Begging The Question

Friday, April 01, 2005

An Announcement
To our readers,
I regret to say that for personal reasons I have to stop blogging. There's a long story behind it that I can't get into. I'm doing okay. I'm just not going to be able to blog.

This has been a very difficult decision to make, and I'm not going to make it any tougher by getting into a bunch of sappy goodbyes and windy proclamations about everything this has meant to me. Be assured, however, that I am very thankful for the connections I've made through this blog. I should be able to keep in touch via email, so feel free to contact me either through our main email address or my personal email address if you don't want Fitz to read it.

I don't know how long this is going to last. The best case scenario is that it will be merely a brief hiatus. I'm hoping that will prove to be true, but I just can't say for sure right now.

I also hope you will continue to visit BTQ, for several reasons. First, Fitz's contributions are always worth it, and while he's been extremely busy of late, that won't last forever. Second, perhaps occasional guest-blogger Sebastian will make an appearance. Third, depending on how things work out with me, I might be able to come back sooner rather than later. And finally, maybe I'll just get Fitz to publish my emails to him, so you wouldn't really be missing me at all. Oh, and I guess I shouldn't discount the possibility that some people out there might actually prefer a Milbarge-less blog. Well, happy day to them.

Anyway, do keep in touch, do keep checking this site, do keep an eye out for me in your comments and email, do wish me well, and be well yourselves. I'm sure that tomorrow I'll think of the perfectly witty way to end this, but now I'll just say, Till we meet again....

Sincerely,
Milbarge





Now?!? You're blameshifting now?!?
Sitting here working on an amendment to a controversial bill I drafted earlier this year, I got to thinking about the Schiavo case and the idea of "activist judges." No, this is not a post about Terri Schiavo, but this post was prompted by the claims in the last few days, advanced chiefly by Tom Delay and Sean Hannity that, through its rulings in the Terri Schiavo litigation, an "arrogant, out of control judiciary" in the form of the judges of the 11th Circuit has "thumbed its nose" at the Congress and the President, that the intent of the American people was "dismissed as meaningless" by activist judges. I only skimmed the federal decisions in the case, so I don't offer this as a analysis of the Schiavo opinions. Rather, I'd like to offer some general observations colored by my experience drafting legislation and watching courts interpret that legislation.

The law that was intended to provide Terri Schiavo with a de novo hearing before a federal trial judge obviously failed to produce that intended outcome. Delay and others blame the judiciary for failing to follow the law. Essentially, the argument made is, "The law was so clear, the intent behind the law was so obvious, that only a fool (or an activist judge who hates life and liberty) could have denied Terri's appeal." Frankly, I'm not convinced that the blame lies with the judges.

First, let me state that I reject out of hand the notion that as a matter of course federal judges willfully ignore the language of the law. In my experience, nothing pleases a judge more than to be able to look at a statute or regulation and know that there is but one clear interpretation that may be given to the law. It makes a judge's job easy. There are undoubtedly exceptions where judges will see clear language and ignore it, but one must have a low opinion of the federal judiciary to truly believe that such a situation is common to any judge, let alone the entire of Article III. Again, I'm not saying it never happens, but I have not seen evidence to suggest that rule by judicial whim is the norm.

However, I have seen much evidence to suggest that with legislation, poor drafting is the rule rather than the exception. And poorly written laws will inevitably lead to interpretations of those laws that are at odds with the intent of the legislative body. I think it is reasonable to place blame here, if blame must be placed, for the outcome in the federal litigation in the Schiavo case (indeed in many other cases, too).

Lawyers and law students are familiar with the canons of statutory construction - the rules by which the language of a law is interpreted and meaning is given to that language. Chief among the rules of statutory construction is the idea that if the words of the statute have a definite and ordinary meaning, the courts will not look beyond the plain language of the statute. That is to say, that if the words are clear, then the court will look only to the words of the statute to understand how to interpret the statute. Ideally, this is the step at which statutory construction would end. Each statute would be clear on its face and susceptible of only a single interpretation - an interpretation that captures the intent of the legislature and produces the effect intended - and the courts would apply that single interpretation.

Of course, the words in a statute cannot always be read as clear, unambiguous and capable of only one sensible interpretation. Often, the language is ambiguous. Thus comes into play another canon of construction, that if a statute is ambiguous, the court must construe its provisions to give meaning to all of the language and should read each sentence, phrase, and word to render it meaningful within the context of the purpose of the legislation. In so doing, the court will focus on the intent of the legislature, which can sometimes be discerned through an examination of the context and spirit of the statute in question, together with the subject matter and policy involved. When judges are compelled to look past the language of the statute in order to make sense of the law, we know two things: (1) that somewhere in the process of drafting the bill there was a failure, and (2) that the door has been opened for "judicial activism."

Still, it is not always possible to craft a statute that is absolutely clear, and the canons of construction are more like guidelines than actual rules. No matter how clear the language of a statute, a judge may still choose to ignore it. By and large, though, if a statute is well-written, if the language is chosen carefully and crafted tightly, then the legislature can do much to limit the discretion of judges in interpreting the law. The tighter the language, the more control the legislature exerts over the judiciary, and conversely, the looser the language the more discretion is ceded by the legislature to judges.

As I wrote above, I think that judicial "nose thumbing" is the least likely cause of the result in the Schiavo litigation. True, it is an easy argument to make, and for the Delays and the Hannitys of the world nothing comes more natural than beating up on the judiciary. It fits the mantra and the talking points on "activist (read "liberal") judges" - if one ignores the fact that Bush appointees sided against Ms. Schiavo, opposed by a Clinton appointee - but it requires a level of cynicism that I cannot muster. Likewise, I would like to reject the notion that Congress knew that the bill would not provide any relief to Terri, and that this whole fiasco was just a way for congressmen to grandstand for Terri while approving a piece of legislation that they knew would accomplish nothing.

No, instead I think that the result in this case came about through poor drafting. It's the simplest answer and it doesn't require acquiring a jaundiced view of the judges of the 11th Circuit. Congress intended one result but got another because the language of the law didn't match the language of the sound bites. Precise drafting, careful word choice, and attention to detail such that the language of the statute dictates but one result - a result that reflected the intent of Congress - should be within the capabilities of the congressional bill drafters. Yes, this was a rush job. Yes, this law had to fit within the existing framework of laws governing appeals to the federal bench. But even under those constraints, there is little doubt in my mind that capable drafting could have produced a bill that mandated the result intended by Congress, without any regard given to the intent of Congress as expressed outside of the statute. Granted, federal law is rarely a model of clarity and precision, but custom is not a defense.

This post is perhaps a little disjointed, and my ideas are not quite fully formed, but I wanted to put this out there before the pace at work picked up and my time to blog vanished. I may make some changes to this post over the next day or two, and if I do I will mark those changes. As always, I appreciate any comments you might have.





Friday Spies
1. Have you ever been in a car wreck?

Not a significant one. One time I was backing out of a spot at a convenience store and a woman pulled into the spot beside mine as I was turning, and my bumper crunched her plastic Saturn fender; no real damage. I think it was her fault because she ought to have realized that in backing out of the spot, I was about to occupy the space she was going for, and if she had waited ten seconds, nothing would have happened. (To use basketball lingo, it was a block, not a charge.) Still, we had the same insurance company, so we never had to fuss over it. Also, one time I was backing out of a friend's driveway when I took the turn a little wide and a mailbox went through my back windshield (I was in my old station wagon). Both of those happened when I was pretty new to driving, maybe even still 16. Since then, a close call or two but not even a ding (knock wood), although my Dad was in a wreck driving my car a few years ago.

2. Sunrise or sunset?

I'm going to have to say sunset. I think I'm naturally nocturnal, so I don't mind when the sun goes down. If I see the sunrise, it usually means I've been up all night, and the darn thing keeps me awake.

3. If you could change, amend, delete, or pass one law, what would it be?

I would amend Article III of the Constitution to provide that "the judicial power of the United States shall be vested" in me.

4. What is your favorite single article of clothing?

For something that I can wear anytime, I think it's my Land's End blue stripe oxford shirt. Overall, I think it might be a Brooks Brothers wool jacket I have for when I want to look nice in the cold weather (nicer than my everyday winter coat I've had literally since high school) but not worth dealing with my long overcoat. It's incredibly impractical (I only wear it for cold and dressy, but not too dressy, occasions), but it was a steal when I found it and it's a lovely garment.

5. If you could/had to spend the day hanging out with another blogger
(one you don't already know), who would it be and what would you do?


I would go sailing with Scheherazade.



Thursday, March 31, 2005

"King of the Hill" Quote of the Day
Hank: "Bobby, only jackasses go around saying how much money they make."
Bobby: "What are you talking about? Julia Roberts makes $20 million a picture. Are you calling America's sweetheart a jackass?"
Hank: "It's just vulgar, Bobby. The amount of money a man makes is between him and the professionals down at the H&R Block."

Hank: "My boy asked me how much money I make."
Bill: "The nerve!"
Dale: "The less kids know about money, the less likely they are to rat you out under pressure of a Federal investigation."





I feel so full of... what's the opposite of shame?
F&D wants to hear about my most embarrassing moment. This is a tough one, because I don't embarrass easily. I was a male cheerleader for crying out loud. Once you've danced in front of your entire high school to the tune of House of Pain's "Jump Around" you've pretty much hit rock bottom. Anything else, short of some real-life Farrelly brothers gag, just isn't that bad.

However, if we're talking about shame then I've got one for you. Generally speaking, shame is, in my mind anyway, the same feeling as embarrassment, only shame is felt after the fact while embarrassment is contemporaneous with the act. I once interviewed with a law firm in Albuquerque, and throughout the interview and lunch (both of which featured women attorneys in prominent roles) my fly was down. Now, had I been made aware of this fact during the interview or lunch, then I would have been embarrassed. But the fact that I didn't learn about my fly until after the interview to me means that what I felt was shame. There were no witnesses to my realization of my wardrobe malfunction, hence no one to be embarrassed in front of. And actually, upon writing this, perhaps it is not the time frame that distinguishes embarrassment from shame, but it is that embarrassment is a form of humiliation that requires an audience while shame does not. Either way, doing a day's worth of interviewing with your zipper down is not something I would advocate. I suppose it could have been worse. At least I wasn't going commando that day - even though that might have helped my job prospects.





Farewell and adieu to you fair Spanish ladies.
Some time ago, stag asked Milbarge and me for stories about our scars. I have so many to choose from that, in the end, I decided to write about three of my scars: the most painful, the most prominent, and the most dramatic.

My most painful scar was given to me by my dad. When I was about 4 years old, my family had a purple Datsun station wagon. One Sunday morning, I was slow getting ready for church. My dad was outside, milling around outside the car and calling for me to "Hurry up or we'll be late for church!" I finished whatever it was I was going and ran out to the car. My dad saw me leap off the porch and make for the car. He then turned to the car to open the door for me. At the precise moment when the arc of the door reached its maximum, I too reached that point. Smack! Two hits. The door hitting me, and me hitting the ground. Out. Like. A. Light. I caught a corner of the door in the middle of my forehead. Of course I was bleeding, and of course we were late for church. My dad carried me into the house and my mom administered first aid. A couple of butterfly strips and a dose of bactine later we were on our way to church. We missed Sunday school but got there in time for the worship service. I don't remember the sermon, really. Maybe something about Abraham and Isaac.

This scar was the most painful, not because my dad did it, but because it just flat out hurt. Besides the pain of the door, I got the bonus pain of hitting my head on the ground. And, on top of all that, very little in the way of sympathy at the time of the initial injury because we could not be risk being late for church. I guess my dad wasn't sure if Jesus would understand our tardiness. If I had to guess, I'd say the Lord would probably have cared more about my Dad's decision to buy a Datsun rather than our missing one day of church because of my traumatic head injury, but I'm no biblical scholar.

My most prominent scar is 3-inch smiley-faced shaped gash over my left knee. I got that beauty from a wakeboarding accident. Before law school I worked at a scuba & ski shop, and one of the perks of the job was taking the owner's boat out to the lake on our days off. On one trip to the lake, I won the coin toss with my buddy Ed and got to hit the water first. On this particular day, we were trying out some custom fins handmade by a local skiing guru - he called them "shark fins" because of their shapes. I was eager to see how the carbon fiber fins compared to the standard fins mass produced by the wakeboard companies. Well, I was having a decent run for the first pass. No big tricks or anything, just getting warmed up. Well, once I felt warmed up, I pulled out away from the boat, then edged into the wake for a back roll. I landed the trick, but caught the edge of my board and took a tumble into the water. Both of my feet came out of the bindings and I felt a sharp pain in my knee. Eh, probably twisted the knee a little when I hit the water. Or so I thought. As the boat circled around to pick me up, I put my right foot back into the bindings and started to push my left foot into the boot when my knee opened up and sprayed blood everywhere. A huge flap of skin about 3 inches by 3 inches had been laid open and the cut was deep. Blood was really starting to pour out, and I signaled Ed to help me get into the boat. By the time the boat reached me, the water around my leg was pink with blood. When Ed and my wife (then girlfriend) saw my knee they started freaking out. I wrapped my t-shirt around the knee and Ed sped me back to the dock. My wife helped me hobble to the truck and drove me the 45 minutes to the ER. Once there, the nurse cleaned out the wound and a doctor closed the wound with staples. They came out about a month later. At first I thought I cut my knee on a piece of submerged debris, or maybe the edge of my board, but at work the day after the incident, Ed pointed out that my wound was shaped exactly like the fins on my wakeboard. Better to be attacked by a fin than by a whole shark, I suppose.

My most dramatic scar is over my right eye, below the corner of my eyebrow. I earned that one as a toddler. On one of our many trips to my grandparents' home, I was at that stage where I was learning to pull myself up to a standing posture. Not yet walking, but trying to. Anyway, on this particular occasion, I was using my Granny's coffee table as an aide. Unfortunately, I slipped and caught the corner of my right eye socket on the corner of the table, resulting in a nice big cut. People were freaking out left and right. My Granny (an R.N., God rest her soul) and my mother tussled over who would administer first aid. My dad was worried I'd put out my eye. My Gramp didn't say a word, but he picked up the coffee table and headed out the back door, stopping by the utility room to pick up his axe. He proceeded to chop the coffee table into kindling wood. I think that's what they call "cathartic."





Coalition for Darfur: Never Again: Again and Again
In her 2001 article "Bystanders to Genocide," Pulitzer Prize winning author Samantha Power recounts how President Clinton was shocked and outraged by an article written by Philip Gourevitch recounting the horrors of the 1994 genocide in Rwanda, prompting him to send the article to his national security advisor Sandy Berger with a note scrawled in the margin reading "Is what he's saying true? How did this happen?"

After taking office, President Bush reportedly read Power's article on the Clinton administration's failure to intervene during the genocide. He too scrawled a message in the margin -- "NOT ON MY WATCH."

Yet we are now faced with another African genocide, this time in Darfur, and the United States and the rest of the world are responding exactly as they did during Rwanda -- with paralyzed inaction.

Though there are many key differences between what is taking place in Darfur and what occurred in Rwanda a decade ago, there are also many similarities.

In 1993, the world watched "Schindler's List" and wondered how such horrors could unfold and why they were not stopped. In 2004, it watched "Hotel Rwanda" and asked the same questions. In each case, those questions went unanswered.

Just as in Rwanda, the international military force on the ground in Darfur is far too small, poorly equipped and operating under an extremely limited mandate that does not allow them to protect civilians at risk.

Just as in Rwanda, the genocide is taking place against a backdrop of "civil war," leading the international community to focus more on establishing a cease-fire than protecting those being killed.

Just as in Rwanda, the death toll is nearly impossible to determine.

Just as in Rwanda, the United Nations is more or less paralyzed as individual nations seek to protect their own national interests rather than helpless men, women and children.

Just as in Rwanda, media coverage is almost nonexistent, Congress is all but silent, and the human rights community is having difficulty get the nation to pay attention to a genocide in progress.

Just as in Rwanda, a genocide is unfolding - but this time it is happening on our watch.

We ask you to join the Coalition for Darfur as we attempt to raise awareness of the genocide in Darfur and raise money for the live saving work Save the Children is doing there.

Also, visit the Aegis Trust web site and watch their short film "Not on My Watch."



Wednesday, March 30, 2005

"King of the Hill" Quote of the Day
Hank, interviewing a job applicant: "Mr. Harrington, you seem to have a few gaps here in your work history."
Mr. Harrington: "Well, '33 to '45, F.D.R. was in the White House, so I was on the welfare. And in the '60s, you had Kennedy and L.B.J., so I was on the welfare. And then from '77 to '81, Jimmy Carter, so I was on the welfare."





A Question About Race and Precedent
I had a question today I was hoping someone could help me with. It all started when I was thinking about back when minorities couldn't sue or testify against whites. The basic deal was that they were considered incompetent to testify for all sorts of racist reasons. Naturally, there was no problem if whites wanted to testify against minorities. However, minorities were generally able to sue and testify against each other without any need to declare them incompetent, since presumably the rights of white folks wouldn't be harmed. This kind of thing was nominally outlawed by the Civil War Amendments and the post-War Civil Rights Act, but persisted in a lot of places for long after. Of course, in practice, even today some people apply a racist viewpoint when assessing witnesses.

So what I was wondering is, What happened on appeal? Assuming the ordinary rules of precedent and stare decisis applied, what happened when one of those minorities-only cases went up on appeal? ("Minority-only" is shorthand for suits between minorities or cases where the witnesses were minorities testifying against minorities; in other words, cases that wouldn't have been made if one party was white.) I'm sure there weren't many disputes between minorities that were appealed, but there were surely some. And, there would undoubtedly have been a few criminal cases against minorities that found their way to the appellate courts.

If that's the case, what was the value of those precedents? Did a rule, say, defining the elements of a crime or the scope of contract or tort liability bind later cases involving whites? Or were the minorities-only cases distinguishable on that basis alone? I would think the answer would be no, because the rule against minorities went more to the quantum of proof required to satisfy the standard elements. That is, if the law (established in either a white case or a minorities case) is that the elements of a crime are x, y, and z, then applying the bar would make the case no different than if you just didn't have a witness for element x, or tried to establish it via Ouija board or something else that would have seemed just as crazy as they thought having minorities testifying against whites was. The minorities-incompetent rule was essentially a rule of evidence. In that case, minorities-only precedent could well apply to white cases.

On the other hand, the law was pretty explicit in spelling out the bar, and was applied broadly. See, e.g. People v. Hall, 4 Cal. 399 (1854) (applying statute barring blacks or Indians from testifying against whites to Asians as well) (note my surprise that the trial court admitted the testimony in the first place). So maybe a court would have found it an "anomalous spectacle" to give minorities "not only the right to swear away the life of a citizen, but the further privilege of participating with us in administering the affairs of our government." Id. at 405. Taken that way, the ban on minorities is really more about participation and subjugation, and it wouldn't be unlikely for a court with that attitude to apply the ban on appeal as well.

Anyway, that was just a thought that crossed my mind today. I don't really have the time to look for an answer, so if someone has one, I'd love to hear it.



Tuesday, March 29, 2005

Beat It
Not only have I not been paying attention to the ongoing Michael Jackson trial, I have been actively avoiding coverage of it. The phrase "couldn't care less" barely captures the magnitude of my not caring. But last week, trying to kill a little time, I clicked onto slate's dispatches from the trial. There's some really funny and weird stuff in there. To wit:
There were also a couple of titles that referred to specific age categories. For instance, there were issues of Barely Legal. And there was also a separate magazine called Just Legal. And a third magazine -- I'm not making this up -- called Finally Legal. (This niche is clearly booming. I'm thinking I may launch a few titles myself. So far I've come up with At Last, Legal and Not Illegal -- But Only by the Very Slimmest of Margins.)

There were two other age-based magazines: 44 Plus and Over 50 (cover line: "Bambi Joins the Swing/Swap Lifestyle at Age 53"). I must say, it puzzled me that the prosecution would include these in the evidence. This case rests on whether Michael is sexually attracted to preadolescent boys. Yet these magazines suggest that he's way into older ladies. What gives?

Ah, OK, here comes the little-boy-related evidence: Apparently, detectives discovered a framed photograph of Macaulay Culkin displayed "on a piece of furniture in Mr. Jackson's bathroom."

Now, I also have a framed photo of Macaulay Culkin in my bathroom, so this, in itself, did not strike me as particularly odd, but -- Kidding! Is it just me, or is this off-the-charts bizarre? There was also some writing on the photograph, but we've not yet been told what it says. And here's the kicker: In Jackson's bedroom closet, next to a bottle of Jack Daniels, they found what appears to be (this is my own assessment, based on the evidence photo) a Macaulay Culkin doll from the Home Alone days, still in its original box. Freaky-deaky.
Based on the stuff in those pages (admittedly not a full picture of the trial), it seems hard to imagine a jury would let Jacko go. I'm not advocating convicting someone just because he's weird, but we all know it happens.

And then I saw this "Rolling Stone" piece about the trial from reporter Matt Taibbi. (It appears that Taibbi is a little strange himself, but not in the same way, of course.) There's some funny and weird stuff in there, too. (Best line: Calling the prosecutor "a splotchy-faced doughy man whose body could only look good on an autopsy table.") I'm telling you, the testimony in this Jackson trial makes Happiness look like a Hallmark Hall of Fame picture. It's hard to imagine that anyone who hears it is able to hold down lunch.

But, the "RS" story also notes how well Jackson's defense attorney is doing, and how he tore the accuser apart during cross-examination. That's the kind of things that will stick with a jury, regardless of how many child-sized sex dolls it sees. Also, the story has a concise outline of the state's case. Now, since I hadn't been paying attention, I had just assumed it was a straightforward kind of thing about how Jackson had molested the kid, and then went on a video and called sleeping with kids normal and what-all, and here we are. But it's more complex -- and hence harder to buy -- than that:
The prosecution's case, seldom satisfactorily explained in the mainstream media, goes as follows. On February 6th, 2003, the Bashir documentary, in which Jackson is seen admitting that he sleeps in his bedroom with young boys, is shown on British TV. Among the children who appear in the video is his accuser in this case, a thirteen-year-old cancer survivor who had been introduced to Jackson during his chemotherapy treatments several years before.

According to the prosecution, Jackson had not molested the boy at the time the Bashir documentary aired, but he was sufficiently concerned that the boy might make such allegations that he and a band of Neverland courtiers entered into an elaborate conspiracy to "falsely imprison" the boy and his family for nearly five weeks (in luxury hotels, at Neverland ranch and other places), during which time they coerced the family into denying, on camera, that anything untoward had ever happened between Jackson and the boy.

[snip]

At any rate, it was only after the filming of this so-called rebuttal video -- which, incidentally, Jackson then sold to the Fox Network for $3 million -- and after authorities had begun an investigation into Jackson's relationship with the boy, that Jackson allegedly molested the child, in early March.

The prosecution's case therefore boils down to this: In a panic over negative publicity, Jackson conspires to kidnap a boy and force him to deny acts of molestation that in fact never happened, and then he gets over his panic just long enough to actually molest the child at the very moment when the whole world is watching.
Huzzuh? Whazzat? Does that make sense to anyone? Maybe we're in some bizarro world (quite possible) where it's easier to believe that Jackson did something that crazy just because he's Michael Crazy Jackson. I understand that the prosecution has to work with the timeline it's been given, but it's going to have a heck of a time spinning that yarn for the jury.

The latest, of course, is that the trial judge is allowing testimony regarding previous allegations of molestation against Jackson. (Note to CNN: Please don't start any more headlines with "In blow to Jackson...." Thank you.) I can't offer any legal analysis on this circus beyons saying that everything appears incredibly freakin' weird. If the jury convicts, credit lurid evidence from Neverland's bathrooms and those prior accusations. If the jury acquits, credit a strong cross of the accuser and the state's convoluted case. Either way, don't be surprised. Well, anyway, I feel like I need to wear one of those biohazard suits just to be typing this, so I'm now going to stop paying attention again. Wake me for the verdict.





All-Request Week: Is Batman a Superhero?
Frequent commenter and occasional guest-blogger Sebastian asks me to weigh in on a debate he and the Mrs. are having: Is Batman a superhero? My gut reaction was to say no, because he doesn't have any special powers like the power of flight or invisibility. And he's not any stronger than a normal guy (could be) without his suit. Batman has a lot of fancy gadgets and pimped-out car and house and the manservant and the Boy Wonder and the Elephant Man's bones and ... woops, wrong dude.

Anyway, maybe the definition of superhero is based on form. That is, does the superhero have some categorical difference from normal humans? Whether it's inborn (like the X-Men, who are born mutants) or after-acquired (like Spiderman or the Hulk, who attained their powers by accident), the argument is that there's something in the DNA of superheros that sets them apart. The problem with this definition is not only that it excludes Batman, but maybe also Superman. The Caped Crusader, recall, was Average Joe on Krypton, but his transplantation to Earth made him the shizznit. It's like Billy Madison playing dodgeball against third-graders. Billy Madison wasn't a superhero; he was just the biggest guy in the room. Now, one may of course counter that whatever Kryptonian voodoo made Superman so special was enough of a categorical distinction from humans on Earth as to qualify Superman as a superhero. But if the definition is one of form, how can superhero status depend on place? If baby Superman's little rocket had gone off course and crashed into some other planet, Superman might well have been Waterboy. If you're drawing a bright line based on something genetic, you can't be a superhero on Mondays, Wednesdays, and Fridays only. Either you are a superhero at all times, in all places, or you aren't a superhero at all. You see, this is like one of Eugene Volokh's "test suites." If you have a definition of "superhero" that excludes Superman, I would argue that definition is flawed.

So, is the definition of superhero one of function? Is anyone a superhero if he or she undertakes the duties of one and holds oneself out to be one? I suppose we can all agree on the primary role for superheros: crime fighter. But is that the only role, and only goal? Is that just necessary, or is it sufficient, to being a superhero? And is it an appellation one can bestow upon oneself, or does the moniker have to be granted by a grateful populace? Can one be an inchoate superhero -- you have the suit and the tools and everything, and are ready at a moment's notice, but what if the call never comes? Is there some minimum rescue quota whereupon you graduate from plain old "hero" to "superhero"? If your definition of "superhero" is functional, that requires an analysis of the role. Moreover, it would exclude the genetic superhero who chooses not to use his or her powers -- inborn qualities wouldn't matter if the potential superhero doesn't act on those abilities. Still, it would include Batman and Superman, who both undeniably fulfill the function of superheros.

How to choose between form and function? Maybe you're more of a bright-line absolutist and like the categorical definition, with or without the Earth-only caveat to include Superman. Maybe the looser functional approach appeals to you because it means that anybody could be a superhero if he or she dedicated his or her life to it -- even Batman or even...You! Maybe that's the secret: Your definition depends on whether you want to be a superhero and whether you think that's possible. (Listen to the "flight vs. invisibility" story linked above for more on ego, personality, and super powers.) If you want to maintain the notion (read: fantasy) that all you have to do is get off the couch, tuck a towel into the back of your shirt collar, put underwear on outside your pants, go fight crime, and shazam! you could be a superhero, well, then Batman is one too. Knowing Sebastian as I do, I'm not surprised that he thinks Batman is a superhero. I would suggest, however, that Seb's real super power is landing a woman who is willing to debate this with him. Nice going, and tuck this post into your utility belt for the next time you have this argument.





ALL-REQUEST WEEK & Friday Spies
I'm trying to clear a case from my desk, and Fitz is so busy that he refers to a 12-hour workday as "a leisurely Sunday," so we haven't been doing a lot of posting. Plus, I haven't seen much worth yammering about. So, I'm putting that burden on you and declaring another ALL-REQUEST WEEK. Send us your requests and suggestions, and we'll see how many we feel able to or comfortable talking about. It's like a lottery where everybody wins! And, the more requests we get from you, the less likely you are to hear about my latest existential crisis. Again, everybody wins!

In other news, thanks to everyone who participated in the most recent round of "Friday Spies." If time allows, I will try to gather links to all your posts. Everyone is welcome to answer the questions we post, but for the convenience of both of us, send an email to us to get on the list. That will make it easier for you to get the questions without having to wait on someone to post answers, and it will make it a lot easier for us to find (and link to) all the answer posts. If you're already on the list, don't do anything. A new set of questions will go out every Thursday evening.





"King of the Hill" Quote of the Day
Bill: "Well, I'm just going to come right out and say it, Dale: Something seems different about you." (Note that Dale is wearing a loin cloth and headdress.)
Dale: "Something is different, Bill! I had a vision. I'm an Indian now!"
Bill: "Oh."
Dale: "I always wondered why I hated the federal government and loved tobacco with such passion. But now it all makes sense!"
Hank: "Okay, time out, Sitting Jackass. Have you looked in the mirror lately? You are the gotdang whitest person I've ever seen."
Dale: "I am the albino buffalo. Deal with it."



Monday, March 28, 2005

News and Notes from Here and There
Dateline: Canyon Lake, Texas. An interesting story in the L.A. Times about Tom DeLay's own end-of-life decision when his father was critically injured in a freak accident. (Link via How Appealing.) I'm not trying to make a point here other than to say these are always sad cases.

Dateline: Sacramento. Lawmakers in California are greasing their muscles and chalking their gloves and popping their steroids as they gird for battle against Gov. Arnold Schwarzenegger. This Washington Post story would certainly give that impression, anyway. If you took a shot every time you read the word "battle," you'd be over the legal limit by the time you finished the piece. Not to mention the "contests," "defyings," "challengings," and, running out of euphemisms, "at wars" in the article. It would seem that things are a bit testy in the Golden State. Woops, back to steroids -- sorry about the "bit testy." For an article suggesting that compromises may yet occur, see here.

Dateline: Austin and Houston. From the Irony Department. An article saying that new crime bills before the Texas legislature might have the effect of greatly increasing the prison population. Meanwhile, according to this article, the cost-saving measure of cutting out overtime pay for prison guards has drastically reduced staffing levels as turnover rates soar.

Morgan City, Louisiana. Also from the Irony Department. A Louisiana representative is pushing a bill that would mandate reporting of infection rates at hospitals. A worthy goal, I'm sure. But the lede of this story made me chuckle:
Three years ago, as Butch Gautreaux was slipping under the anesthesia for an operation that would last nearly five hours, the Democratic state senator from Morgan City had these words for the operating-room crew: "Everybody had better be clean."
Hmm. A Louisiana lawmaker exhorting clean dealings. (Okay, this is a joke; I'm sure Sen. Gautreaux is a regular Mr. Smith gone to Baton Rouge, but it's still funny.)

Dateline: Lansing. From the This-is-what-you-get-when-you-elect-a-Canadian Department. According to this story, Michigan Gov. Jennifer Granholm is close to settling a deal that would land a Toyota plant in Michigan, the first foreign automaker to invade the turf of the Big Three. I've driven a Chevy and two Toyotas, and there's a reason I didn't go back to Chevy. Of course, I'm sure Michael Moore will have something to say about this. Trust me, I won't be reporting whatever that is.

Dateline: Richmond. Virginia lawmakers plan to institute evaluation forms for that state's judges, which are elected by the legislature. The surveys will go to lawyers, jurors, and retired judges and will ask about the "judges' demeanor on the bench, the quality of their explanations of opinions and their 'professional behavior,' among other criteria." I don't think this is a terrible idea so long as the evaluations are but one factor in the decision to retain a judge. This is the kind of thing that is easily misused, though -- it makes for a nice objective, quantifiable reason to oppose a judge you just don't like (or disagree with), but is easily overlooked as "not dispositive" if you're otherwise eager to re-elect the jurist. Still, if the surveys are made available to the judges well before re-election time, they could be useful tools in changing bad behavior. I also hope that lawyers and other judges understand that not every opinion needs a lengthy exegesis, and that busy judges won't be docked for omitting pointless reiterations of clearly controlling case law.

Dateline: Madison, Wisconsin and Logan, Utah. According to this article, several University of Wisconsin faculty members have left the school recently because the state does not provide benefits to same-sex domestic partners. Maybe they'll land at Utah State University, where officials are considering approving domestic partner benefits. I guess it just goes to show that red state, blue state, whatever...the only color that matters is green.

Dateline: Knoxville, Tennessee. Prison officials in Tennessee are dealing with a new type of contraband: cell phones. They have confiscated hundreds of them in the past couple of years. My favorite part of this story is this delicate bit of wordsmithing: "The phones are being smuggled into corrections facilities through a variety of 'creative and crafty ways,' she said. Random searches are conducted, but the phones sometimes are taped to and inserted in places where they wouldn't be located during a pat-down."



Recent Posts

  • This blog has moved
  • ThunderCats!
  • Under Construction
  • The real question: Why am I reading this?
  • If I had my way, I would tear this whole building ...
  • Good enough for government work
  • The Me Decade (for the right price)
  • Cautiously Optimistic About 2010
  • 50 Book Challenge
  • Read something I wrote somewhere else!


  • Milbarge's links

    How Appealing
    Volokh Conspiracy
    Crescat Sententia
    Sugar, Mr. Poon?
    SCOTUSblog
    E. McPan
    Southern Appeal
    Stay of Execution
    S.W. Va. Law Blog
    CrimLaw
    Sentencing L&P
    Begging to Differ
    Prettier Than Napoleon
    Favorable Dicta
    The Yin Blog
    De Novo
    PG: HtSoM
    Centinel
    Hot Librarian
    Blonde Justice
    Althouse
    PrawfsBlawg
    Concurring Opinions
    Crime & Federalism
    Orin Kerr
    Is That Legal?
    Prof. Bainbridge
    Frolics & Detours
    AppellateLaw&Practice
    Right Coast
    Abstract Appeal
    Clearly Erroneous
    Fresh Pepper?
    Side Salad
    The Wishbone
    Jeremy Blachman
    Overheard/Office
    Naked Drinking Coffee
    Legally Blonde
    Legal Underground
    WSJ Law Blog
    The Slog
    Trivial Pusuits
    Still Angry
    Crooked Timber
    The Conglomerate
    Heldman: Ignatz
    Don't Let's Start
    Screaming Bean
    Heidi Bond
    Stag Blog
    Legal Quandary
    Divine Angst
    ObsessiveLawStudent
    Things Thrown
    The Imbroglio
    Signifying Nothing
    Stuart Buck
    Legal Fiction
    Under. Robes
    NRO's Corner
    New Republic
    Balkinization
    Election Law Blog
    Legal Theory Blog
    Legal Ethics Forum
    Ernie the Attorney
    Intel Dump
    Disability Law
    Bag & Baggage
    Between Lawyers
    Becker-Posner
    Lessig Blog
    Crim Prof Blog
    White Collar Crime
    Tax Prof Blog
    Grits for Breakfast
    All Deliberate Speed
    Adventures of Chester
    College Basketball Blog
    College Football News
    Nomination Nation
    Inter Alia
    Stateline
    The Note
    Wonkette
    The Onion
    Slate
    Atlantic
    RJYH: Fanopticon
    Freakonomics
    Vice Squad
    Indiana Law Blog
    Field of Schemes
    Questionable Content
    Dilbert Blog
    Toothpaste for Dinner
    Pathetic Geek Stories

    AIM: milbargebtq
    Yahoo: btqmilbarge

    Milbarge Recommends

    Chuck Klosterman IV: A Decade of Curious People and Dangerous Ideas
    Chuck Klosterman IV: A Decade of Curious People and Dangerous Ideas

    The Men Who Stare at Goats
    The Men Who Stare at Goats

    O.C.M.S.O.C.M.S.



    Site Feeds

    Subscribe with myFeedster
    Subscribe with Bloglines
    Subscribe with Feed Burner
    Subscribe with Blogstreet

    Search
    Google
    Web BTQ
    Disclaimer

    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.

    Furthermore, I reserve (and exercise) the right to edit or delete comments without provocation or warning. And just so we're clear, the third-party comments on this blog do not represent my views, nor does the existence of a comments section imply that said comments are endorsed by me.

    Technical Stuff

    Powered by Blogger
    FeedBurner.com

    Weblog Commenting by HaloScan.com

    Listed on Blogwise
    Blogarama - The Blog Directory
    Creative Commons License
    This work is licensed under a Creative Commons License.



    < A Legally Inclined Weblog >