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Happy 61st birthday to William Bennett, former U.S. Secretary of Education and drug czar. |
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Happy 61st birthday to William Bennett, former U.S. Secretary of Education and drug czar. |
Happy 61st birthday to William Bennett, former U.S. Secretary of Education and drug czar.
BREAKING NEWS!
The Smoking Gun has uncovered a videotape of Milbarge hacking into our servers and changing his readership numbers. As that violates Rule 12.3(a) of our contest bylaws, we unfortunately have no choice but to disqualify Milbarge from the competition. Thus, Wings & Vodka emerges as the champion, and he will be sticking around to blog with us for the rest of the summer. Congratulations.
And a special thank you to all who participated in Survivor, whether as contestants, commenters or readers. We'll do it again, but not too soon.
When I read this AP piece in the Houston Chronicle, I was outraged. The state just gives alleged crime victims money? in amounts like $20,000 for sexual assault? Perhaps people ought to receive monetary compensation without having to pursue a civil trial (particularly against defendants without financial resources), but shouldn't they have to prove their allegation first?
Defense attorney Pamela Mackey certainly put it in an ugly light, saying that the accuser "has profited to an enormous amount, $20,000. I would suspect to most people in this county is a lot of money, most of our jurors, and she has done that on the basis of a false allegation and has persisted in that false allegation."
Then I read the longer, updated AP piece from MSNBC.
The state Victims' Compensation Fund is financed with fees paid by people convicted of crimes. It is used to cover crime victims' medical and mental health treatment, funeral or burial costs and other related needs. State law caps overall compensation to $20,000 for any single victim or victim’s dependents.Of course, this makes the money sound very different. It's one thing to receive something like a windfall from the crime lottery, to spend on any frivolity; it's quite another to receive state aid in restoring home, health or peace of mind after suffering an assault. If Bryant's accuser cannot succeed in proving her case, even in the lower-standard-of-proof civil courts, she ought to have psychological therapy, whether it helps her survive the assault or (if the assault did not occur) helps her realize that her complaint was not legally true.Karen Steinhauser, a former prosecutor and visiting professor at the University of Denver law school, said she doesn't believe compensation funds have ever been an incentive for somebody to lie to obtain services.
"If someone were physically injured and required surgery or had to get new glasses or get new locks on their doors, compensation would go to help with that," Steinhauser said. "The fact that her injuries may be more psychological shouldn’t make it so that this now gets used against her."
I mostly avoid the news about celebrity trials and missing white females, despite their popularity in the media, because these stories rarely mean anything. The drug addiction of Robert Downey Jr., the murder of Jon Benet Ramsay, are merely unfortunate, not important; for outsiders, they have little or no lasting significance.
O.J. Simpson's trial was interesting mainly because of the judge's loss of control -- a mistake that District Judge Terry Ruckriegle, who presides over the Bryant trial, seems to be repeating.
District Judge Terry Ruckriegle released a partial transcript of the closed-door hearing after being pressured by the Colorado Supreme Court and U.S. Supreme Court Justice Stephen Breyer to settle a First Amendment fight with the media. A transcript of closed hearings on June 21-22 was mistakenly e-mailed to seven media organizations, including The Associated Press. All held off on publishing the contents while they challenged a contempt of court threat from the judge.Yes, the day has come when we see "Kobe Bryant" and "Stephen Breyer" in the same news stories.Ruckriegle did not release the June 21 transcript in its entirety and no details at all from the June 22 hearing, which focused on the accuser’s sexual activities around the time of her encounter with the Los Angeles Lakers star.
A sealed filing in the case also was mistakenly released Wednesday. The order, which included the accuser’s name, appeared on a Web site where public filings are posted as a convenience to court staff and the media.
Hearsay:
so, uh, the Clerk is baiting you on another child pornography case... the girls are from my high school. That judge gave us the "drive carefully, or I'll keep you from driving until you're 18" speech when we all received our licenses. Sigh.Clerk's words:
Earlier this year PG of De Novo and I had a bit of debate about child pornography charges lodged against a teenage girl for photographs that she took of herself. I think such charges are likely illegal, while PG seems to think otherwise. Now I see yet another instance of such prosecution has arisen.
Clarification: In both the case previously examined (Latrobe), and in this new one (Roanoke), I oppose charging the teenagers who photographed themselves nude with production and possession of child pornography. I explained why in my De Novo post.
A primary justification for charging the Latrobe girl with dissemination is that she did it so indiscriminately, sending pictures to people she met through chatrooms. This presumably is how her offense was discovered: either a law enforcement agent lurking online got her to send a picture, or her photos were found in the child pornography cache of someone who got caught in a different case. She therefore made it likely that someone to whom she sent the pictures was an unknowing and thus unwilling recipient of child pornography, instead of legal adult pornography.
The dissemination facts in the Roanoke case are very different. These two girls took topless photos of themselves and sent them to their boyfriends. The initial and intended recipients of the pornography were themselves minors (I assume from their being high school students, and not being prosecuted as adults would be), and knew that the people depicted in the photos were not adults.
The boys decided to forward the pictures to all and sundry; they even appeared on Internet pornography sites until one girl's mother discovered this and informed the websites that the photos were of minors, at which point the photos were removed. Had the boys kept the photos to themselves, they never would have been discovered unless the boys got caught in a separate case and their computers were seized.
I agree with the Clerk that prosecution of two young women who sent child pornography only to knowing recipients, and who did not intend their pictures to be widely viewed, is wrong. An issue that he does not address, however, is the prosecution -- or rather, lack thereof -- of the girls' boyfriends. (Curmudgeonly commenter "Ken" does note this disparity.)
According to the news story, "Only one boy who received the pictures was charged with possession of child pornography. That charge was taken under advisement in May and will be dismissed if he stays out of trouble."
I have trouble not seeing this as an example of sexist prosecution. Charging the girls for being dumb enough to trust their boyfriends, while essentially letting the boys off for having turned their girlfriends into internet pinups, is a complete misdirection of blame. The pornography had no potential to do harm when it was a private matter between two girls and their boyfriends, but once it began to be circulated publicly, the likelihood of trouble increased -- with its most obvious manifestation in the ability of law enforcement to have discovered the photos.
But consider the other consequences. Every person who has those pictures on his computer may now be charged with possession of child pornography, even if he is unaware that the persons depicted are minors. The girls who produced the photographs didn't cause this; the boys did.
Conclusion: The Clerk and I reach essentially the same result in this case (the girls should not be prosecuted), but for different reasons. I think we are both being consistent.
Paralleling child pornography to statutory rape, the Clerk sees no reason why the minor involved in the former should be subject to prosecution, while the minor involved in the latter is not. He gives a good reason for why statutory rape victims should be free of the fear of prosecution: "By criminalizing the conduct of the victim of the crime, the state may discourage future victims less willing to come forward."
As I said in comments to my earlier post, as long as adults are prosecuted on a strict liability basis for mistaking children to be adults, children should bear responsibility for having done their best to appear as adults. A statutory rape "victim" who produced fake identification and otherwise went to some effort to convince her partner that she was an adult is hardly likely to come forward about the crime (unless she does so for reasons of vengeance), any more than a high school boy buying liquor with a fake ID is likely to turn in the retailer he successfully fooled.
Simply because minors are never prosecuted in statutory rape cases, no matter how much they deceived their "abusers," is not a justification for extending this injustice to child pornography cases. On the other hand, minors who did not, whether through action (fake IDs) or negligence (failing to notify), mislead others into mistaking their ages should not be held responsible for any crime, which is why I disagree with the decision to prosecute the Roanoke girls.
Today in History (1971) - The 26th Amendment to the U.S. Constitution, lowering the voting age to 18, ratified as Ohio became the 38th state to approve it.
Regarding this amusing parody of the song "This Land is Your Land," and the unjust, if legally warranted lawsuit against it, I think Professor Volokh gets the fair use analysis completely wrong:
JibJab's work does far more than "partly comment[] on the song." It lampoons the idealistic notions of American unity in the original song, throws in a comic, but scolding, reminder that "this land" isn't really the land of Native American's anymore, and contrasts the silly geographical themes of the song with our childishly divisive political climate.
Does Volokh expect JibJab's work to convey scholarly commentary? Perhaps a refresher on Campbell v. Acuff-Rose is in order. Defendants, 2 Live Crew, parodied "Oh, Pretty Woman" with these lyrics (excerpted):
Bald headed woman girl your hair won't grow
Bald headed woman you got a teeny weeny afro
Bald headed woman you know your hair could look nice
Bald headed woman first you got to roll it with rice
Bald headed woman here, let me get this hunk of biz for ya
Ya know what I'm saying you look better than rice a roni
Oh bald headed woman
Big hairy woman come on in
And don't forget your bald headed friend Hey pretty woman let the boys Jump in
Two timin' woman girl you know you ain't right
Two timin' woman you's out with my boy last night
Two timin' woman that takes a load off my mind
Two timin' woman now I know the baby ain't mine
Oh, two timin' woman Oh pretty woman
Is that commentary? Commentary enough, said the Supreme Court:
This passage ought to make you laugh. If the Supreme Court is willing to parody itself in order to find critical commentary in this, a song written by 2 Live Crew, surely JibJab's work is on much safer ground. Go see for yourself.
Like most of the people watching the Democratic convention, Slate correspondent Dahlia Lithwick is chiefly occupied with critiquing everything they're doing wrong. Her first dispatch mostly just mocked the onanistic coverage and bipolar rhetoric, but the end of the article revealed a more urgent concern:
My overwhelming memory of the GOP Convention four years ago was of the harnessed, focused, laserlike energy of suppressed Republican rage. I keep hearing about the rage of the Democrats, but I can't find it here; with the exception of Michael Moore, who is whirling around like the Tasmanian Devil in a baseball cap.
Words like "Abu Ghraib" and "Guantanamo" and "torture memo" are choked back until your head hurts. I, for one, am not "terrified, yet braced- for- the- challenges." I am "terrified, yet petrified." I am "frightened, yet sickened." Today, I hit the streets of Boston in hopes of hearing that speech.
Today's report from the frontlines makes this thought more explicit:
I keep thinking that one speaker at this convention needs to stand up at that podium tonight and say: "Ladies and Gentlemen. Abu Ghraib. Thank you. Goodnight." Because shouldn't this election ultimately be a referendum on the rule of law? Shouldn't the only issue before us be whether or not there will be legal constraints on executive power? Walter Dellinger, former acting solicitor general under Bill Clinton and star Slate contributor, puts this far more eloquently when he warns that if we don't cast our votes about Guantanamo, and Abu Ghraib and those torture memos, we will someday look back on this election as emblematic of a national moral failure.Unfortunately, Lithwich and other lawyers consistently overestimate the level of interest that voters have in "the rule of law," which for most people is fairly abstract in its constitutional sense. We see the need for "law'n'order," because we don't like getting mugged, but we demand limits on executive power only when it is clearly out of control. The average American can get het up over obvious outrages like Watergate and Abu Ghraib (hence the resignation and apologies that followed from those scandals), we're a lot more ambiguous about the rights of detainees in the war on terrorism, or the limits on what we will do to protect ourselves from another 9/11.What is at stake, in this election, is whether we value the notion of being a nation that's ruled by law as opposed to rulers. This isn't just a voting issue. It's what used to launch revolutions.
Even if people did take a greater interest in issues that aren't directly related to their physiological and safety needs, I doubt the Democrats' ability to stake their fortunes on the simple invocation of Abu Ghraib and other excesses in the war on terrorism and the occupation of Iraq. The Bush Administration already has declared that Abu Ghraib happened entirely without official support; they have framed the torture as a freakish outlier, due to bad apples rather than bad policy or a bad human rights attitude at the Pentagon.
Can John Kerry promise that he will grant trials or release to every Gitmo detainee? or that his administration will never, in any circumstance, use pressures that can be described as torturous -- even if they think it would provide crucial intelligence?
Lithwick also argues, "For one thing, if you cared about gay marriage, or abortion, or the right to die, or civil liberties, as much as they say you do, almost nothing else matters but who's on the federal bench." But the hardcore single issue voters that Lithwick describes already do vote on this basis.
Sue Hodges is opposed to U.S. involvement in Iraq and is dissatisfied with the Bush administration's handling of the U.S. economy. So you might predict she'd cast her ballot for John Kerry in the presidential race this year. But that is not likely, she said.I would like for the Democrats to move the abortion debate from "legal or illegal" to "common or rare," but they don't seem to be planning such initiatives. So voters are left to make the determination of which candidate will reduce abortion by the judges whom each will appoint to retain its legality.
"I'm really opposed to what we're doing in Iraq, but at the same time I support the right to life and am very against abortion, so it's a hard decision," said Hodges, as she loaded groceries into her car in St. Louis, Missouri, where she lives. [...]
As many as 41 percent of Americans who want greater limits on abortions say they would not vote for a candidate who disagrees with this position, even if they agree with the candidate on most other issues, according to the Pew Research Center for the People and the Press.
Even on gay marriage, conservative homosexuals seem prepared to concede an issue so close to home and vote Republican -- some because they aren't interested in it, some because they don't want judges to decide it, some (like Andrew Sullivan) because they are ready to wait through the backlash.
In short, I don't think Americans are missing the link between the presidents they elect and the judges those presidents will appoint. But those of us who really care already vote on that basis, and the rest of us are more worried about a president's ability to fight terrorism and not screw up the economy than we are about his appointing judges in the mold of Scalia or of Ginsburg.
By Queen Elizabeth II's proclamation, July 28 is a day of commemoration for the ethnic cleansing of Acadians -- but only for Canada, the country from which they were deported, not for Britain, which committed the expulsion.
I didn't actually see any of the convention coverage last night. But blessed with the New York Times full-text of the convention speeches, I can relive it this morning, and pass along the highlights, as I see them.
"I’m going to be candid with you... sheep... especially my beloved partner in life... BeBe Winans...."
OK, I know, stringing together non-sequiters with ellipses is a cheap joke, and is only marginally amusing. What you really want is sharp, incisive political commentary. Sorry. But I can at least try to excerpt the meat of the speech and insert some semi-coherent comments in italics.
"I sincerely ask those watching at home tonight who supported President Bush four years ago" Um, are any of those people actually watching? Their convention is still a month away... "did you really get what you expected from the candidate you voted for? Is our country more united today? Or more divided? Has the promise of compassionate conservatism been fulfilled? Or do those words now ring hollow?
"By the way, I know about the bad economy. I was the first one laid off." I don't think that's a very satisfying one-liner. On the surface, maybe it gets a laugh. But think about it. The former Vice President did not have too much trouble finding a new gig after he lost the election -- he taught at Columbia, he gets paid to give speeches... and he wasn't really laid off, his term was over. I'm taking it too literally, but it's just a silly throwaway comment that, to me, sounds a little bit callous to the people actually laid off. Al Gore doesn't know about the bad economy. Al Gore is doing just fine.
"Are you troubled by the erosion of America’s most basic civil liberties? Are you worried that our environmental laws are being weakened and dismantled to allow vast increases in pollution that are contributing to a global climate crisis?" I love the way he uses the word "erosion" in the question just preceding the environmental one. He's priming the audience to think about the environment. I seriously bet that was intentional. Beautiful work, Al Gore Speechwriters.
I've got nothing much to say about this one, except that one line gave me pause: "When our national security requires military action, John Kerry has already proven, in Vietnam, that he will not hesitate to act." My question is whether John Kerry's behavior in Vietnam really says as much about how he will act as commander-in-chief as people may want to ascribe to it. I don't know. And I don't say this to make any statement about John Kerry -- but is someone's military service thirty years ago a good indicator of how they would use the military as President now? Maybe it is. But it's not obvious to me that it most certainly would be.
"[T]onight I have the pleasure of introducing the last great Democratic president..." Yes, I know what she means. "Last" = "most recent" here. But on first read, I saw it as "last" as in "there will be no more afterwards." I'm sure that wasn't the intent. But did anyone else read or hear it that way too?
"He will create good jobs, not lose them." Someone, and I wish I could remember who (it may have been a law professor, actually -- but I really can't remember at all), once told me that I should flinch whenever I read something like that. So I flinched, and I will present the argument I was told (in other words, don't blame me if this is poorly reasoned... I'm stealing it). How can a President create a job? He can strive to put policies in place and hope that businesses are able to flourish and grow and add new jobs, but the only job the President can create is "assistant to the President."
"But being a senator from New York, I saw firsthand -- (cheers, applause)" Yay, firsthand! Not secondhand! Firsthand! Wheeee!
"I've been saying for many months now John Kerry is a serious man for a serious job in a serious time in our country's history." Seriously?
And, finally, Bill Clinton:
"Not a single American on September the 12th, 2001 cared who won the next presidential election." Is that really true? Might there have been one? Maybe even his wife?
"They chose to protect my tax cut while cutting 140,000 unemployed workers out of their job- training programs, 100,000 working families out of their child-care assistance, and worst of all, while cutting 300,000 poor children out of their after-school programs when we know it keeps them off the streets, out of trouble, in school learning, going to college and having a good life!" After-school programs enable children to *have a good life*? I'm all for after-school programs, but I'm inclined to think that may be a stretch.
His speech looks pretty good. That's all I've got.
A friend who enjoys perverse Americana sent me to a website with "lesbian" paperback artwork from 1950s and '60s pulp fiction. Lust on the Run ("He forgot his tramp wife in a depraved love-nest"), by Josh Tithing, sold for 95 cents -- but only to adults. The frontal nudity on the cover is obscured by "Adults Only" and "Sale to Minors Forbidden" warnings.
While movies, music and magazines frequently bear similar cautions, with legislatures enforcing them by statute, I've never seen a book in a bookstore that had even a "parental advisory" sticker. Romance novel fansites will rate books for the level of sexual content, but this information must be sought out; it does not appear on the cover of explicit works.
Texas, like most states, prohibits the sale, distribution or display of harmful material to a minor, with the standard definitions of those term (although I didn't know that prurient interest in excretion was so widespread as to have been noticed by the Legislature). "Harmful material" is distinguished from banned obscenity by the specification that it be "patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for minors; and utterly without redeeming social value for minors." These definitions imply that materials can be legal for adults but illegal for children.
In order to be prosecuted, the seller must know that the material is harmful, which poses something of a problem regarding the vast majority of books. Movies are rated, magazines shrink-wrapped, CDs labelled, but I don't know of any voluntary or statutorily-required system that warns librarians or booksellers away from pornographic books.
The warnings on the cover of those lesbian paperbacks likely served the same dual function that "R" ratings now do: yes, this material is inappropriate for children, but that just proves how enticing it will be for adults (and minors who get past the restriction).
Today in Federal Bureaucracy History (1908) - U.S. Attorney General Charles Joseph Bonaparte issues an order to immediately staff the Office of the Chief Examiner (later renamed the Federal Bureau of Investigation). Thirty nine years later, President Harry S. Truman signs the National Security Act into law, creating the Central Intelligence Agency, Department of Defense (formerly War), Joint Chiefs of Staff and the National Security Council.
Happy birthdays to the following hotties: Ninth Circuit judge Alex Kozinski (54), bluegrass artist Alison Krauss (33), former intern Monica Lewinsky (31) and Harry Potter actor Daniel Radcliffe (15). Alas, Radcliffe is underage and the rest are too female or married for me.
I entirely agree with Prof. Kerr's comment here regarding the accuracy of the ACLU Flash movie's depiction of a Matrixed America. In accordance with their customary practices, the ACLU is freaking out somewhat disproportionately to the actual problem. The information displayed in the Flash film is unlikely to be gathered by the government.
However, the crux of the ACLU's concern with the Matrix program -- the sentiment behind the cartoon -- remains: the sharing of information between private sector entities and the government. There was and is similar concern about the sharing of information between terrorism-preventing departments and "regular" law enforcement.
While many Americans may be puzzled as to why this would be problematic -- why shouldn't the government know my credit rating? my future landlord does -- the ACLU appears to be concerned that this represents a step down the (you knew it was coming) slippery slope of information flow between commercial entities and public authorities. After all, if Sam's Club sent the receipts of purchases made with "business expense" cards to the IRS, I suspect the latter could nab a lot more people for improper tax accounting. Which brings up a consistent theme of the ACLU's response to the expansion of government powers and programs post-9/11, that all such expansions must have a strict relation to the prevention of a terrorist event, and not be utilized to catch non-terrorist criminals.
The best part about being in Vegas for a few days (aside from the 107-degree heat, which is just awesome…I think my pancreas melted this afternoon) is that I actually get to see some campaign ads. Texas having been marked down for Bush a long time ago (an out-of-date assumption in my book, given our Hispanic population—but that’s another post) we really only get campaign ads when they’re part of a national buy, and since I mainly watch Bravo and the Style Channel, I have to go out of state to see any good TV spots. This is a shame because, as a law student with the soul of an advertising copywriter (and the portfolio of an advertising copywriter, the degree of an advertising copywriter…and, let’s face it, the legal knowledge and skill of an advertising copywriter), I take a special sort of joy in watching what the policom outfits churn out for election season. It’s never good from a creative standpoint, and it’s usually misleading from a factual standpoint, but that doesn’t mean it’s not perfect from a popcorn-munching, hand-me-my-Fanta, who-stole-the-last-Bon-Bon standpoint.
This week, Kerry is being hammered for his shoddy attendance record in the Senate. The Bush ad claims that during the campaign, Kerry has missed nearly two-thirds of all Senate votes. This seemed a bit extreme to me, so I did a small amount of research and found that the ads are, well, totally correct: Kerry has been present for almost exactly 33% of Senate votes for the current session.
This is, of course, one of the problems of running for president as a senator. While President Bush has often cited the fact that he can still get a lot of work done outside of Washington, he benefits from the fact that nobody is ever taking formal attendance in the Oval Office. So, in order for Kerry to keep up with Bush on the campaign trail, he has to play a bit of hooky once in awhile. Big deal, right? Surely everybody does it during an election year, don’t they?
Hoping to confirm that, I asked the age-old question: What Would Bob Dole Do? I figured that he must have been similarly absent during the 1996 campaign, seeing as how he was older than Kerry and would have had trouble making it back and forth to Washington as frequently. But Viagra Bob surprised me. I didn’t check every single vote (after looking thru all of Kerry’s, my mouse finger started to cramp), but a thorough day-by-day spot check suggests that Dole was present for virtually every vote in 1996, up until June when he gave up his seat. What a guy. Of course, he lost that election; maybe if he’d ditched a few more votes that spring he could have pulled off a victory. But either way, his diligence eliminated the chance of a favorable comparison for Kerry.
Basically, this sort of attack is irrefutable for Kerry. The common sense answer is “Well, I was campaigning.” But since it’s a definite no-no for candidates to admit that they’re also politicians, that’s not really an option. It’s the equivalent of asking him “Yes or No: Do you still have sex with chickens?” He’s screwed either way.
The only real solution is to go negative in return, to attack Bush’s relaxed work ethic and show him partying it up at fundraisers. But the Democrats won’t do that, because it wouldn’t be polite. Instead, they’ll continue to run single-shot ads of a pasty-looking Kerry talking about national security, all the while letting Rove & Co. beat Kerry over the head with his own war record and smack him around with silly ideas about a gas tax that he floated twenty years ago.
Go Team.
Milbarge and Wings & Vodka are the final two challengers in the enormously successful Survivor: Blogosphere!
As the final challenge, we ask the two of you to write for the next week on the topics of law, politics, law students, lawyers, or any appropriately related topic, with the judge and points being awarded by the rest of the blogosphere.
The winner will be chosen basen on links obtained, with bonus points to be obtained by receiving links from:
* The guy who started it all: Unlearned Hand (2 points).
* Our role models: Volokh, Crescat, or Crooked Timber (3 points).
* The blawg-o-rific: Instapundit or Howard (5 points).
It's Thursday afternoon . . . next Friday, we will announce the winner.
Volokh Conspirator Orin Kerr likes a new Flash, but he seems to have missed its point:
[T]here is something a bit fishy about the movie in the context of the ACLU's campaign: it seems that everything in the movie involves private-sector information gathering, and yet the "action" that the ACLU prompts you to take appears to be focused primarily on government datamining. Based on the ACLU website, it seems that the primary goal of the ACLU's campaign is to defund the MATRIX law enforcement database. Maybe I'm missing something, but it's not obvious to me what the connection is between MATRIX and what the pizza guy knows about you. Private-sector information gathering is quite different from government datamining: the former concerns restrictions on private parties obtaining information, and the latter concerns government agencies sharing and looking through the information that they have already obtained. I guess MATRIX didn't lend itself to a funny movie.
According to the ACLU page linked,
Matrix (which stands for "Multistate Anti-Terrorism Information Exchange") is an effort to combine state government records, such as driver’s license information, with commercially available data to create a vast database capable of compiling and analyzing a profile of every American [... G]iven the amount of information that is available in today's commercial databases, even more details of your private life might be captured and catalogued. Indeed, the Matrix materials boast of having access to 20 billion records.The ACLU appears to fear that the government and the GAP will share information, a la Minority Report, in a future where such cooperation is supposed to help the citizen-consumer but actually aids the authorities in tracking down Tom Cruise's eyeballs.
(Via Sandefur) Ninth Circuit judge Andrew Kleinfeld and his wife Judith have an article in Opinion Journal and the American Enterprise Magazine comparing American and Canadian cultures. One statement in the piece puzzled me:
We asked one of the Canadian border guards what Hyderites were like. "Free spirits. Wild. They have guns, you know." We were asked if we had any guns each time we drove back to Stewart, since handguns (a near-universal in Alaskan bear country) are contraband in Canada.
I mistakenly thought that Judge Kleinfeld was saying that handguns, so common in Alaska, were illegal in Canada. This confused me, because one of the main themes of Bowling for Columbine is that Canadians somehow manage to own lots of guns without having a crime rate similar to that of the U.S.; therefore our crime problem has more to do with a culture of fear -- supposedly evidenced by our using locks, in contrast to our open-doored northern neighbors -- than with gun ownership.
Of course, Kleinfeld meant contraband in its stricter definition, i.e. "goods prohibited from being imported or exported." (Contraband per se is property that is in and of itself unlawful to possess, produce, or transport; derivative contraband is property that is unlawful because it is used in committing an unlawful act.) Handguns with barrels less than 4.14 in. long, other firearms with barrels less than 18 in. long and all automatics cannot be brought into Canada.
However, "[t]ravellers can bring a non-restricted firearm, such as a sporting rifle or a shotgun to Canada for hunting purposes, for use in competitions, as part of an in-transit movement through Canada, or for protection against wildlife in remote areas," provided that they declare this weapon. Whether a handgun -- as opposed to a hunting rifle -- is an ideal weapon against an Alaskan bear, I cannot say.
In the U.S., a citizen bringing in a gun she owned in the U.S. must show her proof of prior ownership to customs when she lands in the States. If she acquires a firearm that someone else brought from the U.S., or if she buys one abroad, she will have to obtain an import permit from the Bureau of Alcohol, Tobacco and Firearms.
Today in History (1984) - In Jackson, Michigan, a factory robot crushes a worker against a safety bar in apparently the first robot-related death in the United States. However, the robot did not eat anyone's blood-pressure medication.
From PFAW:
Right-wing House members are trying to whip up a backlash against last week's Senate defeat for the Federal Marriage Amendment. So they're promising a vote this week on the so-called "Marriage Protection Act," which attacks the right of gay men, lesbians, and every other American to challenge the discriminatory 1996 "Defense of Marriage Act" (DOMA) in federal court. [...]In technical terms, the Marriage Protection Act would strip the federal courts of jurisdiction to consider citizens' legal challenges to DOMA's "full faith and credit" provision. That provision tries to "protect" each state from having to recognize the marriage of same-sex couples lawfully performed in other states despite the Full Faith and Credit clause of the U.S. Constitution.
I am now forced to confess my complete ignorance of constitutional law, because I had no idea that Congress could protect itself from judicial review merely by passing a law that said federal courts lacked jurisdiction over a particular statute.
The rationale behind denying federal jurisdiction to the "full faith and credit" provision is obvious: because that provision deals with the states' interactions with one another, and is the patently unconstitutional aspect of DOMA, conservatives hope to preserve it by restricting any suits dealing with it to state courts.
So the scenario goes something like this: Jane and Sue get married in Boston and move to Crawford. Texas, of course, does not recognize their marriage. They sue to receive the same rights and benefits granted as a matter of course to, say, J. Howard Marshall and Anna Nicole Smith.
Article 1, Section 3a of the Texas Constitution does say that "Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin. This amendment is self-operative." Jane could try suing in state courts for her equal right, regardless of sex, to marry Sue.
But she's already gotten married to Sue, so she opts instead to sue under the U.S. Constitution's Article 4, Section 1 guarantee that "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State."
Now those of you actually in law school will have to help me out. Do state courts take lawsuits based in the federal constitution? Isn't dealing with federal law the whole point of a federal court system?
Our mysterious guest blogger has rendered his verdict on the fisking competition.
Because Mike Mills dropped out, once again no one is eliminated. Yeah, we're a tease. This endeavor gives me new respect for reality show producers, or at least the ones who stick to the rules (which, I guess, excludes all of them -- uh, you have kids?! an arrest record?! the challenge was rigged?! you didn't know we had a wild card?! you didn't know we'd merge so soon?! you didn't know it wasn't live?! you didn't know the producers were consulted on every decision?!). Stay tuned for information about the final challenge... as soon as we... invent... it.
But I have to say that the release of truck driver Angelo de la Cruz, the Filipino hostage held pending the withdrawal of his country's forces from Iraq, sort of upsets my assumptions about the insurgents. I figured that if Manila acceded to their demands, they would just kill Cruz anyway. I had thought the same about Egyptian truck driver Muhammad al-Gharabawi, whose captors threatened to behead him unless his Saudi employer pulled out of Iraq. But when the company complied, the hostage was released.
Actually following through on their promises makes the insurgents a more difficult opponent for the Iraqi government and coalition forces to surmount, because now the insurgents have the status of quasi-reasonable people. Obviously, kidnapping truck drivers is not really a fair tactic to use in the pursuit of one's goals, but apparently it is having some success for those who wish to undermine the new government.
Today in History (1982) - The Irish Republican Army detonates two bombs in central London, killing eight soldiers, wounding forty-seven people and leading to the deaths of seven horses.
Today in History (1979) - The Sandinista rebels overthrow the US-backed dictatorship of the Samoza family in Nicaragua.
Though I didn’t find it necessary to loosely interpret “well-known” in order to find a target, I did have to get flexible with the term “blogger.” I knew that if I was going to spend the better part of an afternoon combing thru someone’s prose, it would have to be the prose of someone I truly adore. And nobody makes my heart skip a beat like the lovely and talented Ann Coulter.
In her weekly web column from July 7th, the best-selling author/talk-show circuit diva/part-time lingerie model attacks Kerry’s choice of Edwards to ride shotgun this fall. She begins:
I guess with John Kerry's choice of John Edwards as his running mate, he really does want to stand up for all Americans, from those worth only $60 million to those worth in excess of $800 million.
Cheney and Bush having thrown most of their fundraising banquets with food stamps, I can understand her ire here. But she quickly makes it clear that her problems with Edwards go well beyond his immense richitudiness:
In one of the many stratagems Democrats have developed to avoid telling people what they believe, all Edwards wants to talk about is his cracker-barrel humble origins story. We're supposed to swoon over his "life story," as the flacks say, which apparently consists of the amazing fact that ... his father was a millworker!
This is just jealousy. Given his campaign theme, Bush would give Tom Ridge’s left lung to have a dad that was a mill worker. All we’ve heard for the last six months are constant reaffirmations of Bush’s being in touch with the values of normal, everyday Americans, and Kerry’s being “out of the mainstream.” Now, I think most real liberals would give anything for Kerry and Edwards to be a little bit further out of the so-called mainstream on any number of issues. But Bush started the “I’m A Rich Guy Who’s More Normal Than the Other Rich Guy” competition, and the Democrats are just trying to fight cracker barrels with cracker barrels. Even so, Ann still disapproves:
That's right up there with "Clinton's stepdad was a drunk" and "Ted Kennedy's dad was a womanizing bootlegger" on my inspirational life-stories meter. In fact, I'm immediately renouncing my university degrees and going to work for the post office just to give my future children a shot at having a "life story," should they decide to run for president someday.
Silly Ann. You can’t renounce degrees. Hell, you can’t even have them stripped away by the Patriot Act. You’re stuck being a Michigan grad for life. Sorry.
What is so amazing about Edwards' father being a millworker? That's at least an honorable occupation -- as opposed to being a trial lawyer. True, Edwards made more money than his father did. I assume strippers make more money than their alcoholic fathers who abandoned them did, too. This isn't a story of progress; it's a story of devolution.
This, too, is pretty cheap, and not just because she brings innocent strippers into the mix. I think Republican critics completely misunderstand Edwards’s goal when he brings up his father’s occupation. It’s not that he thinks his dad’s being a mill worker makes his own achievements more impressive or his own story more inspirational. Rather, he brings up his father’s job because he wants to get that embarrassing fact out into the open before the Republicans can use it against him.
I remember once, as a kid, when a few of my friends from elementary school agreed to come over to my house and play, but then promptly decided to leave when they discovered that I didn’t own a Nintendo. Do you have any idea how embarrassing that was? I wet my bed for a week. Imagine if Edwards had invited Bush over to his house and Bush had been like, “Hey, where’s your Dad’s Secret Service detail?” What the hell would Edwards have done then? Well, I’ll tell you what he would have done--he would have peed in his bed. So quit harping on the mill worker thing, okay? He had no choice.
Obviously not wishing to inflame me any further, Coulter moves on to her indictment of Edwards’s legal career:
Despite the overwrought claims of Edwards' dazzling legal skills, winning jury verdicts in personal injury cases has nothing to do with legal talent and everything to do with getting the right cases -- unless "talent" is taken to mean "having absolutely no shame." Edwards specialized in babies with cerebral palsy whom he claimed would have been spared the affliction if only the doctors had immediately performed Caesarean sections. … In one of Edwards' silver-tongued arguments to the jury on behalf of a girl born with cerebral palsy, he claimed he was channeling the unborn baby girl, Jennifer Campbell, who was speaking to the jurors through him: "She said at 3, 'I'm fine.' She said at 4, 'I'm having a little trouble, but I'm doing OK.' Five, she said, 'I'm having problems.' At 5:30, she said, 'I need out.'"
Okay. That’s pretty hideous. Even if I’m not against these tactics for ethical reasons, I’m certainly willing to admit a problem with Edwards on rhetorical grounds. But I’ve got to wonder: Would the criticism of Edwards be any lighter if he’d been defending the doctors? Wouldn’t conservatives just fold it into his pro-choice stance and call him a multi-tasking baby killer? Perhaps it would have been better for him to have avoided malpractice cases altogether and gone to work for a big firm…maybe one working for Enron? Somehow I don’t think that would have helped Edwards escape Coulter’s criticism, either.
The truth is, Ann hates lawyers. She’s a self-loathing attorney, and she’s taking out her frustrations on this poor guy from North Carolina who was just trying to make a buck. I mean, come on. His dad was a mill worker for chrissake. But she refuses to back down:
In addition, the "little guys" Edwards claims to represent are having a lot more trouble finding doctors to deliver their babies these days as obstetricians leave the practice rather than pay malpractice insurance in excess of $100,000 a year.
Well, yes, you could attribute that to a rise in malpractice litigation. But some people might point out that the increase in malpractice insurance rates has significantly outstripped the increase in number and size of malpractice suits. Others might point out that insurer-enforced caps on allowed annual deliveries are the result of actuarial horse hockey. And still others might point out that a nationwide total of annual malpractice jury awards would look pretty meager compared to a nationwide total of annual tax breaks received by insurance companies in BushWorld. But those people are clearly communists.
And may we ask what the pre-born Jennifer Campbell thinks about war with Iraq? North Korea? Marginal tax rates? If Miss Cleo here is going to be a heartbeat away from the presidency, I think the voters are entitled to know that.
If I were Michael Moore, I’d argue that Jennifer Campbell is preferable to, say, the Saudis. But Michael Moore is a fruitbat, so I’ll keep my mouth shut. Ann keeps going:
While making himself fabulously rich by taking a one-third cut of his multimillion-dollar verdicts coaxed out of juries with junk science and maudlin performances, Edwards has the audacity to claim, "I was more than just their lawyer; I cared about them. Their cause was my cause." If he cared so deeply, how about keeping just 10 percent of the multimillion-dollar jury awards, rather than a third? In fact, as long as these Democrats are so eager to raise the taxes of "the rich," how about a 90 percent tax on contingency fees?
You know…you’re right. I’ll see your 90 percent tax on contingency fees, and raise you a 90 percent tax on publishers’ advances. But somehow I don’t think that would go very far in making up for the Bush tax cut. That is, unless your advances have gotten a lot bigger without me noticing. But I’m thinking that if they had you’d be sucking down banana coladas in Cozumel instead of posting weekly on the Web, so maybe we’d better stick with taxing the rich in general.
I guess the thing that confuses me is the focus on Edwards’s pre-political life instead of his six years as a U.S. Senator. As a liberal, I would say that Edwards’s votes for the Patriot Act and the war in Iraq make him a lousy senator; it seems like conservatives could just as easily point to the votes and say that they make him a hypocrite. I’d also point out his bullshit equivocating on the gay marriage issue and say that if he expects the support of the gay community in November, he ought to do a little more than the minimum in order to earn that support. Conservatives could point to his bullshit equivocating and call him an Evil Satanist Homosexual. But that’s not what Coulter’s after, and I don’t blame her. Focusing on Edwards’s actual performance as an elected official forces the same sort of focus on Bush’s performance, and that’s not good for anybody. So, we’ll stick to the past which, I think, can be summed up thusly:
John Edwards was spectacularly successful in the shameless exploitation of disabled babies for financial gain, while George Bush was spectacularly unsuccessful in the shameless exploitation of the environment for financial gain.
The Big Conclusion? It’s simple, really. Disabled babies are more lucrative than oil. Especially when they’re born into a family of mill workers.
See you in November.
Despite being among the "Rawls joke getting set," I think a more-easily-grasped phrase for the phenomenon Orin Kerr describes is "rubber glue-ism." At least among Americans, the insult "I'm rubber and you're glue, and whatever you say bounces off me and sticks to you" has more currency than a formal understanding of Rawls's theory of justice.
I didn't quite understand what Kerr was looking for when his post first appeared, but if John Holbo's assessment of it is correct, then the idea that an opponent's tactics can be both decried and imitated seems to be well encompassed by a childish retort.
Today in History (1947) - President Harry S. Truman signs the Presidential Succession Act into law which places the Speaker of the House and the Senate President Pro Tempore next in the line of succession after the United States Vice President.
Allegedly a holiday called "Yellow Pig's Day" is celebrated by mathematics nerds today. A holiday for law dorks such as the De Novo bloggers remains undeclared.
Our task is to fisk. This poses a problem for me, because I am not a fisker. Well, to be honest, I experimented once, but I didn't like it. Besides, I fisked Howard Dean, and I think we all went a little crazy and did things we're ashamed of over Dean, didn't we?
So I did a little soul-searching, and I asked myself, "How did I get here? Where is that large automobile? This is not my beautiful house!" And I decided to fisk this crazy game I've gotten myself into.
It started months ago. And it sounded like a good idea: Play some blogging games and join the happy carnival for the summer! You look at the original concept and wonder where that game went.
We know what you've been thinking: "De Novo is great with four, but imagine how much more awesome it would be with five! Up to 25% more awesome, I'd bet!" We agree, and we want to revolutionize the blogosphere at the same time with the world's first (please don't tell us if we're not) elimination-style blog-contributor search and competition.I think we're far enough along that I can let the cat out of the bag. It's been done. They have a logo and prizes and everything. Gee, I hope it's not copyrighted or trademarked. Instead of gift certificates and the like, the "winner" here at De Nockoff gets...more posts to write! It's not my quote, but this is like a pie-eating contest where the prize is more pie!
As for the challenges we contestants could expect to face:
Each day,Well, that went out the window pretty quickly, didn't it?
the contestants will have to fulfill a certain blog-related task -- blog about something you did yesterday; write a post using all 26 letters of the alphabet; find the most interesting newspaper article that no one's read -- or compete for immunity by earning the most comments, the most links, or the fewest unambigously negative reactions from our readers -- and one by one the ranks will thin until there's only one blogger left sitting at his desk posting to De Novo.The only one of these that has come to fruition is the most comments challenge (more on that later). But note how well these proposed challenges fit with the unique nature of blogs. Every time you visit a blog, you want to see something new. Even if these challenges would not have led to long posts ("The quick brown fox jumped over the lazy dogs" satisfies the alphabet task), it would have led to a lot of them. Instead of a torrent, however, you got a trickle.
I thought this sounded fun. I liked reading De Novo, and I figured it would be fun to branch out and try something new. Plus, I thought it might be a nice little boost of publicity for my regular blog. So I applied. Jeremy later told me my letter was the longest they got, so no matter how things go from here on out, at least I've won something.
Anyway, a month passed. Apparently, when they said it would be a "summer" thing, they meant post-June 21, rather than the traditional Memorial Day kickoff or the start of their summer breaks. But I'm sure I could have been more productive at work in June if I had not been hitting "refresh" every ten minutes, waiting for the green light.
Finally, the day arrived:
We promised, and now for weeks we haven't delivered. But the best things in life are worth the wait (and come in small packages, but that doesn't really apply here, unless you're reading this on a laptop). And so, today, we are pleased to provide our waiting-on-the-edge-of-your-seats audience with a competition never before seen (if it has already been seen, please don't tell us and spoil the delusion) on the Internet, anywhere.I've already spoiled the never-before-seen delusion, so I'll just skip ahead.
TEN (or perhaps fewer, if some of them have bailed on us) brave men and women have declared themselves up to the challenge of outwitting, outposting, and outlasting the competition to become De Novo's first Survivor and get the chance at fame and fortune, or at least as much fame and fortune as we can provide by letting them post with us for the rest of the summer -- and perhaps longer, depending on how it works out.When I saw this, it looked pretty daunting. Not just "ten," but "TEN" contestants. But notice how the cracks have already started to show. First, the De Novo-ites acknowledge not delivering, and depriving you, the reader, of a month or more of Surviving. Or Survivoring. (See? That's a missed challenge right there: Is it "Surviving" or "Survivoring"? Discuss.) Don't your lives feel a little bit less worth living, knowing how much you missed?
Then, we get the classic bait-and-switch. "Ten (or perhaps fewer, while supplies last, but we'll throw in the undercoating for free....)" But surely, you're thinking, even if they can't be sure no one will falter at the starting gate, these folks have the whole project mapped out, right? Perhaps only with Ike at D-Day had more planning gone into an enterprise of humankind, right? Alas, no:
We've developed a series of bold and unusual challenges, including the challenge of coming up with some bold and unusual challenges. They will begin tomorrow, and continue until the contestant pool has shrunk to just two. Those two will then compete in an ultimate Survivor: Blogosphere final competition that will truly determine who is the real Survivor.One assumes that the occasional all-caps are a device to wake up the reader, and if you're still reading this, you probably need them, so I'll let that slide. But a theme is starting to develop: We're making this up as we go along.What we need from you, our readership, is some help. On many of the coming days, we may ask for you to vote, either through comments or some other revolutionary hardly-before-seen method (like e-mail, or a Zoomerang poll, but we're still figuring out some last-minute details). Or we may beg you to tell your friends (in fact, the begging begins now: TELL YOUR FRIENDS!). Or, starting today, we may ask you to help us develop some bold and unusual (or just one of the two adjectives, if you prefer) challenges for our contestants. E-MAIL US your ideas for challenges. We will be forever grateful, assuming your ideas aren't really quite terrible. Pretty please.
After a series of introductions, we found out that of the promised ten, six remained. I can't help wondering what happened to the other four. Was there a secret, pre-Survivor contest readers weren't told about? Did (as many as) four of the six contestants have a multiple-personality disorder? Were their Q-ratings just not high enough? I think that when the DVD of this Survivor season comes out, one of the "extras" should be a discussion of the missing four. I'm sure they're reading this. They know who they are; we want to know as well, so we can congratulate them for being smart enough to bail out at the right time.
At long last, we got our first challenge. As I have previously mentioned, I found its wording a little ambiguous. I won't rehash my confusion here, mainly because I'm sure it was my fault. But it turned out not to matter, because the first challenge was a dry run -- no one was eliminated You can read those entries for yourself and bask in their adequateness. It's becoming apparent that, with nothing on the line, no one really steps up.
Note that it's only after a round of preliminary entries that we finally learn that six was it, although there was still time for new contestants. Imagine if this were a real "reality" show: A guy sits on his couch and watches whatever contests those "Survivor sadists can dream up, says, "I can do better than that!", hops on a plane to Bora Bora or wherever, and joins up. Or imagine a poker game in which you don't know how many people are playing until you've dealt the cards. Not quite the best way to run a railroad.
Then sweeps week arrives and we can finally get down to business. Elimination challenge: poetry. I have to say that I found this to be a very inventive idea, so maybe it stands to reason that none of the De Novo Four thought of it (kidding!). The topic (the Supreme Court) was broad, and so was the resulting range in quality. A few of the poems were quite good, though.
But even in the middle of a pretty good challenge, we see evidence that they really haven't thought through all the possibilities:
Your deadline: Midnight tonight. The method of elimination: Each of the 4 of us (me [Jeremy], PG, Nick, and Chris) will choose one entry to save. Those 4 contestants, and those 4 contestants alone, will move on.As we discovered in the comments to that post, "Midnight" didn't really mean "midnight" and the one person, one vote principle was somewhat flexible. Plus, we weren't really given any standards. I wasn't looking for a poetry matrix I could plot my stanzas on, but words like "arbitrary and capricious" and "lack of an intelligible principle" come to mind. Anyway, despite a little controversy (which is only natural in such a purely subjective vote), things progressed relatively smoothly and we were left with a final four
Now it was on to the third branch of government, the Congress, and a challenge to write a post that in turn generated comments. The post with the fewest comments by 10:00 the next morning earned its author a trip home. While this seems straightforward, Matto quickly noted the East Coast time zone bias at work. But apparently we forgot about the International Date Line or something, because in a twist that readers would be talking about for literally minutes on end, this challenge was extended by 24 hours. The only explanation we were given was that the move was taken "so that everyone (and all your friends) can comment to keep your favorite blogger in the competition," although there was no hint of disenfranchisement up to this point. (However, I can think of one person who wishes these four with "one day doesn't matter" attitudes were on the Supreme Court.) In the end, the extension had little, if any effect. Wings & Vodka ran away with this one, thus establishing himself as the Smarty Jones of this horse race.
So, after a long wait to get started, and a few hiccoughs along the way, here we are. Our instructions for this task are sparse:
Fisk a well-known blogger. Be snarky but tasteful. Entries will be judged on style and persuasiveness.If you haven't already figured out what fisking is, it's basically a line-by-line or point-by-point refutation of an author's work, pointing out questionable logic, unsupported arguments, etc.. A classic fisking tends to be snarky if not outright mocking. I'm sure you'll see some fine examples from W&V and Mike Mills.
I had a devil of a time coming up with something to fisk. Think about it: The most easily fiskable articles are emotional rants; of course a careful and measured argument will look more persuasive next to those. But to really give someone a good fisking, the fisker has to have an emotional investment too. The fisker has to get fired up enough about a bad argument that he or she is willing to take it down piece by piece. That kind of commitment is rare for me. Why spend hours poring over a post that drives me batty? In general, why go out and read something just to get mad at it? I want blogging – and blog-reading – to be a pleasurable experience. I do read some sites whose editorial positions I disagree with, but I don't get too agitated about it. For example, I read NRO's The Corner, but I skip over Stanley Kurtz and John Derbyshire, because they're morons, and not worth my time. Why fisk them? I won't give them the pleasure of being fisked. They can go fisk themselves, or fisk each other.
The other thing is that even when I see an article or blog post I could fisk, I don't see any need to tell everyone about all the holes I've spotted in someone's argument. Maybe I just assume that if a hillbilly like me can spot them, anyone can. But mainly that's just not the type of blogger I am.
And when it comes down to it, I guess that's what strikes me as most odd about this whole Survivor deal, and the fisking challenge in particular. I have never been clear on what exactly the De Novo folks are looking for. I sort of assumed they wanted a unique voice, something different than the four of them offered. But now I think one could be forgiven for supposing that they really want a clone. I would wager that the entrants would have been somewhat different if the contest had been advertised as it turned out to be: Half of it is poetry and fisking. If you're not a poet, and not a fisker, why would you sign up for that? Now, I think I'm a decent poet (and a better song parodist), and I think I'm capable of being a decent fisker if I care enough to do it. So I'm going to keep trying, and I'll hang around until they kick me out.
This entry is going to be judged on "style and persuasiveness." I don't know what style the mystery judge is looking for, so I just wrote this in my style. This is how I blog. As for the persuasiveness prong, my contention is simply that this whole competition could have been better organized and managed from start to finish. I hope I've convinced you of that. But I know this is the first time they've done it, and they'll do much better the next time – and I hope there is a next time. I think this is a fun and interesting experiment, and I have enjoyed doing it. I hope that the De Novo crew take this in the spirit in which it's intended (gentle tongue-in-cheek fun), and know that I mean no offense. (I also hope they can fix my font size issues because I suck at the code stuff...sorry.)
My suggestion for future Blogger Survivor contests is to have a sense of what you want to get at the end, that is, what kind of blogger you're looking for. And create challenges designed to produce that person. Maybe you want a poet fisker to add to your stable. If so, I'm sure you'll find one in this bunch. But something tells me, based on all the little points I note above, that you didn't tell yourselves back in May that you wanted to invite a poet fisker to join De Novo. Regardless, I hope that you and whoever wins this thing have a happy union.
If this does turn out to be my last hurrah (and really, at this point, how could it not be?), I have truly enjoyed it. I hope that De Novo readers will follow me back to Begging the Question for more introspection, the occasional law-talking, and I promise: No fiskings.
For the penultimate challenge, we considered having our final three contestants attempt to make Tony Rickey change his mind on one of many positions he's taken on gay marriage. But upon realizing that a game called "Survivor" needs at least one person to survive, we preferred the following alternative:
Fisk a well-known blogger. Be snarky but tasteful. Entries will be judged on style and persuasiveness. The judge--another blogger out there somewhere--we be revealed at the time of reckoning.
Interpret "well-known" liberally if you like, and feel free to stick it to Will Baude, who apparently wants a role in the competition....
Out of curiosity, I occasionally check the search engine queries that bring people to my weblog. For example, I've discovered that some traffic, consisting of people with peculiar interests, has been directed therein by a post I wrote defending incest and bestiality prohibitions.
Today someone searched "can I sue for someone saying I'm gay" and was led to this post:
I ran across an two month old ABCNews article, pointing out that if the Supreme Court judges rightly in Lawrence v. Texas and deems laws against sodomy to be unconstitutional (discriminating against men either facially or practically), the designation of "gay" may cease to be considered defamatory per se, and people suing for slander or libel because they have been called gay will have to prove actual damage.
As long as sodomy is illegal, a sexually active homosexual is a criminal. The continuing public condemnation of homosexuality, however, may mean that "gay" will remain defamation even if sodomy becomes constitutionally protected.
I didn't know that you could sue someone just for his saying you were gay, unless you could show at least some possibility of damages. I've had people -- gay people, actually -- call me gay, and I never thought that I was being defamed. Of course, this happened at a large public university with moderate attitudes about homosexuality and a healthy Queer Student Union; I might have been more disturbed by it had it occurred when I was living in a small, conservative town.
The geographic differences that make calling someone gay in D.C.'s Dupont Circle an honest error, and calling him gay in rural Virginia per se defamation, imply that libel and slander suits will have to rely on community standards to determine whether they are viable.
One could look at whether a community has businesses specifically oriented toward gay people that operate without being molested by the authorities or community members. In Charlottesville, for example, the only dance club in town, Club 216, is a gay club. I've never heard of its having problems except when too many straight girls show up on College Night. Thus being called gay in Charlottesville would be defamatory only if one could prove that it had had a negative economic impact.
Eugene Volokh challenges the idea that rape is not "both a crime of violence and a crime of sex -- the rapist is motivation by sexual desire as well as by the desire for domination (and the two may well be intertwined)." For evidence, he notes that "The best evidence that I've seen for this is the breakdown of rape by age of victim [...] Rapists seem to select victims in age ranges that are pretty highly correlated to the generally understood peaks of sexual attractiveness."
Volokh fails to note two problems with his analysis, one relatively minor and one more significant. The first is that rape is more likely to be underreported by older women, who may feel a greater social stigma from having been a victim of this crime. Younger women, who have grown up on the message that one should not feel ashamed, and whose adulthoods post-date the changes in rape prosecution (which now prevent the "she's a slut!" defenses formerly popular), still do not report all rapes but are increasingly likely to do so.
The larger difficulty I see in Volokh's analysis is that it ignores the entire phenomenon of male-on-male rape, particularly the epidemic of prison rape. Men who did not commit same-sex rape while on "the outside" will nonetheless sexually victimize other men while in prison.
Sociologists consider this to be a dominating behavior intended to establish a hierarchy. Men who commit the rape are superior; those who are raped are the "bitches," "wives" and otherwise considered inferior. When questioned about their behavior, prison rapists declare that they themselves are not homosexual, but that their victims are.
This is not to say that Volokh's conclusion is wrong, only that his evidence has some gaps. Prison rape certainly shows that in the pursuit of both sexual gratification and domination, some men will engage in behaviors that they would not choose when women are available to them. I would modify the hypothesis from the motivation of sexual desire, with the connotation that the rape victim is the object of desire, to the motive of sexual gratification, in which the victim's attractiveness is not relevant.
Probably the most effective analysis would have to be more qualitative than quantitative, examining which crimes people prefer. For example, non-sexual assault allows one to commit violence and thus dominate another person, but without the motive of sexual gratification.
Solicitation of prostitutes allows one to be sexually gratified without committing violence (though one would then have to subdivide encounters with prostitutes into those in which the prostitute is paid to act in a subservient manner and be dominated by the client, and those in which s/he is not paid for that particular scenario).
Rape appears to combine the two. But rapists who commit non-sexual as well as sexual assault appear to be more motivated by the desire to dominate, whereas rapists who solicit prostitutes as well as force sex without paying for it appear to be more motivated by the desire for sex.
Today Saddam Hussein celebrates the 25th anniversary of his formally becoming the president of Iraq, and Corey Feldman celebrates his 33rd birthday.
Senator John Kerry, the Democratic presidential nominee, may be coming in for a drubbing from Eugene Volokh.
To deserve condemnation, they need to have argued that DOMA is unconstitutional and have also argued that the FMA is unnecessary because of DOMA.Kerry changed his views on the Defense of Marriage Act between his vote against it in 1996 and the February Democratic debates.
Kerry also asserted that DOMA was unconstitutional and that the U.S. Constitution’s full faith and credit clause requires states to recognize the marriage licenses of another state -- a position Kerry has since reversed.
"The authors of the bill mistakenly claim that Congress has the authority to allow one state to ignore a legally recognized marriage in another," he wrote in 1996. "But the U.S. Constitution is unequivocal on this point: 'Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.'From the Boston Globe:"Imagine the confusion if we didn’t have such a clause: A child-custody decision in California could be ignored by Illinois; a divorce concluded in Nevada could be rejected in New York. DOMA does violence to the spirit and letter of the Constitution by allowing the states to divide."
In a February Democratic presidential debate, Kerry distanced himself from his 1996 position on the Defense of Marriage Act.
"I think, under the full faith and credit [clause], that I was incorrect in that statement," he said at the debate, which was held in California. "I think, in fact, that no state has to recognize something that is against their public policy."
Bush's main Democratic rivals, Senators John Edwards of North Carolina and John F. Kerry of Massachusetts, both blasted Bush's call for a constitutional amendment as divisive and unnecessary, especially given that a federal law passed in 1996 already defines marriage as a union between a man and a woman. [...]Kerry said: "While I beli
