girl ipsa loquitur

Long Time, No See...

2007-09-23T09:56:00.000-07:00

Hello!

I have absolutely no cause to believe that there is a single former Girl Ipsa enthusiast remaining in cyber-space. However, Biggest Fan [Girl Ipsa's Dad] is probably lurking around somewhere so I intend to dust off my key board and tell you what I think, tempered only by the fact that the California Bar Association found me worthy of a number, so I have to live up to that. That and I now have to actually work for a living.

Don't go away. We'll be right back.

Tyranny Creeps

2005-12-26T11:55:00.000-08:00

Check out this article Warrantless Wiretapping and YOU! In the absense of time --- or spare brain capacity --- to tell you what I think about this I will just ask you to clink that link and tell me what you think.

This is probably my favorite part:

These "legal" explanations are also invariably accompanied by an insistence that everything the Administration is doing is a necessary component of the amorphous war on terror, and that the American people can and should trust their President to do the right thing. But this argument simply can't justify the Executive's usurpation of power: After all, America has faced crises before without deciding to revert to monarchy.

We have faced crises before without reverting to monarchy. Tyranny creeps.

Unhappy Animal Right Activists Come From California... PETA, Cows & Sovereign Immunity

2005-06-09T08:45:00.000-07:00

"Happy Cows ", as the advertisement goes, "Come from California." This is what the Milk Producers Advisory Board would like us to believe because they want us to buy California dairy products; mainly "Great Cheese". This is not a public service announcement, kids, telling us just how nice it is here in sunny California for our happy bovine friends. It's an AD.

So, as you can imagine, People for the Ethical Treatment of Animals (The ACLU of the animal realm) has a problem with this and they've filed suit in San Francisco County Superior Court, alleging that the MPAB's "Happy Cows" advertising campaign is false and misleading. "Far from enjoying the idyllic existence depicted in the ads, PETA's suit charged, most California dairy cows spend their lives in dry dirt lots while being repeatedly impregnated and then eventually slaughtered." (Please see linked article)

How happy, in reality, do you suppose these cows to be?

Apparently, though, the issue in the case did not turn on whether or not the cows are happy but rather on whether or not the MPAB is a "person" within the meaning of the law. It's a public entity and not a natural person, nor a corporation, nor a firm, partnership, joint stock company, association or other organization of persons.

Apparently, it's a sovereign.

PETA has suggested that the only reason to exempt MPAB from operation of this law is to protect it from interference with the exercise of its sovereign powers. This makes pretty good sense, right? Since when is it within the sovereign power to engage in unfair business practices?

However, the panel of the California 1st District Court of Appeal disagreed with PETAs contention that this advertisement fell outside the scope of sovereign powers.

"[W]e have no hesitancy in concluding there would indeed be an 'infringement of sovereign power' for the [board] to be subject to suit under the [unfair-competition law] for the content of one of its promotional campaigns," the panel said.

Hello?

I am just a lowly law student but I have to wonder; is this the correct test? The infringement of sovereign power test? And if so, I must ask... Shouldn't we apply it to Executive Power as well? (I think that having to defend a tort law suit while also sitting as president probably counts as interference)

If the application of sovereign immunity is appropriate any time the contemplated action might be an 'infringement of sovereign power', then it's difficult to imagine when we might be able to curtail the wrongful acts of the sovereign. Let's assume, for the purposes of this argument, that the "Happy Cows" campaign would be unlawful if it were offered by corporate cheese producer Cheddars R Us. In this hypothetical PETA would prevail, the advertisement would be enjoined and Cheddars would have to get a new ad campaign.

But the exact same advertisement, although unlawful when produced by Cheddar, would remain "at large", deceiving the public-- not because it was an essential part of the operation of the sovereign but because It's Good To Be The King. The test, as articulated by the panel of the California 1st District Court of Appeal boils down to "If it will bother the King then we will not allow it, no matter whether the King was right or wrong or engaged in important King activities". How, otherwise, does enjoining the unfair ad infringe on sovereign power?

And since when is acting like a private market participant even within the sovereign power?

As a Monday morning quarterback, I wonder if PETA failed to properly frame the issue. The question ought to be whether or not engaging in deceptive advertising is a sovereign power at all.

And in light of this decision I have a promotional suggestion for Pakistan (In conjunction with Nike but we'll use the sovereign state primarily) ~

Soccer Balls come from "Happy Kids" and Happy Kids come from PAKISTAN!

While we're at it, let's hit chocolate & cigarettes as well.

Here's a HEADLINE: Philip Morris to Research Smoking Dangers Why am I not more excited?

2005-04-15T19:45:00.000-07:00

This should be some good news for those wacky anti-smoking zealots. And I really tried to feel optimistic about it. However, 10 years of concerted effort on the part of Philip Morris USA has not resulted in any appreciable "hazard-reduction" so call me crazy but I'm not holding my breath. (Holding my breath! Get it?)

"Over the past decade, Philip Morris USA has dedicated significant resources toward scientific research, new product development and commercialization [sic] which might help address the harm caused by smoking," John R. Nelson, Philip Morris president of operations and technology. "This center is another step in that effort."

"new product development and commercialization"?!? Is it just me or is this laughable? Tell me how new product development is going to address the harm caused by smoking? You will say, wait just a darn minute, Ms. Ipsa! We can think of some helpful products. So can I, friends, so can I.

Here, in a totally gratuitous and altruistic attempt to assist mega-gigantic-yet-so-far-totally-ineffectual-evil-corporation in their effort to improve the dangers of smoking, are some helpful new products ideas.

The Smoking Isolation Helmet

If you find yourself both a helpless addict AND an unwitting contributor to the second-hand smoke related illnesses of loved ones this product is for you. This light weight, yet air tight helmet system offers all the benefits of smoking, as well as all the detriment, to the wearer alone. It's your own "Smoking Section", take it anywhere for smoking pleasure without all the annoying coughing and gagging from your seat mates. Simply insert the lit cigarette into the self-contained safety** chamber and inhale delightful and refreshing ciga-air, unadulterated by that unhealthful smog and allergen infested fresh air others breathe.

The Negative Reinforcement Pack

Each pack contains specially created Negative Reinforcement Cigarettes (NRCs), designed to explode when lit. The consumer receives a double benefit: Each NRC represents a short term 100% reduction in inhaled toxins since it is impossible to successfully smoke the NRC; and the flinchy fear of explosion might cause the consumer to light up less often creating a long term reduction as well. Additionally, many users of the NRC pack require treatment in emergency rooms which generally prohibit smoking creating a potential collateral gain of 6 - 12 hours in a smoke free environment with each use. The benefits are not to the consumer alone. The manufacturer also gains because it will continue to sell the same number of packs of cigarettes and suffer no loss in profit. Its a Win-Win, yeah!

Nasty Taste Paint & Stain

This handy little product allows the consumer to paint a vile tasting, staining substance onto each cigarette. It stains the lips, teeth and fingers of the smoker to an unappealing yellow-brown-nicotine color thereby discouraging the smoker from lighting up. It makes the consumers breath, hair and clothing smell revolting as well. The deterrent effect is questionable though since the results so closely resemble regular smoking and apparently that hasn't deterred smokers yet.

I don't think its likely my ideas will catch on. I don't think Philip Morris really wants to deter smoking. Although the days of pure caveat emptor are clearly behind us, I wonder how we can justify continuing to allow the production and marketing of a such a deadly product? The warnings are inadequate to deter the majority of first time smokers who just happen to be invincible, bullet-proof and immortal. This particular group is hard to deter. Which brings to mind my last helpful deterrent idea:

The $25.00 pack of cigarettes. Here's a plan we can put in place without any expensive research at all. And you can bet a cigarette just got harder to bum.

**Safety, as used in every aspect of this helpful proposal, is not intended to mean actual safety or to even imply safety-like qualities. Its is merely an illustration of a possible construction of the implicated result we would like you to presume we intended when we wrote the advertising information associated with this product which may or may not include actual safety. Your results may vary.

A Rule Unused is a Useless Rule ~ a new friend, process vs. result and trans-sexual fatherhood

2005-03-08T10:58:00.000-08:00

I recently had a conversation with a new friend, who possesses the spectacular quality of not thinking just like me! Imagine that. Someone with a different point of view. We determined that he is very process oriented. Rather completely unlike Girl Ipsa who is an anal-retentive-goal-oriented-control-freak, but we knew that already.

So, we're talking about interesting legal stuff and the "Ten Commandments in Court" issue arises. We boil it down to the idea that there is a technically correct bit and a technically incorrect bit but the vast majority of the matter is just "who cares"? My friend is not a law student. In fact, if he were a law student he might spontaneously burst into flames. I know this because this is the question he posed: "If it doesn't matter, really, then why don't they just leave well enough alone?"

A question like this is the antithesis of the legal process. We like details. We like minutiae. WE LIKE RULES. What good is a rule if you can not invoke it! And this particular issue stands firmly on a constitutional rule, no less. A rule from the constitution! This is not just any rule. This is the super supreme rule of all rules... Well, you can imagine in what ways my friend and I must differ. and in what ways legal study would torture my artistic, process loving friend.

In an honest attempt to answer his question I responded in the only way possible by saying "Why, because it is the technically correct RESULT."

Meaning, of course, that a rule unused is a useless rule.

Friends of Girl Ipsa know where I stand on this particular issue. A giant multi-ton concrete edifice, boldly emblazoned with the Ten Commandments** has no business in our court houses. Nor does the tastefully rendered-on-parchment Ten Commandments. Nor the collector plate lovingly painted with Jesus and a lamb and the Ten Commandments spelled out in fluffy clouds... Technically we ought to slap some separation in there.

But new friend wonders why anyone even bothers to complain, not really valuing the technicality. And I have to wonder with him as I read about this whole trans-sexual fatherhood quagmire.

There are dozens of interesting things going on in this case. Scientific stuff, social stuff, expert evidence stuff and lots of legal stuff. But the part I am interested in today is the technical correctness of the decision. To my mind, a man has been denied his parental rights to his 7 year old child -- on a technicality. (Or several technicalities if you wanna get specific)

The wife/mother (Jennifer Simmons) married this guy knowing exactly what he was. She chose to have a child with him and explicitly, by written contract, affirmed his rights as father and his obligations as father. She then went ahead and had the child and spent 7 years raising her with this man as her dad. Now, all of a sudden because mom's changed her mind, she is asserting technical defenses to his fatherhood.

He is not biologically a father since he has no testicles and could never have impregnated a woman. However, there are teaming hordes of men who can not impregnate their wives. This alone had never been a basis on which to deny them parental rights. Can you see it?

"Well, Mr. Jones. The court sees that you were married to the biological mother, held her hand while she was artificially inseminated, wiped her tears when she cried each time it didn't "take", held her hair while she vomited for 6 months straight, got out of bed at 2 in the morning to go get ice cream and wasabi, suffered a shoulder dis-location while helping her push that baby out, took 4 weeks off of work to help, got up a dozen times a night to wipe milk spit-up and change diapers, sat in the emergency room for 16 hours while the fever was lowered, taught that kid to ride a bike, read a book and change the oil in the car... However, you are not biologically his father and therefore you have no rights whatsoever. Better luck next time. Maybe you should try cloning?"

It's ridiculous. So what's left? Well, there is a presumption of fatherhood of any child conceived during marriage. That should offer our hapless parent some protection, right? But this is where another technicality rears its ugly head.

Mom says "Sure, but since you are biologically a woman then we had a gay marriage and that's not legal so we had no marriage and tough luck to you!"

Interesting that when she was happy with her man she didn't let that whole biological-gay-illegal thing stand in the way. Back when she loved him she was fine with his interesting gender. Back when she wanted him to be financially responsible for her child she was fine with his gender. But now that she'd rather get on with out him it all becomes of the highest importance. And she is using all these technicalities to deny him his child.

A rule unused is a useless rule.

Girl Ipsa is distressed. On the one hand I am a by-the-book girl. But on the other hand somethings just speak for themselves. For instance, it's wrong to tell a seven year old child that she no longer has a daddy because mommy is technically correct (and pissed off) . Further, it's wrong for the social movement against gay marriage, homosexual relationships and all those scary "gender disorders" to harm children in the name of protecting them.

The court in this case may be technically correct. Jennifer Simmons may be technically correct. But I hope they are ashamed of themselves.

**I capitalize Ten Commandments out of respect for theology, not grammar.

Life! Girl Ipsa suggests that we've been asking the wrong question all along...

2005-02-21T08:40:00.000-08:00

This issue has been right in the front of my brain for a long time now. After all, I am a woman, a mother, an intelligent person, and a member of humanity all of which implicate a desire to satisfactorily resolve the question of

"When does life begin?"

Last week in constitutional law class we briefed and discussed both Roe vs. Wade and Planned Parenthood vs. Casey (its more recent progeny). Both of these decisions refuse to answer our question. They couch the issue in terms of "Potential Life" and then decline to issue an ultimate answer, a finite point, at which we will all say "Yep! That's life alright." We just suffice it to say that the state retains an interest in the protection of potential life. **

Potential life... Girl Ipsa has already suggested (The Pope and learned scientists all concur) that ALL GAMETES ARE POTENTIAL LIFE. Lets just face the fact that technologically all CELLS may be potential life. With the advancement of cloning, your fingernail clippings are potential life. Anything that contains DNA. The cells naturally sloughed from the inside of your cheek and contained in spit have the potential to be cloned into a new human life. Does George Bush imagine a day when we will work hard to protect ALL POTENTIAL LIFE? I honestly do not know what he would think of that idea but I must imagine that he would find it just as laughable as I do.

When life begins is not that hard a question to answer. Both sides of the abortion debate hesitate to answer it, though, since it will most likely create a bright line of demarcation. A nice, dark, clear line which on one side allows folks to do whatever they want with what is not yet life and on the other side effectively precludes doing anything but buying diapers and starting a college fund.

Isn't this the ultimate situation where our own dislike of the result works to change the process? To change the answer. To change the path we take in order to get where we want to end up and to hell with the plain simple fact of the matter that life begins when sperm meets egg and cell division starts?

I think we're asking the wrong question. (Think for a bit about what the correct question might be...)

Here is an interesting article about scientists putting a lot of effort into "technically" protecting life. I am excited about the idea of compromise, some point where we can feel alright with ourselves morally while still gaining all the advantage and knowledge and progress we can from science. However, to be honest, isn't this just technically better than another option? Do we really prefer creating a fetus which could never become a person to stopping one from becoming a person in the first place? What is the actual difference in the end? We're splitting hairs with this kind of distinction. To my mind we're wasting time as well.

Then I am left to wonder since when do we care what the U.N. thinks anyway? Really. Is the current administration going to praise the U.N. for calling for a ban on cloning? Does this some how make the U.N. relevant again? I'm sorry for my confusion. I just can not keep up with when they are relevant and when they are irrelevant and when we care what what they think.

Back to the question. Have you been pondering the correct question? Or the more correct question? I have a suggestion, friends. It's just a suggestion but think about it.

The question is not when does life begin but rather when will we protect life. At what point do we, as a society, assign individual rights requiring protection to a life?

Obviously, as the mother of an unborn fetus, I am allowed to protect it from harm and to vindicate its rights from the moment of conception. No one may force me to abort it or to hand it over for medical experimentation. I can maintain a cause of action for its death or injury. And if you kill it with malice aforethought and without my consent, you can be prosecuted and punished for its murder.

Also obviously, once a baby is born we protect it. Society protects it even from its parents. It goes without saying that we protect persons individual rights, including those rights of the woman faced with an unwanted pregnancy. Clearly an adult woman is "human life" beyond mere potential...

So the question is really when will we begin to protect life, not when does life begin.

Keep in mind that we are discussing things here. We're thinking. We are formulating opinions based on factual information and thoughtful contemplation. Perhaps after that we'll start to suggest some answers but for today we're looking for the correct questions.

** I do not subscribe to the idea that these sorts of questions are meant for the United States Supreme Court to answer in any event. I do not think that a bunch of judges are better able to decide this than scientists and theologians and philosophers and parents and grandparents and doctors and priests and anyone but a bunch of old judges.

Anniversary~Remembering a murdered boy, a missed opportunity & questioning the system a bit...

2005-02-12T10:43:00.000-08:00

Today is the second anniversary of two significant events in my life. Three years ago today I almost met Justice Kennedy at the 100th anniversary celebration of the historic Riverside County Superior Courthouse. Friends of Girl Ipsa know that this would have been one of the greatest experiences of my life. Being the sort of legal geek that I am... How far behind can the title of "Supreme Court Justice Groupie" be? This was an opportunity that I am unlikely to be given again.

Dork and I had planned to go, coupled in our legal-geekness, together. So, I know what would of happened had I been there, one step behind or in front of Dork, since I know what happened to him. He spoke with Justice Kennedy, shook hands. Had exactly the experience I was hoping to have. It would of been mine as well. Had I been there. But I was not. Which leads me to the second event this day memorializes for me: The death of Jerel Cobbs.

Jerel was 15 years old when he died of a gun shot wound, in a dark and muddy vacant lot, a few yards from where my oldest daughter lay hiding from the man with a gun. Three years later I am still suffocated by tragedy, still made guilty by the thought "Thank God it was not my child." At this very moment my daughter is in the next room. I can touch her. I can speak to her. I can loan her my car so that she may go to the grave of her friend today to cry and leave him flowers. But always hand in hand with that is the knowledge that Jerel's father can not.

No situation I have experienced, no case I've studied, nothing I know of has ever so perfectly placed the competing interests of criminal defendants and society (The People who speak for the victim) in contrast. A boy is dead. He was bright and funny and filled with so much potential. Loved by his family and his friends. Loyal enough to run from safety and into harms way to retrieve his fallen friend. And no excuse or explanation will ever change the fact of his death. Nothing can bring him back. No I'm sorry. No plea of it was not my fault.

On the other side is the man with the gun who has not yet gone to trial. He is being treated in Patton Hospital for mental illness that a judge agrees has made him unable to assist in his own defense. The law is pretty clear on this. If you can not defend yourself, we will not try you. It is a basic tenant of a civilized system. Sanitized of all the details it is both rational and benign.

But in this case, I have to be honest and say, it pisses me off.

I am angry. Angry that the anniversary of Jerel's death (Murder) is passing, again, without any resolution for his family. For his father. For his friends. For my daughter. Another year has passed where the questions remain unanswered and the man with the gun goes on unpunished.

Another year without vindication for The People.

I don't know what the answer is. It's not right to try an incompetent defendant. It is not right to make Jerel's father wait and wait for some vindication, some conclusion, to the nightmare. But I am inclined to think (perhaps I am biased by my rage) that if neither choice is right then the hardship ought to fall on the man with the gun. He chose his actions. He should now suffer his consequences.

I hope to soon add another anniversary to my collection. The anniversary of his conviction. The anniversary of the final resolution.

Kiss your kids today. And take a moment to remember all the parents who no longer can.

Life, Cloning and Wrongful Death of a Zygote Girl Ipsa Weighs In...

2005-02-09T08:51:00.000-08:00

Can we talk? A couple of things are going on in the legal scene which I want to discuss with you. But I fear that you will be too polarized, too angry, to have a conversation. An exchange of ideas. I don't want to you to become an activist. I don't want you to adopt my thinking whole. I don't even want you to change your mind about anything. I just want you to think about it. (If you change your mind, well that's just a bonus!)

First up we have Human cloning . I know, I know. Fraught with danger this issue is (and Yoda I am). So, lets just take it slow. Do you know anyone with diabetes? There is some very exciting medical stuff on the horizon. Pancreatic cell transplants which will literally repair the problem making a former diabetic an actually healthy person again. Not a well treated diabetic person but a diabetes free person. This is nearly miraculous. Trouble is that it requires some research, some pre-miracle lab work, and some cloning. Oh crap. Cloning.

Therapeutic cloning is the creation of human embryos (zygotes or blastocysts** might be more correct) for the purpose of destroying them. They are not created to become babies so this purpose, this use, does not implicate all of the "Cloning People" issues (such as the uncertainty of health & the theological quagmire of will they have souls?). What it does implicate are the right to life issues raised in abortion and stem cell research. The argument is that the initial division of cells creates the possibility of viable human life and therefore it is wrong (evil, immoral) to destroy it for any purpose. (I am forced to point out that all gametes contain the potential for life but you rarely hear people calling for the protection of sperm)

On the other hand, therapeutic cloning is never done with a mom and a dad, no gametes at all! In fact, the cloning (by definition) is genetically singular in nature. The cell division occurs in the regular way but the genetic contribution to the blastocyst is from only one person -- that's why its a clone and not a regular embryo. This is medically useful since researchers can isolate certain diseases and genetic defects in order to better understand them and eventually treat or cure them. But the cloned embryo has a very different genesis than other embryos. It is literally created for the purpose of research and was never going to be anything but that.

The article linked here is about research into incurable muscle-wasting disease. The cloned embryos would be created with DNA from people with this disease. Therefore, the embryo will have this disease, providing researchers with defective nerve cells to compare to healthy nerve cells. In the end, the betterment of humanity is the goal. A treatment or a cure for the formerly incurable. But at what cost?

In a totally unrelated case we are introduced to another embryo (zygote**...). This one was whipped up in a petri dish with the intention that it one day be a person, a baby. Now its the subject of a wrongful death law suit because of its accidental destruction. A judge has ruled that the suit may continue, holding that the embryo is a human being. Obviously the parent/plaintiffs here are pleased. They want some sort of compensation for the loss of that little bit of possibility. I am sure that they are grieving, as well, since they have the desire to be parents and have lost an opportunity because of the negligence of a lab worker. I say an opportunity because there is nothing to suggest that they can not make another embryo.

What I find interesting in both of these cases is what the ultimate results of opposing the medical actions will be. Successful opposition to therapeutic cloning and stem cell research will not result in the increased birth of normal and healthy babies. Opposing stem cell research will not make women seeking abortions any less likely to abort their fetuses. It will only result in the entire waste of the fetus. Rather than contributing to our medical knowledge and consequently benefiting humanity as a whole through better treatment and cures, stopping stem cell research will only stop stem cell research. It won't save babies. It will only hurt people who stand to benefit from the research in the end. It HARMS life while failing to actually preserve life.

Also interesting is the effect that allowing a recovery for wrongful death in the fertility clinic case will be. The logical result is that either doctors will stop providing this type of service to would-be parents (in order to avoid exposure to a wrongful death liability) or that the cost of such services will sky rocket. In either event, the ability of fertility challenged parents to eventually give birth will be diminished. Fewer babies will be born. Again, life takes the blow here.

It begs the question: What are we really opposed to? And what price are we willing to pay to have our way in the end? If you oppose cloning, ask yourself why. Stem cell research? Why? In vitro-fertilization? Why? Drag yourself away from the easy answer and really give it a good shot.

I was asked the question in Constitutional Law class: When do you think life begins? and I answered it as honestly as I know how -- When sperm meets egg and the cell division starts. That's the beginning of life. But I think the question was wrong. It did not really address the issue, did it? The question is not when does life begin but, rather, when should we assign a protected status to life? When does a blastocyst, or an embryo or a fetus become an individual? There are countless places at which to draw this line. But I think we can all agree that once you are born you have crossed that line, you are worthy of protection, even if you are born with an incurable disease. Even if you are diabetic.

I don't think I've answered a single question here and I did not intend to. What I hoped was that you would think. Think about this. And perhaps we can replace some of our knee-jerk reactions with thoughtful considerations. Perhaps we can raise our eyes up and see the Big Picture, feeling a sense of amazement when science seeks to accomplish the miraculous by improving LIFE, saving LIFE, and protecting LIFE. Ultimately we have to balance the good and the bad in almost everything.

Let us weigh carefully.

*** The embryonic stage is long. It begins with initial cell division and ends at 8 weeks of development. There is a substantial difference between the early embryo and the late. One is a wad of cells, the other has a beating heart. To refer to both of these states as "embryo" is to confuse what we are really talking about. The embryo in the test-tube is a zygote, not even blastocyst since that stage begins on implantation and it can not yet have implanted...

Another Drunken Judge & I've Got a DEAL for Ohio

2005-02-08T13:10:00.000-08:00

Friends of Girl Ipsa know that I do not drink, smoke "weed", or generally engage in other mind altering activities unless you count reading my corporations cases on Nyquil. Friends also know that I intend to be a judge some day. Maybe even to achieve that lauded level of judicial accomplishment, a seat on a Supreme Court. (I do not say THE Supreme Court since I have not seen my grades yet and I fear the worst) I'll be happy with any Supreme Court, say for instance, Ohio's. As a former Buckeye, born and raised in that RED state, I think I could have a shot (and maybe even do a little BLUE work while I'm there!). If a seat opens up, that is. Hopefully we will have filled
Justice Alice Robie Resnick's seat before I am eligible.

Does this sound like something out of a television show? Supreme Court Justice is pulled over by the police on suspicion of drunk driving and then reminds the officer whose side she's on.

"My God, you know I decide all these cases in your favor. And my golly, look what you're doing to me."

That is some fairly unrealistic dialogue. Who will believe this gritty Law/Cop/Politics (Wednesdays at 9/8 central) show with cheesy dialogue like that?

It's a little know fact that judges are not subject to the laws of gravity and drunk driving (Namely, what ever can go wrong will injure an innocent person instead of the idiot driver). That is why its OK for them to drive drunk, OK for them to request special privileges such as being "let go" and not taking that sobriety test, and why they have no fear of pulling rank on an officer who is just doing his job. Judges have special cars and super powers. Drunk judges never hurt anyone.

Lets imagine for a moment what Justice Resnick would say to the mangled corpse occupant of the oncoming vehicle she's plowed into as a result of driving with a blood alcohol level nearly three times the legal limit?

"My God, you know I decide all these cases in your favor. I lock up drunks all the time. I've saved countless lives in the process. This is not that big a deal. It's just the one dead person. And my golly, look what you're doing to me. I am, after all, a judge."

There's some engaging dialogue.

So, I would like to say that I am surprised, but I'm not. And that is sad. It is a sad commentary on selfishness and self control. I have no respect for the drunk driver. None whatsoever. The risk to others (Mothers and children and people who are loved and needed and will be so sorely missed) is incalculable. And unjustifiable. However, Mrs. Resnick's** subsequent attempt to avoid responsibility for her own choices and actions is that much worse. She holds a position of respect and authority, a position which I envy, and she treats it like so much garbage. How dare she demand respect when she herself has none?

People of Ohio, I've got a deal for you. I will work diligently to meet each and every requirement, to earn your trust and your respect and to undertake the responsibilities of Supreme Court Justicehood with diligence and sobriety. I will begin this very moment and focus on that goal with singular purpose, devoting every spare moment to its accomplishment.

All I ask in return is that you throw that bum OUT.

**I decided that I would no longer respect Alice with the title Justice or Judge. I refrain from calling her "That drunken idiot" out of respect for myself.

Sarcasm Kills!

2005-02-04T08:33:00.000-08:00

An actress was shot to death during a robbery on a New York street. Apparently the fatal shot was in response to her query "What are you going to do? Shoot us?" Don't get me wrong, this is a tragedy. A woman is dead, mere children have been arrested in connection with this crime, lives are ruined. However, (This is my current favorite tool of legal analysis) one wonders what possessed the victim to respond in such a way. We see it on the television all the time, I guess, silly bravado in the face of life threatening situations. Is it possible that this constant exposure to unrealistic situations has damaged the brains and instincts of normal people? Or are we still able to differentiate between reality and "other" despite the lies conveyed to us every day?

Is it possible that this actress was more likely to respond with fatal sarcasm than the average person, unschooled in the craft of "acting"?

On a law school exam I know exactly how these facts play out. Robbery (at common law which is about all you learn in crimes) requires the use of force or fear. The issue raised is whether the mere possession of a gun is force because clearly there is no FEAR. On my exam hypothetical you do not need to wonder why the victim was not afraid, you need only recognize that her lack of fear negates an element of the crime of robbery and move on. This is the case with most law school exams where people engage in all manner of inexplicable behavior in order to raise interesting legal issues for the student to discuss. But those are exams! This is reality. Why wasn't she afraid?

I was talking with Dork the other day who relayed to me the story of a young man who had attended a public hanging (Execution) and returned home only to nearly kill another child by reenacting what he had seen. I do not recall the date of this event but the fact that it was a hanging and a boy was allowed to witness it seemed to indicate that it predates both violent video games and MTV. Obviously this was an event experienced in this boys life as reality. It was, in fact, ACTUAL REALITY. The man hanged did not merely "act" hanged and then stand up for a round of applause. Yet clearly this boy did not understand the ultimate consequence of hanging a person or he did not care. Either way we cannot blame it on the distortion force-fed him by not-yet-existing media.

And here is my last thought about this, which angers me too, since I am not generally an attorney for the defense type of girl. Before you cast your spears at me though, really consider it.

If the victim was so out of touch with the reality that guns will kill you, so unafraid that she challenged the robber with dripping sarcasm, isn't it possible that the shooter did not experience the encounter as reality either? Can we presume that criminals understand the ultimate result of events such as these but victims do not?

I see a defense argument lurking in the wings. Our basic understanding of the nature of things, such as life and death, has been so manipulated and skewed by television, movies and video games that the perpetrator of a crime such as this one cannot truly be held accountable for such an unforeseen and unlikely consequence. "Guns kill people? Are you sure? I just watched The Life Aquatic where Jeff Goldbloom was shot point blank directly in the chest and got up and ran away... Guns kill people? Really?"

Maybe we do not actually understand the nature of an act such as this until we've actually killed our first victim. Actually experienced reality for the first time.

Take heart! I do not see success for this line of reasoning, absent the unique circumstances of reality which reunite a popular black defendant, Johnny Cochran and the Simpson jury. How likely is that to happen? Maybe I should write the screenplay.

Law School SURVIVOR

2004-12-27T08:48:00.000-08:00

I think that the law school process is rather like the intern process for doctors. They try to kill you.

I have exams next week. I must survive them. If I do not survive them then I do not move onto the next level of

"Law School Survivor"

Where I can do battle with various other contestants and hopefully do not have to eat anything truly disgusting. Our tribal councils occur in the parking lot. Last episode someone actually broke down and cried. I sincerely hope that this is not a forecast of her eventual ejection from the show. I hope she hangs in there. I hope she kicks some ass.

On Christmas I was doing some evidence review with Number One Fan (I love you, dad) and two things caught my attention. The first is that Fan prefers his own rules of evidence as promulgated not by Congress or SCOTUS or any type of committee or even trained monkeys... he likes the rules as promulgated by channel 11. "Denny Crane" He loves Shatner on that new show "Boston Legal" and damn if I am not getting it all wrong when I use a federal rule instead of a "Crane" rule. (I am pretty sure that in the Crane rules you can shoot opposing counsel if you are pissed at him) So we discussed the idea that I would have to teach these interesting rules to my evidence prof so that he'll be able to read, let alone grade, my essay. I think I stand a pretty good shot at a 100 score. I have those Crane rules down!

Next I hear Fan saying "Don't worry about this, baby, you got this stuff down." Apparently I have the rules as promulgated by Gilbert's down. (Gilbert's is a series of law school outlines professionally published by some dude that was a former survivor... think of them as pre-show manuals for living through each episode and getting to the next tribal counsel) I am not sure how much stock I put in the Gilbert's/Fan "You got it down" stamp of approval placed on me...

SO! I am going to disappear into the library and not come out till I do, in fact, "Got it down".

I'll see you all on the other side.

~~I changed the title of this post. When I first started to write it Of Exams... seemed right. But now we all can tell that this title is far superior.~~

A Post in Which I Ponder Turtles & The Universe

2004-12-03T08:12:00.000-08:00

In our constitutional law class we have been engaged in discussion about where our laws flow from. The United States Constitution is the "supreme law of the land", it says so right in there with that supremacy clause. But the question remains? Says who?

The religious, or metaphysical, underpinnings of our laws are undeniable. This is one of the reasons that we are having such trouble, as a country, unweaving the religious-moral threads from the fabric of our laws. (I am not suggesting that we are required to do this, or even that it is desirable, only that we are engaged in that process to one extent or another right now)

For instance, when asked to articulate a rationale for the abolition of slavery, most people have no trouble. But when boiled down it all flows to the inherent wrongness or rightness of certain things, which seems to suggest that things are just wrong or right at some fundamental level which we accept with out question. That core principle just IS. We accept it and then build up on it but never bend down to look underneath. What holds that up?

There is a bit of lore which comes to mind and has been retold like this:

A well-known scientist (some say it was Bertrand Russell) once gave a public lecture on astronomy. He described how the earth orbits around the sun and how the sun, in turn, orbits around the center of a vast collection of stars called our galaxy.

At the end of the lecture, a little old lady at the back of the room got up and said: "What you have told us is rubbish. The world is really a flat plate supported on the back of a giant tortoise."

The scientist gave a superior smile before replying, "What is the tortoise standing on?"

"You're very clever, young man, very clever," said the old lady. "But it's turtles all the way down."

The world is balanced on the shell of a giant turtle. It is the turtle which holds us up (or Atlas, I suppose). And beneath that is the next turtle. And so on. Forever. Does it matter what you put in the place of the turtle?

I posited in class that the answer to this question (What is the basis of our law if not divine command?) is "It comes from us. From human beings. We decided. We commanded it and now we comply." This is very dissatisfactory. With this answer there isn't even a turtle. This answer leaves us suspended in space and standing on nothing!

If we are the ultimate basis of our own laws and our own morals and our own frameworks then we are like Wile E. Coyote when the Acme Rocket Shoes fail -- suspended in a moment of anti-gravity equilibrium between assent and plummet -- just waiting for the fall to begin. We can not hold our own selves up.

So, I don't believe that we will ever divorce ourselves from the supernatural explanations for what holds stuff up. Nor do I believe that we have to. We are clever, as a group, we humans. We will be able to strike a balance where we are (judicially speaking, our private lives are just that - private) making the right decisions and finding non-religious based reasons to support them. And the occasional interjection of inherent wrong or rightness, supported by divine command, will work to better us in the end. We abolished slavery not because it was wrong in the law, or wrong in fact, but because it was wrong inherently to deny the humanity of another human.

Also of interest to me is the boundary of this model, that each thing supports the next. It is very linear. Most things in the law are linear. History is linear. Even the creation story is linear. Yet there are no satisfactory stopping places in the linear model. That's why the turtles go all the way down. But down to where?

In celebration of this basic question I'd like to introduce you to I Zwicky 18 a Baby Galaxy. We stooped, for a moment to look underneath, but lets now stand and look out (I say OUT and not UP in rejection of the linear) to the universe. It is not linear. It is circular, orbital, spiraling and expanding ever outward. It is in a constant state of pushing out and pulling back in which each thing exerts such a force on the others that we all hold our own selves up.

Ponder that.

Peterson Verdict is In... Are There Pro-Choice vs. Pro-Life Implications?

2004-11-14T10:32:00.000-08:00

As frequent Girl Ipsa readers know, I try to write for everyone. Every day spent in law school is a day farther from being able to communicate with regular "non-brain-damaged" people. (This is one reason why my buddy, Dork, is so valuable to me. He is being brain damaged right along with me.) The Peterson case has apparently confused some of these normal folks. They wonder, as I would have once wondered;

How can we find Peterson guilty of first degree murder of a fetus and yet an elective abortion of the same fetus is not murder?

To answer this question we'll have to begin at the beginning... A time when the intentional killing of a fetus wasn't murder OR a time when Girl Ipsa sat in criminal law class filled with rage.

The case we studied involved a man who intentionally killed his wife's fetus by "stomping" it. He was angry that she had become pregnant by another man. He beat her violently and stomped on her abdomen while stating his intention to "stomp it out of you". Consequently, the fetus died and the state of California tried to convict this guy of murder.

Now, lets set our own personal and political views of abortion aside for a minute and just answer this question; Should this guy get punished for intentionally causing the death of this fetus? Almost everyone is going to say "You bet!" and those that don't need to examine their reasoning for a non-abortion related hook to hang their conclusion on. Outside the abortion framework, it's clear to everyone -- pro-life and pro-choice -- that what this dude did was wrong, intentional and murder. But it did not work out that way. (Cue Girl Ipsa's rage)

In that case, the prosecution was unsuccessful by definition. In common parlance murder is one person killing another. Sometimes it's a person killing something we love, like our dog. Just recently, in my house, it was the dog killing a plastic horse as in "Oh, no! Crash has murdered Roxy!!" But in the law murder is the unlawful killing of a human being with malice aforethought. Or it was.

You need all of these things -- 1) Unlawful, 2) Dead Human Being 3) Malice Aforethought -- to prove murder. At the time of this "stomping" case (Here in Cali) a fetus was not a human being. At common law, a fetus was not a human being. (!?!) In order to be a human being back then, you had to have taken a breath outside the womb. Until then you were something else, but not a human. Crazy, man!

Therefore the law provided no punishment to this evil baby stomper. And people were angry. So, the California legislature changed the law to read "Murder is the unlawful killing of a human being, or a fetus, with malice aforethought." WHEW! Now we can get those evil baby stompers. As we've already determined, no rational person will disagree that this is the right outcome.

Now, lets add in the abortion issue. (wince... Girl Ipsa is not a fan of fire bombing so please go easy on me) We're back to our question of what's the difference? With abortion you have a fetus, right? The statute says it's murder to kill a fetus. (It's an embryo until 8 weeks and after that it's a fetus) The easiest answer to this is the first element of murder ~ UNLAWFUL. For now abortion is lawful. So, it's not an unlawful act and that ends the murder inquiry right there. Same goes for execution of prisoners. In that case there is certainly an intentional killing of a human being. But we do not prosecute the warden because his act was lawful.

This is unsatisfying to those that think abortion should be unlawful. It seems like a technicality and, truth be told, it is a technicality. To differentiate between fetuses which are wanted by their mothers and fetuses which are unwanted is to make a false distinction. There are no differences between the fetuses, are there? Only differences between their mothers.

However, the competing interests are so polarized that to interject a designation, an absolute-for-all-purposes designation, of a fetus as a person or not is to declare war. Neither side is prepared to just concede. It is a satisfactory resolution, in a very moderate atmosphere, to agree for purposes of murder only. And we do all agree. What Scott Peterson has been convicted of is a crime and it should be punished. There is no reason to disagree if you do not have to worry that agreement will result in the loss of the personal right to choose abortion.

In the end, the analysis turns on the lawfulness of the act not the humanness of the fetus. This doesn't get either side of the abortion issue into the Winners Circle but it does get Scott Peterson behind bars, where he belongs. And perhaps, since we are in California, the next issue raised will be another lawful killing: Peterson's execution.

Pot Meet Kettle!

2004-11-13T10:22:00.000-08:00

As many friends of Girl Ipsa know, I aspire to the prosecutor's office. I know, there is a lot more money to be made in private practice, or so I'm told, but I have an ideal. I wanna lock the bad guys up! (Not a lot of that in a wills & trusts practice...)

So, you can see why this frosted me. According to AP news:

A prosecutor known for being "tough as nails" in drunken driving cases was charged with DUI after police said they stopped her with three children in her car.

This is truly the pot calling the kettle black.

And how many of you wanna bet that she tries to make a deal with the prosecution? She is contrite and remorseful! And only three times the legal limit!

I want to hold her to a higher standard. And you should, too. She knows. It's her job to punish people who do this idiotic thing. Should there be any question about her keeping that job? She should resign. And if she doesn't resign she should be fired. Period.

Then turn your attention to her kids. Three kids in the car with mommy who "was found to have a blood-alcohol level of 0.23 percent, nearly three times the legal limit in Florida for drivers, police said." Apparently, in Florida, this is occasionally charged as child neglect. Neglect. Girl Ipsa is once more incredulous. This isn't neglect, this is endangerment. (In fact, if I ruled the world, it'd be attempted murder... I'd add Criminal Stupidity of a Mother to the mens rea for murder which would extend to this and all incidents where the kids are left in cars to bake or left with drug addict abusive boyfriends)

What more can I say? This makes me angry. I think that you reach a certain point in life and you have to choose. Choose between your penchant for booze and your life as a prosecutor. As our first year torts prof so aptly said "Don't mix the bottle and the throttle". This was not just general good advice, although it was that, but a specific entreaty to us as law students to respect the position in society we sought to fill. We weren't even there yet. But he endeavored to instill in us a respect for the ideal, a respect for our colleagues. And a respect for ourselves.

The hypocrisy of this woman astounds me.

Don't ROCK That Boat!

2004-11-10T08:27:00.000-08:00

Jurors in the Scott Peterson murder trial, well at least a single juror, engaged in a little experiment on Monday. Or so defense attorney Geragos would like us to believe. This is good news for the defense. Jurors are not allowed to experiment and then start thinking about stuff that has not been properly presented to them as admissible and relevant evidence. To allow a jury to make a "boat rocking" experiment would clearly be error. Geragos has an appeal issue there. Good for him.

More interesting to me, though, is his half-hearted request for a mistrial. He didn't really want a mistrial. What he wanted was for the judge to allow him to show a video tape, made by the prosecution, depicting the impossibility of Scott being able to toss Lacy over board with out tipping the boat. Does anyone else see the problem with allowing this in?

Rather like giving OJ the glove and saying "Please make a non-selfserving attempt to put your hand effortlessly into that glove and show the jury that YOU'RE THE KILLER!"

Silly Prosecutor, Tricks are for defense attorneys!

There is no doubt in my mind that this proffered video tape would make it very clear to the jury that any attempt to throw a pregnant woman's dead body, carefully weighted with anchors, over the side of this particular boat would be sure to result in certain death to Scott. He could not possibly have done it! We have no doubt!! Now lets all go home.

But gosh. I must be cynical and a little biased in favor of the prosecution when I suggest that I could make a tape which shows Scott doing this act with EASE. Shows him hurling her body with one hand and drinking a Manhattan with the other, cell phone tucked against his ear so he can decide which show time he'll be able to catch a movie at later.

So, I'm not sure how much of an "experiment" this juror could have made, standing in a boat out of water, without a body to shove around. I say "Excellent try!" to Geragos, though, in his attempt to get his movie in. Really good try there. It will be an issue on appeal, should Peterson be convicted. He is facing the death penalty, kids. Even we members of Dark Forces on the side of the State (and the people, don't forget the people) prefer to err on the side of caution when it comes to sentencing people to death.

As long as we're on the subject of Dark Forces I'd like to thank everyone who went out to vote and helped Girl Ipsa defeat Prop 66 here in California. I'm still working hard, every day, to somehow avoid the first felony... Wish me luck!

The Old "She Oughta Be Flattered" Defense

2004-10-27T08:37:00.000-07:00

The Spice House is named as defendant in a law suit filed by actress Catherine Zeta-Jones. Kent Wallace, owner of The Spice House, is quoted by Reuters as saying "We are just shocked and bemused by this," Wallace says. "She is a big double-D and we are just B cups. She ought to pick on someone her own size."

The 'Pick on Someone Your Own Cup Size' defense is interesting. However, I like this one better. "She should have been flattered, as far as I'm concerned," Wallace said. This is reported by AP.

Now, it has been awhile since I was in first year torts class thinking about defamation, and it's possible that I just don't remember these defenses, but it is unlikely that they are going to persuade a judge to dismiss the case as Wallace hopes. Zeta-Jones seems to have a valid complaint. Imitation may be the highest form of flattery but can finding yourself pictured with half naked women in an ad for topless cabaret really be imitation? OH WAIT! Zeta-Jones was in a film, the subject of which involved cabaret, in which she starred as a cabaret performer... hmmmm. Perhaps The Spice House was engaging in imitation of a sort. Which begs the next question:

How can this also be true? "It was an image of a beautiful woman," Wallace said. "We had no idea it was Catherine Zeta-Jones." (Also reported by AP)

Hello? No idea it was a massive celebrity who starred as a racy cabaret singer in a wildly successful film? And speaking of imitation, the club now has a dancer billing herself as Katherine "TATA" Jones. I am going to apply the judicially created and also wildly successful DUH test to this:

In light of these obvious and apparent facts is it likely that Wallace is telling the truth about his ignorance of the subject of this photo of a fetching female face?
DUH.

Also, I am not certain who might be expected to actually be flattered by the unauthorized use of their image to promote topless dancing. Perhaps a dancer from a less popular cabaret club. Or a hooker. Or maybe Mrs. Wallace, Kent's mom. As long as were doling out flattery might as well spill some on the ones we love.

My point here, and I do have one, is that I think Kent should have spoken to an attorney before he spoke to the press. I imagine that he thinks he's funny. (Actually, he is kinda funny) But the law rarely, if ever, is going to favor the funnier party to a law suit. Otherwise, attorneys would be a lot more fun to hang out with. Had Kent called an attorney and asked "Should I tell the press that we are merely B cups, being attacked by a bully Double D, who shoulda been flattered in the first place?", the attorney may well have responded "That raises novel and complicated issues of tort law, evidence rules, constitutional principles, and maybe even some Warsaw Pact stuff. I'll need to research this, at my customary fee of $375. an hour and get back to you in 4 to 6 weeks." (It's good to be the lawyer)

Seriously, there are no treaty issues involved here. That's just silly. But I am thinking about evidence. The two issues raised are the use of Wallace's prior inconsistent statement as impeachment of his testimony at trial and his competence as a lay witness to express this opinion of Zeta-Jones' cup size.

If I were him, I'd seriously consider settlement. and I'd keep my day job.

"Are You a Good Witch or a Bad Witch?"

2004-10-23T09:51:00.000-07:00

We're not in Kansas anymore, Toto. But we don't have to go far to reach the Ohio Department of Rehabilitation and Corrections where our story begins...

This term the Supreme Court will consider 2 establishment clause cases. Thankfully, they have denied certiorari (isn't that a fun word? It means 'to be more fully informed' but to me it will always be a legal breath mint) to Judge Roy Moore's plea to be allowed to install 2 tons of religious indoctrination in "his" court room. I'm glad that they have not wasted their very valuable time telling Roy that he is a nut; Time better spent finding Roy's former Constitutional Law professor and figuring out how Roy managed to get through law school.

One case that they will consider involves the constitutionality of a federal statute that I have not now, and do not intend to ever, read. Here at Girl Ipsa we are concerned only with the interesting issue of

"Does the religious right realize that all their yammering about religious restrictions has opened the door to those pesky Wiccans?"

That's right. Roving bands of imprisoned witches, demanding their statutory rights to religious freedoms. Now, Wicca (whether you like it or not you cannot deny that it is by definition a religion) is a polytheistic pre-christian religion which seems to be mostly interested in nature. There are a few other, less than main stream, religions involved including Satanism. (Yikes! Would we ever consider entertaining Judge Moore's request to hang Satanic iconography in "his" court room?) It seems that the legislation, in an effort to protect the religious freedoms of some (could they be Christian?) has spilled over into the protection of these other (highly questionable!!) religions.

Well, it's all for one and one for all here. As free as you are to believe that God favors you, others are equally free to believe that God favors them or that there is no God to issue favor at all. The United States, however, does not get to tell us what it believes in terms of who God favors. Which is a pretty good rule. What in the world we we do if for some reason the United States decided to be Wiccan?

In this case, SCOTUS will decide if the will of the people, as enumerated by Congress in the Religious Land Use and Institutionalized Persons Act (RLUIPA) is constitutional. If they decide that it is, and therefore uphold the legislation, it will apply to Christians and Wiccans alike. On the other hand, if they find that it is violative of the Constitution then it will not protect Christians and Wiccans alike.

What I wonder is whether the Bible Bangers (Oh my goodness, that looks so derogatory but its also apropos) understood that they were advocating more religious freedom for witches when they lobbied congress for this law? And I wonder if they now regret it.

These issues may appear to be so simple on the surface, when decided from just one point of view. It is easy to sit in our homes and deride the Supreme Court for not thinking the same way that we think. However, religious beliefs are deeply personal. It is certainly not for me to select a religious belief for you. It is also not for a government, a school or Judge Moore to select a religion for you. Ultimately, these non-personal legal decisions made by a court have to come down to a balancing of interests: Yours, mine, the States and even those of Wiccans.

So? You are now wondering "Hey, Girl Ipsa! Are you a good witch or a bad witch?"

As I already admitted, I have not read the law... (Bad legal commentator!) so I can't tell you how I think the court will decide. And even if I could, I am likely to be wrong. Therefore, I will just wear these really neat sparkley shoes and hope that no one drops a house on me.

Cyber-Court ~ New, Thornier Evidence Issues & The Consultants to Go With Them

2004-09-25T08:39:00.000-07:00

Everyone seems to be excited about this new E-Courtroom concept. It's going to speed things up and make life so much easier for everyone... but it presents some evidentiary issues. (Remember, Girl Ipsa is now submerged in law school land where reality only rarely visits and then only to mock me.) For example, who prepares this cyber-evidence? Is it reviewed before its presentation to the jury? And how will we handle the tendency of "self-serving spin"?

In the linked article, Assistant U.S. Attorney Scott Schools says "There are more than 300 pieces of evidence in Basham's case." About three-fourth of the items can be shown to jurors on the video monitors, he said.

I would like to know what these more than 200 pieces of evidence are. What do they show and what are they introduced to prove? Photographs can be misleading. Angles and cropping can put a spin on reality, even without any other special effects. Imagine what you can do if you intend to spin.

Then there is the entirely collateral issue of mistake. (Read "mistake" in sarcastic quotes as in "Oh, sure that was a mistake") Will we have court room cyber-tech guys, employed by the state, to monitor and handle the cyber evidence? Or will each side prepare his own? It reminds me of high school and those AV guys. (Remember? The guys from the Audio-Visual department who were the only ones that could operate a VCR or slide projector?) Since I am being reminded... Here's a story:

Baby Brother, who was not really an AV guy but he had slide projector skills, got involved in a school-wide slide presentation of some sort. He determined (correctly, I can assure you) that the presentation, as intended, was dull and uninteresting. Therefore, he slightly altered the previously prepared slide presentation. He added one little slide to two entire trays of slides. The size of the slide, its percentage of the whole show, was de minimus. Its impact, however, was de maximus. The slide contained a picture of a fat naked woman, performing some sort of gravity defying act on a stripper pole. Prejudicial? You bet.

Now, I don't mean to say that this cyber-court idea will be amenable to these sorts of incursion. I am just not certain that it wont. Once things enter into cyber-space they become far more susceptible to manipulation. Some manipulations (angle & focus) more subtle than others (Oops! How'd that get there??). We've recently seen how infallible cyber-communications within the court can be when the Kobe Bryant trial was derailed by some erroneous e-mailing. Digital information leaking out of the court. Some type of mistake.

A second collateral issue is raised by the nature of evidence presented on a monitor. Regardless of the type of evidence it will all be flat and photographic in cyber-court. People by their nature tend to place more weight on certain things than on others. 'Seeing is believing' after all. I can predict that the manner in which evidence is digitized will become a huge pre-trial issue, perhaps even running into longer trials, by replacing old admission of evidence practices with new and thornier ones.

The old practices didn't seem so problematic to me. However, Schools disagrees. "The greatest timesaving feature is the evidence presentation system with the video monitors, Schools said. Before the system was installed, lawyers had to show evidence to witnesses, then carry it over to jurors, he said. "

At least with this practice we knew that the witness, the judge, opposing counsel and the jury all saw exactly the same thing. Once everybody has their own monitor the cyber-confusion possibility rears its ugly head. Who is to say that the witness is seeing what the jury is seeing what the judge has seen in pre-trial? Yikes!

Every rose has its thorn, kids. This idea looks lovely and fragrant on the outside but I think it's a thorny bloom. We'll just have to wait and see how these issues are resolved if and when they come up.

In the meanwhile this could spawn an entirely new industry: The Digital Evidence Consultant. More consultants do not bode well for the trial process. Consultants never simplify anything.

Fun With Evidence!

2004-09-18T08:30:00.000-07:00

Last time we were together, here at Girl Ipsa, we discussed the Godfather of all law school subjects; Constitutional law. Today we hit that geeky little brother; Evidence. Con law hangs around and keeps it's eye on evidence, as we shall see. But in the end, evidence is its own body of law with some interesting bits.

What I am finding, more and more each day, is that law school actually reconfigures your brain. I'd like to get a CAT scan to see if the changes are visible however I have no "before law school" exemplar of my brain to compare. Perhaps, you'd be wise to argue, Girl Ipsa has always been brain defected. For instance, to the everyday guy (Lets just use my Biggest Fan) the idea of not considering relevant evidence in a trial is tantamount to just telling lies.

Think of it this way: You have reason to believe that one of your kids has drawn on the wall with a sharpie marker. There are two who have motive, access to the weapon, were witnessed at the scene, and can not offer an alibi worth even listening to ("The cat somehow learned to hover 3 feet off the ground AND draw flowers?"). Each one points firmly at the other. The only piece of evidence you have which differentiates these two was illegally obtained. (Marker in the right color, looking a little battered from its recent mural work, stuffed under the mattress of defendant A) Now, here in Mommy Court justice is swift. All the defense objections of lack of probable cause and illegal search and seizure... OVER RULED!

But if it were in real court these issues would bear on the question of admissibility. Not relevance. Surely possession of the criminal instrumentality is relevant to the question of who used it. But sometimes relevant evidence is not admitted. Fan, with his every day guy brain, cares not for these rules. He just wants to know all the facts, admissible or not, so he can punish evil doers. (Note to NEW READERS: Fan is my Dad. I am familiar with the "justice is swift" brand of judicial parenting. A lot of time both defendants would get sentenced because even if we hadn't done this particular crime we had surely done others which went unpunished.) Fan is not a fan of the rules of evidence. But you know me, if it's a rule... well then I like it.

There are two HUGE cases going on in the news right now. Both of them bringing up evidence issues. First, the tragic Peterson trial. The jury was shown photos of Laci's autopsied body. Is this legally relevant evidence? Arguably the judge agreed that is was because I can not image that Mr. Geragos didn't object to its admission.

"Jurors winced and glanced away as they looked at photos of Laci Peterson's badly decomposed body cast in larger-than-life images on a white wall screen."

The question is whether the probative value of the evidence (it's tendency to make a fact more or less likely) is substantially outweighed by it's prejudicial effect. Jurors winced. That's prejudicial wincing. I would guess that the prosecution showed these photos in order to rebut Peterson's claims about how the body ended up in this condition. It was pulled apart, not cut apart. But did they have to be larger than life? Believe me, the prosecution was happy to put this evidence on.

Next we turn, with trepidation, to Michael Jackson and his sick-o criminal behavior. (Girl Ipsa will never sit on this jury 'cause I have a preconceived opinion regarding his guilt & small children of my own. Enough said.) This is our marker issue again, isn't it? Evidence obtained in contravention of Jackson's rights. I am going to hazard the guess that this evidence is relevant. Perhaps even damning. This is the sort of evidence which Fan wants to get his hands on. In this case no decision has been made yet regarding the admissibility of this evidence, only the contention that it was obtained illegally. Nevertheless, the rule is pretty clear:

Evidence obtained in contravention of the law or the defendants constitutional rights is inadmissible against him, no matter how relevant, probative or damning.

Why the heck would we have such a stupid rule? (I am channeling the voice of Fan and people like him every where) Good question.

The answer will illustrate my law school brain damage. We have this rule because it makes all the other rules matter. The 4th amendment right to be free from unreasonable searches and seizures would mean diddly squat if the state could just say "Oops, our bad." and prosecute with the evidence anyway. It is looking to the bigger picture-forest and ignoring the sleazy, disgusting and clearly guilty nature of the individual tree.

Here is my brain damage ~ If the operation of this rule means that Jackson is acquitted because this evidence is not admitted, I will say "The system works." Because my altered brain has learned to value the means over the ends. The conclusion that you reach is only as good as the path you took to get there. Convicting based upon "tainted" evidence is like cheating in a marathon.

I don't care if you crossed the finish line first if you took a cab to get there.

MPRE Confidential

2004-09-14T08:41:00.000-07:00

I have learned my MPRE results.

I passed.

I am tempted to leave this announcement at that... However, I must admit that I got a pretty mediocre grade. I am forced to admit this since I did all that bragging pre-test about how I was going to get a perfect grade. The powers of fate and karma got together to issue me a strong rebuke. At least they spared me a failure.

My scaled score was a 118. This was not low enough to incite schadenfreude in the other students. Nevertheless, I have spent some time pointing and laughing at myself...

Orbit of DANGER!

2004-09-11T20:16:00.000-07:00

Warning... The following post is a little more law school inclined than most others. You can mitigate the confusion by simply enrolling in law school and attending torts class until you've learned all there is to know about the Palsgraf decision. Or you can clink the link and read it yourself (It's quick, I promise). Or you can just believe me when I tell you how this stuff is and go from there...

Today, while slogging my way through the remarkably dull subject of corporations, I was pleased to get a case authored by New York Court of Appeals (that's their supreme court level tribunal for some reason called appeals... N.Y. just has to be different) Chief Justice Cardozo. I LOVE Cardozo. Lets not even worry about the law. Who cares about the rules when you're reading a Cardozo opinion you should be in it for the language. Let me give you an example:

"A trustee is held to something stricter than the morals of the marketplace. Not honesty alone, but the punctilio of an honor the most sensitive..."

Isn't that good stuff? How about this:

"He might steal a march on his comrade under cover of darkness and then hold the captured ground. Loyalty and comradeship are not so easily abjured..."

I love Cardozo. He said this stuff in my corporations case book. Imagine how fun he was in torts.

So now, for your entertainment, I will travel back in time to first year torts and the legendary case of the hapless Mrs. Palsgraf (Quoted hilariously below). In this opinion, also authored by Benjamin Cardozo, we are first treated to the "Orbit Of Danger" (!GASP!)

Doesn't that sound like a carnival ride? Or some kind of cursed geographical location like the Bermuda triangle? Nope. It's nothing so interesting and death defying as a drunken carny assembled contraption. (Although such a contraption would have its own orbit of danger... Is it foreseeable that a carelessly assembled 5 story carny roller coaster might injure someone? Well, DUH.) The orbit of danger is just a fun way to say "You should of seen it coming."

I like to imagine that Ben put a lot of thought into his choice of words for the Palsgraf opinion. He knew he was going to have to contend with that bleeding heart Andrews and his "joy to the world you owe a duty to every-stinking-body" dissent. I think Cardozo wanted to start a popular revolution in the risk assessment behavior of Americans.

Just think, instead of crying "Fore" or "Duck!" we would holler "Orbit of DANGER!" instead. We could design and manufacture, market and sell special tools to measure, mark and clearly delineate our own orbits of danger. Laser devices which measure out the likely distance our tortious behavior might travel. Different devices to detect the orbit of danger around others. That would have ROCKED. Bingo! No more foreseeability problems here. Just map out where that orbit of danger lies and then stay the heck out of it!

Turns out, though, that we are some what unimaginative and didn't catch right on. It's too bad really. Think of the boost to industry. I think it was Holmes who tried to do that same sort of thing once by imposing a duty on motorists to get out of their cars and look up and down the tracks for oncoming trains before crossing. That didn't work out so well either.

But a combination "Duty to Look-Orbit of Danger" detecting device? That would have been pure gold.

Self Evident?

2004-09-10T10:00:00.000-07:00

I am back in the law school saddle for what seems to be my best year yet! This years line-up is Constitutional Law, Evidence and (*sigh*) Corporations (you can't win 'em all).

Constitutional Law.

The God Father of all legal subjects, don't you think? Most Americans are at least passingly familiar with it. We all know that there is some pre-amble stuff, we get to say what we want, have a gun, remain silent, get an abortion, and engage in private, adult activities in our bedrooms. But, as intrepid students of the law, our con law prof thinks we ought to know more than this.

We begin at the beginning, Marbury v. Madison, (which is our first look at what will come to be known as "That darn Supreme Court making stuff up out of whole cloth!") and move along into the nebulous realm of "kinder and gentler" Socratic examination. Our prof, a federal judge, wants us to question. He wants us to be "intellectually honest" with ourselves. He wants us to think. Needless to say, I am beside myself with Christmas-morning-type joy at the very prospect. I could hardly sleep that night from all my intellectually honest thinking of questions.

Here, for your examination is one of those very thoughts:

I think that the use of the words "Self Evident" in the Declaration of Independence was a stroke of genius.

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

Our prof mentioned this language in an off-hand way and characterized it as skirting the issue. Rather like the idea that the writers weren't really sure what they wanted to say so they just went with "Well, isn't it obvious?" That's one way to look at it I guess, since we don't know certainly what was meant. I don't like that take, though. It's too accidental.

I prefer to think that the statement was intended to be enduring and relevant for hundreds of years, just like it's successor, The U.S. Constitution. Those things which are "unalienable" today may not resemble what the founders had in mind in 1776. Had they made a laundry list, instead of a just saying "There's a bunch and here are a few to give you the idea" ("among these are Life, Liberty and the pursuit of Happiness.") they may well have limited the relevance of their thinking. Dated it. Made it an anachronism today.

Instead, they left it to us to determine what is "self evident" in 2004. And what will be "self evident" in 2050. That was not a waffle or a wiggle or a lazy dodging of the issue. That was pure genius.

When we are thinking about the constitution and what it was meant to accomplish we have to put it in a context. The Declaration of Independence makes a really good place to start putting that context together. It enumerates what we thought was important, what we wanted to achieve and why. To think of it as just a casual, partially assembled half-a-thought... well, I am not going to do that. I may suffer for my pro-court, things keep changing, post-modernistic thinking next time I speak up in class. But my thinking will remain all of those things that my prof wants from me; Inquisitive, thoughtful and intellectually honest.

I know what you're thinking, "That was obvious, wasn't it?"

Free at Last?

2004-09-03T08:08:00.000-07:00

As I am sure you must know, unless you live in a cave with no outside contacts to the world (rather like Girl Ipsa without cable), the criminal charges against Kobe Bryant have been dismissed. He has to be relieved. After all, the threat to him now is just to his wallet, and not to his freedom to play basketball at Staples Center. Is this a good outcome? I'm really not sure how relieved the rest of us should be. I still think a trial was warranted, to sort the facts from the distortions...

I took a look at the civil case, filed by Jane Doe, against Kobe and found it rather disturbing. There are some practical differences between the criminal procedure and the civil procedure which warrant a closer look.

For instance, in a criminal case, the prosecution is not the representative of the victim but represents the people of the jurisdiction in which the crime occurred. The victim is just like any other witness in that case.

On the other hand, in a civil case, the victim becomes the plaintiff; a party to the lawsuit, represented by counsel. She is no longer merely a witness. The civil complaint process in federal court (as it is here) subjects the plaintiffs attorney to some fairly stringent rules regarding what may be alleged. This tends to lend merit to the truthfulness of the plaintiffs allegations. Under the Federal Rules of Civil Procedure, the attorneys can be sanctioned for any number of misdeeds (whether intended or not) and this would seem to compel the attorney to be certain that she** can prove what she assisted her client in alleging.

For instance, FRCP Rule 11 requires the attorney to attest to the truthfulness of the contentions and to the belief that they can be supported, by admissible evidence (I started evidence class last night and it has kicked my torrid affair with the law up a notch or two...), after the attorney has made a reasonable inquiry. It puts that responsibility on the attorney directly. It works like this:

The federal court says to the attorney "Hey, you better make sure that what you are telling me is going to be supported by evidence 'cause if your client is a liar, I'm gonna spank you good!"

A Rule 11 violation can be very bad news for the attorney. The court can make her pay all of the other sides fees and costs, can make her pay a punitive fine and can subject her to professional discipline which includes the possibility of suspension from practice or even (GASP!) disbarment.

Really makes you wonder what would possess Ms. Does attorneys to allege, on information and belief, after a reasonable inquiry, that they will be able to show:

"...Defendant Bryant has a history of attempting to commit similar acts of violent sexual assault on females he has just met and has thereby established a pattern and practice of such unlawful acts."

At the risk of a Rule 11 violation, 3 separate law firms have signed this allegation. That means that all those attorneys are pretty darn sure they can come up with evidence to prove that Bryant has tried to do this before. PROOF. I know it's just conjecture, but imagine along with me... What would prove such a fact?

So, there is my problem with this whole sad affair. We are left with only our imaginations to sort out what really happened. Notwithstanding Girl Ipsas being a newly minted Lakers fan, I am uncomfortable with the idea that Bryant has escaped culpability for a violent crime. On that other hand, though, it is no better resolution to leave a cloud of suspicion lingering over an innocent man. The criminal case outcome is unsatisfactory all the way around.

We are not done with this subject, intrepid reader, as I am certain there is more on the horizon. Dork (back in his proper seat, ready to fulfill his appointed duties) contends that this case will never get to trial either. But I hope it does. So we can see what PROOF the plaintiff has to offer.

Or, if there is no proof to offer, we can watch the federal court make 3 law firms go fetch a switch.

**I use the feminine pronoun because I am a "she" and I just like it better. It is totally discriminatory and I will not apologize to offended masculine pronouns but only say "Grow up.", it's just a word.

Activist Judge *DERAILED! by Judicial Application of ACTUAL Law

2004-08-31T08:00:00.000-07:00

I was surfing through the legal news this morning. Having some coffee, thinking about EVIDENCE -- class which I start on Thursday -- and contemplating a slew of civil law suits against Dave Matthews Band for battery when I noticed this interesting quote:

"We were on pins and needles on this one," said Gloria Feldt, president of Planned Parenthood Federation of America. "The judge was very aggressive in his questioning and very transparent in his articulation of his personal views on the matter. Fortunately, he chose to uphold the law."

It is printed in an article about the recent revocation of the Partial Birth Abortion Ban.

Let's start there; I do not want to discuss the partial birth abortion issue. Mainly because I believe that it is a medical issue at this point, I am not a doctor, I do not have all the necessary facts to even formulate an opinion AND it is beside my point here.

What I do want to discuss is this nonsense idea that U.S. District Judge Richard C. Casey chose to uphold the law. (I can see the bumper stickers now "It's a LAW not a choice!") How can any reasonable person continue to suggest that judges just make it up as they go along?

It has been a frequent assertion here at Girl Ipsa that "If you don't like what's going on then you need to change the law." Because the law is controlling. Not the judge and, much to my biggest Fan's chagrin, not the jury. Everything that goes on in a court room is constrained within the bounds of the law. My problem with Ms. Feldts statement is the implication that the judge might have decided it differently, based on his personal opinion.

That's poppycock.

Fan and I were talking about juries when he admitted (He was NOT read his Miranda rights and therefore I couldn't just pass summary judgment based on his confession and lock him in my garage) that he would NEVER follow the judges instruction if he sat on a jury. "You know, if the judge says 'You must reach such and such conclusion' or 'You must NOT consider the testimony I have stricken', I wouldn't listen to him. I'd just do what I wanted to do, or consider what I wanted to consider."

Talk about activist judges! Fan wants to be an activist juror.

Still, this plan of Fan tends to illuminate the idea that our system is susceptible to these random acts and opinions of its constituents. Jury nullification aside (which is not one vigilante juror like Fan) the legal process is fairly predictable on the LAW front. Obviously, the trier of fact has to make determinations as to truthfulness of testimony and as to the inferences to be drawn from evidence. Yet, even in that case the trier (judge or jury) is constrained to a reasonable standard and therefore can not just flip a coin or advance his own agenda with out regard to the reasonableness of his determination.

Apparently, in this case, U.S. District Judge Richard C. Casey holds some very strong, but still personal, opinions about the practice at issue. While to the every day guy, like our beloved Fan, the notion of deciding this case based upon the law and not on the personal sentiment of the decision maker may seem like a difficult thing to do, it is my assertion that it's just his job. The ability to remain objective, to apply the law, and to constrain ones own personal feelings are judicial skills that should, in practice, be well utilized by ALL judges.

I'd like to applaud Judge Casey for following the law, but that would be rather like applauding the bag boy at the grocery for putting my stuff in the bags. It's his job. Of course he did it.

That's what we pay him for.

** I specifically chose the word DERAILED because it's been popping up in connection with right wing conspiracy theorist rantings. Plus, it's a really fun visual: Judges in train cars, headed for some absurd, impermissible judicial legislative goal, careening off the tracks and bursting into flame. Next time they'll think twice!

Cultural Perspective

2004-08-28T09:43:00.000-07:00

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.