Thursday, June 30, 2005

Um . . . that's a Stretch

To the person who came here researching the idea of Chief Illiniwek as an endorsement of religion - good luck. I hope you're only using that as an argument in the alternative.

You might be able to float the idea of football as a religion, but somehow I doubt you'll get very far on a separation clause suit to withhold state support for football.

And if you try . . . um . . . make sure you John Doe the suit.

Trust me on this one.


Evan Schaeffer has a link to a short film explaining the hearsay rule using lego characters. Of course, when I try to pull it up, I get this. . .

Wednesday, June 29, 2005

Divisiveness Criteria and the 10 Commandments Cases

One of the cited factors in the latest round of ten commandments cases was the whole concept of divisiveness. Justice Bryer's concurrence in Perry (important because the 'majority' opinion only had four people sign on, so without the concurrence it would be a 'minority') comments:

[T]here is “no simple and clear measure which by precise application can readily and invariably demark the permissible from the impermissible.” . . . One must refer instead to the basic purposes of those Clauses. They seek to “assure the fullest possible scope of religious liberty and tolerance for all.” . . . They seek to avoid that divisiveness based upon religion that promotes social conflict, sapping the strength of government and religion alike.

. . .

As far as I can tell,40 years passed in which the presence of this monument, legally speaking, went unchallenged (until the single legal objection raised by petitioner). And I am not aware of any evidence suggesting that this was due to a climate of intimidation. Hence, those 40 years suggest more strongly than can any set of formulaic tests that few individuals, whatever their system of beliefs, are likely to have understood the monument as amounting, in any significantly detrimental way, to a government effort to favor a particular religious sect,primarily to promote religion over nonreligion,to “engage in” any “religious practic[e],” to “compel” any “religious practic[e],” or to “work deterrence” of any “religious belief.”). . . . a more contemporary state effort to focus attention upon a religious text is certainly likely to prove divisive in a way that this longstanding,pre-existing monument has not

. . . .

But, as I have said, in reaching the conclusion that the Texas display falls on the permissible side of the constitutional line, I rely less upon a literal application of any particular test than upon consideration of the basic purposes of the First Amendment ’s Religion Clauses themselves. This display has stood apparently uncontested for nearly two generations. That experience helps us understand that as a practical matter of degree this display is unlikely to prove divisive. And this matter of degree is, I believe, critical in a borderline case such as this one.

Todd Zywicki has a post up on it today on Volokh Conspiracy:
Overall, if the divisiveness of religious displays is the test, this doesn't seem very divisive to me, especially when compared to much political rhetoric. Nor does this survey evidence bear out the assumption that the "greater diversity" of American religious belief today makes these displays more divisive or controversial than traditionally. And one suspects that if the survey results were broken down by geographic region, it would be even less divisive in many red states. Having lived in red states most of my adult life (unlike most members of the Court, I suspect), I can tell you from personal experience that these sorts of displays simply are not controversial or divisive in any meaningful way, especially when compared to other elements of the public dialogue.

Eugene Volokh posted on it a few days ago:

But I wonder: What has caused more religious divisiveness in the last 35 years -- (1) government displays or presentations of the Ten Commandments, creches, graduation prayers, and the like, or (2) the Supreme Court's decisions striking down such actions?

My sense is that it's the latter, and by a lot: All these decisions have caused a tremendous amount of resentment among many (though of course not all) members of the more intensely religious denominations. And the resentment has been aimed not just at the Justices but at what many people see as secular elites defined by their attitudes on religious matter. The resentment is thus a form of religious division, and I've seen more evidence of that than I have of religious division caused simply (i.e., setting aside the litigation-caused division) by the presence of Ten Commandments displays, creches, or even graduation prayers.

Isn't there something strange about a jurisprudence that in seeking to avoid a problem (religious divisveness) causes more of the same problem, repeatedly, foreseeably, and, as best I can tell, with no end in sight?

Unless I'm missing something:

1) Divisiveness hinges in part on popularity. If there's widespread support or condemnation for something, it's simply not divisive. Okay, so take the example of the "Red States." Maybe they wouldn't mind mandatory school prayer. In fact, let's hypothesize that 80-90% of people in a very red state would support school prayer. Does that lack of divisiveness act as a factor in favor of constitutionality? Since when is the validity of a constitutional principle up for grabs?

2) On the other hand, is this just an honest recognition of the political evolution that takes place during radical view shifts? Most of our current views on civil rights have at one time or another shifted from being considered odd minority rantings, to being so ingrained that we look upon the time before we had that right as backward. In other divisive areas, such as abortion, the Courts have justified the decisions on a newly-perceived, somewhat murky "penumbra of rights" without acknowledging that perhaps societal attitudes have shifted to find a right where there once was none. Then those who haven't made the shift talk about "activist judges." And they're not inaccurate. So the "divisiveness" factor could keep the balance in check? But again, that raises the issue: should it? If you've become convinced that a new way of looking at the constitution does in fact make something illegal that wasn't before, should you wait until it becomes more popular?

Just random thoughts. No, it's not a coherent position. I take the fifth. If that's all right with everybody else.

The Odd Post

If you didn't get enough of that singing fish a few years back, try this.

Just in time for the 4th of July, from the gallery of Unfortunate Greeting Cards.

And from the same site, a day in the life of warning sign stick figure man. My favorite is the

vending machine tipover incident:

It's not bad enough I'm about to get crushed to death by a pop machine, but for some reason there are goddamn lightening bolts striking me in the head at the same freaking time.

The ultimate site for people who really hate those plastic garden gnomes.

Politically correct versions of historic battles. Remember boys and girls: there are no winners and losers.

The Timber Mafia makes police an offer they can't . . . ignore.

Tuesday, June 28, 2005

In the "Here We Go Again" Column

I may have to vanish in the near future for a few days. Just found out my grandmother (Dad's mom) has had a cerebral hemhorrage that led to a coma, and she's been moved to the hospice portion of the hospital with a DNR order.

UPDATE: She did die at 11:15 last night. I'm getting quite a wardrobe in black . . .

Oh, and this doesn't look good. Whatever,

Dang It

I'm giving up for the day on the whole 10 Commandment cases thing. Nobody likes Lemon anymore, everybody's proposing their own new rule, and it's looking like more "I know it when I see it" balancing is winning the day, only with fewer guidelines. Great. I'm exaggerating slightly, but not much. I've scribbled something on McCreary - both the opinion and Scalia's rather radical dissent - but I've only read Van Orden and haven't even tried to synthesize them. From the tone of some of the dissents and concurrences, it appears that any attempt to synthesize this mess could rip massive holes in the legal/moral continuum and reverse the spin of the universe as we know it. D*mn lawyers.

UPDATE: I think part of the problem is I'd really like to do something that deciphers for non-lawyers, if they have the patience to wade through it - I've had more questions from people about this issue than many others. But if Greenman thinks my other posts make his brain bleed, well, these cases make lawyers' brains bleed. You end up with scorecards about which judge is on board with what issues, and almost all of them end up reciting the entire history of 2nd Amendment law in a fruitless effort to harmonize it. The latest two seem to have given up efforts to articulate a test for another "I know it when I see it" approach, based on the history of all the jurisprudence. Efforts to simplify it are, well, interesting.

Quote of the Day

"You don't have issues. You have an entire subscription."

I am sooo stealing that.


On Monday June 27, Logan Darrow Clements, faxed a request to Chip Meany the code enforcement officer of the Towne of Weare, New Hampshire seeking to start the application process to build a hotel on 34 Cilley Hill Road. This is the present location of Mr. Souter's home.

Clements, CEO of Freestar Media, LLC, points out that the City of Weare will certainly gain greater tax revenue and economic benefits with a hotel on 34 Cilley Hill Road than allowing Mr. Souter to own the land.

The proposed development, called "The Lost Liberty Hotel" will feature the "Just Desserts Café" and include a museum, open to the public, featuring a permanent exhibit on the loss of freedom in America. Instead of a Gideon's Bible each guest will receive a free copy of Ayn Rand's novel "Atlas Shrugged."

Clements indicated that the hotel must be built on this particular piece of land because it is a unique site being the home of someone largely responsible for destroying property rights for all Americans.

"This is not a prank" said Clements, "The Towne of Weare has five people on the Board of Selectmen. If three of them vote to use the power of eminent domain to take this land from Mr. Souter we can begin our hotel development."


Get your t-shirts here.

The Kelo Song

OMG this is cool:

Day O (The Banana Court Song)
by Brett Talley

Kelo come and they taking my home
Day Sandra Day Sandra Day Sandra Day O
Kelo come and they taking my home

Thought the Court save my childhood home
(Kelo come and they taking my home)
Too bad team needs another dome
(Kelo come and they taking my home)
Hey Justice Kennedy you bulldozed my cabana
(Kelo come and they taking my home)
Took my life and gave it to the tax mana
(Kelo come and they taking my home)
Day O Sandra Day O
(Kelo come and they taking my home)
Day Sandra Day Sandra Day Sandra Day O
(Kelo come and they taking my home)

Go read the rest.

I will try to do something on at least McCreary before the day is out. Preliminary thoughts: C'mon guys. Lemon's been around since the 70's. You know how to do this. But no, first you try just slapping up the Commandments without any attempt to show a secular purpose. Hmm . . . the ACLU's really going to ignore that one. Then when you figure out you might have to take them down, you modify the exhibit to include secular stuff. Fine. But in designing the display you decide not to include, say, the whole Declaration of Independence. No, that would be, like, too secular. Nope, you include only little snippets of quotes that have the word "God" in them. Slap them right up there next to the Commandments, along with other snippets of other secular documents, but only ones with the words "God" or "Lord" or "Jesus." Heh. That's soooooo sneaky. I can't imagine why the courts saw through that. The third time around, you finally get the exhibit just about right, with full copies of other stuff like the magna carta and the Declaration and the Star Spangled Banner, even little placards explaining their historical significance. Now you just don't understand why nobody believes you when you say you did all this for a secular, educational purpose.

It's not hard, folks. Seriously. Just say to yourself, "If I was really doing this just to educate somebody about the history of our law, how would I include the 10 Commandments, and what else would I put up?" Then do it. Why do you keep trying to get the whole "the government thinks you should worship Jesus Christ" thing past the Court, when for almost forty years you've known how to get away with this?
"The Counties would read the cases as if the purpose enquiry were so naive that any transparent claim to secularity would satisfy it, and they would cut context out of the enquiry, to the point of ignoring history, no matter what bearing it actually had on the significance of current circumstances. . . . "

Monday, June 27, 2005

New Decisions

Go over to SCOTUSBlog for the latest on the Grokster case (yep, they can be sued for filesharing) and the two Ten Commandments cases (not in the house). How Appealing also has some discussion. I've spent all morning at the hospital getting the results of the latest CT's on my dad, so I'm not going to have time to digest the decisions properly at this point.

Oh, and Scrappleface has it's own spin:
Court Allows 10 Commandments on Seized Land


Dweeze posted on some of the things he misses in Iowa City. I'd like to add to the list:

City Park used to be full of wooden forts and castles, one of them had a tornado slide and a bridge, another was a two-story tower with a metal thing in the middle that I suspect was supposed to be a fake telescope but we inevitably turned into a fake machine gun for defending the tower. It also used to have a ferris wheel. Mercer used to have a real fire engine with it's wheels sunk into the ground. Now . . . open grassy spaces for kids to run around aimlessly and complain they're bored, interspersed by a few comparatively lame-ass swings and tiny slides. Whee. I presume the fear of litigation from kids climbing and swinging and inevitably falling all over the things, and possibly the idea some kid would want to eat the tower rather than climb on it (WTF?) and thus get poisoned by the preservatives. Splinters, too. Dang lawyers.

You could get the most off-the wall clothes there in my college years. From alternative crap to long, skin-tight silk skirts. I had a source for my alternative wear that didn't involve the term "resale."

It's 2 am, the bars are closed, you're a little toasty, and you want munchies. Nothing better than their deep dish slices. There's other pizza-by-the-slice places, but they don't have near the amount of gooey cheese. It was a zoo, granted, but I miss the slice.

It was a typical underage-drinking, noisy, college-kid-filled dance bar. We've got lots of them still. But it was our bar, we knew everyone who worked there and got, um, perks. Want to hear a song? We could get played immediately and repeatedly. A line and a cover charge? I don't think so. $1 shots were not a couple of finger's worth of liquor in shot glasses, they filled a regular drink glass. We could drink all night on $4, something crucial when you're working your minimum-wage way through school. Somebody asks you to dance, or wants to buy you a drink? Make the rounds and between all the people you know, someone can give you their life history. Effectively weeds out the creeps. See someone you think is hot? Make the rounds again, because they inevitably knew someone you did and you can get an intro. We didn't mind it was filled with noisy college kids, 'cause we were the noisy college kids. At my age I couldn't go back there even if it was still open, but come to think of it, there's really no dance bar that does really welcome people in their late 20's and 30's. I miss that. And if Dweeze can miss the Red Stallion, this can count.

The end of an era. I'm sorry, you're going to make the drug store into a video rental place, but keep the soda fountain? WTF were they thinking? It was an old-fashioned, cement-thick shake and awesome sandwich soda fountain. The Airliner had been a staple since some world war or another, an old-fashioned wood-soaked bar with history and character and good pizza. Bushnell's Turtle had those awesome stained-glass windows, and incredible food and a kicking name. We've taken our character and tossed it for another franchise. Yippee. What's next, Hamburg Inn, the Mill, Joe's Place? Come on.

Ever wonder why there's a statue of a monk in front of the Heartland Inn in Coralville? You know, right by the chinese restaurant. That's because it used to be the Abbey. The place to stay on prom night. It also had a tad more character than the cheap brick box that's the Heartland.

After junior high dances. Yep.

I also miss the parking lots. Yes, we used to have them. Places to actually put your car. Right outside the building. It particularly gnaws at me that we gave up a nicely-sized, conveniently-located parking lot that now sits right under the University of Iowa storage shed laser center.

There's a couple more things I need to pick my brain about - that restaurant that used to be in front of the Abbey, before it was the chinese place or the place before that. I liked the food, but the name escapes me. Or the clothing store across from the Pentacrest by Enzler's where you could get the nicer obscure stuff. Not Seifert's, which used to be roughly where Summit is now and I bought my very first grown-up winter coat. But the other one. And wasn't it the place that had the fortune-telling machine in it kind of like the one in Big? Okay, I'm definitely showing my age.

Nobody Expects the Spanish Inquisition

The BBC is taking votes on the best Monty Python episode of all time. Cast your vote here.


Randy Barnett from the Volokh Conspiracy writes:

In his dissent in Kelo (buried on page 14), Justice Thomas may well have written my all-time-favorite line of any constitutional opinion (perhaps, in part, because it does not seem to be written to be famous):

"Something has gone seriously awry with this Court’'s interpretation of the Constitution."

. . .

I am enabling comments for your favorite ONE SENTENCE lines from judicial opinions.

There are some real zingers in the comments.

Saturday, June 25, 2005

Blogger Bash Retrospective

All in all, we had a blast. Greenman, Matt, Jeff and Don, John Deeth, Mike, Nicholas Johnson and his wife Mary, TanMan, Homercles, and I proved a few things:

It is a small world, after all.

Iowa bloggers may be good at pool, only not when playing teams in Iowa City. We're dangerous. We break stuff and threaten people with the pieces. I still say I hadn't had enough to drink to shoot straight. Dammit.

We also have way better taste in music than the idiots who co-opted the juke box.

A party at an HIV center is not the best place to meet guys. But you do get fun toys.

The Old Capitol Brew Works brews some awesome beer, people. We can recommend the following:

A Belgian wheat beer brewed with curacao orange peel and coriander seeds. Truly Refreshing!

This American Pale Ale is very aromatic, using centennial hops. It has an outstanding hop aroma and flavor, dry and appetizing.

An Irish Red Ale that has a toffee like caramel aroma and flavor balanced by a spicy sterling hop finish.

The nachos are good, the chips that came with Greenman's sandwich were addictive, and a good time was had by all. I didn't take out the digital camera this time around because the anonybloggers actually outnumbered those of us who've outed ourselves, so no secrets to reveal here. Okay, maybe a few, but don't ask me about the party-in-a-bag. My lips are sealed.

Friday, June 24, 2005

Blogger Bash

I'm sitting here with Homercles, Nicholas Johnson and his wife Mary, Greenman, Matt from Thoughts from the Oasis, Chad from Tusk and Talon and Mike from Named Pipe. No sign yet of some of the others who PROMISED THEY WOULD BE HERE.

Anywhoo. . .

This is so cool!

Passing it around.

Jeff, wnere are you? Don

The drive from Des Moines was quite's the drive back that I dread. -Mikey

"State 29 where are you?" The great mystery. The author of "floor wax or dessert topping." Thanks for that one. -- Nick

Mathman,sorry you missed it. I got really liquored up, and Greenman had to pull me off of the table I was dancing on, and restrain me with a hammerlock until I settled down. Best. Night. Ever. -- H

What is this name of this place anyway? Where the hell am I? Who are these people? -- Matt, Oasis Admidst the Corn

So here I sit the lone Bolshevik, no poker to play....but the beer is damn good so what the hell.-Greenman
Okay, now it's Friday. You know the drill: show up or . . . or you won't get any beer. Can you really think of a worse punishment?

Then again, you will have to hang out with the blog people. We're scary, you know.



WHO:Iowa Bloggers
Who am I kidding? Anyone who'll buy me a beer.
WHERE:The Old Capitol Brew Works Public House
WHEN:7:30 - ??? on Friday, June 24, 2005.


It has wi-fi, a nice menu, it's own microbrews, and a decent-sized patio if we want to sit outside. Old-timers will recognize it as the bar formerly known as Fitzpatrick's.

Well, so far we've got at least Jeff and Deb coming from the mid-state region, with a definite maybe from Royce (Aw, come on. I don't think they have a dart board, so you don't have to worry. ). There are a bunch of others who've emailed their intent to be there to me privately - I'll take them as a yes unless otherwise notified.

From here, I've gotten a tentative yes from Tung Yin, a yes from Matt, and deafening silence from the rest of the usual suspects. Of course, that's fairly standard for us - the weekend plans generally start out with an email around noon on Friday entitled "Poker?" So I'm presuming they'll about all make it.

Wake-Up Call

Somebody at the Register finally got my point about the new anti-meth laws.

As I sometimes get ungodly sinus headaches that if left untreated will bleed into a migraine, I always keep sudafed on hand. No, the other stuff won't work, it makes my heart race. Fortunately, the pharmacy counter at Walmart is open until 8:00, or I'd be forced to go black market for the stuff. Pain will do that to you. Which incidentally is one of the myriad reasons I'm on board with the whole medical marijuana thing. That and watching my dad have to be hospitalized from side effects of the chemo. It's easy to talk in terms of principles when not faced with concrete reality.

More Comment Debate

Ms. Kemmet comments on our responses to her article.

Fresh Law

The Iowa Supreme Court posted two new cases today.

GALBRAITH v. ALLIED MUTUAL involves a case where insureds were suing their insurance company for not offering them their full amount of underinsured motorist benefits earlier. According to the opinion, Timothy Galbraith sustained head injuries Wendell Warntjes crossed the centerline of the road and struck his vehicle. He sued Warntjes and his wife, the co-owner of the vehicle. He later amended the petition to assert that Warntjes was working for Scott Guy at the time the collision occurred, who was added as a defendant. He also added Allied, based on a claim that the defendants were underinsured.

In the course of settlement negotiations, it came up that Guy might not have an insurance policy to cover this loss, presumably (the opinion doesn't specify) he didn't have enough assets on his own to contribute. Warntjes' policy was only for $100,000, and the loss was arguably worth over $150,000, so the Galbraiths wanted Allied to cough up it's $50,000 as part of the settlement. Allied first wanted proof that Guy's policy wasn't going to pay, because if it did pay, and if the amount it would pay was sufficient to cover the Galbraith's loss, then it was off the hook.

The claim moved along, and on May 4, 2001, the Galbraith's attorney told Allied that if it didn't pay it's limits by the time the settlement was finalized, they'd add a bad-faith claim against Allied. Bad faith is a tort separate from the contractual duty to pay the $50,000 if owed. So if they won on the merits, it could allow the Galbraiths and their attorney to get money above the policy limits - whatever amount a jury would think would be sufficient to deter Allied from further bad conduct, within certain legal limits. Currently the theory is an "up to nine times the actual damages" rule, based on this case, but that's all loose. Allied responded by asking to take Guy's deposition.

On May 21, the Galbraiths moved to add the bad faith claim. On June 11, Allied offered half it's limits as a compromise. On June 15th, the Galbraiths rejected that, enclosing an affidavit from Guy that apparently included the info Allied needed, and a statement that they'd accepted the Warntjes' insurer's offer. On June 25, Allied offered its limits. On June 27th, the Court allowed the Galbraiths' claim of bad faith to be added to the petition. On June 28th, the Galbraiths settled with Warntjes.

Allied moved for summary judgment on the bad faith claim, alleging that the facts were undisputed and there was no basis under the law that the Galbraiths could win. Allied argued that because it didn't technically have a duty to make UIM payments until the settlement of the case with the Warntjes, by definition it wasn't late. The District Court gave them the summary judgment, but the Court of Appeals overruled it. Their rationale: "In order to uphold the district court’s conclusion it must appear, as a matter of law based upon undisputed facts, that no settlement agreement occurred prior to June 25, the date Allied tendered the underinsured motorist policy limit. If there is a disputed issue of material fact regarding whether an enforceable settlement agreement was reached prior to this date, the district court must be reversed." Because they found that the settlement had arguably been reached in May, they felt there was sufficient facts to go to the jury. The Supreme Court disagreed:
An underinsured-motorist carrier cannot be expected to make payment to its insured prior to the time that the underlying tort litigation has been fully resolved and a determination has been made concerning the presence or absence of liability insurance available for payment of the claim. The insurer is not required to accept the insured’s word as to such matters and may demand adequate documentation.

The fact that the Galbraiths may have been able to enforce an earlier oral agreement if no written agreement had been forthcoming did not defeat Allied’s right to insist on a signed written agreement as documentation for payment of the Galbraiths’ claim. Moreover, it appears that throughout the negotiations both the Galbraiths and Allied were proceeding on the basis that the Guy affidavit was essential to the conclusion of any settlement. Allied was not advised as to the obtaining of the Guy affidavit until June 15, the time at which its earlier settlement offer was rejected. The insurer was not required to accept this affidavit as true on its face and could reasonably take additional time to investigate the provisions of Guy’s liability policy with another company that had been identified in the affidavit. As the district court correctly concluded, the timing of the negotiations and the settlement were such as to preclude a determination of bad faith on Allied’s part with respect to the time at which it paid the Galbraiths’ underinsured-motorist claim.

IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT v. W. MICHAEL SHINKLE involves an ethical rule that many non-lawyers might find counter-intuitive. There were two claims brought against Shinkle: 1) That he had neglected his client's case and covered it up; and 2) That he had improperly loaned his client money. The first claim was refuted by Shinkle to the Court's satisfaction. It was a work comp case involving a notice of final payment or suspension of compensation payments, that had given the client one year from the date of the letter to file any objections. Shinkle's client was trying to say that Shinkle had blown off that deadline and tried to cover it up. Turns out, his client never gave him the letter, so he had no idea there was the deadline until it was too late.

On the second claim, the facts were as follows:
Notwithstanding the fact that Lard received over $46,000 in compensation benefits, the only compensation Shinkle received from Lard for his services in this matter was $500. Shinkle’s trust account ledger shows that he received a $500 retainer from Lard on October 11, 1990. Although Lard claims he had a contingent fee contract, Shinkle testified there was no such agreement. Other than Lard’s testimony, there is no proof that such an agreement was reached. The trust account ledger showing a retainer for $500 is the only written evidence on this point. This evidence supports Shinkle’s testimony.

Shinkle admits from time to time he gave money to Lard, Deborah, and their daughter in response to specific requests from them during the representation and after the representation ended. From November 1989 until October 1993—the time during which Shinkle represented Lard—he wrote checks to Lard totaling $1750.

Both Lard and Deborah testified that Shinkle was advancing the funds and that Shinkle would get the money back when he settled the case. The money, they said, was used to help pay bills because Lard was out of work. There is no written evidence to support the Lards’ claim that Shinkle would get the money back when he settled the case.

Shinkle on the other hand testified that he gave the money because of his long association with the family and he wanted to help them. In addition, Shinkle said he felt bad that he and Deborah may have pushed Lard too strongly to undergo the first surgery over Lard’s objections and his failure to convince Lard to undergo the second surgery. Shinkle denied that he gave the money expecting it to be paid back out of any settlement. Shinkle also denied the Board’s claim that he gave the money to placate Lard, hoping that the case would go away.

So basically, the guy didn't get paid beyond his $500, and loaned them $1750, and they're complaining. Ooookay. But that doesn't negate the point.

The ethical rule at issue:
DR 1.102 Misconduct.

(A) A lawyer shall not: . . .

(6) Engage in any other conduct that adversely reflects on his fitness to practice law.

(My note: specific, huh? Actually, if you keep up with the caselaw, you have a shot at knowing the boundaries. Which is why every lawyer in Iowa is required to have 2 hours of ethics classes every two years to keep his or her license. It's also a d*mn good idea.)

In looking at Stickle's case, the Court points out:
DR 1-102(A)(6) implicates more than legal competence. Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Stowers, 626 N.W.2d 130, 133 (Iowa 2001). It also embraces one’s character and one’s suitability to act as an officer of the court. Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Mulford, 625 N.W.2d 672, 683 (Iowa 2001). Giving a client money that resulted in miscommunication or unrealistic expectations and prevented the client from seeking other remedies certainly reflects on Shinkle’s fitness to practice law because such conduct lessens public confidence in the legal profession. See Stowers, 626 N.W.2d at 133 (“DR 1-102(A)(6) applies to ‘conduct that lessens public confidence in the legal profession.’” (Citation omitted.)).

In deciding punishment, the Court compared it to cases where, unlike here, the attorney had specifically loaned money to the plaintiffs that was to be paid back out of settlement proceeds. That's a no-no under a different ethics rule, because it gives an attorney a financial interest in the litigation above and beyond his or her fee. Yes, arguably contingency fees do the same thing. But 5-103 techncially exempts them from the rule:
DR 5-103 Avoiding Acquisition of Interest in Litigation.

(A) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation he is conducting for a client, except that he may:

(1) Acquire a lien granted by law to secure his fee or expenses.

(2) Contract with a client for a reasonable contingent fee in a civil case.

The Court stated:
We have said that violation of DR 5-103(B), avoiding acquisition of an interest in litigation, alone “does not constitute a serious infraction.” Humphreys, 524 N.W.2d at 398. One attorney received a two-month suspension for violating this provision by advancing money to clients, neglecting a client’s matter in respect to clearing a title objection in a real estate matter, having twenty-six probate delinquencies, and adding his name as payee on a client’s check. Bitter, 279 N.W.2d at 524-25, 527.

In light of everything, the Court gave Stickle a public reprimand.

Latest Phishing Scam

Via Slashot:
Several popular Web browsers contain a vulnerability that could be used by cybercriminals to steal personal data, security company Secunia has warned.

The flaw would allow a phishing attack in which a malicious JavaScript pop-up window appeared in front of a trusted Web site, Secunia said in an alert published Tuesday in the US. This could trick a surfer into revealing data such as a password.

"The problem is that JavaScript dialog boxes do not display or include their origin, which allows a new window to open -- for example, a prompt dialog box -- which appears to be from a trusted site," said Secunia's advisory.

According to Secunia, the latest versions of Internet Explorer
To take advantage of the flaw, a cybercriminal would have to direct a Web user from a malicious site to a genuine, trusted site such as an online bank, in a new browser window. The malicious site would then open a JavaScript dialog box in front of the trusted Web site, and a user might then be fooled into sending personal information back to the malicious site.

Microsoft has said it is investigating Secunia's claims. It encouraged surfers not to trust pop-up windows that don't include an address bar or a lock icon that verifies that it came from a certified source.

There's Only One Word For This These . . .


via Have Opinion, Will Travel

D'oh! D'oh!
via L-cubed

Another Friday Quiz

Go ahead, drive yourself nuts - an online bar review crossword.

Actually, it's not that hard if you've gone to law school. Hint: If you're talking amendments, just spell out the number of the amendment. That puzzled for a minute 'til I figured it out.

via A Girl Walks into a Bar (Exam)

Friday Quiz

You scored as Punk/Rebel.



Drama nerd




Ghetto gangsta










What's Your High School Stereotype?
created with

via Res Ipsa Loquitur

Don't be an A**

A lesson Miles Kendall would be wise to learn, particularly when it comes to bloggers. Otherwise Miles Kendall could end up being on the receiving end of a very special project.

News Flash: Des Moines Register Declares Constitution Superfluous

The Des Moines Register decides Kelo v. New London was rightly decided because we can trust the government never to do anything that isn't in the individual's best interest:
The court wisely resisted writing such a rule. That leaves the job of defining the scope of condemnation actions to state and local government decision-makers, who must face public wrath if they take condemnation powers too far.

Yeah. So we can just throw out that whole constitution thing now, 'cause the government is going to protect our rights. It always works that way, right?

While we're at it, let's just overrule that whole pesky first amendment thing. After all, if the government tries to take away our free speech, they'll have to face public wrath. And isn't that enough?

Todd Zywicki from the Volokh Conspiracy also rebuts this point, with an equal amount of sarcasm:
I thought the purpose of the Bill of Rights was to create rights that would be protected from the government, so that we wouldn't have to rely on the honor system of the government to do the right thing, but had rights that would be enforced. Why not apply the honor system to constitutional protections for speech, religion, and criminal procedure? We can't trust the government when it comes to allowing a prayer at a high-school graduation, but we can when it comes to taking an old-woman's house in which she raised her family? It would sure make the war on terror easier if the government could just arrest anyone in the name of the public good as long as it cut an undercompensatory check for the inconvenience afterwards.

The potential for abuse in this ruling is obvious, and the fact that governments cannot be trusted to do the right thing is exactly the reason why the Michigan Supreme Court reversed Poletown earlier this year. And Justice Thomas hits the nail on the head when he observes that it won't be (and historically hasn't been) the rich and powerful who are finding their homes condemned and given to corporations, Wal-Mart, or simply someone who will build a bigger house and promise to pay more property taxes (as Will Wilkinson observes, "That is, if you have something somebody richer than you wants, watch out.").

Rather than laundering it through the government, why not just skip the government as middleman and let Donald Trump take whatever he wants whenver he wants it, and just write a check for it? Then we could skip the pretense that this is anything but rent-seeking.

Meanwhile, the discussion rages on over at SCOTUSBlog, primarily about what test is now going to apply, since it appears rational basis is out. Another interesting side note:Eric Claeys and Orin Kerr debate the theory that O'Connor's opinion started out as a majority, but she lost Justice Kennedy somewhere along the way.

Was it her turn to watch him?

Instapundit and Kerry Country both point out this could be a tool for cities to get rid of undesirable businesses: strip bars, unpopular churches, hunting reserves, newspapers . . .

Instapundit also makes this comment:
I'm still getting a lot of angry email, and as noted below, the decision seems to have angered people on both left and right. It's true, as Eugene Volokh noted on Hugh Hewitt's show last night, that it was only a modest extension of existing law. But I think that existing law has moved, by gradual increments, to a point where it's out of step with the Constitution and with public sentiment about what's just. Sometimes a Supreme Court decision, even one that doesn't make new law, can bring people's attention to a situation and drive efforts to change it.

Some people are comparing this with Dred Scott, but that's a bit over the top. A better analogy might be the Bowers v. Hardwick decision, which didn't make new law, but which led to a sea-change in public attitudes. One difference is that Bowers was consistent with the law going all the way back, while the 20th Century takings doctrines were not.

He's also got extensive roundups here and here. TalkLeft also comes down against it.

The Newsday article on the case linked by State 29 has photos of the properties and a poll - when I took a look, it had 94.8 percent against the decision.

Moira Breen from Progressive Reaction has one solution.

Ted Frank from the Point of Law Forum sees it as judicial expansion:
One factor I haven't seen anyone comment upon: the decision is not just a refusal to limit governmental power, but, beyond that, is an affirmative expansion of judicial power. Justice Kennedy's concurrence creates a brand-new test: "There may be private transfers in which the risk of undetected impermissible favoritism of private parties is so acute that a presumption (rebuttable or otherwise) of invalidity is warranted under the Public Use Clause." This test is so amorphous to be effectively standardless, requiring case-by-case adjudication, thus effectively transforming the judicial branch into a super-legislature with the power to veto condemnations engaged in by the executive branch—after extensive litigation over whether the favoritism is "permissible" or "impermissible," of course. Like many other cases in the last decade, the Supreme Court's decision vests additional political power in itself.

Please tell me this isn't another "I know it when I see it" test. I know it is. But please tell me anyway.

(For those of you who aren't lawyers, Justice Stewar's famous concurrence:
It is possible to read the Court's opinion in Roth v. United States and Alberts v. California, 354 U.S. 476 , in a variety of ways. In saying this, I imply no criticism of the Court, which in those cases was faced with the task of trying to define what may be indefinable. I have reached the conclusion, which I think is confirmed at least by negative implication in the Court's decisions since Roth and Alberts, 1 that under the First and Fourteenth Amendments criminal laws in this area are constitutionally limited to hard-core pornography. 2 I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.

Due to their inability to precisely define the term, the Court got to spend the next several years watching porn flicks.)

Thursday, June 23, 2005

Stupid Radio Tricks

Part I:
A Kentucky woman who thought she won $100,000 in a radio station giveaway is suing for breach of contract after learning that her prize was actually a Nestle's 100 Grand candy bar.

Milbarge has more details on Begging the Question.


Part II:
Last Thursday night, he was doing his usual 10 p.m.-to-1 a.m. shift at Birmingham-based Kerrang! 105.2 FM — here's his bio page — when he told pin-up girl Jodie Marsh (search) on air that he'd be willing to leave his wife and two kids for her.

Unfortunately, his long-suffering wife was listening — and quickly put up his Lotus Esprit Turbo sports car for sale on eBay.

"I need to get rid of this car immediately — ideally in the next 2-3 hours before my cheating [jerk] husband gets home to find it gone and all his belongings in the street," Hayley Shaw wrote on the eBay description page, which as of Wednesday afternoon was still up.

"I am the registered owner and I have the log book. Please only buy if you can pick up tonight," she added.

The auction lasted exactly five minutes and three seconds. The car, estimated to be worth $45,000, sold for 50 pence (90 cents) and was soon driven away by a buyer who wishes to remain anonymous.

"I am sick of him disrespecting this family for the sake of his act," Hayley Shaw told a Birmingham newspaper. "The car is his pride and joy, but the idiot put my name on the log book [registration], so I just sold it. I didn't care about the money. I just wanted to get him back."

Last July, according to The Independent of London, Shaw upset his then-pregnant wife by saying on-air that he fantasized about sex with her sister. When she tearfully called to complain, he put her on air as well.

Due Diligence

To all those paper-and-pencil lawyer-types out there with a computer phobia and a death grip on the dictation machine: Indiana courts are now recognizing that due diligence requires, at a bare minimum, googling someone (.pdf). I expect others will follow suit shortly. Fortunately, your secretary likely already knows how to use the internet.

State 29 emailed me the link from Evan Brown's Internet Cases.

Hey, State? Nothing personal, but you really should re-define the term "vacation." Get sunshine. Drink copious quantities of alcohol whenever the occasion presents. Buy stupid stuff. Don't read anything more strenuous than a mindless beach book. Have adventures. Let go of the keyboard. . . .

Breaking Legal News

The blawgs are buzzing about today's United States Supreme Court opinion in KELO et al. v. CITY OF NEW LONDON by Justice Stevens. How Appealing had that link, as well as the links to the syllabus, the concurrence by Kennedy, Thomas' dissent, and O'Connor's rather strident dissent. All are .pdf.

The Washington Post summarizes it:
The Supreme Court today effectively expanded the right of local governments to seize private property under eminent domain, ruling that people's homes and businesses -- even those not considered blighted -- can be taken against their will for private development if the seizure serves a broadly defined "public use."

SCOTUSBlog has the visual aids on the voting and is starting a discussion board.

Will Collier comments:
This is a dreadful decision. If politicians have the right to take your private property and give it to somebody else just because the other guy claims that he can generate more taxes from it, then property rights have ceased to exist in the US.

The localities are still required to pay "a just price" when one of these takings occurs, but the price even a willing seller would be able to get from his property just took a huge hit. All a developer has to do now is make a lowball offer and threaten to involve a bought-and-paid-for politician to take the property away if the owner doesn't acquiesce.

Trivia, also via a SCOTUSBlog reader: Justice Thomas's Kelo dissent inadvertently refers to the Court's forthcoming ruling in the Castle Rock case. 'Doh.

I'll have to digest the things before I can comment, but my knee-jerk reaction is that this is not good.

To balance out the frustration, go here for a fictional email discussion among the Justices about where to go to dinner by Dalia Lathwick. Via LLL.

Holy sh*t, watch the internet rage on this one. Technorati already shows over eleven pages of postings on the topic. As MementoMoron said:
When you manage to anger the folks at Democratic Underground AND Protest Warrior all in one fell swoop, you have truly and impressively screwed the pooch.

The TalkLeft open thread has some postings on it as well.

Professor Bainbridge has a nice little rant.

Eugene Volokh seems to be about the only person who thinks this is a good idea.

Hoyapaul at Daily Kos also favors it. I'm trolling blogs trying to find anyone who thinks this is a good idea and it's damn tough.

Instapundit has spoken. I like this idea:
Meanwhile, here's a proposal from Right-Thinking that even the Kossacks might get behind:

Here's a thought: How about the GOP-controlled Congress puts the flag desecration amendment on the back burner and gets to work on an amendment limiting the power of the state to seize private property from citizens?

I think it's a great idea.

Note why Kennedy's concurrence is going to be so important here:
Given that Kennedy's concurrence is the opinion of the justice concurring on the "narrowest grounds" in a 5-4 decision, it is arguably binding as law on lower courts (though this point is somewhat confusing because Kennedy also joined J. Stevens' majority opinion). Thus, the full significance of Kelo will not become clear until lower courts have had a chance to try to interpret and apply Kennedy's admittedly vague opinion.

and here:
Given that Prof. Merrill and I wrote amicus briefs supporting opposing sides in the case, it is significant that we both agree that Justice Kennedy's concurrence raises the bar the government has to meet to show that a condemnation serves a public use. At the very least, it is no longer the case that a taking serves a public use so long as it is "rationally related to a conceivable public purpose" - the ultra-deferential language often cited from the 1984 Midkiff case.


LOL: Supreme Court Building demolished to make way for commercial district.

New (to me) Fact of the Day

The history of CPR Annie - sometimes truth is stranger than fiction.

Iowa City News Flash

Melrose and Hawkins are now closing lanes for construction. Of course, you can always get in without any delays via Dubuque Street . . .

Well, then, how about Dodge Street?

The Coralville Strip?

Maybe 1st Avenue in Coralville?


By the way, these places also have problems.

Fake Rainforest Follies

I went to the Iowa Porkforest site to post on the latest article about the proposed fake rainforest in Coralville, Iowa, but found that State 29 already beat me too it despite the alleged vacation. Basically, the people behind the project have given up trying to raise money themselves, and have instead hired a Japanese corporation to do it. The article briefly touches on the company's resume, hinting that they've done some very successful work in the past. As State points out . . . not so much.

Wednesday, June 22, 2005

More for the Geeks

Quantum Tea links to this paper that claims to have solved the time travel paradox using quantum mechanics:
We introduce a quantum mechanical model of time travel which includes two figurative beam splitters in order to induce feedback to earlier times. This leads to a unique solution to the paradox where one could kill one’s grandfather in that once the future has unfolded, it cannot change the past, and so the past becomes deterministic. On the other hand, looking forwards towards the future is completely probabilistic. This resolves the classical paradox in a philosophically satisfying manner.

And Another Thing:

why farmers need GPS.


The Onion 2056

Important Announcement

Dave Barry's doing his second annual Poetry Contest.

For those who missed it last year, it all started with this post, when he discovered will publish literally anything you send in:
MEANWHILE, however, this blog has a little project to amuse anybody who is interested, involving a wonderful site called, which was brought to this blog's attention by alert reader Laura Stark. Aspiring poets can go there and submit poems in the poetry contest, and maybe even -- incredibly -- have their poems selected for inclusion in heirloom-quality-bound volumes that are -- What are the odds of this? -- for sale!

So anyway, this blog was just thinking how interesting it would be if a whole bunch of people submitted poems that contained a certain key poetic phrase. To see how it might work, this blog submitted a poem under the pen name of "Freemont A. Harkins," entitled: "A Sad Day." Here's how it goes:

A Sad Day

i am sad, so very sad
the tears run down my nose
it was a happy day until
the dog ate mother's toes

You can see this poem at, using the search engine to search for "Freemont Harkins." Wouldn't it be fun if a lot of people submitted poems using a Pen Name that began with "Freemont" and incorporating the phrase, "the dog ate mother's toes"? Then we all could search for poems written under the first name of "Freemont" -- currently, this blog is the only one -- and see how creative everybody was!

Several thousands of us did so, with some interesting results:
A number of you have written to inform this blog that (Motto: "EVERYBODY Is A Semi-Finalist!") has chosen your poems by a person whose first name is Freemont about a dog eating his mothers' toes as Semi-Finalists, which means that has moved you up to a Higher Level, which means you have a chance to... send money to! Congratulations! eventually caught on. They didn't appreciate the joke despite the fact their hitcount was higher than it had probably been in years, and took them down. Bastards.

So, this year's theme:
This year we will once again be submitting our poems to the fun-loving guys and gals at, who, we are sure, truly enjoy being a part of this effort. Just click on "ENTER CONTEST" and write your poem. To identify yourself as a participant in the Poetry Project, you should enter a "nomme de plume" (literally, "hors d'oeuvre") that includes the name "Habte," followed by a hyphen. The only restriction concerning the content of your poem is that it should include some reference to a mullet hairstyle. For example:

By Dave Habte-Barry

I love you, dear, with all my heart
And infinite desire
And so I cry each time you set
My mullet hair on fire

I'm sure you folks can do much better.

Update: I've been reading your poems, and I just want to say that I am very proud of all of you. I'm also hoping that none of you are operating heavy machinery.

It's a juvenile joke, I know, but it has a serious Iowa connection. It appears that a guy on the University of Iowa Alumni Board named Ted Habte-Gabr has a mullet. (Yep, it's a mullet. Don't try to deny it.) That alone would make him, well, "special," but it turns out he also has some rather unspecified connection with Dave Barry. This has led to rather merciless photoshopping throughout the month of June.

Now we have a national poetry contest in honor of Mr. Habte-Gabr.

So tell me: how can the state of Iowa pass over him to honor Annette Benning? It boggles the mind, I tell you.


. . . .

Never mind, I'll take my meds now.

Hey, Dude, Check This Out . . .

The DI's version of investigative reporting: testing the doors of the downtown University buildings at midnight.

Define "Shouldn't"?

I ran across another blawg this morning, "Arbitrary and Capricious." He's got a post up about an idiot paralegal who just thought he'd pretend to be a lawyer for a while. The guy did some serious damage to a "client's" case by advising him to talk to the police when he should've kept his mouth shut. Now the "client" is on trial for capital murder. This is a horrendous situation and it's a good thing Dejeans is facing the consequences of his actions. But something struck me odd in the narrative:
Jimmy Scoggins says his son is in jail facing capital murder charges in large part because of Mr. Dejeans' legal advice. Timothy Scoggins... turned to Mr. Dejean for help when he learned that Dallas police wanted to talk to him about a drug-related quadruple homicide... Mr. Dejean advised the younger Mr. Scoggins that police were interested in him only as a witness to the robbery and shooting and accompanied him to give a statement to detectives.

"He told me that we didn't have anything to worry about, that everything would be all right and the detective didn't want my son for anything but a witness," Jimmy Scoggins said. He said he and his son thought Mr. Dejean was an attorney.

According to court records, Mr. Scoggins told police he had been present during the robbery as a lookout and had carried a shotgun and fired at a fleeing car. Mr. Scoggins was arrested a few weeks later and charged with capital murder... Mr. Scoggins faces life in prison or the death penalty if convicted... His statement would be critical in his prosecution because the only evidence linking Mr. Scoggins to the crime is the statement of a co-defendant...

"My son's in a situation now that he shouldn't even be in because his case was handled by someone who isn't even a lawyer," Jimmy Scoggins said...

(Emphasis mine.) Which brings me back to the title of the post: define "shouldn't"? Could it be that at least in the cosmic/karmic sense, your kid's getting exactly what he deserves? Just a thought.

Tuesday, June 21, 2005

Oh, Yeah

this was a good idea. Irony, anyone?

(Here's a direct link to the photo. I've also saved it to my harddrive in case they ever take it off the net. . . . )

Stupid Dog

Don't get me wrong, I like my dad's dog. A typical kids' dog, she's outstanding for pure love and patience - the ability to tolerate kids pulling at various parts of her body that really shouldn't be touched and actually like it.

That said, my father and brothers have tried to impress me with her intelligence and potential as a great hunting dog. Ooookaaay - not so much.

I finally won my point.

She was over at my house while they were working on the lawnmower. On the property next door, there's a chain strung between two trees, to keep people off the land. It's a nice, thick chain. When the dog got tired of running up the stairs to my deck and then jumping off the side (about a 5' drop) she decides to go tear around the yard for awhile. Until she runs smack into the chain and breaks off her canine tooth and the one behind it.

Of course, the vet wants $500-$600 just to pull the damn tooth, no reconstruction involved. WTF? That would pay for a ton of caps in people-dentistry.

Stupid dog.

Have you checked out

the Point of Law forum? Lots of posts from lots of blawgers on lots of issues. Adding this to my to-do list on updating the blogrolls.

Intel Executive Admits Violating the DMCA at a Congressional Fact-Finding Delegation

This article illustrates some of the problems with the Digital Millenium Copyright Act.

You Crack Me Up

Salieri posts a link to the Ms. Georgia Sex Offender Registry Pageant.

Felon Voting Rights

Dave Yepsen's column has a common-sense idea:
before felons get their voting-rights back, they must first pay all those fines and make restitutions (sic) to their victims.

Repaying your debt to society involves more than completing a prison term.

10 Things

Milbarge notes the MSN relationship experts have listed the 10 Things Every Single Girl Should Own and 10 Things Every Single Guy Should Own.

I don't feel qualified to remark on the female (translation: guys dig it) stuff, because I've no idea whether men really want me to have an Eminem CD in my collection and a stash of earplugs in case I take some guy home and find out he snores (WTF?). But I do have a few things to say about the guy's list.

First off, the buy nice underwear rule - didn't you learn that in, like, kindergarten? Preschool? If the idea that you don't wear underwear with holes or skidmarks on a hot date hasn't sunk in by now, you've got bigger problems than you realize.

The lamp with a lampshade thing - who notices that??? If what they're getting at is "stop decorating your place in that special 'early frathouse' motif," I'm with that. But a lampshade isn't going to make a damn bit of difference if all his end tables are milkcrates.

For the record, I wouldn't know a $200 pair of jeans from a $75 pair if my life absolutely depended on it. I guess I don't read my Cosmo closely enough.

As for the rest of it: by all means, get a comfortable couch, soft sheets (Not satin or we'll mock you. I mean this.), decent shoes. Learn to cook passably and make a good cup of coffee. Oh, and if the dust bunnies are starting to whine "Feed me, Seymour," please evict them. If nothing else, you'll avoid the helpless male stereotype.

Monday, June 20, 2005

Legal Stuff

Blawgreview 11 is up.


You might remember a while back I had this post up about a disturbing LA Times article:
They're trying to trace a little girl: "She is perhaps 12 now, her hair still light blond, but she doesn't smile anymore. Over the last three years, she has appeared in 200 explicit photos that have become highly coveted collectibles for pedophiles trolling the Internet. They have watched her grow up online — the hair getting longer, the look in her eyes growing more distant."

They've got a place - most of the photos are in Disney World. Cleverly, they got that by erasing the girl from the pictures and posting the room interiors on a kind of wanted poster.

But the leads have stopped.

They want to release her face in a sort of wanted poster in an attempt to find and rescue her. But besides the usual privacy issues, releasing the sanitized photo could put the child in incredible danger from her abuser.

Here's the update
(Chicago Trib requires registration - use / password=noaccount.
Courtesy of Bug Me Not. Have I said I love those guys?)

Mea, 12, didn't know everyone was looking for her.

She wasn't aware that concerned police officers thought she was still caught in a nightmare of abuse, reflected in hundreds of sexually explicit photos of her on the Internet.

And she didn't know that one particular team of Toronto police officers had been so haunted over the years by her image and fate that in February, they asked the public to help find her.

But Mea had been found.

She was safe and with her adoptive mother. They didn't see the news show where the police broadcast sanitized versions of the Internet photos in February and asked for help identifying the background locations. One of the backgrounds turned out to be a hotel at Walt Disney World, a detail that led many to refer to her as "the Disney World girl."

Mea and her mom also missed a follow-up program that asked viewers whether they could identify her friend, described as "a witness to a crime." It wasn't until the FBI called Mea's mother, Faith, last month that they realized Mea had been the subject of an international search.

"If I had seen the pictures, even with her face blanked out, I would have known it was her immediately," said Faith. "But when I heard people talking about it, I just didn't make the connection. Mea had been rescued two years ago."

The man who had used and photographed her for five years, Matthew Alan Mancuso, had been caught in an Internet child-pornography sting in 2003 and is serving 15 years in prison. He was Mea's adoptive father.

Apparently the guy adopted her from an orphanage in Russia, where she'd been put after "her drunken parents had chopped her neck with a large knife." Mancuso told her he had picked her from a video of many children and that she should feel "special." The abuse was phenomenal, even down to her diet - he would feed her raw vegetables and plain spaghetti to try and keep her body from going into puberty. When found, she weighed 52 pounds . . . at age 10.

Fortunately, she's got a new mom and is getting what I presume is some very serious counseling:
Last year, Mea had her first birthday party. She quickly bloomed after she eased into a healthy diet, discovered a talent for art and hand-painted her bedroom walls. Her favorite color is purple, and she regards the care and protection of her pet hamster, a chittering bundle of fur, as a solemn duty.

She has frequent slumber parties with her school friends, their sleeping bags scrunched together on the floor of the modest living room as they paint one another's toenails and chatter halfway until sunrise.

Mea can sleep through most nights now without awaking in terror, and the times that she does, Faith gently rocks her, talks to her and softly prays, just as one of Faith's foster mothers did for her. . .

Mea is graceful and deliberate, unrecognizable as the girl in the Internet pictures. Her smile is wide and genuine, and her eyes sparkle. With her friends, she can be a cut-up, a clown, posing happily for photos in silly wigs and costumes.

She's also working with prosecutors to bring additional charges against her rapist; the current 15 years is being served for child porn only, and doesn't begin to touch her abuse.

More Fresh Law

I was a tad busy last Friday and didn't get to reading the remaining two Iowa Supreme Court opinions. As was pointed out to me, I really should back up and cover McElroy v. State of Iowa.

(Side Note: You've got to love an opinion that starts out "This court is hip deep in issues.")

As before, the facts of this one are interesting enough to quote about verbatim.

In 1994, Julie McElroy enrolled as a graduate student in the doctoral program at the Iowa State University College of Education. Lynn Glass, a male professor in the College, was McElroy’s academic advisor. ISU also hired McElroy to work as a research assistant for Glass. Glass taught at least one of McElroy’s classes.

Glass repeatedly subjected McElroy to unwelcome touching and grossly inappropriate comments. The harassment reached its zenith (or nadir) in April 1995 when ISU sent McElroy to Russia to help Glass run a month-long cultural and educational exchange program for high school students.

Upon arrival at their hotel in Russia, McElroy discovered Glass had arranged for them to share a two-room suite—with both beds in one room. McElroy told Glass she was uncomfortable with the sleeping arrangements and insisted one of the beds be moved to the other room. Glass became furious but eventually relented.

Glass later publicly berated McElroy for not letting him “take care” of her on their first night at the hotel. He told her she could “kiss her Ph.D. good-bye.” While the two were riding the Moscow Metro, he threatened to leave her alone and let her find her way home. This was particularly troublesome because Glass had taken McElroy’s passport and money “for safekeeping” after they had deplaned.

At other times on the trip, Glass gave McElroy a massage after she told him not to do so; rubbed lotion on her feet against her will in a manner that evoked images of sexual intercourse; told her intimate details about his sex life, including a disgustingly detailed description of his semen; kissed her after she told him not to touch her; and ran suddenly into her room and told her he had just “messed himself.” We need not repeat all the salacious facts here; nonetheless we remain fully cognizant of them.

Shortly after returning home from Russia, McElroy made a sexual harassment complaint to Ann Thompson, a department chair in the College. Thompson notified Noreen Daly, Dean of the College. For the most part, Glass fessed up to his actions. Thompson removed Glass from his position as McElroy’s academic advisor and instructor. Thompson also reassigned McElroy to work as a graduate assistant for another professor. Thompson and Daly told Glass to have no contact with McElroy.

Glass continued to pester McElroy. In June 1995, McElroy filed a formal complaint with the ISU Affirmative Action Office. McElroy was frustrated that ISU was not taking adequate steps to stop Glass from harassing her. She also voiced concern that ISU would retaliate against her. ISU appointed an attorney, Jeanne Johnson, to investigate.

Johnson concluded Glass had violated ISU’s sexual harassment policy, created a hostile work environment, and interfered with McElroy’s academic progress. Johnson recommended ISU eliminate interaction between Glass and McElroy, conduct sexual harassment training, and suspend Glass without pay for one semester. Dean Daly adopted Johnson’s recommendations but increased the term of the suspension to one year. ISU’s president tried to fire Glass, but dropped the formal proceedings necessary to dismiss a tenured faculty member after Glass was diagnosed with terminal colon cancer. Glass died in May 1997.

In November 1997, McElroy sued the State of Iowa and ISU (the defendants) for sexual harassment in employment and education, in violation of various federal and state statutes. McElroy maintained the defendants did not adequately address Glass’s behavior. Instead of protecting her from Glass when she complained, McElroy alleged the defendants retaliated by changing the terms of her employment. McElroy claimed she suffered psychologically and physically as a result. She dropped out of the graduate program on December 31, 1997.

McElroy initially lost at trial, but the case was reversed due to a confusing jury instruction. On remand, McElroy won over $3 million in damages on her federal claims, including about $2.5 million for emotional distress. Although the court also found a violation of state law, it ruled most of her state law damages were subsumed within her federal law damages. Everybody appealed.

The defendants allege the district court erred when it granted a retrial of all the issues in the case because the erroneous jury instruction involved solely the employment discrimination claim.

The defendants also claimed McElroy had not exhausted her administrative remedies (a pre-requisite to suit), alleging she had only notified the Equal Employment Opportunity Commission (EEOC) and Iowa Civil Rights Commission (ICRC) about her federal and state sex discrimination claims, not her retaliation claims.

McElroy cross-appealed, requesting the Supreme Court overrule Smith v. ADM Feed Corp., 456 N.W.2d 378 (Iowa 1990), and hold plaintiffs under the Iowa Civil Rights Act are entitled to have their claims tried to a jury of their peers.

Regarding the issue of the scope of the retrial, the Court found The general rule is that when a new trial is granted, all issues must be retried. The Court quoted an earlier opinion noting that a partial retrial is only appropriate when there is a single issue to be tried that is easily separable from other issues and injustice will not be occasioned. It then simply stated: We did not limit the scope of the retrial . . . McElroy requested retrial of all claims in that appeal. Finding reversible error with respect to one of those claims, we ordered a new trial. . . without qualification.

Regarding the issue of whether she'd exhausted her administrative remedies, the Court analyzed the state and federal issues separately, but found the same analysis did operate to bar McElroy's retaliation claims under both Title IX and the ICRA. Basically, when she filled out her complaint with the ICRC in 1997, she checked the box labeled “sex” discrimination, but not the “retaliation” box, and she didn't describe any acts of retaliation in the narrative part of the form. She now wanted to allege as part of the suit that after she complained to the ISU Affirmative Action Office, in 1996 she was demoted from a temporary instructor to a graduate assistant. However, in the text of Title IX - the federal statute that prohibits employers from engaging in sexual harassment, etc. - the law specifically requires people who wish to bring suit for a violation to have already gone through the full administrative process for all the claims for which they want to bring suit. The ICRA treats the issue in a similar manner. Because McElroy hadn't even technically filed the retaliation complaint with the ICRC, she failed to exhaust her remedies with respect to alleged retaliation-in-employment, and the Court found that this issue should not have been presented to the jury. It reversed for a new trial on this basis.

(NOTE: the opinion indicates the defendants raised several more issues, but that they didn't need to consider them as they were reversing on the exhaustion issue).

Regarding Ms. McElroy's cross-appeal, the Court found:
On further examination, we conclude the majority’s statutory analysis in Smith was fundamentally flawed and must be overruled. As four members of this court pointed out in Smith, the majority erred when it concluded the ICRA framework was administrative in nature:
The district court does not sit as a civil rights commission; it does not screen cases as does the commission; it does not investigate cases like the commission; nor does a court hear cases under the commission’s rules. When the legislature sought to provide a partial answer to the backlog of undisposed claims before the civil rights commission, it did so by providing an alternative to the administrative proceeding in the form of an ordinary civil action. . . .

While it is true the ICRA generally requires plaintiffs to exhaust their administrative remedies, there is nothing extraordinary about the nature of a district court proceeding brought once those remedies are so exhausted. The ICRA is no different than any other statute providing a cause of action. The ICRA has always permitted a plaintiff to sue for monetary damages in the district court. For this reason, it is not surprising the legislature did not expressly indicate claimants were entitled to a jury trial under the ICRA—it was assumed. . . .

Shortly after Smith was decided, Congress passed legislation that granted litigants the right to a jury trial under Title VII. . . . Subsequently, the Eighth Circuit ruled it was not bound to our pronouncement in Smith. . . . Federal district courts in Iowa have ruled litigants have a right to a jury trial on their ICRA claims in federal court. . . . As McElroy points out, this has resulted in the odd situation that plaintiffs bringing ICRA claims in federal court may receive a jury trial, but those in state court will not.

In truth, there is only one reason to uphold Smith today—stare decisis. These principles are not absolute, however. . . .
[W]hen a rule, after it has been duly tested by experience, has been found to be inconsistent with the sense of justice or with the social welfare, there should be less hesitation in frank avowal and full abandonment. Benjamin N. Cardozo, The Nature of the Judicial Process 150 (1921); see, e.g., State v. Liddell, 672 N.W.2d 805, 813 (Iowa 2003).

For all the foregoing reasons, we overrule Smith and hold a plaintiff seeking money damages under the ICRA is entitled to a jury trial.

This is a rather substantial change in the law, but in my opinion one that's long overdue. It's too messy to bifurcate trials, and can lead to some serious venue-shopping in an effort to get a case into the federal court where a jury trial would be guaranteed.

What do you think, Not-the-Moonbat? This is more your area of expertise. BTW - as we've discussed before, if you want to get yourself a blogger account, I could open up the posting to you as a co-blog, not just the comments, and you could put your thoughts on the main page. Could be dangerous. Can't guarantee I'd get around to revamping the template anytime soon, though. . . .

Sunday, June 19, 2005

Meme Tag

Kris from Gradual Dazzle tagged me for a blog-meme.

Five Things I Miss From My Childhood

1. My mom.

2. Making the most outragous plans about what/who I want to be when I grow up - and believing them.

3. Buying all new clothes twice a year with no guilt.

4. Summers off. Spending hours at the pool, reading, and hanging out with my friends, waking up every morning asking myself what I want to do today as opposed to what I have to do.

4. Innocence - the ability to act completely stupid and giggly without caring even one tiny bit what anyone else thought or what else you should be doing right now, and not ever believing anyone you care about could really, truly want to hurt you.

The rules:

Remove the #1 item from the following list, bump everyone up one place and add your blog's name in the #5 spot. You need to actually link to each of the blogs for the linky-love aspect of this fiendish meme to kick in.

Note-It Posts
Eat The Lettuce
Prochein Amy
Gradual Dazzle
Random Mentality

Next, select four unsuspecting victims, list and link to them:

Corn O'Copia
Thoughts from the Oasis in the Corn
Crap-Flinging Monkey
Two Hot Chiks

Tag, you're it! No tag-backs! Base!

Friday, June 17, 2005

Best Office Prank


via Gizmodo.

You gotta watch the film clip. Holy crap.

UPDATE: Teresa points out the clip is no longer working. I went through my temp files to see if I can find it but no dice. (Of course I didn't save it to hard drive. Dammit.) I hope they get their server issues figured out, it's worth it. If I hear it's working again I'll post.

Defending Your Body

Last night I saw "Schoolgirl Figure" out in Coralville. The plot, as summarized by the linked San Francisco review:
Renee hasn't eaten since she was a pre-teen and she's got the jutting hip bones to prove it.

Patty, however, can't master Renee's willpower, letting her hunger get the best of her. So for everything she shallows down, she is diligent that it comes right back up.

Jeanine, a righteous size 2, triumphing over Patty's size 8 and Renee's size 4, licks door knobs in the hopes of catching a flu that includes vomiting, .

One false chew, and the fasting trio faces the Teenage Tribunal, an eerie chorus of the girls' dead peers: once-dedicated anorexics and bulimics who gave up their lives for the cause.

All in all, this is very twisted and it can get a little uncomfortable, an effect director Domenique Lozano wants.

"It's hard to escape," Lozano said. "There are girls in the cast who have experience with the disease. Someone in the cast has had an eating disorder."

The rest of the cast, guys included, know at least one schoolmate feverishly battling even the concept of a bulge.

Given the show's content, casting was a bit touchy, and it meant finding tiny actresses to play the lead roles. Fifty young women auditioned for the show, and 80 percent were a size 2.

"That was shocking to me," Lozano said.

Even more shocking, at a recent rehearsal, the girls meant to convey skin-and-bones look like average teenage girls these days.

To start, I loved the humor in this dark play. It was awesomely acted and directed, and I recommend you catch it if you can.

That said, the subject matter was highly uncomfortable. My skirt today reads size 0.

Why do I now feel obligated to tell you I had a granola bar for breakfast and french fries instead of my usual salad and chips for lunch? That I am within a healthy BMI, if on the lowest end of the scale? Why did I feel compelled to tell people last night that the only reason I didn't have ice cream at intermission was that a) the ice cream was generic anyway, with not a Ben or a Jerry in sight and I'm rather ice cream picky; and b) I was going to have nachos and beer at the bar afterward?

NEWS FLASH: I AM NOT ANOREXIC. I am not on a diet, other than the following: eat only when hungry, organic when possible/convenient, and try to grab at least one thing from each food group every day; unless you're feeling really, really, really bitchy in which case chocolate, french fries and baked goods rule.

Why do I feel obligated to defend myself? And why did my friend sitting next to me, a size somewhere above eleven that I won't even guess at 'cause it's not relevant, feel the same?

Welcome to the Body Image wars, where every female on the planet is made to feel inadequate. Are you rating high on the BMI index? You must be undisciplined, slobby, not taking care of yourself. Rating low? Well, Barbie, must be nice to be able to wear a miniskirt. Too bad you don't have a brain.


You can't freaking win, no matter what side you fall on. From this side of the fence, I'd like to pose a question for those "body image" people. You know the ones who advertise a "Body Image Site for Every Body" yet have comment boards full of statements that thin people are all superficial or too stupid to think about anything but dieting. Or the ones at Dove, who have spent a fortune talking about how "real women" have curves. Or the feminist theorists who portray thin women as victims of a patriarchal media brainwashing:

Why am I not a real woman?

I personally support diversification of the different women in the media, and the Dove ads are just great - if they'd only stop claiming to be the only "real women" on the planet. It is particularly ironic to be subjected to so much rejection from a crowd ostensibly advocating total acceptance of women. Yet if I don't measure up to your standard of physical beauty I'm not a real woman. Sound familiar??