April 30, 2006

The King and I

I read the first page of this Boston Globe story (Hat tip: H. App. B.) about the White House not enforcing or following laws enacted by Congress by asserting that they conflict with its interpretation of the Constitution, and was not that surprised. And I've come to the conclusion that there will never be any sort of a legal solution to this. Here is why.

Although the SCOTUS has hinted that it is the sole interpreter of the Constitution it is unlikely to hold so. Given that it's finals week, I'm glossing over a lot of my reasoning, but I think if any challenge is mounted to the President's conduct it is likely to be found a political question and deferred to the elected branches. The elected branches are at the hands of a single party and so they are not too eager to steal power from each other. Well, let me rephrase that, Congress is not eager to stand in the way of the President as he expands his power from previous administrations. Effectively, by voting for a particular party, we as the electorate have also voted on an alteration of our system of government. Naturally given someone's political leanings he/she is likely to have the knee-jerk reaction that this is either legitimate/good, or the most egregious violation of human norms since Napoleon crowned himself emperor.

My solution is very, very simple and I think those of all political persuasions would see it to their advantage to adopt it. Inform the public. Let's talk about historical practice. Let's talk about the implications of a President who claims he has inherent powers to act without statutory authorization under the Constitution while at the same time he also claims he has the powers to ignore statutes. Let's talk about the consistency of having 19th century federalism combined with a 21st century presidency. Or has the die been cast? Are we the Roman Republic circa 44 BCE?

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April 29, 2006

I Read Maps About Texas

[Extended reference.]

Not read them often, as they're dull and have info I need not know. But if you follow them back to the homeland this one time, Marty Lederman's concern may not grow. I think Prof. Lederman may have muddled two different faith-based programs together in his post, "A Blatantly Unconstitutional Federal Religion-in-Prisons Program." According to the DOJ site he linked, Life Connections Pilot Program Sites are Federal Correctional Institution, Milan, Michigan; U.S. Penitentiary, Leavenworth, Kansas; Federal Medical Center, Carswell, Texas; Federal Correctional Institution, Petersburg, Virginia; Federal Correctional Institution, Victorville, California. These are probably the same five sites from the Clinton Administration:

In September 2000, the Executive Staff of the Federal Bureau of Prisons approved a concept which would initiate a pilot program of multi-faith Residential Faith-based Pre-release Program. This voluntary program, Life Connections, will initially be located in five institutions in various regions of the country. The program will be available to men and women inmates.
Carswell, TX is some distance from the sites mentioned in Prof. Lederman's other link: "Federal Correctional Institution (FCI) Seagoville, Low Security; Federal Correctional Complex Beaumont, Low Security; United States Penitentiary Hazelton, Secure Female Unit; FCI Fort Dix, Low Security; FCI Edgefield, Medium Security; and FCI Tucson, Medium Security."

I'm not objecting to Prof. Lederman's claims of unconstitutionality, only to his confusing what appear to be two different faith-based proposals: one that originated during the Clinton administration and is more multi-faith oriented, and another that appears to be of Bushian provenance and calling for single-faith programs.

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April 27, 2006

Immigration Again

I've very late in response to Hei Lun's assessment of my post on immigration, but in my defense, I thought one of the ideas I had for enforcement was too crazy. He said, "PG suggests tough enforcement against employers who are found to have employees in the workplace without a valid Social Security number, but there are plenty of jobs illegals do now that don't have a traditional 'workplace' that the feds can check. Is the government going to do spot checks in suburban neighborhoods on dark-skinned people mowing lawns, in rich neighborhoods on the maids, on sweatshops that the feds don't even know exists?" I agree that individuals, who employ undocumented workers for household services that leave behind no trace except the mowed lawn and washed clothes, will be difficult to track down, but I doubt that this is the largest source of employment for illegal immigrants. And as it turns out, people who are working legally are happy to rat out their illegitimate co-workers -- or at least try to extract treble damages after the fact:

Former workers at Mohawk Industries, a Georgia-based carpet company, brought a class-action suit against the corporation under RICO, the Racketeer Influenced and Corrupt Organizations Act. RICO is the 1970 statute whose principal object was fighting organized crime. But Mohawk, like Tyson Foods and Wal-Mart, has not been accused of operating speak-easies or shaking down the local dry cleaner. The criminal "enterprise" that it's accused of conducting is contracting with outside recruiting companies to hire illegal immigrants and then cook their work papers. The former employees claim that this both violated immigration laws and artificially depressed their wages.
Here I'd thought the Minutemen were anomalies, that Normal People just didn't care that much about folks who were doing them no obvious harm. I underestimated the average American; apparently people can discern that undocumented labor is hurting them, and are ready to take action even at the cost of alienating their employer.

Seriously, I think that the federal government should encourage Americans to report on employers of illegal immigrants. Turn in your sister-in-law who bragged that she's getting cheap childcare. Have neighborhood associations mandate that all lawn care workers must be registered with the association in order to mow lawns there. This is a pervasive problem that touches every aspect of our economy, and as long as Americans find that the benefits of undocumented labor outweigh the never-realized cost of getting into trouble, people will continue to immigrate here in order to work.

I suppose some people come here to live on the government dime, as the most strident conservatives claim, but presumably the government ought to be able to detect those people itself. They must not be the lawn care types, as it's extremely difficult for healthy young men of any citizenship status to live on the government dime unless they're doing it behind bars. Able-bodied adults ages 18 to 49 without dependents can receive food stamps for three months of every three year span. Government programs provide for the elderly, disabled, minors and the caretakers of minors, but perhaps these opponents of illegal immigration know of drastic expansions of Medicare, Medicaid, CHIP and TANF that I do not. Even legal immigrants have more severe restrictions on their eligibility than citizens do; illegal immigrants are not supposed to receive any aid except in emergency. The only major exception is public schooling, which I regard as a benefit to the polity as much as to the individual. I'm happy to pay taxes to send kids through Head Start so fifty years from now, they can work in my nursing home instead of stealing my car.

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Today / 04.28.06

Happy 80th birthday to Harper Lee, author of To Kill a Mockingbird.

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April 26, 2006

Jury Nullification a Fiction?

The 9th Cir issued an opinion today reversing U.S. District Judge Charles Breyer (the underachieving brother of Justice Breyer) on an issue of jury misconduct in a medical marijuana case arising out of the Oakland Cannabis Buyers' Club (close to home). (Hattip: HoBash) The misconduct is summarized as follows:

Juror A�s declaration supporting Rosenthal�s motion for a new trial states that she felt �frustrated and confused� that there had not been evidence that Rosenthal was involved in growing medical marijuana, given the judge�s question concerning medical marijuana during voir dire. She was �troubled� that although she knew the case was about medical marijuana, the judge instructed the jurors to decide the case according to �federal law� and only on the �evidence that had been presented in court.� Despite that instruction, she expressed �confusion about whether we really had to only consider the federal law.�

Juror A believed that the district court�s instruction not to discuss the case with anyone would not rule out a conversation �about a point of law�; accordingly, she phoned up an attorney-friend to ask �if [she] had to follow the Judge�s instructions, or if [she] had any leeway at all for independent thought.� The attorney-friend responded that Juror A �definitely did have to following [sic] the Judge�s instructions, and that there was absolutely nothing else [she] could do.� When Juror A pressed the attorney, asking how there could ever be hung juries, she was told �that could only happen if the Judge gives the jury some leeway in his instructions.� The attorney �then said [Juror A] could get into trouble if [she] tried to do something outside those instructions.� Juror A discussed the matter with another juror, who shared her own confusion with Juror A �whether a jury really has to reach a verdict solely based on the law.� After the conversation with the attorney-friend, Juror A informed this second juror that they had to follow the judge�s instructions.

The Court also added this footnote: "Although we understand the district court�s concern that it not legitimate or contribute to any effort by a juror to engage in nullification, we do not think the court was ever in a position to do so since the evidentiary hearing involved juror misconduct, which is the focus of concern here."

Here is my general question: Why do we even bother with juries if all we expect them to do is to rotely apply the law? There's all the stuff I'm supposed to have learned in evidence such as witness credibility, but then if we use them to make those sorts of judgments why not allow them to judge the merits of a prosecution? Hell the judge in this case departed downward and sentenced the Defendant to a day in prison for each count. Obviously there is something misguided in this prosecution and those 12 people in that jury room should be free to vote their conscience. Otherwise I have an algorithm that any court can use in rendering verdicts (with beyond a reasonable doubt set at 85% certainty).

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April 25, 2006

(Ir)relevant Distinctions

They seem to be the order of the day.

First, the leak by Central Intelligence Agency analyst Mary McCarthy that led to her being fired. If it doesn't run afoul of whistleblower protection statutes, McCarthy's dismissal seems pretty straightforward: she violated CIA policy on media contact by talking to a Washington Post reporter about secret CIA prisons, and she lost her job for breaking the rules. Hers is the sort of public-spirited gesture that whistleblower statutes tend to protect, but the ones I've read imply that talking to the media is a last resort after the entire chain of command has ignored one's complaint, and McCarthy's ability to claim whistleblower status probably would be further complicated by invocation of state secrets privilege. If she didn't comply with the whistleblower standards, then she deserved to be fired, even though history may class it with the jailings of MLK and Gandhi (neither of whom whined when imprisoned for disobeying the law).

What I find odd, however, are the calls to have McCarthy prosecuted for the leak, the justification being that if there's prosecution for the leaker(s) of Valerie Plame's identity, then there should be prosecution for any other leak of CIA secrets. Those making the comparison refuse to recognize any difference between a leak that could have endangered an individual, and a leak with more diffuse and mixed effects. I don't know of any benefit to the public that Robert Novak's column created, but it theoretically created a risk for Ms. Plame. The revelation about the secret prisons is one that will affect the entire nation for better and worse: better if this is something Americans don't want and needed to know about so they could end the practice; worse if it allows Al Qaeda et al. to interfere with a necessary and democratically desired tool. In contrast, Christopher Hitchens declares,

One can argue that national security is damaged by unauthorized leaks, or one can argue that democracy is enhanced by them. But one cannot argue, in the case of a man who says that his CIA wife did not send him to Niger, that the proof that his wife did send him to Niger must remain a state secret. If one concerned official can brief the press off the record, then so can another.

Second, the opinions in Day v. McDonough (via CS), in which case the plaintiff appealed a dismissal of his habeas petition. Ginsburg's opinion for the majority wants to distinguish between "a State�s deliberate waiver of a limitations defense" that the Court would consider "an abuse of discretion to override," and "an evident miscalculation of the elapsed time under a statute designed to impose a tight time constraint on federal habeas petitioners," which the Court held the federal court to have discretion to correct.

Scalia's dissent, on the other hand, criticizes Ginsburg for not wanting "to distinguish in this regard AEDPA�s time bar from other threshold constraints on federal habeas petitioners,� which distinction he deems relevant because the Antiterrorism and Effective Death Penalty Act of 1996 is "a recent creature of statute" rather than bearing the patina of age and tradition of defenses "created by the habeas courts themselves, in the exercise of their traditional equitable discretion."

Even the opening zinger of Scalia's dissent points to a difference of opinion on what constitutes a difference. "The Court today disregards the Federal Rules of Civil Procedure (Civil Rules) in habeas corpus cases, chiefly because it believes that this departure will make no difference. See ante, at 9. Even if that were true, which it is not, I could not join this novel presumption against applying the Civil Rules." To the majority, the relevant difference would be one in the consequences of this particular case: had the Chief Magistrate pointed out the error to the state's attorney and allowed him to amend the answer, rather than being the hand squashing the petitioner's complaint, the state presumably would have chosen to use the defense to defeat the complaint, and Day would have been in the same position (i.e. still in a Florida prison). Scalia doesn't claim that the state would have waived the defense in this particular controversy, but worries that it would in other cases. "Granberry and the like raise the possibility that the courts can impose a procedural defense over the State�s affirmative decision to waive that defense. The Court takes care to point out that this is not such a case, but it invites such cases in future."

Dan Filler at Concurring Opinions says, "Scalia makes a good case that precedent and Congressional action both cut against this snubbing of the Federal Rules," but I don't see what Congressional action there was to favor Scalia's decision, aside from the FRCP themselves. Scalia is toeing his textualist line here to the likely exclusion of original legislative intent; I doubt that Congress, particularly at the time it enacted AEDPA, would have wanted attorneys' poor math skillz* to allow otherwise expired deadlines to be extended.

BTQ's Milbarge summarizes it well: "This case is more about the old rules v. standards argument, and about deference to legislatures v. judicial policymaking," although I'd again specify that it's deference to legislatures' text rather than intent. (And of course, Milbarge is also correct that Scalia has voted several times before now to assist defendants, though I find Day a little unusual because he's a defendant who's claiming a post-conviction right. Scalia usually is a defendant's best friend until conviction and then thinks the Constitution permits notching the convict's ears.)

* I'm not sure whether it really was a question of being able to count, or if the attorney was confused as to whether to count 90 days or not. As a commenter on Sentencing Law and Policy says,

It is not unusual for appellate judges to write separate opinions concurring in the result. This is where they agree with the majority or plurality on the "bottom line" of affirm or reverse but disagree with the reasoning. In this case, though, Justice Stevens dissented in the result. He agreed with the majority's resolution of the question presented and decided, but he would have held the case until the Court decides (next term) a question that "lurk[s] in the record" and is pending in another case but was not presented in the certiorari petition. In nearly 20 years of doing Supreme Court work, I do not recall ever seeing an opinion "dissenting from the judgment."
The pending case (via SCOTUSblog) is supposed to resolve a circuit split over whether to include the 90 days a petitioner can seek SCOTUS cert, in the time stopped on AEDPA's one year clock for habeas petitions while a properly filed application for state postconviction relief is pending. The 11th Circuit, which includes Florida and thus both Day's and Lawrence's cases, does not include the 90 days. Ginsburg footnotes,
Day urges this Court to find his petition timely. He asserts that the Eleventh Circuit misinterpreted �2244(d)(2) in holding that AEDPA�s time limitation was not tolled during the 90-day period he could have petitioned this Court to review the denial of his motion for state postconviction relief. This question was not �set out in the petition [for certiorari], or fairly included therein,� and we therefore do not consider it here. This Court�s Rule 14.1(a). We note, however, that the Court recently granted certiorari in Lawrence v. Florida, which presents the question whether AEDPA�s time limitation is tolled during the pendency of a petition for certiorari from a judgment denying state postconviction relief. The instant opinion, we emphasize, addresses only the authority of the District Court to raise AEDPA�s time bar, not the correctness of its decision that the limitation period had run.

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April 24, 2006

ExamSoft No Mo'

Last year, I sang the praises of ExamSoft. Now the law school is doing away with ExamSoft and instead allowing students to simply use a Word file. Perfect! Except we can't use electronic versions of our notes or outlines unless permitted to do so. My question is why aren't we permitted to do so? Is there a point beyond which the honor code cannot be stretched?

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Ah, Grownups

Reading this assures me that I'm dignified enough to be a professor, and probably too dignified to be president of a conservative think tank.

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Reasons to Kick Out Your Dean in Texas

Failure to be sufficiently alarmed by a drop in law school's rank according to US News & World Report -- I say no, the University of Houston says yes.

Closing off part of the library during exam study time so his son can have a prom dinner there -- I say yes, Baylor seems to say no.

At least the Southern Money -- er, Methodist -- University law dean should be safe with the school's jumping well ahead of Baylor to 43rd. "Apparently the media drubbing that Southern Methodist University Dedman School of Law took during the abortive nomination of White House Counsel and SMU law school alum Harriet Miers to the U.S. Supreme Court didn't tarnish the school's standing in the U.S. News and World Report 2007 law school rankings."

With former Dean William C. Powers, Jr. movin' on up to the president's house, the University of Texas seeks a new dean. Warning to the finalists: UT recently dropped a spot in the USNWR list. The only one of whose scholarship I know is UT professor Larry Sager, but pulling a dean from your school's own faculty can work out.

In other UT news, the Texas Journal of Oil, Gas, and Energy Law recently celebrated the publication of its debut issue at Stubb's BBQ, for whose sandwiches I can vouch. And randomly, there's going to be a film version of Dallas, possibly starring John Travolta and J. Lo.

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Today / 04.24.06

Genocide Remembrance Day in Armenia. The Armenian Genocide began on this day in 1915 when the Young Turks undertook the systematic annihilation of Armenian intellectuals and entrepreneurs within the city of Constantinople and later the entire Armenian population of the Ottoman Empire. The Turkish government does not recognize this as genocide, arguing that the deaths took place within a context of civil war in which Armenians also killed Turks.

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April 21, 2006

Premature Babies Adopted!

[Sorry, Blogger is down, so an unabashedly political and non-legal post is going on De Novo.]

Also recently appearing on Southern Appeal:

Life of the mother, my a*s
Filed under: Abortion
By Steve Dillard (Email) @ 1:16 pm

PBA can, in no way, be characterized as a �life-saving measure.�

The link in the post is to a video of William R. Lile, Jr., DO, a specialist in obstetrics and gynecology, depicting a "partial birth abortion." I watched it and made a list of information not included in the video, which otherwise struck me as accurate.

1) "Partial birth abortion" is not a term that appears in medical literature except in articles about law and policy debates. What is shown in the video appears to be a procedure called dilation and extraction (also intact D&X and intrauterine cranial decompression).

2) D&X cannot be performed at "any" stage of pregnancy, only when the fetus is sufficiently large that it must be taken partially out of the uterus to be killed. In the first trimester of pregnancy, when abortions cannot be restricted legally, the embryo (term used until 8th week of development)/ fetus is killed through use of prescription drugs like RU-486, or by being vacuumed out of the uterus. In the second trimester, 12-20 weeks after the woman�s last period, abortion can be done through the dilation and evacuation procedure, in which the fetus is killed while still entirely inside the uterus. This procedure carries much more risk to the woman than does D&X, because of the danger of uterine perforation that the fetus�s broken bones present.

3) One cannot be an abortionist without being a doctor. If an abortionist loses her medical license, she no longer is legally permitted to perform abortions. Therefore when Dr. Lile says he is using the term doctor �loosely� in referring to an abortionist, there is nothing loose about it legally, only ethically; many people believe that by killing fetuses, an abortionist violates the Hippocratic Oath: �First, do no harm.�

4) In the video, there is no plastic pregnant woman out of which Dr. Lile draws the plastic infant. The doll is pulled out from under a black cloth instead. A black cloth cannot be anesthetized and transfer that anesthetic through the placenta to the fetus inside it, but a woman can, and thus a real fetus is unlikely to be doing the kicking Dr. Lile describes.

5) Dr. Lile concludes, �Babies that would do just fine, we have babies that do well at 23, 24, 25 weeks in our intensive care nursery, and we have great survivals, these [being aborted] are babies that are even further along than that.�

The statement pointed up the inaccuracy of his implying that the procedure he acts out is done in the first trimester, as I do not know of any fetus that has survived leaving the uterus in the first trimester; these are uniformly miscarriages, also known as �involuntary abortions,� that result in a dead fetus. No fetuses that gestated for less than 20 weeks are documented to have survived even a full week after delivery. On average, the air sacs in the fetus�s lungs do not form until the 24th week of gestation, so the babies that survive delivery (particularly if they survive �neurologically intact,� i.e. not disabled to the point of never being independently mobile nor able to communicate effectively with others) at that point are likely to be those whose lungs developed earlier than average and who therefore were more capable of oxygen absorption and brain development in the NICU. U.S. and Canadian obstetric guidelines say any baby born at 25 weeks or later should be resuscitated, so Dr. Lile�s claim that babies of that level of gestation or greater can be said to do �just fine� has greater statistical accuracy.

6) There is a genuine lack of documentation on how abortion, particularly late term abortion, happens in America. People who want to keep it legal say that D&X is very rare and most often performed when the mother�s life or health is at risk, or the fetus is dead or unable to survive delivery. People who want to make it illegal say that it happens more often and that the life and health exception is a �canard,� particularly with regard to mental health.

No one has told me about a woman she knows who got an abortion after the first trimester simply because she couldn�t make up her mind to do it before then. However, one of my classmates told me about a friend who is kept literally sane by medication that, if she were to become pregnant, would cause significant birth defects in the fetus. I am not going to deride such a situation by saying that the mental health exception is stupid or meaningless. My roommate and close friend from college told me about her sister, who aborted a dead fetus. I am not going to say that women should be compelled to deliver dead or soon-to-be dead fetuses.

Abortion is an inherently unpleasant procedure even for women who regard the embryo as a parasite, and traumatic for those who feel an emotional connection to the fetuses they kill. The movement to make abortion illegal has many supporters who have decided that because they didn�t want the abortions they had, all abortions must be unwanted. (I am not the first to analogize this to an idea that people who misunderstand Catharine MacKinnon and Andrea Dworkin have: that in a world where rape occurs, all sex must be rape.)

The lack of documentation is the fault of the pro-choice movement. It has allowed its defense of abortion recipients� privacy and own dislike of what Ronald Dworkin calls the �cosmic tragedy� of abortion to blind it to the need for real facts to combat the prohibitionists� claims. Encouraging women to speak about the circumstances of their abortions is a beginning, but anecdotes are not enough; statistics on the number of late-term abortions performed, the reasons given, the documentation of pre-existing mental health conditions, etc. are necessary. Until then, Feddie and his ilk will continue to sneer, �Life of the mother, my ass.� (They may well continue to sneer it afterwards, but at least then pro-choicers can retort with accurate numbers.)

7) The dilemma of what to do about the fetus that threatens its mother�s life or health is a serious one in bioethics and health care policy. One could go with the Presbyterian pro-life lobby, and perform a Caesarian section (mother�s health permitting) followed by as much medical help to the fetus as possible regardless of its stage of development. This is not a practice followed by the majority of American obstetricians and pediatricians; as aforementioned, deliveries at 23 weeks or earlier are supposed to receive comfort or hospice care, not CPR, because of how unlikely it is to result in a good outcome.

Dr. Lile appears to think that any fetus that can be delivered by dilation and extraction can be transformed by the miracles of �our intensive care nursery� into �great survivals.� This typifies the American attitude that health care is a realm of inexhaustible resources, such that a country that cannot seem to fund full prenatal care � including nutritious food, regular checkups, substance abuse rehabilitation, etc. � to prevent premature deliveries nonetheless will pony up the funds to provide every premature baby with state-of-the-art medical care until it either dies or is adopted by a couple eager to raise a disabled child. (Such people do exist, and their generosity shames the rest of us, but they�re in smaller supply than Dr. Lile may realize. The current fashion among adopters is to want any child �as long as it�s healthy,� which indicates progress from sexism and racism but not prejudice against disability.)

However, in a country with majority support for banning Partial Birth Abortion, perhaps the government simply could impose an extra fraction of a percent of tax on all incomes above the median (to tax low income people further would be an extraordinarily self-defeating way to reduce the number of abortions) with the money specifically going to extraordinary care for premature babies. People like Feddie who find the idea of an abortion�s being a life-saving measure patently absurd can be put on a list of responsible adults who will promise to parent the babies that survive to go home.

My proposal would respond to one branch of feminism�s feelings about abortion: it is bad, but in an environment that fails to support women and children it must be permitted; come the revolution, however, abortion will be unnecessary. I haven�t heard of Feddie�s being in favor of more aid to women specifically, and such a program may subvert the womanifest destiny to mother, but this would do something for the children.

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April 19, 2006

Today / 04.20.06

Repeating the wishes of last year minus one of the years he needs to stay on the Supreme Court, happy birthday to Justice John Paul Stevens, who turns 86 today.

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Still More Conservative Ignorance Willful Disregard of History

One of the peculiarities of modern political discourse that's come more sharply to my attention lately is that conservatives, who in the Edmund Burke tradition are supposed to be hyper-aware of the past, actually seem to be ignoring it and behaving as though the world was created in about 1975 (not long after "sexual intercourse began") with liberalism as the status quo. Measures that attempt -- imperfectly and often even wrongly -- to correct for pre-1975 problems are treated by conservatives as dinosaurs existing for no good reason. Welfare, affirmative action, environmentalism, etc. may be misguided or excessive, but they did not appear out of thin air (more out of thick air in the case of environmentalism). I have commented on this lack of interest in history in the abortion debate, and it appears again in Steve Dillard's paean to an adultery tort.

Unlike the Southern Appeal commenters who are horrified by state interference in such intimate matters, but whose concerns are assuaged by its being a private civil action, I see no problem, even post-Lawrence, with government prohibitions on adultery. If two people decide that they want the benefits of a state-recognized marriage, they must also assume the burdens, and in some states marriage is defined partly by sexual fidelity. In contrast to recent gender discriminatory additions to marriage statutes, a legal demand that people who receive the privileges of marital recognition jump through certain hoops -- in Texas, one must attend a premarital education course, not be delinquent in child support and have a blood test -- does not unconstitutionally restrict the ability to receive this privilege.

The problem with Dilllard's support for an adultery tort, as well as calls to kill no-fault divorce, is the forgetfulness of why we don't have such torts and do have such divorces.

The SA commenters worry about the bonanza that a new tort might present for attorneys, but the former beneficiaries of adultery-obsessed legal regimes were actually private investigators, the men who hid in bushes and invested in long range lenses so they could catch a cheating spouse in the act. This gave the PI's client a ground to get out of the marriage (even if said client had been the first to commit infidelity) and made the adulterer on film the officially blamed party. If neither spouse was sexually unfaithful, other reasons to end the marriage had to be found or manufactured, so that a daily beer after work became "habitual drunkenness." Naturally, such fault-finding did little to make the marriage's breakup amicable or ease the unfortunate children's transition into a post-divorce existence.

So states began to grant divorces for spouses who wanted to maintain civility by not deeming one person to be at fault for the marriage's failure. Take the example of the divorce in The Squid and the Whale, based on Noah Baumbach's own childhood: If the husband has fallen into a pattern of emotionally abusing his wife through disregard and humiliation, and the wife subsequently has committed adultery, is the divorce the fault of the first offender, the husband? or of the wife for being an adulteress (because of course sexual infidelity is a much greater crime against marriage than any other)? Or can we be realistic enough to admit that many marriages end from a combination of both spouses' malfeasance?

One commenter's idea that the tort will be a useful weapon for one spouse to hold against another, or to prevent wicked seducers from using their wiles, evidences such an impoverished concept of marriage that I only hope it doesn't come from personal experience. I think a good marriage is precious, but I don't see how making divorce as ugly and inhumane as possible will strengthen such marriages. Premarital education, waiting periods, age requirements and other barriers to unwise marriages are much more likely to restore health to the institution than barriers to wise divorces. If your husband is so determined to cheat that only the threat of a tort against him or his partner in adultery can stop it, either resign yourself to an unfaithful husband or end the marriage.

Spouses who do have an axe to grind still can swing it; they can tell their children what a rotter Dad is, have the court find him at fault and extract penance in the form of alimony. But this doesn't apply only to adultery. Consider the news announcement Dillard is cheering:

Husbands and wives who behave badly during a marriage could be financially punished in the divorce courts if a ruling is upheld by the House of Lords in the next few weeks. If the law lords conclude that conduct matters, it will turn divorce law on its head and, experts believe, could create a new wave of "blame culture" in the family courts. There is already a greater use of private detectives.
Bad behavior presumably can include everything that currently counts as a ground for divorce, including physical and mental mistreatment, not just adultery. Moreover, the specific ruling mentioned in the article would be one likely upheld in many American jurisdictions even if the husband had divorced his wife before having sex with anyone else, as "Mrs Miller, who gave up her job a year into the marriage, had 'an expectation' of a high standard of living."

My favorite comment of those who agreed with Dillard had to be the one from Paul, who said, "Marriage is a contractual agreement in which two persons are given exclusive privileges to each other�s sexual company. If you sleep with my wife, you have taken something to which I am entitled, and 'damaged' my enjoyment of a legally recognized privilege." Just when you thought it was safe to stop regarding women as chattel and their sexuality as a husband's entitlement...

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April 15, 2006

Today / 04.16.06

Today in History (1963) - Dr. Martin Luther King, Jr. pens Letter From a Birmingham Jail while incarcerated for protesting on Good Friday in violation of an injunction against demonstrations.

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An Immigration Post

Like Milbarge at BTQ, I endorse pretty much all of Hei Lun at BTD's post about immigration policy reform, though with one addition and a few exceptions.

Addition: A guest worker program is bad not only because it's unlikely to replace illegal immigrant labor absent heavy enforcement of laws against hiring undocumented workers, but also because we don't want to create a second class of residents as European nations have done. After all, what are we going to do with children born of guest workers who automatically have citizenship rights under our current Constitution? Which brings me to the first of my exceptions:

Hei Lun recommends that we have no form of amnesty and instead make people who entered the U.S. illegally go to the back of the line for re-admission to the country. I agree that the current de facto system -- in which those who can drive over the border come in, while those who would need to take a flight, a long boat ride or a really long swim have to wait for years to get a visa -- is geographically unfair. My parents entered the U.S. legitimately and we have many relatives who would like to do the same, and part of the reason Congress feels political pressure to restrict the number of visas excessively (i.e. a number much lower than the demand from employers even for skilled workers) is that many of their constituents already feel that there's too much immigration due to the level of illegitimate entry.

However, Hei Lun's idea that we should categorize people who entered illegally several years ago in the same way as someone who comes tomorrow ignores practical reality. People with longtime residency have borne children who are U.S. citizens and established meaningful lives in their communities, as Hei Lun's fellow blogger points out. I strongly support prohibitively heavy penalties on employers for hiring illegal immigrants, but we need to make a reasonable cutoff point instead of lumping all such immigrants together. I would be fine with putting in place legislation that provides current illegitimate residents a path to legitimacy along the lines of the Senate plan, so employers can keep the workers that they already have, while instituting extremely harsh laws against hiring any new ones. In effect, this means that we would provide current residents with modified Social Security numbers that would identify them as illegal entrants on the path to citizenship and would create a system to verify such identities to eliminate excuses that the documentation looked OK. Any employee found in a workplace without an SS number that checked out would be immediately deported, the institutional employer fined and the person responsible for the hiring prosecuted.

The remark about unprotected borders that focuses on Mexico makes a common error: the assumption that terrorists are likely to come through there. On the contrary, we probably need to focus more on our northern border if it's really terrorists we're trying to block; without being a self-hating South Asian, I'll admit that anti-American terrorists are more likely to share my ethnic descent than Deysi Ramirez's.

Though not precisely aligned with the "brain drain" concerns about educated immigrants' leaving developing countries*, Hei Lun's saying, "I don't know whether it's good for Mexico that they lose millions of their hardest workers to another country" is a similar idea, though less focused on the loss of intellectual capital. Looking at India, it's hard to see it as much of a problem; lots of talented and hardworking people stay, especially when the remittances by non-residents turn into investments and the country becomes a better place to live. (Incidentally, India Today also frets about the "brain drain" caused by outsourcing, in which educated people stay in the country but work in jobs that don't require their highest level of skill, while leaving unfilled jobs in research and development that pay less but would help their country more.)

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Disbarring Through Democracy?

The latest comment on the Internet, Law & Culture symposium post-cum-Kenyatech rant board proposes:

Let's get Sigmund Solares disbarred. Anyone interested in helping out with this goal is urged to visit the Louisiana State Bar Association's complaint page.
Here is the full info on Solares. You'll probably need it to write your complaint. Please note the number at the end. It's the International Standard Lawyer Number (or ISLN), which helps identify each lawyer, even when they move to a different state or change jurisdictions.

Private Practice Lawyer Profile for Sigmund J. Solares
Sigmund J. Solares
650 Poydras St., Ste. 1150
New Orleans, Louisiana
(Orleans Parish)
Born 1971; Admitted 1996; Loyola University - New Orleans, B.B.S.; Loyola University - New Orleans, J.D.
ISLN: 915541964

There's the unlikelihood of success based on political realities -- Solares's company became somewhat known during the Katrina crisis for blogging and keeping itself going, and the LSBA is unlikely to toss someone like that, even after receiving several hundred complaints about his business dealings. There's also the inherent dubiousness of going after an opponent this way. I'm much in favor of people's lodging complaints against professionals for poor behavior in their capacity as such; bring on the accusations of a physician's leaving instruments in a patient, or a lawyer's failure to disclose a conflict of interest. However, to attempt to use the mechanism of disbarment or delicensing for a complaint unrelated to the offender's acts as a professional bothers me. I know that we're supposed to have a generally good moral character as attorneys, and that one of the more famous disbarments in recent times was not about bad behavior while acting as a lawyer, but there are other routes to deal with disgruntlement about Solares's actions as a businessman: complain to WIPO, urge others not to deal with him, deride him publicly. Urging the Louisiana State Bar Association to kick him out is probably both futile and frivolous.

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April 13, 2006

A Dumb Question

Does anyone know what happens if the Chief Justice concurs in the judgment only when it comes to the assigning of the opinion? Or is this truly a dumb question because at the time the opinion is assigned there are no concurrences, just a show of hands as to what the outcome should be? Or do we just not know because it takes place behind closed doors?

I ask because I wonder who assigned Justice Scalia to write the opinion of the court in Crawford v. Washington. Was it Stevens or Rehnquist?

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April 11, 2006

Dilettantes Need Not Apply

I love the fairy-tale beginning of this e-mail about tomorrow's law teaching workshop:

Long ago, law schools filled entry-level faculty positions based on credentials such as law school grades, journal experience and other badges of accomplishment. Although formal credentials remain important, increasingly in recent years, appointments committees have sought candidates with a scholarly track record that shows promise of blossoming into a full-scale set of research projects. If and when you try to obtain a law teaching job, you will be expected to have a "research agenda," i.e., a set of themes or topics that connects your initial and future projects in a way that will, if all goes according to plan, establish you as a legal scholar with a distinctive voice and something to say. This session will focus on how you develop a scholarly agenda -- or at least how think about having one -- before you have had a sustained opportunity to work as a legal scholar.
This is slightly disheartening news for those who plan to explore a diversity of areas within the law, implying as it does that the author of a scattershot of articles will be less tenurable than the author of a focused stream of thought, though their respective outputs may be equal in number and quality. However, it does somewhat excuse a tendency a friend has frequently bemoaned in his research in narrow legal topics, that of professors to write much of the same article over and over. After all, what better proof of "a 'research agenda,' i.e., a set of themes or topics that connects your initial and future projects" than to repeat and cite onself? (Meanwhile, I'm still working on a Law Revue song idea I had during first year orientation: a parody of the infamous Divinyls hit that would be called "I Cite Myself.")

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April 9, 2006

Sincerely, Huh?

I'd been reading Will's and Quaker's back-and-forth on whether punishing abortion providers but not abortion receivers as murderers evinces consistent morality, hypocrisy or a view of women as incomplete moral agents with limited interest, as my own view is that this can be attributed easily to political expediency. However, Will's latest post struck me as bizarre:

The decision to punish the provider but let the mother go free is just one of many possible and reasonable moral compromises. It needn't stem from a belief that women are not autonomous moral agents-- one might just think that deterrence will be more effective when practiced on the supply side, that punishing mothers as well as doctors would lead to an undue blossoming of the underground abortion market, would make women more likely to attempt (dangerously) to force miscarriages on themselves, etc.
How in tarnation would punishing mothers as well as doctors make women any more likely to attempt to force miscarriages on themselves? On the contrary, as we have seen historically, punishing abortion providers is what leads to the "blossoming of the underground abortion market" and makes "women more likely to attempt (dangerously) to force miscarriages on themselves," due to the absence of legitimate abortion providers. If women were treated as murderers as well, they would have to contemplate whether the consequences of carrying the fetus to term would be worse than the consequences of being tried and possibly convicted (if you want to see an epidemic of jury nullifications, this law would do it) of murder.

Quaker's point about desperation is worth playing out more fully. Note that there is some variation in preference among those who support a general prohibition on abortion p; both Presidents Bush, for example, favor exceptions for rape and incest. They do not necessarily think that abortion is the preferable option even in these circumstances, only that the situation in which the pregnancy came about justifies killing the fetus. In France, one theoretically can obtain an abortion only if there are extenuating circumstances, including economic inability to care for a baby. If we are worried about the desperate and do not want to punish them for acting on their desperation, why not just make abortions for them legal and not punish those who helped the desperate? Why should our sympathy be only enough to keep the desperate out of prison and not to keep out those who aided them?

Malcolm Gladwell's review of Charles Tilly's book Why? has a good point about the abortion debate and other eternal circles:

When we say that two parties in a conflict are �talking past each other,� this is what we mean: that both sides have a legitimate attachment to mutually exclusive reasons. Proponents of abortion often rely on a convention (choice) and a technical account (concerning the viability of a fetus in the first trimester). Opponents of abortion turn the fate of each individual fetus into a story: a life created and then abruptly terminated. Is it any surprise that the issue has proved to be so intractable? If you believe that stories are the most appropriate form of reason-giving, then those who use conventions and technical accounts will seem morally indifferent�regardless of whether you agree with them. And, if you believe that a problem is best adjudicated through conventions or technical accounts, it is hard not to look upon storytellers as sensationalistic and intellectually unserious. By Tilly�s logic, abortion proponents who want to engage their critics will have to become better storytellers�and that, according to the relational principles of such reason-giving, may require them to acknowledge an emotional connection between a mother and a fetus. (Ironically, many of the same members of the religious right who have so emphatically demonstrated the emotional superiority of stories when it comes to abortion insist, when it comes to Genesis, on a reading of the Bible as a technical account. Thus do creationists, in the service of reasongiving exigency, force the Holy Scripture to do double duty as a high-school biology textbook.)

Tilly argues that these conflicts are endemic to the legal system. Laws are established in opposition to stories. In a criminal trial, we take a complicated narrative of cause and effect and match it to a simple, impersonal code: first-degree murder, or second-degree murder, or manslaughter. The impersonality of codes is what makes the law fair. But it is also what can make the legal system so painful for victims, who find no room for their voices and their anger and their experiences. Codes punish, but they cannot heal.

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Today / 04.09.06

Today in History (1998) - The National Prisoner of War Museum is dedicated in Andersonville, Georgia, on the site of an American Civil War POW camp.

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April 7, 2006

Choice of Law Publishability

Continuing his championing of state law, Will Baude remarks in response to John Pfaff's comments about the greater quantity of scholarship on federal criminal law,

I had always assumed it was because the rewards to publishing an interesting piece on federal criminal law are roughly 10-50 times greater than publishing an interesting piece on a given state's criminal law, since the piece will be of interest to those who work in any jurisdiction (since almost all criminal law scholars in a given state seem also to be familiar with the federal criminal law of that state). So even if each given state is vastly under-investigated, it's the uncerainty about transferring results across markets that make people reluctant to invest in location-specific assets. [...]
(Ditto for constitutional law scholars. Why would Harvard hire an expert-- even the pre-eminent expert-- in Alabama constitutional law?)
Admittedly based on an n of 1, I'd argue that this isn't just a calculation about rewards, but also about publishability.

The same moot court editing partner I mentioned previously wrote his Note on the South Carolina constitution's provision for divorces on the ground of physical cruelty, which has been ruled to exclude mental cruelty as a ground. Because South Carolina is the only state that does not permit one to divorce for emotional abuse, his Note has limited policy implications for the rest of the nation, and he is finding publication very difficult -- the reviewing journals have deemed the Note an interesting read, but reject it as insufficiently relevant for their audiences. The South Carolina Law Review, which touts its frequency of judicial citation, only accepts student notes from its own membership. Therefore there seems to be a clear incentive for out-of-state law students, at least, to ignore state legal regimes, lest their work go unpublished because editorial boards find it too narrow.

This seems to me a great shame, as state legislatures often might benefit from the hundreds of unpaid hours of research and analysis that go into a Note. I don't know about South Carolina's, but Texas legislators normally meet once every two years and hold full time jobs aside from their political duties, so the amount of time one justly can expect them to developing expertise on a particular area of law is limited. While judicial citation might be the benchmark for a journal's prestige, use by the other branches should be equally meaningful, particularly for those who advocate self-restraint from the courts. Though my federalism seminar often assumed the judiciary to have the least expertise, because so much legal scholarship is oriented toward what judges should do, they may have the advantage in some aspects of law and policy.

This tendency is exacerbated when considering federal versus state law; for every 50 pages of advice given on reforming South Carolina's family law, probably a thousand are given on involving Congress in something that's traditionally a state matter anyway.

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April 6, 2006

Scattered Cites

In the interest of not cluttering up De Novo's front page with several posts only a pagraph or two long, I've compiled some observations with nothing to do with one another here, though they may be worthwhile if you're interested in sketchy land deals, law firm advertising or forgotten peculiarities in the judicial confirmation process.

Unmentioned in this New York Times article about the race between conservationists and developers to buy land from timber companies is the information revealed in a Washington Post series about the Nature Conservancy, a group involved in each deal noted by the Times. I used to donate to the organization myself, as their mission of buying up land to protect it from development looked like a good way to avoid fights over regulatory takings. However, I'd assumed that the protection was total; according to the Post, it wasn't.

[T]he Conservancy had repeatedly bought land, added some development restrictions, and then resold the properties at reduced prices to its trustees and other supporters. The buyers made cash gifts to the Conservancy roughly equal to the difference in price, thereby qualifying for substantial tax deductions -- just as if they had given money to their local charity. The Conservancy said the sales prices were proper because the development restrictions reduced the market value of the tracts. In the wake of the news articles, however, the Conservancy announced that it would no longer conduct such deals with its board members and trustees.
Attorney advertising doesn't have a long history throughout the country; until the Supreme Court's 5-4 decision in Bates v. State Bar of Arizona*, the guild in each state could set rules that prohibited it. It's gotten a questionable reputation that may support the concern that it would degrade the dignity of the profession, and the advertising most visible to the general public is directed at individuals in misfortune: DWI, divorce, personal injury, etc. During law school, I've encountered these on the subway and TV -- there's a commercial for a New York firm that cracks me up every time because it talks about the importance of teamwork while showing a crew team rowing -- but I've also seen the more subtle advertising of more prestigious lawyers. This advertising, however, is directed at potential employees rather than potential clients, and takes the form of free drinks and such, as well as expressions of support for law school endeavors like the parody show or journal symposia. But what would advertising directed at potential clients look like?

My most beloved swag from last year was the squeezable penguin given out by Stroock. While the penguin doesn't have the favor of all the firm's attorneys, it delighted me. Any time I've seen penguins since**, I've thought of Stroock, which I suppose is a sign of semi-successful advertising. I want the firm to license Lyle Lovett's song for commercials and put up bilboards with this picture (via Frinklin).

Lyle Lovett - Penguins 1 MIN VIDEO LOAD

Reading about Manuel "Memogate" Miranda's return to Republican respectability, I fully realized how bizarre the conservative campaign against Harriet Miers's nomination to the Supreme Court was.

In March, Miranda, with little more than his contacts and his home laptop, formed the National Coalition to End Judicial Filibusters to pressure Republican senators to invoke the so-called �nuclear option,� a parliamentary tactic that would strip the minority of the right to filibuster judicial nominees. [...] Jim Backlin, vice president for legislative affairs for the Christian Coalition, said Miranda was one of the activists most responsible for bringing down Miers.
After spending five years chanting about how choosing federal judges was one of the spoils of presidential election, the anti-Miers folks decided that while Democrats were obliged to accept whatever Bush threw them, Republicans were not. The people in Bush's party were to advise; Democratic senators were to consent.

* I somehow got Bates muddled with Goldfarb, and while trying to find my college antitrust casebook, I noticed that at some point, a book from a government course -- The Logic of Congressional Action -- had been shelved next to one from a sociology seminar -- The Logic of Collective Action. I'm not sure why this amused me.

** Except March of the Penguins, so no negative connotations of mindless overwork.

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Labor Saving Devices

Evan Schaeffer of Legal Underground notes on another of his blogs that law students can attend the ABA Techshow in Chicago April 20-22 for free (via Blawg Wisdom). Last year I wouldn't have taken an interest, but a clinic in which I recently was enrolled, Lawyering in the Digital Age, required students to attend LegalTech in January and provided free passes to it. I'm glad that they did, as it was an interesting experience. The majority of the vendors seemed to be hawking document review and discovery services that would gather up truckfuls of documents, scan them, make them searchable, even translate them.

These all come at significant cost, of course; even a lawsuit disputing a few million dollars wouldn't justify use of services designed and priced for corporate and class action litigation. As I was supposed to be viewing this at least partially with an eye to pro bono clientele, the exposition didn't strike me as terribly helpful. Even the vendor of a service that allows one download court forms for any jurisdiction and fill them out digitally -- one of the few items that seemed like a potentially worthwhile one for people who didn't have a cadre of attorneys to do that sort of thing for them -- didn't give me much hope. When I inquired into pricing, he said that a clinic or public interest organization couldn't afford it, though perhaps he was just grumpy at being accosted by a starving law student at the end of the last day.

However, many of the services did look like stuff I'd be using in a large law firm, particularly in litigation. One exhibitor creates sophisticated mockups for expert witnesses to use, that can depict everything from the crannies of a disputed invention to the traffic on a toll road. Another would allow me to send my e-mail through a server that would delete the e-mail before it was viewed at my request, as well as reporting whether it had been viewed, for how long (and how much of the message could have been read in that time), when it was viewed again, etc. This last struck me as a little sketchy and invasive of privacy, but I have no doubt that if there were legal problems with it, one of their intended customers would have noticed long before I.

Perhaps most important for the law student deciding whether to attend events of this type: the vendors give away lots of free stuff. Cookies, laptop locks, pens and highlighters, free music downloads, Tshirts, bags, even a Best Buy gift card all ended up as loot from LegalTech. If you have the time to kill in Chicago, go.

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April 5, 2006

Love is a....

Reading this handwritten divorce petition (ht: BF&W) I couldn't help but think of the famous opera lyrics:

L'amour est un oiseau rebelle
que nul ne peut apprivoiser,
et c'est bien en vain qu'on l'appelle,
s'il lui convient de refuser!...

L'amour est enfant de Boh�me,
il n'a jamais, jamais connu de loi...

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April 4, 2006

Westlaw, with the Rest of the Story

Some bloggers recently commemorated an anniversary -- not that of their blogs, but the wedding anniversary of Paul and Kathryn Hensler. The hand-drawn divorce petition of the former against the latter is a delightful reminder that at least one attorney was keeping it real. Mr. Hensler's allegations against his wife, though they first seemed harsh, struck me as more just once I looked up her maiden name, which popped several federal denials of certiorari (LaGrange v. Texas, Butler, Jones, Texas Department of Public Safety) in support of her "litigious nature." In Hensler v. Principi, a court refused Ms. Hensler's attempt to collect veterans' benefits after the death of Mr. Hensler (see below for the relevant portion). Ms. Hensler's claim of a common-law marriage even after the purported divorce was denied mainly because she had been in prison and thus not living with the deceased veteran, a basic requirement for recognition of such marriage in Texas.

Assuming that this is the same Kathryn P. Hensler of Hensler v. Hambrick, 983 F.2d 1066, she was convicted of violating 18 U.S.C.A. � 876 (mailing threatening communications). "Subsequently, petitioner's attorney requested the trial court to conduct a hearing to determine whether petitioner was competent during the trial proceedings of December 4, 1991, and whether she was competent to proceed to sentencing. Additionally, petitioner, pro se, also moved to stay the criminal action pending a psychiatric examination... In her petition, petitioner claimed her constitutional rights pursuant to the First, Fourth, Fifth, Sixth, Eighth, Twelfth and Fourteenth Amendments were violated." I have thought about the 12th Amendment, but I had not contemplated its relevance for a criminal proceeding. Ms. Hensler represented herself again In re Kathryn Hensler (Oct. 18, 2000). Mr. Hensler had his own legal difficulties; Hensler v. District Four Grievance Committee of State Bar of Texas, 790 F.2d 390, was his attempt to prevent an investigation by the bar. "In January 1985 he moved his office and disconnected his telephone. As a result, various clients were not able to contact him and a number of grievances were filed against him. The grievance committee began its routine investigation into the allegations."

From Hensler v. Principi, 18 Vet.App. 301 (Apr. 08, 2003):

The appellant, Kathryn Hensler, appeals pro se an August 14, 2001, decision of the Board of Veterans' Appeals (Board) that determined that she was not eligible for VA death benefits as the surviving spouse of the veteran, Paul F. Hensler. Record (R.) at 8. The appellant filed an informal brief and the Secretary filed a motion for summary affirmance. In her informal brief, the appellant argues that her divorce from the veteran was invalid because it was obtained "behind her back," and that, subsequent to her divorce from the veteran, they had a common-law marriage under Texas law. Informal Br. at 1-2. Single-judge disposition is appropriate when, as here, the issue is of relative simplicity and the outcome is not reasonably debatable. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). This appeal is timely, and the Court has jurisdiction over the case pursuant to 38 U.S.C. �� 7252(a) and 7266. As explained below, the Secretary's motion will be granted and the Board decision will be affirmed.
Mr. Hensler had active service in the U.S. Navy from April 1958 to September 1960. R. at 14. He married the appellant in March 1983 (R. at 87), and they were divorced in March 1993 (R. at 161). Mr. Hensler died on September 6, 1996. R. at 45. In November 1996, the appellant filed an application for dependency and indemnity compensation (DIC) or death pension, claiming to be the veteran's spouse. R. at 17-20. On that application, the appellant stated that she had married the veteran in 1983 and that their marriage continued until his death in 1996. R. at 17. In November 1996, a VA regional office (RO) denied her claim (R. at 62), and, in September 1997, the RO denied her subsequent claim for DIC benefits under 38 U.S.C. � 1151 (R. at 35-36). The appellant subsequently filed a notice of disagreement (NOD). R. at 22-25.
In November 1998, the RO received a copy of the veteran's death certificate, which stated that he had died on September 6, 1996; that his marital status was "divorced"; and that listed under surviving spouse "[n]one." R. at 45. In December 1999, the appellant submitted several personal statements, several affidavits, and several letters purportedly written by the veteran to the appellant. R. at 69-101. Among these materials was the affidavit of Paul Rice, which stated:
I witnessed Mr. Hensler go to Waco to pick up Kathryn Hensler at the airport, where she was arriving from federal prison. And I witnessed her return and her staying for several days before he took her to the bus in Temple to go to a halfway house in San Antonio.... Paul often referred to Kathryn as "his wife" and he often expressed that she would return home as soon as she was able and that they would remarry, and they appeared to be living together as man and wife while she was there and represented themselves to the public as if still married. Kathryn also expressed the intent to return home once able and referred to Paul as her "husband".
**2 R. at 100-01.
In one August 1995 letter purportedly written to the appellant from the veteran while the appellant was in prison, the veteran said that if the appellant promised "no Friday night drinking (or otherwise), no fights, no involving me in the lawsuits, and the other things I deplored in that letter, write me about it, and I may reconsider what I said about not being a part of your life anymore." R. at 98. In another August 1995 letter, the veteran is purported to have written to the appellant that "if you want to stay with me after you get out, you have to behave because I am sick and cannot handle much stress." R. at 99. In an April 2001 VA regional office (RO) decision, it was determined that the appellant was not entitled to VA death benefits due to the death of the veteran because she was not recognized as the veteran's surviving spouse. R. at 170. She appealed to the Board. In its decision here on appeal, the Board determined that the appellant was not entitled to VA death benefits as the surviving spouse of the veteran. R. at 3. In making its decision, the Board stated the relevant Texas law regarding common-law marriage, and then stated, as to the appellant's evidence regarding any such common-law marriage: "In this case, other than the appellant's self-serving statements that she had an informal marriage with the veteran after their divorce, there is absolutely no other credible evidence of record in support of her claim.... Moreover, in May 1995 letters which the veteran purportedly wrote to the appellant, it is clear that they were not living together, as she was incarcerated at the time. The Board finds that these documents wholly vitiate any current, self-serving assertion that a common-law marriage existed between 1993 and 1996."

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April 2, 2006


Finding a two-bedroom housing unit, in the DC area, for $1700 or less, that isn't more than 45 minutes to the Farragut North or West stops, and preferably furnished and in Virginia so I don't have to deal with DC income tax...

... is more difficult than I had anticipated, even with Craigslist's assistance. I'll think I have something set, and then the person stops replying to my e-mails. Or a place claimed to be convenient to the city will be revealed on Trip Planner to be an hour and a half from my place of work. Etc.

If you have any leads to offer, assistance would be much apppreciated.

UPDATE: Looks like I have a roof over my head.

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