"Kentucky!!!!!! WTF????????"

We're just hanging here waiting for room service and watching basketball and the sun setting over the Flatirons and I'm reading the "Kentucky" Twitter feed out loud and laughing. I don't much care about basketball, but the raw emotion in the Twitter feed cracks me up, and you know West Virginia is my team:



UPDATE: Pasta, salmon, salad consumed. Kentucky spent.

"When you say Wisconsin, people most often think of the Green Bay Packers, cheeseheads, beer and cold weather."

Does Wisconsin need rebranding? Apparently, the Wisconsin "brand" ranks 37th among states. States that rank higher: Kansas, Rhode Island, Minnesota, New Hampshire, West Virginia, and Utah. New Jersey is 50th. (Even after "The Sopranos"?) California ranked first, of course.

How would you bolster the Wisconsin brand? And are all the states supposed to get into a big competition to have the most lustrous brand? I guess it's good federalism for the states to compete this way, by making you think well of them. Federalism and advertising — they go together under the heading "American" (even as Packers and beer go together under the heading "Wisconsin").

"Argument by impressionistic psychodrama."

I have a review of Jeffrey Toobin's "The Nine: Inside the Secret World of the Supreme Court" in the New York Sun.

ADDED: My main problem with the book is a general problem with popular writing about law (and politics and plenty of other serious subjects). To make it readable and entertaining, you forefront the people, not the ideas, you use a lot of colorful details, and, like a novelist, you make the details seem to express deep things about the characters. Within this rhetorical style, when there are any ideas or events to describe, they seem to arise from the depths of your characters.

Toobin describes Supreme Court cases like that, and because his book is entertaining and readable, many people will get their view of the Court from it. The material analyzing the actual arguments and opinions in the cases is cut way back, as if the author wrote with constant awareness of how little patience you would have for any legal analysis. This is understandable, up to a point. But this extreme minimization of the legal material allows for much sleight of hand, and like a novelist, you are led to take the point of view of some characters over others. He's really making an argument -- an "argument by impressionistic psychodrama."

You don't get to read how Chief Justice John Roberts analyzed the equal protection precedent in deciding that the Louisville and Seattle school integration cases and how Justice Breyer saw the same precedent in a different way. Instead you feel along with Justice Breyer: "Breyer's wan longing for stare decisis will stir few hearts," Toobin writes (at page 339). Wan longing! It reminds me of something Stephen Colbert said on the first episode of "The Colbert Report": "Anyone can read the news to you. I promise to feel the news at you." Anyone can explain the cases to you. Toobin feels the cases at us. And the reader, who's had his feeling massaged for 300+ pages, will read of Breyer's "wan longing" and think: I will be one of the few! My heart is stirred!

But you haven't been given the material to decide if the bad guys are really trashing the precedents. You're just accepting the viewpoint of the judges you've been felt at to think are the good ones. They feel sad, so it must be a calamity. "David Souter was shattered" (page 177), so Bush v. Gore was atrocious.

What is missing is the analytical substance that would let you decide for yourself. In the review, I write:

[H]uman individuals drive the law, as Mr. Toobin tells it. The story of Jay Sekulow, "a nice Jewish boy from Brooklyn" whose "ignorance" was "his best weapon," swells the 12-page chapter on the Supreme Court's religion cases, but there isn't a word about the Rehnquist Court's most important Free Exercise case, Employment Division v. Smith. Smith, written by the conservative Justice Scalia, said religion was not entitled to special exceptions from generally applicable laws. (You can't avoid the Controlled Substances Act, for example, by saying you need to use peyote in a religious rite.)

Smith doesn't fit the theory that the conservatives are out to favor religion or the proposition that the religion cases "usually come down simply to ‘What will Sandra do?'" Justice O'Connor opposed the doctrinal shift in Smith, as did the three most liberal justices: William Brennan, Thurgood Marshall, and Harry Blackmun. It was a liberal tenet that the Free Exercise Clause relieves religious practitioners from requirements the law imposes on everyone else. To bring up Smith would require Mr. Toobin to acknowledge that conservatives favor equality and liberals want to favor religion and that would mess up the narrative arc of his story.

There's something else in the religion chapter that I couldn't fit into the review. When Toobin writes that Jay Sekulow's "ignorance" was "his best weapon," he's portraying the lawyer as someone who bumbled into using the Free Speech Clause to win protection for religious activities. Toobin writes that Sekulow didn't realize that "cases involving religion were always argued under the Free Exercise Clause."

But a mere 3 pages earlier, he was praising Robert Jackson's 1943 opinion in West Virginia Board of Education v. Barnette -- the case that said schools couldn't force Jehovah's Witnesses to recite the Pledge of Allegiance. Toobin doesn't mention that Barnette is a free speech case and that Sekulow competently cited it.

(And what about all the cases based on the Establishment Clause? They involve religion, even if they aren't litigated by Jay Sekulow.)

The pop culture approach Toobin uses demands that the individual, not the case law, governs what happens. It's a little like the "great man" theory of history -- the inferior man theory of the law.

It is fun to read though. Jay Sekulow is "a nice Jewish boy from Brooklyn," who moved to Atlanta and out of laziness attended Atlanta Baptist College. There, accepting a challenge by a "Jesus freak" to take the Book of Isaiah seriously, he saw that the messiah must be Jesus and became one of the "Jew for Jesus." Etc. etc.... and that's why we have the recent cases that say it violates the Free Speech Clause to discriminate against the religious viewpoint.

It makes sense if you get caught up in the seductive pop culture reading that is "The Nine."

And another thing....

Writing about Barnette, Toobin enthuses about Justice Jackson's idealistic prose: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." But he makes Justice Kennedy seem foolish for his love of "drama and what he called 'the poetry of the law'" (page (147), "flowery language about the First Amendment" (page 167), and "Kennedyesque flourish like 'the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life" (page 223). But Toobin's not much different from everyone else there. Jackson had the knack for high-flown phrases, and Kennedy can't quite pull it off.

And I'm not completely opposed to pop culture writing about law. I do it too, and I follow my own standards of fairness. Like I think it's fair to tweak Toobin for making a big deal out of Kennedy's glasses -- how he changed from "seventies-style steel-framed aviators" to "a Euro-chic frameless model." This supposedly symbolized how much Kennedy is soaking up the influence of Europeans and European law as he travels to various conferences. What I find so hilarious is that on the back cover of the book jacket -- where there aren't any words at all, just a big picture of the smiling Jeffrey Toobin -- he's wearing rimless glasses. Meaningful!

(And aren't steel-framed aviator glasses in style right now?)

Writing under a pseudonym.

I've been thinking about pseudonymous writing lately.

There's the AutoAdmit case where two Yale law students are suing various pseudonymous individuals -- presumably law students -- who wrote outrageous things about them on an unmoderated website. The plaintiffs -- who are themselves using pseudonyms to hide their identity -- seek money damages from the pseudonymous writers, but they can also punish them -- even without prevailing on their claims -- simply by unmasking their true identity, which could make it difficult for them to pursue their legal careers.

Many bloggers use pseudonyms. There was that doctor who was defending himself in a malpractice suit and blogging about it on the side, calling himself "Flea." Are you Flea? Dr. Robert P. Lindeman was asked on cross-examination. He had to say yes, and, at that point, he had to settle the case. The jury would have hated him if they'd heard all the cocky things he thought the pseudonym freed him to write.

I've always blogged under my own name, though I sometimes ponder the question whether the "Ann Althouse" of the blog is the Ann Althouse of my real life. (We could digress into the subject of when life on the blog becomes one's real life and life in the physical world becomes the act. There is the mask one wears to live in Madison, Wisconsin and to function in the role of a law professor. The blog persona is different -- and I have even argued that my "front page" blog persona is different from my comments page persona! -- and it may be more genuine.)

I've written about my colleague who writes under a pseudonym:

Oscar wants to be free to use naughty words and otherwise break out of the professorial mode. But my experience is that even though students know who I am and can and do read this blog, they seem to accept this as a separate mode of mine and don't use it as a basis for talking to me in a newly confidential way. In the law school, the student-professor relationship is very well established. It really doesn't break down, even when students read your personal journal.

Or so I like to think! Maybe not. I'm sure some of my commenters -- writing under a pseudonym, of course -- will tell me that students do not keep this separate. How many of my pseudonymous commenters are, in fact, my students? Yesterday, I had a problem with a commenter who came here to speak insultingly to me -- "You look ugly, stop embarrassing us already!" -- and then asserted that he was a student at my law school. That crossed a line:

A law student might find it interesting to participate here and get outside of the conventional environment. But as soon as you identify yourself as a law student, that can't happen. And I'm not willing to assume my lawprof mentor style with someone who wants the freedom to talk to me in a way that he could not do if he were identified. I'm not going to have a conversation like that. If you want to talk to me as a law student or alumnus, do that, and act like one. But don't come here and insult me and leave me feeling like I have to respond in a tolerant, supportive way.

Remember the old problem of authors adopting a pseudonym so they could lard their book's Amazon page with fulsome praise? And, of course, there's the journalist or blogger who adopts a pseudonym to participate in his comments section as if he were a fan of himself.

I used to think it would be an artistic thing to do to be various personas writing within one's own comments section or writing and linking on various other blogs. The model I had in mind was Plato's dialogues. Why not design a set of fictional characters and write in dialogue form? Though I've written about doing that before, I've never done it. Years ago, it seemed purely creative to me. Today, it's so obviously against the culture that has grown up within blogging that it would require a very different sort of decision to go that route. One could do something like that by clearly revealing that the pseudonyms are your fictional characters. That would be like a novelist writing in the first person. No one thinks that is a fraud.

By contrast, there are these writers who purport to be memoirists who make things up. But they don't have a problem with pseudonymity. They have a problem blurring the line between truth and fiction. A fascinating pseudonym problem occurs when a writer uses a false identity to make a work of fiction more interesting and saleable.

There was a trial this week in a civil suit for fraud against Laura Albert, who made up the name "JT LeRoy" to write a novel -- "Sarah" -- about West Virginia lowlifes:

Ms. Albert, 41, was found by the jury in Federal District Court to have strayed beyond the normal limits of pseudonymous invention, in part by signing a movie contract using her nom de plume...

Long before this somewhat narrow legal matter reached the courts, the broader story of JT LeRoy, with its agitprop allure and celebrity aroma, played out on the larger and much more garish canvas of the press. After “Sarah” thrust the writer into stardom in 2000, JT LeRoy became the damaged darling of the art house set, a street waif and supposed son of a truck stop prostitute who, usually by way of telephone or e-mail (he was “famously reclusive”), befriended the likes of Courtney Love and Winona Ryder — at least until his startling existence as a fiction was revealed.

All the while, of course, it was Ms. Albert, a mother and otherwise obscure novelist from Brooklyn Heights, who was spinning gritty fantasies of drug addiction and Appalachian misery for the rich and famous names at the other end of the keyboard or the line. She gave interviews in a twangy accent to Terry Gross on NPR and sometimes paid her former boyfriend’s half-sister to appear in disguise as JT LeRoy in the rarefied air of literary readings or the international film festival at Cannes.

It was deceptions like these that Antidote’s lawyers said constituted her fraud. Yet even though the company’s lawyers assailed her in court as a trickster and wily master of self-promotion, they — and their client, Mr. Levy-Hinte — admitted a grudging admiration for her writing talents, and for her performance.

They also evinced a quiet sympathy for Ms. Albert, for it was soon apparent that the eight-day trial would include testimony about her rather gruesome history — a litany of adolescent trauma that included sexual abuse, institutionalization and 13 years of telephone therapy in which she spoke to her psychiatrist in the adopted persona of a teenage boy. That boy, whom she took to calling Jeremy or Jeremiah, was a sort of early incarnation of the full-blown alter ego that would eventually evolve into JT LeRoy.

Hmmm... the whole trial worked as a publicity stunt. It subtly transformed Albert into a sympathetic victim.

Among the various battles waged at the trial — art versus commerce, truth versus fiction, reality versus the imagination — it was perhaps the battle over JT LeRoy’s purpose in the world that was most in dispute. Before his identity (or, rather, nonidentity) was revealed last year in a series of newspaper articles, the production team at Antidote considered him that rare commodity in today’s biography-obsessed entertainment world: a gifted writer with a titillating past that only enhanced the value of the work. After the revelation, the company took the position that Ms. Albert had used the JT LeRoy “brand” — the same that had attracted them — as a celebrity magnet to draw attention to her books.

Ms. Albert herself, in testimony from the stand, suggested that JT LeRoy was far more than a pseudonym in the classic Mark Twain-Samuel Clemens mold. She offered the idea that JT LeRoy was a sort of “respirator” for her inner life: an imaginary, though necessary, survival apparatus that permitted her to breathe.

So she has to pay back the option money, but the trial works to nullify the problem of the fake identity and to allow Albert to step into the spotlight as a writer who can openly take credit for her book. Presumably, it's a good book. Now, by the ordeal of trial, she has become a saleable character. She can now seek absolution in the Church of Oprah. Tell us all about how you needed JT LeRoy as respirator.

I half-suspect the lawsuit was a collusive enterprise, designed to advance the movie project and accomplish the disclosure of the author's identity with panache. You start off as an author with a boring background, so you make up a fictional identity, and then the process of owning up to your deception makes you interesting in your own right. If you'd just issued a press release, we'd have had contempt for you. But this ordeal of trial makes us care.

Where is the real fraud?