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It’s been a wet Saturday in the city. Some stuff of note below; pardon the long posting, as it has been a few days since I’ve blogged…

Quake in Pakistan. This may turn into quite a concern.

While the news wasn’t unexpected, it’s still weird to really admit: Ted Koppel’s stepping down from “Nightline,” with an official last date of Nov. 22, 2005.

BBC’s Sir David Frost, joining Al-Jazeera?

Justice Scalia will be the marshall of the Columbus Day Parade on Monday. Hmm.

Link to Findlaw about this weird article reported by Associated Press writer Beverley Wang:

A parking dispute between two well-to-do oceanfront neighbors that has gone on for over a year has led to a court fight that includes allegations of stalking, pounding of nails into tires, secret videotaping, and dousing of others with a sprinkler. Videotapes played in court show one side giving the finger toward the neighbors’ home.

One judge likened the battling [New Hampshire] neighbors to Wile E. Coyote and the Road Runner. And you thought you had obnoxious neighbors.

The two principal antagonists, Beverly Hollingworth and Peter Hutchins, are used to playing for high stakes in the public eye – she as a legislator, he as a trial lawyer.

Hollingworth, 69, is a former New Hampshire Senate president who ran for governor three years ago. Hutchins, 47, won millions from the Roman Catholic Church on behalf of alleged victims of sexual abuse.

At issue is whether Hollingworth is entitled to park at the end of a narrow gravel road in front of a house the Hutchinses bought last year on Great Boar’s Head Point, a spit of land that juts into the Atlantic Ocean. [….]

Separately, Hutchins’ wife, Kathy, has accused Hollingworth’s husband, William Gilligan, of stalking her. She testified she felt threatened when Gilligan told her, “You have no class,” and “You have no shame,” after witnesses said they saw her douse her neighbors’ guests with a lawn sprinkler.

The Hollingworth side claims that Mrs. Hutchins was caught on videotape hammering a nail into a tire on Hollingworth’s car at night. Mrs. Hutchins claimed she was “banging” on the tire but did not puncture it. She has pleaded not guilty to attempted criminal mischief.

Videotapes played in court also showed the Hutchinses giving the finger toward the Hollingworth house and Mrs. Hutchins slapping her buttocks and bending over as Hollingworth and Gilligan passed in their car. Mrs. Hutchins said last week she was simply bending over.

Other neighbors have been drawn into the fray.

“Everyone up there is in fear of personal harm of some kind, and property harm,” said Robert Crowley, whose lives between the battling couples. “It is extremely tense.”[….]

Hollingworth and her husband have temporarily vacated the house, which she has owned since 1976. The Hutchinses do not live in their house; they plan to tear it down and rebuild.

Last month, District Judge Thomas Rappa urged the couples to try to resolve the dispute and appreciate their seaside homes, instead of trying to “outmaneuver the other party like Wile E. Coyote and Road Runner.”

“Reach deep within yourselves,” he counseled. “Grow as individuals, have some tolerance toward your neighbors, and show some respect.”

Hmm. It can’t be good when the judge compares you and your opposition as Wile E. Coyote and the Road Runner. But, at least he isn’t comparing you to either Yosemite Sam or Elmer Fudd in their respective quests to be rid of Bugs Bunny…

And, here’s another Findlaw link: Associated Press Randall Chase reports on “Delaware Supreme Court rules in favor of anonymous blogger in defamation claim”:

The Delaware Supreme Court rejected a town councilman’s quest to find out who posted obscenity-laden tirades about him on the Internet, saying free speech concerns outweighed the politician’s argument that he was defamed.

The decision Wednesday reversed a lower court ruling ordering an Internet service provider to disclose the identity of four anonymous posters to a blog site operated by Independent Newspapers Inc., publisher of the Delaware State News.

The posted entries, among other things, accused Smyrna councilman Patrick Cahill of “obvious mental deterioration” and used the name “Gahill” to suggest that he is homosexual.

In June, the lower court ruled that Cahill had established a “good faith basis” for contending that he and his wife were victims of defamation, and it affirmed a previous order for Comcast Cable Communications to disclose the bloggers’ identities.

But Chief Justice Myron Steele likened anonymous Internet speech to anonymous political pamphleteering, a practice the U.S. Supreme Court characterized in 1995 as “an honorable tradition of advocacy and dissent.”

Accordingly, Steele wrote, a court should not order the unmasking of an anonymous Internet poster unless a plaintiff offers strong proof of defamation.

“We are concerned that setting the standard too low will chill potential posters from exercising their First Amendment right to speak anonymously,” Steele wrote. “The possibility of losing anonymity in a future lawsuit could intimidate anonymous posters into self-censoring their comments or simply not commenting at all.”

Steele also noted that plaintiffs in such cases can use the Internet to respond to character attacks and “generally set the record straight,” and that, as in Cahill’s case, blogs and chatrooms tend to be vehicles for people to express opinions, not facts.

“Given the context, no reasonable person could have interpreted these statements as being anything other than opinion. … The statements are, therefore, incapable of a defamatory meaning,” he wrote. [….]

So, free speech – to the extent that blogs exist for the purpose of not saying anything particularly substantive – even if it may be insulting – is protected? Hmm. Well, off the top of my head, I can’t remember the elements to state a claim of defamation, forget proving it. I just don’t think it makes much sense to go after a bunch of anonymous nitwits or force a newspaper to reveal who these nitwits were. So, why would you want to sue a bunch of anonymous nitwits for defamation? Just do what most would do – ignore ’em.

Slate’s Dahlia Lithwick posits the following:

Over the last week it has been said that Harriet Miers is an “inkblot.” That’s supposed to mean she has no visible horns, no discernible politics, and no paper trail; that she’s a huge national mystery. But what it should really mean is that she has become a huge national Rorschach test: We look at her and can see nothing beyond our own fears and anxieties. [….]

What’s the result of a system in which everyone scrutinizes the nominee, finds nothing, then projects their own paranoia and anxiety onto the entire confirmation process? Well, for one thing we have abandoned the responsibility to scrutinize the actual candidate. Each side lets the other side set the agenda. Everyone waits to see what the other team thinks, and when that can’t be ascertained for certain, we invent crazy scripts for what they likely think.

Members of the Senate have a duty to figure out who Harriet Miers really is. That duty ought to transcend the shallow current task of determining that we only like her if they don’t. Granted, it’s almost an impossible task to figure out who the nominee really is since confirmation hearings produce virtually no substantive information, and this nominee has no known views. The White House won’t let us see any of her work product from her stint as White House counsel. And the class of questions nominees choose to avoid expands with every nomination. But what we cannot continue to do is react reflexively to one another; respond to invisible secret files we imagine the other team is chuckling over late at night over a cigar and a brandy.

Rorschach tests work, to the extent they do, because they reveal that the viewer is crazy without ever confronting him with that fact directly. That unacknowledged craziness is exactly what both sides of the judicial confirmation wars are now betraying: Faced with the impossibility of really knowing someone, much less predicting their behavior into the far distant future, we gaze at a meaningless drawing and see only our worst selves.

Great article. Makes excellent points and raises very real concerns that I’ve been having ever since the John Roberts nomination.

Opening Arguments, Endlessly (NY Times)

A survey conducted by Blogads.com, which administers online advertising on blog sites, and completed voluntarily by 30,000 blog visitors last spring, found that 5.1 percent of the people reading the blogs were lawyers or judges, putting that group fourth behind computer professionals, students and retirees. The survey also found that of the 6,232 people who said they also kept their own blogs, 6.1 percent said they were in the legal profession, putting lawyers fourth again, behind the 17.5 percent who said they were in the field of education, 15.1 percent in computer software and 6.4 percent in media, said Henry Copeland, founder of Blogads. He conceded that the survey was hardly scientific, but argued that at least it undermined the popular image of the blogosphere as dominated by antsy teenagers and programmers in their pajamas, tapping away at keyboards all night.

Now, how are you counted if you are actually all of the above, like some of us here?

—

Now that we actually booked it, I hope I am not jinxing it, but P- needed to go on her annual Fall trip, and wanted a change of pace from her usual whirlwind European tours, so she opted for Honolulu. I am not going to complain — if anyone could use a spiritual retreat in paradise, count me in.

—

I’ve volunteered to mark final briefs for the Thomas Tang Moot Court competition. I had an idea that it was going to be a lot of work, but I have 7 to read, each 50-75 pages a piece. I’m glad I have 2 weeks to do it.

Network feud leads to Net blackout:

On Wednesday, network company Level 3 Communications cut off its direct “peering” connections to another big network company called Cogent Communications. That technical action means that some customers on each company’s network now will find it impossible, or slower, to get to Web sites on the other company’s network.

Power grab could split the Net

For the first time in its history, the Internet is running a real risk of fracturing into multiple and perhaps even incompatible networks.

At a meeting in Geneva last week, the Bush administration objected to the idea of the United Nations running the top-level servers that direct traffic to the master databases of all domain names.

That’s not new, of course–the administration has been humming this tune since June. What’s changed in the last few months is the response from the rest of the world.

Instead of acquiescing to the Bush administration’s position, the European Union cried foul last week and embraced greater U.N. control. A spokesman said that the EU is “very firm on this position.”

This has been driving me nuts over the past day. I’ve had to go through this server to get to the work servers from my RoadRunner connection. The Level 3 – Cogent fight is almost exactly like the same fight as the Time Warner Cable – Cablevision fight over the Yankee YES Network. Level 3 thinks that Cogent ought to pay for a “transfer” connection, where one pays the other, while Cogent believes it is entitled to have a peering connection, where one swaps connections with another for free.

This is what it is all about, isn’t it: the convergence of pay for play versus share and share alike. Open Source vs. Commercial Software. Copyright vs. Creative Commons. Cable vs. TV. RIAA vs. Peer to Peer. Telephone vs. VOIP. Convergence or crisis?

The coverage on Harriet Miers, White House General Counsel-Supreme Court nominee, has been interesting stuff. I like the Slate coverage – amusing stuff. MSNBC ain’t so bad either. Thought it was weird that the announcement of her nomination overshadowed Ch.J. Roberts’ first First Monday, but I guess George W. Bush is doing what he will. Oh well.

I tweaked my 9/3/05 post; I ought to edit myself better.

Major League Baseball playoffs time – Yanks v. Angels; Bosox v. ChiSox; St. Louis v. San Diego; Atlanta v. Houston. Hmm. And, no “House, M.D.” until baseball is over in November. Darn…

FOX sitcoms: Monday’s “Arrested Development” was hilarious. Michael Bluth (played by Jason Bateman) went into denial that he even has a family (so that he may date Charlize Theron’s character). The Bluth family has a new lawyer, since Henry (Fonzie) Winkler (the actor) is unavailable to play the recurring lawyer character. So, of course, if Fonzie’s not in, you go get Scott Baio (the ex-Chachi of “Happy Days”/the ex-Charles of “Charles in Charge”). Scott Baio’s “Bob Loblaw, Esq.” Say it three times fast now. That’s right. Tee-hee. He’s an extremely humorless attorney, too (his personality, that is; he ends up being funny that way): Lindsay Bluth’s all but throwing herself at him (yep, Chachi’s still a cutie at his age), and Bob Loblaw’s just charging her for wasting his time. Darn attorney’s fees.

“Kitchen Confidential” – Monday’s episode: Jack (played by that ex-Alias actor Bradley Cooper, who was so amusingly psychotic on “Wedding Crashers”) has to use his cooking skills to make such decadent food to literally cause his cooking school teacher’s death. John Larroquette (the ex-Dan Fielding, Esq., of “Night Court” fame) plays the tough and cholesterol-filled chef/teacher. His character cannot have anymore bypass surgeries, and feels that if he had to die, he would die eating his best student’s food. (and he nominates Jack to be his favorite student). Only, Jack’s conscience gets the best of him – see, Jack no longer does crazy, stupid things (he’s sober; he won’t go overboard; he won’t kill or do other harm), which disappoints his teacher, who insteads dies after eating a not-very-hygienic hot dog stand hot dog. Oops. But, strangely funny. The show needs work, but has potential. (but, I miss John Cho as the seafood specialist chef; he was funny and he avoided making such a bland looking show).

ABA eJournal reports that Americans are disappointed with judges. Martha Neil writes:

More than half of Americans are angry and disappointed with the nation’s judiciary, a new survey done for the ABA Journal eReport shows.

A majority of the survey respondents agreed with statements that “judicial activism” has reached the crisis stage, and that judges who ignore voters’ values should be impeached. Nearly half agreed with a congressman who said judges are “arrogant, out-of-control and unaccountable.” [….]

The Opinion Research Corp. conducted the survey, calling 1,016 adults throughout the country in early September. Participants included 505 men and 511 women aged 18 or older. Due to the effects of Hurricane Katrina, residents of Alabama, Louisiana and Mississippi were not polled.

Calls were made to a random sample of American households. Those surveyed were asked questions about their age and education levels, and were asked to give one of six answers—strongly agree, somewhat agree, neither agree nor disagree, somewhat disagree, strongly disagree or don’t know—in response to public statements criticizing the judiciary.

Fifty-six percent of the respondents strongly or somewhat agreed with the opinions expressed in each of two survey statements:

* A U.S. congressman has said, “Judicial activism … seems to have reached a crisis. Judges routinely overrule the will of the people, invent new rights and ignore traditional morality.” (Twenty-nine percent strongly agreed and 27 percent somewhat agreed.)

* A state governor has said that court opinions should be in line with voters’ values, and judges who repeatedly ignore those values should be impeached. (Twenty-eight percent strongly agreed and 28 percent somewhat agreed.)

Forty-six percent strongly or somewhat agreed with the opinion expressed in a third statement:

* A U.S. congressman has called judges arrogant, out-of-control and unaccountable. (Twenty-one percent strongly agreed and 25 percent somewhat agreed.)

Among the respondents, younger adults were less likely than older adults to agree with all three statements. Those with a college education were more likely to disagree with the statements than high school graduates.

Only 30 percent of respondents somewhat or strongly disagreed with the first statement and 32 percent felt the same way about the second statement. The most disagreement was reflected in the responses to the third statement, with which 38 percent took issue.

Two percent to 3 percent responded “don’t know,” and the remainder of the respondents neither agreed nor disagreed with the statements.

The margin of error for the survey is plus or minus 3 percentage points, at the 95 percent confidence level. Opinion Research Corp. says survey results were “weighted by age, sex, geographic region and race to ensure reliable and accurate representation of the total population.”

The congressman referenced in the first question is Rep. Lamar Smith, R-Texas, who made the comment at an April 2005 rally in Washington, D.C. The governor in the second question is Matt Blunt, a Missouri Republican, who reportedly made the comment during an interview with a religious publication in May 2005. The congressman in the third question is House Majority Leader Tom DeLay of Texas, who made the comment in March 2005.

Several legal scholars responding to the survey results were startled by the numbers.

Georgetown’s [Mark] Tushnet says he didn’t realize the level of dissatisfaction was so high. “What I had thought was the case was that there was a significantly higher residue of general respect for the courts,” he says. “And these numbers suggest that that’s not true.”

[Charles G.] Geyh of Indiana University says the survey suggests “a trajectory” upward in the number of people unhappy with the American judiciary—apparently simply because these critics disagree with the law that judges have a duty to apply.

The idea that judges should “somehow follow the voters’ views really reflects a fundamental misunderstanding of what judges are supposed to do,” he continues. “They should only be criticized when they ignore the law and start infusing their own values into the law regardless of the law.” [….]

The way I see it, I think it’s terribly disturbing that neither America’s politicians nor its citizenry seem to understand that voters aren’t supposed to affect the judiciary (unless you’re in a district where you have an elected judiciary, but even then you might end up with a corrupted and dimwitted judiciary). And, certain politicians and citizens seem ill-informed to make evaluations on the judiciary (at least the survey suggests that those with more education wouldn’t make the judgment that the judiciary is “arrogant” and “out-of-control”). If the legislators don’t like what the judges do, they at least can make the law to reverse what the judges did. Do we not know how checks-and-balances work?

Went to a surprise farewell party in Chinatown. She’s moving to Washington, D.C. this weekend. If anyone knows anything about eating out in New York, Monday has to be the slowest day at any restaurant. This was true at the place that we went to, Harmony Palace. If it weren’t for us, they would have just packed it all in. But it was very nice to have the whole place for a fine despedida.

I still have the cold from the 26th, that continues to linger like a bad houseguest. Several of my co-workers are starting to get it, too.

P-‘s sister’s dogs spent the day on Sunday hanging out at our place; it was also the annual Blessing of the Animals that is traditionally connected to St. Francis of Assisi Day (which happens to actually be today, October 4), and P’s sister really wanted the dogs to be blessed as some protection against dog flu.

A friend from law school’s mom passed away on Friday. It was apparently unexpected, and there is so much grief. The wake is on Friday at the funeral home my dad used. The only thing to say is that this annus horribilis cannot end soon enough.

The other thing that I totally missed when I blogged on the 26th because of my sickness was the blog’s second year anniversary. Muchos kudos to SSW and YC for writing, for making up for my slack, and just being damn interesting. For all you people who bother to read our rantings (amazingly, it’s like 900 unique people a month, 600 of which are probably search engines), thank you.

As I’m writing this in the wee hours of Monday, I shall say that this will be an interesting First Monday at the US Supreme Court, as it is the first day of the Ch. J. Roberts Era.

A little rundown –

Saw “Serenity” on Saturday. Interesting movie, picking up where the cancelled FOX show “Firefly” left off. (I never got to watch “Firefly,” but knew enough about the show). Sad but triumphant ending for the Serenity crew (brought to us by that Buffy/Angel creator, Joss Whedon, who’s gifted with the sardonic dialog).

“Veronica Mars” season premiere was interesting; so it turns out that Veronica opened her door, and – considering the hesitancy in her voice – it might not have been exactly the person she expected (who was she expecting we may never really know). But, it was her bad boy toy Logan, who was beaten up and accused of assault. Did he commit the crime? Unknown. But, Veronica took the summer off from crime detection, only to be persuaded back into it by the time her senior year begins. And, inevitably, her relationship with Logan did not last. She’s back with her ex (and Logan’s best friend) Duncan. Hmm. And, a new season-long mystery begins…

“Alias” – that show drives me nuts. The latest season premiere was nutty as heck. Oh, and the local FOX station has the “Alias” reruns, showing Season 1. Great nostalgia for me (especially as I haven’t gotten the Season 1 DVD’s). Season 1 was crazy, but fun crazy.

Weird to see “Enterprise” reruns syndicated on the local NBC station, when “Enterprise” used to be on the local UPN station (which used to show “Voyager” reruns and would have expectedly shown the “Enterprise” ones). Oh well. Nice to see a little Star Trek somewhere on non-cable tv (’cause I’m still cable-less).

Local UPN station is showing syndicated reruns of the Season 1’s “Stargate Atlantis.” Good stuff so far. And, thanks to the local UPN, now I can watch “Farscape”! Geez, I’m getting my geek tv sci-fi fix (without going cable/DVD/or checking on-line).

Something of note for Asian-Americans, reported by NY Times’ Winnie Hu:

Shemini Atzeret, Id al-Fitr, Immaculate Conception, Election Day, Purim and the Asian Lunar New Year – all important days, to be sure. But to New Yorkers of any religious, cultural or political background, they have another significance.

It may sound crass to say, but for those who drive in the five boroughs – and spend endless hours looking for a spot to park – these are among the 33 holidays each year when alternate-side parking rules are suspended, freeing up infinite acres of curb space.

Now, those drivers have Diwali, too.

For Hindus, Diwali is an annual festival of lights that begins at the end of October. It is believed to ward off evil spirits and usher in prosperity for the community. For drivers, it is parking holiday No. 34. Mark your calendars: the final day, and the culmination of the festival, falls on Nov. 1 this year.

But just as Manhattan motorists who find themselves racing to the same precious spot engage in a little verbal road rage, so too have arguments boiled over Diwali. The City Council yesterday unanimously passed a law to suspend parking rules on that day, but only over the objections of city sanitation officials. Those officials have opposed the proliferation of parking holidays, saying they hamper their ability to keep the streets clean.

Mayor Michael R. Bloomberg, who is seeking re-election in November, is expected to veto the Diwali legislation – even though that could cost him votes in predominantly Hindu communities in Queens and elsewhere, and even though Council leaders say they have enough votes to override a veto. Aides to Mr. Bloomberg said they were reviewing the legislation.

More than a dozen Hindu business and civic leaders showed up at City Hall yesterday to demand respect and equal treatment from the mayor when it comes to parking privileges for their religious holiday.

“Hindu doesn’t have a single holiday yet, and we also contribute to the business and professional communities,” said Subhash Kapadia, senior adviser to the Jackson Heights Merchants’ Association, which has 250 members. “It’s high time for us. This is about honoring Hindu just like the other religions in the city calendar.”

In one of those accepted peculiarities of New York street life, parking is prohibited during certain hours on one side of the street and then on the other, to allow for street cleaning and unimpeded traffic flow. [….]

Kathy Dawkins, a spokeswoman for the Sanitation Department, emphasized that the parking rules were intended solely as a cleaning tool. “Alternate-side-of-the-street parking helps us to sweep streets and keep streets the cleanest they have been in more than 30 years,” she said.

When parking rules are suspended, she said, 250 sanitation workers who would normally clean streets have to be reassigned. This year, the 33 holidays stretch over 39 working days for the department; for instance, Id al-Fitr lasts three days.

Councilman John C. Liu, the chairman of the Council’s Transportation Committee, said that suspending parking rules on Diwali would be a small inconvenience for the city but a large source of pride for the city’s Hindu residents.

“The precedent was set decades ago,” he said. “It’s now a question of equal treatment, and that’s what we’re saying.”

The passing of Judge Constance Baker Motley, Civil Rights trailblazer. A pioneer, indeed:

Judge Motley was the first black woman to serve in the New York State Senate, as well as the first woman to be Manhattan borough president, a position that guaranteed her a voice in running the entire city under an earlier system of local government called the Board of Estimate.

Judge Motley was at the center of the firestorm that raged through the South in the two decades after World War II, as blacks and their white allies pressed to end the segregation that had gripped the region since Reconstruction. She visited the Rev. Dr. Martin Luther King Jr. in jail, sang freedom songs in churches that had been bombed, and spent a night under armed guard with Medgar Evers, the civil rights leader who was later murdered.

But her métier was in the quieter, painstaking preparation and presentation of lawsuits that paved the way to fuller societal participation by blacks. She dressed elegantly, spoke in a low, lilting voice and, in case after case, earned a reputation as the chief courtroom tactician of the civil rights movement.

Roberts was confirmed and sworn in as Chief Justice today. He definately had the credentials, a lot of things broke his way, and I’m pretty convinced that he is not going to be a Scalia. However, Senator Richard Burr’s statement during the floor debate that I caught on the PBS NewsHour describes my worry about the political process:

If we’re not careful, the best and the brightest legal minds in this country that would serve on the bench and serve with distinction, regardless of what party they’re from, when they get that call, they will say, ‘Mr. President, I want to pass. I can’t put my family through it. I can’t put myself through it. The risk of going through with it is too great to everything around me to serve my country.’

I ask all of us – what message are we sending to our children when the best and the brightest pass, when they elect not to go through the process that we in this body have control of?

I know that it what is happening right now and America is the worst for it.