Facebook's new format is horrible if you ask me.  I don't even have that many friends on there, relatively speaking, but even of those people I do have some are more tangential than others.  So I don't need constant notification when some person that I had one class with in high school has become friends with some other person I've never heard of.  To be sure, some of it is interesting -- people having new pictures up is cool.  Or recently updated profiles.  But there should be a more proactive filter; maybe there is and I'm too lazy to figure out where it is.  Even if that's the case, the default news feed should not have so many asinine details that I have no interest in.

I started work last week.  I'm really liking it so far.  It's interesting because everyone talks about what type of lawyer they want to be -- employment law or patent law or bankruptcy law or whatever.  But if you're doing any kind of civil litigation, much of what you doing is being a civil procedural lawyer.  Even though I'm a patent lawyer, pretty much all the legal issues I've talked so far have been procedural.  One cool development is that I got staffed on a trial team, for a trial in February.  If that goes it would be awesome, because it's really easy to be a civil litigator for a lot of years without seeing the inside of a courtroom. 

Unfortunately, I guess much of the day to day stuff that I've love to talk about is privileged.  Or at least, it's probably better that I not talk about it on the web, even if technically I could.

One downside to being a litigator is that it's adversarial.  I think a major reason I want to be a judge is that you can take a step back from the case and think about the "right" result -- one that makes sense in terms of the legal system as a whole.  But when you're a litigator, your goal is to win the case for your client, and sometimes your client doesn't have a strong legal position or a victory on a particular issue would make bad law.  That doesn't make losing an option though.

I have to say that I feel really lucky though.  Everyone at my firm is great, and I've got a couple close friends that came in with me.  I'm not sure how many people starting at big firms actually like their jobs or are going to places where they see themselves staying for many years.  But I do feel like that. 

San Diego is kind of lonely though.  Pretty soon I need to find some activities to do outside the office.  Like music or something.  Maybe I'll meet some people that way.  But my days at work are so long, and when I come home, I just want someone to come home too and snuggle up on the couch with and watch TV.  I don't want have to search out someone.  On the other hand, I think it would be hard to be in a relationship right now because I spend so much time at work... I could do it; but I'd feel guilty, feel like maybe I was neglecting the other person.  So at least I don't have that concern.  But sometimes I get bored. 

One involuntary hobby of mine is spotting legal errors in the many television shows I watch.  Weeds is an interesting show on Showtime that I've gotten into this season (I might have to check out Season 1 now).  As the name implies, the main character is a suburban marijuana dealer, and at the beginning of this season she hooked up with a guy who turned about to be a DEA agent.  She broke up with him, but he independently figured out what she was, and still wanted to be with her.  To allay her fears that he was setting her up, he married her since that way he couldn't testify against her.  On these facts, that is incorrect.

There are two different privileges which protect a wife from her husband testifying against her.  The first is the "marital communications privilege."  That allows a wife on trial to prevent her husband from testifying about anything she said to him during their marriage that she meant to keep confidential.  The second is the "refuse adverse testimony" privilege which allows a husband to refuse to take the stand in a trial where his wife is the defendant.  In one respect this is broader than the first privilege because the husband can refuse to testify at all against his wife about anything he knows about her.  But in a critical respect, it is narrower because only the husband (the testifying spouse) gets to decide where or not to invoke the privilege.  If the husband wants to testify, the wife can't stop him.

So the situation here falls in the crack between the privileges.  The DEA agent's knowledge about the wife's drug-dealing activities is the result of his own independent investigation.  Also, she confessed to him before they got married.  Although the first privilege might protect any subsequent statements she makes to him from now on, the damage is already done.  The first privilege is out, which leaves the second privilege.  That include everything the DEA agent knows about her, but the problem is that whether he testifies is entirely at his discretion.  Consequently, the privilege doesn't protect her at all from what the DEA agent knows if he is trying to set her up.

Incidentally, here's three interesting law links:

-David Lat's (Article III Groupie's) new website.  Fabulous!  Law SHOULD be more gossipy. 

-Link to a podcast with Judge Posner where he's being interviewed about his new book and terrorism.  I don't agree with everything (or even much) of what Posner says, even though he's one of my legal heroes.  But one thing he is right about is that the United States needs an organization somewhere in between the crime fighting model (FBI) and the military in order to deal with terrorists.  Still, I think his views about how we can't afford "civil liberties that grew out of a more naive time" are pretty asinine.

-Interview with Alito and his wife.  I really love Justice Alito's personality.  He's such a law nerd, and it's awesome that he can't dress himself and is always desheveled looking.  So endearing.  Too bad I'm probably going to disagree with every controversial opinion he ever writes. 

1.)  Apparently John Mayer and Jessica Simpson are a couple now.  (See here and here.)  This is so incredibly disgusting.  I have lost ALL respect for him.  I used to really like John Mayer.  But how could he actually be deep yet still be into her.  I mean, I could understand him just having sex with her once or twice and then leaving her (let's hope this is only for sex), but a couple??  Ew.

2.)  I think it's outrageous how critical everyone is of the Boulder District Attorney's Office for bringing Karr back to the U.S. to have a DNA test.  We're told it's a waste of taxpayer money.  But this is a man who had a connection to the town, a history of being involved with child pornography and trying to have sex with young girls, and who gave detailed "confessions" on multiple occasions.  The only way to determine whether he was the killer was a DNA test, and the only way to get a sample was to take him into custody.  The best alternative I can discern was to ask Karr's family if he was with them (out of state) over Christmas when the killing took place, which would have given him a bullet proof alibi.  But that would run the risk of the family tipping Karr off and allowing him to disappear.  If anyone is at fault, it's the media for overhyping the break in the case.  From what I can tell, the Boulder DA's office acted appropriately and responsibly and they should be commended for their vigorous, continuing efforts to solve the case. 

3.)  I really like the show girlfriends.  There are repeats of it on FOX at 1:30 a.m., and I've become a devout fan over the past couple weeks.  It's funny!

Yay for The Office!

I just saw a commercial urging California voters to vote No on Proposition 86.  From what I gather, the proposition is a tobacco tax, from which hospitals stand to benefit.  The ad says several times that the Proposition also specifically exempts hospitals from antitrust liability so that they can fix prices and eliminate competition.  But the antitrust laws are federal laws, so it would be impossible for a state voter proposition to exempt hospitals from them.  (The Supremacy Clause of the Federal Constitution would preempt the state law, rendering it unenforceable.)  Perhaps the commercial means that the hospitals will get an exemption from California unfair competition laws (found in the Corporations Code at section 12400, et seq.), which are notoriously broad.  This may be, but it's still extremely misleading to imply that hospitals will have carte blanche to fix prices and collude with one another. 

This reinforces my view that voters shouldn't be voting for propositions.  Direct democracy has a superficial appeal, but the propositions are often written poorly, leaving courts to sort out terribly ambiguous language.  Worse yet, with misleading ads like the one I just described, voters have no idea what they are really voting on or the actual consequences of the decision they make (as opposed to doomsday scenarios painted by those campaigning for each side).

Today, the District Court (S.D. Fla.) handling the government's criminal prosecution of Jose Padilla -- a man held as an enemy combatant for years before a series of court decisions forced the government into criminal charging him -- dismissed one count of the indictment against him and ordered the government to clarify another count in the indictment.  The clarfication was a procedural point:  the government tried to charge the defendant under two different federal statutes in the same count of the indictment; this isn't allowed in the Eleventh Circuit (although apparently it is allowed in the Second Circuit), so the court ordered the government to narrow that count of the indictment.

The interesting issue is whether the court properly dismissed the first count of the indictment.  The government charged Padilla with three counts:

Count 1 -- Conspiracy to Murder, Kidnap, or Maim Persons in a Foreign Country
Counts 2 and 3 -- Conspiracy to Provide Material Support to a Terrorist Organization, Knowing the Support will be used by the group to Murder, Kidnap or Maim

I've combined Counts 2 and 3 because it's unclear to me from the court's opinion what exactly is different about them.  I think Count 2 is charged under the general federal conspiracy statute whereas Count 3 is charged specfically under a specific statute that specifically makes a violation of itself a conspiracy. 

Anyway, the court held that the government couldn't charge Padilla with both (1) Conspiracy to Commit Murder and (2) Conspiracy to Provide Material Support to Commit Murder because that would violate the Double Jeopardy Clause.  The reasoning is that the government is charging Padilla twice for the exact same conduct.  The court argues that there was really a single conspiracy here because there was a single agreement.  Even if the agreement was to do multiple things (like both provide material support to Al Qaeda and also murder, kidnap or maim), it was still a single conspiracy and thus a single crime.  See Braverman v. United States, 317 U.S. 49, 52-54 (1942). 

It's hard for me to say whether this is right.  Frankly, the court's opinion is pretty confusing -- I can't even decipher what the difference is between the second and third counts of the indictment -- which doesn't inspire confidence.  However, it does seem like the government is charging a single conspiracy to do multiple things here, which, if the court is correctly citing the cases it refers to, violates the Double Jeopardy Clause.

I think one problem here is that conspiracy is often built on a fiction.  To prove conspiracy you have to show (1) an agreement to commit a criminal offense; (2) the defendant intended to make the agreement; (3) the defendant intended to commit the substantive offense.  But often there's no direct evidence of the agreement.  So we infer the agreement from the acts of the co-conspirators.  Suppose a witness sees two people meet at a dock, have a brief discussion, and then each take a 100 gram box of cocaine off a waiting boat.  Even if neither person testifies (but the witness does), we would probably be able to infer an agreement between them to distribute the cocaine and thus convict them of conspiracy.  (Indeed, we could probably infer a conspiracy from even more remote circumstances then that.)  But since we don't have any direct evidence of what the two people at the dock said to one another, how do we know what they actually agreed to?  Maybe they also agreed to do other things at that time.  Maybe they didn't.  Now, this doesn't matter in the example I've given, but the only way to really determine whether Padilla made separate agreements to do different things or one agreement to do multiple things is beyond our knowledge. 

The courts look to certain factors to guide them in determining whether there was a single conspiracy:  (1) the time period of the conspiracy; (2) who the co-conspirators are; (3) places where the acts were to take place; (4) the overt acts taken in furtherance of "each" conspiracy; (5) the statutes the defendant is charged under.  I guess the thought is that if the same people are involved in planning multiple acts, it's more likely they are all acting pursuant to a single agreement.  But I'm not sure how probative the other factors are, and the Padilla court mentions them, but then doesn't seriously analyze how they apply to his case.

The second problem is with the nature of the target crimes involved here.  Padilla is charged with both agreeing to murder and agreeing to provide material support to Al Qaeda that it will use to murder.  The fact that you can conspire to commit the material support statute is quite odd.   The material support statute, 18 U.S.C. 2339A, makes it a crime to give money, property, technical expertise, or even oneself, to a terrorist organization with the intent that that help be used to violate a long list of federal statutes.  In other words, it makes it a crime to be an accomplice to a terrorist organization.  So what conspiracy to violate 2339A really means is conspiring to be an accomplice to the terrorist organization.  But it doesn't make much sense to say that a defendant conspired to be an accomplice.  In order to be an accomplice, the crime must have actually been carried out, in which case, you would charge the defendant with conspiracy to commit the crime itself, not with conspiracy to be an accomplice to it.

In any event, it will be very interesting to see what happens if the government appeals.  (I'm not sure if the court's order is immediately appealable, or if the government will have to wait until the trial is over.)  The count that was dismissed carried a heavier penalty, but it would also be more difficult to prove.  What is certain is that the war on terror is providing a lot of interesting problems in criminal law because it involves recently enacted statutes that continue to expand the outer bounds of criminal liability. 

It's difficult to say whether this expansion of liability is good.  On one hand, it is startling because these new statutes have a tendency to criminalize otherwise innocuous conduct based on the defendant's intent, which can be difficult to ascertain.  And criminalizing behavior that in such early stages denies people the chance to come to their senses and turn back.  On the other hand, it's hard to imagine many terrorists turning back.  I think associating with a group like Al Qaeda is probably a big decision and once people make it, they don't turn back.  The biggest reason why we should be willing to extend criminal liability is that it encourages the government to use traditional criminal trials to handle prosecuting terrorists rather than locking them away as enemy combatants at Guantanamo for years on end.  Portrayed in a bad light, that sounds like an argument to allow a small wrong to prevent a bigger wrong.  But maybe damage control is the best we can hope for at this point.  Also, given how terrorist organizations actually function, we may need to extend criminal liability to cover early, preparatory conduct because that is the stage where we have the best chance of stopping them from killing innocent people.  See generally Robert M. Chesney, The Sleeper Scenario, 42 Harv. J. on Legis. 1 (2005) (describing how terrorist organizations function and what the criminal law can do to respond).

A final point to consider is how criminal laws aimed at terrorists will effect the criminal law in general.  We can justify broadening criminal liability of early planning stages of terrorist plots because terrorism has the ability to great enoromous harm from a single event.  By contrast, ordinary crimes can surely be harmful, but a single crime would not be so harmful that it would justify similar statutes to those we are using against people involved with terrorist organizations.  But if we let some legal norms relax with regard to terrorism, who is to say that this won't infect the entire criminal law?  I guess we have no assurances against this.  A slippery slope argument can always be made though, and for that reason, they are never very convicing to me.  We have to have faith that courts and legislators can draw appropriate lines.

I'm home.  On my first day here, I bought the two things I needed immediately:  a mattress and a cat litter box.  Today Adam came down from L.A. and checked out my place and the neighborhood.  We went shopping and I bought some more stuff:  plates, silverware, a bath mat, a wafflemaker, etc.  I feel like such an adult.  This is the first place that I've ever invested anything in, that is, bought things that weren't strictly "necessary."  The first place where I didn't know it would only be a matter of time before I left.  I lived at those other places for quite a while.  Each felt like my own in some way.  But I knew eventually I would graduate Caltech and leave Pasadena, just like I knew I'd graduate law school and be leaving L.A.  (More accurately, I knew I'd be leaving my L.A. apartment but didn't know I'd be leaving L.A. altogether until a bit later.)  What makes this place different, and my life in San Diego different, from everything that came before it is that what lies before me is an open-ended future.  I could be at my firm for one year or the next thirty years.  Maybe after a couple years I'll go clerk; maybe after a couple years I won't want to because I'll be so tied up in being a young associate.  Maybe I'll get sick of law altogether.

I'm facing something that many people face much sooner in life.  School sets out these nicely spaced targets for you, and after each step you get a degree of some sort.  The working world has its parallels.  After seven years, they make partnership decisions.  Even before that, I'm sure there's some kind of tracking system that enables people to gauge their progress.  When I've left school it's been because I've had to leave.  I was getting my degree, and it was time to move on.  It's less clear when it's time to move on in the working world -- when you've accomplished everything you should (or can) at one place.  This presents an opportunity for permanency.  You can't stay in college for 30 years, but who says I can't work at my firm that long?  And the chance for permanency gives you an even greater incentive to invest where you are, while recognizing the uncertainty of how long you will stay.  It's a matter of degree, of course.  Four years is still a long time.  You invest in college classes, friends, work.  But from the day you start, you know it will end. 

One thing that's sad about San Diego is that I don't really know anyone here.  Hanging out with Adam today made me realize how much I'll miss him -- just being able to walk around town, go in random places and make sarcastic comments back in forth, interspersed with substantive conversation. There's a couple people from work who are absolutely awesome, and I hope we'll be friends outside of work too.  But there's something about work that makes it seem different from other social environments I've been in until this point.  In college, you basically have one life.  You go to classes (or don't go, as was often the case), do problem sets, and have free time.  But the friends you have in class and doing problem sets often are the people you spend your free time with.  The work world seems more segments.  Work and home are physically separated, unlike at tech where the dorms were no more than a football field or two away from class and lab.  And the work mentality seems like, "I'm doing this so I can make the money I need to live and go home to be with my wife and family" or to go out and pick up chicks.  That's a caricature, though it's a sliding scale how gross a caricature depending on the nature of the job, but I get the sense that people are always looking over their shoulder at work, in a way that isn't as common with school. 

But that's ok.  I love my new apartment and my new neighborhood.  I'm excited about starting my new job.  I've got worries and problems, yet not enough of them to outweigh the good things in my life right now.  For that I am grateful. 

What's the best thing to do about religious monuments that are currently on public grounds?  Today, a split panel of the Fifth Circuit affirmed a decision ordering one such monument removed.  The monument honors a local citizen, but features an open bible as part of the display, to honor the man's Christian faith.  So there's some dispute about what the purpose of the monument is, how prominently it focuses on religion, etc. 

But assume a more clear-cut case, like say the Soledad Cross in San Diego.  This is a 43 foot tall cross that weighs 24 tons and is perched prominently on a large hill.  It's part of a U.S. Veterans monument, and its presence has been found it violate the California Constitution.  See generally 782 F. Supp 1420 (S.D. Cal. 1991) and subsequent history.  There's a lot of side manuvering going on now because the Federal Government is going to use eminent domain -- a way to force the land's owner to sell -- to purchase the land the cross sits on.  And once the property belongs to the Federal Government, the Supremacy Clause pre-empts any restrictions the California Constitution could place on activities on the land, effectively thrusting aside 15 years (at least) of litigation.  Instead, the case will have to be relitigated under the First Amendment of the Federal Constitution. 

Back to my initial question.  Suppose the presence of the cross does violate the First Amendment.  (Personally, I think it does, but there's arguments to be made the other way.)  What's the appropriate remedy?  The people who are challenging the cross in court want it torn out.  This seems overkill to me.  I understand that some people who see the cross looking down on them from the mountain might find it offensive.  I don't think that religious symbols like this belong on government property.  I also don't see the use in tearing it out.  Then you just have a new set of people -- those who want the cross there -- upset, and you've taken this affirmative act that religious people will perceive as blatantly hostile to them. 

There are other examples in law where we shy away from the drastic measure of a court order to tear a building out.  For example, if I accidentally build a shed that protrudes a few inches into my neighbor's property, some courts will refuse to make me remove it.  Instead, they'll order that I pay damages to buy encroachment from the owner.  That makes sense since it prevents me from being unjustly enriched while compensating the adjacent landowner for what he's lost, which isn't very much anyway.  (Note, there are some courts who will make me tear out the whole shed, and if what I did wasn't "accidental" that makes it far more likely the building will be torn out.) 

This type of solution doesn't work in the cross case though.  Putting aside objections that the cross case involves much more important interests and so isn't amenable to damages (surely a plausible argument), how do you pay out damages to random passers-by who feel offended by the cross?  Do you have people sign up and swear under oath, "I'm offended" to make them eligible for damages?  How do you measure the harm they've incurred?  And in the end, does it even make them feel better... they're still passing by this cross that is continuing to offend them in the future.  Plus, it seems pretty ridiculous to be paying out money from the Federal Treasury for things like this. 

Since paying damages is infeasible and not what the plaintiffs want anyway, if you don't tear the cross out, you're really leaving them with no remedy.  Violations of constitutional rights for which there are no remedies aren't unheard of, but that seems pretty goofy to me because if there's no remedy, what good is the right?

Ultimately, I think my ideal solution would be to leave displays like this up, but vigorously oppose installing any new ones like them.  There's no reason to allow any government to build a new monument featuring Christian symbols on public property, but for monuments that have been there for 50 years or so... I can't see the benefit from campaigning actively to demolish them.  This isn't a very intellectually pleasing solution, but it seems like a pragmatic compromise.  (It's also similar to what Justice Breyer advocated in the Ten Commandments cases in 2005, although not exactly the same.)

Ordinarily I'm not much for comprising, but it's just hard for me to care that much whether the Ten Commandments or a cross or an open bible has made its way into a display on public property.  And by actively campaigning to get older displays torn out, it gives religious groups ammunition to say that they are under attack by the liberal elite.

Moving involves discarding.  When you live in one place for a couple years, it's easy to acquire items, and it doesn't cost you much to keep them.  My apartment is somewhat small, but I've got plenty of closet space to fill with new things which means that I never have to make difficult decisions about throwing out old things to acquire (and have the space to store) new things.  When you move, you have to incur affirmative costs to keep all the things you've acquired.  If I want to take all this crap to the new place, I've got to box it all up, carry it up and down stairs, etc., and if I don't really "need" it, the better thing to do is to get rid of it.   

Deciding what I "need" is difficult though.  The universe of things I "need" includes not only things I use on a daily basis, but things that have sentimental value.  When is it time to say "enough," ignore sentiment, and stop hoarding useless things?

As I look through my closet, I have many terribly designed sweaters or shirts, all of which were gifts from one family member or another at some Christmas past.  I feel awful giving the sweater my Grandma gave me three years ago to Goodwill, even though I've never worn it once and knew I would never wear it the second I opened the box.  What purpose does keeping it serve, though, other than making me not feel bad about something that I probably shouldn't feel bad about?

Then there's the 16 printed issues of the UCLA Law Review sitting on my shelf.  Being on Law Review meant a lot to me; I learned a lot about myself and legal scholarship.  But everything in those printed copies is available on Lexis or Westlaw except the Masthead that says my name under "Articles Editors."  And I know that I was on law review, so why do I need 16 issues that tell me that I was.  On the other hand, maybe one day I will want to look back at them, and considering that I've already hauled 10 tons of books to my new place, what's another 16 fairly light-weight, small, journal issues. 

I also have an inordinate number of religious objects that I've had since I was a child.  Pictures of the Virgin Mary; rosaries; crucifixes; plastic nativity sets.  I don't want to actively get rid of these things, even though I'm less religious nowadays, but it does seem silly to store most of them somewhere in the closet in most of the places I've lived.  On the other hand, what do I do with them?  I have 6 rosaries.  There's only 1 that I want to keep (because it was blessed by the Pope and my Grandma gave it to me and it's really nice); the rest are kind've cheap ones they handed out at Sunday School from time to time.  But what do I do with these things I don't want?  Should I go to my local parish and surrender them to a priest?  I mean, I can't very well throw out a rosary!  or a picture of Mary!  It seems like you're really tempting fate if you do that.  So I keep hauling them with me from place to place.

There's certain old things that I feel obligated to hang on too just because I've had them for so long.  I still have the pencil box that I had in first grade.  It's this huge thing, and I don't keep anything of use in there.  But it has my handwriting on the cover from first grade (I wrote my name and teacher).  Even though it serves no use and I wouldn't really miss it, it seems like when something has stayed with me for so long I should continue to keep it. 

All this reinforces thoughts I've been having about moving being a recreation (or preservation) of self.  Especially this move.  I didn't really pick San Diego, but I did pick my new place.  I'm picking what I take there.  I'm picking what I buy when I get there -- clothes, furniture.  This is a very object-oriented view of self.  It's about judging the outside to infer what on the inside, about me changing what's on the outside to reflect a different inside, or to lead my inside to a new place.  On one view, that's a superficial approach.  I don't think it's as superficial as it might initially appear.