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.

I Don't Watch Porn but...

2004-08-27T07:41:00.000-07:00

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

You Bet, I'll Wager

2004-08-24T08:38:00.000-07:00

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

Serendipity

2004-08-23T14:38:00.000-07:00

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.

How to Lose Friends & NOT Influence People

2004-08-22T16:36:00.000-07:00

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.

Putting It Out There

2004-08-21T11:02:00.000-07:00

Here is an interesting editorial that ends with the plea to "put it out there". I am up to the challenge and request that you read it and pass it on.

My Biggest Fan and I have had this very argument. He rails that liberal judges make law while conservative judges interpret it. The idea that there exists an entire body of judge made law, all both legal and proper, was so counter intuitive to him that we ended the conversation right there.

And, I also love the title of this editorial... "Activist, Schmactivist". (This is something Dork would say, along with Good Little Jury Monkeys and LAKERS ROCK)

So, I, in a blatant failure to think a thought of my own today, offer you this rather clever thinking from a kindred soul.

FREE KOBE!

2004-08-19T07:55:00.000-07:00

Looks like the prosecution in the Kobe Bryant rape trial has run into a few snags. It seems clear that they know it. After all, they have asked for a continuance in light of some pretty exculpating evidence and the accuser has run into civil court faster than you can call "traveling". The case is falling apart. The question we should ask:

Is dismissal good for Kobe?

On the one hand, what defendant wouldn't take his get out of the possibility of jail free card and run? The potential sentence that Kobe faces is serious. Even just the fine is serious.

I had a little, personal taste of this recently. Someone I know was arrested for battery **. We'll just call him My Baby Brother. Well, Baby Brother did NOT commit battery. Baby Brother was merely in the wrong place at the wrong time with the wrong guy who was willing to lie to police. There was absolutely no evidence to support the charge. However, Baby Brother was not at all reassured by the lack of proof or obvious acquittal conclusion. Baby Brother was more interested in that $2,000. fine or 6 months in jail aspect. I can't blame him. It is a daunting possibility -- that a judge might decide that you need to go to jail and then, buddy, you go to jail.

So, Kobe is probably not going to demand a trial and insist that he be acquitted. VINDICATED. Because there is no sure thing. It is possible that something could happen, something screwy, which will land him in that jail cell. And that is a huge risk to take. I couldn't blame him if he took his dismissal and ran. But I wish he wouldn't.

I would like to see this go to trial. And I would like all the evidence to come out. And in the end, I would like to see justice done. A justice which includes closing the civil court door to a complainant who appears to have cooked up the entire accusation. With a flat dismissal, we may never know who is telling the truth.

This issue may be the first argument Dork and I ever had. Way back, in the very beginning of this case I was pretty staunchly in the victims camp. A defender of rape shield laws and advocate for protecting the "victim". Dork was just a hard core Lakers fan. (His argument has been paraphrased because he is not here to defend himself anyway) I recall asking "What would possess this woman to subject herself to public scorn and ridicule aside from being the victim of a legitimate crime?" I think Dork said "Lakers ROCK."

The moral of that story is we just don't know until we know. Which is why I would like to see Kobe insist on a trial. Insist that the prosecution marshall all their evidence against him and then blow it all away. I would like to see him walk out of the court room, not with the default "Dismissed" but with the hard fought "Acquitted".

Or better yet "Innocent".

**Baby Brother ended up at court but was not on the calendar, got a dismissal from an ADA that took 2 seconds to decide the charge was nonsense.

Quis Custodiet Ipsos Custodes?

2004-08-17T07:28:00.000-07:00

I am frankly a little stunned by Lauderdale County officials in Tennessee. Apparently they required a law suit and a federal judge to tell them that you can't throw people in jail for not paying debts. In a recent decision a federal court reminded Tennesee about the U.S. Constitution, with which they were only vaguely familiar before this decision. And the plaintiffs were awarded $1000.00 in damages. That is the interesting part, in my estimation. How did we decide that the blatant violation of a constitutional right is worth a grand?

This was a question that I entertained often in remedies class as well. I'll bet it comes up this year in constitutional law too. What is the remedy for the violation of an intangible right? Say the right to privacy? Or the right not to be thrown in jail because you can't pay court costs? Or, better yet, the right to be free from unreasonable searches and seizures?

From a societal standpoint, this is a tough question. Afterall, when the Tennessee government is required to pay this $1000. damage award, where does the money really come from? The people of Tennessee. On the other hand, if you are the person whos right was violated you place a higher value on it. Since it was YOURS.

In this particular case I am concerned that no one in this system bothered to point out the problem with jailing, and threatening jail time for, debtors. Is it really possible that all of the people who had to be involved in this conduct had no idea that they should not be doing it? Tennessee had outstanding warrants for the arrest of debtors dating back to 1997. That is a number of years where people were subjected to this without complaint. Do members of the general public need to understand their constitutional rights well enough to KNOW when to complain in order to be afforded any protection?

I think the burden of knowing the bounds of the law should fall on the government, here Tennessee, to assess its own practices. The government should be aware of what is, and is not, constitutionally permissible. The proper place for that responsibility lies with the powers that be.

However, in light of the obvious fact that Tennessee either could not or would not shoulder that responsibility, we have to ask ourselves Quis Custodiet Ipsos Custodes? (That posits: Who will guard the guards?) Isn't this the ultimate question of life, the universe and everything? (For those of you who recognise the words of Douglas Adams -- I miss him too)

With any kind of power comes responsibility. The power of a parent over a child, a teacher over a student or a government over the people it governs. If the folks weilding the power are irresponsible, its is the powerless who suffer.

There is no easy answer to this question. Ultimately it falls to the individual people who make up the government to maintain their own integrity and to people who understand the boundaries to hold the line. Sometimes you have to speak up for what is right, even if it's not your problem.

I think that the violation of a constitutional right is INVALUABLE. The mere lack of pecuniary loss, actual quantifiable harm, or damage does not render the violation harmless. Further, society as a whole suffers this harm each time an individual right is violated and it goes unchallenged, uncompensated and unremediated.

I know that this doesn't make it any easier to place a dollar figure on the right and say "It's worth this much exactly." What I hope is that this causes you to value these rights, for yourself and for others. Then the answer to our question, Quis Custodiet Ipsos Custodes, will be you and me.

We will guard the guards.

My Big Fat Greek Surveillance System

2004-08-11T08:50:00.000-07:00

If you are attending the games in Greece, get used to that creepy feeling that someone is watching you! They will be. Frankly, the implications for this type of security surveillance are staggering.

"It gathers images and audio from an electronic web of over 1,000 high-resolution and infrared cameras, 12 patrol boats, 4,000 vehicles, nine helicopters, a sensor-laden blimp and four mobile command centers."

Of course, not everyone affected by this system will be a tourist just in town for the games. I hear that a lot of people actually live in Greece full time. Understandably, some of them are upset.

So, I will add this little question to my list of Things to Think About once I have finished the MPRE; Whether or not the obvious intrusion into privacy and other various constitutional concerns raised by this type of technology is outweighed by the improved safety delivered... which can be foiled ONLY by speaking in pig Latin. Or, if you prefer, pig Farsi.

In the Interest of Truth & Justice

2004-08-03T08:48:00.000-07:00

I was chatting amiably with my biggest fan last night and I had to admit that my "Girl Ipsa Views Shared by Children Everywhere" post was a tad disingenuous. Truth be told (and we are all about Truth, Justice and the American Way here at Girl Ipsa) I am NOT proud of our cheeky little speech maker. If she were my child, precocious and well-spoken as she is, I would have been mortified to hear her disrespect the vice president in front of adults, let alone on national television.

Now, I know that this is not really a legal subject. I only shoe-horned the Cheney "F-Bomb" in because of the senate floor connection and that over riding respect for the institution approach. So, this post is just to clean-up the possible misconception I may have, inadvertently and accidentally, created by applauding Miss Wexler in a fit of "Go for the JOKE" journalistic short-sightedness. (Just try to top that sentence structure while composing your comment to this post)

I will now, for the record, publicly chastise the parents Wexler. It is wrong to use your 12 year old daughter to take pot shots at the Republicans while also standing with both feet squarely in the "We won't take cheap shots at the Republicans" democratic camp. What she said was funny. But if you wanted it said, you should of said it yourselves.

As for me, I hope to teach my daughters to have respect for the office's of president and vice president, to maintain a sense of decorum and propriety. I will expect this of them for the same reasons that I criticized Mr. Cheney. It is the least they can do. To have some respect.

This Lawsuit is My Lawsuit

2004-08-02T11:22:00.000-07:00

Trouble is brewing for the folks at Jib Jab, purveyors of the wildly funny animated movie titled "This Land". Apparently, the Jib Jab guys did not get permission to use Woody Guthrie's song, "This Land is Our Land" in their film. (I wonder why they didn't bother with that, but you can't unring a bell)

The owners of the song think its use in the film is a blatant copyright infringement and they want it to stop. Oh, and they'd like some money, too. On the other hand, the Jib Jab brothers say its a parody and since its a parody they are entitled to its use without license (1st amendment, freedom of speech blahdy blah blah blah).

As of right now, the grappling is taking place by mail. Pointed and firmly worded letters have been exchanged, but still just letters nonetheless. Beverly Hills attorney Paul V. LiCalsi writes a pretty good warning letter but the guys at Jib Jab just might hold their own. Responding is Fred von Lohmann with a fair rendition of both fair use and parody issues.

This is interesting stuff friendly readers! The stuff a good law exam is made of. We are asked to decide what the heck is a parody any way? (Or more specifically: What is meant by parody for purposes of the application of law to this set of particular facts?) I am in analysis heaven! Oh happy day.

But wait... this is NOT a law school exam. This is reality. And in reality, two very talented guys are going to have to expend some serious cash to defend their little movie. I'd like to see, at a minimum, the cranky kill-joys at Ludlow Music Inc. show some harm to their interests in the copy right before the threats start to fly. It's reasonable, in my opinion, to ask the Jib Jab guys to pay a fair licensing fee for the use of the song (plus interest to date if they want to be picky). Fair to ask them to pay for it like they should of to begin with. But in the absence of some damage to Ludlow, that should be all they get. No one is confused by this version and likely to buy Jib Jab's This Land thinking it's actually Woody Guthries. They are two different things. Clearly.

Perhaps it is my sincere love of this type of speech that makes me lean a little toward the Jib Jab camp. I agree that their film is parody not just of this particular election but also of the underlying unity theme of the original "This Land" song itself. (In the movie they have a native American Indian saying "This land was my land"... that should end the argument right there.)

So, I hope this does not go to court. Not because I fear failure for the parody argument but because I think it would be money wasted. and time. Lot's of wasted time. Time the guy's at Jib Jab could use to make another movie... maybe one about contentious copy right holders called "This Song is My Song".

The Old "Triple Dog Dare Ya" Defense

2004-07-31T07:56:00.000-07:00

Defense attorneys every where are heaving a sigh of relief today with the news of success for a novel, but age old, common law defense; HE TRIPLE DOG DARED ME!

Usually a successful defense will negate some element of the crime charged. Take Kobe Bryant, for instance. His defense team will try to show that his accuser actually consented to the encounter. If you have consent, then you can not have "without consent", and the crime has not been proved. But, with this newly recognized TDD defense, Kobe stands an excellent chance of prevailing. It might go something like this:

Kobe's attorney "Ladies and Gentlemen of the jury. The prosecution has shown that young, handsome and talented Mr. Bryant did in fact engage in unconsensual sexual conduct with that... woman. HOWEVER, they have shown no evidence whatsoever that he did not receive, just prior to the encounter, a Triple Dog Dare from team mate Luke Walton. What ever the culpability of Luke, also young and handsome and talented, we certainly can not blame Kobe for being unable to resist the Triple Dog Dare. As every Red Blooded American male knows, the Triple Dog Dare is, in fact, factually irresistible."

The Jury "No need to go on, Not guilty by reason of Triple Dog Dare."

Basketball fans everywhere "Did you see how Kobe kept his feet behind that three point line the entire time the jury was finding him not guilty?"

Ground Zero for the introduction of the TDD defense appears to involve Walmart, ladies thong underwear and a security camera. The charge was public indecency.

Lets assume, for purposes of our examination of this new defense, that two guys strolling through Walmart in ladies thong underwear is indecent (all you Panty Rights types pipe down now). Our defendants did stroll publicly in thongs, they were witnessed by concerned citizens and caught on video tape. This is a prosecutorial slam dunk! Yet...authorities say that they will not be prosecuted. Our perpetrators explain that they did it because the were Triple Dog Dared. Even in the face of all this incontrovertible evidence, prosecutors fear the TDD defense so much that they won't even try!

Not since the "Twinkie" defense has there been such a revolution in defense tactics and strategy. I don't know about you but this has me quite concerned for the criminal justice system. What jury could ever resist it? (Perhaps prosecutors can close their arguments by Triple Dog Daring the jury to find the defendant guilty. That is a Gordian knot of incomprehensible complexity.) And what does this portend for the future evolution of criminal defense?

Here are Girl Ipsa's predictions:

First the "Boys Will Be Boys" defense followed quickly by "The Girl Can't Help It".

Girl Ipsa Views Shared by Children Everywhere

2004-07-29T07:38:00.000-07:00

I am gratified this morning to hear about lovely little Ilana Wexler, a mere 12 year old girl, yet still keen enough to hold the very same opinion that I do...
Cheney needs a time out.

Coming Soon to a Dashboard Near You

2004-07-27T14:44:00.000-07:00

Let's talk a little bit about murder. Do you have any difficulty drawing the line between culpable conduct and tragic accident? There are shades of gray, to be sure, but this seems crystal clear to me.

Defendant was driving his truck and watching a movie as it played on a DVD screen on the dashboard. (At least this is what the prosecution contends and they seem to have it figured out) He crossed the line, smashed into an oncoming car (No one in the other car seems to have been watching a movie) and killed two human beings. Because he was distracted. By a movie.

To be fair and balanced (I am using this while I still can before Fox trademarks it and I have to get a new motto) I will mention that defendant says he was not watching a movie. The DVD player, the one on the dash there, was open but he wasn't watching a movie. Oh, yeah, he did wire it to bypass the safety so he could watch it while the truck ran but he wasn't watching it at this time. and when he told his X that he wasn't sure what had happened because he was watching a movie... that was just an unfortunate slip of the tongue since he was not watching a movie when this accident occurred. That's the end of my fair and balanced analysis because I am tired of this guy already.

At what point does distraction turn into a mens rea for murder? (For the non-legally inclined, mens rea is just a fancy lawyer word for state of mind) Is it really fair to call someone a murderer simply because they had a car accident? The answer is; It depends.

My torts prof was adamant that there are no accidents, only unintended consequences. The word accident is too nebulous for lawyers. We like it crisp and clean. Take murder. At common law murder is the unlawful killing of a human being with malice aforethought. There is no element mentioned in there that says anything about accidents. So, what we must be interested in is what this malice aforethought means in regard to accidents.

Obviously, if someone points a gun at you, screams "Die, mofo, die." and then fires point blank we can presume that he intended to kill you. That's murder. But what if someone points a gun at the sky and screams "Happy fourth of July!" and then fires? Is that murder if someone is hit by that bullet and ends up dead? How about driving a car on a street after drinking a 6 pack of Bud? While applying mascara? While text messaging your friends?

All of these behaviors create an appreciable and substantial risk of serious harm to others. The mere fact that you did not intend to kill anyone shouldn't change the outcome one bit. So long as you intended the act that created the risk. If you watch movies while you drive and someone ends up dead, you deserve to be punished just like the guy that shoots his gun into the air. We all know that bullets kill people and we also know that cars kill people. In this case, two people.

Defendant here is most likely going to be convicted. The victims here are clearly going to stay dead. What I would like to know is why do we need dash board DVD players in the first place? I understand that they come with safety features so that they should only play when the vehicle is in park but I also understand this is pretty easy to bypass. What I don't understand is why we need them at all. Even if they are installed in the back, they serve to distract the drivers of other cars. (Have you ever been driving down the freeway, minding your own business, only to see porn playing on a screen in an adjacent car? Explain that to the kids.) Is there going to be any responsibility taken by the industry that pushes this unnecessary and dangerous crap into our cars?

If you do the risk vs. utility analysis of this product, you'll find it is inherently dangerous (Just like that family fun game Lawn Darts). Cardozo's fabled "orbit of danger" has at it's very center a DVD player and countless glassy eyed viewers.**

**I apologize to the uninitiated for the pure law school stuff.

Refuse 2 Recuse OR... More Fun with Legal Ethics!

2004-07-25T20:42:00.000-07:00

Included in my legal ethics education is judicial ethics, as embodied in the Code of Judicial Conduct. It is only going to be tested on 4 to 8 % of the MPRE (that's 2 - 4 questions) so it doesn't represent that big a deal for my exam. But it does have me thinking and I'll bet you can guess about what. That's right. Justice Scalia.

You know the flap** surrounding duck hunting with our veep. Some people think that Scalia should recuse himself. It looks a little hinkey for one of the justices hearing a case in which Cheney is a named party to also be an old hunting buddy of Cheney's.

The point is only partially the judges ability to actually be objective. The other part, possibly the bigger part, is the appearance of objectivity. Or the appearance of bias.

Judges, and lawyers for that matter, need to maintain the confidence of the public as well as the integrity of the legal process. The appearance of impropriety, even in the absence of any actual wrongdoing, can create distrust for the system and contempt for the process itself.

Justice Scalia may well be capable of total objectivity in this case. Nevertheless, his purported relationship with Cheney creates an appearance of bias which will, in turn, cloud the ultimate decision in the case. Right? After all, the Vice President of the United States is a pretty impressive friend to have (if you can stand the "F" word). But then again, so is a United States Supreme Court Justice a pretty impressive buddy. These are heavy weight names to be able to drop. ("This weekend? I'll be blasting the crap out of ducks with Dick Cheney.") It is this perception which should concern us. But how do we know that Scalia and Cheney are buds? Where did this perception come from in the first place?

And why has Scalia refused to recuse? I didn't really know. I decided to find out.

"The Sierra Club makes this motion because... damage [to the integrity of the system] is being done right now. As of today, 8 of the 10 newspapers with the largest circulation in the United states, 14 of the largest 20, and 20 of the 30 largest have called on Justice Scalia to step aside... Of equal import, there is no counter balance or controversy: not a single newspaper has argued against recusal."

This is part of what the Sierra Club had to say in it's motion for recusal. Does this seem a bit familiar to Girl Ipsa readers? The FLA has gone to work for the Sierra Club. Since when are newspaper editors in charge of the SCOTUS (Figure it out, it's easy)? Do the general public, or newspaper editors for that matter, even understand the process of recusal? The rules? The recusal inquiry must be "made from the perspective of a reasonable observer who is informed of all the surrounding facts and circumstances." Here, the newspaper reports of the FACTS are so wildly divergent that no one merely reading those can be said to be informed, let alone reasonably informed.

This entire controversy distressed me. I like the system. I worship the Justices. I was very unhappy with the idea that Justice Scalia, even though tending far more to the right than I generally do, was so willing to just ignore this appearance of impropriety and do whatever the hell he felt like. It just didn't seem right. Looks like I was guilty of gregariousness, huddling herd-like with the MOB, and casting aspersions thoughtlessly based on what a newspaper editor thought I needed to know. (slap me with a splintered gavel, I've been bad)

If there is damage being done to the system, it is being done by people like me, who should know better. There needs to be a balance in the commentary, and folks with more than a passing knowledge of how this stuff works need to speak up.

Justice Scalia does not believe that his impartiality can reasonably be questioned. Reasonably. REASONABLY. and he is right. It is unreasonable for people to gather their opinions from newspaper editorials, without a second thought. If Justice Scalia were to step down from this case he would be furthering this MOB culture of pre-digested opinions delivered right to your door step, email in-box, television or ears via radio waves. He would be blackmailed by popular opinion, no matter how incorrect or misinformed, into doing something which clearly should not be done.

"To expect judges to take account of political consequences - and to assess the high or low degree of them - is to ask judges to do precisely what they should not do."

This is a little part of what Justice Scalia had to say about this. You can read the rest for yourself. and you should.

** FLAP! That's funny.

A Rose by Any Other Name...

2004-07-24T22:00:00.000-07:00

Recently, the Supreme Court upheld the constitutionality of a law requiring persons to disclose their names to police officers when asked. The short story there was an arrest of a man for failure to disclose his name to police. He thought it was a little gulag ("We must see your Papers!") to be arrested for merely NOT telling his name. In the absence of some other probable cause to question him... I tend to agree. But the Supreme Court didn't agree.

I am all ready on record as not being a slippery slope girl but I go to school with some serious activists so I know the slippery slope line of reasoning. (Where will it all end? What's next? Who will stop the madness?) The argument here is that cops shouldn't just be asking people their names, since names are a lot like finger prints these days. Names are keys to unlock doors which lead to secret information. And the police should be required to have either Probable Cause (the holy grail of investigation) or at least Reasonable Articulable Suspicion (it's bratty little brother). Okay. That's not a bad place to draw the line. Think about it.

Picture this. You're standing around, minding your own business, when a police officer asks you your name. Feeling very AMERICAN (it's a free country) today you decide that it's not really any of her business **. You haven't done anything wrong and there is no reason to suspect that you have, so you say "I'd rather not say. Good day, Madam." You've just broken a law. (depending on what jurisdiction you're in) You can be arrested for this. Punished for it. For your pinko-commie non-compliance. Further, your failure to name yourself could arguably be considered Probable Cause to suspect you of something. Otherwise, why not tell? (Slippery slope fans jump on your sleds)

For the non-legally inclined I will mention that once you are lawfully arrested, here for failure to give your name, you can be lawfully searched without a shred of further probable cause. (We are speeding down the slope now, close to out of control. Who will stop the madness?)

On the other hand, fear that police will use this handy little law to shoe horn otherwise unconstitutional searches into the "Search Incident to Lawful Arrest" category is just more pinko propaganda, right? Well, I'm not so sure. Check out this little incident. This was not a tell us your name case but the principle is the same.

Guy gets spotted (read: Profiled as ILLEGAL) minding his owning business (read: Loitering) and ends up arrested. He doesn't want to give his name cause that will lead to discovering that he is breaking some serious immigration laws. So, to begin with, he lies about his name but eventually they figure out who he is and the jig is up.

When he finally ends up in court a very clever lawyer says "Hey, the whole stop and subsequent interrogation was unconstitutional and therefore you shouldn't be able to use his NAME which you got as a result of the unconstitutional "stop" in the first place." Generally, evidence obtained in violation of a persons rights is inadmissible against him. (We call that fruit of the poisonous tree) This rule discourages unconstitutional police behavior. But this rule does not apply to identity. No matter how egregious the violation that lead to the identification, the identification itself can not be suppressed. It may be poison fruit but it remains untainted. This stupid name law would mean it's not even poison fruit anymore.

What's to stop police from just asking EVERYBODY? "Hey, what's your name?" Once I have your name I can open up that secret stash of information. If you refuse to give me your name I can arrest you and then open up that secret stash in your pockets. Either way, I am fishing. No longer required to have probable cause or to even be able to articulate a suspicion. And the only thing that stands between me and you is my GOOD WORD that I am not going to just fish. Since I've got nothing to lose.

You may be tempted, like I once was, to say "Hello! I am not a criminal so why should I care what happens to criminals?" Let me remind you that you are not a criminal today, but tomorrow you may feel grumpy and not want to tell the nice officer your name. You might think that crazy Constitution was intended to protect you from getting questioned on the street for no good reason.

All I can say then is "Don't drop the soap."

** I use a lady officer so those of you that are bored can just think about chicks with hand cuffs.

Frogs

2004-07-24T12:10:00.000-07:00

"Tho' boys thro' stones at frogs in sport, the frogs do not die in sport, but in earnest."

Plutarch

This LAND!

2004-07-22T20:41:00.000-07:00

You have to check this out! It is one of the funniest things I've ever seen. This Land by JibJab! Wish I could make cartoons...

Need an Opinion? Just Use MINE

2004-07-21T08:31:00.000-07:00

Fox News is trying to trademark its "Fair and Balanced" motto. (If they are successful I plan to trademark my "I am the smartest girl in the universe" motto. We'll see how that goes ) Does this strike anyone else as a strange thing to trademark? I understand that they like the motto. But do they need to protect it from general use by others? I like to think that I am fair and balanced... Can I say that without infringing? It reminds me of Trump's catchy-phrase "You're Fired". He tried to trademark that baby, leaving millions of employers with a huge problem. How to fire that guy without saying "You're fired". (Double whammy = "After a fair and balanced evaluation you're fired")

A trademark is not necessary to adopt a motto. I guess Fox wants the trademark so Rush Limbaugh and Michael Savage can't start calling themselves "Fair and Balanced" as well. Which makes just about as much sense. Fox isn't fair and balanced. And all their labeling of themselves won't change that. The question is; Who believes that they are?

Apparently we do. Or we might. A petition was filed with the Federal Trade commission claiming that Fox News' use of the slogan "Fair and Balanced" constitutes deceptive advertising. Deception in advertising is a big deal. Unwary consumers have been afforded protection from unscrupulous merchants making wild claims about their products. Commercial advertisers have to be truthful for good reason. For instance, you can not market your new SUV as "More energy efficient than WALKING!" without some proof of the factual nature of the claim. You can't just make stuff up. (Put that Super Sugar Doughnut & Cookie cereal into a new box which says "Carb Free!"**)

Generally, this applies to stuff, not ideas or opinions, right? I predict that the political advocacy groups trying to stop Fox from using its slogan will have a tough time. After all Fox has no obligation to actually be fair and balanced. But those groups do have a point. Too frequently people hear "news" that's been spun and twisted and edited and targeted to suit the agenda of the reporting folks, only to take it as "Fair and Balanced". That's like letting parents judge the baby beauty contest. ("After fair and balanced consideration of all the entrants I am left with the obvious conclusion that MY baby is the most beautiful.")

Take, for instance, Michael Moore. A lot of people are peeved at him for being biased. Well, duh. He has an opinion. He'd like you to have have the same opinion. He attempts to persuade you. Do we know anyone else like this? We've mentioned two, but there are more. People (Personalities) selling opinions just like any other product.

Caveat Emptor, Dittoheads.

Whether or not the FTC has something to say about Fox's motto remains to be seen. Until then, I plan to formulate my own opinions based on as many facts as I can gather. If you're a busy person you're welcome to just adopt my opinions as they are clearly the correct (and Now Carb Free!) opinions to have.

** If you don't count the sugar

The Lowest Common Denominator

2004-07-20T08:41:00.000-07:00

I know it seems nutty but I am pretty peeved with the dictionary. (I do know that it's not entirely the dictionary's fault but you gotta blame someone) I looked up preventative (with that extra TA in there) in order to prove that this pronunciation was wrong. I was shocked to discover this (mis)pronunciation right in there with all the real words. True, the definition does say "see preventive" but it is given full actual word status just by listing it there in the first place.

Frequently new words get into the dictionary because they become so commonly used in our language that we have to acknowledge them. This is generally nic-names for things, slang, vernacular. (see: QWERTY) I don't mind this really. It is making up whole new words and there is some utility to that I guess. But I want to clearly distinguish that from lending legitimacy to a mispronunciation. Preventative does not have any new meaning, it just has a new syllable. I contend that the original word, the correct word, was up to the task of communicating the concept of preventive. It was not defective or even too tough to say. So why are we giving any legitimacy to it's ill formed clone?

Laziness.

To my mind, everything appears to be devolving. Every where you look there are examples of catering to the lowest common denominator. If the dictionary is not going to hold the line at actual words, then what will? The preventative entry seems to say "Well, you all insist on saying it this way so who are we to correct you?" Um... You're the damn dictionary. Get it straight please, so I can go back to being superior Ms. Language Girl. This does not bode well for scrabble, now does it?

I'll tell you what I foresee with a great sense of foreboding in the forefuture. (I know forefuture is not a word BUT it was a fun alliteration and everyone else is doing it so why can't I?) I am really worried about nuculer war. I'm not too sure if it's the same as nuclear war but it sounds sort of scary to me.

Give me a minute here to go paint my windows black, cover everything in duct tape and put on my protective clothing.

These counter measures are not to protect myself from nuculer war, but from the caustic fall out coming my way after I say this~ Why is it that the leader of the free world can not take a moment and learn to properly pronounce nuclear? It's right there in the arrangement of the letters. (The arrangement of the letters is the secret key)

Ok. I have to admit that I have no personal knowledge of the presidents IQ. Further, I have no "source" for this information that I can trust to adequately brief me on the presidents IQ. All I have to go on is what I hear and see on TV. I don't know the guy (Smart money says neither do you) but every time he opens his mouth and says nuculer I have to stifle a giggle. Come on! He sounds dumb as a stone.

As for me, I will continue to be mortified every time I mispronounce a word and there is a lot of that in my future since I'm learning a whole new language; LawLatin. (take a crack at certiorari and then you'll know why most of us just say cert) This may be my social undoing as well. Nobody likes an uptight language nazi. On the other hand, after this post, I'll have to contend with an upset spell checker as well. It doesn't understand nuculer either.

Join Arnold! or You're a GIRLY Man

2004-07-19T14:20:00.000-07:00

Some Democrats are upset today over our governors speech given on Saturday in which he called democratic legislators "Girly Men". Who wouldn't be upset? After all, what speaks more to your apparent manhood than fearless legislation in the face of criticism? Wait. Did I get that right? Or is it fearlessly Joining Arnold in the face of absurdity? I don't know. I am neither a man nor a legislator.

Here is the gist of the Dems complaint, as far as I was able to follow it. Calling someone a girly man is homophobic and misogynistic. Do we need to trace the history of the phrase "Girly Man" to discover that this spin is silly? It comes from Saturday Night Live. It addresses a lack of body-building physical perfection, not gender or sexual orientation. It's a joke on Arnold. If the term were addressed directly to a gay man then it would be a gay slur. But short of that, its just a catch phrase. No harm no foul -- at least on the Democrats. My advice is let it go. Because right now all the crying, whining democrats who want to make a huge discrimination issue out of this are just distracting from the real issue. Arnold is an idiot. (Oops, did I say that out loud?)

It is just another case of "The Democrats that Cried Wolf".

How can you expect to ever be taken seriously if you blow every, single, teeny thing into a federal case. (I love it that this "federal case" reference is in the common vernacular) Arnold's use of the phrase was ridiculous. But not because it's discriminatory. It was ridiculous because it has no logical place in intelligent debate. It is name calling, pure and simple. It is the course of last resort for bullies of all kinds. If you can't think of anything cogent to say just point and laugh.

Democratic law makers should have mentioned that. They should have said "Hey, Arnold! Have you run out of stuff to say? What's next? Where's the beef?" Instead, they've taken this rather nutty position of crying homophobia. It is just distracting from the vacuity of what Arnold said. (I call him Arnold not so much to show disrespect but because I can't spell his last name)

I am really tired of all of it anyway. What does being a girly man have to do with writing appropriate, thoughtful, useful legislation? Our government has turned into a high school macrocosm. Look who we voted to be class president? That most popular muscle-bound captain of the football team, Arnold. Did he ever tell us what qualified him to be the governor? Nope, he just said he'd do the stuff we'd all like done and smiled a lot.

This latest speech is just more of that. Look at how witty and popular I am! Able to make a joke on those democrats that has all my buddies laughing their butts off. Forgive me if I have misapprehended this but isn't the governor supposed to be actually doing something besides making us all feel superior and cracking jokes?

Every time we allow important business, like legislation for crying out loud, to be reduced to name calling, finger-pointing bickering we diminish it. We should endeavor to raise the bar, folks. To expect more, not less. I am disappointed that the Dems have stretched a stupid catch phrase so far out of proportion. Then again, I am always disappointed when people I would like to have some respect for dive into the dog pile and scrap with the less imaginative.

Next up, how language is headed for that lowest common denominator to join Arnold.

It Ain't Easy Being Green

2004-07-17T10:45:00.000-07:00

I learned a fascinating thing today. Phytoplankton control the weather.

Yes. I said that phytoplankton control the weather. I'll bet that you did not know that. and it's no wonder that you didn't. It seems a little far fetched.

Turns out that these plankton respond to ultraviolet rays from the sun by releasing compounds which form clouds. The clouds, in turn, protect the plankton from the sun. Are you as amazed by this as I am? Its astounding that something so small and seemingly so insignificant can have such a profound effect on this planet. On us.

Here's another piece of news, one a little less astounding. Phytoplankton do not have a powerful Washington lobby. There aren't D.C. plankton running around in DKNY suits and getting stuff done. The same can be said for the rain forests, endangered species and fertile top soil. All of these things are voiceless on their own.

The reason this plankton-cloud connection interests me is because it serves to illustrate two things. First, the apparent interconnected nature of seemingly disparate things. Second, my total lack of real understanding about this connection. I have been accused of being a tree-hugger (liberal left-wing bleeding-heart nature girl) in the past. I have been characterized as the sort of person who prefers a state of nature to the welfare of people. For instance, I was a little worked up when Mr. Bush came into office and started to undo all of the environmental policy put into place by the administration before him. However, this does not mean that I am a looney tune. It means that I can see the BIGGER PICTURE. The question is, can you?

Phytoplankton, apparently one of the most insignificant species on the planet, can have a profound effect on cloud formation. Clouds have a profound effect on the weather. The weather, in turn, has a profound effect on us. The desire to understand what the consequences of our acts will be before we engage in them seems clearly pro-human to me. If I don't understand what the heck plankton even do, how can I understand the impact of failing to protect plankton? A policy which suggests ACT first and worry about the consequences later is short sighted and, pardon me, stupid.

We have to focus on the bigger picture, to take into account the consequences of our environmental policy. Not just on the U.S., but on the planet and on the rest of the world. To dismiss the idea that a species of owl, or a stand of trees, or a bit of coral reef is significant is to ignore the fact that we just don't really know. It may be insignificant. Or it may be crucial to the balance of things here on earth. Crucial to our own well-being.

After all, who'd of thought plankton have anything to do with what SPF of sunscreen my grandchildren will have to wear?

"Designer" Juries

2004-07-16T08:00:00.000-07:00

A little trial went on in the media a while back, you may remember it, OJ's? That Chris Dardin was a sharp dresser but what's with Marsha Clark's hair? I think it's a problem when the parties (attorneys, witnesses, plaintiffs, etc. --Not the judge. The judge is always in black) in a court proceeding are more concerned about what to wear than what to say.

I don't like this state of affairs at all. I am not a sharp dresser. In fact, I'm a slob. I spent the entire first year of law school looking like a bag lady. What's more, I am genetically incapable of spending a bunch of money on clothes ~~ or shoes ~~ or a hair cut. How am I going to fair as a litigator? Not so well. That jury will take one look at me and determine that I can not possibly know what I'm talking about. "Look at her shoes!" (I have a pair of loafers I wear to court that my biggest fan thinks make me a lesbian, not look like a lesbian but actually mean I am a lesbian)

So, I don't like this designer jury idea any more than I like designer clothes. In my perfect world, the mere fact that I dislike it magically changes it. POOF! No more jury engineering, Diva does not like it. However, and sadly, I live in reality most of the time. Reality is what it is. Juries are what they are. Just every day folks, susceptible to the same stuff as the rest of us. They form first impressions and come with all sorts of pre-conceived notions. There is not a darn thing we can do about it.

I am not really sure how the whole designer jury thing works anyway. I mean, I've read Grisham's Runaway Jury, but that's the extent of my knowledge about how this stuff REALLY is. I gather that it's a step beyond acknowledging the reality that people (read - Jurors) like to look at other people they find attractive. Or prefer nice clothes. Or good hair. With the designer jury we try to package facts and testimony in very specific terms to appeal to individual jurors. That really seems to totally disregard the point of the jury, don't you think? They are supposed to be OBJECTIVE finders of fact. But if we make everything as SUBJECTIVELY appealing as we can, we've completely subverted the process. But what are you gonna do? Reality is reality.

Well, If you can't beat 'em, I say join 'em! Lets run with reality. How about national trials, American Idol style? Trials as reality TV. We'll just let all the viewers be jurors, they can phone in their verdicts. That way the parties can stick to a more general idea of what's attractive or popular, instead of getting so personally manipulative of individual jurors. Last Lawyer Standing! We'll vote the lawyers off as soon as they get bad hair cuts. Perhaps the attorneys can sing during closing arguments? Make costume changes during recesses. We'll see how good (or bad) the plaintiff looks in a swim suit. How far should we let this go?

My torts prof called juries "12 folks, good and true". There's nothing wrong with that. I think juries get it right most of the time. Even though few of us grew up longing to be jurors, most of us understand the importance of the function. Most of us have respect for the process, for the court and for the job. So, even if lawyers make their best subjective play for the sympathy of a jury, there is no guarantee that the jury will fall for it.

As for me, I am still in trouble either way. My basic slobness is going to be a stumbling block, difficult to overcome. But I have a plan to deal with this. I've decided to just to be a judge since I look GREAT in black.

Character Counts

2004-07-15T08:30:00.000-07:00

Do you recall that the Vice President of the United States told Sen. Leahy to "go f**k yourself" last month? Maybe I wouldn't have if I wasn't subjected to some damage control in the press, again, today.

The vice presidents wife (The Second Lady?) has called her husbands use of the F word "out of character". Its her assertion that he doesn't normally talk like this, that its really Sen. Leahy's fault (he was asking for it I guess) and that it was a private exchange. Private? He was on the Senate floor. With senators.

But lets just give her that. We'll just go ahead and believe that Mr. Cheney felt like he was having a private exchange. So what? Is it alright to curse others in private but not publicly?

It is about character. Not the character of being the sort of person who uses the F word. (I am required by integrity to admit here that I am a frequent user of that word) It's more about being the sort of person who is willing to apologize for having said something truly disrespectful, unprofessional and reprehensible. I am pretty certain that Mr. Cheney does use the F word. It is very rare that someone, who is not suffering from advanced Tourette syndrome, would blurt out a phrase they never use -- accidentally. Mrs. Cheney thinks he was "pushed to extremes". I think that "extreme" exposed his character, not the other way round.

But what has the Vice President had to say for himself? Only that he has no regrets about the outburst. Funny that I can regret it, but he doesn't.

Does it really matter though? I mean who cares what those folks on the Senate floor say to each other when they are feeling "private"? I do. I care. Because these people represent me. And I would like think that even if I was a regular user of the F word (even if?), I could still manage not to blurt it out on the Senate floor, for crying out loud! Is it wrong for me to expect a sense of propriety and decorum in my government?

I am currently engaged in the arduous process of becoming an attorney. All those law shows on TV aside, I am pretty sure that if I walked into a court of law and dropped the F bomb on opposing counsel that I would be in some seriously hot judicial water. No court is going to allow that kind of utter disrespect to go un-sanctioned. And that's the way it should be. We have to hold the line of civility and decent behavior some where. It's not held in the press. It's not held in our schools. People parade around with that word emblazoned on their shirts in public and you can buy it on hundreds of music CD's with out any extra effort. I think that the Senate floor ought to be F word free.

Don't get me wrong, Mr. Cheney has not fallen in my esteem because he knows the word. Nor has he fallen for having accidentally said it. He fell in my esteem for failing to apologize for the gross disrespect for both Sen. Leahy and for himself. For his disrespect of the position that he holds in this country. And for his disrespect of me.

I seem to recall (don't quote me on this) Laker's center Shaq using the same language to a referee last season. What was done about that? I am glad that at least the NBA recognizes that there are certain things you just don't say in polite company.

I'm Coming Out

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

At one point or another, we've all been in denial about some aspect of our lives. Dork pointed mine out for me. "You're bi-legal." he says. "Just admit it." I guess that's right. I do go both ways.

My former contracts prof (lets call him His Honor) thinks that I am disingenuous. I have the greatest level of respect for what His Honor thinks. So this assessment stings. Disingenuous? I thought I was bright and inquisitive. Further, I honestly believe that in order to really study the law you have to go both ways. Its an intellectual gymnastic routine that leaves you a well rounded student of the law and not just an empty talking-head, asserting opinions which you do not understand. Besides, what more satisfying endeavor can there be than to prevail in an argument when you know you had the weaker side? Every body loves it when the underdog wins.

So, I'll stand by my bi-legality. (I considered bi-legalism but this does not rise to the level of an ism. Its just an ality) I might even try to recruit a few people in my class. You'll recognize us by the rainbow colored scales of justice tattoos.

To serve a valid and necessary purpose in the law, you do not have to be the RIGHT guy or the innocent guy or the wounded guy. (As opposed to the WRONG guy or the evil guy or the committer of mayhem guy) Our adversarial system of justice has just left a lot of people with a bad taste in their mouths. It seems so focused on conflict that we've lost sight of the over riding principle involved.

TRUTH seeking.

Yep. That's the point of our courts of law. They are tribunals established with the ultimate purpose of finding out the truth. (Who killed Mr. Green in the conservatory with a candle stick?) Once we know the truth the rest is easy.

Its the manner in which we try to come to the truth that has tended to muddy the water. What we do is really the intellectual equivalent of boxing. With the judge as referee. (Picture court reporters in skimpy bikinis parading around with placards designating what point we are at in the trial)

Summary judgment is the civil TKO. It is a one-two punch that takes out the other guy before he even gets his fancy robe off. I guess the same can be said for the criminal plea bargain, but that's more like the other guy just conceding the match with out even stepping in the ring. If we get past opening argument then it is just one guy wailing away at the other until someone has hit someone hard (read- persuasively) enough to end the fight. This is the extent of my boxing knowledge so I'll end the metaphor here, but I am sure you get my meaning.

It's easy to lose sight of the ultimate goal. No, it's not winning. It's not The People prevailing over The Defendant. It's not The Defendant prevailing over The Man. It's certainly not the multi-millon dollar pot-at-the-end-of-the-rainbow jury verdict.

It's The Truth.

Once we know the truth then we can decide what to do about it. We'll punish someone, or repay someone, or get your grandma's wedding ring back. We'll hold someone to their contractual obligations or we'll let someone off the hook. We'll do the right thing once we know for sure what the right thing is. We're only going to know that if we get to the truth.

This begs the question I know you're asking, whether or not we have to have adversity to seek truth. Some people don't think so. There are other systems where the court does all the work of sorting out the truth for itself. Everyone else acts as friends of the court, pointing out what they think is important but leaving it all up to the judge in the end. This is a pleasant way to do this business. But it is seriously lacking in zeal.

The prospect of adversity forces you to do the best job you can. Prosecutors build strong cases, which result in certainty that a convicted defendant is in fact guilty, because they know the defense is going to attack the weaknesses. We can't fault the defense for this. It played it's role in bringing out the truth. And when we can't make that jury certain that the defendant is in fact guilty, we let him go. It works the way it is supposed to the vast majority of the time.

There are a few that get overwhelmed with the adversity, with the game. Those attorneys that win at any cost because they've lost sight of truth or never cared about it to begin with. As for those self-zealous few, I guess they also serve a purpose. They stand as examples of how it can go wrong to remind the rest of us to stay vigilant. Isn't it always the exception that proves the rule?

Oh Yes! It's Ladies Night

2004-07-13T08:28:00.000-07:00

I had occasion to think about the UNRUH Act recently while, of all things, listening to my favorite morning show on the radio. Did you know that some Smart-Ass civil court plaintiffs have done away with Ladies Night? It's an outrage! How can you make a discrimination argument out of drink discounts given to encourage ladies to come out and get drunk? I would have figured most guys to be all for Ladies Night. (Truth is MOST guys are all for it)

So what the heck happened here?

Apparently some guys are more interested in litigation than getting drunk with the ladies. These particular guys are opportunists, I am sure, though I don't know them personally. The condensed version of what happened goes like this:

Some clever guys figured out that the Ladies Night discount is a violation of the UNRUH Act. (I call them clever only because they know about the UNRUH Act)

Then they go around to clubs which have Ladies Night promotions and demand equal treatment from the management.

The club managers laugh at them. (Since they were unaware of the UNRUH Act)

Then the opportunistic-litigation-lovers head straight to court to vindicate their statutory right to equal treatment by a California business.

Viola! The end of Ladies Night.

If you find this absurd, you're not alone. The idea that these guys were some how injured by this, damaged by it, is nuts. After all, this Act was intended to protect people from harmful discrimination, not the denial of drink discounts.

Nevertheless, our opportunistic plaintiffs won. Because they were able to make out a cognizable cause of action under the law as it is presently written. (for you non-lawyer types this just means that they had a case) We don't make subjective value determinations when deciding if the plaintiff has made a case. We just look for those prima facie elements (English = stuff you need to have a case) and say "yea" or "nay".

My Dad (Let's call him Diva's biggest fan) doesn't like this. And to be honest, I don't really like it either. But we disagree on whose fault it is and what to do about it.

We can agree that litigation in this country seems to be out of control. Every time you turn on the television there is another TV Tort Lawyer hawking his wares. People day-dream about winning the personal injury lottery, scams abound and "I'll SUE you" is as common a salutation as "Have a nice day".

On the other hand, every day people are injured by the negligence or malice of others. We should be able to agree that those people deserve to be compensated, to be made whole.

In between these two positions is a vast and varied grey area, riddled with divergent facts and competeing interests. Whose responsibility is it to cull the wheat from the chaff? My biggest fan seems to think that lawyers are the gatekeepers, and every time a questionable case gets to court it's because some lawyer just wants to make a buck. Fan thinks that if the lawyer were an ethical person, he would not assist in the bringing of this subjectively silly law suit.

In stark contrast, I tend to think that it's the plaintiff who should be the gatekeeper. Afterall, it's his cause of action. If the law allows him to bring it into court, then it should be his choice to pursue it or not. To my mind the trouble lies in the bigger arena of what the law allows you to bring to court.

Take our opportunistic kill-joys for example. They did not invent the UNRUH Act. They didn't manufacture a cause of action out of thin air. They had all the pieces, all the parts, for a winning law suit. That's why they won. Now the fact that you or I wouldn't have brought the suit doesn't mean that they can't. Technically, they CAN. Even if the first 12 lawyers to meet with them suggested that they not let the door hit them in the ... buttocks. In any event, lawyers will make terrible gatekeepers because if you can't find a lawyer who will represent you, you can still just represent yourself.

The only effective gatekeeper, if we need one at all, is that prima facie case stuff. Not having a case at all will keep you out of court. (Or throw you out of court, depending on how tenacious you turned out to be) Maybe we should think about tort reform. If civil plaintiffs quit winning the lottery there would be a lot less incentive to cook up a law suit in order to cash in. Any way you slice it though, it comes down to the law. Plaintiffs have to play by the rules. Lawyers have to play by the rules. If you aren't happy with the game then it's time for some new rules.

Dream like a Dolphin

2004-07-12T08:04:00.000-07:00

I have been informed by an old friend that just because I've decided to be a shark does not mean that I can't dream like a dolphin. This was a relief! I was really worried that I was going to have to change in some fundamental way in order to be an attorney. Or at least to be a good attorney.

Turns out my relief was short lived. Right now I am studying legal ethics (see previous Oxymoron post) and I have discovered a rule that I just KNOW is going to be my down fall. It goes like this :

A lawyer shall not knowingly ... fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel...

In English this rule means that you have to tell the judge that your case is a loser even if the other attorney is a loser. I was counting on being better prepared and better informed and just plain better than opposing counsel. That was how I was gonna win my cases, build a reputation and eventually become a LEGEND. (Don't laugh, that was really my plan)

But now I am forced to factor in this annoying little rule. I've always asserted that in order to make a cogent argument you must first understand the opposition. In order to understand the opposition, you have to learn their arguments. Once I've learned their argument I am duty bound to tell the court what their winning case is, if they couldn't figure it out for themselves! (Its the judicial equivalent of If You Give a Mouse a Cookie ~ If You Give a Lawyer Controlling Precedent)

You might think that there is a simple solution here. "Diva," you'll say, "Just look into your side of the case and turn a blind eye to the other guy." ("Blind Eye To The Other Guy" new reality show about lawyers, clients and trial tactics) I've thought of that. Come on, thinking about this stuff is what I do. But there are other rules that make this tactic unethical. Let's take a look at one that goes like this:

A lawyer shall act with reasonable diligence and promptness in representing a client.

In English this means that a lawyer has to do due diligence. (I not only love this alliteration but I practice saying it with a straight face so I can stand up in court one day and say it with authority) We can quibble all day about what is due diligence and what is so-so diligence and what is no diligence at all. Lets keep in mind, though, the phrase most associated with ethical/legal dilemmas; "Zealous advocacy within the bounds of the law."

Zeal.

Finally, consider legal mal-practice for a moment. The sufficiency of my research will be judged by this objective standard; What a similarly situated attorney would have known. In other words, I limit my research at my own peril.

Is the conflict becoming clear yet? If I do a really good job of research and turn up something adverse to my client, I have to tell the judge. But if I do a so-so job of research I may miss something important and then I risk a malpractice suit. Either way the client is not going to be happy. More importantly, I can not be both an ethical lawyer and a legend.

My dolphin dreams are deflating, passing sharks just ate them.

Constitution Schmonsititution

2004-07-11T08:12:00.000-07:00

Mr. Bush wants to amend the constitution to include these words; "marriage in the United States shall consist only of the union of a man and a woman." I am not sure how to convey in writing the sort of pause this should bring to you. He wants to amend the constitution of The United States of America.

Very, very, very pregnant pause here. A moment of terrified silence even.

What Mr. Bush proposes to do would constitutionally endorse an entire class of persons (heterosexuals). Put right on them that constitutional stamp of approval. Or, if you are cynical, it would constitutionally reject everyone else. Its your choice, since it makes no difference. It is the antithesis of what the Bill of Rights was intended to do regardless of what terms you couch it in. (I can not help the picture in my mind of Mr. Bush standing next to a giant machine churning out Star-Bellied Sneetches)

Now I am going to frame the issue, since I am in charge of this little bit of the world, by first telling you what the issue is not.

This is not a question of the rightness or wrongness of homosexuality.

This is not a question of the inherent danger to children everywhere if gays are allowed to marry.

This is not even a question of democracy and what the majority of people want.

The question is this:

Why in the world does this issue need a freaking constitutional amendment?

Amendment is a very big gun, folks! It is the nuclear weapon of U.S. law, it trumps everything, it is literally in charge. After all, when the Justices of the Supreme Court sit down to decide any constitutional issue they are constrained within the bounds of the constitution itself. No matter how persuaded they may be that certain people are inherently inferior (Oh, like, I don't know... TV tort lawyers) they can not just uphold a law making it perfectly legal to punch one on the first Monday of each month. Even if every single person in the country except for TV tort lawyers voted for it. The constitution would stop them, and us.

But what if we amend the constitution? Lets add this lovely bit of prose right in there so we can get what we want with having to worry about that old constitution standing in our way; "battery in the United States shall be the harmful or offensive touching of the person of another unless the other is a TV tort Lawyer."

Once we've put that brilliant bit of thinking into the constitution, what will our justices do? They'll uphold the law as being perfectly constitutional. They have no choice. Now suppose that they never really thought you should just be able to whack a tort lawyer. They may be all be closet tort lawyers at heart. Maybe they have tort lawyers in the family. Damn liberal stacked tort lawyer loving court! What can they do about this then?

The answer is nothing.

Out little amendment has made it facially constitutional to subject some people to a different set of rules than others. That simple. The justices don't get to grapple, they just have to comply. It is impossible for the constitution, itself, to ever be unconstitutional. And the only way to change it is with a new amendment. A counter amendment. If the amendment is a nuclear weapon, we are now at constitutional nuclear war.

Back to our question. Why the heck do we need to roll out the big guns? The majority of people in this country are opposed to gay marriage. Isn't that enough to stop it? Mr. Bush doesn't think so and he is probably right.

His fear is that every time this equal protection question comes up in state court the decisions are going to allow gays to marry. (I have to laugh at the irony here, a republican wanting to strong arm states into compliance with the federal scheme?) Then it will come up in appellate courts, applying state laws, and the decisions will stand. And this horrible blight of lawfulness will spread all across the country, unchecked by popular opinion, blanketed by the protection of the states constitutions.

In other words, Mr. Bush wants to haul out the big guns to kill this thing quick because it's the only way he can kill it. Every time this issue comes up, courts of reason are going to hold that to deny one person the rights and privileges afforded to another is a blatant denial of equal protection and patently unconstitutional.

The whole point of equal protection is an historical recognition that some times the majority is not right. Sometimes the minority, unpopular smart mouthed red-headed step child that it is, has the right idea. Have you noticed how up to now all the changes have extended constitutional protection, not limited it? (Oops, I forgot about prohibition. THAT was a good idea)

So if Mr. Bush has his way and rewrites the constitution to reflect the opinion of the MOB, I believe that we will all be diminished in a fundamental way. This amendment "fall out" is going to hit every one of us. Once the taboo is off the amendment process everyone with an agenda, a lobby, and some popular support will be seeking to do the same thing. How do you like this one?

"ARMS in the United States shall be defined as only those weapons which existed on or before the year 1791."

Isn't it Ironic?

2004-07-10T10:43:00.000-07:00

Ever since Alanis brought us her ode to irony, people have been confused about what irony truly is. Rain on your wedding day? Is this, in fact, ironic? I guess if you have the intellectual depth of a puddle.

Here is my favorite example of irony. Prince changed his name to a symbol. He intended to be freed from the "word" that represented him. That's funny. The result was that almost everyone assigned words to represent the lack of words to represent Prince and he became "The Artist Formerly Known as Prince". Or, if you are very clever, he became "The Artist Represented by an Hermaphroditic Ankh with Bi-secting Tao Cross".

He found "Prince" too unwieldy and traded it for the ultimate in too unwieldy ~ Lots more words coupled with the urge to giggle every time you say them. I don't think that's what he was going for. But it's what he got.

That is irony.

I love language. It comes with rules and concise meanings. It makes explaining things to other people so much easier than grunting and pointing and jumping up and down. And I really love legal language. I will never forget the day I first learned about the legal term of art. It was like Christmas had come on the wrong day! I just got up that morning and there was a present for me that I didn't even know I was getting. My first little secret admirer gift from the law. (If you hang in there with Girl Ipsa Loquitur I'll have occasion to tell you about the whole affair I am having with the law)

The legal "Term of Art" is a precise use of a word or phrase acquired in a particular context, apart from it's general meaning. It is Lawyer code. Some of it is Latin (Res Ipsa Loquitur) but some of it is just every day English, imbued with special meaning. Special legal meaning.

Hang on a minute. I have to pause to savor that special legal meaning.

Malice Aforethought is a term of art. My mother used to use this term all the time when I was a kid. Someone was always doing this or that with malice aforethought. "Why would you do this? With malice aforethought!" (In her defense, I was doing all sorts of incomprehensible stuff as a kid, but none of it with a man-endangering state of mind)

"Reasonable" has to be both the best and the most contended legal term of all time. Everything turns on whether or not it is reasonable. Sometimes it's subjectively reasonable. Sometimes it's objective. It's average unless you are a specialist and then it's special. And who says what's reasonable? The judge, most times. But what standard do we evaluate him by? A reasonable standard, of course. Aren't most judges reasonable by definition? Judicial? And isn't it therefore reasonable to think that everything they do must be reasonable by definition? So, you are acting reasonably when you act like a judge. Whew! This gets me off the hook with the Dean for yelling "Rusty! Escort him from my courtroom." during remedies class last semester.

Is it any wonder that the neophyte gets lost trying to sort out what the lawyer has said?

So many people roast President Clinton (I started to write Mr. Clinton but quickly reminded myself that I like the guy.) for that infamous response;

"Depends on what is meant by is."

Hello? He's a lawyer. Everything depends on what is meant by everything. It's a wonder that anything ever gets settled or resolved in the law. But it does. Most times decisively.

So, I look forward to the legal jousting and wrangling with words, I really do. But the day to day application is far more satisfying. Like at the grocery store. When the produce guy says to me "Hey lady, did you know your kid is sitting in the freezer?" I can always say "Depends on what is meant by sitting."

Lets just shoot Sadam!

2004-07-09T08:26:00.000-07:00

Over the week-end I had the chance to hang out with some new folks. (New to me) They are just your general every day people, with jobs and kids and a mortgage. Not lawyers and not law students and not self proclaimed know-it-alls. In other words, not like me.

The conversation turned to current events which included a recent punk rock concert (I'll talk punk rock all night) and this nutty little thing, you may have heard of it?, IRAQ.

Now I am going to say something that will be hard to believe. But you're just going to have to take my word for it since you weren't there and I was. I didn't say a thing. I swear on a stack of People magazines that I never opened my mouth. I know when I am out numbered and I am not completely insane. I was just an observer of the natural course of events, rather like Jane Goodall and her chimps. Or more like Steve Irwin and his crocs (Will you look at the TEETH on this girl!)

The question was posited; "Why don't they just kill Sadam?"

For a very long time now, longer than I've been a law student, I've had a half baked notion that there is an entirely separate body of psychology that applies only to mobs. Mob Psychology. With its own set of rules. (This is sort of like my idea of "Traffic Psychology" which has each individual car losing its separate identity and just becoming part of the whole monster that is rush hour) I'll call this notion a notion because I have no idea what psychologists have to say about how a person behaves in a mob. I'm sure they have a lot to say, but I am just making this stuff up for now.

So, the individual is subsumed by the MOB and becomes just another decibel in the MOB voice. When the MOB becomes singular (Less than the sum of its parts) it loses it's ability to reason. It is a one-trick-pony.

At the end of World War II we had an especially fat MOB pony, much like the one we are contemplating here. That MOB said "Lets just take those Nazi's out behind the barn and shoot them." (Well, I never said that the MOB was always wrong) And why not? We knew darn well that they were guilty. Guilty of such horrible acts that it nauseates me to even think about it now. The entire world was screaming for retribution, for revenge, for closure. The MOB wants what it wants.

But we didn't just shoot them.

We tried them in an international court of law. We gave them the best criminal defense that was available, we let them put on their evidence and make their arguments, we followed the rules and then we found them guilty. The United States, through a favorite son Justice Jackson, had a great deal to do with that course of events. And I am proud of us. Proud to be a part of a system that holds the rule of law and reason above the fray. Proud to stand for an ideal, which should remain steadfast even in the face of the MOB.

So to say I was shocked to hear the question asked by an adult citizen of the United States is probably a little exaggeration. I was not shocked. But I was disappointed. The very simple answer to that question is because it would be wrong. We don't just shoot Sadam because it's wrong. Do the heart felt longings of the MOB alter right and wrong? The contentious part of me wants to say "depends on what is meant by wrong".

Being a right person, being an ethical person, certainly depends on the environment in which we exist. And also, perhaps, on the knowledge which we possess. What that really boils down to is "The Big Picture". A frame work, of rules and ideas and principles, to operate in. Without this everything would be chaos. Even if you could predict with reasonable certainty how you yourself will act, there is no way to figure out what the next guy might do. So we all rely on The Big Picture, we rely on the rules, every day. We depend on them. I worship them.

Why, then, do we have this urge to just toss The Big Picture out the window every time we imagine it will suit us? We can say that generally it is not ok to just shoot some guy but we sure should just shoot Sadam. How many people would hesitate to kill Hitler if they got the chance? (assuming time-travel, opportunity and knowledge of the future of course. It's an intellectual exercise, don't nit-pick it)

Is it right to kill Hitler? Even though we know what he would do if we just left him alive? I don't honestly know. The RULES tell us no, it would be murder. Maybe I can provoke him into some kind of life and death struggle and then magically prevail. But if I provoked it, can I still plead self defense? What about defense of others? That won't fly, harm is not eminent. (about the only defense I've heard that might work is the old "He needed killing" defense which will work with some juries still) However, all of this requires either time travel or iron clad knowledge of the future. I will stand very firmly on the proposition that if we had Hitler TODAY he should be tried, not just shot.

This comes up a lot in the law. When does the end ever justify the means? According to the MOB, every time an illegal search turns up evidence of a crime. Or every time a "profile" stop results in probable cause, instead of the other way around. Or every time we are really, really, really sure the guy did it.

I realize that my empirical popular opinion sample has no research value other than to raise the issue. I sincerely hope that MOST Americans believe that Sadam should be tried, fairly, then punished according to the law. But this remains the right thing to do regardless of how many, or how few, Americans agree with it. Its fun to be popular. (or so I've been told by those that have been popular) But the measure of any ethical person is not their ability to be popular. It is their ability to do the right thing in the face of unpopularity.