The Commuter (Fun But Disappointing)

Another Liam Neeson action flick that this time early on promises to be something more (including raising "would you" ethical questions) but then is over the top silly with a range of standard tropes (down to the perfidy of his former friend). Thus, we have a nice set up of his family dynamic including Elizabeth McGovern as his wife, then a tacked on "they are okay, great job" sighting near the end of the film. The ethical complexity is also totally forgotten about too. The number of fight/action scenes by someone over 60 is a bit absurd too.

Feminist Judgment Series Rewritten Judicial Opinions

I find books that use one incident, including a legal case (there are multiple series covering many of them), to provide a center to discuss a range of issues and the history/aftermath respecting them a helpful approach.  For instance, to take the recent anniversary, a book on Roe v. Wade will not merely provide a case study of the litigants and the history of the litigation, but a thumbnail sketch of history behind abortion law and so forth.

More of this thing, including for a few current cases of particular note to the public, would be helpful. The article can include pictures of the participants, a chart providing context of the history of the issues etc.  The story might also be written after the fact, providing information on what happened since the opinion was handled down. For instance, multiple criminal cases decide federal constitutional law issues, but the ultimate effect for the litigants is unclear. State law might in fact result in ultimate victories, for example, even after a loss in federal court.

A somewhat related area of literature involves providing alternative perspectives on legal cases.  This includes discussion of little known cases, perhaps ones that were decided by lower courts only that had intriguing possibilities.  For instance, a retrospective on Griswold included an article on a forgotten companion case to an earlier ruling, a case that could have highlighted the importance of contraceptives to autonomy in marriage, particularly for women.  I would have tweaked a comment in that article regarding there not being a health concern as compared to Poe v. Ullman where the wife had a medical condition that made pregnancy dangerous. All pregnancies in some fashion have health issues and beyond the obvious effects on the woman, it affects the couple as a whole. 

There are also attempts to write alternative opinions, including collections covering Roe v. Wade and Brown v. Bd.  The subject book, the introduction can be read online, is of this caliber.  After two introductory chapters, the second particularly academic in character, there are twenty-five alternative opinions (mainly majority, but also concurrences and dissents).  The link provides a full list, but after Bradwell (women's right to be a lawyer) and Muller (hours limit law upheld for women), they all involve modern day cases from Griswold on.  Each are introduced by an often tedious discussion and then we get the feminist judgment, the "justice" for some reason given her (in nearly all cases) full name, when practice is to only include the last name ("Justice Ginsburg," not "Justice Ruth Bader Ginsburg").

I was overall disappointed with the results though the actual opinions are a mixed bag.  The alternative opinion of Rostker v. Goldberg (military draft) was one of the best while a few seemed a tad redundant (Planned Parenthood v. Casey amounted to an adoption of Justice Blackmun's opinion). One case involving sexual abuse of a student eloquently voiced her experience, including bluntly calling it "rape." Griswold was an unrealistic 21st Century sexual autonomy judgment when a more narrow ruling very well could have been feminist in character as well with an opening for more as events develop.  See, e.g., the article cited. And, though appreciate Harris v. McRae* taking the establishment argument seriously, it too blithely rejected the free exercise one.  Generally, perhaps for space reasons or a desire to promote ideal arguments as compared to more realistic time specific judgments [each opinion only used materials available at the time but this should also include realistic results], the opinions seemed a bit too conclusionary at times too.


One book -- couldn't get into it -- I recently read examined how scientists felt about religion and spirituality.  The book was careful to allow such terms to have an open-ended character, people have different opinions about them, reflecting the reality of the situation.  "Feminism" is somewhat of this character.  At any rate, the idea behind the book is interesting and the result was of some value.  One can imagine other perspectives that would provide interesting analysis regarding various cases, such as different religious or cultural viewpoints.

This book was at best a mixed bag but at least there was so much to pick from that there was a good chance of some interest. 

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* The opinion argues that there is no right to have your religious beliefs sponsored by the state.  The introduction argued that this also would open up dangerous avenues as seen by current disputes where discrimination is allowed if motivated by religious belief.

But, there is also a right not to be deprived of general benefits selectively for specific religious beliefs. This to me is what happens when you only fund childbirth and not abortion (except in narrow cases) for what amounts to at least quasi-religious reasons.  This has an express free exercise flavor in part because religious freedom of action doesn't just apply to conservatives.

This also reflects an at time "what about" character that popped up at times. What about Sherbert v. Verner (cited once in passing in another case via a string cite) in which denial of unemployment benefits was problematic when a person was unemployed "for cause" arising from religious belief?  The individualized provision of benefits that does not directly harm third parties (a blanket benefit only for religious reasons rejected) to me logically applies in the health benefit context.

Finally, other than a passing citation in a footnote, Adkins v. Children's Hospital is ignored.  This is a rare case that does have feminist language, even though denial of minimum wage benefits (to women alone) is not a result a lot support. But, one of the opinions here dissents from giving special rights to women regarding hours laws. So, why not at least reference [as a false start at least] an opinion [in 1923!] with language like this:

No distinction can be made between women who work for others and those who do not; nor is there ground for distinction between women and men, for, certainly, if women require a minimum wage to preserve their morals men require it to preserve their honesty.

Roe Turns 45

The women's marches (thank you!) were well timed in part because today is the 45th anniversary of Roe v. Wade, covering something with various aspects, various subjects (privacy, autonomy, history, medicine, religion, sexual equality, First Amendment issues etc.). No wonder it first was of deep interest to me in high school. Many posts on this blog discuss the issues. Finally, a nod to Doe v. Bolton, which deserves more attention for the material covered, including Douglas' concurrence and the state oral argument.

A Year later ...

A year ago, I watched a free showing of Loving with various people upset at what happened at noon that day (1/20/17 seems on some basic more of "infamous" day than a surprised military attack on a military target and all involved there). Still find Trump being in the White House and so on insane and nauseating. The whole Stormy Daniels thing (among others) does give people a reason to watch this, a Stormy Daniels production. Saw the girlfriend in the beginning in another film, also as a supporting character. Think she handles the dramatics pretty well. Seriously -- to me, a bit of skill helps there. Go Jags! Please win.

ETA: Okay. A bit more on that film. Has four sex scenes, a sizable lag time between first (the best) and second. Third is a toss-in with two extraneous characters. Guy friend (who she has had sex with) of lead's bestie [who is really the center of a sorta "B" plot] has no sex scenes at all. Lead to me is the blandest of the bunch really. Decent amount of plot and overall (lead's parents are over the top) decent acting. Pats win 4Q. Baseball please.

The Didache: A Window on the Earliest Christians

Re-reading this book on an early (maybe before the gospels or around the same time) Christian work that is a guidebook ("teaching") for believers. I discussed it a few times in the past, including here. The developing tradition aspects [such and such occurs but is given a different meaning over time, for example] continue to impress. As usual, best to consider it as one possible view of certain matters, understanding the past never a perfect science. Overall, appreciate the moderate tone. The Didache itself is worthy to be read along with the books of the NT and would have been a suitable addition to the New New Testament.

ETA: In my original discussion, I referenced a mysterious passage involving something prophets are allowed to do if they don't encourage others to do it. Note the various ways the words are translated, affecting how one is led to understand the text. The average person misses this since they don't know Hebrew or Greek. And, even experts split over these things. This is beyond not knowing the exact context. Or, possibility of mistakes writing it down/copying or whatever. Warrants humility when interpreting/formulating doctrine.

Prequel to "All the President's Men"?

Started a bit slow (and fiscal stuff boring though did add to the drama some and personal story), but overall, enjoyable film quite suitable for the times. Rah rah stuff really.

Division Round

This is an ongoing football post. Eagles 15-10 win (and that's 10 points given up on turnovers) was the sort of gutsy win needed with a back-up QB. Falcons had chance to go ahead late but first and goal effort kinda sad. Figure, written during warm ups, Pats won. Jags probably goners too, especially embarrassing Steelers last time. Saints game likely to be best again. Will update (with winners) as needed. [Jags upset -- their offense repeatedly stopping the Steelers from having a major comeback. Vikings had under a minute after a late field goal complete a Saints comeback and managed to actually to get a TD.]

ETA: It took some questionable non-calls and thought somehow the Steelers would manage to come back -- that onside kick call near the end really was dubious -- but some game by the Jags often dubious offense. And, that is with the D giving up a few "come on!" scores. Fear the Jags can't do that vs Pats but reason to hope it will be a game (contra Titans).

Clemson etc.

Missed my honorary college football team (Clemson) got whomped in the Sugar Bowl, so Alabama had a shot at the championship. The game likely better than AFC division round games though Jags did beat the Steelers last time. Being behind as usual, finally got a smartphone. It's easy to switch numbers (even from a T-Mobile flip phone to a Verizon Android) though don't really need most of the gimmicks. Typing is annoying though there is a way to make the screen bigger. Grandpa is cranky. Remember answering machines?

2018: A Week In

It's a week in and besides being damn cold at times, what has changed, huh? So disappointed in you 2018! Seriously, who knows what this year will bring. Disappointments and a few surprises, I guess. Winners of today's football games as expected but Jags eked out in a bad effort (Bills QB out late after a wicked hit that for some f-ing reason got no penalty) while Panthers hung on until late to lose (an early missed chip shot helped that). Theme for me recently is that I'm tired of assholes and people doing asshole things. That is all.

Happy New Year

Well, a NY team (Buffalo) did get to the playoffs because the Bengals had a late game winning drive [eliminating Ravens] and the Dolphins (for at least the second time) didn't manage to score after a late onside kick [Bills win]. Giants won but more importantly (after scoring 15 early points, nothing much) Colts did too, so #2 pick. Some new teams in -- like the Jags, but guess the Vikings will be my choice. And, Hack didn't get to play again, even in garbage time. Just enjoyed the bone chilling weather. FU Keith Hernandez, btw.

ETA: Titans upset but KC losing in the first round required plus not that good. Nice story Rams: offense didn't show up and incomplete pass late failed to make last two minutes exciting. Still, after last year's Super Bowl, Falcons deserve at least one year of shame.

Won't be blogging much until early 2018

Cell Phones Come to SCOTUS Again

Everyone love patent cases, but the big case so far (with the travel ban punted) might be the one on cell phone location (over 127 days!).  Cake is upcoming.

It's not surprising if the lawyer didn't want to do it, but overall logic does warrant at least tweaking third party doctrine (as Sotomayor noted in U.S. v. Jones, well deservedly). There was a lot of doubt from the justices on line drawing though the party [who for technical reasons might not even benefit but these cases aren't just about them] should be aware for both sides. Also, Gorsuch (who latched on to some "property" right argument that might help in some cases but sounds artificial and for which no one else was interested*) sounded like an smarmy asshole like usual. 

THAT the individual shall have full protection in person and in property is a principle as old as the common law; but it has been found necessary from time to time to define anew the exact nature and extent of such protection.

One is technically in "public" but like the original Brandeis/Warren article, "privacy" wants a liberal understanding that [as five justices -- no matter how Orin Kerr counts -- in Jones seemed to understand] guards against 24/7 monitoring that is "public" in only a very artificial way.  The Fourth Amendment, pace Scalia in Jones, has been repeatedly emphasized by SCOTUS to ultimately be about personal privacy ("persons" in right there). Surely, specific things are cited ["persons, houses, papers, and effects"] but personal rights are an overall concern. 

Again, we can take that too far, e.g., how some provisions are at least partially a matter of structure (the First Amendment as a whole was partially about giving states more power). The Fourth Amendment specifically invites balancing with the whole "reasonable" component though it also has certain fixed rules that are less flexible.  So, electronic eavesdropping might very well invade "property" (the old form a lot more) but at some point it would require a broader view of property.  For instance, property rights can include rules for seclusion. 

Nonetheless, quoting that law article, if "has grown to comprise every form of possession — intangible, as well as tangible" is the rule, what is really the limits of "property"?  "Liberty" can be deemed redundant. Likewise, the justices were right to be concerned about line-drawing and a bit too particular about congressional line-drawing being above that. There are certain basic lines (see also, "excessive bail") but statutory law can help clarify specifics.  The courts can also step in to help with the contours, including (a favorite of the Roberts Court) certain "limiting principles" that at times result in somewhat artificial limits to open-ended powers. 

24/7 monitoring for an extended period of time (that's vague, yes, but 127 days meets the test) is an unreasonable and even Rehnquist back in the early 1980s left that open to censure while upholding a placement of a primitive beeper without a warrant ["twenty-four hour surveillance of any citizen of this country will be possible, without judicial knowledge or supervision"].  I'm not sure why a basic rule here requiring a warrant with the usual exceptions like exigent circumstances doesn't work, but fine. There should be limits.  The same applies to the "third party doctrine" which even in 1970s application was suggested to have limits (concern about First Amendment interests vs. general business records; FN6). 

Prof. Kerr, an expert in this field, argued in an article some time back that over time judges have accepted an ebb/flow balancing to protect persons when rules no longer seem to work.  The breadth of the modern world in the area of communication warrants that here, especially since I think the dissenters even then had a point.  If a phone call is protected, a phone number if still fairly private in various ways -- it is why the government aims to obtain them really.  A "voluntary" surrender of privacy for specific reasons (to get phone service?!) is a ridiculous fiction.  Certain things we share for limited reasons, something the Court is more aware of when it involves medical matters (contra Rehnquist's dissent in Roe v. Wade where he argued an abortion isn't really "private" since a third party is involved).

Location is a bit harder than phone numbers, but at some point, yes, personal privacy warrants protection.  As noted in the oral argument, technology can pinpoint location to parts of the home.  Is reports you went to the bathroom "x" number of times not sensitive information?  That is true even if it is not at the home.  Privacy, as Lawrence v. Texas et. al. reminds, is to some degree protected outside the home.  A Star Trek-like ability to ping your location 24/7 would be a violation there.

The lines to be drawn will be tricky probably but such is the nature of the law in general. In the past, worrying about lines for breathalyzers wasn't an issue either, since they didn't exist.  And, cell phones change the situation there too since now phone warrants are easier to obtain. 

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* Scalia's opinion ruling on an unauthorized placement of a tiny tracking device on the car seemed overly formalist to a mixture of justices, even if not everyone would rely merely on that. I won't link, but other than Sotomayor's concurrence, we also have Kagan's in a case involving placement of drug dogs on a porch.  There is both the property interest involved and the general concern for privacy.  The latter helps wider concerns -- see, e.g., Griswold.

Gorsuch's reference seemed a bit forced to fit things into a certain "box," which people with his artificial view of constitutional line drawing will tend to do. Maybe, it was just a hypo. We shall see.

Thanksgiving

The basic idea of Thanksgiving is not purely our own (e.g., can find references to days of thanksgiving in the Bible) though we have specific things that are including the whole origin story that like myths tend to be has some truth, some fantasy. The whole pardon turkeys, even without Trump needing to take a potshot at Obama [link would be redundant], continues to be asinine. Many really don't like turkey anyhow. Needing to work tonight, I'm sympathetic. Okay with limited hours today, if holiday pay and flex time exists.

More Concern = More Need For Nuanced Responses

There has been a slew of accounts of sexual abuse of some sort (including a "#MeToo" campaign) and the Al Franken news suggests a need to balance accounts, some from some time back. For instance, he apologized for the photo, and it was wrong (and stupid), but a crude pose is different than groping her while asleep. Ditto the dispute over the bit. This includes looking at his history as a whole as well as other accounts including things said behind the scenes. Cf. Roy Moore. Or, various celebrity wrongdoers. A few "got to resign" comments lack perspective. Wrong doesn't mean a "nuclear option" response in each case.

Jets Suck, Giants Suck Much More

So, it has been an f-ing year. Anyways, Jets reminded people they are not good by losing to another not good team and the Giants reminded people they really suck by losing in sad fashion to a zero win team. Few days back a retired ball player died in solo flight. Years back, that happened to my uncle (by marriage). Find it easy to find connections these days, including in some fashion in personal life. Surely have my Trump family member(s) to bear.

2017 Elections

Democrat won in NJ governor's race, so the U.S. senator trial [jury contemplating now] a lot less stressful. The VA governor race, which many worried about, went well with House control up in the air based on a few nail-biters. Multiple trans people won nation-wide. Medicaid expansion in Maine. A progressive activist won a Philly DA race. Meanwhile, sanity in Notre Dame regarding birth control coverage. Roy Moore race next month!

NYC Votes

Low turnout in NYC, but tbh a bunch of low stress races here. In the 13th District, the second place winner in the primary got a decent protest vote even with all those MG campaign posters (god -- such overkill). I was actually supportive of a constitutional convention, but big loss there. Forest set-aside won narrowly; public official penalty measure unsurprisingly passed by a large margin. I wrote a bunch of write-in names for the "who are these people" judicial races. Continue to find that inane. Voting easy but no receipts.

SCOTUS Watch: Shadow Docket Time

Before possible full opinions, SCOTUS handed down two per curiams that amounted to more "shadow docket" AEDPA error correction, three liberal justices speaking separately to note on the merits the death penalty case has some juice. The potshot [comments] at one judge being involved in multiple cases is telling: out of probably thousands of cases, her popping up repeatedly is damn curious. As to AEDPA, one problem here is that it limits development of the issues, which might raise constitutional problems regarding the role of the lower federal courts [state courts still can decide] to flesh out the few cases SCOTUS decides.

ETA: A brief authored unanimous technical opinion was handed down. Oyez.com has opinion announcements up; Trinity Lutheran and Ziglar has strong dissents from the bench. This stuff should be on its own website.

Orphan Train

Sports Update

Last two games of the World Series were something of a disappointment (Chase Utley gets hit on the foot and it leads to enough for Verlander to lose, Astros go ahead 5 early and Dodgers offense blows various chances) but nice ending. This includes the young shortstop's marriage proposal to the beauty queen. Jets, after three annoying losses, dominate on Thursday vs. Bills. Optimist says four wins okay; others say they should have one at least one more. Giants off. Killer injury to Texans QB day after WS win. Had your moment Houston.

And Also: About Abortion had some interesting aspects but plodding/predictable style. Eh.