Tuesday, November 30, 2004

Dead Poet's Society

For some reason, there's a lot about Slyvia Plath on the web lately. First, the Salon article entitled Sylvia and Ruth, an interesting interview with her therapist. Then, this article in the UK Telegraph from November 14th, in which her daughter defends her father's role in the marriage (he left Plath just prior to the suicide).

In following links, I discovered this Salon article on her daughter's feelings regarding the attention still paid to her mother's legacy and mental health. Key quote:

"Readers," a poem by Frieda Hughes published alongside the November 1997 interview in the Guardian, was an indictment of those literary groupies of her mother's who had been "fingering her mental underwear" since Sylvia Plath's suicide in 1963, when Frieda was 2 years old.

Following a gruesomely detailed description of how "they" dug up and roasted and ate her mother's corpse (an image fueled, unfortunately, by the real Plath fanatics who regularly defaced Plath's grave over the years, even stealing the pebbles left as decorations by Frieda and her younger brother, Nicholas), Frieda Hughes' poem ends:

They called her theirs.

All this time I had thought

She belonged to me most.

The article goes on to argue that while fans might be intrusive into Plath's relationships and mental health, it's only because Plath invited them into her head to begin with. While I grant that point, I really have to identify with the daughter on this one. It's impossible to stop the obsession with Plath, but it must hurt to have the world always poking at the broken places in your heart, making them bleed anew.

The Lying Study

I've seen news reports about a new study that shows different areas of the brain are used when lying than when telling the truth, and that those differences show up on an MRI. Might be big stuff in the area of lie detector tests. But when I read the story, I noted that the study could be tainted. Jim Lindgren beat me to the punch, explaining why in this post on the Volokh Conspiracy:

Faro and colleagues tested 10 volunteers. Six of them were asked to shoot a toy gun and then lie and say they didn't do it. Three others who watched told the truth about what happened. One volunteer dropped out of the study.

While giving their "testimony," the volunteers were hooked up both to a conventional polygraph and also had their brain activity imaged using fMRI, which used a strong magnet to provide a real-time picture of brain activity.

There were clear differences between the liars and the truth-tellers, Faro's team told a meeting in Chicago of the Radiological Society of North America.

. . . .

How can they tell? There is no basis in the news report to think that the experiment tested lying v. truth-telling as opposed to gun shooting v. passively watching. The two experiments are completely confounded.

Exactly. The point is only to change one variable, so you can isolate what is causing the difference in the brain waves. They should have had half the shooters lie and half tell the truth. Then they should have done a separate trial with all watchers, then have half of them lie and half tell the truth. That way you can see: 1) Is there a brain wave difference between lying and truth telling; and 2) Is there a difference when it's lying about an activity vs. a passive/witness role. This way they're all messed in together with no way to tell what caused the difference. I'm surprised the study got approval, I know this and I've only taken elementary-level psych stuff in undergrad.

New Iowa Blog

Matt points out that Dweeze, yet another Iowa City actor-type, starts his own blog. Okay, it's reaallly greeen. But nice.

Time to update the blogroll again.

New Legal Blog

Ernie the Attorney posts that Judge Posner will Judge Posner will be blogging permanently at this location, along with Nobel Laureate Gary Becker. Legal geeks take note.

Playing Catch-Up - Updated

Got a little trigger happy on the catch-up post, here's the rest of it.

Schools and Religion

In How Appealing on Wednesday, there was a reference to this article in Reuters. Key quotes:

"A California teacher has been barred by his school from giving students documents from American history that refer to God -- including the Declaration of Independence. Steven Williams, a fifth-grade teacher at Stevens Creek School in the San Francisco Bay area suburb of Cupertino, sued for discrimination on Monday, claiming he had been singled out for censorship by principal Patricia Vidmar because he is a Christian. . . .

Williams asserts in the lawsuit that since May he has been required to submit all of his lesson plans and supplemental handouts to Vidmar for approval, and that the principal will not permit him to use any that contain references to God or Christianity.

Among the materials she has rejected, according to Williams, are excerpts from the Declaration of Independence, George Washington's journal, John Adams' diary, Samuel Adams' ‘The Rights of the Colonists’ and William Penn's ‘The Frame of Government of Pennsylvania.’"

My perspective:

On the one hand, not allowing the Declaration of Independence to be given to students, or redacting the phrase “our Creator” from it, is patently ridiculous. It is a historical document and we can’t ‘white out’ sections of history to comport with modern sensibilities. Yes, we’ve done so in the past: ignoring the viewpoints of other races and cultures in teaching our own. But haven’t we all learned that’s a silly thing to do? How can we learn from history if we don't explore it in all it's messy, un-politically-correct color? We can acknowledge that a belief in God was important to our founding fathers without entering into the realm of preaching why you should believe in that God, or any god, too.

On the other hand, the article doesn’t say he wanted to hand the children a copy of the Declaration of Independence. It says he wanted to hand them “excerpts” from it. What if the excerpts read something like this:

"When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them . . . that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. . . .

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions . . .

And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor."

And what if the context of these excerpts was a lesson entitled something like: "How God founded the United States Government and Why We are Wrong Not to Pray Thankfully to Jesus every day for our Freedom"? So when the school says he can't give the lesson he files suit and calls it ridiculous he can't teach the Declaration of Independence.

There is little background material beyond a copy of the original complaint, posted on The Smoking Gun.

That copy indicates Mr. Williams was required to run his educational materials past school censors when a parent complained after he used George W. Bush's Proclamation on the National Day of Prayer as an example of a presidential proclamation.

Again, what was the context of this lesson - a historical example of a presidential proclamation, or an hour long lesson on "Why I Pray to Jesus and You Should Too"? An interesting side note: according to the complaint, one of the other materials that was censored by the school was a handout entitled: "What Great Leaders Have Said About the Bible." That leads me to suspect that the materials might not have been confined to the historical context, but entered into the preaching/prostheletyzing hypothetical.

There's not enough information here to make the judgment calls that the school 'banned the declaration of independence.' They have banned a handout that included excerpts from the Declaration. Until we know the context and what precisely that handout said, we've got little to judge the case on.

Iowa Geek points out that the California Code requires that the Declaration be taught.

Stupid Suits

Then there's this woman, who tried to pass herself off as a member of the Saudi royal family, a model for the Bergdorf Goodman catalogue, a divorcée awaiting a windfall, after her ex-husband finally sold their $7 million Nantucket home, a convert to Judaism, and courted invitations to Seders, and a triplet with two loving sisters. According to Overlawyered, she's seeking $2 million in damages from American Express for "for daring to seek to recover the $951,000 she charged without paying, claiming they "should have known that [she] was acting impulsively and irrationally" because of "anorexia, depression, panic attacks, [and] head tumors" and shouldn't have been given credit in the first place."


Computer Analysis

This article in Wired News indicates that Dartmouth College has a developed a statistical analysis algorithm that allows a computer to tell the identity of a work's true artist. I hope it works better than the Gender Genie, another test based on a scientific algorithm, which when fed excerpts from my blog back in September, decided I was male:

Female Score: 2363

Male Score: 4600

The Gender Genie thinks the author of this passage is: male!

Am I right? The author of this passage is actually:



Hmm - twice as male as I am female?? I politely correct the genie, and receive this comment:

That is one butch chick.

According to Koppel and Argamon, the algorithm should predict the gender of the author approximately 80% of the time.

Stay Tuned on this Legal Issue

According to Slashdot, at least one federal judge believes that logging the strokes on a keyboard isn't wiretapping because it's not done over a network but at the computer itself. Disclaimer: I don't recall much about wiretapping law, and I've not seen the actual ruling. But presuming for a moment that the article's accurate, wouldn't that be like saying that so long as you put a bug right inside the telephone, rather than outside on the pole, you're fine?

The New Minority

This post at the Volokh Conspiracy indicates that colleges are lowering admissions standards in order to establish parity in admissions - for men. The statistics are what's interesting:

National college enrollment--

Females: 56%

Males: 44%

U.S. high school students who... Maintained an A average--

Females: 62%

Males: 38%

I won't comment, in case I'm accused of picking on an intellectually disadvantaged segment of the population. Teethy


Iowa Hawk's "It's a Dan-derful Life" made me giggle.

On to new stuff later. . .

What is with Blogger?

It's eating posts, going so sloooowwwly, and I'm about fed up with it today. I'm back and will be posting, but jeez.


This post was put in on the 29th, and I'm still not seeing it on my blog. I'm republishing as of the 30th. If anyone else can see it, please leave a comment and I'll know it's my computer not blogger. Regardless of what you hear from other sources, I don't enjoy talking to myself.


Yay!!! I see it now. Blogging will commence when I get through my new suit pile. Never mind the comment thing.

Wednesday, November 24, 2004

Happy Holidays

Got lots more stuff clipped from yesterday to blog on, but no time. I have to get back to the house as I've got a showing this afternoon and it's generally recommended to remove my beagle beforehand. She bays fiercely - from a distance - at any "intruders" who might want to steal her kibbles. Then I've got to try to duplicate some of my mom's recipes as my siblings and I do Thanksgiving for the first time by ourselves. Wish me luck: I think her cooking's actually been canonized.

Happy turkey day to all and stay tuned . . .

More Copyright Wars

While I'm quite cognizant of the need to protect original works for the artist, the entertainment industry bears watching. The Motion Picture Association of America has been sponsoring a bill called the Intellectual Property Protection Act. Among it's provisions, as pointed out by Matthew Yglesias, was a fast-forwarding ban. Yep, no more fast-forwarding through commercials, though it would allow some limited fast-forwarding through "objectionable parts" of the movie itself.

Hmm. . . so what is the 'creative content' they're really trying to protect here?

Fortunately, the latest news indicates that the bill actually passed was the less egregious Senate version found here. Key quote:

"The bill preserves the rights of consumers to use devices like ClearPlay, which employs technology that attempts to make movies "family friendly" by automatically skipping over violence and sexual situations on-screen. Language that could have prevented the use of this technology to skip commercials was taken out."

Okay, but for how long? Can we say 'police state'?

First Amendment in Schools

The Volokh Conspiracy and How Appealing are all over this story:

By the account of the [ACLU], . . . Brad Mathewson, a 16-year-old junior [at a Missouri high school], was sent to the principal's office at Webb City High School on Oct. 20 for wearing a T-shirt . . . [that] bore a pink triangle and the words "Make a Difference!"

Mr. Mathewson, the A.C.L.U. said, was told to turn the shirt inside out or go home and change. . . .

A week later, Mr. Mathewson was again admonished for wearing a gay pride T-shirt, this one featuring a rainbow and the inscription "I'm gay and I'm proud." Told once more to turn the shirt [inside] out or leave, he chose to go home and was eventually ordered not to return to school wearing clothing supporting gay rights.

School officials said yesterday that they could not comment on the situation, or confirm or deny the A.C.L.U. account. . . .

from the NY Times.

If the report's accurate, it should be a first amendment violation: students in public schools can wear clothing expressing poltiical views if there's no serious risk it will substantially disrupt the school, and there's no showing there's such a risk here. Go to How Appealing for links to the ACLU's brief and complaint.

Tuesday, November 23, 2004


Okay, this is nitpicking. The particular victim example is in a blog I was checking out called "Random Fate". The quote:

"Evolution is not a theory, it is a fact. We eat foods that are a result of forced evolution through selective breeding. Anyone who owns a poodle has direct evidence of the FACT of evolution.

The theory that is behind so much of the heartburn is of Natural Selection, where evolution results in physical characteristics of species because of the competitive advantage provided by the characteristics, as opposed to the arguments that a Creator made the universe as it is, with some arguments that the universe has been static since that act of Creation."

To define the terms:

Genotype - Genetic constitution of an individual.

Adaption - the phenomena that over the course of time, species modify their phenotypes in ways that permit them to succeed in their environment. Seen in nature in the Peppered Moth.

Phenotype - Appearance of an organism, resulting from the interaction of its genotype and its environment.

Natural Selection - Living things produce more offspring than the finite resources available to them can support, thus living things face a constant struggle for existence. The individuals in a population vary in their phenotypes. Some of this variation is inheritable; that is, it is a reflection of variations in genotype. Those variants best adapted to the conditions of their life are most likely to survive and reproduce themselves ("survival of the fittest"). To the extent that their adaptations are inheritable, they will be passed on to their offspring.

Micro vs. Macroevolution:

MICROEVOLUTION. A small amount of evolutionary change, consisting of minor alterations in gene proportions, chromosome structure, or chromosome numbers in a population. For example, (1) industrial melanism of peppered moths: the melanic form is under the control of single dominant gene that arises spontaneously by mutation from the colour gene; dark individuals are more frequent near industrial cities where light coloured lichens are rare, due to the selection force of insectivorous birds. (2) Balanced polymorphism in the sickle-cell trait: sickle-cell anaemia is caused by the abnormal haemoglobin S under the control of a single gene, lethal in the homozygous state; the trait survives because the heterozygous condition has superior fitness over both homozygotes: persons carrying haemoglobin S are more resistant to malignant tertian malaria. MACROEVOLUTION is a large amount of evolutionary change involving many elementary changes in gene proportions: the sum of many microevolutionary steps over a very large time-scale.

Fact: a verifiable statement or event that is known to have really occurred.

Theory vs. Hypothesis:

A theory is a conceptual framework that explains existing observations and predicts new ones.

A hypothesis is a working assumption, to be proved or disproved by observation and experimentation.

On to the nitpicking: Last I looked, microevolution is a fact. It's a testable, replicable, falsifiable, peer-reviewed phenomenon. It is personally observable; we've not only seen it in nature with the adaptation of the Peppered Moth to its environment, but we've used it in breeding the types of dogs and plants referred to in Random Fate's post.

Macroevolution, on the other hand, is still a theory, as defined above. We've not yet gotten a celery stalk to evolve into a poodle or a fish to become a lion. It's not testable, not replicable, and not falsifiable, and most importantly not observable, primarily because it takes millions of years to get the results. I'm not saying it's not a good theory, based on the fact of microevolution and the current fossil record, but it's still a theory.

Finally, I believe it is too simplistic to state that because evolution itself is a fact, the only remaining issue is whether or not natural selection took place, or whether the world was created "as is" by some creator. That doesn't allow for hybrid or off-the-board viewpoints. What about the person who feels the "big bang" came from God, but the whole thing's been evolving since? What about the person who doesn't believe in a creator, yet feels that the idea that this level of genetic diversity sprang spontaneously from some primordial microbe soup is a rather incredible proposition? Etc., etc., etc.

A side note based on my own observation: did you ever notice that the entire debate hinges on mutually exclusive premises? Evolutionary theory is essentially the question: 'If there was no "creator," how was the universe created, and how did it become what it is today?' Creation theory, conversely, asks: 'Given there was a Creator, how did he/she/it create the world to become what it is today?' It will never be resolved. Even if someone is willing to throw aside these mutually exclusive hypothesis and ask "How did the universe begin?", it's still not testible, replicable, observable or falsifiable.

I'm not any kind of a physicist, but I understand from friends that big bang is still being fleshed out, basically a hot or cold thing, and how did the temperature get there in the first place. We've also been revising our theories about the nature of dinosaurs, warm-blooded vs. cold-blooded. And check out this link for a synopsis of the debate between Paleontologists and molecular geneticists as to whether sufficient fossil record exists to show that modern mammals originated 65 to 75 million years ago, not 130 million years.

So why can't we just all admit we don't know exactly how the world began or why? We've got our guesses. Some are extrapolations from testable hypotheses. Others are supported by faith alone. Arguably the extrapolations should be taught in science class, but so should the drawbacks to the theories, and why couldn't the class also do an overview of world creation views through time and geographic region? The similarity of some oral religious traditions on the creation of the world, as analyzed by this paper or this excellent web page, is a truly fascinating subject: did the similarities in the stories spring from the ancient hearth of our genetic Eve, with any variations imposed only by the dimming of the collective memory over time, or are the similarities merely coincidental? Anyway, that's my really excruciating nitpick of the week.

The Case of the Crippling Crustecean

The estate of a man in New York is suing Benihaha for his death. The cause of action?

The hibachi chef was flinging shrimp around, as seems fairly usual for that kind of restaurant. The deceased, Jerry Colaitis, ducked when one of the shrimp came too close. The estate claims that this act of ducking caused a neck injury to Colaitis, which required surgery. There was a complication with that operation which required a second procedure. In succeeding months, Colaitis developed a high fever and problems with his breathing and memory, apparently due in part to a blood-borne infection. He died in a hospital five months after the second surgery, on Nov. 22, 2001. The plaintiff estate (and surviving relatives that inherit from it) are arguing that "but for" the shrimp being thrown in his direction, the plaintiff would be alive today.

Apparently some tactical error or another has left the plaintiff unable to go after the hospital where the second surgery was performed:

"Neither side has sought to add the doctors or hospital where the surgery occurred, New York University Medical Center, to the case. Colaitis died at St. Francis Hospital in Roslyn."

At least I hope that's it, not some blind reliance on a causal chain that could so easily be broken. I mean, can we say "superceding intervening cause" three times fast?

Ebay 10-Year-Old Grilled Cheese Madonna Update

A legitimate winning bid of $28,000.

The winner was GoldenPalace.com.

(NOTE: it's an online casino site, I don't recommend clicking there. Oh, the popups! The popups!)

Hey, Goldenpalace, I've got a whole bunch of "iconic" food in the back of my fridge. Whatsabouta deal?

Happy Birthday to You

Begging the Question has its one-year blogoversary today. Stop by and wish them well!

Quote of the Week

On Dan Rather winning a Worst of 2004 Award:

"He jumped the shark. Then he scared it away."

Saw it on Instapundit.


Begging the Question posts that Dan Rather has announced his, um, retirement.


Scrappleface posts the following:

"Rather Scrambles to Confirm Story of His Resignation."

Gotta giggle.

Domestic Assault Perpetrator Denied New Trial

The Des Moines Register has this article. Key quote:

"A Sheldahl man serving a 25-year burglary sentence for dragging his wife through the window of a van, was denied a new trial by the Iowa Supreme Court today. The full ruling is here.

The court said evidence against Taylor was "sufficient" to uphold the convictions of domestic assault and first-degree burglary.

Richard Taylor, father of the 27-year-old Taylor, said he was stunned by the verdict.

"I can't believe that hey could look at this case, read the transcripts, and look what's in front of them and rule this way," the elder Taylor said.

Taylor, who had no prior criminal records, contended he didn't intend to harm his wife, Susan, but only wanted to talk to her about saving their marriage. One judge said the 25-year sentence didn't fit the crime."

For those of you who might have missed it the first time around, I was a little peeved at the judge who said it didn't fit the crime, as you can see by my post back in April. The Des Moines Register article at the time stated:

"Chief Judge Rosemary Sackett of the appeals court said in December that Taylor's punishment didn't fit the crime. "I do not wish to diminish in any respect the defendant's action," Sackett wrote. "But I question whether society is served by filling our state prisons . . . with people like this defendant." She said anger-management classes might have been a better solution."

Legal analysis aside, since both the Iowa Court of Appeals and the Iowa Supreme Court have ruled this fits the definition of burglary and domestic assault, if you want to know the answer to whether this guy deserves to be locked up, just look at the facts:

"Susan Taylor (Susan) obtained a no-contact order against her husband, Nathaniel Taylor (Taylor) and moved into her friend Michelle Vincent's (Michelle) home. The petition for relief from domestic abuse filed by Susan alleged that in September 2001 Taylor pushed Susan into a door, causing her to fall while she was holding their daughter and was also pregnant. It further alleged that in October 2001 Taylor became upset when Susan was not home when he wanted her to be. When she did return home Taylor was angry, had placed a gun with bullets on the table, told Susan to put the kids to bed, and that he wanted to take her out to the garage to kill her.

After staying with Michelle for five days, Susan, Michelle, and their children attended evening church in Michelle's van. After church they were planning to stop at the store when they saw Taylor drive by. Michelle was driving the van, Susan was seated in the front passenger seat, and Michelle's three children and Susan's two children were in the back of the van. Michelle followed Taylor for awhile to see if he knew where she lived, but then went back to the church parking lot because she thought there would be people there who could help. Michelle also called the police on her cell phone to tell them what was going on. Once back at the church lot Taylor confronted Susan, in violation of the protective order.

According to Michelle's testimony, Taylor got out of his vehicle and began pounding on the passenger window with is hand saying 'I just want five f---ing minutes, you f---ing bitch.' When Michelle attempted to drive away Taylor got back into his vehicle and tried to ram or block the van from driving away. At that point Michelle again called the police. While Michelle was talking to Detective Pote on her cell phone Taylor continued demanding that Susan talk to him and jumped on the hood of the van, denting the fender. He pounded on the windshield and cracked it. He hit the passenger side window and it shattered. Taylor then proceeded to pull his five-month pregnant wife out through the broken window. He pushed her into his vehicle and drove away. Taylor drove behind some storage units where they could not be seen from the street. A short time later, Taylor and Susan walked to the police station and he turned himself in to the police for violating the no-contact order. Susan did not file a written report on the incident but only wrote one word and stopped. Detective Pote believed she stopped because she was 'in a state of shock' and she just 'kept looking straight ahead.'. . .

Dr. Davis-Kramer testified that when she examined Susan at the hospital she discovered bruises and abrasions on Susan's chest, shoulder, and scapula. She further testified that although Susan initially did not complain of any pain, she indicated she had some pain when palpated by the doctor. Michelle testified that she stayed home with Susan the day after the incident because Susan was really stiff and sore. Michelle also stated that Susan asked her to rub her back and in doing so she noticed Susan had multiple bruises on her back, as well as cuts and abrasions on her hands. While welts, bruises and similar markings are not physical injuries per se, they are frequently evidence from which the existence of a physical injury can be found."

According to the Supreme Court opinion today, "pulling her out the window" wasn't such an easy task either:

"At one point, the victim placed some construction paper on her head and curled up into a fetal position on the car seat in an attempt to hide from the defendant . . . The record shows Taylor had difficulty getting Susan out of the van because she was still wearing her seat belt. According to Vincent, Susan’s feet became caught in the seat belt, and Taylor yanked violently on the victim four or five times to get her out of the vehicle."

As I said at the time:

"What the h*ll is the matter with the people at the Register? They describe this as "dragged his wife through the window of a van in 2001." That's it? He rammed the van, smashed the window, yanked his pregnant wife out through broken glass, forced her into his car and drove away, and this is how they describe it? And what is up with the judge? If our prisons aren't meant for people who threaten to kill their wives and essentially kidnap them in a violent manner in broad daylight, who the h*ll are they made for? . . .

I am glad the Courts have affirmed the seriousness of this behavior. Unlike the insane federal sentencing guidelines for some drug offenses, this is a harsh but well-deserved sentence.

Court Filings

The Iowa Supreme Court has decided to file its opinions weekly instead of monthly. That should lend to more legal blogging, unless they get stuck on the really boring stuff.

Another Iowa Blogger Joins the Fold.

Greenman points out that Dan has started his own blog. Now if only he wasn't in freaking Dubuque . . .

(Just kidding. Kind of.)

Had to update the blogrolls to include his and Theresa's.

Call for Action

Amptoons posts that bloggers in Iran are being arrested. Key quote:

"Fereshteh Ghazi, an online journalist, and Mahboubeh Abbasgholizadeh, editor of a women’s rights journal “Farzaneh.” According to the Women's Learning Partnership, Abbasgholizadeh has contributed to the strengthening of Iranian civil society by conducting capacity building programs as Director of the NGO Training Center in Tehran, and was arrested at her home on November 2, 2004. Ghazi has used her skills to create an increased awareness of the status of women in Iran using the Internet, and was arrested in her office on October 28, 2004. Both women have been denied the right to legal counsel. Over the past two months, a string of Internet writers and civil society activists have been arrested for "propaganda against the regime, endangering national security, inciting public unrest, and insulting sacred belief," according to Jamal Karimi Rad, the judiciary’s spokesman."
Amptoons has links to the UN and Iranian ambassadors, if you'd like to register your protest.

More Stupid Quizzes

Political Beliefs Test

You are a

Social Liberal

(63% permissive)

and an...

Economic Moderate

(55% permissive)

You are best described as a:


You exhibit a very well-developed sense of Right and Wrong and believe in economic fairness. loc: (49

Saw it on the Yin Blog

A kiss is just a kiss

The etiquette of the workplace kiss, via How Appealing:

"President Bush kissed Condoleezza Rice on the cheek last week after nominating her for secretary of state. Later, he laid a quick lip plant on Margaret Spellings, his choice for secretary of education.

To date, the president has reserved such touchy-feely moments for women appointees. Alberto Gonzales, his nominee for attorney general, had to settle for a good old-fashioned Texas hand pump. . . .

In the United States, it's socially accepted to see women exchange cheek kisses. In rare cases, it's even OK when a father-figure manager kisses the cheek of a female subordinate, many experts say.

Women superiors kissing men remains taboo. And American men kissing men, fuhgetaboutit."

Okay, maybe it's the lawyer thing, but I've never had a superior kiss me for any reason whatsoever. Strikes me as a tad creepy, unles they're one of those people who kiss everybody.

Holiday Postings

Being a holiday week, I'm not too in the mood for serious reflection. So beyond the odd legal post, it's mostly going to be sporadic postings on quizzes, weird news, my life . . .

well, pretty much the SOS I usually post.

Monday, November 22, 2004

It's a Holiday Week . . More Quizzes

20 Questions to a Better Relationship Quiz via Slithery D

eXpressive: 6/10

Practical: 5/10

Physical: 2/10

Giver: 8/10

You are a XPIG--Expressive Practical Intellectual Giver. This makes you a Catch.

You are a magazine-cover, matinee idol dreamboat. Parents love you and want to set you up with their kids. However, first dates are tough because it takes time for your qualities to come out.

You are generous and kind. You think first and act later. You are cool in a conflict, but your practical side means if your partner throws out emotional appeals ("why can't we do what I want for a change?") they will grate on your nerves, even when the conflict is resolved.

You're a romantic. You enjoy the thrill of the hunt, and you don't just fall into bed with anyone. You pay close attention to your significant other's needs, and this makes you an excellent lover and partner. The problem is that your friends and lovers may find it so easy to express things to *you* that they lose sight of whether you feel as comfortable with *them*! This doesn't necessarily make you feel under-appreciated -- you're too well-adjusted and self-aware for that -- but you may feel restless. Thus you seek adventure in your life outside the relationship to prove and actualize yourself.

Of all the types, you would make the best parent.

You are coiffed.

Didja see "Big Fish"? 'Cause you're like Ewan MacGregor in "Big Fish."

Of the 157718 people who have taken this quiz, 9.3 % are this type.

Sunday, November 21, 2004

For a good time, call . . .

Yesterday I assisted in filming a short. It was a pretty new experience for me, I really only do live theater. At first I thought this would be my first acting (non-extra) film, but my brother reminded me later that it's not: in undergrad a friend of mine named Tony was in the film department here at the UI. As a favor, I agreed to do a scene in a judge's robe pronouncing sentence on men who'd screwed over women, generally involving creative forms of castration. I never knew what the rest of the plot was, and I'd forgotten all about it, but apparently it's been shown on some public channel.



Moving on . . .

So I get this email about yesterday's shoot, and it includes notes on costuming:

For costuming tomorrow, I need you to wear something nice, prefferably a red dress. Your hair should like like it's supposed to be up/nice but isn't because you just found out your husband was cheating on you. Make-up should reflect the same as well. If you have a ring, please bring it as well as a purse.

I acquire the appropriate items, then go forging my way through the early morning tailgaters to find this guy's apartment. I can't find it, my right stocking won't stay up, and I'm getting really frustrated. Then I realize people keep staring at me.

Then it hits me: mussed hair, ruined makeup, bright red filmy dress, strappy heels with stocking, swearing to myself . . . everyone thinks I'm a hooker.

I ended up twenty minutes late, but I couldn't stop laughing most of the way there.

The shoot was quite interesting, it was done with real film not VHS, and about everything was one take. I guess film is expensive. It was challenging, given I'd not seen the script before showing up that morning. It was loosely based on the song Taxi by Harry Chapin, me playing Sue.

There are a hundred things I'd like a second chance at: the nuance wasn't right when I asked him whether he'd flown, I walked away too quickly when the taxi pulled off, I was too upset at the beginning - I'd need to see it myself, but my instincts say it needed more subtlety.

It's difficult to guage, because film is shot in a disjointed manner. It's hard to dredge up the emotion from two scenes back, and try to match it. Much less remembering where your hand was, how your head was tilted, etc. That said, I look forward to branching out a bit into more film projects if the opportunity presents. It's a lot of fun and involves an entirely different skill set.

But I want to memorize the script first, and flesh out my character. Please!

Friday, November 19, 2004

Just in Time for Friday Afternoon

The latest intellectual game from the Volokh Conspiracy:

My colleague Gary Blasi helpfully pointed me to scholar.google.com, which lets you search through "scholarly" sites. Looks potentially useful, though it's hard to tell how good (i.e., suitably broad yet suitably narrow) the search function is.

Special bonus for the sophomorically inclined (this is my idea, not Gary's): The search engine lets you engage in the always amusing prospect of searching scholarly databases for vulgar sexual terms and seeing the latest wisdom from the academy on the subject. (Avoid the Latinate terms, since scholarship that uses the Latinate form tends to be less interesting, though more useful.)

Just for a sample gem, one of my queries yielded, as the quote for the #1 result, "One could make an antinomian claim to validity on behalf of, say, a [you guess the sexual act] in a tearoom." Antinomian claims to validity; wow! I wonder if any acts my friends or I have ever engaged in, in tearooms or outside them, would have antinomian claims to validity. I doubt it — I just don't think we're that well-educated. Avoid the obvious query, incidentally, because poor Reinhardt Adolfo F... (apparently a fairly well-cited scholar) makes it less interesting than it otherwise might be.

He's not joking about that last part, kids. A simple search for the term leads to numerous listings of articles such as 'Ultra-high-temperature metamorphism in Central Brazil: the Barro Alto complex' all attributed to "R.A. F*ck"

It's like a really bad Bart Simpson phone prank.

This Blog Brought to You By the Number


You're independent - and a logical analytical thinker.

You love learning and ideas... and know things no one else does.

Bored by small talk, you refuse to participate in boring conversations.

You are open minded. A visionary. You understand the world and may change it.

Gonzales' Last Clemency Memo to GWB

Begging the Question has the scoop. Key quote:

"Mr. Gonzales's clemency memos for Bush while Bush was Governor of Texas have been the subject of some controversy . . . This memo is similar to the Texas memos in that it is brief, gives fairly short shrift to the petitioner's arguments, and does not recommend clemency. I reprint it here in its entirety."

For Those Still Considering It . . . .

Canadian Man Willing to Marry American Woman.

Weird Friday Photo

Field Journal Day 10:
Cleverly camouflaged, Wilbur ventures nearer to female subject #64, aka Simba. Back at camp, Wilbur raised interesting questions about Simba’s movements, as she was caught in an area where she has not yet been photographed by the project’s cameratraps and where we normally see a large and healthy male, named Shere Khan by the team.

Night of 1000 Dinners

We got a little DI press on the readings we did last night for the fundraiser on the UN Adopt-a-Minefield program. Photo from our POV (that's me on the right and Joshue on the left) here.

Thursday, November 18, 2004

Stupid Thursday Quiz III

You are Elizabeth Bathory. Rich, beautiful and high-born, legend has it that you tortured and murdered some 650 young women and bathed in their warm blood to keep yourself beautiful. In some stories, it is said you have drank their blood as well. You were a sexual sadist on a grand scale. Ah, vanity is your downfall.

Which Infamous criminal are you?
brought to you by Quizilla

Bwaaa haaa haaa!

From On the Stage.


Having spent my entire former incarnation as a prosecutor solely in state court, I knew the federal sentencing guidelines were strict, but this excerpt from an article in the NY Times from Judge Donald Lay of our own 8th Circuit puts it all in perspective:

Years ago, Chief Judge James L. Oakes of the United States Court of Appeals for the Second Circuit and I, as chief judge of the Eighth Circuit, sponsored a sentencing institute. At that institute, I asked the chairman of the United States Sentencing Commission why an 18-year-old who had received some drugs by mail for a friend should face a mandatory minimum sentence of 10 years, under the commission's federal sentencing guidelines set by the commission. The chairman responded that because this teenager would be in prison during his 20's, the age when the likelihood of recidivism is greatest, the sentence would cut down on re-arrests."

WTF? And by that logic, shoplifting sentences should be extended as well. Hell, let's just incarcerate anyone under the age of 30 and chances are our crime rate would drop like a stone. Judge Lay goes on to say:

Mandatory minimum sentences, enacted by Congress, have contributed to the rising costs of imprisonment and crowding in federal prisons. In federal drug cases, defendants could face a minimum of 5 to 10 years in prison, while a similar offense in some state courts would allow a court, depending on the circumstances, to place the defendant on probation. Justice Anthony Kennedy and several other scholars, judges, professors and law reviews have openly criticized the use of mandatory minimum sentences in federal criminal cases. To make matters worse, a bill has been proposed in the Senate that would set a mandatory sentence of 10 years for a first drug conviction and mandatory life imprisonment for a second.


On the one hand, I've liked the mandatory minimums we have here in Iowa for first offenses. My reasons: a) If the person's record is truly clean, you can always plead to a deferred judgment and they'll get some monitoring with no jail time, b) They aren't too stiff, the usual two days should wake up any law-abiding citizen who stepped over the line in an anomalous manner, and c) The judge can always impose something greater - up to a month for a simple misdemeanor, a year for a serious misdemeanor, and two for an aggravated misdemeanor - when warranted by facts. Minor felony convictions allow the judge less control over the actual sentence, as they are indeterminate things like "up to five years," but they can also be suspended if it is appropriate under the facts. My only complaint on the state level is that judges appear reluctant to impose anything over the minimums unless the facts of the crime are thoroughly aggregious. I've had a domestic violence case with broken ribs (the woman was kicked in the chest with steel-toed boots) go for the minimum two days/$250 fine/batterers, the same as a faint scratch from grabbing an arm. That is simply not right, IMHO.

But as the case I blogged on yesterday shows, these federal guidelines don't allow the judge to take into account the intangibles of the crime. 10 years for a first offense? I tried looking up the bill he's referring to, but a cursory read through new Senate bills didn't reveal it. If it's for first offenders who, like, gave meth to a kindergartenter or took a shot at someone, perhaps. If it's going to encompass some high school kid that orders an ounce of pot through the federal mails, as Judge Lay implies, then I've got a real problem with that. I want drugs off the street as much as the next person, but not at the expense of creating career criminals out of nominally rebellious teenagers. When the judiciary is signalling that the issue is getting way out of hand, it's time to sit up and listen.

I Y Bugs Bunny

Gotta love today's Bleat: introducing Gnat to Looney Tunes. She'd already seen the frog.

¯ "Hello my baby, hello my honey. . . " ¯



Wow, that was a tad freaky. In learning how to do webdings via HTML I accidentally put my whole blog into webdings for a minute. I rarely use the 'compose' function of Blogger; like toddlers everywhere, I want to learn to 'do it myself.' Of course, that allows me to really screw things up for myself, too.

Book of Liz Review

The Daily Iowan review is up for Book of Liz. Excerpt:

What do you get when you combine cheese balls, an Amish-like community, and '80s pop songs? You get Amy and David Sedaris' The Book of Liz. Four talented actors at the Dreamwell Theatre are currently performing the hysterical 14-character play.

The story is about Sister Elizabeth Donderstock, a member of the Squeamish community of Clusterhaven, a religious sect similar to the Amish but zanier. Liz is the primary maker of cheese balls, the community's main source of income, until Brother Nathaniel Brightbee takes over. Feeling lost and purposeless, Liz leaves her home and her problems. On the outside, she meets a family of Ukranian immigrants with Cockney accents, who provide much of the play's hilarity, and takes a job in a Pilgrim-themed restaurant. Eighties pop songs play in between the scenes, establishing the mood. Songs include "I Ran," by Flock of Seagulls, Weird Al Yankovic's "Amish Paradise," and "Rock Me Amadeus," by Falco.

The Book of Liz is quintessential Sedaris humor, funny and sweet, and director Jeff Shields' first production for Dreamwell. Performed in a small space at the Wesley Center with seating for approximately 50 people, the actors make full use of what they have. . . .

The Book of Liz is a sweetly humorous experience that will leave you craving crackers and cheese balls, which are conveniently served during the intermission. It will be performed at 8 p.m. on Friday, and Saturday at the Wesley Center. Student admission is $7. Tickets can be reserved at www.dreamwell.com.

I'm telling you, ya don't want to miss this one.

Stupid Thursday Quiz

Your Lightsaber is Blue

Blue is often associated with depth and stability.
It symbolizes trust, loyalty, wisdom,
confidence, and truth.

What Colored Lightsaber Would You Have?
brought to you by Quizilla

Thanks, Matt.

Beer Anyone?

Jeff from Tusk and Talon posts that he met Doug from Iowa Geek for a beer recently, and says:

"So, I've met David from Hog Haven, Joe from Roth CPA, Royce from Iowa Libertarian, and now Doug from Iowa Geek. I just love the blogger community. Great bunch of people."

I catch up with Matt and Greenman about every week these days, either through Dreamwell productions or playing poker. But I've yet to meet the rest of the Iowa blogging crew. We should kick around the idea of scheduling an Iowa blog party someday. At a minimum, we'd know the conversation could never be dull.

More Red/Blue Divide

Salon.com has an article up:

"It was the national security, stupid."

An excerpt:

Liberal hawk and blogger Michael Totten, who yesterday said that the Democratic party "is in shambles," outlines the imperative of carving out new space on the political left for dialogue on the issue.

"It is possible to be some kind of anti-Bush lefty and write thoughtful books and articles about national security without being a backseat heckler who opposes but offers no alternate vision. Paul Berman has managed to do it. But he labors away in an inhospitable left-wing environment that hardly has any room for him. For someone like me who doesn't have a lifetime's worth of street cred in the lefty press, I'm all but forced to play in the right's sandbox whether I like it or not. (But I don't dislike it as much as I did, and that's bad news for the Democrats. An entire genre of intellectuals like me exists and has a name -- neoconservatives -- because mine is all-too common a storyline.)

"These kinds of problems are self-reinforcing. The fewer intellectuals there are on the left who study military history and strategy, the less likely any otherwise left-minded person who is interested in such things will want or be able to work with or for liberals and Democrats. What has been happening is a nation-wide brain-drain from the left to the right -- at least in certain areas."

Though I enjoy the debate about legislating morality and respect for one's political opposite number, I suspect this remains the primary red-blue divide.

My rationale: In years of perusing blogs and engaging in political debates, my acquaintances are split rather evenly between conservatives and liberals. I can name many, many people who are socially/morally liberal, but held their noses and voted for Bush based on national security concerns. I can't name one socially conservative person who voted for Kerry for any reason whatsoever.

Wednesday, November 17, 2004


Finally making it into the 21st century by subscribing to a feed reader. Really cool that I don't have to wonder if I've missed a post. Also saves opening a cajillion windows to troll the blogs in the morning. All in all, a big plus.

Theater Update

Book of Liz runs one more weekend at Dreamwell. It really is too funny. I might go usher Saturday if Deone hasn't got anyone else to do it with her yet.

Caught Comics in Action last night at the Mill. It was a small audience, which is always nasty for improv. But they did some really nice things with it. I was impressed with how many singing bits they included. That's some hard stuff. They're playing at Penguin's in CR sometimes soon, check their website.

Tomorrow I'm going to be doing a reading at the Night of 1,000 Dinners fundraiser to eliminate landmines. It's a really cool piece written by Vicki Krajewski and sponsored by Moongarden Acting Company. It's very powerful - I get goosebumps reading parts of it. Go to the website for reservation info. It's a really good cause.

Emigration, on the other hand. . .

Kos has a post up regarding Europe's economic superiority to the US. He finds their standard of living better and their economy comparable. I do admit to envying that whole 10 week vacation thing. Okay, to the economists: who really has a better economy and standard of living?

Dang it

Speaking as someone who gets regular sinus headaches, this bit of news found via State 29 really annoys me:

A proposal announced Tuesday by Iowa Gov. Tom Vilsack would restrict sales of those medicines to pharmacies only and require customers to both display a photo identification card and sign for their purchases.
I don't mind the signature bit, and while the id is a bit much, at least it doesn't require a special trip. But if you've a headache at 3:00 am, where the h*ll are you going to find an open pharmacy?

I know we want to regulate this stuff, but can't we do it a better way?

A Very Bad Idea

You know that TIVO you use to fast forward through the commercials? It may soon come with a scrolling banner on the fast forward page - to show commercials.

Pardon Me

Bush pardons two turkeys this Thanksgiving.

This judge wishes he'd commute at lease part of the sentence for this defendant. It requires a PDF reader, but you should read the decision. It shows some of the real problems with the federal sentencing guidelines.

FACTS: Defendant dealt marijuana, made three controlled buys of $350 apiece. In some of those he carried, but didn't threaten with or use, a firearm. When they searched his and his girlfriend's residences, there were other firearms found. The effect of the federal sentencing guidelines: to put him away for 55 years or so. First real offense. No discretion. The judge was particularly affronted by the fact that a child rapist or pornographer, or someone who actually shot somebody during a single drug buy, would get a lighter sentence (See Table 1 in the decision).

Things that Make You Go Hmmm

Saw this in the NY Times today:


The conventional theory is that running was a by-product of bipedalism, or the ability to walk upright on two legs, that evolved in ape-like human ancestors called Australopithecus at least 4.5 million years ago.

But Liberman and Bramble argue that it took a few million more years for the running physique to evolve, so the ability to walk cannot explain the transition. . . ."

I'm no scientist, but why do I have the feeling that walking led to running as soon as the first primitive bipedal human was chased by something ferocious? Can we say 'immediately?'

An Amoral Fallacy?

As a correlating spin off my philosophical rambling earlier, I noted some postings involving the theory that "you can't legislate morality."

I've no idea who first thought up that bit of inanity, but put in direct quotes it got over 4000 hits on Google alone. Why on earth is it so popular? All law is legislated morality. We make decisions about what is or isn't acceptable in a civilized society and enact them as rules with corresponding penalties.

The most recent sightings: James A. Autry uses it in a semi-coherent rant against evangelicals in yesterday's Des Moines Register:

I don't think it's the government's business to make judgments about "sin;" the evangelicals disagree. So how do I as a Christian and a Democrat resolve this? On the one hand is a moral question Christians may appropriately debate but in which I believe the state has no role; on the other is a civil-liberties question in which I believe the state does have a role.

So the state has no role in morality, that's all "sin" that should be left for the churches? As State 29 puts it:

This is very funny and screwed up. Isn't murder a sin? Robbery? Messing around on your wife or husband and having the other spouse file for divorce on those grounds? The State has a lot of business making judgments about sin.

That's the thing. If you look at the natural world, there are no laws that things die eventually, and there are no rules except might makes right. Everything else is something we've imposed upon the natural world to maximize our safety and sanity - in other words, a moral judgment. We might have some moral judgments that stem from practical concerns, as with incest laws. Others might stem from deep prejudices, like cannibalism. But without our decision to live together in a society and decision to abide by the rules of that society, there are no such laws . . . unless, like the evangelicals, you believe in God. But whether you believe the laws of society originated in a divine higher power or a human one, they are still moral judgments proscribing sin against that higher power.

Autry makes another dangerous argument in his diatribe:

"The question is, "Even if it is, do we withhold constitutional liberties from certain sinners and not others?" According to the Scriptures, we have all sinned and fallen short of the glory of God."

So a murder equals a theft equals a rape equals a white lie equals a cussword, and the government has no right to take away consitutional liberties for one of those if they don't do it for all? I guess we'd better impose life imprisonment for saying "Jesus H Christ" then, or not punish murder at all?

Back to the first quote - Autry apparently doesn't think robbery and murder are moral issues, but "a civil-liberties question in which I believe the state does have a role." However, as Eugene Volokh points out in this post, civil liberties are moral issues:

"So people should certainly criticize the proposals of the Religious Right (or Religious Left or Secular Right or Secular Left) that they think are wrong on the merits. But they would be wrong to conclude that the proposals are illegitimate simply on the grounds that the proposals rest on religious dogma. Religious people are no less and no more entitled than secular people to enact laws based on their belief systems.

And they would be quite inconsistent to (1) say that religious people ought not enact law based on their religious views, and nonetheless (2) have no objection when religious people do precisely that as to abolition of slavery, enactment of antidiscrimination laws, abolition of the death penalty, repeal of the draft, and so on."

Professor Volokh expands on this in this post in response to a reader's email asserting that one's beliefs should only be allowed to form the basis of a law or legal policy if they can be defended 'rationally' - with no reference to God or an ephemeral belief system. An excerpt:

"But the trouble with the correspondent's broader notion -- "that it's illegitimate . . . to justify one's decisions about how society should be run based on assumptions one cannot defend reasonably" -- is that ultimately most of the moral principles that each of us has can't be defended purely reasonably. Should people be barred from abusing animals? There's no purely reasonable answer to that; at some point, it comes to down to a moral axiom, such as "people shouldn't be allowed to pointlessly inflict pain, even on animals" or "people should be free to do whatever they please with their property." And if you think this claim isn't an axiom, but can be defended reasonably through some other principle, that just means there's some other moral axiom lurking in the background. . . .

Or what about protecting endangered species? Many people want to protect them purely on moral principles -- humans shouldn't exterminate other species. That too is a moral axiom, or at least rests on moral axioms. Others argue that there's a pragmatic reason for it, for instance that protecting endangered species is needed in case the species may yield some useful biotech products some time in the future, or in case they fill an important ecological niche. But even such pragmatic reasons rest on unprovable moral judgments, such as that a small and incalculable chance that the species might prove useful in the future justifies the real costs to real people that saving the species would involve. Now these judgments may well be right -- but they aren't reasonably provable. And ultimately, the same is true, I think, for moral judgments even about matters such as the wrongfulness of murder, rape, robbery, and so on, and certainly for more contested matters such as race discrimination, breach of contract, defamation, invasion of privacy, moral rights in published works, and so on. All these moral and legal claims rest on unprovable moral assertions."

As I see it, the problem is actually one of source material. The evangelicals would call certain things, in this case homosexuality, a sin. They call it immoral because it is proscribed by their religion. They feel because these things are immoral, they are properly the subjects of bans by the law. Those who are 1) outside the evangelical religion, and 2) don't share the view that the issue is immoral, try to call that an illegitimate imposition of the evangelical religion on the rest of society. They invoke the "don't legislate morality" axiom in support of this. But to invoke that is to forget that every law - from murder convictions to endangered species acts to the very civil rights laws they would cite to support gay marriage - actually legislates morality. What they are in effect saying is 'don't legislate your morality, legislate mine.'

(And don't try to hide behind the Constitution: the Bill of Rights and the Constitution comprise one big effort to legislate a common view of morality held at the time. Even that can be amended and reinterpreted, as we've seen time and again.)

In the end, these issues will be resolved by the majority of the country adopting some balance it finds most in conformity with the morals and precepts valued by that majority, from whatever source. That will last only until the values shift again.

But, in reference to my post the other day, I still don't have an answer. Would those advocating secession today, based on a feeling that the "red" part of the country cannot impose it's backward moral values upon them, similarly concede that the 'state's rights' arguments made by the old South during the Civil War were also morally correct? In other words, that the Civil War should never have been fought?

It's been my challenge to myself to find a distinction between modern and archaic secessionists, other than the morally relative "we are right and they were wrong." I still don't see one.

Tuesday, November 16, 2004


I don't know why I'm surprised. Someone is auctioning a 10-year-old grilled cheese sandwich on Ebay, purported to bear the image of the virgin Mary.

The high bid is now over $18K.

Comics in Action

I'm going to the Mill tonight to see Brian Tanner and his fellow comedians put on an improv show called Comics in Action. Show starts at 9:30 despite what the website says, and cover's only $3. Can't beat good comedy for three bucks.

Voted Most Likely to Secede

This salon.com article notes the irony in liberals talking state's rights and secession, concepts long considered the refuge of redneck South:

"Liberals have long opposed the growth of state power, and for good reason. The century's most significant clashes over federalism have been over civil rights, with the national government forcing the South to submit to desegregation. Since then, fights over everything from abortion to school prayer have pitted Northern liberals, who want to use the federal government to enforce individual rights, often in the face of hostile majorities, against Southern conservatives, who believe that communities should be free to set their own norms.

Now, though, it's liberal enclaves that feel threatened by the federal government, and who will likely need to muster states' rights arguments to protect themselves from Bush's domestic policies."

An interesting question. Setting aside the issue of whether secession is possible or would lead to another civil war, and setting aside my suspicion that the election of Bush was less about morality than about foreign policy, I want to deal solely with the philosophical/moral issue:

How does one draw the distinction between the modern liberal secessionist and the old Southern secessionist? Each would seek to uphold a minority view in the face of a diametrically opposing moral view of the majority. You can't utterly dispose of it by saying that modern secession is for "individuals' rights" either, despite what the article says, because every "right" that is enforced by the government as per one group necessarily infringes on the "rights" of another group. The racist drug store owner of the old South would argue that the government was interfering with his freedom of association by telling him who he could or could not serve at his own lunch counter, for example. Making a law against hate speech necessarily infringes upon the right to free speech of the speaker. Forcing a conservative church to hire a homosexual pastor infringes on its right to freedom of religion.

You could make the blanket statement that the liberal position today is "good" and the old Southern position of yesterday is "bad". But good and bad are relative terms and open to reinterpretation, how do you prove that one position is inherently good or bad without reference to current societal norms, which are themselves open to revision as time and cultures change? For example, I learned the other day that the textbook at issue in the Scopes monkey trial included eugenics and advocated not allowing certain "degenerate" members of society to breed. The same progressives that were fighting against the 'backward thinking' of the religious right were themselves engaged in a brand of backward thinking of their own. At least by today's standards. Which will probably not be tomorrow's.

Here's an interesting one that the Salon.com article uses as an example: abortion. Take the abortion issue and spin out possible philosophical evolutions against current liberal pro-choice philosophy: As science advances over the next hundred years, we should be able to save babies born earlier and earlier in the pregnancy, and correct more and more birth defects. We are already doing elaborate surgeries in the womb, what if we develop ways to take cameras within the uterus on a regular basis to monitor fetal movement? It would start out as a medical tool, but once it became routine, wouldn't eventually someone want a "day in the life" video of their developing child? And what if we could learn to communicate with them by tracking and interpreting brain waves, first as a diagnostic tool of sorts, but later to enhance development and the bonding process? What if that leads to earlier and earlier development and we discover the ability for complex thought or feelings in the fetus at the second-trimester level? Could these new abilities and knowledge eventually lead to a general decline in the view that a fetus is not a person? Could there come a time when the complex thinkers of the day condemn the pro-choice movement as backward; killing off the handicapped and the disadvantaged before they are born, rather than enacting social programs to protect them? Couldn't they then analogize the fetus to the African-American of the Jim Crow days, and find the pregnant women's argument that she has the "right to choose" whether or not to play host to the fetus as exactly as untenable as that of the racist drug-store owner?

It seems that the idea of an absolute "good" or "bad" is not solid basis for the distinction. So what is? Okay, I'm philosophically rambling, but the issue has caught my interest. Any thoughts?

A Judge, a Priest and a Rabbi Walk Into A Bar . . .

Justice Rehnquist is now playing to the crowd. (Washington Post, reg. required):

Addressing the annual convention of the Federalist Society here last week, Supreme Court Justice Antonin Scalia delighted the crowd of distinguished legal eagles -- the audience of 1,000 included several judges -- by again talking about orgies as a way to "eliminate social tensions." To much laughter, we're told, he described his talk as an encore of a notorious speech he gave at Harvard in September, when the press mistakenly reported that he had endorsed orgies.

"My wife hasn't heard this talk," he noted Friday evening at the Mayflower Hotel, our sources tell us. ( Maureen Scalia was among those listening.) He used the famous line "I accept for the sake of argument that sexual orgies, homosexual or not, eliminate social tensions, and ought to be encouraged," according to one note-taker. Responding to hearty laughter, he ad-libbed: "Ah, the libertarian half of the Federalist Society."

Same old story - once you get into comedy, you just start playing for the laughs. Maybe he'll bring a rubber chicken to the next conference? No, wait, a rubber . . . .

Never mind. Won't go there.

Yup, We's Smart

From Talk Left, the stupid non-crime of the week:

A woman is arrested for paying for her Fashion Bug purchase with a fake $200 bill with George Bush's picture on the front, and the White House with several signs erected on the front lawn, including those reading "We Like Broccoli" and "USA Deserves A Tax Cut" on the back. The cashier didn't have the brains to identify this as a phony bill. But the charges against the woman were dropped when she convinced authorities that she didn't realize it was fake either.

Latest Casualty of Career-Suicide-by-Blog

Following in the footsteps of Washintonienne and Amy Norah Burch, Ellen Simonetti of Delta Airlines was fired for her off-work blog. (NY Times registration required, use "randommentality" for the user name and "password" for the password). Though she didn't name the airline for which she worked and used a pseudonymn, Delta managed to identify her blog when she approached them in an effort to get them to buy blog ads. When Delta checked out the site, they discovered she was posting mildly suggestive photos of herself in planes while in her Delta uniform. They fired her. She's threatening to sue, pointing out that: 1) The photos were hardly racy; and 2) Other Delta employees have photos of themselves in uniform posted in public places with no negative consequences. She's still blogging, so if you're interested you can follow her saga here.

Monday, November 15, 2004

One for the Defense

The Immaculate Conception of Alcohol via the Crim Law Blogspot. Not sure this would fly as a OWI defense, folks. Though it could play havoc with the reasonable doubt issue. A side note: Things are getting a tad ridiculous on the OWI political front, however. I was unaware that a new movement is now being formed to take the BAC from .08 to .05. MADD in Canada is pushing it full-force, while MADD in the US is starting on it for repeat offenders, and RID wants it to be .05 for OWI with .02 for anyone who ever had a prior OWI. Say goodbye to the glass of wine with dinner: according to this chart, I personally at 110 lbs would probably be close to .05 if I had one glass of wine over the period of an hour.

Personally, I don't have a problem with removing drunk drivers from the road, nor do I have a problem with establishing a level of BAC at which one is considered legally impaired. But let's keep it high enough to ensure impairment is more than slightly sub-par. It seems to me this correlates with the "no accident" mentality I'm seeing in tort law. It's my personal pet theory that lawsuits are growing for things like tripping on a perfectly visible curb, or getting hit with a piece of insulation being loaded onto your truck by a Menard's employee, after being told to move by the employee because you were in the way and could get hit by it, as are the rough facts in one of today's opinions in the Iowa Court of Appeals. That has led to a growing perception that whenever something bad happens, it is someone's fault. If you choose to dive into someone's fenced, locked pool after drinking and break your neck, it's their fault for not having a better fence. Well, in all this media I'm seeing a trend toward reporting "alcohol involvement" in collisions whether or not the alcohol was actually a contributing factor in the accident. And, of course, drinking was banned out at the Res based on the number of drownings, despite there being no evidence to link any of the drownings with alcohol consumption. I find that odd. Some are speculating that we're headed toward a new prohibition, see here, here, and here. I may be on the unpopular side socially on this issue, but I agree with Eric Peters:

"However, there is no evidence that minimal BAC levels of .06 or less — which are reached after a normal-sized person has had a single drink, no more — correlate with a greater likelihood of having an accident as a result of diminished capacity.

It's one thing to lock up the person who is weaving all over the road — quite another to arrest a person at a sobriety checkpoint simply because he has trace amounts of alcohol in his blood.

The anti-drunk-driving groups have done a great service in helping to enlighten the general public — and make it socially unacceptable to drive while drunk. But knowing when to say "when" applies just as equally to social and legal policy. Just because we went on a bender in the past doesn't mean neo-Prohibitionism is the answer today. Reasonable people favor reasonable laws.

And that should satisfy all but the crazies — who should be kept away from the levers of power regardless."

Peterson Follow-Up

Brent at Cop Talk has a nice post-mortem:

"He did such a good job that the police and prosecution had no physical evidence at all. There was nothing that could tie him to the murder that the jury could look at or touch. But while Scott worked so hard at denying the jury that physical evidence, he didn't work at making himself appear innocent. His actions, his words and his demeanor all screamed GUILTY!"

Very true. After hearing about the physical evidence, or lack thereof, I would've put my money on a not guilty verdict. One of those where you know he did it but can never prove it situations. As it was, the jury saw through it. If he'd have just shut up: stopped talking to Amber, stopped visiting the crime scene, stopped ordering porn, stopped acting like a smart *ss, and for crying out loud, stopped trying to dye his hair and leave the country under a fake name; then he probably would've gotten off. He was just too cocky for his own good.

Terry Schiavo

I've noticed a couple of interesting posts on this case today.

Background, for those who've been living in a cave in outer Mongolia for the last few years, excerpted from the Terry Schiavo Information Page:

"On February 25, 1990, . . . Theresa, age 27, suffered a cardiac arrest as a result of a potassium imbalance. Michael called 911, and Theresa was rushed to the hospital. She never regained consciousness. Since 1990, Theresa has lived in nursing homes with constant care. She is fed and hydrated by tubes. The staff changes her diapers regularly. She has had numerous health problems, but none have been life threatening.

Over the span of this last decade, Theresa's brain has deteriorated because of the lack of oxygen it suffered at the time of the heart attack. By mid 1996, the CAT scans of her brain showed a severely abnormal structure. At this point, much of her cerebral cortex is simply gone and has been replaced by cerebral spinal fluid. Medicine cannot cure this condition. Unless an act of God, a true miracle, were to recreate her brain, Theresa will always remain in an unconscious, reflexive state, totally dependent upon others to feed her and care for her most private needs.

Michael Schiavo did not make the decision to discontinue life-prolonging measures for Terri.

As Terri's husband, Michael has been her guardian and her surrogate decision-maker. By 1998, though -- eight years after the trauma that produced Terri's situation -- Michael and Terri's parents disagreed over the proper course for her.

Rather than make the decision himself, Michael followed a procedure permitted by Florida courts by which a surrogate can petition a court to act as a ward's surrogate and determine what the ward would decide to do. Michael took the position that, based on statements Terri made to him and others, Terri would not wish to continue life-prolonging measures. The Schindlers took the position that Terri would continue life-prolonging measures. Under this procedure, the trial court becomes the surrogate decision-maker, and that is what happened in this case.

The trial court in this case held a trial on the dispute. Both sides were given opportunities to present their views and the evidence supporting those views. Afterwards, the trial court determined that, even applying the "clear and convincing evidence" standard -- the highest burden of proof used in civil cases -- the evidence showed that Terri would not wish to continue life-prolonging measures."

The troubling part:

"The case has also become controversial because, for years, Terri's parents have publicly questioned Michael's motives for wanting to discontinue Terri's life support. Specifically, they have charged that Michael remains Terri's husband and is working to end her life so he can inherit whatever money remains from a $1 million 1993 medical malpractice settlement Michael recovered on behalf of himself and Terri. Presumably, if Michael divorced Terri, then he would not have access to Terri's portion of the money, and upon her death her parents would inherit it. News reports also indicate that Michael is engaged to another woman."

I've seen additional allegations that the husband withheld obtaining potentially beneficial, yet expensive, therapy for Terri, opting instead to place her in nursing homes. To be fair, however, how beneficial could the therapy actually be given the severity of her disability?

So the case works it's way through the Courts and the husband prevails, leading to the removal of Terri's feeding tube. Then the Florida Legislature passes a special measure called "Terri's Law" enabling Governor Bush to order the tube reinserted, which he does. The legality of that law and his subsequent Order are the topics of the current litigation. Judge Baird of the 6th Circuit court in Florida declared it unconstitutional for three reasons. A good summary of the ruling is here. The ruling itself is here. The gist:

Two of the arguments are separation of powers -

1) The legislature can't delegate it's authority to the governor.

"The Legislature could not enact a law that authorizes the motor vehicles department to give licenses out whenever the department feels like doing so, or to take licenses away whenever the department wishes. There must be standards that the executive branch person (or municipal person) must follow, or else the executive branch person making the decision has in effect become a mini-Legislature, making the law up as he or she goes. Michael Schiavo argued that Terri's Law gave Governor Bush unbridled discretion regarding how to apply that law to any particular person. Judge Baird agreed."

2) The law was unconstitutional as it was applied to Terri, because it was an impermissive interference in matters of the judiciary (the prior court ruling) by the legislative branch.

The last one is a charge that the law violated Terri's rights -

3) That the law is unconstitutional as applied, based on the due process concept that legislation should not be retroactively applied to a situation where a person's rights have already been vested.

"This can get a bit complicated, but the short of it is that where the law recognizes past events give you a certain right, that right cannot be taken away. Here, Michael Schiavo argued that Terri's decision about whether to receive a feeding tube had already been made and put into effect, and thus it was too late for the Legislature to pass a new law making that decision ineffective. Judge Baird agreed."

The new twists and points:

This posting at SCOTUSblog discusses a new legal twist: Governor Bush suing that his constitional right to due process is being violated. Key quote:

The governor, however, has been arguing -- and will argue to the Supreme Court -- that he has a federal constitutional right to due process before his order to re-insert the tube can be judged. That due process right, according to his lawyers, includes a right to discovery, a right to cross-examine witnesses, and a right to a jury trial or an evidentiary hearing on the facts as they presently exist. Citing a 1996 U.S. Supreme Court ruling, in the case of Richards v. Jefferson County, Bush is expected to contend that his due process rights under the 14th Amendment are violated because his powers as governor have been nullified on the basis of facts established in earlier litigation in which he was not a party. His first move in the Supreme Court is expected to be a request to stay the Florida Supreme Court ruling while he appeals.

This is because, according to this post on Abstract Appeal, the Governor had requested the chance to depose Michael Schiavo and others, and Baird didn't allow it.

NOTE: Keep in mind that this case is utterly separate from the legal case between Terri's parents and Michael Schiavo in which they are seeking to remove him as Terri's guardian.

A second twist, non-legal, is in this article, pointed out by Alas, A Blog:

"Schiavo is all but lost in the larger discussion, which turns out is about the right to life vs the right to die. There has been virtually no mention of disability rights -- or the issues disability rights activists have attempted to raise -- in this whole sorry sordid saga. . . .

The problem, say disability activists, is that the courts have accepted legal husband Michael Schiavo's beliefs about what Terri Schiavo would have wanted, over her parents' beliefs -- and nobody really knows what Terri Schiavo would have wanted. Activists believe that Michael Schiavo has acted badly toward his wife, obtaining a settlement for a malpractice suit he filed against her and then not permitting her therapy."

One last side note that I hadn't realized until today, the Lost Lesson of Terri Schiavo:

"By all accounts, Terri was a fine young woman. She had a good job, a good marriage and many friends. Most who knew Terri, however, were unaware that she was sick. Terri suffered from an eating disorder known as bulimia nervosa, commonly called bulimia. The disease causes its victims to overeat ("binge") and soon thereafter vomit ("purge"). The cycle of binging and purging is extremely dangerous. The human heart, to work properly, requires a balance of the body's electrolytes. Vomiting can upset the electrolyte balance and cause abnormal heart rhythms that can lead to heart attack. That is what happened to Terri. One night, Terri purged, which caused her potassium level to drop low enough to cause a heart attack. Before fire rescue arrived and took her to the hospital, Terri's brain had been deprived of oxygen for long enough to produce catastrophic brain damage."

Wow. Maybe someone should post this on all those Ana/Mia sites.