about legal drama "Judge Judy"

The judge stated the facts of the case. The couple had lived together and have one child. The woman also has children from a different relationship. The judge asked how many. In this courtroom built from concrete composite such a shame and brick, finished with mother's defiant girl and wood paneling she tilted her head down in answer, "Two. Two other children." Stain spread wings when life's changes happen in only a few words.

about "The Facility" by Simon Lelic

Check in with libertarian journalist Tom Clarke as he investigates the disappearance of several people supposedly arrested under new antiterror legislation in England. The disappeared are rumored to be stashed at a government facility. Turns out they are suspected of carrying a rapidly spreading virulent Aids-like disease that the reactionary government wants to contain (understandably). In this short novel, author Simon Lelic loosely explores the plight of the press and the questionably condemned in a democratic system under duress. Draconian antiterror legislation is the villain. Everything else is imperfect but forgivable when posed against the background of a scared, expedience-minded government susceptible to ethical denial.

about "Crime and Punishment" by Fyodor Dostoyevsky

In a Russian a literary journal in 1866, Fyodor Dostoyevsky published Crime and Punishment, a  novel that follows a young man named Rodion Raskolnikov immediately before and after he murders an unscrupulous pawnbroker and her feeble sister. The motive, which does not seem fully and explicitly formed even for our protagonist, develops through Dostoyevsky's narrative. It seems altogether an act of desperate poverty, self-empowerment, and destiny.

In those forlorn, guilt-infected postmurder days spent adrift among a diverse cast of emotional string-pulling supporting characters, Raskolnikov remains under suspicion but not arrest. The action turns when a coy police inspector reminds Raskolnikov of an essay the would-be murderer wrote as a college student; the essay suggests a slight perversion of the Great Man theory--that great men use their power, be it charisma, intelligence, political and military wits, what have you, to transcend conventions and change the world. So, we come to understand, Raskolnikov's act of murder is a test of his own greatness (though he simultaneously thinks himself a slug). But, ultimately, crushed with guilt, self-doubt, and facing inevitable arrest, Raskolnikov confesses and begins his sentence in Siberia.

Among other things, Crime and Punishment dives into Dostoyevsky's personal philosophy that suffering and degradation bring salvation. The novel turns on our ideas of law, crime, morality, reason, and society and the individual. It asks, What is the difference between the man who transgresses boundaries to achieve his ambitions and the man who defies conventions to achieve greatness?



Notes:

• One of the most noted events in Fyodor Dostoyevsky's biography is his 1849 arrest for his association with some liberal utopians; he was condemned to death, but then spared moments before his execution and re-sentenced to four years' hard labour in Siberia. He later traveled through Europe, but developed epilepsy and a nasty gambling addiction. Hard times followed, but also some great literature.

• Besides exploring universal themes, Fyodor Dostoyevsky's novels are also very Russian, set in 19th-century Russia during the nation's never-ending, clumsy push to modernize.

something about "The Trial of Henry Kissinger" by Christopher Hitchens

British-American author, intellectual, and journalist Christopher Hitchens spent most of his political life on the left, but spent much of his later years defending neoconservatives. Ideologically he seemed to move from socialist to constitutional republican with Marxist sympathies. Despite this shift, Hitchens consistently attacked abuses of power. One great abuser, in Hitchens' view, was Henry Kissinger.

Kissinger served as National Security Advisor and Secretary of State under Presidents Richard Nixon and Gerald Ford. For Hitchens, Kissinger's Realpolitik approach to foreign policy led him eventually to violate international human rights law, the law of armed conflict, international criminal law, and US domestic law. In The Trial of Henry Kissinger, Hitchens seeks an indictment; in fact, he expects it.

Hitchens organizes his case against Kissinger neatly, addressing each crime separately, giving crisp narratives describing the immediate contexts, characters, and instances of moral failings for which Kissinger should be held accountable. Kissinger's six worst crimes as detailed by Hitchens: mass killings in Indochina (Vietnam and places nearby), killings and assassination in Bangladesh, coup and killings in Chile, coup and violence in Cyprus, genocide in East Timor, plotting to kidnap and/or kill a journalist in DC. Hitchens thinks Kissinger guilty of all this (and more) via his complicity or direct responsibility, depending on the case and how much we feel comfortable deducing from the evidence.

Before reaching a verdict about Kissinger's guilt, I'd argue a jurist would need at least two things: (1) an understanding of Realpolitik in light of American foreign policy, and (2) a briefing on the broader Cold War context in which much of these events occurred. But Hitchens doesn't give us this context; for him, this has nothing to do with either. This a time to exact punishment on a man who acted out of pure, cold ambition.

This is a short, fast read, and Hitchens' style goes down smoothly. A good read for a quick primer on some very dirty politics.

from opinions rendered in Maryland v. King

Justice Kennedy penned the majority opinion in Maryland v. King, which ruled "... that DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure ..." This means the cops can swab the inside of the cheek of someone who gets arrested, so long as that someone is being detained for a "serious offense". In giving the majority opinion, Kennedy goes on at length praising the role of DNA in identifying people. He points out that, had Timothy McVeigh been swabbed when he was stopped for not having a license plate hours after he bombed the federal building in Oklahoma City, then the cop could have known it was McVeigh. Or, had one of the 9-11 hijackers been swabbed when he was ticketed for speeding days before the atrocity, the cop would have identified him, too. Of course, nevermind that these identifications would not have prevented anything, and that neither terrorist was being arrested at the time. Kennedy's reasonings are impressively dense. And Justice Scalia calls him out for it.

In the dissent, Scalia writes, "The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous." Then he goes on:

... while the Court is correct to note (ante, at 8–9) that there are instances in which we have permitted searches without individualized suspicion, “[i]n none of these cases. . . did we indicate approval of a [search] whose primary purpose was to detect evidence of ordinary criminal wrongdoing.” Indianapolis v. Edmond, 531 U. S. 32, 38 (2000).

Just how intrusive is the cotton swab? Maybe that's beside the point, as Scalia notes:

And could the police engage, without any suspicion of wrongdoing, in a “brief and . . . minimal” intrusion into the home of an arrestee—perhaps just peeking around the curtilage abit? See ante, at 26. Obviously not.

And what of the purpose of identifying people? Is identifying someone really so innocent? No, Scalia argues:

At points the Court does appear to use “identifying” in that peculiar sense—claiming, for example, that knowing “an arrestee’s past conduct is essential to an assessment of the danger he poses.” Ante, at 15. If identifying someone means finding out what unsolved crimes he has committed, then identification is indistinguishable from the ordinary law enforcement aims that have never been thought to justify a suspicionless search. Searching every lawfully stopped car, for example, might turn up information about unsolved crimes the driver had committed, but no one would say that such a search was aimed at “identifying” him ...

But what if the State really is just identifying people without intending to solve crimes for which no probable cause to search exists?

The truth, known to Maryland and increasingly to the reader: this search had nothing to do with establishing King’s identity.
...
DNA testing does not even begin until after arraignment and bail decisions are already made. The samples sit in storage for months, and take weeks to test. When they are tested, they are checked against the Unsolved Crimes Collection—rather than the Convict and Arrestee Collection, which could be used to identify them.The Act forbids the Court’s purpose (identification), but prescribes as its purpose what our suspicionless-search cases forbid (“official investigation into a crime”). Against all of that, it is safe to say that if the Court’s identification theory is not wrong, there is no such thing as error.

So, all that said, what does the majority's errant ruling promise for the future?

The Court disguises the vast (and scary) scope of its holding by promising a limitation it cannot deliver. The Court repeatedly says that DNA testing, and entry into a national DNA registry, will not befall thee and me, dear reader, but only those arrested for “serious offense[s].” Ante, at 28; see also ante, at 1, 9, 14, 17, 22, 23, 24 (repeatedly limiting the analysis to “serious offenses”). I cannot imagine what principle could possibly justify this limitation, and the Court does not attempt to suggest any. If one believes that DNA will “identify” someone arrested for assault, he must believe that it will “identify” someone arrested for a traffic offense. This Court does not base its judgments on senseless distinctions. At the end of the day, logic will out. When there comes before us the taking of DNA from an arrestee for a traffic violation, the Court will predictably (and quite rightly) say, “We can find no significant difference between this case and King.” Make no mistake about it: As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.

Few things on the case R. J. Reynolds et al v. United States Food and Drug Administration

A district court just ruled on whether the FDA can force cigarette companies to publish graphic anti-smoking images on packs. The Judge, Richard J. Leon, gives a failed rhetorical analysis in his opinion:

Unfortunately for the Government, the evidence here overwhelmingly suggests that the Rule's graphic-image requirements are not the type of purely factual and uncontroversial disclosures that are reviewable under this less stringent standard. Indeed, the fact alone that some of the graphic images here appear to be cartoons, and others appear to be digitally enhanced or manipulated, would seem to contravene the very definition of "purely factual." That the images were unquestionably designed to evoke emotion - or, at the very least, that their efficacy was measured by their "salience," which the FDA defines in large part as a viewer's emotional reaction, see CompI. ~ 58 (citing 76 Fed. Reg. at 36,638-36,639) - further undercuts the Government's argument that the images are purely factual and not controversial, see, e.g., Defs.' Opp'n at 22-29. Moreover, it is abundantly clear from viewing these images that the emotional response they were crafted to induce is calculated to provoke the viewer to quit, or never to start, smoking: an objective wholly apart from disseminating purely factual and uncontroversial information. 18 Thus, while the line between the constitutionally permissible dissemination of factual information and the impermissible expropriation of a company's advertising space for Government advocacy can be frustratingly blurry, 19 here - where these emotion-provoking images are coupled with text extolling consumers to call the phone number "1-800-QUIT" - the line seems quite clear. --Memorandum Opinion, 11/07/2011, R. J. Reynolds et al v. United States Food and Drug Administration

The Judge ruled in favor of tobacco companies by preserving the status quo and the cigarette package's text warning that smokers routinely ignore now. I don't fault his decision (in fact, I tend to agree), but I do hate his remaining faithful to the ideation of  a "purely factual and uncontroversial information"--a quote originating from Zauderer, describing a concept that has been around forever: A pure observation language. Such a language will never be, and can never be.

Anyways, I hope this case goes to the Supreme Court. How do you warn people about a product that, if used as intended, will almost certainly lead to addiction and quite likely a slow, painful death. (And, more to the Government's unspoken point, the resulting deaths exact a heavy cost on taxpayers every year.)

Which of the following are purely factual and uncontroversial information?:

• Cigarettes cause cancer and death
• Leaving for work today may result in your dying in an accident
• Orange juice contains vitamin C
• Objects in mirror may be closer than they appear

Humberto Leal Garcia v. Texas

Texas executed a Mexican Thursday night. The state broke no US laws and had no binding obligation to follow International law or treaty. The man, convicted of raping and killing a 16-year-old girl, had been in the country for several years prior to his crime, arrest, and his subsequent years of imprisonment.

The President, appealing to pending future legislation, International decorum, and potential risk to US citizens abroad, asked the Supreme Court to halt the execution. By a 5-4 decision, it did not.

The majority opinion goes unattributed. Here's highlights:

Our task is to rule on what the law is, not what it might eventually be.

... The United States and JUSTICE BREYER complain of the grave international consequences that will follow from Leal’s execution. Post, at 4. Congress evidently did not find these consequences sufficiently grave to prompt its enactment of implementing legislation, and we will follow the law as written by Congress. We have no authority to stay an execution in light of an “appeal of the President,” post, at 6, presenting free-ranging assertions of foreign policy consequences, when those assertions come unaccompanied by a persuasive legal claim.

The minority opinion includes this ...

Thus, on the one hand, international legal obligations, related foreign policy considerations, the prospect of legislation, and the consequent injustice involved should that legislation, coming too late for Leal, help others in identical circumstances all favor granting a stay. And issuing a brief stay until the end of September, when the Court could consider this matter in the ordinary course, would put Congress on clear notice that it must act quickly. On the other hand, the State has an interest in proceeding with an immediate execution. But it is difficult to see how the State’s interest in the immediate execution of an individual convicted of capital murder 16 years ago can outweigh the considerations that support additional delay, perhaps only until the end of the summer ...

... In reaching its contrary conclusion, the Court ignores the appeal of the President in a matter related to foreign affairs, it substitutes its own views about the likelihood of congressional action for the views of Executive Branch officials who have consulted with Members of Congress, and it denies the request by four Members of the Court to delay the execution until the Court can discuss the matter at Conference in September. In my view, the Court is wrong in each respect.

I respectfully dissent.

Compared to the majority opinion, the dissent sounds rather pointed.

Any case

Citing the War Powers Resolution, dissenters in Congress yesterday challenged President Obama's authority to engage in hostilities in Libya without their authorization. Legality here hinges on interpreting the vague resolution which, despite having been ignored time and again since its inception, seems to heartily support the current challenge: § 1543 defines applicable circumstance as, among other things,

... any case in which United States Armed Forces are introduced—(1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances; (2) into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces ...

Any case? Points for critics of the administration.

But Harold Koh, State Department legal adviser, counters that "the limited nature of this particular mission is not the kind of ‘hostilities’ envisioned by the War Powers Resolution.” Moreover, this is NATO's mission now--since at least April 7--and the US only lends support and not manned armed force.

The decades-long trend shows the Executive branch gaining power. Hard to imagine any check on that now.

When a marriage is legitimate

In Care of the Self, the third volume of The History of Sexuality trilogy, Foucault summarizes the history of marriage. Elite pagans married to form alliances of wealth and power; the poor married for economic practicality (i.e., a poor man might marry a poor woman and they, with their family, could support themselves). These marriages needed only the family's blessing. From there, interests of the State and of the Church took root. Marriages became increasingly social and public.

We have a tendency to look to an institution's origins to inform us on resolving contemporary issues.

A right to life, a right to die

This week a single mother was convicted of murdering her nine year old, low-functioning autistic son by withholding his chemotherapy medication. In October 2006 he was diagnosed with non-Hodgkins lymphoma; by February 2008 the crime had been discovered and the boy was placed in his father's custody; a year later, he died.

In her defense the woman claimed she was overwhelmed by her own struggle with depression and her role as a depressed mother with few resources who is solely responsible for a severely sick, disabled child. In other words, she threw herself at the mercy of the court. Of course the prosecution claimed she decided to let the child die; incidentally, this could also have been her defense: That she chose death over life--life being where the state exercised its will, and death, where she exercised hers. It could have been a civil rights issue. Regardless, a few members of the jury have since made statements about their attempts to sympathize with her situation.

I come away with two primary impressions:
(1) She never really owned her child; though he lived with her a time, the state apparently had the prevailing interest in his life (for his sake, of course), making him its ward, subject to its rule;
(2) If the state has part ownership of the child, it also has a responsibility to raise the child; if it will not, then it must provide adequate resources to those who will.

The second point holds even if the facts of this specific case require us to punish the mother.

One report: http://edition.cnn.com/2011/CRIME/04/15/massachusetts.mother.murder/
Another: http://www.google.com/hostednews/ap/article/ALeqM5ghGhsTkTI_Jwn4Y7OOcEDU_gOt1Q?docId=d0923b05603b4faa8d8287fe9ebafaf7