Monday, May 17, 2004

hired guns.

John & Belle Have A Blog
May 16, 2004
A License to License to Kill
Matthew Yglesias has this crazy idea that Clash lyrics explain all. At least about Iraq. This does bring the following to mind:

This is England We can chain you to the rail This is England We can kill you in a jail

baude has published the answer to the chess riddle that had me stumped.
and quotes justice marshall, my second favorite lawyer.

law student pulled over by cops at not for sheep.

Saturday, May 15, 2004

How to cook a Texan.
Chapter 1.
Low and Slow
This is a derivative work, one i am afraid will be mistaken for satire. some rights reserved. all liability disclaimed.
As promised, here is the post on smoking a Texan on your backyard grill. If I leave any questions unanswered (or if anything is unclear), improvise.

Cooking a texan on the backyard grill requires dedication. It requires a fairly constant, but low, temperature, and it requires a lot of time. "Low and Slow" - this phrase will become your mantra. If you are not prepared to spend the better part of a day monitoring your grill, then this is not the project for you. Please note that monitoring the grill does not require that you abstain from all other activity. In fact, polishing off several beers is the ideal activity to pair with barbequing a texan.
Note that I assume the reader has a basic familiarity with his or her backyard grill, how to clean it, how to build a fire, how to regulate its cooking temperature with the vents, etc.
Also note that I have included two recipes - one for the dry rub and the other for barbeque sauce - at the end of the post.
Backyard texan, the lowdown.
Choose a young, full grown texan. Cut from the breast section of a side of long pig, the flat and the point. The flat is the larger section. It is wide, flat (duh) and can be served sliced on a sandwich or sliced and piled high on the plate. The point section overlaps the flat. It is fattier and contains a great deal of connective tissue. It tends not to slice as well as the flat. The point is usually served chopped. Oh, and the point section is pointy (but I bet you already knew that).

Texans are tough and it has to be cooked past well done in order to be edible. It needs to reach an internal temperature of at least 180 degrees F and somewhere closer to 210 degrees is best. Otherwise, it is a chewy inedible abomination. That sounds crazy but it's true. The reason is that he is full of tough connective tissue (collagen). You must cook the carrion at a high enough temperature so that the collagen which runs throughout the muscle converts to gelatin. Collagen begins to convert to gelatin at around 130 degrees but this conversion is much more rapid at around 180-200 degrees. "Low and slow" cooking - 225-250 degrees for several hours - is the ideal method to facilitate this conversion.
Preparing the body.
Look for one in the 8-12 pound range. Anything larger will likely be too large to manage in a standard backyard grill. When you get it home, rinse it with cool water, pat it dry with paper towels, and trim the large section of fat over the point. Do not trim it completely off - you need to leave some fat to keep the corpse moist through the long cooking process. Just trim the fat to an even 1/8 to 1/4 inch layer. Next, apply a small amount of extra virgin olive oil to your hands and then rub the dry rub (see recipe, below) into the body.* Really massage the rub into the meat ("rub" - get it?). Once you have a good coat of dry rub on the flesh, wrap it tightly in plastic wrap and place it on a baking sheet in the refrigerator. Let it sit for at least 2 hours, preferably 24 hours (or up to 2 days).
*There are some "purists" who use only salt and pepper as a rub. If you want to be a snob about it, then go right ahead. But it is not heresy to use a dry rub on brisket.
Preparing the grill
Once you rustle up a body make sure you pick up some wood chunks to add smoke to your fire and flavor to the meat. Mesquite is the preferred wood. If you cannot find mesquite chunks I suppose you can use hickory. Honestly, though, find some mesquite. Hell, even the Wal-Mart carries mesquite chunks.
Before firing up the grill, you must attend to several other items. First, the wood chunks need to be thoroughly soaked in water (otherwise they will burn). Put several handfuls of wood chunks in a bucket and cover them in water for at least an hour. I usually do this step first and then remove the corpse from the refrigerator. The wood chunks soak while the brisket comes up to room temperature. In the meantime, fill your cooler, grab your lawn chair and find a comfortable place to sit and watch the grill.
You also need to assemble the rest of your cooking tools. For charcoal grills, this includes a chimney starter, charcoal (I like to use the all natural wood charcoal, but remember that it burns hotter than charcoal briquettes), meat thermometer (bonus points if your grill is also equipped with a thermometer), and heat resistant gloves (welder's gloves are nice for this purpose). For gas grills, obviously you can omit the charcoal and chimney starter. Let me say that while a gas grill will work it is not the ideal tool for such a purpose. However, if gas is what you have, then use it. Just consult your grill instructions on smoking wood chips and adjust accordingly.
this is too long already. chapter II only on request.
if i knew how to do those "more" thingies, i would with this post.

[Eugene Volokh, May 15, 2004 at 1:46pm] Possible Trackbacks
Linking policy:We sometimes get e-mail from people asking us to link to their blogs

if the demand exceeds the supply, maybe he should raise the price.

federal jurisdiction issues in mass gay marriage case, largess v sjc.
de novo has the scoop, fisking the opinion. i think this is the one the supremes just turned down.
11th amendment, and a constitutional guarantee of government by republicans. awaiting a rickey's comments.
the requirement of unique injury seems a bit arbitrary
update: oh i forgot, mass doesn't have Republicans.
kerry got 81% of the vote, to 19% for michael cloud.
disclaimer: Cloud funded my county clerk race in 1998.
rickey points to flast v cohen.

word for the day - blegging. hat tip will. i assume it means begging via blog. i like it. i'll use it.
interesting to compare and contrast will's plans to be a dc intern with jacobs memories of same. didn't know jacob was married, belated congrats.
1978 is the year i wasn't a cato intern. i stayed home, worked in a bakery, took a photography class. it's not that cato actually offered, but that was my plan B for that summer. two roads and all that.

worth a visit: http://www.ogre.nu/ anton sherwood's.

curfew and peonage
as readers of my other blogs may be aware,
i'm litigating a free press/speech case.
i was thinking about kids, and how their freedom of expression is violated by curfews. (we have a new curfew statute in indiana.) I wondered if there had been any cases applying the 13th amendment to the status of women. geocities link.
oh, and dad, you were right that the supreme court has upheld the draft as not a 13th a. violation. but the case, from 1922, is not exactly persuasive.
in 1922 the court didn't recognize the constitution as standing for much of anything. (my father is dead. i got from him my stubbornness and that little voice that tells me i'm right, even if the whole world disagrees. it has taken me some 30 years to look up the case, and i now agree he was right, i was wrong, but my comeback is that the court was wrong, and the case is stale. anyway...)
so i'm not finding much yet under the thirteenth amendment, but i did find a statute that outlaws peonage (debt slavery) and involuntary servitude, and i think i could build a case against curfews under the statute. not necessarily a winning case, but not a frivolous one.

Decided March 13, 1905.
[197 U.S. 207, 208] Sections 1990 and 5526, Rev. Stat. (U. S. Comp. Stat. 1901, pp. 1266, 3715), read:

'Sec. 1990. The holding of any person to service or labor under the system known as peonage is abolished and forever prohibited in the territory of New Mexico, or in any other territory or state of the United States; and all acts, laws, resolutions, orders, regulations, or usages of the territory of New Mexico, or of any other territory or state, which have heretofore established, maintained, or enforced, or by virtue of which any attempt shall hereafter be made to establish, maintain, or enforce, directly or indirectly, the voluntary or involuntary service or labor of any persons as peons, in liquidation of any debt or obligation, or otherwise, are declared null and void.

maybe it's not as strong as i want. but i wanted to make a note of it before i forget. back to my research, at findlaw's annotated constitution.
also 18 U.S.C. Sec. 1584.
and the voice of professor middleton reminds me of jones v meyer.
UNITED STATES v. KOZMINSKI, 487 U.S. 931 (1988), OConnor, 5-4, seems to be the most current 13th A case, and leaves the door open for my argument. update: not 5-4, 5 majority 4 concurring.
arbitrary thought for the day: were the tortured iraqi prisoners subjected to involuntary servitude?
kozminski looks pretty good for my purposes. it discusses the padrone act, which involved probiting the use of italian boy slaves as beggars and street musicians.
that disposes of the idea that only blacks can be slaves.
the concurrance by justice brennanmarshal is pretty good too.
open question, replies to gtbear at gmail dot com, the 16th A., see below, allows for income taxation. is there any level of income tax, 90%, 100%, 110%, where a tax becomes a taking or an involuntary servitude?

update: i've figured out another way i could use this research. i could raise a thirteenth amendment challenge to corporal punishment of school children, as a supporting claim to my 8th amendment "times have changed" challenge to ingraham v wright. plus of course state con equivalents of both.
add in, that case from canada that says parents can only mildly beat their kids... could argue government agents shouldn't be able to molest schoolchildren more severely than canadian parents.

funding proposal - see, blegging already.
i am prepared to reopen ingraham v wright - but only if i have a paying client, like some think tank or foundation.

Friday, May 14, 2004

note to self - see if factcheck.com checks out.

fringe element:
brad from monkey law once asked me what's up with those " a yellow fringe on the flag is a mark of the beast" folks.
i still don't have the whole scoop.
here is a site listing cases, in which such fringe arguments were sanctioned or dismissed, but that explains little.
disclaimer: i'm a little fringy myself. i'm an old hippie, been in touch with the war tax resistance movement since about watergate. i do have some law degrees, but i don't make a living at it. i've met some of these right wing salt of the earth folks, but never fully immersed myself in that culture.
they grow up with certain ideas about america and justice, and then wind up getting screwed by some burrocrat, and they think, is this america? is that legitimate, how they took my (kids/car/job/house/stuff/money/etc.?)
Looking for answers, they turn to the patriot movement.
to be clear here,.. well no i can't, i'll be obtuse... i'm talking about the mainstream fringe element, not the prison-gang/white power/neo-anything crowd.
the patriot movement studies the founders, and seeks to expose the modern courts as a sham. and they are, but i'll bet it was always thus. my study of legal history suggests the little guy has been getting screwed since before writing was invented. techniques change.
and they are definately on to something. the idea that the common law has a lot to teach us, that's powerful.
i have a rant going on in a local discussion board, about insisting on a jury trial as a way to fight seat belt tickets.
you can really disrupt the smooth functioning of a revenue collecting agency by knowing and asserting your rights.
it's high risk, professionally, personally. But it's great fun.
the flag.
see, one of the things the fringers believe is that the yellow flag is a tip-off that you aren't in a common law court, and then they get very concerned about something called jurisdiction. as a lawyer, i concede they have a point - a large number of cases aren't about the merits, but are arguments about whether or not one is in the right court. so this isn't just a patriot thing. but the patriots have some.. unusual... source material, and tend not to know how to read and cite cases in the ways judges are used to. add in, in one actual case where i knew the judge,
if the judge is jewish and thinks that patriot = nazi, that doesn't help your case. i shouldn't have used the j word.
[see generally the volokh conspiracy volokh.com]
the flag.
see, one of the things the fringers beleive is that the yellow fringe on a flag is a symbol of the navy (or the admiralty, if that's different) and that that's a clue one is in an admiralty court instead of a common law court.
(see padilla and the guantanamo cases for how military courts can and can't screw with civilians.)
I didn't have admiralty law, not alot of call for it in missouri. what's more likely is that they are in an administrative "court" (where you really do run a risk of being denied procedural rights found in law courts, andreally do need to establish jurisdiction) or in a court established by statute and court-made rules.
But I haven't yet disproved the admiralty law claim.
I found an important clue the other day. I'm reading Churchill's history of the english speaking peoples.
I'm on volume 4 right now. These patriot folks tend not to trust anything written after 1913 or so; they harken back to the founders. The founders, it turns out, wrote a lot about how the common law, and their rights as englishmen, were being oppressed, and people were getting hauled into admiralty courts, and treated without due process.
Because, in their day, this really happened.
Between the restoration, 1689 or so, and the revolution 1776, the british did take away important rights from the colonists, and did use admiralty courts to do so.
So, when the modern patriots, suspicious of modern courts, looked to the founders, they found a lot of stuff about admiralty courts oppressing us. I hazard a guess that that is where some of this comes from.
It's just a hop skip and a jump to the yellow-fringed flag.
all for now. may update with more from churchill, or more sites or cites.
nice argument that the fringe is flag desecration and mutilation.
typical site, looks like a mix of true and false.

leser evil:
julian sanchez points to a tax protestor refutation page.
it's pretty good overall. this gave me pause:
Another claim is that the ratification of the 16th Amendment by several states was invalid because the constitutions of those states prohibited an income tax. A similar argument as to the 19th Amendment was flatly rejected by the U.S. Supreme Court in Leser v. Garnett, 258 U.S. 130 (1922):

"The second contention is that in the Constitutions of several of the 36 states named in the proclamation of the Secretary of State there are provisions which render inoperative the alleged ratifications by their Legislatures. The argument is that by reason of these specific provisions the Legislatures were without power to ratify. But the function of a state Legislature in ratifying a proposed amendment to the federal Constitution, like the function of Congress in proposing the amendment, is a federal function derived from the federal Constitution; and it transcends any limitations sought to be imposed by the people of a state." 258 U.S. at 136-137.

is garnett still good law? i'm not sure it was right.
any dissents? i don't know why the people of a state couldn't adopt a state constitutional provision prohibiting the legislature from ratifying certain amendments. this would be the sort of check and balance the framers intended.
This doesn't resolve the issue; a clause saying rhode island shall not have an income tax doesn't mean the legislature couldn't vote for a federal income tax, and i don't know the history well enough. i discuss a general principle, perhaps one with no concrete examples.
but it would seem to leave the question open, although contra some rather stale stare decisis.
also, reading the whole case might change the context: leser v garnett also says courts can't decide political questions. if true, scratch the state legislative rule case.. garnett admits it can't decide that issue. i'd be very suspicious of garnett till i read it and possibly even then.
if courts can't decide political questions, that doesn't mean the protesters are wrong, just that court is not the right venue. if there's no court to resolve a dispute, does that mean we are in a state of nature as to tax collectors?
The (T)Reason article julian mentions is pretty good too.
More charitably, the tax honesty people are staunch exemplars of America’s glorious Protestant heritage.
This observation is not merely a pun on their status as "tax protesters." Their attitude toward the Constitution and the statutes and legal decisions regarding the income tax are uniquely Protestant, relying on a layman’s ability -- indeed, obligation -- to read and study and parse the original documents himself, to come to his own personal relationship with the law and the cases, and to prefer his understanding to that of the priesthood of lawyers, judges, and accountants.

edited to add, well it's a really good article.
the usual irwin schiff jokes. his book "the federal mafia" will have a lot more impact now that it's illegal. i bought a copy once, it's trash. i had lunch with irwin once, and one of my clients in majors v abell says she was his girlfriend at one time. he'd be played by danny divito in the movie version.
[julian's next post is about secretary. "spanking and bondage". i had a third date with a nice young woman to see secretary when it got to town, but it never did, or we missed it, and she's moved away :( .]
update on reading leser: it's readily distinguishable. at the least, it leavesthequestion very open. leser wanted the court to deny women the vote, brandeis wasn't going to go for that. and it was about procedure, not substance. it might be supported by bush v gore, but it's an open question. i did not see in leser any claim that such issues are non-justiciable; the court did reach and decide questions of law.
I am not saying I have the answers - i'm saying the so called answers don't hold up too well. I have no interest in becoming an expert on this stuff.
Now, what's the deal with the flag and the fringe?

been reading catallarchy.net, and was reminded of a rant i didn't get written down at the time when i was offline.
take a walk on the supply side
Because, over at my other blog, i'm leading the opposition to wyden-graham, i've been running into a lot of wyden's no-internet-tax memes.
statistic, which could be wrong: the internet economy is growing 14%/yr. the net is almost untaxed and only semi-regulated. to simplify, we'll call it the unregulated sector.
the overall economy is growing at 4% (again, these are premises, my source is only that i read it somewhere, and the 4 and 14 may have used different methods.
I have, as yet, no data on how large the unregulated sector is. 1% of the overall? 10%? Tentatively let's assume 10%, but that could be way off; it's based on nothing.
Also, there are good reasons to think the net would be growing even if pervasively regulated. So i'm making an imperfect model, as is customary in quasi-experimentation of this sort.
If the net economy is 10%, it contributed 1.4 of the 4%, so the growth in the non-net economy would have been 2.6%.
The charactiture (sp? the toon version) of reaganomics is that it uses low taxes and regulation to grow the economy out of debt.
Let's further assume that a libertarian is somehow elected this fall, who suspends the income tax for 4 years and cuts the (growth of the) budget by the same amount, so the debt stays the same. During that 4 years the economy grows 14% yr.
(1.14) to the 4th. Somebody do the math. I'm functionally math-illiterate. Ok, let's say the result is 1.7 times the base; that the economy grew 70%. Now, it would have grown some at 2.6 %, can i cheat and call that 1.1 times base?
Oh heck, let's say the economy only grows 50% more in the unregulated model. With the larger economy, taxes could be re-instituted at 2/3 the former level and raise the same revenue. Say the avg rate had been 30%, now it's 20%. In 4 years, people's after-tax incomes, on average, grow 10%.
No that's not right. The average after tax income grows 60%, part economic growth, part tax break. On the down-side, we lose all those nifty programs for 4 years.
One kind of complaint is that "on average" obscures that some will adapt less well than others to the new economy.
But, it's like harry browne says: would you give up your favorite government program, in exchange for average raises of 60%? I live in the hood, where average income is $13K in this census district. A raise to $20k would go a long way to making up for some of the social programs we'd lose -
space program, war in iraq, library grants, etc.
That was my rant. I haven't convinced anybody of anything.
But i was able to take a thought out of my head and get it down in hard electrons. Hope you enjoyed this lil walk on the supply side.

I'm enjoying "agoraphilia", linked at volokh.

Condoleezza Rice said Thursday that terrorists today are driven by the same hatred that inspired Klansmen to bomb a church in 1963 in her hometown of Birmingham, Ala. . . .

The bombing at the Sixteenth Street Baptist Church in Birmingham killed four girls, including her friend, 11-year-old Denise McNair, and was meant to instill fear, Rice said

I don't tend to agree that it is the same hatred, but i like the way she supports her argument with an i-statement, a personal experience. Aside from the company she keeps, i have nothing against rice.

next post: treason
Will at crescat wonders why the constitution defines treason the way it does.
One thing they don't teach at law school (maybe yale does; i am a proud graduate of the law barn, a state school)is the history of the law.
Many of the issues of the American revolution are carry-overs from the English civil war 1650-1689.
Once upon a time, a noble who warred against the king...
Once upon a time, land in england was mostly held by fee tail, not fee simple, and was handed down via primogenitur.
A noble who warred against the king could, upon conviction of treason, have his lands seized by the crown.
Who judges? The king. Who benefits? The king.
Luckily, we no longer need to fear that sort of thing.
www.fear.org - forfeiture endangers american rights.
later the treason and execution of sir william stanley...brought spacious properties into the royal hands. Henry (Tudor, earl of richmond, henry VII) was thus assured of a settled income. Churchill, History of the English Speaking Peoples Vol 4 p. 16, 1956.
treason trivia - the famous right wing crank tract "none dare call it conspiracy" borrows it's title from john stormer's "none dare call it treason."
a favorite churchill quote "the United States were"

Sunday, May 09, 2004

just a new york minute, or, andy richter takes manhattan. semi-annual movie review post.
ebert says thumbs down. olsen twins countdown.
ebert prefers "the agronomist", some demme documentary about haiti. as if.
he has a point, tho, that the seagull's laughter sounds like a better "cute teen" movie. i'm not too familiar with icelandish movie conventions; it may not have enough gratutious nudity, but otherwise sounds good, a chick flick for metrosexuals.
van helsing is no transylvania-65000. transylvania u bookstore.
hmm, andy richter with moppets, or andy richter with jay mohr and brian cranston in seeing other people?
it's not that i go to movies. it's that ebert is one of the great writers of our time. aside - blogger has a whole new interface, so far it's annoying. ebert makes "wilbur wants to kill himself", a danish film set in scotland, in which not much happens, sound a lot better than ewen mcgregor having nc-17 sex on a barge.

article on bullying.

Saturday, May 08, 2004

placeholder for story on the supremes, and the guy in texas.
the folowing story is a work of fiction. any resemblance to any living american is in your head. and besides, the statute of limitations has expired
i was an intern for the new hampster supreme court. basicly a clerk for the clerk. it was my job to look over an incoming case file, and write a short memo about why the court shouldn't take the case. so i get this one. a guy stole a vcr, got caught, pled to five years. but the judge sentences him to ten. i go to the clerk, explain we have to take the case. she looks at it, says, routine deny. dueling memos for a few weeks, but she's the boss, and we end up recommending deny. at conference, judge limberger sees the problem, they take the case, the guy gets his sentenced reduced or dropped or however it turned out.
i've told this story, in order to set the stage for a recent 6-3 decision of the supreme court about a guy in texas in jail for shoplifting some videotapes at walmart. that's an offense that in texas gets you two years, and he's done his two years and wants out. texas wants him to serve 6 years, based on what they admit was a mistake in his sentencing.
the majority notes that he's out on bail while some other issues get litigated, and remands.
kennedy, in a one page dissent, blasts texas for bad faith undermining the republic. souter and stevens also dissent.

space station watching
pet martian rovers mars pics
new space shuttle passes flight test.
opportunity ponders suicide mission.
12 foot nasa space plane sets mach 7 record.
nasa funds space elevator research.
nasa watch
gallileo gallileo - spacecraft died a firey death today plunging into jupiter, in order to avoid contaminating europa with bacteria. gallileo discovered an ocean of water on the jovian moon. until they know if there's life, they want avoid a war of the worlds scenario.
is it that easy to spread life to other planets? let's hope so.

termites at z-blog. yum. via sandefleur.
The building - the country's largest commercial and shopping complex - uses the same heating and cooling principles as a local termite mound. Termites in Zimbabwe build gigantic mounds inside of which they farm a fungus which is their primary food source. The fungus must be kept at exactly 87 degrees, while the temperatures outside range from 35 degrees (f) at night to 104 degrees (f) during the day. The termites achieve this remarkable feat by constantly opening and closing a series of heating a cooling vents throughout the mound over the course of the day.

lbj department
http://www.americandynasty.net/kp.htm book added to wishlist.
Arrogant Capital: Washington, Wall Street and the Frustration of American Politics (1994), The Cousins’ Wars: Religion, Politics and the Triumph of Anglo-America (1999), Wealth and Democracy: A Political History of the American Rich (2002), William McKinley (2003) and American Dynasty: Aristocracy, Fortune and the Politics of Deceit in the House of Bush (January 2004).

Three, perhaps four, generations of Bushes have displayed great capacities for remembering names, faces and statistics. Dallas News reporter Bill Minutaglio, a biographer of the younger Bush, discovered that George H.W. Bush, “went so far as to tell his spokesman Marlin Fitzwater to gather together the photographs of the Washington press corps so he could memorize all their names; the Bush men were always startlingly better than anyone else at memorizing names.” At the same time, both father and son hve shown little talent for conceptualization or abstraction. Is it a coincidence? Dynasty, with its subordination of individual achievement to gene pools and bloodlines, involves a gamble on the nuances of that heredity.

Friday, May 07, 2004

plug. tunes, toons, funny stuff. #1 requested artist at dr demento.
cheap-ass charicatures for your blog masthead.

barnett, bainbridge, separation of powers.

debate going on over judicial activism. barnette is mostly right, bainbridge is way off, although the andrew jackson quote is partly right.
bainbridge seems motivated by a burkean talibanism i'll call authortarianism, and he might call non-libertarianism. bainbridge thinks the majority should be able to impose its moral agenda on the rest of us - stuff like criminalizing gay sex and lobster, stoning witches, that sort of thing, and that courts should not interfere.
[i'm not accusing bainbridge of being anti-lobster himself, just of supporting a government that would have the power to be anti-lobster if it wanted to be.]

in the american revolution, the people got rid of the king and ceeded a small part of their autonomy to a limited government. one of the limits was separation of powers, and a constitutional charter. this wasn't a unique idea, it was part of a process that included king john and cromwell.

the separation of powers requires that congress originate plans, but that the plans are subject to executive and judicial veto. the executive veto can be on either policy or constitutional grounds. the judical veto is limited to constitutional grounds, and only comes up in cases or controversies brought before it.

the founders had reason to be proud of their system of checks and balances.
in order for the government to violate the soveriegnity of the people by exceeding its authority, a whole series of things would need to happen.
a majority of both houses would have to violate their oaths of office by voting yes instead of no. the president would have to violate her oath of office by signing rather than vetoing legislation, and other executive branch people would have to violate thier oath of office by following orders instead of saying, I can't, I gave my word not to. then, a majority of the court would have to allow the unconstitutional thing.
it is not activist for the court to do what the constitution says it should - declare the law of the land, enforce the supremacy clause. that is activist in the sense of not being dead.
it would be activist for congress to raise its own army. that's an executive function.
itwould be activist for a president to wage an undeclared war - declaration of war is a legislative function.
it was activist for a kansas city judge to raise taxes to pay for school bussing - taxation is a legislative function. that's a legitmate form of criticism of court action.
when courts defer to the legislaure, in cases that encroach on reserved rights of citizens, that is judicial passivity of a sort that should not be praised; it is misfeasance and a shirking of duty.
here's the jackson quote, before it veers off into error.

If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this Government, The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision.
Sometimes an honest legislator may have a sincerely held view of the constitution which is different from that of the court, just as the justices occasionally disagree among themselves. but what we have now is an abdictation by two of the branches, which act like only the court needs to care about the constitution, and the legislature may do anything it can get away with. that's a prescription for tyrrany. to me, thisa basicand obvious point, but my law school colleagues had no idea what i was talking about, and oppsing counsel at the AG's office thinks their client is the legislature, rather than the state constitution.

my links are back. how'd that happen?

much fun:
parker update: somewhere below, may 2d, is a post on dorothy parker.
i wish i knew how to make permalinks.
howard reports a 2nd circ. decision about parker's copyrights.

short case brief: some guy researched and collected parker's uncollected poems and offered them to penguin, which stole them and published them, competing with guy's book cleverly called "not much fun."
court dissolved an injunction citing feist, that a mere collection is not copyrightable, andremanded for further consideration of some state law claims.
moral: use trade secrets; get a contract. of course, it's hard to negotiate the sale of a book when you haven't shown the book. but it's easy to write a cover letter with terms and conditions of offer.
moral: sometimes penguins are weasels.

uncivil liti-gator brings us this unique tribute to tilman, by his brother.
it's the first thing on this story that i've liked.
Thanks Pat. [toasting him with a glass of Guiness beer] I didn't write shit because I'm not a writer. I'm not just going to sit here and break down on you. But thanks for coming. Pat's a fucking champion and always will be. Just make no mistake, he'd want me to say this: He's not with God. He's fucking dead. He's not religious. So, thanks for your thoughts, but he's fucking dead.

oceana links, google directory of island nations including norfolk.
recently the volokians have reported on the channel islands, guernsey.
The islands are loyal to the queen, but are not part of england or britain.
historically, they have been tax havens. recently, there's been pressure on tax havens.
i was reminded of norfolk, a pacific island which is in a dispute with austrailia.
norfolk is loyal to the queen, but considers itself independent of austrailia, which doesn't agree. the largest ethic group on norfolk is pitcainers, an english-polynesian hybrid resulting from the mutiny on the bounty. only about 50 still live on pitcairn, most were relocated to norfolk.

word for the day- jurisprudes.
In short, today's judicial conservatives are simply unreconstructed Roosevelt New Deal jurisprudes
also at the volokh conspiracy, eugene takes on issues raised by having gay marriages legal in some states and not others.
my rather simple point is that most of these questions go away with a well-drafted partnership agreement, which would be recognized by other states.

vice squad:The sad reality of prostitution in Germany is that despite the new law, most prostitutes still work under very poor conditions. The majority of the money they earn is taken away from them by pimps and landlords and, for those who are trying to work by the book, from the tax office as well."
isn't that redundant?

Thursday, May 06, 2004

nick morgan at de novo:
What I find discomfiting about all this is that the Rhenquist Court has launched an incredibly broad campaign for states rights on various fronts (not just the 11th Am), and the work is in progress. A seemingly endless series of cases has continually made 1983 suits harder and harder (check out qualified immunity and how it's changed in the last two decades), reduced Ex Parte Young (injunctive relief against states), made it nearly impossible to stop an unconstitutional state prosecution, expanded deference to states in habeas corpus petititions, and lots of other stuff. As of now, although one can't sue The State itself, it's unclear whether this is a mere captioning rule for pleadings, or whether the Court will continue to make it very hard to sue state officers who violate constitutional rights

i decided i'll use this post to collect out-of-context snippets
of what they're saying about me on other blogs.

preposterous! - curmugeonly clerk
this is a joke right? - pink dream poppies

this caught my eye...
John was kind enough to point out that, by making my email address public, I will soon find my inbox littered with propositions, solicitations, and marriage proposals. In that case, I should mention that I'm a SWF, tall, brunette, enjoy italian food, stargazing, and cuddling. Heh.

up to 75 voters disenfranchised in my county by refusal to count challenged ballots.

note to self:possible site sponsor

Wednesday, May 05, 2004

it turns out i'm not the only, or first, arbitrary aardvark. i'm not him or her, they ain't me, we'll sort it out.
they seem to be a gamer. have i mentioned how much i loathe gamers?
except, of course, for the games i like - chess, monopoly, elections.

I decided i'll use this post to collect pointers to comments i've left on other boards.
Like, today, i posted at de novo about 20 questions, so when i get around to it i'll come back and add the link.
11th Amendment considered de novo.
Amp on rape statistics.
wow, here's one where the clerk takes me to task, in a post from last october i'd never seen, the bottom of the page. but the case he relies on doesn't support his argument or conclusion. perhaps i'll respond.
Setting aside this particular error, your overall position and conclusions are entirely unsupportable....Indeed, your statements are preposterous
here's an amp thread on roe v wade and the 13th a.
at heidi's thread on gay marriage i write about separation of powers.
bcra bickering at poliblogger.
monkey law intro
jeff cooper retires his blog.
notes from the underground law school gossip &c.

lbj department: crescat amanda butler has a good post on sgt. shriver.

kazakstan update.

volokhian superpowers explained.
the arbitrary aardvark's superpower is a keen sense of when civil rights are being violated. by day, he tries to work within the system. his weakness is a keen sense of when civil rights are being violated, leading to depression and sloth. he was trained as a shambala warrior in a fortified compound in the rockies by chogyam trungpa rimpoche, which he modified into aardvark style,
which consists mostly of running and hiding. he has served as a personal assistant to jigme norbu, whose uncle is the dalai lama. he fights for truth, justice, and the american way. likes termites, otherwise vegan. sidekick: gummi the bear.

teddy bear closes airport, human companion jailed.
tales from the vice squad: boy with pipe, a painting of a juvenile using tobacco, has sold for a record high price of over $100 million. no comment from ashcroft.
by the way, does anybody have that story about when ashcroft's nephew was picked up drunk? i think, at the time, ashcroft said it was a private matter andnot a government concern. my memory is vague tho. 1994 maybe.

crescat/de novitiate jeremy sez,
"libertarian ideas are right, and people who don't see it this way are just stupid and wrong and should be mocked." ok by me. read the whole thing.

Tuesday, May 04, 2004

pink pistols:
anybody remember snl's gay communist gun club? logo hat tip back of the book.
for those who didn't get the memo, i'm queer and a gun nut at least in theory.
it's been a long time since i came in third in the scoutmasters' shoot.
note to self: relearn use of image tag.

over at alas a blog, lucia and i are squabbling over whether "statutory rape" is rape. well, actually we are dueling with haiku. this georgia supreme court opinion, somewhat troubling itself, helps show why i think it's crucial to make the distinction.

howard's 20 questions for judge tietleman of the missouri supreme court have stirred up a little controversy. i think the judge was appropriately concise, responsibly evasive.
unlike federal judges, he's up for re-election this fall. candidates for judicial office, even post MN GOP v. White, are limited in what they can say.
The dirty little secret of the 'missouri plan' is that no one ever loses a judicial retention election. they are as safe a congresscritter in a gerryrigged district.
the other aspect is that he doesn't want to pull a scalia and 'duck' the issue ala newdow.
disclaimer: i was an intern on that court, before his time. basicly a clerk for the clerk. more recently i have run for judge and lost (but with record high vote total for my party in that county.) disclaimer: as i may have mentioned, i litigate about disclaimers.
howard's comments seemed fair and balanced.

thiswas my comment on 'gendering baude.'
Great post!
Libertarianism, like allah, is neither male nor female.
I’m guessing what you’ve been exposed to is libertarian theory as filtered thru straight white guys, maybe dead strait white guys.
Do you read any libertarian feminists? Even any libertarian women?
Any libertarian queer theory?
Voltarine deCleyre, Lucy Parsons, Emma Goldman, Carol Moore, Carol Erlich, Harriet Taylor Mill.
The whole objectivism thing is a blind alley. Yes, objectivism was a male cult of personality, centered around its queen bee, but it’s unfair to use rand to criticize the body of libertarian theory including Jefferson, franklin, jesus, mill, etc.
Historically, the randroid geeks had a lot to do with the current libertarian movement, and there was an important male founder’s affect.
Typical male libertarian activity – get together to drink beer and talk about planning a protest about the moon treaty.
Typical female libertarian activity – the neighbors have been threatened with having their kids taken away after a drug bust, so they go and take the kids to a safehouse across state lines.
An anti-feminist libertarian economist might choose to focus on dollar-denominated transactions in the formal economy. A feminist libertarian economist might choose to focus on time-motion studies of how a mom gets her kids up fed and off to school.
She might draw parallels between what the mom does and how the formal economy would handle the same tasks, and also look at animal studies of how a momma wolf gets the kits up and fed and off to play/hunt. The feminist libertarian might be more aware of the connections between ecology and economy. Thoreau, on economy, the chapter in Walden about ants, is a feminist libertarian in this sense.
You made 5 points.
Objective v intersubjective
Reason over emotion
Self-interest v altruism
Capitalism over communalism. Ok 4.
We’re all intersubjectivists now, aside from a few cranks over at the solipcist’s convention. Women are rational, men are emotional. Women work while men drink beer.
How can I maximize my self-interest? Libertarianism.
How can I maximize overall social utility? Libertarianism.
Libertarians don’t object to communalism, they only insist it be voluntary, not at gunpoint. That’s a feminist value, not violating personal autonomy.
So I would agree the current Lib. movement is gendered, but it’s a matter of the sales pitch, not the theory itself. Also, the male faction of the movement is noisier. There’s a lot of feminist libertarian stuff going on, but you may have to go look for it. Partly it’s a matter of learning to see it when you see it.

NEW ORLEANS (AP) - An investor group headed by former Vice President Al Gore said Tuesday it is buying a cable channel and launching a news network that will offer "irrelevent and bold" programming for young adults.
The group is buying the Newsworld International channel from Vivendi Universal Entertainment for an undisclosed sum. The deal with Gore's company, INdTV Holdings, was announced during a cable industry convention in New Orleans.

ok, that's not quite what it said, it just looked like that at first glance.

gee, if i stay up another half hour i could go vote in the primary.
update: awoken three hours later by a recorded telemarketer, i voted.

Monday, May 03, 2004

meanwhile, i'm getting a blank page at volokh.com [fixed]
but if you need an apartment in sri lanka, www.crescat.com has one.

nobody's ever entered one of my contests before.
Haiku's for aardvark!
I think I'm going to win!
Is there a deadline?

narrowly beat out raznor's
The all in one Haiku:

Let's download music
Abort many fetuses
And have sex with kids

Bam! How you like me now?

update: raznor strikes back, or, return of the raznor:
I need to bribe those
Celebrity judges, but
I'm a poor student

Also, are tankas
Acceptable for our small
Competition, if
So consider this longer
One a newer entry, yes?

acceptable bribes could include, for those short on e-gold*, technical support for this blog**, blogrolling me, sexual favors,
trade secrets, trinkets and baubles. my point is a poor student has many options, creativity counts. tanka very much. i'll be here all week.
*robbing from peter to paypal.
** how do i enable permalinks? why did my links fall to the bottom? etc.

to do list for monday
- wake by noon x
- finish book x
- waste all day online at blogs x
- sensible diet of jelly beansand coffee x
- go to club, get drunk, drop $20.

it's not that i planned to fail, i failed to plan.
see, if i'd used a different list*, less of it would have gotten done.
* call dentist. draft petition for cert. fix oldsmobile. get job. write mom. clean socks.

suddenly i'm a slithery d fan, after having not been.
almost random example-
When offered an interview on Monday, do not indicate your unwillingness to come in the next day and instead suggest the following Tuesday; someone else may come in earlier and wow them, eliminating the need to interview you at all.
Suicide advice to follow.
UPDATE: There's always this.
# posted by Dylan : 8:57 AM

a clue that i spend too much time online is that i recognized the "this" link as
that job posting for an evil minion, without having to click the link.
i'm also in the market for evil minions.
another example: This is maybe the most positive book review i've ever seen:
This is the only book I've ever reread immediately after finishing it the first time. It's that much fun.
slithery d led inexorably to amber's bamber.blogspot.com which has a brill post about
watership down as a retelling of the aneid. [possible dido joke]
[possible link to the exorcist as retold by cartoon bunnies]

[ Mon May 03, 01:21:45 PM | gt bear | edit ]
heidi posts a link for procrastinators, to an sf story by an author i can't spell from memory. bjsomething. 62 days before my petetion for cert is due, i'm procrastinating heavily, mostly by reading blogs. lois bujold
oh! i thought it was going to be an sf story, but it's a detective story.
i have a theory that sf writers can double thier sales by using different covers, indicating different genres, e.g. mystery horror [western] romance mainstream.
oh! i thought it was going to be a detective story, but it's a philosophy story, about capital punishment, and not a bad one.
oh! i tought it was going to be one of those the-first-chapter-is-online-then-you-can-buy-the-book things, like i want to do with heinlein, but thewhole book is online.
hmm, work, or play? play, i think. on to chapter 2.
oh! i thought the whole thing was online, but it's chapter one and some extra stuff.
it's at the www.baen.com free online library, which i already have linked.
hey where sdid my links go? to the bottom of the page? why, how do i fix that?
gtbear -at- gmail.com.

i'm thinking of a religion.
can you guess which?
it dates back some 5000 years
it has a history of oppression, continuing today, especially in the south.
some of its members went to america, seeking religious freedom.
although probably not more than 3% of the us population, some say its
followers profoundly influence society.
this group is more likely to vote dem than gop.
eugene volokh writes about them.
a subset of this group believes in a system of rituals to produce knowledge or power,
although for most, it's about a general sense of cultural identity.
the group has a handful of holidays, and there are occasional conflicts about getting off school or work.
(more stuff like that that i haven't thought of yet.)
I'm thinking of a religion.
Did you guess witch?

update: volokh responds. he's still wrong, but i'll let it drop.
or maybe not: at the risk of being petty, try replacing 'witches' with 'jews' and see how it reads.

Sunday, May 02, 2004

i'm trying to find a penny lane link, but all i'm googling is stuff like bondage comic covers or an article about cerebus the aardvark.
oh, maybe that's because it's penny arcade.

sky falling says nyt. well, what it says is the usa no longer dominates science awards.
it isn't clear if the article is saying usa now does less science than before, or that others do more. i think that it is inevitable that usa cultural dominace is slipping away to the pacific rim, that this is a good thing, and should come as no shock. bush comeback: our administration is proudly pissing away money on bad science in record high numbers, with no idea of how to pay for it. (may not be the exact quote.)
example: lazer vision
update link above may not be work safe. tycho at penny archade sez
When you read this article, you will have an orgasm. Take whatever precautions you deem necessary.

word for the day: festoon
A curving carriageway led under huge elms, oaks and spruces to the main building, a square wooden Victorian structure of four stories, festooned with second-floor porches and third-floor balconies and fire escapes that were themselves festooned with potted plants. you might as well live, life and times of dorothy parker.
it's actually page 23, if not the 5th line.
when i'm a little down, and out of drugs, i reach for a book. from 8-16, i usually had my nose in a book.
this is a little light reading before bed or in the bath, so i should put it down for now.
day 13 of writer's block as far as any actual work goes. best story so far: her co-worker at vanity fair is being chased by midgets, so they duck into the algonguin for lunch, and that's how the round table got started.
i love this era of 30's new york, harold ross and his circle. reminds me a lot of bloggers.
while reading this in the bath just now, i had an idea, and i was frustrated at not being able to blog from the bath. there are books, many books, in the public domain, that are online, or easily could be. but they aren't hypertexted - no links. so there could be a market (of some sort, if only reputation capital) for derivative works, annotations.*

here, via yglesias, is an example, hypertexted t s elliot, except it's at tripod so pop-up hell.
i remember, when young, i would see footnotes* referencing the ibid, and i would wonder where i could get a copy of this mysterious oft-cited work.
*hi will.
now if i can just find that passage in the parker bio about the spanish-american war.. sounded familiar, like a quagmire.
bartender: What are you having?
Parker: not much fun.
she was often depressed and had a writer's block.
whether dorothy parker suffered a trauma as a result of her abortion is something no one can ever know. later she has a miscarriage, becomes a communist, gets blacklisted, gets old fat drunk living and dying alone in a hotel.
last paragraph of the epilog: so she had a life that was pretty much of a mess
[i would go on but i hate retyping, maybe later.]
anyway, good book, story well told, by a man named john keats, writing in 1970 so probably dead himself now. almost certainly out of print.
what's that case of lessig's, elrond, elwood? parker is of a generation which will be largely lost to us - too new to be public domain, too old to keep in print.
maybe cafepress is the answer; let books be ordered one at a time so everything stays in print forever, once an initial assignment of rights is made.
update: thanks to amber, here's some online parker.

gtbear -at- gmail.com. or, messages can be left at wil's soapbox for gt_bear.

enjoying pen-elaine.
food, films, funny, folksy.

the war of the mice.
this is a placeholder for an abortion rant. topic is being discussed at ampersand's alas a blog.

[early version of rant]
discussion starts with whether men should have input to abortion policy choices.
Sam the boy argues as i would, starting with personhood, moving logically to consequences.
he wrote stuff i'm glad to see written. big hugs.
but he writes like a guy, and this is part of why i stay away from this discussion most of the time.
he uses logic, not empathy, principles, not experience. others (amp) interpret his differing world view as rudeness, and he does little to mend fences. the discussion gets personal, he'll get (or feel) attacked, and respond defensively, and soon the discussion is about him, not the topic.
maybe i'm overgeneralizing - the male model of argumentation is familiar to me; it's how i would tend to respond.
abortion - babykilling - is a personal issue with me, but it's at one step removed.
it's not me having morning sickness. i mean, puking is a powerful deterrent. i don't drink 5 gin and tonics, i stop at 3, because i don't like puking. so it's problematic for me to insist someome go thru morning sickness just because the alternative is baby-killing.
if i were going to try to make sam the boy's arguments, i might start by talking about how i felt at the death of my only child, unborn. and go on to show that there are pro-feminist objections to baby-killing, as well as anti-feminist support for abortion.
women can work this out themselves, in a way that honors the male role. i have other issues to work on.

on the other hand, males do have a role here - to speak for the unborn, who can't speak for themselves. the white man's burden so to speak.
that was the intro here come the mice.
well, more pontificating first.
social rules about baby-killing can be analyzed using the kantian imperitive.
usually stated, act so that the universalization of your action would.. uh.. be a good thing. let's try this one "do unto others as you would have them do unto you"
now, i don't want to be killed. i can't stress that enough. i don't want to be killed. i want that to be a rule: don't kill the arbitrary aardvark. i want it to be more than a social norm; i want the rule to be so strong i can refer to a right not to be killed. as a special interest, i may not be able to convince others of this rule. so i look to generalize it more widely. "don't kill any aardvark, ever" [except self-defense, very limited exception.] still, the aardvark lobby lacks social power, so we'll generalize further: 'thou shalt not kill"
the question becomes, is an unborn baby an other. which is closely related to, is an aardvark an other. [we should always be respectful of otters.]
i'm an itinerant philosopher. i've been using this "i don't want to be killed, and it follows that i shouldn't kill others" for many years. recently, it's become more personal.
last winter people were trying to kill me. overtly, knives and guns and such. so i used my martial arts skills, which consist mostly of running and hiding, and i was a way from home for a few months, during which mice moved in.
this lead to the war with the mice. when i first came out as an activist (4/22/1970) i was a pacifist, not fighting back when my dad would hit me, never getting in fights at school, knowing i would grow up to go to jail for resisting the draft.
i evolved into a libertarian, then an anarchist, then a lawyer, then a basket case blogging addict.
as a young man, the first time i saw a mouse stuck to a glue trap, i killed it, and went home and cried, really upset. now i [cynically] kill mice when i can. Although i would never use a glue trap, I use poison, and by now the mice are dying off and i'm winning this round, i have my house back, for now. It was me or them. The bad karma may well come back and bite me in the ass.
I remain otherwise mostly vegan [subject to some exceptions such as termites]
Now the reason i'm writing about mice, is to show that i had a personal experience
that gave me some new insight as to how a woman might feel with an unwanted pregnancy.
This doesn't mean that i'm suddenly pro-baby-killing. But it gave me some validation for my position that, as a male, maybe i'll sit this one out, and concentrate my limited resources on other issues.

jasperboi could use a hand. seems sincere.

Saturday, May 01, 2004

meta-lawblog of some sort. http://www.jd2b.com/ oh "jay dee too bee"
And I want to go into politics. But I don’t want to be one of those oily, failed, manic, parasitic operatives who hustles from campaign to campaign, living on ramen and caffeine http://neotokyotimes.blogspot.com/

asl linkASL BROWSER.
Michigan State University's ASL Browser web site is "an online American Sign Language (ASL) browser where you can look up video of thousands of ASL signs and learn interesting things about them." Extremely useful—film clips are far more helpful than verbal descriptions for learning sign language. (Via MetaFilter.)
via language hat

thoughtful, if wrong, post on free-market-economics at idea shop.
i see i have not blogged yet about tuvalu. marginal revolution has links.
brief aside about kazakstan: i heard that a spaceship landed in kazakstan recently. several humanoid figures emerged. nasa is excited.
tuvalu. you know, www.xxx.tv? it's a tropical paradise, broke, and sinking.
spaceholder for a rant on my plans to take over the world, one island nation at a time.
see also the free state project.

the pictures that lost the war - catchy headline.

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