Reports From My Nanocosm

What a wild and crazy ride.

For no good reason, I took 17 units during the fall semester. I don’t recommend it to anyone else. I had five classes total: Constitutional Law II (Con Law), Evidence, Business Organizations (Biz Orgs), Mass Communications (Mass Comm), and International Law. I also enrolled in the Advanced Northern California Innocence Project (NCIP) clinic.

Con Law, Evidence, and Biz Orgs are called bar classes. That means they are considered essential because the subjects are tested on the bar exam. International Law is not required but I’m very intrigued by the subject matter. All four of these classes had exams which ended in December. Grades have been trickling in for the past week.

I took Mass Comm because I intend to be a communications attorney, or at the very least be involved in communications policy. Mass Comm. was a paper class, meaning no test was given but a 30 page paper was required. I posted about my paper previously (see: Book Closed)

NCIP, I posted about previously (see: FresnoBee.com: Fresnanâ??s murder conviction reversed).

So far, I’m enjoying my best semester since high school with an A- in each: Con Law, Evidence, and International Law. I say that as I knock on wood with crossed fingers. I’m still waiting for Biz Orgs, Mass Comm, and NCIP. Much better than last year’s grades (2.89 g.p.a.) thus far .

Update: I now have all my grades. I don’t think I’ve had a better semester before now in terms of grades. I have three A- grades, two A grades, and one B grade (Biz Orgs). To celebrate, I’m sticking my nose into research for my privacy law class paper.

The book for the fall semester is now closed. It was brutal but I’m finally done with it.

I turned in my Mass Communications paper at 4:55 p.m. Thursday (Jan. 10), with five minutes to spare. I had intended to finish it a few days earlier but was knocked out with the flu last weekend. Who am I kidding? I would have still turned it in Thursday afternoon, regardless.

My paper argues for Congress and federal regulators to scrap the current communications regulatory regime.

Traditionally, the federal government has taken a silo approach to communications regulation. In other words, each mode of communication is considered and regulated differently.

Think of grain silos rising above the plains like a row of overseers. Each silo holds and isolates a specific type of grain, protects it from the elements, and prevents mixing with the other grains. Similarly, traditional communications regulatory silos isolate individual forms of communication â?? as well as their respective sets of regulations â?? from each other. There are silos for broadcast television and radio, cable television, satellite television, cable Internet access, digital subscriber line (DSL) Internet access over a copper telephone line, telephone service over a copper line, and so forth.

As a result of the silo approach, each mode of communication is controlled by a separate set of regulations, even those that carry the same, exact content. For example, broadcast television and cable television both show audio/visual content on a television set, yet each is governed by different content regulations. Those content regulations in turn receive different standards of review by courts, which allow the government to continue its disparate treatment of the two. That’s why swearing is more allowable on cable television but not on broadcast television.

In the same way, the current regulatory approach also isolates and provides differential treatment of communications services using the same physical conduit. For example, one set of regulations govern cable television while a separate set of regulations govern cable Internet access, even though both media forms utilize the same physical cables.

In contrast to the silo approach to regulations, a layered regulatory framework would raze distinctions between the types of communication and instead focus on the functional portions of a communications network used to transfer content. Such a layered regulatory approach would treat similar content similarly, independent of source, service type, and destination. The model that works best contains four layers: content, application, logical, and physical. If you need a visual analogy, think of the layers stacked like pancakes.

By creating regulatory layers based on functions of a network, the regulatory process would better take into consideration the similarities and differences between the different modes of communication and the technology platforms that underlie each and thus eliminate the disparate â??siloâ? regulations that arbitrarily govern identical content differently.

The argument is very wonkish. If you’re geek enough and wish to read all 39 pages, including footnotes, please do. Razing the Silos: An Argument For A Layered Communications Regulatory Framework (PDF). It is just a term paper, but I intend to keep working on it over the next several years and eventually submit it to law journals for publication.

I just submitted my paper. It was due by 11:59pm via email. I sent it at 11:58pm, according to the sent folder in my school email account.

I will still need to tidy the paper up during the break, but otherwise I’m done with the semester. What a semester. I’ll never consider taking seventeen units again. I stretched myself thin as cellophane trying to keep up.

I’m flickering like the flame of a spent candle. The candle that is just a millimeter long wick and a few drops of liquid surrounded by a discard heap of melted wax.

Now to catch up on sleep, bills, and deferred chores such as cleaning and bill filing. Oh, and some fishing.

During one of my classes this semester, the professor expounded on some of the characters from a case and suggested that a student might want to search the web to verify a factoid. One of my classmates in front of me quickly raised their hand and said “I’ll google it.” That classmate then opened up their My Yahoo! page, entered their search term, and quickly came back with the answer.

Stories like this probably scare the hell out of Google‘s attorneys. Enough so that they posted to the Google Blog back in October asking people not to use Google as a verb. It is also a good reason why Wall Street shouldn’t throw the towel in for Yahoo! just yet.

BTW: That isn’t the first time or the first person I’ve seen say they googled something while using Y! Search.

 That’s how everyone looked after the Evidence exam. I can only imagine the Bar Exam.

I took my Con Law exam earlier today. I feel pretty good about it. I was well prepared. There were only two multiple choice questions I was unsure of, but was lucky enough to take a 50% bet on them. The essay section wasn’t as scary as I thought it might be. They were fairly straight forward First Amendment questions that dealt with the Jena 6 situation in Louisiana.

Now for the real test. I have exams in Evidence on Monday evening and Int’l Law on Tuesday afternoon. Throw in the usual distractions and I’m neck deep in studying and hoping I’m not knee deep in something else.

I still have another exam the following Monday and paper that’s still due. I’m looking forward to the 20th when its all done for the semester. Then again, it all starts over a few weeks later with, hopefully, new distractions.

Each time I read about United States v. O’Brien, 391 U.S. 367 (1968), whether in my notes, outline or Constitutional Law book, the tune Okie from Muskogee starts playing in my head.

We don’t smoke marijuana in Muskogee;
We don’t take no trips on LSD
We don’t burn no draft cards down on Main Street;
We like livin’ right, and bein’ free.

… more lyrics

I can blame the third line of the song. O’Brien upheld a Federal law banning any person from knowingly destroying or mutilating their draft cards. O’Brien, the person, burned his draft card on the steps of the South Boston Courthouse in March 1966 to protest the Vietnam war. The court held that the law banning draft card destruction was content-neutral. It then provided a rule that is still used to today to determine if content-neutral laws violate the First Amendment protection of speech.

Content-neutral government regulation is sufficiently justified if it:

1. is within the constitutional power of the government;
2. furthers an important or substantial governmental interest;
3. if the government’s interest is unrelated to the suppression of free expression; and
4. if the incidental restriction on alleged 1^st Amendment freedoms is no greater than is essential to the furtherance of that interest.

I personally think O’Brien was a BS ruling because the Congressional history shows Congress passed the law in reaction to draft card burning, a form of political speech. Thus, the law was content-specific which would require a higher level of review. In which case, its goal would need to accomplish a compelling government interest and be narrowly tailored to have no less restrictive alternatives. Even under the less rigid test provided in the case, the regulation should fail because it was passed to suppress expression, namely draft card burning. The Supreme Court is made up of humans and is liable to make mistakes from time-to-time.

BTW: I hear the Grateful Dead (with the Beach Boys) version, rather than the original Merle Haggard song. The Grateful Dead/Beach Boys version comes from a live set played in April 1971 at Fillmore East. Give me a holler if you’d like a copy of the MP3 (free, of course). I love the Grateful Dead policy of allowing audience members to tape their shows and freely distribute. More bands should follow it to increase the scope of their audience.

We had a lively debate today in Constitutional Law regarding a series of cases regarding creationism in school science curriculum. The primary case is Edwards v. Aguillard, 482 U.S. 578, (1987), a U.S. Supreme Court case from 1987. In it, the Court struck down a Louisiana law that required ‘creation science’ to be taught whenever evolution was taught as part of science curriculum, and vice versa. The Court held the law was a violation of the Establishment Clause, part of the First Amendment. “Congress shall make no law respecting an establishment of religion …” It held that the law was passed specifically to require teaching of creation science in public schools with the purpose of advancing and endorsing a particular religious doctrine.

Also mentioned was a more recent case from Pennsylvania in which a school district required ‘intelligent design’ to be taught in science classes. That law was struck down as a violation of the Establishment Clause by the local Federal district court because, among other reasons, evidence existed that the textbook publisher cut ‘creation science’ and pasted ‘intelligent design’ in its textbook after Edwards. One typo, as relayed in class, was “crintelligent designce.”

The point of my post is this: Creationism is not science and does not belong in a science curriculum. I’m glad courts have been able to see past the smoke and excise creationism from public school science curriculum. Even my Catholic high school taught evolution in science classes without any need to add disclaimers or to limit the scope of the subject. Then again, it was college preparatory with an eye towards building young men who were ready for college.

Here is a good quote I just ran across that I think sums the whole debate of creationism versus evolution in school:

“Science is facts; just as houses are made of stones, so is science made of facts; but a pile of stones is not a house and a collection of facts is not necessarily science.” – Henri Poincare

Seeing that quote is actually what prompted me to make this post.

I’d like to make an additional note regarding this case. Justice Scalia, in his dissent, showed he really doesn’t care as much for original intent as he claims he does in other cases and his public speeches. He says in several places that determining original intent is nearly impossible.

• “discerning the subjective motivation of those enacting the statute is, to be honest, almost always and impossible task.”
• “legislative histories can be contrived and sanitized, favorable media coverage orchestrated, and postenactment recollections conveniently distorted.”
• “determining the subjective intent of the legislators is a perilous enterprise.”

Fun stuff.

I’m a little behind in school work this week. The reason was worth it. I spent the past few weeks preparing for an evidentiary hearing with the Northern California Innocence Project (NCIP) that happened this past Wednesday in Fresno. It was successful. My clinic group showed up prepared and there was no DA – an empty chair sat at the DA’s table.

It made the front page of the Fresno Bee.
FresnoBee.com: Local: Fresnan’s murder conviction reversed

NCIP is focused on providing inmates an avenue for post-conviction case review to correct mistakes that do happen. It receives cases from inmates, lawyers, inmate families, and various other sources. Students then investigate cases under the supervision of an attorney to determine if an inmate has a claim for actual innocence, or not. I enrolled as a student for NCIP during the summer because I wanted something more practical than what I saw my first year.

I was initially assigned two cases to investigate. In one, I prepared a 1405 motion to start the wheels turning for DNA testing. 1405 refers to the California legal code section that provides for post-conviction DNA testing. I hope to file that motion soon, then will pass it off to some other student. In my other case, I researched a claim, exchanged letters with the inmate, and researched some more. I’ll also pass it off to another student to continue with the investigation. Because I wanted to file the 1405 motion in my first case, I stuck around for the fall semester.

Just before the fall semester began, Superior Court in Fresno responded to a petition for the writ of habeas corpus. That put in motion the processes that culminated in the court granting the petition and reversing two murder charges against our client, Armando. I cannot accurately describe how thrilled I am to have been part of the team who worked on Armando’s case. Most importantly it gives Armando a shot at the “effective” counsel he should have had the first time around. As Armando himself says, he’s now at “square one.”

Wednesday’s events were almost overwhelming. I didn’t know what to expect when our hearing began at 9:30 a.m. I don’t think any of us expected the judge to waive the need to hear evidence or arguments and to grant the petition. We had spent months preparing for a hearing to present evidence supporting the petition. I played a relatively minor in the whole affair. I looked into a potential conflict of interest and tried finding a Strickland expert to tell the court what a competent local attorney would have done during the first trial. I hadn’t heard of Strickland before the day it was assigned to me. For Wednesday’s hearing, I was to question Armando’s first attorney (a friendly witness), regarding his role and what information passed to the subsequent attorney. In addition to the questions I needed to ask my witness, I prepared for any potential objections on direct and to object, when necessary, during cross-examination. That meant I was expected to know the relevant evidence codes. Instead, I took notes as the judge provided a short history of the case, read the facts for the record, concluded that the AG and DA had conceded the facts as stated in the petition, and ordered a new trial. As a result, the judge granted the petition and reversed Armando’s two murder convictions and their life without parole (LWOP) sentences.

The highlight of the trip over to Fresno was meeting with face-to-face with Armando. We met Tuesday night in a classroom in Fresno County Jail to discuss the case. Then we we met with him after the hearing in the gymnasium – it looked more like a store room. He’s a very nice, polite, and respectful, not to mention grounded.

It should be noted that two cold-blooded killers are still on the loose.

This is an experience that the artificial world of a classroom cannot replicate. It provided me with a practical perspective. Instead of just studying Evidence, I was able to directly apply what I learned in the classroom to a real case with real people who have real problems. I was also able to create hypos from some of the real facts for my Evidence professor that help me better understand the relevant sections.

For this reason, all law students should be required to have a clinical law experience. Clinical programs such as the Northern California Innocence Project (NCIP) augment and reinforce classroom learning and better help prepare lawyers. If one thing is missing from the law school experience, it is a lack of focus on practical experience and training. In fact, I think law school should be more like medical school in that the first year is spent in the classroom with a core curriculum, second a mix of classroom with clinical training, and third focused on clinical programs. A fourth can even be created with some sort of placement program, similar to a medical residency. If law schools are guilty of one thing, is is not preparing law students to work as attorneys. That training currently comes after graduation. Law firms have complained for years that associates are ill prepared for the tasks given to them. No wonder why, with such focus on the classroom and the real world kept at such a distance. There, I said it. I’ve been meaning to share those ideas for a while but don’t really find that opportunity often enough.

If you’re thinking of law school, be sure to look at what clinical programs are offered and be sure to plan on at least one while you’re in school.

By the way, I have no intention of doing criminal work after law school. I’m on another track. I chose NCIP to get a chance to do criminal work that I won’t get to do after law school, because it provides essential research and writing skills, and because I like what the program stands for. To me, NCIP instills humanity back into the justice system. Not to mention, it provides justice.

For what it’s worth, I believe Armando is innocent of the murders. I think the evidence is overwhelmingly in his favor.

I love California weather. One reason is I can study outside most of the year. As much of the midwest slips out of its indian summer and into an autumn chill, California has remained temperate and comfortable. This week in Santa Clara has been no exception.

One of my favorite places to study is on a deck behind the law school library. A wisteria vine shades the patio during summer and then sheds its leaves to let the sun through during winter. But it hasn’t been a very pleasant place this week.

The wisteria pods that have been ripening all summer long are spontaneously exploding this week. That’s right, exploding. Without being touched or molested by animal or even a light breeze, the wisteria pods suddenly pop open with a small bang and send shards of pod skin and seeds flying in a number of directions. Every few minutes a pod explodes.

The danger isn’t in being hit. I have been hit several times by seeds and pod shrapnel but am not even scratched. The danger is the distraction from studying to watch the show or watch people watching the show. The other danger is having wisteria parts fall into a drink before realizing it was left open to attack.

The snapping has even been loud enough to bring folks out of neighboring buildings to determine what all that racket is about. One older woman even stood on a table while wearing her comfortable heels (can heels ever be comfortable) to touch a pod. It didn’t explode, but she quickly retreated when one exploded several feet to her left and sent seeds far to her right.

Needless to say, I studied under the wisteria for only a short while on Monday and yesterday. Today, I walked by without stopping after I heard the familiar crackling sounds. There’s always tomorrow.

My seminar class this morning started with the professor asking a classmate: “[V], why don’t you introduce your friend?”

V: “This is my friend. He’s thinking about law school.”

A single snicker resonated through the room. Then the class, in unison: “Don’t do it. Don’t do it! Don’t do it!” with a few “Not worth it!” mixed with “Stay away!”

V could only sit there smiling and shaking his head.

After what seemed like a few minutes, the professor interrupted. “Now, now. It isn’t that bad. Law school is a good thing. For instance, even if you don’t practice law, you’ll find your analytical training useful and employers will seek you out. I’ve had employers tell me that they want me for a non-legal job specifically because I have a JD.” (She neglected to mention that her JD is from Yale Stanford. Her B.A. is from Yale, and she’s a Rhodes Scholar.)

K, another classmate: “It’ll make you paranoid!” Followed by a hearty round of laughter.

Professor: “Yes, it makes you paranoid, but that isn’t such a bad thing.”

Walking through campus today, I was offered free Red Bull by marketers looking to get college kids hooked (today was the first day of the quarter for the undergrads). I wasn’t impressed. Red Bull tastes like a mix between cough syrup and Faygo Rock ‘n Rye soda. It even left the same unremarkable aftertaste.

The caffeine buzz is nice, but I can easily get that from tea, coffee, yerba mate, and a number of better tasting sodas. Hopefully I don’t crash during class.

It appears the RIAA is about to come after students at SCU. It amazes me that they (RIAA) don’t more heavily promote the music rental services like Rhapsody, Yahoo! Music, and the new Napster. Instead they make rental more costly by forcing additional charges to upload songs to MP3 players (notice the payment structure for the three services) and in general make it more difficult for everyone.

“Dear Students:

I am writing to remind you about Santa Clara’s policy regarding sharing of copyrighted materials such as music, videos, and software – such sharing is illegal, in violation of the University’s Network and Communications policy (http://it.scu.edu/policies/NetPolicy.shtml), can lead to disciplinary action by the University, and can place you at risk of financial and criminal sanctions.

More than 20,000 people have been sued by the Recording Industry Association of America (RIAA) for illegally sharing copyrighted music.

The potential financial exposure is up to $150,000 per song, video, or program obtained or shared in violation of copyright. Santa Clara is required to comply if it receives a subpoena requesting identification of someone suspected of such sharing via University computer networks.

Recently, RIAA has announced that they will be targeting university students with 400 monthly *offers to settle* in advance of suits.

This reminder is motivated by a dramatic increase in notifications of potentially illegal file sharing received by the University. This academic year we have already received nearly three times the number of notifications received all of last year, including eight in the past 24 hours. At some other institutions such a surge has preceded receipt of subpoenas.

Regardless of your personal view of the ethics related to file sharing of copyrighted materials, it is an illegal activity, one with potentially serious criminal and financial risks, and possible repercussions for your relationship with the University. Please be aware of these possibilities and conduct yourself accordingly.

I*d be happy to discuss file sharing, or other technology issues, at any time: [email], or [phone#].

Ron Danielson
Vice Provost and CIO”

In writing papers for school, it always seems that I spend the most time trimming it down to the word limit.

A story from Wednesday.

A large dog hairy dog walked by as I sat with several classmates on a bench waiting for our professor to join us for lunch.

Classmate #1: Wow, that’s a big dog. What kind do you think it is?
Classmate #2: I think that’s a mastiff
A few classmates (in unison): no, that’s not a mastiff
[pause]
Classmate #3: The dog from The Sandlot is a mastiff
Classmate #2: Oh, yeah, that’s right.
Classmate #3: That’s such a great movie

A lot of nods and agreement from the crowd with exclaimations about how cool the movie was and similar statements. Either my silence must have been telling or I must have had a blank expression, because I was found out.

Classmate #3: You’ve never seen The Sandlot?
me: No. I’m not sure what it is.
Classmate #2: Really? how could you have not seen that movie?
Classmate #3: Yeah, that is such a good movie. It’s one of my favorites.
me: I’m not sure. I think I was in undergrad when it came out. When was that?
Classmate #3: Huh? Really? It isn’t that recent, is it?
me: Yeah, I think it probably came out when I was in undergrad. 1992 or 1993.

Then silence and blank stares. I had dated myself.

The akwardness was broken soon after when our professor joined us and the conversation turned to our class.

In hindsight, I don’t think they realized I’m ten years older than most of them. The average age in the first year class (as a whole) is 23. The Sandlot was released in 1993 when I was 19 and they were nine or ten years old. That would be like me in 1993 mentioning The Goonies to someone ten years older than me.

Oh well. I’m flattered that I hadn’t already been considered the old man. I’ll be careful from now on. Note to self: nod head and smile for pop culture references when the crowd does.