New York and Supreme Court Bruen Decision

In the Bruen decision the Supreme Court rejected New York's "may issue" concealed carry gun licensing standard. The decision's text is here. New York had required concealed carry applicants to demonstrate "good character" and a "proper cause". There were no appeals. So if the local police liked you they might let you have a concealed carry permit. 

But if the local police didn't like you, for any reason, good or bad, legal or not, you couldn't get a concealed carry permit.

To put this into historical context consider that in 1956 Alabama Martin Luther King Jr. applied for a concealed carry permit after his house was firebombed by white segregationists. Alabama in 1956, just like New York until recently, had a "proper cause" standard. 

Because local authorities in 1956 Alabama were inevitably either supportive of or the same white segregationists who were firebombing and shooting Black people, they unsurprisingly denied MLK's application. Similarly New York's gun licensing standards disproportionately denied Black would be concealed carry applicants. 

Supreme Court Decisions

The Supreme Court issued two critical rulings. Although I am liberal I have always been pro-life and believed in self-defense. In the Bruen case the Supreme Court ruled that: 

"New York’s proper-cause requirement for obtaining an unrestricted license to carry a concealed firearm violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms."

If you wanted to conceal carry a firearm in New York--most notoriously New York City--the authorities could require that you proved "proper cause."  

If the state didn't like guns, didn't think people of a certain race should have guns, or just didn't like you, then the state could deny you a concealed carry permit. The Court decision changes the "may issue" standard to a "shall issue" standard. New York must have objective criteria for concealed carry. People who dislike guns claim this decision will result in greater carnage. 

Most other states including my own have "shall issue" standards. Legally armed conceal carry people are not the people murdering folks. 

Trump to nominate Judge Barrett: Time to Ignore Supreme Court?

Many people were upset that thanks to McConnell and crew changing their minds about when Presidents should be able to appoint Supreme Court Justices in election years that it now appears that President Trump will be able to make a third appointment to the U.S. Supreme Court. 

There's almost nothing that the Democrats can do to stop this. There is no longer any Senate filibuster for Supreme Court nominations. The Democrats don't have the votes in the Senate. 

The latest news seems to confirm that President Trump will nominate Judge Amy Coney Barrett, a current judge for the Court of Appeals for the Seventh Circuit to take the empty seat on the Supreme Court. Barrett is obviously a right-winger. Although she's not all that different from any run of the mill right wing justice that would be considered under this administration, as this Vox article pointed out, because of some inappropriate comments by California Democratic Senator Feinstein, some social conservatives consider Barrett something of a martyr. So they will presumably be excited to "own the libs" by getting Barrett nominated and confirmed to the Supreme Court, particularly if they can get it done before election day.

That's actually not all that interesting to me. Everyone on the other side always says that if so-n-so gets confirmed to the Supreme Court that the skies will fall, the dead will rise from the graves and eat the living, and you wont be able to download updates on your phone. And sometimes such people are even correct.

My take is that if I and those I care about make it home without being harassed, assaulted, or murdered by the police then it's been a good day. And liberal or not, Supreme Courts are unable or unwilling to do much about that. So though I didn't care about the specific partisan reactions I was very interested in the fact that many people who are, very broadly speaking, on the same (left) political spectrum as I am, started calling for some changes to how courts are shaped and populated and how the Senate is constructed.

Michigan Gerrymandering Case

Gerrymandering is when a political party redistricts in an unfair partisan method so that its political dominance and ability to win elections is maximized while the ability of rival parties or disfavored minorities to do the same are minimized. 

Both parties do this although the Republicans have arguably taken it to new heights, or lows, depending on your point of view. Courts have been reluctant to get deeply involved in such disputes, often taking the stance that with certain egregious exceptions, redistricting is an inherently political process and not so much a legal one. 

Parties compete to win control of government precisely to draw political boundaries for their own benefit. But courts do occasionally step in and force the legislative branches to make changes. We just saw an example of this in Michigan.

Detroit — Michigan must redraw legislative and congressional districts for the 2020 election because current maps drawn by Republicans represent a political gerrymander “of historical proportions,” a three-judge federal panel ruled Thursday. The blockbuster ruling — which a legislative leader said Republicans will appeal to the U.S. Supreme Court — requires Michigan to conduct special state Senate elections for certain seats next year, cutting in half the four-year terms that current lawmakers are now serving. 

The “predominate purpose” of the redistricting plan approved by the Michigan Legislature in 2011 “was to subordinate the interests of Democratic voters and entrench Republicans in power,” said the unanimous decision written by U.S. Circuit Judge Eric Clay, an appointee of Democratic President Bill Clinton. 

Should the US Senate be changed?

In the wake of the 2016 Presidential election and Trump's appointment of not one but two justices to the Supreme Court some people are arguing that the Senate and Electoral College have outlived their usefulness if indeed they ever had utility and should be utterly transformed if not eliminated.

Usually this takes the form of a resident of a high population state which normally tilts Democratic (think New York, California) scornfully bringing up a low population state which usually tilts Republican (think Wyoming, South Dakota, Montana) and arguing that it's not fair that the residents of the high population and often richer state have the same Senate representation as those dumb rubes in the low population state. Inevitably the person making this argument will reference the fact that Clinton won the popular vote in the 2016 Presidential election and thus conclude we need to change our political system to give more power to the majority.

We have a political system that has separated powers between the federal government and the states and further split power among separate elements of the federal government and placed limits on what the federal government can do. The idea was and is that the best protection against tyranny would be that no one element of government could grab all the power to itself. Some would argue that this hasn't worked. They would say that since at least the end of WW2 the power and authority of the Federal government has grown into the Leviathan we see today. But people differ on whether this is a good or bad thing. If you think that you're part of or will be part of a permanent majority then you might want the Federal government to have all the power you think it needs and then some. You might want to crush your enemies, drive them before you, and smile at the lamentations of their women. Remaking the Senate into an institution that better reflects majority rule would be an important step.

Supreme Court Justice Anthony Kennedy Retiring

Anthony Kennedy, who often served as a swing vote on what otherwise would have been a solidly right-wing Supreme Court, is retiring. President Trump will get to make a second nomination to the Supreme Court. Both Kennedy and Roberts have occasionally fallen short of doctrinaire right-wing positions, so expect that conservatives will pressure Trump to select a replacement who is someone more trusted to vote as conservatives might expect a conservative justice to vote.  If Kennedy's replacement is in his or her forties or fifties then they could conceivably be on the Supreme Court for another thirty or forty years.

Democrats will make a fuss about this but right now they lack the muscle to stop it. The real shift in the court may come about if Trump is able to replace someone like Ginsburg or Sotomayor. It is a testament to how far the judiciary has shifted to the right that some liberals will be sad to see Kennedy depart. 

WASHINGTON — Justice Anthony M. Kennedy announced on Wednesday that he would retire, setting the stage for a furious fight over the future direction of the Supreme Court. Justice Kennedy, 81, has long been the decisive vote in many closely divided cases. His retirement gives President Trump the opportunity to fundamentally change the course of the Supreme Court. A Trump appointee would very likely create a solid five-member conservative majority that could imperil abortion rights and expand gun rights. Justice Kennedy’s voting record was moderately conservative. 

He wrote the majority opinion in Citizens United, which allowed unlimited campaign spending by corporations and unions, and he joined the majority in Bush v. Gore, which handed the 2000 presidential election to George W. Bush. He also voted with the court’s conservatives in cases on the Second Amendment and voting rights. But Justice Kennedy was the court’s leading champion of gay rights, and he joined the court’s liberals in cases on abortion, affirmative action and the death penalty.

LINK

Supreme Court Upholds Trump's Travel Ban

As I long suspected and as this blog's legal expert predicted :" However, as it stands, the courts have basically taken the position that Presidents can freely use Section 212(f) as they see fit, so it is unlikely that Trump will lose this battle on the merits in the long run." the Supreme Court upheld Trump's travel ban. So that is that. 

WASHINGTON — President Trump acted lawfully in imposing limits on travel from several predominantly Muslim nations, the Supreme Court ruled on Tuesday. The vote was 5 to 4, with the court’s conservatives in the majority. The court’s decision, a major statement on presidential power, marked the conclusion of a long-running dispute over Mr. Trump’s authority to make good on his campaign promises to secure the nation’s borders. 

Just a week after he took office, Mr. Trump issued his first travel ban, causing chaos at the nation’s airports and starting a cascade of lawsuits and appeals. The first ban, drafted in haste, was promptly blocked by courts around the nation. A second version, issued two months later, fared little better, although the Supreme Court allowed part of it go into effect last June when it agreed to hear the Trump administration’s appeals from court decisions blocking it. But the Supreme Court dismissed those appeals in October after the second ban expired.

LINK

The Supreme Court may have gotten this wrong, though I don't think they did. I am no lawyer or legal expert. But to paraphrase a saying the Court is not supreme because it is always right; it's supreme because it's final. If Congress wishes to do so it can write a law to remove such authority from the current President and all future ones. We should remember that Trump, like Obama before him, will not be the United State's last President. 

Amy Wax and Racism

It is darkly ironic that University of Pennsylvania law professor Amy Wax, whose heritage is such that were she unfortunate enough to have been in Eastern Europe during WW2, would have found herself deemed as Untermensch, or subhuman, and thus promptly slotted for efficient extermination, has spent a great deal of her professional life arguing that Black and Brown people (though most of her disdain seems reserved for Blacks) are inferior to whites mentally, culturally, and morally. I don't expect that slavery or racial extermination will be on the American agenda anytime soon but if those things did make their return and you happen to be Black or Brown, don't try to hide at Professor Wax's house. Because she would certainly turn you in. We do have free speech in this country. You can be as racist and as hateful as you want to be. And Wax has been. The limit apparently is when you step beyond your opinions and make a statement of fact that isn't true. Wax may have done that with her latest comments, which is what allowed her employer to rein her in a bit. 

University of Pennsylvania professor has been stripped of all of the first year law classes she has been teaching after it was revealed that she feels black students are inferior to other students, the HuffPost is reporting. According to the report, professor Amy Wax, who teaches at the prestigious university, was engaging in an interview with Brown University professor Glenn Loury, when she made her controversial comments.

Vezmar Date Lawsuit

Despite all of the changes that have taken place concerning the dance of life between men and women, one thing that hasn't changed is the general expectation that the man is supposed to pay for the date, at least at first. A man who doesn't do that or tries to split costs before the woman is convinced that he's even worth any of her time or money is often derided as cheap or a loser. Good, bad or indifferent that's just how things are. Even many staunch feminists suddenly become Victorian England style ladies when faced with the idea of spending their money to meet men. If the man and woman don't like each other's company or independently decide that they'd be better off elsewhere or conclude that the date was a serious waste of time, money and resources then the man just has to eat the loss of whatever money he shelled out. And though it ought to go without saying, taking someone on a date doesn't guarantee anyone anything. Not one doggone thing. There is nothing implied other than the opportunity to determine if you like someone's company or not. If you spend $17 on a date but discover that someone is not up to your standards most people (men) would count that as the cost of dating and write it off to the game.

But 37 yr old Brandon Vezmar is not most men. Brandon went out on a date with a 35 yr old lady. Things didn't go well.

Corporate Tax Deductions for Settlements, Fines and Damages

When you do something wrong and are punished for it by having money taken from you the purpose of that little exercise is to convince you not to break the law or violate the rules again. The size of the fine may vary depending on how serious the offense is, whether the person who is being fined is a first time offender, how much money the person who is being fined has, whether or not the person or institution levying the fine is in a bad mood that day or is looking to make an public example of some schmuck or a million other reasons. But the purpose of the fine remains the same regardless of whether you are an NFL player who doesn't like to talk to the media, an NBA player who publicly questions the integrity of the league or its referees, or a taxpayer who simply doesn't like paying his taxes when the city, state or country says that he must. For example, in my younger days (i.e four years ago) I used to consider posted speed limits on expressways as something more akin to suggestions than hard and fast rules. I certainly wasn't the only motorist inclined to do this. On some local expressways if you aren't doing at least 80 mph you just aren't trying. However, four years ago a friendly police officer stopped me to let me know that no, he for one really did take those speed limits seriously. He thought I should as well. To assist me in reaching this future goal he wrote out a ticket that had a fine which I found to be entirely too high. Well I suppose it had the desired effect. I got a radar detector and kept a closer lookout for cops. Most days I rarely drive more than 3-4 mph over the posted speed limit. I simply don't have the money to give away to a podunk municipality over nonsense like that.
But imagine if instead of having to pay the entire fine myself and wreak havoc in my monthly budget I could come to you and force you to pay a significant portion of that fine. You might protest that you weren't the big dummy who was driving significantly over the speed limit. I would respond with something along the lines of how we were all in this together. I would help you out if it came to it. So suck it up buttercup and hand over some cash. If you were forced to pay part of my penalty not only would you be upset (something I wouldn't care about that much to be honest) but more importantly the fine wouldn't be enough to deter my future behavior. Because the net fine to me would then be much lower I would be less likely to be deterred from speeding. That would be a really good deal for me. It might not be such a great deal for you or for the rest of society. The person who incurred the cost and broke the law/rules is not the one who is paying the cost.

When a Montana judge ordered Hyundai to pay $73 million in punitive damages last year to the families of two teenagers killed in a car crash, she found that the South Korean automaker had “recklessly” ignored scores of warnings over more than a decade about the steering defect blamed for the accident. But even if Hyundai is eventually forced to pay the full amount of the damages, the punishment could be substantially reduced through a tax loophole that permits the company to save millions of dollars by deducting any court-ordered punitive damages as an ordinary business expense. The result, critics say, is that taxpayers are in effect subsidizing corporate misconduct. 

Carmakers are far from the only companies that can exploit loopholes that allow them to lower their tax bill by deducting fines, forfeitures and other payments related to wrongdoing. Although the tax law forbids deductions for criminal fines and penalties owed to the government, other kinds of payments — to compensate victims or correct damages — are eligible for a tax deduction.  The rating agency Standard & Poor’s, which was accused of helping to cause the financial crisis with its inflated assessments of mortgage investments, is eligible to deduct half of the $1.37 billion settlement with state and federal prosecutors it agreed to this week, according to the U.S. Public Interest Research Group, a consumer-oriented nonprofit. The result would be a roughly $245 million reduction in its tax bill, the research group calculated.  

At least 80 percent of the more than $42 billion that BP has paid out because of the 2010 Deepwater Horizon rig explosion that killed 11 people and spewed oil into the Gulf of Mexico qualifies for a tax deduction, according to U.S. PIRG. That has saved an estimated $10 billion to $14 billion for the company. The exact amount is uncertain because of the lack of transparency, the group complained.  Brandon Garrett, a law professor at the University of Virginia and author of “Too Big to Jail,” said that BP was “asking taxpayers, in effect, to pay for the victim compensation fund it agreed to set up.”
LINK

So this is an incredibly good deal for companies which have to pay for wrongdoing. Not only do the company officers and owners generally avoid personal damages and/or prison time for misdeeds they even are able to avoid the full impact of the fine by getting the government (i.e. you) to help pay for it. Often they can get the fine or settlement reduced on appeal. It might not be such a great deal for you or for the rest of society. The person who incurred the cost and broke the law/rules is not the one who is paying the cost. That seems to violate basic fairness. This is another example of how our tax code and public perception of welfare leeches. This is why as we recently discussed one has to be careful when one reads about this or that inner-city ghetto or poor trailer park person "cheating" the system out of a few hundred dollars each month. Your disgust or contempt should be saved for the big dog who's crapping on the floor, not the little puppy. Corporations are cheating the government out of BILLIONS. Technically I shouldn't even use the term "cheating" as this is all quite legal. Moral outrage doesn't trump law. The fact that these tax code provisions are still in place proves the amount of power that corporations and their armies of lobbyists and attorneys can bring to bear. A great many of these mega corporations don't pay many, if any income taxes in the first place so this is just par for the course. Until enough people get angry enough to demand changes, these policies will continue. But to demand change you have to know what's going on behind closed doors and out in the open. This is why it's so important to read, inform yourself and get politically active.

It's On Us and Yes Means Yes: Bad Ideas or Overdue Requirements?

The Obama Administration recently launched a public relations campaign to combat sexual assault. The campaign was titled "It's on us". You can check out the video here. I do indeed feel a special obligation to look out for some women. This group would include all related women, particularly younger ones, some really good women friends or close co-workers, and any woman with whom there is, was, or might be an intimate connection. For those women I will risk confrontation and physical danger. I was raised to believe that it's my job to protect such women or offer advice, even if occasionally they eschew such assistance. So that is indeed on me. I wouldn't like it were I ever in a situation where I could have helped a woman and chose otherwise from fear or sloth. But strange women, women who I don't know from Eve, are not my primary concern. This is 2014. Many women proclaim that they are independent and can look after their own affairs. I don't think that they need or want a stranger monitoring their alcohol consumption and clothing choices, or deciding on his own that their planned sexual rendezvous with that dangerous looking biker is too risky and must be halted. It's one thing to see a woman being physically assaulted and callously refuse to assist her. I'm almost 100% certain that I would run to her assistance. There's no ambiguity about what's happening when someone is screaming for help or getting throttled or beaten. But the PSA is discussing preemptive bystander intervention. That's a horse of an entirely different color. That means someone would be overriding the woman's judgment with his own. That might not be such a good thing. It also means women can't be trusted to make their own decisions. I disagree with that.

Police officers make errors. They don't get it wrong all or even most of the time but they do make plenty of mistakes. They arrest people for non-existent crimes, wrongly accuse women of being prostitutes, harass people walking down the street, shoot people's dogs from pure spite, make drug raids on the wrong address, shoot people armed only with wallets, and make other errors that result in people being insulted, arrested, tased, imprisoned, beaten, shot or even killed. And these are the experts! If they make mistakes why wouldn't untrained men make even more mistakes. Police are paid to serve and protect. They often enjoy legal protection for that. But if I preemptively intervene in a couple's private affairs because I think something looks wrong, I could be making a horrible mistake for no gain. Such action contradicts my worldview that, generally speaking, grown people handle their own business. So is it really on me to watch out for people who I don't know? No it's not. Sorry. My Superman suit is at the cleaners. If you, like the woman in the debunked Hofstra "rape" case, happen to think it's a good idea to have simultaneous sex with three or four men in a bathroom , I won't stop you. You're grown. I avoid interfering with grown people's romantic and/or sexual decision making. There's a crude word for this that rhymes with dock locking. And it is an excellent way to get your lights punched out. I can't read minds. I can't distinguish between the couple fondling each other because they're drunk and will shortly have sex that one of them may later describe as rape and the couple fondling each other because they've reunited after a three month business trip and are happily anticipating numerous Kama Sutra approved activities. I don't find anything malicious about the PSA. It amuses me that it calls for patriarchal protection when "patriarchal" is considered a dirty word. I think this PSA is well meaning, if misguided in today's world.

I'm not sure I could say that the "yes means yes" law is well meaning. California recently made a change in the law by passing the so-called "yes means yes" bill. This only applies to college students who are studying at institutions that receive state funding. All non-savages want to reduce the incidence of rape but I just don't see how this law helps with that goal. All I can see coming from this law is unintentional comedy and further degradation of the innocent until proven guilty standard. The very best that could happen is that nothing changes. All we have is a reframed version of the current conundrum in such cases. There are no witnesses other than the accused and the accuser. The accuser says she was raped. The accused claims the accuser agreed to consensual sex. At trial everyone else has to weigh the evidence, such as there is, and decide if the accused was proven guilty beyond a reasonable doubt. Reasonable doubt means that the prosecution has the larger burden of proof. In other words a woman's word alone is not enough to convict a man of rape in a criminal court of law. Nor should it be. There has to be something else. Feminists have never really liked the presumption of innocence as applied to rape accusations and have been chipping away at it for quite some time in the criminal justice system and in the court of public opinion. "Yes means yes" is a way to do that in the college justice system. The Obama Administration has already informed colleges that under Title IX legislation, colleges are to use a weaker "preponderance of evidence" standard when adjudicating rape accusations, something that received serious pushback and criticism from Harvard professors across the political spectrum.

The main problem with "yes means yes" legislation is that such legislation does not at all comport with the reality of how people really initiate or have sex. Although it might be amusing to imagine that everyone sounds like this when engaged intimately, the reality is that they don't. The "yes means yes" law virtually makes this reaction a requirement for every discrete sexual action. So if a man and woman are fooling around on their living room couch the man might ask the woman if she wants to go upstairs. Now both adults know damn well that this question is shorthand for "Would you like to get naked and combine body parts in interesting ways for the better part of two hours?". However under this law if the man did not get explicit permission for each separate action of inserting tab a into slot b, a woman disappointed with his performance, disappointed with her performance or annoyed for any number of other reasons, could come back at a later date and correctly claim that she was raped. A defender of the law might claim that well, better safe than sorry. That's always true when it comes to sex in a lot of different ways. But it's also true that the steps which a man would have to take to avoid liability under this law also happen to be steps which would destroy many women's erotic interest in that man.

More than once I saw disappointment in the eyes of women when I didn’t fulfill the leadership role they wanted me to perform in the bedroom. I realized that women don’t just desire men, they desire men’s desire―and often they don’t want to have to ask for it. I also realized that I was in many ways ashamed of my own sexual desire as a man, and that this was not healthy. 

At this point I was experiencing some cognitive dissonance with my upbringing, but in time learned to take an assertive lead unless I got a “no” or otherwise thought I was about to cross a boundary as indicated by body language.One night I ended up back in a girl’s room after a first date (those do happen in college). She had invited me in and was clearly attracted to me. We were kissing on her bed, outer layers of clothing removed, but when my hands wandered downward she said, “No, wait.” I waited. She began kissing me again, passionately, so again I moved to remove her underwear. “Stop,” she said, “this is too fast.” I stopped.“That’s fine,” I said. I kissed her again and left soon after, looking forward to seeing her again. 

But my text messages received only cold, vaguely angry replies, and then silence. I was rather confused. Only many weeks later did I find out the truth from one of her close friends: “She really wanted you, but you didn’t make it happen. She was pretty upset that you didn’t really want her.”“Why didn’t she just say so then, why did she say we were moving too fast?”“Of course she said that, you dumbass. She didn’t want you to think she was a slut.”

The man was correct to stop. The risks of not doing so were too great. No means no. But a law that presumes that men and women behave exactly the same in or out of the bedroom and that most women still don't expect men to be the ones to "make it happen" is a law that will be abused. The bedroom is not necessarily a place where there is constant talking, negotiating and begging going on. It's not always "Mother may I" unless you happen to be Norman Bates. Some people like other people to take charge. Some people like to take charge. This doesn't indicate lack of consent any more than a man taking the lead in a dance indicates lack of consent. Rape is a horrible crime. It is second only to murder in how despicable it is. Rape means lack of consent. That means someone does something to you without asking OR you are unable to consent OR you tell them no and they proceed anyway. Rape should not mean that you and someone are having sex, one of you tells the other one to move to the left and a week later one of you is in front of a college kangaroo court because after all there was no explicit permission granted for that "move to the left" order.

Now you would think that civil libertarians would be the ones leading the charge against this law. Well some are. But as I've always said we are all hypocrites in some way or the other. There are some people on the right who are big defenders of the Bill of Rights, except when it comes to black people being harassed or searched without warrant by the police. At that point they will talk about black criminals, say that there's an emergency and claim that the police are justified in unconstitutional activities against the black population. They will demagogue on the issue by claiming that if you're against stop-n-frisk you must be for "black crime".

Well not to be outdone in contempt for the underlying values of our legal system, Ezra Klein, while openly admitting that "yes means yes" is a bad law and that innocents will be harmed, still says that he supports it because the rape crisis on college campuses justifies extreme actions.

If the Yes Means Yes law is taken even remotely seriously it will settle like a cold winter on college campuses, throwing everyday sexual practice into doubt and creating a haze of fear and confusion over what counts as consent. This is the case against it, and also the case for it. Because for one in five women to report an attempted or completed sexual assault means that everyday sexual practices on college campuses need to be upended, and men need to feel a cold spike of fear when they begin a sexual encounter.

Colleges have settled into an equilibrium where too little counts as sexual assault, where the ambiguity of consent gives rapists loopholes in which to hide, and forces women to spend their lives afraid. The Yes Means Yes laws creates an equilibrium where too much counts as sexual assault. Bad as it is, that's a necessary change.

Da Kommissar! That should be the law's primary purpose. These evil men need to feel fear when they start having sex. They should know that the state is watching them. There are no innocents in Klein's world when it comes to rape. There are only guilty people who haven't been caught yet. And if well a few eggs get broken while making an omelet, well we can't build our Brave New World without a few sacrifices along the way. Anyone who disagrees is obviously pro-rape and need not be taken seriously. Klein shows shocking disregard for one of the basic foundations of the Anglo-American legal system, the Blackstone Ratio. Obviously Klein would reverse that ratio. In his ideal world it's better that ten innocents suffer than one rapist go free. And if this "yes means yes" law makes those college men live in fear, so much the better. Again, for those of us who are not in college, do not live in California or have sons going to college in California, this may not seem like too much of a big deal. But make no mistake, this law will eventually spread beyond California and beyond the college judicial system. And that would indeed be a big deal because even more men would be convicted of crimes which they did not commit. This "yes means yes" law is simply alien to our stated values of law. It's also important to point out that over the past twenty years there has been a large decrease in the numbers and rate of sexual assault against women and girls. The idea that there is some sort of epidemic of rape is just not accurate. The way to reduce rape is to harshly punish convicted rapists and teach men and women that drunkenness is not a necessary precursor for sex. You don't reduce rape by claiming that almost every man is a rapist and making men prove their innocence. 

I thought we wanted the state out of people's bedrooms? Unless you want men bringing a public notary and video camera into the bedroom or avoiding college women altogether, this "yes means yes" law may have some unpleasant unintended consequences. Everyone is against rape. But there must be a better way to combat it than this.

What do you think?

Who Runs Kansas Schools: The Courts or The Legislature

Kansas is a centrally located state that has often been ground zero for a number of social changes, some good and some bad. John Brown made his bones in Kansas. It was after all Kansas that rang the death knell for enforced legalized school and other forms of racial segregation in the Supreme Court case Brown vs. Board of Education. The author Thomas Frank chronicled the slow rise of conservative and occasionally racist populism in his noted book "What's the Matter with Kansas". Part of Frank's thesis posits that fiscal conservatives use hot button cultural issues to whip up resentment among the socially conservative base in order to get said base to support policies and ideologies which are bad for them economically. To add insult to injury it was rare that conservative politicians even delivered on promises to the socially conservative segment of their base, instead preferring to promote fiscal conservatism. This theory was really popular among some progressives as it tended to confirm some of their deepest beliefs about conservatives. Frank's thesis is a little out of date since the national energy on one of the hotter social issues of the day, gay marriage, seems to be almost entirely with the liberal pro-gay marriage supporters. 

However another key tenet among the conservative base is the importance of having the people, and not the judges, decide what is correct among competing political ideas. "Activist judges" remains a powerful epithet for many on the right. Some fervently hold to the idea that a great deal of mischief is caused by know it all, elitist, out of touch, Ivy League, smug judges who arrogantly substitute their own preferences for plainly written law or long agreed upon custom.

Or to put it another way some conservatives just throw a fit and start hurling insults when their favored position loses in court. People on the other side are hardly immune to this of course. Check out the liberal reactions to the Supreme Court's Heller decision. Temper tantrums seem to have become more common for everyone. Still, this conservative sensitivity and hostility to the very existence of judicial review was touched recently in Kansas. Like many states Kansas is seeing new battles over education and social spending. Conservatives and liberals almost by definition usually have quite different political preferences for the spending levels in those categories. These battles have not only been touched off by tax cuts or other reductions in spending but by the recession driven crash in property values in many localities. So even if some states wanted to keep the same level of school funding, it was sometimes very difficult to do so. States can't print their own money. States, unlike the Federal government, are generally constitutionally forbidden to run deficits. Still in Kansas, it appears that politics, not necessity is the primary driver of the latest contretemps. It's not necessarily that Kansas politicians can't spend the money. It's that they don't want to do so.

Kansas’ current constitutional crisis has its genesis in a series of cuts to school funding that began in 2009. The cuts were accelerated by a $1.1 billion tax break, which benefited mostly upper-income Kansans, proposed by Governor Brownback and enacted in 2012.

Overall, the Legislature slashed public education funding to 16.5 percent below the 2008 level, triggering significant program reductions in schools across the state. Class sizes have increased, teachers and staff members have been laid off, and essential services for at-risk students were eliminated, even as the state implemented higher academic standards for college and career readiness.

Parents filed a lawsuit in the Kansas courts to challenge the cuts. In Gannon v. State of Kansas, a three-judge trial court ruled in January 2013 for the parents, finding that the cuts reduced per-pupil expenditures far below a level “suitable” to educate all children under Kansas’ standards. To remedy the funding shortfall, the judges ordered that per-pupil expenditures be increased to $4,492 from $3,838, the level previously established as suitable.

Rather than comply, Governor Brownback appealed to the Kansas Supreme Court. A decision is expected this month. A victory for the parents would be heartening, but if it comes, would Governor Brownback and legislative leaders uphold the right to education guaranteed to Kansas school children? The signals thus far are not promising. If the Kansas Supreme Court orders restoration of the funding, legislators are threatening to amend the state’s Constitution by removing the requirement for “suitable” school funding and to strip Kansas courts of jurisdiction to hear school finance cases altogether. And if the amendment fails, they have vowed to defy any court order for increased funding or, at the very least, take the money from higher education.

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So what's your opinion. Most state constitutions make it clear that the state has the responsibility to provide for public education for all. As in most things though the devil is in the details. On the one hand the state can't dodge that responsibility. On the other hand, times are tough all over. If the elected politicians of Kansas decide that their state is best served by a 16.5% funding cut to education, isn't that their business? Or is it ultimately the Court's job to determine what the mix of expenditures should be? Public school outcomes are never just about money in the system but on the other hand are there public schools that have provided better results with much less money? I can't think of too many where I grew up.  You can't cut a school system off at the knees and demand higher performance can you? Or can you? Who should prevail in this battle?

What's your call?

Are legislators and/or executives ever justified in threatening to ignore court rulings they dislike?

Jury Duty: Who Are Your Peers?

What is a peer?

Well according to the dictionary a peer is a person who belongs to the same age group or social group as someone else.  A peer is one that is of equal standing with another or especially one who belongs to the same societal group based on age, grade or status.

You have a constitutional right to a criminal trial by a jury of your peers. I will leave it up to the experts like The Janitor or Old Guru to fully break down exactly what are the exceptions to that rule and what peers mean in a legal setting but for many non-lawyers I think it's safe to say that in that context peers would mean adult US citizens. There are of course some questions about whether or not a criminal defendant is guaranteed to have a jury made up of people who share their immutable characteristics (I don't believe this is the case) or whether the state can deliberately and maliciously exclude people who share such characteristics with the defendant (also I don't think this is, with a few exceptions, the case).

But in today's world of ever increasing globalization and immigration, should peer be restricted to US citizens? And when it comes to such things as elections and jury duty who really gets the last word? The federal government or the states? Well that answer can often depend on which side you're on when it comes to such things as immigration. People who point to federal supremacy when a state like Arizona tries to make life more difficult for illegal immigrants often turn a blind eye when a state like California tries to make life easier for them. And people who scream about the primacy of states rights when Alabama attempts to kick out illegal immigrants wax poetic about federal supremacy when California, Illinois or New York try to do end runs around specific federal programs designed to identify and deport illegal immigrants.

The latest proposal coming out of, you guessed it, California, does not, despite what detractors imply, apply to illegal immigrants, but it does seek to extend rights and duties usually thought only to accrue to citizens to legally resident non-citizens.

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SACRAMENTO — Legal immigrants who are not American citizens would be able to serve on juries in California under a bill that lawmakers sent to Gov. Jerry Brown on Thursday.The measure joins a proposal already on the governor's desk that would also allow legal permanent residents to serve as poll workers in California elections.The bills are among a handful that would expand immigrant rights in California and have sparked rancorous debate in the Legislature.

Immigrants "are part of the fabric of our community," Assemblyman Bob Wieckowski (D-Fremont) said during the floor debate Thursday. "They benefit from the protections of our laws, so it is fair and just that they be asked to share in the obligation to do jury duty."

Republicans opposed the measure, which passed the Assembly with a bare majority. The Senate approved the bill Monday."I do think there is something called the jury of your peers," countered Assemblyman Rocky Chavez (R-Oceanside). "Peers are people who understand the nuances of America."

He noted that some immigrants come from countries where suspects are guilty until proven innocent and where people are taught to obey authority, not question it.The bill, AB 1401, was authored by the Assembly Judiciary Committee, which seeks a way to expand the pool of eligible jurors in California...

I think you can probably guess what I think of this proposal but just in case you can't I will spell it out. There is an argument that can be made for the elimination of the nation state. There is also an argument that can be made that nationalism is just another form of bigotry and them vs. us thinking. You could argue that separating people or granting them rights based on where they were born on this planet is not really all that different than basing their level of rights on other characteristics over which they have no control such as their race, ethnicity, gender, sexuality, etc. Non-citizens have legally voted in previous elections.

I am wholly unsympathetic to these arguments. The nation state isn't going anywhere anytime soon. Neither are different cultures and different ways of understanding the world or different ideas about how a criminal justice system works.

There is a process by which anyone on this planet can become an American citizen. Depending on which year you're referencing, about a million or so do each year, in which case they can vote, serve on juries and do other things which, usually but not always in the American political system have been reserved to citizens. When you vote or serve on a jury you are exerting influence over a political system you are invested in and for which you have some form of loyalty or hopefully understanding. This isn't perfect of course. There are plenty of stupid or malicious people who vote or serve on juries (how else can you explain the election of Ted Cruz or the acquittal of Casey Anthony) but that is our system. In many respects it's the least bad of all the others.  

My peers are American citizens. I do not wish to be judged by non-citizens. I do not want American elections to have non-citizens participating in them as poll workers or really in any capacity. I know that there are many smart, sober, well-read and intellectually curious permanent non-citizens in this country. I work with several and have no problems saying that some are far more intelligent than I. All the same though this isn't their country unless and until they become a citizen. I don't think it's too much to ask that jury duty and any sort of election work be restricted to US citizens.  

Am I wrong?

Should permanent legal residents be able to serve on juries?

What should be the distinctions between citizens and legal residents?

I Won My Case At The YMCA!

There are some musicians such as Prince, Toby Keith, Madonna, Jimmy Page and several others who are quite knowledgeable about the business side of the music business. They make it a point never to make the same mistake twice. They often have complete control over when, where, how and by whom their music is used. If someone is using their music then they are going to be paid in full, right down to the penny, according to the law governing that use. Although such musicians are not uncommon today, I don't know that they're the majority. It's a rare person who is expert in tax, copyright and contract laws of multiple jurisdictions, can successfully run international multimillion dollar concert promotion companies, can handle all their own merchandising, advertising and publishing, understands accounting backwards and forwards, and finds the time to continue to be the one in a million amazing songwriter, bandleader, musician or performer who originally grabbed the adulation of millions. There have always been performers who were more concerned with "sex, drugs, and rock-n-roll" than with ensuring that their business was tight. When their manager or lawyer told them to sign something they signed it. When their record company got cute with royalties they didn't demand an outside audit. And when a radio DJ's name showed up on a song they alone wrote they shrugged and told themselves that was the cost of doing business.

Fool me once, shame on you. Fool me twice, shame on me. One person who learned that the hard way and has fortunately lived long enough to finally see the law work in his favor rather than against him is Victor Willis, better known as The Policeman in the group The Village People.

In the lucrative world of music copyright, it may be something of a watershed moment: on Friday, after six years of legal wrangling and decades after he wrote the lyrics to the hit song “YMCA,” Victor Willis will gain control of his share of the copyright to that song and others he wrote when he was the lead singer of the 1970s disco group the Village People. Mr. Willis, who dressed as a policeman during the group’s heyday, was able to recapture those songs, thanks to a little-known provision of copyright legislation that went into effect in 1978. That law granted musicians and songwriters what are known as “termination rights,” allowing them to recover control of their creations after 35 years, even if they had originally signed away their rights.

“YMCA” is one of 33 songs whose copyright Mr. Willis was seeking to recover when he first went to court. Hits like “In the Navy” and “Go West” are part of that group, but another well-known song whose lyrics Mr. Willis wrote, “Macho Man,” was excluded because it was written just before the 1978 law went into effect. In a telephone interview from his home in Southern California, Mr. Willis said he has not yet decided how best to exploit the song catalog. “I’ve had lots of offers, from record and publishing companies, a lot of stuff, but I haven’t made up my mind how it’s going to be handled.”

He added, however, that he is thinking of prohibiting the Village People — the band still exists and is touring this month and next, though with largely different members — from singing any of his songs, at least in the United States. “I learned over the years that there are some awesome powers associated with copyright ownership,” Mr. Willis said. “You can stop somebody from performing your music if you want to, and I might object to some usages.” 

Mr. Willis had declined interview requests during earlier stages of the dispute, but said he decided to speak out now so as to alert other artists, both established and emerging, to protect their copyrights. He said it was only because his wife is a lawyer that he became aware of his termination rights. “I’m hoping that other artists will get a good lawyer and get back the works that a lot of us gave away when we were younger, before we knew what was going on,” he said. “When you’re young, you just want to get out there and aren’t really paying attention to what’s on paper. I never even read one contract they put in front of me, and that’s a big mistake.”

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Good for him I say. Again, no matter what sort of business you enter into, whether it's creative or prosaic, whether you're a cubicle drone working for Penetrode Corporation or an innovative fly by the seat of your pants entrepreneur it's critical that you always maintain awareness of your rights and your options, especially if you're in a contractual relationship. Because as we've discussed before there is always someone willing to take horrible advantage of you and your ignorance or deference and smile at you while they do so. No one cares as much about you as you do. Believe that.