Bitter and Busy

That is what explains the lack of posting lately. I wish I had something to say, but to be honest I am seeing red over the jackass President; depressed that Kerry is going to be the nominee; stressed out over my shoulder injury; and, worried that I will be working at Del Taco for the summer.

On top of all that, I have been spending more of my free time reading law journal articles, so I am considering changing the focus of the site more towards observations about law, with a little less politics. The only problem, as I see it, is that I will be spouting off on legal matters without first talking them through with others who know more than me (ie, professors). We'll see..

But soon, the dry spell will end.

Oh, the Hand Formula

In the middle of reading a working paper on the application of the Hand Formula, more specifically the authors allege that it fails to promote social cost minimization. Although I think they make credible arguments, their specific approach to remedy is at least slightly flawed. I will have more on this later after I have digested it all and thought my own critique through a bit.

(Paper is available here)

Scenes from a Marriage Ceremony

For all of you who still are not convinced in the goodness of equal marriage rights, I give you these pictures.

Tell me, do you feel threatened by them, so much so that you want to run out and divorce your heterosexual spouse or break your hetero engagement?

Someone please explain to me how this in any way, shape or form jeopardizes straight marriage. (bonus points if you can give a good reason why the near 50% straight divorce rate is not evidence that marriage was already irreparably broken.)

Because America's Future is Too Important

Tell Ralph Not to Run

Oooppsss

I missed the marking of the musclehead one year anniversary on Saturday.
Feel free to send some gifts.

Rape as Strict Liability Crime

There is a class of crimes that are strict liability, meaning that mens rea is not a required element of the crime. Intent does not matter, it is merely a question of whether the defendant committed the act in question or not. Historically, strict liability has been limited to public welfare crimes, such as statutory rape.

Extending strict liability to all categories of rape would seem like a natural progression. The history of the criminal law's treatment of rape is far from exemplary. It had been dictated for several decades by a patriarchical legal system and society. Even now, there are states (LA and MS) that require a high level of resistance by the victim in order to meet the criteria for rape. The remnants of our culture's deference to the boys will be boys ethos continues to debilitate women.

However, a strict liability scheme would go some way to remedy the current problem. By eliminating the intent requirement, especially for forcible rape, the victim (represented by the state) would no longer have to prove that the act was non-consensual. It would leave open an affirmative defense of consensuality, and the burden could be set to beyond a reasonable doubt. Also gone would be the hair splitting many courts have engaged in as to what constitutes force (for the many it is still actual physical force in the moments preceding the act).

One of the pitfalls of such a scheme would be the circumstance where one or more parties is/are intoxicated. Imposing strict liability here might raise the defendant's burden unreasonably high. However, one might argue that under the current regime the burden on the victim/state is too high. It is a thorny issue that perhaps needs to be dealt with outside of the purview of traditional rape statutes.

The other argument against strict liability is that it unfairly burdens sexual initiators, who are disproportionately male. Yet given the scary realities of rape in our society and the realization that no matter which way the system is crafted some party will bear a higher burden, this seems to be a workable solution. The defendant's case will still rest in the hands of a jury of his peers, who will determine if his actions were reasonable. But by switching to a strict liability regime, it is the defendant who will have to show that his behavior was unassailable, rather than the victim.

Defendant's would no longer be able to rely on tactics such as casting the victim as a whore who was asking for what she got. Gone would be inquiries into the victim's sexual past. The focus would be placed squarely on the shoulders of the the person who initiated the sexual contact, more often than not. And please let us realize that the vindictive woman scorned is merely a strawman for a society unwilling to recognize some of its members' inhuman behavior.

More on Vietnam

A little bit more food for thought-

Kerry opposed the Vietnam War but served honorably and has a chest of medals to prove it.

Bush, Cheney, Wolfowitz et al supported the Vietnam War but avoided it.

This whole issue is more about hypocrisy than anything else. It is not to say that someone needs to have taken a bullet in order to be Commander in Chief, but that a person's deeds ought to match his words. If Bush and Co. were so supportive of our actions in 'Nam, then why the fuck did they do everything they could to avoid going?

Oh, that's right.. the modern GOP is all rhetoric and no action. And whatever action and sacrifice is required will be borne by others who do not have the wealth or the privilege to avoid the real work of war. It is so much easier to sit in one's leather high back and run a war than it is to sit in a trench, covered with mud, dodging enemy bullets.

With the exception of people like John McCain and Chuck Hagel the modern GOP has become the party of privilege, pursuing policies of their own benefit with all costs borne by others. It is a party where public good has no meaning and leadership is based on divisive social issues. Public service is a means to further enrich and vitriolic rhetoric is the device used to divert the masses as the privileged few pick pocket the many.

One has to think that if Lincoln or TR were alive today neither would recognize their party.

Semantics

Here is the text of the proposed Massachusetts constitutional amendment pertaining to gay marriage. As a staunch defender of equal marriage rights, my initial reaction is to decry the amendment and its divisive nature.

But after further reflection, it seems to be a reasonable compromise. The text guarantees that civil unions "shall provide entirely the same benefits, protections, rights and responsibilities that are afforded to couples married under Massachusetts law. All laws applicable to marriage shall also apply to civil unions." So while I may personally prefer the term marriage to civil union and view it as demeaning to gays and lesbians, I am no longer convinced that we should fight over a word and what it symbolizes.

And to be a bit more practical, let us think how long people will actually use the word civil union to describe gay marriage. Civil union does not exactly roll off the tongue, so to speak. Will people say, "Ted and Bill are civil unioned?" Absolutely not, they will say, "Ted and Bill are married." It would be only a matter of time before civil union would exit the popular vernacular to be left only on legal documents.

Maybe society is not ready for the concept of gay marriage and the term marriage seems to be an especially sensitive part of folks' opposition. So why not instead call them civil unions, give them the full benefits of marriage and let the language catch up along with people's attitudes? As much as it pains me to say this, I think that holding out for the word marriage is cutting off our nose to spite our face. We have to recognize that society does not always change as rapidly as we might wish it to and to temper our expectations accordingly. If someone had said twenty years ago that gays and lesbians would be allowed to enter into civil unions with the same basket of rights as married couples, we would have thought it to be pie-in-the-sky thinking. But today, it can be a reality. We should be happy for the progress that has been made and accept this compromise.

Backflips?

It ought not to be surprising to see the GOP change its tunes with respect to military service. After all, they have gone from Gramm Rudman deficit hawks to claiming that deficits do not matter at all, in the service of expounding on the need for further tax cuts. And so they have come from lambasting Clinton's lack of service to being outraged that Democrats would have the audacity to question the President's National Guard service.

Let is think about this a bit.

Clinton did not serve in Vietnam because his draft number was too high to be called. And he also spent some of the Vietnam years in England on a Rhodes Scholarhsip. George Bush used family ties to get a spot in the Texas Air National Guard. There is a question of whether or not he actually served and how it was that he was let out of his duty early. Bush attended Harvard Business School after earning gentleman's C's at Yale. John Kerry went to Vietnam after graduating from Yale and earned a Silver Star, Bronze Star with Combat V, and three awards of the Purple Heart for his service in combat.

Why does it even matter?

There are those who, right or wrong, will tell you that service does not matter. And, in the abstract it probably does not. However, the Bush administration has sent America's sons and daughters off to fight in an ill-conceived war. (It also matters that the VP, the White House political guru, the Deputy Secretary of Defense and others who drove the war policy avoided service.) Not only has the administration brought us into a bad war, but it has the audacity to question the patriotism of those who object to the war or the administration's foreign policy in general.

The President promised full release of his military records, but as of yet they have not been fully disclosed. It has to make one wonder just what BushCo. is hiding. But let us also not forget that the President has not attended a single funeral for soldiers killed in Iraq, yet has found the time to attend dozens of fundraisers for his re-election campaign. This says a lot about where the President's priorities lie.

Update
"I am angry that so many of the sons of the powerful and well-placed... managed to wangle slots in Reserve and National Guard units...Of the many tragedies of Vietnam, this raw class discrimination strikes me as the most damaging to the ideal that all Americans are created equal and owe equal allegiance to their country."---Colin Powell, My American Journey, p. 148

Farewell to the General

And then there were three. As someone who supported the Draft Clark movement I cannot say that I was pleased with the campaign he ran. It meandered from running solely on the resume to pandering to lurching left. I think that we are all somewhat disappointed with General Clark because we had placed such high hopes in his ability to win back the White House.

Somewhere along the way, the voters threw a wrench into these plans. Clark was poised to be the anti-Dean firewall in New Hampshire, but Iowa voters decided to dance with Dean, but take Kerry home. All at once Clark's raison d'etre had vanished in a cold Iowa evening. And with Edwards surging, Clark could not reasonably present himself as the anti-Kerry, ready to pounce once buyer's remorse had set in.

And although this site has become an Edwards endorser, it was with some tinge of sadness that I read tonight's news. It is a sadness driven by an acknowldegement that pretty soon my choices will be narrowed down to either Howard Dean or John Kerry, neither of whom I believe are particularly good general election candidates. If only Clark had dropped out sooner, Edwards may have been able to overtake Kerry in VA and/or TN and thus position himself to be the absolute anti-Kerry.

But with Howard Dean now pledging to remain in the race forever and with Edwards having a bit more sense than that, we will be faced with a Hobbesian choice between the Boston Brahmin and Doctor Strangelove.

Do Re Mi...

That is the sound of the Fat Lady warming up for her Tuesday night performance. The latest Zogby polls of TN and VA give Kerry a 2-1 edge over his nearest competitor, John Edwards. TN and VA are crucial states for Edwards and Clark and if neither can come within 10 points of Kerry in at least one contest, the race will be over Tuesday night. The Kerry juggernaut looks poised to roll over anything standing in its way and Dean's stance in Wisconsin will be sort of like General Custer's.

It is almost time to congratulate the Senator from Massachusetts and begin the work needed to oust Bush Co. from the house Rehnquist gave them. Those who supported others in the primary process must not only coalesce around the nominee, but also have a duty to keep the nominee on track and provide a bit of real backbone.

Should Dean Exit the Race?

The answer to that question is probably obvious on several levels. Dean has failed to win ANYWHERE; abandoned both Michigan and Washington this week; staked his continued presence in the race on a victory in a state in which he is polling a distant fourth (Wisconsin). But, on the other side of the coin, Dean has hundreds of thousands of loyal supporters who were willing to stick with him in bad times; an amazing ability to raise big money quickly; and, because of these two other factors, Dean is the candidate most able to push a certain agenda, and ensure that the Democratic Party actually has a backbone.

While Dean may be prone to gaffes and vitriolic rhetoric, he also plays a valuable role in re-energizing the party. He has been able to enlist both new participants to the process and to re-energize those who had forgotten their role in the democratic process. Sure, the good doctor has been pushed a bit too far left by some of these folks, and his centrist record as Vermont governor has been overshadowed by his anti-war stance. Sometimes it is just that Dean's passion gets in the way of his critical thinking abilities. For example, no one is going to confuse John Kerry (ADA lifetime rating of 96 or so) with a Republican. But the point Dean was trying to make was that equivocation and coziness with special interests are not limited to the Republican Party. And he is RIGHT!

A race without Dean, and lacking a strong Edwards or Clark, as a counterbalance to the Kerry juggernaut would result in disaster come November. Not only would Kerry not be fully battle tested in a one-on-one race, but it would allow Kerry to slip back into his pandering, wishy-washy, wet finger in the air ways. No matter how many times Kerry says "bring it on", no one is ever going to mistake him for a true, principled fighter. Kerry has a history of making bold pronouncements without any follow up.

A Kerry coronation would serve only to de-energize Dean's base and many would sit home this fall in disgust. And some people may poo poo such an outcome claiming that if Dean's base was so good he would have won somewhere by now. But these people ignore the closeness of the divide in this country and just a few Nader votes in Florida cost us the White House in 2000. Others would dismiss the internet and blogging community's support for Dean, but this phenomenon is real as evidenced by the thousands of regular folks who logged on and Me(e)t Up and by the internet fundraising machine established by Dean. Many Deaniacs are deeply and openly hostile to John Kerry and what he represents. They see him as a politician on each side of every issue, willing to say whatever it takes to get elected. These are the sort of committed and active folks the party needs to be courting.

The Dean phenomenon was a stinging rebuke to the weakness of the Democratic Party over the past several years. While the reports of the Party being Bush Lite are overstated, there is a pronounced lack of fight in many of the Party's leaders. And while the Party is certainly in need of a backbone transplant, it should not transmogrify into the kind of Stepford Wives orthodoxy of the GoOPers.

Despite the fractious relationship between the two wings of the Democratic Party, there is widespread unhappiness with the lack of fight shown by our Washington leaders. Those on the left side of the room should not assume that the centrists in the Party are overcome with joy at the losses the Party has sustained over the past four years. Perhaps the level of dislike of the President varies by wing, but neither group believes that BushCo. should get another four years to ruin the country. But with Dean out of the race, there may not even be the chance for reconciliation as the Deaniacs turn their backs and the centrists say good riddance. And that is not good for any of us.

Bring It On, Shrubby Boy

Word out of the White House is that the President may call for a Constitutional Amendment to define marriage as the union of one man and one woman, in response to the Massachusetts Supreme Judicial Court ruling today. This is ridiculous on at least a few levels.

First of all, the MA SJC found that the Massachusetts constitution required equal marriage rights, not the United States constitution. And, while there is a pesky little thing called the supremacy clause, there is nothing in constitutional jurisprudence to suggest that a state may not enlarge whatever rights are provided for by the US constitution. It would be will within Massachusetts' rights to allow for a more expansive definition of marriage rights than the federal government.

The second problem is that there is a legitimate question as to whether such an amendment would even pass (maybe I should have put this point first). Support for gay marriage breaks down largely on age and geographic categories, and is not supported by a majority of Americans. However, opposition to equal marriage rights does not translate into support for amending the constitution.

And I think Rove and Co. ought to be smart enough not to make this a huge election year issue, because their libertarian supporters are not too keen on circumscribing individual or states' rights, both of which are implicated in this instance. The American people are more tolerant than some of the Bushies might give them credit for and do not take amending the constitution lightly. An open and honest debate about gay marriage is bound to produce more support for equality, as people begin to think about the myriad ways in which the lack of government recognition of gay and lesbian relationships affects them and their families. Trotting out the hackneyed arguments once used in support of anti-miscegenation laws and claims of man on dog sex will show just how out of touch with reality many Republicans are. So, Georgie Boy, bring it on!

Victory for Equality!

Gays Have Full Marriage Rights, Massachusetts Court Says. This is phenomenal news for those of us who support equal marriage rights. I could not be more proud of being from Massachusetts that I am right now. In a day and age where bigotry and homophobia run rampant through the corridors of state houses across the land, Massachusetts will set a course to fully equal citizenship rights for gays and lesbians. It is only fitting that in the state where the United States Revolution began we should see a social revolution for true equality score its first substantive victory.

Look Into My Crystal Ball

Super Bowl XXXVIII
Patriots 24
Panthers 10

Mini Super Tuesday
Kerry takes MO, ND, NM, DE, AZ, OK
Edwards picks up SC

Despite his earlier lead in most polls in AZ and OK, Clark will lose both narrowly to Kerry.
Even though he will not win ANY of the seven contests, Lieberman will give a victory speech Tuesday night.