You Need to Read This

  You. Yes, you. I don't care how little (or how much) you know or care about politics. I don't care how much you know or care about the Supreme Court, or the law in general. If you're a citizen of the United States, or you know someone who is, you need to read The Supreme Court: A User's Guide, by Dalia Lithwick of Slate. Why? Ms. Lithwick sums it up:

While the justices cannot bring down gas prices or bring home the troops, their decisions in the coming years will affect just about everything else: your rights regarding privacy, reproduction, speech and religion; how to count your vote and where your kids go to school; as well as your occupational and environmental protections. You name it, they'll decide it. Or they'll decide not to decide it (which may be even worse).

  You need to know what's happening in the Supreme Court, and the federal judiciary in general. You need to know that the Supreme Court is the only thing standing between you and the total abolition of your civil rights. If the Court abdicates its role of reviewing laws for constitutionality, Congress and the President will have free reign. (Free "reign." Get it?) If they agree that it's okay to start disenfranchising old people who don't have a favorite bible verse and college students who've ever discussed having an abortion, shipping them abroad to be waterboarded with crude oil drilled in your local park, and paying female torturers half as much as male torturers, while tapping the phones of their relatives, nobody will be able to stop them.

  I know this sounds alarmist, but sometimes a little bit of alarm is really goddam necessary. This is one of those times.

 WHAT ARE YOU STILL DOING HERE?

How Many Times Does It Have To Fail?

  CNN.com/crime is reporting that a 16 year old Oregon boy, whose parents raised him in a faith-healing only church called the Followers of Christ, has died of a urinary tract blockage. The blockage caused a buildup of urea in his bloodstream, which poisoned his organs and caused heart failure.

He probably had a congenital condition that constricted his urinary tract where the bladder empties into the urethra, and the condition of his organs indicates that he had multiple blockages during his life, said Dr. Clifford Nelson, deputy state medical examiner for Clackamas County.

"You just build up so much urea in your bloodstream that it begins to poison your organs, and the heart is particularly susceptible," Nelson said.

Nelson said a catheter would have saved the boy's life. If the condition had been dealt with earlier, a urologist could easily have removed the blockage and avoided the kidney damage that came with the repeated illnesses, Nelson said.

  In March, the boy's 15 month old cousin died of bronchial pneumonia and a blood infection, after her parents refused to do anything but pray for her recovery. The two children are the latest in a series of deaths among younger church members, which in 1999 prompted the state of Oregon to remove protections based on religion for parents who treat - or rather, FAIL to treat - their children with prayer rather than actual useful medicine.

  Unlike the parents of the little girl, who were charged with manslaughter and criminal mistreatment, the parents of the latest victim have another out. Oregon law allows minors over the age of 14 to refuse medical treatment. If it turns out that the boy was offered treatment and refused it, his parents are off the hook.

  Two things spring to mind. First, these people are serial child abusers. Points to Oregon for having the stomach to prosecute them. We can only hope that their planned religious freedom defense doesn't stand up in court. A competent adult should have the right to refuse medical treatment for any reason, but withholding medical help from a sick toddler is crazy and criminal, and no amount of faith should shield willfully neglectful parents from prosecution.

  Freedom of religion, like every freedom, has to have practical limits. Freedom of speech doesn't protect the proverbial guy shouting "fire" during the premiere of the latest summer blockbuster. Freedom to practice one's religion without government interference shouldn't protect parents who routinely let helpless children die from easily treatable diseases. We as a society need to come to some kind of consensus that exempting churches from property taxes is acceptable, but subjecting children to potentially fatal neglect isn't.

  Second, and more personal, are some variations on the question I asked above. How many times does the power of prayer have to fail before these parents will wake up and stop letting their children die? I don't expect them to stop believing in their god, but is a healthy dose of "those who help themselves" to much to ask? How deeply indoctrinated do you have to be to believe that your all-powerful, benevolent deity has a plan that includes your son or daughter dying for want of a bottle of penicillin? Is there any way to shake these people awake before another child dies? If anybody has answers to any of these, I'd love to hear them.

Gullible School Officials + Psychic Babbling = Trouble For Ontario Mom

  Colleen Leduc, of Barrie, Ontario is a single mother, raising an 11 year-old autistic daughter. She sends her daughter to public school, because that's all she can afford.

  On May 30th, she received a call from her daughter's school, asking her to come in right away. When she got there, she was informed that there were suspicions that her daughter was being sexually abused.

"The teacher looked and me and said: 'We have to tell you something. The educational assistant who works with Victoria went to see a psychic last night, and the psychic asked the educational assistant at that particular time if she works with a little girl by the name of "V." And she said 'yes, I do.' And she said, 'well, you need to know that that child is being sexually abused by a man between the ages of 23 and 26.'"

  Based on this ridiculous cold reading trick, school officials called the Children's Aid Society, which launched an investigation into the allegations.

  Luckily, Leduc was able to satisfy CAS that the abuse was entirely imaginary.

[A] case worker came to the Leduc home to discuss the allegations of sexual misconduct, only to admit there wasn't a shred of evidence that anything had ever happened at all. They labelled Leduc a "diligent" mother doing the best she could for her child under difficult circumstances, closed the file and left, calling the report "ridiculous."

  This, right here, is why belief in spooky mind powers isn't harmless fun. These baseless allegations wasted the time and resources of the school, the CAS and most significantly of Colleen Leduc. She's only lucky that the "psychic" didn't blame her for the non-existent abuse. I hope that Ms. Leduc sues the crap out of the "psychic," and every school official who was involved in perpetrating this farce.

The Sleazy Side of The E-niverse

  Interviews and artwork in the new book Colorful Illustrations 93°C were ripped off wholesale from Darren Di Lieto's Little Chimp Society. Dozens of original illustrations and interviews with the artists who created them have been copied and repackaged as a $100 book.

  It's the modern nightmare of electronic distribution. On the one hand, it's an inexpensive way to get your work in front of a worldwide audience. On the other hand, a fake publisher in Hong Kong can copy it all and publish it under a fake ISBN with very little fear of legal retribution.

  If you or someone you know/love/share fluids with is a big fan of overpriced art books, please make sure they know that purchasing this particular tome is a kick to the soft bits of all hard working artists who share their work online.

AmURLsing

Nominee for Best Unintentionally Funny Law Firm URL:

Marks, O’Neill, O’Brien & Courtney, P.C. - mooclaw.com

I Have Seen The Future

It isn't pretty.

Question #122: Lobby Hobby

Dear Little Bald Bastard,
  How do you spend your time when you aren't being a tool on the Internets?
- Devil in the Details

Dear Devil in the Details,
  Although my voluminous post count belies it, I actually do have interests that don't involve telling strangers how stupid I think they are on the Internet. I like to read, I play a video game or two, and I have a lucrative business waxing badgers for private collectors.*

  The biggest chunk of my non-bastardly day is taken up by my studies. I'm in my second year of law school, which means I spend approximately eleventy million hours a week poring over casebooks.

  As part of my laws school experience, I lucked into an internship with Pennsylvanians For Modern Courts. PMC is a policy group working to reform the judiciary in Pennsylvania, and to educate citizens about how to access and navigate the courts.

  Coincidentally, we just launched a new blog, called JudgesOnMerit.org, which is all about our campaign to replace partisan election of appellate judges with a Merit Selection plan. I'll spare you my pro-Merit screed. I'll just say that I hadn't ever thought about judicial elections before November of 2007. Now I love Merit Selection like a pirate loves booty.

  If you like politics, if you're concerned about judicial fairness, or if you just want to help a bastard out, go take a look at JudgesOnMerit.org. See if you can recognize my writing when I'm not allowed to use profanity.

*You don't want to know how hard it is to get insurance.

Bob The Dinosaur Is My New Role Model

Dilbert

Spam ≠ Free Speech

  The Virginia Supreme Court upheld the conviction of a notorious spammer under Virginia's anti-spam law. A divided court said that spam isn't protected speech under the First Amendment. Associated Press.

  Personally, I wouldn't bet on this being the definitive word. The Supreme Court may not weigh in on this particular case, but it will likely have to rule on the issue some time in the near future. I lean toward the argument that spam is often fraudulent and causes economic harm, and spammers should be boiled in penis-enhancement cream. The debate is an interesting one, though.

No Cure For Teeny Weenies

  Here's why it pays to be skeptical, guys. It turns out that the makers of the "male enhancement" pill Enzyte weren't inflating anything but their claims. The government is prosecuting company officials for conspiring to defraud its customers out of 100 million desperate, small-wanged dollars. From Cincinnati.com:

James Teegarden Jr., the former vice president of operations at Berkeley Premium Nutraceuticals, explained Tuesday in U.S. District Court how he and others at the company made up much of the content that appeared in Enzyte ads.

He said employees of the Forest Park company created fictitious doctors to endorse the pills, fabricated a customer satisfaction survey and made up numbers to back up claims about Enzyte’s effectiveness.

  There are a few things about this situation that really stick out.

1) PAY ATTENTION. Slick marketing and customer satisfaction surveys are fine, but if a company can't or won't explain to you how its product works, DON'T GIVE THEM MONEY.

2) This is especially true when the company makes "health" claims that are so sensitive. The harder you want something to be true, the easier it is to let yourself believe dubious claims. If a pill claims to fix a heretofore unfixable problem, it's time to be even more diligent.

3) The only thing classier than conspiring to sell millions of dollars of dubious dick drugs is cutting your mom in on the action. From the article:

Several other company employees, including [the founder's] mother, Harriet, also are charged with participating in the conspiracy.

  I also find it insane that, as of February 1st, 2008, the company's website it still up and running, making the same claims and apparently still taking orders. Why hasn't the District Court issued an temporary injunction to stop the company from making these (allegedly) fraudulent claims?

  Nobody needs an herbal penis pump so badly that they can't wait a few months. If the Court rules in favor of the company, then let them go back to peddling their pills. In the meantime, why risk letting the company defraud more innocent men? They're already upset about the size of their junk. The court shouldn't allow their wallets to be deflated as well.

  On the plus side, I finally have a reason to use the "dick" tag non-euphemistically.

Law Geekiness: The Rational Basis Standard of Review

  When applying the Rational Basis standard of review, the Court seems to be giving the government ever-wider freedom to act as it sees fit, without any meaningful check from the judiciary. In 1949, Justice Jackson's concurrence in Railway Express v. New York lauds the "salutary doctrine that cities, states and the Federal Government must exercise their powers so as not to discriminate between their inhabitants except upon some reasonable differentiation fairly related to the object of regulation."

  In 1973, the Court said that a suspect classification would be "examined to determine whether it rationally furthers some legitimate, articulated state purpose." San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 17 (1973).

  By 1980, United States Railroad Retirement Bd. v. Fritz saw Justice Rehnquist proclaiming that "where, as here, there are plausible reasons for Congress' actions, our inquiry is at an end." The Court no longer required that the actual reason for a law be rational. Rather, any sufficiently convincing post hoc justification that could be conceived of would suffice.

  In 1993, the Court in FCC v. Beach gave up all pretense of oversight, and instead placed the burden on litigants challenging a discriminatory law "to negate every conceivable basis which might support it." One pictures competing attorneys filling up notebooks with possible justifications and counterarguments. If the government attorney manages to think of just one more than the challenger, it's a check in the win column.

  The Court has done a neat job of ruling itself into a corner. When the Court found that the challenged Amendment in Romer v. Evans was discriminatory and motivated purely by hatred for homosexuals, the Court had to bludgeon the Rational Basis standard into a nearly unrecognizable state to enable it to strike the Amendment down. Critics who say that the Court was actually engaging in a stricter review are right. Unfortunately, the Court had very little choice. The Rational Basis standard has so little practical power to invalidate a law that the Court had to choose between dressing Intermediate Scrutiny in a hand-me-down Rational Basis t-shirt, or declaring sexual orientation a quasi-suspect classification and granting it the automatic protection of that stricter standard.

  Comparisons to the sexist reasoning in Muller v. Oregon immediately spring to mind. Again, the Court granted a much-needed protection, while (albeit a tad more subtly) endorsing intolerance toward the class it was protecting by upholding a particular discriminatory perception, namely that sexual orientation is a voluntary, rather than immutable, characteristic.

  All of that was the long way around to the following question; can the Rational Basis standard of review possibly get any more deferential? Is the chance to argue about the justification for the challenged legislation a certain thing, or will we see a day where the Court will simply deny certiorari if the government's list of justifications is longer than the challenger's list of arguments against them?

Law-ku: Interrogation After Invocation

Please scrupulously
honor the invocation
of Miranda rights.

Right to be silent
is invoked for each offense.
Ask about past crimes.

Right to have counsel
is custody specific.
No further questions.

EDIT: Okay, so this isn't entirely correct. Under some circumstances, police can resume questioning about a crime even after the suspect invokes her right to remain silent, so the right isn't purely crime-specific. The preceding stupid poem makes no representation of accuracy.

If You've Ever Wondered What Law School Is Like

LAW SCHOOL MUSICAL

Question #108:

Dear Little Bald Bastard,
  What do you do for fun?
- I Need A New Hobby

Dear I Need A New Hobby,
  Your question presupposes that I have any significant leisure time. I'm a second year law student, so this "fun" you speak of doesn't sound familiar

  Okay, so I'm being a little facetious. I do occasionally have an unscheduled minute in which to contemplate my bastardly existence. I try to fill these fleeting moments of nagging purposelessness by reading, drawing and drifting bodiless through the fetid, stagnant intellectual morass of the Interwebs.

  Come to think of it, I'm not at all interesting. Not even a bit. You'd better try some other blog for tips on hobbies. The only really cool thing I do is talk to my wife, who took theoretical physics as an elective because "it sounded fun." Unfortunately, one jackass nodding along like he's smart enough to keep up with her is more than enough, so you're going to have to find your own brilliant woman to talk to. Good luck.

One Thing Athiests Never Do:
Pray for the deaths of people who disagree with them.

  When Wiley Drake, pastor of a Baptist church in Buena Park, California, used church letterhead and a church-affiliated radio show to endorse former Arkansas Governor Mike Huckabee's candidacy for president, it raised some red flags. Under federal tax law, non-profit organizations (religious or not) aren't allowed to endorse candidates. Those that do so risk losing their non-profit status, and the attending tax benefits.

  There's a minor piece of oft-ignored legal jargon called the Establishment Clause of the First Amendment to the Constitution of the United States. It's supposed to keep religious zealots from interfering in government, and vice versa. Despite the creeping theocratic bent of the current administration, maintaining federal tax benefits for a religious organization that endorses candidates is still a no-no. So, a group called Americans United for Separation of Church and State asked the IRS to investigate the church's non-profit status.

  Instead of defending his actions, Drake called on his flock to join him in praying to their god for the deaths of two of Americans United's leaders. While I'm pretty confident that there's no grumpy bearded man in the sky, grinding fresh points onto a pair of lightning bolts and aiming for Americans United's headquarters, it does raise some interesting questions.

  Drake is asking for help to petition the omnipotent creator of the Universe to kill two human beings. How is that substantively different from trying to hire a hitman? The question of there actually being an omnipotent creator of the Universe is immaterial; Drake believes a god exists, and he's asked that god to pop a cap in his enemies.

  It's the belief that is the key here. If I believe that I've hired a hitman to kill someone, I've committed a crime. It doesn't matter if my "hitman" is an undercover FBI agent, and my intended target was never in any real danger. I've engaged in a conspiracy to commit murder. In many jurisdictions, the penalty for this crime is on par with what I'd face if I'd actually done some killing.

  I'll say it again, because I think it bears repeating. Drake believes that he and his followers are asking an omnipotent (and not at all imaginary) being to kill his enemies. He has clearly shown the intent to cause the deaths of two people. This has to be a criminal act. If it wasn't all so laughably stupid, I'd say Drake should be prosecuted for his threats.

ReligionNewsBlog
Americans United for Separation of Church and State
LA Times (registration required)

I generally hate quotations.

  If you look hard enough, and are willing to violently bludgeon any notion of context, you can find a quote from a respected authority to support most any proposition, from adult circumcision to zoophilia.

  Having said that, allow me to present a sentiment that I found particularly resonant in light of the recent furor over reproductive rights.

"[A] Constitution... is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar, or novel, and even shocking, ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States."

  - Oliver Wendell Holmes, Jr. (1841-1935)
  Associate Justice of the United States Supreme Court, 1902-1932