We’ve all heard and read about the fact that profiteers are stifling patents.  They buy up patents, not to encourage innovation, but to shake down people who come up with ideas they claim overlap with the patents that they’ve purchased (and that sit, unused, in their faults).  Frugal Dad came up with a charming graphic showing the problem:

Source: http://frugaldad.com

When I first saw the headline — “A $2.5 Million Libel Judgment Brings The Question : Are  Bloggers Journalists?” — I have to admit that I felt a bit queasy.  When I write something snide about President Obama, Harry Reid, Nancy Pelosi, or any of the other prominent Democrats I routinely criticize at this site, am I exposing myself to massive liability?  Well, probably not, because they’re public figures and we have enormous latitude to criticize them.  But what about a post I might write criticizing, not a political figure, but a local businessman.  Can he sue me . . . and win?

The answer, it seems to me, is that Mr. Businessman is just as likely to win against blogger as he would have been if, in the old days, I sent nasty letters to the editor, distributed flyers or otherwise widely and impugned his character.  If my statements are true, I win.  If they’re false, I lose.  I would have been at risk in the old days and I’m still at risk in the new if I choose to shout out lies from an electronic rooftop.

So why is the $2.5 million dollar libel judgment an issue?  Because the blogger in question sought to protect herself by claiming that she was a journalist, not a blogger.  She therefore contended that Shield Laws allowed her to hide her sources while successfully protesting her innocence in a defamation lawsuit.  When the judge said she wasn’t a journalist, bloggers got nervous.  After all, we bloggers consider ourselves a “new media,” providing information that the old media, usually for political reasons, often leaves on the cutting room or newsroom floor.  What’s unnerving is that, if we’re not journalists, even when we scrupulously present facts, we’re still at risk of litigation, something that has a very chilling effect even on the most honest writer.

As is so often true with legal cases, though, the details should be comforting — and this is true despite the fact that I think the judge committed a definitional error that must be redressed.  This case, though, is not going to be the one that makes correcting that legal error easy, because the facts really militate against the blogger.  By any standard, Crystal Cox, the defendant against whom the district court judge imposed the $2.5 million libel judgment, was not making any effort to conduct herself according to journalistic norms.  Instead, Cox was the journalistic equivalent of a vexatious litigant.

For those of you who have missed out on the joys of a vexatious litigant (“VL”), a VL is someone who uses the court system to dominate and harass enemies.  These people are often lawyers, and they will file in pro per suits (meaning that they represent themselves) against anyone who crosses their radar.  Since litigation is expensive, a perfectly innocent person might find himself targeted by a plaintiff who has dozens of cases going simultaneously, and who files hundreds of costly motions in each case.  The unwitting defendant can either settle immediately, even though he knows he’s being subject to judicial blackmail, or he must spend the money to answer the case and respond to all the discovery and motions.

While the judge in any given case may impose sanctions against the plaintiff, that’s an uneven remedy.  Eventually, though, if the plaintiff acquires a reputation around the courthouse, a judge can defang him by declaring him a “vexatious litigant” who can proceed in the Court system only with judicial permission.  Although it’s a draconian remedy because we are loath to deny people access to the civil court system, it’s still a necessary thing to do when someone uses the system, not as an instrument of justice, but as a tool for economic blackmail, humiliation and harassment.  As I noted, though, it’s a last remedy, not a first remedy, and a lot of people get badly burned before it goes into effect.

From everything I’ve read about Crystal Cox, her website, titled “www.ObsidianFinanceSucks.com,” was a one woman vendetta against a corporate Bankruptcy trustee and an individual employee, filled with hundreds of posts savagely attacking both of them.  Her claims against them, usually presented in the form of hyperbolic questions, rather than factual statements, accused them of fraud, illegal activity, theft, and just about everything else short of stealing lollipops from babies and using goats for impure purposes.  As the judge made clear in decisions written in both July and August, one would be hard put to classify Cox’s content as objective journalism.

Because Cox’s posts were so over-the-top, the judge concluded fairly easily that they couldn’t possibly be construed as anything other than pure opinion, which is protected under the First Amendment.  He was therefore inclined to dismiss the case against her.  One of her posts, however, had a gloss of journalistic objectivity and, more importantly, showed up at a site where it wasn’t published under the “ObsidianFinanceSucks” heading and where it wasn’t surrounded by dozens of other posts demonstrating that Cox has a monomania that leaves even her “objective” writing highly suspect.  It was in this context that the judge decided Cox wasn’t a journalist, and that her nasty post constituted good, old-fashioned defamation, akin to handing out a flyer in a shopping mall.

Where I differ with Judge Hernandez, although I think he made the correct decision regarding Cox, is in his effort to define objective journalism so as to deny Cox constitutional protection for her statements.  As far as I can tell, his definition puts most of our major media on notice that it’s at risk:

Cox tried to invoke the Shield Law, which allows journalists to protect confidential sources, but Judge Marco Hernandez ruled Cox was not a journalist and therefore not entitled to the protections. He wrote, “there is no evidence of any education in journalism, any credentials or proof of any affiliation with any recognized news entity or proof of adherence to journalistic standards such as editing, fact-checking or disclosures of conflicts of interest.”

While the New York Times, the WaPo, MSNBC and other traditional media sites can undoubtedly claim that their writers hold university credentials, it’s becoming increasingly questionable whether they subscribe to such traditional “journalistic standards . . . as editing, fact-checking or disclosures of conflicts of interest.”  Indeed, one of the things internet bloggers excel at doing is catching the MSM when it fails to follow those journalistic ethics (and one does wonder whether the MSM’s disdain for these basic requirements is something individual writers learn at those credentialed schools).

Given that the MSM so frequently falls very far short of what the judge considers to be ethical minimums, being affiliated with these “recognized news entities” in no way assures the reader that he can rely on the truth of the matter asserted in any given news report.  A reputable blog spot, one that rigorously edits, fact-checks and discloses, should qualify as journalism, and be entitled to all First Amendment protections, without having to pay lip-service to establishment conventions (journalism school, major media affiliation) that, in fact, do not provide any assurance that the content is honest, credible, complete or unbiased.

Since Cox strikes me as a monomaniac with a bee in her butt, I’m somewhat surprised that Eugene Volokh, who is one of the most reputable, insightful legal bloggers and new media journalists out there, is getting involved in this particular case:

Crystal Cox did not respond to our emails and phone calls seeking comment. It appears, however, she plans to continue to fight. She represented herself in the defamation suit, but now has legal help from UCLA Law School and blogger Eugene Volokh. He has taken the case pro bono in hopes of getting the decision reversed. Volokh has written about the First Amendment’s protection of the press, arguing it’s not solely intended for the media as an institution, but anyone doing the work of journalism.

Volokh is right as a matter of law, of course.   Judge Hernandez is simply wrong to define journalism to include only people who have trained in establishment schools and who write for establishment (i.e., Leftist) media, a bright line that would astonish and offend the Founders.

Based on what I’ve been able to glean from Judge Hernandez’s opinions, however, both of which quote extensively from some of the hundreds of posts Cox wrote for “www.ObsidianFinanceSucks.com”, Cox is the wrong defendant to use as a standard for expanding the definition of journalism to include citizen journalists writing at blogs.  Cox’s writing isn’t coherent, factual reporting, with full disclosure.  Instead, it’s a malevolent stew of opinion and hostility.  She’s a vexatious blogger, and a common law defamer, not a legitimate journalist.  Indeed, she’s a perfect example of bad facts making for bad law.  I’m just worried that, if Volokh pursues this, this bad law will be enshrined at an appellate level, rather than merely at the district court level.

This post tells the story of a case on which I worked.  It’s a true story.

Picture this: It’s 2001.  You live in California and you own a small business that consists of you and maybe three to five at-will employees.  Your profits are decent.

One morning, Jane, one of your employees, announces that she’s quitting, effective immediately, and stalks out.  You know — or think you know — your California law, which requires that, when an employee quits, you have her payment ready within three days of her departure.  (That would be Calif. Lab. Code § 202.) You therefore immediately prepare Jane’s final paycheck, covering the two hours she worked before she quit.

One day goes by, but no Jane.  Two days, but still no Jane.  On the third day, you actually drive over to her last known address to drop off the check, only to discover it’s a vacant apartment.  You head back to the office, check still in hand.  Jane didn’t ask that you mail the check to her, nor do you have a current address, so for the time being, you just hold on to it.

On the fifth day after quitting, Jane shows up, grabs the paycheck, and again disappears.  You breath a sigh of relief, thinking you’re finally done with Jane.  If only you knew, the story is just beginning….

A month goes by, and you suddenly get a notice from the California Labor Commissioner telling you that Jane is claiming that you violated California law.  Your crime?  You did not get Jane’s final paycheck to her within three days of her quitting.  Since you had the paycheck ready immediately, and her failure to receive it was solely the result of her own unavailability, you laugh at this charge, thinking you’ve got a slam dunk case.

You show up on the assigned day to argue your case before the Labor Commissioner.  The Labor Commissioner announces that the three day rule means the employee must have the money in hand by the end of the third day — regardless of either your efforts to pay her or her lack of effort to receive the money.  To punish you, the Labor Commissioner imposes statutory sanctions (or “waiting time penalties”) against you, and insists that you pay Jane an amount 27 times greater than the wages she was actually owed.

Shocked by the unfairness of it all, you hire an attorney, who tells you that you’re right — you complied with your statutory duty, and the Labor Commissioner erred.  The attorney tells you that this is indeed a slam dunk case, and that you should appeal it, which means filing an original action in Superior Court.  Sounds good to you….

The case goes to trial.  Jane is represented by the Labor Commissioner, so this is a freebie for her — the people of the State of California, through their tax dollars, are paying Jane’s attorneys fees.  The judge appears confused by the issues and eventually announces what he believes is a Solomonic ruling.  He holds that, despite the statute’s clear language — Calif. Labor Code §  202 explicitly imposes on the employer only the burden of having payment ready, not the burden of ensuring that the employee receives payment — you should have gotten the payment directly to Jane.  However (and this is where the Solomon part comes in) the judge will halve the sanctions award against you.

While miffed at the fact that you couldn’t get the judge to agree with you entirely, you still leave the Court with a light heart — after all, you got the original award against you cut by 50%, which must be viewed as a clear victory.  Au contraire, my innocent California employer.

In 2001 — when these events took place — the attorneys fee statute governing appeals from Labor Commissioner awards imposed attorney fees and costs against a party who appeared before the Court and was “unsuccessful in the appeal.”  (That was Calif. Lab. Code § 98.2(c), repealed.)  However, as of 2001, two California decisions had held that this facially-neutral language didn’t really mean what it said.

Instead, said the two cases, what that facially neutral language really meant was that, if an employee appealed a Labor Commissioner award and bettered his position by even a penny, he was deemed successful on the appeal, so that the employer would have to pay the employee’s (or, really, the tax funded Labor Commissioner’s) attorneys fees.  The contrary, however, was not true.  If an employer appealed a Labor Commissioner award and bettered his position by 99.9999%, but not by 100%, he was deemed unsuccessful.  He therefore still got to pay the employee’s (or, rather, the Labor Commissioner’s) attorney fees.

What this meant for Jane’s employer was that, even though she managed to better her position on appeal by 50% — she still lost!  She still got to pay the Labor Commissioner’s attorneys fees at fair market value.

The situation in 2001 was therefore as follows:  No rational employer could take the risk of an appeal from a Labor Commissioner award, since there was a huge chance that the employer, whether entirely or even partially correct, would still end up with a judgment requiring him to pay something, even a nominal something, to the employee.  (Judges hate giving employees nothing.) If that happened on appeal, the employer will be responsible for the oh-so-costly attorneys fees, fees that were usually far in excess of the underlying wage dispute.

And when you stop and think about it, this perverted reading of a facially neutral statute was a green light to the Labor Commissioner to do some nasty stuff.  Begin with the fact that Labor Commissioner employees are generally unsympathetic to employers.  This non-intuitive, twisted, backwards reading of a facially neutral statute gave these employees an incentive to ratchet up sanctions against employers to ridiculous amounts, because the Labor Commissioner employees knew that the employer couldn’t afford an appeal.  Even if the employer prevailed on the appeal by lowering the sanction to a more reasonable amount, the employer would still be impossibly burdened by the Labor Commissioner’s attorneys fees.

Keep in mind, too, that these attorneys fees were a complete windfall for the Labor Commissioner, since Commission attorneys are automatically paid by the State of California for their efforts.  And last I heard, when they receive attorneys fees from some hapless employer, the Labor Commissioners offices are not refunding the taxpaying citizens in that amount.

Bad as the above-described situation sounds, it actually got worse after 2001.  There was a brief, shining moment in 2002/2003 when the California Supreme Court, in a burst of profound rationality, said that courts couldn’t take a facially neutral attorneys fee statute, and read it to impose disproportionate burdens on employers.  (That moment of common sense was brought to you by Smith v. Rae-Venter Law Group (2002) 29 Cal. 4th 345.)  That was too good to last, of course.

Here’s the “got worse” part:  In 2003, the California legislature announced its explicit intention to overturn Smith v. Rae-Venter.  The current version of the fee shifting statute now gouges the employer in no uncertain terms: “If the party seeking review by filing an appeal to the superior court is unsuccessful in the appeal, the court shall determine the costs and reasonable attorney’s fees incurred by the other parties to the appeal, and assess that amount as a cost upon the party filing the appeal. An employee is successful if the court awards an amount greater than zero.”  (See Calif. Lab. Code §  98.2(c).)

There is now no possibility of another Smith v. Rae-Venter decision helping hapless employers.  The Legislature has declare in no uncertain terms that the employer can avoid paying the employee’s attorneys fees (read, “the Labor Commissioner’s fees”) only if the employer walks out of Court owing the employee nothing — and obtaining that outcome, especially in liberal courts in the Bay Area or L.A., is a pretty big risk for any small employer to take.  This means that employers simply have to swallow the cost when a greedy employee manages to get the ear of a Labor Commissioner who believes it’s fine to impose disproportionate sanctions against a hapless employer, so as as that sanction will benefit a “downtrodden” employee.

Why does this sad story matter?  It matters because this little bit of social engineering — unknown to most people — is driving business out of California.  I personally know of at least two businesses that have just packed up and moved to other states precisely to avoid these kind of hidden costs.  Those oh-so-clever judges misinterpreting the law before 2002, and the “compassionate” Legislature enacting unfair laws in 2003, all think their good intentions say it all.  They truly believe they’re insulating poor, downtrodden employees from the risk of attorneys fees.

What they’re not thinking about, though, is the fact that these employees will be even more downtrodden when businesses keep pulling out of California, leaving the State without enough jobs — and the government without enough taxpayers to run itself.

There’s a reason I’m telling this story today:  it’s because the problem I’ve described above is not limited to the state level.  The National Labor Relations Board has held that Boeing cannot build a plant in South Carolina:

In a stunning move well beyond the scope of their legal mandate, the Obama Administration appointee controlled National Labor Relations Board is suing Boeing Corporation for, get this, building a second production line for their new Dreamliner passenger plane in South Carolina rather than in Washington state.

[snip]

South Carolina is a right to work state whose voters this past November overwhelmingly amended their state’s constitution to ensure that a worker has the right to vote on whether they want to be represented by a labor union. The workers at the Boeing plant in South Carolina have also taken the bold step of booting out the union that represented them, effectively ending the International Association of Machinists and Aerospace Workers stranglehold on Boeing production.

Now, Obama’s NLRB is attacking Boeing’s job creation in South Carolina as “union retaliation” directly related to a 2008 labor strike which crippled Boeing’s production in Washington state.

Now that those state governments that are in thrall to unions and labor have made it virtually impossible to do business in State A, the federal government is upping the ante by making it illegal for a business to move to State B.  I’ll reiterate here what I often say:  The Left may call them corporate fat cats or “rich people,” but I call them employers.  When you make it impossible for them to do business, they’re going to leave.  And if you make it impossible to leave, they’re going to die on the vine, leaving both State A and State B without jobs.

Cross-posted at Right Wing News

The Bookworm Turns : A Secret Conservative in Liberal Land,
available in e-format for $4.99 at Amazon or Smashwords.

A lot of people look at laws that are hard to enforce and say, “let’s get rid of those laws.”  The three major recipients of this line of reasoning are drugs, prostitution and illegal immigration.  People ask, “Why criminalize these inevitable behaviors, especially since criminalizing them draws into the law enforcement net people who seem more like victims than bad actors?”

I happen to think that some behavior needs to be criminalized, because a society has to draw lines defining what its values are.  I won’t touch the drug question in this post, since I think it was well hashed out here in Don Quixote’s earlier post.  However, I would like to talk about prostitution and illegal immigration.  The first issue — whether we’re right to make prostitution illegal — seems to me to reflect two core values.  The first is respect for women.  We as a society refuse to allow women to be treated as pure sexual commodities.

Of course, in reality that principle teeters on the edge of a very slippery slope.  We allow pornography and Vogue Magazine, and sleazy TV shows and sex in movies, all of which arguably fall into the same category of female exploitation.  It’s hard to draw bright lines, because the relationship between men and women is always going to be sexualized.  More than that, women tend to do a lot of parading for each other, not in a sexual way, but in a boastful way.

As a perfect example of this last point, I urge you, if you can, to watch Chris Rock’s Good Hair, which examines the obsession so many black women have with avoiding the genetic legacy of “nappy” hair, opting instead to try to replicate straight, long, Anglo hair.  The link I included above advertises the video as “funny” and, in a way, it is.  Mostly, though, it’s tragic.  It turns out that black women who want Anglo hair have two choices:  dangerous chemicals or staggeringly expensive human hair weaves.  The irony with this Hobson’s choice is that the women’s real audience isn’t men or white people, it’s other black women.  I doubt white people notice black hair much.  (The last time I noticed was in the early 70s, when ‘fros were a political, not a fashion, statement.)  Even worse, the black men to whom Rock spoke hated the weaves:  they hated the time and money spent, and they hated the fact that weaves mean that black women will not allow anyone to touch their hair, nor will they engage in any activities that mess that precious hair.

My point about the black women’s hair is that, as is true with so many sexualized activities, those activities are actually aimed at women.  (Think:  fashion magazines.)  Prostitution, however, creates a direct dynamic between male and female that we, as a moral, Judeo-Christian culture, wish to avoid.  That we are frequently unsuccessful in that effort doesn’t mean we should give up trying.  This is a line — a moral, ethical and social line — that we draw to define who we are and what we value.  It sends a message to the people within our culture.  Those who argue that legalizing prostitution actually protects the prostitutes miss the point:  the whole institution is corrupt.  Legalizing it is a band-aid over a festering wound.  Certainly the British Muslims who turn British women into their sex slaves understand the real dynamic at work.  (Porn, by the way, isn’t much better.)

I can make much the same argument for doing away with the laws governing illegal immigration, all of which focus on the ills resulting from the immigration laws themselves:  (1) Mexicans are nice people; (2) children are the innocent victims of their parents’ illegal acts; (3) we need the labor and its wrong to turn workers into criminals; etc.  Those are all the details.  The bigger principle, however, is that a nation needs to protect its sovereignty, and that includes making decisions about who crosses its borders.  Defending borders is a use-it-or-lose it proposition.  Either you are a nation, or you are a patch of land over which people fight.  I’d prefer the former, as opposed to the anarchy of the latter.  With that overarching principle in mind, I’m willing to accept the challenges of enforcement, and the tragedy of divided families (a tragedy that wouldn’t happen, of course, if the parents hadn’t decided to gamble with their children’s lives).

I’m sorry if this is a bit of a wondering post, but my chaotic day has meant that I’ve been writing these six paragraphs over the last six hours.  I admit that I’m weaving in some random thoughts as they come along, but I’m hoping that y’all get my point — one with which you can agree or disagree.  I just feel relieved that I finally was able to sit down and wrap this thing up!

Life can be tough when you break the law.  The people who murdered Annie Mae Aquash discovered this fact when they were arrested and tried for murder 35 years after killing Aquash.  Sara Jane Olson, an SLA terrorist during the 1970s, discovered that when her quiet, suburban life in Minnesota was revealed and she spent several years in jail, despite the fact that she had three children.  My sister’s friend discovered this tough rule when he was hauled off to jail after unwittingly having had sex with an underage girl.  (That is, he wasn’t a predator.  Except for the absence of gray hair, the girl looked older than I do.)

Open today’s paper (I don’t care which paper; any paper), and you will read about someone who committed a crime and got hauled off to jail — and that is true whether the crime was old or new, whether the person acted knowingly or unknowingly, and whether the person had children or not.  As to that last, it’s worth noting that our American prisons are crawling with people who have left children outside.

How different is the story when the lawbreaker comes from Latin America, illegally, and drives around the streets of America, illegally.  That person, we are assured, is a law abiding citizen, other than all that illegal activity, and it’s just so unfair that such a person, not to mention his or her children, has to pay the for this illegal activity.  I’m not making up this maudlin outrage.  It comes courtesy of a front page story in today’s New York Times online (complete with illustration of one illegal lady hugging her daughter and, to amp up the emotions, her grown niece too):

It was just another suburban fender-bender. A car zoomed into an intersection and braked too late to stop at a red light. The Georgia woman driving it, an American citizen, left with a wrecked auto, a sore neck and a traffic fine.

But for Felipa Leonor Valencia, the Mexican woman who was driving the Jeep that was hit that day in March, the damage went far beyond a battered bumper. The crash led Ms. Valencia, an illegal immigrant who did not have a valid driver’s license, to 12 days in detention and the start of deportation proceedings — after 17 years of living in Georgia.

Read the rest here.  Depending on your political orientation, come prepared with either a handkerchief or a barf bucket.  The article’s push is to get driver’s licenses for illegal immigrants, because it’s so unfair that they’re currently out on the road, unlicensed, and running the risk that their illegal driving might reveal their illegal status.

This post, obviously, ties in with my earlier post about the DREAM Act which, while it takes into consideration the needs of children raised in this country, totally ignores the fact that it is an open incitement to illegal behavior.

Honestly, if one gets to pick and choose with impunity the laws with which one wishes to comply, why have laws at all?  This, by the way, is a familiar plaint on my part, since I routinely see judges, when ruling on a given case, decide who the underdog is and then proceed to rule in that party’s favor, regardless of the controlling law.

I’ve worked on a lot of those cases, and I’ll concede that my clients aren’t always nice or good, and the person on the other end is sometimes suffering a real hardship.  Having said that, though, on such cases, my client is totally within his rights under the law, and the other person doesn’t have a legal leg to stand on.  I’ll also concede that our common law has always had an “equitable” side that leans towards abstract fairness, but this ancient principle was always meant to flex the letter of the law, not ignore it entirely.

The problem with our modern approach, which views the law as an impediment to justice, is that it leaves us as a society in which there is no rule of law.  Our whole system of statutes and cases is just a pretense, since any given judge does what he or she wants at any given time.

Of course, without a system of laws, one inevitably descends into anarchy.  Laws may sometimes have harsh outcomes, but if they’re reliably enforced, people can actually plan to avoid those outcomes.  In a “legal” system in which the most pathetic person always wins, the only thing people need to do with their lives, whether in the world of contracts or the world of crime, is to plan on being pathetic losers.  You lose — you win!  This is no way to run a functioning, predictable, reliable, successful society.

Cross-posted at Right Wing News

UPDATE: Sadie sent me a link that’s perfectly apropos.

I found the following paragraph, culled from the San Francisco Chronicle, fascinating (emphasis mine):

From top congressional leaders to online activists, liberals have sought the wisdom of UC Berkeley linguistics Professor George Lakoff for years. They ask him to teach them to do something that conservatives traditionally have done better — frame complex policy into simple, digestible morsels that voters will swallow.

(The rest of the article is about Lakoff’s own contribution to the California ballot, which is interesting, but does not interest me right now.)

There are two thoughts underlying that emphasized language.  The first is that voters can only understand the most simple ideas; and the second is that Machiavellian conservatives (probably because they are themselves simple-minded morons) have figured out how to tap into that vast, stupid national psyche.  The one thing that doesn’t seem to occur to the Chron writer, or to the Democrats themselves, is that conservative ideas might succeed because there is an elegant purity to them, that all can easily grasp without sophisticated salesmanship and translation.

Not all good things need to be complex, at least in their ultimate expression.  The Ten Commandments (although there are actually more than the core ten) are a lovely example of moral clarity in few words.  The ideas are remarkably sophisticated, and were groundbreaking when Moses first announced them in a pagan world, but they are simply written and require little in the way of clarification to appreciate them:

I am the Lord your God, who brought you out of the land of Egypt, out of the house of slavery;

Do not have any other gods before me.

You shall not make for yourself an idol, whether in the form of anything that is in heaven above, or that is on the earth beneath, or that is in the water under the earth.

You shall not bow down to them or worship them; for I the Lord your God am a jealous God, punishing children for the iniquity of parents, to the third and the fourth generation of those who reject me,

but showing steadfast love to the thousandth generation of those who love me and keep my commandments.

You shall not make wrongful use of the name of the Lord your God, for the Lord will not acquit anyone who misuses his name.

Remember the Sabbath day and keep it holy.

For six days you shall labour and do all your work.

But the seventh day is a Sabbath to the Lord your God; you shall not do any work—you, your son or your daughter, your male or female slave, your livestock, or the alien resident in your towns.

For in six days the Lord made heaven and earth, the sea, and all that is in them, but rested the seventh day; therefore the Lord blessed the Sabbath day and consecrated it.

Honor your father and your mother, so that your days may be long in the land that the Lord your God is giving you.

You shall not murder.

You shall not commit adultery.

You shall not steal.

You shall not bear false witness against your neighbor.

You shall not covet your neighbor’s house; you shall not covet your neighbor’s wife, or male or female slave, or ox, or donkey, or anything that belongs to your neighbor.

It’s certainly true that one can refine on those core principles.  Murder can be situational.  Is it murder when one is engaged in war?  Is it murder when one is acting in self-defense?  Is it murder when one is in the grip of a delusion?  Stealing also might yield to situations:  Is it stealing if you’ve been imprisoned by the Nazis and are able to “obtain” food from one of those same Nazis?  While the nuances are pretty much endless, the core principles remain easy to follow.

The same is true for a lot of conservative core principles.  “The more power that vests in government, the less power there is for individuals.”  Again, you can debate situations in which it is appropriate to cede power to the government, but the underlying truism is easily expressed and helps guide conservative thinking without any fancy linguistic tricks.  “Government is a poor manager.”  Well, our own life experience shows us that.  We acknowledge that there are some things that government must manage (the military, national transportation, etc.), so the application of that principle is open to debate, but the principle itself is straightforward, and easy for the man on the street to understand.

One thing life in law has taught me is that the best arguments are invariably the ones that can be expressed in the simplest terms.  If I have to mass hundreds of little factual points and conclusions, and delicately weave them into some airy, gossamer fabric, I’m going to lose.  I’m adept at doing that, since I have a flexible mind and good writing skills, but even the best lawyer is going to have a hard time forcing a judge to bet on that tangled intellectual fabric.  If my argument, however, is a short, sweet, easy-to-understand amalgam of fact and law, I’ve won.

And here’s something for you to think about:  it’s no coincidence that the best writers on the Supreme Court are conservatives (Roberts and Scalia), while the worst writers are, and have been, liberals (Ginsburg, Stevens, Souter).  Liberals spend an inordinate amount of time trying to pretend that disparate ideas, false logic, unworkable syllogisms, bad law, and twisted facts can come together in a smooth, constitutionally whole fabric.

The conservative justices, however, since they begin each decision with the Constitution (itself a simply written document) as their guide, are easily able to bring facts and law together under that already logical umbrella.  They therefore repeatedly publish decisions that are well-written, comprehensible, and easy to sell to ordinary Americans, without translation through the Berkeley linguistic filter.

In other words, the problem doesn’t lie with liberal language, it lies with liberal ideas.  And if you don’t believe me look at Obama.  Liberals consider him to be the oratorical Second Coming of John F. Kennedy.  He has promoted his health care plan in 35 speeches, but has only succeeded in hardening voters’ dislike of government run health care.  It’s not how he says it, it’s what he says.

One of the lesser known, but very dangerous fronts, in the jihad war against the west is the Islamists’ habit of using our own Western laws against us.  Right now, a front in that particular battle is being waged in Canada, where McMaster University is suing Dr. Paul Williams after he wrote about the peculiar nexus between that institution, Islam, and terrorists.  You can read Dr. Williams’ side of the story here, at Right Truth.

One of the main reasons I’ve kept my politics under wraps (stating my views if confronted directly, but not engaging in heated political debate otherwise), is because I’ve been worried that it would affect me professionally.  In my neck of the woods, most of my potential clients had Obama bumper stickers on their cars and sang hosannas upon his election.  All of them are very nice people  (I wouldn’t work for them otherwise), but I’ve never trusted any of them enough to risk letting them know that I disagree with their political outlook.  I kept telling myself I was cowardly or paranoid, but then I’d look at the money they paid me, money that helps pay our expenses and fill our retirement accounts, and I’d figure a little paranoia and cowardice wasn’t so bad.

It turns out that my instincts might have been right.  Although I’m sure it wasn’t my clients who wrote to the New York Times‘ ethicist, it could have been.  It turns out that some lawyers are thinking that it’s okay to discriminate against conservatives, just as one might once have discriminated against blacks or Irish or Jews (h/t Above the Law):

While interviewing law students for jobs as paid summer interns and full-time associates for my firm, I noticed several had résumés listing their activities in the Federalist Society. Some of my partners have conservative views similar to those of the society, but I do not. These students’ politics would not affect their professional function, but my review is meant to consider their judgment and personality (though I don’t need to give reasons for the assessments given). May I recommend not hiring someone solely because of his or her politics? NAME WITHHELD, GREENWICH, CONN.

The Federalist Society incidentally, the one that gets this lawyer’s knickers in a twist, is not made up of rabid, Bible-spouting, gun-toting, racist, homophobics.  Instead, it is a highly intellectual legal organization dedicated to preserving the Constitution within the context of the legal profession.

To his credit, Randy Cohen, the Times’ resident ethicist, was horrified by the idea (although he still manages to take a swipe at the Bush administration):

You may not. If candidates can do the job, bathe regularly and work well with others, you should hire them. As you note, their “politics do not affect their function.” Is it your position that only people who share your politics should be allowed to make a living? It was odious when membership in the Federalist Society was all but required for some jobs in the Justice Department; it is no more appealing to make that affiliation a bar to employment at your firm.

What’s fascinating about the above interchange is that the lawyer, having written to the ethicist to seek his guidance, promptly ignored the guidance sought:

Believing that all the applicants were qualified, but able to hire only a few, this person recommended rejecting each member of the Federalist Society.

It’s exchanges such as the one above that confirm with me that I haven’t been paranoid.  Liberal lawyers are just as prone to discriminatory practices as are universities.  Speaking of which, I heard from a parent that his child had to go through a more rigorous admissions process at a major university because of his conservative politics — and, unsurprisingly, that same university couldn’t bring itself to say yes.  What was amazing was that there was nothing subtle about this.  They viewed this sterling young person with the same suspicion that you or I might give to a child raised in a terrorist enclave.

I was raised as a liberal.  I know liberal thinking:  conservatives are evil.  And really, if you had a law firm to run, would you want evil people working for you?  It’s hard enough to be lawyer without worrying about the devil in the office next to yours.

Incidentally, I don’t have a problem with firms making such decisions.  If they want to shut out the best and brightest legal minds, the market will eventually turn on these firms.  I do have a problem, however, when publicly funded universities and colleges, or publicly funded radio and TV stations, engage in the same discriminatory practices.  If you’re going to relieve me of my money through the brute force of government, you better pay lip service to my views.

For my birthday, my husband gave me an Amazon Kindle.  It’s a sensible gift for me, since I read voraciously and often find myself waiting around in various places because of carpools.  Since the Kindle fits in my purse, I always have something to read.

The only problem with the Kindle is the expense.  Hardback books are 50% off, but I would never pay $10.00 for a book.  Paperback books are barely discounted at all, and I would never pay $8.00 for a book.  So, I do three things:  I still haunt my library; I buy “disposabooks” at Goodwill (novels for about $1.39 each); and I download the free books that publishers put up at the Kindle site in hopes of sparking interesting in a writer.  (You can see what I mean at the Kindle bestseller page.)  A couple of weeks ago, I lucked out when I found a series of JAG Corp legal thrillers by a guy named Don Brown.

I’d never heard of Don Brown before finding his books, and quickly discovered why:  The books are Christian themed and are from a Christian publisher.  In other words, this is not a genre that would normally cross my radar.  Not being a Christian myself, I don’t seek out Christian literature.  The lure of free thrillers, however, was too much for me.

I just finished Brown’s first book, Treason, and am now reading his second, Hostage. Treason was an interesting book.  Brown’s writing is a little wooden, but no more than you’d expect from a first time novelist.  Despite the writing, though, there’s a lot to like about the books.  First, as a lawyer, I found the courtroom scenes and the description of trial proceedings interesting.  The twist of a military setting just added a bit of spice.  Second, I liked his lead characters, who are moral people (in large part due to the Christian element), and who grapple with legal situations familiar to all lawyers.  Third, I really enjoyed his abiding love for the Navy, which comes through in every word.  Even the uniforms delight Brown.

Mostly, though, I liked the book because of Brown’s honesty about Islamic terrorism.  Brown has no interesting in politically correct tropes about peace.  He recognizes that we are at war with a fanatical element in Islam, which in turn is supported by passivity and political correctness. In Treason, published in 2005, Brown showed himself to be especially prescient.  The plot involves Islamic members of the military who use their special access to commit acts of terrorism directly against the military — shades of Nidal Hassan.  Brown also grapples with whether Islamic terrorists who are engaged in guerrilla activities against the United States should be tried in regular criminal courts or in military courts.  That, too, could have been ripped out of today’s headlines.  It’s no surprise, given that his protagonist is a JAG officer that Brown sides with a military tribunal, but he also makes cogent arguments for doing so — arguments that could be made, and have been made, with respect to Holder’s/Obama’s insane decision to try KSM in New York’s federal courts.

So, if you’re looking for an easy read, military thriller, with strong Christian themes, I can definitely recommend Don Brown’s books.  They are fun, and they have a crystal ball element of prescience that I always appreciate.

UPDATE:  Just finished Hostage.  As I suspected it would be, it’s better than Treason.  From one book to the next, Brown’s writing became more polished and smoother.  The first book was a good debut effort, but Brown is now getting his writing chops.

Traditionally, in arguing cases to the court, there have been a very limited number of available types of legal authority:  cases, statutes, administrative rules, and law review articles (with the last being advisory only) have pretty much made up the universe of things the court needs to consider.  In this Age of Obama, though, there’s a new authority:  Obama himself.  Yup.  In an anti-Prop 8 lawsuit, the plaintiffs are citing an Obama speech as legal authority (emphasis mine):

An attorney for the couple said he will argue that the administration is on the wrong side of the case, in light of Obama’s latest comments.

“I’m not sure who the attorneys for the United States are representing,” attorney Richard Gilbert said.

Pressed by gay-rights groups to live up to his campaign promise to be a “fierce advocate” of equality for gays and lesbians, Obama denounced the 1996 law Wednesday while announcing limited benefits to the same-sex partners of federal employees.

“Unfortunately, my administration is not authorized by existing federal law to provide same-sex couples with the full range of benefits enjoyed by heterosexual married couples,” the president said. “That’s why I stand by my long-standing commitment to work with Congress to repeal the so-called Defense of Marriage Act.

“It’s discriminatory, it interferes with states’ rights, and it’s time we overturned it,” Obama said.

Obama also criticized the law as a presidential candidate. But as president, he was speaking with more authority - and his statement that the law was discriminatory appeared to contradict what his Justice Department argued only six days earlier in Smelt and Hammer’s case.

Now, one can certainly quote Obama’s statement as part of the argument section in a legal brief, but it’s apparent that the suing couple want to cite him as law.  Even the Chron, though, is not so sure, as it cites two law professors who point out that, as far as the workings of the court go, Obama just doesn’t rank with a statute or case precedent:

Two law professors had a different view, saying Obama’s statements were noteworthy but probably had no legal effect.

“I would say Obama was speaking in a nonlegal manner … more policy oriented,” said Vikram Amar of UC Davis. He said the president may have used “discriminatory” as a term of moral condemnation, while the Justice Department used a narrower legal definition to argue that the law did not violate anyone’s rights.

In a way, though, this lawsuit illustrates something kind of sad, which is the way in which supporters of gay marriage are trying to dig their idol’s feet out of the clay.

What I see when I read my “real me” facebook page (where a lot of my old friends are either gay or gay-friendly), is that many gays feel betrayed by Obama’s stance on gay marriage.  They’re unimpressed by his speeches about his own feelings on gay marriage, since his own government is actively continuing the Bush era policies.  Now that he’s president, Obama, despite setting up straw men left and right to maintain himself in the magisterial middle, is finding it hard to be all things to all people.