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Thursday, November 27, 2003

Happy Thanksgiving!
I hope all of you are enjoying a peaceful and refreshing holiday. For those who wish to make reading my Blog a new family tradition, and who wouldn't, I thought I would burst a few bubbles and dispel a few myths about Thanksgiving.

Read this web page, entitled "Top 10 myths About Thanksgiving."

It's fairly informative and if you commit it to memory it may help promote you to Supreme Know-It-All-Geek at social gatherings. Good luck.

I do have one quibble - "Myth #3: Thanksgiving Was About Religion"

The evidence put forward is that it was a harvest festival, and if they really thought it was religious they "never would have invited the Indians to join them." Without a person, or deity, or some identifiable thing to attribute thankfulness towards, "thankfulness" would devolve into "vaguely pleasant warm and fuzzy feelings."

The question is, to whom were they thankful? The fact that the Pilgrims were celebrating the harvest does not detract from the essence of the celebration of being a public and joyous celebration of the blessings, including their new found friends, the Indians, from God.

From my perspective, I can only imagine that the original Thanksgiving celebration was a celebration of the Blessings that God had bestowed on them through the natural mechanisms of the world and through providentially placing them in contact with friendly Indians. The public and open nature of the celebration, therefore, would be in keeping with the nature of the blessings that they were thankful for.

In any event, have a happy Thanksgiving, and remember to thank God for providentially ordering the world so that everyday blessings can come your way, for having his hand on our leaders so that we have a President who is faithful to his pledge to protect the nation, for discouraging further terrorist attacks here at home, and whatever else you are especially thankful for.

Wednesday, November 26, 2003

Hold on for ond G-D, Frikkin minute!
This article tells us that an unnamed Republican Staffer has been put on paid administrative leave for accessing "secure" Democratic computer documents.

Sounds bad, doesn't it?

String 'em up! Right?

Does it matter AT ALL what was in the documents?

These documents showed that the democrats were objecting to some of President Bush's judicial nominees BECAUSE they were the wrong race! That's right, the Democrats have determined that they will come down like a hammer on any of their subservient groups that wander off of the plantation.

To me, this sounds like RACISM. I'll need to check, but it could, very well be a Constitutional violation... HOWEVER none of that matters, does it? The evil Republicans may have gotten the information through improper means...

Sit down and think... what's really worse... using improper means to bring to light bad and maybe illegal behavior on the part of elected officials, or the bad and maybe illegal behavior on the part of elected officials itself?

Since this is a political process, I think an attitude of caveat emptor (buyer beware) should be applied. If you are an elected official and you MAKE ANY DOCUMENTS not related to matters of national defense that ARE related to your actions as an official, you should not be able to object if those documents come to light. --- If the Dems want to be racist, they should make sure they don't ever create any documents about it.

Do you want MAIDS?
Things look good that I might be taking over as President of the University of Baltimore Federalist Society.


I'll keep you faithful reader(s) posted on how things go, but I do have some ideas.

The BIG idea I've got is "MAIDS" - I'm not talking about pretty young women who act as domestic servants, clean your house and dress in (skimpy) frilly black-and-white outfits. (Who doesn't want some of that???)

What I'm thinking of is "Mid-Atlantic Intellectual Diversity Symposium"

What I envision is a day, or two, or three, where Universities (especially law schools) come together and discuss diversity, especially intellectual diversity issues. I would like to get folks who are in favor of "speech codes" up on a pannel versus people who can think.

I would like to get school administrators justify hiring patterns that seem to exclude conservatives.

I would like to get students involved as the moderators, and occassionally as the speakers. Back when the concept of "University" developed (early Renisance) the students ran the institution because they were the ones paying for the education. I say it's time to take the schools back and MAKE them give us a REAL education! (Damn-it, we pay 'em and sometimes even show up at classes!!!)
Stealing seats?
Do high-achievers steal opportunities from the less fortunate, and disproportionately the minorities?


If a person with high entrance numbers attends a low-ranked school, has that person, who probably could chose to go elsewhere, not taken a seat that would othewise go to someone who has no other options?

Should institutes of higher education (Universities, law schools, medical schools, etc.) put firm upper limits on the qualifications they will accept in their applicants?

Just a thought...
Drivers Wanted...
Well, Volkswagen says "Drivers wanted" but what good will having drivers do if they can't find the cars?
Most of you are already aware that Michael Jackson was apparently video taped on his flight from Las Vegas to LA when he was arrested.

Apparently the video tape shows Jackson conferring with his attorney(s).

Now, without getting into the intracacies of whether attorney client privilge should attach against this as evidence (I suspect that it should), one thing that Jackson's attorney, Mark Geragos, said struck me as terribly funny.

NOTE: Mark Geragos is a VERY high-profile California criminal defense attorney, and is defending, in addition to Mr. Jackson, but also Scott Peterson, among others. - Keep this in mind when you read the quote below.

In this CNN article, I came across the following quote by Mr. Geragos.

"[The alleged taping was] one of the most outrageous acts I've ever seen in my 20 years of practicing criminal law."

Does anyone else see the irony of defending Scott Peterson and Michael Jackson, and then claiming that video taping a VERY high-profile personality surruptitiously was "one of the most outrageous acts" he has ever seen?

He must have big 'uns.
Memories of Thanksgivings past
When I hear stories on radio and TV about Thanksgiving Day traffic, I can't help but think of my only Thanksgiving Day travel story.

Way back... in 1992, I had a very special Thanksgiving planned. I was going to meet my fiance (now, my lovely and gracious wife) in Indiana. That wouldn't be so special but for the logistics. I was a sophmore in the aerospace engineering program at Mississippi State University, and my wife was attending Loyola College in Baltimore Maryland.

The reason for wanting to go to Indiana was that my bride-to-be had never met my extended family, and we were to be married in a few weeks (right after the semester was over), and we knew that few of my extended family would be able to come out to Maryland, where we were getting married to attend, so close to Christmas.

My wife rode out to Maryland with my folks and my brothers, and that was about a 12 hour trip. They were planning to meet me at the Indianapolis International Airport. They made it there on time.

On my end, things did not go as smoothly. I had borrowed a car (a 1984 Z28 Camaro w/ 5.0L V8 and an automatic transmission) from a distant relative who happened to teach at MSU to be able to get to the airport for my 7AM flight. Now, for those of you who did not have technical majors, and civil and industrial engineering majors, Thanksgiving time in an engineering undergraduate program is, well, oppressive. Midterm, papers, projects... everything comes down at once.

I don't know why, probably nerves and addreneline, but I was not able to sleep for almost an entire week. (No, I did not at any time take any substance which would tend to keep me awake more aggressive than the occassional Coca-Cola.) The night before the trip to Indiana, I was still wired from the intense week of due-dates and, try as I might, I couldn't get to sleep. Therefore, I decided to clean my dorm room. (I figured having it clean once while I was there was a noble goal.) At 3AM I finished that task, and didn't have a darn thing to do for the next 3 hours.

Knowing I couldn't actually sleep, I decided to lay down for a while to relax. I set the alarm for 6AM, just in case.

The next thing I remember - It's about 7:30AM, the alarm is blaring, and I was just waking up. Paniced, I jumped up, and as I turned off the alarm, I checked... yup, I had set it correctly. I had just slept through an hour and a half of the alarm. (NOTE: I normally wake up at the sound of the relay, or whatever in the alarm that clicks right before the alarm goes off.)

It took me about 5 minutes to get my stuff, and get to the car (from the 7th floor dorm room), and then, by my watch, it took me 8 minutes to get to the airport. The distance to the airport was right at 15 miles, and part of that was on campus... you do the math.

I had hoped against hope that the flight had been delayed, but I had missed the flight. The next flight was about 4 hours later, and I would not get to Indy until 8 hours after I was supposed to arrive.

Since it was a long time before cell phones, the only way I could contact my fiance and family was to leave a message with the airline. I made them promise to tell my family as soon as they could, so of course they didn't tell them until after the entire plane had emptied and were wondering where I was.

As we approach our 11th anaversary, my wife has yet to let a year pass that I do not hear the re-telling of the horrors of the one year she had to ride, cramped in a car for 12 hours to have her Thanksgiving dinner at a Stuckey's with my parents and my brothers.

I hope you too have many happy memories of Thanksgivings with family!

Tuesday, November 25, 2003

They may all look the same to you but I can still tell a difference!
There's a lot of that sentiment lately when discussions of Republicans as compared with Democrats come up.

MANY have said that Bush is just another BIG SPENDER, and probably worse than most democrats. (See sample discussions here and here.)

I've always been uncomfortable with that line, because it does actually matter WHAT you spend the money on, not just how much.

Check out this posting on EconoPundit. The analysis and projections illustrate the difference between Bush's economics and Dean's. I'm just going to quote one snippet that those who want to bitch about the deficit need to keep in mind. ---

"Most important is the simple issue of war, however. If you genuinely believe you are at war there is little difference between a $500 and $250B deficit. The "extra burden" to future generations generated by this higher deficit is nothing compared with the sacrifice of lives." (emphasis in original)
Rent Control
I suppose some of you will have little or no interest in this topic, but it was touched on in my Property Law class last night.

Rent Control, ostensibly, serves to make sure that poor tenants will not be booted out into the street because they are unable to pay market-rates for the property they possess.

From the tenant side (and lets remember, there are more tenants than landlords, so there are more votes to be bought by pandering to them...) this seems like a good idea, at first blush. The long-term effect is undesirable, however. Basically it serves to tie the renter to the property, and thereby remove it from the market of available properties. This artificially shrinks the supply of properties in an area, and artificially drives-up the market-rates for other rental properties in the area. In the long run, this will force younger families out of an area because prices will be just out of the reach of many younger families.

That's a simple analysis from the tenant side. From the landlord side, rent control is much more insidious. I would argue it is unconstitutional.

Part of the value of a property is its "alienability." Can you sell or give away the property? If you sell it, what are you selling?

When a rental property is sold to a new landlord, the VALUE that determines how much the buyer might be willing to pay is based, significantly, on the revenue it can generate.

A thought experiment - Lets assume there are two properties, and lets assume that they are, otherwise identical and right across the street from each other. One of the buildings is in the municipality of X, and the other Y. Their tax rates are identical. In fact all of their laws are identical except that X imposed rent control about 10 years ago, and about half of the units (assume there are 100 in each) are still subject to it. The rent controlled units rent out at $500 per month, and the non-controlled units bring in $1000 per month. The building in the Y jurisdiction, however has the same 100 units, but all of them bring in $1000 per month.

You can easily see that the value of the property in X, to a prospective buyer is reduced by $25,000 per month, and so any prospective buyer will be less interested in purchasing the property. Bob owns the X property and sells it for $2,000,000. Bill owns the Y property and sells it for $3,000,000.

What the rent control took from Bob, above, was not only the revenues for the property in terms of monthly income, but it also confiscated the VALUE of the property was eviscerate by the law. In effect, the X municipality had taken Bob's ability to market the true value of the property.

If we look into the future, and over the next couple of years, the rent-control tenants all die off, and thereby release the units from the restriction of the statute. All of the sudden the new owner has value (the ability to earn revenues and ability to sell the property based on its market value) that he did not bargain-for, and for which Bob should be, at least in part, entitled.

Bob's wealth was TAKEN by this government action.

The appropriate Constitutional provision is the 5th Amendment (and applied to the states via the 14th Amendment, but we won't go into that here). The 5th Amendment says:

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

Much of that amendment does not apply here, but the two clauses I have made bold do speak to this issue.

The "takings" clause (the last one) is what is typically implicated by condemnations by eminent domain actions. We all know that you will get paid if the county/state/whoever decides to build a road through your property. This is why.

Rent control is a little different. Rent control deprives the landlord of part of his property (remember, the ability to freely bargain for the value of your property when you choose to sell or lease it is part of your interest in your property). It gives the difference between the market-rate value of the use of the property and the rent-control price to the tenant, free of charge, and by the force of law.

When you look at it, the situation seems to implicate the first of the two bold clauses more than the second. I mean, really, the value of the property is being taken from the landlord, but it's not being used by the public, right? That's true to a point, I would like to present the idea that "due process of law" will require MORE than a rational basis review.

(For the non-law-geek reader, "Rational Basis Review" basically means that the government can articulate some valid government purpose that they think will be served by a law... This is the MOST defferential to the government of all types of review. Here the government's purpose is to keep citizens from becoming homeless, and mandating that their rent not be increased seems to bear a relationship to that purpose.)

What I'm getting at is that the "Due Process of Law" cannot only mean that properly elected officials made the decision. I think the second clause should be determinative, or at least illustrative in understanding how this problem should be resolved. --- If the government determines the public NEEDS some property it may take it, but only if it also provides a fair compensation to the property owner. With rent control, the government has decided that the public (or some members of the public) needs lower rent. To accomplish this they use the law to confiscate the differential market value of the property. Since the property is not being given to "the public" but rather to an individual, you have to ask what the "due process of law" will require in this instance. I think that Due Process must be defined in terms of the Takings clause, such that if the government transfers some value from the landlord to the tenant(s), and makes it impossible for the landlord to take advantage of the value of that property upon alienation, I believe that Due Process must require "just compensation."

These, of course, are just my musings, but I did a cursory search, and the current law does not seem to totally go against my theory. In Midkiff v. Tom, 702 F.2d 788 (9th Cir. 1983), the Court determined that Hawaii's use of eminent domain powers to transfer property from one private citizen to another qualifies as a "taking." This, I think lends strength to the argument that government forced transfer of property (or rights to it) from one person to another, even if not officially through eminent domain, implicates the 5th Amendment rights.

Another case, Rent Stabilization Assn. v. Dinkins, 805 F.Supp. 159 (S.D.N.Y., I think 19??), found against the plaintiff who was trying to call a rent stabilization scheme was a taking for a number of reasons. One thing that came out of the case was that to make a prima facia case of this sort, the plaintiff needs to demonstrate that the administration of the rent control/stabilization law cannot be effected without confiscatory results.

I think a better legal case can be made with more research, but this line of reasoning has potential, I think.

Monday, November 24, 2003

Johnny-Mo's gonna go!
I presume all of my faithful readers are well aware that the jury deciding what sentence to recommend for John Muhammad has recommended the death sentence. There are dozens, probably hundreds, of articles, so if you haven't read any, here's one and here's another.

I heard this afternoon on the WBAL (1090 AM) Ron Smith Radio Show a listener email/rant about the news coverage of the sentancing of Johhny-Mo.

The perturbed listener was upset at the level of coverage given to the deliberative process of coming up with the sentence. Rather, I think a better description of his sentiments was that he was disturbed that there had to be any deliberation at all about recommending the death sentence in this case (or any similar case).

Here's where some might think I sound a bit leftist... don't worry, I'm not... keep reading.

First thing's first, I'm glad that Johnny-Mo's gonna have a chance to discuss his carreer path with his maker at the state's hands. I am convinced that this is the correct and the just result.

I suppose that brings us to the heart of the matter... "Just" results.

America is somewhat undecided about the purpose of the criminal justice system. Some think it is supposed to "punish" the evil-doer. Others think it should reform them.

Our founders clearly thought that whatever the purpose of the criminal justice system, it was not to mete-out cruel punishment. (U.S. Const. Amend. VIII "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.")

I think we can assume that a criminal justice system bent on punishing the criminal until the victim feels better was not the goal. (How often would a person slighted want to exact more pain from the perpetrator than he or she actually received?) Quite simply, I think the goal was and is to find what Justice would prefer.

Most people would agree that Justice would want to, where possible, restore the injured to wholeness, and prevent the criminal from repeating the bad act or perpetrating any other bad act. Often, when a crime is terrible, there is no possibility of restoration for the victim. In this case, what would Justice prefer. An eye-for-an-eye? Maybe. The sure result of reciprocal justice would probably serve to deter some crime, and simultaneously avoid being cruel as compared to the crime. Perhaps Justice does like this. Whether or not it is "just" it surely approaches "fair."

I don't want to go too much farther into the depths of the criminal justice system and philosophies utilized in our nation. I think the important thing is to come back to this case. The jury actually deliberated, and in some cases, agonized over coming to this decision. Whether you think this should be a "no-brainer" or not, you should be proud of those jurors. They took their oaths seriously. In actually contemplating what they were doing they brough honor to the proceedings. Whether you like the death sentence or not, these jurors sought justice in this case.

If you or I ever need to be judged, we can only pray that we too will get jurors who try to seek out a just result.

Yes, Johnny-Mo's gotta go, but we know that he's going where Justice would have him go as nearly as can be told by mortals.
This is NOT legal advice...
Here's an interesting article out of Seattle.

A woman was denied part of her ex-husband's pension because she filed a protective order against him.

This could lead to an interesting result - If you are a police officer in Washington (state), and your marriage is breaking up, perhaps you should smack the spouse around enough that she (or he, I suppose) would file a protective order against you. Sure you'll get fired, but she (he?) won't be able to get any of your pension! If you're ready for retirement anyway, this might be just the ticket!

Seriously though, I think this was probably a bad ruling. If the claim was made in bad-faith to get her (ex) husband in trouble or fired from his job, sure, don't let her have a cent. However, if he really did beat her up (or threaten to do so) then there is no reason she should have to choose between financial support to which she is due according to current law, and personal safety.
Adding injury to insult...
This article tells of a new study that has linked impotence and heart attack.

To me, this just seems like kicking somebody when they're down. I figure if you're gonna die of a heart attack, you should be able to go with a smile on your face. On the other hand if the impotence comes first, some folks might prefer death.

The link doesn't surprise me, but it does seem unnecessarily cruel.

Saturday, November 22, 2003

On average, women paid MORE than men
Believe it or not, I think the facts support this assertion. Before you get your panties in a knot, let me explain. According to this AP article on AZ Central (thanks to MensNewsDaily for the link) women's average direct compensation is about 20% less than for men. One interesting thing about the article was that it pointed out that a study commissioned by two congrespersons, Democratic Reps. Carolyn Maloney of New York and John Dingell of Michigan, men work an aver age of 2,147 hours per year and women work 1,675 hours.

Oh, let's not forget that about 90% of men work full time, and only 20% to 30% of women do.

On the face of it, these facts alone are very telling. The study, no doubt performed by the most elite members of Mensa, made some astute observations. Here is a snippet of the article:

The study could not explain reasons for the earnings difference, but noted that experts have speculated it could be due to discrimination or the decision by some women to forgo career advancement for family-friendly jobs that offer more flexibility and less stress.

"These decisions may have specific consequences for their career advancement or earnings," the study said. "However, debate exists about whether these decisions are freely made or influenced by discrimination in society or in the workplace."

I don't know about you, my fair reader, but I for one cannot BELIEVE that women might forgo commercial life to some degree or another simply to dedicate themselves to perpetuating the species and raising the next generation. In fact I'm indignant (INDIGNANT, I say!) at the very suggestion!

ON THE OTHER HAND... There was this article... It was published on the MSN Money Central / CNBC website, and I don't know that we can trust them... Nevertheless, as long as we will read and trust anything on the web that is supported by some study or survey that the author claims to exist, I suppose this is as close to Gospel truth as the previous article. (That and it's supported by this article on WebMD)

Down towards the bottom of the article, something caught my eye. Here's the last couple of paragraphs that begin to show my point.

But highway accidents were the biggest overall killer in 2002, accounting for a quarter of all worker deaths. Falls killed 13%. Men were still, by far, the most likely to be killed on the job. Ninety-two percent of all workplace fatalities were male.

Among the 441 women who died on the job, though, the chief cause of death was homicide.

Now, for clarity sake, I added a bit of emphasis. Folks did you notice this - 92% of on the job fatalities in the workplace were suffered by males. HMMMM. I'm just going to throw out some thoughts here... Men work FULL TIME about 3 to 4 times as frequently as do women. Men die on the job 11 times as often as do women. If we only imagine that on-the-job deaths are suffered by full time workers, and we think that male chauvenists got into the numbers and tried to make the oppression of women seem less by skewing the numbers and we presume that evil men keep women from working in full-time employment such that men really work full time jobs 5 times more often than women. This means that, as exposure goes, men suffer death at a rate of about 200% greater than women. Now, of course these numbers are somewhat speculative, but they are good for "ballpark-ing" the discussion.

I am starting to think that the fact that the "chief cause of death was homicide" for women's on-the-job deaths might be atrtributable to male coworkers (of course) who either -

1. Were infuriated that the women always leave work early, or don't bother to show up (remember the hours-worked discussion from above) AND / OR
2. Were driven past the bounds of sanity by the constant bitching by women that they are underpaid.

Seriously, though, people get paid to work because they wouldn't do whatever it is if they were not being paid. Along those lines, most people prefer not to directly court their own mortality. Let's do a thought experiment -

Theoretical Job #1 - Neutral gender job applicant is offered a job answering a phone in an air-conditioned professional office. For arguments' sake, we'll just assume that not a lot of job skill is required for this position. How much do you suppose that such a job would pay? In a professional office - just answering the phone? I would guess about $10 - $15 per hour.

Theoretical Job #2 - This job requires about the same level of skill. We'll imagine it's window cleaning... on a high-rise office building. Cleaning a window is NOT difficult. The only bad thing about the job is the potential discomfort of being outside, and the possibility of falling to yor death EVERY DAY that you work. How much do you suppose YOU would require to do that job? Me, I wouldn't do it for less than about $40 per hour plus LOTS of life and health insurance.

Now lets contemplate this a little more. For an employee, the relative compensation they recieve from their job is Money + Perks + (Risk or Pain) Avoided. In our two jobs mentioned above. Because the "risk and or pain avoided" by the telephone answering job was so much greater than in the window-washing job, I would speculate that the "comensation" was relatively similar between the two jobs despite the fact that the pay is drastically different.

If men are willing to take the jobs that risk their lives at a rate of about 11 TIMES greater than womens' lives are risked, work MORE hours, and then only get paid about 20% greater in monetary compensation, I think that mens lives are being undervalued. (We'll ignore the rhetoric from the radical feminists who think that any value for a male life is too much.)

An enterprising class-action attorney might figure out how to make an "equal-protection" issue here so that all men could get paid more. Such a person would quickly cause intense cognitive dissonance in me by epitomizing what I hate about lawyers, and instantaneously becoming my hero for getting me a raise that I, personally, did not earn. (Then again, the remedey might simply be to reduce women's salaries, and although that wouldn't help me, it might provide some amusement value.)

Though what I've written was written with my tongue firmly planted in my (own) cheek, I think that the trends do seem to indicate that mens lives continued to be undervalued in our society. I don't think men are "coerced" into taking dangerous jobs, per se, but I do think that men value their obligations (i.e. providing for the women who decide not to show up for work) highly as compared to their very lives. Right or wrong, I think this shows that men value themselves by how much they can provide. Ironically, a man will see himself as worth more, if he risks his life more in order to earn greater monetary compensation.

Perhaps the feminist propaganda we've been fed for dozens of years in America has been more lie than truth... Perhaps women are already overpaid compared to the occupational risk and work loads that they are willing to assume.

Friday, November 21, 2003

Below are links to two articles. Each one is about a different fellow that could , legitimately, win a Darwin Award.

1. Man who chokes to death on a baggie of pot he shoved down his throat to hide from a cop who stopped to help him change a tire.

2. Man dies after hitting his head on a bridge while "subway surfing."
If this girl...
...ever DOES switch teams, it will be a crime against all mankind! (See this article & picture)
Why the big PUSH?
I'm sure I'm not the only one who has been wondering what is the true reason for the desire to legalize sodomy and for "gay marriage."

I think I've come up with the root of the problem, and with most all of our problems, it was caused by the lawyers!

1. This is a "nation of law" (so we've been told).
2. The "law is a ass" (or so Dickens has said)
3. All lawyers are PRICKS (there is no dispute)

It's all clear now, isn't it?
Possibilities for the future...
We have all seen the reports of the protests in England that the locals threw together in honor of President Bush.

Do you suppose that the next time Tony Blair or any of the Royal family visits the Land of the Free and Home of the Trial Attorney, all of America's Dentists will unite to protest Great Brittian's dreadful track-record of dental hygiene?

Thursday, November 20, 2003

I LOVE this stuff!!!
OK, I know this eradicates any doubt any of you may have had about whether I am a nerd. I must be.

Be that as it may, I've reviewed the exchange as it currently stands between Professors Solum and Rappaport of San Diego University School of Law. Forgive my inability to figure out how to link to a previous point in this blog, but my attempts so far do not seem to have worked, so I won't try now. I have sided with Professor Solum after reading the first volley on the topic from each of them. (See my comments from Saturday 11/15, "About those judicial non-appointments...") (Current state of discussion: Solum's first post, Rappaport's reply, Solum's 2nd, Rappaport's 2nd, Solum's 3rd.)

I was gratified that Professor Solum used an argument that was virtually the same as mine about whether there is a duty to actually give "advice and consent" by the Senate on these nominations, or whether simply ignoring the nominations might also satisfy the obligation. Conceptually, one can argue that the ability to ignore is analogous to the ability of the President to nominate or not. I suppose that's true, but THAT'S NOT THE POINT. I pointed out and Professor Solum also wrote that the PRESIDENT has the discretion here, and once a nomination has been sent to the Senate, they DO NOT HAVE the discretion to ignore it. They only have the discretion (according to the text of the Constitution) to vote "No." Since I wasn't given credit, I will presume that Professor Solum thought up the reply totally on his own (even though it was posted about 6 hours after mine...). ;-)

Professor Rappaport's next entry into this discussion makes a valid point that the Constitution, if it requires the Senate to actually give advice and consent, then it also appears to require the President to actually nominate.

Before we go further, let's look at the relevant text of the Constitution (Art. 2, Sect 2) -

"[The President] shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law[.]"

What the text DOES NOT say "If the president chooses to nominate someone for {whatever appropriate post}, then that person shall be appointed if the Senate decides to consent."

There is a structural argument to be made that the Constitution puts this power under Article 2 which is the article about the Executive Branch, and in section 2 of that article which is about the President's powers. From this, I think the thought that the Senate is acting as an EXECUTIVE DELIBERATIVE BODY when they perform their advice and consent easily (possibly necessarily) flows. Whether they do so pursuant to their own rules or if the President demands they meet somewhere else is secondary. We know that ALL EXECUTIVE POWER of the US Federal Governement is vested in the President (see. US Const. Art. 1 Sect. 1 cl. 1 "The executive power shall be vested in a President of the United States of America.") And we know from case law that, even when a separate executive officer is given specific duties, they are still under the President, even if the President is not supposed to do that act. THEREFORE, the Senate must be responsible to the President in providing Advice and Consent.

One last thought about what "shall" means. I believe the fair reading of the text is that NO OTHER person or entity has that power. That is, the President SHALL have this power NOT anyone in the executive branch shall use this power.

As to whether "SHALL" puts a duty to nominate on the President... Professor Solum has been somewhat timid in addressing this, but I'll take it head on. The answer, I think, is YES, sort of. No one but the President has the power to nominate, and certain offices MUST exist, especially the Judiciary. Nomination ("picking after contemplation") is necessarily discretionary. If a President does not find someone to his liking to fill a vacancy or two on the Supreme Court, there is NOT a Constitutional crisis. However, if the Congress or Judiciary senses a problem in its continued ability to function according to its mandate from the Constitution and Constitutional legislation, then I believe a Writ of Mandamus can issue against the President, and failure to comply would satisfy the requirements for charges of impeachment.

"You're welcome!" to Professor Solum, and "So there!" to Professor Rappaport. ;-) (By the way, if either or both of you ever do read this, THANK YOU for posting this discussion/debate. I'm sure I'm not the only one fascinated by it, and your scholarship in this area has been profoundly helpful.)

Wednesday, November 19, 2003

Question: When does the 2nd Amendment NOT protect the Right to Bear Arms?

Answer: When the ACLU explains it.

Check out this posting by Professor Volokh about the ACLU's description of the Bill of Rights.
Ghosts of Jim Crow
This evening, my school, University of Baltimore School of Law, held one of its bigger events celebrating the upcoming 50th Anniversary of the Brown v. Board of Ed. decision. The event was a lecture given by noted constitutional scholar and, in fact, my Constitutional Law professor, this semester, F. Michael Higginbotham.

The title of this post was the title of the lecture is the working title of his upcoming book. As one might surmise, its focus was on the lingering racial discrimination that the government has been unwilling or unable to remedy.

Let there be no mistake, Professor Higginbotham is an incredible legal thinker, and a great orator. That said, I had grave concerns with the conclusions he led the audience towards. He pointed out inequity, and sometimes, actual discrimination, both from the past (in the Jim Crow Era) and some that lingers till today. The main focus of the inequity that he decried that I could tell was the
"holes" in the anti-discrimination legislation and case law. The anti-discrimination laws do not reach into private clubs and do not control small businesses (fewer than 15 employees, he thought, and I accept as true).

I won't even attempt to argue that there is real and perceived inequity still to be found throughout this nation. That Black-Americans face an uphill battle that is steeper than faced by an otherwise similarly situated White-American, I am sure is all too often true. However, the private club & small business venue for discrimination is, I fear, an exceptionally dangerous place to hunt social gremlins.

To attempt to "cure" racism in private clubs will require a total abrogation of our right to "peaceably assemble." Currently we have a great deal of free association rights. How would one prevent private clubs from discrimination except to FORCE people to associate with those that they are attempting to avoid? I think the fear of discrimination is blinding the good professor from seeing the danger a cure to discrimination would have on the other person's rights. That is, unless we should no longer have the right to have control over our own thoughts...

As for private clubs, there is no more exclusive club (usually) than marriage, and the vast majority of marriages are racially homogeneous. David Bernstein had an excellent discussion of precisely the type of absurdity that the campaign to eradicate private discrimination could have on the Volokh Conspiracy. I cannot imagine that a rational person would not say that forcing people to enter interracial marriages against their will to eradicate discrimination would be just an absolutely absurd thing to do. Nevertheless, I do not believe that you can attempt to force a solution to racism in private clubs without stepping into a degree of exactly this type of absurdity.

Small employers face much the same problem. I cannot imagine that most or even a significant minority of small employers seek out racial purity in their workforce. I suspect that most employment in small companies is the result of personal contact within social spheres. There might be some arguable justification to "fix" small business discrimination, since we are used to regulation of the commercial. However, the cure may kill the patient. Many small business do not have a large budget for seeking out employees. Often the owner/manager knows people in the industry from whom he or she will want to hire, or know people socially with the skills he or she needs. At best a "solution" will require taking risks on more completely unknown quantities. Within social and business spheres, a potential employer can learn about the potential employee's potential and competencies from trusted sources. Outside those spheres, the potential employer must either trust the references or hire an outside investigation firm.

Without going too deep into the intricacies of the problem, I hope you can see how disruptive the solution to suspected racism in the cracks and crevices of our society will probably be. I got to ask Professor Higginbotham about the potential economic damage to small business if a "solution" is required, and pointed out that many if not most of the wealthy minorities in our country have made their wealth through small business, and this cure would unduly burden them. The "fix" to the problem with the solution that the professor suggested was telling. He said that the government should set up a fund to cover the additional costs of the compliance measures.

Either Professor Higginbotham had not thought of the implications of that course (unlikely, since he is an intellectual, but possible), or he likes the implications (scary). This is a "tax America in to equality" scheme. I fear it. Equality in poverty is not what I want. Furthermore, a government fund would require extensive government involvement in delicate business decisions. Quite possibly a bureaucrat will have the power to veto important business decisions for entrepreneurs, and probably put them out of business entirely. None of this even touches on the new types of fraud and corruption that will be fostered.

If you ran your own small business and your family relied on your support, would you not be tempted to slip a C-note or two to the bureaucratic thug to make sure that you could hire the person you feel will actually help your business? You will have become a criminal for trying to support your family.

We'll all be equal in jail, I suppose.

The "Ghost" I see is the disappearing spirit of rugged individualism and self reliance... the Spirit of America.
The problem with gay marriage
I'm, not going to include links in this rant... I might add them later.
There are several schools of thought about gay marriage. The liberal perspective is "every loving adult couple should be able to get married, because that's nice," or some such dribble.

The conservative line is typically something to the effect "marriage has always been between a man and a woman, and marriage exists for forming a social unit that is helpful and appropriate for raising children." This is, certainly more coherent than the liberal spiel, but it still doesn't make a strong intellectual case for reserving "marriage" for heterosexual couples.

The libertarian perspective is intellectually clean and it goes something like, "It's none of anyone's business what two consenting adults do in their own place, and what they do won't change whether you call it marriage or not, and in any
event it won't make one bit of difference to my household."

Intellectually the libertarian perspective is simple and clean and fairly consistent with the "leave me the hell alone" credo that libertarianism seems to exist to advance. The problem is it is too simple. It ignores the social origin of the institution of marriage, and therefore its fundamental purpose for existing in the form that we know.

We will assume argumendo that the Judeo-Christian perspective and understanding of marriage is weaved throughout the history of western culture. (I'm not going to argue the point because I don't have the time and it is simply true, and if you disagree, I invite you to do your own research to disprove this assumption. I shall now continue.)

The Judeo-Christian understanding of marriage is that "marriage" was invented for humanity by God. Adam and Eve were the first lucky couple. They didn't have a big wedding, but they got a prominent deity to preside, so everything was cool. Sexual relations were to be reserved for within the marriage union and served the dual purpose to physically/spiritually/emotionally join the husband and wife together and to propagate the species. Marriage was the FIRST social structure, and is and has always been the primary building-block of all societies since that time. Marriage, therefore has a distinct meaning of a sacred institution developed by God which is fundamental to human society.

Gay "marriage" poses a real threat, but not because of a perceived lack of heterosexual couples to propagate the species, and not because a given committed heterosexual couple will nolonger be able to join similarly to the way they joined before. The threat is the same threat posed by "rightspeak." Some of you will remember the concept from Orwell's "1984." The idea is that if you control the language, then you can largely control the thought-process of the population. The impact of allowing "gay marriage" will be to fundamentally alter the definition of the word "marriage."

"Marriage" will now mean something like, "The coupling of two entities, usually adult humans, who desire an extended period of time in which they might engage in various forms of genital contact and which entitles the parties to benefit from various social and legal presumptions and rights reserved for such couplings."

This definition has taken the God-ordained aspect of marriage out of the equation. It is, in my humble opinion, just the next step in removing all thought of God from society. It is "rightspeak" in the real world.

Those of you with legal backgrounds will immediately see the danger that conservatives face in enforcing the traditional understanding of marriage... It's the Establishment Clause. To avoid establishing a religion, the Supreme Court has instituted the "Lemon Test" which has three prongs.

First, and most important to this discussion, any government must have a primarily secular purpose. Fundamentally, preserving the true and original meaning of marriage acknowledges the traditional Western (Judeo-Christian) understanding of what marriage is, which is acknowledges God. To my mind, this should not be a problem, HOWEVER, the Supreme Court routinely finds that governmental acknowledgement of a religious concept that is fundamental to why the government does one thing instead of another "establishes" religion. For this reason, conservatives have had to frame the discussion in secular terms.

The other requirements of the Lemon Test are that the government's action neither "advance" nor unduly inhibit religion, and that, if the first two are not satisfied, that the government not be too terribly involved with the suspicious activity. (This, of course is a paraphrasing of the Test, but it's pretty true to it's meaning.)

Conservatives cannot, I think, win on secular terms when defending the definition of marriage, because it did not originate as a secular institution. Certainly, there are secular benefits to marriage, but our nation has already decided those benefits are not important enough to protect. Think about it: If a marriage is not important enough to require some justification before a divorce (no-fault divorce), how can it have any secular benefits that are worthy of basing a distinction that would deny the term to other intimate couples?

Damage to kids? - Who cares? It's now all about the fulfillment of the adult individuals' desires and wishes. If a spouse no longer wants to be married, that's all the court requires to dissolve the marriage. The application of the term now rests on whim... how important are those secular purposes for reserving the term for heterosexuals? As for the purpose of creating an appropriate environment for the raising of kids, all the evidence agrees that this is true, but this no longer seems to affect people's actions (perhaps because we've already lost the respect for "marriage" that conservatives wish to preserve), and besides, big-brother will send some cash if you need it.

The ultimate solution will need to be one of two things. The first will, I think, be how we attempt to deal with the issue, though I do not know if it will work. A constitutional amendment will be required to define marriage within the nation. I think it's both a good idea and a bad idea. It's a good goal, but I don't know that, because of the process of passing an amendment , it will be passed. Also, it may not actually do a good enough job of defining marriage. Finally, if the process of removing all thought of God (in a reverent fashion) continues, an amendment will be repealed in just a few years, just like prohibition.

The second solution, I think, is to pick a new word. Regardless of what benefits the governmnet wishes to bestow on cohabitating adults of varying constituencies, conservatives cannot allow the proper concept of marriage to be eradicated. I would advocate "Kiddushin" or "Kiddushin-marriage." The reason I would suggest this is that "Kiddushin" is a word of Hebrew origin. It will signify a religious connotation, and will probably never be co-opted by the government.

If the goal is to keep gay couples from being able to benefit from the Social Security system or from being able to visit each other in the hospital against the wishes of blood relatives, I firmly believe that those who wish to prevent gay marriage will not succeed in the long run. On the other hand, if the goal is to preserve the respect that marriage is supposed to show our creator, then we can choose to do so regardless of what the godless choose to do. However, to do this will require a concerted effort of many churches and synagogues.

Of course, all of this discussion is the result of a second-year evening law student. I suppose it's possible that there are other legal concerns about which I know nothing.

Tuesday, November 18, 2003

If you can't beat 'em...
...Get a bigger gun! For all of you out there who have an interest in fairly reliable unclassified information about various weapon systems to be found throughout God's green Earth, visit here. There are, of course many other sites, if things that go "boom" interest you, but I've always liked GlobalSecurity. Enjoy.
Man taunts atmosphere & ocean... Gets come-uppence
What pessimist couldn't see this coming? A kitesurfing Kiwi (individual from New Zealand) was blown out of the water, over some trees, and onto the roof of his own house.

NOTE: For law students who may read this, this would be one of the few cases where, if it had not been his house, a person could be on another's property, and even cause damage without being liable for trespass.

He stopped his inspired motion when he came to rest on his fence. (Ouch!)

I loved the neighbor / witness quote, "He was quite high above the ground. I thought 'where is he going to end up?'"
Need help saving for a house?
Bankrate.com has been compiling a list of, well, unique ways to save money, and has put this article together detailing 20 of the more bizarre ways that people have related to them.

Is it just me, or do any of you also see the first tip as ironic? Wedding flowers on the cheap scavenged from a nearby cemetery...
Are you overpaid?
If divide the hours actually worked by the income you receive, you're probably doing better than you thought.

However, the Always-On Network folks have developed a more thoughtful and general list of merely the slackers you can think of in your office. This article, "Then most overpaid jobs in the US" is moderately interesting.

See if you can find yourself, someone you know, or the person you aspire to be in the list!
Use it or lose it
I heard Dr. Dean Edell this morning. He indicated that a new study (I'll add a link as soon as I can find one.) recently found that people who remain mentally active do not develop Alzheimer's Disease as early as those who are more, ahem, mentally inert.

Since you are reading my thoughts, I can see that you are concerned about your future mental health. I commend you.

In any event, the study seemed to indicate that well used brains actually work differently than the more sedentary ones and that difference in operation seems to provide the resistance to the disease. That's something to think about.
What's the point?
For those of you who live in Maryland, you know that 4 out of 5 days in a given school week, Caroline, Kent, Queen Anne's, and Talbot countyies will delay their start by 90 minutes.

Why do the rest of us have to hear about it? I would suggest that they just plan, as a matter of course to simply shift their school day back by 90 minutes.

Of course, that would make too much sense to be implemented.
Moose sighting in Minneapolis
Local Interest: Mose of you are familiar with (former) Chief Charles Moose of the Montgomery County Police Department. Most of you also know that he resigned over the summer in a dispute with the county ethics board over his plans to make near-obscene royalties off of his book.

It appears that unemployment wasn't his thing. Or perhaps his publisher wanted a sequal, who knows. In any event, this AP article from NewsObserver says that Mr. Moose is applying for the top cop job in Minneapolis MN.

Monday, November 17, 2003

First Fathers' Rights Post
I mentioned that I would, at some point, and be warned, periodically, post about fathers' rights. My first post is pretty much not the type of post I will normally want to make.

MND had a link to this AP article published in the Detroit News. The title, "Man denied custody of biological child" seems shocking and outrageous enough to get my righteous indignation jump-started. The facts as related in the article are not sympathetic as a fathers' rights issue.

Briefly, the bio-dad had an affair with the mom while they were neighbors, and the married-to-mom fellow and the mother want to preserve their marriage, but bio-dad wants to get in to be involved with the child's life.

NO! He does not deserve any time with the child as a matter of law or equity. As a matter of law, the child was born into a married household. The Bastardy Statutes declare that the child belongs to the husband and wife. Period. End of legal story.

Equity would say even more. Bio-dad engaged in adultery with the married mom. Certainly, from everything we can see, mom is no less guilty than bio-dad. However, mom's sin was against herself and her husband. Since her husband wanted to keep her and she was willing to return to him, their marriage is the paramount relationship here. Bio-dad and mom conceived the child in what used to be a compensable tort (criminal conversation), and so an equitable action (remember the law will not side with him, as discussed above) will not favor his position. (Remember: You need to have clean hands when you come to equity.)

The point of all of this is: This is a case where on man did a despicable thing, he engaged in adultery with a married woman. A child resulted. The woman wanted to return to her relationship with her husband, and he took her back. Now the bio-dad wants to continue to inject himself into the lives of a child who only needs to know the mom and the man who acts the part of dad and husband in the family, and that family.

This creep, the bio-dad, is being short-changed out of the life of his bio-child. So what. Law and equity prefer that if a man wants a relationship with his child, he needs to be (and stay) married to the child's mother. If anyone comes across this article or any one like it, don't be confused into thinking it's a "fathers' rights" issue. It's not. It's a "creeps-who-want-to-continue-to-cause-pain-to-innocent-parties rights" issue.

Me, I'm all for fathers' rights, but I will have no part in supporting this kind of scum.
An idea who's time has come!
I don't know why this has taken as long as it has, and I'm glad they are finally using it! The Miami Herald has this article about the Israeli military's newest toy, a remote control bull-dozer!

Apparently the Palestenians are miffed about the whole Robo-Dozer thing. I suppose if you're house / terrorist base-camp were about to be leveled, you would at least want the opportunity to take a pot-shot at the driver. The Israelis just don't want anybody to have any fun!

Honestly, though I think it shows a supreme respect for life. Why risk an Israeli life if you don't need to? And if the Palestenians don't want it to come a-knockin' all they have to do is STOP shooting and blowing-up Israelis! Heck, I bet the Israelis would be generous enough to refrain from using the thing IF the terrorists would only target the military and leave innocent civilians (especially children) alone.

What a novel thought... if you stop trying to hurt a group, perhaps that group will stop retaliating. Quick, somebody tell Brad and Jen! If this wild-and-crazy idea works, perhaps somebody could pass it along to the morons, er, pyrotechnically-inclined-political-protestors, in Baghdad!

Saturday, November 15, 2003

About those judicial non-appointments...
Thanks to the Conspiracy for the heads-up about the blogsphere-debate that Professor Solum and Professor Rappaport (both of San Diego University School of Law) have started.

Professor Solum makes a strong argument that the President has an ace up his sleeve of which he may not be aware. I like the possibility a great deal. A textual analysis of the Constitution supports the suggestion that the President can call the Senate into Executive Council for the express purpose of getting advise and consent on the judicial nominees. An additional bonus is the text of a letter written by President George Washington about the possibility of calling the Senate into Executive Council. President Washington made an astute observation that, in performing the Constitutional duty of advice and consent as to Judges, and certain other positions, the Senate is serving as an EXECUTIVE deliberative body, not a legislative one.

Professor Rappaport counters with noting that perhaps there is not really a DUTY to provide advice and consent. I'm not persuaded by his argument. There is a certain amount of logical sense to saying "If they can say 'yes' or 'no' and we are allowed to set our own procedures, then we don't have to say anything if we don't want to." He makes an interesting point that the president may choose not to fill a particular vacancy, and analogizes that, similar to not submitting a nomination, not providing advice and consent is discretionary on the particular body. He also points out the sticky little historical problem with Professor Solum's position - the tactic discussed has apparently NEVER been used.

With due respect to Professor Rappaport, I am persuaded by Professor Solum's argument. There is a distinction, I think that can and should be made when deciding where and how deeply discretion for a given body is regarding a particular manner.

Undoubtedly, it is within the legislature's discretion to establish lower courts and various executive agencies. The President has discretion on nominations. Although, admittedly a razor thin distinction, I believe that there is a real difference between not nominating a person for the judiciary, and not giving advice and consent on someone so nominated.

If the nomination/appointment process is fundamentally an executive process, then the process must be completed if, in the discretion of the President, he has nominated someone for that position. If, as President Washnington believed, the advice and consent of judges is fundamentally executive, then the executive must retain some control over the process. Marbury v. Madison tells us inter alia that when a duty is placed on the executive branch, their discretion is lessened. Analogously, when the constitution allows the executive, a co-equal branch, to give the legislature a duty, their discretion is likewise diminished in that regard.

The historical argument that Professor Rappaport makes also has weaknesses, I think. It is true that the Constitution grants to each house of Congress the ability to establish its own rules. Just like some laws are facially unconstitutional, or may become so if improperly applied, and therefore must be set aside, the respective houses may improperly use a rule of procedure to violate a provision of the Constitution. Using the filibuster to avoid a Constitutional duty is, in my humble opinion, just such an instance.

To my (admittedly limited) knowledge, the filibuster has never been employed for lower Article III judicial nominees. It may not have ever been used on a Supreme Court nominee. From what I understand, the indignation that the Democrats have been showing over the Republican protests about the filibuster are fundamentally flawed. Sure, President Clinton didn't get a significant number of his nominees, but they got their advice and consent VOTE! There is a PROFOUND difference between not getting consent, and not getting a vote to determine whether there is consent.

I've previously discussed my thought that a Constitutional Amendment might be in order to set an upper time-limit on the process to get a vote. On second thought, I think it might be appropriate to state the guidelines for granting that consent (judicial temperament, experience, ability to manage a court, etc., but not any political litmus test). However, Professor Solum makes the argument that perhaps the logical demarcation is the end of the legislative session. This could be problematic, I suppose, if the President used the last week of the session to submit a bunch of nominees. To be honest, it wouldn't bother me if a non-vote after a certain amount of time was taken as a no-vote, so long as procedural rules were not used to deny a vote.

I suppose I've ranted on this topic enough for now. Seriously, I would like to know what you all have to say about this, too.

Friday, November 14, 2003

Life imitates art, er, not quite
I found this story and I couldn't help but think "Eww!"

Then again, haven't we all been told that the human body is a thing of art?


If you've ever had a day when you didn't feel just like yourself, you'll be able to sympathasize with this lady.
When you don't know who else to call...
Some folks just are not all that bright. It does, however warm the cackles of my heart when I learn of a kid reaching out to others to get help with his school work.

Sometimes, unfortunately, stupidity seems to exist for its own sake.

Moore Discussion
There's lots of stuff I want to say about the injustice handed down to Chief Justice Roy Moore yesterday, but I'll keep it relatively short.

I think that Justice Roy Moore was correct in most of his argument, and, after reading Glassroth v. Moore, 335 F.3d 1282 (2003). I am convinced that my original supposition of Justice Moore's intentions was incorrect, but that Justice Moore was still right.

My thought was that Justice Moore wanted to have a monument to one of the most important pieces of text in the moral foundation of American jurisprudence. No one who knows anything about American History can deny that, really. As such, the 10 Commandments monument was entirely appropriate.

I was apparently wrong. Justice Moore was, I now think, really trying to force an acknowledgement that the God responsible for the 10 Commandments should be acknowledged as the foundation of our sense of morality and justice, and hence that the God revered by Jews and Christians is the foundation of our nation. Again, history bears this out.

Unfortunately, the current state of our jurisprudence requires the three prongs of the "Lemon Test" (see Lemon v. Kurtzman, 403 U.S. 602, (1971).) be satisfied. The first prong is that the government action have a primarily secular purpose. The second is that the action neither unduly advance nor inhibit any particular religion. The third is that the government not be excessively entangled in the action (if it fails either of the first two prongs).

I believe that Justice Moore was attempting to get the issue in front of the US Supreme Court to (maybe) get the US Supreme Court to redefine the test (see here). All of the currently sitting justices have criticized the Lemon Test, and it has not been used since 1985. The time is probably right to revisit the issue. I think it would be entirely appropriate to refine the definition of what the Establishment Clause requires or prohibits.

Does an acknowledgement REALLY establish a religion? I think not. Does having a time and place free from religious references establish atheism as the state religion? I think it does to the same extent that a monument to the 10 Commandments establishes some religion (Christianity or Judaism, presumably).

Currently, the status of the "separation between church and state" is that government action must usually disrespect religion , especially if it is Christianity or Judaism. (Apparently too many people cannot distinguish between "...no law respecting the establishment of religion..." and "all law must disrespect the religion that was dominant when this nation was established.") Certainly the founders did not intend this turn of events.

I think that Judge Moore could have won his challenge if he had kept his legal argument (and his external rhetoric, since that was included against him as evidence of whether the monument had a primary secular purpose) about how the 10 Commandments is foundational to our understanding of "justice." Having the monument in the original Hebrew might even go further to do precisely that.

In any event, I think Judge Moore knew that his challenge violated the current test. What is a shame is that he was removed from the bench from exercising his right to challenge case law that may, actually be ripe for re-interpretation. Look forward to Governor or Senator Moore coming soon from an Alabama near you.
Mea Culpa
Sometimes humor doesn't translate well in text. The friend who happens to be a Baltimore police officer that I referenced below was disapointed at my elipsed quote. I anticipated that the elipse would indicate that "we can still beat you!" was not the extent of the conversation.

For propriety sake, the context of that statement had to do with searches of stopped vehicles where a person does not consent to a search of the vehicle. While indicating that, if the officer could get to search the vehicle if he (or she) really wanted to, thereby "beating" the objection of the stopped motorist, my friend paused unexpectedly because of events in the area. This caused all of the other law students to whom he was speaking to burst into laughter at the thought of a motorist getting stopped, asked for consent to a search, denying that consent, and then being beaten since the cop apparently did not need consent to beat the motorist. Of course, my friend meant, and after the pause stated, that the officer could call for a K-9 unit, and if the dog alterted on the car, that would be sufficient probable cause for a full non-consent search. of the car.

All of that to say, I do not believe that it is actually a policy of the Baltimore Police Department to beat people, or even that it is considered permissable. I appologize to my friend and any other officer who might have been offended (and felt like beating me) because of my attempt at humor.

Now, for those of you who are not lawyers, cops, or law students, not only have I corrected a possible misinterpretation about how police operate, but I have also presented about half of one class lesson on 4th Amendment jurisprudence... you're welcome, Nevertheless, on a test, I "can still beat you!"

Thursday, November 13, 2003

More Health Advice for Those Who Care
I had mentioned before that there are particular things you can do for your health. It turns out that there is a supplement available that might help in the performance, or at least it might tend to reduce the selectivity in deciding to do those particular things.

Now it turns out, that particular supplement has its own health benefits.

I sincerely hope that scientists continue their valuable research in these important areas. I have a couple of ideas of things I, and most other guys, think should be found to be healthful, but I'll wait for the studies before blogging about them...

Here's to your health!
Endorsement for Billy
This article in the Atlanta Journal-Constitution says a Chinese suit manufacturer wants to hire Bill Clinton to endorse his suits.

This statement by a company official boggles the mind:

"Our suits match Clinton's character and personality."

I suspect that means that they conceal a great deal, refuse to indicate the true price until after you are committed to getting it, and has an appearance that keeps you from noticing any NEW stains.

I can just imagine the slogan, "Our Suits did not have slave-labor relationtions with our nameless workers!"

It does make sense, that in exchange for the secret guidance technology that Clinton gave to the Chinese, that they would have a great deal of affection for the man.

Bush, not to be outdone by Clinton...
...apparently also had a rape accuser. I have no idea whether she also has big hair. Who would have imagined that Bush's accuser had, ahem, stability issues (article here).

You woulda thought that with all the GOP money, Bush would have been able to find an accuser who had enough credibility to sustain a harassment suit as well as Slick Willy's did. I guess Clinton really was better at some things.
Bane of the Blogsphere
This is a small example of what all of us bloggers fear the most!

It's an example of the double-edged sword that the Internet is. We publish for the whole world, but people we know might ALSO find out!

Ten or more years ago, who would have thought that politics would have become one of the safer topics?
Expansive Rights in the most Geometrically Restricted State, etc.
Professor Volokh, in his typically wry but astute manner, has found an interesting right (or was it a responsibility) in the Rhode Island Constitution and his comments are here.

Personally, I'm in favor of viewing the provision as an obligation to be enforced with criminal sanctions. Any group of people who are firmly convinced that a geographic area the approximately the size of my closet should be a sovereign state deserve the laws they write for themselves.

When contemplating police action, I often contemplate what one of my best friends and classmate at UB Law who happens to be a detective for the Baltimore City Police Department said, "...we can still beat you!"

He's recently been transfered to working with the FBI on a Homeland Defense team. I feel safer knowing he's protecting us with the expertise of the Balto-PD on issues of national and international importance. (I hope he beats THEM, not me.)
Showdown in the Senate...
...or, a pointless exercise in mediocre politics... You're free to decide what you think about the current 30 hour marathon session in the Senate. Personally, I like it because it, if done properly, makes the Democrats show how obstructionist they are. That said, the Blogsphere is ripe with comment on the topic. Professor Bainbridge had a pretty-good analysis from a game-theory perspective of the current state of affairs.

The analysis is a comparison to "chicken." Which Professor Solum points out is not necessarily a good analogy. The main drawback, as is noted, is the lack of a "terminal outcome" should one side or the other not give in.

I don't know what the appropriate "game" would be but to me it looks a lot like an arms race. One side acts... the otherside misinterprets the action based on their own perspective and sensitivities, and then overreacts in retaliation, and the cycle repeats. So long as it is feasible to continue the escalation, the game will continue. When (in the arms race) the technology became too difficult to overcome and or the cost of playing got too high, the Soviets had to concede defeat. At no time was a "hot war" ever declared between the major players. All "hot" confrontations were played-out between proxies.

I think this is a pretty good analogy. Up until now, the "cost" of obstructing the votes was minimal, and the injury was not really felt by either side. Lets face it, the Executive and Legislative branches are political and must stand or fall by election. The Judiciary and the portion of the public that depends on the Judiciary was the party that was primarily injured. (The nominees themselves were largely treated as collateral damage, I think.)

The log-jam has arisen because, instead of using the power to disrupt the appointment process to leverage an advantage out of the party in the White House, the disruption has become the point. Now the Administration and its party in the Senate are backed into a corner. The most likely interpretation of the current state is that the minority party intends to force the majority to accept only the nominees that they want. Perhaps this is really true (probably) perhaps it's just a lot of posturing to show that the minority still has a voice. Whatever the minority's actual point, they are being interpreted as a real threat to the goals of the majority.

This 30 hour thing is a ratcheting in the escalation, but not by much. The way to "win" if this is the appropriate analogy, is to "outpace and outspend" the minority. To a certain extent spending is in dollars. In politics, however, the cost is measured in "political capitol" (I'm not sure what denominations it may be found in...). I don't have the answer, but I can say that the majority will have to make it too costly for the minority to win, if they continue to play this game.

I suspect a "clean win" is possible if the public turns on the minority after viewing the obstructionist tactics. That won't happen in a large enough degree. I suppose the majority can do an advertising blitz, and perhaps it should. Nevertheless, the struggle between the parties will continue to be tit-for-tat and largely by proxy since absolute victory (total collapse by the losing side) is not foreseeable. Since this appears to be the likely continued state of affairs, I think that the "Nuclear Option" is the only choice that will solve the problem.

When I say "Nuclear," I mean a Constitutional Amendment to require a timely "advise and consent" vote in the Senate on each nomination (I would suggest 90 days but no longer than 180 days.) This would take the judicial nomination process off the table for either side. It wouldn't stop the tit-for-tat politics, but it would move it to a different arena. Since the nominations are in the hands of the other two branches, the judiciary should not serve as the Vietnam War. Neither side has enough to lose until we are all injured to too great a degree.

Wednesday, November 12, 2003

I've been a sushi fan for quite some time. I'm not sure exactly what to say about this story, however.

If nothing else, I'm sure it's a real dining experience. Do you suppose they'll offer carry-out or home-delivery?

If you've got your health...
...you've got everything, or so the saying goes. This article about a recently released study tells us that, chances are, if you're healthy, no matter what, or how much you've got, you're probably getting some...

This year, do what it takes to stay healthy. Okay?
This does NOT involve Britney...
I love the title of this article, "Girl Scouts hunt beavers and fur flies" from the Washington Times. Animal-nuts are now picking on the Girl Scouts... next thing you know, somebody will claim that their cookies are bad for us too!

In other news... It appears that Senator Frist has found some biological evidence that he is male, and is FINALLY doing what needs to be done. Personally I would like the Whitehouse to press the issue and sue the Senate in the Supreme Court to get a ruling on the Constitutionality of failing to give an up-or-down vote on a simple majority basis for the President's Article III judicial nominees.
Women aren't the only ones...
If you didn't see this, the Washington Post has found what we must fear the most! Apparently, the inability to contemplate rational thought when spending money (See, "They're INSANE" or just go to this article.) is not limited to women (and men sometimes).

Good grief!
Upcoming Probable Postings
1. Fathers' Rights - One of my pet-topics is "fathers' rights," so you can expect to see this as a repeated topic. Although I'm not divorced, and I don't ever plan on being divorced, the plight of fathers is important to me. What I find especially important is the level of abuse fathers take at the hand of the family (kangaroo) court system.

2. Polygyny - I suspect that this will really make me popular with the NAGs (if you don't know who they are, see "They're INSANE" posted 11/11/03). One thing most people accept without question is that the ONLY moral form of marriage is 1 man + 1 woman, but where did this idea really come from? (hint: Sounds like, "Pegan pre-Christian Rome") Since the American sense of morality is a derivative of Judeo-Christian morality, what does the Bible really say about having multiple wives? (It may surprise you.) Also, is the modern marriage (1M + 1W) the optimal arrangement arrived at by years of experience, or does it really encourage many of our social ills?

3. Necessary & Proper - I personally believe that this is the most thoroughly and flagrantly violated provision of the Constitution. Most of you know that our Federal Government is one of "enumerated powers." This means that it has great authority in a FEW areas. The "necessary & proper" clause has allowed the power of the Federal Government to expand far beyond what (I believe) the founders envisioned. I have a jurisprudential theory on how "necessary & proper" should be interpreted that could revolutionize how our government functions and simultaneously create flexibility, cut the "dead wood," and increase our "return on investment" in our government.

I hope this gets you licking your "intellectual chops." I know I'm looking forward to researching these topics and presenting a full discussion, to the extent of my ability.

Don't worry, I'm not going to stop adding various posts of topics that catch my fancy (...like this, who hasn't had this experience? ...or this, which shows that yet another avenue of potential fame now appears closed to me...) as time goes along.

BTW, if there's a topic that is of burining interest to you, send me an email, or leave a comment. I might be interested enough to look into it for you.

Tuesday, November 11, 2003

Statement for Veterans' Day
Below is the statement that I wrote on behalf of the University of Baltimore Republican Caucus. It's a statement that I feel needs to be made. By the way, no disrespect is meant to any service personel. It is my understanding that all military personel are "soldiers" except for Marines, so I referred to "Soldiers and Marines."

To All Who Have Served Our Nation, or Have Supported Someone Who Has, The UBRC Salutes You
As we approach Veterans’ Day again, the important sacrifices of those who bear the mantle of protecting American interests is especially poignant this year.

Saying that “Freedom is not free” is a mantra that is so oft repeated that it has lost nearly all of its ability to convey the truth that it represents. Some might raise the objection that America has become too comfortable to be able to comprehend the cost of freedom. This, though partially true, is more a fact that should serve to warn us than to indict us.

America is made great by every person who gets up and plays a part. From the line worker, to the entrepreneur, to the mother who has chose to dedicate her time to her children, we, the people of America, make the nation what it is. We make America worth fighting for.

The Soldier, and the Marine are different, however. These men and women have dedicated their lives to ensuring that the rest of us can do that which makes America great. Our nation is not great because we have the best military machine ever in the history of humanity, rather we have the greatest military because our nation recognizes that what we have in America is too precious to risk.

The life of the Soldier, and that Soldier’s family, unfortunately, rarely reflects the importance of the task the Soldier is appointed to do. It’s not about money. For the Soldier, it is always about “Duty, Honor, Country.”

This year, the turmoil in the world is great. So many of our men and women are serving our nation’s interest on foreign soil, and so many people refuse to comprehend the importance of the sacrifice that the Soldiers and Marines are making on our behalf. The UBRC will never forget the debt of gratitude that all of America owes to the Soldiers and Marines who have and are now serving our nation.

To the Soldiers and Marines: We cannot stand beside you in the trenches, but we know that you are well equipped to accomplish your task. What we can do is make sure that your effort is not in vain. We shall continue to make America great. We shall support you with our voice, in public and private discourse, and we shall remember you in our prayers.

The job you do, you do for us. The lives we live, we live because of your sacrifice.

God bless America, and God bless and protect each one of you. May He aid you in each assignment you take, and may He bring you home safely and soon.

We salute you.

Teaching Children What's Right
A friend of mine sent this to me. I found it both funny and illustrative. Some of you may have heard/read it before.

To my friend, thank you, and if you want me to publish your name as the source, just say the word, but lacking that, you know who you are and you know I appreciate you sending me this joke. -

A Father-Daughter Talk

A young woman was about to finish her first year of college. Like so many others her age she considered herself to be a very liberal Democrat and had grown to be in strong favor for the distribution of all wealth in America. She felt deeply ashamed that her father was a rather staunch conservative which she expressed openly.

One day she was challenging her father on his beliefs and his opposition to higher taxes on the rich and more welfare programs. In the middle of her heart felt diatribe based upon the lectures she had from her far left professors at her school, he stopped her and asked her point blank how she was doing in school.

She answered rather haughtily that she had a 4.0 GPA, and let him know that it was tough to maintain. That she had to study all the time, never had time to go out and party like other people she knew. She didn't even have time for a boyfriend and didn't really have many college friends because of spending all her time studying. That she was taking a more difficult curriculum.

Her father listened and then asked, "How is your friend Mary." She replied, "Mary is barely getting by", she continued, "all she has is barely a 2.0 GPA" adding, "and all she takes are easy classes and she never studies."

But to explain further she continued emotionally, "But Mary is so very popular on campus, college for her is a blast, she goes to all the parties all the time and very often doesn't even show up for classes because she is
too hung over."

Her father then asked his daughter, "Why don't you go to the Dean's office and ask him to deduct a 1.0 off your 4.0 GPA and give it to her friend who only had a 2.0." He continued, "That way you will both have a 3.0 GPA and certainly that would be a fair equal distribution of GPA."

The daughter visibly shocked by the fathers suggestion angrily fired back, "That wouldn't be fair! I worked really hard for mine, I did without and Mary has done little or nothing, she played while I worked real hard!"

The father slowly smiled and said, "Welcome to the Republican Party."

They're INSANE!
Well maybe that's not quite what scientists recently found as reported in this article. I loved the opening sentence, so I've included it below:

"Men have long suspected it, but scientists have proved that women are incapable of rational thought during a shopping spree. "

I suppose that if the women aren't actually "insane," the men who have to work to support them tend to approach it when the bills arrive.

Oh, geez, I'll bet I've just pissed-off the NAGs (National Associaiton of Gals). I'm scared now. I hope that if they chase me down, I'll be able to run past a store that sells "sensible shoes" and escape while they melt their plastic in a dazed stupor.

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