Amber Taylor derides Libertarian Presidential candidate Michael Badnarik as a loon. True enough. (Although some disagree.)

Anyway, skimming his controversial wikipedia entry I happened to notice his Hoosier ties-- born in Hammond, educated at IU, although he seemingly left sans degree. This has prompted a historical question-- who was the last U.S. president not to have a college degree? I'm sure this information is well known to some folks, but not to me.

UPDATE: Friend of Crescat Phil Brinkman tells me that Harry Truman was the last president not to have finished college. And he's fairly sure that Grover Cleveland was the last one not to have started.

Provoked by Judge Alex Kozinski's thorough and scathing review in the Yale L.J., I've been reading Ed Lazarus's Supreme Court tell-all, Closed Chambers. At the moment I'm read the part where Lazarus recounts all of the fear that juries were imposing the death penalty in an unconstitutionally race-based manner.

I fear I must have some fundamental misunderstanding of either equal protection or criminal law. Suppose it is indeed the case-- as the data cited in Lazarus's book seem to indicate-- that juries are (intentionally or not) racist, and more likely to convict those who murder white folks. (Again, this is hypothetical. I'm not making an empirical claim.)

Would that be unconstitutional? Are juries constitutionally bound to obey the strictures of the 14th Amendment? Would it make a constitutional difference if the jurors announced that there was a racial element to their particular decision (rather than just some impersonal statistic)?

On the one hand-- punishing those who murder blacks less harshly than those who murder whites goes against "equal protection of the laws" in a literal sense. On the other-- the Constitution says "No state shall ... deny to any person within its jurisdiction the equal protection of the laws." Juries occupy an odd role between state and civilian; does a refusal to second-guess wrong-headed jury verdicts reflect an unconstitutional failing?

Put differently, I know the consensus seems to be that judges or legislatures may sometimes set aside or abrogate jury verdicts when they are sufficiently wrong about certain things. The notion that racial bias in the imposition death penalty is not just morally lamentable but also unconstitutional implies that not only may states abrogate jury verdicts, but sometimes they must.

As a moral matter, this is fine by me, but I find it a surprising result. I thought we had to take the bad with the good in those cases.


UPDATE: Thanks to those who have written in to defend the argument that states are constitutionally required to set aside racist jury verdicts-- the general argument is that juries fall quite clearly on the state- side of the state-private actor distinction. (Which helps explain the Batson 14th Amendment rule that you can't keep blacks off of juries, even via peremptory challenges.) (Hei Lun also writes here).

Intriguing. Under this analysis, then, are juries actually required to obey all of the strictures of government scrutiny? Leave aside the evidentiary questions for a moment: would it be unlawful for a jury to convict or acquit a defendant because the defendant or victim were female? jewish? a libertarian?

And what about grand juries. I admire the effort here, but I question the logic.

I left off yesterday with this idea that, while arms races are remarkably common, and legal rules are often asked to reign in the resulting waste, that typically turns out to be a Herculean task. Let me offer some quick examples.

In response to online copyright infringement, copyright holders have in recent years worked feverishly to develop new technologies by which to protect their work from unauthorized duplication. As each new technology is unveiled, however, the hacker community responds, developing corresponding techniques for breaking encryption and freeing protected content. The Digital Millennium Copyright Act was designed to slow this race—that Act makes it illegal to “circumvent a technological measure that effectively controls access” to a copyrighted work —but the results have been disappointing, as hackers are difficult to identify, they often operate in foreign jurisdictions where the Act does not reach, and they rarely have the resources sufficient to pay legal judgments in any event.

The Digital Millennium Copyright Act’s prohibition on encryption circumvention struggles because hackers are often beyond the reach of the law. In other instances, however, arms races are difficult to stop because courts are ill-equipped to distinguish legitimate acts from illegitimate ones. An example here: back when Internet search engines ranked results based on the frequency with which the chosen search term appeared on a given page, clever website owners would imbed valuable marks, and marks associated with their competitors, in unprinted parts of their websites, and then repeat those terms so many times that search engines of the day would mistakenly think that these disingenuous websites were a good match for the search terms in question. Litigation against this practice moved forward under the trademark theory of initial interest confusion, a theory that basically forbids the use of a trademark to attract customer attention under false pretenses. But the law could never completely solve the problem. The reason was that many website operators had colorable good faith defenses—a former Playboy centerfold, for example, could justify using the Playboy mark, even if most of the viewers brought to her site were actually looking for the official Playboy page—and it was therefore difficult for trademark law to forbid the bad act that was driving the arms race without also interfering with perfectly legitimate trademark usage.

A similar problem has slowed efforts to thwart yet another Internet arms race, this one involving the various services that help end-users share music online. When the centralized Napster service was effectively shut down through legal action, it was replaced by decentralized alternatives like Grokster and KaZaA, services that are more difficult to stop because they have no central node through which all requests for music must pass. That change led to an arms race, with copyright holders using mislabeled decoy files to pollute the new networks—copyright holders upload files that looked like the latest popular tunes but in fact contained garbled sounds or, worse, the artistic stylings of Barry Manilow or Kenny G —while the networks worked to build reputation information into their architecture such that a user tricked by a decoy file could warn other users not to in the future download that false file or even interact with the trickster who introduced it. As I say, the courts have had trouble slowing this particular race, the problem being that Grokster and KaZaA have legitimate as well as illegitimate uses. As with the Playboy example, that has made the courts reluctant to intervene, the fear being that any remedy effective against illegitimate uses might inadvertently interfere with legitimate ones as well.

Lest these examples be read to suggest that modern arms races are exclusively high-tech, consider the recent dispute between Major League Baseball’s Chicago Cubs and the several firms that own rooftop properties overlooking the Cubs’ home stadium, Wrigley Field. At issue in the dispute were what are in essence unauthorized stadium skyboxes—complete with plush seats, fancy catering, and full service bars—built on these nearby rooftops and to which tickets are sold to watch Cubs baseball. The Cubs understandably thought these seats illegal; they compete with stadium seats and yet their owners contribute nothing toward team salaries or stadium upkeep. Yet copyright law offered no remedy. Courts are split over whether baseball games are eligible for copyright protection in the first place; and, even if baseball games are eligible, the act of watching a copyrighted work without permission does not itself violate any of copyright law’s exclusive rights. While preparing to litigate state law claims sounding in misappropriation and unjust enrichment, the Cubs therefore triggered a little arms race: the team installed a large canvas windscreen that just so happened to block the view from several rooftop properties. The rooftop owners in response made plans to raise their rooftop seats even higher, and, by the time a court began hearing the merits of the dispute, rumor had it that the Cubs were planning to construct a giant balloon that would have randomly obscured even elevated rooftop views. The arms race was abandoned when the parties came to terms last August; the rooftop owners agreed to share profits with the Cubs, and the Cubs in exchange agreed to engage in joint marketing with the rooftop owners.

Legal rules that endeavor to stop arms races ultimately must confront two significant complexities, both implicit in the previous examples. First, there is the practical concern that efforts to stop an arms race will often merely redirect its energies elsewhere. After losing its trade secret case, do we really believe that DuPont’s rival acquiesced and began to focus on perfecting its own process for producing methanol, rather than instead looking to rent a faster airplane or an airplane that flies at higher altitudes, two among dozens of adjustments that would have made it more difficult for DuPont to detect the espionage in the first place? Similarly, even if the courts had been quick to intervene in the Cubs dispute, how much would have been gained, given that the parties would have just shifted their dispute to the political arena, competing there in efforts to lobby local officials and sway public opinion? This is not to imply that there is no value in shifting a race from one technology or venue to another; quite the opposite, each interaction imposes unique externalities, and each is subject to unique economic, technological, and political constraints. My point here is only that it is rare for law to completely disarm parties with adverse interests, and thus arguments predicated on the waste associated with self-help must always be sensitive to the realities of substitution.

Second, arms races are not always harmful, and the law must therefore be careful to identify those rare but important arms races that ought to be allowed to continue. The Cubs dispute offers an example of a purely wasteful race: it is implausible to suggest that the introduction of windscreens enhanced the experience for fans in either location, and raising the height of rooftop seating at some point not only introduces serious safety concerns but also obscures the view of the field. Contrast that, however, with the race that surrounds the distribution of copyrighted materials online. Now admittedly there is substantial harm inherent in that race: the introduction of decoy files, for example, exhausts bandwidth that could be better used for legitimate exchanges of information, and the entire interaction poses a real threat to the overall integrity of the copyright system. But, on the bright side, the back-and-forth over encryption and distribution technologies has inspired a great many young people to think about new protocols for Internet communication and new concepts in network design. They might be doing so for all the wrong reasons; but, thanks to the copyright wars, a creative and sophisticated intellectual resource—one that might have been hard for society to in other ways tap—has contributed, perhaps substantially, to advances in Internet technologies.

What is Rick Blaine, really? And what was he before? What did he do and what did he think? Huh?

In the movie, we are given only scant clues-- some implication that Rick has a New York connection (but not an undying love for the place) and a flip comment that he left America for Paris owing to some combination of theft, women, and murder. ("It was a combination of the three.") Crescat has covered this before here, here, and here.

This past week, watching Out of the Past several times, I've come to wonder if Jeff Markham's back-story -- stolen cash, femme fatale, dead friend -- could have been Rick's.

So, in a stab at literary sleuthing, and thanks to the ever helpful Yale libraries, I've acquired the play-- "Everybody Comes to Rick's" that forms the basis of Casablanca's screenplay. I thought maybe it would contain clues.

Clues? It contains heresy. No word on Rick Blaine's exodus from America, which has been replaced by a hazy exodus from Paris. What's more: Rick was a criminal defense lawyer, married, with two children (now divorced; she has the kids). No word on running guns to Ethiopia or fighting in Spain either.

As if this weren't enough, the play's story is just Casablanca's shadow cast on a cave wall. Victor Laszlo sends Ilsa (who is now Lois) to sleep with Rick to score the abandoned exit visas, but he discovers her perfidy and casts her out. The Bulgarian couple who Captain Renault (here Renaldo) is preying upon reappear-- but this time they are the main game. Rick hides them under a table and Renaldo pursues Rick with bloody vengeance-- hardly the lovable rake played by Claude Raines.

This new Rick-- with all of the principles but none of the style-- casts doubt on the ability to do textual detective work, and I'm pushed closer to my sister's unknowability hypothesis:

Rick is the archetype, the every-expatriate, the embodiment of the moving finger that, having writ, moves on. He's the eternal (damaged) I, in the eternal present. How could he possibly ever have been some schlemiel from Hoboken who what? forget to shut off the gas line?