The Long View

Senator Hillary Clinton, Senator Barack Obama, c. elegans, lions and water buffalo

Sat, 10 May 2008 15:30:40 GMT

Group Dynamics of Simple Cells and Lesser Mammals

"It is well established that single cells respond to physiological stress on their own, cell by cell. Now we've shown this is not the case when individual cells become organized to form a multicellular organism. Now it is all for one -- an integrated system where the cells and tissues only respond to stress when the neuronal signal says to respond as an organism."

Northwestern University. "Surprising Discovery: Multicellular Response Is 'All For One'." Science Daily 10 May 2008.http://www.sciencedaily.com/releases/2008/05/080508143317.htm

C. elegans – the worm this study was based on -- is one of the least complex life forms on Earth, with 958 cells. Today, mirable dictu, we discover they can rally together against a common adversary.

We already knew from You Tube that lions can collectively out-pull a crocodile in a tug-of-war; and then, moments later, water buffalo can dramatically overwhelm those same lions to save a calf. See “Battle at Kruger”, http://www.youtube.com/watch?v=LU8DDYz68kM .

What lessons might Senators Hillary Clinton and Barack Obama learn from these examples?

Tue, 29 Apr 2008 11:20:36 GMT

Technorati Profile

Wachovia Allegedly Facilitated Telemarketers in Ripping Off Elderly Customers

Sat, 26 Apr 2008 12:23:01 GMT

     The Wachovia Corporation agreed to a $144M settlement with the Comptroller of the Currency without admitting liability for allowing telemarketing firms and payment processors to take advantage of customers.
     Apparently, Wachovia failed to properly monitor the submission of checks signed in blank and other procedures automating monthly withdrawals. It sounds more like "walk over ya" than looking out for their elderly and less educated clientele -- those most susceptible to being scammed.
     Federal criminal defendants who target vulnerable victims receive an enhanced sentence. Corporations just pay.

Probable Cause Eliminates Rights Under Fourth Amendment

Fri, 25 Apr 2008 20:35:29 GMT

Fourth Amendment Protection
Disappears if Police Have Probable Cause

The Supreme Court of the United States (“SCOTUS”) decided Virginia v. Moore on April 23, 2008.

The Ruling: If law enforcement sees you commit a crime – any crime – even if it only calls for a citation or summons under state law, you may no longer be protected from search and seizure under the Fourth Amendment[1] to the U.S. Constitution. You can be summarily arrested and searched. Hello, loiterers and other mundane miscreants: THIS IS ABOUT YOU !

The Facts: Moore was stopped in the City of Portsmouth, Virginia in 2003 for driving on a suspended license. Under Virginia state law, he was supposed to receive a summons, but the police made a mistake and arrested him. Then, the police took him to his hotel room and he gave consent for them to search it. At that point, the police realized they had not searched him because each of them thought the other had done it; so they searched him and found 16 grams of crack and $516.00. Moore was convicted of possession of cocaine with intent to distribute, and sentenced to 5 years with 3½ to serve.

The Issue: Do police violate the Fourth Amendment to the U.S. Constitution when they see a crime (meaning they have probable cause) and arrest and search the person, but the arrest is illegal under state law?

Discussion: This was a 9-0 ruling, with Justice Scalia delivering the opinion for eight Justices, and Justice Ginsburg concurring.

Their formula is simple enough -- if probable cause exists under the Federal standard, then law enforcement can ignore state law and immediately arrest an individual and search them.

Why? Because ruling otherwise would constrain Federal law applying the Fourth Amendment, making enforcement different in each state (and maybe even from county to county). It would be too complicated to untangle a varying the impact of Federal and state rights upon each other in every situation.

So, look around next time you are thinking of pitching a cigarette butt or jaywalking. If the police see the smallest offense, you may have just lost your Fourth Amendment rights.

[1] “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Fourth Amd., U.S. Constitution.

Hedonic Adaptation and Litigant Settlement Posture

Fri, 25 Apr 2008 16:38:37 GMT

Our Happiness Baseline

It appears humans have a thermostat that brings them back to a Quality of Life status quo, even if they win the lottery or have an automobile accident. Technically, this is called the “hedonic treadmill”. It has the most impact in tort cases where the plaintiff has limb deficiencies, spinal cord injuries, and burns; or where they require colostomies or dialysis. The effect is least evident in cases of chronic noise, dull pain, and headaches; in cases of unemployment, divorce and separation, and with progressive conditions like rheumatoid arthritis and multiple sclerosis. These two classes of personal injury are called “adaptable” and non-adaptable; because the former group adapts, returning to a point close to their pre-injury happiness baseline; and those in the latter group do not.

Professor Jonathan Masur at the University of Chicago Law School proposes three “hedonic adaptation” consequences for tort litigation in Federal courts:[1]

1. The longer plaintiffs with “adaptable” injuries wait for trial, the more they will reduce their settlement demands;

2. Cases involving adaptable injuries will settle more than cases with non-adaptable injuries; and

3. The number of settlements in hedonic adaptation cases will increase in direct proportion to the length of litigation time before trial.

+++

These conclusions are consistent with my observation of other normalizing processes in the human body, so I think they are probably accurate. Other examples of recovery from a major disruption include:

(a) Extra sleep after sleep deprivation, followed by resumption of the prior sleep pattern;

(b) The gradual return to former obesity after weight reduction on a “crash” diet; and

Furthermore, as litigators are well-aware, many factors influence settlements besides wealth maximization; including optimism bias, prospect theory and fairness. Hedonic adaptation certainly appears to be one.

[1] Bronsteen, John , Buccafusco, Christopher J. and Masur, Jonathan S., “Hedonic Adaptation and the Settlement of Civil Lawsuits,” . Columbia Law Review, Forthcoming Available at SSRN: http://ssrn.com/abstract=1098271

Judge Donald P. McDonough Goes by the Book

Sat, 05 Apr 2008 12:16:24 GMT

Donald P. McDonough, Chief Judge of the General District Court of Fairfax County, Virginia announced in open court on April 2, 2008:

“Unlike some of my junior judges, I’m not spending my time whittling away square pegs for round holes.”

He elaborated later by explaining that his court has 88 staff, 372,000 traffic cases, and 40,000 civil cases. If a pro se litigant (someone representing themselves without legal counsel) files a paper that fails to comply with the rules and statutes, their case is dismissed. Attorneys will receive the same treatment. According to J. McDonough, who will be retiring, applying this policy is “one of the advantages of a terminal appointment.”

Pearson v. Callahan and the Fourth Amendment Privilege Against Unreasonable Searches and Seizures

Tue, 25 Mar 2008 13:35:24 GMT

In Pearson v. Callahan, No. 07-751, the U.S. Supreme Court will consider what circumstances justify a warrantless search under the Fourth Amendment to the U.S. Constitution.

Afton D. Callahan invited a police informant into his trailer home for the purpose of selling him methamphetamine. When the sale was completed, the informant notified police by wire and they immediately searched the trailer without a warrant. A Utah state court convicted Callahan of possession and distribution; but the state appeals court reversed, finding a violation of Callahan’s Fourth Amendment protection against unlawful search and seizure. Callahan then sued the police officers for damages.

My view is that allowing a warrantless search whenever someone invited into a home sees a crime would gut the Fourth Amendment protection against illegal searches and seizures. People do not consent to a blanket waiver of their right to a search warrant every time an invited guest or tradesman passes through their door.

A better rule is that a knowing and intelligent waiver of Fourth Amendment rights occurs only when a person authorized to admit others into their home either does so for an illegal purpose like a narcotics transaction or prostitution; or opens the door to the general public.[1]

This Fourth Amendment interpretation is akin to the principle in civil law that you must do equity to receive equity.

Furthermore, if you are participating in a crime and something illegal is within line of sight and risks disappearing before police can obtain a warrant – and a warrant would likely be issued if law enforcement took the time to obtain one – then it seems reasonable to permit proceeding without one. By comparison, when a traffic stop is supported by probable cause, this same approach permits peering into the glove box for the protection of the arresting officer. Potentially disappearing contraband in a criminal context -- and possibly injured officers -- are exigent circumstances that should in my opinion justify an exception to the requirement of a warrant.

The open-invitation-to-the-public prong of my warrant exception calls for more explanation: A broker’s open house tour group would not be the general public, because the invitation was limited to real estate brokers and agents. An undercover officer could not lawfully join that tour and signal for a warrantless search from inside the home. In contrast, a Sunday afternoon open house advertised in the local paper would be different, as that would be open to anyone.

The attractiveness of my proposal is that it resolves the Fourth Amendment issue at the front door with simple, clearly defined criteria. If the person opening the door is permitted to let people in, and allows someone to enter for a criminal purpose or in total disregard of the visitor’s identity – then their right to a search warrant should be deemed waived.

[1] Being a family lawyer facilitates my “thinking outside the box” which in this case is built out of prior Fourth Amendment case law.

An Ethological Context for Adultery

Sun, 16 Mar 2008 11:57:04 GMT

Eliot Spitzer Breaks Bad[1]

I strayed from the law recently to review a restaurant.[2] I now do so again to comment on the conduct of former Governor Eliot Spitzer of New York.

My college education in Human Development convinces me that humans should learn more about themselves from ethology.[3] In Governor Spitzer’s case, I believe that genetic forces exert subtle influence upon our behavior, sometimes in contradictory ways. One force at work among us as in other species is the social taboo against adultery; the other is the hard-wired male urge to propagate and aggrandize.

Because humans are so complex, the male libido is – as Freud would say – sublimated. Possible recent examples include the alleged killer of Eve Carson, the North Carolina student body president, photographed attempting to use her ATM card from the driver’s seat of her SUV; Richard F. “Dickie” Scruggs, one of the most successful trial lawyers in America (known as “Zeus” in law school) conspiring to bribe a judge and Dr. Stephen Scher, convicted of murdering his best friend (an attorney) by shooting him in the heart so he could marry his best friend's wife. Well, okay, Dr. Scher was not exactly subtle about his libido.

We all push the envelope at some level in ways too numerous to mention. It might be as (relatively) innocuous as dodging income withholding on a domestic servant; or pirating music or software. I do not condone such conduct. I simply suggest that aberrant behavior by otherwise normal people who think they will not or should not be punished may, in an ethological sense, be part of human nature.

The fateful question for the human race seems to be whether, and to what extent, the development of civilization will manage to overcome the disturbance of communal life caused by the human drive for aggression and self-destruction.”

Sigmund Freud, “Civilization and Its Discontents”. Cited in “At the Forest’s Edge” by Anthony Daniels, in The New Criterion, Volume 26, Number 7, March 2008, p. 16.

Governor Spitzer, as a “PEP” (Politically Exposed Person) was probably more susceptible to feelings of arrogance and infallibility than ordinary people. Even so, for him to cuckold his wife destroying his career, threatening his marriage, and possibly costing him his law license was highly illogical behavior. Observing other species like the tree swallow cheat on their partners may not bring us closer to understanding the Governor, but it does offer what lawyers call “precedent.”

[1] “Breaking bad” is “… slang for what happens when someone’s actions take surprisingly uncharacteristic, often law-breaking turns.” “Bad Chemistry” by Nancy Franklin, New Yorker Magazine, March 3, 2008, p. 86.

[2] A blog post on March 8, 2008 reviews the new McLean, Virginia restaurant, Monterey Bay Fish Grotto.

[3] Ethology is the study of animal behavior among other species.

The Declining Significance of Reality

Mon, 10 Mar 2008 12:16:13 GMT

The Declining Significance of Reality

I read today that Montana is the only state to permit marriage by proxy, and Iowa is the only state that does not recognize those marriages. My surprise is not that someone can marry in this manner, but rather that it is not more widespread.

So much of our lives has become representational. Uncontested divorces occur in many states without the defendant showing up. In California, neither party to a no-fault dissolution needs to attend if correct paperwork is submitted. You can transact real estate with a power of attorney. Amazon and eBay built their fortunes on the attractiveness of no physical place being required to buy or sell. And, as an attorney in a digital environment, I am not necessarily at my office or in court unless I am seeing a client, judge or jury.

Simultaneous with this reduced physical presence is our acceptance of more representational communication than ever before; including email, instant messaging, YouTube and iPod. Since all we ever know arrives through our senses, if the input adequately approximates reality, why travel? The reality-based experience (or attended marriage ceremony) is increasingly too time-consuming or expensive compared to the virtual alternative that we find almost as good.

Incarcerating Criminals and Killing Terrorists Have Somthing in Common

Mon, 10 Mar 2008 11:00:48 GMT

Treating a Symptom Rather than the Disease

The New York Times reports in an editorial this morning that the United States has more prisoners than any other country with reliable statistics. Their opinion?

“The key, as some states are learning, is getting smarter about distinguishing between violent criminals and dangerous repeat offenders, who need a prison cell, and low-risk offenders, who can be handled with effective community supervision, electronic monitoring and mandatory drug treatment programs, combines in some cases with shorter sentences.”

In my view, this is correct. Adding prisons and lengthening sentences instead of addressing underlying causes is like treating a symptom rather than the disease.

A comparison can be made to our battle in Iraq: As our generals recently declared, victory cannot be attained solely by military means; it requires significant political and economic reform.

A New Tysons Corner Virginia Seafood Niche

Sat, 08 Mar 2008 15:52:47 GMT

Monterey Bay Fish Grotto

A New Tysons Corner Seafood Niche

Attorneys and others in the business Mecca of Tysons Corner sometimes escape advice and advocacy for some alimentation. And today, a tendril of a Mount Washington, Pennsylvania dining institution, Monterey Bay Fish Grotto, enters the local competition among top-of-the-line seafood restaurants.

Choosing a high-rise office building -- as did its principal rivals The Palm, Capital Grille and McCormick & Schmick’s -- Monterey Bay is immediately across Chain Bridge Road from the Tysons Corner Center. It does such an extraordinary job of replicating an underwater world that from Tyson’s Boulevard at night, one protruding dining room appears at first glance to be an aquarium. From within, booths resemble niches on a rock face; hanging lamps are jellyfish; and two chandeliers in the main dining room are enormous swimming prey, seemingly woven from reeds. The visual appeal is staggering, surpassing the physical allure of any other eating establishment in McLean.

The food largely matches expectations created by the interior design. Two entrées, Rodi-grille-style Atlantic salmon and West Coast swordfish, were exceptional. The tenderness of the latter was even astonishing, under its Oscar-style Hollandaise sauce with crabmeat and asparagus.

As often happens in American restaurants, though, the side dishes seemed pale in comparison to the main event: Baby carrots were visually engaging but too crisp; while a mashed potato was devoid of distinction.

Each dessert was a caloric colossus; crème brulée, a white chocolate macadamia tower with praline cookies, and others. Why, I wonder, are sensitive treatments of furnishings and fish so often not complimented by something lighter, perhaps a baked apple with an Arizona prickly pear coulis?

Meals in this price tier are frequently anchored by heavy deserts -- and regularly share the table with over-the-top drinks. Monterey Bay’s breadth of selection in single malt, cognac and wine was as impressive as it was costly. But look in on the private dining room encased in glass where every wall is horizontal wine bottles, floor-to-ceiling. Almost a coral reef, this is another triumph of architectural design.

Finally, there was the Monterey Bay Achilles heel; a staff in training. The zeal to please and lack of transparency interfered with enjoyment of the food. In addition to communicating excessively, they delivered wine too late in the main course; and brought desserts to the wrong table.

Hopefully when service improves, the stunning décor and commendable entrées will earn Monterey Bay the recognition accorded similar restaurants nearby. That is something Monterey Bay deserves.

Monterey Bay Fish Grotto opened March 8, 2008 at 1800 Tyson’s Boulevard, Suite 100, McLean Virginia 22102. It is located near the Route 123, Chain Bridge Road exit to the Beltway. Their phone is 703-917-0661.

Comparison of Supreme Court Employment Discrimination Decisions

Fri, 29 Feb 2008 16:18:31 GMT

The Ledbetter and Holowecki Employment Discrimination Decisions
Deal with a Procedural Deadline and with Form, Respectively

UPDATE (April 27, 2008): New York Times columnist Gail Collins pointed out in an April 26th op-ed that Senator John McCain opposes a legislative attempt to overturn Ledbetter because the bill “opens us up for lawsuits, for all kinds of problems and difficulties.” In other words, she reasons, McCain believes employers should be motivated to hide employment discrimination for 180 days. After that EEO Complaint-filing deadline passes, illegal conduct cannot be challenged in court, even if the employee was not yet aware of it. How is that fair?

Two recent Supreme Court decisions, Ledbetter v. Goodyear Tire and Rubber Company[1] and Federal Express Corporation v. Holowecki[2] are not inconsistent. The former addresses the timeliness of a discrimination charge and the latter deals with the charge’s content.

In Ledbetter, a 5-to-4 opinion by Justice Samuel Alito held that a claim of pay discrimination must be filed within 180 days of an employer’s adverse pay decision. Ledbetter had not filed her charge of pay discrimination within that window of opportunity; however, she argued the discrimination was continuing with every paycheck she received containing less money for her than for male co-workers similarly situated. In other words, the Supreme Court determined that Ledbetter had filed too late to challenge conduct by her employer occurring more than six months earlier.

On the other hand, Holowecki’s paperwork was filed before the deadline. The questions in his case were what the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq., considers a “charge” of discrimination; and whether his filing complied with the definition. The definition in the regulations, 29 CFR § 1626.3 (2007), and elsewhere was not clear; so the Supreme Court did some extrapolating in order to conclude that Holowecki stated a valid claim.

The 7-to-2 majority (with Justices Thomas and Scalia dissenting) applied a four-step rationale in finding that Holowecki’s intake form and 6-paged affidavit were a valid EEOC charge. (1) The form and affidavit met all the substantive criteria of the regulations; (2) the employee clearly asked in his affidavit for EEOC to end the discrimination; (3) EEOC itself considered the paperwork sufficient to constitute a charge; and (4) Holowecki was pro se, entitling him to more latitude that might be accorded an attorney.

In other words, even though their Supreme Court majorities are different, the opinions in Ledbetter and Holowecki are neither at odds with each other nor particularly surprising: The message to charging parties is that EEOC claims must be filed on time; and the sufficiency of an ADEA charge depends on content; counsel; and more than anything else, condonation by EEOC.

[1] LILLY M. LEDBETTER v. THE GOODYEAR TIRE & RUBBER COMPANY, No. 05-1074. ___ US ___ (May 29, 2007).

[2] Paul HOLOWECKI v. FEDERAL EXPRESS CORPORATION, No. 06-1322, ___ US ___ (February 27, 2008).

Identity Theft

Fri, 29 Feb 2008 13:47:58 GMT

Failure to Timely Remedy Identity Theft Costs
Equifax $150,000 for Violation of Fair Credit Reporting Act

The U.S. Court of Appeals for the Fourth Circuit issued an important decision on December 27, 2007 involving improper conduct by a credit reporting company. The case, Sloane v. Equifax Information Services LLC (No, 06-2044), concerns violation of the Fair Credit Reporting Act (FCRA); 15 U.S.C.A. § 1681 et seq. (West 1998 & Supp. 2007).

As our economy flirts with recession, increasing numbers of Americans face declining credit scores, identity theft, foreclosure and bankruptcy. In this environment, Sloane is an FCRA roadmap for recovering damages from improper credit reporting, failure to correct errors in a timely manner, and emotional distress.

In upholding an award of $150,000.00 in damages to Sloane, the Court of Appeals offers a compelling comment on how identity theft has blindsided the credit reporting industry and ravaged consumers:

The recent emergence of identity theft and the rapid growth of the credit-reporting industry present a unique dilemma without clear precedent. When Congress enacted the FCRA in 1970, it recognized the vital role that credit reporting agencies had assumed within the burgeoning culture of American consumerism. … Since the mid-1980s, the introduction of computerized information technology and data warehousing has led to the national consolidation of the credit-reporting industry into the "Big Three" — Equifax, Experian, and Trans Union — and rendered credit reporting an integral part of our most ordinary consumer transactions. According to recent data, each of these national credit reporting agencies has perhaps 1.5 billion credit accounts held by approximately 190 million individuals. … Each receives more than two billion items of information every month, and together these three agencies issue approximately two million consumer credit reports each day.

Against this backdrop, identity theft has emerged over the last decade as one of the fastest growing white-collar crimes in the United States. While earlier estimates placed identity theft at between 500,000 to 700,000 individuals per year, more recent random victimization surveys conducted by Synovate for the Federal Trade Commission estimate that, between 1998 and 2003, approximately 27.3 million adults discovered they were the victims of identity theft, with 9.91 million adults discovering they were victims in 2003 alone.

Sloane v. Equifax Information Services LLC, No. 06-2044 at 13-14 (4^th Cir. 2007) [Citations omitted].

Second Amendment Rights of Individuals

Fri, 08 Feb 2008 10:50:16 GMT

Members of the U.S. Congress filed a brief supporting an _individual_ right under the Second Amendment. The brief appears in PDF at --

http://media.washingtonpost.com/wp-srv/content/politics/DC_Gun_Rights_Amicus_Brief_020808.pdf?sid=ST2008020800127

An Injunction Against Spousal Abuse May Be Too Hard to Obtain

Thu, 31 Jan 2008 13:07:56 GMT

Easing Qualification for a Civil Protection Order

In January 2008, Christine Lozier-Dunn, aged 36, was shot to death in a bathroom at Bobbie Noonan’s Child Care in Cape Coral, Florida. She taught there, her child was enrolled there, and her alleged assailant was her estranged husband. Days before, a Lee County judge had denied the victim’s request for a protective order. According to the local newspaper, The News Press, police were dispatched 90 seconds after receiving a 9-1-1 call. They arrived 4½ minutes later, only to hear the fatal shots 20 seconds after that.

The justification for issuance of an injunction to protect family members from abuse is always a balancing act, and there will never be a perfect solution. In this case, the killer scaled a six foot fence and apparently used the entrance door code provided to him as a parent. It does not seem that police response time could have been any faster or physical security any better. But our laws should always be subject to re-examination, especially when innocent people are dying.

Psychologists tell us that rare yet foreseeable events often have individual and societal impact vastly exceeding what economics or statistics would justify. The World Trade Center attack is an example; there are many others. Such events cause us to re-examine existing laws and procedures; sometimes making improvements and other times implementing a new model.

Obtaining an injunction against stalking, assault and similar interpersonal acts requires proof of immediate and substantive threatened harm. In many cases, the complaining witness must state under oath what serious conduct the other person has engaged in or verbalized that they would do. Here is the problem: people who commit these acts often do not perform or announce them in advance. A judge’s rationale under existing law is that if someone did not do the illegal conduct or similar conduct before or say they would do it, “Injunction denied.” This leaves people like Christine Lozier-Dunn unprotected, even though they are at risk and might have presented compelling evidence in a different way.

Fault-based divorce is disappearing in the United States -- but where it still exists, it usually requires triangulation of three elements: testimony of the complaining witness, corroboration by another witness, and some triggering event such adultery, desertion, or cruelty. In criminal court, conviction of conspiracy requires the same sort of three-part combination: a defendant, a co-conspirator, and completion together of some act in furtherance of the crime.

The current formula in many jurisdictions for obtaining an injunction against inter-personal abuse could be more effective if it borrowed from the divorce and conspiracy models. This “cloning” of a related model could create an additional means of qualifying for court-ordered protection; it is not intended to substitute for existing law.

The new formula I have in mind consists of the complaining witness, a corroborating witness, and testimony of the complaining witness as to statements or behavior threatening or violating the safety or security of the complainant.

The law should be more responsible to psychological abuse, which can be as devastating as physical abuse. Most complainants do not go before a judge seeking protection unless the danger is real. The threat can exist despite the absence of any criminal record, prior misconduct, police report, bruises or physical evidence of any kind. Yet, the over-hearing of screaming, the third-party listening to “You’ll be sorry” on an extension phone, or other credible evidence of state of mind of the alleged perpetrator, should be enough to trigger issuance of an injunction. If corroboration works for divorce, why not employ it here?

Laws regarding family abuse are slow to change; but where innocent people are dying -- and fine-tuning an injunction statute may save lives -- adjusted criteria should at least be considered. After all, the type of court order involved here only reinforces a prohibition against conduct that is illegal already.

                                                                                                  Olivier Denier Long, Esq.
                                                                                                  January 31, 2008
                                                                                                  Captiva Island, Florida

The Supreme Court and the Second Amendment Right to Keep and Bear Arms

Wed, 23 Jan 2008 20:04:53 GMT

The Supreme Court’s Decision in Ali v. Federal Bureau of Prisons

Portends an Individual Right to Keep and Bear Arms

The U.S. Supreme Court’s 5-to-4 opinion on January 22, 2008, in Ali v. Federal Bureau of Prisons, No. 06-9130, (“Ali”) strongly suggests that the Court’s upcoming ruling on gun ownership will favor individuals over militias. I will explain the reasoning in the Ali opinion, and then seek to demonstrate how an identical thought process may foretell the Court’s interpretation of the Sixth Amendment to the U.S. Constitution.

In Ali, the Supreme Court interpreted a portion of the Federal Tort Claims Act enacted in 1946. The relevant portion of the Act states:

“[A]ny officer of customs or excise or any other law enforcement officer” cannot be sued for “any claim rising in respect of the assessment or collection of any tax or customs duty or the detention of any … property.”

A Federal inmate being transferred between prisons lost some religious articles being shipped for him by the Federal Government, and brought suit for damages. The question on appeal was whether or not prison employees were liable for his a loss since they were not customs or excise officers. (Six Federal appeals courts had found the statute offered broad immunity including prison employees, while another five had ruled it did not.)

Applying statutory construction, the Court declared that the phrase “any other law enforcement officer” included prison workers. Therefore, it followed that those Federal employees could not be sued for losing prisoners’ property. The legal principle is that an interpretation according meaning to all the words of a statute is preferable to only providing meaning to some of the words.

The alternative meanings in this case were:

1. “[A]ny officer of customs or excise or any other law enforcement officer” cannot be sued;

Or;

2. “[A]ny officer of customs or excise” cannot be sued.

In the majority opinion by Justice Clarence Thomas, the first option – including law enforcement officers other than customs or excise officers -- was deemed correct; otherwise, the phrase “any other law enforcement officer” added nothing to the already-established meaning of the sentence.

+++

This is where we receive a fascinating indication of how the Supreme Court may confirm an individual right to keep firearms.

The Sixth Amendment to the U.S. Constitution provides:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

In a decision –already much debated --expected later this year, the question before the Supreme Court is whether District of Columbia law prohibiting individual gun ownership violates the Sixth Amendment to the U.S. Constitution.

Here, our alternative constructions are:

1. “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Or;

2. “A well regulated Militia, being necessary to the security of a free State, the right of the people serving in the militia to keep and bear Arms, shall not be infringed.”

[Emphasis supplied.]

In Ali, Justice Thomas said Congress could have provided “any other law enforcement officer acting in a customs or excise capacity;” but chose not to. He added “We are not at liberty to re-write the statute to reflect a meaning we deem more desirable:”

In the case involving personal ownership of firearms, I predict a Supreme Court majority will rule that the framers of the Constitution could have written “[T]he right of the people serving in the militia to keep and bear arms shall not be infringed,” but chose not to. Applying the same rule of statutory construction utilized in Ali, the Supreme Court must necessarily conclude that the right to keep and bear arms belongs to individuals and not to militias alone.

Olivier Denier Long, Esquire

Wednesday, January 23, 2008

Captiva Island, Florida

Florida Referendum on Amendment 1

Tue, 22 Jan 2008 13:31:49 GMT

On January 29, 2008, I predict that in addition to choosing among candidates for President of the United States, Florida voters will ratify “the Amendment”. Also known as Amendment 1 – this provision promises $9 Billion in property tax relief for residential homeowners. Florida has a higher percentage of non-resident owners of real property than any other state.

Like Californians with their Proposition 13, Florida homeowners may be expected to vote their pocketbooks despite any deleterious budgetary impact upon police, fire, and rescue. However, the most intriguing aspect of the referendum measure is that it is probably unconstitutional.

Our U.S. Constitution provides as follows:

Article IV, Section 2.
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

Amendment XIV, Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

(Emphasis added.)

The “Save Our Homes” assessment cap and its portability provision (offering up to $500,000 of savings when Florida residents relocate in-state) are materially different from the higher fees that states regularly charge visitors for hunting and fishing licenses. In the case of these licenses, states are protecting scarce natural resources from predation.

In the realm of property taxes, Florida’s only “state interest” in Amendment 1 is gouging tourists. If the provisions of the U.S. Constitution and the Equal Rights Amendment quoted above are to mean anything, it is that a state cannot tax non-residents at a higher rate exclusively for the purpose of revenue.

Captiva, Florida Tuesday, January 22, 2008

Wine Quality Unchanged, Appreciation Varies with Price

Mon, 14 Jan 2008 22:16:03 GMT

This is interesting.

The same phenomenon exists in fine art: Price increases of a particular artist’s oeuvre often result in a buying frenzy unrelated to quality.

Wine price test shows marketing at work in brain.

Researchers in California have shown that you can increase a person's enjoyment of
wine by just sticking a higher price on it.

In a demonstration of the power of marketing, researchers in California
showed you can increase a person's enjoyment of wine by just sticking a
higher price on it, according to a study released Monday.

Antonio Rangel, associate professor of economics at the California Institute
of Technology, led a team to test how marketing shapes consumers'
perceptions and whether it also enhances their enjoyment of a product.

They asked 21 volunteers to sample five different bottles of Cabernet
Sauvignon and rate their taste preferences. The taste test was run 15 times,
with the wines presented in random order.

The taste test was blind except for information on the price of the wine.
Without telling the volunteers, the researchers presented two of the wines
twice, once with the true price tag, and again with a fake one.
They also passed off a 90 dollar bottle of Cabernet Sauvignon as a 10 dollar
bottle, and presented a five dollar bottle as one worth 45 dollars.

Aside from collecting the test subjects' impressions of the wines, the
researchers scanned their brains to monitor the neural activity in the medial
orbitofrontal cortex -- an area of the brain believed to encode pleasure
related to taste, odors and music.

The study found that inflating the price of a bottle of wine enhanced a
person's experience of drinking it, as shown by the neural activity.
The volunteers consistently gave higher ratings to the more "expensive"
wines.

Brain scans also showed greater neural activity in the pleasure center when
they were sampling those "pricey" wines, indicating that the increased
pleasure they reported was a real effect in the brain.

"It's a common belief among scientists and economists that the quality of the
experience depends on the properties of the product and the state of the
consumer; for example, if a consumer is thirsty or not," said Rangel.

"But what this study shows is that the brain's rewards center takes into
account subjective beliefs about the quality of the experience.

"If you believe that the experience is better, even though it's the same wine,
the rewards center of the brain encodes it as feeling better."

In other words, "people's beliefs about the quality of a wine affect how well
it tastes for the brain," he concluded.

The study appears in the Proceedings of the National Academy of Sciences.

© 2008 AFP

Theft of Spouse's Kidney Nets $2,730.00

Sat, 12 Jan 2008 21:14:20 GMT

In Virginia, this conduct would be grounds for divorce based on cruelty; and it would also be a crime.
It is unclear from the article if the "judicial inquiry" is civil or criminal.
I wonder if the victim in Egypt can escape her marriage.

Egyptian woman says husband sold her kidney from PhysOrg.com

An Egyptian woman has brought a case against her husband for allegedly drugging her and arranging for one of her kidneys to be removed and sold on the black market, local media reported on Saturday.

A judicial enquiry has been launched in the Nile Delta town of Menufiya after Warda Mohammed el-Banna said her husband Saad Helmi had her operated on after a pretend motorcycle accident, the opposition Al-Wafd daily said.

Her husband allegedly gave her a glass of drugged orange juice and said they were going out to see relatives. The woman said she passed out en route and woke up in a private hospital in the up-market Cairo district of Heliopolis.

He explained her scars by saying she had been operated on after they had an accident, but a few days later Banna started feeling weak and tests revealed she was missing a kidney.

Her husband is accused of selling the kidney on Egypt's thriving black market for human organs for 15,000 Egyptian pounds (2,730 dollars, 1,850 euros).

© 2008 AFP

Divorce Impacts Fathers More Than Mothers -- New Study in the Journal of Marriage and Family

Fri, 11 Jan 2008 13:00:32 GMT

A new Penn State analysis of a longitudinal study on adolescents, published in the Journal of Marriage and Family, supports my view that generally speaking, divorce causes more damage to the bond between children and their fathers than it does to their relationship with their mothers.

According to this study, fathers are often less involved with children emotionally than mothers even before the divorce takes place; and the situation is aggravated when fathers receive custody less often.

It makes sense that divorced children with stronger father-child bonds tend to do better overall.

Does anyone disagree?

Closeness Between Teens And Fathers Decreased By Divorce
10 Jan 2008

The typical distancing from parents by adolescents is exacerbated by divorce, for fathers, but not for
mothers, according to a recent study published in the Journal of Marriage and Family.

"Historically, teens distance themselves from parents and increase involvement with peers," says
co-author Dr. Alan Booth, distinguished professor of sociology, human development and demography
at Penn State. "Coupled with divorce, this distancing may result in further declines in father-child
closeness."

Although research demonstrates that fathers' involvement with children has increased in recent
decades, mothers continue to do the majority of childcare while fathers are the less involved parent.

Parental divorce creates an immense pressure to decrease father-child closeness, supplemented by
the many barriers created by a father's physical separation from the children. Fathers, who often are
the less involved parent before divorce, would have to increase their investment in the relationship just
to maintain pre-divorce levels of closeness, which the vast majority of fathers do not do, according to
the study.

"Therefore, fathers are at a disadvantage in closeness to start, and then divorce makes it even more
challenging to be close," say the researchers.

The team comprising Mindy Scott of Child Trends and Booth, Valarie King and David Johnson, all
faculty at Penn State, examined information reported by high school students participating in the
National Longitudinal Study of Adolescent health.

A sub-sample of youth, drawn from a nationally representative sample, was interviewed at the
beginning and the end of a five-year period. Reports from youth whose parents remained married were
compared with reports from youth whose parents were divorced by end of the period.

Prior to divorce, 71 percent of youth reported being very close to their mothers, while 57 percent
reported being very close to their fathers.

The teens' withdrawal from fathers was much more severe among those youths with divorced parents
(56 percent) than among those with non-divorced parents (28 percent), the study says.

The proportion of youths who reported a consistently close relationship with their father was much
higher among those with still-married parents (48 percent) than among those with divorced parents (25
percent).

There was no significant difference in the change in closeness to mothers reported by youths in either
group.

"Those teens who maintained a close relationship with their father had a stronger mother-child bond
and a greater sense of well-being, defined as feelings about relationship qualities and perception's of
their own qualities and abilities," Booth notes.

He adds, "Future research may look at information directly from the fathers about their evaluation of
father-child closeness and his views of opportunities and constraints affecting before and after-divorce
closeness with their children."
----------------------------
Article adapted by Medical News Today from original press release.
----------------------------
Source: Vicki Fong
Penn State
Article URL: http://www.medicalnewstoday.com/articles/93588.php
Main News Category: Psychology / Psychiatry

Country-wide Fabrication of Documents?

Tue, 08 Jan 2008 12:14:17 GMT

Are some mortgage companies having more than routine keystroke errors in posting payments?

Are they scamming borrowers?

The New York Times reported on January 8, 2008:

A Countrywide spokesman said that in bankruptcy cases, Countrywide’s automated systems are sometimes overridden, with technicians making manual adjustments “to comply with bankruptcy laws and the requirements in the jurisdiction in which a bankruptcy is pending.” Asked by Judge Agresti why Countrywide would go to the trouble of “creating a letter that was never sent,” Ms. Puida, its lawyer, said she did not know.

“I just, I can’t get over what I’m being told here about these recreations,” Judge Agresti said, “and what the purpose is or was and what was intended by them.”

Ms. Hill’s matter is one of 300 bankruptcy cases involving Countrywide that have come under scrutiny by Ms. Winnecour, the Chapter 13 trustee in Pittsburgh. On Oct. 9, she asked the court to sanction Countrywide, contending that the company had lost or destroyed more than $500,000 in checks paid by homeowners in bankruptcy from December 2005 to April 2007.

Ms. Winnecour said in court filings that she was concerned that even as Countrywide had misplaced or destroyed the checks, it levied charges on the borrowers, including late fees and legal costs. A spokesman in her office said she would not comment on the Hill case.

Requiring Virginia Contempt Motions to be Signed by Judges

Thu, 03 Jan 2008 20:22:49 GMT

Virginia Lawyers Weekly reported December 24, 2007 on a ruling by Judge Kimberly J. Daniel of Fairfax Juvenile Court.

Judge Daniel's ruling throwing out a motion for contempt signed by a State employee has resulted in motions for contempt containing legal arguments or legal conclusions now be signed by lawyers. Previously, Department of Child Support Enforcement non-lawyer employees signed such motions routinely.

I agree with Judge Daniel that such pleadings, to the extent they are signed by non-lawyers, constitute unauthorized practice of law and are ineffectual at bringing an issue before the court.

But what about all the orders based upon VA Code Section 8.01-271.1 that were triggered by non-lawyer, non pro-se pleadings in the past? Are those orders still valid?

I contend that they are; all court orders are presumptively valid until they expire, are reversed on appeal or are modified. The number of such orders based on faulty arrearage data is probably minuscule anyway, so it is unclear that many people suffered harm. An invalid contempt pleading may trigger a valid order if the court had subject matter jurisdiction and personal jurisdiction over the parties; the alleged contemnor had notice and an opportunity to be heard; and the order was not appealed within the required time. In effect, the order was simply sui sponte instead of being based on the request of a party. Courts enter orders on their own initiative all the time.

One might also compare this situation to the contract doctrine of mutual mistake. Until October 30th, 2007, everyone thought it was acceptable for a DCSE employee to sign in the place of a lawyer, and everyone was wrong. Despite that fact, both parties came to court and presented whatever evidence they had (or the party in arrears was personally served and defaulted); and both parties let the appeal time run on the outcome. To me, that is constitutionally a fair outcome.

The Long View

Senator Hillary Clinton, Senator Barack Obama, c. elegans, lions and water buffalo

Group Dynamics of Simple Cells and Lesser Mammals

Wachovia Allegedly Facilitated Telemarketers in Ripping Off Elderly Customers

Probable Cause Eliminates Rights Under Fourth Amendment

Fourth Amendment Protection Disappears if Police Have Probable Cause

Hedonic Adaptation and Litigant Settlement Posture

Our Happiness Baseline

Judge Donald P. McDonough Goes by the Book

Pearson v. Callahan and the Fourth Amendment Privilege Against Unreasonable Searches and Seizures

An Ethological Context for Adultery

Eliot Spitzer Breaks Bad[1]

The Declining Significance of Reality

The Declining Significance of Reality

Incarcerating Criminals and Killing Terrorists Have Somthing in Common

Treating a Symptom Rather than the Disease

A New Tysons Corner Virginia Seafood Niche

Comparison of Supreme Court Employment Discrimination Decisions

The Ledbetter and Holowecki Employment Discrimination Decisions Deal with a Procedural Deadline and with Form, Respectively

Identity Theft

Failure to Timely Remedy Identity Theft Costs Equifax $150,000 for Violation of Fair Credit Reporting Act

Second Amendment Rights of Individuals

An Injunction Against Spousal Abuse May Be Too Hard to Obtain

Easing Qualification for a Civil Protection Order

The Supreme Court and the Second Amendment Right to Keep and Bear Arms

The Supreme Court’s Decision in Ali v. Federal Bureau of Prisons

Portends an Individual Right to Keep and Bear Arms

Florida Referendum on Amendment 1

Wine Quality Unchanged, Appreciation Varies with Price

Theft of Spouse's Kidney Nets $2,730.00

Divorce Impacts Fathers More Than Mothers -- New Study in the Journal of Marriage and Family

Country-wide Fabrication of Documents?

Are some mortgage companies having more than routine keystroke errors in posting payments? Are they scamming borrowers?

The New York Times reported on January 8, 2008:

“I just, I can’t get over what I’m being told here about these recreations,” Judge Agresti said, “and what the purpose is or was and what was intended by them.”

Ms. Winnecour said in court filings that she was concerned that even as Countrywide had misplaced or destroyed the checks, it levied charges on the borrowers, including late fees and legal costs. A spokesman in her office said she would not comment on the Hill case.

Requiring Virginia Contempt Motions to be Signed by Judges

Fourth Amendment Protection
Disappears if Police Have Probable Cause

The Ledbetter and Holowecki Employment Discrimination Decisions
Deal with a Procedural Deadline and with Form, Respectively

Failure to Timely Remedy Identity Theft Costs
Equifax $150,000 for Violation of Fair Credit Reporting Act

Are some mortgage companies having more than routine keystroke errors in posting payments?

Are they scamming borrowers?