Maggie Welcomes 2007

Maggie the Beagle wishes you all a joyous 2007!



Best,
Andy

As a Fellow Morning Person, I've Got Some Sympathy

Then again, I'm not the most powerful person in the the world.

As reported by the New York Times:

At President Bush’s ranch in Crawford, Tex., a White House spokesman, Scott Stanzel, said Mr. Bush had gone to bed before the execution took place and was not awakened. Mr. Bush had received a briefing from his national security adviser Friday afternoon, when he learned the execution would be carried out within hours, Mr. Stanzel said. Asked why Mr. Bush had gone to sleep before hearing the news, he said Mr. Bush “knew that it was going to happen.”

Hussein's execution was widely reported (here and in Iraq) at 6:10 am Baghdad time, which is 9:10 pm Crawford, Texas time. In 2004, President Bush fell asleep during the first half of the Super Bowl, missing the Janet Jackson brouhaha.

The Fortress on 30th Street

I'm never too surprised when I venture into a personally-unexplored part of New York and stumble upon something wonderful or strange.

While heading to get our knives sharpened at an odd little shop on 30th street, I happened upon the old 23rd precinct station house, built in 1908 in the style of a fortress.

Just in Time for Finals: Word Shoot

You know finals are here when tempting eat-up-your-time-in-big-bites web-based video games just reveal themselves to you.

Enter Word Shoot, a flash-based game where you protect yourself from your relentless opponents by spelling their names. Text entry hasn't been this fear-based since Giraffe, the falling letter game that ships with Palm PDAs.

Heal Up, Senator Johnson

As has been covered extensively in the news, South Dakota Senator Tim Johnson has very recently undergone surgery to deal with a brain hemorrhage. Were Johnson to resign his post before the new session convenes, functional control of the Senate would likely return to the GOP (the Republican governor of South Dakota would likely nominate a Republican as a replacement, leading to a 50/50 split, with VP Cheney as a tiebreaker).

While some conservative commentators hover ghoulishly over the stricken Senator Johnson, a guest on NPR's NewsHour program reminds us of California Senator Clair Engle, who did not resign his position as his brain cancer progressed:

On June 10, 1964, during the roll call for the historic, successful effort to break the filibuster on what would become the Civil Rights Act of 1964, when the clerk reached "Mr. Engle," there was no reply. A brain tumor had robbed Senator Engle of his ability to speak. Slowly lifting a crippled arm, he pointed to his eye, thereby signaling his affirmative vote ("aye"). Few who witnessed Engle's brave act forgot it. Nine days later the Senate approved the act itself—producing one of America's towering 20th century legislative achievements.

Senator Engle died a month and a half later.

[Ch/H]a[n/nn]u[k/kk][a/ah]

Sometime reader of this blog and fellow Columbia Law student CSK has conducted a bit of a holiday investigation:

Andy,

As we approach the holiday season, I thought I'd investigate the various spelling of the Jewish holiday. I have found four common binary variations: Ch/H, n/nn, k/kk, and a/ah. The following is a list of the sixteen permutations, in order of the number of results from a Google search of each permutation.

Perhaps readers of your blog would appreciate this analysis?

Hanukkah — 12,100,000
Chanukah — 3,400,000
Hanukah — 1,010,000
Hannukah — 790,000
Chanuka — 545,000
Hanuka — 518,000
Channukah — 437,000
Chanukkah — 315,000
Chanukka — 301,000
Hanukka — 107,000
Hannuka — 62,500
Hannukkah — 44,200
Channuka — 18,800
Channukka — 1,750
Hannukka — 821
Channukkah — 741

Note that Microsoft Word reports that all but the top three spellings are incorrect.

CSK

I suspect that the inclusion of all these terms on my blog will change the context-sensitive Google Ads on this page through the end of the year.

Update (12/06/06): CSK's roommate ASL weighs in:

Working hard, aren't you?

The two variables about which I feel most strongly are the doubled consonants. The correct answer: one N, two K's. In proper Hebrew pronunciation, the kaf is doubled because it contains a dagesh chazak. In other words, the word would be broken into syllables as ha-nuk-kah rather than ha-nu-kah. (Several other Hebrew loan words are spelled with doubled consonants for the same reason - e.g. sabbath, hallelujah.) Granted, since most people don't pronounce dagesh chazak properly any more, I suppose it's reasonable to write only one K. The thing that's definitely wrong, though, is two N's. I'd guess that those spellings come largely as a result of people remembering that there's a doubled consonant but getting the wrong one.

As to the H vs. CH, question, obviously H with a dot underneath is the most ideal option, but that's hard to do on most word processors. I tend to use H here, but I admit that I sometimes use CH for het in some other contexts. If there's no option of having a dot, I'd say the CH is the best bet. Another spelling that occurs 1,290 times on Google is Khanuka (and variants), but I think it would be better to reserve KH for khaf and CH or H-dot (or h-bar!) for het. That distinction has been lost in Ashkenazi and modern Israeli Hebrew, but I'm pretentious that way. Another neat option is what Bryan/Aviel and other Sephardim do: Januk(k)a(h) (along with Pesaj).

As to the final H, it seems at first glance that the Hebrew spelling (with a hei) would mandate the H. However, a deeper analysis of Hebrew linguistics actually offers a rather compelling argument not to include the H. The details are too complicated to explain here, though.

When It Says Religious Test, It Doesn't Mean Test Like the S.A.T.

(Crossposted from the American Constitution Society :: Columbia Law School)

The American Family Association – worried that newly-elected Representative Keith Ellison (D-MN), who happens to be Muslim, will be sworn in with his hand on the Koran (instead of the Christian Bible) – is urging its members to do the following:

1. Send an email asking your U.S. Representative and Senators to pass a law making the Bible the book used in the swearing-in ceremony of Representatives and Senators.


2. Forward this email to your friends and family today!

Never mind that Representatives don't place their hands on anything when they're sworn in en masse. How the AFA-proposed law wouldn't violate Article VI, Section 3 is beyond me:

The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States. (emphasis added)

Too many more oversights like this and I'm going to stop turning to the American Family Association for my constitutional theory.

Changing the NACDA Directors' Cup Scoring System to Change the Winner?

In 1993, the National Association of Collegiate Directors of Athletics (NACDA) established the Directors' Cup to reward the best overall NCAA Division I (other divisions & the NAIA were added 1995) athletic program in the country. North Carolina won the first Directors' Cup in 1993-94; however, the twelve subsequent Division I cups have been won by my alma mater, Stanford University.

On November 1, the NACDA announced a new scoring methodology for the contest. At first glance, the new rules – scoring both indoor/outdoor track, scoring all sports for which the NCAA/NAIA offers a championship (a change required by a new Program Philosophy) – do not seem to harm Stanford's chances of continued dominance in this contest. However, I can't help but wonder why the NACDA would change the rules other than to unseat Stanford University (and Williams College, which has won 10 of 11 Division III cups) from the top of the standings. (Also, note that UC Davis would likely still be winning the Division II award had it not started migrating sports to NCAA Division I in 2003.)

The original sponsor the Directors' Cup, Sears, ended its sponsorship of the contest in 2003. The present sponsor is a much less high profile organization (The U.S. Sports Academy). Although I don't know why Sears terminated its relationship with the program, the annual standings for the contest tell the tale: No one cares about the Directors' Cup, for the end result is almost always the same. Since the contest appears practically predetermined, the media ignores it. Why would a retailer throw advertising dollars at a contest sponsorship when ESPN et al. do not amplify those dollars through coverage of the contest?

Don't get me wrong: I'm a Stanford partisan, and I grin a big, provincial grin whenever Stanford wins any contest. Yet, whether it be through a rule change or a rough year, it's clear that their string of consecutive Directors' Cups cannot last. If Stanford & Williams continue their dominance unabated, I wouldn't be surprised to hear one day that the NACDA has decided to stop expending energy and resources on tabulating a contest that is not a contest.

A Parting Note: The reality is that collegiate athletic programs change very little from one year to another, so it's not surprising that the same affluent school, interested in investing in teams in each and every arcane varsity sport, would win every year. Maybe the NACDA is taking advice from U.S. News & World Report, whose overall collegiate rankings appear to be based on a methodology that changes every year, even if the data measured (the excellence of one school compared to another) do not.

If I Include "Second Amendment" in the Title of My Bill, Does that Make it a Proposed Amendment?

(Crossposted from the American Constitution Society :: Columbia Law School)

There are many reasons for Congress to consider legislation. One of the primary reasons for Congress to consider legislation is that it believes that the judiciary will not find the subject matter of the statute already protected by the Constitution.

Last Thursday, Lame Duck Virginia Senator George Allen proposed SB 4057, tentatively titled The National Park Second Amendment Restoration and Personal Protection Act of 2006. According to the current description of the bill, it would "protect the second amendment rights of individuals to carry firearms in units of the National Park System." If passed, it would permit a properly licensed individual to carry a concealed weapon in a National Park.

Of course, the bill's title and short description do nothing other than to obscure the bill's point and confuse debate. The Second Amendment doesn't grant you the right to carry a concealed weapon in the National Park System. That's why you're proposing this law.

Failed Amendments We Have Known & Loved

(Crossposted from the American Constitution Society :: Columbia Law School)

Barring an unexpected Lame Duck attempt to amend the U.S. Constitution, Democratic control of Congress will probably result in a temporary moratorium on proposed amendments to the Constitution that would ban gay marriage or ban burning Old Glory.

Of course, the G.O.P. does not have a monopoly on converting a Congressional majority into failed attempts to amend the Constitution. During the next 2 years of their pending majority, if the Democrats need to find examples of entertaining failed attempts to amend the U.S. Constitution, history provides some real doozies.

In this post, we'll explore three prominent categories of failed Constitution amendments.

• Zombie Amendments:
  These Amendments will not die.
• Let's Remake America Amendments:
  Amendments that would dramatically change our country.
• No Way, José Amendments:
  These are not going in the Constitution.
  

Zombie Amendments:
Approved, Not Ratified, No Expiration Deadline

Starting in the early 20^th century, Congress began placing deadlines on the amendments it sent to the states for ratification. Typically, the states were given seven years to ratify an amendment. After the passage of the deadline, the proposed amendment would expire and Congress would need to start the process all over again to raise the issue. (In the past 50 years, two amendments expired after Congressional approval: the 1972 Equal Rights Amendment & the 1978 D.C. Voting Rights Amendment)

However, absent explicit sunset provisions, approved yet unratified amendments do not expire.¹ Instead, they linger eternally, pending ratification. As shown with the 27^th Amendment, an amendment which floated around for 200 years before finally being ratified in the 1990's, each of these amendments has the potential of becoming law.

Congressional Apportionment Amendment: This proposed amendment was the first of the original twelve amendments proposed to Congress (The original 2^nd Amendment eventually became the 27^th Amendment mentioned above). If passed, the amendment would have restricted the original size of the House of Representatives to 100 representatives, with later enlargements to be determined by Congress. From 1789 to 1792, 11 states ratified this amendment, leaving it two states short of ratification.

Titles of Nobility Amendment: Proposed in 1810, this amendment would strip U.S. citizenship from any citizen accepting, claiming, retaining, or receiving a foreign title of nobility without the consent of Congress.

Believed by some [See here and here. For a rebuttal, see here. (Apply salt liberally to the arguments on these web pages.)] to have been ratified and then supressed by a conspiracy of lawyers (who – so the theory goes – would lose their citizenship via their esquire title), this amendment was approved by 12 states, just one shy of full ratification. Since, at the time, it came within one house of the South Carolina legislature of being ratified, some 19^th century printings of the Constitution erroneously include it as the 13^th Amendment.²

Pro-Slavery Amendment: A last-ditch effort to avoid a civil war, this amendment – approved by the House and Senate on Februrary 28 & March 2, 1861, respectively – stated simply:

No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.

Apart from its subject matter, the language of this amendment raises an important issue in U.S. Constitutional theory: Can a Constitutional amendment prohibit a later amendment through an entrenched clause?

Although this amendment was ultimately ratified by Ohio and Maryland, neither legislature ratified it before the start of Civil War hostilities with the Battle of Fort Sumter on April 12, 1861.

Child Labor Amendment: Proposed in 1924 and ratified by 28 states, this still-pending amendment requires the approval of 10 more states in order to restrict to the federal government all power to regulate labor of persons under 18 years old.

This amendment is a direct reaction to the Child Labor Tax Case,³ which found Congress had overstepped the boundaries of the 10^th Amendment with the scope of the taxes it placed on factories employing child labor.

Let's Remake America Amendments:
Ambitious Attempts to Change this Country

Had they been ratified, these proposed amendments would dramatically change the way our country works.

• 21^st Amendment Redux: Occasionally, lawmakers propose repealing previous Amendments. In 2005, now House majority leader Steny Hoyer proposed repealing the 22^nd Amendment, which limits the President to two terms. In 2004, Senator Zell Miller proposed the repeal of the 17^th Amendment, which allows for democratic election of the Senate.
  


• International Impediments: The Ludlow Amendment, proposed in 1938, would require a national referendum to declare war except in cases of direct attack. Prior to SCOTUS's holding in Reid v. Covert,⁴ which held that the Constitution was supreme over any treaty, the Bricker Amendment proposed to limit the scope of the treaty power.
  


• First Amendment, Schmirst Amendment: Time and again, various people have decided that the Constitution lacks the appropriate shout-outs to the deity of their preference. From the 1860's through the 1950's, numerous proposals to exclaim our country's obedience to the Christian God were considered by Congress. In 2003, Frank Lucas (R-OK) introduced a house bill to preserve the Red-Scare-Era "under God" in the Pledge of Allegiance. In 2005, Representative Ernest Istook (also R-OK) proposed an amendment to explictly endorse school prayer.

No Way, José Amendments:
That's Just Crazy Talk

These proposed amendments were going exactly nowhere, but that's why we like 'em.

• Focus on the, er... Family: On March 31, 2003, former Representative and all-around class act Mark Foley proposed an amendment to remove U.S. citizenship from the children of illegal immigrants. (Insert Mark Foley joke here.)
  


• Cross of Gold, Revisited: Representative Ron Paul (who, awesomely, supports the Gold Standard) proposed the following amendment on January 26, 2005:

  H. J. RES. 14 — Proposing an amendment to the Constitution of the United States relative to abolishing personal income, estate, and gift taxes and prohibiting the United States Government from engaging in business in competition with its citizens.

  Yeah... Good luck with that one, Mr. Paul.
  


• A Big Day for Jesse Jackson, Jr.: Never one to bite off more than he could chew, Representative Jesse Jackson, Jr. introduced a large number of amendments on March 2, 2005. Combined, these amendments would grant:
  1. The right to U.S. citizens to health care of equal high quality.
  2. The right to U.S. citizens to a public education of equal high quality.
  3. The right to vote.
  4. The right to a clean, safe, and sustainable environment.
  5. The right to decent, safe, sanitary, and affordable housing.
  6. Equality of rights and reproductive rights (bolstering Roe v. Wade).
  7. The right to full employment and balanced growth.
  8. Taxing the people of the United States progressively.
  
  

---

¹ Coleman v. Miller, 307 U.S. 433, 454 (1939) (Finding that all amendments are considered pending before the states indefinitely unless Congress establishes a deadline within which the states must act.)

² In Campion v. Towns, 2005 WL 2160115 at *1 (D. Ariz. 2005), a tax protester produced an 19^th century archival copy of the Constitution incorrectly listing the Titles of Nobility Amendment as the 13^th Amendment. Needless to say, the argument based on the existence of this document did not go very far with the Court.

³ Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922)

⁴ 354 U.S. 1 (1957)

Found On The Internets: Parkour — A Beautiful Way to Break an Ankle

Watching a bunch of Russian guys experiment with the French-developed urban exploration sport of Parkour (also free running or Yamakasi) is a terrifying, hypnotic experience.

Spoiler: Don't worry, there aren't any terrifying leg-breaks.


Youtube: Parkour videos

Non-Newtonian Fluid Meets Spanish TV

Some TV hosts walk on water (+ corn starch) in a 4' deep tub of fluid where the viscosity changes with the strain applied against the surface. Stabbing the surface with force causes it to behave like a solid. More gentle treatment leads it to behave like a liquid.


Wikipedia: Non-Newtonian Fluid

Pelosi '07

I think I'm going to wait until the T-shirt is available.
For the impatient, you can order your Pelosi '07 bumper stickers today.

Wikipedia: U.S. Presidential Line of Succession
Wikipedia: Impeachment in the U.S.

To Borrow a Phrase from Russ Hodges...

The Donkeys Win the Senate! The Donkeys Win the Senate!

All we're waiting for now is for Allen to make his concession speech.

The Shot Heard 'Round the World (Listen to the .mp3)

Better 907 Days Late Than Never

On May 5, 2004, I predicted that Donald Rumsfeld would resign on May 15, 2004. For the next ten days, I wrote the Donniebrook — Rumsfeld Retrospective, a tour of the many facets of Donald Rumsfeld.

Donald Rumsfeld is resigning today. Back in 2004, I was a little optimistic regarding the Rumsfeld resignation timeline, but I'll cheer him turning in his badge anytime.

Bye, Donnie.

Donniebrook — The Rumsfeld Retrospective
5/5/2004 Donald Rumsfeld Will Resign in 10 Days
5/6/2004 Donald Rumsfeld: Diplomat
5/7/2004 Donald Rumsfeld: Lecturer
5/8/2004 Donald Rumsfeld: Father of Diet Soda
5/9/2004 Donald Rumsfeld: Executive Operator
5/10/2004 Donald Rumsfeld: Septuagenarian
5/11/2004 Donald Rumsfeld: Rulemaker
5/12/2004 Donald Rumsfeld: Shaolin Master (my favorite Rumsfeld)
5/13/2004 Donald Rumsfeld: Endlessly Inspiring Public Persona
5/14/2004 Donald Rumsfeld: Friend
5/15/2004 Donald Rumsfeld Should Resign Today

The Poor Voter on Election Day

(Crossposted from the American Constitution Society :: Columbia Law School)

The Poor Voter on Election Day
by John Greenleaf Whittier
December 23, 1852

The proudest now is but my peer
The highest not more high.
Today, of all the weary year,
A king of men am I!

Today alike are great and small,
The nameless and the known.
My place is the people's hall,
The ballot box my throne.

Who serves today upon the list
Beside the served shall stand;
Alike the brown and wrinkled fist,
The gloved and dainty hand!

The rich is level with the poor,
The weak is strong today.
And sleekest broadcloth counts no more
Than homespun frock of gray.

Today let pomp and vain pretence
My stubborn right abide.
I set a plain man's common sense
Against the pedant's pride.

Today shall simple manhood try
The strength of gold and land;
The wide world has not wealth to buy
The power in my right hand.

While there's a grief to seek redress
Or balance to adjust,
Where weighs our living manhood less
Than Mammon's vilest dust -

While there's a right to need my vote
A wrong to sweep away,
Up! Clouted knee and ragged coat -
A man's a man today!

Today, when voters across America cast their vote for their representative in the House of Representatives, they exercise the only voting right granted to them by the Constitution, the Senate being chosen by state legislatures until 1913, and the President chosen by The Electors.

(Yes, I realize this poem is a repeat of a post from 2 years ago, but I can't help myself. It's one heck of a swell poem.)

I Only Think About It During Those Minutes In Which I Breathe

Today, I'm thinking about tomorrow's election in the same way that Cosmopolitan believes men think about sex.

Indication #63 That It's a Rough Election for Republicans: President Bush Visits My Hometown

President Bush is holding a rally in my hometown on Saturday Sunday, 72 48 hours before the election.

"So what?" you say, "President Bush visits a lot of hometowns."

Well, my hometown is Grand Island, Nebraska, the largest town/city (45,000) in Nebraska's 3rd Congressional District. Since 1961, the 3rd District has been represented in the House of Representatives by a Republican. However, a recent poll (apply salt liberally) had Democrat Scott Kleeb leading Republican candidate Adrian Smith by 6 points.

Thus, Bush is forced to visit and glad hand in a district where he carried 75 percent of the vote last presidential election.

Wanna counterbalance the POTUS's last-minute stop in Grand Island, Nebraska? Give some money to Scott Kleeb.

The Longest Case in U.S. History: The Myra Clark Gaines Case

(Crossposted from the American Constitution Society :: Columbia Law School)

At the present moment (August, 1853) there is a suit before the court which was commenced nearly twenty years ago, in which from thirty to forty counsel have been known to appear at one time, in which costs have been incurred to the amount of seventy thousand pounds, which is A FRIENDLY SUIT, and which is (I am assured) no nearer to its termination now than when it was begun.
Charles Dickens, Preface to Bleak House (1853)

The case had been frequently before this court in various aspects; first, in 13 Peters, 404, then in 15 Peters, 9, 2 Howard, 619, 6 Howard, 552, 15 Howard, 473. In some of these reports large extracts are made from the record, illustrating the points of law and fact then under consideration, and also the evidence in support of them. All of this past history was brought again to the notice of the court in the argument of the present case, which cannot be again recited in the present report. The reader who wishes to understand all the points which are discussed in the opinion of the court must turn back to the preceding volumes above cited, and follow the case through its successive developments. He will then be able to appreciate the concluding remark in the opinion of the court, which is as follows:

"When hereafter some distinguished American lawyer shall retire from his practice to write the history of his country's jurisprudence, this case will be registered by him as the most remarkable in the records of its courts."
Gaines v. Hennen, 65 U.S. 553 (U.S. 1861) (reporter's note) (emphasis added).¹

As he was writing Bleak House over the course of 1852 & 1853, Charles Dickens was aware of numerous cases mired for decades in the Courts of Chancery. Although his case of Jarndyce & Jarndyce was fiction, he knew the plodding reputation of the English courts at the time would make his case appear real to his 19^th Century British audience.²

What Dickens probably did not know at the time, was that on this side of the Atlantic a woman named Myra Clark Gaines had already been pursuing a claim to an estate for almost twenty years.

What Dickens could not have known at the time was that the Gaines Case would continue for almost forty more years, becoming the longest case in the history of the U.S. judiciary. Her case, originally filed in 1834 would not be fully resolved until 1892, almost sixty years later.

Beginning with her first lawsuit in 1834 and culminating with New Orleans v. Whitney in 1891,³ the Supreme Court of the United States heard issues concerning the Gaines case an astounding sixteen times,⁴ and the Louisiana Supreme Court heard the case eight times.⁵

What was at issue in the Myra Clark Gaines Case?

For the answer, we turn to Elizabeth Urban Alexander's Notorious Woman: The Celebrated Case Of Myra Clark Gaines, a 300-page biography of Ms. Gaines published in 2001:

The events that formed the basis for the Gaines case began in 1787 when Daniel Clark arrived in New Orleans to join his uncle, Colonel Daniel Clark, in business. Ten years later, Colonel Clark conveyed all of his extensive property in Louisiana to his nephew, and at the age of thirty, Daniel Clark found himself one of the richest men in North America.

Clark's many business ventures brought him large revenues that he invested primarily in New Orleans real estate. During the early years of the nineteenth century, as he established himself in New Orleans as "a man of much personal pride and social ambition," Clark became romantically involved with a young Frenchwoman. All accounts of Zuileme Carrière emphasized her extraordinary beauty, vivacity, and charm, and both sides of the lawsuit admitted Clark's fascination with her.

Myra, daughter of Clark and Carrière, later came to believe that her parents had contracted a legal, though secret, marriage, making her the true heir to Clark's fortune. As she grew up, however, she was raised by friends of Clark and kept in ignorance of her real parentage as well as of her father's death in 1813, when she was nine.

Nearly twenty years afterward, Myra and her young husband arrived in New Orleans with a tale of a lost will and a claim that she was the true heir. Few believed her story. For the rest of her life, as a young wife and mother, as the third wife of a prominent general, and as a widow, Myra Clark Gaines pursued the vindication of her "rights."⁶

Besides its longevity, the Gaines case is legally interesting for a number of reasons. First and foremost, the Gaines case is a case about antebellum federal power — particularly about the scope of federal power in a state jurisdiction governed by civil law. Moreover, the case concerns the use of federal equity jurisdiction to govern a matter of domestic relations, an area where today's federal courts are loathe to exert their influence.⁷

Many of the appeals in the case reflect the reticence of courts sitting in Louisiana — even federal courts — to apply federal equity jurisprudence.⁸ The parties opposing Ms. Gaines (protecting the estate of her father) frequently argued before the court that equity had no place in Louisiana. In Gaines v. Chew, one of their many SCOTUS appeals, the estate administrators maintained that federal equity jurisprudence constituted "foreign law" inapplicable in the equity-free zone of Louisiana.⁹

In 1885, Ms. Gaines died, 6 years before the case came to its ultimate conclusion in her favor. After winning the final case before the U.S. Supreme Court the year before, on July 26, 1892, the administrator of her estate received a check for $923,788 from the city of New Orleans (which had received the Clark estate), ending the litigation.¹⁰ As you'd expect, creditors had significant claims against this sum, and little remained for the Gaines heirs to divide up.

If you want to know more about the Gaines case, I encourage you to check out Elizabeth Urban Alexander's Notorious Woman: The Celebrated Case Of Myra Clark Gaines or (if you don't want to leave the friendly confines of Westlaw or Lexis) check out Federalism's Fallacy: The Early Tradition of Federal Family Law and the Invention of State's Rights by Kristin L. Collins. 26 Cardozo L. Rev. 1761 (April 2005).

---

¹ Justice James Moore Wayne – writer of the opinion cited by the above reporter's note – would die 6 years later in 1867, 24 years before the Myra Clark Gaines case would finally culminate in 1891.

² Dickens not only succeeded in capturing the attention of a 19^th Century British audience — he suceeded in capturing the attention of the modern U.S. judiciary. An unrestricted Westlaw search for "Jarndyce" among U.S. state and federal cases returns 254 results, including 3 SCOTUS references (most recently, Hartman v. Moore, -- U.S. ---, 126 S.Ct. 1695, 1701 (2006)

³ 138 U.S. 595 (U.S. 1891)

⁴ U.S. Supreme Court Cases — Myra Clark Gaines
Ex Parte Whitney, 38 U.S. (13 Pet.) 404 (1837)
Gaines v. Relf, 40 U.S. (15 Pet.) 9 (1841)
Gaines v. Chew, 43 U.S. (2 How.) 619 (1844)
Patterson v. Gaines, 47 U.S. (6 How.) 550 (1848)
Gaines v. Relf, 53 U.S. (12 How.) 472 (1852)
Gaines v. Hennan, 65 U.S. (24 How.) 553 (1861)
Gaines v. New Orleans, 73 U.S. (6 Wall.) 642 (1868)
Gaines v. De La Croix, 73 U.S. (6 Wall.) 719 (1868)
Gaines v. Fuentes, 92 U.S. 10 (1876)
Smith, et al. v. Gaines, 93 U.S. 341 (1876)
Davis v. Gaines, 104 U.S. 386 (1881)
New Orleans v. Christmas, et al., 131 U.S. 191 (1889)
New Orleans v. U.S. ex rel. Christmas et. al., 131 U.S. 220 (1889)
New Orleans v. Whitney, 138 U.S. 595 (1891)

The district & circuit court cases involving Myra Clark Gaines are far too numerous to detail here, but information regarding them is available in the Bibliography of Elizabeth Urban Alexander's Notorious Woman: The Celebrated Case Of Myra Clark Gaines, the text of which is searchable at Amazon.com.

⁵ Louisiana Supreme Court Cases — Myra Clark Gaines
Barnes v. Gaines, 5 Rob. 314 (1843)
Succession of Clark, 11 La. Ann. 124 (1856)
Clark's Heirs v. Gaines, 13 La. Ann. 138 (1858)
De la Croix v. Gaines, 13 La. Ann. 177 (1858)
Van Wych v. Gaines, 13 La. Ann. 235 (1858)
Fuentes v. Gaines, 25 La. Ann. 85 (1873)
Foulhouze v. Gaines, 26 La. Ann. 84 (1874)

⁶ Elizabeth Urban Alexander, Notorious Woman: The Celebrated Case of Myra Clark Gaines 3 (2001)

If you're at Columbia Law School, the Arthur Diamond Law Libary has a copy of Notorious Woman available for checkout. Its call number is KF759.C57 A43 2001.

⁷ For a detailed analysis of the use of federal equity power in the Myra Clarke Gaines case, check out Federalism's Fallacy: The Early Tradition of Federal Family Law and the Invention of State's Rights by Kristin L. Collins. 26 Cardozo L. Rev. 1761 (April 2005)

⁸ Two of the Supreme Court appeals — Ex Parte Whitney, 38 U.S. (13 Pet.) 404 (1839) & Gaines v. Relf, 40 U.S. (15 Pet.) 9 (1841) — reversed lower federal courts sitting in Louisiana when those courts refused to apply equity to cases that they believed should have arisen under civil law, where equity was unavailable.

⁹ 43 U.S. at 650 ("Complaint is made that the federal government has imposed a foreign law upon Louisiana. There is no ground for this complaint.").

¹⁰ The Gaines Case Settled; Some of the Claims to be at Once Paid by the Administrator, New York Times, July 27, 1892, at 1.

The GOP Thinks You're Dumb

Although he was speaking before the John Kerry flap started, Mark Shields laid the groundwork for this potential Democratic strategy on the Newshour with Jim Lerher last Friday. It's just about the only thing the Democrats should be saying at this point. ...and the Democrats should be shouting it from the mountaintops:

     Americans, Republicans think you're dumb.

They think this election can be converted into a referendum on John Kerry, a Democrat who is not running for office during this election.

Why do they think this? Well, it's because:


As Wonkette noted today:

John Kerry is not funny. Neither is the situation in Iraq that Republican candidates are distancing themselves from.

They Think You're Dumb, America.
The GOP Thinks You're Dumb.

They think that, with 120 hours left, you'll make this election about a verbal miscue from a Democratic politician WHO IS NOT RUNNING FOR OFFICE THIS YEAR.

Remember: They think this because, They Think You're Dumb.


On Election Day,
they think you'll look past their bungling of Iraq,
they think you'll look past their sordid misdeeds,
they think you'll look past their influence fire sale.
They think this because:

They Think You're Dumb

 
 

NJ Allows Civil Unions.CNN.com Responds.

The New Jersey Supreme Court held today that the New Jersey state constitution requires that the state permit civil unions. CNN.com's domestic edition was ready for the challenge.

"Hey Ernie, run that picture of those three homely gay people marrying that child."



"Sure thing, Boss."





Although consistency has suddenly become irrelevant for Republicans, President Bush used to think that civil unions of this sort were OK:

I don’t think we should deny people rights to a civil union, a legal arrangement, if that’s what a state chooses to do so. … I strongly believe that marriage ought to be defined as between a union between a man and a woman. Now, having said that, states ought to be able to have the right to pass laws that enable people to be able to have rights like others.

I guess we'll just have to wait and see what his handlers tell him to think now.

The Things People Care About

Frustrated with the Christianist turn that his party has taken, former Republican House majority leader Dick Armey recently complained "The Republicans are talking about things like gay marriage and so forth, and the Democrats are talking about the things people care about, like how do I pay my bills?"

In these last days before the election, here's hoping that Americans faced with everyday problems can look past the various Republican smokescreens — whether it be fears about gay marriage, the unproven and unceasing claim that Republicans are somehow better at the War on Tara then their vilified Defeatocrats, or the administration's recent and shocking assertion that their Iraq strategy has never been a stay the course strategy — and can focus on their everyday concerns.

Democrats, for their part, should be simplifying their message — allowing the remaining undecideds to come to their senses on Election Day. Based on her most recent campaign ad (which premiered during Game 1 of the World Series), Claire McCaskill (the Democratic nominee in Missouri for Senate) gets this:
Keep it simple.
Focus on your message, then highlight the stark between you and your opponent.
Win on November 7th.

Google Earthy-mander

(Crossposted from the American Constitution Society :: Columbia Law School)

Google has just added a bevy of election information to its fantastic Google Earth product.

Users of Google Earth will notice a new layer called "2006 US Election Guide." Once activated this layer displays red lines to indicate our various Congressional districts, along with information regarding candidates purusing these seats this November.

Below is a snapshot of those candidates pursuing Tom DeLay's vacated 22nd District, Texas seat.



Far more interesting than the information available about candidates is this easy birds-eye view of the gerrymandering that has captured our system. Click on any of the cities below to see the monsters that Safe Seat congressional districting has created:

Los Angeles	New York City
Dallas/Ft. Worth	Philadelphia

You can download Google Earth for free here.

Thanks, Don!

Found On The Internets: I Never Mastered the Hand + Eye + Beer Coordination

I'm always a little amazed when I see truly stellar billiards or dart play, as practitioners of both arts are generally self-handicapped by years of training with the obligatory brew in hand.

Nice collection of trick shots below.

Found On The Internets: Constructing the Spokesmodel

Here's a nice Dove ad on how our the cosmetics/glamor industry helps manufacture our views on beauty:

Why Are Republicans Better Sloganeers if Most Advertising Executives are Democrats?

As far as a slogan characterizing the current progressive domestic agenda (they say "governing philosophy"), I like the sound of Securing the Common Good:



Message details are available at ThinkProgress.

The Holy Tango Anthology of Literature

In the Holy Tango Anthology of Literature, Francis Heaney explores the important question of "what would happen if poets and playwrights wrote works whose titles were anagrams of their names."

Some choice bits:

I WILL ALARM ISLAMIC OWLS
WILLIAM CARLOS WILLIAMS

I will be alarming
the Islamic owls
that are in
the barn

and which
you warned me
are very jittery
and susceptible to loud noises

Forgive me
they see so well in the dark
so feathery
and so dedicated to Allah


nice smug me
e. e. cummings

this here verse’s
disjunct
     i used to
     stick to regular metered
               poetry
now i write onetwothreefourfive poemsjustlikethat
                    Jesus

but this is simple work
            and what i want to know is
how much am i going to get paid for this
mister editor

Thanks, Jon!

Intolerable Leadership

Today — the same day that a study was released claiming that 655,000 Iraqi deaths (fully 2.5% of the pre-war Iraqi population) — have occurred as a result of our war in Iraq, President Bush said:

SUZANNE MALVEAUX, CNN: Thank you, Mr. President. Back on Iraq, a group of American and Iraqi health officials today released a report saying that 655,000 Iraqis have died since the Iraq war. That figure is 20 times the figure that you cited in December at 30,000. Do you care to amend or update your figure and do you consider this a credible report?

PRESIDENT BUSH: No, I don’t consider it a credible report, neither does General Casey and neither do Iraqi officials. I do know that a lot of innocent people have died and it troubles me and grieves me. And I applaud the Iraqis for their courage in the face of violence. I am, you know, amazed that this is a society which so wants to be free that they’re willing to — you know, that there’s a level of violence that they tolerate.

I wonder, what would Iraqi intolerance of this horrific violence look like? Would we ever hear about it? What option does the ordinary Iraqi civilian have? How could they express this intolerance?

I hope Bush's response to the reporter's question is just more of his typical verbal miscommunication. The alternative, that he is spinning massive amounts of violence on Iraqi civilians as something positive — perhaps evidence of everyday Iraqis' hunger for democracy, is a hucksterish strategy simply too cynical for me to stomach.

These Buffaloes Are Ready for the NFL

Staying ahead in business requires constant innovation — finding new ways to make money before the other guy beats you to it.

For the mob, sometimes this means finding new illegal things to do to help the Don's bottom line. For the Camorra mafia, this means feeding buffaloes with steroids to produce more milk for making mozzarella cheese.

Nukequake

Here's the USGS Earthquake Hazards Program page on the 4.2 earthquake caused by the apparent North Korean nuclear test.

It's The Don't Blame Me Tango

Step #1: The Link to the Article Says This


Step #2: The Headline of the Article Says This


Step #3: The First Paragraph of the Article Says This


Viola! You've shirked responsibility with the Don't Blame Me Tango.

I Hear the Chicken Dance Is Next

I was unaware that Pope Benedict XVI had the authority to abolish limbo, but apparently he does.

Without limbo, how will the remarkably flexible show off in public?

The Cell Phone Charger Fairy Emptied Her Bag

You can see a lot on the New York City subway.

Sometimes you see a rat.
Sometimes you see a person on less than their best behavior.
Sometimes you just see a tangled pile of 50 cell phone chargers.

Truth is Stranger Than Photoshop

It boggles the mind that a US Senator running for re-election — especially one accused of using an ethnic slur at a campaign event — would advertise an "Ethnic Rally" on his re-election website.

WIRED's Color-coded Mortality Alert System

This September 11^th, Wired has unveiled a color-coded alert system based on mortality data.

Core Truths

I spent the summer as a judicial intern in the Daniel Patrick Moynihan United States Courthouse. I really couldn't have had a better time, and I now feel much more confident that I can competently approach problems in a lawyerly manner.

As I wind up my summer at the Court, I find a quote attributed to Senator Moynihan rolling around in my mind:

The central conservative truth is that it is culture, not politics, that determines the success of a society.

The central liberal truth is that politics can change a culture and save it from itself.

Dear John & Patty Ramsey,

Sorry for really, really, really not believing you.

This case will do to cast doubt onto clouds of suspicion in the same way that Kitty Genovese cast doubt on the idea that someone else will call the police.

Update (8/28): I'll take my boiled crow with a nice bearnaise sauce, if you please.

Cameraphone in the Law Library

They could have called it Admiralty Law or Maritime Law, but they had a different title in mind.

What Heat?

Forecasters seem to think that New York City will fail to eclipse its hottest recorded temperature today (they seem to think La Guardia Airport will reach 102 degrees but go no higher). The bar was set at 106 degrees on July 9, 1936.

For what it's worth, the hottest recorded surface temperature on this planet is 136.4 (or 135.9, depending on whom you ask) degrees, measured at Al Àziziyah, Libya on Sept. 13, 1922.

So Thaaaaaat's What Rear Admirals Do

It's all starting to make sense now.

Chinatown Ice Cream Tip #5

If you decide to show off in front of your co-workers and order the durian-flavored ice cream, know that any burps you have for the rest of the day are going to smell a little bit like carrion.

That said, Chinatown Ice Cream Factory does a great job with durian, a fruit with an odor compared variously to "civet, sewage, stale vomit, skunk spray, and used surgical swabs."

The Third Amendment: The Little Amendment That Couldn't

(Crossposted from the American Constitution Society :: Columbia Law School)

Stop what you're doing.

If you're a law student or a lawyer, the odds are pretty good that you're within easy walking distance of a copy of the U.S.C.A. Go to this multi-volume juggernaut.

The first umpteen volumes of this leather-bound behemouth are devoted to the U.S. Constitution and its amendments. Grab the volume dedicated to the first four amendments.

As you likely know, the U.S.C.A. is an annotated version of the codified statutes of the United States. Adjacent to a statute, the publisher (West) has attempted to include influential cases that reference that statute. Flip to the Third Amendment.

While flipping, you may have noticed that the First Amendment has about 150 pages of one-paragraph case synopses that illustrate how, over time, courts have interpretted the protections laid out in the First Amendment's 45 words.

If you flipped too far, you may have noticed the Fourth Amendment has about 400 pages of material dedicated to the constitutional protection against various unreasonable searches and seizures.

How many pages are devoted to the Third Amendment?

2

The republic is in its 230^th year, with a constitution that is 217 years old. ...and yet there are 2 pages worth of cases that say anything interesting about the Third Amendment. Let's take a tour:

First, the text:

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Cornell's Annotated Constitution claims:

There has been no Supreme Court explication of this Amendment, which was obviously one guarantee of the preference for the civilian over the military. In fact, save for the curious case of Engblom v. Carey, 677 F. 2d 957 (2d Cir. 1982), on remand, 572 F. Supp. 44 (S.D.N.Y.), aff’d. per curiam, 724 F.2d 28 (2d Cir. 1983), there has been no judicial explication at all.

Au contraire. No fewer than seven cases have mentioned this sacred protective amendment, at least three of which bear mentioning.

First, back in the day of penumbras, a footnote in Katz v. US notes that this amendment protected at least one "aspect of privacy from governmental intrusion."¹

Next, although the common law Ad Coelum rule (the rule's full name translates roughly as "To whomever the soil belongs, he owns also to the sky and to the depths.") was put out of commission 65 years before by Hinman v. Pacific Air Transport and its sister cases, the Custer County Action Association still forwarded an Ad Coelum-related theory in its 2001 case.² The association claimed that peacetime military overflights were a per se unconstitutional quartering of soldiers on their property.³ Needless to say, the 10^th Circuit disagreed rather heartily.

Finally, the last case bearing mention is Engblom v. Carey, which (as the quote above notes) is probably the only lengthy judicial discussion of the Third Amendment.⁴ Although I agree with Engblom's core holding, that National Guardsmen are "soldiers" within the meaning of the Third Amendment, I must sheepishly disagree with one of Engblom's other holdings — that the Third Amendment applies to the states via incorporation in the Fourteenth Amendment.⁵

Notwithstanding Barron v. Baltimore,⁶ it appears to me that the Third Amendment applies directly to state militias (given the National Guard's formation via the Militia Act of 1903, I'm treating them as state militias for the purpose of this argument.)

Article I, Section 10, Clause 3 reads:

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay. (emphasis added)

Since a state could not maintain soldiers other than with the approval of Congress, since the Third Amendment says "No Soldier," not "no federal soldier," and since the Third Amendment provides a logical backstop to the militia power defined in the Second Amendment, it appears to me that the Third Amendment would have logically applied to the states before the Fourteenth Amendment made it so.

---

¹ Katz v. US, 389 U.S. 347, 351 n.5 (1967).

² Hinman v. Pacific Air Transport, 84 F.2d 755 (9th Cir. 1936); cert. denied, 300 U.S. 654 (1937); see US v. Causby, 328 U.S. 256, 261 (1946) (acknowledging that while a Fifth Amendment remedy might exist if flights over private property directly and immediately interfere with the enjoyment and use of the land, Congress has declared "[t]he air is a public highway" and "[c]ommon sense revolts at the idea" that aircraft operators would be subject to trespass suits based on common law notions of property ownership extending to the periphery of the universe). Black's Law Dictionary (6th ed 1990).

³ Custer County Action Ass'n v. Garvey, 256 F.3d 1024, 1042-43 (10th Cir. 2001).

⁴ Engblom v. Carey, 677 F.2d 957 (2d Cir. 1982), on remand 572 F. Supp. 44 (S.D.N.Y. 1983).

⁵ Id. at 961-62.

⁶ Barron v. Baltimore, 32 U.S. 243 (1833) (determining that the Bill of Rights did not apply to state governments)

(Thanks to Colin for the U.S.C.A. tip)

ABA to Executive Branch: "The Constitution is not what the President says it is."

(Crossposted from the American Constitution Society :: Columbia Law School)

An ABA task force is urging Congress to pass legislation permitting court review of presidential signing statements.

Although the Justice Department claims that President Bush has only issued 110 signing statements (to Clinton's 80 such statements), the ABA task force cites research that Bush has challenged the constitutionality of 800 provisions of law passed by Congress.

If You Take Her to Be Your Lawfully Wedded Wife, Say "Hoo-Rah"

This weekend, Steph & I attended a lovely wedding ceremony on a military base. You see, the bride spent her childhood as a military brat, traveling from base to base. Ultimately, it was Fort Knox that became her home.

It was a lovely Catholic ceremony, followed by a grand and riotous reception. Both halves of the day were long enough for Steph and me to discover a couple of the lighter elements oddly present when your wedding is on a military facility.

The Ceremony: In the Book of Worship for United States Forces, hymn #197 is Bless Thou the Astronauts Who Face, a classic that I'm sure we all know by heart.




The Reception: When you have your reception at the officers' club, you know there will be some military-themed art hanging over the mantle.

As Fort Knox is home of U.S. Army Armor Center and the U.S. Army Armor School, it's not too suprising that armor and cavalry feature heavily in a number of these works.

In Cold War-era painting below, I think the mushroom cloud really ties the whole thing together.

Somehow We Muster the Courage to Commute

Having gone through the Lincoln Tunnel at 5:30 am this morning — the very day that the abortive (and physically impossible) plan to somehow flood lower Manhattan (which is above sea level) via damaging/destroying the various tunnels leading to Manhattan (which are below sea level) was publicly disclosed — I've determined that I am now worthy of joining the 101st Fighting Keyboarders.

I'm proud to enlist in this group, the courage of which is typified by Hugh Hewitt, who day-in and day-out somehow musters the intestinal fortitude to broadcast from the Empire State Building.

By the way, I'm amused by the terrorists' physics model, where blowing up a tunnel somehow means that water will flow uphill. Whatever we do, we must not let Al Qaeda get ahold of these scientists, who have (on a small scale) caused water to flow uphill in an organized manner.

Found On The Internets: What Do You Do with a 500 lb. Rubber Band Ball?

Naturally, you attack your old Toyota Camry with it.

An Independence Day Musical Tidbit

The song that should be our national hymn, America the Beautiful, is sang in common meter double (8-6-8-6-8-6-8-6). Thus, its lyrics are perfectly interchangeable with Auld Lang Syne, another famous tune in common meter double.

It's the Website Lurking in the Shadows, Stalking Every 2L

Law may not be the most lucrative career, or the most glamorous, but it's the most arduous, and that's something to be proud of.

Patrick L. Forrester, Partner, Anonymous Law Firm LLP

Found On The Internets: I Did Not Know That People Could Do This

This is truly excellent.

Pat Robertson, Man of Iron

It's hard to ignore Pat Robertson's kookiness, even when you're vacationing in Sicily.

This time, he's claiming he can leg press 2,000 lbs thanks to his miracle health shake.

p.s. Sicily is beautiful, but their driving resembles a real life version of Grand Theft Auto without as much shooting.

On a Personal Note...

After a brief rainstorm, the sun is beautifully setting over the Hudson on this, my last night of work during my first year at law school.

I am really tired, really glad I decided to pursue this career, and really ready for a summer break from classes.

2006 CEI "Energy" Commercial = 1964 LBJ "Daisy" Commercial

So a Big Oil astroturfing group has started a CO₂ is Great promotional campaign.

Colin (who has an absolutely amazing eye for cross-cultural similarity) notes that one of the commercials is just a rehashing of LBJ's famous "Daisy" commercial for the 1964 Presidential Election.



Unfortunately, though, it's the inverse of the "Daisy" commercial. Rather than spook us into action, the goal of the commercial is to lull you into complacency.

Pat Robertson Kookwatch: Episode 6

As I've said time and again, Pat Robertson's going to say something kooky to get in the news roughly every 50 days.

This time, he's claiming "If I heard the Lord right about 2006, the coasts of America will be lashed by storms," possibly even a tsunami.

66 days ago, it was satanic radical Muslims.
137 days ago, it was divine anger at Israel.
188 days ago, it was divine anger at Dover, PA.
220 days ago, the 2^nd coming appeared en route.
268 days ago, he called for the assassination of Hugo Chavez.

I wonder if he sets a reminder in Microsoft Outlook to say something crazy, or if his reliability is just innate.

They Should Have urbandictionary.com Blocked on All the White House Computers By Now

Seriously, at this point our tongue-tied President is just messing with us.

Bush stoked to meet Olympic 'dudes and dudesses'

I'm Glad I'm Not the Only One Who Finds Constitutional Law Challenging

(Crossposted from the American Constitution Society :: Columbia Law School)

The U.S. Citizenship and Immigration Services flashcards designed to help applicants study for US citizenship exam omit the freedom of the press.


The full(ish) set can be downloaded here (.pdf link).