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Thursday, March 24, 2005

Schiavo comments

If anyone is still reading my blog, I apologize for not posting regularly. I've been conflicted and busy. Either I look around and can't think of anything to blog about or there are too many things to blog about, and not enough time to do justice to any of them.

Nevertheless, I want to add a couple of thoughts to the (largely uninformed) discussion of the Terri Schiavo situation. Here are a couple of aspect that I think could use some clarification:

1. Congress over-stepped its proper Constitutional authority by stepping into the Schiavo case.
Wrong. Congress has the plenary authority to define the jurisdiction of the lower Federal Courts, and broad constitutional authority to define the Supreme Court's jurisdiction. See Article 3, especially Section 2. Moreover, consider the 14th Amendment. That Amendment, by the way, expressly makes the LIVES of citizens of the several states a potential federal issue. Section 5 of the amendment expressly gives Congress the power to enforce Due Process and Equal Protection issues against the States. The "federalism" issue, which, by the way, most liberals hadn't contemplated since Bush v. Gore, and that, too, was also a misplaced complaint, is a red herring. The Federalism issue exists when we are talking about the Federal gub'ment butting into an area of state concern without proper legal authority. Please note that it is possible to have concurrent jurisdiction over issues. When Congress decides to step in and point out that it has serious concerns that one or more citizens are not getting equal protection or due process under the law at the hands of a state, then there is NO federalism problem.

2. There is no Due Process or Equal Protection problem because this case has been litigated extensively!
Wrong. Getting into court does not mean you get equal protection or due process. Would you consider your criminal trial fair if you get a jury? What if nobody of your race was allowed on the jury? What if you were facing a death sentence and weren't allowed to have an attorney? What if you were facing a death sentence and the prosecutor is allowed to also serve as your defense attorney?
Sure, you get a trial, but there are some SERIOUS questions about whether or not it was fair. In this case, Terri Schiavo has not had independent representation. Her husband is allowed to speak for her. Normally, I wouldn't have a problem with that, but the husband has a BIG potential conflict of interest. He may or may not stand to gain by her death. He may or may not have caused her condition. (Please read CodeBlueBlog's discussion of Terri's condition, especially here, and also here.)
Finally, I know you all know this, but Michael Schiavo is living with and has two children by another woman. Certainly, this doesn't prove any ill-will on Michael's part, but it is a big enough red-flag that NO court should blindly accept his statement about what his wife would want.

3. Terri's brain-dead and nobody would want to live in that condition!
Well, no. She isn't brain-dead, she's profoundly brain-damaged. I have no idea about whether she has any potential for rehabilitation, but she is most certainly NOT brain-dead. If she were brain-dead her body would not be able to sustain the primitive functions of life for long without artificial assistance. She breaths on her own. Her heart beats on its own. All her internal organs function. The only basic function that she cannot do is swallow, therefore, food was injected directly into her stomach where it was digested normally. This is not IV-feeding. It's pureed food being placed in her stomach.
I have no argument that many of us would choose, if able to foresee that we might be in that position to leave the instruction to allow us to starve. To be honest, I'm not sure what I would choose, largely because I do not know what her true state is. Nevertheless, the default is and always should be to prefer preserving life without the adult patient's express contrary desires.

4. The fact that the federal courts refused to order that the feeding-tube be re-connected proves that the state courts were correct!
Um... No. Here's the text of the statute as passed by both houses of Congress and signed by the President. The current status of the litigation is whether or not Terri can get a temporary restraining order (TRO) to have the feeding-tube re-connected so that she might live long enough for her case to be heard.
The problem is that the Federal Courts, so far, have used a procedural tactic to avoid the express intent of Congress and the President (that Terri Schiavo's case be given de novo review in Federal court to determine if she has had any constitutional rights infringed in being denied food and water.). What the District Court judge did was say that, in order to grant the injunction, the moving party (parents) would need to show a likelihood of success on the merits, and that based on what he could see (state court determinations, mostly) the parents were not likely to win, therefore no injunction. This will cause Terri to die before the court actually gives her a de novo review, as mandated by the statute. Granted, the statute does not expressly change the standards for an injunction, but the judge, in my humble opinion, is abusing his discretion because he is supposed to view the matter in the totality of the circumstances, and when failure to grant an injunction effectively ends the case because it destroys the subject matter of the suit, then the judge should use discretion to allow the case to go forward by allowing the injunction. In this case, because this is a preferred case, in that it is clear that Congress actually intended that Terri Schiavo live long enough to have her case be given a de novo review, the court erred by not following Congress's clear intent. Likelihood of success or failure is irrelevant as to whether the case should be heard.
Another problem, of course, is that at this stage, the federal courts have not done any fact-finding, and therefore has to rely on facts established in the state courts. That is precisely what Congress directed the federal courts to NOT do. Here's section 2 of the statute:

Any parent of Theresa Marie Schiavo shall have standing to bring a suit under this Act. The suit may be brought against any other person who was a party to State court proceedings relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain the life of Theresa Marie Schiavo , or who may act pursuant to a State court order authorizing or directing the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life. In such a suit, the District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings. The District Court shall entertain and determine the suit without any delay or abstention in favor of State court proceedings, and regardless of whether remedies available in the State courts have been exhausted.
The Federal Courts have, therefore, thummed their collective noses at Congress. Perhaps it was out of contempt for Congress's exercise over jurisdiction. Perhaps it was that the judges were making personal decisions about what they think is the proper outcome in the case. In any event, the judges were NOT following the law.

UPDATE: As I was finishing this post, the Supreme Court came down with it's refusal to hear the appeal. I wish I could say I was surprised. I am profoundly disappointed, however. Don't get me wrong. I'm not saying that the Courts should get involved and order that Terri's life be sustained forever no matter what. I just think she deserves to get a proper review in Federal Court of all of the facts and circumstances of her case to determine if any of her Constitutional rights have been infringed, and I think she should live to have that hearing. If, after a trial on the merits, the court determines that here Constitutional rights have actually been protected, then the state-court findings that her husband is actually properly carrying out her wishes would be proper.

Wednesday, February 23, 2005

Scalia, the Civil Libertarian, Strikes Again!

Most of my readers, I presume, are, like me, fairly conservative. That's a good thing. Nevertheless, I know that, on occasion, the a looney-leftist will find his, or her (or its???) way onto my blog.

I know that the leftists hold as an article of faith that Justice Scalia (all conservatives, really) hate civil liberties. (I know this because I go to law school, and am therefore surrounded by looney leftists.) Nothing could be further from the truth. Justice Scalia is one of the strongest defenders of Civil Liberties found in the U.S. Constitution who has ever sat on the Supreme Court. He is, however, unfriendly to the idea of new and exciting "rights" or "liberties" that are not found in the Constitution being declared to, in fact, be Constitutional.

That said, a case was decided yesterday in which Justice Scalia handed down the Court's opinion. It was a 5th Amendment "Double Jeopardy" case. Low and behold, Justice Scalia, as any Constitutional Scholar should expect, supported the individual's claim against the state.

I suspect that the looney leftists will develop a sort-of selective amnesia with regards to this case... Remembering that the Civil Right to be free from Double Jeopardy is still with us, but forget that Justice Scalia wrote that opinion, and Justice Ginsburg dissented.

The issue of the case, if you don't want to read the actual case, was basically this: If a trial court dismisses one or more criminal count after the prosecution has rested and failed to sufficiently support the charge, and if the state laws call such a dismissal a final determination with respect to that charge, may the prosecution, at the end of the trial (after the defense has rested) have the dismissed charges presented to the jury for determination?


Why? Because the defendant didn't have a chance to structure his defense around the idea of defending against that charge. Scalia pointed out that if the state law did not treat the dismissal as final, then the defendant would have been on notice that the charge might come back, and so bringing the charge back would not have violated the prohibition on double jeopardy.

TA-DAH!!! The anti-thesis of liberalism... Clear, Constitutional reasoning (for a change).

Wish us luck...

You may have noticed I haven't blogged much this semester, so far. Part of the reason, I must confess, is that I've just not felt inspired to write very much. Another part is that I've been concentrating much of my spare time on preparing for the upcoming National Appellate Advocacy Competition. I'm on the UB team. We're going to be competing in the regional competition down in New Orleans... Next week.

I'm certainly not going to try to predict the future, but I'm confident that our team has a legitimate chance at performing well enough to make it to the nationals.

In other news, the courses I'm taking this semester are somewhat less than interesting. Trusts & Estates (It's on the Bar, that's why), Sales & Leases (It's on the Bar and, after the pathetic professor I had in Contracts, I figured I needed something related to contract law so that I would learn something, that's why), and Employment Law (It looked like it might be interesting and or useful, maybe). Fortunately, they're not tough, but I'm having a tough time caring about them. Even Federal Income Tax was more interesting than these classes.

I can't wait for this semester to be over... The day after my last final, my darling wife and I will be jetting down to Cancun to enjoy some sun and relaxation together for a few days. Er, well, considering the time of the flight out and when my final will be over, it's hard to consider it as being "the day after..." Nevertheless, It promises to be great fun. It seems like a long way to go to play mini-golf, but hey, no cost is too great if it makes the wife happy, right? Actually, the cost is pretty reasonable, all things considered.

Here's a question to leave all of my faithful readers (reader?) with... Why do you suppose the University of Baltimore would cancel classes for Martin Luther King Jr. Day, but not for President's Day? I have my suspicions.

A final question for any and all practicing lawyers who may come across this page... I'm at the point where I have to decide whether I want to pursue a clerkship or not. I am not looking forward to poverty any more acute than I am currently living (which isn't all that acute, to be honest), but I understand that the experience and prestige of being a judicial clerk has substantial rewards. So... What's the real scoop? Is it worth it?

Thanks for any comments.

Tuesday, February 08, 2005

Europe unveils plan to overshadow the American economy

England has some interesting employment standards and ideas about what constitutes discrimination. This is a story from last Summer that, somehow, I had overlooked. Nevertheless, it appears that in England you can't look for hardworking employees because that discriminates against the lazy.

I guess that fits... England IS in Europe, with Germany, after all, and we know that Germany tells women that if they don't take available jobs as prostitutes, then they can lose their social benefits.

If the English and the Germans ever truly get together, you'll have a government marriage service... Think about it; in Germany, you have to be a prostitute if that's the only job, and in England, you can't weed-out the people who don't actually want to do the job. Pretty soon, as the European Union gets into full swing, you'll get prostitutes who won't actually have sex with you, but still expect your money!

I like the American model... Prostitution (except as an elected official) is (generally) illegal, but the women in it, apparently, treat it as a true profession. Women who don't want to have sex can still opt for the traditional route and get married! That, my friends is freedom!

Monday, February 07, 2005


I don't know why I didn't think of him before, but according to StudentLife of Washington Univ. of St. Louis, Ted Olson is on the very short-list for appointment to the Supreme Court.


Mr. Olson is one of the nation's best appellate advocates and he's a brilliant intellectual conservative, and, by the way, a strong supporter of the Federalist Society.

I still say that Professor Eugene Volokh, or Justice Janice Brown would be excellent options, but I think that Ted Olson cannot be considered a second rate candidate to compared to anyone.

Ted Olson should have a relatively easy confirmation, so that's an additional plus. Nevertheless, since the Chief Justice slot is the almost certainly going to be the first slot to open up, I fear the desire will be to want either one of the current SCOTUS justices to take the spot (that would probably be either Justice Scalia or Justice Thomas), or another Supreme Court Justice from one of the states. The problem with moving a current SCOTUS justice to the CJ slot is that doing so means two confirmation battles, and only one additional conservative vote.

If President Bush is sly like President Reagan was when he moved Rehnquist to the CJ slot, and snuck Scalia in under the radar, then perhaps he can get one more true conservative on the bench without much of a fight. Unfortunately, I don't think the Dems will be that easy to rope-a-dope this time.

I won't fault President Bush for picking Mr. Olson under any circumstance, nevertheless, I am still in favor of the idea of President Bush using his political capital to push Justice Brown's nomination, and then, when the next slot opens up, to put Ted Olson into that seat. If my supposition is correct that Ted Olson will be an easier confirmation, then that would be a way to get another conservative vote on the SCOTUS even with declining political capital.

Friday, February 04, 2005

What a BITCH!

I know, I know, if you can't say something nice about someone, you shouldn't say anything at all. If that's what you want to say to me, shove it.

I'm pissed after reading, "Cookie klatch lands girls in court" in the Denver Post.

Basically what happened was that two teenage girls decided that they decided to skip a dance and commit a random act of kindness. They baked cookies for their neighbors and dropped them off at houses that looked to be occupied by people who were still up. (i.e. The lights were on.) They delivered cookies around their neighborhood around 10:30 that evening.

A 49 year old bitch of an ungrateful hag for a neighbor, one Ms. Wanita Renea Young, suffered anxiety when the girls knocked on the door and dropped the cookies off. She called the police (who found no evidence of anything illegal) and then went to stay at her sister's house. The next day, she went to the hospital because she was so afraid.

I understand the Atkins diet, but being so anxious over a plate of cookies that you go to the hospital is just stupid.

The girls and their parents sent apologies for upsetting the bitch, and then decided to offer to pay her medical bills, if she promised not to sue them for anything else. That concession was just too much for the cookie-phobic wench. She said that the apologies "didn't ring true."


What kind of a hateful person sees the gift of a plate of cookies (which were, apparently perfectly tasty and did not contain some sort of poison) as an excuse to sue? Worse yet, Ms. Young could not stomach the thought of ONLY punishing the families to the extent of her actual medical costs... No, she wanted money for pain and suffering, and punitive damages.

I was going to include a link to Ms. Young's address so that you could write and let her know what you thought of her childish spitefulness, but, although WhoWhere.com Does have a listing for a "W. Young" I'm not certain that it's the same person.

So, in the absence of that information, I could find one listing for one of the girls' families. If you've got a spare $5 or $10, please consider sending it their way. No person should be punished for doing good, and teenagers who, on their own, decide to do an act of kindness for others, should not be taught that society thinks what they did was wrong.

The good news is this: For the bitch, the $900 that she was awarded probably feels like a loss, since she was so d--- greedy, and I doubt it will come close to making her happy. For the kids, if we can help ease the burden of the judgment, they'll learn that most people side with them.

As an aside, I do wonder if they could have attempted a 1st Amendment defense... If this was a "small claims" case, it might be that they can appeal the decision to a court of general jurisdiction. In that case, they might be able to argue that the cookies (and accompanied note) were a type of expression. An expression of altruistic concern and affection for their neighbors which is beneficial to the community. Therefore, to punish the expression, the court would have to find that it falls within some narrow class of speech "fighting words" or "fraud" or "intimidation" or "incitement to imminent lawless action." In this case punishing the speech would at once be against public policy, and unconstitutional.

The tort principle of "you take your victim as you find 'em" might not apply. That principle (also known as "the eggshell head man" principle) applies to situations where you do an act which is of the sort that could cause harm, but you didn't think it would actually cause harm, but that harm does end up happening. Typically, you'll see this principle when someone slaps someone on the back, and that breaks the recipient's shoulder, which wouldn't happen to a normal person, but the recipient had some rare bone disease, or some analogous situation. Dropping cookies off, might fall into that category if they contained some ingredient that caused a bad allergic reaction. This sort of response was NOT the sort of thing that flows from dropping cookies off. Even if knocking on the door at 10:30 PM might startle some people, the fact that the cookies were there and the police found no evidence of wrongdoing would have alleviated the anxiety.

Perhaps if the girls do appeal, and win, they could return the favor and file a suit for abuse of process. That would approximate justice.

Like I said, if you can afford it, please send a few dollars to them to help defray the cost of living near a nasty old bitch. Perhaps you could put "Keep doing good!" or "Don't let the Bitch get you down!" in the memo line.

Polygamy case raising interesting issues

The Utah Supreme Court recently had oral arguments in the case of a former police officer who had 1+3 wives... It's an interesting case for a number of reasons. The Salt Lake Tribune has this article: "Ban on plural marriage questioned"

It implicates religious liberty, equal protection, and "fundamental freedoms" as recently refined in Lawrence v. Texas.

I think that the justices and attorneys were missing the point with respect to at least one aspect. The issue of potential child-custody problems came up, and the state was arguing that it would be too difficult with multiple more than the mother and father involved in the dispute... That's simply untrue. A "plural marriage" isn't like a partnership in the business sense, where if you have 5 folks who start a business as a partnership, they are each partners of every other partner. With a plural marriage (at least with a polygynous marriage) the husband has a distinct covenant relationship to each individual wife. The wives do not have a direct relationship to each other. From what I've heard, that's the most commonly misunderstood aspect of plural marriage. For whatever reason, many people believe that "plural marriage" means "orgy." For this reason, if husband and, for example, wife-6 want to divorce, only the children born to wife-6 would be at issue in the divorce, and the other wives would not be parties in the case.

All that being said, the court picked up on an interesting point... Is the state exclusively or almost exclusively picking on people practicing plural marriage for religious reasons? That would be, you might guess, a no-no. Additionally, the court noticed that folks who shack-up with someone other than their spouses while they are awaiting a divorce, are they not legally in much the same situation as those who engage in plural marriage?

One thing I found disturbing is at the bottom of the article, the comment of the Utah Attorney General Mark Shurtleff, "We're just targeting criminals, child abusers."

That sounds good, but it's got a problem... Although the wife in question here was young (16 years old), apparently, according to earlier discussion in the article, the relationship would have been LEGAL had the husband not already been married. It seems to me that the State's argument is circular. We only go after criminals and child abusers, but if you have more than one wife, then you're a criminal even if the plural wife is legally of-age.

I've discussed this topic before (here and here), and I think it's interesting. I've never been convinced that the Bible prohibits the practice per se. In fact, I think there is strong support for the idea that polygyny (having multiple wives as opposed to polyandry, which is when one woman has multiple husbands) is expressly approved by the Bible.

Here's the question for you, if you oppose multiple marriage, can you articulate a persuasive argument against it which does not rely on cultural norms? (In effect that would boil down to "it's bad because I think it's bad and everybody I know thinks its bad.") If you make a Bible-based argument, I will expect you to deal with Nathan's comments to David and the fact that the only limitation in the Scriptural Law as to how many wives any many could have was for the king who was not to have "many wives."

Thursday, February 03, 2005

"Come home, America. Come home."

Iowahawk's guest comentator knows his subject...

Read "It is Finally Time to Exit the Oldsmobile"

By the way, it's most effective if you read it alloud with your best impression of the writer's voice.

NOTE: Major Drink Alert

Monday, January 31, 2005

UN's says of Sudan: "Nope, no genocide here!"

Reuters has this article about an upcoming UN report on the situation in the Darfur region of Sudan.

Apparently the article doesn't call the systematic hunting and murder of non-Muslims (i.e. Christians) "Genocide."

Do you think that means the situation isn't as bad as we've heard? Could be, I suppose. However, that's not necessarily the only answer with a strong probability of being correct.

Another possibility that I think is even more likely to be true than the idea that everything over there is actually nice would be that the UN is playing word games. You might wonder WHY the UN woud bother mincing words. The answer is simple, and founded within the ius gentium realm of international law. ("Ius gentium" means "the law of all people." Roughly speaking it's the most basic of true international law, if there is such a thing.)

You see, if the UN had found actual genocide, then they would have painted themselves into a corner. When genocide exists, under international law, ANY nation can take action to end it. Not only that, but, because of the UN's Charter, the UN is expressly designed to be the body by which that action is taken. (See Article 1 Section 1.)

Most scholars believe that when a serious violation of human rights laws, such as genocide is known to exist then it becomes the duty of any nation which has the capability to intervene to do so.

Knowing this, the UN has several positive incentives to NOT find genocide in Sudan.
  1. The ones with power in the Sudan are the Muslims, so ordering a military intervention would risk angering other Islamic nations.
  2. Finding genocide would would require the UN to act and they know that, when it comes to stopping attrocities, the UN has been wholly ineffective. Another failure would be the final nail in the coffin of the UN's credibility.
  3. Finding a genocide would be a greenlight to the Bush doctrine of forcing despotic terroristic regimes to comply with international norms of human rights or risk being destroyed.
  4. Finally (OK, there may be more), finding a genocide would force coutries like France and Germany to get off their butts and do something for somebody other than themselves.
Then again, perhaps Germany would welcome the chance to intervene so that the government could encourage these new immigrants to take the jobs the native Germans prefer not to do themselves.

"no one in the United States should try to overhype this election."

I'm sure it was surprising to, well, somebody, that of all people in the United States, John Kerry was not all that keen on elections anywhere.

John "Mr. Ed" Kerry... Get over it. You LOST. Just because you lost doesn't mean that all elections are bad. As a matter of fact, the simple fact that you lost is proof to about 60 million Americans that elections are good!

To any Iraqis who read this, let me say, "Bravo, and Congratulations! Don't ever lose your courage. Freedom is costly and scary because it is obviously uncertain, but don't let that damage your resolve because the apparent security of the various flavors of communism/socialism/despotism are less stable in the long run. You won't know what will happen tomorrow when your free, but you will be able to make great plans for your and your children's future, if your free to chart your own course through uncertainty. God bless you, and know that so long as you strive for freedom, you will have friends in America."

"A full year's supply of sour kraut with purchase of any qualifying Moral Vacuum!"

When I saw this article, "If you don't take this job as a prostitute, we can stop your benefits" in the Telegraph (from the UK), I was speechless.

Go ahead and read it for yourself.

Essentially, Germany legalized prostitution in 2002 in an apparent attempt to curb the trafficking in women that was taking place in the underground prostitution industry. That's a thought, I guess. What would have occurred to me would be to catch and imprison (for a long time) anyone involved with the prostitution industry, and perhaps execute anyone who was found to have been knowingly involved in any trafficking of women (if the women were either kidnapped or in any way tricked into their current situation).

But, hey, that's just my idea... I guess legalizing it might work, in an alternate universe, I suppose.

So, our new best friend, the Law of Unintended Consequences has reared it's (initially attractive) head. In the government's attempt to end the trafficking of women, they've become the traffickers. That really is a great description of the situation. To continue to be eligible to receive the social benefits upon with she had become dependent, a woman is now forced to take any available job, if she hasn't found a job in her field within a year. Since prostitution is legal, brothels can advertise for employees. Now the woman highlighted in the story must take the job as a prostitute or become destitute. I guess you could say that she's gonna get screwed one way or another.

So... I've always said that every system functions exactly as it's designed and implemented, and that's true of legal/social systems as well. Therefore, we've learned a little about what the legalization of prostitution was really all about. Instead of being a means of protecting women who were being pulled into prostitution against their will, it was about making sure the government got a cut of the action.

I wonder, was the law originally passed after promising a year's supply of sour kraut if the legislators bought this moral vacuum?

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