

Admissions
Do they have to be to the other party? No, they can be to anybody.

The LLS 2006 Con Law 2 Discussion

It's that time of the semester, and Con Law 2 draws upon us. It seems like a simple subject at first, but surely many of you have realized that it's not quite that simple. I realize it's a bit late in the game, but I have a special deal. I'm the type that doesn't feel secure in his knowledge unless I'm being challenged with questions. They don't have to be complex, but I invite you to submit your questions, and I will be answering them throughout the night.

Please post your questions in the comments. I will answer here, and you are all welcome to answer each other if my answers don't quite cut it. Have at it!

Hearsay Exception

For all my peeps in Evidence, learn this, and learn it well!

This has been a public service announcement.

Bar Review - Hollywood Canteen

The Stud is no stranger to Hollywood Canteen; in fact, it is a fun place. The powers that be apparently agree, and the last Bar Review of the semester was held there.

Turf Club - Part VIII

The last Turf Club of the semester came with a pleasant surprise: There were In-N-Out Burger Carts on the basketball courts! There were rumored to be only 300 burgers available; whatever the actual number, most of those who got in line (and it was a very long line) managed to get burgers.

We should do this again some time.

[lawschool]

Sentenced to Hang

Saddam Hussein has been sentenced to hang. Unsurprisingly, his Sunni cosectarians were none too happy about that, and the Shiites rejoiced. Saddam's sentence is automatically appealed, as it is a death sentence. (On a separate note, one of the codefendants, who received a sentence of life imprisonment, has also had his sentence automatically appealed.) Europeans will surely not like this; the issue of capital punishment has been resolved, for the foreseeable future, in the negative. However, for much of the world, this seems to be appropriate punishment. In fact, by Iraqi standards, the transparency of the trial is unprecedented.

Some argue that the sentence should be void because the entire trial was a kangaroo court, or at the very least lacked jurisdiction. However, the symbolism of the proceedings, and their educational value, may in a sense be more important here. Had the trial taken place in the United States, there would be much made of due process. American law also tends to differentiate between moral culpabilities involved in crimes by differentiating between the charges. Hence, the differences between involuntary vehicular manslaughter and first degree murder. The different charges open up different levels of punishment. In the Saddam case, the primary issues seem to be causation and punishment. That is, did Saddam effectuate the crimes of which he has been accused, and how harsh should the punishment be?

There is no doubt a long litany of accusations against Saddam, for offenses perpetrated by his regime. While it seems likely that he authorized the carrying out of these crimes, it does not seem beyond reason that one or two incidents were not explicitly or implicitly authorized by him, and that his culpability may only be to the extent to which he overlooked them. For such incidents, he is still accountable, but it is arguable that the death penalty is not a proportionate response.

Of course, the final arbiters of proportionality must be Iraqi. It would seem unrealistic that a majority, much less a supermajority, of Iraqis would approve of the death penalty. I doubt that any debate about it within Iraq would be all that controversial; indeed, the soul-searching seems mostly to be among intellectuals of the West. Many of a liberal bent reject both crimes against humanity, as well as the death penalty, for similar reasons (many of which find their roots in liberal Christianity, ironically). In the case of Saddam, they may be forced to compromise one or the other value.

Or, of course, they can try to sidestep the issue by hanging on to the claim that the entire war was illegal to begin with. That's another discussion altogether, and raises legitimate points of controversy. But it does not resolve the question of, "Now that we're here, what do we do?"