So said Wednesday's WSJ, which also reported on Tuesday that Acela Express service was about to resume full service. I guess Amtrak was worried about the few times where they aren't more expensive than flying. I must say, despite some bad Amtrak experiences, I have twice taken Amtrak from Penn Station to Boston, having a nice ride -- including seeing and talking to people I knew -- on both occasions.

Tom DeLay has been indicted. Nothing substantive to say about it at the moment. But reactions at law school today were generally ecstatic. I heard many people denigrating the life and educational experience of "The Exterminator". One criticism was that he was "only" a high school graduate (though, according to this Wikipedia article, he has a bachelor's in biology). It was suggested to me that there should be a rule requiring higher education in order to run for Congress and perhaps even to vote - it was said that only a lack of education could explain why people would ever vote for people like DeLay. Were these peers of mine, then, admitting that their political views are generally instilled only after years of exposure to them after high school as young adults? And, if so, what does that say about the validity of those views?

In the new weekend edition of the WSJ, an editorial went over the "Chick List" of potential O'Connor replacements:

But the feminine Big Four are Edith Jones, Priscilla Owen, Janice Rogers Brown, and Alice Batchelder, all appeals-court judges. Each is a judicial conservative of intellectual heft and with more experience on the bench than Judge Roberts. None, however, is as bullet-proof as Judge Roberts, who managed to pursue a 25-year career in law without leaving much of a public record of his views on hot-button issues.

Recall that I earlier commended Todd Zywicki's support for Jones or Batchelder. The editorial seems to favor Jones, and has this to say about Brown (my first choice):

If anything, Judge Brown is even more outspoken. She once referred to colleagues on the California Supreme Court as "philosopher kings" when they overturned a law requiring parental consent for minors who wanted abortions. She's an advocate for property rights, and she's called big government "the opiate of the masses" and the "drug of choice" for many segments of society. In 2000, she wrote the opinion affirming Proposition 209, which banned racial and gender preferences in state hiring and contracting.

Her credentials aren't as impressive as Judge Jones's, and she might be too libertarian for Mr. Bush. But if nominated, her personal story would complicate matters for liberal interest groups. The NAACP would have to decide whether to oppose the confirmation of a daughter of a sharecropper from Alabama. She was confirmed to the D.C. Circuit earlier this year as part of the filibuster-ending deal in the Senate.

Apparently, the US Postal Service has started offering digital postmarks for email and electronic document delivery. Nifty idea, but a little pricey, I think. Unless you use (and buy at one time) 100,000 or more in a year, each postmark costs more than a stamp. Of course, if you're using it one big documents, it could make for substantial savings.

Calls for corporate social responsibility fail to appreciate the full effects of such a scheme, particularly the costs. Generally, I'm the first person to say that economics has its limits and human rights have no price (though I would define human rights far more narrowly than many). And what is "socially responsible" is contestable, too. But surely nobody can deny that social responsibility can be expensive, and the more broadly it's defined, the more expensive. That's all well and good when you talk about companies like Ben & Jerry's or American Apparel, but what about companies that make what most people buy, and especially what our country's poorest citizens buy. "Social responsibility" can quickly end up being yet another rallying cry for an elite that doesn't recognize it's supposed "progressive" stance is actually quite regressive.

I recently watched this 1963 Sidney Poitier flick and was surprised to find nothing short of an exposition of Pascal's Wager (though without describing it as such). In the movie, Juan the cafe owner aptly describes the Wager as "insurance." Interesting little nugget in this great story about an "itinerant construction worker on his way to California... [when] he crosses paths with some German nuns, who tell him that God has sent him to build them a church. This cross-cultural comedy reaches its zenith when Poitier teaches the sisters English — with a Southern twist. " (from the Netflix description)

Probably not, but a movie is being filmed in my apartment building. When I left this morning, the telltale equipment was being unloaded... and everything is still here. Still, it doesn't seem like nearly enough people or stuff to be a feature film.

Without a doubt, my favorite electronic legal research tool is HeinOnline. I first discovered it during my second semester of law school and it has only gotten better since. PDF images of original journals - over 1,000 journal included currently. For humanists and social scientists: think JSTOR, only imagine it has virtually every journal in your field, including the ones that you think nobody reads.

So why is Hein so great - what about Lexis and Westlaw? Sure, Lexis and Westlaw are great searchers, but who can read the articles!? Who says footnotes should be endnotes!? And any sort of pictorial is a lost cause in them. And, um, ever try to get an article before 1995 or so? Good luck!

Browsing through Hein, you can find lots of interesting things, like an article on natural intellectual property rights in the first (i.e., 1892) volume of the Yale Law Journal. And the "LEGAL CLASSICS LIBRARY" (full texts of classic books) on Hein is already rich, but also still growing. Of course, searching on Hein is terrible, though it has improved some since I've been using Hein. But it certainly lacks the capacity for powerful boolean searches in the way that makes Lexis and Westlaw so useful.

Anyway, the larger point is how easy technology, through tools like Hein and JSTOR, makes it to look into the past. Cardozo's 500,000+ volume library often doesn't have what I'm looking for (usually reasonably so, as I sometimes look for some pretty obscure things), but technology can bring it to my laptop in seconds. Why then, do so few chose to channel the thoughts of those that came before?

I last discussed Lochner (in 1962, when The Least Dangerous Branch first came out) as being what I dubbed “anti-Lochnerism” as being “the jurisprudential equivalent of Roe today.” As is often discussed, Lochner-type substantive due process is essentially what became the reasoning for Roe. Of course, the left is generally in favor of Roe, but dismissive of Lochner. Roe-Lochner reconciliation, then, has become a sort of cabin industry unto itself, even in the new book What Roe v. Wade Should Have Said (edited by Jack Balkin).

But by saying anti-Lochnerism was “the jurisprudential equivalent of Roe today,” I actually mean to say something somewhat different. I mean that anti-Lochnerism should be considered, at least at that time, as (at best) only as settled as Roe is today. One can disagree over the merits or lack thereof in Roe, but surely nobody can seriously maintain that the doctrine is not in question. Why would it become a touchstone for Supreme Court nominees if it weren’t foreseeable that the doctrine could be overturned in a not so distant Court term?

Of course, while the hyperbole advanced by Roe supporters can be likened to the anti-Lochnerists, there is some distinction yet. To no longer recognize a right to abortion under the Constitution would actually require Supreme Court invalidation of current precedent. Lochner, however, was never expressly overruled, and its essence – substantive due process – has retained at least some vitality (e.g. in Roe).

As then Justice Rehnquist said in his Roe dissent:

Even today, when society's views on abortion are changing, the very existence of the debate is evidence that the "right" to an abortion is not so universally accepted as the appellant would have us believe.

Be it abortion or substantive due process, generally, Rehnquist offered wise counsel for yesterday and today alike: the very existence of debate is strong, if not conclusive, evidence of the non-universality of the principle. But Bickel, and especially those that followed him, seem not to have acknowledged this at all. (Bickel was, of course, writing before Roe, but the logic was true even before Rehnquist's putting into writing.)

NY Times:

Chief Justice William H. Rehnquist died Saturday evening at his home in suburban Virginia, said Supreme Court spokeswoman Kathy Arberg.

A sad day indeed.

I had earlier questioned (before Roberts' nomination) whether the O'Connor replacement should be a woman. Obviously, the nominee was not. But a woman to replace Rehnquist certainly would be remarkable: the first female Chief Justice (assuming nobody is elevated and that Roberts isn't now moved to the newest spot, both of which I think very unlikely). Perhaps the Bush Administration planned for just this. Although there was a lot of speculation that Rehnquist's death was imminent, I never heard any solid support. The Administration, however, likely had a very good idea exactly how ill the Chief Justice was and may well have planned to nominate a woman (soon) for Chief.

Given how recently candidates were reviewed by the Administration, a second nominee could be chosen very quickly. This time, though, the wait will be punctuated with sorrow and will exist to allow us all time to memorialize Chief Justice Rehnquist. Unfortunately, the 2005 October Term is fast approaching, and the wait will likely be shorter than one would like.

UPDATE: Or not... Roberts it is.

Though it may be too early to bring politics into the disaster that has befallen the Gulf coast, it is at least worth predicting that fingers will be pointed at our President for the rising gas prices (my fill-up last night: $3.19 per gallon in a state noted for its low taxes) that have followed the devastation in New Orleans. Putting aside the executive branch’s relatively small influence on the price of gasoline, it is the same people blaming the President that are preventing us from building new refineries and from drilling into our own oil supply, which would dramatically reduce the cost of gasoline to the consumer. While it is clear that oil is a finite resource and that we do need to eventually find more efficient and renewable sources of energy, we need to utilize the resources we do have now in the best way possible. Though the voices are relatively quiet now, they will be heard soon enough. But there is a quote from Edmund Burke that we should all keep in mind when hearing these criticisms:

“Because half a dozen grasshoppers under a fern make the field ring with their importunate chink, whilst thousands of great cattle... chew the cud and are silent, pray do not imagine that those who make the noise are the only inhabitants of the field; that, of course, they are many in number; or that, after all, they are other than the little, shriveled, meagre, hopping, though loud and troublesome insects of the hour.”

Of course Burke made this comment well before cows themselves became the focus of environmental controversy, as they are allegedly one of the most potent sources of the greenhouse gases that have supposedly caused global warming, causing the tides and surface temperatures of the water to rise. Which brings us back to our original problem.