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Tuesday, August 31, 2004

Zero Intelligence Schools Strike Again

It looks like a public school in Texans thought that the best way to deal with a crying 8 year old 3rd grader was to call the police had have the kid arrested and sent to jail.

Here's the story: Third-grader arrested for disorderly conduct 08/29/04

I predict fabulous wealth for the boy and his family. There are very few circumstances that I can imagine that would more clearly exceed the protections of qualified immunity under which police operate (generally, though I haven't looked closely at QI in Texas).

Well, I guess I shouldn't be too hasty. Most states require a "malice" (or "actual malice" which is a distinction I won't go into here) element. In Federal Courts, the statute that would allow sueing state or local officials 42 U.S.C 1983. Basically, it requires that the plaintiff show that the state actor (acting under the color of state law) (1) violated the plaintiff's Constitutional Right(s), (2) that the Constitutional Right was clearly established, and (3) that the contours of the right are sufficiently clear that the officer should have known that his conduct violated that right. I think that's not a big problem. The Constitution doesn't distinguish between the 4th Amendment rights of a child and those of an adult, so the right implicated here would be the right to be free from unreasonable seizure (arrest). Perhaps the child's out of control behavior would have risen to the level of disorderly conduct had it been undertaken by an adult, but this was a child at a school. A kid being fussy in a school won't rise to that level easily. However, that's not the part that will do the cops in... Apparently it's illegal to place a child in an adult facility, which is what they did.

State's usually have a different standard to overcome Qualified Immunity. Most states require that (1) the actor be a "public official," (2) the action be discretionary (not ministerial, that is, a legally required part of the official's job) and (3) the act be performed with "malice". I presume Texas is similar. (Note: Some states, especially in the South, are VERY strict in their interpretation of this test making it nearly impossible to overcome qualified immunity with much less than an outright admission of intent the official's malice.)

Here, we've got public school administrators and police, both of which are acting in their official capacities, so they're "public officials." Without putting too fine a point on it, no law required the school administrators to call the police just because a 3rd grader was crying and didn't want to go back to class (note: There's some ambiguity over whether the mother was involved in that decision, but it's still discretionary). "Malice" usually doen't have to mean an actual intent to cause harm ("actual malice" does), all it means is any improper motive other than to effect "justice." Whether Texas requires malice or actual malice, the threats to send the kid to jail if he didn't stop crying easily allow the inferrence of malice, and the allegation by the kid that the police threatened to let the adult inmates "get him" if he didn't stop crying allows little inference but that they were terrorising the child which would clearly be "actual malice."

I can't say for sure that the family will sue, or that if they do that they'll win. There may be evidence that the mother approved of the course of action. Nevertheless, I don't think a mother can consent to that kind of mental and emotional abuse by police. The mother certainly cannot consent to have the police violate the law which prohibits placing a child in an adult facility. All that aside, I suspect that the family will have a new car and be able to afford private school by this time next year.

Friday, August 27, 2004

On the nature of "Law"

What is Law?

Is it like obscenity, in that we know it when we see it?

I'm a law student, so, you would think this is something that I should have learned on the first day of classes, right? Nope. We learned what several "sources of law" are (judicial pronouncements, legislative acts, executive regulatory orders, and Constitutions). Curriously, "What IS law?" never came up. (Not to be too Clinton-esque...)

Well, this semester, two of the (4) classes I'm taking that more-or-less confront that question directly.
(As if you were interested, I'm also taking Litigation Process and Federal Income Tax.)

International Law, even more than Legislation requires the student to confront the most basic question in law, i.e. "What is law?" Luckily, we have an excellent professor, Professor Mortimer "Tim" Sellers. I, personally, began the class this week with the nagging thought at the back of my mind that there wasn't really anything that can be called "international law." I'm taking the course, though, because I know that enough people think that it does exist, that I should know what fantasy they are living in. It's a nice masquarade ball that pretends it's reality.

I still basically think that, but I've got a better understanding of why I think that.

Professor Sellers, after a bit of quasi-Socratic questioning of the students gave us his own theory of what "Law" is. He said that law is (and I'm showing it as a quote, but really it's a paraphrase as close to accurate as I can remember, so Professor Sellers, if I'm wrong and you read this, please forgive me), "A system of rules which claim to be moral and enforceable."

It's a little touchy-feely for me.

That was in the context of describing how International Law is presented. International Law has to have
  1. Authority (The power to demand that it is obeyed.)
  2. Validity (Actually implemented properly.)
  3. Legitimacy (Of a sort which ought to be obeyed.)

After that was presented to us, Professor Sellers pointed out that the same questions are asked in all law, even domestic law. In Domestic Law, however, "Legitimacy" is rarely questioned, and when it is, there is a presumption of legitimacy which must be overcome by the one opposing the law. International law has no such presumption.

I pointed out that if there was no presumption of legitimacy, doesn't that prove that there is no existing "international law" but really just several principles which people (states) agree to.

Professor Sellers said, basically, that's the basis of one of the major bodies of thought on international law, and it's often called "positivism." The other body of thought draws on the idea of "Natural Law."

Without going too much farther into what went on in the first week of class, I'll say that all of this got me thinking. Is there international law? How can we recognize it? What is law?

I've come up with what, I think is a more basic definition of law than Professor Sellers'. Professor Sellers' definition would fit completely within my definition. Here it is -

Law is the product of the combination of will and force.

I got to that formulation by deciding to define law by what it does, and not what it "should" do. What does law do? Jurisprudential "Law" is that which bounds the actions and decisions of humans.

"Law" exists, then, as soon as two or more people interact. In a simple tribe, the law is whatever the strongest member says it is because he is the one who can cause his will to be obeyed. It could be that a physically weaker member could dictate the law if the will he espouses is voluntarily agreed-to by other members who are willing to combine their strength to enforce that will.

In complex and far-reaching societies, law must become systematic. It's systematized so that the leader(s) can continue to achieve what they will and so that those who are affected by that will will not become subject to unanticipated application of the leader(s) force. At some point, a society becomes so large that good ideas are not enough to achieve sufficient buy-in by those with the force who can help assure that the law-defining will is enforced and therefore actually becomes law. In virtually every society, that 'lil somthin' extra equates to "divine right."

What's a better reason to do what you're told than "Because God wants you to do it, that's why!"? In a monarchy divine right was easy to see. He's the king because God wants him to be king, and he's responsible to God, therefore rebellion against him is rebellion against God.

In America and other "democratic" societies (in the sense that there is some significant degree of choice in leadership by the people who are under the leader(s)), there is an underlying belief that individuals are sovereign and individually have innate worth (this derives from the idea that humans were created by God and therefore have some innate value, and since all humans are equally human, all humans have equal innate value). Therefore an orderly selection of leadership by the people ruled has innate legitimacy. The will expressed by that leadership, therefore, is a distillation of the will of the people, presumably. The force of the marshalled society, therefore is immense, but usually not necessary for enforcement.

The implication of my definition of law in the international sense is there is no super-structure established that really independently has force sufficient to impose its will over all nations, international law is a vague fantasy, at best.

The UN doesn't define law, really, since it does not independantly wield the resources and force to impose its will on the world. It only defined law to the extent that the nations which can lend force agree to actually lend the necessary force to impose the "will" of the UN. Th UN is useful because it does provide a forum for less powerful nations to attempt to persuade enough other nations to agree with their stances that they can discourage any nations or groups of nations contemplating a contrary will against them.

Some nations, however, don't need that. Specifically, the US is strong enough to actually do almost anything it wants to do (so long as it's will isn't too ambitious). By my definition that would make US foreign policy de facto international law.

Now, before you liberal anarchists (I'm sure at least one will see this) get all exorcised about what I'm saying, I'm not advocating for some sort of imperialistic expansionism. I'm describing a theory, and testing it.

I know I've reambled for a while on this and your eyes are probably glazing over, so I'll only add one more thought which will tie this positivistic theory of law to the Natural Law theories. My theory describes what law is, and that's all. It doesn't say what law should be, but it hints at it. Law may be the product of the combination of will and force, but that doesn't make it Just. Justice (Just Law) is the product of moral or righteous will combined with the wise application of force.

The study of Natural Law is the search for a systematic description of Just Law. Positivism, however, is just a description of law.

Thursday, August 26, 2004

Arnold was right

Do you remember about a month ago when California Governor Arnold Schwarzenegger called the obstructionists who he claimed were basically cowards for their unwillingness to tell the electorate who they were really serving (i.e. the Democrats in the California legislature) "Girlie Men"?

He was right... And yet he wasn't as accurate as he could have been. He shouldn't have limited it to the California legislature. From the looks of it, the national Democratic party itself epitomizes everything that "girlie man" politics could be.

I'm not alone in my appraisal, and I can't even claim to be the first to put this idea forward. Ann Coulter, the sultry feminine embodiment of heart of passionate advocacy for conservative thought and policies, has touched on this topic more than once.

My comment about the national democrats being girlie men, or at least acting as one would expect of a girlie-man political party to act. (For the record, this "girlie man" discussion has not a darned thing to do with fudge or McGreevey beyond the fact that McGreevey is a Democrat.)

If you're female and suffer from delusions of self-innocence and purity, you might not understand the next part, but nevertheless, I shall proceed.

Guys, have you ever engaged in a heated argument with a woman? You lost, didn't you. Women, you know exactly how you won, and you also know that your little trick was not unintentional. Girls cry when they know they're wrong, and they want to get their way in spite of the fact that their ideas or arguments should be totally abandoned.

Call me sexist if you want. I've witnessed it. I've been the target of it, and almost every guy reading this has too.

Girls cry when they're wrong so that the decision won't be decided on the merits. They get their way by crying until the man gives-in to be nice.

This is how the Democrats are running their national campaign for the Presidency. The Democrats have been running the most despicable adds against President Bush. They don't have much or anything in the way of facts to back-up their slanderous activities, but they do have a sham veil of separation between those actually running the adds and the party. The former campaign manager for Senator Waffles is now the head of MoveOn.org (that's right, I ain't gonna link to it). Kerry isn't calling MoveOn a "front-group" for the Democrats, but they are far more clearly than the Swift Boat Vets are for the Republicans.

Consider how Waffles has been running his campaign. He says that he's a "war hero!" OK. If that qualifies him to be president (and he's saying that it does) then a reasonable investigation of it is warranted. He's not entitled to a new constitution whereby he has the right to be free from criticism simply because he can show he fought for the Country. That he served the country probably entitles him to our thanks, for that, but it doesn't confer on him some level of sanctification and infallibility. The Swift Boat Veterans for Truth have come out and called Kerry's record into doubt.

Of course, the major media outlets promptly jumped on the Swift Boat Vets and have attempted to discredit them. Oddly, one common refrain is that John Kerry is a veteran and therefore we shouldn't call him a liar. As illogical as that is, it's inconsistent. The Swift Boat Vets are ALSO veterans (of the same war and the same sort of service, and for many of them, the same time and place of service as John Kerry). If being a veteran meant that nobody could call you a liar, then defending John Kerry is the same as calling the Swift Boat Vets liars. The Kerry campaign has been attempting to intimidate TV stations that play the Swift Boat ads and Regnery, the publisher of the Swift Boat Vet's runaway best-seller, "Unfit for Command."

That, my dear readers, is what "crying" in the world of politics looks like. It's not arguing the point. It's not even filing suit because you have an actionable case of slander or libel. No, it's crying. Boo Hoo. The Swift Boat Vets are blowing Kerry out of the water with the fact that, for the most part, their story hangs together. Do they have some inconsistencies or reasons to question them? Sure. Nevertheless, they aren't changing their stories, and they have overwhelming evidence that backs-up their main points. Kerry, on the other hand, has had to (effectively) admit to lying, repeatedly.

Although, he has had to disavow his previous statements (that's the same as admitting what you said before was wrong, and in this case, they weren't innocent mistakes, they were lies), Kerry is spending all of his efforts to get the Swift Boat Vets silenced.

Well... Maybe we should be more sensitive... It could be that Waffles is just having an exceptionally rough patch of hot-flashes lately. "He" is about that age.
I have spoken often in this campaign about national security about rebuilding and leading strong alliances to find and get the terrorists before they get us. I defended this country as a young man and I will defend it as President. But I also know that we can't be strong abroad unless we're strong at
home. ("The Fundamental Choice" John Kerry press release,
August 24, 2004
That's great except his spokesman says, when asked if Kerry still stands by what he said in protest of the Vietnam War:
"Absolutely," Hurley said. "He's a leader. He came back, and he spoke the truth."
If Mr. Hurley is speaking the truth, doesn't that mean that Kerry thinks it was morally correct to protest the defense of America? Does that mean that he finds it better to work against America's defense than for it? Hmmm... Based on Kerry's defense voting record, that seems plausible.

Do you ride a motorcycle or moped?

A though occurred to me this morning in my commute to work that, I think, would be a true revelation to many motorcycle (and moped) riders...

Here it is.

Are you sitting down?


The traffic laws apply to YOU, too!

I know, I know. It's a new concept, but trust me, if your using a motorized vehicle for transit on public roadways, the traffic laws do actually apply to you. Heck, don't trust me. Look up the laws for yourself.

Basically, in practice this will mean things like:

Now, here's a special word for you moped/scooter drivers: Stay the hell out of the way of traffic! Today, for example, a putz on a moped/scooter-thing rode past a row of cars in between the travel lanes to butt in front of me while we were stopped (and I was the lead car) at a red light. That was rude enough. THEN, however, when the light turned green, Mr. Micro-Putz revved up his mouse-powered moped and seemed to top out at about 25 MPH (in a 35 MPH zone) on a MAJOR commuter secondary road into DC. This, needless to say, did not engender visions of world peace and global community in me or the people who were stuck behind me.

I keep seeing the bumper-stickers admonishing car and truck drivers to "Share the road." Fine, I'll share it, but you motorcycle and moped drivers should stop stealing it. It's unwise (I guarantee that although I drive a small car, I will fare better in a Newtonian conflict betwixt our modes of transit regardless of "fault"), and it's unlawful.

They say "Curriosity killed the cat" but the currious cat killed the climber

This is one of the saddest bits of irony I've seen in a long time. Daryl Hatten, a renowned rock climber, died when he fell from a tree while attempting to get a cat out of a tree.

What else can you say. It's sad but just too weird.

Wednesday, August 25, 2004

(Campaign) Money Bloggin'

We hear about campaign finance reform and the like all the time, but most of us don't really know about how strange the dollar distribution for campaigns really is. Here's a little something of interest I found... It's the Campaign Finance information for Barbara Mikulski's (D-MD) 2004 Senatorial Re-Election campaign. Look at the top donors.

Did you notice what I noticed?

As of Today, August 25, of the top 100 individual donors to Ms. Mikulski's campaign for re-election to the Senate from Maryland, the Maryland donors don't show up until you scroll down to the 26th place. Of the top 100 individual donors to her campaign, 58 of them (assuming I counted correctly) are from outside of Maryland, and none of the donors of of more than $2000 are from Maryland.

Why do you suppose that is?

For grins and giggles, I decided to also look at the Campaign Finance data for E.J. Pipkin, Mikulski's Republican opponent. NONE of the contributions weree for more than $2000, and of the top 100 donors, only 30 were from out-of-state.

Draw your own conclusion about whether Mikulski is actually representing Maryland.

I've railed against the Incumbent Protection Act (a.k.a. "McCain-Feingold Campaign Reform Act," a.k.a. "Bi-partisan Campaign-finance Reform Act" (BCRA)") before. I still think it's horrible and a violaiton of what the 1st Amendment is supposed to protect. Nevertheless, I am not opposed to limiting outside contributions. If the money doesn't originate with people in the jurisdiction, then it should be subject to limits. I know that outside interests can be affected and they should therefore be able to voice an opinion. However, I believe that the electorate should be responsible for the candidates, and the candidates should be accountable to the electorate.

Is that such a silly idea?

Hot (sauce) Topic in Child Discipline

ABCNews has ABCNEWSthis article about using hot-sauce for disciplining children. (Hat-tip to Drudge for the link.)

As to be expected, there is significant opposition to dabbing hot-sauce on a young child's tongue when the child does something worthy of punishment (lying, usually) with his or her mouth. Some objectors pretty much object to using any form of punishment on children that actually has any chance of altering that child's behavior.

I think that I oppose this particular form of punishment too, but for a vastly different reason. Let me differentiate my opposition to everybody else who opposes it. They, by-in-large, don't like the punishment because, like spanking, it causes pain. Presumably, to them, directly causing pain is morally wrong, and therefore all forms of corporal punishment are wrong.

That moralistic sophistry stands in direct opposition to both science and thousands of years of human development. I am a strong proponent of corporal punishment for children from the time they can start to consciously choose to obey or not till the time when psychological incentives outweigh minor physical pain (probably 12 to 14 years for most children). Those who oppose all forms of corporal punishment are under some religiously-induced delusion that children, all of them, can be reasoned-with. An understanding of how neural systems work would tend to obliterate any supposed scientific rationalization that corporal punishment for children is necessarily wrong.

Neural networks (of which our brains are a highly complex example) can continue to train themselves throughout their use, if designed properly. However, to be trained so that the proper neural processes (decisions) are utilized, there must be negative feedback. Positive feedback works too, but negative feedback cannot be neglected. For a negative feedback to work, the "penalty function" that feedback represents must be relevant to the decision process utilized. Young children simply do not have the rationality to appropriately appreciate a reasoned discussion of why one thing is right and the other is wrong. For example, a two-year old does not comprehend the danger that a moving car represents. If that child starts to run out into the street or wander off in a parking lot, the parent who wants to save that child's life will administer a quick swat on the tushy to provide immediate tactile feedback in association with the verbal admonition not to run off like that. The child will associate the physical feedback with the immediately preceeding behavior and will become trained (sometimes slowly) not to do that behavior.

True some children have other feedback mechanisms that might be optimized for them, but for the vast majority of children, corporal punishment is very nearly the perfect negative feedback mechanism.

Hot-Saucing is just another form of negative feedback. It's best associated with higher-level bad acts, such as lying, and is probably most effective for children between the ages of 4 and 8 years old. When you think about it, it's not all that different from the old-time "washing your mouth out with soap" that was highly common in my parents' generation.

Now, although, I think that "hot-saucing" is probably an effective negative feedback, I don't like it. Certainly, I think it should be up to the parent to use or not, but the reason I don't like it is that I love spicy food. I would hate to have a child associate spicy food with badness. I think that any punishment like this should focus on making a child eat a very unpleasant-tasting non-toxic substance, like soap. Washing a child's mouth out with soap will send a clear signal of displeasure associated with the bad act, but it won't associate punishement with a family of foods.

Anyway, I expect that I will have engendered the (self-) righteous indignation of parents who don't have the back-bone to effectively discipline their children so that their children will learn to behave properly. (This also goes for people without children who think they know everything about parenting, but haven't thougt-through the implications of their ideals.) I think that for parents who oppose corporal punishment, the main problem is that they hate feeling bad about having to correct their kid more than they want their child to avoid future pain. It's a form of selfishness, really.

Tuesday, August 24, 2004

"...a botched holdup in a Natchitoches Wal-Mart restroom..."

TheNewOrleansChannel.com has this article:N.O. Man Says He Was Shot At In Wal-Mart Bathroom.

The title is from the first sentence in the article. I just never expected to see those words together. I don't know that I've ever been in a Wal-Mart restroom, but I never suspected there was all that much there I would want to steel. I guess it's true that one-man's crap is another man's treasure.

What, do you suppose, would qualify as "botched" for a holdup in a bathroom?

At what point do you think the robber realized their plans were going down the toilet?

And, I certainly would not want to offend the defenders of the alleged criminal, but does this make the would-be thief a "Fudge Snatcher" or a "Butt Pirate"?

I really need to stop now... -ed.

Marital Rape...

I saw this story: Islamic leaders reject marital rape law proposal about legal domestic/criminal law developments in Malasia, and I thought it warranted a post.

To be honest, I'm not sure exactly what line I want to draw here. I know that in Islam, it is emphatically the husband's right to demand sex from his wife. I know also that inability to perform, sexually, is a valid basis for a woman to demand a divorce under Islamic law. Nevertheless, the husband has most of the rights in Islam. He can ask for a divorce for no reason, although such cavalier use of divorce is officially frowned upon. (See this article... It's got lots of incorrect information about Western law and culture, as it's basically a propaganda piece about how much better and more just marriage in Islam is than in Western societies, but I presume the description of Islamic law and requirements is accurate.)

Anyway, marital rape is an interesting problem, legally. Without going into a great history of the development of sexual assault laws, marital rape was not recognized in Western law until recently. Basically, that's because marital sex was considered a duty (see 1 Cor, 7:3-5) and spouses were considered to belong to each other, sexually. Therefore, in Christianity, there was no such thing as non-consensual marital sex, and therefore there could never be marital rape. Notice, please, that no differentiation is made between a husband or wife's obligation to each other, so it was a sin for a wife to deny sex to her husband, and it was a sin for a husband to refuse sex to his wife.

Marriage implied, and virtually defined, consent. In the past, that presumption was, basically, unrebuttable.

Physical abuse is a different matter. In Christianity, abuse is prohibited. I wish I could find a crystal clear verse that says without any interpretation that husbands should never beat their wives. Colossians 3:19 is about as close as you will find. Ephesians 5:24-30 gives the basis for understanding why, scripturally, physical abuse is anethema. A husband is to love and care for his wife as Jesus loves and cares for the Church. Correction is sometimes necessary, but only with love and compassion.

So, marital rape, from a Christian (scriptural) perspective is a matter of abuse and not about sex. I should revise that a little, because in physically abusing ones wife in conjunction with the sex act, the husband defiles the institution of marriage because the focus of marriage is the spiritual unity of the man and wife epitomized in sex. Abuse that uses sex does not create a unity between a man and wife, but creates a dominance of one by the other that is entirely unlike the unity that God intended.

I don't want to go on much longer about this. I would be interested in reading what you think about it. My personal sense is that marital rape could be a real problem if prosecution for it becomes wide-spread. Specifically, I'm speaking of "advances" in rape laws that, basically, allow a woman to change her mind in the middle (maybe after) sex and transform the consentual act that was begun into a rape.

I think that the presumption of consent in marriage is much lower than it has been in the past. Maybe that's a good thing from a civil law perspective. It seems wrong to me that a marriage would not strongly imply consent to sexual relations to ones own spouse, but I can't expect people who do not adhere to Christianity to accept the Christian ideal of the spouses having a virtually absolute claim to each other's body and that sex is a duty that can be requested by either party.

In my world, I think that "marital rape" would not be a type of sexual assault in the criminal code. It would be a serious type of "normal" assault. A criminal record (and whatever penalty is associated with that conviction) for a spouse (husband) who commits marital rape is, I think, sufficient, if there are no other violent sexual offenses in that person's record. Without other sexual offenses that person should not be considered a "sex offender" for the purposes of the various databases that are now employed all over the nation (search).

Friday, August 20, 2004

Yale Professor Scolded for teaching facts... by NYT reporter

Professor Volokh has this interesting post about a New York Times reporter who was saddened by the fact that a Yale economics professor taught his students facts and theories objectively. (Here's the article.)The reporter wanted the professor to slant the results of his research to yield a Democrat-friendly result.

Can you believe it... An NYT reporter, of all people, who wanted to see manipulated research to support Kerry... This reporter gave away the truth they won't say explicitly: The major media use polls in the hopes of MAKING news rather than reporting it! In a post-modernist world view, there is nothing wrong with manipulating research while pretending it's objective to influence the results in order to obtain the desired outcome. To the post-modernist, the only bad thing is not getting the right outcome.

For what it's worth, the economics professor, Ray C. Fair, a Kerry supporter, is the exception to the rule. He places accuracy over results and therefore is likely to be among the few liberals (assuming that he is one) who can be engaged in a substantive debate. As my Mom would say, "Well, wonders never cease!"

Thursday, August 19, 2004

Just a little more "marriage" bloggin'

I saw this article:
Could Marriage Cost Klum Her Contract? and was intrigued.

No, not because Heidi Klum is so hot (I admit it, she is.), but because the title mixed two words... "Marriage" and "Contract."

I'm not exactly sure if American law has jurisdiction over the enforcement of this contract, but if it does, I think Heidi has a very strong argument that Victoria's Secret won't be able to enforce the contract's terms based on whether or not she gets married.

As a general rule, a contract can inclued any terms that are not unlawful. "Unlawful" in this sense means more than just "illegal," it also includes legal things that are against public policy. For example, while adoption is legal, an American court would not enforce a contract for the sale of a baby. That's basically why surrogacay is a legally risky method of obtaining a child, because if the woman who gives birth decides she wants the child, even if she is not at all genetically related to it, she will probably be able to keep primary custody. Of course, I haven't taken Family Law yet, so I should probably stop blathering about that...

Anyway, my first thought when I saw this article was that a contract that has a term that is construed to keep a person from getting married is probably unlawful. It would be considered unlawful to have a commercial contract that required a person to get married, and therefore it is probably just as unlawful to have a commercial contract that keeps a person from getting married.

I was pleased to see that the lawyer who was interviewed for the article had a very similar public-policy argument. Her argument was that contracts cannot go against public policy ("unlawful" but not "illegal") and society favors marriage. Therefore a contract that keeps a person from getting married when he/she wants to get married would be against public policy. That's probably an easier argument to make. Marci Koch (the attorney) also made the comment that,
The truth is she might lose, because the court might say ‘Look, Victoria’s Secret has a right to demand whatever they want from the people who are their models.’

Perhaps Marci was just admitting that judges sometimes don't go the direction the law seems to indicate... they're human (sort of) too. I would like to think (I know I'm being overly idealistic, but I'll hold on to this fantasy for a little while longer), however, that any judge in America would (even if he or she were inclined to let a company make such a contract with its employees) say that the contract term is too ambiguous, and the models were not sufficiently warned of what they were selling in return for the contractual remuneration. The ability to enter a marriage (man + woman type) has been determined to be a fundamental liberty, and so to contract it away, the language verbiage should be fairly explicit.

Also, since, I presume, Victoria's Secret demanded on the "image" clause in the contract, and they probably were the primary drafters of that term, it would (should) be construed against them.

Monday, August 16, 2004

Target Audience

For noticing that Jim McGreevey was being a particularly calculating politician and using his sexual propensities as a cover as a corruption scandal threatens to engulf him, I've been called a number of things.

The Elephant (RINO?) has accused me of not being much of a Republican, Christian, or Human, for that matter, because I dared refer to McGreevey's self-outing as the "Confessions of an East-Coast Fudge Packer." Here's a tid-bit of what he said:
Your use of the term 'fudge packer' seems to have alienated quite a few people,
and your argument was probably lost on them as well.

Lets go through this piece-by-piece:
  1. As proud as I am of this blog, I don't have a readership of many thousands. Aside from the Elephant, the only people who seemed to be upset were raving libs who would have been alienated by the title of the Blog alone. They linked to this site after doing a technorati search on the McGreevey pitty-party and then declared my comments about the relationship of McGreevey's situatuion to the same-sex marriage to be "stupid."
  2. My argument wasn't lost on those libs because they are impervious to logic! I know, I know, that's not exactly true, but libs suffer from terminal post-modernism and therefore perceive any disagreement as a personal attack and invariably refuse to consider any actual argument. To a liberal, there is no possible "good argument" in favor of a position they oppose, because all such arguments are seen as personal attacks.

I'm not sure, exactly, what Elephant means by stating that his gay relative is "far more of a republican, more of a Christain and more of a Human than I think you can hope to be."

Perhaps he's projecting... That must be it. What is a Republican if not someone who agrees with a substantial majority of the party's platform (I'm on-board with, pretty-much everything, although I would like these issues written with a greater emphasis on individual responsibility.)and is committed to helping the party succeed and become a more intellectually substantial organization? I've read on the Elephant's blog many, many (many) whinny posts about Republicans who either stick to their principles, and thereby upset the social sensibilities of the Elephant, or don't do enough which is consistent with their principles and, therefore deserve criticism.

I'm certain I'll step on a few toes with this, but what the H### is the Elephant speaking of in ranking my level of Christianity? To start-with, a practicing homosexual CAN be a Christian, just like a straight adulterer CAN be a Christian. However, being a Christian is more than just believing in Jesus Christ, and that He came, lived a sinless life, and died for all people's sins who would believe in Him, and then rose again."Living in Sin," for a Christian, is a state of heart that is unrepentant of a known sin (or sins). Everybody sins, according to the Bible, even Christians, but it's the state of not repenting for the sin and abandoning it that is the "Living in Sin" condition. When a someone who has received knowledge of salvation through Christ and made a profession of it consciously chooses to continue in sin instead of to repent and abandon it, that "Christian" chooses to seperate himself/herself from the grace that is supposed to accompany his life and walk in Christ. (I might be too generous with my interpretation, see 1 John 3:1-10)

There are lots of ways in which I fall short, and I don't have the time to list them all. However, I would like to abandon each sin or shortcomming of which I am aware, and deeply regret when I don't. That's repentence. Grace covers me in spite of my falls. I don't think I'm "Living in Sin," even though I may not be doing a great job of becoming like Christ day-by-day. For a practicing homosexual (or adulterer, or bank-robber, or any number of other sins which could become adictive), the situation is different. Being tempted to sin is not a sin, but giving in to that temptation is a sin. What's worse is when you know you're sinning, but decide to rationalize and justify your actions so that you can call your sin a form of goodness. Many Christians, especially recently, have abandoned the clear indications in the Bible that homosexuality is a sin and declared that any committed relationship is OK, because "love" is all important. That denial of the clear instruction of the Bible via rationalizations is the essense of living in sin.

Perhaps the Elephant's relative really does love God, and perhaps he is struggling to abandon his homosexuality. If that's the case, it's easily possible that he could be a more faithful Christian than me. However, if he is committed to continuing in his homosexuality, then he has removed himself from God's grace.

Finally, about being less of a "Human" than the Elephant's relative... I don't know how to respond to that. I suppose if you do a genetic analysis of the two of us, the Elephant's relative might have fewer genetic weaknesses. I've had cancer a couple of times, so I can't argue that I'm the best specimine of the species, homo-sapien. Nevertheless, I think what he meant was that I am not as "nice" or "politically correct" or "liberal" as his relative. OK. I can live with that. I don't think that ignoring continued wrongdoing demonstrates a beneficial social skill. A parent who doesn't teach his or her child boundaries sets that child up for major, and very painful confrontations in the future. Parents who love their kids don't like to discipline their kids (and that empathy helps them avoid punishing out of anger) but do use discipline to correct and teach correct behavior. Parent's who are selfish avoid correcting their kids (except out of anger) because it's uncomfortable to correct from a heart of love, and ignore the future pain and trouble an untrained child will face. The same is true with adults. Truth can be spoken in love or anger. To be honest, I was disgusted with Jim McGreevey (still am) when I wrote my first post about him, but it's not because I want ill to come to him. I have compassion for the people of New Jersey who are being manipulated by his political calculations.

I'm angry, just as I would be if a straight politician were doing the same thing and using the "I can't help but follow my heart," line to hide from substantial charges of official wrong-doing. It's a ploy. It's a rouse. It's deception. Politicians are different than the average-joe. Politicians make their character an issue by seeking office, and once elected, serve in a capacity of trust to the public. Political manuvering, such as McGreevey's, is calculated to cheat the public and manipulate the position of trust for ends unrelated to the electorate's best interests.

So... The Elephant is no longer a reader... Somehow, I'll survive. He said he's praying that God will show me "the way to greater compassion," but I doubt it... That's something that Christians say to try to pull the spiritual heartstrings of other Christians when they don't have a solid scriptural argument as to why the behavior they oppose is improper. Rarely do they actually pray more than once. Perhaps he should seek for guidance of what "compassion," let alone "greater compassion," is. Compassion isn't always warm and fuzzy... That's coddling. Compassion has to do with caring about the other, and that, sometimes means tender care, and sometimes means drawing a hard line to help correct improper behavior. I don't know that I'm in the right with how I present my arguments, but I know for sure that the essence of my argument is correct. That, I suspect, is what offends the Elephant the most. It's far easier to be offended by uncomfortable truths and claim that the one who presented an uncomfortable truth was being mean and use that to justify ignoring the truth than to look inside and see why it's so uncomfortable. (I wrote about that here.)

Friday, August 13, 2004

Today's Lesson in Political Correctness

Class, today I learned that the phrase "Fudge Packer" when applied to a gay man who is using the relevation of his sexuality to distract from public attention his potential corruption problems and thwart the ability of the electorate to choose it's own elected officials is a bad thing to do.


Believe it or not, I'm not always politically correct. Jim McGreevey thought that fudge packing was more important than his marital vows. For that, he doesn't deserve the title of "hero," he should be called a creep. Worse yet, Jim McGreevey determined that outing himself as gay, thereby humiliating his wife as she stood silently by his side, with the fake excuse that he was attempting to head-off the rumors that were bound to pop up, just to cover-up or distract us from evidence of more-or-less old-fashioned corruption while also preventing the public from having a choice in its leader deserves the title of "scum".

I'm not going to be kow-towed into mincing my words to placate the sensibilities of people who care not one whit about right or wrong. If you're uncomfortable with my wording, you can complain (won't do you any good) or you can chose to not read my blog, or you can examine yourself and determine if what you're attempting to do is silence a perspective through Orwellian "right-speak" restrictions.

Perhaps my phrasology reflects poorly on my promise as a budding attorney. Maybe so. It might be that I'll never be able to fully forget the difference between right and wrong, and perhaps that will limit my potential as a lawyer. I can live with being a lawyer limited by the remnants of humanity and an unshaken sense of morality. If that offends you, are you proud of your inability or unwillingness to distinguish between right and wrong?

I don't call every gay man a "Fudge Packer" precisely because it is a term that shames the chosen activity and implies the a low opinion of the character of the person who engages in it. I happen to have friends who are gay. They are, otherwise, fine people. McGreevey is a creep and a scumbag who is attempting to leverage his sexuality into an excuse for corruption and a cover so that he can eventually return to elected office. He has more than earned the title of Fudge Packer, but I try to keep this blog at or above PG so that ideas can be expressed clearly unencumbered by either overly vague references or unnecessarily course verbage, but hey, I'm the guy running the blog, and I make the decision of what gets posted.

NJ Governor makes strongest case yet against gay-marriage

I expect that I'll post shortly about the legal implications of New Jersey Gay-vernor McGreevey's eventual resignation. For now, the thought that I find particularly interesting is the gay-marriage implication of what we've seen. My Way News has this article about the McGreevey's "Confessions of an East Coast Fudge Packer."

Very briefly: Marriage is NOT a right. Period. However, even if it were, the current prohibition against same-sex marriages (everywhere except Massachusetts) is NOT a 14th Amendment issue.


Easy! Nobody is telling gay people that they can't get married and be parents. Gov. McGreevey is PROOF. He's been married twice and has fathered two children. Gay people CAN get married, but they must marry someone of the opposite sex.

Do you suppose the main-stream media will approach the story from this tack? I won't hold my breath. To his credit, Mr. McGreevey, apparently did not support gay marriage. Presumably, he realizes the political hypocrisy he would be engaged in if he were to claim the injustice that gays can't get married, when he's living proof that they can. I suspect, however, that the real reason is that he was attempting to deflect attention from his personal life.

Thursday, August 12, 2004

Cal. Sup. Ct. voids San Fran. Same-Sex Marriages

Here's a link to the much anticipated opinion in the case, Lockyer v. San Francisco. (NOTE: PDF file & the case will only be available here for 120 days...)

So far as I know, the other big blogs have not yet posted a link to it, so I feel very special.

In a nut-shell, the California Supreme Court decided a VERY VERY narrow legal issue and carefully avoided touching the substantive issue of whether same-sex marriage are constitutional. What the Court decided was that Mayor Gavin Newsom did NOT have the authority to disregard the California statute that forbid him from authorizing same-sex marriages. Since, therefore, the marriages were not properly authorized, the affected marriages are "void and of no legal effect" (p. 5 of the opinion).

The opinionn is 114 pages long, so enjoy yourself if you actually read the whole thing. I suspect that you don't need to since the court only re-itterated the well established principle that the executive branche does NOT have the ability to disregard a legislative mandated course of action without a judicial determination that the legislative mandate is unconstitutional.

Lets hope that the courts that look at the substantive issue can keep a clear head about themselves and remember that "marriage" is not a right, and that the state has a rational, important, and perhaps compelling interest in encouraging stable (long-term) male-female couplings (i.e. traditional families) over same-sex couplings, even if there is no Constitutional interest served by discouraging those same-sex unions. (See Lawrence v. Texas - private consensual nookie of any sort between consenting adults is beyond the reach of any government within the US.)

Slam-Am and Go FARR!

It appears that Amtrak has suspended a conductor because he told the truth.

It's a little more complicated than simply stating the time of day... Apparently, Mr. Farr, the conductor, informed the passengers of his train that they were being delayed (84 min.) because of the "Senator Waffles' special train trip to disrupt people and productivity across America" tour (my title -ed.), and that, perhaps, they should consider that when they vote.


I suppose Amtrak might have a leg to stand upon if it studiously avoided any political involvement, but it doesn't. As Mr. Farr pointed out, Amtrak allowed Waffles/Ambulance-Chaser campaign banners to be draped across it's property, not to mention, the Waffles campaign got to have a special train and was allowed to disrupt normal service. It looks to me like Amtrak is already politically involved, and because it is a government-run organization, the suspension of Mr. Farr could be easily seen to be intentional punishment and suppression of political speech in violation of the 1st Amendment.

What's more, Amtrak said they were suspending Mr. Farr because his comments "caused embarrassment to the corporation and the loss of good will of our passengers." This, I think, demonstrates a couple of things:
1. The Amtrak management knows its in bed with the Democrats and hates to have that pointed out to its customers, and
2. The Amtrak management has no concept of the general perception of Amtrak among the vast majority of Americans --- They have NO good will to lose anymore, and if the passengers had the money for any other option, most of them would have taken the alternative!

Oh... By the way, Mr. Farr has apparently found another way to annoy the Amtrak management, and is probably the real reason he was suspended. Mr. Farr is the Republican candidate/challenger going after the 1st Congressional district seat in Missouri.

Friends, let's do it! Click here to let Amtrak know you don't appreciate their blatant attempt to punish Mr. Farr for his political expression which is no more offensive than Amtrak’s support and accommodations already made to the opposing political party. This is what I wrote:
Please convey this complaint to the highest levels of Amtrak Management -

To whom this may concern,
I am livid at hearing that Amtrak has engaged in blatant punishment and censorship of political speech while engaging in similar speech as a corporation. Amtrak allowed Senator Kerry's campaign to utilize a special train and disrupt normal service and cover Amtrak property with its campaign banners, and all of this is political speech, and now has suspended Mr. Farr for pointing out this to his passengers when they were delayed by Mr. Kerry's special train. The fact that Mr. Farr is a GOP candidate for office makes his suspension by you appear, even more clearly, to be the suppression of political speech that Amtrak management does not prefer. Since Amtrak engages in political speech AND is a government-related entity, it is improper to now punish Mr. Farr for engaging in political speech, especially since it's true.

Try reading the Constitution... The 1st Amendment is particularly relevant to your actions, since your a governmental body.

NOW, contact Mr. Farr: Click here to email him. If you want to send a check directly to him, you can get it to him at:
P.O. Box 78335
St. Louis, MO 63178

The sweetest revenge would be to get Mr. Farr elected so that he would be able to have a voice in regulating Amtrak... perhaps privatizing it totally so that it would stop being a constant tax-dollar money-pit.
[NOTE: I spoke to Mr. Farr directly a few moments before posting this. He's a solid, but humble, individual, and is bravely facing a strong incumbent. He sounds like a person with exactly the type of character who should be in high office. People, lets do what we can, and make it happen!]

Tuesday, August 10, 2004


A fair amount of ink and cyber-ink has been shed on the alter of discussing the new "527" organizations.

It's pretty-well accepted, at this point, that the Democrats have been far more effective at leveraging these groups than have the Republicans. These organizations, which are supposed to be distinct from any particular party or candidate, are pretty transparent in their affiliation.

To my mind, I think that this is yet another example of "unintended consequences." This time, it's the Campaign Finance Reform law (BCRA) that is to blame. The goal, of course was to "get the money out of politics." Supposedly, its the "evil" money that corrupts, and somehow we were supposed to accept that elected officials would be very interested in ridding elective politics of the influence of money. Pardon me, but if you've ever seen a security official at an airport, it's not the money that corrupts it's the power and control that power affords over others that corrupts. Money is part of the problem, but it's not the CAUSE of the problem.

Now, more directly to the 527 issue. 527s, because they need to be, officially, distinct from the parties are able to play more directly to fringe elements, or, shall I say, narrow segments of the population with a distinct commonality of interest. Since the 527s are not political parties, they are, for all intents and purposes, un-regulated. What this has resulted in has been an increased radicalizing of the political atmosphere this election cycle than before. The Dems can't, officially, reign in MoveOn or any of the other radical commie-left organizations, and, they don't want to. With the official separation, the 527s can attack visciously and with little or no regard for truth and the democratic party can reap whatever rewards are to be had.

The unintinded result of making sure that the money was not flowing into the parties in a controlled , but less restricted fashion, the money is now flowing into para-political groups in an uncontrolled and unrestricted fashion. I would feel safe making a wager that, if all the money that goes to political races, political parties, and these para-political groups were to be added-up, it would dwarf any previous total (adjusted for inflation).

So, instead of making sure that money didn't corrupt the process, the BCRA has insured that money is playing a bigger part than ever and is working to galvanize the electorate far earlier than in previous elections. It reminds me of "control reversal" which was a condition on an airplane that will, if present, cause a command to accelerate in one direction result in an acceleration in the opposite direction. In hindsight, this result is totally foreseeable, but I suspect that the authors of the BCRA really did want to reduce the skewing influence of special interest dollars on the political process.

Once again, simple and elegant controls would appear to be more effective, if less explicit in their target. A better solution for campaign finance reform would be to allow unrestricted donations to candidates and parties by individuals and corporations so long as each donor is identified and that identity is made public. The public would then be able to tell who was giving what and how much and any influence would be easier to detect (infer) and could be confronted head-on. I would, personally, require that for a given election, no more money could be injected to help a particular candidate or influence a particular race from outside the represented area (state or district) than came from within. (i.e. no political party or outside group could donate more to a candidate than he raised from within the geographic area that he would represent.) That additional control might not be necessary if there is sufficient transparency, but the point is that people should not be restricted in their political speech through donations, and the current statutory scheme simply encourages greater factionalizing and radicalization of the process.

Thursday, August 05, 2004

Straight Hate

Bernard Chapin has written "On Heterophobia."

Basically, he says that he thinks that militant gay activists want to force all heterosexuals celebrate their homosexuality. He's done a pretty good job of looking at the state and condition of the tension between the militant homosexuals and the heterosexual majority. I especially appreciated his examination of the psychological techniques used to vilify anyone who does not whole-heartedly agree with the militant homosexual agenda.

As an initial analysis I can't really disagree with him. I think the root goes deeper, though.

Any of you who are familiar with the Biblical story of Adam and Eve will remember that the "apple" that they ate was really the "fruit of the tree of the knowledge of good and evil." Some people take the story literally (I do), and some just see it as a metaphor for humanity's moral awakening. However you see it, the truth that it expresses is that all people have a fundamental, visceral, knowledge of the difference between good and evil. No person who is not utterly insane can escape that knowledge.

Homosexuals know that what they are doing is wrong. They don't like that little fact, but they can't escape it, because that knowledge comes from within. The militant homosexual activists either don't believe in God or they don't acknowledge that He really did not approve of homosexuality. In any event they want to equate homosexual activity with heterosexuality because they consciously or unconsciously believe that if they can make the rest of society accept their actions that their actions will stop being wrong, and they will then be able to escape the condemnation that they feel.

The problem, of course, is that the condemnation comes from within them not from outside of them. If homosexual activity was really morally equivalent to any other physical activity, then once society stopped actively punishing the activity, the homosexual community could "sell" itself and its activities solely on their own merits. But we all know that's not how homosexuality is spread. Logistically, it would make sense, and yet, homosexuals are still a very small percentage of society.

I propose that homophobia and, as Mr. Chapin calls it, "heterophobia" are really the same thing. I think that "heterophobia" is the wrong term. It's not a fear, it's a rage. It's a rage against the constant reminding that homosexuals get when they consider the vast majority of society which is not homosexual. That's upsetting because it pricks their conscience, and the knowledge of good and evil returns. Heterophobia is better understood as "straight hate." It's an externalization of the internal condemnation that they feel. It's far easier, psychologically, if a person can externalize internal guilt as condemnation from somebody else. In that case, the guilty person can be a victim because he or she has no control over the source of the condemnation. Homophobia, with few exceptions, is only ever held by homosexuals because they are the only ones who acutely feel the wrongness of homosexuality.

My theory explains a lot. It explains why the homosexual community is pushing so hard to require the acceptance of "gay marriage." All people, gay or straight, understand the intrinsic goodness of marriage. Marriage is good because it is Holy. It's Holy because God created it for humanity. If a homosexual union could be a marriage, then society would have to accept that it is morally equivalent to the God-ordained heterosexual union within the marriage that He created. Gays want to either get their activity sanctioned as Holy or make the rest of the world forget that marriage, in the traditional sense, is, actually Holy.

I don't think Mr. Chapin's wrong, but I think the inescapable pain caused by the constant self-condemnation caused by the knowledge of good and evil that each of us has is a better explanation for the actions of the militant homosexuals.

Tuesday, August 03, 2004

Maryland's best shot at a Republican Senator

Alan Keys!

Of course, if he runs, he'll be running in Illinois.

I don't know how well that will fly, but he would be a good Senator for whatever state elects him. I just hope, if the Illinois GOP runs Alan Keys, that they get behind him 150%, because he'll need it.

...the new underground economy.

I was going to post a nice long essay about the "omens" and "signs" about this upcoming election, but I've decided to keep it short(er) and sweet.

There's a lot of hot-air from both the Republicans and the Democrats about who, according to historical precedent, is likely to win. It's great for the ego of the one asserting that they've got history on their side because of X, Y or Z, but it's a useless line or argument.

The President isn't selected by a survey or historical trends. Even if, all things being equal, history tends to repeat itself, all things have to be equal to confidently assert that a particular thing will repeat. The sad fact of the matter is that this period in time has never existed before. (Profound, eh?) For the last couple of election cycles, the internet has existed, but I think it will start to show its true effect this cycle, just like, I think, the combination of 24-hour news and talk radio had an impact in 2000. It think the electorate isn't any more polarized than before, I think that it's polarized far earlier than before, so historical trends are less useful since, so far as I know, we've never had this kind of endurance race. Since we've got three months to go and we're basically at the kind of break-down we normally see within a week or two of an election, we don't know who will be able to keep their base motivated. Also, we don't know how, exactly, to anticipate the actual effect of the internet into this election cycle.

I'm speaking of blogs. Never before have so many people been able to express their opinion so easily to such a large potential audience. Each blog distills some thought or thoughts differently. These multiply distilled rationales will have an impact on the election, and nobody knows in exactly what way. Blogs won't be big (compared to television or radio), but I think they will be big enough to make a difference.

To make a long story short, I don't think the fact that Kerry got little or no measurable bounce from his convention should give the Republicans any comfort. Likewise, I don't think the fact that Waffles has a lead against a sitting war-time president should give the Democrats a reason to be smug.

My gut tells me that President Bush will win re-election, but I don't derive my opinion based on the "lack of bounce." My opinion is largely faith. I have faith that Waffles' record will fail to impress enough people that he will be able to gain victory. I have faith that a clear vision for the nation will inspire more people to show up and vote than a syrupy mish-mash of self-contradiction, even if there is some vague apprehension to the clear vision presented by the other candidate. I have faith that, when it's all said and done, the electorate will look at President Bush and realize that he, without reservation, puts America first, and that's more important to leading our nation in this time of heightened threat than being able to order exotic foods in flawless French fearlessly from menus that don't contain prices.

Perhaps a new omen will develop after this election. Maybe the new "best" indication of success will be something like the number of blogs that advance a particular candidate. Maybe... Maybe not. In any event, the impact of the internet, especially blogs, is going to be felt. Pretty speeches will count for less and less as the candidates' assertions and consistency can be checked by anybody and will be by many. In the political marketplace of ideas, blogs have become the new underground economy. I have a feeling that, in the end, the candidate who brings the highest quality "merchantable" ideas to the table which can be disseminated on the internet and withstand close scrutiny will be the one who will take advantage of the margin the internet has to offer.

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