Free at Last!

What a pleasure to see the NY Times give up on Times Select and let us all read the Times columnists on line for free. My life is improved 2% right away.

I don't really get my news from the Times anyway. I read all of it sometimes and some of it all the time, but I would say that on the whole I get most of my news from NPR and CNN.com. I read the Times mainly for the editorials. Times Select walled off just the part I most wanted. It was a pain having to find a physical copy, and it wasn't worth subscribing just for the editorial page.

So this is great for me. I hope it's good for the Times too. They deserve to make money. I know newspapers are having a tough time in the Internet age, but I'm afraid they'll just have to figure out how to make money online from ad revenue. You're just not going to convince enough people to pay money to subscribe when too many news sources are giving themselves away for free.

D.C. Vote Vote

The Senate votes on cloture today on the D.C. Voting Rights Act. I've already weighed in on this one -- it's a great policy idea, but sadly unconstitutional. Details here. And here. And a little bit here.

Blood and Treasure

NYT colmumnist Frank Rich becomes the latest to complain about all the "treasure" that America is expending on the Iraq war. He says "troops and treasure," although I've been hearing "blood and treasure" a lot lately.

What is up with this "treasure" business? Are we funding the war with gold dubloons?

Is it too crass to complain about all of the MONEY we're wasting? Google reveals that "blood and treasure" can be found in a quotation from John Adams, so maybe this is supposed to be some kind of highbrow allusion, but really, I'm sensing that people are just a little reluctant to point out that we're spending a shatteringly large pile of cash in Iraq and getting a big mess in return.

Is the problem that complaining about money would make one seem insensitive to the loss of life? I'm all for putting the lives first -- it's tragic that thousands of our troops have died in this misadventure, to say nothing of all the other lives lost. But money is a legitimate concern too, particularly when you consider what else it could buy. We're spending over $100 billion per year, and that's just the direct spending cost. Normally, one might expect fiscal conservatives to holler loudly about the money.

Let's stop calling it "treasure." Americans have a right to complain about many things connected with this war, and one is the waste of good old money. This war is a huge, inefficient government program, and at the moment it looks like we're going to spend hundreds of billions more and in the end have nothing to show for it.

Sign of the Times

My old torts professor, Guido Calabresi (now the Honorable Guido Calabresi, a judge on the U.S. Court of Appeals for the Second Circuit) always loved to point out how the common law reflected values and how it continually modified itself to keep up with the times and with shifting values and technology. In the old West, in states where farming interests were dominant, a rancher was liable for crop damage cause by a cow that wandered onto a neighboring farm, but in states where ranching interests were dominant, the rancher was liable only if the cow broke through a fence to reach the farm -- and fences couldn't be built because they were prohibitively expensive. But then the invention of barbed wire made fences cheap.

Guido must be savoring the latest news from Virginia: the Supreme Court there has altered the ancient common law rule of tree liability. The case arose when a certain Richard Fancher, of Fairfax County, Virginia, noticed that a large "sweet gum" tree on his neighbor's property was acting awfully aggressive: its roots were bulging through the retaining wall that divided the properties, disarranging his patio, and blocking his sewer pipes. Fancher complained to the neighbor, but the neighbor, who I presume liked that big, old tree, wouldn't. And Fancher ran into his powerlessness under the old law of trees.

The old rule was that if a tree on your neighbor's property started to encroach onto yours, your remedy was limited to "self-help": you could cut back the tree's roots and branches as far as the property line. But you had no right to have the tree cut down and no remedy against the damage it did. The law favored the tree owner. Virginia actually followed a slight variant of this rule -- you had a remedy if the tree was "noxious," but of course that required the rather difficult determination of which trees were "noxious."

Yesterday's decision changed the law -- at least in Virginia. And the change is a lovely reflection of the common law moving with the times. The old rule, the court said, was appropriate to its day, when conditions were rural and the population engaged in agriculture. The rule, however, is unsuitable to modern, urban and suburban life. So the court overruled the old case and held that while you still cannot complain about your neighbor's trees insofar as they block the sun or drop leaves, flowers, or fruit, if they are causing actual harm or are imminently likely to do so, they can be regarded as a "nuisance," which gives you a remedy against your neighbor.

Now, here's your assignment: how would you rule in the next case, in which the plaintiff makes the modern, increasingly heard claim, "my neighbor's tree is blocking my cell phone reception"?

My Day in Court

It was time last week for my biannual service to the D.C. government: jury duty. Apparently, half the people summoned deal with it by not showing up, but of course I, being the law-abiding citizen that I am, always go. Besides, I hear they've started to arrest people who don't.

I'm never impaneled. I've always wanted to serve on a jury -- a useful experience for a Civil Procedure professor, I would think -- but as soon as the lawyers hear what I do, it's all over. Sometimes I can see them playing chicken over me -- I'll survive a few rounds in the jury box, as each lawyer waits for the other to use a peremptory challenge on me. I don't try to avoid service -- I answer the voir dire questions properly and I say that I would be fair to both sides and follow the judge's instructions, which I would, but I'm always struck off.

The only problem is that it can take a long time to get told to go home. This time it took 8 hours. The judge summoned a venire of 78 people and interviewed them one by one to get a jury of 12. We were there from 8:30 am to 4:30 pm. It seems rather crazy. I don't think that's how they did it in the old days.

The only fun part is that there's often someone famous on the venire. The first time I served, it was Robert Bork. When the judge asked if anyone had worked at a law enforcement agency, he stood up and said diffidently, "I used to work at the Department of Justice." The best part was that it happened to be the first Monday in October -- the day the Supreme Court always starts its annual Term. I wanted to go up to him afterward and say, "so, back in court on the first Monday in October -- not quite what you had in mind!" But I didn't.