Death Match: Church v. State

Announcer (Monster-Truck Style): Wednesday! Wednesday! Wednesday! The showdown we've all waited for, a battle to the death! One will survive, and run this country, the other banished to hell. Pick your side carefully!


Church and State will again meet in the U.S. Supreme Court this week, as the Wisconsin based "Freedom from Religion Foundation" will challenge the Constitutionality of the Bush Administration's "Office of Faith-Based & Community Initiatives".

The case before the justices focuses on regional conferences that promoted the initiative. The Freedom From Religion Foundation likened the conferences to "revival meetings" and said they boosted the grant prospects for religious groups "without similar advocacy for secular community-based organizations."

The legal question is not whether those conferences violated the constitutional separation of church and state, but more fundamentally when a taxpayer may even get into court to challenge such mingling of government and religion.

As I often do, I am using this as nothing more than a spring-board for my soapbox-ing.

What is the role of religion in our government? The first amendment says, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." The question is, when the White House establishes an Office of Faith-Based Initiatives, which in theory (and on paper) is meant to equally benefit all forms of religion, have they violated the Constitution?

I would argue that they have. The religious-right has gone out of their way to work around this clause. You've got to love places like Alabama where have the so-called Blue Laws (which say you can't purchase Alcohol on Sundays). Now, I may just be crazy, but Sunday is the Sabbath for Christianity, but not Judaism, Seventh Day Adventist, Muslims...yet we have "established" Sunday as a day that Alcohol cannot be purchased? If the policy objective is that one-day-per-week we should abstain from drinking, then why not make it Tuesday? Why Sunday? Because Jesus said so? Thats not a separation of Church and State.

Similarly we have to look at the basis for a Constitutional Amendment to ban Gay Marriage. People who make the argument that Marriage is between a Man and a Woman are basing the argument on their faith. Thats fine, let the churches refuse to sanction the marriage, or recognize the marriage, or conduct the service. But the SECULAR Government should provide equal protection under the laws to couples regardless of their sexual preferences and makeup. This is an encroachment by the church into the state-oriented rights of American Citizens. Its Egregious!

Lastly, we face the separation of church and state when we talk about abortion. I don't want to drive too deeply into this right now, but I'll say this: The anti-abortion/pro-life sect of this argument has placed so much emphasis on the religious aspects of their argument, that they have placed the discussion within this realm. I understand that our "morality" is based upon our notions of faith and god, but when you stand in front of clinics and declare that the people inside are going to burn in hell for what they've done, and that abortion is the murder of god's children you've made it a religious discussion. The other side of this argument doesn't argue "Hey, God loves killing unborn children", they say "Look, common sense says that bringing this baby into the world is irresponsible, and additionally until the fetus is independently viable outside the womb, I don't believe that it is alive". That argument isn't based on god, or religion. Its based on science and reason, two things that the U.S. Constitution does not specifically warn us to keep out of our government.

Thats what this is really about.

The news story can be found here.

The Freedom from Religion Foundation can be found at this website.

The Office of Faith-Based and Community Initiatives can be found at this website.

Stay Tuned...

I remember this...

Its been a very long time since I've had nothing to do.

I can't remember the last time I got to spend a Monday afternoon on the couch watching TV.

On todays list:

The Deer Hunter (yeah, some badass De Niro circa 1979.)
30 Rock
Rome
Scrubs

I don't know how I'm going to get all this done...

Stay Tuned...

Philip Morris - Saved by the U.S. Supreme Court

The Opinion is available at the U.S. Supreme Court website.

The Facts First:
In this state negligence and deceit lawsuit, a jury found that Jesse Williams’ death was caused by smoking and that petitioner Philip Morris, which manufactured the cigarettes he favored, knowingly and falsely led him to believe that smoking was safe. The Jury awarded $821,000 in compensatory damages and $79.5 million in punitive damages. The trial court reduced the latter award, but it was restored by the Oregon Court of Appeals. The State Supreme Court rejected Philip Morris’ arguments that the trial court should have instructed the jury that it could not punish Philip Morris for injury to persons not before the court, and that the roughly 100-to-1 ratio the $79.5 million award bore to the compensatory damages amount indicated a “grossly excessive” punitive award. The United States Supreme Court accepted certiori to hear the case.

The Legal Question Presented:
Were the punitive damages handed down by the jury a violation of the Due Process Rights of Philip Morris. This is based on the notion that the damages were meant to punish PM for injuries sustained by people who were not parties to the lawsuit, and Philip Morris thus did not have a chance to be properly heard on the matter?

The Issue, as presented by the Court it is as follows:
[Philip Morris] asked us to consider, among other things, (1) its claim that Oregon had unconstitutionally permitted it to be punished for harming nonparty victims; and (2) whether Oregon had in effect disregarded “the constitutional requirement that punitive damages be reasonably related to the plaintiff’s harm.” Pet. for Cert. (I). We granted certiorari limited to these two questions. For reasons we shall set forth, we consider only the first of these questions.

The Supreme Court Holding:
Yes, the punitive damages were an improper "taking" and a violation of the 14th Amendment Rights of Philip Morris.

For one thing, the Due Process Clause prohibits a State from punishing an individual without first providing that individual with “an opportunity to present every available defense.”
***
For another, to permit punishment for injuring a non-party victim would add a near standardless dimension to the punitive damages equation. How many such victims are there? How seriously were they injured? Under what circumstances did injury occur? The trial will not likely answer such questions as to nonparty victims. The jury will be left to speculate. And the fundamental due process
concerns to which our punitive damages cases refer—risks of arbitrariness, uncertainty and lack of notice—will be magnified.

Essentially, the Court says that the Oregon Supreme Court applied the U.S. Supreme Court precedent incorrectly. They remanded for further proceedings consistent with their opinion. In english - The Oregon Court has to try again, and decide a new amount for Punitive Damages. One that won't violate the takings clause.

Lets think critically about this decision:
This was the plaintiffs attorney's fault. He got before the Jury and argued in closing that PM was harming tens of thousands of Americans with their product, and basically called on the Jury to send a message to the cigarette industry. Once the plaintiff's counsel argued about the "greater good" and the overall harm to society, they were outside the bounds of their case, and were just asking for trouble. This probably played a significant role in the trial court judge's decision to reduce the award from $79.5 Million to $32 Million.

It does beg a larger question: Why bring a case like this without establishing a "Class" and bringing it under Rule 23 of the Federal Rules? If you establish a large (and growing) class of individuals who were subject to the same harm, then you provide a Jury with the opportunity to down this kind of "large scale response" to what Big Tobacco has done to this country.

aside: In the interest of full disclosure, I should throw out there that I am a smoker. Philip Morris' own "Marlboro Lights" none the less.

So why is this here? Why is this being blogged about? The question has an easy answer...Because its interesting. Its news. It is a major win for Philip Morris, and Big Tobacco. It means that future plaintiffs bringing their case in State courts will need to form a Class Action suit in order to really "stick it" to the Tobacco Companies. No individual plaintiff will be permitted (in State court) to tag any corporation (Fast Food Industry, Tobacco, Alcohol, Firearms, etc.) with a large punitive award meant to prohibit larger-scale behavior.

Now we all wait and see what the Oregon Courts do, since there is still no "clear" standard about what % increase is permissible. All we really learned here is that this increase (from $800,000 in Compensatory to $80 Million in Punitive) was improper.

I will note that there is something really bizarre about the dissent in this case. The four members dissenting? Stevens, Ginsburg, Thomas, and Scalia. Seriously? Stevens and Scalia dissenting together has a strange sound to it. It should be noted that they dissented on different points.

Stay Tuned...

Briefly: The Black Donnellys

So the first episode aired tonight and I thought I'd share some impressions:

The writer/director of Crash and the writer of Million Dollar Baby are heading up the project.

Not a bad pedigree.

The first episode introduces us to the 4 Donnelly brothers, some of their history, the people in the neighborhood, and the condition of their lives.

It was actually pretty good.

I'm skeptical about the direction they sent the story...I'll give it a few weeks before I pass judgment.

Ill tell you this - its hardcore, the action is good, the music is good, and its a bunch of drunk, pissed off, violent Irish fighting a bunch of drunk, pissed off, violent Italians.

Its basically the soprano's on broadcast TV.

Its re-airing on Thursday at 10 you should DVR it.

Like i said, ill give it three or four episodes before I decide what I think, but they showed some promise with their pilot.

Stay Tuned...

Should Abortions in TN get a Death Certificate?

Here is an excerpt from the article.

NASHVILLE, Tenn. — Legislation introduced in Tennessee would require death certificates for aborted fetuses, which likely would create public records identifying women who have abortions.

Rep. Stacey Campfield, a Republican, said his bill would provide a way to track how many abortions are performed. He predicted it would pass in the Republican-controlled Senate but would have a hard time making it through the Democratic House.

"All these people who say they are pro-life — at least we would see how many lives are being ended out there by abortions," said Campfield.

Only in the South right?

But you don't really expect that from the TN Legislature. Its been Democratically controlled for a number of years, and so I guess we've all become accustomed to watching them dodge the hot-button conservative issues.

More importantly, how does this affect the rights protected by Roe? It doesn't directly interfere with a woman's right to choose, or restrict who/when/how the abortion will take place. It does something new, something different. It forces an unreasonable emotional burden on a woman in her most vulnerable state, when she has already made one of the most difficult decisions of her life.

How is that appropriate? Its the metaphorical "salt in the wound" for a woman who, despite her moral convictions, felt that the responsible choice to make was to not bring a baby into whatever world she lives in.

This is about as close to "intentional infliction of emotional distress" as I've ever seen a piece of legislation get.

Before you discount the notion that this law might actually interfere with the legally protected right to choose, think about the "intent" of this legislation. While the plain language of the bill might not strictly contradict the precedent of Roe, the legislative intent is clearly to discourage, torment, harass, and embarrass those people who try to exercise their rights. While the plain language is the first place to look, the purpose of the bill is a relevant means of evaluating the legality of any piece of legislation.

The claim advanced by Mr. Campfield is that the legislature is seeking a record of abortion for statistical purposes, but as the article points out, any fetus over 22-weeks-old, or 1 pound in weight is already recorded in the state Office of Vital Records. It is also recorded anonymously at this point, which is the proper way to record such material. The death certificates would require the mother's social security number to be included in the record, a gross violation of the privacy and autonomy associated with such delicate medical decisions. Beyond that, who is Mr. Campfield to tell women how to handle these issues?

This may pass the Republican controlled Senate, as Mr. Campfield stated, but I don't see it getting further than that. If it were to pass both houses, I don't see Governor Bredesen signing it into law. Beyond that, if it did pass into law, I don't think it would be upheld when it is challenged in the courts. And it would be. As Professor Otis H. Stephens pointed out to me today when we discussed this, the Tennessee Supreme Court has made a habit of slapping the legislature for exactly this kind of behavior.

Stay Tuned...

Top 10 Law Firm Interview Questions

This is from the Best of Craigslist

This is not my original material, but its really funny, and demonstrates what its like for us in the interview process.

Kind of.

Caution, the language is rough at times.

One of the worst experiences in law school has been the ritual of submitting applications for summer employment and then going through a series of 20-minute screening interviews that would put a marine drill sergeant to shame when it comes to humiliating and dehumanizing you. Here are my top-ten (least) favorite questions, and how I actually answered them as opposed to how I would have liked to answer them.

1. Why are you interested in this firm?

What I said: Your firm handled (insert name of case I read on their website) which I found to be exciting because it was just like another case I was reading in this class I got an A in. I've also asked some (read: none) upper class-men about your office and they said it's a great work environment.

What I thought: I looked through your attorney roster and saw that you hire people who do not appear to have any honors and come from bad law schools. That made me think that I have a chance to work here.

2. Why did you go to law school?

What I said: I went to law school because I want to be able to make a difference. Legal work allows me to be competitive and to work for justice, both of which are important things in my life.

What I thought: That's a good question, and I ask myself it daily. I'd have to say the answer is, stupidity.

3. Do you think your grades are an accurate reflection of the kind of work you will do as an attorney?

What I said: Law school has been a challenge, and I think my grades reflect that. More important than my grades, which by the way have steadily improved over my academic career, is my dedication to the work I do. My performance during my summer jobs is the best indicator of how I will work, and you will find that my previous employers were all pleased with me (or at least forgot who I am and so will not remember the fuck ups).

What I thought: My grades are absolutely a good reflection of how I will work. I will put in the minimum amount of effort needed to not get fired, and I will approach my job with contempt and disinterest.

4. What would you say is your greatest weakness?

What I said: My greatest weakness is that I get too personally involved with my work. For instance, when I am working on trial prep, and then the case settles favorably, I feel as though it should have gone to trial anyway, despite knowing that the settlement is what's best for our firm and our client.

What I thought: Pussy. If there are any females in your office, you can be certain I will work twice as hard to get into their pants as I will to make my billables. And yes, since you require us to bill 1,900 hours, that means I will be sexually harassing my co-workers 3,800 hours a year.

5. Tell us about a recent mistake that you have made.

What I said: I accidentally misfiled a case at work that was set to go to trial the next week. As soon as I realized this, I alerted my supervisor and disaster was averted.

What I thought: An even bigger mistake I've made has been wasting 20 minutes of my life in this interview instead of taking a dump, that would have been much more satisfying and productive.

6. What do you do for fun?

What I said: I enjoy jogging, skydiving, and traveling to exotic countries.

What I thought: When I really want to have fun, I grab my "Big Butt Sluts # 24" DVD, a bottle of Bourbon, and a bottle of lube. By the end of the night, both bottles are empty, and my room smells like jizz and puke.

7. Tell us about your style of leadership.

What I said: I lead by taking the initiative and working proactively with my peers to come up with solutions.

What I thought: I lead by playing "The Eye of the Tiger" on a boombox while pounding my fist on the table and shouting insults. (It works, I've done it)

8. If you don't get hired by this firm, what will you do?

What I said: I will analyze what I could have done better during the interview and take that knowledge with me into my next interview with [rival firm name].

What I thought: I will breath a sigh of relief that I won't be working for an asshole like you. Or I will stalk you and slit your throat. I haven't decided yet.

9. Do you have any questions for us?

What I said: Will I have a key so that I can come in and work on the weekends?

What I thought: Will I have a key so that I can come in and have sex with my girl friend on my desk on the weekends?

10. We value creativity among our associates. With that in mind, what kind of plant would you be, and why?

What I said: I would be a tree, because they are tall, strong, and live a long life.

What I thought: I would be a tree, so that I could fall on you and kill you.

Stay Tuned...

Viewer Discretion Advised -

So, I don't really know how to set this up...

This guy jumped out of an airplane at 12,000 feet with a camera attached to his helmet.

His parachute didn't open.

He survived.

The footage is amazing, it goes back and forth between his camera and his buddy who jumped right after him.

Its not bloody or anything, and the language isn't bad (considering the guy fell 12,000 feet without a 'chute).

Right before he hits the ground he says "I'm dead. Goodbye."

But he isn't.

It is possibly the most remarkable footage I've ever seen though.

So - you've been warned. If your curiosity gets the best of you, don't hold me responsible.

The Video

Stay Tuned...