Colbert on Bork
Posted by tgirsch

Just because you’re bat-shit crazy doesn’t mean you shouldn’t be on the Supreme Court.

Ha!

January 19th, 2006 | Humor | no comments

The Commerce Clause According To Scalia
Posted by tgirsch

Ha! I especially liked the Voldemort stuff. :)

January 19th, 2006 | Legal Issues, Satire, Humor | no comments

Mythbusters
Posted by Kevin

Mythbusters has rapidly become one of my favorite shows. It simply chronicles the testing of urban myths by a group of special effects experts. They have done everything from testing whether or not toast lands butter-side down to using salsa to dissolve prison bars. Anyone with even an ounce of science geek in their makeup will love the show. And now they have released to the web a handful of experiments that did not make the television screen. Enjoy.

January 19th, 2006 | Culture, Science | 8 comments

More On Gonzalez v. Oregon
Posted by tgirsch

I blogged a while back on the Oregon assisted suicide case, but Publius has a more detailed analysis of the ruling, and argues that the “liberal bloc” of justices may not have ruled in a manner that’s as inconsistent as some have claimed. Go read it.

If I understand his analysis correctly, it comes down to deference to legislative will. In a nutshell, if a legislative body has the constitutional authority to take some action, then the judiciary should defer to the will of the legislature. If a legislature oversteps its authority, it’s the job of the court to correct that, but if not, then the legislature’s will is to be respected.

Setting aside for the moment the question of whether or not Congress has the authority to regulate in-state marijuana growth under the commerce clause (a point I can see disputing), if you operate from the assumption that it can, then the rulings in Raich and Oregon are largely consistent. Because Congress explicitly listed marijuana as an illegal controlled substance, and because (the court has held) Congress has the commerce clause authority to regulate controlled substances, the federal law trumps the state law, and the will of the legislature — criminalizing marijuana growth, use, and possession — is respected in Raich. I might not like it or agree with it, but there it is.

In the Oregon case (and unlike Raich), the federal legislature does not specifically address assisted suicide, or whether this constitutes “legitimate medical practice.” Thus, the question at hand is, in the absence of a specific federal statute covering the issue, does the US Attorney General get to interpret what does or doesn’t constitute “legitimate medical practice,” or does the Oregon state legislature? Again, the Supremes deferred to the legislature — in this case, the state legislature, since the federal legislature didn’t address the issue.

If I’m understanding and representing this logic correctly, it would be very interesting indeed to see how this court would rule if Congress passed a law explicitly defining physician-assisted suicide as not being “legitimate medical practice.”

It seems to me is that what’s at issue isn’t so much what constitutes “legitimate medical practice,” but who gets to decide what constitutes that. If we go with “Congress” as the hard-and-fast answer, that gets us back into the age-old Constitutional pickle of divining “intent,” something that’s far easier said than done. Did the Congress intend to criminalize marijuana? It seems clear that it did. Did it intend to criminalize physician-assisted suicide? I don’t think you can seriously argue that it did. Did it intend to include or exclude such suicide from the realm of “legitimate medical practice?” I think you’d have a hard time arguing either way; I’m betting that it simply didn’t occur to Congress at all. Given the lack of any explicit Congressional action on the issue one way or the other, I don’t think it’s unreasonable to defer to the legislature that did explicitly address it (Oregon’s).

Constitutional debates aside, my non-techinical, non-legal-mumbo-jumbo preference would be that California’s medical marijuana law and Oregon’s right-to-die law both stand. But IANAL, so take that (and, indeed, all of this analysis) with the requisite amount of salt.

January 19th, 2006 | Legal Issues | 5 comments

Someone Buy the WaPo a Dictionary
Posted by Kevin

Because they are apparently unclear on the definition of ombudsman:

Summary: Washington Post ombudsman Deborah Howell has reportedly posted on the Post’s internal message board — specifically mentioning a reply she made to a Media Matters item, which she claimed “just brought another attack” — “From now on, I don’t reply.”

Critics, apparently, hurt her little feelings.

January 19th, 2006 | Media | one comment

24 as Torture Porn
Posted by Kevin

I find this a little bit disingenuous:

Slate: One of the places where 24 and the real world have intersected most powerfully is on the question of torture. On 24, torture is regularly used in interrogation. Some critics believe that 24 actually plays to our desire to witness torture, that it is, in some sense, “torture porn.” How do you make sense of and justify the role of torture in the show?

Loceff: I absolutely do not believe that the show is, in any sense, torture porn. This is something we talk about a lot. Torture is of no interest to us as torture, and we’re not anxious to show it, nor do we want to watch it. We don’t want to go to any level of great detail in depicting it, and there are many times when we will pull back from the original idea because it seems too much. I think its real use in the show, aside from its narrative function, is to create dramatic conflict, conflict not just between two people but within characters as well. If you look at any given torture scene in the show, you’ll find that there’s something in it that shows someone’s distaste or disgust. And Jack Bauer’s decision to torture people for information in the past has cost him, because it’s shown other people just exactly what he’s capable of. Jack himself is appalled by what he feels he has to do, but he’s also convinced he has to do it. That is a real dramatic conflict.

Slate: One of the familiar critiques of using torture as an interrogation technique is that it doesn’t work. On 24 it tends to be very effective.

Loceff: I don’t know that torture works, and we don’t write it because we think it works. So, I don’t think any of us are trying to make a statement about the efficacy of it one way or the other.

Now, I am not a regular follower of the show. I watched some of the first two seasons and followed along with the TWOP recaps for the first three. So it is possible that I am missing some important nuance in the show. However, the writer’s description does not seem to match what actually happens on the show. The writer claims that torture is used sparingly and is not something they like to show. They further claim that it has had a deleterious effect upon Jack. If either is the case, then why does it happen so bloody often on the show, and why does Bauer never seem to suffer for his decisions to employ torture with the same frequency that Pizza Delivery drivers exceed the speed limit? The writers are simply not credible when they claim that they take the use of torture in the show seriously. It appears to be nothing more than a plot device they fall back upon either out of laziness or ideological bent.

The comments about the not trying to make a statement about the effectiveness of torture may be true, but whether they intend to or not, they show torture in a good light. Generally speaking, the tortured people always have information and the torture is effective in a very, very short period of time. If 24 aspired to any kind of veracity, six or seven episodes would be dedicated to showing Jack torturing someone to get information. We would see water boarding, electrocution, and vicious beatings for hours on end. And then we would have two episodes dedicated to showing Jack run off with the information the torture produced, only to discover that he had been lied to and sent on a wild goose chase. The last episode would show the terrorists smiling as Jack fails to foil the plot because he wasted time on the torture. But torture almost always works on the show, and it is almost always shown as quick and effective. Whether they intend to or not, they are showing torture as an acceptable, useful, even desirable option.

If they don’t want the show to be torture porn, they need to work a lot harder than they have to date.

January 19th, 2006 | Media | 12 comments

Bush and Abramoff Sitting in a Tree?
Posted by Kevin

Abromoff was a Bush Pioneer and sold access to Bush to his clients:

President George W. Bush was the attraction, and the White House the venue, for a fundraiser organized by the alleged perpetrator of the largest billing fraud in the history of corporate lobbying. In May 2001, Jack Abramoff’s lobbying client book was worth $4.1 million in annual billing for the Greenberg Traurig law firm. He was a friend of Bush advisor Karl Rove. He was a Bush “Pioneer,” delivering at least $100,000 in bundled contributions to the 2000 campaign. He had just concluded his work on the Bush Transition Team as an advisor to the Department of the Interior. He had sent his personal assistant Susan Ralston to the White House to work as Rove’s personal assistant. He was a close friend, advisor, and high-dollar fundraiser for the most powerful man in Congress, Tom DeLay. Abramoff was so closely tied to the Bush Administration that he could, and did, charge two of his clients $25,000 for a White House lunch date and a meeting with the President. From the same two clients he took to the White House in May 2001, Abramoff also obtained $2.5 million in contributions for a non-profit foundation he and his wife operated.

He also was a member of the Bush transition team in 2000:

After the 2000 election, Abramoff was named to the Bush transition team for the Interior Department, which regulates the Indian casinos that paid Abramoff his inflated fees.

And now the Bush Administration refuses to release complete records of his and meetings with Bush or his staff:

Q Specific staff? You were going to get back to us on the specific staff —

MR. McCLELLAN: Yes, my understanding from the check that we did was that there are just a few staff-level meetings in addition to those.

Q Who was in the staff meetings?

MR. McCLELLAN: I don’t get into discussing staff-level meetings.

I don’t know if there is a fire, but there is a hell of a lot of smoke. Too bad the press doesn’t seem to notice.

January 19th, 2006 | Politics | 4 comments

Copyright and MLB Stats
Posted by Kevin

I cannot find a web story about this, so some of these details may be incorrect. But on Tuesday, I heard Keith Olbermann talking about MLB suing some stats provider. MLBs claim was apparently that the stats and statistical profiles of major league players were the property of MLB and the players association. They were arguing not that a particular record of the stats was protected under the country’s IP laws, but that all stats everywhere were.

That strikes me as insane. MLB is arguing that they own the statistics to all baseball games, no matter who records them or in what format they are recorded. Your scorecards form the game, the USA Today box scores, and the ESPN scroll all belong to MBL under this line of reasoning. I sincerely hope that I am either misunderstanding their argument or that this will get laughed out of court.

The fact that it got this far, however, is another black mark against our intellectual property laws. In our intellectual property regime, it is possible to patent a gene or a mathematical formula and MLB is arguing that it is possible to copyright not a particular recording of a historical event but the actual event itself. How did we get to the point where this kind of nonsense is actually advanced by a reputable law firm?

January 19th, 2006 | Sports, Legal Issues, MLB/MiLB | 5 comments