She Has Nothing For Which She Should Apologize

Betty Brown was in the papers recently. She's a congresswoman from North Texas, and the Texas legislature, standard bearers for individual liberty that they are, are discussing voting rights. The legislature is considering requiring that citizens provide proof of identification at the polling station in order to vote. Some liberal crybabies are all up in arms about this, saying stupid things like Ramey Ko did - that people of Asian descent might have problems because their voters' cards might have their legal name (like Ho Won Sok), while their drivers' licenses or other identification would have their commonly used English name (like Wally).

Talk about a whiner. Betty Brown had a perfectly reasonable answer to this (according to this Chron.com article - Note - the article I linked to appears to no longer be available):

Rather than everyone here having to learn Chinese - I understand it's a rather difficult language - do you think that it would behoove you and your citizens to adopt a name that we could deal with more readily here? ... Can't you see that this is something that would make it a lot easier for you and the people who are poll workers if you could adopt a name just for idenfication purposes that's easier for Americans to deal with?

Of course the liberal pussyfooters in the legislature, who I'm sure WANT us all speaking Chinese, got all up in arms about this very reasonable request, demanding that Betty Brown apologize (source: Keyetv news in Austin).

I say Kudos to Ms Brown for sticking up for America! We all know that it's perfectly reasonable to ask voters to prove they are who they say they are at the polls, what with the rampant voter fraud that's been going on recently. Just look at all the statistics to back up this very real threat: wait, I can't find actual statistics showing proof of voter fraud running rampant in Texas, so you'll just have to trust me and Ms. Brown and the supporters of this legislation that it's a Very Real Threat on the grounds of conjecture and rhetoric.

I think this is a very easily solved problem. Since people have enough trouble coming up with one name, and these Asian-Americans have, in many cases, come up with two already, I think we should simplify ("streamline") the process. Rather than have these "Americans" come up with their own names, I propose we take names that are easily understandable. The surname "Brown" is indubitably understandable, as it's one of the most common surnames in America. I think she would be honored at the thought of lending her surname to these Asians with difficult-to pronounce names like "Park," "Lee," or "Kim." That solves half the problem. Now for first names. Obviously one would be hard pressed to find a name more easily understandable or clearly red-blooded American than "Bubba." I mean, he was Forrest Gump's best good friend, and Texas native Bubba Smith played for the Michigan State Spartans - you know, the state with Detroit - the city that made America great, and source of Texas' best selling Pickup! And really, Bubba Brown is very clearly going to be easy for people to pronounce. The catch is, that name would only work for half of the population. I think for the other half, we need to go with something just as American as Apple Pie - something straight out of an Archie Comic book - Veronica is too long - people would potentially get confused. No, I think the solution has to come from Veronica's nemesis - "Betty." I mean, what's more American than Betty White, or Peggy Hill's famous Apple Brown Betty? Come to think of it, it's like Peggy Hill's Brown Betty in Reverse - Betty Brown!

Wow, I just realized, that would be the same name as the person who made this very simple, reasonable request in the first place! What an homage - to take the name of the person who is so clearly concerned for protecting your ability to participate in our way of life! I'm sure Rep. Brown would be moved beyond words at such an honor. And deep down, you know you would be, too.

For those with some spare time

Here is the ICRC report on the torture that took place in Guantanamo Bay in the name of fighting "terror."

The investigation needs to take place.

The memos and documents need to be released.

Every day President Obama delays in this he becomes that much more a part of the abuses.

What Did You Do on Summer Vacation?

I rarely have anything to report in response to this. Once, I got to say "I drove to Indiana after taking the Bar exam," but other than that, we've been relatively quiet over the summer.

What I'd like to do is be able to say I went here. But I would need someone to watch the kids.

Sometimes, You Can Only Shake Your Head

At the notion that somehow the torture that took place during the Bush administration has been concocted by President Obama for political gain. Read Andrew Sullivan's take here.

Individual Rights

Last week in the news, I saw stories related to no fewer than 3 separate incidents of multiple killings by use of handguns. Unsurprisingly, this has led to pieces discussing the Second Amendment and what it means. And it's only a matter of time (if it's not come already) before people start calling for stricter gun controls.

As this is the case, it becomes necessary to understand what was written in the recent case, Heller v. District of Columbia, 554 U.S. _____, 2008 (the link does not include a specific page reference. While I do not doubt that one has been attributed by this point, time constraints preclude my searching for it at this time), and understand the significance of this individual right.

First, a quick backgrounder on the case, as summarized in the opinion. Dick Heller was a special police officer who had desired to register his handgun in the District of Columbia. The District of Columbia, however, had rules so restrictive, it was virtually impossible to own one. You could not possess an unregistered handgun, and were not allowed to register handguns. You could apply for a 1 year license, approved by the chief of police, but Heller's application was denied, after which he filed suit. The suit was dismissed at circuit court, then reversed by the Court of Appeals on Second Amendment grounds, and the Supreme Court granted cert.

The Court held that the Second Amendment's right to Keep and Bear Arms clause protects an individual right, not connected with service to any militia.

In reaching the decision, Justice Scalia first reviewed the Second Amendment: "A well-regulated militia, being necessary to a free and secure State, the right of the people to keep and bear Arms, shall not be infringed." He noted that there are two clauses, a purpose clause and an operative clause, and that the operative clause did not rely on the purpose clause for its meaning. In other words, the purpose clause listed one reason for the RKBA, not the only reason.

Justice Scalia then parsed out the meaning somewhat more, delving into the operative clause. "The right of the people," according to the opinion, is a phrase that had been used 3 times in the unamended Constitution and the Bill of Rights, in the 1st, 2nd and 4th Amendments, and all of these times the rights mentioned referred to individual rights, not collective rights. This makes sense if you look at it from an historical standpoint. Remember, the Constitution was unpopular when ratified, and was only ratified contingent on a promise to enact a Bill of Rights. The federalist papers were Constitutional P.R. - trying to sell the document to a public who were leery of Governmental control. He then notes that in all iterations of "the people," both in these rights, but in exercising power (preamble, 10th amendment, and Sec. 2, Art. I), the phrase referred to all People, not a specific subset (though he neglects to mention that slaves were not considered "people" at the time), which if we were to interpret the operative clause of the 2nd Amendment to be contingent on the purpose clause, we would be forced to do.

He then discusses the meaning of the word "arms," and unsurprisingly finds it to mean weapons or armor. Moreover, the right to "keep" arms, he states, is the right to possess them, going back to Blackstone who remarked on "Catholics convicted of not attending service in the Church of England suffered certain penalties, one of which was that they were not permitted to 'keep arms in their houses.' 4 Commentaries on the Laws of England 55 (1769), as well as several other references to a right of all people to "keep arms." In a similar manner, he found that "bear arms" meant to carry or possess (not arms of bears).

He continues, "Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment." Remember, the Constitution and the Bill of Rights registered rights given to the government by the people. The rights discussed in the 1st, 2nd, and 4th Amendments refer to pre-existing rights, as Justice Scalia noted, in other words, the right to keep arms existed before the Bill of Rights was ratified, and the 2nd Amendment limited the ability of the Government to infringe upon that right.

Justice Scalia concluded his analysis of the operative clause of the Second Amendment:

There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course, the right was not unlimited, just as the First Amendment's right of free speech was not, see, e.g., United States v. Williams, 553 U.S. ____ (2008). Thus we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.

He then went to the purpose clause, which I will gloss over. In a nutshell, he shows that the purpose clause refers to protecting a polity, not an individual state. He then lists three separate reasons why a militia would be necessary to a "free state,"

First, of course, it is useful in repelling invasions and suppressing insurrections. Second, it renders large standing armies unnecessary - an argument that Alexander Hamilston made in favor of federal control over the militia (author's note, this helps explain why the National Guard operates in the stead of a militia according to the Court in a prior decision).... Third, when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny.

Justice Scalia finished by pointing out that at the time of the Bill of Rights, one way tyrants oppressed the People was not by outlawing militias, but rather, denying them the tools with which to defend themselves from internal threats (i.e. the tyrant). This is what we must beware of, to paraphrase Justice William O. Douglas, lest we become unwitting victims of the darkness.

While I find the two dissenting opinions unconvincing, I would recommend reading them. Due to length concerns, I will not include them in this post.

I may be somewhat naive, inasmuch as I believe that generally, people are good. But my naivete is not so great as to believe that there will never be people who take a right and use it for the wrong purposes. However, simply because there are those who abuse the rights we enjoy does not mean that we should enjoin all others from that right and the protections they provide, be it the Right to keep and bear arms, the right to peaceably assemble and petition the government for redress of grievances, the right to own land, the right to choose, the right to learn, etc.

Movie Review

This weekend, I watched my three new movies. I purchased To Kill a Mockingbird, Inherit the Wind, and 12 Angry Men. I'd seen two of these movies before, but it'd been about 20 years since I last saw them, so I was watching them with fresh eyes.

On Friday, the family got together and watched To Kill a Mockingbird. This was one of Gregory Peck's finest roles and an all around amazing movie. What struck me about the movie was the pacing. It was deliberately paced and set from a child's perspective. You could definitely feel the mood in the movie. Our children were frightened of Boo Radley's house. The story is a classic one of prejudices in the South, and of doing what's right, not what's popular.

Yesterday morning we watched Inherit the Wind. This movie, a classic starring Frederic March, Spencer Tracy, and Gene Kelly, is a fictionalized version of the Scopes "Monkey" Trial. The basic facts are the same, a schoolteacher is arrested for teaching evolution in violation of state law. Two heavyweight attorneys are brought in to try the case. The status quo is put on trial. The performances by the three stars really make this movie, a compelling movie in its own right, into one of the best movies of the past 50 years. The movie is timeless, because it touches on a subject that is enduring. As recently as two weeks ago, the Texas legislature was arguing similar points about relaxing the science standards in public schools, and just a few years ago, Kitzmiller showed that the Creationists are still working towards putting religious-based education back in public schools.

The last movie we watched, 12 Angry Men, was probably my favorite of the three. The tension in the room is palpable, and the performances passionate. The temerity of one man to demand that the jury take one more moment to reconsider what they thought was a foregone conclusion and the attack on the jurors' and audiences prejudices and stereotypes to find the right result makes for phenomenal cinema.

At the end of the day, I would definitely recommend any of the three films as they are all terrific.

Those Zany North Koreans!

Every now and then the North Koreans will do something to get themselves back in the news. Usually it's some act of stupidity/defiance, such as the Poplar Tree incident, the Tunnels, the Crab Wars, the Submarine incident, etc.

Yesterday, it was a missile launch. They've been working up the war rhetoric for the last few days in preparation for the launch. The launch itself was a P.R. victory for the country, because it shows they have the technology to launch a missile that reaches (at least) to Japan and it generated a lot of attention for the country. They will leverage this to the best of their abilities, garnering more aid and more publicity for the regime. The Dear Leader General Kim Chong Il ("the Chonger") may not be much for international travel, and he might just be a maniacal, mass murdering cur, but he's savvy. He knows how to keep himself in power and his people uninformed.

The country's news service has declared the launch a success, placing a satelite in orbit that sings the praises of the Great Leader (Kim Il Sung) and Dear Leader. This is false, of course, as no satelite actually entered orbit from this launch, but that doesn't matter to a country whose government controls what information reaches its people. Interesting sidenote, Jazz Shaw at the Moderate Voice writes an article here about the giving the President the authority to control information media during a time of crisis that he would get to define. Fortunately, we're not North Korea, so we don't have to worry about the Government trying to control what we hear. Oh, wait.

But back to the point. The real question that should come from this is what should we do about North Korea? What we will do is completely different. We'll do some sabre-rattling, name calling, and pounding on the table, but at the end of the day we'll end up giving them more aid. This is unfortunate, but it's what's probably going to happen.

What we should have done was invaded this country back in 2003. We had a much stronger case (real facts versus what the President wanted to be told so he could tell us of the imminence of danger) of a credible threat to the region. But that ship has sailed, and now we've hemorrhaged our resources, which limits our ability to respond.

Can You Hear My Body Talk?

I got my exercise bike today - it was surprisingly simple to set up. The good news is that I now can exercise while I'm on the computer, which is a great way to get some exercise while in a traditionally sedentary area. The bad news is that from where I am right now, the pedals are very close to the chair, which makes this more like a recumbent bike - not a problem, but it makes it more difficult to type while riding.

More later.

Aprl Fools' Day

Nope, no dead bunnies today.

I've been rather busy at work, and rather tired at home.

The kids are getting ready for school, the wife has Muffins with Mom with the kids at school today, so they're all getting themselves ready to go.

I could use a vacation day that doesn't involve flying to Atlanta.

Justice for All

I found this post at Andrew Sullivan's. In it, he links to a Houston Chronicle article wherein Former AG AG speaks about the importance of holding open trials:

"He also said Mexico should have oral, public trials of major organized crime figures rather than having trials consist of written testimony read by a judge behind closed doors.

Doing things in private breeds corruption, he said."

Yes, it does.

Unintended Consequences

One of the bright sides about having to work for several hours last night is that it forced me to avoid watching CSI: Miami.

The downside is that I don't get to share just how inane the show's plot is with my (three) readers. But I'm guessing they're OK with that.

It's a Long Long Evening

I'm taking a five minute break from working to do a quick post. I need the break; I've been pulling docs for 12 of the last 14 hours.

I don't mind doing document review. It's kind of like hunting - you know the goods are out there, you just need to know where to find it. That said; I would like something a little more dynamic to hang my hat on than "doc review attorney." I'm still not certain I want anything to do with playing first chair in a trial setting, but poring through thousands of internal documents every day to find the 5-10 decent ones isn't the most gratifying of work - and it doesn't exactly feel "lawyerly."

Still, it's amazing how finding new information on a topic can change how you view it. I'm no longer convinced that pharmaceuticals are looking out for the customer. If they were, they'd research all illnesses, not just the fiscally rewarding ones.

Oh well, back to work

But Does it Work?

When we lived in San Angelo ("where weeks feel like years"), we had a little piece on one of the news channels occasionally called "But Does it Work?" In the vignette, they would test various As Seen On TV products to see if they were as advertised. The one I remember watching was for the BaconWave - a device used to cook bacon in a microwave.

The same question could be applied elsewhere, however, particularly to the question of whether Torture leads to usable information. The answer, at best is "sometimes." And I'd be willing to bet that it's less often than that. We know that it did not work on at least one instance (H/T to DB at Inevitable Conflict). The Washington Post article can be found here (courtesy of Andrew Sullivan's fine post on the matter).

But perhaps he was *really* part of the mosaic they were trying to build...

Choices

It's less than 3 months in the Obama administration and already Sarah Palin has her Political Action Committee out scouting a potential run at 2012. I don't doubt that other politicians have their eyes on that prize as well, but hers is the only one I know cold-calling in Iowa and New Hampshire.

Perhaps I'd be less concerned about Palin running for President, if she didn't come across as such a train wreck. Much like the previous administration, nothing is her fault - she blames staffers, managers, etc. on anything that doesn't work out immediately in her favor. There are the compulsive lies, the bad ones that don't need to be told. These differ from the campaign promises that all candidates make. These are lies that are told apparently because her world differs from everyone else's. Again, all politicians lie - some recent examples involve not having sex with that woman, cutting the greeting short due to sniper fire, "we do not torture," Read my lips, etc.

Palin in Alaska might work fine. Palin as POTUS? Bad combination.

This is Serious

It's been serious for some time. Senator Leahy has encouraged a Truth and Reconciliation commission to find out what happened. I support this. I don't support criminal investigations unless there is some evidence made available that might show criminal culpability.

However, in the international community, not everybody shares that opinion. One nation that doesn't agree with my assessment is Spain, who according to this article on The Moderate Voice is opening a criminal investigation into some Bush Administration officials.

We've made a fine mess for ourselves.

I highly recommend reading the article linked above. I'll look at giving a better synopsis later, but we have company over, and I would like to entertain.

Horizons

I went shopping online today. I don't buy things often, but every now and then I will get an itch to make a purchase.

I bought 3 movies - To Kill a Mockingbird, 12 Angry Men, and Inherit the Wind. Now, I've seen the first two already, but it's been about 20 years since I've seen either of them. I've not yet seen Inherit the Wind, though I did my research paper on Intelligent Design, which includes the Scopes trial.

In addition to these films, I also bought an exercise bike. I find I don't have time to go to a gym, and while I'd like an elliptical trainer, we really don't have room for one in our house at this time (Maybe as the kids get older, and our debt gets to be a little more in control). So instead, I bought a miniature exercise bike, the Magnetrainer. While I've not used it, the different sites I've gone to have all had rave reviews. The bike is 18 inches high, and can easily fit under a desk - I haven't decided if I'm going to take it to work or leave it here for use, but either way, I expect to get some good use out of it. We'll cross our fingers and see how it works out.

Rats From a Sinking Ship?

Another former Bush Administration official concedes that we tortured under the previous administration.

What went on during the previous administration, and to what level of culpability needs to be known. This is what Congress SHOULD do. But they won't. Because when you sweep out from under the carpet, all the dirt comes out. And it's not just the Executive branch that did wrong. It's not just one party who did wrong. And those wrongdoers don't want their dirt out on display. Accountability should matter as an elected official. If you did wrong, cop to it. Demand the others cop to it. Until you do, the self-inflicted wounds of the past 6 years cannot begin to heal.

Friday

It's been a long week. I'm going to be in overtime within 2 hours of arriving at work (I'm not complaining), and I'm likely going to have to put in some time over the weekend.

Deadlines keep coming, one after the other, and invariably, there are scores of requests interspersed that demand attention (the "could you do this URGENT?" requests, which usually aren't urgent). It is one of those things.

But, until I can find a way to be independently wealthy, it's what I have to do.

He Who Pays the Piper

Calls the tunes. This is an old phrase that doesn't get nearly enough attention. It's beautiful in its simplicity - if you accept the money, you have to accept the conditions surrounding it. This is very much the assessment given to the law schools who argued against having military recruiters on campus because of the military's "don't ask, don't tell" policy when their position was shot down in the courts. The schools accepted federal dollars, and in exchange for receiving these funds, the schools were obliged to accept recruiters as a condition. The schools wanted the sweet, but didn't want the bitter, and thus fought against this requirement, and were rightly defeated.

While this lesson has been learned in the law school financing sector, apparently, this lesson was lost on the Christian Legal Association at the Hastings College of Law in San Francisco. The Association sought formal recognition from the law school. There's nothing wrong with that, our law school had a Christian Law Society; I knew several members and the faculty advisor and they are all good people. They sought funding in the form of activity fees. This is absolutely fine - again, it's a student organization and they are allowed to seek these funds. Finally, they wanted the right to deny entry into their club all non-Christians and any gay students. This they cannot do. You see, the school has a policy that requires an open membership policy of all their student groups - in other words, you can't discriminate, something stipulated in the Court document holding against the Christian Law Society. This is perfectly a Constitutional holding, as the requirement passes the Lemon Test - there is clearly a legitimate secular purpose whose primary effect neither promotes nor hinders a particular religious belief, and the activity clearly does not foster excessive entanglement between the government activity and religious concerns.

The school is a public (state funded) school. The students pay for the student activities. The funds for student activities comes from the funds paid by the students. It should be a no-brainer that if an organization wants access to these funds, they're going to have to accept the conditions that come with having that access.

Whoever pays the piper calls the tunes. The school says nothing about what this Christian Law Society's members should believe. It says nothing about what any member of any student organization should believe. It merely says - "if you want to be a recognized student organization, then you have to have an open membership policy." Perfectly reasonable.

Now, the Society had an option - they could have remained an unrecognized student organization, which would then have allowed them to alienate anyone they wanted. But, they wanted recognition, and thus needed to accept the restrictions given them.

I have no issue with student organizations, even Christian, Buddhist, Muslim, or Taoist ones. What I take issue with is the absurd premise that by forcing one organization to play by the same rules as all other student organizations, the school is somehow restricting their First Amendment rights, or assaulting Christianity.

For more on this topic, I suggest reading this post at Americans United.

Random Trivia

Hangnail stems from the same root as anguish.

It's a First Amendment Issue, Just the Wrong Clause

In 2006, Brittany McComb delivered her valedictorian speech at her high school in Nevada. According to this article on Americans United for the Separation of Church and State, her speech was interrupted by school officials, who pulled the plug on her microphone after she stated "[God's love] is something that we all desire, it's unprejudiced, it's merciful, it's free, it's real, it's huge, it's everlasting... God's love is so great that He gave up His only son."

You see, the school officials warned her that while she was able to reference her faith during her speech, she would not be allowed to proselytize. She apparently decided she didn't need to obey the officials. She even went on Fox News' Hannity and Colmes, arguing that the school district violated her First Amendment rights, (again from the article linked above), "[the school district] denied me free speech, and it denied me the right to be who I am and who, you know, God made me to be."

While to an 18 year old who feels like she's been wronged, perhaps this could seem like the case. While she got the correct Amendment, she's unfortunately viewing the wrong clause. You see, the school district was right. Let's see why.

All right, the short answer is that the school district was right because the 9th Circuit Court of Appeals said so. Of course, those Christian Conservatives out there looking for a reason to discount this will point to this being the 9th Circuit Court of Appeals, which is full of those "Activist Judges," you know, the ones whose opinions don't match your own. So let's delve just a little deeper, shall we?

First off, we have the Supremacy Clause - i.e. The Constitution and all laws and treaties entered pursuant to it shall be the "Supreme Law of the Land," (see U.S. Const. Art. VI). Then, you look at Marbury v. Madison 5 U.S. 137 (1803), which says that the interpretation of the law is the province of the judicial department. This is all background to the part that matters with respect to this case.

The two cases that bear most heavily on McCombs's situation are Lee v. Weisman and Santa Fe ISD v. Doe. The former case, Lee v. Weisman 505 U.S. 577 (1992), involved a school in New Jersey that invited local clergy to deliver invocations at graduation ceremonies. The Court held that unconstitutional coercion occurs when 1. the government directs 2. a formal religious exercise 3. in such a way as to oblige the participation of objectors," (See Jones v. Clear Creek ISD, 977 F.2d 963, 971 [5th Cir. 1992]). You see, you can't create a situation where a student is obliged (even if the ceremony isn't *mandatory,* it's still a rite of passage and the alternative to avoid this to avoid being preached to fails any rational balancing. Of course, Lee involved a rabbi who had been invited to speak. McCombs is a student. Surely that's different, right?

Wrong. This situation was addressed just a few years ago in Santa Fe ISD v. Doe, 530 U.S. 290, (2000). This involved a school district in Texas that would invite a student from the high school to deliver an invocation at a football game. Here, the Court differentiates between private (protected speech) and public speech,

The delivery of a message such as the invocation here–on school property, at school-sponsored events, over the school’s public address system, by a speaker representing the student body, under the supervision of school faculty, and pursuant to a school policy that explicitly and implicitly encourages public prayer–is not properly characterized as “private” speech.

This is, as you may have guessed, unacceptable, and not unlike the facts presented in McCombs's situation.

What the school and the 9th Circuit Court of Appeals are saying, in a nutshell, is that there is nobody preventing McCombs from being a Christian, or believing in God, or worshipping God. In fact, there's nothing wrong with anybody believing anything they want. However, nobody, not McCombs, not any of the other students at the school, can use the public forum to proselytize to a captive audience. This was absolutely the right decision.

Wednesday is Haiku Day

In-laws went home - sad.
House mostly quiet again
Normalcy returns.

As always, I look forward to your contributions

Tired

Nothing says "whole lotta fun" like working from home at night. Fortunately, I only put in an hour - unfortunately, I could have easily put in 2 or 3, had I not been so tired.

I'll get more done tomorrow at work if I get myself some sleep now.

I need to buy those exercise pedals for under my desk.

Good Morning (After)

I certainly believe that people are entitled to their own opinion on the question of Abortion. While I remain officially "pro choice," I mean just that.

I remember a bit of a kerfuffle at the end of the Bush presidency regarding pharmacists who didn't want to provide the morning after pill (or was it all contraception) because it violated their religious beliefs. Perhaps someone with some research skills could link to that for me, as I'm not inclined to go searching for it tonight. My response to that was basically "if you don't want to sell birth control, then don't work in a profession that involves selling birth control." It seems to me akin to a Luddite apprenticing as an Electrical Engineer.

I also remember some discussion on the FDA appointments made by President Bush being premised on this topic (again, links are welcome).

The reason I bring this up is because I was reading this article by Professor Friedman at Religion Clause Blogspot that discusses a Court case (Tummino v. Torti, ED NY Mar, 2009) wherein the Judge ordered the FDA to reconsider its restriction on Plan B ("The Abortion Pill"). The reasoning, as Professor Friedman notes, is that the Judge felt that the FDA's position was premised on political motives, rather than "good faith agency decision making" (from Professor Friedman's article).

What I find interesting about this is the Family Research Council's response - "This ruling jeopardizes girls' health and the ability of parents to care for their daughters' physical and emotional well-being." I'm not entirely sure I follow that logic, as, if the child finds herself in a situation where she needs the medication, then isn't it entirely possible that she found herself in that situation particularly because of her parent's inability or unwillingness to care for her physical and emotional well-being? I leave the answer to you.

I Hate CSI Miami

Let's play some "what are the odds?"

Clothing that is bullet-proof. That's interesting enough. Getting hit with a bullet and not shifting when running off? interesting enough. Then, getting attacked by a dog that just happens to bite the exact same spot that the bullet hit (so that the fabric would be compromised) and the dog can get a piece off that just happens to stick in the pooch's teeth long enough for the CSI guys to recover it? Sure, why not? Going to the CSI bullet-proof fabric website and finding the designer in the same day as the stabbing? Naturally. Getting in and questioning the designer while the assistant is telling the police to not be on the property, in clear violation of the 4th amendment? Hey, it's the product of the Bush administration. Then threatening to get a warrant to get a client list, after you've already violated the 4th amendment? Maybe the designer's just really stupid?

But when the pictures on the camera of the papparazzi are from the exact same angles as the camera shots from the previous episodes (which were presumably from other CSI's vantage points? Come on!

Half Truths and Obfuscation

They just seem to follow Sarah Palin, don't they? While it shouldn't matter what her PAC strategist believes, I'm sure having a follower of Xenu in charge can't be all good for the Christianist party's starburst. Now, having a journalist misstate a relationship with a politician - that's probably a little more egregious.

My Good Friend's Wedding

I've been neglecting my blog and my friends' blogs. This is something I feel badly about, but work and family needs dictate and this brings no returns, so it's the most expendable. I try to average at least one post per day, however, as I find it a welcome chance to opine in a relatively harmless fashion.

My good friend at work got married this past weekend, and the in-laws were in town to babysit. Yes, they drove 900 miles to watch the kids for one night and then left (OK, they stayed for 4 days, but they'll be driving for just as many days, so it's basically a wash). I like when my in-laws are here, however I also find myself always a little stressed out anymore when they're here. I'm sure a lot of it has to do with a sense of obligation to entertain - they're family, but they aren't "my" family in that I didn't grow up with them. With that and my basketball picks going south, I've been a little stressed. But I still was able to grill last night (hamburgers and hot dogs - yum!). And in all, it was a good weekend.

March Madness

I broke my leg on Mar 7, 1996. I spent 4 days in the hospital. I remember watching some of the NCAA tournament in the hospital - it was the first time I'd watched television in quite some time.

I mention this to point out that at one point in time, March Madness occurred entirely in March.

This year, I've filled out my bracket. I have done well for me - 21 of the 28 games so far. If things hold as they are now, I'll end up with 23. That's no tbad for me. I'm usually lucky to be at 20.

I don't understand how

You can lose a t-shirt. We're going on our fourth daycare t-shirt in 8 months. Granted, this is for two children, but still...

North Korea Tortures!

That's what this article suggests. Frankly, I'm shocked. We can't allow such a thing - such treatment shouldn't be allowed in the 21st Century. We need to cut off all aid to this backwards, repressive regime and show them that this is NOT how civilized countries act... oh, wait.

I Read a Book!

I am proud to announce that I finished a book yesterday! I start a lot of books - right now I'm working on The Conservative Soul, The Complete Sherlock Holmes, Siege, and if I can find where I left it, Democracy in America. I'm also still thumbing my way through Jefferson and Madison on Separation of Church and State, which is a book those with an interest in the First Amendment should definitely read.

I do read, not as often as I should, but I do read. I would say that one of my favorite authors is David L. Robbins. He has a way of writing that draws you in, almost without you realizing it. The book I finished yesterday is Scorched Earth. It took me a bit to get into this one, it didn't grab me as quickly as some of his other novels, like Last Citadel or (in my opinion, his best) The War of the Rats. However, after about 100 pages, it picked up the pace, and turned out to be one of the better books I've read in the past year. I won't ruin the story for you outside the summary linked above, but suffice it to say, I thoroughly enjoyed the story.

Today, I'm taking the kids to the movies, and when I get back, maybe I'll put some time in on one of these remaining books. As much as I like starting things, it's a nice feeling when you've finished something, as well.

Happy Pi Day!

3/14

I did our taxes today. And the kids watched Return of the Jedi about 4 times.

Why the Republican Party is in Trouble

It's not because their platform, in and of itself is bad (small government, low taxes, state's rights, etc.). It's because there are so many in the party's authoritative positions that take all-or-nothing approaches to the party - you're either completely with us, or not at all. This exclusionary style would be bad enough, but then to try to connect that polarizing form of politics with religion is beyond the pale.

From the article linked above:

We believe to have 'fellowship with the unfruitful works of darkness' for the sake of political expediency, or any other reason for that matter, is to offend a holy God, from whom the blessings bestowed upon this country flow.... For that reason, sir, the Grand Prairie Republican Club holds strong to our Christian heritage and will take no part in knowingly excepting [sic] or promoting any immorality (by attending or promoting your organization) that may hasten the death of the American Government.

Right. God will allow torture, murder, wars based on spurious intelligence, and the usurpation of the Constitution and Bill of Rights. But damnit, you'd better not let them gays be a part of this country!

Words fail.

Drawing a Line Where No Line Should Be

Sean Hannity spoke, and said something troubling: "If we capture an enemy combatant in the battlefield -- or we can use Osama bin Laden -- who may have information about a pending attack. You know what, I don't have any problem taking his head sticking it underwater and scaring the living daylights out of him and making him think we're drowning him, and I'm a Christian,"

Now, you can debate whether this is "justifiable" or not if the person was Osama Bin Laden. I personally think it's not. Even if you did do this to him, there is absolutely no way of knowing that what he's saying is credible or not. Use the ticking time bomb argument - there's a time bomb that will go off in 2 days. All he has to do, the zealot, the fanatic who believes he's doing Allah's work, is lie to us for 2 days until the bomb goes off, and he's succeeded. What's the motivation to tell the truth? That's the fault of this situation, and the practical reason why I am opposed to torture.

As I've mentioned before, I went through basic training and was taught that torture was what the bad guys did. We were above that. We were, that is, until the Bush Administration, who not only authorized it, but also reportedly led an "Executive Assassination Ring" with absolutely no oversight (except to Dick Cheney). Hat tip to Vim and Vinegar for directing me to this must read article. But I digress. The point is, I've long lived under the premise that we were better than them, and as such, we didn't torture. That's part of my philisophical opposition to torture.

Then there's the rational opposition to torture, which stems from the position of "Who are we torturing?" It's one thing to say you'd be willing to torture Osama Bin Laden. It's something completely different to say you're torturing a 15 year old boy you picked up near a place where a grenade was thrown in the direction of U.S. Soldiers. Or when you're torturing a 22 year old medical student at the University of Michigan who has returned to his home in Iraq during break and you picked up in his apartment because he fit the profile of a terrorist. I am rationally opposed to torture because there is no adequate way to ensure that the only people who are exposed to "enhanced interrogation techniques" are the people who truly hold the information you want to elicit from them.

When we began torturing, we started down a road that destroys our freedom. And that's a road I don't want to be on.

What's He Protecting?

That's the question about Obama poised by The Slate this morning. I think it's a fair question. We have an administration that used the specious memos written by John Yoo and staff at the OLC to justify the argument that the President has unilateral authority to ignore the Constitution and the Fourth Amendment if he's doing so in the name of fighting "terror," even domestically, as well as the power to shut down the Freedom of the Press. We have an administration that has used torture as a means of gleaning information, and attempting to justify it.

One of the key moments, and perhaps the great contradiction in positions offered by the administration is summed up in this paragraph from the above-linked article:

Former Bush administration officials do themselves no good when they simultaneously argue that their actions were lawful and necessary—and saved our lives many times over—and that they should also be excused because they were terrified. Stephen Bradbury, then acting head of OLC tells us that the appalling work in the newly declassified memos should be filtered through the prism of temporary insanity: "It is important to understand the context of the [2001] Memorandum," Bradbury wrote, in a memo to the file. "It was the product of an extraordinary—indeed, we hope, a unique—period in the history of the Nation: the immediate aftermath of the attacks of 9/11."

It's important to see just what was authorized and ordered. The most plausible reasons for the reluctance of the Obama administration to make inquiries and release findings on this are: 1. there are too many pressing issues that need to be taken care of. That's true. The previous administration did more grave damage to our country than any administration in the past 120 years. But that doesn't mean he can't take a strong position in favor of transparency, not just in the present but in the past. This works its way directly to the alternative explanation - that President Obama wants to continue with the same shroud of secrecy and privilege that President Bush created. I hope this isn't the case, as this would clearly demonstrate that our country isn't where it was 9 years ago, and in that instance, the Terrorists will have won.

Time to Relax

This is the first day I've not had to work or travel in about 2 weeks. I'm taking it easy. The wife is taking The Boy to see Coraline, which I have little desire to see, but they're both interested in. I have the Michigan State Spartans game on tv and am pretty much just resting.

I do have work that I could be doing, but my remote server is acting up and I'm not really in the mood to try to drive the Apple and the Princess downtown while I try to get something done.

It's pretty much an open thread, what do y'all want to talk about?

Seriously, Sign the Petition

We know that torture took place. We know the Bush Administration and some in Congress were involved. The question that remains is, who was involved?

Remember, George Bush dismissed these incidents as "a few bad eggs." But if the chicken laying them doesn't have to answer, then where are we going?

Larison has the best line I've read so far:

Of course, the use of the phrase “witch hunt” today implies a hunt in pursuit of something that does not exist, while we are fairly certain that there were criminals in the outgoing administration who have thus far escaped the appropriate sanctions of the law. The best argument that witnesses testifying against the idea of forming a commission seem to have had is that the abuses of power and crimes in question are not as numerous as they were under Pinochet and apartheid. Now that’s a claim to moral authority.

It's So Hard to Fly to Indiana (Part 3)

In our last episode, The Binjo Ditch was in Atlanta, where Delta was frantically trying to find the plane it lost. Delta could have sworn they had it when they left the hangar, but when they checked their pockets, it wasn't there. So they had to retrace their steps and see if they could track it down.

Ultimately, at about 11:15 (remember, departure time was 2:42), they get the plane to the gate. This means that we just have to wait a few minutes for the security inspection, and we'll be on our way. The inspection goes without incident, and they start boarding, with a sigh of relief from all the passengers. I get on the plane, and trade places with the wife of the man I had been sitting next to on the flight that blew up. We're all kind of milling around in our seats getting ready, and we notice there are far fewer people than there had been on the original attempt. We chalk it up to people having given up and getting a hotel room, and we start switching seats, and kind of joking about lying down and taking naps on the flight. Unfortunately, this is when the flight attendant comes down and informs us that we're going to have to deplane.

You see, the FAA has these regulations that bar pilots and flight crews from being on duty for more than X hours. Because of the delays and the plane blowing up, our plane's flight crew went over their allotted hours and were unable to fly us at 11:45 at night. They don't have a replacement crew and therefore we are not going to be able to fly out Monday night. My interview is at 1 on Tuesday afternoon. This is perfectly understandable and a very easy mistake to make provided you are completely incapable of doing basic math. I don't quite understand why they started boarding the plane, or even continued to attempt to get the plane before yanking out a calculator to see if the crew could do their job. Hell, we had only been there 11 hours, fingers and a nose should have been sufficient. But apparently the Delta staff at the Atlanta Airport never mastered counting without help.

Anyway, we are told we have bad news and good news. The bad news is that we're not going to be able to fly. The good news is that they are going to give us free hotel rooms! And they're goign to have a special flight at 8 the next morning! It's now midnight. Even better news! They are going to let us have our luggage so that we can change our clothes! Now I have never, technically, *won* the lottery, but I imagine if I did, the joy I felt would pale in comparison to the pure unadulterated glee that this good news provided. Well, it takes us about 45 minutes to get our tickets processed so that we can get on the 8:00 flight, and then we get our luggage and take the shuttle to our hotel. I get checked in to my room (at the end of the hall at the end of the hall at the end of the hall on the top floor, natch), and set my alarm and set up a wakeup call for 5:15 so that I can be sure to get to the airport at least 90 minutes before my flight, lest it leave without me, though I'm not sure anything leaves Atlanta at this point. I finally crawl into bed at about 1:30 and have a terrific catnap.

The good news is that our flight in the morning was only 10 minutes late taking off, which is a minor miracle.

So I call Delta after this debacle and complain about the quality of my flight, and the fact that my compensation so far has been a free hotel room that I wouldn't have needed but for their inability to get a plane that works where it's supposed to be in under 10 hours. Delta, in their magnanimous, supplicantive way, offers me a $100 travel voucher. You can't fly anywhere with $100. What this is is a discount on your next flight. Delta will still make money off of me if I use this, no matter where I fly. It's an absurd attempt at compensation. They wouldn't even give me a first class upgrade over the phone. Fortunately, I got an upgrade when I asked at the check in for my return flight, and let me say, it was nice. But it doesn't make up for the piss-poor service that I received flying Delta Airlines.

Now that you know how the story ends, go back and read parts 1 and 2 of this adventure in absurdity. I don't think I'll fly Delta again, which is a shame, because they're merging with Northwest, and I always had a soft spot for Northwest.

It's So Hard to Fly to Indiana (Part 2)

(You can read part 1 here and part 3 here)

So our last episode had the Intrepid Binjo Ditch making his flight with minutes to spare. He's happy to report that he made it to Atlanta a few minutes early, which he knew would be helpful in getting a meal, and just relaxing that little bit more. As I deplaned, I went and checked the screen for where my connection would be - gate B10. I'm at gate B34 (or something), and thus have to walk halfway across the state. I get to the gate and attempt to get my boarding pass only to find out that my gate has been changed, I now have to go to gate B25. Joy. I get to the gate and get my boarding pass and find something nice to eat (Nathan's hot dog and fries, not bad, but definitely overpriced). I enjoy my meal and have a pleasant conversation with a woman who is waiting to fly to Nashville, but her flight has been delayed. As I'm sitting, and with about an hour before our scheduled departure, we get a notification of gate change for our flight. I have to move again - this time it's only 3 gates (to B22), but it's now my third gate at Atlanta.

We get to the gate, and notice that the departure time is about 30 minutes later than what is scheduled on our ticket. A few minutes later, the concierge gets on the speaker and informs us that due to the weather (I think this is what we were told), our plane did not arrive, so we are in the queue to get a new plane from the hangar and we should have it here in about 30 minutes. It will then take about 15-30 minutes to do a security sweep of the plane (Threat Level Orange) and stock it for the flight. Great. I was expecting to get in to town at 4:15 and have time for a nice leisurely dinner with my in-laws who were planning on driving in to meet me. I'd then be able to relax, go over my resume and notes, jot down some questions of my own, and just be relaxed for the meeting. A 1 hour delay isn't going to be deadly - an inconvenience, yes, but not deadly.

Of course, this isn't the end of the delay. Apparently it takes some effort to get a plane to a gate from the hangar, as this brief 30-60 minute delay gets delayed by half hour increments (and one one hour increment), until such time as our plane arrives at 7:30. I'm chatting with another passenger who was part of a group that had been snowed in the previous day, and part of their group decided to charter a bus, which was 2/3 of the way to Indianapolis by this time. We also make various jokes about how long it will be before the plane arrives, etc. We get on the plane and a German individual I met who was on his way to Indianapolis as well looks up and says "we're finally on our way." I reply that I'm not taking anything for granted and want to wait until the plane is in the air before I trust anything after a 5-hour delay.

But, we get fully loaded, do a thorough pre-flight check, and we start our taxi out to the runway. We get up to next in line, and are ready for departure. We accelerate, getting up to lift-off speed, just about to take off, and there's this loud "pop!" Our right engine blew. The pilot thinks some debris hit the engine, but regardless, it's going to kep us from leaving. We then have to sit on the tarmac for 30 minutes waiting for a tow truck. We get back to the gate (B15) and are told that they will have a replacement plane ready for us at gate B11, if we wish to wait a few more minutes to take off. Most of us decide to wait, we're told it will only be a few minutes. One of the passengers, about 15 minutes later, decides to check on the status of the new plane, which we note is conspicuously absent from the gate. We are told it's on the way from the hangar and that it should be there in 15 minutes. Fine, we can handle that.

About an hour and a half later (it's now about 9:45), we check on the plane that was supposed to be there in 15 minutes. The concierge checks with the hangar and gets in the intercom to inform us that "our plane left the hangar about 30 minutes ago and should be here by now, but they need to see what's going on because it's not here and we don't know where it is." Now, I'm not entirely sure how one goes about losing a plane, but my first thought is "did you check your pockets," because oftentimes if I'm looking for a pen or keys or something, I find that they are in my pockets. I'm also somewhat bemused that a major airline can LOSE A PLANE!

I thought I'd be able to finish in 2 parts, but unfortunately, I need to get to work, so I expect there will be a part 3 in the making this evening.

It's So Hard to Fly to Indiana (Part 1)

So, as a few of you know, I had to take a trip to Indiana this week for a job interview with a Federal Agency. Being a federal position, I wanted to ensure I took a little extra effort in getting prepared, and one thing that I sorely needed was business cards. As a staff attorney, I don't rate business cards at my practice, so I had to order some on my own. This meant going to Kinko's as they have 24-hour turnaround. I made my order Thursday, which, with 24-hour turnaround means they will be ready by Monday.

I call Sunday to check on the cards, just to see if maybe a delivery has been made, and the employee puts me on hold, checks, comes back on the line and tells me they are in. This is about 10:30 on Sunday. So I go to Kinko's to pick them up. They aren't there. Not only that, but the worker can't find the order that was placed on Thursday. She asks if I have a copy of the style I was looking for. Of course, I don't, because I left the copy with the person who took my order. I ask if they have something she could make really quickly and, fortunately, they do have "quick cards," which are extremely basic, but fit the bill. We then spend the next 2 hours making these quick cards, and then trying to cut them - which is a difficult task, because the cards come out crooked on the paper as she's trying to print them (not operator error). Finally, we get the cards, after 4 tries. They still aren't completely straight, but I don't care, because they are nearly straight, and it's 8 hours before my flight and I've not yet slept. Let me note that the woman working was quite helpful and very apologetic about the difficulty getting this together. She did more than she needed to (really), as she was conveniencing me even though my order wasn't scheduled to be ready until the next morning. She also decided to not charge me for my cards, which was rather nice, as well.

Next morning (this is Monday), I get up and start getting the kids ready for school. The Apple, who's been wanting to go to daycare with Mom for over a week, chooses today to decide he wants me to take him. The Boy and the Princess's bus shows up at 7:15 and my flight is at 9:35, with about a 40 minute commute to the airport during rush hour, so I'm already going to be within the "at least 2 hours early" window. Fortunately, the Apple is convinced (grudgingly) to ride with Mommy to daycare, so I can just drive straight to the airport.

I get to the airport at 7:55, find a terrific parking spot right next to the elevators, and make my way to baggage check. As I get to the escalator, I make a mental note that my bags seem awfully light, which allows the realization that I only have my laptop, and not my suitcase with me, to come to the forefront. I have about 1.5 hours until my plane leaves, and my suitcase (with my suit) is at home. I do some quick math and figure if it takes about 30 minutes there and back, I should have just enough time to get back to the airport and get checked in and through security to make my flight. So I do this. I make better time than I thought I would and check my bag with about 45 minutes to spare, thanks to a helpful clerk who allowed me to cut in line. I then get to go through security. Unfortunately, the Airport had a power outage and the metal detector you walk through is not yet on line, which means they have to use the wands on everyone. This means I get to get in a line about 30 people long with about 30 minutes until my plane is scheduled to depart. I make it through, though the 3 men in line after me all get to get scanned and pass through before I do (not really a slight, but kind of annoying given my status as being in a hurry). But I make it to the plane in time, and even get to take a bathroom break.

That was the first in a 3 part series. You can read part 2 here, and part 3 here.

A Victory for States' Rights

The Supreme Court issued its ruling in Wyeth v. Levine. In a nutshell, the story is that Wyeth, a drug manufacturer makes the medication Phenergan, an anti-nausea medication that can be administered via the "IV Push" method. This method of administration involved injecting the medication directly into the vein of the patient, which differs from the "IV Drip" method which would involved placing the Phenergan into a solution which would then drip (like you see with all the sick patients at the hospital, that kind of bag). Unfortunately for Levine, this medication was administered to her via the IV Push method, which carries the risk of the medication inadvertently being injected into arterial blood or "migrating" to the artery through a process called "perivascular extravasation," and, as a result, she developed gangrene which resulted in her losing her arm - a painful blow to a musician. The trial court in Vermont found that had there been an adequate warning on the label of this risk, that this injury would not have occurred (ed. note: or that the decision would have been an informed one by the client). Wyeth appealed on the premise that because the FDA (A Federal Executive Branch office) approved the medication, that approval pre-empted any state failure to warn claims. This, of course, is patently absurd.

in a 6-3 decision, the Court held that "Federal law does not pre-empt Levine’s claim that Phenergan’s label did not contain an adequate warning about the IV-push method of administration." Ironically, Chief Justice Roberts, Justice Scalia, and Justice Alito were the dissenters - who opined that the Executive Branch can pre-empt state law (strict constructionist? Only when it serves their position).

Essentially, what Wyeth said was that it was impossible to comport with both FDA regulations AND state law, which is absurd. he FDA's "Changes being effected" regulation would allow Wyeth to add a stronger warning about the drug's risks in advance of a supplement application being approved - probably to protect from potential injury to American Citizens who would be placed in harm's way between when the risk became known (a causal connection is NOT required) and when the label change could be effected.

While I have read the Opinion, it is 80 pages long and it's a little late this evening to do an adequate summary.

Understand that Wyeth conceded that But For their label being inadequate, the injury would not have occurred. They also conceded that the inadequate label was also the proximate cause of the injury. Their ONLY leg to stand on was the pre-emption argument after the jury found for the Plaintiff. The ramifications of this could have had lasting, damaging effects for people who use pharmaceuticals (i.e. Everybody) had the Court held in favor of pre-emption.

The approach to the decision was based on two pre-emption "cornerstones." from the opinion:

First, “the purpose of Congress is the ultimate touchstone in everypre-emption case.” Medtronic, Inc. v. Lohr, 518 U. S. 470, 485 (1996) (internal quotation marks omitted); see Retail Clerks v. Schermerhorn, 375 U. S. 96, 103 (1963). Second, “[i]n all pre-emption cases, and particularly in those inwhich Congress has ‘legislated . . . in a field which the States have traditionally occupied,’ . . . we ‘start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.’” Lohr, 518 U. S., at 485 (quoting Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947)).

In other words, the presumption is that the States traditionally have the power unless it clearly states in the Federal Act that Congress intended the States' rights to be pre-empted. Wyeth argued (and this is somewhat rich) that this presumption doesn't apply here because the Federal Government has regulated drug labeling for over a century. That doesn't touch on whether the label was adequate, and clearly doesn't touch on whether remedies were available to Wyeth. Moreover, it ignores the fact that the presumption exists out of respect for State Sovereignty. The dissenters, those Strict Constructionist ardent fans of stare decisis they are, adopt a position strikingly opposite that of precedent, and argue that when the claim is one of an implied conflict pre-emption, the presumption against the pre-emption should not apply. This is would be akin to saying that there should be times that strict scrutiny should be presumed to be pre-empted, hypothetically, a law that prohibits people who are registered Libertarians from voting (a fundamental right). In a word, that's absurd.

This is already a very long post, and I don't want it to go on too much longer. You have the holding, you have the facts, and you have a bit of what Wyeth's premise was. Now it's time to (briefly) discuss the potential ramifications to you and me had the Court sided with those Strict Constructionists. The primary problem would be that it would create an enormous shield for drug companies to protect them from liability for harmful and potentially deadly products. It also would create a situation in which drug companies would be tempted to not be as forthcoming with facts about potential harmful side effects in order to get the indication approved so they can start selling their drug sooner. It would encourage the withholding of information necessary for the FDA to allow for an accurate label, and would provide no incentive for the drug companies to remedy potential harm from side effects discovered after their mad rush to get the drug approved for sale as quickly as possible.

For those who might argue that this just encourages more litigation, I have a couple things to say - first - the drug companies can avoid their problems a couple different ways, first and foremost is to change the label or send out the DHCP letters as soon as possible and not try to use fancy math to hid the dangers posed by the drug. Second, don't push the approval so hard. In a related vein, it should be noted that had this case gone the other way, it could have dried up the litigation in this arena, but it also would have dried up the defense in this arena as well. This is probably why the attorneys for Wyeth, who aren't stupid, had been trying to get this holding to be reserved to the facts in this case - in other words, the cases would have continued regardless. Wyeth's attorneys didn't want to put themselves out of a job either.

That's a long summary, and I didn't touch on Justice Thomas's concurring opinion, which is very well written and supports the position that the three dissenters claim to advocate. But, it's important that this holding came out as it did, for all Americans, not just those whose last name is Inc., LLP, or the like.

Stories to Tell

It's been a long 48 hours. I'm still at the airport, so I won't have an update until I get home, but I promise, it'll have you either laughing or outraged.

Will They Ever Learn?

Rush Limbaugh is a Conservative Talk-Show host with a lot of pull. He apparently thinks pretty highly of himself, as Papamoka points out.

To get a snippet of the talk-show host's speech, particularly the great line, "One thing we can all do is stop assuming that the way to beat [the Democrats] is with better policy ideas," go to Andrew Sullivan.

Yes, Americans don't want their politicians to come up with good policy ideas - that would be absurd.

This, my friends, is the loudest voice on the Right.

This Just In - Bush is a Four-Letter Word

At least, that's what this Yahoo! article says.

Apparently, some in the Republican party are starting to recognize that the past 8 years didn't go so well. While I'm glad that this galvanic reaction has finally arrived, the question is where to go from here. How do the Republicans regroup?

One thing they need to do is own their mistakes - I don't just mean acknowledge that the previous administration was incompetent, dangerous, and potentially in violation of the law (sign the petition!), but I mean acknowledge that you veered down a dangerous path.

One of the quotes I read in the above-linked article troubles me with this necessity - Indiana's Representative Mike Pence: "the American people walked away from us, so now we’re in the wilderness.” No. They did not walk away from you - you followed a path that was not on the map you sold the People. The American people didn't walk away from the Republican Party, the Republican Party walked away from the American People. After 8 years of an administration that believed in cutting taxes, increasing spending, running around the Constitution and International Law (Geneva Conventions are the Supreme Law of the Land), and the most governmental expansion in the past 60 years, the American people chose not to follow you into that wilderness. What you need is not to draw the American People back to where you are, rather you need to go to where the American People are - and this is something President Obama thus far has done much more deftly than any politician in the past 20 years.

It's not a difficult choice when the choices are between a party whose current President encourages bipartisanship to such an extent that he makes 300 Million in tax cuts after meeting with the Republicans in Congress and trying to find common ground, and a party whose talk radio spokesman tells his dittoheads that he hopes the President "fails." Given the current void in a lead politician in the Republican Party, going to the chief dittohead for policy position is no stretch. The question is, will he remain the face of the Republican Party? If so, the Party shall remain to be a caricature of serious politics.

Flush Rush?

Could the problem with the Republican party be their spokespeople?

Moving

Offices.

Our firm is expanding/moving, which means I'm moving. I will be moving up one flight to the new floor we will be occupying. This is bittersweet, as I'm leaving the office I've had for the past 9 months, and to which I've grown rather fond. Additionally, I'm leaving the floor/area where most of the people I know/spend time with are. We're moving in an effort to consolidate the different practice areas, so that those working on one docket are all together. It makes sense, and should make things rather more efficient. I'm also glad that I'm switching offices, and not leaving, as we've had a few people be asked to leave recently.

I'm in a relatively sturdy place for the time being, but who knows what the next 6 months might bring?

I Hate CSI Miami

Yes, I watched it this week. Yes, it was as dumb as ever.

So what happens is that there's a psychologist who practices out of her house. I won't comment on the logic of inviting violent personality types to your place of residence. After one session with a client who gets really upset that the hour is up, we cut to the next morning where the psych's daughter is dead in the office.

Police are investigating and the mother states that she doesn't understand why the daughter was in there in the first place, as she's not allowed in that room. Well, we all know that if a parent says "don't" do something, the children "do" it. At any rate, as the rest of the team shows up, The Jaw (aka Adam Rodriguez) looks around and notices "this is my psych's office." I find it odd that he has to get inside the office to come to this realization, as opposed to recognizing the address, or the house, but I guess attention to detail isn't terribly important when you're a crime scene investigator.

The team determines that the murder weapon was 7 inches long, because it chipped a tooth, even though it went in through the back of the head. This, of course, gives them reason to play back the death blow several times, so we could see the tooth chip - key to solving any murder.

You know what I find most bizarre about this? At no point does the CSI team even CONSIDER that the killer might be the mom. Seriously - isn't family usually a pretty good starting point?

Anyway, they go through a list of several suspects, all of whom are the psych's clients, even though the client doesn't give any names. They have the spoiled trust fund boy, the aggressive guy who was the last client she saw the night before, and the ex-con who's going through a divorce. Unfortunately, they all have alibis. But the son remembers seeing a car drive away with vanity plates (how lucky can you get!) and he remembers them (even luckier!). These plates belong to the wife of the ex-con who was there "just checking in on her husband to get some dirt for the divorce."

They then find out that someone stole the psych's files - so they have to investigate that, and manage to find fingerprints on the inside of the file cabinet. Here's the great thing - they only find fingerprints from ONE person, and they just KNOW it had to have been from the murder or the day after - it's ex-convict! They go and question him again but he was fishing with his son. This leads them back to his wife, who is a hair stylist. As El Poseur is questioning her, he notices her work station has a pair of scissors in that blue crap that stylists keep their utensils in. The scissors are sharp, so EP brings her and her scissors in to investigate. They find no blood (they've been cleaned and disinfected), but, amazingly enough, they do find ONE PIECE of brain matter. She cleans the damn things, is sensible enough to do that, but doesn't get everything? And cleaning the blood doesn't happen to wipe off the (relatively) large piece of brain they find? I'm more impressed that the scissors aren't hurt at all from going through the bone or chipping the tooth, but finding a piece of brain that belongs to the victim? Pretty astounding. Still, was she planning on using those scissors to cut people's hair after that? And what was she doing at the salon with nobody in it? Was she opening it? Or does she just like to hang out there after stabbing someone in the brain? Anyway, what a fortuitous turn of events for the CSI Miami team, and it only took what must have been 3 minutes, since it was still that morning when they got her to confess!

There's a whole lot more going on - much more crazy luck. The other murder suspects (trust fund and the rage guy) both end up committing other crimes - trust fund burgles, apparently, and rage guy, they catch killing the lady because they read all her files. I'm glad the cops are willing to violate the law to keep us from doing so. Makes that liberty thing seem so important.

Anyway, maybe next week will be a believable episode.

Wednesday is Haiku Day

80 Degree high
Is what they predict today
Ahhhh, Houston Winters!

As always, I look forward to your contributions!

The Speech

I watched the majority of the speech last night, but not all of it. My overall impression was favorable.

I thought President Obama did a very good job of not mincing words and speaking plainly and intelligently. He did not vilify the previous administration but did note that the current administration did inherit a difficult situation.

I did manage to hear him say some things that I've been waiting for a President to say for some time. First and foremost, President Obama stated in no uncertain terms that the United States does not torture. This is key to maintaining our way of life as well as our standing in the international community. This stands in stark contrast to the previous administration's hair-splitting (e.g. what is "torture," Extraordinary rendition, etc.). The next step is to show it - call for hearings, investigations into what may have been illegally done in the past.

The next key statement President Obama made was that education requires the family, "there is no program or policy that can substitute for a mother or father." This is subtly eloquent as it notes that the government is going to continue to work on education while reminding the American People that they cannot rely on the government alone to make it work. This is in stark contrast to the position of the Previous Administration and the way NCLB was originally sold - that the teachers and schools are failing the students, with little to no mention of the need for home support. The President not only made this statement, but he coupled it with a challenge to the students of today, "Dropping out of high school is no longer an option. It’s not just quitting on yourself, it’s quitting on your country." Again, this is an outstanding statement. It connects a personal obligation with a patriotic one, showing that we are all part of a greater equation, but that all are important individually. Brilliant.

The President made some very ambitious statements. I'm not convinced that he will be successful in all he hopes to accomplish, but he strikes me as sincere in wanting to achieve what he sets out to do.

Andrew Sullivan live-blogged the speech. His assessment can be found here.
DB compares President Obama with Gov. Jindal here.
Joe Gandelman of The Moderate Voice asks if the speech put the President Left of Center?

Hypocrisy Inaction

According to a recent poll, 74% of Republicans are worried about the deficit.

While that is indeed something that deserves worry, and it's certainly an issue that needs to be tackled, let us not forget that of these selfsame "conservatives," only 45% were worried about the deficit in December (when there was a Republican in office).

This is the same party whose most recent Vice President once stated "deficits don't matter."

Like Andrew Sullivan, I am glad to see fiscal conservatism return to the GOP, and amused by the timing of this moment of clarity. I wish I could believe that it was sincere, and not a knee-jerk partisan stance, but I need some evidence of bipartisanship, particularly in light of the Republican near-lockstep refusal to participate in the President's stimulus plan.

Calling for an investigation would be a good start.

Good Luck

To the February 2009 Texas Bar examinees. You'll be fine.

Ahh, CLE

I did a free 30 minute CLE this morning. Having to finish 15 hours a year, it makes sense to do as many free ones as possible - the more you do, the fewer you have to pay for. I have no problem with that.

Today's CLE was on communicating with your clients. They discussed different personality types - I'm a "Blue," as opposed to a "Red," "Yellow," or "Green." Apparently, I like to have structure, yet have some lattitude in how I perform. That's not really surprising, to me, though I think the stereotypical attorney is the Red - the guy who doesn't want to be muddled with details, just wants the facts and to render his opinion.

CLEs are not the most exciting thing in the world, but they've gotta be done.

Malaise

It's not just for Ham Sandwiches anymore.

I feel like I'm in a rut again. This happens from time to time.

Perhaps I need to go fishing. It's been quite a while.

Irony

"I think only a fool would be unconcerned about any kind of commission or investigation in this political town and in this political climate. Having said that, again, because I feel like I’ve got nothing to hide and I’ve done nothing wrong, I’m not worried about the truth, so long as what we’re talking about is the truth and things don’t become politicized" - Alberto Gonzalez (Quote found at Andrew Sullivan, who linked to this article)

Again - sign the petition!

Wednesday is Haiku Day

Stupid weeds conquer
Overtake my lawn, kill grass
But, I have a lawn!

Super Bowl Halftime Show

They've had some big names in recent years. Ever since Janet Jackson and her nipple made their appearance, the Super Bowl has gone to well-established (i.e. old) performers - the Rolling Stones, Pal McCartney, Prince, Bruce Springsteen, etc.

The question posed on Mike & Mike in the morning a few days ago, and I think last year at some point, as well, was who should go on next? There are still a few strong performers out there, but who's really established that could fill the shoes?

The first (and probably most obvious) is Bon Jovi, and I think that would be well received, to be sure. But then who? I would think Queen would be a good fit, but are they the same without Freddie Mercury? I've not really heard them since he passed. I've heard the name AC/DC...

Any thoughts?

Inquire Within

When the President "defends" his torture policy by saying "I got legal opinions that said whatever we were going to do was legal," (courtesy Andrew Sullivan) what he's saying is he wanted legal cover to do what he wanted - at least, that's how I interpret the statement.

Torture took place during the previous administration - that much is clear. The Justice Departments OPR looked into whether the legal work of John Yoo and Bybee, as well as Steven Bradbury, "was consistent with the professional standards that apply to Department of Justice attorneys," (also from Andrew Sullivan's blog, citing Isikoff).

There clearly needs to be an impartial investigation into what transpired at the top levels during the previous 8 years. Sign Senator Leahy's petition.

The End of Partisanship?

Yet Limbaugh is already publicly stating he hopes Obama fails. I know he's a partisan, and I know he gets his ratings on his nattering, but come on - stating you hope the President's stimulus package (with no House Republican votes and only 3 Senate Republican votes) is "blown to smithereens" to teach Americans a lesson - that's beyond the pale.

This is why I can't listen to Rush.

(for a better take on this, check out The Moderate Voice post here)

In Search of the Truth

I was at Vim and Vinegar's blog this morning - a great blog that you should read regularly - and I saw that she had a post regarding Senator Leahy's petition for a Truth Commission to inquire into what transpired during the previous administration - who knew what, who authorized what, what was lawful and what wasn't...

There is a difference between a witch hunt and an investigation - Senator Leahy is calling for the latter, which I support.

The petition is available here. I signed this morning, and, regardless of party affiliation, I encourage you to do so, as well. Government transparency is in the interest of all Americans.

Those Persecuted American Christians

According to Mike Huckabee, that's exactly what the stimulus bill creates.

In a nutshell, he says that the Stimulus package is anti-religious because it prohibits stimulus funds going to "schools and houses of divinity." Because those churches can't survive without the government funding them.

What gets me about this is that the Christianists (to borrow a term from Andrew Sullivan) seem to not understand that it goes both ways - if the government is giving the church money, then the government gets to say how the money is spent. Keeping the money away avoids the threat of excessive government entanglement in the church. The last thing I want is the Federal Government telling me how or when to pray. If I wanted that, I'd move to Iran.

This is really just a nutshell encapsulation. For a better parsing of the situation, I recommend going to DB's post on the topic here.

And I Bet He Didn't See the Irony

I was driving home from work on Tuesday and as I was getting on the loop, I found myself behind a truck (Silverado? F-150? They're all the same to me). What I noticed about this truck was that the owner had two bumper stickers attached to the rear window. The first one read "Mcain/Palin Country First," which I remember from the campaign. The second bumper sticker was a sticker of the Texas Flag with the word "Secede" superimposed.

Gotta love Texas.

Wednesday is Haiku Day

Glistening raindrops
Gathered on the rush hour drive
Accidents await!

I'm Convinced

I'm absolutely convinced that that mandatory switch to digital was a ploy to get everyone to switch to Cable or Satellite. Our reception was fuzzy before, but you didn't have the choppy, crappy outages when there was a breeze or overcast skies.

I Hate CSI Miami

Let's just stretch reality that little bit more, shall we? Seriously - Puff Daddy as a lawyer?

The episode starts with a murder trial - Diddy is the defense attorney. While speaking to the witnesses, and the jury, he continually refers to his client as "my client." That might be fine and dandy, but I always imagined you wanted the jury to associate a name with the defendant. I could be completely off here - someone follow up with me on this, but I think a jury would have more trouble convicting "tommy" (or whoever) than "the client."

During closing arguments, the prosecutor points out that the defendant never testified in his own defense, and suggested that in and of itself was evidence of his guilt. Mistrial. That simple. You cannot use the fact that a defendant exercised his 5th Amendment right to not be a witness against himself as "evidence" of his guilt. The trial should have ended right then and there. Of course, it didn't. Instead, the case goes to the jury, and while they are deliberating, El Poseur is having a discussion with the deceased's father. Immediately, EP is at the CSI body bag center, where the victim is still in stasis. Odd that a murder trial could be put together more quickly than it takes a body to be buried, but, hey, it's Miami - I guess anything's possible. After all, Puffy Combs is a lawyer! As the jury renders its guilty verdict, EP is asking to see the corpse, and, amazingly, there are flies all over, which leads EP to say "this changes everything." Cut to opening theme. Someone explain to me how a body could be resting at room temperature (so that the flies could be roaming about, maggots and all), without decomposing in Miami, long enough for an arrest to be made, DNA to be extracted, a trial to begin, be conducted, and go to jury instruction and not have any sense of "you've gotta be kidding me!"

The jury of course, finds the guy guilty, just as CSI realizes that they got the wrong guy.

I miss a little bit, though I don't think I missed anything. I find it somewhat amusing that the whole point of this episode is to show how El Poseur, the Smirk, the Jaw, Doe-eyed girl, and company screwed the pooch by not considering alternative suspects when going after "the guy."

Pretrial discovery must not exist in Miami. The Smirk starts looking at some sources for some blood they found, and decides to check golf gloves. Fortunately, she finds a match. What luck! A golf glove that matches blood stains! What are the odds?! Seriously, what are the odds that they can find a glove that would match the blood pattern at the scene (and the odds that these professionals would skip such an "obvious" step in the process the first time around)?

They then decide to detain the one guy on the golf course who has that glove, though he volunteers that several people have those gloves, but they aren't suspects. He is, though, because his friend used to have relations with the corpse (before she was a corpse). Makes sense to me.

Some police brutality ensues, as they try to outsmart Attorney Diddy. Torgo stops the suspect, because he was going 36 in a 35, and is driving around with a broken taillight.

He has to surrender his badge and gun, but turns his camera over to The Smirk and the Jaw. They inspect his pictures, and see a broken tail light that was broken "from the inside." they enlarge and enhance the picture, and magically see an eye! Someone is alive in the trunk of the car! Just imagine, if this guy hadn't assaulted the driver, he never would have been in the absolute perfect spot to take a random photograph on the way out clearly showing an eye!

I just love how the CSI team is there to execute the search warrant. Now, was the warrant for the house, or the car? Apparently, doesn't matter to these guys, or Sean "Puffy" lawyer, who lets them search everything.

I just don't want to say anything about P-attorney telling CSI where to look for the allegedly kidnapped person, but at least it gives EP a chance to ride in a helicopter using IR equipment! Do they have a bold cutter to find the kidnapped girl? Yes! They do! El Poseur to the rescue once again!

Seriously, DNA from an air filter? Nobody else was in the car, ever, except for the corpse and the suspect? What a load of crap!

P-Diddlesticks should be disbarred. He's one crappy lawyer.

Ooh, a twist - the judge is dirty. We didn't see that coming. What a surprise. and now the judge, who has a brain, you'd think, is sitting here spilling it.

Now, convicted guy from the beginning of the episode is released, even though there's no evidence that his conviction's been overturned, or that he's been paroled... but who cares about that? CSI was right again! (except for the convicted guy who's been in jail this whole time).

Bar Exam - Full Court Press

If my math is right, then the February Bar Exam is right around the corner. If that's the case, then there are probably scores of very stressed out recent law school graduates who are really feeling the pressure right now.

Let me reassure you for a moment. This is a stressful test. It's a difficult test. You will question many of your answers, even the ones you think are very simple. But - this test is not impossible. Average pass rates over 80% for most schools over the previous 3 exams should attest to that. What you need to remember is that this test goes over basics. It's pretty simple - use your IRAC, issue spotting is going to be easy with the essays. If you don't know the rule, make one up - you'd be surprised how often common sense gets you very close to the rule (practice this with your yellow book essays).

With the multiple choice, the best advice I can give is - don't think too long. If one answer jumps out at you, look at the question again to make sure you understood it, and if so, then go with it unless you know otherwise. Make certain you read all the answers, though - you'll surprise yourself at how often you neglect to do this.

The test is designed to stress you out. It's not designed to fail you - the state gets no annual dues from you if you don't pass, so they're rooting for you, too.

At the end of the day, you'll be fine.

And don't bring your books to study during lunch. If you don't know it by then, odds are highly against you learning it between sessions.

And for those of you testing in Houston, try not to think about how close you are to where the manure from the HLSR gathers during the stock show - unless you want to remember that you're not the only one who's filled that room with BS...

Go Red Wings!

I miss hockey. We don't see much of it out here. I should buy more tickets to the Aeros (local AHL affiliate), but it's kind of a luxury we don't really have...

To Market, To Market

I'm off to Indianapolis at the beginning of next month. I'll be there for a couple days. This time, though, it's not for a deposition.

I'll explain later.

Amazing

It's amazing how different a drive can feel on tires that don't have tread showing. There's a noticeable difference in the minivan's performance now that we have the tires changed and the alignment done. Hopefully I'll get a little better mileage, too.

How Can You Compromise?

I have heard recently that the recent attempts to reach a compromise on the stimulus package that President Obama is attempting to get passed has turned into a "victory" for the Republicans. Apparently, (and I really haven't paid close attention at all, so I could be far, far off base on what I understand) President Obama went in a spoke with the house Republicans. They explained their hesitancy with the bill the President wanted. They suggested alternatives. The President yielded some, but not completely. As such, the Republicans voted no en masse.

Now, the quagmire has become a "victory" or, at least, an "opportunity" for the GOP, according to some. Because they didn't want to play nice.

I don't know if the stimulus is the right thing. I don't know if it will work. And, I really don't know how much different either side's position is. But that's not really the point. The point that I see with this situation is this: You can't compromise when one side refuses to yield at all. It bothers me, that after 8 years of stubbornness - "do it my way, or else" from the White House, we have an executive that understands that no political party has the exclusive on good ideas or what's "best" or "correct," and we have a minority party that refuses to even come close to playing nice.

Evidence that the President is attempting to compromise? The Democrats are reportedly unhappy with the bill, as well, now. And we all know a good compromise leaves everyone unhappy.

In Case You Needed

Another reason to NOT vote for Rick Perry, I have one. He was endorsed by Sarah Palin because he's a (in her words) true conservative.

My feeling on the matter is that anything Palin comes out in favor of is immediately suspect and potentially dangerous to the general welfare of the nation. (I'm being a bit snarky, but I think she was a horrible selection as a VP candidate and I don't trust her judgment at all).

New Tires

The minivan's tires are bald. I mean, really bald. Tread is showing in multiple spots on one of them, and all of them are looking pretty haggard.

So we're getting new tires today.

Being strangely finicky about what I'm picky about, I have taken to shopping around for tires. Last year, when I was getting new tires for the Chevy, I ended up getting Goodyear Assurance. I originally was looking for Michelin Destiny, which I understand has a great tread life and isn't too loud, but Discount Tire (great place to buy tires) didn't have any. I am happy with the Assurances. They are smooth, handle very well (particularly compared to the 7 year old Bridgestones that were original on the car), and increased our gas mileage noticeably.

So when I was looking for something for the minivan, I figured I'd look at the same place. The prices are a bit high for what I was willing to pay for the minivan's cars, as I don't expect to keep it for more than another couple years. So instead, I'm looking at Firestones. I used to exclusively buy Firestone, not necessarily by conscious decision, but because whenever I needed to get new tires, the closest shop was invariably a Firestone. I don't have any issues with them, but I think Goodyear quality is a little better - something I noticed when I had to replace a dead tire on my Escort. Anyway, I'll be going in today to replace the tires; hopefully it will go fairly quickly.

Talent

I think our kids have musical ability. The Boy can read music - he taught himself last week. The Princess can already play by ear. I think she played "Hot Cross Buns" the first time she picked up the Boy's recorder...

I'm impressed.

Projects

The Boy has a new project. He has to study an historical Texas personality. The individual he must study is James Butler Bonham. It should be interesting - Bonham was once a lawyer in South Carolina, until he hit opposing counsel with a cane. He was at the Alamo. I don't know anything else about him yet. Hopefully, I will learn more as the Boy studies.

If/Then

I heard about this on the radio yesterday. If you are so completely unable to enjoy a football game without making bets on:

The final score
The MVP
The number of turnovers
The first song Bruce Springsteen will sing
The last song Bruce Springsteen will sing
Who the first person the MVP will thank ("God" is even money)
How long Jennifer Hudson's version of the National Anthem will be
The color of the gatorade that will be dumped on the winning coach
How many different foods John Madden will refer to during the game

Then maybe you need to check yourself in for some therapy.