Consider this half-baked passage:
One might have expected that—having just witnessed the results of intemperate remarks to a group of Roman Catholics at a Religious Freedom Day rally in Fredericksburg, Va.—Scalia would be inclined toward circumspection. But circumspection is not a word in the otherwise limitless Scalia vocabulary. Which is why, last Friday, in a speech to another conservative group—the Intercollegiate Studies Institute—Scalia unloaded with another scathing criticism, this time of his brethren's logic in Lawrence v. Texas, last term's decision striking down Texas' gay sodomy law. According to the Associated Press account of the speech, Scalia "adopted a mocking tone to read from the court's June ruling." Another account, in the National Review Online, takes issue with this AP characterization, but only to contend that yes, Scalia was mocking Justice Kennedy's opinion in Lawrence, but only because Kennedy's opinion was so dumb as to warrant it. There seems to be no dispute, then, that days after having to boot himself off a case for overheated remarks to an adoring crowd, Scalia was at the podium again, offering overheated remarks to an adoring crowd.
The difficulty with this comparison is that the situations at issue do not run parallel to one another in the fashion suggested by Lithwick's argument. In commenting on the Ninth Circuit's decision in Newdow, Scalia was announcing a position on the merits of a case that was likely to come before the Supreme Court on a writ of certiorari. In fact, it did so and the Supreme Court accepted review. Under such circumstances, Scalia's recusal was necessary and proper. But in this later speech before the ISI, Scalia was commenting on the merits of a case that had already been decided. Indeed, however mocking Scalia's tone may (or may not) have been, surely his speech did not reveal anything not already articulated in his lengthy dissent in Lawrence. Lithwick certainly does not appraise us of any such revelations. In fact, she concedes that "his intemperate comments were mild compared to his scorching written dissent."
Lithwick would be hardpressed to demonstrate how Scalia's remarks run afoul of 28 U.S.C. §§ 144, 455. Although by its own terms the Code of Conduct for United States Judges does not apply to justices of the Supreme Court, to the extent that it is relevant as guidance, Canon 3(a)(6) is the pertinent one with reference to Scalia's Newdow-related speech. Obviously it is irrelevant to the ISI speech that Lithwick is criticizing, as Canon 3(a)(6) applies solely to "pending or impending" lawsuits. Amazingly, Lithwick subsequently acknowledges § 455 and the obvious factual distinction, but somehow manages to find Scalia worthy of criticism nonetheless, writing that "the body of his speeches and addresses makes it clear that he appears anything but 'impartial' as is seemingly required by the law." Lithwick does not provide any explication of the supposed "law" in question. Legal details are not her forte, which may explain why she writes about the law rather than practices it.
A short while later, Lithwick follows up the foregoing comparison with another that is equally laughable. She writes:
. . . What possesses Justice Scalia to eschew the reclusive public life of many justices, or at least the blandly apolitical public lives of most, to play the role of benighted public intellectual and knight gallant in the culture wars?
Ah yes, those other justices are veritable hermits. They never publicly speak on controversial issues, right? Wrong. Justice Kennedy has recently opined on the state of the nation's criminal justice system (e.g., "Our resources are misspent, our punishments too severe, our sentences too long."). In the same speech, Kennedy stated that the federal Sentencing Guidelines should be "revised downward" and that, "[i]n too many cases, mandatory minimum sentences are unwise and unjust." It's hard to understand these comments as being apolitical. Moreover, Kennedy will likely face cases in the future that implicate these concerns in one fashion or another. In his speech, Kennedy explicitly acknowledged that his comments crossed over into the realm of politics.
Justice Kennedy is not alone. Justice Breyer has publicly spoken this year of the importance of international law to our own legal system and the use of foreign precedents for their persuasive value, a proposition that has begun to occasion some real controversy in the Supreme Court's actual decisions. See, e.g., Lawrence, 123 S. Ct. 2472, 2495 (Scalia, J., dissenting) ("The Court's discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is therefore meaningless dicta. Dangerous dicta, however, since 'this Court . . . should not impose foreign moods, fads, or fashions on Americans.'"). Indeed, Breyer's speech was a public justification for his preferred judicial approach. On this point, Breyer was unequivocal: "And I have tried to explain, both in opinions and public remarks, why I believe foreign experience is often important to our work. This afternoon I should like to continue to explain why so many of us have taken this position."
Notwithstanding such similarly controversial public utterances, Lithwick's entire article is devoted to demonstrating that Scalia's purported transgressions are somehow unique and uniquely dangerous. But the facts always get in the way. For example, chiding Scalia's lack of impartiality, Lithwick bemoans the fact that "[o]ne can predict his vote on most cases with great confidence." However, her very next sentence begins, "This is true of most justices . . . ." It's almost as if she is Fisking herself.
In actuality, what seems to have have Lithwick so exercised is not the mere happening of Scalia's speech, but rather it's content. Rather than elaborate an argument as to why Scalia's views are dangerous, she has instead chosen to pen generalities and cast aspersions upon his fitness for the bench. Thus, readers are treated to boilerplate objections to his religious beliefs:
But one cannot ignore—and Scalia would not have us ignore—the fact that he is also a deeply religious man. Scalia worships at a conservative Virginia church that erected a monument to unborn children several years back. . . .. . . Merely by virtue of his public role he is actually tearing down the wall between church and state every time he opens his mouth. Which is precisely what he wants.
Of course, Scalia is not the only sitting justice whose views are influenced by religion. Justice Ginsburg has publicly declared how her own religious tradition informs her conduct on the bench:
On walls of my chambers, I have posted in two places the command from Deuteronomy—"Zedek, Zedek," "Justice, Justice shalt thou pursue." Those words are an ever present reminder of what judges must do "that they may thrive." There is an age old connection between social justice and Jewish tradition. Supreme Court Justice Arthur Goldberg, whose tenure on the Court, 1962-1965, was far too brief, once said: "My concern for justice, for peace, for enlightenment, . . . stems from my heritage." Justice Breyer and I are fortunate to be linked to that heritage.
Of course, Ginsburg votes "the right way," so doubtless Dahlia is less troubled by her professed devotion to a principle articulated in the Old Testament. Indeed, Lithwick is seemingly untroubled by public speeches by the justices in general when the views announced therein are consonant with her own. Earlier this year, she applauded some public remarks made by Justice Kennedy and encouraged the other justices to follow suit:
The members of the high court should be a little more willing to weigh in on the crisis facing their colleagues on the bench; more public shaming from The Brethren might just make a difference in the Senate.
The only time that the justices' forays into the public realm appear to vex Lithwick is when the justices in question are named Antonin Scalia or Clarence Thomas.
Lithwick also isn't above distorting Scalia's positions when a caricature would be more damning than reality. Linking to one of her own prior articles, she writes:
And in a 2002 speech, he urged any Catholic judge who agrees with the pope on capital punishment to resign from the bench.
In the referenced article, she devotes a whole sentence to conveying Scalia's actual remarks:
Addressing students at Georgetown University last week, Scalia argued that Catholic judges who believe the church's teaching that capital punishment is wrong should not be on the bench, stating that "any Catholic jurists (with such concerns) . . . would have to resign."
That's the sole quotation of his Georgetown remarks in her entire piece. As one might suspect, Scalia's views are considerably more nuanced than Lithwick represents. Regarding capital punishment, Scalia has written:
I pause here to emphasize the point that in my view the choice for the judge who believes the death penalty to be immoral is resignation, rather than simply ignoring duly enacted, constitutional laws and sabotaging death penalty cases. He has, after all, taken an oath to apply the laws and has been given no power to supplant them with rules of his own. Of course if he feels strongly enough he can go beyond mere resignation and lead a political campaign to abolish the death penalty—and if that fails, lead a revolution. But rewrite the laws he cannot do. This dilemma, of course, need not be confronted by a proponent of the "living Constitution," who believes that it means what it ought to mean. If the death penalty is (in his view) immoral, then it is (hey, presto!) automatically unconstitutional, and he can continue to sit while nullifying a sanction that has been imposed, with no suggestion of its unconstitutionality, since the beginning of the Republic. (You can see why the "living Constitution" has such attraction for us judges.)
In other words, Scalia does not at all believe that sincere Catholics must resign from the bench. The obvious import of Scalia's views is that Catholics cannot let their private moral views serve as a substitute for the Constitution. Judges may not abrogate laws on the basis of their religious beliefs; they must subordinate their beliefs to the law. Only those who cannot bring themselves to abide by this principle must resign. The nub of Scalia’s argument appears to consist of the observations that this is a nation of laws and not of men and that there should be a separation of church and state.
Astoundingly, Lithwick links to the very article just quoted. Yet she somehow fails to notice both that Scalia's argument is markedly different from her own representation of it and that his position flatly undercuts her thesis that Scalia is determined to tear down the metaphorical wall between church and state. There are three possible explanations for Lithwick's obtuseness in this regard: (1) she did not bother reading the article to which she linked; (2) she did not understand the article to which she linked; or (3) she knew precisely what Scalia meant but thought that readers would be too lazy to actually read Scalia's article for themselves.
I have no way of divining which is the case, of course, but I presume (as an unwarranted kindness) that the first possibility is not, in fact, descriptive of Lithwick's research methodology. Given the jurisprudential simplicity of Scalia's point, however, it is equally difficult to envision the second option as being accurate. Nevertheless, sometimes one's preexisting biases get in the way of a clear reading of texts. This is ultimately the ironic thing about Lithwick's latest piece—the kindest possible reading of it so reveals her own lack of impartiality where Scalia is concerned. Whether the second or the third option happens to be the case, the only thing that really accounts for Lithwick's bizarre reading of Scalia and her overall reaction to the justice are her own biases. Perhaps, she should recuse herself from covering Scalia for Slate.
Update I: I see that Justice O'Connor has also recently been publicly speaking about the propriety of looking to foreign legal authorities. No doubt, Dahlia Lithwick is feverishly typing up a condemnation of this sort of public jurisprudential advocacy at this very moment.
Update II: A recent Washington Post article provides yet more evidence regarding the supposed reticence on the part of a sitting Supreme Court justices. Justice Stevens left his hermitage just long enough to publicly discuss the largely confidential inner workings of the Court with reference to the affirmative action decisions in particular. According to the Post:
The regular meeting at which the justices discuss and vote on cases, known simply as "the conference," is so confidential that no one but the nine members of the court is permitted to attend. Public discussion by the justices of the goings-on at conference is basically unheard of."As best we historians know, it is absolutely unprecedented for a sitting Supreme Court justice to detail publicly his private conference comments to his colleagues about a case just a few months or even a few years after that case was decided," said David Garrow, a law professor and court historian at Emory University.
The article states that Stevens disclosed solely his own comments and refrained from discussing those of his colleagues, but Stevens own remarks belie such a claim:
In Chicago, Stevens explained that he considered recusing because a former law clerk, Jeffrey Lehman, was the former dean of the Michigan law school. Stevens worried this might create the appearance that he was biased in favor of the school.He said that, following what he said was the usual practice among justices contemplating recusal, he raised the issue at a closed-door conference sometime before the April 1 oral argument. The other eight justices "unanimously and very firmly" urged him to stay in the case, Stevens said, because justices could not sit out each time one of their many former clerks was involved in a case.
Although involving entirely different issues than Scalia's remarks (both in substance and with regard to the concerns about impartiality), this is one more instance of a justice not named Scalia publicly speaking on a recently decided case in a manner that might excite controversy but somehow failed to do so.
Update III: I see that Justice Stevens is once again publicly speaking on a controversial legal issue: advocating that the U.S. would be better off without the death penalty. The Chicago Sun-Times reports that:
Stevens' statement at the 7th Circuit Bar Association dinner in Chicago on Monday appears to be the most pronounced statement against capital punishment made by a Supreme Court justice since the late Harry Blackmun wrote in 1994: "From this day forward, I no longer shall tinker with the machinery of death."Richard Dieter, executive director of the Death Penalty Information Center, welcomed Stevens' statement, saying, "I don't necessarily read that he's going to vote against the death penalty in every case that comes before him, but it is significant nevertheless: It's unusual for justices to let their personal views be known on any issue that comes before the court. But it's coming to a head in the court. The juvenile cases are coming up in October. It's on their minds."
Notably, Justice Breyer who was also speaking, declined to offer his opinion on the death penalty.
For example, one judge "once tried unsuccessfully to find a monastery, instead of a prison, to house a 59-year-old man charged with kidnapping his ex-girlfriend." As a punishment, this hardly seems commensurate with a charge like "kidnapping." The religious nature of such a proposed sentence probably renders it unconstitutional as well.
This is not the only sentence documented in the story that appears to be entirely derivative of the judge's personal moral compass rather than the law. Consider the sentence imposed by Judge Clyde Gober:
. . . [H]e ordered Darrell Meadows to marry his live-in girlfriend, Angela Whaley, and "legitimize" their daughter. Meadows had been accused of threatening to kill Whaley. The court-ordered marriage, volunteered by Meadows' lawyer, drew protests and national media attention.
This sentence is reminiscent of the ancient Hebrew law regarding rape. See Deuteronomy 22:28-29 (NIV).
(AJC link via Howard Bashman.)
Driscoll's article is nonetheless interesting. Although he sets out to explain Muir's newfound popularity, he also identifies the precise reason that I loathe Day By Day:
It combines the political feel of Doonesbury (although from the other side of the political aisle) with the office atmosphere of Dilbert. In contrast to Dilbert's stifling bureaucracy however, Day By Day's office seems to run much more efficiently, befitting the button-down entrepreneurial nature of its young boss and the strip's star, Damon.
Translation: Day By Day has nothing in common with Dilbert—least of all the humor—other than the fact that both are principally located in tech-sector offices, but shares all of the overly self-assured snarkiness of Doonesbury, albeit from a right-of-center perspective. Muir is just Trudeau 2.0 for people who prefer their pretentious political sniggering to come from a Republican point of view.
Political humor is an art for which most possess no talent. It requires a certain evenhandedness that partisans generally do not possess. Consider the October 23, 2003 strip for Day By Day. This is precisely the sort of humorlessness for which South Park rightly castigated Whoopi Goldberg's anti-GOP "jokes."
Update: I see that Radley Balko and I are on the same page.
Update I: Via The Yin Blog, I note that Luskin has managed the near-impossible: he has gotten a liberal (Jack Balkin), a libertarian (Timothy Sandefur), and a conservative (me) to all agree on something. Unfortunately for Luskin, what we agree on is the fact that his conduct is shameful. This whole episode reflects a remarkable lack of judgment on Luskin's part. No one would have taken the "stalker" representation literally or seriously, but nearly everyone is likely to consider this sort of bullying-by-threat-of-lawsuit to be a serious matter.
Update II: Unlearned Hand offers what would surely be Defense Exhibit A in any potential lawsuit: Luskin's own characterization of his Krugman-related journalism as stalking.
Update III: Walter Olson has a great post on this subject that provides some useful background, identifies several other relevant posts on the topic, and references some prior relevant legal cases.
Update IV: Pejman Yousefzadah has also added a nice post on this topic, in which he dissects Luskin's legal claim.
Update: What do you know: it turns out that at least one recently alleged instance of rightwing litigiousness was inaccurate.
At last week's Senate hearing, Joe Biden of Delaware didn't have to say that "the tide of criticism" being directed against the Patriot Act "is both misinformed and overblown," that "I stand by my support" of that law, and that the Ashcroft Justice Department has "done a pretty good job in terms of implementing" the law's provisions. But Biden did say all these things, anyway. And California's Dianne Feinstein went further still, in a stern and lengthy lecture about the concrete reality of U.S. anti-terrorism law—as opposed to the paranoiac fantasy version now being circulated throughout the land by the likes of Bob Barr and Howard Dean. How's about we concentrate on some facts, Feinstein suggested."I've tried to see what has happened in the complaints that have come in," she said, "and I've received to date 21,434 complaints about the Patriot Act." Except these turned out to be unrelated civil liberties gripes, or complaints about a "Patriot Act II" that doesn't yet exist. "I have never had a single [verified] abuse of the Patriot Act reported to me. My staff emailed the ACLU and asked them for instances of actual abuses. They emailed back and said they had none."
The widespread hullabaloo over the Patriot Act, Senator Feinstein concluded, proceeds from "substantial uncertainty . . . about what this bill actually does do." And "perhaps some ignorance," she added.
Over twenty thousand complaints and yet not a single one of substance? Surely, honest critics of the Act have to concede that this fact has some relevance.
Of course, the ACLU, for example, appears to maintain that the PATRIOT Act is worrisome even if properly employed. That is, the ACLU apparently objects to some of the Act's provisions as written, not to their abuse. So Feinstein's contentions are not unanswerable. Moreover, Feinstein herself was apparently ignorant regarding at least one detail. According to PatriotWatch:
. . . Senator Feinstein erroneously stated in her opening statement that the government has never used the sneak and peek power of the PATRIOT Act. She was wrong. The government has used this power. In fact, Ashcroft talked about the DOJ's use of sneak and peek in a June 5th hearing before the House Judiciary Committee . . . .(No Permalink Available; see Oct. 22, 2003 post entitled "A Word on the PATRIOT Act Hearings.")
However, PatriotWatch makes an error of omission as well. The site's proprietor writes:
. . . [T]he one witness that should have appeared did not. General Ashcroft was no where to be found. Many Senators on the committee expressed dismay that Ashcroft was not present. . . .
In the Standard, David Tell demolishes this particular cannard. He explains:
It's gotten to the point where Ashcroft is automatically blamed for things he can't possibly have done. At a Senate Judiciary Committee hearing on the Patriot Act last week, the attorney general came under a shower of abuse for ducking an appearance even though, as committee chairman Orrin Hatch eventually pointed out, Ashcroft hadn't actually been invited.
In fairness, PatriotWatch does acknowledge that only three persons were scheduled to testify at the hearing. So, perhaps, his criticism might be read as a contention that the AG should have been invited. But that is not the actual impression conveyed by his language. "Ashcroft was no where to be found" gives the impression that the AG was supposed to be there. The fact that Hatch had to point out that he was not invited also suggests the senators who were complaining about Ashcroft's absence were just engaged in a little demagoguery.
PatriotWatch also fails to comment on Biden's and Feinstein's supportive remarks altogether in its post about the hearing. That's an odd omission for a site devoted to documenting noteworthy items pertaining to the PATRIOT Act, don't you think? And that's the essential problem I have with criticism of the Act—its wholly unbalanced character. Advocates who cannot acknowledge inconvenient facts and opposing arguments are not terribly likely to convince. Indeed, they aren't likely to convince many people to even hear them out.
Materials related to the hearing are available via the Senate Judiciary Committee's webpage.
A tax preparer was sentenced Thursday to 13 years in prison and his daughter received just over three years for defrauding the IRS by claiming $500,000 in slavery reparations.* * * . . . According to federal prosecutors, Foster prepared returns for several people claiming more than $3.6 million in reparations, most for about $500,000 each.
In an interview at the Northern Neck Regional Jail before his sentencing, Robert Foster maintained he did the right thing.
"Black people are not treated as humans, but as things by the U.S. government,'' he said. "We were used as resources to enrich this country and we get no inheritance from the wealth we brought.''
* * * "I just want to be at home with my two children,'' Crystal Foster told U.S. District Judge Richard L. Williams, breaking down as she recounted how her second son had been born in the back of a police van following her arrest. "It's not fair, the government sent me this check,'' she said.
So much for Acceptance of Responsibility under U.S.S.G. § 3E1.1(a).
What's really interesting is that this tax practice is apparently not altogether uncommon. According to the Times:
The IRS says more than 80,000 tax returns were filed in 2001 seeking nonexistent slavery tax credits totaling $2.7 billion. More than $30 million was mistakenly paid out in slave reparations in 2000 and part of 2001.That number dropped significantly last year after stepped-up scrutiny of tax returns and an aggressive media campaign targeting scam artists promising to secure tax credits for blacks.
IRS spokeswoman Michelle Lamishaw said the idea of filing reparations claims may stem from a 1993 Essence magazine editorial urging blacks to seek refunds of $43,206 per household.
The magazine said the figure was the modern-day equivalent of 40 acres and a mule, which Congress voted to give former slaves following the Civil War. The deal was vetoed by President Andrew Johnson.
An article at Essence.com notes that the IRS has begun cracking down on this tax scam, but conveniently omits any mention of its own role in fostering this fraud. Interestingly, the Times article apparently originally alleged that the government had previously turned a blind eye to this form of tax fraud, but the language excerpted by Fritz Schranck (i.e., "But the government has also begun quietly cracking down on filers of false claims after years of looking the other way.") no longer appears in the Times story. There is also no notation noting that the article has been altered since its original publication.
Based on the details provided in the story, my guess is that these defendants are not tax protestors so much as tax cheats. This would not be the first time that this turned out to be the case.
In Alaska, defendants in such cases are allowed to argue that they were legitimately mistaken as to the age of the female minor involved. The relevant state statute provides that:
In a prosecution under AS 11.41.410 - 11.41.440, whenever a provision of law defining an offense depends upon a victim's being under a certain age, it is an affirmative defense that, at the time of the alleged offense, the defendant(1) reasonably believed the victim to be that age or older; and(2) undertook reasonable measures to verify that the victim was that age or older.
Alaska Stat. § 11.41.455(b).
Although Alaska's mistake-of-age defense is not as uncommon as it once was, it remains a minority position in the United States. See 2 Wayne R. LaFave, Substantive Criminal Law § 17.4(c), at 650 (2d ed. 2003) ("Over a third of the states have adopted statutory provisions recognizing mistake-as-to-age as a defense, at least as to some ages."). Varying mens rea requirements are specified in the various state statutes (e.g., negligence, recklessness). Id. at 651. The majority position remains strict liability, however. Although even some majority states create exceptions. See, e.g., Tex. Pen. Code § 22.001(e) (generally providing an affirmative defense if the defendant can show that he was not more than three years older than the minor at the time of the sexual contact and the minor was at least 14). Accordingly, any characterization of "majority" and "minority" positions must be tempered somewhat.
So what compels me to revisit this issue? Well, Tainted Law, brings to my attention the fact that the Alaska trial is not proceeding smoothly. The News-Miner reports that there is apparently conflict among the jurors. Motions for mistrial have apparently been lodged and denied. And, among other things, juror misconduct is alleged. The jury has been deliberating since October 17th.
However, the most noteworthy paragraph dwells on different details:
Vijay and Prasad Lakireddy had sought to have the charges against them dropped, saying that a translator encouraged victims to embellish their stories and that a second interpreter overstepped his bounds in a letter to a judge urging a harsh sentence for their father. The flap over the interpreters resulted in the dropping of a sexual misconduct charge against Vijay Lakireddy.
This bit about the court interpreters is remarkable and worthy of a story in its own right. Courts with heavy criminal dockets in the American Southwest, for example, rely on the integrity of translators. Because the most frequent language at issue in that region is Spanish and the AUSAs and Federal Public Defenders frequently speak Spanish as well, there is less danger of such hijinks. But in a more cosmopolitan district (e.g., S.D.N.Y.), interpreter wrongdoing could lead to a real miscarriage of justice.
If the allegations are true—and it's hard not to give them some credence given that the government actually dropped some charges as a result—the instant translators ought to lose their jobs. Soliciting embellishment of testimony ought to lead to criminal indictment. Without having done any research, indictment under 18 U.S.C. §§ 242, 1001, 1503(a), 1623 (criminal provisions regarding deprivation of civil rights, false statements, corruptly influencing jurors or officers, and false declarations before a court respectively) might be prosecutorial possibilities depending on the circumstances involved.
NEW DELHI, India—Hundreds of fans of India's top rock star Daler Mehndi have turned to foes, jeering and heckling the Punjabi singer after he gave himself up to police to face charges of human trafficking.Carrying banners and placards, a mob of 1,500 greeted Mehndi, 36, late Monday as he entered the police station in India's northern Punjab state, throwing paint on his Mercedes car and blocking his way, the Press Trust of India reported.
"Daler Mehndi die die," screamed some fans. Others tried to assault the turbaned star as he braved the crowd before entering into the police station, PTI reported.
Readers, no doubt, recall his smash hit Tunak Tunak Tun.
(CNN link via Ken Lammers.)
Don't move, sir. There's a tarantula on you.I understood her words, their import just did not quite register at first.
Really?Yes.
Where?!?
My day began normally enough. I went through my usual routine: shave, shower, vitamins, coffee, et cetera. It was colder than normal this morning. In fact, it was downright chilly for this area. A front had moved in over night. It had brought rain with it as well.
So I grabbed my raincoat on the way to the door. It was where I had left it weeks before: crumpled up in a corner of the bedroom. (Despite plenty of closet-space, this is my usual custom regarding coats.)
Where?!?It's on the collar of your jacket—on the inside.
Now, I have actually held a tarantula before. Friends of mine once owned one as a pet. They are fairly harmless and docile. Indeed, they seem completely unperturbed by human contact. They are common in the area in which I currently live. One sees them with some regularity.
Notwithstanding this familiarity, it is difficult to remain level-headed when taken by complete surprise. I was at the drive-through window of the local cleaners when the clerk informed me of my unexpected passenger. Her abject fear did not help matters. As our very brief conversation progressed, I could see the horror welling up in her eyes. Under further interrogation she stated that it was small one, but no one gets that look on her face over a small spider. Besides, size is a matter of perspective. When a tarantula is nestled against your neck, it is never small.
So I put the car in park, opened the door, and stepped out. I slowly took the jacket halfway off. Having removed it from the vicinity of my neck, I ripped it off the remainder of the way. The arachnid either flew off as a result of my rapid disrobing, or jumped off of its own accord. Unfortunately for the clerk, it jumped in her general direction—into the doorway near the drive-through. This was even more unfortunate for the spider, as his destination required me to step on him as a matter of chivalry. (Apologies to the excessively kindhearted: I only handle tarantulas that have been vouched for by friends and with advance notice.)
Small, incidentally, turned out to be about two-inches in diameter. How did I not feel that on my own? I'm not sure where it came from. Was it on my coat when I picked it up? Did it drop on me from the archway outside my door Raiders of the Lost Ark style? Or was it in my car? It could have been in any of these locales or elsewhere. Given the chill in the air and the rain, it was probably looking for a dry, warm shelter. Although the crook of my neck matches this description, it is not the most welcome location.
It would be a shame to lose Tainted Law. Although I do not necessarily share his views, Taint's acerbic wit and talent for exaggeration and caricature are often priceless. Properly goaded, one can even get him to offer some straightforward (and insightful) legal analysis. Nonetheless, I can appreciate his situation: work comes first. In this vein, the practice of law can effectively kill your blog in more than one way.
For my part, I have managed to avoid the dilemma that faces Taint by (a) maintaining a strict separation between the workplace and my blog topic-wise, (b) doing my best to maintain my pseudo-anonymity, and (c) being even more antisocial than Taint apparently has been. Just remember Taint, you cannot accidentally blog about those with whom you daily come into contact if you refuse to have any contact with the outside world! I suppose that's easier for a curmudgeonly clerk to manage than a practitioner.
For hundreds of years, he was left shattered after falling off a wall but Humpty Dumpty has been put back together in a politically correct version of the nursery rhyme.Tapes sold at Mothercare have added an extra verse to the children's favourite after the original was deemed too upsetting.
After hearing the tale about how Humpty could not be put back together again, children are now told: Humpty Dumpty opened his eyes Falling down was such a surprise Humpty Dumpty counted to 10 Then Humpty Dumpty got up again.
The article linked above notes that many Mother Goose rhymes would require such tampering if this logic were embraced. Of course, some rhymes would have to be excised altogether. Three Blind Mice exhibits cruelty to animals. Simple Simon is insensitive to the mentally handicapped. A Little Man is absolutely horrid: it is potentially offensive to diminuitive folk and features the use of firearms and inappropriate gender stereotypes. Speaking of inappropriate gender stereotypes, there is Miss Muffet. Oh dear, that will never do. Perhaps, it is retainable though if changed to Ms. Muffet. Goosey, Goosey, Gander depicts a hatecrime (i.e., violence fueled by religious intolerance). Old Mother Hubbard features alcohol and smoking. Jack Jelf slights the learning disabled. Georgy Porgy involves sexual harassment.
And this is just the beginning. Grimms' Tales and the fairy tales of Hans Christian Andersen will require some real work. I'm sure that the folks at Mothercare are equal to the task, however. Some people are especially gifted at finding offense in things where others have somehow missed it.
(Sunday Mail link via Tongue Tied.)
During oral argument in Grutter, Justice Antonin Scalia said, "[I]f Michigan really cares enough about that racial imbalance, why doesn't it do as many other state law schools do, lower the standards, not have a flagship elite law school? It solves the problem." Such disquieting logic fails to appreciate that high standards and diversity are compatible and, indeed, complementary.
I think that this writer's reasoning sums up, in large part, why I oppose educational diversity initiatives. The only "disquieting" aspect of the foregoing passage is this student's detachment from reality. No one disputes that certain ethnic groups routinely score poorly on the LSAT on a whole. Proponents of diversity instead tender unsustainable claims of bias regarding any objective criteria that gets in the way of the desired outcome.
The simple truth is that, at present, high academic standards and "diversity" (read: university admissions racially proportionate to each group's population outside of institutions of higher education) are not compatible in the context of the nation's elite law schools (e.g., UVA). If they were, then there would be no need for diversity initiatives in the first place. Papering over this fact will only prolong the underperformance in question. Those who wish to cure the disease must first accurately diagnose the ailment.
(WP link via SW Virginia Law Blog.)
After one recent Saudi-related hearing in a wood-paneled courtroom inside London’s gothic Law Courts complex, one of the British barristers (trial lawyers) in the case told journalists "Say what you like about Osama bin Laden. He's done wonders for the defamation [libel] bar."
Shouldn't a quote this mindnumbingly insipid be attributed by name? Imagine, for example, the fate of a corporate executive who publicly commented, "Say what you want about Saddam Hussein. He's done wonders for Lockheed Martin." Or, returning to bin Laden, imagine a general contractor tasked with rebuilding the area once occupied by the Twin Towers making a similar statement.
What sticks in my craw about this comment is its glib callousness. Whether the barrister in question is a plaintiff's lawyer delighted at the prospect of new business or a defense attorney subtly tarring the opposition, his remarks make light of terrorism and its victims in a fashion that is bound to offend. Trial lawyers, who earn their living with their tongues, ought to be better spoken. Say what you want about this barrister, but he is not doing wonders for the reputation of the British bar.
(Link via Virginia Postrel.)
(Link compliments of Electric Venom.)
For the most part, I disapprove of blogging anonymously in any blog written for public consumption, particularly if you want to talk about your social setting.
Rickey acknowledges, however, that some may have compelling reasons for doing so, adverting to yours truly. As I have previously written, I blog on an anonymous basis due to my employment as a federal law clerk. Nothing in the Code of Conduct For Judicial Employees compels this result; anonymity merely seems a prudent corollary to the Code's relevant provisions.
However, what we are really talking about is pseudo-anonymity. Although there is at least one service that purport to provide genuinely anonymous blogging, the identities of pseudo-anonymous bloggers like myself are not a state secret. One of my readers who is a fellow blogger once wrote in to tell me that he knows exactly who I am. Others have had similar experiences. Scheherazade Fowler was quickly found out despite her initial inclination to anonymously publish. At least two bloggers have written about being confronted about their blogging during interviews, apparently without unhappy results.
My anonymity is really just a convention. I agree not to disclose my identity to spare my judge any association with my online musings and readers essentially agree to honor that decision as a courtesy. But if readers or fellow bloggers were disinclined to do so, I am confident that they could discover my identity with relative ease and disclose it as they saw fit. I would rather that they not do so, but I can only control my conduct.
Regarding self-control, both Fowler and Rickey discuss what the latter terms "self-censorship" with approval. I generally agree with these sentiments, though I have always thought of this restraint as "editing" rather than "censorship." One of the things I most enjoy about blogging is its unmediated nature; I am the author and editor. I appreciate the unfettered discretion that self-publication provides, but, as is always the case, freedom is accompanied by risk. As recent events demonstrate, when bloggers are judged to have abused their discretion, the consequences can be severe. It is difficult to imagine that the faux anonymity provided by the Internet would forestall such a reckoning in the event of such indiscretions, particularly if the offended parties are sufficiently incensed and/or motivated. At least one very high profile blogger has had his online "anonymity" compromised in a very personal fashion.
The Socratic method is not as ominpresent as it once was in law schools, but it is still widely used, more or less, in most law schools, by most professors, at least some of the time.And that's a scandal. For there is no evidence—as in "none"—that the Socratic method is an effective teaching tool. And there is much evidence that it's a recipe for total confusion.
What is even more scandalous is that this is an open secret. That is, everyone who has sat through a first year law school class knows that the Socratic Method is an actual impediment to learning. Any law student can regale you with tales of the inefficacy and inefficiency of this pedagogical (mal)practice.
On occasion, students do manage to exact their revenge, however. One day in my first year Criminal Law class, the professor was mercilessly grilling a rather reticent female student. He asked her to recite the facts of a case. When she began a meandering recital replete with irrelevancies, he began to mock her. He proceeded to interrogate her; each question was dripping with sarcasm and condescension. The purport of his inquiries could not have been more clear: he wanted her to focus solely on the material facts. She, however, was too befuddled and flustered to grasp his point. So the professor proceeded to the student seated next to her and asked, "Why am I mocking her?" Unfortunately for the professor, this student was honest to a fault. Without pause, he responded, "Because you are a jerk."
When it comes down to it, Estrich is a good feminist. She is far more balanced, articulate, and intellectually rigorous then most of the people who fit into that category; she rises above them with a sense of humor and humility.* * * Estrich has the grace to be honest about her reversals and the ambiguities they raise. That alone lifts her above myriad pundits, chatterers, and feminists.
Frankly, if intellectual honesty is Estrich's distinguishing hallmark, I have failed to notice it. Indeed, her most recent shenanigans revealed either disingenuousness or ignorance. Given her general background and purported expertise in the area under consideration, it is somewhat difficult to believe that the latter might be the case. Moreover, Estrich herself, more or less, tells people to regard her views as positions of political convenience and expediency. Roiphe writes:
She nakedly states the political motivations behind some of her shifts of position, explaining, "[T]he core of the dispute is not about what's welcome and what's unwelcome in terms of sexual harassment, but whose ox is being gored."
In other words, all that Estrich is apparently "honest" about is being dishonest. Earlier in the article, Roiphe offers examples:
She writes in Sex & Power that Clinton "was being wrongly accused. And the rules I had supported and helped to create . . . were the means of waging that attack." She talks about how her attack of Clarence Thomas "came back to haunt many of us years later, when the issue was not crude jokes but sex between the president and an intern."
But, of course, Clinton was not being wrongly accused. One can maintain that the accusations didn't amount to much even if true, but Clinton was guilty as charged and the charges were practically a paradigm instance of the sort of untoward workplace conduct betwixt male authority figures and disempowered female subordinates decried by feminists. Roiphe quotes from Estrich's Real Rape to devastating effect on this point:
"Many feminists would argue that so long as women are powerless relative to men, viewing a 'yes' as a sign of true consent is misguided. For myself, I am quite certain that many women who say 'yes' to men they know, whether on dates or on the job, would say 'no' if they could. I have no doubt that women's silence sometimes is not the product of passion and desire but of pressure and fear."
Estrich's admission that her principles "came back to haunt" her is revealing. Her phrasing does not indicate that she had a gradual change of heart or rethought her position over time, so much as her ideas suddenly turned out to be unpalatable when it became apparent that they would have to be applied in a nonpartisan manner. When faced with a choice between her "principles" and politics, Estrich abandoned the former in favor of the latter. That's not feminism, it's opportunism.
Regarding Estrich's recent bizarre and inaccurate defense of Schwarzenegger, Roiphe notes a detail that I also found curious:
It may or may not be relevant to all this that she was one of the Democrats later named to Schwarzenegger's transition team.
It is funny how often two people can look at the same facts, ask the same questions, and yet arrive at diametrically opposed conclusions. I have no reason to think that Roiphe's conclusions are not offered in good faith. Unfortunately, I cannot say the same for Ms. Estrich.
One of the show's executive producers, Cris Abrego, said the casting process took a long time, in part because so many people wanted to join the cast."Having a revolving, big celebrity guest star every week—that person becomes our seventh cast member," he said, noting that the guest celebrity will live in the house with the six regulars.
The second "Surreal Life" installment takes place in the same house used earlier this year for the first season, although Abrego said it's been injected with a heavy dose of "bling-bling."
"It's very pimp, very Austin Powers love shack," he said.
Doesn't that little snippet tell you everything you need to know about the show and its quality? I know that there are intelligent, reasonable people who consume this sort of fare, but I am hardpressed to comprehend this phenomenon. Much as I do not understand why people choose to feed their bodies with fast food, I just do not understand why people feed their brains with "reality" television. A steady diet of either just isn't healthy.
Update. Apparently, I am not alone in my assessment of the value of television programming. Glenn Reynolds links to this New York Times story. Among the more juicy morsels is the fact that some serious money is involved due to the nature of advertising contracts. In particular, readers should take note of some of the comments from network executives. It's almost as if they are already planning for litigation . . . .
The network's apparent preemptive defense is delicious. The very people responsible for the abominable state of television deny responsibility and instead maintain that the Nielson service must just be underreporting their audience. Anything is possible, I suppose. But if may, might I suggest that Defense Exhibit A consist of five minutes of Mr. Abrego's The Surreal Life?
Justice Brown is not qualified to serve on the Court of Appeals for the D.C. Circuit. Our nation’s courts of appeals are almost always the courts of last resort for Americans who use our federal courts, and of the appellate courts, the D.C. Circuit is the most powerful. With exclusive jurisdiction over many laws affecting the workplace, the environment, civil rights, and consumer protection, and as the primary court for interpretation of administrative law, the D.C. Circuit has a uniquely important role in our system of law and justice. Accordingly, the men and women appointed to this court should be highly regarded by their colleagues and those who will appear before them. Justice Brown does not inspire such confidence in her peers. The American Bar Association Ratings Committee gave her a majority "qualified"/minority "not qualified" rating. No member of the Committee found her to be "well-qualified." She is only the second sitting judge nominated by President Bush to an appellate court who has received a partial "not qualified” rating from the ABA. Her nomination to the California Supreme Court was also marked by similar concerns.
The CBC's press release and the attached letter makes it clear that it opposes Brown for substantive reasons as well. Indeed, the substantive disagreements are the real ones. This bit about the ABA's assessment of Brown's qualifications is just a bit of opportunistic nonsense.
It is a matter of public record that neither party cares one whit what the ABA thinks. Indeed, it seems fairly obvious that the Congressional Black Caucus does not truly care what the ABA thinks. After all it opposed the nomination of Miguel Estrada, notwithstanding his unanimous endorsement of "well qualified" from the ABA.
In addition, the CBC has crafted its ABA-based argument in a manner that is fairly misleading. In the excerpt above, Congressman Cummings writes that Rogers "is only the second sitting judge nominated by President Bush to an appellate court who has received a partial 'not qualified' rating from the ABA" (emphasis added). But, of course, the ABA has given many of Bush's appellate nominees a partial unqualified rating: Claude A. Allen (4th Circuit), Carlos T. Bea (9th Circuit), Steven M. Colloton (8th Circuit), William Gerry Myers, III (9th Circuit), William H. Pryor, Jr. (11th Circuit), and Timothy M. Tymkovich (10th Circuit). By limiting itself to consideration of "sitting judges," the CBC is simply trying to turn otherwise useless data into a favorable statistic and talking point. Moreover, when it comes to evaluating nominees who are sitting judges, members of the Congressional Black Caucus have not been supportive of Priscilla Owen's nomination despite her unanimous "well qualified" rating by the ABA.
There is some reason to think that the ABA is less than accurate in its assessment of nominees. As Stuart Buck points out, some excellent judges have received a partially "not qualified" rating. Astoundingly, the ABA merely thought Richard Posner to be "qualified/not qualified," for example.
Whatever the merits (or demerits) of the ABA's methods and conclusions, no one really rests their views of a nominee on the ABA's measure. Indeed, the ABA's ratings are more of a distraction than anything else, inasmuch as they are disingenously employed as a proxy for other (more likely political) objections. Judging from the general tenor of the CBC's opposition, what is more likely at issue is Brown's political and judicial philosophies, not her qualifications.
Update I. Howard Bashman previously noted that New York Times reporter Neil Lewis made a similar mistake regarding the ABA's ratings and Janice Brown. See Neil A. Lewis, Battle Lines Already Forming Against a Bush Court Selection, New York Times, Oct. 18, 2003 ("Justice Brown is the only Bush appeals court nominees [sic] to date who has not received a strong endorsement from the American Bar Association."). The ABA's actual ratings confirm Bashman's criticism. Although the Times has corrected another error contained in Lewis's story, it has not yet set the record straight on this matter. (Thanks to Pejman Yousefzadeh who reminded me of this error via one of his posts.)
Update II. Professor Yin makes a nice point that potentially undercuts my assessment of the CBC's regard for the ABA's ratings. I do not happen to have the sort of data that he suggests would support or detract from my position. (I have looked for some such information on the Internet and drawn a blank.) The CBC's own press release (with the accompanying letter) itself gives the impression that the ABA rating is an afterthought rather than a threshold matter where Brown is concerned.
On this issue, one future case that may be worth watching is the nomination of Claude Allen to the Fourth Circuit. Allen is also a black nominee and has received the same ABA rating as Brown. His background (e.g., former member of Jesse Helms's staff) is precisely the sort that should draw the CBC's ire. Yet the CBC has been absolutely silent on his nomination. (Allen was nominated in April of 2003. His hearing is apparently scheduled for next Tuesday.)
Will Baude links to a prior post of mine, writing that it attacks not just Atrios's arguments but Atrios himself. My actual "anti-Atrios" remarks were as follows:
Others have addressed the issue in less thoughtful ways. So for those who prefer arguments to be scrawled in marker on bathroom stalls, there is a venue for you too.
The link is to a post written by Atrios, which, in relevant part, reads:
What Dahlia said. And Gregg Easterbook is a dick. A real fuckwit. I really don't get these people who think a serious problem facing this country is an epidemic of men who were accused of rape because they thought 'no' meant 'yes' when it actually meant . . . 'no.' I'm sure men get falsely accused of rape, as they do everything else. I think guys like Easterbrook are just upset that the law constrains them from being sufficiently aggressive in their sexual encounters, and they'd only get laid more if they felt comfortable putting on just a little more pressure . . .
Ultimately, you the reader will have to decide whether, in context, my aside constitutes a "personal attack[]," but I think that Baude's conclusion is misplaced. My remark is obviously directed at Atrios's rather juvenile argumentation. I realize that there exists a class of Internet "ranters" who think that nearly every argument ought to be made in a Tarantinoesque vernacular. Obviously, there is quite a market for Atrios's particular approach. That's fine. But I hardly think that anyone can complain if I fail to take such writing (or writers) seriously.
The tone adopted by Atrios in the aforementioned post is particularly grating when the people involved are woefully underinformed. Atrios and Lithwick, upon whom Atrios relies, simply have no idea what they are talking about in terms of the law where rape and consent are concerned. Ignorance is a frequent but poor foundation for condescension. Mind you, I also wrote "that Easterbrook's particular suggestion is silly beyond words," but the underlying concerns that served as the impetus for his suggestion are hardly benighted. Easterbrook's post merited more than Lithwick's vacant and legally ill-informed sloganeering. It certainly merited better than name-calling (e.g., "fuckwit") and ridiculous and unanswerable "Type M" argumentation (e.g., ". . . guys like Easterbrook are just upset that the law constrains them from being sufficiently aggressive in their sexual encounters . . ."). Moreover, Atrios committed one of the cardinal sins of blogging: attacking an author without providing a link to the article in question when such a link is clearly available.
Baude appears to be criticizing me for personally attacking Atrios. My admittedly subjective take is that Baude is mistaken. In this particular exchange, the personal attacks are all on Atrios's part, and I merely criticized the content of his post as being akin to what one finds scrawled on bathroom stalls. I think that criticism is fair, accurate, and not at all personal.
HOUSTON, Texas (AP) — A grand jury lambasted the Houston Police Department's DNA lab as incompetent and mismanaged but closed out its six-month investigation Thursday without indicting anyone."There seemed to be a total lack of concern about profound errors committed by certain members of the lab's staff," grand jury member Joe King said as he read from a statement on behalf of the panel.
"Although seemingly criminal, these acts do not meet the necessary requirements for indictment."
The HPD DNA lab has apparently been shut down and independent labs are in the process of verifying its results in criminal cases. One man convicted of rape in 1999 has already been released as a result of HPD's botched DNA work. The Houston Chronicle reported earlier this year that retesting revealed that the man in question "could not have been the rapist Harris County prosecutors said he was." Other cases have been called into question as a result of this fiasco as well, including at least one other sexual assault case. Inquiries into the matter also revealed that the lab's staff were unqualified for their positions and that the lab's erstwhile director misrepresented his own qualifications in open court.
Obviously, DNA evidence is not critical in every instance. But it is important enough in every case in which it is involved that the state must absolutely be committed to getting it right. If laboratory misfeasance places innocent defendants behind bars, then laboratory personnel ought to be indicted. If the present law does not allow for such indictments, then, perhaps, the relevant law needs to be revised.
Using the ESPN site's search function for "Easterbrook" returns you to the main page as if the search had never been entered. I confirmed this myself. What's even odder is that if you select "web" rather than "site" and conduct the same search, you still end up back at ESPN's main page, again as if the search had never been conducted. It is as if ESPN is not only denying their former association with Easterbrook but his very existence. ESPN has declared Easterbrook to be an unperson.
This last bit is just strange. ESPN's heavyhanded approach is also hamhanded, as certain search results turn up references to Easterbrook's column, "TMQ." ESPN has deleted the actual columns, however.
If ESPN is going to resort to such Orwellian measures, it should probably become a little more technically proficient at expunging the historical record. ESPN's conduct also strikes me as borderline-dishonest. If a website has a search feature that indicates that one may search the world wide web, then the search feature ought to actually do so. (Obviously, a bona fide web search for "Easterbrook" turns up a multitude of results.)
I have not formed an unshakable opinion on Easterbrook's remarks. I am not a fan of Easterbrook's writing in general. However, my initial impression is that his critics have overreacted. Easterbrook wrote:
Set aside what it says about Hollywood that today even Disney thinks what the public needs is ever-more-graphic depictions of killing the innocent as cool amusement. Disney's CEO, Michael Eisner, is Jewish; the chief of Miramax, Harvey Weinstein, is Jewish. Yes, there are plenty of Christian and other Hollywood executives who worship money above all else, promoting for profit the adulation of violence. Does that make it right for Jewish executives to worship money above all else, by promoting for profit the adulation of violence? Recent European history alone ought to cause Jewish executives to experience second thoughts about glorifying the killing of the helpless as a fun lifestyle choice. But history is hardly the only concern. Films made in Hollywood are now shown all over the world, to audiences that may not understand the dialogue or even look at the subtitles, but can't possibly miss the message—now Disney's message—that hearing the screams of the innocent is a really fun way to express yourself.
It seems to me that a fair reading of what Easterbrook actually wrote of was his apparent surprise that Jewish Hollywood executives would not be more sensitive to the potential effects of depictions of violence on the silver screen, given the sad history of violence directed at Jews. Easterbrook has subsequently written that this was precisely his intent and has conveyed his apologies for expressing his sentiments in a fashion that might be thought to express anti-semitism. He also attributed any such misunderstanding to his own poor drafting.
In short, he accepted responsibility for his own words. It's also quite clear from Easterbrook's own religious faith that charges of anti-semitism are misplaced where he is concerned. Therefore, I am inclined to give Easterbrook the benefit of doubt in this instance. At least one other thoughtful commentator has arrived at a similar conclusion.
Having said that, I think that Easterbrook's overall points are ridiculous and worthy of condemnation on a purely intellectual level. For example, for reasons pithily expressed by Virginia Postrel, Easterbrook's criticism of cinema violence is "morally . . . obtuse." In addition, it's not as if there is a Christian or Jewish prohibition on literary or film violence. If there were, multiple stories from the Old and New Testaments would have to be expurgated.
Update: Greg over at Begging to Differ has also offered some pointed criticism of ESPN:
But to say ESPN can do something isn't the same thing as saying it should. On the contrary[,] ESPN did the wrong thing here. If pressed to respond, ESPN will no doubt point out that Easterbrook's comments (not at ESPN) were "hurtful" or "insensitive." Yeah, those are called opinions. They're like that sometimes. But the answer isn't to bury opinions and pretend they never existed. That is the antithesis of Free Speech. No, I'm not talking about the First Amendment, which doesn't apply in this context at all. (Let's see: "Congress shall make no law . . ." Um, yeah.) But there's more to Free Speech than the First Amendment. Just ask John Stuart Mill. Mill wrote, in On Liberty . . . .
Everyone always professes to believe in a generalized right to "free speech"—unless, of course, that means having to tolerate opinions with which they disagree. Life is filled with these dime store tyrants who view your supposed rights as privileges that are wholly dependent on their good will. But offer even the slightest criticism of their cherished sentiments and cries of "McCarthyism" and "censorship" fill the air.
State Farm Insurance will not have to pay thousands of dollars to a woman who was kidnapped and raped in her car in 1998, the Colorado Supreme Court ruled Tuesday.The woman filed an auto-insurance claim under the personal-injury and uninsured-motorist provisions of her policy, seeking thousands of dollars to cover her physical and mental injuries.
The seven-member court split 4-3 in overturning appeal and trial-court decisions that insurers argued could have opened them to large claims that car insurance was never meant to cover.
A lower Colorado appellate court had ruled the opposite way.
As a sidenote, the Post declines to print the insured's name, citing a policy of not printing the names of victims of sexual assault without permission. While I do not necessarily have any problem with this practice, it seems quite peculiar in this instance. The insured's name is listed in the caption of the state court decision, an available public record. See State Farm Mut. Automobile Ins. Co. v. Kastner, No. 02SC258, __ P.3d __, 2003 WL 22331874 (Colo. Oct. 14, 2003).
Writing for the majority, Justice Kourlis summarized the court's holding as follows:
. . . We granted certiorari on the question of whether injuries caused by a sexual assault in an automobile arise out of the operation, maintenance, or use of a motor vehicle for purposes of personal injury protection or uninsured/underinsured automobile insurance coverage.Resolution of this case requires us to determine whether the injuries associated with the sexual assault are causally related to a "use" of the claimant's motor vehicle. We now hold that (1) where the motor vehicle is being used in a manner reasonably foreseeable at the time the parties contracted for the insurance and (2) the "use" of the vehicle is inextricably linked to the plaintiff's injury, the plaintiff is entitled to recover. Both because we conclude that the use was not reasonably foreseeable and because we conclude that the sexual assault had an insufficient causal nexus with use of the vehicle, we now hold that Kastner's State Farm policy did not cover her injuries. Accordingly, we reverse the court of appeals, and return this case to the trial court with directions to enter summary judgment on State Farm's motion.
Id. at *1.
The facts of the case were stipulated by the parties.
. . . Those facts disclose that on December 8, 1998, Christina Kastner was shopping at the Citadel Mall in Colorado Springs. When she left the store sometime after 7:30 p.m., it was dark. Her car was parked about ten cars down from the closest parking spot on the east side of the shopping center. The lot was relatively full and there were cars parked on both sides of Kastner's car. Kastner was standing at her car and had unlocked the car door when she saw a male just to the south of her and directly behind her car. She then opened the door to the car and was standing between the car seat and the open door when the male began asking for directions. Kastner believed that the male had been hiding either behind and to the side of her vehicle or behind the vehicle next to hers because she did not notice him until she reached her car.Kastner had no reason to believe that the male used her vehicle in some way to identify her as a potential victim. As Kastner was responding to the request for directions, the man quickly moved beside her and ordered her to get into the car. She saw something in his hand that she believed to be a knife or gun. Kastner tried to get away from the man by pushing him in the face, but he moved the object toward her and she noticed that the object was a knife. He ordered her to the passenger side of the car, and he grabbed the keys to the car from her hand. She obeyed the man's instructions to get into the front passenger seat of the car, put the seat back and get down as far as possible. The man then entered the driver's side of the car and drove her car from the lot.
He took Kastner to Palmer Park, a wooded park in Colorado Springs. Along the way, he pointed a knife with a 6" to 8" blade at her, yelled at her to stay in the car and threatened to kill her. At Palmer Park, he pulled off the road in an isolated area. He robbed her of $150, and demanded that she disrobe. She opened the passenger door to attempt escape, but was held in by her automatic seatbelts. The man immediately grabbed her by the hair and placed the knife blade on her throat. He then sexually assaulted her in the car with the knife at her back. After the assault, he drove out of Palmer Park and pulled into a liquor store parking lot. He threatened her and her children with bodily harm if she reported the assault, got out of the car and walked away. Kastner immediately drove to the police station to report the incident.
Id. at *1-2.
The insurance policy had a pesonal injury protection provision in compliance with Colorado's no fault law as well as an uninsured/underinsured motorist provision. Id. at *2. Kastner submitted claims under both provisions. Id.. The respective provisions provided that:
"We will pay in accordance with the No Fault Act for bodily injury to an insured, caused by an accident resulting from the use or operation of a motor vehicle.""We will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle. The bodily injury must be caused by an accident arising out of the operation, maintenance or use of an uninsured motor vehicle."
Id.
The case apparently turned on whether there was a sufficient causal connection between the use of the vehicle and the sexual assault. See id. at *2, *4. I know little about insurance law, but it seems odd to me that the term "accident" in each clause did not preclude coverage as a matter of law. What happened here was clearly not an accident in any sense of the word. But the law is frequently not commonsensical, so some nuance of insurance law may account for this peculiarity. The court specifically declined to address this particular issue, but cited prior precedent that indicates that it is entirely possible that the sexual assault qualifies as an "accident" under the terms of the policy. See id. at *4 n.1.
Perhaps, however, the court is indirectly accounting for this fact when it writes of the provisions that:
Since both the UM and PIP policy provisions are express attempts to conform to statutory requirements, our interpretation of their terms should reflect the overall legislative purpose of the UM and No Fault statutes. Consistent with both the legislative declaration and the general purpose of automobile insurance, our previous cases have interpreted the No Fault Act as providing a floor of recovery for the injuries of policy-carriers for the type of risks one would expect an insurance contract to cover. Thus, the legislative intent of the statutes controls our interpretation of the policies.
Id. at *3 (internal citations omitted) (emphasis added); see also id. at *5 ("Whatever the use, it must be one that was contemplated by the parties to the insurance contract, and must be 'inherent in the nature of the automobile [ ] as such.'").
The caselaw is not entirely on the side of the majorty, however. For example, the court writes that:
We have previously observed that using a car merely to help carry out a criminal act is not the kind of "risk that the automobile insurance contract was meant to cover." Instead, where the act causing the injury is intentional, the "use" of the vehicle must bear a direct relation to the ass