Saturday, February 24, 2007

What Passes for Truth is Stranger than Fiction

For some folks, Wikipedia (the online resource deceiving college students everywhere) leaves something to be desired. The creators of Conservapedia created their site as "a much-needed alternative to Wikipedia, which is increasingly anti-Christian and anti-American."

This is not a parody site. Parody is entirely unnecessary. I submit for your approval the Conservapedia's entry for "unicorn."

As an aid to future historians, looking to understand the odd things that "conservative" came to represent during the 00's, here's "unicorn" as it stood on the morning of 2/24/07:

"Great Job on the Unicorn page!" Conservapedia contributor PhilipB writes to Rich P, the primary author of this scholarly contribution. Great job indeed.

Hat tip to Sadly, No!

Friday, February 23, 2007

Law School in South Africa

Law school is an embarrassingly domestic exercise, where students sample broad areas of U.S. law but know almost nothing about international or comparative law. No international course is required at Columbia, even though international law is one of the historic strengths of this school.

Despite this omphaloskeptic focus on U.S. law, even students who avoid international law courses occasionally stumble across foreign sources in standard law courses. Obviously, all former British colonies – as fellow common law countries – make regular appearances in the casebooks. With the exception of current communist states, pretty much every other nation is a civil law jurisdiction, founding its law in the Roman tradition, instead of medieval British custom, and these countries are typically discussed as if they were a single unit — with laws uniform across borders.

One civil law jurisdiction that occasionally gets independent treatment is South Africa. Well, independent treatment is really an exaggeration — South Africa gets mentioned for two things:

  1. South Africa's Modern Constitution: Whereas our government flails about, attempting to extract modern guidance out of a document written more than 200 years ago, South Africa's post-apartheid constitution was adopted in 1996. U.S. legal historians attempting to unearth the Framers' constitutional intent employ methods that resemble necromancy. In South Africa, you can determine the writers' intent by asking them.

    Although the fall of the Iron Curtain led to the creation of many constitutions, South Africa's is distinguished by the scope of the rights granted to South African citizens in the constitution's Bill of Rights. Rights-oriented parties in the United States are forced to read between the lines of our antique Bill of Rights to find rights like privacy or free association. In the South African constitution, the right to privacy (section 14) and the right to freely associate (section 18) are merely two of dozens of rights explicitly granted to individuals in South Africa.

  2. South Africa's High Crime Rate: From the outside looking in, South Africa appears to be a society nearly paralyzed by crime. A 1996-2000 UN study found that South Africa had the most assaults, rapes, and murders with firearms of the 60 nations surveyed. Critics of the study point out that the sample included the most developed nations of the world, and that South Africa's crime rate is not anomalous for a developing country. Still, there's no denying that South Africa is still a place where women can buy rape insurance — using the proceeds to purchase anti-HIV drugs, where the affluent classes live in garrison suburbs, and where the residual effects of nearly sixty years of formal apartheid are impossible to ignore.
I mention the above because my friends Roger & Todd have gone to South Africa, where they'll spend a semester studying South African law. They're keeping the rest of us up-to-speed by blogging about the experience.

Classes have just started, but they're already experiencing a South Africa I can only imagine. Read Todd's take on their most recent challenge — dealing with a VW Golf that was broken into under the less-than-watchful eye of their security guard.

Saturday, February 17, 2007

Introducing Catherine

On 2/13/07 @ 5:28 AM Eastern, Steph & I were fortunate enough to welcome Catherine into this world. At birth, she weighed 6 lbs. & 3 oz.

We're home from the hospital and all are doing well. Over the past 48 hours, we've transformed into an assembly line of feeding, soothing, and diaper-changing. I've never felt so automated.

Speaking of automation, Garfield wrote us a congratulatory note and lamented that we weren't able to give birth using any centrifugal force delivery machines. Yes, I'm sure that Steph really missed all the benefits that violent spinning can bring to childbirth.

Monday, February 12, 2007

Abraham Lincoln on Executive Options for Unauthorized, Preemptive War

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

On October 10 and October 11, 2002, the House of Representatives and the Senate, respectively, passed a joint resolution that came to be known as the Authorization for Use of Military Force Against Iraq Resolution of 2002. This resolution, signed by President Bush on October 16, 2002, specifically authorized the President to use our armed forces to "(1) defend the national security of the United States against the continuing threat posed by Iraq; and (2) enforce all relevant United Nations Security Council resolutions regarding Iraq." At the time of the resolution, the Executive Branch wanted a resolution authorizing military action throughout the Middle East, however, the Joint Resolution only authorizes military action in Iraq.

Current bellicose bluster from administration officials, direct White House involvement with intelligence assessments, military brass presentations, and aggressive troop movements in the Persian Gulf indicate that the Executive Branch may be interested in provoking a military or paramilitary response from Iran.

Beyond merely provoking an Iranian response, other sources close to the current administration claim that the Executive Branch may contemplate a preemptive, unprovoked strike against Iran, even without Congressional authorization.

If the Executive Branch's behavior were to constitute a first strike in a shooting war between the U.S. & Iran, Abraham Lincoln would likely consider the behavior unconstitutional at best and anti-republican at worst. He wrote this letter to his law partner, William Herndon, shortly after the culmination of the Mexican-American War. In an earlier letter, Herndon had argued that the President could initiate war against Mexico without Congress's prior authorization.

WASHINGTON, February 15, 1848.

DEAR WILLIAM:--Your letter of the 29th January was received last night. Being exclusively a constitutional argument, I wish to submit some reflections upon it in the same spirit of kindness that I know actuates you. Let me first state what I understand to be your position. It is that if it shall become necessary to repel invasion, the President may, without violation of the Constitution, cross the line and invade the territory of another country, and that whether such necessity exists in any given case the President is the sole judge.

Before going further consider well whether this is or is not your position. If it is, it is a position that neither the President himself, nor any friend of his, so far as I know, has ever taken. Their only positions are--first, that the soil was ours when the hostilities commenced; and second, that whether it was rightfully ours or not, Congress had annexed it, and the President for that reason was bound to defend it; both of which are as clearly proved to be false in fact as you can prove that your house is mine. The soil was not ours, and Congress did not annex or attempt to annex it. But to return to your position. Allow the President to invade a neighboring nation whenever he shall deem it necessary to repel an invasion, and you allow him to do so whenever he may choose to say he deems it necessary for such purpose, and you allow him to make war at pleasure. Study to see if you can fix any limit to his power in this respect, after having given him so much as you propose. If to-day he should choose to say he thinks it necessary to invade Canada to prevent the British from invading us, how could you stop him? You may say to him,--"I see no probability of the British invading us"; but he will say to you, "Be silent: I see it, if you don't."

The provision of the Constitution giving the war making power to Congress was dictated, as I understand it, by the following reasons: kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This our convention understood to be the most oppressive of all kingly oppressions, and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us. But your view destroys the whole matter, and places our President where kings have always stood. Write soon again.

Yours truly,

Letter from Abraham Lincoln to William Herndon (Feb. 15, 1848), in The Writings of Abraham Lincoln - Volume 2: 1843-1858 (Arthur Brooks ed., 1923) (emphasis added).

Hat tip to Andrew Sullivan.

Nixon Coin Enthusiasts Will Have to Wait

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

New U.S. dollar coins featuring former Presidents go into circulation this week. The coins will feature the Presidents in order, 4 per year.

Unfortunately for Nixon enthusiasts, this means that the 37th President of the United States will not grace a $1 coin until 2016.

Sunday, February 11, 2007

In 154 Hours, I Might Have a Golden Pig

I haven't mentioned it yet in this blog, but Steph & I are expecting a baby. Soon.

Our due date is February 20th, but since only 5% of women give birth on their due dates, we've been prepared for the baby to arrive any day these past few weeks.

Our readiness for the baby's arrival has bred impatience. I've never felt more impatient (... & anxious & excited & eager & ready) in my life, and days ago I started hoping that the baby would join us just a little early — a hope fueled by the baby's low station inside Steph and our doctor's observation that labor seemed just around the corner.

Now I have learned a new tidbit to combat my impatience. If Baby & Steph can hold out until February 18th, our child may be a Golden Pig.

According to Chinese astrology, the Year of the Dog will end on February 17th, to be followed by the Year of the Pig. Since Chinese astrology not only includes 12 animals but also 5 elements (wood, fire, earth, metal, & water), every 5th Year of the Pig is a Fire Pig year. The coming year is a Fire Pig year, and according to the National Folk Museum of Korea, the Fire Pig is the most auspicious of all Pig Years. (Fire is associated with Red, a color regarded by traditional Chinese belief as the most fortunate.)

However, a rumor circulating throughout Korea and China that this coming year is more than a normal Fire Pig year. According to various online accounts, oscillations in Yin & Yang this year will amplify the already positive Fire Pig, creating a Year of the Golden Pig.

Children born in the Year of the Golden Pig will supposedly lead a comfortable life, blessed with good luck and financial wealth. Although competing Chinese astrologers & historians debate whether the year is actually a golden one, it appears that many families in Asia would rather not take their chances. Hospitals in Shanghai are preparing for a one-year baby boom, expecting a 10% surge in births.

So hang in there, baby. A Pig of Gold might be your reward.

Saturday, February 10, 2007

I Thought He Only Predicted Death

When he's not playing the role of an ineffective religious prognosticator, Pat Robertson is a no-less-kooky, just-less-overtly-religious diet shake huckster. On this side of his double life, Robertson is sued for things like misappropriation of a bodybuilder's image — precisely the suit that bodybuilder Phillip Busch is bringing against Robertson in federal court.

Now Busch alleges that Robertson told Busch – "I am going to kill you and your family." In 1995, Robertson faced similar allegations from a former business partner.

Friday, February 09, 2007

O.W. Holmes Jr. Man of His Time Club Member: Justice Bradley in Bradwell v. Illinois

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

From a certain point of view, Bradwell v. Illinois, 83 U.S. 130 (1873), is a forgettable case. In Bradwell, the Court builds on the Slaughter-House Cases, holding that the right to practice law is not among the Privileges or Immunities protected by the 14th Amendment.

What is memorable about the case is Justice Joseph Bradley's (wink, wink) concurrence in this 8-1 opinion.

Based on the undeniable power of this concurrence, I'm proud to announce that Justice Bradley has just won entry into the hallowed halls of the O.W. Holmes Jr. Man of His Time Club, a select club for bygone Supreme Court Justices who included startlingly pre-modern passages in their opinions. (Of course, Holmes's opinion in Buck v. Bell is offensive enough to install him as the permanent founding member.)

Here's Justice Bradley, concurring that the 14th Amendment doesn't prohibit Illinois from denying Myra Bradwell admission to the bar on the basis of her sex:

[T]he civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interest and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband . . . It is true that many women are unmarried and not affected by any of the duties, complications, and incapacities arising out of the married state, but these are exceptions to the general rule. The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases.

Bradwell, 83 U.S. 130 at 141.

Thursday, February 08, 2007

After the Gavel: Anna Nicole Smith & Other Star-Crossed Litigants

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

In law school, no case receives more than an hour's attention – Marbury v. Madison? Brown v. Board? Roe v. Wade? The Steel Seizure Case? Each gets an hour, tops. As law students hop from case to case, they generally leave each case with a sense of permanence: The matter between the parties is resolved. The issue is put to rest. Next case.

Anna Nicole Smith's sudden and tragic passing today highlights, the lives of the litigants go on after their famous day in court concludes. As we skip around the law, we generally do so unaware that the parties to a well-known case might not have lived happily ever once they left the courthouse.

As Adam notes elsewhere in this blog, it is with sadness that we learn of Ms. Smith's fate; however, she is not the first litigant to die soon after a major court victory or defeat. It's sad but unsurprising when a gravely injured litigant dies soon after their day in court. It's altogether different when a seemingly healthy party dies shortly after the final gavel.

Anna Nicole Smith: An icon of popular culture, Ms. Smith was one of the most immediately recognized and well-known Americans; however, she only gained the professional attention of the legal community through the protracted legal battle over her late husband's estate — a battle ultimately leading to her SCOTUS victory in Marshall v. Marshall, 126 S.Ct. 1735 (2006).

In something of an ironic twist of fate, Ms. Smith is predeceased by E. Pierce Marshall, the named defendant in Marshall v. Marshall and son of Smith's husband J. Howard Marshall II. Mr. Marshall died of an infection on June 20, 2006, less than two months after losing at the Supreme Court.

Tyrone Garner: Although Mr. Garner's name is not immediately recognizable to most law students, his legacy as co-plaintiff in Lawrence v. Texas, 539 U.S. 558 (2003), represents a monumental leap forward for gay rights in the United States. Unfortunately, Mr. Garner's chance to relish this powerful victory was short lived, and he died of meningitis on September 12, 2006.

Richard Loving: Although Richard and Mildred Loving's successful battle against Virginia's ban on interracial marriage in Loving v. Virginia, 388 U.S. 1 (1967), would have a profound effect on marriage in America, their own marriage would be tragically cut short. On June 29, 1975, Richard, Mildred, and Mildred's sister Garnet were traveling by car when they were hit by a drunk driver, killing Richard. Richard Loving was 41.

Dred Scott: In the infamous Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856), the Supreme Court determined that slaves could not be citizens of the United States: a decision that helped provoke a civil war, led directly to the Civil Rights Act of 1866, and ultimately to the Fourteenth Amendment to the U.S. Constitution.

For better or worse, Dred Scott experienced none of these subsequent developments. Having been granted his freedom by his eventual owners in early 1858, Scott died of tuberculosis on September 17, 1858.

Monday, February 05, 2007

More Workers for the Motherland

It would not do for the USSR to have only one formal honor for women who raised numerous children. they had three.

Motherhood Medal, 2nd Class: For raising 5 children.
Motherhood Medal, 1st Class: For raising 6 children.

Order of Maternal Glory, 3rd Class: For raising 7 children.
Order of Maternal Glory, 2nd Class: For raising 8 children.
Order of Maternal Glory, 1st Class: For raising 9 children.

Order of Mother Heroine: For raising 10 or more children.