IsThatLegal?

"Though he be a gentleman, remember, Eric Muller is also a lawyer."
-- Sparkey of "Sgt. Stryker's Daily Briefing"
"Relentlessly sensible and often important."
-- Michael Froomkin of "discourse.net"

Could this story be the first step in a case that might allow the courts to elaborate on the question left open in Washington v. Glucksberg: whether a competent but teminally ill person in pain has a right to palliative care in an amount that will hasten or cause his death?

A family ran up a high electric bill. Unusual? No. But in this case, it led to a search for marijuana. (Thanks to one of IsThatLegal's many highly paid stringers (hi, cousin Eric!) for bringing this story to my attention.)

This "no precedent" idea about Condoleezza Rice's testimony before the 9/11 commission really seems to be catching on.

Last week, two of the five justices on the Wyoming Supreme Court were brother and sister: Justice Marilyn Kite and her brother Judge Ken Stebner. (Stebner is a trial judge who was sitting on the Supreme Court for a few days by designation.)

Inquiring minds want to know: is this the first time that brother and sister have sat on the same appellate panel?

I'm outta here until next Tuesday, folks. See ya then.

Here's the problem with an entity like the 9/11 commission: any chance that it might do its work effectively in the public eye is defeated by placing gasbag former Senators in a position where they can, under the guise of investigating, yammer on endlessly about themselves.

Get a load of this "question" posed to Secretary of State Powell by former Senator Bob Kerrey. It must have burned up at least five minutes of the commission's precious public time with the Secretary. (I was listening.)

KERREY: Well, Mr. Secretary, to both of you and Secretary Armitage, I would prefer that Dr. Rice would be here tomorrow, but Dick you would be a fabulous national security adviser. You would be a dynamite one. So that said, let me say that, with great respect, I'm having difficulty with, you know, we spent eight months developing a plan because I don't think that's the central problem here. And my recollection of the presidential campaign, and by the way, my history, my actions in presidential campaigns were kept intact in 2000. I supported the loser in the primary so my memory may not be very good. But I don't recall terrorism being much if even an issue at all in the 2000 campaign, in part, even though it was on the policy- maker's minds, they were aware of the threat, they were aware of what's going on, but I just don't recall it being a driving force in either one of the campaigns. Maybe I've got that wrong, but I don't think so. And I think the central problem, Mr. Secretary, is something that all three of us have dealt with from time to time and that was the use of military force in dealing with Al Qaida. I said earlier to Secretary Albright, I think it was one of the big mistakes of the Clinton administration. In fact, I think it was also a fault of the Bush administration. Although I'm sympathetic that the secretary of defense was not a primary actor in the war on terrorism. Indeed, striking, his recollection of the briefings on Al Qaida were considerably different than yours. His recollection may be different when he's testifying. But it wasn't as clear and shouldn't be because under presidential directive 62, which was signed by President Clinton in '98, that presidential directive didn't give the Department of Defense a primary role in the war on terrorism. It just didn't in counterterrorism activity. And I've read the cautionary concern that General Zinni had, who was CINC of CENTCOM at the time and other military leaders. I've had, in twelve years experience in the United States Senate, many times I walk out wondering if I voted the right way. And among those moments was Desert Storm I, where I'm relatively certain today that I did vote the wrong way. But it came from a concern for bodybags coming home and would we be able to sustain the political effort. And I was likewise concerned about Bosnia, ended up supporting the effort in Bosnia and Kosovo. But those who say we shouldn't be skeptical or concerned about use of military force, I think have got it wrong. We should be. We should, it seems to me, always wonder. But I wonder if you see it that way. I mean I wonder if you see that if you look at from '93 when World Trade Center I was hit the first time and through September of 2001, Al Qaida never suffered a military response from us, never -- other than on August 20th, which was a relatively small military attack, a very limited military attack with absolutely no anticipation of boots on the ground of being involved. And I'm just wondering, I appreciate that I'm asking a question as if you were secretary of defense, secretary of state, national security adviser and perhaps even president, not just secretary of state. But I wonder if you see it that way, as well, that our reluctance to give the secretary of defense and the military a more prominent role in counterterrorism efforts contributed to our lack of preparation.

Senator Kerrey could've just said, "Mr. Secretary, do you think we would have been better prepared for a 9/11-type attack if the Secretary of Defense and the military played a more prominent role in counterterrorism efforts?" And that might have left some time to ask the Secretary a few more questions. Maybe even tough and searching ones.

Sounds like something from Monty Python: Killer lichen!

In a new book, Don Rumsfeld is quoted as saying, at a meeting less than a day after the 9/11 attacks, that "there were no decent targets for bombing in Afghanistan and that we should consider bombing Iraq" instead because it had "better targets."

Sheesh. What a wussy. France, for example, had even "better targets" than Iraq. Yet Rumsfeld couldn't find the guts to propose taking out the Eiffel Tower.

Today, I am hairy, milk-producing, and warm-blooded: I have moved from Marauding Marsupial to Large Mammal in the TLLB Ecosystem.

An interesting First Amendment question lurks in this case: May a person convicted of sexual assault be barred, as a condition of his probation, from "viewing pornography?"

Sometimes life really does imitate The Onion.

Missing woman home after secret road trip

CHEYENNE -- Saying she just needed a break, a woman who took an unexpected trip to Colorado returned home after her disappearance panicked friends and family.

Kathy Ellis' mini-mental health break created much worry and fear, her husband Ron Ellis said Wednesday, a week after he filed a missing-person report.

She returned on her own Sunday night after a five-day stay with an ex-sister-in-law in Fort Morgan, Colo., a woman she hadn't seen in 10 years.

"That's why we didn't think to look for her there," Ron Ellis said, noting that she assumed word of her whereabouts would trickle back to her husband and sister.

Ron Ellis reported Kathy missing March 10 after she failed to show up for her shift at a Pershing Boulevard dry cleaner -- unusual behavior for the 38-year-old mother, her family said.

Such cases of missing people taking a mystery vacation aren't unusual, Laramie County Sheriff's Office Lt. Pat Branigan said.

Appearing on the Today Show this morning, hours after the Israeli assassination of Hamas leader Sheikh Ahmed Yassin, Condoleeza Rice said that "there is always the possibility of a better day in the Middle East."

She also did the weather segment at the top of the hour, predicting that temperatures would plunge below the freezing mark in Hell this afternoon.

Veterans Stadium in Philadelphia was always a pretty crappy stadium, but reducing it to rubble makes me sad nonetheless.

So I'm reading Justice Scalia's account of his hunting trip with the vice president (thanks to Volokh for the pointer), and it suddenly occurs to me: how on earth does anyone get a security clearance to go hunting with the vice president? I mean, these guys are sitting around with rifles in duck blinds!

Not exactly my idea of a secure location.

The vice president must really trust his buddies, and his buddies' buddies. As must the Secret Service.

Justice O'Connor gave a talk on lawyers' professionalism to an overflow crowd in the Fine Arts Concert Hall at the University of Wyoming yesterday.

An Indian student should have asked her about whether by joining the Hall of Great Westerners, she meant to endorse the skewed and racist vision of Western history that the Hall represents.

Twenty years ago today, armed gunmen in Beirut kidnapped William Buckley, the CIA station chief.

Twenty years ago today, a surprise windstorm buffeted the coast of the Pacific Northwest.

Twenty years ago tonight, I went on a first date with a girl named Leslie. We went out to dinner at the now-defunct Lloyd's Restaurant on Hope Street in Providence, Rhode Island, then to a performance of Titus Andronicus on the campus of Brown University, then to a cafe on Thayer Street (Penguin's, maybe?) for dessert.

I was nervous. I listened to Bryan Adams sing "This Time" before the date, to get myself in the right frame of mind. (I guess I just listened past the "she turns and slowly walks away" part.)

We married on August 7, 1988. We're still happily married.

It has been a great 20 years.

Suppose you were the National Southern Heritage Museum, and you maintained a Hall of Great Southerners. Suppose further that it's today--2004--and not, say, 1930.

Would you induct more than a couple of African Americans into your Hall of Great Southerners? If not (indeed, even if so) would you induct Bull Connor?

This morning I happened upon the Hall of Great Westerners, membership in which is controlled by the National Cowboy and Western Heritage Museum.

The criteria for induction into the Hall are:

1. Exceptional contribution to the advancement of western heritage and traditions over a lifetime.

2. Individuals who promote America's rich western heritage through their leadership and patronage of art, business industry, environmental, education, humanitarian, government or philanthropic organizations.

3. Achievement of national significance and historic relevance.

4. Exemplification of the traditional western ideals of honesty, integrity and self-sufficiency over a lifetime.

Of the 259 symbols of Western heritage and tradition who have thus far been inducted, fewer than a half dozen are Indian.

And two of the Indians--Chief Washakie and Sacagewea--achieved their fame primarily for cooperating with white people.

In the meantime, some of those in the Hall--for example, Kit Carson, Isaac Ingalls Stevens, and Charles Goodnight--achieved a good measure (though not all) of their fame by killing Indians.

What, one wonders, possessed Justice Sandra Day O'Connor to wish to present herself as an emblem of this skewed and white-centric Western history?

Just saw that my buddy John's blog, Who Killed Theresa?, was a Canadian Top Blog back in January. Richly deserved.

Every now and again I come across a blog that just grabs me. I clicked today on "Inside My Head" off the North State Blogs blogroll, and was blown away. This blogger is doing something honest and true. I found this post especially moving.

Her writing is so good that I can even excuse her devotion to Jackson Browne. Now that's saying something.

School Maintenance System Has Vacuum, announces today's Casper (Wyo.) Star-Tribune.

If you read the story carefully, you'll see that they've also acquired several mops and a dustpan!

Actually, it's just a poorly written headline. But it's funny.

Run, Ed, Run!

Trust me, Ed, you'll get national support and attention. In some quarters (even if not in your congressional district) the anger over Howard Coble's comments about the Japanese American internment has not dissipated. I think you'll be able to raise a good bit of money, even.

Go for it, Ed.

Now we know why they're called sea lions.

My friend and colleague Marilyn Yarbrough died the other day at the very young age of 58. She was an extraordinary person. All who knew her will miss her.

On my father's side, I am from a family of refugees from Nazi Germany.
My grandmother and her three siblings kept hundreds and hundreds of photographs of their lives that I've recently been going through.
These many hundreds of photographs show the usual array of smiling relatives sitting in cafes, hiking in the woods and mountains, holding babies, and the like. But the photographs from the years between 1933 and 1938 (when my grandparents left Germany, after my grandfather spent several weeks in Buchenwald) have always struck me because the horror of what was enveloping Germany's Jews never appeared. The photographs suggested that my family's lives continued on, happy and uninterrupted, when I knew that this was not the case.
A few days ago, I came across one photo that hints at what was really happening in their world.
I find it deeply chilling.

The jokes about this story are just too obvious even to bother posting them.

I am, however, squatting on http://www.gambino.mob, and will be demanding a high price to relinquish it.

Some viewers of my made-up political posters think they miss the point. "It isn't as if the Bush campaign has a still of one of the jets hitting the WTC with the tag line 'vote for Bush,'" comments one reader, "which is essentially the appropriate analogy for what you've got here."

Well, yeah. That's true. On the other hand, Gerald Ford wasn't anywhere near as clumsy as Chevy Chase made him out to be. The humor -- and the point -- are in the exaggeration.

Election Projection has a marvelous appreciation for satire!

I'll be damned if these old political posters don't keep popping up!

This one's from Bobby Kennedy's run for the Senate in '64.

So President Bush is trawling for votes with the image of a flag-draped coffin emerging from the rubble of the World Trade Center. Where's the big deal? Political ads have always been this crass and opportunistic. And no politician has ever been able to resist using the rawest, most emotional images of national tragedies for partisan political gain.

Right?

Betsy Newmark thinks she understands those of us who are objecting to President Bush's use of the image of a flag-draped coffin being pulled from the rubble of the WTC in his first TV ad.

"It's ludicrous," Betsy contends, "to say that a president can not refer to an attack on American soil in his political campaign."

Well, yes, that it ludicrous.

But who's arguing that Bush can't "refer to" the 9/11 attack?

The question isn't whether he can refer to that attack. He can. Indeed, he should. The question is how he refers to that attack.

Using the image of a victim in a coffin for his own political advantage is nauseating. Nauseating. It was a blunder, and Bush deserves everything he's getting, and then some.

Glenn over at Instapundit chides Duke University for a panel discussion it sponsored the other day on the subject of ideological diversity among faculty. He states that only one of the panelists (Michael Munger) deviated from the party line denying a problem of ideological imbalance.

Not so.

Using visual aids suggesting imbalance in a variety of departments, law professor Bill Van Alstyne made the following judicious comments:

One might suggest that even if there is nothing consciously going on by way of a tilt or predisposition, . . . the fact that you see that stark table may bring to one's consciousness the possible participation of something else that is playing a role that needs some kind of accounting for. It could even be that the one therapeutic benefit of a table of this kind is to force those in each of these 7 departments at least to review themselves introspectfully. To think maybe they better think again and consider whether or not they are in fact working in such ideological lock step that they claim that they are actually representing a wide spectrum of ideological diversity within a given discipline. For there are always ideological diversities inside disciplines, even chemistry or physics have these divisions and certainly social disciplines do.

Why have I done this? It's to be provocative. In fact, it's in this perverse way to issue a genuine complement to the Conservative Student Union because these are the figures. This is Duke. This is not a mythological university. These are seven of the departments taken from the particular table, as a matter of fact. And as you go through them, these are the total figures, not by men and women, not by white and black, but by party affiliation. It is not to suggest that anyone's party affiliation was ever asked at or put down or made a subject of conscious inquiry. It is merely a civil, modest suggestion that ideology may very well be playing a role within a given discipline at a given university. And that competence is as competence is perceived to be partly along a kind of ideological axis. So if you find that worthwhile in the other areas when people are asked to inscribe categories when they apply for something. It is not for me now to suggest the propriety of listing party affiliation -- not at all. Not at all. It is, rather, just the chastening observation, that tabulation such as this do give someone sober second thought and ought to introduce at least a cautionary note in any institution of academic self-respect, to look within itself and see whether or not they are unconsciously or otherwise tilted in such a way that their affectations of ideological diversity are somewhat affected and pretentious. I may have some more comments later on, but I thought at least the starkness of these tables as you look at them in other areas where prima facie inferences are so casually drawn for legal purposes would be constructive and sobering.

Van Alstyne may not have said it as explosively as Munger, but I think it's hard to miss his point that there's a problem at Duke.

UPDATE: Instapundit wonders whether I attended this session at Duke. I didn't; I just watched the video available on Duke's website. It's worth watching, though: Van Alstyne puts two columns of numbers up for 6 (unidentified) departments at Duke. For each department, the number in one column is, say, 15, or 13, or 25. And the number in the other column for each department is zero.

At first, he doesn't say what the numbers represent, but invites the audience to reflect on what their view of the numbers would be if the "zero" column represented the number of black professors or women professors in those departments, and the other column with large numbers in it represented the number of white professors or male professors. Would that suggest a problem, he (rhetorically) asks. Then he says that the columns actually reflect the number of registered Republicans (the zero column) and the number of registered Democrats (the other column) in those Duke departments. The point, I think, is stunning, and he doesn't need to make it explicitly. Nobody (especially nobody defending Duke's current ideological orientation) would seriously entertain the notion that an all-white or all-male academic department did not have a problem worth investigating. So why, he implies, isn't an investigation warranted for ideological (rather than racial or gender) bias?

The crack archival research staff here at IsThatLegal has just uncovered this more recent gem. And Roosevelt was a Democrat! So I think President Bush is out of the woods on this one; everybody, it seems, gives in to the urge to mine votes from tragedy.

Everybody's all upset about our President using images of the 9/11 attacks, of firefighters, and of victims in flag-draped caskets in his campaign ads.

Jeez. You'd think this was the first time a President tried to capitalize on a bloody tragedy to get reelected.

Doesn't anybody remember this?

Yesterday the nation moved an important step closer to designating February 19 as an annual Day of Remembrance to commemorate the forced eviction and/or relocation of nearly 150,000 people of Japanese, German, and Italian ancestry during World War II.

The House unanimously passed Congressman Mike Honda's resolution (H.R. 56) "supporting the goals of the Japanese American, German American, and Italian American communities in recognizing a National Day of Remembrance to increase public awareness of the events surrounding the restriction, exclusion, and internment of individuals and families during World
War II."

Much remains to be done before the Day of Remembrance becomes a reality. For one thing, someone needs to champion the issue in the Senate and see the process through there. For another, support from the White House would be extremely helpful. But the unanimous passage of this House resolution is an important step. Congratulations, Rep. Honda, and thanks for continuing to focus our attention on this crucial episode in American history.

I think the answer to Eugene Volokh's question is "rock paper scissors."

I am sitting in the Rotunda of the UNC School of Law listening to Prof. David Bernstein (of, among other things, Volokh Conspiracy fame) speak about his book "You Can't Say That!" A good crowd of about 35 students and faculty have turned out for the event.

Bernstein's topic is how modern antidiscrimination law can be applied (misapplied, I guess he'd say) to prevent people from engaging in what you'd think would be protected speech. (Examples: warning a home seller that he has violated the law by noting that his home is "walking distance to a synagogue," or warning someone that the claim that a house for sale has a "great view" is discriminatory against those who are blind.)

Why, Bernstein asks, does the First Amendment not provide robust protection at the outer reaches of antidiscrimination law? The answer, he says, is that the courts have found eradicating discrimination to constitute a "compelling interest" that trumps the free speech right. The Reconstruction Amendments, especially the 14th Amendment's Equal Protection Clause, substantiate the compelling interest.

The trouble with that, Bernstein says, is that the 14th Amendment restricts only state action, and private speakers are not state actors. And even if you generate a constitutional "value" (as opposed to a firm "right") of equality from the 14th Amendment, Bernstein says it's not clear why that egalitarian "value" either (a) trumps Free Speech rights, or (b) is an especially prominent constitutional value, when many other values (especially economic and property values) do not rise to this level.

Bernstein thinks that the effort to restrict speech is missing the serious risk of a tumble down the slippery slope to punishment for speech that by any objective measure is at the core of protected political speech.

Bernstein also thinks it odd that the movement to restrict speech is happening now, after 60 years of transformation (and essentially egalitarian transformation) in the socio-legal landscape.

And, he argues, you have to worry about the question of who is doing the speech restricting? People usually think it'll be people just like themselves, who'll be "properly" motivated. But the people in charge of the country are politicians, special interest groups, and lobbyists. Not people you'd want to entrust with the decision over what you can say and what you can't say. They'll often be your worst nightmare.

Bernstein emphasizes that he's not arguing against civil rights laws as a general matter. He's arguing that as the list of protected groups under antidiscrimination laws lengthens, that inevitably comes at a free speech cost.

He concludes that just as an effort completely to "eradicate" violent crime would lead to an unacceptable police state (that would still be wracked with crime), so does the effort entirely to eradicate discrimination move down the path to a police state.

During the Q & A, I note that Bernstein's depiction of the world is a rather stark either/or world: either we indulge absurd applications of the antidiscrimination laws, or we protect the First Amendment (and let people say whatever they want to say and require victims to "suck it up"). I ask Bernstein whether there are actually legal principles that courts could apply that would allow courts to strike something of a balance between these two stark positions. Bernstein notes that his book is not designed to be a book on legal doctrine, but he does suggest that there would be ways of developing rules toward this end. He suggests a distinction, for example, between discriminatory and hostile comments directed at individuals and those that are simply in the background environment at a workplace. And he suggests a possible distinction between the speech of supervisors (which would be more subject to restriction) and the speech of co-workers (which would be less so). I'm struck, though, by the essentially polemical nature of Bernstein's talk. I fully understand the desirability of a book that speaks to a broad audience, but I think that a person who is engaging in a full-scale critique of the outer reaches of existing doctrine needs to follow his critique with a more detailed proposal.

All in all, Bernstein's talk is entertaining, humorous, and thought-provoking. If the book tour comes to a venue near you, by all means catch it!

John Allore finds the thread linking Haiti, 9/11, and ... American Idol. Don't believe me? Read it here.

Never one to mince words on controversial topics, Michael Froomkin is taking a strong stand: "Autodefenestration," he says, "has no place in the classroom." (emphasis added)

Do not be fooled, though. Froomkin is cleverly leaving himself some wiggle room. Remember: the autodefenestration that Froomkin describes took place, for the most part, outside the classroom.

If you read to the end of this story, you'll learn that in Wyoming, elections that end in a tie are decided by pulling a ping-pong ball out of the governor's cowboy hat.

Jeez. And I thought Bush v. Gore was arbitrary.

An interesting piece in the New York Times today describes a (probably) unintended but entirely predictable consequence of shrinking state education budgets and the No Child Left Behind Act: the disappearance of public school programs for gifted children.

I say "probably" unintended because I think there's a case to be made that this was not unintended by those who brought us No Child Left Behind. It's no secret that the Bushies are big supporters of public vouchers for private and parochial schools. If, at the end of the day, No Child Left Behind increases political pressure from some of the well-to-do for vouchers, I can't imagine the current Administration will be too upset about it.

And so is Max Schmeling. Did you know? Would you have believed it if somebody told you?

I saw the Oscar-nominated documentary "My Architect" on Saturday night, and was disappointed.

The film recounts the efforts of one Nathaniel Kahn to understand his father, the celebrated and eccentric architect Louis Kahn. Nathaniel was Kahn's second out-of-wedlock child. (Kahn had a daughter with his wife, a daughter with a lover, and Nathaniel with another lover. He remained married to his wife throughout his life, and snuck in occasional visits with his lovers and the children.)

The reviews of "My Architect" were excellent, and I thoroughly enjoyed "The Stone Reader," which was another man-on-a-quest documentary. So I had high hopes for "My Architect."

It's not that the film wasn't well made. As an appreciation of Louis Kahn's work -- particularly the Salk Institute in La Jolla and the capitol building in Bangladesh -- the film was visually marvelous. Many of the interviews (particularly those with I.M. Pei and Edmund Bacon) are outstanding.

What bothered me was the near complete absence from the film of Nathaniel himself. I don't mean his image, because he appears frequently in the film, although in most of the key interviews he is almost constantly off-camera. I mean his feelings, his emotions, his experience. He remains a cipher through most of the film. We can say to ourselves, "Gee, the father was hugely important to the son, because the son spent all this time and money to make a movie about trying to understand his father." But how was the father important? For what reasons? What had the impact of the father's absence and mysteriousness been on the son--not just when he was a child, but as an adult? Did the father's absence anger the son? Perplex the son? Depress the son? How had the father's absence had an impact on choices the son made in adolescence, and into adulthood? What has the father's legacy actually been for the son (other than producing a desire to make a movie?) Nathaniel tells us none of this. In the most emotional interviews--that with Edmund Bacon, that with his father's two lovers (one of whom is his own mother), and that with the captain of a boat that his father designed--Nathaniel hides off camera. We cannot see his face, how he reacts, what his emotions might be.

I recognize that all of this might be a strategy, a way of inviting each of us to reflect on important people in our lives and how we do and don't really know them.

But the consequence of this strategy (if it was that) was, for me at least, an emptiness at the core of the film. The film bills itself as "a son's journey," but it's a journey that I ended up understanding very little about.

Odd that a son creating a work of art about his unknown and nearly unknowable architect father would create a film for us to view in which he offers us so little of himself. This work of art offers no more of a glimpse into its creator than do the father's buildings offer a glimpse into theirs.

Like father, like son?

In December of 2001, Attorney General John Ashcroft equated criticism of the administration's policies with "aiding terrorists."

Last week Secretary of Education Rod Paige called the nation's largest teacher's union a "terrorist organization" because the union opposes parts of the federal No Child Left Behind Act.

And now private citizens are joining the rhetorical war. A Wyoming rancher is accusing agents of the federal Fish and Wildlife Service of "terrorism" for going onto his land to collar a tranquilized wolf.

Ah, for the good old days when terrorism was, like, blowing up buildings and stuff.