Recently in Law Category

I would implement a 50 year plan to end the use of combustibles for energy:

1)     3 years: Cancel all combustion based generating plant projects that haven't broken ground

2)     5 years: Require all new construction to include as many free-fueled energy devices and/or eco-helpful environments on the roof as practical

3)     20 years: All oil fueled generating plants would be dismantled

4)     30 years: All fossil fuel generating plants would be dismantled

5)     50 years: Fossil fuels would no longer be used for transportation

6)     Possible exceptions: Air and Space travel; military and emergency; waste reclamation

 

Make it a criminal offense for members of the media to come in physical contact with their subjects or the subject's escorts.  This would include:

·         Being propelled into contact by another would not be allowed as a defense

·         The subject initiating contact would not be allowed as a defense unless the subject actually chased the member of the media

·         Mandatory jail time for 2nd and subsequent offenses

·         Escalating fines for both the contactor and their employer

 

At my own expense, commission:

·         The development of an inexpensive consumer device that lets me control the magnitude of the difference in volume between the quietest to the loudest in any audio stream

·         The present day equivalent of a Statue of Liberty gift for France honoring the creation of the EU

 

Correct the Educational System by:

1st.        A return to a catechism oriented classical curricula

2nd.       Require any school experiencing an unacceptable level of violence to implement a comprehensive surveillance system

3rd.        All students will be subject to searches of their persons and effects at the reasonable discretion of the teachers (law enforcement searches will still require a warrant).

4th.        If a student creates a serious problem, and strenuous efforts to correct the problem fail, place the student in a problem student class

5th.        Require much more from the brightest students

6th.        End the strict association of age with grade; all students would advance a grade only after demonstrating mastery of the current grade's material

7th.        Resurrect the Primary and Secondary education systems by guaranteeing that only those who have mastered the curricula receive diplomas

8th.        Require everyone to complete a year in the military followed a few months later by a year in an approved militarily structured organization by their 29th birthday

9th.        All college applicants would have to pass a comprehensive entry test before enrolling in their first course

 

Apply the 4th Amendment to current technology:

v  Medical Information:

a.       Within 5 years, create a national medical database containing everyone's entire medical history and all the data generated by providers and funders and other stake holders. 

b.       All the information in the database will be under the sole ownership of the patient and classified as a Federal Secret; access granted by permission only, and only as far as necessary to provide the proper care. 

c.       Unless authorized by the patient, possession and/or use of this information will be a criminal offense.  Insurance companies and employers and recruiters, and their agents, are specifically prohibited from accessing this information

v  Personal Information:

a.       All the information and data generated by a person's personal activity are the sole and exclusive property of that person (with an exceedingly long and specific list of exceptions). 

b.       Except for extreme situations and parents testing minors, all drug tests are prohibited and possession of recreational drugs will be decriminalized.

 

Let our children be children:

         I.            Return responsibility for and authority over our children to their parents.  This especially includes medical, health and reproductive activities; religious beliefs and values; associations; education, corporal punishment, etc...

       II.            Return the voting age and majority age to 21; active military stays 18

     III.            Require DNA verification of parenthood for all children born to minors. The parents of the father and mother are responsible for children born to minors until the mother's and father's majority

    IV.            Allow minors to marry only with their parent's permission

      V.            Bring back the curfew

 

Make sure we all speak the same language: Require all commercial, political and legal communications to be in English (with a long list of exceptions)

 

 

Quotes:

 

"MAGPIE, n. A bird whose thievish disposition suggested to someone that it might be taught to talk. "  Ambrose Bierce (1842 - 1914), The Devil's Dictionary:

 

"One's mind, once stretched by a new idea, never regains its original dimensions." Justice Oliver Wendell Holmes Jr.

 

Fun Facts to Know and Share:

 

The term "basket case" originated after WWI to refer to a wounded soldier who has lost both arms and both legs to amputation, and had to be carried around in a basket.

 

Bumper stickers that caught my eye:

 

"I've read about the evils of alcohol, so I gave up reading."

 

"To err is human; to blame it on somebody else shows management potential."

Background:  From the Guttmacher Institute (the CDC asserts that this institute has the most complete/accurate abortion info):

• 49% of pregnancies among American women are unintended; 1/2 of these are terminated by abortion.  24% of all pregnancies (excluding miscarriages) end in abortion.
• Each year, 2 out of every 100 women aged 15-44 have an abortion; 48% of them have had at least one previous abortion.
• 54% of women having abortions used a contraceptive method during the month they became pregnant. 76% of pill users and 49% of condom users reported using the methods inconsistently, while 13% of pill users and 14% of condom users reported correct use.
• The risk of death associated with childbirth is about 11 times as high as that associated with abortion.

According to the American Medical Association:

The term 'partial birth abortion' is not a medical term. The AMA will use the term "intact dilatation and extraction" (or intact D&X) to refer to a specific procedure comprised of the following elements: deliberate dilatation of the cervix, usually over a sequence of days; instrumental or manual conversion of the fetus to a footling breech; breech extraction of the body excepting the head; and partial evacuation of the intracranial contents of the fetus to effect vaginal delivery of a dead but otherwise intact fetus. This procedure is distinct from dilatation and evacuation (D&E) procedures more commonly used to induce abortion after the first trimester.

According to Warren M. Hern, M.D., M.P.H., Ph.D. testifying before the Judiciary Committee of the United States Senate 17 November 1995:

While about 1% of all abortions are performed after about 20 weeks of pregnancy, only about .03%, or fewer than 500, are performed after 26 weeks. The majority of these are now performed by me or one of my medical colleagues. These abortions are almost always performed for the most tragic reasons of severe fetal anomaly, genetic disorder, or immediate risk to the woman's life. They are not performed for frivolous reasons, contrary to statements by those opposed to abortion.

According to gentlebirth.org, on Nov. 29, 2005, the LA Times published an article by Stephanie Simon called "Offering Abortion, Rebirth" in the "Start Page: A.1 Section: Main News; Part A; National Desk".  In order to read the actual article I'd have to pay the LA Times, so instead I'll rely on this extract posted in the Midwife Archives:

According to Dr. William F. Harrison, a diplomate [sic] of the American Board of Obstetrics and Gynecology:

Approximately 1 in 2000 fetuses develop hydrocephalus while in the womb.  Usually not discovered until LATE in the second trimester, it is not unusual for the fetal head to be as large as 50 centimeters (nearly 20 inches) in diameter and may contain ... close to two gallons ... of cerebrospinal fluid.  (The average *adult* skull is about 7 to 8" in diameter.)

Dr. Harrison says the partial birth and the "draining" of the fetus' skull is actually drawing off of this fluid from the brain area of the fetus. The collapsing of the fetal skull is to allow the removal without the brutal rupturing of a woman's uterine passage or necessitating a classic cesarean section that poses its own dangers to a woman and any future pregnancies. The fetus with severe hydrocephalus cannot live and we wish someone would let people like Ralph Reed, Orin Hatch, Pat Robertson, and Pope John Paul II know that they are condemning women to death for no reason - no reason except their damned puny male egos.

Approximately 500 women face this procedure each year. Mild to moderate hydrocephalus can be sometimes be treated in utero and the fetus saved, and some very mild cases can be delivered and treated after birth. Those which have advanced or severe hydrocephalus cannot. Without the "partial birth" abortions, their births can easily kill their mothers with no chance of fetal survival.

"The only tyrant I accept in this world is the still voice within." Mohandas Karamchand (Mahatma) GANDHI

Bumper stickers that caught my eye:

"I don't suffer from insanity, I enjoy every minute of it."

"Ever stop to think and forget to start again?"

Fun Facts to know and share:

As cowboys sat around in saloons in the latter part of the 19^th century, they often played poker.  To reduce cheating, the deal would change hands and the next in line to deal would be given a marker.  This marker was often a knife which often had buck-horn handles; hence the marker becoming known as a buck. When the dealer's turn was done he 'passed the buck'.  Silver dollars were later used as markers and this is probably the origin of the use of buck as a slang term for dollar.

From: "Rome Wasn't Burnt in a Day (copyright 2004), by Joe Scarborough, ex US Rep, from Florida; now has news show on MSNBC:

Joe proposed the following contract which is to be signed by anyone running for Congress or Pres/VicePres.  If they don't sign it, you don't vote for them.

1. Ban congressmen, senators, and White House officials from lobbying for 5 years.
2. Freeze the pay of congressmen, senators, and White House officials until the federal budget is balanced.  This includes cost-of-living adjustments!
3. Force political candidates to immediately scan and post all campaign contributions on their campaign website.  Failure to do so results in criminal penalties.
4. Pass term limits now! Since the House of Representatives authorized the federal spending, limit House members to three terms (six years).
5. Make Congress and every Washington bureaucracy undergo an independent, professional audit, line by line, program by program every four years.
6. Pass a constitutional amendment requiring Washington to balance the budget every year except when Congress passes a resolution declaring a national emergency.
7. Create a federal rainy-day fund that would set aside ½ of 1% of all tax receipts each year for national, state and local emergencies.
8. Reenact pay-as-you-go rules that would require Congress to offset new spending programs and tax cuts with spending cuts from other programs.
9. Reinstitute congressional spending caps that would force congressmen or senators to live within their previous spending projections.  These caps will not be broken unless Congress passed a separate resolution declaring a national emergency as described in #6.
10. Pass a new American tax code written by a bipartisan panel of budget experts instead of the lobbyist groups who regularly carve out special-interest deductions and greatly simplify the tax system.

"Human beings, who are almost unique in having the ability to learn from the experience of others, are also remarkable for their apparent disinclination to do so." Douglas Adams

"Few men have [the] virtue to withstand the highest bidder." George Washington

Well George, you missed it by 10 years, and that's not so close considering you made your prediction as recently as 1949 with your novel "1984".  It wasn't until 1994 that federal law created thoughtcriminals by passing a law against hate crimes. ^[1]  Not only were you 10 years too early, but we still don't have a special branch of Thought Police to 'protect' us.  As for Big Brother; let's leave that for another time.

On the surface, I find the justifications for hate crime legislation pretty convincing.  After all, the legal concept of mens rea -- literally 'guilty mind'; usually used synonymously with "intent" -- has been a fixture in western jurisprudence for a long, long time, and the person committing a hate crime ^[2] certainly intends to commit a crime. (And 'criminal intent' is required to be culpable, therefore punishable; the law often forgives 'accidents'.) These particular crimes are also said to produce greater suffering for the victim, ^[3] as well as harm the victim's community. ^[4] 

On the web I have found a plethora of sites defending, justifying and legitimizing hate crime legislation, ^[5] and a dearth of sites challenging this legislation. ^[6]  Since so many states have passed hate crime legislation and so many Supreme Courts have upheld them, ^[7] maybe the disparity between the number of sites, Pro and Con, can be explained because the issue has been debated enough and is now closed; hate crime legislation won.

This may be the case with our legal system, yet many claim that system has become so radicalized, its opinion doesn't count for much anymore.  As evidence, they point to the fact that the General Counsel for the ACLU - from 1973-1980 - is now sitting on the Supreme Court of the United States --  Ruth Bader Ginsburg. I wonder ... With such credentials, if Justice Ginsburg isn't legitimately labeled a radical, who in America could be?  Or have we moved so far that the ACLU is no longer radical; is now so much closer to the middle of the road as to be only liberal?

Here's an amusing twist: vegetable hate crimes.  (Is it interesting that the ACLU seems to be defending the hatred of vegetables while working to criminalize the hatred of certain people?)

If you look into the Pros & Cons of hate crime legislation and the judicial rulings surrounding them, you will find lots of references to the perpetrator's motive and motivation, as well as what the perpetrator intends to do, -- their intention; and how these apply to the law.  If you then look up the definitions of these words, you'll find reference to the words: believe and belief; thought and think; opinion and of course hate.

Take note of the subtle, esoteric similarities and differences in the definitions of these words.  For instance:

• The noun thought is defined as: 1a) the action or process of thinking; and 2b) the power to imagine.  It is also defined as: 3b) a developed intention or plan.
• The verb think is defined as: 1) to form or have in the mind; 3a) to have as an opinion; 4a) to reflect on.  It is also defined as: 2) to have as an intention.
• The verb intend is defines as: 4a) to have in mind as a purpose or goal.

Notice particularly that to intend (mens rea) is to "have in mind", and to "have in the mind" is to think. 

Can the case be made that the esoteric reasoning surrounding the legitimization of hate crime legislation is mere sophistry?  Whatever your answer to this question, it must be admitted that stating in public something like: "I hate XXXXXs"; ^[8] or "I enjoy it when a XXXXX is hurt"; or "I like to hurt XXXXXs"; or "I want to hurt XXXXXs"; is constitutionally protected.  It must also be admitted that thinking and/or announcing these thoughts while committing a crime against a XXXXX is now illegal.

Maybe the proponents of hate crime legislation ^[9] are correct (a lot of good minds think so).  That despite the possible confusion of terms, hate crime legislation does not make the thinking, or speaking, of a thought illegal.  What is clear is that reasonable folks of goodwill disagree regarding this claim. 

But the larger question is why our lawmakers and courts are so willing to tread so close to the line ^[10] of making certain thoughts ^[11] illegal, if they haven't crossed it already? ^[12] Our Supreme Court has often avoided entanglement in certain issues because they feel they are not properly involved in such areas or not competent as a body to render judgments in some areas.  Is the freedom of thought one such area?   In other areas, the court said there was a wall of separation which so many deem so important.  Why is the line between criminalizing behavior and criminalizing thought practically impossible to see and comparatively so unimportant?

With the line between thought and action so blurry, how will one know when one has crossed it?  Heck, maybe it won't even matter in our politically correct times:

"In the end we shall make thoughtcrime literally impossible, because there will be nowords in which to express it". Syme; one of Big Brother's henchmen from Orwell's 1984

 

Notes:

[1] On September 13, 1994, the Omnibus Crime Control and Safe Streets Act of 1968 was amended, to make hate crimes illegal, via the Violent Crime Control and Law Enforcement Act of 1994 (H.R.3355, Public Law No: 103-322) to include the following:

SEC. 280003. DIRECTION TO UNITED STATES SENTENCING COMMISSION REGARDING SENTENCING ENHANCEMENTS FOR HATE CRIMES.

(a) DEFINITION- In this section, `hate crime' means a crime in which the defendant intentionally selects a victim, or in the case of a property crime, the property that is the object of the crime, because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person.

(b) SENTENCING ENHANCEMENT- Pursuant to section 994 of title 28, United States Code, the United States Sentencing Commission shall promulgate guidelines or amend existing guidelines to provide sentencing enhancements of not less than 3 offense levels for offenses that the finder of fact at trial determines beyond a reasonable doubt are hate crimes. In carrying out this section, the United States Sentencing Commission shall ensure that there is reasonable consistency with other guidelines, avoid duplicative punishments for substantially the same offense, and take into account any mitigating circumstances that might justify exceptions.

[2] According to the Federal Bureau of Investigation's Hate Crime Statistics for 2004, there were 7,649 criminal hate crime incidents, out of 1,367,009 violent crimes and 10,328,255 property crimes; 0.065% of crimes committed in 2004 were hate crimes.    In perspective, according to the National Safety Council, or NSC, in 2003 there were 4,500 accidental workplace fatalities and 13,900 fatalities due to accidental poisoning.  I wonder how many of the hate crimes were fatal to the victim?

[3] In testimony before the House Judiciary Committee, the American Psychological Association, or APA, said:

"... the experience of a serious hate crime has more severe psychological ramifications for the victim than a random crime of similar severity ..."

[4] According to the Anti-Defamation League, or ADL,

"Hate crimes demand a priority response because of their special emotional and psychological impact on the victim and the victim's community."

[5] Some interesting reading supporting hate crime legislation, soon to be called 'bias-crimes':

• University of Tennessee: Hate Crimes Laws: Progressive Politics or Balkanization? 
• Boston College: THE RHETORIC OF LEGAL BACKFIRE [against hate crime legislation]
• Harvard Symposium Essay: AGREEING TO AGREE: A PROPONENT AND OPPONENT OF HATE CRIME LAWS REACH FOR COMMON GROUND. (This is a particularly thoughtful, scholarly essay.)

[6] Some criticisms of hate crime legislation:

• A 'Google book'  excerpt of Jacobs' and Potter's book "Hate Crimes: Criminal Law and Identity Politics"
• FraudFactor: Fixing Criminal Justice System Weakness Only for a Select Few
• The Any Rand Institute, Op-Ed piece: Criminal law should not be used to enforce ideological orthodoxy.

[7] In Wisconsin v. Mitchell (1993), the U.S. Supreme Court reviewed and upheld Todd Mitchell's enhanced sentence for committing a hate crime.

[8] For XXXXX, substitute any particular race, color, religion, national origin, ethnicity, gender, disability or sexual orientation.

[9] Criminal law:

• North Carolina Wesleyan College: Basic Intro to criminal law.
• From Northwestern Law School: What is a crime Outline.
• Boalt Law School: Criminal Law Outline.

[10] Quotes surrounding freedom of thoughts:

• Benjamin Franklin: "Without freedom of thought, there can be no such Thing as Wisdom"
• Victor Frankl: "The last of the human freedoms is to choose one's attitudes".
• William O. Douglas:  "Restriction of free thought and free speech is the most dangerous of all subversions. It is the one un-American act that could most easily defeat us."

[11] "A History of Freedom of Thought"; The University Press, Cambridge, U.S.A., 1913

[12] "I believe there are more instances of the abridgement of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations."  James Madison.

As stated so concisely by John Adams in the Constitution of the Commonwealth of Massachusetts, America was to be a land with "government of laws and not of men".

The rule of law requires the law to be written down, available to the public, and enforced by established procedures.  Furthermore, everyone, even those who create the laws, is bound by them.  No longer were Americans to be subject to the arbitrary dictates of one who claims: "My will is the law".  Not only has this principle served America well, it has become accepted by large portions of humanity.

The adversarial system of settling disputes at law, criminal and civil, was implemented here because it was, and still mostly is, believed to provide us with our best chance for justice.  Sounds great, right?  Well, we all know how it has evolved . . .

The problem is simple, and we all know what it is.  Money.  For the adversarial system to work as advertised, all parties need to be represented by experienced attorneys who have the resources necessary to skillfully prosecute a case.  And, as with most things in human society, this costs money.  I'm willing to bet that over 90% of those asked would agree that "justice costs money, and the more money you have the more justice you will get".  Any takers?

To the parties involved in a legal proceeding, the goal usually is to win, i.e. to receive a judgment to their liking.  To society at large, the goal is to see that justice is done.  Obviously, these goals often conflict.  Court proceedings that make it into the major media outlets often involve questions or issues dear to the heart of many.  I wonder what percentage of these folks want to see 'their side' win rather than see that justice is served?  I wonder how many of these folks sincerely believe that 'justice' requires that their side win?  I wonder how many of these folks have even analyzed the case from the prospective of winning vs. justice?    In fact, now that I'm on a roll, I wonder how many can even see the value of the other side, much less entertain the possibility that their 'winning' might be wrong?

Since justice costs money, it's no wonder that corporations, governments, and rich folks, all with deep pockets, usually win against 'the little guy' with meager resources.  I don't think this is right, but what's to be done?

A lot of possibilities have come to my mind and been dismissed for one reason or another.  The only thought that is still rattling around in there Is something like this:

What if all the parties to a proceedings decided, beforehand and independently, how much they were willing (and of necessity able) to spend for justice, have each of them throw that amount of money into a pot to be split evenly among the parties?  Anytime any of the parties wants more justice, they can throw more money into the pot which will also be split up.

I've come up with some obvious problems with this proposal, and lots of not-immediately-obvious problems.

I wonder if there is any merit to this idea?

From the Merriam-Webster online dictionary:

Main Entry: pros·e·cute
transitive verb
1 : to follow to the end : pursue until finished <was...ordered to prosecute the war with...vigor -- Marjory S. Douglas>
2 : to engage in : PERFORM

From the wikipedia:

The rule of law is the principle that governmental authority is legitimately exercised only in accordance with written, publicly disclosed laws adopted and enforced in accordance with established procedure. The principle is intended to be a safeguard against arbitrary governance.

Fun Facts to know and share:

According to the 2006 World Almanac and Book of Facts, page 184, around 26,000 of the 44,800 auto fatalities in 2003 were caused by sober drivers.  Imagine that, 57% of all 2003 auto fatalities were caused by SOBER drivers!

Cryptic quote from hippy chemist:

"It's the blue band, man. The blue band!"