girl ipsa loquitur: 08/22/2004 - 08/29/2004 Email me!

Saturday, August 28, 2004

Cultural Perspective

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It's all in how you look at it, I guess.

We've spent a lot of time in this country debating marriage. Who should be married to whom and why. This story adds a dimension to the debate -- um conversation -- that I think is worth a look.

Consider, for a moment, South Africa and the impending nuptials between dead people. Granted, they are dead heterosexual people, but dead nonetheless. Also apparently of no consequence here is the fact that the groom killed the bride and their unborn child before offing himself. I'd bet that the bride is having second thoughts about eternity with this crazy dead guy. Yet... the wedding is on.

Perspective. Cultural norms. Custom and practice. All of these things have to enter into our analysis of social issues, but they also have to enter into our ideas about ourselves. For one group to claim a moral superiority based solely on their own custom being most prevalent is just an example of might making right.

Personally, I like a little more meat to my view point than "That's the way it's always been." For instance, I am not going to support posthumous marriage no matter how many other folks do. That is one band wagon I will not be jumping on. However, this practice does serve to illustrate that there are fewer differences between heterosexual marriage and gay marriage than you might of first imagined. Take a minute to gain another perspective by reading this post, Un-Married, which was written by a friend of mine.

If we're gonna protect marriage, lets protect it from something really scary ~ Dead People.

Friday, August 27, 2004

I Don't Watch Porn but...

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Here is an interesting legal issue: Whether or not the legislature can require actors in pornographic films to use condoms. (Equally interesting side issue: Whether or not Girl Ipsa will even be able to finish writing this post. BLUSH) On the Girl Ipsa radar today is a strongly worded letter to producers of pornographic films authored by California Assemblyman Paul Koretz.

Why, you may wonder, does he care about this condom use issue? There was a recent HIV scare in the porn community but that was addressed by a voluntary "work stoppage". Why the need to send pointed letters?

Well, Mr. Koretz is chairman of the Labor and Employment Committee and apparently thinks that condom use, in this particular case, is a work place health and safety issue. Now, think about that for a minute. At first blush you might want to think that it's a privacy issue. More, um... conservative readers might posit the question: If we can not regulate sodomy how in blue blazes can we regulate condom use? To which I'd reply "Excellent question!"

You're gonna have to look at it from the work place view point. To my mind, it's a lot like what medics refer to as Universal Precautions. In my former, pre-legal, life I was a medic***. I worked with old fire fighters who never really wanted to put on a glove, since it slowed them down. As for me, I liked two pairs of gloves and an extra long stethoscope so I never had to get too close to any kind of goo. It was a safety issue, not a personal preference issue. When I worked as an instructor, teaching new medics, the failure to glove-up was a failure to pass my course. No bickering! It's the law.

I think that this is a good analogy for the condom issue. The threat of disease, even deadly disease, is there every time these folks go to work. It is reasonable for a state to require safety measures to protect the health of these workers.

Nevertheless, I predict that we're going to hear privacy and consent arguments from opponents of this theoretical legislation. They will argue that it is the business of consenting adults whether or not to use a specific type of birth control, or any birth control at all (or, lets face it: AID of any kind) for that matter. This argument is attractive but I think it is beside the point. It remains to be seen, though, if this will ever make it to legislative debate at all. It would be refreshing if the industry just voluntarily adopted a policy of protection. But I'm not holding my breath. (Lexington Steele, president of Mercenary Pictures, has both a truly funny name and the opinion that this is none of our business)

On a tenuously related front, our intrepid assemblyman would also like to raise the legal smoking age to 21. I am going to have to firmly support this bit of governmental mucking about in the private lives of it's citizens.

Here is the post-post wrap-up:

Girl Ipsa says YES to Condoms and NO to Cigarettes.

Lets face it, you were gonna boil it down to that anyway so why waste time?

***For those of you who know the difference between EMT 1, EMT 2, EMTD and EMTP; I was an EMTD and now just say medic since brevity is the soul of wit

Tuesday, August 24, 2004

You Bet, I'll Wager

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I know, I still have some time to decide what I want to do when I grow up... But I discovered an entirely new opportunity today and it has me pretty excited. Odds Maker! Someone to lay odds for use in betting. You know, 3 to 1, or 5 to 1, or 472 billion to 1. You may be thinking that this is a HUGE waste of not only all my legal talent but also all those student loans I'll have to repay. However, I think my legal talent will come in handy.

Turns out that we're betting on trials. Now, this is likely not news to some of you. Those of the wagering persuasion probably already know all about this. I didn't, though. And it took me by surprise, until I realized the income potential. Really good legal analysis is needed to lay those odds. Weighing the evidence, watching the pre-trial decisions, and figuring out what the likely outcome will be. Then you have to factor in the lawyers hair styles, wardrobe and foot wear. Plus jury stats. How many women? How many men? Republican or Democrat? Bass fishers?

The sheer volume of facts and inferences to be weighed and calculated is staggering. And I am uniquely qualified to do that job! To heck with criminal prosecution. Pshaw to contract law and civil litigation. I'm going to Vegas, baby!

If you've kept up with Girl Ipsa then you know that I once likened trials to boxing. (If not then I'll just say here "Hey, I once likened trials to boxing.") This new development is just par for that course. Only difference being that, generally, boxers take the ring voluntarily with the expectation that people will watch and wager and pray fervently for a specific outcome. If you are, say, Hector Camacho you will not be particularly wounded when a spectator screams "Kill him!!" from the crowd. (I am merely guessing what boxing spectators scream, as I have never been one. Perhaps they scream "Be careful!" or "Look out!" or "Good show, fellow!")

I am willing to bet that Scott Peterson isn't inspired to greater athletic efforts by his long odds. Sea Bisket he is not. And this really does beg the question;

Do we address this on voir dire?

I mean, as a member of the jury, how influenced will you be in your deliberations if you have a hundred bucks on "conviction"? Better yet, $5,000. on "mistrial". Right now a mistrial is 3 to 1. And that catch all "other outcome"? That's at 11 to 1. Presents a serious issue about the objective ability of the trier of fact that I don't think we've seen before.

There are settled rules as to what to do about a judge or an attorney having a financial interest in the outcome of the law suit. We can be fairly certain that the judge does not have money on this, if he did he would have to disclose that fact and recuse himself. (My favorite story in this regard is the judge who disclosed to the parties that he was wearing Lakers underwear at that very moment to show his potential bias.) And if it turns out that he did, he is subject to serious discipline including disbarment. Not so for jurors.

So, when selecting from that pool of veniremen will the attorneys ask them about online betting? Or will we just put it there on the juror questionnaire:
Do you, or anyone in your family, now wager, or have you, or anyone in your family, ever wagered, on the outcome of a trial? If so, how much did you get?**

** If it's not too much we'll call it de minimus and move on

Monday, August 23, 2004


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I have stumbled across a most fortunate find, Richard Posner is guest blogging on Lessig's Blog! The chance to read what Mr. Posner deems worthy of writing about is an opportunity that so filled me with excitement I had to share it with you. If you've never heard the name, then I apologize for my unadulterated law-geek-ness and promise something more topical next time.

I once told you that if you were very patient I would share with you the salacious details of my romance with the law. This is one of those details, friends. I love Posner. Reading his post on Fair Use reminds me of why this is. He likens the Fair Use doctrine (Which we met in our examination of Jib Jabs "This Land" legal difficulties) to a teenager taking a joy-ride in your car. Is it just me, or does that kind of crystal clear analytical use of metaphor turn you on too?

Special credit is also due Christopher Chopin, who alerted me to this magical discovery via his own BLOG. Okay, he deserves all the credit. I am merely stapled to his coat tails on this one.

Sunday, August 22, 2004

How to Lose Friends & NOT Influence People

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I have a friend that is going through a divorce. This is a very confusing and horrible time for her. Recently she called me and said "I have a job for you." My first thought was Oh No! (She's been building a patio and that is hard labor in the sun) Then she said "I'll pay you, of course." Now, that's different. For some money I can brush up on my masonry skills. (I have skills, lots of them)

So I inquired. What's this job? That's when she hit me with it. She wants some help with her divorce, papers to look at, decisions to make. Who better than Legal Diva for this job?

Answer: Anybody but me!

She entreats "But I'll PAY you!" I'm pretty sure that the illegal practice of law will keep me from getting my bar card... but the illegal practice of law for monetary gain? I bet that could get me arrested, as well.

I feel bad about this. I would like to help her and I would also like to help my neighbors, family members (Baby Brother just had the battery thing...), friends of friends and the checker at Home Depot who saw my school sweat shirt and wanted to discuss her boyfriends upcoming parole hearing. However, the rules about this are pretty clear. If you aren't a lawyer, admitted to the practice of law, you aren't allowed to practice law. The same goes for doctors, pharmacists, therapists and whale trainers at Sea World. (I spent some time wanting to be a whale trainer as this is an excellent skill to possess, but they don't let you just jump in the pool. Drat!)

Some of you might wonder, as many of The Future Lawyers of America do, why I don't just do it but keep it quiet? After all, we know how things really work. In the real world, no one follows these silly ethical precepts. We all just lie and cheat and bend and spin our way through everything, concerned only with getting what we want in the end. Right?

Diva, you might say, if you just refrain from doing something silly -- like posting your wrong-doing on some web site with your photo for others to see! -- then you will surely get away with meteing out a little legal advice here and there. This is the real world, after all. (I now have that song from the Disney ride It's A Small World playing in my head, thank a bunch!)

Call me naive and idealistic, but the successful completion of my legal ethics class was not the end of my ethical considerations. I plan on considering the ethical implications of all the important decisions that I make from now on. "Paper or plastic?", "Fries with that?", and even "Could you practice a little law for me?". My friends, family, neighbors and minimum wage service persons will all just have to understand.

But if you're a whale trainer from Sea World? We might be able to work something out.

"To live is so startling it leaves little time for anything else." ~ Emily Dickinson

"Ouch!" ~ Mrs. Palsgraff

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