Update to Saudi rape case

Article here

The king of Saudi Arabia has reportedly pardoned the gang rape victim who has been in the news of late (or at least the female rape victim) amidst complaints by Saudi conservatives that he is compromising religious stances and giving in to western pressure.

My original post here

Wine Review: Strauss Gelber Muskateller 2005 (Austria)

This bottle brought itself to our attention on the shelf primarily because of the light, translucent color of the wine/bottle, accented by the classic styling of the label and coat of arms. Strauss has several light white offerings, but we chose the Gelber Muskateller because we had not tried that varietal, and if we ever become serious about the Century Club (those people who can prove they have tried the wines of a hundred different grape varietals), this relatively specialized one could come in handy. We were almost dissuaded by the screwtop, which was surprising to see on a $14 bottle of wine, but decided to see if the expense would be worth it, probably mostly because once something strikes my fancy I have a hard time letting it go.

On opening the bottle after chilling lightly, the wine presents surprisingly intense flavors of apricots, almonds, walnuts, and a shade of lemon. While certainly a dry wine, it has enough fruit to almost make you forget that fact. It has a medium weight for a white, and a slightly buttery texture that melts on the tongue. Altogether, it makes a good pairing for food with sea oils and cheese with some pungency (such as the shrimp and pasta, with a rather good Romano we had it with).

The one down note is that the wine has a rather monochromatic acid to it. When I had a glass without any food, it was a bit forceful, and I did not really taste the other complexities until the initial impact of the acid on my taste buds diminished. Slow sipping helped, but this wine seems to need light but slightly sharp food to help it find its place. Perhaps a few more years of aging would also help mellow the tone, although I don't know how much I would trust the screwtop packaging to allow that.

Felony Fun

I love Virginia law. If a criminal defendant is charged with "larceny of a dog" (or certain other animals), you don't have to prove the value of the animal. However, in order to convict someone of the crime of "larceny of poultry", you must specifically prove that the poultry taken was worth between 5 and 200 dollars. See Va. Code § 18.2-97.

The significance is that larceny of poultry is a felony, while under normal larceny rules, stealing something worth less than $200 is a misdemeanor, with significantly lower penalties and no loss of civil rights such as voting and gun ownership.

So conceivably, if a particularly scrawny chicken was stolen, you could have an expert witness battle involving whether the chicken was worth less than $5 or not. Welcome to Old Dominion.

Somehow this is not as surprising as it should be

Matthew Murray's ATI past

There seems to be a lot of talk regarding whether the curriculum itself was to blame, or the parents, or just "sometimes you get a bad apple." For my two cents, you have to be careful about thinking that you have "the answer" for how to educate. Children have different needs, and when you fail to account for the individual challenges of each child, you fail to show the love they need to feel a part of the "community" of their family. That and you probably lack the humility to recognize that others (who may not believe exactly the way you do!) may know better or be better equipped to meet these needs.

The Ones That Didn't Make It

In the course of researching today, I came across a link I thought rather interesting - the texts and histories of the constitutional amendments not ratified. There are only six of them, but several of them can still be ratified (including a child labor amendment which only lacks 10 states, but appears to be largely superfluous now that Commerce Clause power is so broadly interpreted). So, for a quick look at the ones that didn't make it, click here.

Virginia to suspend licenses of 5% of drivers?

Article Here

The Virginia General Assembly State Auditor has just released a report stating that nonpayment of the "abuser fees," civil penalties automatically accruing to Virginia drivers upon conviction of reckless driving, drunk driving, and other traffic misdemeanors and felonies, is prevalent. As the fees range from $250 - $1,050 per year for three years, the idea that people simply don't have the money to pay the fees and accordingly don't is believable. Nonetheless, only 13% of the fees assessed for misdemeanors are paid, and only 5% for felonies.

(As a side note, I am not actually sure why the law included the felonies, as it's hard to pay your fines if you are sitting in prison and the extent of your economic activities is trading cigarettes for protection.)

The Auditor's conclusion is that the DMV may have to suspend 300,000 Virginia licenses in the coming year, or more than 5% of the total number of current drivers' licenses. I don't recommend disobedience, but it does appear in this case that if nobody pays it, what are they going to do?

There are several legislative proposals in the hopper for this year, so it will be interesting to see what happens. For a possible judicial solution to the matter, see the model brief (which is not necessarily in the form as I would present it, but to each his own, and I haven't written my own) available here.

Link of the Day

Here you may find a well turned satire using the anti-alcohol logic: On the Holierness of Tea-totaling.

I also appreciate the commenter there who mentioned that moderation-vs-abstention had interesting results when applied to the field of sex.

Practice tip

(After receiving repeated calls from an individual who apparently believed it was currently the 1940s)

"Rule number one, when doing mental commitment hearings: never give your client your business card."

--The firm's first-named partner

You know, some systems of law are really better than others

If there is one thing that is easy to criticize about Islamic law, it is its treatment of women. For instance, rape is seldom punished because unless further witnesses corroborate the victim's story, the victim will be punished - severely - for adultery, having confessed to engaging in sexual activity but failed to prove unwillingness or a perpetrator. There is thus a strong disincentive to raising the matter at all.

This week, however, a Saudi court proved that even reaching a conviction isn't enough. In this case, a woman managed to secure the conviction of the men that gang-raped her 14 times one afternoon. Although the "up to ten years" they will be spending in Saudi prisons are surely no joke, this is a mere slap on the wrist for a country where swiping a wallet costs you a hand. However, the woman will be spending some time in the clink herself, as well as receiving 200 lashes. Turns out that in the process of testifying against the mass of defendants, she had to admit that she had *gasp* been in the car of a man not her relative (that was where she was raped - apparently scienter is not a critical element of the crime of being in a car with a man not your relative).

But women's rights and other substantive issues aside, there is another aspect of this case that indicates the trouble the Saudi legal system is in: as part of the appellate court's decision, they suspended the woman's attorney for undertaking the appeal. Not only do they have draconian punishments and a lack of substantive rights, but they punish those who attempt to stop (or just actively monitor) the railroading of these people. With such a disincentive to even run interference on the prosecution or level of punishment of anyone presupposed to be guilty, why even bother having a "justice" system?

It does illustrate, though, why the lawyers in Pakistan are so demonstratively upset about threats to the post-British legal system they have. They can see from their neighbors where the loss of a confrontational legal system leads.

Article here

Please do not feed the Benjamin

©2007

Used by Permission

(Benjamin is a guy at our church who is deathly allergic to peanuts. When he was little his parents made the title of the post into a sign for him to wear in the nursery. He has since outgrown the nursery, but we still label things that go to church, so as not to knock him off.)

The things they come up with...

Concept cars, usually created by auto manufacturers to show the artistic direction their models are going, are usually very interesting to look at. Not so much the above Mazda Taiki, unveiled recently at the Tokyo Motor Show. The high, ungainly lines and curves say "Half pimp-mobile half Indycar, after getting a Redneck lift job." It might be cool to drive to a Star Wars convention in, with a little Palpatine plush doll in the rear "window," but I have a hard time imagining driving this vehicle with a straight face. I can't even imagine how much fun it must be to change one of the rear tires. If I had to provide a tag line for this entry, it would read, "With any other car, you simply hit a deer. We chop it into steaks for you."

Rocky the Frying Squirrel

Article Here

Given my enjoyment of mischief and destruction, an article about a squirrel blowing up a car (even if posthumously) is too good not to pass on. In the roadkill wars, this rodent deserves a Croix de Guerre. (Hey, there is precedent for animals receiving that award...)

Cross-examination fun

Thanks to Judge Buchmeyer for the following exchange in a Texas trial:

Q. On the day that Twine was shot, were you intoxicated?

A. I definitely was not.

Q. Had you been drinking that day?

A. I drank a few beers.

Q. How many beers did you drink?

A. About thirty.

Q. And you were not drunk?

A. No.

Q. What is your definition of drunk?

On Nobels

Gore uses the Force: "I find your lack of faith in global warming... disturbing."

I am still trying to figure out what "educating the world about man-made climate change" has to do with the purported purpose of the prize criteria: outstanding achievement in understanding or ameliorating human conflict. Armistice negotiations, protesting, humanitarian aid to displaced persons, and arms control I can see. But carbon emissions?

Life's too short to drink cheap beer

The merger of Miller and Coors won't have much effect on me. I tend to stick with the good brews.

The newest such brew (see also report by Wileyman) is the Wee Heavy Ale at Vintage 50


Of course, we shouldn't forget The Heart and my old favorite, Old Dominion Brewing Company (in particular, their Oak Barrel Stout).

The Realities of the Rebellion

Chruch Fathers

This actually wasn't one of the better online personality quizzes I have taken, as the answer choices were usually rather limited. Nonetheless, the topic makes it worth posting.

You’re St. Jerome! You’re a passionate Christian, fiercely devoted to Jesus Christ and his Church. You are willing to labor long hours in the Lord’s vineyard, and you have little patience with those who are less willing or able to work as you do. Your passions often carry you into temptation zones of wrath, lust, and pride. Find out which Church Father you are at The Way of the Fathers!

Funny

Funny line--
[After Instructor Brad describes the defense against an attack with a small stick ]
Sensei Dave: "And if you get attacked by a quarterstaff, you have been hanging around too many Renaissance festivals."

Funny toon--
Irregulary Webcomic on Elven poetry

Update on life

Having not been very good about updating recently, I offer the following in abbreviated form:

Tunes: Basil Poledouris' The Jungle Book is amazing. The Heart got me a copy; the theme is a very full, grand view of life, the adventure in the wild. The track "Attack of Shere Khan" has some very nice brass work which I think comparable in quality to the Asteroid Belt music from The Empire Strikes Back.

Books: Timothy Zahn's The Icarus Hunt is a sort of Firefly (for starship, bad guys, and plot) meets Ronin (for characters), and a lot of fun. Sci-fi is just better when it's about the down and out who can barely keep their ship running.

Activities:


It rocks.

Vehicles: Angus passed 233k, but inspections may catch up to him soon. Have to wonder how it saves the earth to downcheck a car based on emissions, requiring me to buy a new one, and thereby causing all the carbon emissions of refining, processing, and working two tons of steel, making carpet, glass, etc.

Work: I am working full time but not permanently. Nonetheless, reversing the cashflow hemorrhaging caused by education has been nice.

Alabama Constitution

I like some of the oddly (or oldly) worded laws legislatures come up with and don't change. I offer as an example the following, which is the sole grounds (beyond the general provisions for all state officers) for impeaching a county sheriff:

Whenever any prisoner is taken from jail, or from the custody of any sheriff or his deputy, and put to death, or suffers grievous bodily harm, owing to the neglect, connivance, cowardice, or other grave fault of the sheriff, such sheriff may be impeached...

Ala. Const. § 138.

Yep, in Alabama, sheriffs can be impeached for cowardice, if a prisoner gets lynched.

Oh, and since it also seems interesting, the governor and other high state officials can be impeached for "intemperance in the use of intoxicating liquors..." Ala. Const. § 173.

Quote of the Week

"[Mr. T's] veins bulge with smaller veins. He sweats animal blood. His armpit hairs are made of beef."

--Gene Weingarten, "Cattle Call," Washington Post, Aug. 19, 2007, p. W60.

Congratulations to the 1000th visitor

The counter (unobtrusively posted at the bottom of this page) has, as of 23:33 (EDT) last night, reached 1000 visitors since I started keeping track.

Thank you, person from Iowa State University for visiting. Your prize is the following message: GO CYCLONES!

And thank you, Cavie, for providing the link that led to the 1000th visitor.

Reminds me of a someone who just took the Bar...

Bad Inventions

It would be a bad thing if a combo copier/fax machine was set up so that hitting the start button in fax mode would automatically redial the last number called. Especially if the difference between fax and copy modes was a simple switch, button, or light which you might not notice.

As in, "Please copy this super-sensitive internal document." "Oops, left it on fax mode again. I wonder if the last fax we sent was to the other side's lawyer?"

After a long hiatus...

Expect more hiatus to come (for the next few weeks)

Where have I been? Studying.

And in case I don't pass the bar:
$3990.00The Cadaver Calculator - Find out how much your body is worth.

Campaign theme songs

Hillary Clinton has openned up voting for her campaign theme song. One of the choices is Smashmouth's I'm a Believer. This seems an appropriate choice, in that it first appeared in the movie Shrek, where someone with political ambitions and connections finds out she is just an ogre.

Fortunately, Hillary has kindly provided a space for write-in nominations. One suggestion is that she just re-use the "Kennedy-Kennedy-Kennedy-Kennedy" song, but somehow I don't think that would work, insofar as people might remember that she is not a Kennedy, but Schwarzenegger is. Any good angry-chick-music ideas?

10 Month Old Baby Acquires Gun Permit

The baby's father secured the permit for his son after the baby's grandfather gave him an heirloom shotgun. Jr. will not be allowed to use the shotgun until his is 14 and the grandfather will hang onto it until then.

Spousal vs. Marital privilege

It has come to my attention that many of my friends, as well as a few of my enemies, do not know just when a person can be excused from testifying against their spouse. Accordingly, let me put forward this miniature encapsulation of the matter, which of course is a gross simplification of U.S. federal rules only, is not legal advice, and misses important exceptions that may apply to you and that only a highly paid attorney could tell you about.

The first thing to note is that there are two separate privileges that may come into play. First is the individual right of a person not to testify against their spouse. This right is the "property" of that individual, and only comes into play if the individual is called as a witness in a criminal matter to testify against their defendant spouse. If these circumstances are present, the law imputes the "one flesh" concept to the 5th Amendment and considers having to testify against your spouse the same as testifying against yourself. This protection covers not only what the witness has observed during the marriage, but also what was observed or known about the individual at any time before the marriage. Note that this only applies to a current spouse, so if the marriage ends or is not valid for any reason, it will no longer protect the witness.

The second type of privilege is marital. It comes about because of the special relationship of marriage, and bears analogy to the attorney-client privilege. Its purpose is to allow spouses to freely communicate without worrying about whether their communications will come out in court, and so is held by both persons and can be individually exercised by either to silence (for purposes of legal evidence) the other. It is valid in both civil and criminal contexts, and covers communications and observations that are sufficiently "marital" (sometimes a tricky test). It only covers those things that occur during a valid marriage, but can be used after the marriage is over to maintain the silence.

To illustrate all this, if a divorcee is the defendant in a criminal case and both his current wife and his former wife are called by the prosecution to discuss things the defendant had done in their presence, the current spouse could say, "I refuse to testify" and be excused completely. The former spouse, however, could not excuse herself, but the defendant could forbid her to discuss those things that had been done during the marriage. This would be true regardless of whether the former wife actually really wanted to testify against him.

Здоровье!

Dr. Sanders killed him. In the hallway. With the candlestick.

Kudos to the budding humorists back at the nest for this Onion-esque gem.

St. Louis Cardinals

Having been a Cardinals fan for around two decades now, I should have remembered this part of their cycle...

See, what happens is, they get close to doing well a few times, then against all odds the miracle kids actually win a world series or something like that, then the next year (and sometimes for about a decade afterwards), they sit back and it's like they don't have anything to prove anymore, so they slump around a bit. They pick up a few key injuries, and next thing you know the whole season is over.

The thing about the Cardinals is, they seem to be really moody. I know sports in general tend to be strongly influenced by morale, but I would say the Cards are even more so. If they are losing badly in the 6th, they will lose really badly by the time the 9th rolls around. If they only need one win to clinch their division but there are 10 games left in the season, they won't get a win until the last game or maybe the second to last, because hey, plenty of time to get a win later. (On the other hand, if it IS the last game, or game 7 of the NLCS or some other similarly momentous moment, it can negate their losing badly rule, and the need to win will actually let them come back seven runs in the bottom of the 9th with two already out.)

So, see you in the 2016 World Series when my Redbirds are feeling like maybe they will grace us with an appearance again once they can be properly appreciated for having been absent so long. Or maybe I am just feeling moody myself. ;-)

Wine review: Golden Kaan (South Africa) Pinotage 2003

This past week, in celebration of the end of law school, we tried a new wine, Golden Kaan's 2003 Pinotage, from South Africa. For us, it was both a new varietal and our first African wine.

The first thing to notice about the wine is the bottle (which was actually why I noticed it among the hundreds of other bottles on the shelves). The green glass/red wine black with little decoration or front labeling other than the golden African continent is bold but somewhat minimalist, an effect that pleases me.

The wine itself is dry but light bodied. The Pinotage grape was developed in South Africa from a combination of Pinot Noir and Cinsault, lending a fruity flavor to the lighter Pinot body. It has a primary bouquets of cherry, but backed up with perhaps a hint of mango and leather, giving it a cheerful but complex flavor. It is pleasant while not letting you forget that it has come from the ground.

It is rather finicky in its food matches, however. It is easily overpowered; heavy meat or strong cheese leave it feeling bruised. It does well with Monterrey Jack cheese, and would be a good red to accompany chicken or fish. Light pasta or a salad would probably also work.

Almost too cheesy to post... but not quite.

Thought

European Union Constitutional Law is way cooler than U.S. ConLaw. At least as far as separation of powers and institutional delineations.

(This thought courtesy of final exams)

Cool car?

On a stop by Wikipedia for other reference work, I happened upon their article about the Maserati MC12, Maserati's supercar (comparable to the Ferrari Enzo). I immediately began daydreaming about the gentle vibration of the 630 horse 6.0 liter v12 right behind the driver seat, the tight cornering, the massive but effortless acceleration...

And then I noticed that it doesn't have a CD player, radio, or any sound system whatsoever, nor any space or hookups for one. Sheesh. If I am going to drop $820 grand on a car, I don't want to also have to bring an iPod just to listen to tunes. Guess I'll be sticking to more run-of-the-mill Maseratis from now on.

ILM Sense of Humor

"Phantom Menace character Jar Jar Binks is also encased in carbonite - after being voted the worst character in science fiction history."

The Pets Unionize

China to battle gaming addiction

From the BBC

China has announced that within the next three months, certain online games in the Chinese market will be required to implement systems for players younger than 18 cutting point-making ability in half after three hours of gaming. After five hours, a warning screen will have to pop up and no further points may be allowed. (The article did not seem to indicate whether this is a per-day limit or just requires a logout.)

The privacy implications, however, are astounding. In order to implement this system, youngsters will be required to log in with their real names and the Chinese equivalent of their social security number. From what I gather, the software provider then checks this information against a central database the government provides access to. Unless the law itself provides differently (media being such informative and accurate sources of the intricacies and technicalities of regulations), this seems like the ideal time to go into the advertising-and-video game industry in China. With all this information about the identity and tastes of the gamers at your disposal (pshaw if they're minors), there is plenty of targeted ads that can be readily delivered. And hey, they're allowed to be at your site for 3-5 hours a day.

More legal humor

Thanks to The Heart for pointing me to "Say What?!", and to TexasBar (Judge Buchmeyer) for his amusing legal anecdotes, including the following:


In a one-sentence order in a frivilous wrongful termination suit (after the plaintiff had lost a jury trial), U.S. District Judge Barbara K. Hackett (Eastern District of Michigan) denied the motion for reinstatement "for the reasons best stated in defendant's brief in opposition to the motion," which read in full:

Brief in Opposition to Plaintiff's
Motion for Reinstatement
Plaintiff has got to be kidding.

Respectfully submitted,
Simpson & Moran
By Donald A. Van Sullehem
Attorneys for Defendant
Birmingham, Mich.

Original here

The New Steel

If you have opened a newspaper, visited a website with advertising, ridden public transit, or turned on the radio recently, you have probably noticed that the steel industry is running a general advertising campaign. One of their advertising slogans involves the steel industry as the "backbone" of America, as shown in the following ads:





As inspiring as these pictures may be, however, they leave me wondering just why they chose to represent their industry as having scoliosis, the condition of a spine which has lateral curvature. (The economy also appears to have lordosis, a forward bending of the spine, but that is not as clear from the pictures.)
Note below where I have added lines indicating more clearly the angles, demonstrating how according to their own advertisements, America's backbone is nearly 40 degrees from straight, thanks to the steel industry!





This will, of course, lead to deforming of the economy's ribs, mobility and strength limitations, abnormal muscle tensions, and eventually, if left to its own course, cause the entire country to become hunchbacked.

(click here for the democratic encyclopedia entry for scoliosis)

Turnitin.com Sued

First, I would like to thank the Brain and GBA for their welcome.

Next, I would like to share a piece of intelligence which will not bring tears to many eyes. It may prove diverting, and some may even break out a bottle of Extra Old.

Our favorite paper-scanning site is being sued by some high school students in Virginia and Arizona. The point that they raise is that Turnitin.com archives all that papers that it scans. The students requested that the site not archive their papers, which it did. They are going to argue that because the site profits from their intellectual property Turnitin.com violates the copyrights that the students hold on the papers.

"Andrew Beckerman-Rodau, co-director of the intellectual property law program at Suffolk University Law School, said that although the law regarding fair use is subject to interpretation, he thinks the students have a good case.

"Typically, if you quote something for education purposes, scholarship or news reports, that's considered fair use," Beckerman-Rodau said. "But it seems like Turnitin is a commercial use. They turn around and sell this service, and it's expensive. And the service only works because they get these papers.""[1]


And there was much rejoicing. We will keep you posted on the developments of the case.

Thanks for reading.

~The Heart

===================================================================
[1] Gold, Maria. "McLean Students Sue Anti-Cheating Service." Washington Post 29 Mar. 2007. http://www.washingtonpost.com/wp-dyn/content/article/2007/03/28/AR2007032802038.html.

Plagiarism is defined as the borrowing in whole or in part of another's work with out proper attribution.

Music quiz

I don't share many quiz results, mostly because they are generally pretty poor at coming up with a good answer that demonstrates its ability to use particular questions to infer a related result; that is to say, if I can predict the answers I should give to get a particular result, I'm not going to be a big fan of the quiz. This one, however, I found interesting. Thanks to Dougie for the quiz.

Weird Al Shares Your Taste in Music

See his whole playlist here (iTunes required)

Which Musician (or Group) Shares Your Taste in Music?

Welcome to my partner in posting

GreatBlackAngus welcomes The Heart as a new contributor to this column of text. Look for thoughtful commentary from my partner-in-all-sorts-of-other-things-as-well coming soon.

--The Brain

Even Democrats have trouble with the District's asinine laws

Webb Aide Arrested

Whenever I cross the Potomac from west to east, I have this sinking feeling that somehow I forgot to check all my belongings for things that are perfectly legal where I came from - not just guns, but all sorts of metal objects, canisters, etc. I've had a few scares, especially when I had a courier job that required driving all over the area in unpredictable paterns. In all, my life would be easier, and I seriously doubt the world would be any more dangerous, if the District's (and Maryland's) laws mirrored my own.

Crichton

I have a longish commute, and as a consequence get in a bit of recreational reading/audiobooks. Pursuant to this plan, I have been reading Michael Crichton's Next. It is an interesting look at how biomedical advances have outpaced our ethical understanding of them. (Actually, that pretty much sums up all of Crichton's works, except for The Great Train Robbery and his pseudonymous works.) Unfortunately, Mr. Crichton seems to have fallen down a bit on his legal research in Next. Thus this post, which is little more than a good kvetching. Because I can. (Also, please note that I haven't finished the book yet, so more may be on the way.)

Hearsay

In a courtroom scene, there is an issue regarding a conversation between a guy and his doctor regarding certain contract and fraud claims. At one point, the lawyer asks the witness what the doctor said to him; the other side objected as hearsay, and the judge sustained the objection. Ridiculous. What someone says is not hearsay unless it is offered for the truth of what is said. Here, the plaintiff was trying to prove that the doctor had lied to him, so he was going to prove that what the doctor said was NOT true. What it was, however, was a verbal act. The witness observed the verbal act, and should have been permitted to testify about it.

One page later, however, there is a place where hearsay actually SHOULD have been raised. The same witness is examined regarding what the value of the biological materials the doctor made off with were worth, and in so doing, the lawyer and witness reference outside valuations of the materials. Here, the witness is offering the truth of what someone else said. In the context, it was not important in any way what the witness's subjective understanding at the time was or any such thing which would make the hearsay admissible for another purpose. I will grant that this isn't necessarily an error on Crichton's part, since a lawyer will not always object to everything he can. For instance, perhaps here the opposing lawyer has entered a stipulation as to the value of the materials, or he wants to cut the witness to pieces on the valuation on cross examination, softening things for later when the valuator takes the stand. In general, however, I would think you would keep the valuation for a battle of the experts and keep it out of the more emotionally involved testimony of the fact witness/victim.

Eminent Domain

At another point in the book, after the plaintiff above loses, there is a negotiation taking place, and the attorney representing the one side (a university) gives an ultimatum of sorts, claiming that if the plaintiff decides to appeal, his side will have to argue that eminent domain over the materials took place (essentially under the Kelo principles - I won't look at whether eminent domain is available for these materials or by a state university, since that would require research which I won't be doing just so I can kvetch). First, a matter of procedure: as this is the first mention of eminent domain yet, they can't raise it on appeal, since you have to have raised a matter at trial (with certain exceptions such as lack of jurisdiction) or you have waived it on appeal. But let's say there is some strange way in which exercising eminent domain would cause mootness or some other way out of the litigation, and while we're being generous, we'll ignore whether an ex post claim of eminent domain would be effective as to the prior fraud claim.

Even with all that, we have a serious constitutional problem, since the U.S. Constitution requires just compensation for property taken for public purpose, and this is applicable against the states and their actors. Rather than SOLVING the appeal and letting the university get away with the fraud, the plaintiff would end up merely having to show a judge what the materials were worth and collecting that amount from the state. Comparing this method to the fraud action, this is far more favorable for the plaintiff. Instead of the plaintiff having to demonstrate all of the elements of fraud, show causation, and demonstrate the extent of the damages, he will simply have to take the state actor's confession of exercise of eminent domain, show the value of the property taken, and he wins everything he was after.

For Glim

(re: Pixel Fiend)

Notice certain key differences, such as the presence of ears, which distinguish horses from rocks.

American Historical Figure of the Week

Senator Benjamin Wade of Ohio.

Sure, he was a radical Republican, a leading figure in Johnson's impeachment saga, and so forth.

But that aside, before the Civil War, in an era when caning politicians was sport, many legislators carried revolvers on their persons. Senator Wade upped the ante - He seems to have customarily carried a sawed-off shotgun under his coat on the Senate floor.

Quote of the week

There seems to be something "hard-wired" with the XY chromosome that leads boys to glance at a small moss-covered branch and immediately see an air-cooled, camouflaged, fully automatic 50-caliber Browning rifle with attachable bayonet.

--Prof. Jonathan Turley (of GW Law), Washington Post Feb. 25, 2007, "My Boys Like Shootouts"

Non commercial plug

My good friend Mr. Krull has been published online recently defending Lewis's place as a thinker in an ecclesiastical era which is after quick, easy answers. If you haven't read it yet (or if you have already read it, but want to help increase the number of hits his article gets ;-), check it out here.

And keep reading good books.

Commercial plug

From Despair, Inc.

Coolness

Anyone know whether these do what they say they do?

Quote of the week

"The things I want to carry can't really be concealed."

--A co-worker of mine, on firearms permits

Quote of the week

From The Lion in Winter:

Prince John: He's got a knife!
Eleanor of Aquitaine: Of course he has a knife. We all have knives. It's 1183 and we're barbarians.

There are two versions of the movie. Though in general, I like the latter better, particularly Patrick Stewart as (a hirsute!) Henry II, King Phillip of France was better played by Timothy Dalton than Jonathan Rhys-Meyers.

It would be a mistake

It would be a mistake when drafting a will to name the testator and executor as the same person.

New favorite motto

(reportedly used by an Oklahoma law firm)

Calcitromus gluteas sordes vilis.

And if you don't like the grammar, sue me ;-)

In Defense of Alberto Gonzalez (pt. 1 of 2)

In response to: Wileyman @ Trinity Station
which was citing: Gonzalez questions Habeas Corpus

(Note also that this brief discussion will include much of the information I was thinking of putting in an Alberto Gonzalez post and must suffice as a substitute for the same.)

How does the Attorney General of the United States get off talking about no right to Habeas Corpus? Where to start this discussion - I'll go with a brief overview of Habeas Corpus law.

Like any area of law, add enough lawyers or politicians (or journalists), and things can get very technical and messy. First off, the Writ of Habeas Corpus was created more than five and a half centuries before the U.S. Constitution. So its existence is not in any way created by or dependent on our grand little document. The Constitution didn't and couldn't grant the right to the Writ because that right pre-existed the Constitution and was, in some way, assumed by it when the common law was kept. So in a literal view, the Attorney General is right from a merely historical method. (Supreme Court Justice Hugo Black used essentially this reasoning to argue in his Griswold dissent to say there was no constitutional right to privacy as would later be claimed in Roe v. Wade; on this logic, Black would probably agree with Gonzalez about whether the Constitution creates a right to habeas.) Sensing this is not going to settle the matter, however, I continue.

There are two written components to U.S. Habeas law: constitutional and statutory provisions. The constitutional provisions dealing with Habeas are pretty sparse, stating merely that

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

The Writ, already in force and therefore not creatable by the Constitution, is given certain limitations and protections by this constitutional phrase. This provision is in Article I, Section 9, which has led some people to assert that only Congress can suspend the writ. Regardless of the merit of that argument, it has not been the practice.

Congress does, however, have considerable influence over how the writ is implemented. For instance, Congress has authority to (with certain limitations) regulate how the federal court system works. Pursuant to that power, it has passed a number of laws dealing with how habeas can be brought (e.g., 25 U.S.C. §1303 on how Indians can utilize habeas).

This, as I understand it, is the context for the Gonzalez's comments before the Senate Judiciary Committee: Sen. Specter and the AG were discussing Rasul v. Bush, 542 U.S. 466 (2004), which dealt with how Guantanamo detainees could file habeas writs. The two got into a discussion regarding whether the Supreme Court was discussing statutory or constitutional rights to habeas relief, with Gonzalez saying the court merely looked at whether the detainees could bring habeas petitions under what Congress had said was allowable habeas relief (above the constitutional/common law minimum). Specter favored the view that the Court was holding what the Constitutional minimum was. Gonzalez then, as best I can tell, attempted to refute Specter by saying that it had to be statutory, since the Constitution didn't create a habeas right. Habeas existed before the Constitution, so the Constitution could not inform us on what that right was; it can only speak to the circumstances where it can be suspended.

Well, I have covered the Gonzalez quote itself, but would like to get to some of the underlying issues; in part II of this post, look for:
Extraordinary tribunals, unlawful combatants, Geneva Convention, and Hamden

Entertaining stories

If you ever want a really good laugh, ask the driver of a late-night bus route about his experience with inebriated persons on his route. Besides the obvious ones about people who can't count change for the fare, or ask whether this is the bus they want, forget the answer, and come back a couple minutes later and ask again, here are some of the gems I got from my driver the other night:

• One night a regular gets on the bus, and the driver stops at what he knows to be the guy's stop, even though the guy didn't pull the stop signal. The guy doesn't stir. The pause is getting uncomfortable, so the driver gets on the intercom and says something to the effect of, "Man in the back, this is your stop." Still nothing. Well, what can you do? About an hour later, the guy wakes up, comes to the front and asks, "did I miss my stop?" The driver let him know they would be around to his stop again in about ten minutes.


• The bus went around a corner one night, and a guy with excessive alcohol in his system slides off the seat and wham, hits the floor. The guy doesn't move, so the driver slows and calls back asking if everything is ok. After a minute, the guy raises his head and says yes, he's fine, he just is still thinking about getting up.


• The driver is over at the lost and found office one day when he hears a call come in. It soon becomes apparent that the guy had lost his wallet on the bus (since otherwise he wouldn't have had money for his fare), but had no idea which bus he had taken, what time, or any other useful information. (Besides which, at least on this transit system, most wallets lost on buses don't turn up.)


• One night a guy tries to board the bus, the driver asks him to pay the fare, the guy kind of looks at him puzzled; the driver knowing he hasn't gotten through says again, "Sir, you have to pay the fare to ride." Whereupon, the guy looks frustrated and wailingly slurs, "Why do I have to pay? All I want to do is go home." After a little more equally unsatisfying negotiation, the police ended up having to become involved.

So finally, I'll end this with a recipe. It isn't a particularly good recipe, but it has two virtues: it is simple, and it is the only palatable way I know of to get rid of extra Mountain Dew.

The Mountain-rita
8 oz. Mountain Dew, chilled
1.5 oz. Jose Cuervo Gold Tequila
Mix
Add chipped ice if desired

Link of the day

Knife Rights, an advocacy and informational organization that finally asks, "um, why should it make a difference for law enforcement purposes whether my pocket knife is designed not to snap shut and take off my fingers when I use it?"

On to the last semester

This law thing is about to wrap up. That is a good feeling. This semester will be busy, at least initially. I have two skills courses (which means doing things in and out of class like negotiating deals, etc.) which will be a little time intensive, particularly for the first few weeks of the semester. At least that is two fewer finals to take.

Additionally, two of the courses are "problem approach" (as opposed to Socratic, lecture, or any other teaching style you can think of), so I will actually have to be on the ball when attending those classes, since the class will require hard answers, not just intelligent talking about the issues.

Course list:

• Secured Transactions


• Corporate Taxation


• Law of the EU


• Agency & Partnership


• Negotiations


• Trial Advocacy

Then the bar next summer...