That Marriage Bidness

The other day Democratic Congressman Jim McDermott (WA) made a short, 1-minute speech about the definition of marriage and the proposed amendment to the Constitution. Below is a slightly more extensive version of McDermott's remarks that arrived in my inbox, thanks to some crazy married kids (with kids!) currently lost in the cornfields of the midwest. McDermott said:

The Presidential Prayer Team is currently urging us to: "Pray for the President as he seeks wisdom on how to legally codify the definition of marriage. Pray that it will be according to Biblical principles. With any forces insisting on variant definitions of marriage, pray that God's Word and His standards will be honored by our government." This is true.

Any good religious person believes prayer should be balanced by action. So here, in support of the Prayer Team's admirable goals, is a proposed Constitutional Amendment codifying marriage entirely on biblical principles:

A. Marriage in the United States shall consist of a union between one man and one or more women. (Gen 29:17-28; II Sam 3:2-5)

B. Marriage shall not impede a man's right to take concubines in addition to his wife or wives. (II Sam 5:13; I Kings 11:3; II Chron 11:21)

C. A marriage shall be considered valid only if the wife is a virgin. If the wife is not a virgin, she shall be executed. (Deut 22:13-21)

D. Marriage of a believer and a non-believer shall be forbidden. (Gen 24:3; Num 25:1-9; Ezra 9:12; Neh 10:30)

E. Since marriage is for life, neither this Constitution nor the constitution of any State, nor any state or federal law, shall be construed to permit divorce. (Deut 22:19; Mark 10:9)

F. If a married man dies without children, his brother shall marry the widow. If he refuses to marry his brother's widow or deliberately does not give her children, he shall pay a fine of one shoe and be otherwise punished in a manner to be determined by law. (Gen. 38:6-10; Deut 25:5-10)

So um, yeah. Marriage is sacred and very clearly defined. The Bible says so, and that's "a god-breathed book!" Come to think of it, we should just do everything just like the Bible says! Otherwise we'll go straight to hayell. That silly Constitution thinks it's so darned smart with its separation of church and state and all that nonsense. Well we'll show the Constitution who's boss. Why stop at amendments? Let's just throw the whole thing out and let the Bible tell us what to do! Paradise, here we come!

Posted 09:29 AM | Comments (7) | general politics

Give'Em Enough Rope

One piece of advice I got in my mock trial competition last weekend was to play nice with uncooperative witnesses. Don't press them on their evasiveness or implausible answers. Instead, give them a couple of chances to come clean, and if they don't, just keep moving. The idea is that if you just give some people enough rope, they'll hang themselves.

The same may be true of the Bush administration. Since day one, beginning around the time of its abrupt withdrawal from the Kyoto Treaty, I've been thinking/hoping the Bush administration would press its perceived advantages too far, doing things so outrageous that even its staunchest supporters would be forced to withdraw their support. So far, it hasn't happened. No matter what awful new outrage the administration propounds, it still seems to maintain support from around half the country. However, in just the last few days it's been piling outrage on outrage:

Secretary of Education Rod Paige called the National Education Association (NEA) -- the teacher's union -- "a terrorist organization."

Bush''s chief economic advisor thinks jobs at McDonald's should be reclassified as "manufacturing jobs":

In [Bush's annual economic] report last week, Bush's chief economic adviser N. Gregory Mankiw called the definition "somewhat blurry" and asked whether it should be changed. "When a fast-food restaurant sells a hamburger, for example, is it providing a 'service' or is it combining inputs to 'manufacture' a product?"

Yeah, right.

And now Bush is backing a Constitutional amendment to ban gay marriage. Of course this is a political ploy. One of the best things I've heard from John Kerry is that Bush is "playing politics with the Constitution." But why Bush is taking this position is not as important as the simple fact that he's taking it. The POTUS is asking that discrimination on the basis of sexual orientation be written into the Constitution.

Again I say: Yeah, right.

All of this has caused L's dad to write to our dear POTUS to complain. The last line of his letter pretty much says it all:

President Bush, even if you personally shot Osama bin Laden tomorrow, I still would not vote for you in November.

And this from a man who voted Bush/Cheney in 2000. You gotta love that.

Posted 06:55 AM | Comments (8) | election 2004

What's Happening in Haiti?

Why is the democratically-elected leader in Haiti under attack from armed rebels? And why will no one step in to help settle the issue? From the AP we get general summaries of events that don't tell us too much about why any of this is happening. On the surface, you'd think the Bush administration, with its constant talk of strengthening democracy around the globe, would want to help Aristide. But that's not what we're doing. Instead the U.S. is stalling and more or less saying Aristide should bow to the so-called rebels. Why?

The AP keeps talking about "flawed elections" in 2000 that caused Aristide to lose the support of the international community. Hmm. Maybe. The AP claims that Aristide hasn't been helping the people of Haiti as he said he would. Again, it's possible. But according to this from an apparent Aristide supporter, around 90% of Haitians support Aristide. So why have the "rebels"/"terrorists" been able to make so much trouble? The same source says it's because the U.S. has been funding them. And why would the U.S. do that? Possibly because Aristide's policies aren't good for corporate America.

So what do we believe? There seems to be plenty of evidence in the historical record of U.S. involvement in small developing nations to support the idea that the U.S. has been largely responsible for supporting the trouble in Haiti. Apparently Congresswoman Maxine Waters believes that. Then again, it's always possible that Aristide has become a power-hungry, anti-democratic demagogue. What do you believe? Why?

Posted 06:25 AM | Comments (3) | general politics

Advice for Insomniacs

If you ever have trouble sleeping, try reading about the Rule Against Perpetuities (RAP) in a property law textbook. I guarantee you'll find yourself falling asleep almost immediately. That is all.

Posted 07:33 PM | law school

Owning Precedent

Aside from being today's model of bad writing, Peralta v. Heights Medical Center comes in a line of CivPro reading about dismissing cases (Rules 55 and 41). The reading raises the question:

Who "owns" the judgment of a court? In legal systems in which the judges do the primary investigation of cases (as is true in most civil law systems), the question seems to have a clear answer: The court does. In a system like that of the United States, in which the parties do most of the work involved in presenting evidence and arguing law, do they thereby gain a moral claim to "ownership" of the ensuing judgment? .... The opinion in Bonner Mall rejects such a view, quoting from a dissent of Justice Stevens, in which he contended that "precedents . . . are presumptively correct and valuable to the legal community as a whole. They are not merely the property of the private litigants. . . ." One coudl think of this statement in a number of ways. One would be as a matter of cost accounting: Court "costs" paid by litigants do not come close to paying the expense of operating the judicial system, which is heavily subsidized by tax dollars. What if they did? Should it matter that the parties offer to compensate the system for the full costs of adjudication? Stephen C. Yeazell, Civil Procedure, 5th ed. 601-602, Aspen Publishers, 2000.

What an intriguing set of questions. We already live in a society where an individual or corporation can copyright or trademark a word or phrase, how far are we from private ownership/control over legal precedents? When or if such a thing became possible, it would likely be only a matter of time before huge new corporations sprung up to buy and control as many precedents as they could, licensing them for use at extortionate prices that would increase the costs of litigation by orders of magnitude. Can't you just see this as the basis of some great dystopian sci-fi novel? Blade Runner meets The Firm?

Posted 07:11 AM | Comments (1) | law school

Passive Voice Be Damned!

An open plea to everyone who writes, but especially judges writing decisions and lawyers writing briefs and memos: Please write in an active voice!

Here's just a small sample of the kind of obtuse and just plain sloppy writing law students and lawyers have to read every day, with my increasingly disgruntled questions for the writer (Justice White) in brackets:

In June 1984, appellant began a bill of review proceeding in the Texas courts to set aside the default judgment and obtain the relief. In the second amended petition, it was alleged [by whom?] that the return of service itself showed a defective service and that appellant in fact had not been personally served [by whom?] at all. ... It was also alleged [by whom!?] that the judgment was abstracted and recorded [by whom!?] in the county real property records, thereby creating a cloud on appellant's title, that a writ of attachment was issued [by whom!?], and that, unbeknownst to him, his real property was sold [for great sakes, by whom?] to satisfy the judgment and for much more than its true value. Peralta v. Heights Medical Center, 485 U.S. 80 (1988).

In some cases it's hard for a writer to determine who is responsible for an action, but then, part of your job as a writer is to make yourself clear, and if that means rewriting or doing a little more research to figure out exactly who did what, then that's what you should do. But no, not judges and attorneys. Instead, they just resort to endless strings of passive voice that get so tangled up and knotted that frustrated readers have no recourse other than to throw up their hands and beg for mercy.

I'm begging, but not for mercy, just a some subjects to go along with these verbs, please. Subject, verb, object. Spot is running. Peralta alleged. Heights Medical did not serve Peralta at all. Peralta also alleged. The Texas court (I assume, but I'm guessing) abstracted and recorded the judgment. The Texas court issued a writ of attachment and the sheriff sold Peralta's real property to satisfy the judgment.

It's really not that hard, plus it makes you look smart and clear and precise so that all your readers will love and praise you through the ages. And really, what more could a legal writer want?

Note: Like Three Years of Hell, I'm well into that tired and cranky point of the semester, so if this sounds overly harsh, a slight lack of sleep and generally low levels of patience would be why. Still, please write in an active voice! Thank you.

Posted 06:31 AM | Comments (3) | law school

You Are Rule 8(a)!

You are Rule 8, the most laid back of all the
Federal Rules of Civil Procedure. While your
forefather in the Federal Rules may have been a
stickler for details and particularity, you
have clearly rebelled by being pleasant and
easy-going. Rule 8 only requires that a
plaintiff provide a short and plain statement
of a claim on which a court can grant relief.
While there is much to be lauded in your
approach, your good nature sometimes gets you
in trouble, and you often have to rely on your
good friend, Rule 56, to bail you out.


Which Federal Rule of Civil Procedure Are You?
brought to you by Quizilla

[quiz via Three Years of Hell and Not for Sheep]

Posted 06:31 AM | law school

Forget Nader. Draft Moore!

While everyone's in a tizzy about what Nader's candidacy might mean, Howard Dean says don't be tempted by Nader:

Ralph Nader has made many great contributions to America over 40 years. But if George W. Bush is re-elected, the health, safety, consumer, environmental, and open government provisions Ralph Nader has fought for will be undermined. George Bush's right-wing appointees will still be serving as judges fifty years from now, and our Constitution will be shredded. It will be government by, of, and for, the corporations - exactly what Ralph Nader has struggled against.

Those who truly want America's leaders to stand up to the corporate special interests and build a better country for working people should recognize that, in 2004, a vote for Ralph Nader is, plain and simple, a vote to re-elect George W. Bush. I hope that Ralph Nader will withdraw his candidacy in the best interests of the country we hope to become.

Timothy Noah on Slate says Forget Nader. Draft Moore. [link via Scripting News] Sounds like a brilliant idea to me.

Of course, if we'd just follow some of the suggestions at The Center for Voting and Democracy we wouldn't have to worry so much about how a random third candidate could be a kingmaker. Can you say instant runoff voting? I knew you could. Now if that wouldn't give people a great incentive to vote, I don't know what would. Proportional representation would also be a great step in the right direction.

p.s.: Is it just me, or is Nader's website broken in Safari? For me, the header at the top of the page loads as it should, but I have to scroll down about 30 screens to see the rest of the content on the page. It looks fine in FireFox, though. Hmph. Whatever else I might have thought of Nader, I just can't vote for him now. Any candidate who can't make their pages Safari-friendly just won't be getting my vote, simple as that. ;-)

Posted 05:57 AM | election 2004

Log in My Own Eye

Have you ever had anything stuck to your eyeball that you just can't seem to get off? That's what happened to me on Sunday; while biking to school, something -- probably just a little spec of dirt -- flew into my eye and started irritating me to no end. It was crazy; I've biked literally thousands of miles through all kinds of terrain and conditions and never has anything like this happened before. The worst part: I couldn't read because my eye just kept tearing up and it felt like something was constantly scratching my eyeball (which it was). I could see the thing, but no matter what I did, I couldn't seem to get it out. I tried flushing with water, dabbing with Q-tips and tissues, and just rubbing at it with my finger. None of that's fun, since your reflex is always to blink to keep anything out of your eye, and none of it worked, either.

So yesterday morning, instead of attending ConLaw, I lined up at the GW Student Health Center, not sure what they could do, but hoping they could help. And help they did! They saw me almost immediately and the doctor had the speck out of my eye in about one minute from the time she said hello. She simply put some anesthetic eye drops in my eye, then dabbed at the spec with a Q-tip and the speck was gone. Sure, I'd done the same thing, but I'm no doctor. She said the cornea was slightly scratched and would hurt for a while, and she was right, but I still felt a zillion times better immediately.

Regular readers may know that I haven't found much about GW to praise, but that changes now: Thank you GW Student Health Center! You're the best!

While the thing was in my eye, I just kept wondering if it symbolized anything. Specifically, I wondered if there's something especially big or glaring I've been hypocritical about recently. Why would I wonder that? Well, this might be the first time ai has quoted from the Bible, but heck, there's a first time for everything, so here you go:

1: Judge not, that you be not judged. 2: For with the judgment you pronounce you will be judged, and the measure you give will be the measure you get. 3: Why do you see the speck that is in your brother's eye, but do not notice the log that is in your own eye? 4: Or how can you say to your brother, `Let me take the speck out of your eye,' when there is the log in your own eye? 5: You hypocrite, first take the log out of your own eye, and then you will see clearly to take the speck out of your brother's eye. (Matthew 7:1-5)

This passage was used to great effect in "Iron Jawed Angels,", which, btw, I highly recommend. That aside, it's really pretty good advice to live by. Funny how those specks in your eye seem to bother you more than the logs.

Posted 05:50 AM | life generally

Dean Takedown Update

As a followup to last week's summary of how prominent Democrats helped destroy the Dean campaign, check out Centerfield's, um, inside baseball analysis of the whole deal: A company controlled by NY Yankees owner George Steinbrenner gave $100,000 to the anti-Dean smear campaign.

Worse, according to this PDF file, organized labor (Laborers Int'l Union, Longshoremen, Machinists, and Ironworkers) gave $200,000 all together. It's heartwarming to see this kind of solidarity, isn't it? [link via Scripting News]

Posted 09:33 PM | election 2004

Lessons from a Mock Trial

I spent yesterday (from about 8:30-3:30) inside the DC Superior Court pretending to be a prosecuting attorney. It was fun, exciting, exhausting, and just extremely difficult! I wish I had some great lessons or advice to share after the experience, but probably the best I can do is confirm what you'll hear from anyone who's done it before: There's just no such thing as too much preparation.

I can't emphasize that enough: If you're doing mock trial, you have to know the facts -- every one of them -- cold. I didn't, and I got nailed a couple of times for it. Of course, you should also know the Federal Rules of Evidence pretty much backwards and forwards, as well as how to introduce and use exhibits to the best advantage. Why don't law schools just make this part of the first semester curriculum? I mean, wouldn't an intro to trial procedure, evidence, and advocacy be a good introduction to the law? A school could replace contracts or torts with one a more practical class like this, and I think its students would be well served.

But we don't learn evidence or trial procedures or advocacy in our first year, so we just had to wing it. Over the past couple of weeks, I've watched or participated in about four mock trials based on the same case materials (that's counting scrimmages and participating as a competitor in one instance and a witness in another), and each "trial" was very very different from the others. This tells me that you have to be prepared for anything, and have contingency plans for any approach your opponents might throw at you. So again, the main lesson is: Be prepared.

In all, I learned an incredible amount, but participating in Mock Trial has only deepened my ambivalence about being a trial lawyer. While the preparation part seems enjoyable and satisfying, the actual trial part seems like a crap shoot. Does the judge like you? Do you have the right "style"? Does the judge or jury like it that you cross your witnesses aggressively, or did you lose them there? Did you wear the right clothes? Did you hold your notes in an acceptable manner? All of these things seem so hard to predict or control.

But worse: Can you really think fast enough on your feet to solve all the random problems that might arise in a trial? Can you recover and reroute on the fly when your own witness gives you the exact opposite answer you were looking for and threatens to torpedo your case? Can you remember the exact spot in the deposition where the opposing witness impeached herself? Can you keep in your head the five different points opposing counsel misrepresented so that you can effectively explain and spin them in your close? And even if you can keep them in your head, can you find that effective spin in the two minutes you have to actually prepare that close?

I admire trial lawyers even more after doing mock trial. They have to be brilliant, no "ifs" or "buts" about it. But do I want to be one? Do I have what it takes? For now, I guess that will remain a question of fact to be left to the jury....

Posted 09:34 AM | Comments (3) | law school

Nader's In

So he's doing it. Nader has officially begun his campaign for the White House as an independent candidate. Okey-dokey.

Here's a thought on that. And here's another.

I agree with Nader on many things, including the fact that the two-party system is broken and undemocratic. However, isn't a run as an independent this year only going to hurt the long-term chances that a third party will ever be taken seriously? I mean, just about any other year, I might support something like this, but this year!? Right. There's always the nagging voice of the revolutionary whispering in my ear: "If not now, when? If not us, who?" But when it comes to whether a third-party lefty should run for President of the U.S. the answers to those questions are clearly: "Any other year" and "Maybe us, but any other year!"

But maybe this will turn out to be a good thing:

Asked if he would withdraw if he concluded his candidacy would merely ensure President Bush's re-election, Nader told interviewer Tim Russert, "When and if that eventuality occurs, you can invite me back on the program and I'll give you the answer."

So do you think Ralph's so sure the Democratic nominee is going to kick W's ass so hard that a lefty independent candidacy won't give the election to the W? Or here's another scenario:

Ralph can just stir the pot, continually reminding everyone how corrupt Washington is and how the two-party system does not work, etc. That's all great, so long as he withdraws and emphatically supports the Democratic nominee by, oh, let's say Oct. 15th. That could be a win win for everyone. Please Ralph, only run 'till October!

Posted 09:24 AM | Comments (2) | election 2004

Asylum for Domestic Violence

The best thing about Legal Writing class as a 1L for me is that it's teaching me a lot about a few small segments of the law. One of those segments has been asylum law, which was the subject of our first memo last semester. I hardly knew what asylum was before that memo, but now I understand the basics, which means I know enough to understand the asylum process can be seriously random and unjust.

Asylum law is in the headlines today because of a big case about whether women who have been victims of domestic violence in their home country should be granted asylum in the U.S. NPR covered the story Friday, as did the print press. UC Hastings also has a site with more information on the case. Here's the gist:

The Department of Homeland Security on Thursday asked Attorney General John Ashcroft to grant asylum to a Guatemalan woman who was repeatedly beaten and raped by her husband for a decade.

The request will determine whether battered women are eligible to receive sanctuary in the United States. The case could have great impact on women in countries where domestic violence goes unpunished.

Ashcroft has the authority to allow Rodi Alvarado, 36, to stay in the country and set a precedent for other abused women seeking refuge. The recommendation was made in a legal brief filed late Thursday. It couldn't be determined when Ashcroft would act on it.

Asylum experts said Homeland Security's endorsement of Alvarado's asylum claim would make it far harder for Ashcroft to reject the plea.

It's incredibly depressing to have to rely on Ashcroft to make a potentially huge decision like this, but here's hoping he chooses correctly and grants Alvarado asylum.

In related news, tonight at 10 p.m. on Court TV: Chasing Freedom, an original movie about an Afghan woman trying to get asylum in the U.S. after being persecuted by the Taliban. Juliette Lewis stars as the young New York lawyer who takes the case pro bono. (Does anyone do asylum cases full time?) This could be just another opportunity for a movie to say, "Hey, the Taliban was really bad; isn't it great the U.S. took over Afghanistan?" But it's on court tv, so instead, maybe it will focus on the broken backwater that is U.S. immigration and asylum law. Although some of you may be too broken up after the series finale of Sex and the City to watch anything else, "Chasing Freedom" might be worth taping to watch some other day.

Posted 08:32 AM | law general