i'm taking a ride with my best friend...

The California Supreme Court has ruled that spammers cannot be sued under state law for trespass of chattel; computer servers are not real property for purposes of trespass law. How interesting! I always thought the trespass-of-chattel theory was an ingenious use of ancient common law to address a very modern problem. I guess the CA Supreme Court wasn't impressed. See the story here.

Arguments against the chattel theory point out that creating an absolute right to exclude would infringe on the ease and openness of communication. I think this is inapposite though, since harm to the chattel is required for a prima facie case. So simply sending one unwanted email would not create a cause of action.

However, the Court ruled that receiving the spam emails (6 emails to 35,000 Intel workers) did not damage Intel's computer servers. Hmmm...I smell appeal.

she will supply!

Well now it's official. UnfashionableObservations.com is now online! That was fast. And strangely invigorating.

Now to spread the word...

did you ever go clear?

So I'm in the process of transferring this site to its proper domain--that is, www.UnfashionableObservations.com. However, approval of the domain name is still pending. I guess it should be done by no later than Wednesday. How exciting...

In other news, here is what Dean Kathleen Sullivan of Stanford Law School had to say about the Supreme Court's recent decisions:

"I would suggest that the court is really quite a moderate court or a centrist court, that in fact expresses a great deal of the values expressed elsewhere in society, rather than seeking to change those values. In the landmark decisions upholding affirmative action, as long as it's not too mechanical a use of race to provide the leaders for future positions in America, the court helped to legalize practices that many institutions of higher education have been involved in for the last generation, and had relied on to produce a much more diverse leadership in our society, and the landmark decisions striking down the Texas sodomy law, the court just legalized and brought cultural legitimacy to the view that many Americans would think ought to be part of our constitutional freedom, and that is that government has no business being in the bedrooms of consenting adults engaged in non-commercial, intimate sexual and loving activities. I would say that the big theme of the court is that it's a centrist, moderate court that expresses the values of most Americans."

Which is precisely what I said: Affirmative action has not changed (i.e., the Court affirmed the status quo); and the sodomy case was no surprise, as people have already gone a long way in accepting alternative lifestyles. The more I think about the cases, the less shocking they seem. (They're even starting to get boring!) I think Dean Sullivan is correct to note that the Court's rulings last week merely expressed the values of most Americans. That is not to say that most Americans are pro-affirmative action, or that most Americans support gay rights. By no means! I still believe that most Americans are politically moderate. However, most Americans do feel that racism is still a problem, and hence something should be done about it; and most Americans have recognized the reality of homosexuality, and are rational in concluding that it would be an exercise in futility to simply ignore or suppress this group. Perhaps there is a culture war out there, but I don't think these cases have chosen a winner just yet (as Scalia intoned). They've merely leveled the playing field. Indeed, the culture war has just begun.

i'm coming home to you...

I just saw the documentary Capturing the Friedmans, which is about the Arnold and Jesse Friedman child molestation case in New York. All of the movie critics I pay any attention to (Roger Ebert, Peter Travers of Rolling Stone, and the EW critics) have been ecstatic about this movie. I have been severely disappointed.

I think the problem with the documentary is that I could not relate to any one of the people we meet. Arnold Friedman is an old, self-described pedophile. Jesse Friedman, the youngest son, is curiously carefree as he is being sentenced to 6-18 years in prison, which makes you wonder if he's all there. Seth Friedman, the middle child, perhaps the only person who could provide a sober perspective on the subject at hand, declined to be interviewed for the film. David Friedman, the oldest son, is a hateful clown. (Literally! He works as a clown in NYC!). And Elaine Friedman, Arnold's wife, is simply caught in the middle of it all without a clue. There was simply no one the audience could hold on to throughout the film. Most films or novels that deal with ugly or uncomfortable topics (such as pedophilia, or suicide) usually have, at the very least, an anti-hero. (Think of Holden Caulfield in The Catcher in the Rye, or Harold in Harold and Maude.) There was no such character to be found here.

The documentary is an interesting piece of social psychology, but it fails to reveal anything of great importance. In the end, I was so disconnected from the characters that I was almost indifferent as to the film's ultimate question: "Who do you believe?"

I'd give Andrew Jarecki's Capturing the Friedmans a B-.

tell you how it's been in my little world...

I just saw a movie that shook me to the core with terror and awe. I was at once horrified and in a state of transcendental bliss. This is what moviemaking is all about--expression of utter contradiction. Indeed, this is what life is all about: a realization that nothing that strikes us to the core of our very being is ever willing to be labeled "good" or "evil," "right" or "wrong," "terrible" or "wonderful". At all times, these labels are swallowed up like paper boats in a torrential, restless sea. They are rendered meaningless and inadequate when one considers life stripped of all construction. Everything that is important, everything that reveals our authenticity as human beings, everything that inhabits our minds during times of sleeplessness and anxiety, everything that is worthy of our contemplation--all these things are beyond categories, beyond our capacity to order the world around us, beyond morality, beyond good and evil, beyond logic, beyond thought, beyond feeling. Just like one cannot wrap one's mind around the concept of a circular square, one also cannot wrap one's mind around the world of the everyday when considered in its most basic, unstructured form. Something as simple as laughter or friendship or desire--one does not have the words to express such things, nor the mind to comprehend such subtle beauty. All one can do is experience them, and allow silence to ensue. There is nothing to say: there is only thought without interpretation, and feeling without understanding.

This movie was an experience of this beautiful chaos. Words are inadequate.

Danny Boyle's 28 Days Later is easily the best horror movie released in the last ten years. A

lawrence v. texas, 2003 wl 21467086

Held: The Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause.

My my, what a liberal-leaning activist Court we have these days! I fear Rehnquist wouldn't be so happy leaving on such a sour note.

But let's be realistic here for a minute--everyone knew that they were going to strike down the Texas sodomy law. Of course, Scalia and Co. weren't going to go down (so to speak) without a fight, but this result was inevitable. I don't think conservatives were surprised, or even angered. They were just annoyed at the fact that it's now official.

The most interesting thing about this case was whether the majority was going to use Equal Protection or Due Process to justify their striking down the law. Stevens led the pack with Due Process. Indeed, I had predicted that Due Process was going to be used, but with a majority opinion by O'Connor. Alas, I was utterly wrong. O'Connor concurred with Equal Protection.

To me, the due process argument makes more sense, especially in light of Roe v. Wade. In order for the Court to maintain consistency and a sense of coherency, they needed to treat sodomy between consenting adults as falling under the "right to privacy" created in Roe. However, it's interesting that the Court in Lawrence never quite goes that far. They curiously label sodomy as a a form of "liberty" protected by due process. There is never any mention of a fundamental right. Seen in this light, this is a much more conservative take on sexuality and family life than was the Court's decision in Roe. Homosexual sodomy was not declared a fundamental right in Lawrence, as was abortion in Roe. Sodomy is merely a liberty protected by due process, the majority decided. And that is a major distinction.

Well actually, it should have been a major distinction, but the majority did not see it that way. Non-fundamental liberties or rights are only supposed to be given rationality review, which means that any conceivable rational basis for the law would automatically guarantee its constitutionality. The Court purports to have given the sodomy law such review. But curiously enough, they decide that the law does not pass rationality review. Apparently, preserving the moral order is no longer a legitimate (or even rational!) state interest.

Scalia correctly points out that this is at odds with all past jurisprudence.

What the Court should have done was to declare matters of consensual adult sex (excluding incest, adultery, etc.) fundamental rights in accordance with the "right to privacy" in Roe. This would have the effect of preserving the moral code that pretty much everyone agrees with (no incest, no adultery, etc.), while allowing for the homosexual exception. Logically, this makes little sense. Why a homosexual exception??? But conservatives have long ago lost the argument about homosexuality. Our society has come to accept gays and lesbians as just another section of society at large--not full acceptance by any means, but at least there has been a recognition of the reality of homosexuality. So even if logically it makes no sense to make a homosexual exception, practically there is no other way about it. Reality has trumped logic.

I am a realist before anything else, as you can see. But even so, I agree with Scalia's dissent when all is said and done. The majority opinion as it is written is shockingly weak on logic, consistency, and legitimacy. Alas, so is much of moral philosophy. Kierkegaard should be laughing at us right about now.

I think that i'm lost here...

I was shocked beyond belief today when I received my Property grade. I was sure that I had failed. I have been redeemed...

Sweet sorrow, I carried you along with me for naught! We became such good friends, too.

was that your stomach or mine?

So Hopwood v. Texas, 78 F. 3d 932 (5th Cir. 1996) has indeed been overruled, since diversity is now a compelling interest that can justify the narrowly tailored use of race in selecting applicants for admission to public universities. Or at least, it has been overruled for the next 25 years...

UT seems to be rejoicing. Good news for Austin. Bad news for Texas!

I've had a mixed reaction to the ruling. I was certainly dismayed to see that the Court still follows the antiquated notion that a different color of skin is prima facie evidence of different ideas, a different culture, different life experiences, etc, that will presumably contribute to a rich learning environment. This is probably the least impressive notion out there in the affirmative action debate. Today's kids have no culture, no matter what their skin color. All they have is their MTV. I am always impressed by how homogenous people really are in their philosophies. From black to white to east to west, their value systems remain remarkably constant. To suggest that a hispanic person will contribute something startlingly new due to their skin tone simply flies in the face of the reality of the everyday world. It's almost as if people don't want to believe that a minority in America today is just like all the white people as far as their culture is concerned; that is, they have none to speak of. Culture is not a color! It is a way of valuing the world around you.

Furthermore, I fear that the opinion of the Court is way too flexible and nebulous. They have essentially reaffirmed their anti-quota stance in Bakke, but I've come to believe that such a stance is lacking in substance. Sure, quotas are no longer allowed de jure, but de facto quotas are inevitable. The Court has stated that there is a compelling interest in having a "critical mass" of diverse peoples in law school, but what does that mean? I suppose it means that there must be some basic minimum number of minorities--just enough so that the minorities don't feel like spokespeople for their race. But this just begs the question: how much is the basic minimum? 1%? 5%? 10%? A reversion back to language steeped in the fundamental aspects of quotas--without actually saying the word "quota"--is bound to happen, and indeed is already happening, and has been happening for 25 years since Bakke. This is why the Court's ruling is so perplexing. It's as if they have avoided the issue altogether.

Because of the lack of a bright-line rule, Scalia is correct to point out that there will be a lot of litigation stemming from the Grutter and Gratz cases. The debate is far from over.

Well, at least until the year 2028. ha!

things are going to get not-so-sweet...

What of affirmative action now after Grutter and Gratz? Absolutely nothing has changed. The status quo remains. So the liberals won the battle.

However, they are in the process of losing the war. Grutter itself only allows for 25 more years of affirmative action. After that (rather arbitrary time period), the need for affirmative action shall no longer be a compelling interest. Or so the majority opinion goes.

So at the very least, we can tell that the Court has only grudgingly affirmed the viability of the self-refuting doctrine of AA. As with most of O'Connor's opinions, this one seems facially liberal, but is laden with a deep conservative qualification. Perhaps it may prove to be so deep as to be lost in application. But the reservation has been duly noted.

grutter v. bollinger, 2003 WL 21433492

Held: The Law School's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining educational benefits that flow from a diverse student body is not prohibited by the Equal Protection Clause, Title VI, or § 1981.

so Justice Powell lives.

but scalia's dissent is hilarious. "[T]he University of Michigan Law School's mystical 'critical mass' justification for its discrimination by race challenges even the most gullible mind." plus, he quips about the dubious "educational benefit" language of the majority, suggesting that no such benefits exist, practically speaking, for the bar has no questions of the sort: "Describe in 500 words or less your cross-racial understanding." ha! Nor are such "educational benefits" apparent on transcripts: "Works and Plays Well with Others: B+". too funny... Since all the "educational benefits" are lessons of life and socialization and good citizenship, and not of law, and hence not uniquely relevant to law school, such discrimination must also be allowed (most appropriately so!) in state and even private employment. After all, this is all done for the purposes of creating better Americans, better lawyers, better civil servants, better people! "The nonminority individuals who are deprived of a legal education, a civil service job, or any job at all by reason of their skin color will surely understand." touche.

on the sadist

"he who lives for the sake of combating an enemy has an interest in seeing that his enemy stays alive." that is the paradox of the sadist. love and hate are one and the same. there is no happiness or sadness, darkness or light, pleasure or pain. there is only life.

breakfast every hour--it could save the world

Last week, I bought Radiohead's new album, Hail to the Thief, and the new White Stripes album, Elephant. I must say that they are both simply excellent finds. The Radiohead album is a sort of continuation of the style in Amnesiac, but more soothing, more delicate, more emotional, more vulnerable. I think I needed this after listening to Manson's The Golden Age of Grotesque for several weeks. The two albums are diametrically opposed. Listening to them one after the other makes for an interesting evening.

Elephant is the first White Stripes album I buy, and I've fallen for their purist approach. In fact, the cd sleeve says, "No computers were used during the writing, recording, mixing or mastering of this record." Compare that to the cd sleeve of Radiohead's Thief, which lists "laptop" as one of Thom Yorke's instruments. Ha! But it's true--there is virtue in simplicity. The White Stripes know this, and they have capitalized on it. Give a listen to the intoxicating "Seven Nation Army." It's as if the Rolling Stones of the late 60s (think "Paint it Black") were transplanted into the present, with completely new material. They're also coming to Austin on Wednesday. I should have gotten tickets.

it ain't easy being green

I went to see the movie The Hulk yesterday. I was rather disappointed. It was certainly no X2.

I was initially excited to see it for several reasons. Ang Lee, the director of the subtle and beautiful The Ice Storm, directed. Plus, Jennifer Connelly, who turned out an all-too tragic performance in Darren Aronofsky's Requiem for a Dream, starred as Betty, the Hulk's love interest. And it's a comic book movie. All very exciting, and enough to pique my interest.

Or so I thought. I read this interview with Ang Lee, and he said that this was going to be the summer blockbuster for brainiacs. I think he was referring to those few scenes in which the camera focuses on plants and other natural things for about a minute, slowing down the pace and forcing us to ponder "why?" in some attempt at pseudo-philosophy. It sort of reminded me of the movie The Thin Red Line, which has a bunch of shots of the grass blowing in the wind. Could it be any more contrived? I don't think you can force an audience to become philosophical. I thought the closeups of nature established a mood of contemplativeness. But philosophy isn't about mood. It's about ideas. The closeups would have been fine if there were also ideas behind them.

The movie is also 2 hours long. It moves rather slowly. I kept yawning during the movie. That's never good.

Finally, the performances left something to be desired. Connelly was radiant and beautiful as usual, but her role was very cliched and limited. Nothing original there. I also think Nick Nolte was miscast as Bruce Banner's father. I never got the feeling that he actually loved his son. His character was supposed to be all about how he loves his son but is conflicted because of the potential (both for himself and Bruce). The love was never there in Nolte's performance. And I could never stop looking at Sam Elliott's mustache (Betty's father). It was disconcertingly crooked. What hair stylist did these people use? Finally, Eric Bana was unspectacular as Bruce Banner. Very little passion in his acting. There was more expression and feeling in the CGI Hulk than in Eric Bana.

Stick to X2. I'd give Ang Lee's The Hulk a C+.