Category Archives: legal

01/16/13

It Only Takes One

The President’s gun violence plan seems pretty reasonable. It doesn’t strike me as executive power too far. Without boring you the history, executive orders are constitutional, especially where they are made within the context of some explicit or implicit congressional authorization, see Dames & Moore v. Regan. Here, the President has tweaked the efficacy of certain already existing gun controls, especially as they relate to sharing applicant and background check information. While the plan makes an appeal to Congress concerning a ban on assault rifles, the orders themselves do not purport to accomplish any such thing. The plan provides for some additional gun violence research, and it appeals to more responsible gun ownership. It also appropriately emphasizes the role of mental health in this discussion focused mostly on weapons. But, precisely because this set of executive orders seems largely uncontroversial they are at the same time probably more gesture than change. And, that’s okay.

Of course, the NRA would, in a brand new ad, call the President a hypocrite because his daughters’ private school enjoys the security of armed guards.

I doubt they’ll recant even as his plan provides for:

School resource officers [who] are specially trained police officers that work in schools. When equipped with proper training and supported by evidence-based school discipline policies, they can deter crime with their presence and advance community policing objectives.

It would make too much sense for the two sides of this conversation, equally vested in growing the rate of non-deaths and un-kills, to see common ground where they are standing on it.

People would point to other first-world successes in violence free society. Europe, Canada, that awesome jungle moon in Avatar.

But, America’s just different. We have a deep gun identity.

We conquered with a gun.

We were colonially liberated with a gun.

Our union endured by the gun.

Cowboys.

Annie Oakley.

John Wayne.

Rambo.

Gangsters.

Gang bangers.

Yosemite Sam.

Separating us from our guns is more than an exchange of rationale arguments no matter how rationale they may be. It will take a weening not a divesting.

In today’s blong, I would simply add song to my prior point that the collusion of a gun-free society means we will always be susceptible to the threat of just one. But, I think I would rather live with that risk in mind than a kind of Home Room Saloon.

Performed by ipoetlaureate. Music produced by Dave Santos.

Today’s blong here:

High Noon

09/23/12

Don’t Drop the Soap

There is a lot of hidden tragedy. So to get too dogmatic about one seems a high horse amongst Clydesdales. One in a crowd.

But prison rape to me has long been infuriating. (Not where you thought I was headed?) It’s just totally unacceptable, with any regularity, in a civilized criminal justice system.

It’s like fighting in hockey. Punching your opponent in the face isn’t “part of the game.” It’s called battery.

Rape isn’t “part of jail.” It’s torture.

And notwithstanding some alleged and unofficial policy of the US Government for a better part of the last decade concerning enemy combatants, torture remains illegal.

And yet, in this particular form it continues as an incident of serious prison life that we seem fine to ignore.

Just this week horrific videotape surfaced concerning the unspeakable mistreatment of prisoners in a Georgia detention center. (Georgia as in the East European country, not the United State, although that tape is probably coming soon — for the Georgia Bulldog football team, certainly, if not the State. Got ‘em.) It apparently includes footage of a man being sodomized with a broom. But prison rape and humiliation aren’t unique to faraway and emerging countries or some exception to the rule. It happens miles from your home. You just don’t have to give it much thought.

In some ways, the statistical occurrence of prison rape is probably inflated for its coverage in pop culture. But, it just has never struck me as something to be shrugged at over an incidence rate.

“Eh. My stogy in the bed only burned down the house once.”

And even where most prison assault is inmate on inmate, as we turn collectively from the truth about it or, worse, make it a part of our culture of irreverence in comedy or cinema, we abet.

Prisoners have recourse and access to courts. But, the constitutional burden to recover for injury suffered while you are incarcerated is fairly high. Prison officials typically cannot be liable in simple negligence. The standard applied usually requires some showing of deliberate indifference, in safety or medical attention or some other constitutionally significant interest, before liability will lie against them.

But even more than the fairly stacked deck of substantive law against them, there exist innumerable systemic obstacles to the inmate’s ability to fight for their own protection. No counsel. Uneducated in the law. Illiteracy. Limited access to legal materials. Bad handwriting. That whole toilet in the cell thing. Even their own apparent and, often, actual, untrustworthiness makes their claims hard to adjudicate fairly.

So the chances of them mounting any suit against a prison official, for deliberately ignoring their welfare in this respect, is dubious.

Although not similarly situated, it seems right that we ought to one day view this inhumane incident of prison life with the same horror that we now would the living conditions and arcane practices of orphanages and mental hospitals in the early and middle parts of the last century.

So, if you’ve been waiting for a prison rape blong, you’re welcome.

By the way, Patriots v. Ravens?? Hands down the worst officiated game ever. To the very last and deciding play.

Okay. Here we go. Prison rape time.

Performed by theipoetlaureate. Music produced by Dave Santos.

Today’s song blog here:

How Come

08/9/12

Casinos and Daycares

So I have a friend who has a friend who does sweepstakes as a hobby. I know. Sounds like doing bath salts as a dessert. Or doing your nails as massage. Wait. People actually do that. Anyway, he raked. Like a serious family vacay every year. Hawaii not Dollywood. Sorry, Mom and Dad (they’re D-Wood GOLD VIP.) He had a garage and guest room full of prize. A dozen waffle irons. Four mopeds. A year’s supply of Mop ‘n Glow. Stacked to the ceiling, Ali Baba style. (I’m just guessing about the waffle irons; that would be pretty amazing though.)

So he set aside $30 every month of discretionary household money. Instead of golfing or fishing or a gym membership or coin collecting or LARPing, he would use the $30 to purchase postage for various nationwide and regional promotional giveaways. Apparently there is a publication that provides regular information about sweepstakes and their specifications. Region. Number of prizes. Advertising reach. So if a large number of prizes were being given away in a promotion of limited reach, you had a sense about the probability of winning.

Anyway, a new golf club company was giving away 30 bags of clubs. My friend told me that his friend said that this was pretty much a sweepstakes lead-pipe cinch. Sure enough, all three of us won. 10% of the bags. And, that’s why, to this day, you’ll never catch me driving anything other than a Slotline. “Slotline. Keep your slot right on the line.” ?? I’m not sure they actually have a slogan. And, the fact you’ve never heard of Slotline or that Tiger Woods wouldn’t scratch his backside with a Slotline or that his wife wouldn’t even use a Slotline to bust out a windshield to kill her husband is just a testimony to the good ol’ boy, backward mentality of golf. Unbelievable. Because, I’ve used a Slotline. And, trust me. It will put you into the same woods as your fancy sticks — for half the price.

So as it turns out, my friend’s friend was a pastor. Playing games of chance. The shame. “The Devil’s Ruse.” “Hell’s Gambit.” “The Card Shuffle Souffle.” “Roulette’s Underpants.” “The Snake Oil Milkshake.” “The Ol’ Getcha.” (I made all of those up.)

So in the civilizing process there are, over time, certain behaviors that are necessary to circumscribe. Not because they are inherently all bad themselves, but because they associate other lesser desired conduct and reduce, overall, civility. The “broken windows” criminological theory relies on this idea to explain the correlation between the disrepair of buildings and crime. Broken windows and general urban disorder have a tendency to signal to individuals that crime and anti-social behavior is permissible in that area. Simple building maintenance can transform the entire psychological view of the community.

A similar phenomenon happens in my bedroom. The more empty Diet Mountain Dew cans on my desk the more likely I am to disrobe right in the middle of the room.

In a related sense, cultural signals like tattoos or gambling or body piercing have been taboo, in large part, because they were associated with certain rebellious or immoral conduct or people and not because those aesthetic trappings or activities were so terribly horrible in themselves.

At some point, however, we become sufficiently entrenched in the habits of civility that we can revisit certain taboos without risk of resurrecting the associated and undesireable other conduct — like steer ropin’!

I can’t say it any better than Steve Pinker summarizes in his new book, that I can’t seem to stop quoting, Better Angels of our Nature:

The cliche about Generation X . . . was that they were media-savvy, ironic, postmodern. They could adopt poses, try on styles, and immerse themselves in seedy cultural genres without taking any of them too seriously. . . . the journalist David Brooks observed that many members of the middle class have become “bourgeois bohemians” who affect the look of people at the fringes of society while living a thoroughly conventional lifestyle.

And, this is true, right? It’s just as likely that your friend’s mom will have a tribal butterfly tattoo or nose ring today as the crook or harlot or whomever society might have historically associated with those items. And, that mom has a professional career, PTA membership, and a sustainability compost pile. (Wait is that a smoldering pile upon which we compost all things sustainable??!)

My wife swears that if she ever got one, she would go full tattoo sleeve on both arms. This is the same woman that is uncomfortable with light forehead perspiration at like a CiCi’s Pizza or, I don’t know, a gymnasium.

So when New Jersey thumbs its nose at federal gambling laws and the Professional and Amateur Sports Protection Act (“PASPA”), by passing its own legislation to legalize sports betting in its state, any outcry against the decision rings sort of parochial and schoolmarmish.

The NJ legislation has some legal obstacles. The kind of monopoly or dissimilar treatment to operate in sports gambling given, by PASPA, to Nevada, Delaware, Montana, and Oregon but not other states, has precedent in commerce clause jurisprudence. At the same time some of the policy arguments, rooted in these sort of dying social norms discussed above, for disallowing states to adopt sports betting across the board, are losing their efficacy. Especially in light of the mounting hypocrisy of sports leagues who knowingly benefit in all kinds of direct and indirect ways from it but would now resist, by filing a lawsuit, its expansion to other states, like NJ.

Gambling used to be the thing of gunslingers and gangsters and guys smoking cubans. But, there is legal sports betting in Las Vegas. They talk about game lines on ESPN (they host a “Behind the Bets” podcast for heaven’s sake). Your sister plays fantasy football and participates in a March Madness pool. Sports betting is no longer a marginalized activity of organized criminals (although, ironically, its very criminality allows such people to still flourish at it).

At this point, it’s simply another form of acceptable entertainment and leisure. We waste dollars on unserious, ephemeral things all the time. A movie. A sporting event. A vacation to Disney World. Computer technology. And, trust me, we can become addicted to it all. Gambling isn’t some vice unto its own in that regard (that’s not to say that games of chance cannot sometimes prey disproportionately on the poor but so can all variety of bad money management invited by such socio-economic circumstances).

The day is coming. Sports gambling will be legalized. Heavily regulated. Appropriately scrutinized. But, legal.

High rolling pastors and tattoo sleeved wives everywhere essentially guarantee it.

P.S. RG3, Bolt, & Howard???!!

Performed by ipoetlaureate. Music produced by Sundance.

Today’s song blog here:

Sharps and Squares

07/5/12

Not Guilty

A year ago today, Casey Anthony was so found. There was a good bit of outrage, as you might remember.

I don’t have much more to say beyond what I already have. This, of course, is not about the “correctness” or accuracy of the verdict but rather the condition of our own hearts, as we consider and even participate, as jurors, citizens, and public observers, in the administration of justice.

The blong from that entry, included again below, is a personal favorite and the song I performed at TEDx in March.

Performed by the ipoet. Music produced by dj clutch.

Today’s song blog here:

Nancy Ain't Grace

06/28/12

Battle of Wits

I mostly hate the cultish “Princess Bride.” I hate it precisely for other peoples’s exaggerated praise for it. Typically juvenile of me. “Oh, it’s dialectic is so rich.” “Andre the Giant is superb!” Whatevs. Rocky IV, by contrast, slays every time. “Whatever he hits . . . he des- thtrrroys!” (That’s thick phonetical Russian, right there.)

But, in reading the United States Supreme Court’s decision in National Federation of Independent Business v. Sebelius, I was reminded today of one of the movie’s most famous and hysterical scenes:

Two things.

First, I have no political or personal objection to the Patient Protection and Affordable Care Act.

Second, I think the individual mandate is probably constitutional as an exercise of the Commerce Clause power, according to how existing precedent would inform the scope of that power. That being said, I think existing precedent probably takes too expansive a view of the text. Unfortunately, that ship sunk decades ago.

So, as I make the following comments, I don’t mean to say that I disagree with the result of the Opinion, but only that I fell for two of the most classic blunders: (1) matching wits with a Sicilian when death is on the line and (2) provoking an Asian land-war.

Today’s case involved a challenge to the Affordable Health Care Act. There were two main objections to it. I would comment on the Supreme Court’s treatment of only one. The principal challenge to the Act concerned the constitutionality of an “individual mandate.” The individual mandate portion of the Act says that all individuals must carry health insurance or pay an annual penalty. In other words, “Aflac!”

But, before the Supreme Court could decide whether that mandate was constitutional, it had to determine if it could even hear the case.

The Anti-Injunction Act prohibits a court from considering a challenge to a tax before that tax has actually been collected. In other words, you have to have already paid the tax before bringing a lawsuit. You can’t preemptively challenge or “enjoin” a tax you don’t like.

If the “penalty” under the Healthcare Act, for violation of the mandate, is, in fact, a “tax,” then the US Supreme Court could not entertain the case. If it was not a tax, then the Court could.

Guess what the plurality opinion concluded?

The penalty is not a tax.

Having so concluded, the Court was free to consider whether the individual mandate was, in fact, otherwise a constitutional exercise of Congressional power.

There were two possible bases for finding the mandate constitutional.

1. Congress properly included the mandate as an exercise of its Commerce Clause power;

or

2. Congress properly included the mandate as an exercise of its Taxing power.

(I could explain these constitutional clauses to you but I could also Ped-Egg your back with a cheese grater. Suffice it to say, Congress has to be specifically authorized by a provision of the Constitution before it can do stuff. These are the two most commonly employed authorizations of power.)

There are 9 Justices on the Supreme Court. You need 5 to agree on the outcome of any issue. None have to agree as to the reasoning.

4 concluded that the mandate was unconstitutional under either power.
4 concluded that the mandate was constitutional pursuant to the Commerce Clause power.
1 concluded that the mandate was constitutional pursuant to the Taxing power.

[Punches TI-81. Graph mode.]

That makes 5 Justices concluding that the mandate was constitutional under some power. In other words, it stays.

Wait just a second. How can a mandate penalty that’s not a tax be constitutional pursuant to the Taxing power? Nice try, Chief Justice Johnny R. Obviously, “A clever man would put the poison in his own goblet because he would know that only a great fool would reach for what he’s been given.”

I’m of course not a great fool, so clearly you did not say that, for purposes of the Anti-Injunction Act, the mandate is not a tax but, for purposes of the constitutional analysis, it is? [Nervous laughing.]

And, you must have known me not to be a great fool — you would have counted on it — so clearly I cannot choose the wine in front of me or the not-tax in front of you or the tax not in front of either of us!? [Anxiously perspiring.] Wait, what are we talking about it??

To quote the Opinion of the Court, “Hey, look over there!”

Chief Justice Roberts then concluded by saying, “I switched glasses while your back was turned!! Hahahahahahahaha!”

Let me summarize:

To allow itself the opportunity to rule on the constitutionality of the mandate, the Court concluded that the penalty was not a tax. Then, to uphold the constitutionality of the mandate, the deciding jurist, Chief Justice Roberts, then concluded that it was — a tax.

Truly, a dizzying intellect.

Performed by ipoetlaureate. Music produced by DJ Transform.

Today’s song blog here:

Shell Game

06/25/12

The Supremes

A number of important decisions in the United States Supreme Court today.

Live blogging over at scotusblog.com.

I’ll be back with my thoughts. But, it looks like no Health Care decision today.

06/20/12

Fast and Furious

We live in a world of necessary evil. We would have no policy in national security but for it. In almost every such act, we trade life for lives and choose less worse over worst of all. So it’s no surprise that an ATF operation like “Fast and Furious,” intended to trace gun trafficking by Mexican cartels winds up unable to account for 1000 handguns and that some of those unaccounted for weapons kills, in the hands of an unintended owner, one of our own, a US Border and Patrol agent, Brian Terry.

I’m fine with the accountability Congress is currently demanding of DOJ and Attorney General Eric Holder. But, lets not act like this wasn’t a reasonably anticipated consequence. What do you think perennially happens in the Mid East? We routinely get shot by our own weapons. Anytime you’re running in guns, whether for good or bad, some are going to walk.

In local news, one of our own, House Rep. Trey Gowdy is getting some of his first real national exposure arguing over the applicability of the executive privilege now asserted by Attorney General Holder. Gowdy was an attorney here in SC before the House. The applicability of the executive privilege, unfortunately, is precisely the sort of thing I can’t comment on for the nature of my work.

But, drug cartels?? All day e’r day, playa.

Performed by ipoet. Music produced by Jordan Santana.

Today’s song blog here:

Gunwalk

03/26/12

The Stream

Sorry that things have been a little slow. Preparations for TEDxGreenville, in addition to the normal ramping of spring activities, have left me pretty thin. I’m hoping a couple more posts before this Friday’s presentation.

Until then, an oldie from the archives, below, in light of the Supreme Court’s consideration of the health care bill and mandate. Please, please do not read CNN or MSNBC or Fox for your information on it. There are too many expert and original source sites. I recommend this one.

Following CNN for legal analysis is like buying your milk at Bo-Nats. I mean, they’ve got it, but you’re probably getting dysentery.

Performed by ipoetlaureate.  Music produced by Juicebox Jackson.

The Way We Should Die

01/20/12

Frankensteinin’

SOPA winds up being pretty close-to-home-hitting. If you haven’t heard, there is a bill before Congress to give additional law enforcement powers in order to police intellectual property piracy on the internet. Think going to jail for your beach trip YouTube slide show set to Billy Joel’s “These Are the Times to Remember.” On Wednesday, various online sites protested the bill by going black for the day.

But, long before mp3 players and Napster and digital music were ever a twinkle in the panicking public’s eye, hip hop had been wrestling with the ethical and legal issues of digital and intellectual property rights for decades. A culture built on the sonic lifting of data bits, called sampling, understood the beauty and the bravado of attempting to take the work of another and make it your own. Whether the same disco break juggled between two turntable record players or the electronic database of drum hits on a Dr. Sample or the rubbery touch pads of an MPC60, growing up, hip-hop was always taught to share.

So when the rest of the world finally got around to sampling in rock ‘n roll and country western and sharing music files and video over the worldwide web and between their personal electronic devices, without permission, rappers had long been building a kind of collective and borrowed digital art museum for generations, about which no one had ever previously given a flying flip.

Of course, with the proliferation of ways to boost and jack and replicate others’ hard work, record companies and television stations and movie houses and book publishers and the like got sort of cranky about it all. That crankiness has apparently resulted in a pretty serious piece of proposed legislation that threatens the way we’ve grown accustomed to enjoying the internet.

The internet works mostly because it is a free-for-all. It’s like information capitalism. Wikipedia is a shining example. How could an online encyclopedia, which J.D. Wackadoo from your son’s little league team might have contributed to, be more accurate than World Book? Well World Book may have had, let’s be generous, an editorial team of 50 people. Wikipedia has a team of millions. And, for every proffered opinion of Johnny Screwup, Wikipedia enjoys 10 pair of expert eyes trained on that same entry. Or, maybe it’s the other way around. Either way, thousands and thousands of really smart people are the payoff for also allowing us doofuses to participate too.

Anyway, it is the culture of collaboration and shared information which makes the internet maybe the most powerful tool ever created (that actually feels an understatement). Where the potter in Nepal and the potter in Appalachia can Skype Raku jokes.

The issue also implicates a philosophical divide. How one sees him or herself. Are you the cumulative, frankensteined product of your family and friends and influences or are you some a priori, self-made island? Do you deflect or claim credit for your success, in whatever measure enjoyed? When we become convinced that we have “made” this or “invented” that or “composed” these, we are confessing an obliviousness to the shoulders of work upon which we actually stand.

Stealing is wrong. In most cases, illegal.

But, when we share ourselves over the internet or otherwise in life, we are celebrating, in the best way, our derivative and common selves. It’s certainly a choice to call such conduct “piracy” and ourselves “thieves” and “robbers.” I suspect, though, doing so will feel something like pirates walking their our own gangplank.

Flip the javascript on ‘em, Bonita Applet Bottom . . .

Performed by the ipoetlaureate. Music produced by djclutch.

(Little piece of trivia — the beat for today is a remix, by djclutch, of a song I did called Ad Infinitum off my debut solo record Simple Moves (available on itunes). It’s part of a group of remixes djclutch imagined entitled Similar Moves. Appropriate to today’s entry, therefore, I suppose it is a kind of sample of a sample of a sample. Like stealing the same thing three times . . . from yourself. I wouldn’t last a day in jail. I look great in orange. I mean great.)

Today’s song blog here:

Walk the Plank

11/2/11

At Least They Have Great Meatballs

Has anyone else noticed how heavily this site traffics in/relies upon infantile ethnic and cultural stereotyping? Wait until tomorrow. It gets worse.

So, news has come in that Julian Assange, the principle editor of WikiLeaks, has lost his court battle against extradition back to Sweden to face the sexual assault charges pending against him there. I’ve stayed sort of neutral on the propriety of the WikiLeaks service. I see the arguments for and against. Assange is definitely either a creepy or highly contemplative guy, maybe both. Although in the hair I favor one, I’m not an English barrister. But based on the information available, the extradition decision is not any sort of comment on the merits of the pending allegations against him.

I am Order of the Coif, however. (Another brag brag, not to be confused with the more artful humble brag.)

My WikiLeaks blong was one of the first on this site. So, it holds a good deal of sentiment for me in that respect. Plus, it’s over a super fresh Manny beat. The brevity of the copy portion of the post will give you some insight into the evolution of this site in a year’s time. Plus, only like 4 people were following me at that time (2 of whom were being compensated — in personalized rap news songs, of course), so you probably missed it.

Performed by ipoet.  Music produced by DJ M@nwell?

Today’s song blog here:

Top Secret