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.
Thursday, June 30, 2005
Figures
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:
Todd Zywicki has a post up on it today on Volokh Conspiracy:
Eugene Volokh posted on it a few days ago:
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.
[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:
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.
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,
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.
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.
LOL
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."
__________________________________________
UPDATE:
Get your t-shirts here.
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."
__________________________________________
UPDATE:
Get your t-shirts here.
The Kelo Song
OMG this is cool:
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?
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.
UPDATE:
Oh, and Scrappleface has it's own spin:
Court Allows 10 Commandments on Seized Land
UPDATE:
Oh, and Scrappleface has it's own spin:
Court Allows 10 Commandments on Seized Land
Memories
Dweeze posted on some of the things he misses in Iowa City. I'd like to add to the list:
THE TOYS
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.
MODA AMERICANA
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."
ROCKY ROCCOCO'S PIZZA ON THE PED MALL
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.
COLLEGE STREET CLUB
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 AIRLINER, BUSHNELL'S TURTLE, PEARSON'S DRUG STORE
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.
THE ABBEY INN
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.
MAZZIO'S PIZZA
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 Iowastorage 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.
THE TOYS
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.
MODA AMERICANA
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."
ROCKY ROCCOCO'S PIZZA ON THE PED MALL
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.
COLLEGE STREET CLUB
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 AIRLINER, BUSHNELL'S TURTLE, PEARSON'S DRUG STORE
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.
THE ABBEY INN
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.
MAZZIO'S PIZZA
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
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.
One-Liners
Randy Barnett from the Volokh Conspiracy writes:
There are some real zingers in the comments.
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:
HARVEST MOON BELGIAN WIT
A Belgian wheat beer brewed with curacao orange peel and coriander seeds. Truly Refreshing!
PUBLIC HOUSE PALE ALE
This American Pale Ale is very aromatic, using centennial hops. It has an outstanding hop aroma and flavor, dry and appetizing.
CELTIC CROSS RED ALE
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.
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:
HARVEST MOON BELGIAN WIT
A Belgian wheat beer brewed with curacao orange peel and coriander seeds. Truly Refreshing!
PUBLIC HOUSE PALE ALE
This American Pale Ale is very aromatic, using centennial hops. It has an outstanding hop aroma and flavor, dry and appetizing.
CELTIC CROSS RED ALE
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 nice...it'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
Anywhoo. . .
This is so cool!
Passing it around.
Jeff, wnere are you? Don
The drive from Des Moines was quite nice...it'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.
THE INFO
MAP
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.
THE INCENTIVE
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.
Then again, you will have to hang out with the blog people. We're scary, you know.
IOWA BLOGGER BASH - THE EASTERN DIVISION | |
| WHO: | Iowa Bloggers Readers Commenters 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.
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.
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:
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:
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:
(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:
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:
The Court stated:
In light of everything, the Court gave Stickle a public reprimand.
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.
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