| Weird Al Shares Your Taste in Music |
 See his whole playlist here (iTunes required) |
Wednesday, March 28, 2007
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.
Tuesday, March 27, 2007
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
--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.
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.
Thursday, March 22, 2007
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.
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.
Wednesday, March 07, 2007
For Glim
(re: Pixel Fiend)
Notice certain key differences, such as the presence of ears, which distinguish horses from rocks.
Wednesday, February 28, 2007
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.
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.
Tuesday, February 27, 2007
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"
--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.
And keep reading good books.
Tuesday, February 20, 2007
Thursday, February 15, 2007
Tuesday, February 13, 2007
Quote of the week
"The things I want to carry can't really be concealed."
--A co-worker of mine, on firearms permits
--A co-worker of mine, on firearms permits
Saturday, February 10, 2007
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.
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.
Friday, February 09, 2007
It would be a mistake
It would be a mistake when drafting a will to name the testator and executor as the same person.
Thursday, February 01, 2007
New favorite motto
(reportedly used by an Oklahoma law firm)
And if you don't like the grammar, sue me ;-)
Calcitromus gluteas sordes vilis.
And if you don't like the grammar, sue me ;-)
Thursday, January 25, 2007
In Defense of Alberto Gonzalez (pt. 1 of 2)
In response to: Wileyman @ Trinity Station
which was citing: Gonzalez questions Habeas Corpus
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 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
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
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