(See the original post)

Jacob Levy can be found in Amber Taylor's comments, complaining (rightly) about the inhumanity of NYC subway stations.

Those of you just starting law school or already a year into it may be thinking about writing a student note or comment. Student papers are written for a variety of reasons: journal requirement, graduation requirement, independent study for credit, or as part of a seminar. Whatever the case, you should seriously consider putting some real effort into it and seeing the project through to publication. The marginal cost of turning, say, a seminar paper into a publishable note or comment is likely to be quite small.

With that in mind, Professor Kerr offers a valuable list of topics related to his area of interest: computer crime.

While on the topic of student papers, I thought I'd say a word on preemption checks. For those who don't know, many people tell students to run a search on their proposed topic to be sure no one has previously weighed in with all the answers. I think the idea of letting a preemption check discourage someone from writing on a particular topic absurd. Of course, no one has all the answers.

Let's say, for example, that a student is interested in school vouchers. Much has been written on the topic, especially since the Court's decision in Zelman. But that doesn't mean you can't weigh in and make a contribution to the literature. The problem with the preemption check is that it is urged after a student initially sets forth a potential topic (e.g. school vouchers -- are they constitutional?). If you do a check on this topic you will, to nobody's surprise, find that people have already weighed in on both sides. So what? At that stage of the game you probably don't know very much about school vouchers (and even if you do, you may not be familiar with, say, the intricacies of the debate on whether these programs run afoul of the Court's Establishment Clause jurisprudence). If it's a topic you're interested in, dig into the literature and think the arguments and implications through -- this is the stage where ideas that may contribute to the debate are likely to come. Don't let a preemption check stop you before you even have a chance to get started.

To be sure, the preemption check serves some use. It is a helpful way, for example, to get a sense of what is out there on a particular topic. Moreover, if you have a very specific idea or doctrinal area in mind, it can tell you whether someone has already gone down the path you have marked out. In this situation there almost certainly remains room for you to make a contribution to the question, but you may decide you would rather spend your time on a different topic. This is different, though, than allowing a preemption check to stop you from writing on something that interests you before you even truly understand the topic.

Does anybody know anything about, or know of articles that talk about, the history of "affirmative action" programs at the state level in the years between the ratification of the 14th Amendment and the S.C.'s decision in Bolling v. Sharpe?

I don't, but I'd like to.

[The idea being that the presence of pre-Bolling federally race-conscious programs surely should have little historical bearing on the constitutionality of state race-conscious programs, since until Bolling whatever norms of equal protection the 14th Amendment was understood to instantiate into law (itself an open question) weren't applied to the Congress (which was perhaps seen as more "benign").]

I've knocked Bolling very harshly, though I am grateful to Professor Hutchinson for explaining the decision, if not defending it.

Quick UPDATE: To be clear, by "affirmative action" I actually mean race-conscious remedial measures of any sort, not just in the realm of education.

Nigella Lawson promotes Coq au Riesling (covered previously by co-blogger Waddling Thunder). Both recipes look good, but I doubt I'll ever make them-- if I had a bottle of Riesling and some chicken sitting around, I doubt I could do anything other than roast the latter while drinking the former.

My recent post on the ideal subway has drawn a range of response, so I thought I'd put an update up before the week was out. Before I get to the nitty gritty, though, I just wanted to note something that definitely will never happen in a subway system. When I was still living in the UK, a visitor to London once asked me where the Oxford Circus Tube stop was. Pointing behind me, I said something like "Oh, I just saw it over there". It took a few moments of pondering the puzzled look on the tourist's face to realize that she had taken me to mean that the station might no longer be where I said it was. So that's my own last proposal for an ideal subway - constantly moving stations.

As for all my respondents, many of you decided that I was describing some particular train system. One email commenter noted Moscow, in the comments of Amber's response we have Chicago, and another person identified Berlin. I'm only surprised that no one said anything about the Japanese system - though I don't know much about it, I've heard it's amazing.

As to specific policies to add to mine, a commenter on my own blog mentioned handicapped access. That definitely seems like a good idea, and I assumed most systems would have it. My classmate Amber agrees about most of my suggestions, but questions why I like tokens and fixed rate pricing as an economic matter - while Will notes the importance of late night trains, misleading transfers, and hopefully clean bathrooms. Other people in response to the same post mentioned LCD screens outside telling you whether a train is arriving or not (a great idea, to my mind), no turnstiles at all but inspectors, heated cars, better maps telling you how to make your way efficiently inside the system, and a lack of drunk Russian soldiers. All good ideas, I think. Not that any of this is likely to happen, but we can all dream.

I am intrigued-- and not altogether displeased-- to see one of the best liberal Democratic bloggers come out in defense of John Ashcroft and in opposition to Al Gonzalez.

I, too, have joined in the Ashcroft-bashing in the past, but have now begun to wonder how fair some of my criticisms were. Perhaps we shall see.

Juan Non-Volokh rightly debunks the notion that next year's Republican Congress will impose the death penalty for abortionists. He also rightly points out that there's the little matter of Roe and Casey standing in the way.

I just wish to point out that not only that, but I suspect that such a federal statute would run into both enumerated-powers problems (see U.S. v. Morrison) and 8th Amendment problems (see Coker v. Georgia). Even a court that backed off of Casey-- and maybe a future court will-- might well leave those in place.

IrishLaw disagrees with my assertion that permitting marriages between individuals of the same gender is a question of "justice". (In fact that the claim was more implied than stated the first time around, but I will be happy to state it more baldly here: I think it is unjust to restrict marriage solely to its traditional form, and I think that people ought to permit consenting adults who wish to fashion homosexual marraiges to do so.)

This is rather odd, since IrishLaw's post is pretty much dedicated to the proposition that gay marriage should be resolved by legislatures and not courts. (Except, one presumes, when those courts are interpreting amendments that directly discuss gay marriage.) No place in that post (or, so far as I can tell, anywhere else on this blog) do I disagree with that proposition.

The odd mistake that I.L. makes is in assuming that a question of "justice" is necessarily one to be decided by ladies and gentlemen in black robes. This isn't, and shouldn't, be so. The dialogue of "rights" and of "justice" is not limited to the courts, and executive and legislative officials are not free to ignore questions of justice and rights with a shrug.

Indeed, this mistake is particularly odd when made by somebody like I.L., who is arguing that judiciaries ought to generally be restrained. Often this argument is made to suggest that judicaries ought to hew to some sort of pre-set textual mandate, but I.L. does not suggest that.

At first I had thought the "justice and rights are for courts, and not for legislatures" was just an unfortunate mis-phrasing, but I.L. seems determined to lay waste to my attempts to give her the benefit of the doubt. In a later post, she writes:

Some questions are the province of the legislature because they are matters of public policy, while some are the province of the courts because they are matters of rights that the people may not abridge and the courts are designed to protect. ... So the question is, what kind of question is marriage, or more specifically "marriage" to someone of the same sex -- the province of policy (legislature) or of rights (courts)?