Begging The Question

Friday, October 22, 2004

The Man Behind the Myth
[A] pitiful vanity project that passes golden genius through the filter of presumptuous mediocrity and produces over two hours of leaden dross.

Inspired by Energy Spatula, who was inspired by NDC, who in turn was inspired by Scoplaw, I've decided to pull back the curtain (again). Behold, a collection of random Fitz-Hume trivia:
1. A Westlaw search for my name turns up 13 hits. One of my published articles is cited in 3 different sources. Note that citation in Westlaw does not imply an endorsement by Westlaw.

2. When I was 14, a strange man in the grocery store tried to hit on me. He explained that he had this new weight machine in his basement and if I ever wanted to come over and try it out, I should just give him a call. I did not take him up on his offer.

3. I have had stitches or staples 4 times, concussions 3 times, broken bones twice, and pneumonia once.

4. I love France and the French. I love their food, their wine, their movies, their language (especially when spoken by Juliette Binoche or that husky-voiced girl in Swimming Pool), and their women. Above all, their women. Mon dieu!

5. I was not allowed to play little league baseball because my parents did not want me going from door-to-door selling candy to pay for our uniforms. I've never really been able to forgive them for that.

6. I have traveled to Mexico, Canada, England, France and Russia.

7. I was in a car wreck that made it on to CNN.

8. My favorite president: Theodore Roosevelt. My least favorite: Jimmy Carter.

9. I'm the second person in my family to have graduated from college.

10. I love Dumb & Dumber, but I never liked There's Something About Mary.

11. I've never been to a strip club.

12. I don't have a personal theory of constitutional law.

13. I faked the data in my 9th grade Science Fair project. In the same year, I won a special award at the History Fair for my project on the history of Marine Corps airpower.

14. Two women have bought me drinks before. Hot women. Hotter than I deserved.

15. One of my law professors told me that I have an inability to spot legal issues. I have become convinced that he was right.
Is this stuff interesting? Eh, probably not, but . . . well, there is no but.

Thursday, October 21, 2004

Walk a mile in my shoes
I've worn holes through the soles of my work shoes. I've worn these brown Bostonian lace-ups for about 18 months and they've had it. I'm in the market for a business casual shoe - no tassles - in black or brown. Something under $200. Anyone have suggestions?

Tuesday, October 19, 2004

This is the reason "The Newlywed Game" went off the air
It's fall, there's a nip in the air, and one's mind begins to drift. Lately, I've been thinking about Halloween parties and costumes. In particular, I've been trying to come up with a list of couples costumes that transcend the usual "doctor & nurse" or "guy in a dress and girl in a suit" standbys. My favorite couples ideas are: (1) H.I. McDonnough and Edwina from Raising Arizona or (2) Richie "Bomber" and Margot Tenenbaum from The Royal Tenenbaums. For the mixed doubles like Mr. Poon and his soon-to-be better-half, the Haffs, Soup and the missus, and anyone else looking for Halloween costume ideas for couples, allow me to share some of my other ideas:

(10) Ragedy Ann and Andy
(9) Lyndie England and a Republican Guard general in his undies with a leash around his neck
(8) The Captain & Tenille
(7) Liza Minnelli and David Guest
(6) Roy Horn and a tiger (cat suit idea for the ladies)
(5) Bo "Bandit" Darville and Frog from Smokey and the Bandit
(4) Michael Moore and Ann Coulter
(3) Al Gore and the internet(s)
(2) Bud and Sissy from Urban Cowboy (or the evil couple of Wes, with the black mesh tank-top, and Pam, with her oh-so tight jeans)
(1) The Fugly Federlines

I do not hold this list out as the list of couples costumes. This is merely a place to start. Grist for the mill, so to speak.

Like lemmings to the sea - hey, wait for me!
Since all the cool kids are doing it, I have decided to jump on the bandwagon. You want pictures, I'll give you pictures. Leave your requests for Fitz-Hume themed pictures in the comments and I'll oblige. I'll not be as obliging as the Burger King chicken, but I'll post pretty much anything you want. It's a standardless standard, really.

Gentlemen, do you think I'm a lowlife? Oh, no Mr. Brewster, not with these clothes.
The age of electronic voting is upon us. In two weeks, I will be voting electronically. Today, I went by the Secretary of State's office to try out the new voting machines (from Sequoia Voting Systems - no Diebold labels that I could see). The process is pretty simple, and if Nevada is any indicator, then the fears expressed by some people regarding voting irregularities are overstated. Sadly, it doesn't seem like Nevada is a good indicator of whether electronic voting will work smoothly in other places - namely Florida. (Query: Why can't Florida get its shit together? Voting and counting votes just can't be as hard as they are making it. Honestly, people.) All the fretting about electronic voting aside, allow me to share with you the process of electronic voting, Nevada "Uncle Sam, Leave me the F alone" style.

The voter must present a voter identification card to the poll worker. Once your name is checked off the list, you are handed a voting card - it looks like a credit card with the Great Seal of the State of Nevada emblazoned on one side (yes, that's the Great Seal of the State of Nevada, not the Seal of the Great State of Nevada - a 150-year old scrivner's error, perhaps, or a recognition that the seal is pretty cool, but the state is pretty hum-drum).

You take the card over to the voting machine, and then you load the card into a slot on the voting machine, like inserting your card into an ATM. This brings up a screen where you choose English or Espanol. I chose English, which then brought up a screen with a list of candidates for president on the left, and candidates for U.S. Senate on the right. These were my choices:
Benjamin Franklin
Frederick Douglas
George Washington
Harriet Tubman
Thomas Jefferson
None of the Above

Abraham Lincoln
Booker T. Washington
Eleanor Roosevelt
Ulysses S. Grant
None of the above
Consider those choices for a moment (and consider that in the actual election None of the Above is a real possibility). I chose Thomas Jefferson and Booker T. Washington, for no particular reason. To mark your choices, you simply touch your finger to the large circle to the right of the candidate's name. Then, a check mark appears in the circle. At the bottom of the screen are three choices: <-Back, Review and Next->. Once you have made your selections for president and senator, you may review your choices, go back to the main screen, or move on to the next issue on the ballot. For this practice ballot, the next issue was this ballot initiative:
Should the people of Nevada adopt the Constitution of the United States of America?
I chose Yes and then moved on to the next page. This page was a summary of my choices, listing each choice I selected in order. I had the options to Review or Continue. I chose Continue, which took me to a page with a large area in the middle that said Print and Review Paper Ballot - below this box were two smaller boxes. One read "Cast Ballot" and the other read "Change Selections." I printed my ballot for review. The printout scrolls out on a strip of paper on the left side of the machine - kinda like a receipt printout at the grocery store. I made sure that my selections were accurately displayed - they were. Just to play around with the machine, I selected "Change Selections" and then a large "VOIDED" printed out below my paper ballot and the whole thing scrolled into the back of the machine. I did not make any changes to my selections and was directed back to the Review page. From there I selected "Cast Ballot" - my ballot printed out on the paper, scrolled into the back of the machine, the screen displayed a message telling me that my vote was recorded, and the machine spit out the voting card. I turned the card in to the secretary and that was it. Very simple instructions, large and easy to read print, and a paper trail. It was a easy to use as any voting method I've used before. There were three people waiting to try out the machine when I was done, which I think is encouraging. People are interested in voting, they want to do it right, and they want their votes to count. Of course, out here they are just as likely to vote for the America First or the American Independent Party or Kodos as for any reasonable candidate, but they still want their votes to count. After my trial run today, I'm reasonably confident that their votes will be cast and tallied correctly.

You can watch a video demo of the voting machine here.

Dedicated to the One I Love
So I finally figured out how to get the speakers on my new computer to work, and I've been downloading some music. (Note that none of this should be construed as an admission that I'm violating copyright.) I may have some more general thoughts soon about the music I've been listening to, but for now one observation.

I think I have a new ultimate dedication song. I thought for a while about what terminology was best for what I mean, and I think "ultimate dedication song" (or "UDS") is about the best I can come up with. What I'm thinking of is the one song you most want to hear someone sing or dedicate to you. We all have those songs we can identify with, associate with, connect with -- as if it was written with you in mind. It's the reason it always seems like the radio is playing nothing but sad songs right after you break up with someone. Perhaps you relate to your miserable love life via "Oops, I Did It Again." Maybe your experience with sex and marriage is mirrored in "Paradise By the Dashboard Light." We all have those songs that jump out of the radio or CD player -- or computer speakers -- that just speak to us. It's hard to describe any better than that, but you all know what I'm talking about.

The "ultimate dedication song" takes this a step further. Instead of just being a song that could almost be about you, think about the song that makes that connection I'm talking about -- as if it were coming from the lips of the one you adore. For example, The Beatles' "She Loves You," while pathbreaking, wouldn't work because no one, in a perfect world, wants to hear that news second-hand. Basically, I'm talking about the "I Love You" song that makes you imagine your loved one singing it to you.

Now, there need to be some ground rules here. First, the song has to be cool in its own right. So Olivia Newton-John's "I Honestly Love You," while admirable as an expression of romantic feeling, wouldn't qualify because it's a dippy song. As a rule of thumb, if it gets played on adult-contemporary radio dedication shows, especially ones with names like "Love Notes," it's out. Ironically cool songs (e.g., "Superstar" as skewered in Tommy Boy) are fine, but be sure your sense of irony is honed: Air Supply isn't there yet.

Second, and most importantly, the lyrics of the song have to be appropriate to your situation. So "I Will Always Love You" is out, because it's a breakup song. (And while the Guns 'N' Roses tune, "I Used to Love Her (I Had to Kill Her)" might be an accurate rendition of your feelings, I'd like to keep this discussion happy...or at least not homicidal.) So if thinking of your significant other gives you warm fuzzy feelings about growing old together, maybe you want to hear him singing "Forever and Ever, Amen" by Randy Travis. If she makes you feel like you've lost control of your senses, maybe your song is Elvis Presley's "I Can't Help Falling in Love With You." (Note that both of these songs might fail Rule One; I used them because they came to mind easily.) I recognize that in certain circumstances, a song sung in the third person (like "She Loves You," supra) might work. But the personal and individual aspect of the UDS comes across much better in a song sung "From Me to You," to cite another Beatles tune.

Anyway, I hope it's clear what kind of song I'm talking about. And, to open things up and make sure we cover all the bases, I guess we can include the song you feel would be most appropriate if you sang it/dedicated it to that special someone. (This avoids confusion over who is singing to whom in some songs, I suppose.) And of course the sentiments can be different. When you think of Person X, the song in your head might be The Divinyls' "I Touch Myself." (I'm not here to judge.) But you might desperately crave hearing that person sing U2's "I Will Follow" to you.

I just thought of what is probably the ultimate UDS moment, and one that I bet will resonate with readers of a certain age. Think back to John Cusack, complete with boombox, playing Peter Gabriel's "In Your Eyes" in the movie Say Anything. Ladies and gentlemen, that's what I'm talking about.

So, I turn it over to you. Hell, I dedicate this post to you, dear readers. What song is your Say Anything moment, your Ultimate Dedication Song? Please tell us, via the comments function. You'll probably remind me of lots of great songs I've forgotten.

And since you're probably going to ask, I'll tell you mine. Of course, there isn't anyone who fills that dedicator role right now, so it's all mere idle fantasy. But on the other hand, I don't have to confine myself to an actual person I'm stuck with. It's my game, so my rules. I can imagine a certain someone I've adored for a long time belting out my UDS at karaoke night...or I can even imagine two special someones, for that matter. Everybody loves a duet!

I guess the first nascent musings in this line were based on The Pretenders' song "Night in My Veins." It's technically a third-person song, so it was more a wish that a certain girl was singing it about me. Part of it is the raw carnality of the song, but a lot of it was that I was picturing a certain person who looks like a much younger, much much hotter version of Chrissy Hynde singing it. I make weird song associations like that. For example, the song I most associate with my ex-girlfriend Angie is not the Rolling Stones song "Angie" (although it does remind me of her), but rather the Led Zeppelin song "Tangerine," for reasons more to do with a time I heard it with her than the lyrics.

But the specific prompt for this post was my discovery the other night of my new favorite (I know I'm targically unhip; everyone else probably knew about this song years ago). It's a song by Liz Phair, commonly abbreviated "H.W.C." (caution: dirty words therein; hint: the first two letters stand for "hot" and "white"). There are a couple of women I would especially like to hear that from, but let me tell you, folks, if an attractive, intelligent woman ever sings that song to me, well, cash in my chips because this gambler knows when to fold 'em. I wouldn't be able to draw a better hand than that.

So that's what I looking for: the song that's the song for you. I turn it over to the comments box.

(This post's title from the great song by that name, initially made famous by The Shirelles and later by The Mamas and the Papas, a rare instance where the cover is substantially better than the original -- which is saying something, because the original is a classic.)

I vant to suck your blood. And then sell it to the highest bidder.
In a characteristic display of goodwill toward my fellow man, I donated blood on Friday - two units of O+ via a machine that runs the blood through a centrifuge, separates out the red blood cells, and returns the plasma to your body. I really don't enjoy being poked with needles, and I almost always suffer some queasiness or nausea after donating. A couple of times, I have passed out after giving blood, once as I walked through the law school library on my way back to class. But I digress - the point is that I give blood because it's a good thing to do, because I am such a great human being, and especially because I am a "Type O Hero" according to the Red Cross. Best I can tell, this means that I am a universal donor (a/k/a all-around wonderful guy) and anyone can use my blood.

Did I say give? Yep, I donated blood. Until Friday, I had only given blood to the Red Cross, and my impression was that they do not sell your blood. That is certainly not the case with Universal Blood Services, the outfit that took my blood on Friday. I found out after I had been sucked dry that UBS sells the blood they collect. Uh huh, I gave it to them, and they will now sell it to a hospital or blood bank. I'm not sure how I feel about that. I suspect that they would be less successful if they made you aware prior to donating that they intended to profit from your donation. That was likely the last time I will aid UBS - unless they make me a shareholder or cut me in for a piece of the action.

Monday, October 18, 2004

To Be Twice Put In Jeopardy
Over at the Conspiracy, Orin Kerr notes a story about a recent Massachusetts case in which the judge granted a Rule 29 motion after the close of the Government's case. For the uninitiated, Rule 29 of the Federal Rules of Criminal Procedure is the mechanism for the trial judge to decide the case before it ever gets to the jury, by ruling that the prosecution hasn't -- indeed, cannot -- meet its burden of proof. It is generally invoked pro forma by defense counsel, because you can waive certain arguments if you don't make a Rule 29 motion. But it's fairly rare to get them granted.

Prof. Kerr also points to an upcoming Supreme Court argument in a case testing the limits of Rule 29, which looks quite interesting.

As the Professor says, Rule 29 acquittals irritate both prosecutors and jurors: prosecutors because they are (generally) unreviewable on appeal (thanks to the Double Jeopardy clause, quoted in this post's title); and jurors because they see it as a waste of their time and a usurpation of their duty.

At least in the Massachusetts case, the Government was allowed to present all of its case before the judge decided that the evidence wasn't sufficient. In the hugely controversial health care fraud prosecution of former Alabama Governor Don Siegelman, the judge didn't even let prosecutors get that far. The judge tossed the case, finding based on what he heard at a pre-trial hearing that the Government couldn't meet its burden. (See here for a news story about this. Presumably, the opinion will eventually be posted here.) But instead of ruling after the pre-trial hearing and before trial started, the judge waited until the jury was sworn (and jeopardy attached) to make his decision. Thus, the Government never got to put on its case, the jury never got to hear it, and it can't be appealed.

[Aside: It's not clear from the news story whether this is a Rule 29 case. The judge excluded some evidence, and without that evidence the Government couldn't convict. But I can't tell if it was a Government motion to drop the charges, or a defense motion, that finally ended the case. In either event, the end result is the same, and the same principles apply as in the Rule 29 context in the Massachusetts case. I'll try to remember to read the opinion when I can, and update the post.]

Naturally, the U.S. Attorney's Office prosecuting Siegelman is pretty steamed about what the judge did. Note also that the Government moved to recuse this judge (the fifth to get the case!), alleging ties to Siegelman, but the judge refused. See 2004 WL 1982513. Now, though, it's finally all over and Siegelman is free to run for Governor again. (Possibly against Roy Moore? Imagine the slogans: "The Crook vs. The Crackpot!" "Mr. Health Care Fraud vs. Mr. Acknowledgin' God!" I bet the citizens of Alabama wished double jeopardy applied to having to put up with those two again.) It's almost as if Alabama has an inferiority complex about the messiness of its political system, and is trying to outdo Louisiana or something.

"Keyes Says Incest Awaits Kids of Gays"
That's the headline in this story from the Chicago Sun-Times. In case you don't remember, Alan Keyes is running for the Senate in Illinois. Apparently, the only way he can make the news is to say stuff like this. His "argument" is that children of gay people won't know their biological relatives, and thus incest is "inevitable."

I won't even hazard a guess at the incredible odds against two people having sex, only to find out they're related. And I won't venture into whether it's better to find out or not. (This reminds me of an urban legend I heard once about a drunk girl at her brother's frat party, but that's for another time.)

But by Keyes's logic, we should ban adoption, too. After all, adopted kids don't know whether they have biological siblings, and so any sex is potentially incestuous. And even without siblings, there's always the danger of running into one's biological mother or father.

I don't think that's a reductio ad absurdum, either. That conclusion would be that we should ban all sex, because we can't know if our parents might have fathered (or mothered) an illegitimate sibling we might end up dating. (Call it the Lone Star theory -- oops, sorry for the spoiler.)

My desire to avoid improper electioneering prevents me from saying much more about how I feel about this moron and his argument. I will note that polls from Illinois make it pretty clear we won't have to worry about a Senator Keyes, though. I'll let you decide whether that's good or bad, but my guess is that people who are pro-sex will be relieved.

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    The views presented here are personal and in no way reflect the view of my employer. In addition, while legal issues are discussed here from time to time, what you read at BTQ is not legal advice. I am a lawyer, but I am not your lawyer. If you need legal advice, then go see another lawyer.

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