2012 Republican Presidential Candidates: First Glance (2)

(By Andrew MacKie-Mason)

Part 1: Herman Cain & Newt Gingrich
Part 2: Gary Johnson & Fred Karger (this post)
Part 3: Tom Miller & Ron Paul
Part 4: Andy Martin & Jimmy McMillan
Part 5: Tim Pawlenty & Buddy Roemer
Part 6: Mitt Romney & Rick Santorum
Part 7: Michele Bachmann & Jon Huntsman
Part 8: Thad McCotter & Roy Moore (upcoming)
Part 9: Vern Wuensche (upcoming)

I think it's time to take a first look at the potential candidates for the 2012 Republican Presidential nomination. I'm pulling from a source list here. I'm going to look at each candidate on four main topics: Civil Rights, National Security, Economy, Constitutional Vision. I'll rate them on a four point scale (from best to worst): Strong, Acceptable, Weak, Unacceptable. I'll also include a brief justification, so if I miss something relevant (which I probably will, with so many candidates to consider) feel free to leave a note in the comments section and I may adjust the ratings. Most of my information is going to be pulled from the candidates' websites, for those that already have them.

This post will address Gary Johnson and Fred Karger. Look at the top for links to other posts in this series, and watch for more new posts to come.

Gary Johnson
Civil Rights: Acceptable
According to his civil liberties page, Johnson opposes the Patriot Act on privacy grounds, supports the abortion right up to the moment of independent viability (though he apparently supports a parental consent requirement for minors - perhaps minors do not own their own bodies?), and supports civil unions (with language that suggests that government should offer 'marriages' to no one, including heterosexual couples). He opposes stem-cell research in federally funded institutions, an unfortunate position. He supports legalizing marijuana and addressing hard drugs through medical treatment instead of criminal "justice." Johnson also opposes the use of torture on terror detainees, and supports due process rights for detainees.

National Security: Acceptable
Johnson is against involvement oversees and favors a focus on domestic issues. While his anti-interventionist stance is reassuring, he seems to go too far in suggesting that we should not encourage international stability in the interests of our long-term security.

Economy: Weak
Johnson is taking a hard line on cutting the deficit, which is admirable. However, he ignores the military as an area for possible cuts, even though the Department of Defense's budget was almost 20% of federal spending in 2010. [Update 8/20/11: As a commenter below notes, this is not actually an accurate representation of Johnson's views. He supports quite substantial cuts in military spending, though he doesn't advertise that fact on his website.] He also falls into the typical Republican naming scheme ("ObamaCare") that values partisanship over honest debate. He supports completely eliminating corporate taxes, which would allow businesses to profit from the infrastructure of this country without paying anything to support it. He also opposes a federal minimum wage in favor of state minimum wages, which ignores the collective action problem that a federal base minimum wage helps to alleviate.

Constitutional Vision: Weak
Johnson sees governance as identifiable with business leadership, which means he places an undue amount of attention on the "profitability" of government rather than its ability to build a strong society of cooperative individuals working together for the common good.

Fred Karger
Civil Rights: Strong
Karger supports lowering the voting age to 16 or 17, a good first step. He wants to eliminate the Defense of Marriage Act and create a federal right to gay marriage. He supports a woman's right to choose whether to remain pregnant. Karger is in favor of legalization (and taxation) of marijuana.

National Defense: Acceptable
Karger doesn't come across as particularly confidence-inspiring in his statements on national security and foreign policy, but he does advocate conciliatory diplomacy and supports a certain level of humanitarian intervention.

Economy: Acceptable
Karger takes a much more reasonable line on the economy than many Republicans. He supports incentivizing businesses to remain in America, but doesn't talk about drastic measures like eliminating all corporate taxes. He also supports investment in alternative energy to reduce dependence on foreign oil.

Constitutional Vision: Acceptable
There doesn't seem to be an incredibly strong constitutional vision underlying Karger's policies, but he does advocate for an inclusive government characterized by civil discussion.

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Now, cumulatively speaking, we have (ranked in best-to-worst order, with scores in the following order: Strong - Acceptable - Weak - Unacceptable):

Karger: 1 - 3 - 0 - 0
Roemer: 1 - 1 - 1 - 0
Johnson: 0 - 2 - 2 - 0
Huntsman: 0 - 1 - 3 - 0
Paul: 0 - 1 - 3 - 0
Romney: 0 - 1 - 1 - 2
Gingrich: 0 - 1 - 1 - 2
Bachmann: 0 - 0 - 1 - 3
Miller: 0 - 0 - 1 - 3
Pawlenty: 0 - 0 - 1 - 3
Santorum: 0 - 0 - 1 - 3

2012 Republican Presidential Candidates: First Glance (1)

(By Andrew MacKie-Mason)

Part 1: Herman Cain & Newt Gingrich (this post)
Part 2: Gary Johnson & Fred Karger
Part 3: Tom Miller & Ron Paul
Part 4: Andy Martin & Jimmy McMillan
Part 5: Tim Pawlenty & Buddy Roemer
Part 6: Mitt Romney & Rick Santorum
Part 7: Michele Bachmann & Jon Huntsman
Part 8: Thad McCotter & Roy Moore (upcoming)
Part 9: Vern Wuensche (upcoming)

I think it's time to take a first look at the potential candidates for the 2012 Republican Presidential nomination. I'm pulling from a source list here. I'm going to look at each candidate on four main topics: Civil Rights, National Security, Economy, Constitutional Vision. I'll rate them on a four point scale (from best to worst): Strong, Acceptable, Weak, Unacceptable. I'll also include a brief justification, so if I miss something relevant (which I probably will, with so many candidates to consider) feel free to leave a note in the comments section and I may adjust the ratings. Most of my information is going to be pulled from the candidates' websites, for those that already have them.

This first post will address Herman Cain and Newt Gingrich. Look at the top for links to other posts in this series, and watch for more new posts to come.

Herman Cain

(UPDATE 7/19: As I mention here, Cain has lost any right he had to attention for the rest of the campaign. He's been removed from the cumulative list of scores and will no longer be considered a relevant candidate for the presidency.)

Civil Rights: UnacceptableCain believes that children should be taught that America's greatness is because of our faith in God, a clear violation of the Establishment Clause. He also has stated that he would not allow Muslims into his administration, which constitutes an unconstitutional religious test for government officials. Further, according to this site, Cain wants to criminalize abortion even if the mother was raped, and opposes equality for the LGBTQ community. Also, see here.

National Security: Weak
Cain's statement on national security explicitly places the use of military force ahead of diplomacy in resolving international conflict. He also displays a typical-but-sad understanding of the motivation behind terrorism, claiming that terrorists want nothing except to kill everyone.

Economy: Unacceptable
Cain takes an unfortunate stance on economic growth, focusing on how best to help businesses, rather than how businesses can help individual Americans. He displays a poor understanding of economics by suggesting that government subsidies to one industry harm other industries (companies do not compete cross-industry), and buys into the typical Republican word-smithing by opposing the so-called "death tax." [Update 8/1/11: Cain has now earned himself an "unacceptable" ranking due to his insistence on not raising the debt ceiling.]
Constitutional Vision: Unacceptable
[UPDATE: See here for the reason why this rating has been changed.] While his constitutional vision isn't remarkable, and he puts too much emphasis on a single part of the Preamble while ignoring "establish Justice," and "promote the general Welfare," he doesn't seem to have a horribly problematic idea of the purpose of government.
Newt Gingrich

Civil Rights: Unacceptable
Gingrich supports anti-homosexual discrimination in the state-recognized institution of marriage, and he opposes measures that would make sure that all patients have access to medically relevant information in favor of supporting the "right" of health care professionals to impose their personal morality on others. According to this site he opposes the abortion right, thinks that gay couples should not be able to adopt children, and favors a federal ban on same-sex marriage.

National Security: Acceptable
Gingrich, like Obama, emphasizes that our conflict is not with Islam, but with a tiny subset of Muslims. His misinterpretation of a Reagan quote (he suggests that we can be an alternative to tyranny by tyrannizing those who do not share our values) and his suggestion that math and science education is important so that we can make bigger guns just make him look silly.

Economy: Weak
Like Cain, Gingrich falls into talk about repealing the so-called "death tax." He also proposes capping federal taxes at 15% of income for all Americans, and cutting corporate taxes without closing any of the loopholes that allow many corporations to already pay far less than their fair share for the support of the infrastructure they rely on.

Constitutional Vision: Unacceptable
Gingrich is openly advocating a politicization of the judiciary by saying he will nominate "conservative judges," who will uphold a specific view of how limited government should be, rather than nominating judges according to their judicial ability. Of course, he thinks that judges should do more than simply interpret the law when it comes to "protecting" heterosexual-exclusive marriage. He also would support the ridiculous view that Congress can overturn Roe v. Wade through simple legislation.
---

Now, cumulatively speaking, we have (ranked in best-to-worst order, with scores in the following order: Strong - Acceptable - Weak - Unacceptable):

Karger: 1 - 3 - 0 - 0
Roemer: 1 - 1 - 1 - 0
Johnson: 0 - 2 - 2 - 0
Huntsman: 0 - 1 - 3 - 0
Paul: 0 - 1 - 3 - 0
Romney: 0 - 1 - 1 - 2
Gingrich: 0 - 1 - 1 - 2
Bachmann: 0 - 0 - 1 - 3
Miller: 0 - 0 - 1 - 3
Pawlenty: 0 - 0 - 1 - 3
Santorum: 0 - 0 - 1 - 3

Tennessee Elected Officials Abdicate Constitutional Responsibility

(By Andrew MacKie-Mason)

The courts are not supposed to be the only branch of government that cares about the constitution. They're supposed to be a last resort, should both the legislature and executive fail in to uphold the Constitution. But that's not how two elected officials in Tennessee see it.

Tennessee just passed a law that allows police to forcefully take a blood sample from a driver who they have probable cause to believe was driving drunk, if the driver has a past DUI conviction or has a child under 16 in the car. Says Democratic District Attorney General Steve Bebb (here),

"We're tired of drunk drivers killing people," said District Attorney General Steve Bebb, who serves Bradley, McMinn, Monroe and Polk counties and who lobbied for the bill. "We don't know if it will stand up or if it's constitutional, but we'll test it."

This was then quoted approvingly by Republican State Senator Stacey Campfield (the man who thinks that education is done best when students don't learn), who added:

So if we are tired of one group of people killing another group of defenseless people we are willing to move forward on something that could possibly be ruled unconstitutional and see what happens in court.

If only I could think of another scenario where one group of people was killing another group of defenseless people and we could do something to stop them that might be ruled unconstitutional and yet we were still willing to move forward.....If only.

Personally, I think the bill in question will pass constitutional muster, although I would rather it set up a system for police to quickly obtain warrants for the blood draw and testing. But that's not the point. As elected officials, it is General Bebb and Senator Campfield's responsibility to act in accordance with the Constitution. If they think a law may not be constitutional, it is their duty to neither vote for it nor support its enforcement.

Shame on you, gentlemen, for your willingness to pass the buck to the courts to do your job for you.

Texas Fold 'em

(By Andrew MacKie-Mason)

It's not often that I look to Texas to lead America. There's nothing particularly wrong with the state, it's just that there aren't many issues where the particular demographics of Texas will make the politicians reach the right result. Even when they get it, lots of states generally get there first.

But if there was one time I would expect Texas to lead the nation, it would be some issue that involved standing up to the federal government for the individual liberties of middle-class white folk. Especially if it also implicated relatively strict sexual mores.

But the state that criminalized sodomy until 2003 (and probably still would, but for the Supreme Court) won't stand up to federal officers who grope innocent passengers without any suspicion of wrongdoing.

Mark Bennett has the story. In short: everything's bigger in Texas, except (as the TSA can tell you) the balls of state Senator Dan Patrick, who withdrew a law that would criminalize official groping. The reason? A US Attorney (federal prosecutor), who wouldn't ever be involved in any proceeding relating to this law, sent a letter suggesting that the law might lead to a legal fight between Texas and the federal government.

Really? Who could have predicted that threatening to imprison federal officials would have led to a legal battle between the state and the feds?

Sadly, it looks like New Hampshire's similar law is dead in committee: the last action on it was at the beginning of March.

Texas, you were so close to being my favorite state. I doubt this opportunity will come around again.

What Is A Person?

(By Andrew MacKie-Mason)

Fr. Robert John Araujo, a law professor at Loyola Chicago whom I've had some interesting discussions with, tried to answer this question in a post at Mirror of Justice. Unfortunately, he got it basically wrong.

Araujo starts by quoting the words of Pope John XXIII:

Any human society, if it is to be well-ordered and productive must lay down as a foundation this principle, namely, that every human being is a person, that is, his nature is endowed with intelligence and free will. Indeed, precisely because he is a person he has rights and obligations flowing directly and simultaneously from his rights and obligations flowing directly and simultaneously from his very nature. And as these rights and obligations are universal and inviolable so they cannot in any way be surrendered.

This is affirmation of the personhood of all human beings is based on the most sensible argument: pragmatism. We must accept that each human is a person, the pope argues, because if we don't do so we won't have a "well-ordered and productive" society.

This argument resonates with me for various reasons. But Araujo seems to misunderstand it, apparently using it as support for his claim that, definitionally speaking, each "human being" (however defined) is a "person." This is the concept, Araujo argues, of the "natural person."

Araujo goes on to mischaracterize two Supreme Court cases: Dred Scott v. Sanford and Roe v. Wade.

Lawyers and the rest of society, surely since the 1973 decision in Roe, have been arguing over this and related issues for some time. It would also seem that the connection between rights or claims and obligations or responsibilities identified by Blessed John confound many, including some members of the academy. Of course the debates and disagreements that emerge from the juxtaposition of these two subjects, i.e., rights and obligations, were brought to a head in Dred Scott. There was no question that in reality Dred Scott was a person; however, the law, as formulated by five of the seven members of the Supreme Court (who, by the way were also persons) said otherwise. We sort of get that same conclusion, albeit in different wording, in Roe v. Wade from the majority opinion. What rights can a human being/human person claim, and what obligations are owed to this claimant? That is the question.

In Dred Scott, the Supreme Court did not say that the plaintiff was not a person, it found that — as the descendent of African slaves — he was not a citizen of the United States, and thus not a citizen of any of the several states.

In Roe v. Wade, the Supreme Court did not say that fetuses were not persons. Instead, they found that the mother has a privacy right that, in certain circumstances, states cannot invade by criminalizing decisions she makes about her own body.

Finally, Araujo goes on to argue that recognizing the personhood of the fetus will necessitate acceptance of his preferred anti-choice ban on abortions. As I've argued before, that's simply not true.

Bernstein's Lack of Intellectual Ethics

(By Andrew MacKie-Mason)

Today at the Volokh Conspiracy, Professor David E. Bernstein (George Mason Law) demonstrated his integrity and academic legitimacy with an eminently respectable debating tactic known as the "Try To Embarrass Your Political Opponents By Equating Them With A Crazy Person Dressed As A Clown Method." Frankly, as someone who cares about academia, this is a sad sight to see.

As always, my right-of-response policy stands if Bernstein thinks he's being unfairly criticized.

UPDATE: It's been pointed out to me that I may lack a sense of humor. Of course I find this guy's outfit incredibly amusing, and I appreciate the good laugh it causes. But Bernstein's connection of the clown-guy with the rest of the protesters (see "lead the demonstration," "What a Bunch of Clowns?" and the prominent mention of a certain political affiliation), especially in light of his history on issues regarding Israel and Palestine, seems to me to be a transparent attempt to delegitimize his political opponents by weak association.

Perhaps I'm misreading it, or perhaps Bernstein's attack on the protesters was unintentional. But given a comment he later left on the post:

There’s actually a bunch of people behind, but it wasn’t a parade, it was more like a group marching back and forth, with this guy at the front of the line. He and I 60 or so year old woman who may have been his significant other seemed to be having a great time. Why anyone would think that standing out in the sun shouting slogans is their idea of fun I don’t know.

It seems clear to me that Bernstein was trying to make fun of everyone who would do something so silly as protest Israel by comparing them to the guy at the protest in the clown suit. That kind of method of delegitimizing opponents is what, in my opinion, makes his more substantive criticisms of opponents of Israel less credible.

Classism In Juding Extramarital Affairs

(By Andrew MacKie-Mason)

Paul Horwitz comments on a very disturbing thread to the criticism of Arnold Schwarzenegger's affair. In part:

Yet I am still slightly queasy about some of the language used by some commenters to discuss Arnold Schwarzenegger's affair (the latest reported one, anyway). One of my Facebook friends wrote yesterday to express disgust with "men who sleep with the help." Today, Maureen Dowd's column, which I glanced at accidentally (I'm not sure anyone reads Dowd on purpose anymore), has a nearly identical pull-quote summarizing the topic of her piece: "Men who help themselves to the help." All this is somewhat reminiscent of the late 90s discussion of Bill Clinton, in which his actual and alleged mistresses were roughly categorized in descending order from more or less acceptable sexual partners (within the general assumption that adultery is nonetheless wrong) of his own social class, to young women from good backgrounds, like Monica Lewinsky, who were somewhere further from the pale but might still be considered autonomous sexual agents, to "trailer trash." There is a similar air to some of the Schwarzenegger talk, in which part of the reaction is one of general disgust toward his behavior, but there is an additional element of disgust at Schwarzenegger's having had an affair, specifically, with "the help."

Homophobic Principal Outs Teenager

(By Andrew MacKie-Mason)

Karlton Johnson, the principal of Blanche Ely High School in Pompano Beach, Florida, threatened to suspend two girls for holding hands on campus, and then proceeded to out them to their parents. (One of the girls was apparently already open about her sexuality, but the other was still in the closet.) The South Florida Times has the story.

Principal Johnson's homophobia and discrimination (one of the students involved says that straight couples are allowed to hold hands without incident at the school) has been praised by the "Reverend" O'Neal Dozier, who (according to the biography on his church's website) abuses his position on a state Judicial Nominating Commission to impose an unconstitutional religious test on potential nominees. He's also anti-choice, homophobic, and anti-Islamic.

Johnson apparently justified his abuse of power by appealing to school rules, which he claims ban holding hands on campus. However, holding hands in no way violates the Broward School District's Code of Student Conduct, and Johnson's actions are a violation of the expressed rights in that document of students to be "treated with respect and honesty" and to have "the right to privacy."

Furthermore, Johnson is probably guilty of harassing these students within the definition put forward by his own administration.

“Harassment” means any threatening, insulting, or dehumanizing gesture, use of technology, computer software, or written, verbal or physical conduct directed against a student or school employee that:
...
3. Has the effect of substantially negatively impacting a student’s or employee’s emotional or mental well-being

If you want to let Principal Johnson know that he should not abuse his position to impose his own backwards morality on his students, he can be reached through this form. (He's apparently too cowardly to actually release his email address to the public.)

The Repeal Amendment

(By Andrew MacKie-Mason)

Professor Randy Barnett previously proposed a "repeal amendment," now introduced in the House and Senate, which would empower state legislatures to pass measures repealing federal statutes or regulations. If two-thirds of the states passed such a measure, the law in question would be repealed.

There are various problems with this proposal, but one of the most obvious — and easiest to fix — has been expounded by Professor Sandy Levinson. He points out that the Repeal Amendment would, inexplicably, empower citizens of small states at the expense of those of large states (as I've also argued here). The Repeal Amendment would take on the Senate model rather than the House of Representatives form of equal representation for all citizens.

All of the Repeal Amendment's legitimate goals (protecting against federal encroachment on personal liberty, bringing important legislative decisions closer to the people) would be better served by a system based on equal representation for each individual. So why has Barnett refused to acknowledge this?

In the face of this reasonable criticism, Barnett has maintained an ill-conceived, short-sighted position based on the current political makeup of the country. He argues:

Thus far, there are only two serious criticisms of the proposal. The first is Professor Levinson’s objection that it would empower states comprising less than a majority of the population to repeal a federal law presumably supported by a majority.[19] However, such an outcome is almost entirely hypothetical. Given that there is no correlation between the size of states and whether they are blue or red, no law is likely to be repealed unless it includes enough large states to get over the fifty percent mark. For example, if you remove just seven of the least populous blue states (Vermont, Delaware, Rhode Island, Hawaii, Massachusetts, New Mexico and Connecticut) and add Florida and Texas with the remaining least-populous thirty-four states to reach two-thirds, you are well over one-half of the national population, and still with a mix of red and blue states from throughout the country. Besides, what makes the original Constitution distinctive is all the ways it checks power to protect minorities from the tyranny of the majority.

There are many holes in this. First: why do we want repeal to only be supported by a majority of the people? As Barnett implicitly acknowledges by making the requirement 2/3 of the states, something than a simple majority should be required to repeal federal legislation. What happens if we want 2/3 of the population? Starting with the smallest states, we would need all but the four largest (Florida, New York, Texas, California) in order to reach 2/3 of the national population. However, Barnett would give the repeal power to a mere 34 of those 46 states.

But the real problem with Barnett's defense is that it's based on an elementary view of American civics that's frankly a bit embarrassing to see from a law professor.

Don't worry about giving too much power to small states in the Constitution, Barnett tells us, because at the current moment the political parties are divided in such a way that the small states probably won't abuse that power.

Barnett's logic lasts only as long as the political parties remain divided in approximately the same way they are now. In other words, his defense lasts only as long as it needs to in order to accomplish the short-sighted partisan goals he holds now. Long term constitutional design be damned! It'll work for the next few years, and after that it's someone else's problem.

Right, Officer. Of Course You Did.

(By Andrew MacKie-Mason)

Brian Tannebaum has an amusing post about police officers' supernatural ability to detect crime in progress. He begins:

When I began my career, I didn't remember much hearing about the "smell" of marijuana. I heard a lot about young black men chronically dropping bags of cocaine in the presence of police officers, and the shock, shock I say of police officers when asked on the stand whether they coerced in any way the consent to search all of my clients. "No sir, he was very cooperative."

Then, a few years ago, I wondered if I was the only person not noticing the smell of marijuana all over the city - mostly while sitting in my car behind another car (usually a modified Honda Civic) in which the occupants were listening to loud music, but also behind the doors of homes.

Welcome, Noah Cohen

(By Andrew MacKie-Mason)

Welcome to my new co-blogger, Noah Cohen. He is an excellent friend, an intellectual poet, an irreverent scholar and a sometimes caustic gentleman. I'm very excited to have him on board, and I think he'll bring an excellent new voice to the blog!

How Can Google "Do No Evil" When Legally Compelled To Censor?

(By Noah J. Cohen)

http://arstechnica.com/tech-policy/news/2011/05/big-content-rips-into-google-the-corporate-imperialist.ars

There is no doubt that the U.S. economy loses a non-negligible portion of its creative revenue to internet piracy, however, in order to illegalize fileshare piracy, legislation must attack intermediaries, such as bittorrent cache servers, who have not ostensibly broken the law, only maintained an online infrastructure conducive to abuse by third-parties. The PROTECT IP Act would give the government the power to order Google to blacklist the DNSs of any or all of those third-party servers.

This week, Google Chairman Eric Schmidt voiced his anxiety over his company's, and country's, participation in such well-intentioned motions of censorship as PROTECT IP introduces to American cyberspace, and is under fire for suggesting that Google should dissent from any federal decree enforcing such measures.

"Incompetent" Rakofsky Sues Everyone for Defamation

(By Andrew MacKie-Mason)

Joseph Rakofsky became quite the sensation in the blawgosphere last month when the Washington Post ran a story saying a judge declared a mistrial because of Rakofsky's incompetence as a lawyer. Someone got a hold of a Facebook posting he made where he said "Mistrial!", and the wolves descended. Rakofsky has now sued 71 defendants — news organizations and blawgers, many of whom are lawyers — for defamation. (Many of these blawgers are very good reads, by the way. Might as well recommend a few who I enjoy reading, while we're at it: Mark Bennett, Brian Tannebaum, Mirriam Seddiq, Jeff Gamso). He claims the mistrial was actually due to his request to withdraw because of an irreconcilable conflict with his client. (And, he admits, because he thought he was going to lose, and figured that a mistrial was better than a loss.)

Yeah, whatever. However this case ends up, the complaint in the case is just ridiculous, and deserves a few moments of scorn. If you were wondering, Rakofsky is apparently intelligent enough to not represent himself, or at least not solely. Both he and Richard Borzouye (a Cooley grad...who would have guessed?) signed the complaint. (It's possible that Borzouye is only associated local counsel since Rakofsky is only admitted in New Jersey: I'm not sure.) Anyways, my evaluation of the entertaining complaint follows. Fair disclosure: I could only force myself through about 39 of the 75 pages. You're welcome to try to get through more of it, if you wish.

Let's start with the very first sentence:

"The plaintiffs above named, complaining of the defendant, by their attorney, RICHARD D. BORZOUYE, ESQ., respectfully alleges." It's nice that Mr. Borzouye, Esq. includes his name so we know who's responsible for this mess of a sentence. "The plaintiffs alleges?" And then many named defendants are "the defendant" while "the plaintiffs" are this guy and his own law firm?

Then we get paragraph 3: "Upon information and belief, at all relevant relevant times…" Because we don't want just the relevant times. Only the relevant times that are also relevant.

In paragraph 33, Rakofsky's lawyer for some reason decides to abbreviate "Seddiq Law" to "SED LAW". Because, you know, "Seddiq Law" is so much longer and more difficult to write.

According to paragraph 78, Rakofsky got the "Doctor of Law" degree from Touro Law Center. Unless their website is lying, they don't give a "Doctor of Law" degree, they give (as most law schools do), a "Juris Doctor" degree.

In paragraph 86, Rakofsky's lawyer defines admission pro hac vice. It means admission to a state or jurisdiction's bar for the purposes of a single case. See, I feel like I should define technical terms, since many people who read this blog aren't that familiar with law. But defining it in a filing with the court seems a bit tacky. ("Your Honor, let me explain basic legal terms to you, just in case you never went to law school.")

Paragraph 93 has a great sentence: "Judge Jackson did not elucidate in his ruling the reason the possession of two degrees in addition to that of Doctor of Medicine disqualified Dr. Manion from being qualified to offer an opinion on the effects of PCP, nor did he otherwise specify a reason for his ruling."

Paragraph 111 has another gem: "Notwithstanding the foregoing facts, Judge Jackson, likely being aware of the possible presence in the courtroom of a newspaper reporter, Alexander, a so-called newspaper "reporter" from the Washington Post…" Some advice: you can't call someone a newspaper reporter, and then three words later call them a "so-called newspaper 'reporter'". That just doesn't work, pal. Also, it's not really possible to likely be aware of someone's possible presence...

Getting to the "merits," Rakofsky claims that he asked to withdraw from the case due to a conflict with his client over defense strategy, and the judge granted that request, but then proceeded to "utter several statements in open court that slandered Rakofsky's knowledge of courtroom procedure. The statements slandered Rakofsky because they were plainly irrelevant to the trial and Rakofsky's motion to withdraw as lead counsel…Judge Jackson, for reasons that can only be speculated, gratuitously published on the record the slanderous, defamatory statement that, having acknowledged that Rakofsky's motion for withdrawal as lead counsel for the defendant was caused by a conflict with the defendant which the defendant confirmed, that he was "astonished" at Rakofsky's willingness to represent a person charged with murder and at his (Raskofsky's) 'not having a good grasp of legal procedures.' This statement was neither germane nor relevant to any issue before the Court" (Paragraphs 110-111). I think Raskofsky and his lawyer need to go back to Torts and relearn the elements of slander. Something isn't slanderous or defamatory because it's "irrelevant," "gratuitous," or "not germane".

Paragraph 124 makes a nonsensical claim; perhaps someone else can explain it to me. "At that time, Rakofsky refused to comment [to the Post reporter]. However, Alexander persisted. Rakofsky asked Alexander whether he had any respect for Rakofsky's wish not to give a comment. Alexander replied in sum or substance, 'I'm going to make sure you regret your decision; just wait until everyone reads my article,' which constitutes an obvious reckless disregard for truth (Rakofsky declining to comment) as well as the intention to cause harm to Rakofsky." How does "I'm going to make sure you regret your decision" constitutes an obvious reckless disregard for truth relating to Rakofsky's wish not to comment?

In Paragraphs 125 and 126, Rakofsky says things like "The Washington Post, through Alexander and Jenkins, with malice and hate…without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties" and "Judge Jackson and the Washington Post failed to inquire about what actually occurred between Rakofsky and RLF [remember, RLF is Rakofsky] and Bean (the so-called 'investigator' [as a matter of factual definition, Bean was an investigator]) because they refused to reasonably investigate the facts to learn the truth." First of all, they failed to inquire because they refused to reasonably investigate? Huh? But really, I can't help but laugh at these claims, following directly as they do from the admission that Alexander asked Rakofsky what happened, and Rakofsky refused to comment.

By the way, if the earlier argument about slanderous comments demonstrated a lack of understanding the law, Paragraph 125 evidences a lawyer who knows a few key words and tries to work them in as many times as he can. A single sentence:

The Washington Post, through Alexander and Jenkins, with malice and hate, in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties, in reckless disregard for the truth, having been alerted to the allegation made by the 'investigator' as a result of Judge Jackson's improper publication of it on April 1, 2011, upon information and belief, obtained a copy of the 'investigator's' 'motion' but intentionally and in reckless disregard for the truth misrepresented and misquoted the contents of Rakofsky's email contained in such 'motion' in the Washington Post's newspaper and internet website, making those misrepresentations and misquotations available for the entire world to read, despite the fact that its action in so doing was in reckless disregard for the truth and wholly failed to qualify as being fair and truth or substantially accurate.

Whew. Oh, in case he forgot to mention it: their actions were in reckless disregard for the truth. (He does say it again in the next sentence, but I'll spare you.)

Anyways: Rakofsky's claims against the Washington Post might stand. I'll need to see more evidence than this one-sided story before I can say for sure. But Rakofsky's apparent belief that he can sue anyone who published a derivative news story is ridiculous, and betrays a lack of understanding of defamation law. Any news organization or blog that relied on the Washington Post's reporting is safe from a slander claim: it's generally accepted that one can rely on newspaper articles as a reasonably accurate source.

I used to feel bad for this guy: he was obviously in over his head, and tried to make too big a splash in a profession that you need to ease into. But it's clear now that Rakofsky's just asking for it, and he needs a decade or two of humility before he'll be ready to be a competent lawyer.

Math/Philosophy Bleg (Redux)

(By Andrew MacKie-Mason)

Blogger kind of failed yesterday, and lost this post. Here it is again.

It occurs to me that many philosophers implicitly believe that time is a continuum, but then view that continuum as a sequence of countable instants. An example comes from Schopenhauer's The World As Will And Idea, Book I Section 3:

This simplest form of the principle [of sufficient reason] we have found to be time. In it each instant is, only in so far as it has effaced the preceding one, its generator, to be itself in turn as quickly effaced.

And Section 4:

Time is nothing more than that form of the principle of sufficient reason, and has no further significance. Succession is the form of the principle of sufficient reason in time, and succession is the whole nature of time.

This idea of succession, and of a "generating" instant for each existing instant, would make the instants of time a countable collection rather than a continuum. If we accept the continuum of time, then there is no immediately preceding moment for a given moment, just a preceding interval. To put it in math terms:


So here's my bleg. Does anyone know if there's been philosophical inquiry into this distinction between a continuum of time (and its implications for theories of causation) and conception of time as a countable collection of ordered instants?

(UPDATE: As was pointed out on a comment thread to this, what I'm talking about isn't really the distinction between countable sets and the continuum: it doesn't really have to do with cardinality. A better phrasing is to distinguish between sets that are "countably ordered" and sets that are not. That is:

Sets that are countably ordered would be amenable to the typical view of causality put forward by Schopenhauer above: each moment is caused by the moment immediately preceding it. Sets that are not countably ordered would not be, because there is no moment immediately preceding the one in question, but rather only an arbitrarily small interval of time.

Nietzsche on the Criminal Justice System

(By Andrew MacKie-Mason)

I thought this quote from On the Genealogy of Morality (2d Treatise, Section 14) was an interesting perspective on the criminal justice system.

But if we think, say, of those millennia before the history of man, then one may unhesitatingly judge that it is precisely through punishment that the development of the feeling of guilt has been most forcefully held back — at least with respect to the victims on whom the punishing force vented itself. For let us not underestimate the extent to which precisely the sight of the judicial and executive procedures prevents the criminal from feeling his deed, the nature of his action, as in itself reprehensible, for he sees the very same kind of actions committed in the service of justice and then approved, committed with a good conscience: thus spying, outwitting, bribery, entrapment, the whole trickery and cunning art of police and prosecutors; moreover — based on principle, without even the excuse of emotion — robbing, overpowering, slandering, taking captive, torturing, murdering as displayed in the various kinds of punishment — all of these thus actions his judges in no way reject and condemn in themselves, but rather only in a certain respect and practical application.

Translated by Maudemarie Clark and Alan J. Swensen.

Math/Philosophy Bleg

(By Andrew MacKie-Mason)

It occurs to me that many philosophers implicitly believe that time is a continuum, but then view that continuum as a sequence of countable instants. An example comes from Schopenhauer's The World As Will And Idea, Book I Section 3:

This simplest form of the principle [of sufficient reason] we have found to be time. In it each instant is, only in so far as it has effaced the preceding one, its generator, to be itself in turn as quickly effaced.

And Section 4:

Time is nothing more than that form of the principle of sufficient reason, and has no further significance. Succession is the form of the principle of sufficient reason in time, and succession is the whole nature of time.

This idea of succession, and of a "generating" instant for each existing instant, would make the instants of time a countable collection rather than a continuum. If we accept the continuum of time, then there is no immediately preceding moment for a given moment, just a preceding interval. To put it in math terms:


So here's my bleg. Does anyone know if there's been philosophical inquiry into this distinction between a continuum of time (and its implications for theories of causation) and conception of time as a countable collection of ordered instants?

(See the updated copy of this post here.)

Barlett vs. Obama

(By Andrew MacKie-Mason)

Proposition: President Josiah Bartlett is far more badass than President Barack Obama.

Proof:

Bartlett's Situation Room:


Obama's Situation Room:



QED.

Also, the Hasidic newspaper Der Tzitung demonstrates its photoshopping skillz. 10 points to the first commenter to find the missing gender...

Indiana Brainwashes Children With Conservative Ideals

(By Andrew MacKie-Mason)

People are often complaining about the "liberal bias in public education." I've as-of-yet heard no convincing evidence of such a bias, but reading through Indiana's new "school choice" law revealed some significant conservative brainwashing mandates for private schools that receive government funds. The bill is HEA 1003, and it includes such wonderful requirements as:

An eligible school shall:

• Display the United States flag in each classroom.
• Provide a daily opportunity for students to voluntarily recite the Pledge of Allegiance in each classroom or on school grounds.
• Require that each teacher employed by the eligible school present instruction with special emphasis on [a list including]: morality, obedience to law, respect for the national flag and the Constitution of the State of Indiana and the Constitution of the United States, respect for parents and the home, and the dignity and necessity of honest labor.
• Provide good citizenship instruction that stresses the nature and importance of the following [a list including]: respecting authority, respecting the property of others [while this may not seem bad, it acquires a political bent by the fact that "not stealing" is separately included], taking personal responsibility for earning a livelihood, respecting the national flag, the Constitution of the United States, and the Constitution of the State of Indiana, and respecting the student's parents and home.
• Provide instruction in the following studies [a list including]: social studies and citizenship, including the...histories of Indiana and the United States, including a study of the Holocaust and the role religious extremism played in the events of September 11, 2001, in each high school United States history course.

But obviously it's those sneaky liberals who are trying to indoctrinate children into becoming anti-government hippies through the public schools.

Normalcy

(By Andrew MacKie-Mason)

I'm late in noting this, but Bill Araiza at PrawfsBlawg has a moving piece on the desire for normalcy in times of stress. Living in history, he reminds us, can be a painful thing. I encourage you to read the whole thing, but he closes thus:

One final point. Returning to normal -- or a better normal -- requires that people be plucked out of their day-to-day lives and thrown into history: Gettysburg, the Bulge, or Kandahar (or, for that matter, the Freedom Rides). So as we reflect on the relationship between history and normalcy, I'd like to offer my own pre-Memorial Day thanks to three generations of Americans that have made my own normal possible. First, my father's -- for the reasons stated above. Second, the generation between his and mine, the one that re-started us down the path toward a fairer domestic normal. And finally, the current generation, especially those that chose to serve after 9/11. I've had those students in my classes. In talking with them I've been so impressed with their decision to enter history and drop their own life plans, so we could continue on with ours. So as I ponder the inconceivable bravery of the SEALs who acted last Sunday, I also sneak a glance at the scores on ESPN. And I am grateful for the chance to worry about whether the Lakers will get past Dallas.

UMich Law Students Protest Responsibly

(By Andrew MacKie-Mason)

A story in the Ann Arbor Journal (HT: Above the Law) demonstrates that University of Michigan Law Students know how to protest a commencement speaker in a respectful and appropriate manner. Over a hundred graduating speakers stood up when the speaker (Rob Portman, a UM Law graduate who, as a US Senator, has opposed adoption and marriage privileges for homosexual couples) was announced, and quietly filed out of Hill Auditorium. When he finished speaking, they returned to their seats.

In contrast to those who protested Governor Snyder at the University's undergraduate commencement — either by making loud noises outside the stadium or standing up and turning their backs during the speech — these law students demonstrated class and dignity that will serve them well in their future careers.

Bravo, UM Law.

Animalistic Nationalism In The Wake Of Bin Laden

(By Andrew MacKie-Mason)

Lee Smith, in a piece full of the simplistic "us vs. them" mentality, tells us:

The fact is that at least two presidential administrations and several U.S. Congresses have acknowledged that the United States is at war with an organization whose grand strategy is to kill Americans—and of those already killed, none of their funeral rites were of much concern to the Sheikh of Al Azhar or the grandson of Hassan al-Banna. To fret over bin Laden’s end, to lament the killing of an American enemy, identifies you as something other than a friend of the United States.

This kind of rhetoric merely demonstrates Mr. Smith's lack — whether deliberate or natural — of intellectual engagement with issues and interest in honest discussion.

I could get into this, but I'm not sure that Smith is worth it. Instead, I'll just say that if one has to be happy about death in order to be a friend of Lee Smith's America, then I'm glad I'm not.

But Smith and that teacher in Texas can have a grand old time together in their "great nation."

Welcome, Just Enrichment

(By Andrew MacKie-Mason)

Just Enrichment is a relatively new blog (it started last month) by a bunch of graduating law students talking about the law. In their words:

As our time in law school draws frighteningly near its end, we have begun Just Enrichment so that we can continue the discussions we’ve had over bagels and coffee even when we’re no longer all sitting at the same kitchen table.

I've found it a wonderful blog so far, with a particularly interesting discussion on how we should evaluate a lawyer's decisions on whom to represent. Go check it out!

Fake Service Dogs

(By Andrew MacKie-Mason)

One of my friends alerted me to the problem of pet owners buying fake credentials for their dogs — vests and certificates that claim the dog is a trained service animal — so that they can bring their pet places more conveniently. About a month ago, the Sun Sentinel had an interesting story about the problem.

A cause of this is that there aren't any standards for training a service dog. The accommodation laws require businesses to allow disabled customers to bring service dogs with them, but there are no federal or state agencies that regulate the training or issue certifications. This means that while certifications bought for untrained dogs aren't real, they're also not technically fake, since there is no such thing as a "real" certification.

Of course, it should go without saying that such fake certifications are an extremely selfish thing to use. If your dog isn't specifically trained, it's probably going to act in the ways that make business owners hesitant to allow dogs in in the first place. It's going to bark, it's going to be energetic, and it's going to bother other customers. If business owners start to think that service dogs behave in this way, it's going to cause a problem for those who actually need assistance in the future.

One bit of the Sun Sentinel article struck me as not correct:

"If you portray yourself as disabled, or your pet as a service animal, the minute you go out in public you're committing a crime," [Ken] Lyons [director of Service Dogs of Florida] said. "It's felony fraud."

It's not clear why that type of misrepresentation would constitute fraud, which usually requires monetary gain.

I'm not an expert on Florida fraud law, obviously, but the relevant statute seems to be F.S. § 817.29, which provides:

Whoever is convicted of any gross fraud or cheat at common law shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

This simply incorporates the common law definition of "gross fraud or cheat" and sets the level of the crime at a third degree felony. As to the actual definition of fraud, State v. Vikhlyantsev, 622 So. 2d 1365, 1367 (Fla. Dist. Ct. App. 1993) provides an answer:

This court in State v. Peterson, 192 So.2d 293 (Fla. 2d DCA1966), recognized 30 Geo. II, c. 24, as the law of this state for the offense of cheating. The statute defines the offense as knowingly and designedly, by false pretense, obtaining from any person or persons, money, goods, wares or merchandise with the intent to cheat or defraud said person or persons of same. 192 So.2d at 295.

Since pretending that your dog is trained in order to bring it into an otherwise restricted area is not a way of "obtaining from any person or persons, money, goods, wares or merchandise with the intent to cheat or defraud said person or persons of same," it can't constitute fraud in the Florida (or standard) definition.

If there's another statute or common law crime under which the state could charge the act, please let me know. As far as I can tell, though, no Florida prosecutor has ever tried to prosecute a "fake" service dog for fraud.

(UPDATED 5/7 to make it clear that pretending that a non-service dog is trained is an irresponsible and selfish thing to do.)

Sentenced To Death In A Non-Death State

(By Andrew MacKie-Mason)

Professor Mannheimer (NKU Law) has a fascinating post on PrawfsBlawg, in which he argues (and references an article he wrote with a more in depth analysis of the issue) that imposing the death penalty through federal law for a crime that takes place entirely within a non-death state violates the Eighth Amendment's ban on cruel and unusual punishment.

I haven't read the article yet, so I can't give a thoughtful analysis. But while I think that the result he reaches is the correct one, I'm skeptical of the Eighth Amendment argument (at least the federalism aspect: I'd support an argument that said death was per se cruel and unusual). He apparently relies on original public understanding to make the point. It's one of the better kinds of originalism, but it's still a flawed doctrine.

I do think the result is right, though. I'd get there under the Fifth Amendment, arguing that due process of law requires the federal government to defer to local judgments about punishments on what are essentially state crimes, even if the federal government can find a way to bootstrap criminal jurisdiction. This would, of course, apply outside of the death penalty context: the federal government wouldn't be allowed to, say, punish possession of marijuana more harshly than a certain state does, even if the federal government can claim jurisdiction for federal prosecution over possession charges under an interstate commerce clause argument.

This is an initial thought, not a well developed theory. I'm looking forward to reading Professor Mannheimer's article, and thinking more about this issue.

Donate to Alabama

(By Andrew MacKie-Mason)

I've been remiss in not mentioning this earlier, but I encourage you to donate to the relief efforts from the tornado in Alabama. You can either go through the state's Office of Faith-Based and Community Initiatives or the Red Cross.

For those planning not to give, I encourage you to read this again (and the post that prompted it).

Paying Schools To Teach Rand

(By Andrew MacKie-Mason)

Dealbreaker has a story about a rich banker who has a bit of a hard-on for Ayn Rand: so much so that he's giving business schools $2 million if they teach a course on capitalism where Atlas Shrugged is required reading.

Perhaps predictably, some professors are up in arms "saying donors shouldn’t have the power to set the curriculum to pursue their political agendas".

On the contrary, that's exactly what donors should be able to do.

Universities don't teach everything because of limited resources and a lack of demand. Inevitably, financial concerns will limit the ideal of academic freedom. So, if someone wants something to be researched and taught, funding its research and teaching is exactly the right response.

If the guy were paying schools to not teach Marx (for example), there would be a problem. Donors shouldn't be able to limit academic freedom by banning certain types of inquiry. (They can, of course, say that "my money can't go towards teaching Marx," but that's an empty requirement.) But expanding the realm of inquiry through funding is a wonderful thing to do.

By the way, I'm not sure why the professors are so upset. It sounds like the only required thing about the course is that Atlas Shrugged must be required reading. The university could fulfill the requirement with a "Everything That's Wrong With Atlas Shrugged and Unregulated Capitalism" course.

Protecting Local Government

(By Andrew MacKie-Mason)

A draft of my paper "Protecting Local Governments Against State Control" is now available on Scribd. The article presents and analyzes a variety of potential challenges to Michigan's Local Government and School District Fiscal Accountability Act. I welcome thoughts, criticism, or suggestions at drewmm@gmail.com.

A Man Is Dead

(By Andrew MacKie-Mason)

We should not rejoice.

To celebrate death, in whatever form it comes, coarsens us. It drives a wedge between us and our humanity, that inexplicable bond we have with the rest of our species that enables us to trust, to feel, to hurt.

Feel pride in the great work of our intelligence analysis, investigating agents, covert operators and special forces soldiers. Thank our leaders for doing what they can to keep us safe. Rest easier knowing that those who threaten your life are often met with justice.

But don't cheer the death of another man's son.