I was goofing around shopping and ran across a couple of dresses that are both cute and sexy:
The green one would look awesome with my eyes, too . . .
(must resist. must resist.)
Friday, March 31, 2006
Friday Fluff Post: A Few More of My Favorite Things
'Cause I feel like it.
I was goofing around shopping and ran across a couple of dresses that are both cute and sexy:
The green one would look awesome with my eyes, too . . .
(must resist. must resist.)
I was goofing around shopping and ran across a couple of dresses that are both cute and sexy:
The green one would look awesome with my eyes, too . . .
(must resist. must resist.)
The Most Important Editorial of the Day
Well, it's the most important one from the Stress-Citizen, at least.
(Side notes: I still like 2004's best, even though the template's all screwed up since they updated the site and I'm too damn lazy to fix i).
(Side notes: I still like 2004's best, even though the template's all screwed up since they updated the site and I'm too damn lazy to fix i).
Friday Quiz II - Continuing the Theme
| You Are 40% Weird |
 Normal enough to know that you're weird... But too damn weird to do anything about it! |
Friday Quiz
| Your Quirk Factor: 49% |
 You're a pretty quirky person, but you're just normal enough to hide it. Congratulations - you've fooled other people into thinking you're just like them! |
Tuesday, March 28, 2006
Oh, and Legal Stuff
The Iowa Supreme Court put up two opinions last Friday.
STEWART REALTY v. SISSON Factual background: the property owner wanted to sell a retail business, but didn't want word to get out it was for sale in case it impacted the business in the meantime. He orally agreed with the broker to pay 10% if the property sold. The broker contacted a few potential buyers, and gave one of them financial details about the business. A while later, he heard that this buyer had bought the business straight from the property owner. The broker called the property owner to ask for his cut, but didn't get it. He sued, claiming they had an oral contract. The property owner responded by claiming an oral listing contract is illegal. So the issue became whether an oral agreement between a property owner and a real estate broker for the broker sell the owner's property without actually listing it constitutes a “listing agreement” within the meaning of a real estate commission rule requiring such agreements to be in writing. The Court went into excruciating detail about the difference between a listing broker and a selling broker, to come up with the conclusion that "An agreement that provides the property is not to be “listed” is not a “listing agreement.” However, in remanding for further proceedings, the opinion specifically noted Iowa law also requires brokerage agreements to be in writing . . . something which hadn't been raised yet by the defense. So the parties apparently get to go around yet another mulberry bush before they get done with this case.
ESTATE OF SEROVY v. SEROVY decides that the authorization under Iowa Code section 249A.5(2) for Medicaid to foreclose on a home owned jointly by a mother and her daughter and son-in-law for medical debts incurred by the mother prior to her death does not violate the constitution. However, it notes that the interest which can be sold is limited to the mother's one-third of the property. The alternative proposed by the Court:
STEWART REALTY v. SISSON Factual background: the property owner wanted to sell a retail business, but didn't want word to get out it was for sale in case it impacted the business in the meantime. He orally agreed with the broker to pay 10% if the property sold. The broker contacted a few potential buyers, and gave one of them financial details about the business. A while later, he heard that this buyer had bought the business straight from the property owner. The broker called the property owner to ask for his cut, but didn't get it. He sued, claiming they had an oral contract. The property owner responded by claiming an oral listing contract is illegal. So the issue became whether an oral agreement between a property owner and a real estate broker for the broker sell the owner's property without actually listing it constitutes a “listing agreement” within the meaning of a real estate commission rule requiring such agreements to be in writing. The Court went into excruciating detail about the difference between a listing broker and a selling broker, to come up with the conclusion that "An agreement that provides the property is not to be “listed” is not a “listing agreement.” However, in remanding for further proceedings, the opinion specifically noted Iowa law also requires brokerage agreements to be in writing . . . something which hadn't been raised yet by the defense. So the parties apparently get to go around yet another mulberry bush before they get done with this case.
ESTATE OF SEROVY v. SEROVY decides that the authorization under Iowa Code section 249A.5(2) for Medicaid to foreclose on a home owned jointly by a mother and her daughter and son-in-law for medical debts incurred by the mother prior to her death does not violate the constitution. However, it notes that the interest which can be sold is limited to the mother's one-third of the property. The alternative proposed by the Court:
We modify the district court’s order so as to limit the property that may be sold by the personal representative to the one-third joint interest owned by Mary immediately prior to her death.
As an alternative to a sale of property to satisfy the Medicaid-reimbursement claim, the probate court established a buyout figure. In describing that figure in their argument on appeal, Allan and Pearl suggest that the figure was the amount of the Medicaid-reimbursement claim plus accumulated interest. In reading the probate court’s order it appears to us that the figure was the court’s valuation of Mary’s one-third interest in the property immediately prior to her death. We are satisfied that any buyout figure that the Estate Recovery Program can be made to accept in lieu of a sale of the property must require payment of its claim plus all accumulated interest. Of course, the parties are free to negotiate an alternative buyout figure that would avoid the sale of Mary’s interest in the property.
Tuesday Quiz-like Posty Thing
| What Your Sleeping Position Says |
You are calm and rational. You are also giving and kind - a great friend. You are easy going and trusting. However, you are too sensible to fall for mind games. |
Maybe We Have a Life?
In skimming blogs, I ran across this poll:
(h/t)
As a single female in the target demographic, I have a few comments.
Primarily, I'd argue the study's verbiage may have skewed the results just a titch. I mean, define "looking?" In school, the process was fairly simple. Unattached, generally intelligent people were all concentrated into a single campus and weekends were spent going out to have fun. You constantly met other single people of roughly the same age bracket, who had the same interests or knew some of your friends. Relationships flowed naturally from those connections.
But now these women have drifted out into something called the Real World. It's a very different place, where most of our friends are in committed relationships, and going to a bar three nights a week might make you want to think about joining AA. Do you want them to post mug shots on one of those online meet markets, where usernames like "ANiceGuy4U" abound and posts reek faintly of desperation and bad poetry? Or maybe they should corner friends and family, following them around like an urban panhandler: "Ya got any single friends? Anything you can spare will help, I've gone six months without a date." How about buying a bunch of "How to Meet Your Mate" self-help books and taking such advice to heart: becoming a Rules girl; learning to avoid who's Just Not That Into You; wearing makeup and a nice outfit to the grocery store, to the gym, to take out the trash? Then there's joining a church and trolling the choir. Maybe scanning the divorce notices for fresh blood? Yikes.
The term "looking" connotes seeking something missing, some lack - as if being single is somehow a personal handicap, a deformity that must be quickly remedied before it becomes a chronic condition. In that terminology, you become defined by what you are not: not a wife, not a parent, not a girlfriend, not a partner. Implicitly, it translates deeper: not wanted, not needed, not loved.
There are a certain amount of intelligent single women who reject that message, and decide to simply live their lives. They run into hundreds of people every day. Statistically, sooner or later they'll meet someone worth seeing. When that happens, they'll go on a date. Until then, they may periodically feel lonely or wish for someone else to share our lives. But they're neither obsessed with the feeling, nor defined by it.
So, yes, you may find that there's a dearth of singles who self-identify as "looking" for a partner. That doesn't exactly translate into a dating drought. They may not be "looking," but they're open. It's not simply a lesson in semantics, it is a lifestyle choice.
UPDATE: Of course, others just blame it all on self-delusion.
Among all singles, just 16% say they are currently looking for a romantic partner. That amounts to 7% of the adult population. Some 55% of singles report no active interest in seeking a romantic partner. This is especially true for women, for those who have been widowed or divorced, and for older singles. Yet even among the youngest adults, the zest for romance is somewhat muted: 38% of singles ages 18-29 say they are not currently looking for a romantic partner, compared to 22% in that age cohort who are looking for partners. The rest say they are in committed relationships.
(h/t)
As a single female in the target demographic, I have a few comments.
Primarily, I'd argue the study's verbiage may have skewed the results just a titch. I mean, define "looking?" In school, the process was fairly simple. Unattached, generally intelligent people were all concentrated into a single campus and weekends were spent going out to have fun. You constantly met other single people of roughly the same age bracket, who had the same interests or knew some of your friends. Relationships flowed naturally from those connections.
But now these women have drifted out into something called the Real World. It's a very different place, where most of our friends are in committed relationships, and going to a bar three nights a week might make you want to think about joining AA. Do you want them to post mug shots on one of those online meet markets, where usernames like "ANiceGuy4U" abound and posts reek faintly of desperation and bad poetry? Or maybe they should corner friends and family, following them around like an urban panhandler: "Ya got any single friends? Anything you can spare will help, I've gone six months without a date." How about buying a bunch of "How to Meet Your Mate" self-help books and taking such advice to heart: becoming a Rules girl; learning to avoid who's Just Not That Into You; wearing makeup and a nice outfit to the grocery store, to the gym, to take out the trash? Then there's joining a church and trolling the choir. Maybe scanning the divorce notices for fresh blood? Yikes.
The term "looking" connotes seeking something missing, some lack - as if being single is somehow a personal handicap, a deformity that must be quickly remedied before it becomes a chronic condition. In that terminology, you become defined by what you are not: not a wife, not a parent, not a girlfriend, not a partner. Implicitly, it translates deeper: not wanted, not needed, not loved.
There are a certain amount of intelligent single women who reject that message, and decide to simply live their lives. They run into hundreds of people every day. Statistically, sooner or later they'll meet someone worth seeing. When that happens, they'll go on a date. Until then, they may periodically feel lonely or wish for someone else to share our lives. But they're neither obsessed with the feeling, nor defined by it.
So, yes, you may find that there's a dearth of singles who self-identify as "looking" for a partner. That doesn't exactly translate into a dating drought. They may not be "looking," but they're open. It's not simply a lesson in semantics, it is a lifestyle choice.
UPDATE: Of course, others just blame it all on self-delusion.
Monday, March 27, 2006
Around the 'Net - the "IT'S A ZOO OUT THERE" Edition
Frankenbacon? I can picture the ad campaign: "Now with more Roundworm C.!"
Top 20 Reasons Dogs Don't Use Computers
Knock, knock. Who's there?
Roomba Frogger via the Iowa Geeks.
Hmm. . . what sentences do cattle rustlers get these days, anyway? I don't think I've ever seen one of those complaints in the form bank. (And why do they call it rustling, anyway? Do they make strange, dry-leaf-like noises when you steal them?)
Walmart sushi? Ewww.
Top 20 Reasons Dogs Don't Use Computers
Knock, knock. Who's there?
Roomba Frogger via the Iowa Geeks.
Hmm. . . what sentences do cattle rustlers get these days, anyway? I don't think I've ever seen one of those complaints in the form bank. (And why do they call it rustling, anyway? Do they make strange, dry-leaf-like noises when you steal them?)
Walmart sushi? Ewww.
Monday Quiz
| You Were a Cougar |
 You are a great leader who has dominance without ego. You are wickedly cunning and off the scale confident. |
Thursday, March 23, 2006
A Public Service Announcement
For the guys:
If you see an attractive female on the street and feel the need to comment that she has "nice boots," please enunciate carefully.
Next time you might get someone who isn't paying attention.
And you could get hurt.
Just doing my part to foster amicable gender relations - you may now return to your regularly scheduled blog reading.
If you see an attractive female on the street and feel the need to comment that she has "nice boots," please enunciate carefully.
Next time you might get someone who isn't paying attention.
And you could get hurt.
Just doing my part to foster amicable gender relations - you may now return to your regularly scheduled blog reading.
Wednesday, March 22, 2006
WTF
According to CNN, budget constraints are forcing some FBI agents to operate without e-mail accounts.
Wonkette had the best response:
Wonkette had the best response:
Dear FBI:
We saw the CNN piece today about how many of your employees don’t have email. As “bloggers,” we know a thing or two about this Internet fad, and we think we might be able to help you out. Here’s some things you may not know:
- Email is free.
. . .- No, seriously, email is actually free. You don’t need to pay for it. We sent DoD a gmail invite, we have like 90 more for you guys.
- Hey, we know people who are like temps at Justice, and they get .gov email addresses. Did you piss off the Federal IT department or something?
- We cannot stress this enough: You don’t need to pay for an email address.
- Specifically this line here: “The outside e-mail accounts have to be separately funded” — that just makes no fucking sense to us.
Anyway, hope that helps. We will, of course, be printing this note and sending it via bike messenger or something.
Fluff Post: A Few of My Favorite Things
I'm posting on my favorite perfumes today. 'Cause I can.
Sung
With its luxurious blend of French floral oils and warm oriental notes, Sung is a fragrance that exudes confidence and quality. Made from the finest white flowers and perfectly blended to romantically linger.
Type: Floral - Green
Notes:
Top Notes: Orange, ylang-ylang, mandarin, bergamot, galbanum, lemon, hyacinth
Heart Notes: Osmanthus, genet, jasmine, iris, lily of the valley
Base Notes: Vanilla, orange blossom, sandalwood, ambrette, vetiver
(By the way, on this brand, the toilette vs. parfum distinction is an important one. Don't go for the toilette, even though the parfum is getting impossible to find.)
Jean Paul Gaultier - Classique
Jean Paul Gaultier pays homage to woman with his unique floral oriental scent, which comes in a sensuously curved bottle, a woman's body in a corset.
Floral - Oriental
Notes:
Top Notes: Bergamot, Lemon, Mandarin, Orange Blossom
Heart Notes: Tuberose, Jasmine, Ginger, Ylang-Ylang
Base Notes: Cedar, Amber, Vanilla, Cinnamon
Very Irresistible Sensual - Givenchy
A star is born!! Elegance once again meets spontaneity. Very Irresistible Sensual Eau de Parfum gives her the spotlight on center stage.
The seductive mystery of the Very Irresistible Sensual Eau de Parfum centers around the originality of the green fruity Liv Tyler Rose. The fragrance is heightened with the smoothness of vanilla and the addictive quality of patchouli.
Notes:
Centifolia Rose, Peony Rose, Fantasia Rose, Passion Rose, Emotion Rose, Verbena Leaf, Star Anise, Vanilla, Patchouli.
Style:
Vibrant. Brilliant. Captivating.
Go here for almost everything you want to know about perfumes. It doesn't have the most recent stuff, but with a little info on your preferred scents, you should be able to extrapolate to find new fragrances. By the way, I've sooo got to smell (buy?) this one some time:
Sung
With its luxurious blend of French floral oils and warm oriental notes, Sung is a fragrance that exudes confidence and quality. Made from the finest white flowers and perfectly blended to romantically linger.
Type: Floral - Green
Notes:
Top Notes: Orange, ylang-ylang, mandarin, bergamot, galbanum, lemon, hyacinth
Heart Notes: Osmanthus, genet, jasmine, iris, lily of the valley
Base Notes: Vanilla, orange blossom, sandalwood, ambrette, vetiver
(By the way, on this brand, the toilette vs. parfum distinction is an important one. Don't go for the toilette, even though the parfum is getting impossible to find.)
Jean Paul Gaultier - Classique
Jean Paul Gaultier pays homage to woman with his unique floral oriental scent, which comes in a sensuously curved bottle, a woman's body in a corset.
Floral - Oriental
Notes:
Top Notes: Bergamot, Lemon, Mandarin, Orange Blossom
Heart Notes: Tuberose, Jasmine, Ginger, Ylang-Ylang
Base Notes: Cedar, Amber, Vanilla, Cinnamon
Very Irresistible Sensual - Givenchy
A star is born!! Elegance once again meets spontaneity. Very Irresistible Sensual Eau de Parfum gives her the spotlight on center stage.
The seductive mystery of the Very Irresistible Sensual Eau de Parfum centers around the originality of the green fruity Liv Tyler Rose. The fragrance is heightened with the smoothness of vanilla and the addictive quality of patchouli.
Notes:
Centifolia Rose, Peony Rose, Fantasia Rose, Passion Rose, Emotion Rose, Verbena Leaf, Star Anise, Vanilla, Patchouli.
Style:
Vibrant. Brilliant. Captivating.
Go here for almost everything you want to know about perfumes. It doesn't have the most recent stuff, but with a little info on your preferred scents, you should be able to extrapolate to find new fragrances. By the way, I've sooo got to smell (buy?) this one some time:
My most beloved silvered scents are Après L’Ondée, composed in 1906 by Jacques Guerlain, and Olivia Giacobetti’s 1999 creation, Hiris, for Hermès (£58 and £42; 020-7893 8797). These are floral fragrances that even the most blossom-resistant woman can crave. Complicated, sophisticated, vaguely disturbing, they are perfumes such as a Hitchcock brunette might wear. . . .
Après L’Ondée (After the Shower) at once depicts and transcends hawthorn after rain. If Wordsworth had created a scent then this would be it: sublime, immanent, quivering – pulsating with head as with heart. With a nod to Coty’s spice-rich L’Origan, Guerlain fused orris with creamy violet and a noxious carnation trail. The focus of the fragrance shifts and buckles like a mirage: dryness is juxtaposed with drench, the coolness of a cloudburst with earthy, underlying warmth. The result is magnificently climatic. To lie in a hot bath with Après L’Ondée about one’s throat is to find oneself at the centre of a storm. Perhaps this is why it captures feminine emotion so exquisitely. Linda Radlett wears it as she languishes fur-coated in a Civil War refugee camp in The Pursuit of Love. I wear it when all else slips out of kilter. To clothe oneself in Après L’Ondée is to become the woman one desires to be.
Wednesday Quizzy Thingy
| Your Values Profile |
 Loyalty: You value loyalty a fair amount. You're loyal to your friends... to a point. But if they cross you, you will reconsider your loyalties. Staying true to others is important to you, but you also stay true to yourself. Honesty: You value honesty a fair amount. You're honest when you can be, but you aren't a stickler for it. If a little white lie will make a situation more comfortable, you'll go for it. In the end, you mostly care about "situational integrity." Generosity: You value generosity highly. So much so that you often put your own needs last. There's nothing wrong with having a caring heart... But you may want to rethink your "open wallet" policy. Humility: You value humility highly. You have the self-confidence to be happy with who you are. And you don't need to seek praise to make yourself feel better. You're very modest, and you're keep the drama factor low. Tolerance: You value tolerance highly. Not only do you enjoy the company of those very different from you... You do all that you can to seek it out interesting and unique friends. You think there are many truths in life, and you're open to many of them. |
Wednesday, March 15, 2006
Hint, Hint
The Court of Appeals has new opinions up, and one in particular caught my attention because it's right in my area. It's interesting to watch the interplay between the appellate courts, particularly when the principles of stare decisis (following precedent) dictate a result that seems unfair at best. This case is about as obvious a hint as you can get to the Supremes that the law is due for a change. I've just quoted bits of it wholesale because it really requires no translation from legalese.
AMCO INS. CO. v. ROBERTS
FACTS
"Roberts was at her home with her three children on the evening of December 13, 2001. While she was upstairs preparing to give her one-year-old daughter a bath, she heard noises downstairs. When she looked down the stairs she saw two people were coming up the stairs, decedent, Dustin Wehde, and another person, who was never identified. Roberts rushed her young daughter into the room where her eleven-year-old and three-year-old sons were watching a video. Roberts was grabbed from behind and pulled into the hallway by the intruders. Wehde and the other person then assaulted Roberts. She remembers being choked around her neck.
The next thing Roberts remembers is waking up on the floor of the guest bedroom. She heard yelling down the hallway and ran towards it. Roberts was grabbed again and assaulted by the two intruders. She was able to struggle away from them and run into her bedroom. She went to the area between her dresser and bed, where a gun safe was located. While Wehde was standing over her and grabbing at her she was able to get the gun safe open and grab a nine-millimeter gun from the safe. It was dark in the room and Roberts’s prescription glasses had been lost in the struggle, so Roberts just aimed the gun in the direction that she was being grabbed from and, after switching the safety off, she discharged the gun. Wehde was struck and went down. Apparently the other intruder fled after Roberts got a hold of the gun.
After shooting Wehde, Roberts took nine-millimeter gun and a revolver, also from the gun safe, and went to the bedroom to check on her children. The children were fine. Roberts then saw a figure moving near her bedroom. Roberts told the figure not to move. The figure continued to move so Roberts fired a shot from the revolver as a warning to the person to stay still. When the figure continued to move she fired the revolver multiple times at the figure. She then closed the bedroom door and went downstairs where her oldest son called 911.
Wehde died as a result being shot by Roberts. As of this date, Roberts has not been criminally charged in the shooting death. The estate of Wehde claims that after shooting Wehde multiple times with the nine-millimeter handgun, Roberts 'made the conscious and knowing decision to return to the bedroom and kill Dustin Wehde with a second weapon.'"
ISSUE
"Prior to the incident on December 13, 2001, Roberts had purchased a total of three insurance policies from AMCO and Allied. Roberts had purchased (1) a farm master insurance policy from AMCO, (2) a homeowner’s insurance policy from Allied, and (3) a farm excess liability insurance policy from AMCO, which is an umbrella policy that applies only when the underlying policies provide coverage.
In their motion for summary judgment on their petition for declaratory judgment, AMCO and Allied argued that summary judgment must be granted in their favor because the incident, whereby Roberts shot decedent, did not constitute an “occurrence” under the insurance policies and, in the alternative, coverage was excluded under the expected or intended injury exclusions found in the insurance policies."
POLICY LANGUAGE
"The farm master policy states, “Farm liability coverage in the Farm Master Policy does not apply to bodily injury, property damage or personal injury . . . which is expected or intended by any insured.” The homeowner’s policy states that coverage does not apply to:
The intent to cause the injury may be either actual or inferred from the conduct of the insured. Allied Mutual Ins. Co. v. Costello, 557 N.W.2d 284, 286 (Iowa 1997). Our supreme court has clearly and repeatedly indicated that an action by the insured in self-defense does “not change the fact it was an intentional act.” McAndrews, 349 N.W.2d at 120.
Faced with the clear and repeated pronouncements of our supreme court, we must conclude Roberts’s shooting of Wehde was an intentional act for purposes of the insurance policies at issue, even if it was in self-defense. We affirm on this issue."
JUSTICE VOGEL'S SPECIAL CONCURRENCE
"Because of the presence and force of the intruders, Roberts acted instinctively to protect herself, her children and her property from imminent harm and loss. The irony is that if Roberts had done nothing, she may also have been denied coverage. Under Section One “Exclusions,” the Allied Insurance homeowner’s policy reads:
JUSTICE MAHAN'S SPECIAL CONCURRENCE
"I concur specially. I agree with the majority that we must affirm this case based upon the current state of the law in Iowa as set out in McAndrews v. Farm Bureau Mut. Ins. Co., 349 N.W.2d 117, 120 (Iowa 1984). However, I find compelling the argument by a growing number of courts that acting in self-defense is not acting with the intent to cause injury to another but, instead, acting with an intent to prevent injury to oneself.
In the instant case, this mother was attempting to protect herself and her children. However, the current status of the insurance law would appear to force her to make a decision between possible death or serious injury to herself and her family or coverage under the policy."
OBLIGATORY BLOG COMMENTARY
The expected or intended exclusions serve an important function in insurance law, because the finances of insurance are based on risk assessment. If it works right, a bunch of actuaries with calculaters flock together and figure out the statistical likelihood of rearenders, fires, death, and the like, to determine how much money needs to be charged for premium in order to pay everybody's claims as they come up and not go bankrupt leaving no coverage for the rest of the insureds. Free enterprise is supposed to take care of the tendency toward greed - if you charge too much over the amount necessary to cover claims, you'll price yourself out of the market. At least, that's the basic theory. But if you allow coverage for things people do on purpose - torching your house because you can't make the payments; going on a killing spree; tossing the Heart of the Ocean into the water 'cause it just feels right - then not only is it unfair to reward you for your less than admirable behavior, it skews the stats and leaves the company at risk for bankruptcy so it can't pay the claims of people who wouldn't think of doing those kinds of things (or at least wouldn't do them and expect to get paid for it).
Contracts law is very big on bright line rules, and for good reason. Much of the litigation in that area stems from situations in which one party to the contract is claiming a misunderstanding of some sort about the terms of the contract. Attorneys are not cheap, so it's usually cheaper for people and companies to have a clear understanding of everything up front than it is to slap something half-assed together and litigate later. If the law is fluid, then it promotes unneccessary litigation because it's always worth it to take your chances in court. Finally, many people are willing accept a loss if they knew what they were getting into when they signed. Not everyone, but still. Therefore, I can understand the rationale behind the fairly clear-cut rule of keeping to the plain meaning of the terms. Further, if you take the plain meaning of the exclusion and open it up to litigation, you invite all kinds of new suits to discover the boundaries of the new rule. If taken to extremes, that could get interesting. For example, in Missouri there's a case in which an insured was sued after they injected a friend with an overdose of illegal pharmeceuticals. The Court found potential coverage under an identical exclusion, reasoning:
A side note: please notice that this case didn't decide the issue of whether Roberts committed a tort. I would fully expect an Iowa jury to acquit her if this proceeds to trial, if the facts are as represented here.
That said . . .
I agree with the Court of Appeals. Given the facts and circumstances at hand, I'd be comfortable with a little extra litigation to establish a narrow exception to the expected and intended exclusion in order to allow for coverage in clearly established cases of self-defense. As the special concurrences point out, it's a logical conclusion.
(NOTE: Because this is in my arena, I should remind everybody that my employers don't endorse, promote or in any way ascribe to what I write in this blog. Hell, they probably don't even know what a blog is.)
(NOTE NOTE: If anybody at my company is reading this: just kidding about that last part. No, really.)
FACTS
"Roberts was at her home with her three children on the evening of December 13, 2001. While she was upstairs preparing to give her one-year-old daughter a bath, she heard noises downstairs. When she looked down the stairs she saw two people were coming up the stairs, decedent, Dustin Wehde, and another person, who was never identified. Roberts rushed her young daughter into the room where her eleven-year-old and three-year-old sons were watching a video. Roberts was grabbed from behind and pulled into the hallway by the intruders. Wehde and the other person then assaulted Roberts. She remembers being choked around her neck.
The next thing Roberts remembers is waking up on the floor of the guest bedroom. She heard yelling down the hallway and ran towards it. Roberts was grabbed again and assaulted by the two intruders. She was able to struggle away from them and run into her bedroom. She went to the area between her dresser and bed, where a gun safe was located. While Wehde was standing over her and grabbing at her she was able to get the gun safe open and grab a nine-millimeter gun from the safe. It was dark in the room and Roberts’s prescription glasses had been lost in the struggle, so Roberts just aimed the gun in the direction that she was being grabbed from and, after switching the safety off, she discharged the gun. Wehde was struck and went down. Apparently the other intruder fled after Roberts got a hold of the gun.
After shooting Wehde, Roberts took nine-millimeter gun and a revolver, also from the gun safe, and went to the bedroom to check on her children. The children were fine. Roberts then saw a figure moving near her bedroom. Roberts told the figure not to move. The figure continued to move so Roberts fired a shot from the revolver as a warning to the person to stay still. When the figure continued to move she fired the revolver multiple times at the figure. She then closed the bedroom door and went downstairs where her oldest son called 911.
Wehde died as a result being shot by Roberts. As of this date, Roberts has not been criminally charged in the shooting death. The estate of Wehde claims that after shooting Wehde multiple times with the nine-millimeter handgun, Roberts 'made the conscious and knowing decision to return to the bedroom and kill Dustin Wehde with a second weapon.'"
ISSUE
"Prior to the incident on December 13, 2001, Roberts had purchased a total of three insurance policies from AMCO and Allied. Roberts had purchased (1) a farm master insurance policy from AMCO, (2) a homeowner’s insurance policy from Allied, and (3) a farm excess liability insurance policy from AMCO, which is an umbrella policy that applies only when the underlying policies provide coverage.
In their motion for summary judgment on their petition for declaratory judgment, AMCO and Allied argued that summary judgment must be granted in their favor because the incident, whereby Roberts shot decedent, did not constitute an “occurrence” under the insurance policies and, in the alternative, coverage was excluded under the expected or intended injury exclusions found in the insurance policies."
POLICY LANGUAGE
"The farm master policy states, “Farm liability coverage in the Farm Master Policy does not apply to bodily injury, property damage or personal injury . . . which is expected or intended by any insured.” The homeowner’s policy states that coverage does not apply to:
1. Expected or Intended Injury. . .
“Bodily injury” or “property damage” which is expected or intended by an insured even if the resulting bodily injury or property damage:
a.Is of a different kind, quality or degree than initially expected or intended; or
b.Is sustained by a different person, entity, real or personal property, than initially expected or intended.
The intent to cause the injury may be either actual or inferred from the conduct of the insured. Allied Mutual Ins. Co. v. Costello, 557 N.W.2d 284, 286 (Iowa 1997). Our supreme court has clearly and repeatedly indicated that an action by the insured in self-defense does “not change the fact it was an intentional act.” McAndrews, 349 N.W.2d at 120.
The question of self-defense is a standard of [the insured’s liability] to [the injured party]. It presents an issue of motive or justification for an intentionally caused harm, but it does nothing to avoid the inference of intent to harm that necessarily follows from the deliberate blow to [the injured party]. . . .Id. (quoting Home Ins. Co. v. Neilsen, 332 N.E.2d 240, 244 (Ind. Ct. App. 1975); accord Costello, 557 N.W.2d at 286 (reaffirming McAndrews); American Family Mut. Ins. Co. v. De Groot, 543 N.W.2d 870, 871 (Iowa 1996) (summarizing McAndrews in stating, “We concluded the insured’s striking of the victim was an act excluded from coverage because it was intentional, even if done in self-defense.”); Altena v. United Fire and Cas. Co., 422 N.W.2d 485, 488 (Iowa 1988) (reaffirming McAndrews). . . .
Faced with the clear and repeated pronouncements of our supreme court, we must conclude Roberts’s shooting of Wehde was an intentional act for purposes of the insurance policies at issue, even if it was in self-defense. We affirm on this issue."
JUSTICE VOGEL'S SPECIAL CONCURRENCE
"Because of the presence and force of the intruders, Roberts acted instinctively to protect herself, her children and her property from imminent harm and loss. The irony is that if Roberts had done nothing, she may also have been denied coverage. Under Section One “Exclusions,” the Allied Insurance homeowner’s policy reads:
We do not insure for loss caused directly or indirectly by any of the following. Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss. These exclusions apply whether or not the loss event results in widespread damage or affects a substantial area.Roberts not only acted to save her family, she was also following the dictates of the policy, “to use all reasonable means to save and preserve property”. The policy is internally inconsistent if an intentional act to save property is excluded because the act, while causing the death of an intruder, likely saved the lives as well as the property of the insured family from loss."
5. Neglect: Neglect means neglect of an “insured” to use all reasonable means to save and preserve property at and after the time of a loss.
JUSTICE MAHAN'S SPECIAL CONCURRENCE
"I concur specially. I agree with the majority that we must affirm this case based upon the current state of the law in Iowa as set out in McAndrews v. Farm Bureau Mut. Ins. Co., 349 N.W.2d 117, 120 (Iowa 1984). However, I find compelling the argument by a growing number of courts that acting in self-defense is not acting with the intent to cause injury to another but, instead, acting with an intent to prevent injury to oneself.
In the instant case, this mother was attempting to protect herself and her children. However, the current status of the insurance law would appear to force her to make a decision between possible death or serious injury to herself and her family or coverage under the policy."
OBLIGATORY BLOG COMMENTARY
The expected or intended exclusions serve an important function in insurance law, because the finances of insurance are based on risk assessment. If it works right, a bunch of actuaries with calculaters flock together and figure out the statistical likelihood of rearenders, fires, death, and the like, to determine how much money needs to be charged for premium in order to pay everybody's claims as they come up and not go bankrupt leaving no coverage for the rest of the insureds. Free enterprise is supposed to take care of the tendency toward greed - if you charge too much over the amount necessary to cover claims, you'll price yourself out of the market. At least, that's the basic theory. But if you allow coverage for things people do on purpose - torching your house because you can't make the payments; going on a killing spree; tossing the Heart of the Ocean into the water 'cause it just feels right - then not only is it unfair to reward you for your less than admirable behavior, it skews the stats and leaves the company at risk for bankruptcy so it can't pay the claims of people who wouldn't think of doing those kinds of things (or at least wouldn't do them and expect to get paid for it).
Contracts law is very big on bright line rules, and for good reason. Much of the litigation in that area stems from situations in which one party to the contract is claiming a misunderstanding of some sort about the terms of the contract. Attorneys are not cheap, so it's usually cheaper for people and companies to have a clear understanding of everything up front than it is to slap something half-assed together and litigate later. If the law is fluid, then it promotes unneccessary litigation because it's always worth it to take your chances in court. Finally, many people are willing accept a loss if they knew what they were getting into when they signed. Not everyone, but still. Therefore, I can understand the rationale behind the fairly clear-cut rule of keeping to the plain meaning of the terms. Further, if you take the plain meaning of the exclusion and open it up to litigation, you invite all kinds of new suits to discover the boundaries of the new rule. If taken to extremes, that could get interesting. For example, in Missouri there's a case in which an insured was sued after they injected a friend with an overdose of illegal pharmeceuticals. The Court found potential coverage under an identical exclusion, reasoning:
It remains for the insurer to show that this particular insured expected or intended the result which occurred. The record does not compel a finding that he did. It is just as likely that Pacchetti, in his perverted way, might have thought that Derek would derive some transitory pleasure or benefit from what apparently would be his initial experience with cocaine.American Family Mut. Ins. Co. v. Pacchetti, 808 S.W.2d 369 (MO 1991). Um . . . . yeah. (I'd link, but I can't find it on any free sites).
A side note: please notice that this case didn't decide the issue of whether Roberts committed a tort. I would fully expect an Iowa jury to acquit her if this proceeds to trial, if the facts are as represented here.
That said . . .
I agree with the Court of Appeals. Given the facts and circumstances at hand, I'd be comfortable with a little extra litigation to establish a narrow exception to the expected and intended exclusion in order to allow for coverage in clearly established cases of self-defense. As the special concurrences point out, it's a logical conclusion.
(NOTE: Because this is in my arena, I should remind everybody that my employers don't endorse, promote or in any way ascribe to what I write in this blog. Hell, they probably don't even know what a blog is.)
(NOTE NOTE: If anybody at my company is reading this: just kidding about that last part. No, really.)
Tuesday, March 14, 2006
Call for Opinions
I've had a minor blogging issue arise, and I was wondering what people thought. The upshot: if you've blogged on something and you later find out there's a personal context you were not aware of at the time you blogged, should you modify or delete the post to spare the feelings of the people involved, or keep it up out of intellectual honesty?
My example: I posited yesterday that Iowa now has it's own candidate for the Darwin awards. From an email this morning, I discover I went to school with the guy, and he was a nice guy. I still think he's a Darwin Award candidate. Being nice has nothing to do with that. But that's a rather hurtful comment if my high school friends should run across it, and it adds little to the great conversation. So do I modify the post to delete that reference (and then modify this post to delete this example)? Given the minute value of the comment and the fact it could be quite hurtful, I think I'm balancing in favor of deleting. But then it brought up other issues in my brain - what if it were a major post on a major issue, and then the conflict arose?
Example: You write a scathing analysis of a piece of bad legislation, heavily implying the person who sponsored it must be out of his or her mind, then find out the sponsor was a close friend. You still disagree with the law, and you still think it's idiotic, but now you know the thing was a brain blip from an otherwise intelligent person. Do you rewrite, or leave it stand? If you rewrite, do you say why?
Example: You write an entry about some random drunk driver who crashed their car and killed their own child. Understandably outraged, you rail a little. You then discover the driver is your sibling or close friend. Of course, they're devastated by what they've done, but then, so is anyone who is in that situation. It doesn't excuse or detract from the horrendousness of the behavior, and you still agree with everything you wrote. But now you're excoriating your loved one in public, and adding your voice to the hundreds of others calling for his or her blood isn't really going to help foster justice as it's rather duplicative. Again, delete, modify, or leave it alone? Do you say why?
Just wondering what the general attitude on the netiquette.
My example: I posited yesterday that Iowa now has it's own candidate for the Darwin awards. From an email this morning, I discover I went to school with the guy, and he was a nice guy. I still think he's a Darwin Award candidate. Being nice has nothing to do with that. But that's a rather hurtful comment if my high school friends should run across it, and it adds little to the great conversation. So do I modify the post to delete that reference (and then modify this post to delete this example)? Given the minute value of the comment and the fact it could be quite hurtful, I think I'm balancing in favor of deleting. But then it brought up other issues in my brain - what if it were a major post on a major issue, and then the conflict arose?
Example: You write a scathing analysis of a piece of bad legislation, heavily implying the person who sponsored it must be out of his or her mind, then find out the sponsor was a close friend. You still disagree with the law, and you still think it's idiotic, but now you know the thing was a brain blip from an otherwise intelligent person. Do you rewrite, or leave it stand? If you rewrite, do you say why?
Example: You write an entry about some random drunk driver who crashed their car and killed their own child. Understandably outraged, you rail a little. You then discover the driver is your sibling or close friend. Of course, they're devastated by what they've done, but then, so is anyone who is in that situation. It doesn't excuse or detract from the horrendousness of the behavior, and you still agree with everything you wrote. But now you're excoriating your loved one in public, and adding your voice to the hundreds of others calling for his or her blood isn't really going to help foster justice as it's rather duplicative. Again, delete, modify, or leave it alone? Do you say why?
Just wondering what the general attitude on the netiquette.
Tuesday Quiz
| You Are Somewhat Machiavellian |
 You're not going to mow over everyone to get ahead... But you're also powerful enough to make things happen for yourself. You understand how the world works, even when it's an ugly place. You just don't get ugly yourself - unless you have to! |
Monday, March 13, 2006
Thing I Learned on the 'Net Lately
ODD SCIENCE
What happens when Trekkie geeks grow up: "We're developing a tricorder," Downs said, referring to the instruments the crew of the Starship Enterprise on "Star Trek" used to analyze the chemical composition of the planets they visited.
If you have a spare grand lying around, you too can become Mr. Freeze. ("Touch my griddle.")
____________________________________________________________
OFF COLOR
How did I miss this one? A mink penis muffler. Love the label: SKIWEAR selected by US Olympic Committee. And the instructions: Do not use for intercourse. Do not wash. Dry clean only. I notice someone bought it for $420 on February 13th. Must've made some lucky guy a Valentine's Day gift.
I understand the concept of light and circadian rhythms, but this bedding set just looks a bad disco revival.
Of course, this one's just too silly for words. (Would you like to sleep on my balls?)
Oh, and if you're bored, you can go Touch Some Balls. (My high score was something like 58.)
____________________________________________________________
CORPORATE STUPIDITY
Credit card companies might find it easier to head off fraud if they screened out applications that had been torn into a gagillion pieces, taped back together, and filled out with suspicious info. Just a suggestion.
CompUSA could also stand to review its "free shipping if you spend $150" policy. One customer added on a $1 box of paperclips to round up his $149.99 disk drive purchase:
____________________________________________________________
JUST PLAIN WRONG
What's the context for this picture? Did you guess a headshot for a perky cruise director? A still from a pitch for some stupid sitcom?
Try a mugshot for a murder suspect. Whatever she was on at the time this was shot must've been pretty good.
____________________________________________________________
ILLINOIS STUPIDITY
On the Illinois front (registration required, use the Bugmenot login double@mailinator.com and password of 123456):
If you're planning a surprise party, don't tell the feds. They blab everything. Sort of makes FISA look a little pointless, doesn't it?
Oh, and an Illinois gubanatorial candidate has to apologize for calling the other politicians "morons." I think they also made her sit in time-out for two minutes. Hey guys? News flash: Chicago politicians are morons. No, seriously.
____________________________________________________________
IOWA STUPIDITY
Speaking of poor decisions, Iowa has apparently got a candidate for the Darwin Awards.
What happens when Trekkie geeks grow up: "We're developing a tricorder," Downs said, referring to the instruments the crew of the Starship Enterprise on "Star Trek" used to analyze the chemical composition of the planets they visited.
If you have a spare grand lying around, you too can become Mr. Freeze. ("Touch my griddle.")
OFF COLOR
How did I miss this one? A mink penis muffler. Love the label: SKIWEAR selected by US Olympic Committee. And the instructions: Do not use for intercourse. Do not wash. Dry clean only. I notice someone bought it for $420 on February 13th. Must've made some lucky guy a Valentine's Day gift.
I understand the concept of light and circadian rhythms, but this bedding set just looks a bad disco revival.
Of course, this one's just too silly for words. (Would you like to sleep on my balls?)
Oh, and if you're bored, you can go Touch Some Balls. (My high score was something like 58.)
CORPORATE STUPIDITY
Credit card companies might find it easier to head off fraud if they screened out applications that had been torn into a gagillion pieces, taped back together, and filled out with suspicious info. Just a suggestion.
CompUSA could also stand to review its "free shipping if you spend $150" policy. One customer added on a $1 box of paperclips to round up his $149.99 disk drive purchase:
The disk drive, according to CompUSA is being sent from the manufacturer; the paper clips were sent directly from CompUSA’s warehouse. So, in order to enforce its own “no free shipping unless the order is over $150” policy, CompUSA incurred the added expense of an additional FedEx delivery to my home.
JUST PLAIN WRONG
What's the context for this picture? Did you guess a headshot for a perky cruise director? A still from a pitch for some stupid sitcom?
Try a mugshot for a murder suspect. Whatever she was on at the time this was shot must've been pretty good.
ILLINOIS STUPIDITY
On the Illinois front (registration required, use the Bugmenot login double@mailinator.com and password of 123456):
If you're planning a surprise party, don't tell the feds. They blab everything. Sort of makes FISA look a little pointless, doesn't it?
Oh, and an Illinois gubanatorial candidate has to apologize for calling the other politicians "morons." I think they also made her sit in time-out for two minutes. Hey guys? News flash: Chicago politicians are morons. No, seriously.
IOWA STUPIDITY
Speaking of poor decisions, Iowa has apparently got a candidate for the Darwin Awards.
Friday, March 10, 2006
More FISA Thoughts
Is this seriously being endorsed as a compromise? Key quote:
No, no, no, no, no.
(*Sigh*)
Proponents of this plan are constantly harping on the fact it's narrowly tailored and will only impact those with provable probable cause links to terrorists. Then they tell us that to prove probably cause would be too difficult; "unworkable." Not too difficult to do it within a specified period of time, mind you, too difficult to do it at all. In other words, unless I'm mistaken, there is no probable cause.
The N.S.A. would be permitted to intercept the international phone calls and e-mail messages of people in the United States if there was "probable cause to believe that one party to the communication is a member, affiliate, or working in support of a terrorist group or organization," according to a written summary of the proposal issued by its Republican sponsors. The finding of probable cause would not be reviewed by any court.
No, no, no, no, no.
(*Sigh*)
Proponents of this plan are constantly harping on the fact it's narrowly tailored and will only impact those with provable probable cause links to terrorists. Then they tell us that to prove probably cause would be too difficult; "unworkable." Not too difficult to do it within a specified period of time, mind you, too difficult to do it at all. In other words, unless I'm mistaken, there is no probable cause.
Wednesday Quiz
This one's obscure and fascinating, and I have to admit I've no idea what half my results really mean in concrete terms, and the other half I just can't figure out how they extrapolated from the questions asked.
Take the Neuropolitics.org Spring Survey.
My results:
Well, so long as I'm balanced. Oooookaaaay. I thought I was having a pretty good day. Apparently not so much. Go figure.
Take the Neuropolitics.org Spring Survey.
My results:
Your responses are consistent with the following attributes: You have a probable elevation in noradrenergic activity and concurrent deficit in dopaminergic activity. You also have a probable elevation in activity in your prefrontal cortex, amygdala and hippocampus in your right hemisphere. Your olfactory system plays a stronger than average role in mating behavior.
(I find that completely uncalled-for. Note to boyfriend: please do NOT refrain from wearing deoderant).
Indicators of enhanced right prefrontal and bilateral temporal activity in humor detection.
(At least I can detect humor.)
Color preferences may indicate an enhanced dopamine level in your visual cortex.
(Dopamine goooooood.)
Responses point to a probable increase in activity in the right anterior cingulate . . . .
(Really? I hadn't noticed.)
. . . .and amygdala. You have a preference for umambiguity in your thinking styles . . . .
(Ha! I'm not confused or rambling. I'm unambiguous. So there, nyah. . . . . Unless they're saying I'm superficial or only capable of one interpretation?? Have I just been insulted? Wait a minute . . . )
. . . . and a probable elevation in your left inferior parietal cortex and left temporal cortex. You exhibit an elevation in visuospatial task performance.
(Hey! Who are you calling a liberal?)
This seems to be primarily facilitated by your parietal cortex. Your responses indicated a tendency to classify facial expressions as more threatening . . . .
(As opposed to what??? Actually, expressions themselves are not all that threatening. It's the fist that follows them I worry about. . . )
. . . . and an elevation in activity in your right amygdala.
(What's all this obsession with the amygdala? Move on already.)
Overall, your cognitive style is balanced between your left and right hemispheres.
Well, so long as I'm balanced. Oooookaaaay. I thought I was having a pretty good day. Apparently not so much. Go figure.
Thursday, March 09, 2006
The Law/Sex Nexus Continues
with a decision out of the Supreme Court (registration required - use username=Mypassword / password=password) not to hear an appeal on a Tenth Circuit case ruling a state university can display a statue with an arguably anti-religious message without violating the Establishment Clause.
Surprisingly, it's not the Muslims causing the fuss this time around, but the Catholics. They were somewhat offended by a depiction of "a bishop with a grotesque expression, a representation of a phallus on his head, and the title 'Holier Than Thou.'"
They made an interesting reverse-establishment clause arugument, alleging that erecting (okay, it's not a pun people) a statute with an arguably anti-Catholic message operates as a disapproval of one religion (Catholicism), thereby implicitly legitimizing other belief systems. Creative. So the Tenth Circuit did the standard semi-Lemon analysis to determine whether the statue (1) had a secular purpose, (2) did not have the principal or primary effect of advancing or inhibiting religion, and (3) did not foster an excessive entanglement with religion.
Washburn argued its decision to display Holier Than Thou was motivated by two purposes: 1) to enhance the university’s educational experience, and 2) to beautify the campus. They also claimed nobody thought of the hat as a phallic symbol until student uproar brought it to their attention. If that's the case, I'd have to say it's time to expand their education, an average class of junior high boys could've pointed it out to them inside of two minutes. But the Court let that one slide, finding there was no evidence the school had any religiously motivated reason for displaying the statue in question. In a counter-argument, the plaintiffs basically called the religious implications obvious, but then claimed that the decision to retain the statute in light of the controversy could be used as evidence of an anti-Catholic purpose. The school claimed that decision was not engendered from any anti-religious sentiment, and the Court agreed, noting that the meeting minutes of the Board of Regents disclosed their decision was based on a desire to promote freedom of speech and to avoid academic censorship.
Regarding the potential of the statute to create an anti-Catholic effect, the Tenth Circuit had this to say:
They appeared to skate over the whole "entanglement" prong, which of itself isn't problematic, since the whole Establishment clause analysis now appears to be a random Lemon-like grab bag of tests tailored to fit the facts of each case, basically guaranteeing these cases will be around to entertain us for years to come.
Oh, and buried in the opinion is also the alternative explanation for the statute. It isn't a sex thing, it's a representation of the artist’s humorous memories of his first confession, as explained in the caption:
In other words: a) Read the captions - an education is a good thing; and b) Buy a sense of humor. Please.
Though the hat still looks fairly phallic to me.
Surprisingly, it's not the Muslims causing the fuss this time around, but the Catholics. They were somewhat offended by a depiction of "a bishop with a grotesque expression, a representation of a phallus on his head, and the title 'Holier Than Thou.'"
They made an interesting reverse-establishment clause arugument, alleging that erecting (okay, it's not a pun people) a statute with an arguably anti-Catholic message operates as a disapproval of one religion (Catholicism), thereby implicitly legitimizing other belief systems. Creative. So the Tenth Circuit did the standard semi-Lemon analysis to determine whether the statue (1) had a secular purpose, (2) did not have the principal or primary effect of advancing or inhibiting religion, and (3) did not foster an excessive entanglement with religion.
Washburn argued its decision to display Holier Than Thou was motivated by two purposes: 1) to enhance the university’s educational experience, and 2) to beautify the campus. They also claimed nobody thought of the hat as a phallic symbol until student uproar brought it to their attention. If that's the case, I'd have to say it's time to expand their education, an average class of junior high boys could've pointed it out to them inside of two minutes. But the Court let that one slide, finding there was no evidence the school had any religiously motivated reason for displaying the statue in question. In a counter-argument, the plaintiffs basically called the religious implications obvious, but then claimed that the decision to retain the statute in light of the controversy could be used as evidence of an anti-Catholic purpose. The school claimed that decision was not engendered from any anti-religious sentiment, and the Court agreed, noting that the meeting minutes of the Board of Regents disclosed their decision was based on a desire to promote freedom of speech and to avoid academic censorship.
Regarding the potential of the statute to create an anti-Catholic effect, the Tenth Circuit had this to say:
The reasonable observer of Holier Than Thou would . . . be aware that the statue was one of thirty outdoor sculptures displayed on the Washburn campus, of which several were located within sight of the challenged display. In addition, the existence of a brochure available in the campus art museum describing and mapping all the statues on campus would make it clear to a reasonable observer that the statues were part of a unified exhibit. The reasonable observer would also be aware that art in previous years had been placed at the location of Holier Than Thou, and that previous exhibitions had included at least one statue with religious symbolism. Viewed in the context of these other statues, Holier Than Thou was part of a “typical museum setting” that, “though not neutralizing the religious content of a religious [work of art], negates any message of endorsement of that content.” Lynch, 465 U.S. at 692 (O’Connor, J., concurring). A state is not prohibited from displaying art that may contain religious or anti-religious symbols in a museum setting. . . .
Like music, sculpture has traditionally involved works with religious themes. This fact, combined with the Campus Beautification Committee’s selection for the exhibition of four sculptures without obvious religious symbolism, would similarly lead the reasonable observer to conclude that the state did not intend to endorse a particular religious message. . . .
Furthermore, Holier Than Thou was displayed in the context of a university campus, a place that is “peculiarly the marketplace of ideas.”. . . In the university setting, “the State acts against a background and tradition of thought and experiment that is at the center of our intellectual and philosophic tradition.” . . . As the Supreme Court recognized in Rosenberger, purging religious or anti- religious speech from a university setting would eliminate such speakers as Plato, Spinoza, Descartes, Karl Marx, Bertrand Russell, and Jean-Paul Sartre from the curriculum. . . . The Establishment Clause, however, does not compel the removal of religious themes from public education. Although the Court in School District of Abington Township v. Schempp held unconstitutional a state statute requiring daily Bible readings in public schools, the Court noted it did not intend to “indicat[e] that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment.”. . . Regardless of whether the statue sends an anti-Catholic message, any reasonable observer viewing it in context would understand the university had not endorsed that message.
They appeared to skate over the whole "entanglement" prong, which of itself isn't problematic, since the whole Establishment clause analysis now appears to be a random Lemon-like grab bag of tests tailored to fit the facts of each case, basically guaranteeing these cases will be around to entertain us for years to come.
Oh, and buried in the opinion is also the alternative explanation for the statute. It isn't a sex thing, it's a representation of the artist’s humorous memories of his first confession, as explained in the caption:
The artist says, “I was brought up Catholic. I remember being 7 and going into the dark confessional booth for the first time. I knelt down, and my face was only inches from the thin screen that separated me and the one who had the power to condemn me for my evil ways. I was scared to death, for on the other side of that screen was the persona you see before you.”
In other words: a) Read the captions - an education is a good thing; and b) Buy a sense of humor. Please.
Though the hat still looks fairly phallic to me.
News Flash: It's Official
Airline baggage carriers can legally make fun of you if you have to leave your seat and come open your bag because your vibrator went off. Key quote:
via How Appealing.
The sexual comments alleged to be made by Anderson, including the
licking of lips, prompting the laughter of two other male Delta employees, while
distasteful in nature, are insufficient to support Koutsouradis’ claim for the
intentional infliction of emotional distress.
via How Appealing.
Wednesday, March 08, 2006
Thursday Quiz
| You Are 56% Open Minded |
 You are a very open minded person, but you're also well grounded. Tolerant and flexible, you appreciate most lifestyles and viewpoints. But you also know where you stand firm, and you can draw that line. You're open to considering every possibility - but in the end, you stand true to yourself. |
"Dear University of Arizona Law School:"
"I hereby inform you that the learning materials you provided for my Legal Ethics and Professional Responsibility coursework stand in conflict with my beliefs and practices in sex and morality. Pursuant to SB 1331, I demand you withdraw the materials and replace them with a more acceptable substitute. Examples of more appropriate materials include Playboy or Hustler articles related to the seduction of choice young support staff, and a copy of Machiavelli's 'The Prince.'"
Oh, and This:
reckless use of a bathtub.
For anyone who'd like to email the managing partner of the firm with comments:
eflitton@hollandhart.com
(I wonder why it's not featured on their "firm news"?)
via Overlawyered.
For anyone who'd like to email the managing partner of the firm with comments:
eflitton@hollandhart.com
(I wonder why it's not featured on their "firm news"?)
via Overlawyered.
Enjoy
This Special Note by a Texas judge, discussing why it took him so long to render an opinion, and whether it's fair that the other judges went ahead and gave an opinion without him. Bonus: there's an Adam Sandler reference.
via Volokh.
via Volokh.
Tuesday, March 07, 2006
Foresight
I noticed this editorial in the Press-Citizen a few days back, discussing the recent Kelo v. New London backlash legislation in Iowa:
I sooo have a problem with this approach. First, the legislation does mark a break with the past, despite arguments to the contrary. The example given by the PC, using eminent domain power to hand over land to a privately owned railroad, is distinguishable from the Kelo decision, a fact that the Court pointed out even within the Kelo decision itself, in discussing the definition of "public use":
The Court went on to discuss the New London development plan, finding that the plan as a whole conformed to the concept of a "public purpose" despite the fact that some of it involved handing over the private residences of one person to a developer to be made into private residences for sale to another individual, about as not-public a use as you can get:
My second issue involves the concept of "trust." It seems to me that the op-ed author is of the opinion that despite the fact that the new rulings allow for abuses, no legislative curbs on that power should be enacted until and unless that trust is breached. I've also seen that philosophy referred to by proponents of President Bush's position on the NSA spy program - do you trust GWB with this kind of power?
Maybe it's the education talking, but prevention and the rule of law seem to me too important to simply let issues skate on "but we did it before" and "c'mon, nobody's taken advantage of it yet." Our government is not basically corrupt. It's not out specifically to "get" poor Joe Schmoo who's got a nice bit of ocean-view (okay, cornfield-view in this case) property. But if a leader did become corrupt, or it did set out to get the little guy, what then? Have we got sufficient checks and balances in place to ensure that can't happen? Correct me if I'm wrong, but I think that's the concept which spawned the whole idea of things like the separation of powers and the Bill of Rights. We'd seen what a government free of those checks and balances was capable of doing, and wanted no part of it.
The Kelo decision goes too far for most people's taste, because it incorporates private use into the concept of public purpose, effectively allowing the government to take one person's property and give it to another person. Yes, there are some checks and balances. And perhaps, for some, it's not an issue the way it was applied in New London and would not be a problem as applied in Iowa. But the opportunity for corruption is there, and I think it's smarter to plug the holes before they go too far. Similarly, we can argue the semantics of the AUF and the FISA until we're blue in the face, as there are points on either side as to whether they technically allow the FSA program to skate. But Bush is arguing something far more fundamental: that the legislation is moot because Article II gives him the power for domestic surveillance inherently. I have a real problem with this, even if it's been done before, and even if it's arguable the FSA itself wasn't applied in a way that's fundamentally repugnant. Given the broad spectrum of items that could be considered "incident to war," I cannot fathom anyone not wanting reforms to ensure there are adequate checks on executive power to ensure our rights are respected regardless of who is in power.
Ask the questions, pose the hypotheticals, plug the gaps before they become a problem or political scandal. In what universe is this not a good thing?
While the proponents for curbing eminent domain imply that the Supreme Court's decision breaks from legal tradition, the court basically reaffirmed that eminent domain was already the law of the land. The most germane legal precedents go back at least as early as the 19th century, when the government condemned private land and turned it over to the private railroad companies. Through the use of eminent domain, furthermore, downtown Des Moines has transformed over the last 30 years from a slum into a revitalized business and residential district.
. . .
The issue comes down to whether we trust city government with this power. The Institute for Justice, a national organization fighting commercial use of eminent domain, recently did a state-by-state study in which they found only two abuses of eminent domain in Iowa, both in Dubuque and both complicated by extenuating circumstances. There is, thus, little history of local governments in Iowa seriously abusing this power. The effort to limit eminent domain here seems based more on politics than on specific examples.
I sooo have a problem with this approach. First, the legislation does mark a break with the past, despite arguments to the contrary. The example given by the PC, using eminent domain power to hand over land to a privately owned railroad, is distinguishable from the Kelo decision, a fact that the Court pointed out even within the Kelo decision itself, in discussing the definition of "public use":
On the other hand, this is not a case in which the City is planning to open the condemned land–at least not in its entirety–to use by the general public. Nor will the private lessees of the land in any sense be required to operate like common carriers, making their services available to all comers.
The Court went on to discuss the New London development plan, finding that the plan as a whole conformed to the concept of a "public purpose" despite the fact that some of it involved handing over the private residences of one person to a developer to be made into private residences for sale to another individual, about as not-public a use as you can get:
The City has carefully formulated an economic development plan that it believes will provide appreciable benefits to the community, including–but by no means limited to–new jobs and increased tax revenue. As with other exercises in urban planning and development, the City is endeavoring to coordinate a variety of commercial, residential, and recreational uses of land, with the hope that they will form a whole greater than the sum of its parts. To effectuate this plan, the City has invoked a state statute that specifically authorizes the use of eminent domain to promote economic development. Given the comprehensive character of the plan, the thorough deliberation that preceded its adoption, and the limited scope of our review, it is appropriate for us, as it was in Berman, to resolve the challenges of the individual owners, not on a piecemeal basis, but rather in light of the entire plan. Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the public use requirement of the Fifth Amendment.
My second issue involves the concept of "trust." It seems to me that the op-ed author is of the opinion that despite the fact that the new rulings allow for abuses, no legislative curbs on that power should be enacted until and unless that trust is breached. I've also seen that philosophy referred to by proponents of President Bush's position on the NSA spy program - do you trust GWB with this kind of power?
Maybe it's the education talking, but prevention and the rule of law seem to me too important to simply let issues skate on "but we did it before" and "c'mon, nobody's taken advantage of it yet." Our government is not basically corrupt. It's not out specifically to "get" poor Joe Schmoo who's got a nice bit of ocean-view (okay, cornfield-view in this case) property. But if a leader did become corrupt, or it did set out to get the little guy, what then? Have we got sufficient checks and balances in place to ensure that can't happen? Correct me if I'm wrong, but I think that's the concept which spawned the whole idea of things like the separation of powers and the Bill of Rights. We'd seen what a government free of those checks and balances was capable of doing, and wanted no part of it.
The Kelo decision goes too far for most people's taste, because it incorporates private use into the concept of public purpose, effectively allowing the government to take one person's property and give it to another person. Yes, there are some checks and balances. And perhaps, for some, it's not an issue the way it was applied in New London and would not be a problem as applied in Iowa. But the opportunity for corruption is there, and I think it's smarter to plug the holes before they go too far. Similarly, we can argue the semantics of the AUF and the FISA until we're blue in the face, as there are points on either side as to whether they technically allow the FSA program to skate. But Bush is arguing something far more fundamental: that the legislation is moot because Article II gives him the power for domestic surveillance inherently. I have a real problem with this, even if it's been done before, and even if it's arguable the FSA itself wasn't applied in a way that's fundamentally repugnant. Given the broad spectrum of items that could be considered "incident to war," I cannot fathom anyone not wanting reforms to ensure there are adequate checks on executive power to ensure our rights are respected regardless of who is in power.
Ask the questions, pose the hypotheticals, plug the gaps before they become a problem or political scandal. In what universe is this not a good thing?
Monday, March 06, 2006
Monday Quiz
| Good Job You scored 70% knowledge, and 6% confusion |
| Well done. You have a good basic knowledge about the world. You still need a bit of study, but nice work. Also, you didn't choose any obviously wrong answers. Great job on that part. Don't forget to vote on this test! |
 |
My test tracked 2 variables How you compared to other people your age and gender:
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| Link: The World Geography Knowledge Test written by dowland2005 on OkCupid Free Online Dating, home of the 32-Type Dating Test |
via Royce
Friday, March 03, 2006
As Soon as I Pick My Jaw off the Floor
I'm going to figure out a way to deal with this.
Those of you who know me understand how the sale of my house will resuscitate my finances after I'd allowed the ex to skip the majority of his post-divorce bills when he was out of work, and assisted my parent/s since their respective diagnoses of terminal cancer. I'd incurred a large amount of debt, and this sale will allow me to pay it off and get back on an even keel, even considering the tax consequences of not putting it right back into a new home. I've been very excited about it, being back to "normal" (such as it is). I figured everything's going to go smoothly as of the reciept of that check in my cute new mailbox.
Right?
Maybe not so much:
Greeeeaaat.
Those of you who know me understand how the sale of my house will resuscitate my finances after I'd allowed the ex to skip the majority of his post-divorce bills when he was out of work, and assisted my parent/s since their respective diagnoses of terminal cancer. I'd incurred a large amount of debt, and this sale will allow me to pay it off and get back on an even keel, even considering the tax consequences of not putting it right back into a new home. I've been very excited about it, being back to "normal" (such as it is). I figured everything's going to go smoothly as of the reciept of that check in my cute new mailbox.
Right?
Maybe not so much:
PROVIDENCE, R.I. -- Walter Soehnge is a retired Texas schoolteacher who traveled north with his wife, Deana, saw summer change to fall in Rhode Island and decided this was a place to stay for a while.
So the Soehnges live in Scituate now and Walter sometimes has breakfast at the Gentleman Farmer in Scituate Village, where he has passed the test and become a regular despite an accent that is definitely not local.
. . . .
They paid down some debt. The balance on their JCPenney Platinum MasterCard had gotten to an unhealthy level. So they sent in a large payment, a check for $6,522.
After sending in the check, they checked online to see if their account had been duly credited. They learned that the check had arrived, but the amount available for credit on their account hadn't changed.
So Deana Soehnge called the credit-card company. Then Walter called.
. . . .
They were told, as they moved up the managerial ladder at the call center, that the amount they had sent in was much larger than their normal monthly payment. And if the increase hits a certain percentage higher than that normal payment, Homeland Security has to be notified. And the money doesn't move until the threat alert is lifted.
Greeeeaaat.
Things I Learned on the 'Net This Week
People in the Middle East may be a tad misinformed about American customs.
You can search the Invisible Web for all those original documents stored on deep databases that you know is out there but can't get Google to hit on.
There's a program called Deskpins that lets you set any program to be "always on top." Handy for tax season: keeping the calculator on top. I've been waiting for that one.
You can fix scratched CD's with toothpaste. I wish I'd known that before I finally tossed the scratched CD that had held the draft of the first nine chapters of a novel I'd written. Dammit. I never went back to it once it was lost, it was too traumatic.
The future of our government? It would be hilarious if it weren't so close to being accurate.
Carnival of the Etymologies on "Done with Mirrors" presents Words You Didn't Know Were Rude.
Sex is dangerous. (vision problems???)
You can search the Invisible Web for all those original documents stored on deep databases that you know is out there but can't get Google to hit on.
There's a program called Deskpins that lets you set any program to be "always on top." Handy for tax season: keeping the calculator on top. I've been waiting for that one.
You can fix scratched CD's with toothpaste. I wish I'd known that before I finally tossed the scratched CD that had held the draft of the first nine chapters of a novel I'd written. Dammit. I never went back to it once it was lost, it was too traumatic.
The future of our government? It would be hilarious if it weren't so close to being accurate.
Carnival of the Etymologies on "Done with Mirrors" presents Words You Didn't Know Were Rude.
Sex is dangerous. (vision problems???)
Friday Quiz
| Your 2005 Song Is |
 Since You've Been Gone by Kelly Clarkson "But since you've been gone I can breathe for the first time I'm so moving on" In 2005, you moved on. |
Wednesday, March 01, 2006
Quick Bits
Hey, I agree with the Des Moines Register for once.
_________________________________________________________
Want a real good example of a classic case of domestic violence?
_________________________________________________________
From a phone conversation this morning:
*Sigh*. Not the shiniest ornament on the Christmas tree, are you? The rest of the conversation took another forty-five minutes. At the end of it, she told me that the addition of the TIVO would change my installation appointment. . . . to Tuesday, March 7th from 5:00 to 7:00 pm. I didn't argue.
While we're touching on the subject of television: anyone planning on watching Battlestar Galactica this Friday? Would you like company? Or to DVD or tape it for me?
Pretty please?
Want a real good example of a classic case of domestic violence?
From a phone conversation this morning:
Her: How can I help you?
Me: I have a scheduled cable hook-up next Tuesday, and I'd like to change the order to add a TIVO box.
Her: Could you give me your address?
Me: Okay . . . . (rattles off new address).
Her: Is that a new development?
Me: Not really sure. It might be.
(long pause)
Her: Well, we'll need to send a technician out to determine servicability in your area. That will take three to four business days.
Me: I'm sorry, no, I already have an appointment for hookup scheduled. It's this Tuesday from 5:00 to 7:00. I just want to add the TIVO to it.
Her: What's your name again?
Me: (repeats it)
Her: Could I have the phone number of the residence?
Me: (gives that to her)
Her: Could I have your social security number?
Me: (gives that, too)
Her: Oh, now I see it. You're scheduled for installation from 5:00 to 7:00 pm on Tuesday, March 7th. . . . . (long pause). . . . . Is there anything else I can help you with?
*Sigh*. Not the shiniest ornament on the Christmas tree, are you? The rest of the conversation took another forty-five minutes. At the end of it, she told me that the addition of the TIVO would change my installation appointment. . . . to Tuesday, March 7th from 5:00 to 7:00 pm. I didn't argue.
While we're touching on the subject of television: anyone planning on watching Battlestar Galactica this Friday? Would you like company? Or to DVD or tape it for me?
Pretty please?
Happy Mardi Gras
from Danette and Mark down in New Orleans:
If I hadn't had to move last weekend, I'd soooo be there!
If I hadn't had to move last weekend, I'd soooo be there!
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