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Monday, October 31, 2005

Halloween dog owner etiquette (revised)

I don’t have a dog. In fact, I have never had a dog, although I’ve been friendly with other people’s dogs. So maybe my assumptions are off base. But it seems fairly obvious to me that if you have a large and fairly territorial dog, and if lots of little kids are going to be trick-or-treating at your house, and if you’re going to be opening your front door to give the kids candy, then you should do something with your dog other than leave it loose near the front door. Where the kids can wonder whether the big barking dog is going to get them.

And if a kid and/or parent expressed nervousness at this arrangement, I would consider it inappropriate to more or less tell them (even if politely and with a smile) to take a flying (and candy-less) leap.

(Fortunately, another member of the household restrained the dog. At which point, some standing and staring and other body language on my part induced the distributor of candy to hand some over.)

I need Miss Manners. What is dog owner etiquette for Halloween?

An interesting theory implicit in Alito's Casey dissent

I've been reading Judge Alito's 3rd Circuit dissent in Planned Parenthood v. Casey. It's not as scary as some are assuming (or wanting others to assume). (NPR is giving out a short and greatly oversimplified version of what he wrote.) For one thing, the spousal notification statute in question let a woman avoid telling her husband about her abortion plans if she believed the husband was not the father, or if she had reason to believe that telling the husband would lead to anyone inflicting bodily injury on her. (Ditto if the pregnancy is the result of spousal rape, or if the husband can't be found.) That leaves women who think the fetus is the husband's, as the result of consensual intercourse, and who aren't afraid that the husband will respond with violence. It does not seem inappropriate that the father should be in the loop under those circumstances. Also, the spousal notification provision was essentially unenforceable -- a woman's statement that she'd told her husband did not have to be made under oath, or otherwise under penalty of perjury. Moreover, the plaintiffs' statistical evidence seems to have been on the thin side.

What's most interesting about the dissent from a technical point of view, and the aspect that I find possibly questionable, is how Alito handles the question of which level of scrutiny applies. Alito says that the outcome depends on whether one applies strict scrutiny or rational basis analysis, and that under Webster and Hodgson v. Minnesota, strict scrutiny only applies if the statute imposes an "undue burden" on the right to an abortion. I haven't reread all of Webster or Hodgson, so for now I'm assuming he's characterizing them correctly. Alito then goes on and quotes a number of Justice O'Connor's opinions, often dissenting opinions, in order to define "undue burden". He concludes that, per these opinions, an "undue burden" most be either an absolute prohibition, a severe limitation, or a substantial limitation of access. In his view, given the evidence presented, the plaintiffs didn't make the case that the spousal notification provision met the "undue burden" test as thus defined.

But does one really interpret key language in a U.S. Supreme Court decision by looking to how its author -- rather than the Court as a whole -- interpreted that language in other opinions, including dissenting opinions? And is the answer to that question affected by the fact that O'Connor's "undue burden" opinion in Webster was a one-Justice concurring opinion?

Of course, there may not have been a lot in the way of post-Webster discussion of "undue burden" by the Court as a whole, when Alito was writing....

How can you found a movement you're already in?

Much of the reporting about Rosa Parks since her death has tracked the myth rather than the reality. For example, I've read in several places that her refusal to vacate her bus seat sparked the civil rights movement, or gave rise to, or led to the founding of, etc. etc. Ms. Parks was already active in the civil rights movement before her famous stand (sit) for bus equality. How can you found or give rise to a movement you're already part of? That her actions took the civil rights movement to another level, I readily concede.

Wednesday, October 26, 2005

Blog Quake Day - and a link for the lazy

The blogosphere did a terrific job of raising money for victims of last year's tsunami, and this year's hurricanes on the Gulf Coast. It's been a little slower to get up to speed helping victims of the Pakistan earthquake -- but it's getting there. Today is Blog Quake day, and many blogs are focusing on helping earthquake relief organizations raise money.

Me, I like the easy way to donate -- using Paypal. I don't need to go get my wallet and fill in a bunch of numbers. So to assist those as lazy as I, here's a relief organization that accepts Paypal donations, and offers three different funds to which you can donate -- some offering more immediate relief, others addressing long-term needs:

Association for the Development of Pakistan

If you'd like a wider choice, check the list at Desipundit.

Tuesday, October 25, 2005

Rosa Parks and a recent echo

When I first heard about Rosa Parks, many years ago, I didn't realize that she had been a civil rights activist before her famous refusal to vacate her seat on the bus, and that she was deliberately setting up a test case. I assumed, rather, that she had not been particularly political, and that the idea of standing up for herself was a spontaneous response to a last straw. I would guess that many in the civil rights movement implicitly encouraged such assumptions, although I'm not aware that Ms. Parks herself tried to obscure the truth. I don't think that her activist history in any way diminishes what she did -- but it makes for a different story than the mouse-that-roared version. Perhaps a less thrilling story, to some -- but I'm for knowing what really happened, when possible.

A September 19, 2005 Village Voice article stated that Cindy Sheehan "may be the Rosa Parks of the anti-war movement." That may be true in ways the Voice didn't mean. While I don't think she was a particularly influential activist before her son's death, she was a highly political animal, anti-Bush and generally left-wing. And Sheehan herself has tried to use the popular misconception to her advantage.

Saturday, October 22, 2005

Standing, or sitting, up to be counted

The blog The Truth Laid Bear is asking bloggers who have a position on the Miers nomination to state it. OK, here it is: I oppose the Miers nomination. I will not lose night after night of sleep if she's confirmed -- at least, not unless/until she issues shallow or muddily written opinions in a constitutional area I care about. Which could happen, because she appears to be an inconsistent or even mediocre writer. Which is one straw too many, for me. I had earlier suggested that it might be good to have a practicing lawyer on the Court, who would realize the importance of clearly conceived and written opinions. She does not seem like the lawyer to advance that agenda. I am also concerned about what would happen re my own constitutional hobby-horse, concerning when state courts can issue grandparent visitation orders. (These orders override the judgment of fit custodial parents about who should associate with, influence, supervise and/or care for their children. Troxel v. Granville, 530 U.S. 57 (2000), put the brakes on to some extent.) Miers is conspicuously disclaiming having endorsed either Griswold v. Connecticut, one of the first right-to-privacy cases, or Meyer v. Nebraska, one of the first cases establishing the fundamental right of parents to decide how to raise their children. That does not bode well for her position on the existence on constitutional limits on state interference with parental decision-making.

There are, I concede, some problems with the notion of "substantive due process" (and if you want me to sum up those problems, ask me in the comments) -- but one can rely on stare decisis as a basis for treating that concept as a done deal, or one can explore bases (e.g. the Ninth Amendment) for the same principles.

Thursday, October 20, 2005

a test of whether Congress has any, even a little, integrity - plus update

Many bloggers (including Instapundit, Red State and Powerline) have been discussing the Coburn Amendment, offered by Oklahoma Senator Tom Coburn. This amendment to a budget bill would undo the much-criticized allocation of $220 million dollars to collect a town with 8,000 inhabitants to an island with fewer than 50 inhabitants. (There is already a ferry with frequent trips between the two.) It would re-allocate that money to reconstructing the Twin Spans Bridge between New Orleans and Slidell, LA. This amendment is meeting fierce resistance. As my husband, Hoosier Gadfly, would say: un-f__king-believable.)

Power Line is urging people to write their Congressfolk. I obliged with this message:

"Dear Representative Sodrel:

I write hoping and urging that you will support the Coburn Amendment shifting money for the notorious Alaskan "bridge to nowhere" over to desperately needed bridge construction in Louisiana. There is no conceivable reason to oppose this amendment except to protect the budget-busting pork-swapping culture that has plagued Congress for too long. I look forward to hearing that you have been our stand-up guy in Congress on this issue."

I thought of saying that no Republican with any lingering notion of Republican Party principles who nonetheless opposed the Coburn Amendment should be able to sleep at night -- but I thought it might antagonize him.... Also, it didn't seem fair, since I'm not a Republican. (Or any other name brand, at the moment.)

So I hope some of y'all will go forth and do likewise....

UPDATE: The Coburn Amendment failed in the Senate, mustering something like 15 votes in support. However, my husband, Hoosier Gadfly, just came back from Alaska and informs me that there may be another side to this question. According to what he was told up there, there are two different bridges, both of whose funding would have been cut by the Coburn Amendment. One of the bridges would enable the Anchorage region to expand outward; the other, the one with an island on one or both ends, would connect an airport (on the small island) to somewhere or other. I remain dubious that these bridges are worth this large a national investment, but it just goes to show that being REALLY sure you're right is asking for karmic difficulties....

Wednesday, October 19, 2005

Writing a political primer

A friend of mine who has been apolitical for years, and has particularly avoided the news since 9-11, has decided it's time to find out what's been happening. She asked me to get her started. Political animal that I am, I was drooling at the prospect. We had a lunch where I did most of the talking, and threw at her more facts than anyone could absorb. She asked me to write it all down. So I'm in the process of writing a partial political primer for the formerly news-averse, or (as my husband put it) for any Rip Van Winkles out there. So far, I've only done Part 1: Who is Saddam Hussein, and what have we done about him and why? If anyone would for any reason like a copy, just drop me an email. However, I haven't fact-checked my memory, so I can only hope my errors are reasonably minor.

Friday, October 14, 2005

Note: dead animals smell bad

For about two weeks now, we have been battling a smell. The evidence suggests that an animal, most likely a squirrel, entered our attic through a hole in an overhang and then burrowed through some insulation into the wall between our kitchen and dining room. And was then inconsiderate enough to die.

I had procrastinated about getting the hole fixed because I was afraid we'd trap some little animal in the attic or the walls, which would then die and stink up the place. Ain't irony fun.

At the moment, the smell is concentrated in our dining room, which is not the ideal location for it. We tried putting out coffee grounds, which absorb odors and have a strong and more pleasant odor of their own. Problem is, coffee doesn't just absorb odors -- it acquires them. After a while, the dining room smelled like the sort of flavored coffee that zombies might order.

Now we're trying baking soda and open doors and fans, and hoping all those little bacteria work overtime.

Thursday, October 13, 2005

Legal Fictions, I Mean Jury Instructions

California recently completed a big job: rewriting all its sample jury instructions so that normal people can understand them, without getting any of the law wrong in the process. I've only heard one of the rewritten ones, which sounded fine.

This needs to be done in every state, folks! Here's an example of a typical jury instruction:

"Intent is a mental state, and the trier of fact must, absent an admission, resort to reasonable inferences based upon examination of surrounding circumstances to determine whether from a person’s conduct; and the natural consequences that might be expected from that conduct, there exists a showing or inference of intent to commit that conduct."

Oh, and that would be one of dozens of similar instructions thrown at the jury. Some states now give the jury a written copy; others probably pretend to expect the jurors not only to understand the instructions on first hearing, but to remember them days or weeks later.

Riiiiiiiight. A "legal fiction" is something the law pretends is a fact, often to get around some awkward aspect of decades-old case law. (If you want a more formal definition, it's "a presumption of fact assumed by a court for convenience, consistency or to achieve justice. ") When a legal fiction goes this far, it should be called a legal delusion.

Tuesday, October 11, 2005

Beware men who give a damn about kids!

I'm fuming about the recently publicized list of signs that a man may be a child molester. I gather Oprah had something to do with spreading this around -- if so, she should be deeply ashamed of herself.

This list essentially suggests that any man who shows any inclination to help, nurture, or teach children who are not his own should be regarded as a likely child molester. One would think the societal disadvantages of this approach are obvious enough. It's not bad enough that many children in this country don't get enough time with their parents, or their sole parent -- now we're sidelining any male adult who might partially fill that gap. Do these people think the number of child molesters compares with the number of decent human beings who just want to show kids how to care for farm animals, or hug a troubled student, or coach a softball team? Do they think the number of kids who may encounter a child molester is great enough to impoverish the lives of many, many times that number?

I know this list is just summing up and continuing what's been going on for years. Which is no excuse whatsoever.

This skewed look at the world of adults and children is related to our society's current paralyzing obsession with safety, which I have been lamenting for years. (On this blog, I did most of it in May of this year, if anyone wants to go to the archives and look.) Most people have no intuitive understanding of what it means to live in a country with hundreds of millions of people -- let alone a world with how-many-billions-are-we-up-to-now. If they read about some nasty class of events three times in five years, they start believing such events are a looming threat, justifying curtailing otherwise normal and healthy activities, altering time-honored habits and customs. Ironically, this pursuit of safety has its own risks, and many of its own casualties -- but they are harder to sum up in an AP article or sound bite. For example, people not cured by new drugs that don't get invented or marketed don't make the headlines. More fundamentally, the effects of working so hard for safety -- the opportunities not pursued, the experiments not tried, the initiatives smothered, the lives cramped -- undermine key elements of the American spirit.

Will the tide ever turn? Will common sense, a sense of proportion, or maybe a sense of humor, ever lead us to shake off our ever-increasing restraints and get on with living?

Monday, October 10, 2005

Why A Trial Lawyer Could be Good for USSC

It occurs to me that an experienced trial lawyer could bring a useful perspective to the U.S. Supreme Court. A trial lawyer knows firsthand the effect of confusing or complex USSC opinions on lawyers and on trial judges, and hence on the individuals and businesses those lawyers and judges serve. Ditto for the effect of decisions with no majority opinion and a host of concurring and dissenting opinions.

Sunday, October 09, 2005

Quake is horrible -- but a nasty thought intrudes

I really, truly, am horrified and sad about the earthquake in Pakistan-etc., and the ever-increasing casualty figures. I wish it were not too late for anyone to help thousands of people, and hope that the international aid being offered will help thousands of others. It nevertheless occurs to me that those jihadists who were smug about Katrina and Rita being Allah's judgment upon us may need to shut up for a bit.

Miers and that fable about the donkey

Looking at what's going on re the Miers nomination, I'm now reminded not of another play, but of a fable. The one about the old man, the boy, and the donkey. I don't remember the order of events, but no matter how they arrange things -- whether the boy rides the donkey, the old man rides the donkey, no one rides the donkey, or they carry the donkey -- someone is outraged, or something goes wrong. The moral is: You can't please everyone. Did Bush try to please everyone?

Tuesday, October 04, 2005

Harriet Miers and Thomas Becket -- a warning

There has been much discussion in the MSM and various blogs about how close Harriet Miers is to Bush, and how well he knows her, and how much has relied upon her. Some have opined that Bush is hoping to have a “friend” – a pliant vote – on the Court. I doubt he sees it quite that way – but if he did, he might want to take a look at the play Becket, by Jean Anouilh. (This was made into a wonderful movie starring a young Peter O’Toole as Henry II of England and Richard Burton as Thomas Becket. Many years later, a much older Peter O’Toole starred again in A Lion in Winter, playing – a much older Henry II.)

In Becket, Thomas Becket is Henry II’s close companion, friend, advisor, and right-hand man. He professes belief in nothing, and purports to have subordinated honor to personal and political pragmatism. (He has his reasons – but that’s another story.) When the Archbishop of Canterbury – a frequent thorn in Henry’s side – dies, Henry has a sudden inspiration:

H: … Listen, Thomas! Tradition prevents me from touching the privileges of the Primacy. You follow me so far?

B: Yes, my prince . . . .

H: But what if the Primate is my man? If the Archbishop of Canterbury is for the King, how can his power possibly incommodate me?

Becket is profoundly troubled by this scheme, and begs Henry to abandon it, but Henry insists, and forces Becket on the bishops as Archbishop of Canterbury. (He is not a priest, but is a deacon – so he can be quickly elevated to priesthood and then on up.) Becket then finds that his new position commands new loyalties and offers him a second chance at personal integrity. He ends up staunchly opposing Henry -- to the point of martyrdom -- on matters of church vs. secular jurisdiction.

I am not suggesting any close parallels between the principals in this story and those in our current political drama. Nevertheless -- lifetime tenure as a Supreme Court Justice is the most exalted position any American lawyer can attain, bearing the greatest responsibility. It would be foolhardy to gamble that a lawyer assuming that role would end up treating it as a vehicle for furthering a President’s – or a friend’s – political agenda.