Wednesday, December 13, 2006

Why not just insist that firms abuse their attorneys more?

Scalia: pity the poor $165,000 a year jurist...

Is there anything less sympathetic than invoking the poor SDNY judge who suffers through a salary of $165,000?

Yes, me. I am considerably less sympathetic and slightly less well-compensated. However, while it's an injustice, it's not one that the federal government should be taking any action to correct.

But even if I were not nearly outearning Judge Scheindlin, and that's not much of an injustice given her body of work in recent years, she has something that lawyers do not have -- security.
Lawyers do not have lifetime appointments. Lawyers do not have pension plans, unless they make partner, in which case they don't need any sort of retirement plan except "Find a woman half my age. Marry. Rinse, lather, repeat."

Federal judges have the ability to be imprisoned without losing their job. Let us all recall the heroic Walter Nixon, who not only drew a paycheck while serving time in prison, but also managed to take his impeachment to the Supreme Court and evoke Rehnquist's fine "epistemological fog" argument in response to defining the word "try." That all happened before this guy lost his job for being a felon.

Federal judges have clerks. Oh, lord, what I would not give to have clerks as a junior associate. It's not enough to have junior associates beneath you, because let's face it, you didn't hire them, you will still have to do some of your work, and if you do an incompetent job, you'll start to receive suggestions that you open that restaurant you always have been talking about or become a professional riverboat gambler, anything to get you to quit your current job.

Federal judges work at the ultimate lifestyle firm -- the United States government. There are a lot of federal holidays, the hours are as reasonable as you want them to be so long as you can keep up with a speedy trial calendar

Federal judges have prestige. Any judge has some prestige, but federal judges carry a lot of weight. They get opportunities to witness things that your ordinary lawyer never will.

Federal judges could honestly do nothing and face little criticism for it. Let's face it, if a judge wanted to, they could just decide things from the bench, never research an issue or bother to ask their clerks to do it, they could just work on their putting game in chambers, meet with a few attorneys, and develop a dreadful reputation for arbitrariness and caprice. What happens? They serve as a judge until they die or retire. While a judge may care about his reputation, he or she certainly doesn't need to, they just need to stay one step away from being impeached. Let me assure you that's one small step for a man, one giant leap for mankind to get yourself impeached (see also Nixon, Walter).

You can make more in the private sector, it's true. But that's not the end of the story. If you're saying a SDNY judge doesn't earn enough to raise a family, you may be right (though there are a whole lot of people raising families in the Southern District of New York while making 10% of that, so you are, in fact, wrong). But now place that SDNY judge back in his job at Cravath or Jones he's making more as a seventh year associate or even junior partner. But he still can't raise a damn family, because his firm owns him 18 hours a day with an option for 6 more. When there's no telling whether you'll be home at all, let alone in time for a 9 p.m. dinner, you're going to have a hard time raising a family anywhere.

Will the judiciary have a hard time grabbing the top lawyers? Yes, sometimes. But it's not firms they're going to lose them to, it's sophistry in America's finest law schools. If you offer the opportunity to become a federal judge to any 1st-8th year litigator, my guess is that your answer is going to be yes 9 out of 10 times. And that other prick is wearing monogrammed shirt sleeves and has had the goal of making partner since he got kicked off the tee-ball team for wearing metal cleats.

Tuesday, December 12, 2006

Now as to those I <3 Boobs T-shirts...

At long last, the Supreme Court has answered the vital question of what people in attendance at a murder trial can wear.

Carey v. Musladin

It lacks that certain Justice Thomas-I'm-overruling-stuff-that's-not-even-law-yet panache, but don't worry, Court fans, it's early season, where only the most unanimous of opinions are being thrown out at the women who insist on standing outside the Court throwing brassieres onto its front steps. And that's just Cindy Sheehan, who has to hang out somewhere. Oh, and although it doesn't sound like it, and although I don't think even Justice Thomas intended to, he made it happen in fine form today.

For those of you too intimidated by headnotes to penetrate the curt and breezy opinion's 6 pages, the Supreme Court determined that members of a victim's family can wear buttons with the victim's picture on them at trial.

Wait, no, that's too sweeping. Step back.

They decided that members of a victim's family can wear buttons with the victim's picture on them while the family members sit in the front row of the audience at a murder trial.

Hm. No, still too sweeping. That looks like a precedent.

They decided that when members of a victim's family can wear buttons with the victim's picture on them while the family members sit in the front row of the audience at a murder trial, it is not inherently prejudicial.

That's where it stops, right? Wrong.

This is the quiet beauty of AEDPA, the court systems are spent dealing with minutiae that can't possibly add up to a precedent, which is why the only thing that the Supreme Court can point to as inherently prejudicial is...damn, can't think of anything but shackling him. The best case the Court can point to as an analog here is Estelle v. Williams which is, under the O'Connor dicta the Court is adopting as a holding -- utterly meaningless in a habeas context. I will note that the trend of glorifying the street commodity of a bean balance that is the former Madame Justice is growing in popularity in habeas and Establishment Clause jurisprudence, proving once and for all that both fields of law are irreparably broken and the courts may fare better with a dart board or a party of five year olds pinning the case law on the majority opinion.

But now I must digress back into my point. Justice Thomas notes the O'Connor offering in a concurrence where she was only joined by Justice Stevens (hardly a font of beloved precedents these days -- just read Kyllo) that "clearly established Federal law" refers to the "holdings, as opposed to the dicta, of this Court." Then Thomas points out that this isn't clearly established law, there's no holding saying anything about people in the audience, there's no holding saying anything, in Estelle v. Williams, it was a question about dressing the defendant in prison clothing and so on.

But here's the lingering question. Why cite to these cases? What precedential authority does any discussion of Estelle v. Williams have? None. As Thomas states, it's a case where a defendant failed to object. It's like an exhaustion question. It has nothing to do with habeas in a non-exhaustion context. Any discussion of inherent prejudice from Estelle is, by his prior definition, pointless. Thomas then lists the panoply of disagreements from every court in the country as to whether the issue of whether Williams and Flynn have any application to people in attendance at trials or only state-sanctioned conduct and so on. Which all creates the illusion of an actually drafted legal opinion. That, my friends, it ain't. Ask yourself...what is the holding in this case? The holding in this case is not that the family's actions were not inherently prejudicial. In fact, the holding in this case is that there is no established federal law saying that they were not inherently prejudicial and there never has been. What's more, there never can be established federal law saying that it is not inherently prejudicial, because whatever Court offers that holding is exceeding its role under AEDPA.

So what is Carey v. Masludin? It's officially the end of history. Six justices take no issue with O'Connor's two cents on AEDPA and from this day forward, established federal law with regard to trial practice in a criminal context cannot change until AEDPA is replaced with something more draconian.

Don't get me wrong, the result in Carey v. Masludin is rightly decided, nine justices knew there wasn't much reason to fight this conclusion. That said, the next victim's family better not stop with the "my kid's in the band" plain photo buttons that these people did. I expect production values. I expect T-Shirts that read in 45 point Comic Sans MS (to keep things light) -- Defendant Brutally Murdered My Child and All I Got Was This Lousy T-Shirt. Find me clearly established federal law that prohibits it. And if you do, change the word "And" to "--" and I've got you a habeas-proof trial.

AEDPA has proven once and for all that the Republican party has been idiotic with its approach to all controversies. Every time someone burned a flag, aborted a fetus, or stopped a school prayer, they threatened to yank the Court's jurisdiction. That got people who understood jurisdiction angry, it got the Court indignant, and it ended up vanishing into a puff of smoke. But thanks to O'Connor's desperate attempt to join a majority intent on rendering AEDPA meaningless in Terry Williams, now AEDPA has left the Supreme Court as the kid with the Playskool steering wheel in the backseat of Congress' Hummer.

Thursday, November 09, 2006

Things the Democratic Congress* Should Do, But Probably Won't (for the *, see #6):

1) Open things up. This is the biggest sin that the platformless Republican party committed against America, but it's a grave one. More stuff got pushed behind closed doors into committee meetings that only took place when Republicans and only Republicans were in the room. Thousands of pages of things were silently put into a record that the Democrats who opposed the legislation never saw (not that it would matter, it was destined for victory).

2) Create open hearings on the secret prisons and rendition practices of the Bush administration. Listen, I know it relates somewhat to national security, but it's also KGBish. We don't do this stuff in this country, or at the very least we don't get caught.

3) Two words - trade deficit. We used to be a financial partner. We are now a financial purchaser. This is inevitably going to doom our nation unless we do something to correct it. We need to manufacture something other than weapons, we need to export something other than our troops, and we need to spark some sort of industry more meaningful than It's not going to be easy, we're on a downward spiral and the "solutions" that are used to lessen the trade deficit don't help anyone but scions of industry (restrict all 50 non-municipal employees who are in unions, decrease wages, protective tariffs). But something needs to be done, and we could start by being more choosy about our trading partners. There's no reason our country should be funneling billions of dollars in profits to China, when China is the greatest threat to the United States' future survival.

4) The Estate Tax - Wah wah wah, cry me a gooddamn river. If you die leaving $7,000,000 and can't figure out how to avoid the estate tax, you should lose a lot more than they're charging you. For one, being born to rich parents has already entitled you to too much. Secondly, it's not an estate tax, it's a sloth tax. Any idiot can hide money from the estate tax through completely legal means. If you don't prepare for such events, too bad. I don't like the estate tax, but given the deficit 6 years of Bushonomics have caused, we need some money back, and a tax that only punishes the ridiculously wealthy who are also ridiculously stupid is a step in the right direction. Think of it as eugenomics. (both because it's my theory and because it's a mix of eugenics and economics)

5) Rethink our deployment strategies. We can't bring everyone back, the administration has dug its heels into a mass grave in Iraq that will only get worse if we pull everyone out and let the country fall into immediate civil war exceeding what will inevitably result. But we can at least prioritize our deployments and send those who are most reasonably expected to go. No more of the National Guard/Reserve deployment first strategy. Fact is, if you've gotten paid full-time military pay for years, you're the person who should go, not the guy who was willing to join the reserves in case his country needed him. It's not the job of the National Guard to guard other nations or serve in other nations. It's ours. They need to be here for when this nation needs them.

6) Do something to try and keep Joe Lieberman. Blame the blogs for bringing out the Lamont crowd, because lord knows why I'd stay a Democrat if I was Joe Lieberman. The Republicans should be offering him a position of major authority, because it'd give them the unholy power they've wielded unfairly in secret for years. But if Lieberman feels a loyalty to the party which he rarely supports, they will need to do the same. Biden's already cornered the Foreign Relations Committee, but there's plenty of plum deals for Connecticut's favorite incumbent. Make sure he gets one, or you're going to see yourself as a minority in the senate with a mere 50.

7) Listen to Jon Tester. He might be the wisest 7-fingered man in Congress, even if there are others. The Democrats need to consider a more libertarian strategy, or else they'll be back to being the only party without a platform.

8) Insist that every American receive a tax cut in 2007 in the form of a copy of Snakes on a Plane on DVD. It looks good (note the words "tax cut"), but has the same salutory effect that the illusory tax cuts the Republicans put into place had. And it would spark a serious cultural rise in this country.

Sunday, November 05, 2006

I missed out on so much...

Item #1: from the IMDB...When Madonna arrived in Malawi last month she was amazed to discover her name took on a whole different meaning for all the people she met. The "Hung Up" singer has sparked furious debate after adopting David Banda towards the end of her stay in the African country - and began to wonder why locals knew her name when they had no idea of her superstar status. She says, "People started to say my name and they had never heard of Madonna. And, in Chichewa, the word 'madonna' means 'distinguished white lady', so I think they got very confused."
In a nutshell: "distinguished white lady"? Yeah, I can definitely see how that would confuse them.

Item #2: Neil Patrick Harris revealed that he is indeed a homosexual.In a nutshell: Unlike Mark Foley, he did not need to guise it under molestation or alcoholism. That said, Doogie Howser's computer journal might have given Mark Foley a few too many ideas about sharing emotions with a computer.

Item #3: Saddam Hussein sentenced to death by hangingIn a nutshell: This is commendable on one count, hanging, if done properly, is probably far more humane than any method of execution used in the United States. As for it being a product of the invasion're damn right it is, and the trial was such a mockery as to be pointless. A fair trial might well have come out to the same conclusions and would have secured no more of Saddam Hussein's cooperation, in fact, it would have been impossible. But what they think they're going to accomplish by martyring him, I don't know. Enjoy your civil war, I hope our people aren't forced to fight it.

Item #4: Man, isn't it interesting that all the people who spread their message that homosexuality is sick and perverse are in fact, sick perverts who are homosexuals?In a nutshell: This is the Roy Cohn generation. Ted Haggard, Mark Foley, who's next, Fred Phelps? Bob Dornan? Jim McGreevey ranked high on the creepy scale when there were conversations about his affair, but he at least wasn't campaigning to stamp out his own existence.

Item #5: The Army Times says it's time for Rumsfeld to goIn a nutshell: Let me assure you that the "independent" publication is nonetheless not that independent. These are papers that are published for people in the military, and it really shows. Whether it's the Air Force Times or the local military newspaper (in Bellevue, it was the Air Pulse), these are not papers that are going to go out on liberal limbs that are going to make news very often.

Item #6: Comcast needs to learn how to write headlinesComcast's Headline: Renowned Screenwriter Schrader DiesIn a nutshell: Paul Schrader ( writer of, among other films, Taxi Driver, Raging Bull, The Last Temptation of Christ, and writer/director of Hardcore and Affliction) is, in fact, still alive. His brother, Leonard Schrader, has died. Paul Schrader is one of the most renowned screenwriters (though, in my opinion, he's living on borrowed time and has done nothing since 1980) and writers on the subject of film in the world. His brother, on the other hand, may be renowned to some, but I can count the people I know who have seen Kiss of the Spider Woman on one hand, probably a hand with no more than two fingers. It's not that Leonard Schrader isn't renowned, it's that I don't think there's a person in the country who would think of him first when reading that headline that wasn't personally aware of his death.

Wednesday, November 01, 2006

"We believe marriage is a union between a man and a woman and it needs to be defended."
-George W. Bush in Georgia yesterday

That's right southerners...the Republican party supports unions. Good're voting libertarian this year. Where's Michael Badnarik when you need him? Oh...that's right, he's been lurking outside your house talking about how he has the right to drive drunk unless he hits someone. And stalking your wife with a concealed weapon -- just because he has the right. And interrupting your adult education class ranting about the war on drugs and how it is the motivation behind your son's inadequate education that came from the failure of the education system because it left the market system.

You're right. It'd just be easier to support unions. Fine, Southerner, be a pinko.

Saturday, September 16, 2006

Rainy Day Post #s 12 and 35

This was passed on to me.

It's pretty derogatory, considering it's coming from Oklahoma City University of Law, but he has a point, because I think everyone has at least one professor that writes articles solely to attach inappropriate titles to them. In fact, I can testify on my classmates' behalf that we had a professor who is responsible for anywhere between 5-15 of the Bob Dylan attributions. The abstract, however, tips that this is perhaps the ultimate law review article, because its conclusion is something like "it's all could be used successfully" while also being written by a student who is in no position to determine what successful use is.

All in all, it's an awful article for failing to mention my own work, which went through about fifteen titles, all less successful then my Neil Young rip-off. And I can't fathom that it's true that R.E.M. gets cited more than Neil Young.

As a side note, if he's going to use Guided by Voices to open the article, I would have suggested "A Salty Salute", "Watch Me Jumpstart", "I Am Produced" or at least "Little Lines". (In fact, maybe the article should be titled "Your Name Is Wild". But that's just me -- and Bob Pollard.

Monday, September 04, 2006

The Blog About Federalism is on indefinite hiatus to recover from a stingray wound and mourn the loss of Steve "The Crocodile Hunter" Irwin.

Rest in peace, sweet prince.

Sunday, July 30, 2006

Tell it to Air America before your career goes Apocalypto

I'm going to christen your statement FairyTale: a True Story. Lies are a lethal weapon, Mel. And your pile of bullshit is just a chicken run.
Ok, no, it's a load of bullshit, if you were actually a lifelong alcoholic, you wouldn't turn into a rageaholic when you're at 0.12%, because that's barely even over the real limit (not the illusory South Dakota v. Dole .08 limit that was railroaded through by MADD that accomplishes nothing) You, with your newfound lifelong drinking problem, should have a tolerance greater than that of an infant, you should at least be able to handle a tequila sunrise now and then. You were acting about as stable as a bird on a wire at 0.12%. I'd expect something a little better from anyone, because at 0.12%, you're barely intoxicated, you're not exactly taking on the role of the Road warrior or turning barrel roles like Maverick in top gun. You're barely even doing battle with remaining conscious. At 0.12, you should still be able to observe basic road signs.

You're clearly an anti-semite, which is comforting to know that the council of Elders actually had a point with the whole Passion of the Christ thing. This is good payback, frankly. And intoxication is no excuse, you don't become a different person when you're drunk, you become you in a more revealed fashion. Moreover, let's tear away the facade, how dumb are you? Do you really figure in the town of Los Angeles that there's that many Jewish police officers? Even your concocted theory of the Jews being out to get you doesn't even make sense for a concocted theory of ethnic inferiority. The KKK would be like "hey, Mel, back off, there's not a whole lot of Goldbergs on the highway patrol". There's no Julius Epstein, the singing detective. At least their theories involve banking, law, or Hollywood...and let me assure you, each is an infinitely more plausible ethnic Conspiracy theory than your own, sir. I only hope that the substance of your statements makes it to the mainstream media, so it can be reported about Mel's statements making this the year of living dangerously.

Lastly, I am officially issuing a decree that in the Court of my opinion, a confession to being an alcoholic is admissible as proof that you are not an alcoholic, but are trying to excuse yourself from obedience to societal mores and laws. (See also Eustachy, Larry) Actual alcoholics don't have the time nor the desire to call press conferences to announce their drinking problem, because they're concerned with other things. Or they're in denial. So...if we're playing Who's the Alcoholic?...David Hasselhoff might be, Mel Gibson decidedly is not. But I guess you're a braveheart who can reveal your problems to the world...that's what your average drunk is apparently missing?

So why the lies? Is it what women want? Is it to keep the paparazzi at bay?

PS: If you want anything from Dublin or London...when you get to Canada, turn right and then keep going. :) If you get to Gallipoli, you've gone too far.

PSS: By the way, yes, I do deserve a Pulitzer, and half of the award money will be donated to the IMDb.

Friday, July 28, 2006

Overheard in my sarcasm...

Quotation #1: Floyd Landis is an American hero, just like Barry Bonds, except in a sport we only care about when we win through cheating. He's just like the guy who rode faster because he only had one testicle weighing him down...and was pedaling to avoid hearing his girlfriend play "Soak Up the Sun".

Quotation #2:
You could compare Gary Majewski to pouring gasoline on a fire, but that's a specious analogy. Say what you will against Exxon, BP, and OPEC, but gasoline doesn't start a fire where there was none before.

Sunday, July 09, 2006

Quelle merde!

I'm an American. I ought not care about soccer, and for the most part I don't. So take what I say with a grain of salt.

What do I say?

That the end of the World Cup was the steamingest pile of stinky diarrhea shit I've ever seen, and every time I attempt to watch the World Cup, it ends the same feces-encrusted way -- with the aberrant termination of a game through the penalty kick. It is the worst abomination that could possibly befall any sport, especially in its finest hour.

How can I illustrate this? Well, put it in American terms. It's the Super Bowl. The goddamn Patriots are playing any NFC team (unfortunately, we know how it ends). It's 21-21 with three seconds left. Vinatieri comes on...and misses a field goal (he'll do it now that he plays with the non-loathed Colts, but Martin Gramatica will be doing great this year). So the time's out, there's no time left. We're going to...the punt, pass, and kick contest!'s the bottom of the ninth in the 1997 World Series. Jose Mesa blew the save. Instead of extra innings, where we would continue to play baseball and allow the Indians to lose in a soul-crushing's home run derby time. Hope you're up to it, Matt Williams!'s the NBA playoffs. Ah, I can't watch this crap, the playoffs began last January and aren't ending until May 2009, change it to Major League Soccer.

They've played soccer for an ungodly period of time. They're dead tired, they've got nothing left, the game will grind to a near halt. In other words, this is where it finally gets interesting. The game could end at any moment. But instead, after two overtimes, soccer substitutes the shootout. This doesn't work. Hockey has used the shootout after overtime fails, and generally, it's pretty exciting. Good stuff. But they have the good sense to drop it when it counts. If it's November and the Penguins and Blue Jackets have skated (I use the term loosely) to a 1-1 tie and overtime didn't settle it, fine, use the shootout, because those fans haven't been able to get a beer since 10 minutes into the third period, and they know that even though more than half the teams will make the playoffs, these aren't among them. But in the playoffs, it's overtime, overtime, overtime, and then when that doesn't work, more overtime. They know that the reason the teams are there is because they're good at hockey, not just a particular facet of the game. No matter how passable the shootout is to casual fans, it's just not a real game. It's not as if a goalie is playing by himself against five guys shooting the puck. There's a team component that's totally neglected by the shootout. Sure, you have five guys shooting, but a good team isn't one that is made up entirely of scorers (see the aforementioned Pittsburgh Penguins).

With soccer, it's even more egregious, because it's not a test of skill on skill, it's a test of skill on total and utter luck. There were nine penalty kicks taken in the penalty kick phase that settled the game. 8 of them were goals. This tells you how preposterous it is for resolving a game. For one, nine shots is an astonishingly high percentage of the shots you'll see in a game. Secondly, that's a conversion rate of 89%. How many saves were there by these goaltenders, among the best in the world? None. Not one single save. The only shot that missed was because a French guy was not content to fire into the Red Rocks ampitheater that is a FIFA soccer goal and hit the crossbar.

What's worse, what the penalty kick phase rewards isn't even a major component of the game. The goal is huge because it's rare to get a shot, and because if you do get a chance at a shot, you'll just about never get it off with an opportunity to just focus on putting it in. There's not a whole lot of soccer breakaways. If a scorer gets a shot at a net with no defenders but the scrawny antsy looking guy with the different jersey, he will score way too often.

Maybe that's fine if you're settling some regular season match, but it's not fine when you're settling bragging rights for the World for four years. That's utterly preposterous. And what reason do you have?

1) TV coverage - cry me a damn river. Maybe Americans shut it off when it wasn't 5-2 after 90 minutes, but this is the biggest sporting event in the world. People would watch this if it went on for three weeks. And I'm not an advertising seller, I don't know how it works, but sell contingency ads. You say to GM/Nissan/Renault, "All right, you've got the ads for the transition between the third and fourth OT if it happens. It'll cost you forty billion dollars, if the game gets to that point." They'll buy it. I don't know how the Super Bowl operates with respect to overtime ads, since no Super Bowl has ever gone to overtime, but I'm pretty sure the ad revenue is still better than when the European station switches over to reruns of Webster after the game.
2) Excitement - Oooh, look, it all comes down to this, there's 2 out in the bottom of the ninth! No. Bullshit. It's only exciting if the excitement arises in the organic and natural course of the game. If you tack on generated "excitement", you're just obliterating the nature of the sport. And if you really want to make it more exciting by changing the've got better options. First, shrink the number of players on the field. 11? Screw that. Time for 7. That's still more guys than you need and more names than just about any American will know. Second, make it sudden death. In soccer, overtime doesn't end upon the first goal, the periods are actually played out in their entirety. The paucity of goals scored in your average match renders it essentially sudden death except the losing team has to run around embarrassed until the game's over, but that's besides the point.
3) It's FIFA's bedtime. - You got it. That's all I've got.

These aren't excuses, I don't like soccer as a general rule, it's just not a game I can really get into, because I've been raised in a generation of video games. There has to be something more instant about gratification. If you can be the greatest player of your generation and I won't know by watching four or five games, then I'm not going to give a damn. If your goalie is amazing because he saved actual bona fide shots...I'm not impressed. Even Victor Martinez stops a wild pitch now and then. But that said, if I was a fan of soccer, I'd be utterly irate right now. The World Championship of a sport needs to be decided by playing that sport, not its XBox equivalent.

Wednesday, July 05, 2006

And you think your state is a mess...

Government shutdown will cost New Jersey millions a day in pure filthy lucre.

The regulation of gambling is a huge cash cow for states, and New Jersey is going to give up pure revenue because the state bureaucracy is all-encompassing for the casino industry. As a result, during the peak of the year for the industry, casinos shut down, New Jersey loses millions of dollars of mostly out-of-state tourism revenue, and New Jersey continues to add to its reputation as the greasy, overweight, mesh-shirt-wearing armpit of America.

Thursday, June 29, 2006

Do you like golf? Or do you just hate people who aren't boring?

Women's U.S. Open postponed by fog. In related news, golf loses its last chance of credibility in claiming that it is a sport.

Seriously. Fog. FOG.
Not a fiber optic gyroscope (FOG), the U.S.S. Fogg, John Carpenter's The Fog, not the fog of war (nor the shadow of the future), not Phileas Fogg, nor Josh Fogg, just plain ordinary fog. FOG???

The Indy 500 delayed by fog, I'll buy that, there's genuine peril in driving in fog (that said, it's auto racing, not going to rank #1 on my list of things I consider sports, it's right above curling). This ends the list of sports delayed by fog. Baseball has a credible claim (just ask Ray Chapman), but I've never seen a game undergo a fog delay. Football, they play through anything except lightning, there's no such thing as a weather delay. Baseball, if it's pouring rain, they delay it.

In golf? It really doesn't make a whole hell of a lot of difference if it's foggy. Maybe they're doing it because they're worried the fans won't see enough, but how much are they going to see anyway? If you're at the tee, you see Annika Sorenstam swing the club and the ball go off somewhere where you couldn't see it anyway. Even if it's pea soup fog, you know what, you've got a caddy, his job will be to find the ball if the Golf Channel doesn't first. And maybe it's the TV networks that are delaying it, but again, NFL games get played through fog, so I don't see why broadcasting golf in fog would be so impossible, except that it might add an element of something interesting, which would infuriate the PGA/LPGA, who limit their areas of potentially interesting occurrences to Phil Mickelson sucking and Annika Sorenstam playing with men, proving once and for all that women and men are both equal at boring the shit out of me.

Tuesday, June 27, 2006

Oh, by the way, after reviewing the book of Exodus, I noticed that God didn't promise not to cause more floods. He just said he wouldn't kill everyone with a flood.

So, for instance, wiping out Delaware with a flood...not a breach of his oral agreement with Noah. For that matter, given that God's promise was not fully performable within one year, it needed to be placed in writing, and rainbows do not fulfill the statute of frauds. Hence, unenforceable. Now as to whether mankind was an intended third-party beneficiary, that's a different question...

Monday, June 26, 2006

The Cruel and Unusual Execution of the Presumption Against Death

It's long been stated that there is a presumption against a death sentence. Although the death penalty has been eroded in a number of ways in recent years, the tide appears to be turning yet again with today's decision in the case of Kansas v. Marsh.

The Court decided today that Kansas' "tie goes to the gurney"* statute requiring a jury to sentence a defendant to death if the aggravating factors and mitigation were in equipoise was perfectly constitutional. Relying in part upon Walton v. Arizona, the Court determined that a defendant can be obligated to prove that mitigation outweighs aggravating circumstances in order to avoid a death sentence. Walton, of course, is not a direct decision on that point, instead determining that a jury does not have to determine a death sentence (since overruled on that point, of course). While Apprendi would not do anything to change the result in Walton, given that the statute's maximum penalty was death, it was just practically taken off the table, the Apprendi revolution seems to be getting surprisingly short shrift in today's decision.

In Walton, the Court noted that under Arizona's statutory scheme:

The burden of establishing the existence of any of the aggravating
circumstances is on the prosecution, while the burden of establishing mitigating
circumstances is on the defendant.

It becomes difficult, if one accepts the Court's determination in Marsh, to uphold the conclusion in Woodson v. North Carolina, since the presumption against death only means that a state must rationally narrow those who are eligible to the death penalty to those who have some peppercorn of aggravation above the statutory violation itself. Moreover, it is unclear why a mere outweighing of aggravation would be sufficient. Under Marsh and Walton's resurrected non-holding, the court permits placing a burden on a defendant to present mitigation "sufficiently substantial to call for leniency." As a result, there doesn't appear to be any reason that a state could not rquire mitigation to substantially outweigh any aggravating factors. The jury merely has to be permitted to consider all the mitigating evidence that a convict wants to present.

If a tie can go to the gurney, effectively the aggravating factors have been written out of the statute entirely, because aggravation and mitigation are in equipoise if neither is offered. While it is perhaps a contrivance to argue that the evidence was perfectly equal, and that an Allen charge was more likely the appropriate result, Marsh will likely be a springboard to states who want to tweak their death penalty statutes to ensure a larger number of people end up on death row, finally being given a way to combat Ring and Woodson.

We can see Kansas v. Marsh a number of ways, none of them positive. Maybe it's a pointlessly narrow case that just explains why the Michigan v. Long presumption is purely a silly O'Connor equity contrivance that should be eliminated instantly, especially in the context of the death penalty, where there is a presumption against AISG for Marsh now, but in habeas, the presumption switches immediately to the rule of Coleman v. Thompson, where the trap of AISG will once again swing to open the door to the death house. Even Stevens' rights-narrowing approach would make more sense than the mess of Long here.

Most likely, it is a statement that John Roberts really is a big fan of the death penalty, no matter what the habeas work and his Catholicism might have indicated. Kennedy thinks he's being innocuous after standing out as a hippie in Roper and Atkins, so he's joining a devastating death penalty opinion.

Fundamentally, the case is the death knell for the presumption against death. Perhaps it's finally clear that the Supreme Court needs more sports fans. Think of the aggravating circumstances and mitigation evidence as a scoreboard. While quantifying evidence is ludicrous, this demonstrates a dire flaw with the practicality of the system we have, and I won't attempt to correct it in this post. The jury found three aggravating circumstances

Only in law could the result in a 2-2 or 1-1 game be different than a 0-0. If it's zero-zero, Marsh wins a lovely parting gift to life in prison with no possibility of parole. If it's zero-one, Marsh wins life in prison with no possibility of parole. If it's 1-1...Marsh is executed. No wonder they say defense wins championships.

A professor of mine had offered three theories as to how the Supreme Court resolved cases...and it fits here. Marsh got cute -- or at least might have. The Supreme Court's decision is, typical of Justice Thomas, utterly uninstructive, saying only that Marsh did not outweigh the aggravating factors. It's unclear whether the mitigation was actually regarded as "equal" to the aggravation.

If not, then the don't get cute principle definitely applies here. Marsh would have lost on the scoreboard 3-0, and convinced the Kansas Supreme Court that the statutory provision was unconstitutional, because the tie went to the gurney.

Never mind if there wasn't a tie, the statute was unconstitutional. Kansas' Supreme Court got it right, the statute ought to be considered unconstitutional. It's just that there's no as applied challenge here, so Marsh got lucky, his sentence was struck down because of a statute that might have ended up having no impact on him whatsoever.

And, now, as a result, more people will die. Marsh's reign of terror continues, but now he has five accomplices wearing black robes, luring states to execute or execute with red tape more and more offenders and inspiring legislatures to bring back the presumption in favor of the death penalty.

It's a deadly game, and the Court's credibility is the big loser.

*The phrase is mine. Yes, I do feel pretty damn clever.

Monday, June 19, 2006

Friday, June 09, 2006

The Duke Lacrosse Case - Solved at last, thanks to Encyclopedia Brown! It was Bugs Meany!

Ok, I hate Collin Cowherd. Say what you want about Jim Rome, Jim Rome is generally offensive, so it doesn't really matter if he's right or wrong about something, you just know it's meaningless. Cowherd on the other hand isn't Jim Rome, he's a pale imitation of Rome who offends people by being a dipshit.

Today's topic, the report coming out yesterday that the second exotic dancer at the Duke Lacrosse party said the allegations were a "crock" and that she had spent the entire night with the first dancer.

Now I don't listen to the Herd with regularity, but the last time I did, Collin was going over the 400 reasons why it was a defense attorney's field day because of this same person contacting a New York publicist to see how she could "spin this her way". Today, he's going over why this destroys what's left of the case.

Basically, Cowherd's three premises besides 1) I'm a dipshit!.1) There's no DNA evidence. (Whee golly!)2) The dancer said that the allegations were a crock (at some point, the time frame on the report is not clear)3) You will distrust an exotic dancer because of what she does, as a matter of human nature.

I. All right, first, #1 is what is now gaining some academic tonnage in some circles as the "CSI Syndrome". Basically, because people are now aware of things like DNA testing, forensic sciences, and any number of absurdly preposterous technological advances they've seen on CSI and similar shows, they now EXPECT them and will make decisions based on them.
This is seriously problematic, since 1) these tests aren't as dispositive as people treat them because a) they can be tampered with, b) even if they weren't tampered with, you'd never know as a juror who's unfamiliar with electrophosphoresis, so unless you're abandoning your role as a juror, you really owe them absolutely no deference, because you're letting experts make your decisions for you and offer what essentially become legal conclusions. 2) Lots of cases will not have this kind of evidence or would be ill-served by wasting efforts running ballistics tests when you have 40 people who know the defendant and know he was the one who committed the crime. 3) Processes for separating DNA when there's a mixture of it introduce another layer of complication. 4) By having jurors who expect this evidence, we now create a new floor for cases. Rape cases won't be tried unless there's some sort of DNA evidence, because prosecutors don't want to lose. This is analogous to the disastrous rules that Congress added to the federal rules of evidence over everyone in America's objection (aside from NOW) that permit introduction of otherwise inadmissible past conduct by the alleged sex offenders. As a result of this rule, now a prosecutor will be less willing to bring charges at all if there's not a record of past sex offenses.

II. The second premise is utterly preposterous. If she described it as a crock, great for her, but you can't place any weight in it, because, as Cowherd pointed out on the previous show, she wants to "spin this for her". Well, this case is going down the crapper, so of course she'd say it's a crock. If in fact she said it ages ago, well, what made it more credible than what she's saying now? This thing has been a media frenzy from the outset. If you determine that the other exotic dancer lacks credibility (which I believe she does), then you have but one conclusion to draw from what she's said...and that's not a damn thing. Because it's not like she's only credible in one direction (like say, in making statements against interest), because she doesn't have an interest. If the victim says they're a crock, then it's pretty likely to be true (not absolutely likely, since in sensitive cases (domestic violence, sexual abuse) there's a lot of mental gymnastics in a victim I don't pretend to understand, but more likely). If some other stripper who has lost all credibility says it...doesn't change a thing.

III. I agree, although one caller hit him with a good response to this...she's a stripper, they're a bunch of horny kids who hired a stripper. Gotta say, if I'm really choosing sides on that one, it's hard to say that they're much better, and it's easy to make the argument that they're emphatically worse, since they've likely got a lot more options in life than a girl who becomes a stripper. I'm not saying it's true, but it's possible.

Two specious arguments he made sickened me. 1) The Duke lacrosse team was involved in more community service than any other Duke men's athletic team, 2) the Duke lacrosse team had the highest graduation rate. Well, as for #1, look at them, they're a bunch of rich white fraternity boys. "Community Service" dressed up as community service carries no weight to me, because I've been to college and would gladly rid the world of their community service in exchange for more people like my friends. Secondly, again, everyone graduated...well, they're a bunch of rich white kids. Basketball players don't graduate because they're not there to go to school (or do because Duke lets them slide by); football players don't have a 100% graduation rate because they too aren't there to go to school -- though judging by Duke's record, you'd never know -- and there's 120 players on the team. And there's the race thing. Sorry, but minorities graduate at lower rates, and people who come from lower-class backgrounds do as well. Those are two groups you won't find overly represented on Duke's lacrosse team, if for no other reason than the fact that lacrosse isn't really offered at a whole lot of inner city/rural area high schools. But good luck finding a high school without basketball or football.

As a final note, I should say, I'm pretty sure some of those lacrosse kids are guilty of something. Would I vote to convict? I'd want to based on the way their attorney has been trying to use the media to win his case, but no, I wouldn't. There's a reasonable doubt as to whether these were the guys who were doing whatever happened. In a house with 30 people in it, it'd be almost impossible to conclude beyond a reasonable doubt that these three people in particular did the things they're alleged to have done. There was no way a rape charge would have stuck on these facts, and the prosecutor only ran with it to try and raise his name and then maintain it after it became a media frenzy. He ought to be disbarred for his own use of the media in leaking information and for putting the alleged rapists in the spotlight for as long as he has, because it eliminated any shot of a fair trial or a successful one.

Monday, June 05, 2006

Percy Walton and the contradictions of Demographic Assault
Here's why Atkins v. Virginia and Ford v. Wainwright were wrongly decided.
I couldn't possibly care less whether he's insane or retarded. Moral culpability has nothing to do with the reasons people are executed. I wish people would just say what they mean.

Type A - "Focus on the Family"
People who want him executed say: "we want closure for the family."
People who want him executed mean: "we want revenge."Nothing wrong with that, I like revenge as much as the next Edmond Dantes, but I also think that it's not something I want my government doing. I honestly prefer vigilante justice in the raw form. I'd much rather have a pack of thugs go after Andrea Yates than a sterile governmental facility.

Type B - "Not in my garden of earthly delights"
People who don't want him executed say: "he's insane, it's unjust to execute the insane."
People who don't want him executed mean: "It's unjust to execute anybody." OR "Find me a murderer who's not insane."

Sorry, I don't see a whole lot of people outside of Justice Kennedy and Justice Sandra Day O'Scale who really think that there's a credible moral distinction between executing someone like Ted Bundy and executing someone who's insane.
This isn't the abortion rape & incest debate thing, which I find similarly misguided, if you're really pro-life and you can have any exceptions, you are exceptionally retarded. As soon as you step away from your moral absolutist position, you've lost all traction with your argument, because then you're engaged in O'Connor's garbage balancing tests, figuring out whether it's more wrong that the person was raped and has to carry a wonderful blessing from God or more wrong to kill the blessing from God.I'm not far off from either of the unspoken meanings in type B. I really think it's hard to classify people into the M'Naghten groups of incapable of appreciating that their action is wrong or not. Both people are totally mentally ill. If you kill for pleasure, you've got serious mental illness, you just might not have the right kind of mental illness. I'm not going to say that it's any more volitional, though, if you really have that all-consuming urge. The murderers who aren't mentally ill -- usually committing murders of policemen, other gang members, during robberies -- still would fall into my idea of mental illness, because I cannot honestly fathom the ability to kill another person as a volitional act. Apparently, there are millions of people who disagree with me, which is frightening, but necessary. (An army of conscientious objectors wouldn't have beaten the Nazis for long)

In any event, he's going to be executed, because the Supreme Court's not going to step in. Moreover, Tim Kaine is opposed to the death penalty, but had his hand forced in the election to vow to execute every person he saw. His re-election and his soul may depend on the choice he makes...but that said, he's a politician. He'll choose the former.

Friday, May 26, 2006

Baseball = federalism

The Bizarre stat of the day belongs to Ken Griffey Jr.:Griffey has batted in the third spot in the order in each of the games he has started this season (he pinch hit once in the first spot in the order). Here's his stat line:.256 batting average, 6 HR, 26 RBI, 8 runs, 0 SB.6 HR, 8 RGriffey has scored a whopping 2 runs where he was driven in by someone other than himself. Those two occasions: a grand slam by Edwin Encarnacion on April 11; and a single by Rich Aurilia just three days ago. This is batting in the third spot in the lineup, where he should be getting driven in on a regular basis.

Let's compare him to the #3 batter of the woefully deficient Kansas City Royals. Doug Mientkiewicz: 1 HR, 13 RBI, 16 R. 15 times he was driven in by someone else.

How about the Pirates? Freddy Sanchez: 4 HR, 23 RBI, 18 runs. 14 times he was driven in by someone else.

While one could point out that the comparison is inapt because Griffey was injured for a fair period of time -- first, so was Mientkiewicz, secondly, he still has more RBIs than either of those players, there's a huge disparity that's unmatched. The disparity is far more appropriate for a leadoff man (for instance, Scott Podsednik with 13 RBIs, 35 runs; Joey Gathright 7 RBIs, 23 runs) than a guy who's supposed to be in the middle of an order, especially one that is nominally potent.