Statute of Frogs

Orin Kerr has a post over at the Volokh Conspiracy about the dynamics of e-mail lists and the Reply All problem.  I don’t understand why people have such trouble with the difference between Reply All and Reply.  Is there something non-intuitive about the names?  It seems like a pretty simple distinction:  do I want to reply to the person who wrote the e-mail, or do I want to include everyone in the conversation.  But some people are congenitally unable to figure out which one to use.  Drives me nuts!

Everyone who took PMBR, or who thought about it and didn’t, should read this. I guess there’s some truth to PMBR’s claim that its practice questions look most like the real MBE. I wonder if this is why this year’s MBE was such a bear.

Sorry things have been so slow here.  It’s been an action-packed, but pretty draining first week of clerkship.  A few highlights:

• A trial, which was supposed to begin on my second day, but was called off at the eleventh hour (the potential jurors were being brought up in the elevator) by a settlement
• A set of motions in limine in a bank robbery trial covering everything from the defendant’s potential gang activity to his accomplice’s polygraph
• An appalling number of requests for deadline extensions for really dumb reasons or no reason at all

Now I’ve started work on what will likely be my first actual opinion draft (everything thus far has just been orders) in an interesting First Amendment case.

All things considered, I couldn’t be happier:  I like the people I’ll be working with, the cases are interesting, and I’m learning a ton.  It doesn’t even bother me all that much that I feel more clueless than at any time in recent memory.  My co-clerk (who’s already been there for a year) has been remarkably patient answering my questions.  I’ll catch on eventually.

Reading the article in this morning’s NY Times about Judge Taylor’s decision in one of the warrantless wiretap challenges, I was struck by the frequency with which the argument that this decision would weaken national security was used in decrying the decision. This is a perfectly reasonable political argument, but I find it totally unconvincing as a legal rationale.

All the rights guaranteed by the Bill of Rights limit the ability of the government to act in ways that it thinks best for the protection of the people. Those rights represent a trade-off between government power and individual rights and, the way the government is set up, we either need to accept that trade-off or amend the constitution.

Certainly, the government could fight crime (including terrorism) more effectively if it could enter anyone’s house on the merest suspicion and search for evidence of wrongdoing. Looking only at national security, it seems clear that the Fourth Amendment weakens national security significantly. But national security isn’t the only consideration. As a country, we’ve elected to accept a less-robust national security in exchange for certain privacy and procedural rights. Totalitarian regimes are, I think, more likely to be focused on national security at all costs.

Given that, the argument that not having the ability to wiretap domestic lines without a warrant weakens national security seems to me to have no legal value. It certainly has political value, but judges are (at least in theory) apolitical. That’s the point of life tenure. So whatever one might think of the legal merits of the decision, it seems to me that its effect on national security is largely beside the point.

Still not entirely sure what day it is, but, as of 11:00 last night, local time, we’re home. It was a fabulous trip, about which more will be said once I know which end is up. Increased security made our connection in LA a bit tense, but everything went fine.

This coming week, I have some transition time with the clerk I’m replacing, and then the clerkship starts on the 21st.

Most of the time, the bar exam is now a pretty dim memory, which is, I suppose, the purpose of a bar trip. More to come in the next few days.