Race Judicata - Virginia Law Weekly

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6 ColumnsVIRGINIA LAW WEEKLYFriday, 21 March 2008Mr. Chief Justice, That’s a Blocking FoulCraig Smith ’09Editor-in-ChiefWith the bulk of the William MinorLile Moot Court Competitionnow complete for the spring semester,this is a great time to talk aboutofficiating intramural basketball.The two activities might not seemrelated, but I’ve found that nightsin the striped shirt have paid off onnights when I step to the podium.Both were initially scary, but havebecome enjoyable.I’m competent at oral arguments,but no all-star. Good enough to enjoyparticipating, I suppose. The samecould be said for my refereeing. TheACC won’t be calling anytime soon,but intramural participants seeingme at the opening tip-off can trustI’ll earn my $7.25.In the spirit of the number of foulsyou can pick up in an intramuralgame, here are five ways in whichI’ve found that lessons learned fromofficiating basketball have applied toMoot Court:Officiating is about salesmanship.Sometimes you just don’t knowwhat is going on. A crash of bodiesunder the basket leaves you unsurewho fouled whom. Two playerscrash into each other; block or foul?You might be clueless, but you’ve gotto convince people that you’re on topof the action.Whatever you do, don’t showweakness. Don’t hesitate, don’t whisperor make weak motions, don’tshrink from anything. You get loud,you make the signals emphatic, andyou give the death stare to anyonewho questions you. Eight times outof ten, everyone will back off andbelieve you.Same thing at the podium. Judgeswill throw random cases and difficulthypotheticals at you. You maynot have even heard of the decisionthat you now need to distinguishfrom the facts at bar. Figuring outan answer is key. Equally importantis showing the judges you have aclue. Stammered responses accompaniedby shuffled papers won’t doit for you. “Boom goes the dynamite”is the kiss of death. But if your nonverbalsigns are convincing—voiceinflection, tone, tempo, and eyecontact—the judges just might backoff your substantively uninspiringanswer.Slow down.Every new official does it. Yousee the contact, blow your whistle,and before action has completelystopped you’re sprinting to the scorer’stable to report the foul. None ofthe players know what’s happened.You don’t remember who committedthe foul or if free throws should beawarded. The credibility you built byselling your calls early in the gamehas evaporated.Fortunately, you learn over timethat there’s no rush. Blow the whistleand wait for everyone to stop. Onlyafter you’re sure what happened andyou’ve informed the players do youhead for the table. (Your partnerwill step in to handle the unpleasantinvective certain to be directedat you.)Moot Court judges know how oftenthis advice is repeated to competitors.You hear a difficult question orare just generally nervous. You thinkyou’re responding thoughtfully buttheanswerscomeoutsofast. Goodbyecredibility. So take your time. Pause.Inhale. Speak one sentence at a time,not three. If you feel you’re speakinga touch too slowly, you’re probablyright at the desired tempo. Then,and only then, can anyone appreciatethe insightful response you’reproviding.Nobody’s coming off the benchfor you.It’s frustrating. A shot caroms offthe rim and bodies crash into eachother, outstretched hands knockingthe loose ball out of bounds. In a flash,you have to blow the whistle and decidewho gets the ball. “Orange!” youyell. It’s quickly clear that you, StevieWonder, should have called “Blue!”Blue’s waving their hands disgustedlyand questioning your lineage. Orangeslinks away, almost embarrassed tobe getting the ball.Now you’re on the other side ofthe court. Blue drives the lane. Youthink you see a third step. You blowthe whistle and signal a traveling violation.Blue, like ANG, is now droppingf-bombs with impunity.You want to be anywhere else.Sadly, there’s nobody checking into take you out. There’s fifteen minutesleft in the half and you’re goingto be there the whole time. You cando two things. You can start slinkingaround and let the players work youover. Or you can recover. You caneven, in a quiet moment, let Blueknow that you know you blew thecall, but things are going to be finefrom there on in. You’ve just got tokeep on moving. Focus needs to shiftfrom what has happened to whatcan happen.It’s the same at the podium. You’regoing to make a bad citation. You’llmake a weak argument, stumble ona case name, or mis-answer a question.Look around for help all youwant: Seth Waxman isn’t walkingthrough that door; Theodore Olsonisn’t walking through that door;Robert Bork isn’t walking throughthat door, and if he did, he’d be oldand gray. You’ve got to finish the argument.Figure out where you are,what you can still win, and move on.But watch out for the next point.You can’t officiate your way outof a bad game.You’re stuck out there, saddledwith the memory and foul languagethat accompany a bad call. Unfortunately,there’s no quick fix. Youcan’t grab the ball, drive the lane,and shoot your way out of a slump.There’s no big play you can make.You can’t go looking for a particularcall to make. No single action on yourpart will magically and immediatelyconvince the players that you’re actuallya good referee.There’s no cure-all for a stumble inthe courtroom either. You can’t get ahot hand, get on a roll, heat up, or goon a 12-0 run. You can’t try to draina three on every question. You’ve gotto take your time. Be methodical.Again, work with what’s in front ofyou. Making a weak argument is nodoubt a bad thing. But pressing toredeem your earlier mistake is infinitelyworse. Heck, if you don’t makea big deal of it, the judges may noteven remember your early error.Don’t get distracted by lookingup.Courtrooms have fancy seals andintimidating friezes. AFC has cutegirls running around on a trackabove the court. (Well-built guys,too, from what I understand.) Bothcan completely sidetrack you andruin an otherwise stellar performance.Don’t let it happen to you.Officiating basketball might be themost rewarding, enjoyable experienceI’ve had here in Charlottesville.If you’re looking for an unorthodoxway to improve your appellate argumentskills—or just oral presentationability in general—I couldn’trecommend officiating more. Anyof the sports offered by UVA will offerthese benefits, from broomball toinner tube water polo. Give it a tryand you’ll see the benefits the nexttime you step to the podium. (Justremember that no matter how sarcastichis comments, you can’t ejectJustice Scalia.)image courtesy of theinsiders.comThe familiar refrain “Get off your knees, Valentine . . .” is appropriate herebecause Ted Valentine is the world’s worst basketball official. With a littlepractice, you hopefully won’t receive similar catcalls either on the court or inthe courtroom.In some ways, students at the nation’stop law schools are in a uniqueposition to appreciate our country’sAndy Howlett ’10Columnistcurrent economictroubles. Peoplespeak, sometimeserroneously, of a“trickle-down” effect of economics,but what we’re about to experience ismore of a trickle-up effect. A recentpost on the law blog of record, Abovethe Law, was titled “Time for 2Ls toPanic?” and suggested, among otherthings, that in light of the recent layoffof senior associates by many biglaw firms, 2L summer associatescould find themselves in a position ofnot receiving offers to work full time.I’m not sure about that yet. Eventhough there’s been some slow-downin certain departments at firms, othershave been booming as it seemslike there’s plenty of bankruptcy litigationto go around. But, legitimatefear or not, the suggestion (backedup with some empirical evidence)underscores an important point: thecountry is in for some economic trouble,and having a JD doesn’t makeyou immune.That said, if people headed forbig law are starting to worry, thenthat speaks volumes for the rest ofthe country. The truth is that theeconomic problems are going to hitThe Recession and Youeveryone hard, starting with thelower-class and lower-middle class.And because the current slowdownhas origins that are both broad andunique, there is good reason to thinkthat an economic recovery in the traditionalsense might not be immediatelypossible.Not to discount the mortgagebackedsecurity crisis and myriadother indicators as major factors inthe economic slowdown, becausethey are, but they’ve also been coveredextensively. There are two majorfactors that explain why this recessionis going to be different fromthose that preceded it, and why atraditional recovery might not bepossible, at least for a while.First, the war. Perhaps Iraq as acause for recession is marginalized,because wars often have a positiveeffect on the US economy. This one,however, is an exception. It hasn’treally stimulated domestic industryand it’s turning out to cost a lot morethan anyone imagined. World War IIcreated a massive increase of jobs forAmerica; the Iraq war has simply createdan overwhelming need for soldiersand support staff to constitutewhat may be a permanent occupationforce.The problem here is that the governmentis spending money withoutfueling any domestic growth. Americahas already spent $560 billion dollarson Iraq at the expense of domesticneeds, and, if economist JosephStiglitz’s assessment is to be trusted,is set to spend over two trillion moreon associated costs before the war isover. In the Nation, economists at thePolitical Economy Research Institute(PERI) summarize the situation bynoting that on balance “upward of1 million jobs were lost because theBush Administration chose the Iraqsinkhole over public investment.”There’s no easy way out of thisone. Even Clinton and Obama’s“withdrawal” plans are going to resultin a sizable US presence in Iraqfor sometime to come, to say nothingof the costs already incurred andcommitted to. Of course, as far as thebottom line is concerned, that’s infinitelypreferable to McCain’s centuryapproach.The second problem is oil. It wouldbe great if the high oil prices wereinexorably tied to the Iraq debacle,as some on the Left suggest, butthe problem is that they’re not. Unlikethe energy crisis that the Carteradministration faced, the primaryproblem here is a genuine shortagein the available supply of crude oil,not political constraints (althoughthat is, admittedly, a tertiary factor).Thus the recovery of that period—fueledby a stabilizing of the politicalsituation—is impossible now.The only way to escape the gasolineprices that have nowhere to go butup is for the government to decreasedemand by subsidizing—massivelyand quickly—the development andimplementation of alternative energysources.Anyway, back to the effect on currentlaw students. It’s true that highgas prices hurt the poor the most, becausethey have to spend the largestproportion of their income on fuel.Similarly, the crumbling domesticinfrastructure and the governmentneglect of healthcare, education, andpublic investment projects hurts theless fortunate the most, and they, incidentally,are the group least likelyto be helped by the proposed taxrebatechecks, which will ultimatelyend up being used to purchase importedproducts instead of propellingdomestic growth.But it adds up. It’s times like thiswhen the poor get poorer, everyonegets poorer. As we’ve already seen,decreased purchasing power of lowerand middle classes means America’slargest businesses make less money.And with less overall business beingconducted, there’s less of a needfor $500/hour legal advising. Whatmakes things different than beforeis that a rapid recovery doesn’t seemto be in the cards, and so there’s timefor this phenomenon to make a longterm,as opposed to temporary, effectin the structure of big law firms,where—again according to Abovethe Law—lawyers in many departmentsare having trouble meetingtheir billable hours requirement dueto want of work.And that’s where the layoffs comein. For now many firms are tryingto accommodate by switching theirlawyers over to busier departments(from real estate to litigation, for example),but that’s merely a stop-gapmeasure. The truth is, as a result ofa variety of circumstances, there’ssimply less money to go around, andpeople in big law are going to be feelingthe hit just like everyone else.The total effect is hard to predict.In the short term it seems like firms,in addition to layoffs/transfers, maybe hiring fewer new associates. In thelong term, it depends on how quicklyAmerica decides it wants to recoverfrom this recession. Obama has beenlambasted by many in the legal communityfor promising to end theBush tax cuts and the social-securitytax cut, which would lead to a sizablepay decrease among big-law associates.That could be tough for manynewly-minted lawyers to swallow,but it’d be more than worth it if themoney went toward curing the recessionthrough subsidizing state and localpublic interest projects (the mosteffective economic stimulus during arecession according to PERI) and alternativeenergy sources. It will costassociates some serious dough, but,ultimately, it may save them theirjobs.Email: ah8gu@virginia.edu
Friday, 21 March 2008VIRGINIA LAW WEEKLY Reviews 7Eating at the Corner (Before the Late Night Trip to Little John’s or Christian’s)Brian Chan ’09ReviewerKara Allen ’10ReviewerWhile you were relaxing on thebeach in Cancun, the high winds ofVirginia knocked the power out in myarea. After five minutes of trying toread Property by flashlight, I decidedgoing to the movies with my motherwould probably be more fun. SinceTom had already reviewed Fool’s Gold,we decided on Penelope; even thoughI was reluctant to give James McAvoyanother chance after that downerAtonement.It’s fortunate I’m forgiving—McAvoy’sperformance was so good I almostwrote the entire review abouthim. Then I realized some of you willget dragged to this movie by your girlfriends,and probably want to knowthere’s more to this movie than someguy who is better looking than you.There’s no way around it though—James McAvoy was really, really, ridiculouslygood-looking. He had theunkempt “I-didn’t-shave-this-morning-because-I-was-up-all-night-doing-something-badass-like-playingin-a-band”look. The only good thingabout exam time is most guys aroundhere start getting that look. Only it’sbecause they were studying Contracts,not doing anything badass.ThreeThree is a relative newcomer tothe Corner, taking over the spotformerly occupied by Jaberwocké.Before the tables are cleared and thebar fills with undergrads grinding tothe ’80s, it boasts a respectable restaurant.The atmosphere is casual,with top-40 songs playing and TVs inthe line of sight of each table. Servicewas friendly and unassuming.The menu is small, but each dishis a well-crafted example of upscalebar food. You’ll find appetizersdrawn from the usual bar staples:quesadillas, calamari, and the like.The entrees are routine continentalfare. You won’t find anything thatpushes the culinary envelope, butevery item on the menu is large, inexpensive,and well-prepared, savefor a few minor problems.For example, our appetizer wasa quesadilla filled with corn, blackbeans and cheese. The dish was perfectlycooked, with a crispy tortillaand cheese properly melted (a practicemany of the Mexican restaurantsin Charlottesville have yet to learn).It suffered, however, from being noticeablyunder-seasoned, a mistakethat muted the flavors of the variousingredients. The entrees werea pleasant surprise. Our skirt steakwas seared to a proper medium-rareand served atop a sizeable mound ofmashed potatoes. The day’s special,a filet of trout wrapped in bacon andserved atop cubed sweet potatoes,was beautifully presented, but justslightly overcooked.These problems, however, are justnitpicking. As a whole, everythingon Three’s menu was competentlyprepared. That, in addition to thereasonable price and sizable portions,make Three a solid choice for acasual dinner on The Corner. Grade:A-ZydeCoNew Orleans has one of our nation’smost distinct culinary traditions,a tradition ZydeCo attempts toPenelope: A Movie With Class (and James McAvoy, Too)Anyway, Christina Ricci does agreat job portraying the likeable Penelope,a girl cursed with a pig face.The curse can only be broken, the legendgoes, when Penelope is acceptedby one of her own. Her mother, playedby the always entertaining CatherineO’Hara, decides this means she musta find a rich guy to marry Penelope assoon as possible. It’s kind of like TheBachelorette, only when a contestantsees the girl for the first time, he runsscreaming and jumps out of a secondstory window. An encounter with onepotential suitor, Max (McAvoy), convincesPenelope it’s time to get out ofthe house. The rest of the movie followsthe results of her adventure.The best part of Penelope is probablythe dialogue. It’s clever andintelligent, but not in that GilmoreGirls rapid fire way that gives you aheadache. It’s natural, but still muchmore entertaining than any conversationyou might have at Biltmore. Themovie is also exceptional in that it hasclass. One of my favorite characters isa reporter (Peter Dinklage) trying toexpose Penelope. I think his name isLemon, but most of his scenes werewith McAvoy so I wasn’t really payingattention to minute details likedialogue. Anyway, he is a little person,and I kept waiting for that predictablereflect in its mix of Creole and barbecue.But just as Charlottesville is along way from New Orleans, ZydeCois a long way from being a great NewOrleans restaurant.Like the other Corner offerings,ZydeCo’s prices are fair, with entreesranging between ten to fifteendollars. The menu includes a numberof New Orleans staples: catfish,crawfish, and jambalaya, as well asa variety of barbecue offerings witha choice of four sauces. Each dishcomes with a choice of southernstylesides.Service was fast but somewhat impersonal.None of our entrees spentany time under a warming light; buton the other hand, our server rarelynoticed the empty bread bowl or waterglasses.The food itself did little justice toits Creole and barbecue traditions.The blackened catfish, while notovercooked, was almost tasteless.None of ZydeCo’s “own 12-spicemix” was apparent, and the filet wascompletely unseasoned. Similarly,joke about height. But the only crackever made about him is a pirate joke,which is politically correct since hewears an eye patch. The movie neverstoops to the ‘laughing at people becausethey fell down’ low that comediestoday seem unable to avoid.It’s a good premise—we’ve all feltlike Penelope at some point. Maybe wewent a little too far at the China KingBuffet, or maybe we had buck teethin prep school and the boys made funof us during swim team practice or inthe Natural Wonders store when wewere just trying to look at the kaleidoscopein peace. The lesson we takeaway from this premise, however, is alittle unclear. The movie resolves theissue of being unattractive in a waythat is meant to be inspiring, but isultimately a bit troubling. In the end,you’re left unsure of what exactly themoral of the story is.In fact, the clearest message ofPenelope is that wealthy people areshallower than the rest of us—or as acharacter in the movie more succinctlyput it: rich people stink. I’m not surewhether American director Mark Palanskyhates England or is just reallypatriotic. Whatever the reason, nearlyall the likeable, warm characters areAmerican.This is most evident with McAvoy’scharacter: though the movie takesplace in England, McAvoy discardshis Scottish accent for an Americanone. (You probably thought Englandand Scotland were totally differentcountries, but according to Wikipediathe Queen of England runs both,so they’re pretty much the same.)Moreover, Penelope’s English ‘blueblood’suitors are the only people inthe film besides her mother who freakthe shrimp po’ boy was bland andserved with unripe lettuce and tomato.The pulled pork with ZydeCo’shouse barbecue sauce tasted of littlemore than tomatoes and vinegar.Natives of New Orleans oftenclaim you can’t find good Creole cuisineanywhere else. The same can besaid of the various styles of barbecue.ZydeCo does little to disprove thesenotions. Grade: CMichael’s Bistro and Tap HouseMichael’s, the second-story bar onUniversity Ave. is best known for itsextensive selection of Belgian-styleand Lambic beers. The beer selectionis so good that I suspect the chefsfrequently sample for themselves.That’s fairly plausible, given howpoor the food was.Michael’s menu design bears themark of an amateur chef who is tryingtoo hard. Half the menu reflectsAmerican-style cuisine, while theother half is a mix of the most stereotypicalentrees from several ethnicstyles. Curry and teriyaki are interspersedwith salads and Americanstyledishes. The result is a scatteredkitchen where no cooking style isproperly practiced.Whereas the menu design wasmediocre, its execution was deplorable.Our calamari appetizer wasflavorless. The bison burger wasordered medium but came out twolevels beyond well done. The spinachsalad featured an overly acidicraspberry vinaigrette, and wastopped with rubbery and flavorlessshrimp. While most of our entreeswere bland and unseasoned, thechicken teriyaki was the opposite. Itwas overly-salted to the point whereit was inedible, and served on a bedof powdered mashed potatoes.The service, at least, was excellent.Our server was both quick andresponsive. She was able to answerquestions about the menu, and alsoshowed an impressive knowledge ofthe massive beer list.In short, Michael’s is a good bar,and a fun place to try some newbeers; just make sure you eat athome before you go. Grade: Dimage courtesy of iwatchstuff.comThe most embarassing thing about Christina Ricci’s character: the scarf.out about Penelope’s face. The moviedoesn’t need to go so far out of its wayto tell us rich kids are the devil—anyonewho had buck teeth and went to aprep school already knows that.Overall Ranking: If this movie werea journal review tryout, I’d put it onthe Journal of International Law. It’s ahigh quality film, but the mixed messageskeep it from being the kind ofgreat that is worthy of Law Review.Title SummaryProCon GradeTelevisionJohn Adams, HBOMiniseries, Sundays at9pmBased on David McCullough’s biographyand produced by Tom Hanks, thisseven-part miniseries traces the life ofJohn Adams from early 1770s Boston tohis death on the 50th anniversary of thesigning of the Declaration. Parts 1 and2 premiered this past Sunday, but are inheavy re-run rotation on HBO.HBO spares no expense whenit comes to its own productions,and this is no exception. WithPaul Giamatti, Laura Linney,and Tom Wilkinson, the casthas three Oscar-nominees. Also,Tom Hanks continues his forayinto American history as producer.Such a talented team workingfrom McCullough’s book shouldmake this an entertaining andmaybe even educational project.HBO must be careful, however,to ensure both substanceand style, which, unfortunately,it did not do with anotherbig-budget historicalproject, Rome. Also, Giamattihasn’t done much of notesince his role as the unsavoryand wimpy Miles in Sideways,and such characteristics aren’tquite right for a presidentialleading man.B+SportsUVA Baseball v. BostonCollege; Friday-Sunday, March 21-March 23ACC conference play started for the‘Hoos on March 8 against N.C. State,and they are 2-4 overall in the conferenceafter dropping two out of threeversus Duke last weekend. Student admissionto games is free with your ID.The student section is in the general admissionarea of Davenport Field, whichis located across from U-Hall.One of Virginia’s strongspring teams, the ‘Hoos startedthe season 11-2 and arecurrently ranked 16th in thecountry. But, after some earlyACC season hiccups, hopefullythey will be able to regain theirstride against the unrankedEagles. Also, you can stop nextdoor on Saturday to see themen’s lacrosse team take on perennialpower Johns Hopkins.Ping! That is the sound ofa metal bat hitting a 90 mphfastball. It lacks the charm ofthe “crack” of a wooden bat,and is one of the reasons Idon’t follow college baseballuntil the College World Series.What it lacks in style, however,the metal bat can make up forin increased offense.A
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