What Role for Foreign Law?

The National Journal has an interesting column today about the role that international law should play in decisions of the Supreme Court. The author seems to argue that the Court's increasing awareness of the state of foreign law is not a good thing. While I can't disagree that a reliance on foreign law would be a bad thing, being aware of it and considering its merits surely has a place in Supreme Court analysis.

Legal authorities generally come in two forms, mandatory and persuasive. Mandatory authority binds lower courts in the system, andincludes decisions of the Supreme Court, which binds every lower court is required to follow. Persuasive authority refers to decisions from other courts, law review articles, and the like that do not require allegiance by the court deciding an issue. The West Virginia Supreme Court, for instance, is required to follow the US Supreme Court decisions about the Fourth Amendment. It is not required to follow the Ohio Supreme Court decisions about the Fourth Amendment, but may give them weight if they have a compelling analysis of the issue.

Unlike every other court in the land, the Supreme Court has no higher court to which is must be obedient. Every authority for the Supreme Court is persuasive. It may even overturn its own prior decisions, as it did this week in the Crawford case. So the Supreme Court is not really bound to follow anything. As that is the case, why not consult foreign law if their is something useful in it?

A Different Perspective on Locke, Sort Of

Recently I opined that the Supreme Court ultimately got it right in deciding Locke v. Davey. Today on Findlaw, Walter Weber takes the opposite view. That's not surprising, given his position as Senior Litigation Counsel for the American Center for Law and Justice (Pat Robertson's answer to the ACLU). What is surprising is that I generally agree with Weber that the holding in Locke is fairly narrow and shouldn't have great ramifications beyond the current case.

Album of the Day

Gentle Giant: Octopus. One of the great prog cliches is the side-long (from the LP days, kids) epic. Gentle Giant is possibly the exception that proves the cliche. None of the eight tracks on Octopus (get it?) are massive, with only "River" clocking in at over 5 minutes. What they lack in scope they more than make up for in intricate arrangements and stylistic variety. Their medieval influences come through in "Raconteur Troubadour," while tight vocal and instrumental counterpoint powers "Knots," and "Think of Me With Kindness" shows that sometimes less really is more. Brilliant stuff.

I Truly Hope This Works

Though I'm not a fan of Dubya's invasion of Iraq, I've said from the beginning that since we're there we better do things right. In that frame of mind, I really hope that the new interim Iraqi Constitution is a success. Reading through it makes me think it just might have a shot, provided the US doesn't meddle to much to get "its people" in positions of power. However, no government is better than the sum of the people at the helm, and Iraq's recent history (not to mention the rest of the Middle East) makes me somewhat wary.

This Is Why I Love Formula 1!

In the wake of this weekend's season opening Australian Grand Prix, Renault has come forward about how their drivers made such a fabulous start in light of regulations banning launch control. Only a lawyer could love it. :)

Of "Tort Reform" and "Robin Hoods"

USA Today's cover story today is all about the growing push for tort reform across the country. Specifically, the article talks about jurisdictions that are havens for big buck lawsuits which create an "unfriendly" business environment. One of those jurisdictions happens to be West Virginia. I wonder what exactly a "friendly" business environment is? Presumably it's one where businesses and out of state corporations get to do whatever the hell they want while the average citizen gets screwed. That's certainly a fair reading of West Virginia history, I'd argue. In fact, the relative poverty of these "lawsuit hells" is noted with the explanation that poor folks may be more likely to sympathize with the big payday coming to the injured person. I'm sure that's true. If you're family has worked for years in the poverty stricken coal fields of southern WV, where out of state corporations play shell games with their subsidiaries to avoid paying worker's comp dues, ignore environmental dangers and then blame "act of God" when someone is killed because of them (think Buffalo Creek, people), and generally raped the land for the profit of out of staters, then you probably don't have a lot of sympathy for those businesses. And given the fact that most people feel cut off from the electoral system, which has shown a complete reluctance to do anything about said abuses, their one chance for justice (or revenge, if you like) is when they get called for jury duty.

Maybe if businesses were friendlier to the people than the people would be friendlier in return?

Confronting the Sins of Your Ancestors

A while back in this space I mentioned the Armenian genocide that took place in Turkey during the First World War and how, to this day, the Turkish government refuses to acknowledge it. In today's New York Times is an article about a Turkish professor teaching at the University of Minnesota who is challenging his government and culture to recognize what went on nearly a century ago. The man's certainly got guts.

Album of the Day

Genesis: Three Sides Live. This live album, which contained a few studio cuts when originally released (hence it only had three live sides), basically captures the band as they were just on the verge of mega pop success. "Invisible Touch" and its ilk were still a few years away, but "Turn It On Again" and "Misunderstanding" pointed the way. Still, the band sounds really good, particularly on the older medley.

When To Use Civil Disobedience (and When Not To)

When the whole gay marriage thing broke in San Francisco, I criticized the mayor for not taking the obvious conflict between California statutory and constitutional law to the courts. He should have resolved that conflict before handing out marriage licenses. Turns out I was more right than I knew. Findlaw today has a column about a California constitutional provision that required the mayor to do just that. Article III, section 3.5 of the California Constitution requires an "administrative agency" to enforce a statute until a court says otherwise. That requires any conflicts, like the one being exploited in San Francisco, to be resolved methodically via the legal system. Which is a good thing.

Album of the Day

Genesis: Selling England by the Pound: Probably my favorite album of all time. I discover new artists and old (new to me) artists all the time that strike my fancy, but for favorite I go back to the album I used to listen to on my brother's stereo when I was a kid. An actual LP, then, believe it or not. I won't say any more, and instead point to this review of it I wrote for Ground and Sky a while back.

What Happens When You Die Online?

Remember the first time you got really involved in a video game, playing for hours on end building up your skills and your character until some unforeseen event happens and you die. You get to go back the beginning again and start from scratch. Sucks, don't it? Now, imagine you're paying a monthly fee for the pleasure of getting regularly killed in an online game. What should happen to your character? That issue is explored in this article from today's New York Times. One apparent solution is to create a world where nobody dies. Where's the fun in that? What's next? Online sports games where they don't keep score?

On to Athens!

Shortly after the US men's Olympic team crashed and burned in qualifying, the women's team yesterday stepped up and drilled the host Costa Ricans 4-0 to qualify for the Athens games. Ironically, the other CONCACAF Olympic berth went to Mexico, who upset Canada 2-1.

Marriage Is Not a Panacea

One of the recurring themes of social conservatives in the current gay marriage debate is that marriage itself is the best thing in the world - regardless of the reality of a person's actual relationship to his or her spouse. Not only is it the foundation of civilization, but you can never be truly happy if you're not a part of it (so let's deny it to homosexuals, right? Alas, I digress . . .). A new study concludes that, at least in terms of women's health, no marriage at all is better than being stuck in a miserable marriage.

That's probably just common sense to most people, but since when do the social conservatives deal in common sense?

A Glimpse Inside the Third Branch

Today the voluminous papers of Supreme Court Justice Harry Blackmun became public, five years after his death. Early review of those papers - 1500 boxes of them - contain some fascinating insight into the workings of the Court. Among the tidbits discovered so far, Roe v. Wade was nearly overturned in 1992, but a last minute vote change by Justice Anthony Kennedy in Planned Parenthood v. Casey swung the 5-4 split in favor of letting Roe stand.

The New York Times has an in depth story about Blackmun's papers the covers his entire term on the bench.

Album of the Day

Peter Gabriel: Plays Live. Gabriel's studio work leaves me cold, generally. I'm not sure if it's because it sounds too slick or too technical or what, but his live stuff is completely different. I guess the live band just has more "feel" to it. Nowhere is that more clear than when I listened to Plays Live today back to back with the fourth self titled album (aka Security). Tunes like "I Have the Touch" are stilted and rigid in the studio but are funky and really pop on stage. Such is one of the hallmarks of a true artist, I think.

Rethinking Marriage

There is an interesting article on ReasonOnline about how the furor over gay marriage may prompt a fundamental reexamination of marriage as a legal construct. Basically, it wonders if shifting thinking towards a truly private concept of marriage (it would be like any other contract) is a bad idea. I think it's worth considering, at least.

Welcome Home, Jaime!

One of my saddest moments as a DC United fan was before last season when several key players from the team's glory days sent away to make room under the salary cap. Thankfully, one appears to be on the way back as DC has regained the rights to Bolivian forward Jaime Moreno. Moreno is DC's all-time leading scorer and a vital cog in the three teams that won championships in the 90s. Maybe he can teach young Freddy a thing or two! :)

I Guess She's Never Seen Parenthood

What's worse: going down on someone and getting into an auto accident or using the BJ as a defense in your subsequent manslaughter trial? One defendant in Connecticut has confronted this issue. No further comment, just read the story.

Charleston, Ohio - I Like the Sound of That

In one of the weirdest election results from yesterday, the town of Killington, Vermont has voted to secede from the state of Vermont and join neighboring New Hampshire. Aside from the legal problems (both state legislatures have to agree to the deal), here's a geographic one - Killington is 25 miles west of the Vermont / New Hampshire border! Look at the map in the CNN.com story - it's right in the middle of the state. What's the logic in that? Why not join New York, which appears to be about the same distance to the west? How would a city in the middle of another state be set up? Berlin during the Cold War, but with better skiing, maybe?

By this logic, I think we should solve Charleston's chronic money problems by seceding from West Virginia and joining Ohio.

More Porn for the Supremes

The US Supreme Court heard oral argument yesterday in a case challenging the government's latest attempt to regulate Internet porn. The Child Online Protection Act was passed in 1998 after the Communications Decency Act was struck down by the court. COPA seeks to keep kiddies from accessing nasty content on the web, but in the process shuts off adults from a lot of stuff that is perfectly OK for adults to see and read and hear. Hopefully, the Court will follow its precedent from the CDA case that the government can't sanitize the Web just in the name of "protecting the children" and strike down COPA.

For the record, after nearly 10 years online I still don't buy into the "I just accidentally surfed into some porn" stories. You gotta look for it. It's not hard to find, but you pretty much have to make some affirmative effort to get it.

All Hail Saint Martha

OK, I'll admit to not following the Martha Stewart trial all that closely, in spite of it being a big deal media frenzy federal prosecution (which are fairly rare). But when I read about the closing argument presented yesterday by Martha's counsel. In summing up, he pleaded with the jury:

"I ask you to acquit Martha Stewart and allow her to return to improving the quality of life for all of us."

Oh c'mon, let's not overstate things, shall we? I think the republic will be safe for the short time Martha would spend in the pen. It's not like she's gonna be executed if found guilty. And even then . . .

Album of the Day

The Flower Kings: Flower Power. In this age of bloated overstuffed CDs, there are no worse offenders than Swedish symphonic proggers The Flower Kings. Not content to fill one disc to the brim, they give you two full discs in this effort. Disc one is even so bloated as to contain not only a 60 minute suite, but an extra 10 minute instrumental, too!Between the two there is, probably, one really good 60 minute album wanting to get out. Of course, without the padding I'd miss the opportunity to cringe at "Magic Pie" every year.

Album of the Day

Bela Fleck and the Flecktones: Live Art. This is a different sort of live album, as more than half of the material was new when it came out. Culled from many different performances, it focuses on the trio version of the 'Tones, augmented by numerous guests, from original 'Tone Howard Levy to such diverse as Chick Corea, Branford Marsalis, Bruce Hornsby, Sam Bush, and Edgar Meyer. The band is tight and hits lots of different highlights. Each of the main 'Tones gets a solo spot, including Vic Wooten's magical version of "Amazing Grace." If you own only one Flecktone album, make it this one.

Falling on His Sword

Legal Affairs has a very interesting story by Lawrence Lessig, the attorney who argued a major copyright case before the Supreme Court a few years back. He lost, unfortunately. This piece is a very informative post mortem of the case and what Lessig thinks he did wrong. It very much drives home to me the old appellate cliche that you actually have three oral arguments: the one you planned, the one you do, and the one you should have done. Anybody who wants to know what it's like to appear before an appellate court should read this article.

Let's Give Credit Where It's Due

Much is being made of the fact that one member of the two-driver team that won the GrandAm Daytona Prototype class at Homestead this weekend is a woman, Venezuelan Milka Duno. Stories are hailing her as "became the first woman to win a major North American sports car race." Aside from the obvious shitty retort that no GrandAm pseudo-prototype race is a "major sports car race," I think someone has been overlooked by the press: Lyn St. James.

St. James, so I remembered, had a lot of success in IMSA sports cars back in the 80s. A little quick research in Martin and Wells's Prototypes: The History of the IMSA GTP Series shows that St. James won three races in a row in 1985 in the GTO class, including a solo win at Watkins Glen. Now, GTO was not the top class in the series at that time, but these were, without question, major sports car races. A winner in any class at LeMans or Sebring, for instance, is still a LeMans or Sebring winner.

So, not to take anything away from Ms. Duno (and her co-driver, James Weaver), but let's give credit to the true pioneer here.

Adios to the Golden Goal

Over the weekend, the powers that be in the soccer world officially killed the Golden Goal overtime format in use since Euro 96. Golden Goal is the same as the NFL's sudden death overtime - first to score wins. The idea was to promote attacking play and discourage teams from playing for a draw in overtime to get to penalty kicks. FIFA, I guess, decided it wasn't working. It also killed a variant called the Silver Goal rule, which allow the overtime half period to be played out even if a goal was scored (so the other team has a chance to tie the game up again). It worked pretty well in last year's UEFA Cup final.

Hopefully, this will also spell the end of MLS's experiments with overtime.

666 Is No Longer Alone

Just when you thought the whole fury surrounding Mel Gibson's new movie couldn't get any more bizarre, a theater in Georgia printed and used tickets which included "666" in a code below the movie title. Rather than take ironic note of the numerology, some fundies actually complained. Why am I not surprised?

A Word About Our Sponsors

The fine folks at Google, via the banner ad on top of the page, allow me to publish this blog for free. The way those links are generated is a mystery to me, except that it seems to pick up on key words in my posts for clues. Sometimes, they get a little weird - a link to the Republican National Committee? OK. My point is that your humble narrator neither endorses nor has any control over what appears at the top of the screen. So don't blame me for the content.

Can Someone Explain This To Me?

OK, one of my guilty pleasures is reading through the "Readers Voice" section of the Charleston Gazette. Rather than actually sit down and write a letter to the editor, it allows people to simply call in and rant. It's usually good for a laugh or two. But today, there was this entry, which makes less sense than usual:

"Why do we have to have daylight-saving time? It shows no respect for God, the calendar or the clock. It is a conspiracy against Christian people and religion."

Um, OK. I don't get this at all. Can anybody help me out?

Dubya Not Rousing the Faithful

There is an interesting piece in today's New York Times which indicates that Dubya's support of a constitutional amendment banning gay marriage isn't rousing the faithful to action, as was hoped. Most conservative Christians, it seems, were on board the Dubya '04 campaign, anyway. Some even are hesitant to tinker with the Constitution over such a thing.

Why We Need Bureaucrats Sometimes

It's almost axiomatic in American life that those unelected, unaccountable, shadowy bureaucrats in Washington (or wherever) are not to be trusted or given much respect because they don't have to face the wrath of the electorate. Regardless of whether that's an accurate sentiment, sometimes it's good to have people around who aren't required to bow and scrape to the democratic masses. Take Fed Chairman Alan Greenspan, for instance. Earlier this week, he opined that a reduction in Social Security and Medicare benefits would be necessary to avoid huge tax hikes to cover the payouts once the Baby Boomers start moving into those benefits. Politicians of all parties howled in protest. But that's because none of them have the ability to stand up and admit that Greenspan is telling the truth. To do so would mean a sure election defeat in November. Americans regularly tell pollsters that we want more government services and benefits but don't want to pay more taxes to finance them. That's impossible, of course, but no politician will tell us that. But those, like Greenspan, who are buffered from the political rabble, can. And we better listen.

Diamond Joe Quimby was right: we're nothing but a bunch of fickle mush heads.

The Supremes Get It Right - Twice

The U.S. Supreme Court has handed down a load of opinions this week, but two are of note, not just because of their subject matter, but because the court got it right in each case.

In one case, Banks v. Dretke, the Court struck down a death sentence imposed following some of the most egregious prosecutorial misconduct I've ever seen. Basically, the prosecutors withheld evidence that two of the star witnesses against Banks had been severely tainted by the state. One had been a paid informant who arranged for Banks's arrest, while the other had been intensely coached by prosecutors prior to his trial testimony. Both witnesses lied under oath when asked about such things at the trial. The state, knowing its witnesses were lying, did nothing. Then in Banks's posttrial proceedings the state had the gall to try and bounce Banks's claims because he failed to promptly discover the evidence it was covering up. All those out there who see prosecutors as the white knights of the justice system should read the Court's opinion carefully.

In the second case, Davey v. Locke, the Court upheld a Washington state constitutional provision prohibiting the funding of devotional religious education. Davey qualified for a Promise Scholarship based on his high school grades and economic status, but was denied the funds when he signed up for a pastoral studies degree at a Christian college. He sued, arguing that the denial was a violation of his First Amendment right to freely practice his religion. The Court disagreed, holding that Washington state could legally decide not to fund religious education as a way to maintain the separation of church and state.

I read a lot of the briefs in this case and it was, to be honest, a close call. I'm no fan of organized religion, much less any government support for it, but some of what can happen under the current scheme is fairly odd. For instance, Davey could have simply not declared a major for his first two years of college (the only years covered by Promise, IIRC), taken all the same classes needed for his pastoral studies degree, and then changed his major during his junior year. Similarly, someone studying for another degree and receiving the Promise money is free to take "devotional" classes if she so chooses. On the whole, however, I think the Court came to the right conclusion on this one. Read the opinion here.

As one might expect, Davey had lots of allies on the Christian right who filed briefs with the Court. A lot of these organizations were the same ones lining up with disgraced former Alabama Supreme Court Judge Roy Moore during his 10 Commandments flap last year. In that case, they argued that his refusal to follow Federal constitutional law was mandated by contrary language in the Alabama state constitution. In Davey's case, however, they argued that Federal constitutional law trump the Washington state constitution - which is it, folks?

Album of Yesterday

Business travel wreaked havoc on the Ranch this week, so, a little late, here's the Album of the Day entry for yesterday:

finneus gauge: more once more. After the 90s breakup of echolyn, keyboardist Chris Buzby got together with his drummer brother to form finneus gauge. The band produced two albums full of intense fusion-tinged prog. Think maybe U.K. or Bruford, but a little edgier. more once more was the first, and was the best album to come out in 1997 (barely edging Mike Keneally's Sluggo!, in my estimation). The echolyn-style close vocal harmonies are present here, including an excellent female lead vocalist.

Visions of Jesus

As we brace for the premier of Mel Gibson's Passion, the New York Times has an interesting piece today about the question of what Jesus actually looked like. The probable answer isn't nearly as interesting as the historical development of Jesus's image.

Album of the Day

Donald Fagan: The Nightfly. After the break-up of Steely Dan in the late 70s, Donald Fagan went on to produce this gem of a solo album. As you might expect, it shares a lot of musical DNA with the Dan. It's almost a concept album (so the liner notes say), dealing with growing up in the 50s and 60s - hence songs about the International Geophysical Year ("I.G.Y.") and parties in bomb shelters ("New Frontier"). Oh, and the B3 in "Walk Between the Raindrops" is too sweet for words.

Improving Jury Duty

Last week I mentioned part one of a column by Findlaw's Vikram Amar about the problems with the modern American jury. In today's column, Amar moves onto to suggestions for bettering the jury system. The goal of his reforms, it seems to me, is to drastically cut the amount of voir dire to produce a jury that is more truly representative of the community, rather than merely the product of legal wrangling.

To an extent, I agree with that ideal. That more educated people are seen as poison on a jury is a serious problem, for instance. However I disagree with one of Amar's specific suggestions - doing away with peremptory challenges. Those are challenges where one party may excuse a potential juror without giving a reason. It allows the parties to weed out jurors that may be biased against them if they can't convince the judge of that fact. Most jurisdictions limit the number of peremptory challenges to a handful. In a perfect world, where judges made correct decisions all the time and juror bias wasn't a concern, they wouldn't be needed. Unfortunately, we don't live in, much less practice law in, that world.

Preach On, Brother Ron

For some unknown reason, McLaren Formula 1 guru Ron Dennis has taken a swipe at NASCAR. My personal favorite: "Every race is full up, they've got more income, more television revenue and it's boring as hell." True. I'm not sure on what basis Ron says F1 has "got a much better show," however. F1 isn't much of a show, for the most part - which is why it's better than NASCAR. F1 is an actual competition and, just like other sports, is occasionally dull. But when it gets it just right, it's infinitely more exciting than the roundy-round shows.

Album of the Day

England: Garden Shed. England was a second-generation prog band (from the UK, of course) that sprung up after and was influenced by the first wave of the early 1970s. As such, they can't help but be a little derivative of bands like Genesis and Yes, but still manage to do their own thing. I can't help but think that if this album came out in the 1980s, rather than late 70s, it would be written off as "derivative neo" rather than hyped as an underground classic. Regardless, it's a good disc.

Holy Prototypes, Batman!

The preliminary entry list for this year's 24 Hours of LeMans has been released, 77 cars strong. No fewer than 40 of those entries are for the two prototype categories, LMP1 and LMP2. Given that this was to be a transitional year for LeMans (new rules kick in for 2005), the proto field was expected to be a little thin. I guess not! Makes the 16 GrandAm DPs that showed up at Daytona look like an accident.

We Knew This Was Coming

In a not-completely-surprising show of sports fan outrage, Spanish soccer fans are suing a match referee for costing their team a win. Valencia led world power Real Madrid 1-0 going into the final minutes of their match this weekend. A Valencia win would have moved them to the top of the table in Spain's top league. A disputed penalty call later, Real left the pitch with a 1-1 draw. Valencia fans are suing for an apology and nominal damages.

I'm only surprised that this didn't happen in the United States first.

Veteran's Conundrum

Another interesting piece in today's USA Today is a column by a former Navy secretary and Vietnam vet about the probable presidential race between Dubya and John Kerry. Specifically, he examines how both men have flawed military histories, although Kerry's transgressions seem less momentous than Dubya's. Either way, it's an interesting perspective on the race.

How to Fail in Politics

Today's USA Today has an interesting article about the unraveling of Howard Dean's presidential bid. It details the missteps and mismanagement that doomed his campaign. It's startling, really, how far he fell from his perch on top of the Democratic race.

Album of the Day

Emerson, Lake & Palmer: Brain Salad Surgery. Of the Big Five 1970s prog bands, ELP is the least consistent. In the space of one album the group could slip from dazzling proggy heights to dizzying lows. I don't have an ELP album that I love from beginning to end. One of the closest is Brain Salad Surgery, most widely known as the studio home of the half-hour epic "Karn Evil 9." It's a classic, and the band throws in a typical Lake ballad ("Still . . . You Turn Me On") and classical adaptations ("Jerusalem" and "Tocatta") to boot.

The Constitution and Gay Marriage

Columnist Michael Dorf raises some interesting issues about a constitutional amendment defining marriage over on Findlaw. Dorf shoots down three arguments advanced by some as to why the Constitution should not be amended that don't deal with the actual issue. He finishes up by arguing that the best argument against such an amendment is based on morality and equal rights, not technical arguments about states rights and such.

Along the way, Dorf makes a great point: "Many people, of course, object to same-sex marriage on religious grounds, and it is accordingly their right to practice a religion that does not recognize same-sex marriage. But the legal institution of marriage is distinct from the religious one. No church, synagogue, or mosque will be forced by the government to recognize or perform same-sex marriages. Even in Massachusetts, the mandate affects county clerks, not country priests."

It's too often forgotten in this debate that the "sanctity of marriage" so many religious folks worry about comes from a source - their God - separate and apart from the source of civil marriage. One does not necessarily have anything to do with the other.

Happy B-Day, WVU BBall

100 years ago this week, my alma mater it's first basketball game. The opponent? The Western University of Pennsylvania - we know it today as Pitt. We won that first meeting 15-12. Whoo-hoo!

I Wonder How Ashcroft Perceives This

A disgruntled Assistant United States Attorney is suing John Ashcroft for retaliating against him after he raised concerns about the way the Department of Justice is fighting the war on terror. My favorite accusation is that the Ashcroft DOJ "placed 'perception' over 'reality' to the serious detriment of the war on terror." Which should surprise nobody, of course, as Dubya's been running on perception in Iraq for weeks now.

Album of the Day

Electromagnets: Electromagnets. The Electromagnets were a Texas quartet that produced a single album in the mid 1970s. It didn't get a lot of press at the time, but it became sought after many years later due to the rise to fame of guitarist Eric Johnson. It was released on CD in 1998. Musically it draws a lot from fusion, but it reminds me a lot of Canterbury prog, in a lot of places. The players (all of whom have played with Johnson in the recent past) are top notch.

On Activism (Judicial and Mayoral)

National Review online today has an interesting column about judicial activism. The author acknowledges that judicial activism is not a one-way street and that conservative as well as liberal judges do it. He praises Alabama Attorney General Bill Pryor for going after state supreme court Roy Moore after his Ten Commandments stunt last year. Pryor placed the rule of law over his personal beliefs on the Constitutional issue to pursue sanctions against Moore. And kudos to him for it.

Where the author goes wrong, I think, is in equating "activism" with "coming to a result I disagree with." He cites, predictably, the recent Massachusetts Supreme Court decisions about gay marriage as examples of judicial activism. There is certainly an argument that the court got it wrong in that case, but it was hardly being "activist." Original intent - the touchstone of many conservative jurists - is a stagnant doctrine with little relevance to a modern world that includes the Internet, high-tech surveillance equipment, and multi-national corporations. Any law - Constitution, statute, or common law - needs room to breathe or it will wither and die.

For a very good example of activism, of the mayoral sort, is the current gay marriage phenomenon going on in San Francisco. The mayor found what is, arguably, a conflict between California statutory and constitutional law. Rather than go to court to get the conflict clarified, he came up with the current very public stunt. He showed very little respect for the rule of law and the process our system of government sets up for resolution of conflict. That's activism.

Don't Ya' Just Love Insurance Companies?

CNN.com is reporting that New York Life is finally settling life insurance claims made by survivors of the Armenian genocide that took place in Turkey in 1915.

Of more interest than the settlement itself (insurance company business as usual, it seems) is the subject of the genocide itself. I recently saw the film Ararat, written and directed by Canadian-Armenian director Atom Egoyan. It is the first major film to deal with the genocide, which killed an estimated 1.5 million people. The film itself asks broader questions of remembering and believing and confronting the past (the Turks continue to downplay the extent of the genocide or deny it altogether) that are very thought provoking. You really need to see it at least twice, preferably with the director's commentary, to wrap your head around it. If you've got a weekend, it's well worth the investment.

Digging into some research on the subject, I was somewhat pleased (if one can use that word in this context) that the United States was one of the few countries to truly reach out to assist the Armenians at the time. Probably helped that in 1915 we had yet to enter the First World War and were therefore a neutral nation. And while the CNN article maintains that the US has not "recognized" the genocide, I did come across a quote from a speech by Ronald Reagan (of all people) recognizing it.

There Goes My Vote

To be honest, I have not paid a whole lot of attention to the sprawling field of contenders running to be West Virginia's next governor. But now I can officially knock one major candidate out of the running. According to the Charleston Gazette, Joe Manchin favors placing the Ten Commandments in public schools. Aside from the obvious, what most disturbs me about that position is this - Manchin dealt with questions about sure to come successful legal fights this way: “Legal challenges? We’ll take them as they come.” So, Joe, part of your plan to help this state climb out of its economic funk is to spend state money to frivolously defend lawsuits brought to stop a blatantly unconstitutional state action? Brilliant.

Album of the Day

echolyn: mei. Yesterday I talked about echolyn reforming in 2000 and plowing new ground. Well, this 2002 release is just what I was talking about. One track, clocking in at almost 50 minutes, that has an "On the Road" feel to it (it's great for a long drive). The modern echolyn is less extroverted than they were in the Suffocating the Bloom . . . days, but the music is still very complex, tightly layered stuff. Over the course of things mei rises and falls before slowly fading away. It's a brilliant album.

I Hope It Was Good Beer, at Least

Today's Charleston Gazette has a story about a beer heist gone wrong. Seems the brew thief ran into a local 7-11, grabbed a case, ran back outside, and hopped into the bed of a waiting pickup truck. Unfortunately, as the pickup was making its speedy getaway, the beer thief fell out of the bed, cracking his head on the pavement. He died.

Aside from the obvious - that this screams out for a Darwin Award nomination - it prompted in me an interesting legal question. There is a legal doctrine called the felony-murder rule that holds that any death that results during the commission of another felony is murder, usually first degree. Doesn't matter if there was no intent to kill or if it was completely accidental, it's still murder. It usually works like this - punk walks into a convenience store, sticks up the cashier (armed robbery - the felony), and when the cash isn't forthcoming (or it's not enough) the punk shoots the cashier (the murder). Make sense? In most cases the felony-murder rule makes it easier for the state to get a big juicy first-degree murder conviction because it doesn't have to worry about proving things like intent and malice.

Now, usually, the dead person at the end of all this is an innocent victim - the cashier, the homeowner who suffered a burglary, etc. But some states allow application of the felony-murder rule whenever someone dies - even one of the perpetrators. Which makes me wonder: does the driver of the pickup face a felony-murder charge in West Virginia? Probably not, because I doubt that the beer stolen was worth enough to constitute a felony. But assuming the beer theft was a felony, should the driver face 15 years to life in the state pen?

Something to ponder.

Wasn't I Just Saying That?

USA Today's lead editorial today picked up on the Vietnam service issue I discussed yesterday. Just pointing it out to show that I'm not too far out there on this one.

Album of the Day

echolyn: Suffocating the Bloom . . .. echolyn stormed out onto the prog scene from Philadelphia in the early 1990s and quickly became the genre's great hope for mass exposure. A major label contract with Sony 550 Music led to As the World, in 1995. But before that came Suffocating the Bloom . . ., a brilliant album that really established the band as one of the top prog bands of the 90s. echolyn managed to make an album that was complex, catchy, and moving - all at the same time. The "Suite for the Everyman" sort of tells the tale of the band trying to get into the industry with their first album and manages to savage the suits while at the same time pledging to do their own thing and not be corrupted by the system. Unfortunately, the deal with Sony went sour and the band broke up, for a while. Reformed in 2000, the band is now exploring new directions with the same stunning results.

Stupid Prosecutor Tricks

A while back I took a Findlaw columnist to task for bitching about the popular conception of prosecutors, particularly his contention that they are accused of misconduct too often. Well, in another Findlaw column, two egregious examples of prosecutorial misconduct are discussed. Just thought I'd pass that along.

Much Ado About Nothing?

In today's USA Today Ronald Goldfarbmakes the case that there is no real danger in the Constitution being amended to define marriage. As he points out, there are countless amendments introduced every year in Congress, precisely because there is no hope they will ever become law. They are a cheap source of soundbites to use on the next campaign.

One point Goldfarb really nails is that "the amendment process is, as the constitutional scholar Edward Corwin has noted, ''highly undemocratic.'" I'll go further - the entire Constitution is highly undemocratic. When yahoos on the street bitch and moan about how "majority rules," it shows they have no understanding of how the Constitution is set up. It is designed to, as much as possible, allow citizen input in the law-making process while filtering out the whims and passions of popular movements.

Can We Finally Bury Vietnam (Politically)?

In recent days, there's been a lot in the news and on the campaign trails about Dubya's National Guard service record, or lack thereof. Now the White House is accusing those raising the question of playing "gutter" politics. Never mind that this should be a slam dunk for the President, if he really has nothing to hide.

Regardless of all that, isn't it time we declared a moratorium on the political baggage of the Vietnam days? I mean, back in 2000 I was perfectly willing to call a truce on this when the two presidential candidates impressively served as a battlefield reporter and an Alabama-based National Guard pilot. And it didn't seem to matter to most voters, either. One would think that the Democrats, having made it through two elections with Clinton's war record, would be perfectly happy to close that chapter. However, with the leading candidate sporting an unassailable war record, they seem willing to revisit this yet again.

The fact is, lots of people did different things during the Vietnam era, some of which might possible be relevant to running the modern United States. Assuming their honest about what they did or didn't do (which is what may get Dubya in trouble), what a candidate did back then should be left alone. That's not to say that specific lessons learned while serving in Vietnam (or while fighting the draft) might not apply to a political candidate. If that's the case, let's talk about those lessons and what they mean, not sling mud about how the other guy is a slimebag for not having the same experience.

Please don't think I approve of Dubya's position on all this. He used daddy's money and power to ensure that he would never see actual combat, without the need to flee to Canada or something. That would have been a big mistake for a young would-be politician. Fess up, Dubya. Admit what you did back then. I, for one, will forgive you for it.

With Friends Like This . . .

As I wrote before, I am hype intolerant. As such, the NBC publicity machine churning away to promote the final episodes of Friends verges on making me ill. As Bill Maher said, the end of the show is not the end of the world. I like the show, but nonetheless I got a chuckle out of this article that takes the show down a peg, in an historical context.

For the record, the best TV comedy ever is The Simpsons, no question.

Mike's Smack n' Snack

In the course of my job I read a lot of court cases and, therefore, a lot of different factual scenarios related to crime. Mostly variations on a them, actually, but that's for another time. Occasionally, I run across a set of facts that is really funny or really stupid. Today, I found one of the funny ones. This is the introduction to the facts of United States v. Darwich, 337 F.3d 645 (6th Cir. 2003):

Darwich owned and operated the Canfield Market in Detroit, Michigan. The market sold snacks and alcoholic beverages but did not sell any milk, eggs, or bread. Market customers also were able to purchase nickel bags of marijuana from Darwich. According to Tom Smith ("Smith"), a former employee of the market, an estimated nine out of ten market customers purchased marijuana from Darwich. Darwich stored the marijuana on his person and in Pringles brand potato chip cans on the store shelves.

No wonder "once you've popped you can't stop"!

Album of the Day

Dream Theater: Falling Into Infinity. This album comes in for a lot of grief for most Dream Theater fans, mostly because it is a lot more varied than their other albums. In other words, it's not all a balls to the wall shredfest from note one. I find that refreshing, particularly given that since this album (and a switch of keyboardists) the band has returned to making seriously technical and heavy but not at all musical prog-metal. It's like any sense of restraint or subtlety went out the door. Which is a shame, because from the evidence of songs like "Lines in the Sand" and "Peruvian Skies," DT has more to offer than they usually do these days.

The Marital Sky Is Not Falling

There is a very interesting column from Slate today that examines why the conservative reaction to the recent pronouncements of the Massachusetts Supreme Court borders on hysteria. Specifically, it contends that the "once gay marriage is legal in one state all states will have to recognize it" argument is probably based more on bigotry and politics than a close reading of the Constitution. But since when did that get in the way of a good wedge issue?

And You Thought Gay Marriages Were Weird

Leave it to the French to take matrimony to the next level. In Nice, a 35-year old woman married a man who died in 2002. Under French law, a woman can marry a dead man if she can prove that they meant to get marry before the groom assumed room temperature. Apparently, the thought that the dead man might have changed his mind never entered into the consideration.

We Still Have Korea (and Columbus . . .)

For the first time since 1976 (barring boycot), the U.S. men's team will not be playing soccer in the Olympics. A crushing 4-0 defeat by Mexico last night (in Mexico) sealed the deal. Mexico and Costa Rica, as semi-final winners of the qualifying tournament, will represent CONCACAF in Athens. This should be a reminder that, in spite of our recent good form against the Mexicans, we are not the undisputed big dog of soccer in the region. Having said that, had we tanked in our last group match and faced Costa Rica instead, I think we'd be heading for Greece. Hopefully the women will make it through and end up with a gold!

And not to downplay the importance the Olympics in soccer, but we now join the likes of Brazil (failed to qualify) and England (no Olympic team) as spectators at this tournament. Pretty good company.

Album of the Day

Dreadnaught: The American Standard. In December of last year I bought about a dozen used CDs from a guy who was cleaning out his collection. While I found several (cheap) gems, the real standout of the bunch was The American Standard. The band cites a review that described their music as "King Crimson meets Frank Zappa at Willie Nelson's BBQ," which is probably about right. I don't hear too much country, to be honest. But there is lots of twisty, crunchy, cool stuff on here. It is very American, I guess.

Jesus Thinks He's a Jerk (redux)

The story I talked about yesterday about the pilot who got religious on his transcontinental flight reminded me of this quote, which I had to track down today:

"Anybody who wants religion is welcome to it, as far as I’m concerned ­ I support your right to enjoy it. However, I would appreciate it if you exhibited more respect for the rights of those people who do not wish to share your dogma, rapture or necrodestination." -- Frank Zappa

That about sums it up for me.

What Happened to Limited Government?

One of my favorite Republican shibboleths is that the GOP is the party of "limited government." That doesn't stand up to any serious scrutiny, however. The latest example of that comes from John Ashcroft, who is trying to implement the 2003 partial-birth abortion ban by subpoenaing private medical records of doctors and their patients. Thankfully, a federal judge has put a stop to that effort, for now. Regardless of how you feel about abortion, the federal government prying into confidential medical files should scare the shit out of you - particularly if you value "limited government."

Oh, and we're supposed to trust Ashcroft with a renewed Patriot Act? I don't think so, John.

Tape the Police

Today's New York Times reports that the American Bar Association adopted a resolution calling for the videotaping of all interrogations by police. It would seem common sensical to record all interrogations, so that authorities have a clear record of what was said to use in court. However, in my experience, it is very rare for there to be any recording of an interrogation beyond a handwritten statement. And, of course, it doesn't include all the badgering that leads up to that statement.

One would think that police and prosecutors would love this kind of tool. Video, however, is much less malleable than an officer's recounting of a defendant's "confession." Several years ago a Minnesota (I think) county began to videotape all interrogations. Then one of those tapes documented how a confession was coerced from a defendant, whose conviction was then overturned. Vindication of the video system, right? Wrong. The county got rid of the policy.

What's Gone Wrong With Jury Duty?

Today, in the first of a two part series, Findlaw columnist Vikram David Amar discusses what's gone wrong with the American jury system. After some interesting historical background, Amar lists several of the current perceived (at least) problems with jury service. One of the silent crises of modern America is how anyone with a pulse will do anything to get out of serving on a jury ("Tell 'em your prejudiced against all races and all religions." - Homer Simpson). But the system only works if everyone who is eligible does their part. It's sort of like voting - most people don't do it, but they're more than happy to bitch about the results. Similarly, a lot of people who bitch about big jury awards in personal injury cases or why so-and-so "got away with" some crime will be more than happy to weasel out of jury service themselves.

Yeah, but Do You Get Peanuts?

According to USA Today, there are two U.S. companies that are on the verge of offering commercial space flights. They are so close, in fact, that both have applied to the FAA for licenses. For what is sure to be an astronomical (ha ha!) sum, passengers will get a sub-orbital flight complete with a few minutes of weightlessness.

Album of the Day

Discipline: Unfolded Like Staircase. When this came out in 1997, it was hailed by a lot of folks as the best prog album of the year and, by some, the decade. Given that I'm hype intolerant, I think I judged the album a little too harshly at the time. I still don't think it's near the revelation some do, but it does what it does pretty well. This is fairly mainstream epic symphonic prog (the shortest track is over 13 minutes long) with some fairly dark Peter Hammill-inspired lyrics. Oh, and the album cover is pretty neat (look closely at the tree's limbs). Oddly, after the critical praise, the band essentially ceased to exist.

Another Word on Judicial "Activism"

The other day I wrote a little bit about how conservative judges can be activists, too. As a follow-up, here's a column by a law student at the University of Michigan who makes basically the same point. He also rightly wonders how anyone with even a semester of legal training buys into the "interpret law" versus "makes law" distinction.

Don't Worry, Paul, You're Not Missing Much

Back in 1973, some bright promoter came up with the International Race of Champions (IROC), a four-race series that matched drivers from across the globe in identical cars to see who came out on top. Initially the cars were production based, the series raced on ovals and road courses, and the driving talent was top notch. Winston Cup champs took to road racing while lifetime road racers learned to bump draft at Talladega (remember "Billy Bob" Brundle, anybody?). Over the years, the cars have become tube-frame replicars with pushrod V-8s, the races all run on ovals, and the field is anything but an international collection of champions. Sound familiar? That's right, IROC is basically a support date for NASCAR events now.

I write all that simply to say something to Paul Tracy. The 2003 ChampCar champion is a bit pissed at being left off the invite list for the 2004 edition of IROC. While I love Paul's angered outbursts ("Hell, I've won more races than all three of those IRL guys combined."), I'm afraid Paul is missing something here. Paul - IROC is no longer international and no longer a race of champions. It is a NASCAR wanna be and not worthy of your talent, much less your outrage. So cool off. Have a Molson. And get ready to defend your title in a real racing series.

Jesus Thinks He's a Jerk

You know sometimes when people in other countries point to some American act - nothing hideous, mind you, just us throwing our weight around - as an example of "why they hate us?" Well, domestically, this kind of thing makes me hate born-again fundamentalist Christians. It seems that an American Airlines pilot asked the Christian passengers on his transcontinental flight to speak with other passengers "about their relationship with God." Those other passengers, who dared not identify themselves as Christian, were "crazy," according to the pilot. What an asshole.

I don't have a problem with anyone's particular religious belief, silly as it may be. But this urge of evangelical Christians to "share" their "faith" with the rest of us goes too far. At least while you're trapped on a transcontinental flight with one.

Screaming in the Krakatoan Twilight

Today's New York Times has an interesting article about scientists of various types who are demystifying (to a certain extent) famous works of art by placing them in the context of their reality at the time they were made. The most famous example to date is the haunting red sunset from Edvard Munch's "The Scream" is actually the twilight as it appeared in Oslo in late 1883 or early 1884. The cause? The eruption of Krakatoa on the other side of the world. By the time of Munch's famous walk with his two friends, the debris of Krakatoa had made its way to the atmosphere around Norway.

Neat, huh?

Pot Makes You Stupid, Again

Today's Charleston Gazette is reporting that a local woman has been charged with possession with intent to deliver marijuana in state court. How did the cops find out about her dealing? She called them to report that her boyfriend stole her pot. In the process, she told the police how she sold pot and showed them where she kept her stash.

Brilliant. Just brilliant.

Album of the Day

Cye: Tales. Cye is the lone entry in my catalog from Switzerland. This 1994 release is, to my knowledge, their only album. I got it based on the usual "sounds like mid-period Genesis" blurb in the catalog (I know better now). To their credit, the band actually do manage to sound different than most neo-prog bands out there, with a larger emphasis on acoustic guitar work and lush harmonies. The production is a bit rough in spots, but not horribly so. This is actually the kind of album that makes me glad I do the A-Z thing every year. It's not great - I rarely play it, to be honest, although one track does have a spot on a stuff disc in the car - but I enjoy hearing it and reminding myself that something different lurks on my CD shelves.

What's Next, a "Chase for the Championship"?

With the ChampCar season apparently a go, new owners OWRS are making some changes to the series, including a new point system. The old CART point system ran through the top 12 places and added bonus points for pole position and leading the most laps in a race. While more generous than the Formula1 system (that only goes through the top 8 spots), that system at least made finishing "in the points" meaningful. The new system, sadly, is taking a page from NASCAR's playbook. For this seasons points are awarded all the way down to 20th place. That doesn't sound too bad, until you consider that CART struggled to get 18 cars to the grid last year. Assuming the same fields as 2003, that means everybody who shows up at a ChampCar weekend will score points. Oh, and just enhance the NASCAR effect, one point is available to everyone who leads a lap, too.

Unlike the NASCAR system, which most agree needs some changes, the old CART system didn't get any complaints. At least none that I recall. So why change now? Maybe the powers that be at OWRS know something I don't about the size of the fields this year, but I find that highly unlikely.

Somebody Call George Carlin

There is an article in today's USA Today that deals with the topic of boorish fan behavior at college sporting events. It specifically cites a Maryland-Duke basketball game this season where the Maryland fans shouted "Fuck you, J.J!," every time Duke's J.J. Redick stepped up to take a free throw. University officials fear they have no way to discipline with foul-mouthed fans without running afoul of the First Amendment (as it is a state run school). I'm not sure on the legal issue, but, c'mon, is that the best you can do? We did worse in high school, if I remember correctly. Not as vulgar, to be sure, but more psychologically damaging, I think. And don't forget some of the well rehearsed chants heard in English soccer stadiums - the ones not suitable for prime time sensibilities (except during the SuperBowl halftime show, apparently).

So, yes, the kids are being boorish and juvenile - what did you expect? George Carlin has a truly dirty cheer that he cooked up for some occassion. I can only recall that it ends with "hooray lizard shit fuck!" That's more like it!

For an example that clearly crosses the line into insulting, consider that before the a United States Olympic qualifying soccer match in Mexico this week the Mexican crowd was chanting "Osama! Osama!" during our National Anthem. Still bitter about Korea, I see!

Album of the Day

Albert Collins: Cold Snap. Albert was a great ol' blues guy, with a slicing guitar sound coming out of his Telecaster. I first heard Cold Snap back in band camp my sophomore year of high school - we marched to meals to the strains of "I Ain't Drunk." Try that today and see the complaints pour in! This is the best Collins album I've got, with great horn section accompaniment on "A Good Fool is Hard to Find" and Albert's gritty "Too Many Dirty Dishes." Quality stuff.

Welcome Back to the 21st Century

Thankfully, Georgia has scrapped its plans to remove the word "evolution" from its science curriculum. Now if only the powers that be will fix the other problems with the grand educational plan, like the one I discussed here.

This Is an Activist Judge

Lots of conservatives prattle on about the damage being done by "activist" judges. Those are the ones who disagree with conservatives on the way law is interpreted, of course. Well here's some judicial activism of the conservative sort. As laid out in this Findlaw column, the Supreme Court will shortly hear a case seeking the disclosure of information about Dick Cheney's secret energy task force. The decision will no doubt have major political ramifications. Which may be why Cheney has met with Justice Antonin Scalia twice since the case was presented to the Supreme Court for review. Most judges, given the close personal relationship between Cheney and Scalia, would recuse themselves in a heartbeat. Scalia refuses to do so.

Unfortunately, that decision is not subject to review. Nor should it be a surprise. Scalia took part in the case deciding the 2000 presidential election, in spite of the fact that his son worked for Dubya's campaign. Staying on the court, in spite of valid reasons to step away, to hear a tight fought politically volatile case is as activist as it gets.

Are You There, Dubya? It's Me, God.

The president got a bit startled this morning while speaking at the National Prayer Breakfast. It seems that while speaking about soldiers in Iraq, there was a noise which sounded like a burst of machinegun fire. Dubya moved on, without skipping a beat (or more beats than usual). Tech folks blame the PA system for the glitch, but I think maybe somebody was trying to send Dubya a message, given the subject matter and the nature of the gathering.

Pro-Life Pop Quiz

OK, here's a stumper for the pro-life crowd. A multi-national surgical team is preparing for an operation to help a child born with two heads. The procedure involves removing the second head, with which the normal head shares blood vessels and other delicate things. The hope is that a successful operation will let the girl grow up healthy and she will live a normal life. Buried in the story, however, is this information: "Although only partially developed, the mouth on her second head moves when Rebeca is being breast-fed. Tests indicate some activity in her second brain. "

Hold on a second. Mouth movement? Brain activity? Sounds like a living thing to me. In fact, it sounds a lot like that poor brain dead woman in Florida who Jeb Bush and his pro-life brigade won't let go gentle into that good night. So where is the distinction? I'd really like to know the answer.

Album of the Day

Cheap Trick: at Buddokan: Honestly, I'm not the biggest Cheap Trick fan on the planet. In fact, I own only this one album. But what an album. Released in 1979, it is one of the legendary rock live albums. What used to be side 2 of the LP - "Ain't That a Shame," I Want You to Want Me," "Surrender," "Goodnight," and "Clock Strikes Ten" - is about the best batch of pure straight forward rock I own.

Dumb Religious News

Two notes of religious absurdity:

CNN.com reports that a seven year-old girl in Pittsburgh was suspended from school for swearing - she told a fellow student who said, "I swear to God", that he was going to hell. "Hell" was the swear word in question. That, I think, is a silly reason for a suspension. Here's a better one: what is this brainwashed little fundy doing telling her seven year-old classmates that they're going to hell?!?!? Dad insists they aren't "religious fanatics." Sure, OK.

In the city of LaCrosse, Wisconsin, there sits a 10 Commandments monument. Placed in the city park back in the 1960s, its constitutionality was challenged by local citizens. Rather than move the monument to private land, the city council very cleverly sold the sliver of land under the monument to a local religious group. A federal district court has said that isn't good enough. Read why here.

OK, So I Was Wrong

Last fall, when the Massachusetts Supreme Court held that the state constitution's equal protection clause required same sex-couples to be given the same rights as married couples, I figured that the court's opinion left room for the legislature to craft a civil union solution to the problem.

Today, at the request the legislature, the Supreme Court had proven me wrong. The court announced that the only way to ensure compliance with the state constitution would be to allow homosexual couples to marry just like heterosexuals do. The court held that the different labels of "marriage" and "civil union" were impermissible, even if the practical effects of the two things was exactly the same. In essence, the court refused to sign off on a "separate but equal" concept. I actually tend to agree with the dissenting opinion that points out the various ways that hetero and homosexual marriages will still be different, mostly due to their disparate treatment by the other states and the federal government. That would seem to be a rational basis for the different names.

The effect of this development may be more sweeping than those on either side of this debate can immediately see. The legislature seemed ready to set up the civil union scheme and be done with it. Now, faced with the choice of completely legalizing gay marriage, legislators may be persuaded to amend the state constitution and override the court's decision. After all, it was the legislators, not the plaintiffs in the original law suit, who asked for this opinion. The plaintiffs may have been perfectly happy with the civil union setup.

First the Desert, Now the Wine Country!

Colin McCrae, former World Rally Champion and namesake of many a video game, recently completed his first Dakar Rally, finishing the event in respectable fashion. Now he wants to take a stab at the 24 Hours of LeMans. He is in line for a ride with one of the Ferrari GT cars (possible GTS, I can't tell). I'd like to see one of the privateer LeMans Prototype teams make him a good offer and get him up on the sharp end of the grid. Maybe an American LeMans Series appearance to get familiar with the car?

Texas Tit Parade, Day Three

The aftershocks from the Janet Jackson-Justin Timberlake "wardrobe malfunction" this weekend continue. As the FCC investigates, numerous NBC affiliates are threatening to not show Thursday's episode of ER. Apparently there is one scene that involves an elderly woman's breast. Affiliates are uneasy, what with the FCC's heightened state of alert for all things mammary. Given that the show is a medical drama, one would think that ER's flash of boob will not be as jaw droppingly salacious as what went on this weekend. But that probably doesn't make a difference to the risk adverse at the local NBC affiliates.

For a discussion of the legal terrain of the FCC and television standards, read this column by Michael Dorf, from Findlaw.

Album of Yesterday

Well, I didn't realize until my head hit the pillow last night that I forgot to do an Album of the Day entry. So, a day late, here it is . . .

Caravan: For Girls Who Grow Plump in the Night. Caravan is one of the numerous prog bands than sprung from the Canterbury region of Britain whose style was more jazz influenced than their symphonic cousins. The straight jazz influence is a little less prevalent with Caravan, who at times remind me more of a very British version of the 70s jam band (think The Allman Brothers while drinking tea). Regardless, this album is full of tunes that are at the same time laid back and catchy but also very intense.

When The Judges Keep Quitting, Someone Needs to Listen

An article in today's Pittsburgh Tribune-Review contains a scathing attack on the United States Sentencing Guidelines. Robert Cindrich stepped down from the federal bench, party because he was tired of dealing with the guidelines. Cindrich argues that the guidelines turn federal judges into figureheads when it comes to sentencing decisions. "We have been sidelined," he said. "Make no mistake about it." The real tragedy is the Cindrich is not the first federal judge to retire rather than continue to practice under the weight of the guidelines.

How many disgusted judges will it take for Congress to realize that the USSG are a failed experiment that need to be, at the very least, radically overhauled.

Now This Is an Election!

Even as the Democrats continue to eat their young, the fall presidential election is starting to look very interesting. Polls over the weekend show Dubya losing in a race with John Kerry, who has a winning margin greater than the margin of error. The same poll shows that a substantial (and growing) minority of Americans are finally coming around to the realization that the Iraq invasion was a sham from the get go. Can't wait for November!

More Boob-Fueled Brouhaha

Not surprisingly, the ruckus caused by the SuperBowl halftime show continues. USA Today takes a broader look at the issue of television standards in general. You know, on the one hand, it amuses me that the brief display of a tit on national TV can puts the nation into such a tizzy. On the other hand, it would be a lot easier to defend the incident if it were more than a crass publicity stunt by a has-been pop star who is probably desperate to deflect attention away from her brother's impending kiddy rape trial. Either way, let's just let it go away, OK? Something more appalling will happen this weekend at the Grammys, anyway.

For another perspective, taking the NFL to task for being shocked at all this, check out this column from the online version of USA Today. It makes some good points.

Album of the Day

The Blues Brothers: Briefcase Full of Blues. Yeah, I know, the Blues Brothers were basically a novelty act and probably didn't have a lot of authenticity. But I don't care. The band is tight, the vibe is good and the songs are killer. So sue me!

I Thought You Were Pre-Med?

From the "he who defends himself has a fool for a client" file comes this story from Colorado. It seems that the 43-year old defendant thinks he can represent himself because he is "pre-law." I thought he was pre-med, but what's the difference?

Run! Bill Gates Needs a New Wing on His House!

Is SPAM really that big of a problem that it has come to this? Some folks, including Bill Gates, are pitching an idea of "stamps" for Email. In other words, it might cost you to send your next Email. C'mon! I already pay for the PC, the cable modem, and the 'Net access - why should I pay a per-message fee just because some people can't deal with SPAM? Because ISPs and others see a potential revenue stream here, that's why.

Mr. Excitement Strikes Again

Over the weekend the typically idiotic (and sponsorless) NASCAR driver Jimmy Spencer let forth another good salvo. His target this time was Toyota, which enters the NASCAR world in the Crafstman Truck Series with the new Tundra this season. Jimmy opined that "they bombed Pearl Harbor, don't forget," and wished openly that Toyota is "humiliated" by Ford, Chevy, and Dodge. It was a Dodge that Jimmy drove last year. You know, Jimmy, the Dodge that is now a German company? We fought them in the 1940s, too.

The popular anger at Toyota coming into NASCAR is sad. The idea that NASCAR should be limited to 'Murican companies is quaint in the modern economy. Where are most Fords made, anyway? Not in the US. Meanwhile, "foreign" companies from Toyota to Honda to BWM are building plants here and employing Americans. Toyota makes engines not too far away from my humble abode. I'm sure the West Virginian's employed there don't have a problem with Toyota running in the truck series.

For the record, I can't see why Toyota wants to race in NASCAR. To do so it has to step backwards several decades, technologically speaking, to get in step with the NASCAR formula. Who needs an 18,000 rpm V-10 that screams out 800 horsepower when you can build a good ole' pushrod V-8 that was state of the art in 1960?

This Doesn't Happen Everyday

I just thought this was a cool headline: "Scientists Create Two New Elements." That kind of thing doesn't happen every day. Sure, the two "super heavy" elements only existed for seconds in a particle accelerator, but when was the last time you created an element at work?

Titties & Jeers

The fallout (so to speak) from last night's SuperBowl halftime show continues. For those of you lucky enough to miss it, the awful MTV-produced halftime show ended with the talentless Justin Timberlake ripping off a part of has-been Janet Jackson's outfit, exposing a curiously pastied breast. All involved have repeatedly alleged that this was a spontaneous unrehearsed act or, in Timberlake's words, a wardrobe malfunction. Yeah, right. Nothing about that halftime show was remotely spontaneous or, dare I say, "live." Call me a skeptic.

And the reviews have not been good. The NFL says this will be the last time MTV produces the halftime show. And, thank goodness, the FCC is on the case.

And just think, CBS wouldn't air an anti-Bush political ad!

Pretend to Sing the Words . . .

An article in today's New York Times discusses the growing legitimacy of lip-synching during "live" concerts. I'm not naive enough to think that this is anything new, but I do fear for the future when some fans not only accept but expect canned vocals so that their favorite talentless hacks don't "mess up" their favorite song. In the age of MTV, why even go to a concert if it is not actually a live performance? Mistakes, or at least the risk of them, are part of the charm of live music. Seeing someone play a song - really actually playing it - that gives you goose bumps is a totally different experience from hearing it on CD.

For the record, yes, folks, there are performers who can sing whilst hanging upside down. Peter Gabriel and his daughter, Melanie, did the closing portion of the song "Downside Up" while upside down on his last tour. While Peter does use his share of samples and the like, I'm pretty sure all his vocals are the real deal.

Frank Zappa wrote in the liner notes for The Best Band You Never Heard In Your Life: "In a world where most of the 'big groups' go on stage and pretend to sing and play, we proudly present this quaint little audio artifact. Yes, once upon a time, live musicians actually sand and played this." Sadly, such things seem to be more on their way to being "quaint artifacts" than ever before.

Yanks Strike Abroad

As we get ready for the SuperBowl here in the states, to recent expatriates who play the "world" version of football made an immediate impact this weekend. Striker Clint Mathis claimed the second of Hannover's 3 goals today in a 3-2 win over Hamburg. US defender Steve Cherundolo played his usual match in the back line for Hannover as well.

Meanwhile, in London yesterday Brian McBride came on in the 59th minute for Fulham and netted the game winner 8 minutes later, heading a rebound into US keeper Kasey Keller's net. Fulham beat Tottenham 2-1.

Well done, guys! Too bad Leeds didn't snap up any of this American talent before the transfer window closed - bottom of the table and a 0-3 loss to 'Boro this weekend. :(