Less is more

Money quotation from Judge Posner, on why the proliferation of law clerks and resources at the Supreme Court has not led neither to better economies of decision, nor qualitatively superior outcomes:

The average opinion is longer today, and there are more dissenting and concurring opinions, and so the total word output of the Court is greater; but whether this spells improvement may be doubted.

But aren't the cases more difficult today? I don't think so. Although American law is more complex than it was in the 1930s, this is primarily because of developments in areas of law--securities regulation, antitrust, taxation, federal pension law, intellectual property in high-technology areas such as computer software and pharmaceutical drugs, and complex financial and other commercial transactions--that the Court tends to shy away from in favor of constitutional and criminal cases. (This aversion may reflect the tastes and the aptitudes of the law clerks, whose certiorari memos influence the justices' decisions to grant or deny review.) And constitutional cases are often "difficult" in the sense of eluding satisfactory resolution. They are not inherently more complex. Instead they are indeterminate, as a consequence of the vagueness and antiquity of the constitutional text, and of the emotionality and political sensitivity that so many constitutional cases engender.

Lamentable Lickers

What is the "L" word?

I've never seen an episode of this show. Recently lulled by my light summer schedule, I rented the first season. I couldn't make it...THROUGH THE FIRST EPISODE. I can handle some contrived plot line and predictable characters, if there's some other pay off. None here, though. Why were the couples, couples? Why were the friends, friends? Why the frak was I still watching?

Always one to attack my own predicate assumptions, I thought: is this truly any worse than QAF? Is the reason I love the latter, but detest the former, simply because QAF reflects elements of my own (past) life that I identify with...whereas lesbo drama doesn't? I don't think so. I contend that L-Word is substantively a worse show than QAF...and it's not simply because of Justin's hot bottoming action... I love lesbos. Women are hot to me, always have been. And I couldn't believe that I was shutting off a program starring Jackie Brown!

The Phelps Farce

A few weeks ago, Gov. Vilsack signed a law banning protests within a certain distance at funerals. This was part of a wave of laws signed by Governors in response to the Phelps family protests at military funerals. Estimating that they did not get enough media exposure from loudly proclaiming that "God hates fags" at services for "known or suspected" gay persons, the incestual "church" of topeka, KS, decided to target military funerals.
Today, the President used the Memorial Day holiday to sign a federal analogue of this bill that sailed through Congress virtually unopposed. In today's NPR coverage, the ACLU voiced their predictable opposition, and a law professor chimed in, agreeing that the law would likely be struck down on First Amendment grounds.
Should it be? I haven't taken Con Law II, so I can't speak authoritatively on the subject (as if I could had I taken the class!!), but it seems to me that this is far from a legal certainty. In fact, I think the aforementioned law professor is articulating a policy choice no more likely to sway courts than the policy supporting the bill. To survive a 1st Amd. challenge, there must be, among other tests, a compelling government interest supporting the statute. If there is ONE thing I have learned in Con Law, it is that these are entirely meaningless concepts. On a case of first impression, the court will create a vision of "compelling" that conforms to its previously-held ideological intuition. I might reason that the government indeed has a compelling interest in banning these protests because the symbolic nature of military funerals--as evidenced by public monetary support, the state-sanctioned presence of an honor guard, etc--is an important and over-riding public policy. I might argue that this is only a time/place/manner restriction that allows this statute an exemption from "compelling interest" scrutiny. Maybe I'd be even more creative if I were an actual lawyer :)
Point is...send those fuckers back to Kansas.

July 14, 1789

Nothing of interest happened today.

Of course, to be inclusive, we mustn't forget about polyandry.

Santorum's Slippery Slopes: One Down!

The Utah Supreme Court rejected a polygamist's arguments that his relationship with his second wife should be decriminalized. This insatiable lover--a Mormon, obviously--argued, in part, that his polygymist union deserves the same due process respect that gay persons now enjoy under the reasoning of the US Supreme Court's Lawrence decision.

In the Lawrence decision, Justice Kennedy wrote that private, consensual sexual acts were protected as fundamental liberty interests by the Due Process Clause of the Fourteenth Amendment. Here, Mr. Loverman argues that a similar liberty "shield" protected the relationship criminalized by the Utah statute. The Utah Court ruled that marriage, unlike private sex acts, was a "public institution," and thus explicity not covered by the language in Lawrence. And--oh, yeah--the second "wife" was only sixteen, which also put this case outside the scope of the Kennedy decision.

Actually, says the Utah Court, the holding of the Lawrence decision is much more narrow than its sweeping language would suggest, and has been limited to its precise holding affecting gay sodomy more than 40 times.

So, is this a good thing? It does not seem to me that, at least for the foreseeable future, Scalia's worries about this opinion leading inexorably to gay marriage by judicial fiat, à la Massachusetts. Should one argue for a more expansive reading of Lawrence--one that might allow marriage for both the man with his three financées as well as for the two womyn with their U-Haul? Is a reading that includes the latter, but excludes the former possible?

Wet Lungs

Yesterday, I awoke and breathed deep. Something was different. The sky outside was gray...but in Iowa that's not unusual. I've also become accustomed to having the windows open and living in an apt with no A/C...verbotten in Florida. No, this was truly a feeling both strange and familiar. Humidity. The air was wet and heavy and warm(ish). Fresh rain on the ground. Glory! The dry Iowa climate was banished, if only briefly, and, for a moment, I was back home in Florida...waking up from a siesta after the diurnal afternoon rainstorm, ready to continue playing for the rest of the evening, the sky having heaved the load it spent all day working up to....ah..wet dreams :)