Nota Bibliothecae

SOPA and PIPA

2012-01-19T10:08:00.002-05:00

People who visited Google, Wikipedia or a number of other sites yesterday were greeted with severe changes to their usual Web browsing experience. These pages advertised their opposition to new proposed Internet piracy bills PIPA (Protect IP Act) and http://www.blogger.com/img/blank.gifSOPA (Stop Online Piracy Act) and encouraged their users to learn more about these proposed bills.

For those that did not take this advice and opportunity, the primary argument, in http://www.blogger.com/img/blank.gifa nutshell, is that these bills will defeat the original purpose of the Internet. Their goal is to attempt to stop the pirating of images, movies and other original works created by other people. While this is a laudable goal, which even the protesting sites respect, they feel these bills are overbroad and compare them to “taking a sledgehammer to something when you need a scalpel.”

An interesting example of this alleged overreach is provided here. To sum it up, an ISP can shut down a site based on a complaint that the site has “pirated” materials. According to the example, it does not matter how rough or dissimilar the work is, if it in any way simulates the work created by another, the site may be banned.

And, the alleged offending site has no recourse. United States Internet service providers are granted immunity for what they decide to pull from their service. Extending the example given above, a person’s personal family Web site could be pulled based on the fact that they have videos of their children singing copyrighted songs, no matter how bad their singing may be. And once pulled, the person cannot then seek recourse.

Like many actions, the intentions behind these bills are justifiable. But the wrong tools are being used. This “sledgehammer” has the potential to violate the First Amendment’s guarantee of freedom of speech and devalue the Internet entirely. There are ways to reach these goals without blowing up the whole infrastructure of the Internet.; SOPA and PIPA are not the right tools to do this.

The Supreme Court Authorizes a "Ministerial Exception"

2012-01-12T09:10:00.002-05:00

This week, the United States Supreme Court issued a decision recognizing a “ministerial exception” in relation to employment discrimination laws. Some believe that this is the Supreme Court’s “most significant religious liberty decision in two decades.” This ruling allows churches and religious groups the right to hire and fire their religious leaders without any type of government intervention.

Chief Justice Roberts conceded that employment discrimination is a very serious matter; however, this issue is apparently outweighed by the “interest of religious groups in choosing who will preach their beliefs, teach their faith and carry out their mission.” While the ruling created the “ministerial exception”, limited guidance was provided in how to apply this exception. Also, while this exception protects religious organizations from employment discrimination claims, it does not negate the possibility of criminal prosecution and does not affect any other protections put in place for employees of these organizations.

In his concurring opinion, Justice Thomas suggested that it is not the court’s place to determine who qualifies for this new exception, and instead it should be the religious organization’s responsibility to make such a decision. In another concurring opinion, Justice Alito stated that concentrating on the title of “minister” was too stringent as this is a term primarily used only in Protestant denominations; he suggested that this exception instead be extended to “any ‘employee’ who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith.”

While other protections remain in place for employees of religious organizations, this ruling, without any type of true guidance on its application, is problematic. For those that truly work as “ministers”, no matter their religious affiliation or actual title, the application of this exception is straightforward – people who lead their religious organization and/or performs what one would consider typical religious duties cannot bring claims of employment discrimination if they are terminated.http://www.blogger.com/img/blank.gif

However, this ruling has the ability to be overextended in cases where employees of religious institutions minimally serve as “ministers”. In fact, the case that http://www.blogger.com/img/blank.gifbrought about this ruling involved an individual who only served forty-five minutes per day serving in a religious capacity; the rest of her work day was performed teaching secular subjects. While there were other factors the court considered before extending this “ministerial exception” in this case, it remains uncertain what type of minimal service is required before a religious organization can be exempt from employment discrimination under this exception.

For the complete article from the New York Times, click here.

For the Supreme Court decision, click here.

Church v. State: Relgious Beliefs v. Government Contracts

2011-12-29T08:58:00.005-05:00

Yesterday, the New York Times published this interesting article regarding Catholic Charities being closed due to their unwillingness to consider same sex couples as potential foster care and adoptive parents. In order to receive government funding, the state is requiring that such couples be considered. According to the article, this is not the only ongoing battle between the church and state regarding their charities.

Catholic Charities are also fighting the requirement that “religiously affiliated hospitals, universities and charity groups cover contraception in their employees’ health plans.” Additionally, Catholic bishops are asking that their denial of a federal contract to provide aid to victims of sex trafficking be overturned; this program was denied based on the fact that the proposal did not provide referrals for abortion doctors or contraceptives for the survivors of sex trafficking.

Church officials claim that the adoption requirements are an “escalating campaign by the government to trample on their religious freedom while expanding the rights of gay people.” At the same time, same sex couples are being discriminated against by organizations their tax dollars support. The Church also acknowledges that they do not have a First Amendment right to government contracts, but they also feel that they have “a First Amendment right not to be excluded from a contract based on its religious beliefs.”

This issue is a difficult one, and can be easily argued from either side. To start with the government’s side, it seems fair and logical that their provision of federal funds to any organization can be conditioned upon meeting certain requirements. As in other non-religious cases, failure to meet these standards means the organization receives no or limited funds. Especially if those standards are applied to both non-religious and religious organizations, it is difficult to claim discrimination.

As for the Church, each of their battles brings up unique issues, some of which are easier to defend than others. To begin with, their choice to not provide medical coverage to employees working in "Catholic and other religiously affiliated hospitals, universities and charity groups" regarding contraception seems to be an interference with their employment policies. Most employers are given the option of what type of medical coverage they provide for their employees. However, the fact that these employees work for an organization funded by government grants does muddy up the issue.

Regarding the aid to victims of sex trafficking, the Church is providing a valuable service to these people. The issue regarding requiring referrals for abortions and/or contraceptives become s more convoluted however since the Church is asking for federal aid. On one hand, it seems that the government should support these programs, with or without the questionable referrals; on the other hand, as stated above, it is not unfair or unusual for the government to require certain conditions prior to granting aid. While the Church may feel that they have “a First Amendment right not to be excluded from a contract based on its religious beliefs”, if the government is requiring this condition of all organizations seeking to aid sex trafficking victims, then any claim of discrimination seems less likely.

Finally, the issue of the same sex adoption appears to be least difficult of these issues: the government is requiring Catholic Charities to consider same sex couples as foster/adoptive parents; Catholic Charities has decided they do not wish to consider these candidates; and, as a result, many of the Catholic Charities falling under this requirement are being closed. It appears in this instance that Catholic Charities realizes that their work in this area is taxpayer driven and as a result must adhere to government requirements. The government has given them the option to accept funds and consider same sex couples as potential parents, or go it alone; in this instance, the Catholic Charities appear to be resolved that they do not want to follow the government regulations and cannot carry on alone. While the government may not have expected this result, the government cannot require Catholic Charities to remain operational.

The 2012 National Defense Authorization Act

2011-12-15T12:03:00.005-05:00

Yesterday, it was reported that President Obama was prepared to sign legislation that would allow indefinite detention without trial for terrorism suspects. Previously, President Obama had indicated he would veto the 2012 National Defense Authorization Act, section 1031, but has reportedly changed his position on the law.

If this legislation is enacted, this will be the first time since 1950 that such indefinite detention would be authorized in the United States. In addition to authorizing such detention, this legislation also prohibits the transfer of any detainees being currently held at Guantanamo onto United States soil for any reason, and would limit the ability to transfer these detainees to other countries, even if they have been cleared for release.

At the start of Obama’s administration, he had stated that one of his goals was to permanently close Guantanamo as a prison for terrorist suspects, going as far as to signing an Executive Order as to this plan. However, the signing of this legislation will further extend the operation of Guantanamo where currently 171 detainees are being held.

Additionally, this legislation will require the United States military to take custody of some terrorism suspects. Some of these suspects may already be detained within the borders and being handled by federal, state, and/or local law enforcement. In debating this legislation, “several senior administration officials, including the Secretary of Defense, the Attorney General, the Director of National Intelligence, the Director of the FBI, and the Director of the CIA, all raised objections that this provision interfered with the administration’s ability to effectively fight terrorism.” Recent statistics seem to support this argument: in the last 10 years over 400 people have been prosecuted in U.S. Federal Courts for terrorism related offenses, while, during that same period, only six cases have been prosecuted in the military commissions.

Human Rights organizations have issues with this legislation, and their concerns appear to be valid. To start with, and most obvious, is that people can be detained for suspicion of terrorism without ever having a chance to stand trial. Without trial, it is plausible that many innocent people will be held improperly; no fact finding will be required and potentially no direct evidence will be required to hold these suspects.

Secondly, the enactment of this law contradicts what President Obama had promised at the beginning of his term. The closing of Guantanamo became a priority due to several issues with the site; there were allegations of torture, improper conditions and the fact that many detainees had be at the location, without trial or other investigation, for longer than what many thought was proper. This legislation specifically authorizes this indefinite detention, an issue which President Obama stated he would resolve.

Terrorism is an important issue that the United States must address. However, there are proven methods to do so without this legislation. Specifically, it is unnecessary for the military to take custody of suspects from agencies that are already set up and seemingly acting more effectively in handling these terrorism cases. The added cases the military would have to handle would only serve to make them less effective.

For the article and position of the Human Rights Watch, click here.

Obama Administration Takes Stand to Protect Gay Rights Abroad

2011-12-08T09:26:00.003-05:00

The United States government appears to be getting more serious about gay rights. On Tuesday, President Obama’s administration “bluntly warned the world against gay and lesbian discrimination.” Secretary of State Hillary Rodham Clinton made it clear to those in attendance, which included diplomats from Arab, African and other nations where homosexuality is considered a crime, that the United States “will use foreign assistance as well as diplomacy to back its insistence that gay rights are fully equal to other basic human rights. “

Mrs. Clinton likened the struggle for gay equality to that of women’s and racial equality. She specifically negated religious and cultural traditions do not excuse the type of discrimination homosexuals face, especially in countries “where brutality and discrimination against gay people is tolerated or encouraged.” Ms. Clinton went on to say that "gay rights are human rights, and human rights are gay rights," and "It should never be a crime to be gay." Apparently, many in the audience were not exactly pleased with Mrs. Clinton’s speech and left the room immediately after her speech was completed.

While President Obama’s administration is taking a stronger stance on this issue, no specific consequences were spelled out for countries violating these rights. And while President Obama is attempting to curb discrimination overseas, he has yet to back gay marriage. Many gay supporters find his failure to support gay marriage and the delay in repealing “Don’t ask, don’t tell” as disheartening; as such, some see this latest advocacy as an outreach to homosexuals, “a core Democratic constituency at home”, in order to garner their support in the 2012 Presidential election.

The protection of all human rights is of primary importance; as Mrs. Clinton states, it does not matter if one is gay or not, as human rights apply to all persons. It is admirable that the Obama administration is attempting to protect these rights in areas where homosexuals are considered criminals and are subject to government approved violence.

However, there is still much to address in the United States regarding gay rights. Homosexuals are much more than an important constituency that must be placated to earn their votes. Also, as Republican Presidential candidate Mitt Romney suggest, gay rights should not necessarily be the deciding factor for whether to provide aid to or interact with foreign countries; although specific consequences have not been enumerated, the reduction in aid and/or trade seem like likely candidates. It is hoped that this policy is much more than just a play for more support from homosexuals as the election draws nearer, but without further support for gay rights in the U.S. by the President and a lack of more specifics on this new policy, it is hard to see it as much else.

The entire AP article can be viewed here.

Technology Outpacing the Law?

2011-12-01T09:53:00.001-05:00

On Monday, the Associated Press published an interesting article describing how advancing technology (specifically Facebook and smartphones) have developed faster than the law can keep up with. Thttp://www.blogger.com/img/blank.gifhe specific issue in question is the ability of inmates to use said technology to harass and intimidate their victims.

Previously, for an inmate to intimidate potential witnesses or harass their former victims they would have to obtain the services from somebody on “the outside”. Now, with the increase in the number of smuggled phones coming into prisons, inmates can use these devices to harass and intimidate on their own. Since 2008, the number of telephones confiscated by the Federal Bureau of Prisons has doubled to 3,684.
Unfortunately, in many of these cases it is difficult to determine who is actually sending the messages. Even in the rare occasion where they are able to determine the inmate is the one sending the harassing messages, they often face no serious consequences.

Another issue is that these inmates have seemingly found gaps in existing laws. For example, in some states, “no contact” orders do not apply to persons once they are in custody. However, due to the increasing awareness of this issue some states are now starting to take action in an attempt to prevent this type of harassment. Oregon legislators passed a law preventing inmates from contacting their domestic violence victims from behind bars; California officials are beginning to work closely with Facebook to identify and delete inmate accounts. California legislators have also enacted a law which punishes corrections employees or visitors up to six (6) months in jail for smuggling in smartphone devices; inmates in California caught with smartphones can lose up to 180 days of early-release credit, although no additional time is added to their sentences.

This harassment and intimidation makes it harder for the legal system in that many witnesses may choose not to testify due to the fear of being harmed. Victims of inmates are in fear of what will happen to them when the inmate is released. Victims are also fearful that these inmates now have access to their victims’ information, including pictures and names of family members.

For some, the easy solution for the victims is to: 1) delete their Facebook account; 2) block the inmate from viewing their page and sending messages; and/or, 3) setting their Facebook page to the highest privacy settings. There is no doubt merit to these suggestions (for anybody wishing not to have their life made public via Facebook), although these suggestions are not 100% effective. Many of the more tech-savvy inmates will find ways around these safeguards, and there are still other ways for inmates to use their access to technology to harass and intimidate outside of Facebook. While all individuals need to take steps to protect their privacy to a level they see fit, states must also take steps to close loopholes in their laws and create more suitable consequences to deal with developing technology and its possible misuse.

"Obamacare" and the Commerce Clause

2011-11-17T09:16:00.002-05:00

On Monday, the United States Supreme Court agreed to hear arguments on the constitutionality of “Obamacare”, President Obama’s Affordable Care Act. Should this Act be found constitutional, it would require all Americans to purchase health insurance. While many issues have been discussed regarding this Act, the Supreme Court will be looking at an issue that will surely affect more than just the constitutionality of “Obamacare”: whether the Commerce Clause provides the authority to mandate that all citizens purchase insurance.

Article I, Section 8, Clause 3 of the United States Constitution provides Congress the power "to regulate Commerce with foreign Nations, and among several States, and with the Indian Tribes." According to the Christian Science Monitor, the real question for the Court to decide is whether choosing not to buy healthcare is an activity able to be regulated under the Commerce Clause.

The Monitor’s article, while having an obvious slant against “Obamacare”, does raise the important and relevant issue of the balance of the enumerated powers of the government against individual freedom; the more expanded the interpretation of these enumerated powers becomes, the stronger it can be argued that the government is infringing upon individual freedoms. This seems especially true in this case where the government is not forbidding an action while leaving multiple options open for individual choice, but instead is requiring action without leaving alternative options open.

As argued in the Monitor’s article, “If government goes from only regulating activity to also regulating inactivity, it will effectively go from telling individuals what they cannot do to telling them what to do.” By disallowing an individual from abstaining in purchasing life insurance, the government requires the individual to act in a way that reduces their individual freedom to choose.

No matter how one feels about “Obamacare”, the Supreme Court’s decision could possible expand the scope of the Commerce Clause. Although the Commerce Clause in the past has not been applied to inactivity, the Supreme Court now has the opportunity to settle this issue. If the Commerce Clause is expanded to cover the area of inactivity, it surely seems that the government’s power will be expanded at the cost of individual freedom.

Fallout from the Penn State Scandal

2011-11-10T09:37:00.001-05:00

This past Saturday,Jerry Sandusky, former Penn State Assistant Coach, was arrested on forty (40) criminal counts. At the time of his arrest, there were eight (8) known underage victims, with a possible ninth coming forth this past Tuesday. The alleged incidents are spelled forth in the Grand Jury’s Findings of Fact. In the aftermath of the arrest, Penn State has fired its President Graham Spanier and their Head Football Coach Joe Paterno, although the Pennsylvania Attorney General has indicated that Joe Paterno is not subject to the investigation.

According to the indictment, Mr. Sandusky had been sexually molesting young boys whom he came in contact with through a program he started called “The Second Mile”, a program dedicated to helping troubled boys. While this program was started in 1977, the first alleged contact did not occur until 1994. It was not until 1998 at the first suspicions of this illicit contact come forth, and it was not until 2002 that Joe Paterno is informed of such contact. Even after these suspicions and reports, the Pennsylvania Attorney General does not commence an investigation until early 2009. Although Mr. Sandusky retired from coaching in 1999, up until his arrest he maintained emeritus status which allowed him access to the locker rooms. An entire time line of events can be found here courtesy of The Huffington Post.

I think, and would hope, that all would agree that what Mr. Sandusky has allegedly done is completely improper. It is also fairly obvious from reading the reports and the Findings of Fact that Penn State acted improperly in failing to conduct proper investigations; as such, there does not seem to be uproar about the firing of Graham Spanier. However, the firing of Joe Paterno perhaps falls into a more gray area.
After the arrest, Coach Paterno indicated that he would retire after this season. However, the University’s Board of Trustees decided to end his coaching tenure Wednesday. In response to this, more than 1,000 students protested around the Penn State Campus. In their protest the students actually overturned a media van and damaged other property.

Students were quoted as saying things such as, “From a student's perspective, it's like where do we go from here? We no longer have a president. We no longer have a 45-year legacy,” and "I think it's only fair to let him (Paterno) ride out the season because this is the house that Joe built." (Both quotes from the Cleveland Plain Dealer.) From these quotes, it is obvious that the students were concentrating more on their history than on the current events.

Of all that has come out of this series of events, it is to me this protest that seems the most questionable. As stated, it is obvious that Mr. Sandusky’s alleged actions and Penn State’s handling of the situation were improper. The firing of Coach Paterno is understandable, but whether one agrees with it or not, the proper response is not the destruction of private property. Even more disturbing is the valuation by students of football over the handling of the deplorable events giving rise to Paterno’s firing, based on the fact that Coach Paterno is a “legend” and “celebrity”. Merely being a highly successful college football coach does not excuse Paterno from the scrutiny and discipline of a “normal” coach.

Law Banning Same Sex Adoption in Florida Ruled Unconstitutional

2010-09-23T09:17:00.002-04:00

On Wednesday, a Florida Court of Appeals ruled on a 30-year-old law related to the adoption of children by lesbians or gay couples. The Court found this law unconstitutional leading the Florida governor to state that the rule will not be enforced pending a decision to appeal the judgment.

The primary issue the Court had with this law is that gay and lesbian couples were allowed to serve as foster parents, but were not allowed to officially adopt children. Due to this inconsistency, the Court ruled that the law prohibiting adoption had no rational basis and violated equal protection rights.

As for now, the judgment affects the entire state and will go into effect immediately. However, the state has 30 days to appeal. At this point, members of the Florida state government have discussed appealing, but no final decision has been made.

This ruling appears to be another step in the right direction for equal rights independent of sexual orientation, at least for now. And while this is only a statewide victory, it may open the door for challenges to other state statutes banning adoption by same sex couples.

As the court acknowledges, allowing gay and lesbian couples to serve as foster parents but not adoptive parents. Instead of this blanket ban, gay and lesbian couples should be put through the same scrutiny as heterosexual couples wishing to adopt, with sexual orientation bearing no weight on the decision. It should be the fitness of the applicants and their ability to care for the child that should be taken into account; some same sex couples may still be found unfit based on these standards (just as some heterosexual couples are), but at least they will have been given a fair chance.

For the complete article, click here.

Proposition 8 Ruled Unconstitutional, For Now.

2010-08-05T09:37:00.001-04:00

Yesterday, a Judge in California ruled that Proposition 8, the same-sex marriage ban, was unconstitutional. In the ruling, the judge found that there was no legitimate purpose in disallowing same-sex marriages, finding that the voter approved measure was solely based on “unfounded stereotypes and prejudices”. In his findings, Judge Vaughn Walker stated that same-sex and opposite-sex marriages are exactly the same in regards to California law.

Many find this ruling to be a major victory for same-sex marriage rights. However, the constitutionality of the measure will be first decided by at least one Court before the victory can be declared final. However, should the 9th U.S. Circuit Court of Appeals uphold the California court’s ruling, this finding should then be precedent for all states under the jurisdiction of the 9th U.S. Circuit Court of Appeals, not just California.

The group that sponsored Propositon 8, Project Marriage, have already promised to immediately appeal yesterday’s ruling. Judge Walker has indicated, based on this promised appeal, that he will not make his ruling final until the appeal is decided. Both sides of the litigation are to submit written arguments by this Friday regarding the issue. With this appeal, and Judge Walker’s delay in finalizing his order, it appears that those wishing to enter into same-sex marriages in California may still have to wait.

For one of many articles on this issue, click here.

More Developments in Same-Sex Marriage Litigation

2010-07-15T13:55:00.002-04:00

Supporters of same-sex marriage rights are touting two recent rulings by the federal district court in Massachusetts as significant steps toward constitutional protection for state-sanctioned same-sex marriages. In two cases decided on quite different grounds, Judge Joseph L. Tauro ruled that the federal Defense of Marriage Act (DOMA), which prohibits the federal government from recognizing same-sex marriages, is unconstitutional. In a case filed by the organization, Gay and Lesbian Advocates and Defenders, the court found that DOMA violates the Equal Protection Clause by denying federal benefits to same-sex married couples while allowing benefits for opposite-sex married couples. The court found that there is no rational basis for treating same-sex couples differently than opposite-sex couples.

In a case filed by the Massachusetts Attorney General, the court found that DOMA violates the Tenth Amendment by encroaching on the authority of the state of Massachusetts to regulate marriage. This states’ rights argument brings a new dimension to the constitutional debate, which had been more focused on discriminatory treatment under the Equal Protection Clause.

Despite statements by President Obama during the 2008 campaign calling for DOMA’s repeal, the Justice Department argued in defense of the statute’s constitutionality. A Justice Department attorney acknowledged in court filings that the Obama Administration disagrees with DOMA as a matter of legislative policy, but nevertheless explained that the Justice Department is obligated to defend the statute in court. The Justice Department has not indicated whether it will appeal the court’s decisions to the First Circuit.

With the release of these decisions, many are even more eagerly anticipating a decision from a federal district court judge in San Francisco in the Proposition 8 case. At issue in that case is the constitutionality of Proposition 8, a 2008 ballot initiative that banned gay marriage in California. A trial concluded in June. Representing two same-sex California couples who want to marry, former solicitor general Theodore Olson urged the court to overturn the initiative, likening the case to Brown v. Board of Education and Loving v. Virginia, a case that overturned a Virginia statute forbidding interracial marriage. Whatever the outcome, an appeal is very likely, one that may end up in the U.S. Supreme Court.

Click here for a New York Times article on the Massachusetts cases.

Copyright Infringement?

2010-06-29T15:36:00.002-04:00

Looking for an entertaining yet informative legal resource to explore this summer? Columbia Law School and the UCLA Intellectual Property Project maintain a website called the Copyright Infringement Project, which provides information about U.S. copyright cases involving popular music. Visitors to the site can download audio files of songs in dispute, comparing derivative works and parodies to the originals. The site also provides the full text of court opinions about the songs and brief comments from the site’s authors. Visitors can access cases by decade or song title.

The cases involve songs from a wide variety of musical genres. Visitors can read how Michael Bolton’s song “Love is a Wonderful Thing” infringed the Isley Brothers’ copyright in a tune of the same name (Three Boys Music v. Bolton). Bolton’s infringement resulted in a $5.4 million jury award. Visitors can also find out whether Andrew Lloyd Webber’s “Phantom Song” unlawfully appropriated the melody of a folk tune (Repp v. Webber). A dispute involving the band ZZ Top and John Lee Hooker’s song “Boogie Chillin” is an interesting case about what constitutes the public domain (La Cienega Music Co. v. ZZ Top). Bridgeport v. Combs involves a dispute about whether Notorious B.I.G. unlawfully “sampled” part of a song written by the Dayton-rooted Ohio Players. And of course, visitors can read about the famously foul-mouthed rap ensemble 2 Live Crew and its parody of Roy Orbison’s “Oh, Pretty Woman” (Acuff-Rose Music v. Campbell). This one made it all the way to the U.S. Supreme Court, which sided with 2 Live Crew. Justice Souter’s opinion includes the complete song lyrics in the appendices. Other artists with cases on the site include Calvin Broadus (aka Snoop Dogg), Beyonce, Mariah Carey, John Williams (involving theme music for the movie E.T.), deceased Beatle George Harrison, and three cases involving the late, legendary King of Pop.

The site also has a section called “INPLAY” about ongoing or recently settled disputes. This section includes information about guitarist Joe Satriani’s claim that Coldplay’s popular song “Viva La Vida” infringed his copyright in his work “If I Could Fly” (Satriani v. Martin). Listen to the two songs yourself to compare. The parties apparently settled in September 2009. Click here to link to the site. Enjoy!

Legal Liability and the Gulf Oil Spill

2010-06-09T13:08:00.002-04:00

As efforts continue to halt the flow of oil following the April 20 explosion of the Deepwater Horizon drilling rig, questions continue to surface about who is legally to blame. Last week, Attorney General Eric Holder announced that the Justice Department had opened civil and criminal investigations into the matter. Mr. Holder did not indicate the parties under investigation, but likely targets include BP, the owner of the deep-sea well, Transocean, which leased the Deepwater Horizon to BP, Cameron, which manufactured the blowout preventer, and Halliburton, which performed services such as cementing.

Laws that the Justice Department could use to seek liability include the Oil Pollution Act of 1990, the Clean Water Act, the Migratory Bird Treaty Act, and the Endangered Species Act. Under the Oil Pollution Act, enacted in the wake of the Exxon Valdez spill off the coast of Alaska, parties can be held liable for oil removal costs as well as for economic and natural resources damage. The Justice Department will likely also investigate whether parties committed such crimes as false statement, conspiracy, or obstruction of justice in their dealings with federal regulatory authorities. In addition, state attorneys general may bring legal action under state law. Private attorneys have already filed civil lawsuits on behalf of individuals allegedly harmed by the spill.

It appears very likely that the Justice Department will file a civil suit. Under laws like the Oil Pollution Act and the Clean Water Act, the Justice Department would simply have to prove that an oil spill occurred and that a party such as BP was responsible. A court could order civil liability without a showing of intent. Under the Oil Pollution Act, the Justice Department could seek damages up to $75 million. This limit does not apply to oil removal costs or to damages resulting from gross negligence or federal safety violations. To prove a criminal case involving fines and potential jail time for culpable individuals, the Justice Department would have to show some degree of intent. A felony under the Clean Water Act, for example, would require that a party acted knowingly with regard to the creation of the spill, a difficult showing to make absent egregious conduct. A showing of negligence could result in a misdemeanor under the Act.

The actions of the Minerals Management Service, a division of the Department of the Interior that regulates offshore drilling, may also complicate matters. The MMS has received criticism for its dual role in both fostering and policing offshore drilling activity. If the MMS explicitly approved actions by parties such as BP with respect to the maintenance of the rig, the Justice Department will have difficulty proving criminal conduct. The Justice Department’s investigation could reveal as much about the need for regulatory reform as the feasibility of criminal prosecution.

Click here for a Washington Post article on this topic.

The First Amendment and Video Games

2010-04-29T09:08:00.001-04:00

On Monday, the United States Supreme Court agreed to hear a case challenging California’s proposed law to ban the sale or rental of violent video games to minors. The 9th Circuit Court of Appeals has previously held that this law violates minors’ First and Fourteenth Amendment rights and as such cannot be enforced.

Although the law was signed by Governor Schwarzenegger, it was immediately challenged by the video game industry on constitutional grounds. Representatives for the video game industry point to the fact that all video games are now required to be labeled with ratings; it is their contention that this rating system is sufficient for parents to properly deem what is appropriate for their children. Also, representatives claim that video games are protected forms of expression under the First Amendment.

Adding support for the industry’s claim is the Supreme Court’s decision last week which struck down a ban on videos depicting animal cruelty. Representatives for the industry claim that if such videos are protected by the First Amendment, then video games should be as well.

Supporters of the law point to studies suggesting a correlation between violent video games and aggression, anti-social behavior and desensitization to violence in children. However, the court found no proof of a causal connection between video games and this behavior, and dismissed the research.

Supporters also liken the ban on the sale of violent video games to the sale of pornography. And although the representatives for the industry point to the already established rating system, supporters of the law state that this rating system did nothing to prevent M-rated (mature) video game sales to minors.

With the improvements in technology, video games have greatly progressed from the days of Pong and the Atari 2600. Graphics are much more life-like, and as such the violence is much more realistic. As such, the concern about what minors are viewing is understandable. However, the outright ban of sales or rentals of these video games to minors seems a bit extreme.

Many of these video games have graphics comparable to live action movies; while movies are not interactive such as these games, viewing this type of violence in any form would seem to cause concern. Yet, the ratings system implemented by the MPAA does not receive the same type of scrutiny these video games are.

The ratings systems for both types of media do not seem to be the underlying problem. Children are able to view these movies and play these games because the ratings don’t work if parents ignore them. The video game industry is fulfilling their duty by warning parents about potential content issues; it’s up to parents, not the government, to decide whether they want their children to play these games.

For the full article, click here.

States Ready to Challenge Health Care Law?

2010-03-18T10:56:00.004-04:00

With the passage of the new health care Bill apparently pending, some states are starting to take preemptive measures in order to prevent enforcement of said Bill. On Wednesday, Governor C.L. Otter of Idaho signed the first to sign a law which would require “the state attorney general to sue the federal government over any such insurance mandates”.

Thirty-seven other states have similar legislation pending, mainly in Republican dominated states. Such measures are in direct reply to growing dissatisfaction with the health care overhaul proposed by President Obama. Support for these state laws appears to be based on claims that the health care Bill in question would unconstitutionally interfere with citizens’ rights to determine their need for insurance.

There are obvious issues with laws such as the one passed in Iowa. The most obvious issue relates to the Supremacy Clause of the U.S. Constitution, which makes federal law supreme to state law. Assuming the federal health care Bill passes, these state laws will then become irrelevant as these laws include language directly contradictory to the proposed federal law. Even if challenges were brought asserting the validity of the state law, it would be surprising to see any Court uphold these state laws under such circumstances.

Also, there is a question about whether a state is the proper party to sue regarding the passage of a federal health care law. Some feel that such a lawsuit can only be brought by a person who has been harmed by being required to purchase health insurance under this new law. Without a showing of harm, there may not be a valid basis upon which to commence litigation.

Still, Idaho’s governor seems confident in the effectiveness of the state law. With thirty-six other states considering similar laws, he believes that there is a “constitutional mass” that must be listened to. He feels this “constitutional mass” will be sufficient to ensure state laws such as the one just signed in Idaho will succeed.

Whether one is for or against this new health care Bill, the fact that 74% of the states are considering state legislation contrary to this proposed federal law is somewhat shocking. If such numbers are accurate, and there is no reason to think they are not, then the question of what the states want and what the federal government feels is necessary becomes a rather large issue. There is no answer to this contradiction unfortunately, but should make one think about the propriety of this federal health care law and the possibility of further such clashes in the future.

For the full article, click here.

Prom Cancelled on Account of Gay?

2010-03-11T09:56:00.003-05:00

In an AP article from today, it is being reported that a school in Mississippi has cancelled their prom due to the fact a female student asked permission to bring her girlfriend and wear a tuxedo. Gay rights have been a focal point the past several years, concentrating primarily on their rights to marriage; however, this article today reminds us that close-mindedness towards gay equality exists in other venues as well.

The Itawamba County school district's board cancelled the school’s prom citing “recent distractions”. The cause was never specifically attributed by the board as being due to this student’s request, but the school’s policy towards prom does state that dates must be of the opposite sex. District officials have stated they hope that parents will organize a replacement gathering for the students, which some see as merely a means by the board to avoid further discussion of the topic.

Upon requesting permission to attend the prom with a female date and wear a tuxedo, the student was told she could not wear a tuxedo or arrive together with and would be required to leave if the actions of her and her date made others feel ”uncomfortable”. The ACLU had set a deadline to change the policy on allowing same sex dates to the prom, which resulted in the aforementioned cancellation.

Even for a small rural town it is difficult to understand how a school board could see the act of two females attending prom together to be “distracting” or make others feel “uncomfortable”. Even if one is wearing a tuxedo, it would be hard to imagine that the female requesting this permission has been “hidden” from her classmates previously.

The student could have foregone asking permission and just shown up in a tuxedo with her date, causing a bigger “distraction” and making more people “uncomfortable” at the dance; however, she attempted to smooth things over beforehand in an attempt to prevent such issues. The inclusion of the ACLU admittedly may add to the feel of a “distraction”, but their presence would not have been required if this outdated rule was not still in place.

Some of the comments (submitted by on-line readers) at the end of the article are worrisome in that they may actually reflect the thinking that is going on in this situation and other gay rights fights across the country. I hope the sarcasm in some of these posts merely failed to translate on-line, but if not these statements blaming the “special individuals”, who do not have “healthy minds”, for pushing their “special needs” upon others and suggesting she forego her prom instead of letting her lifestyle ruin everybody else’s fun harkens back to a time when homosexuality was still classified as a mental disease. Statements and issues such as this make one realize how far there is left to go in the way of equal rights for all, in so many areas of life.

First Amendment v. the Patriot Act

2010-02-11T09:24:00.005-05:00

The United States Supreme Court will soon hear a case which will hopefully clarify the relationship of a person’s First Amendment rights and federal anti-terrorism laws. Specifically, the Court will decide on the constitutionality of the section of theUSA Patriot Act which prohibits the provision of “material support” to organizations classified by the government as being terrorists.

In the cases of Holder v. Humanitarian Law Project, No. 08-1498, and Humanitarian Law Project v. Holder, No. 09-89, Ralph D. Fertig, President of the Humanitarian Law Project and Civil Rights lawyer, wishes to provide mediation services to a Kurdish group in Turkey. He and his group wish to work with this group in order “to try to convince them to use nonviolent means of protest on the model of Mahatma Gandhi and Martin Luther King.”

However, under the “material support” clause of the Patriot Act, even acts of peace and assistance aimed at these terrorist groups are prohibited. Douglas N. Letter, a Justice Department lawyer, stated that it even “would be a crime for a lawyer to file a friend-of-the-court brief on behalf of a designated organization in Mr. Fertig’s case or ‘to be assisting terrorist organizations in making presentations to the U.N., to television, to a newspaper.’”

Opponents of this ban compare it to McCarthyism, with many urging the Court to “remember the lessons of history.” Many claim that this ban violates a person’s freedom of speech and prevents people from “promoting lawful, nonviolent activities”. They argue that “human rights advocacy and peacemaking” are protected under the First Amendment.

The Appeals Court found that “the bans on training, service and some kinds of expert advice were unconstitutionally vague.” Still, the Court upheld the bans on any advice or service based on scientific or technical knowledge. The Supreme Court will hear arguments on February 23.

This is yet another example of how the fear of terrorism is being used to infringe on citizens’ rights. It is understandable that the government is attempting to prevent further terrorism in our country by stopping it before it happens; however, the proper way to do this should not involve violating Constitutional rights.

Especially in cases such as this, where any “material support” would be to quell future threats of terrorism, it is hard to see why Mr. Fertig’s First Amendment rights should be denied. If the true goal is to prevent further terrorist attacks, then laws should not be put in place that prevents such abatement.

For the full article, click here.

The Beginning of the End for "Don't Ask, Don't Tell"?

2010-02-04T09:39:00.002-05:00

Earlier this week it was announced that “the military will no longer aggressively pursue disciplinary action against gay service members whose orientation is revealed against their will by third parties”. This apparently is the first step towards completely repealing the “don’t ask, don’t tell” policy.

A committee will be formed to investigate how best to integrate gay men and women into the military. Issues such as the propriety of allowing gays in the military to exhibit “their sexual orientation on the job” need to be discussed before the policy is repealed. Some claim that proper integration may take several years, based on dealing with issues such as this.

Some gay rights group leaders fear that this process will be dragged out over an extended period of time. They fear the potential of overly long grace periods and an overly lengthy process. Advocates had wanted President Obama to take unilateral action rather than pursue Congressional legislation; however, with the issue being placed before Congress gay rights advocates will need to continue to pressure Democrats to repeal this policy.

Repealing “don’t ask, don’t tell” is long overdue. Singling out gays and lesbians and preventing them from serving in the military (unless they hide the fact they are gay) is improper discrimination by the government. For those willing and able to serve their country in the military, their sexual preference should not be an issue; if they are qualified to do the job, they should be given the chance without making them hide who they are.

It will be interesting to see how protracted this process is. To a person who has never served in the military, some of the issues that “need” to be discussed appear to be rather trivial; even if they are not allowed to exhibit “their sexual orientation on the job” it is hard to imagine that many in the military don’t already realize they are serving with gay and lesbian soldiers without complaint. Once again, it appears that this is an outdated policy being enforced by those with outdated ideals; it would appear now is a good time to repeal this policy and let everybody serve as equals.

For the full article from the Washington Post, click here.

Study Reveals Privacy Violations by FBI

2010-01-21T09:18:00.004-05:00

A study released yesterday documents the use of nonexistent emergencies by the FBI to improperly obtain telephone toll information. Between 2002 and 2006, it is reported that more than 700 such demands for information were made.

Part of the issue with such violations appears to be connected to the fact that the FBI and employees for three telecommunications companies actually shared office space. With the sharing of this office space, many of these telecommunications employees were seen as serving as members of the FBI.

Such emergency letters stopped being used in 2006 after some of these issues were discovered. Still, some see this as proof that the Patriot Act requires changes. The Patriot Act, set to expire next month, authorizes the FBI to send letters to phone companies and banks requesting information. However, with evidence of these improprieties, some are uncertain about whether such procedures as they currently exist are proper.

Over the past several years, issues of privacy have risen to the forefront of public concern. With the institution of the Patriot Act, many of these fears were heightened even further. With reports such as this one released Friday, many of these fears are now being justified causing many to further worry about how private their lives really are.

Unfortunately, this is not a unique case of improper privacy intrusions by the U.S. government. The government justifies their practices with the even greater fear of terrorism; they claim that their procedures are in place to weed out potential acts of terrorism. Such safety requires some intrusions, but these intrusions seem to be growing and becoming more egregious as time passes.

With this instance, it is perhaps even more troublesome as the FBI actually had procedures in place that they willfully violated. According to the article, these violations occurred at several levels of the FBI, not just the lowest level. Granted, these violations have apparently now been reigned in, but the fact they happened in the first place is worrisome.

For the complete article, click here.

Supreme Court Disallows Broadcast of Proposition 8 Hearings

2010-01-14T09:07:00.003-05:00

In a follow up to last week’s entry, the United States Supreme Court ruled yesterday that the Federal Court in San Francisco cannot broadcast the Hearing regarding the constitutionality of Proposition 8. “The court issued an unsigned opinion that said lower courts had not followed proper procedure in approving plans for the broadcast.”

The court cited to arguments of those who claim such a broadcast would intimidate, and possibly lead to physical harm of, witnesses, stating that “While applicants have demonstrated the threat of harm they face if the trial is broadcast, respondents have not alleged any harm if the trial is not broadcast." However, in the end the majority denied the right to broadcast on procedural grounds. In doing so, the majority states that they are not ruling on the propriety of broadcasting such Hearings if the proper procedures are followed.

In a dissenting opinion, Justice Breyer, joined by Justices Sotomayor, Stevens and Ginsburg, writes that the majority identifies “no real harm” that would result from this broadcast. Furthermore, the dissent argues that the potentially at-risk witnesses have not asked for any type of Court intervention. All the witnesses set to testify, “are all experts or advocates who have either already appeared on television or Internet broadcasts, already toured the state advocating a 'yes' vote on Proposition 8, or already engaged in extensive public commentary far more likely to make them well known than a closed-circuit broadcast to another federal courthouse." As such, the dissenters opine that the majority’s ruling is “unjustified”.

As I stated last week, I believe that the postings of these Hearings on YouTube (or any other video sharing site) have benefits that outweigh any negatives. As the dissenters state, the information regarding witnesses is already available through other sources, and none of them seem as worried about potential harassment as the arguments seem to set forth.

If there truly are procedures that were in place and not followed regarding the broadcast of this Hearing, than the Supreme Court’s ruling is easier to understand. It is no less proper to allow special circumstances to permit the broadcasting of this Hearing than it is to allow special circumstances to prevent the broadcast. It is no less proper to allow the broadcasting of a controversial Hearing through “special procedures” than it is to allow unfounded potential outcomes to disallow the broadcast. It is unfortunate that this Hearing will not be made available for viewing, but it would be improper for an exception to be made based purely on the subject matter and public interest in the case.

For the full article from the Washington Post, click here.

Proposition 8 Trial to be Made Available on YouTube

2010-01-07T09:15:00.002-05:00

In California, Courts continue to hear challenges to Proposition 8. Next week, the U.S. District Court in San Francisco is scheduled to hear this latest challenge; however, a new twist has been added to this hearing. The trial will not be broadcast on television, but Chief U.S. District Judge Vaughn Walker ordered that the hearing be recorded and made available on YouTube.

This is the first time a federal court in California has issued such an order, and this order has given rise to further controversy. Primarily, attorneys for the sponsors of Proposition 8 fear that allowing people outside the courtroom to view the trial will intimidate witnesses. It is already alleged that some supporters of Proposition 8 are being subjected to harassment, and it is feared that any witness that testifies in favor of the measure will be forced to endure the same. Even with the Judge’s discretion to hide witness faces or alter voices on the YouTube posting, attorneys for these supporters fear their witnesses will be subject to intimidation.

However, the Judge reasoned that this issue is of such wide interest to be ideal for the Court’s pilot program of posting such trials. Additionally, most of the witnesses will be campaign officials or academic experts accustomed to speaking in public. Attorneys for the couple challenging the measure feel that court records and proceedings should be public property, and as such support the videotaping of the trial.

The idea of providing video coverage, either live streaming or later posting to a site such as YouTube, is exciting in that people who are interested can actually see what is happening instead of just having to read accounts from people on hand. While television coverage has been available for other courts in the past, it is rare for a federal court to allow viewing of the proceedings. With programs such as this in San Francisco, the mystery surrounding these proceedings can now be exposed, allowing the public to truly understand what is happening in cases of interest such as this.

However, when broadcasting these trials, there is always the interests of the witnesses that need to be protected. It is of no surprise that witnesses supporting Proposition 8 are fearful of harassment based on their testimony. With the use of video broadcasting, even more people will be aware of who these supporters are, leading to greater potential for harassment. Blurring faces or distorting voices will not solve the problem 100% either; viewers will still be able to associate witness names with their actual testimony. As such, it is necessary that issues such as these be considered when deciding whether to allow outside viewing of a trial.

In the end though, the benefits of posting video of this trial seem to outweigh the negatives. There is no doubt that this is an issue of great public interest. Also, with the majority of witnesses being accustomed to public speaking, the addition of video cameras in the courtroom should not be as distracting to them. While there may be some additional harassment of witnesses supporting Proposition 8, it is presumed that much of this trial and the proceedings will be made public record, with or without video of the trial; the addition of video will merely facilitate access to this information that will already be available in the court records.

For the full article from the San Francisco Chronicle, click here.

The trial will commence Monday; once video of the trial is available, it will be found here.

NY Senate Denies Same Sex Marriage

2009-12-03T10:44:00.002-05:00

Yesterday, same sex marriage rights were dealt a blow as the New York State Senate decisively rejected a bill that would have allowed such nuptials. Voting 38-to-24 against the bill, this denial of rights signals a political shift away from same sex marriage rights.

Prior to the vote, supporters of the bill felt they had anywhere from 26-35% of the Senators who would vote in favor of these rights. Senators considered “politically vulnerable” also voted against this bill. However, all Republicans voted against the Bill, as well as most members from upstate New York and Long Island. Support for the bill was primarily found to be from African American and female Senators, as well as from those representing New York City and Westchester County.

On the floor, all but one person speaking about the bill did so in attempts to have it approved. Aside from the state’s Roman Catholic bishops, who lobbied for the Bill’s defeat, most opponents of this bill “remained mostly silent”.

Republican supporters of the bill claimed that they had a deal with Democrats where only a handful of Republican votes for the bill would be required in order to ensure passage; however, when it became apparent the bill would not pass, even these supporters failed to vote for the bill’s passage. Some supporters of this bill claim that a number of Senators exhibited “political cowardice”; having stated support initially for the bill, they quickly changed their votes once it became evident the bill would not pass. It is claimed that this issue became too “politically freighted” for these Senators to support if they could avoid it.

Senators voting against the bill claim that the constituency is more worried currently about the economy and were not ready for a change in the definition of “marriage” at the present time. With the current economic condition, some feel that the majority of New Yorkers are too focused on employment and government issues to care enough about a same sex marriage bill. With this defeat, it is expected another such bill will not be viable until 2011 when a new Legislature takes office.

It is true that the economy and government spending are a huge concern to voters everywhere; but, approving same sex marriage affects neither of these areas. Same sex marriage in no way requires increases in government spending and does not affect the availability of employment.

Also, the vote being affected by “political cowardice” is troublesome. Senators have every right to change their vote up until the time it is actually cast, but to do so because they don’t think anybody else is going to vote with them Is problematic. If these Senators who expressed support for the Bill prior to the vote truly believed in same sex rights, then no amount of “peer pressure” should be sufficient to change their minds; if instead they gave support without actually meaning it, then there is the problem of trust and honesty of these politicians by their voters and other lobbying groups.

For the full article from the New York Times, click here.

Ohio's New Lethal Injection Policy

2009-11-19T08:46:00.001-05:00

With the debate continuing regarding the cruelty and potential unconstitutionality of the current lethal injection procedure (a 3 drug “cocktail”), Ohio has become the first state to switch from the controversial “cocktail” to a single drug. Although state officials state that this change has little to nothing to do with the national debate, Ohio’s action may persuade other states to follow suit.

According to officials, this change in procedure is due to a failed effort in September to execute an inmate. The new procedure will call for the injection of anesthetic into the veins of the prisoner in an amount that should kill the person. If this does not work, or the veins of the inmate (as in the case of the failed execution in September) make the injection of anesthetic unsuitable, two drugs will then be injected directly into the prisoner’s muscles.

Terry J. Collins, director of the Ohio Department of Rehabilitation and Correction, has stated that “We figure we’re going to get sued whatever we do with the death penalty.” However, he claims that the new procedure, including the backup method, will be one that works. Additionally, by remaining with an intravenous method as the primary manner and switching to a single drug makes litigation and opposition from death penalty opponents less likely.

By retaining the intravenous method, Ohio officials are also implicitly saying that they don’t feel this method is cruel or unconstitutional. However, Ohio is one of few states that has a law which explicitly guarantees prisoners a quick and painless death; the use of the three drug “cocktail” did not always ensure such results as it had the potential to cause excruciating pain.

The United States Supreme Court has previously ruled that execution procedures similar to those previously used in Ohio were constitutional, as the method employed is not required to avoid all risk of pain. It is specifically Ohio law that “demands the avoidance of any unnecessary risk of pain and, as well, any unnecessary expectation by the condemned person that his execution may be agonizing or excruciatingly painful” which has helped lead to this change. As such, other states may not so readily follow Ohio’s lead in changing their death penalty procedures.

Still, change needs to start somewhere. With Ohio acting as a guinea pig for change, other states may eventually be encouraged to follow based on the success or failure Ohio has with these new procedures. Other states will be able to tinker with their procedures based on the results in Ohio in order to arrive at the most efficient and least cruel methods for execution. So, while changes nationwide may not occur overnight, hopefully Ohio’s first step towards reform will cause other states to rethink their procedures over time.

For the full article from the New York Times, click here.

Life Imprisonment Without Parole for Minors

2009-11-12T10:58:00.003-05:00

On Monday, the United States Supreme Court heard arguments about whether sentencing minors to lifetime imprisonment without the possibility of parole violates the 8th Amendment to the United States Constitution. Two men who were convicted in Florida as minors argued that such a punishment is cruel and unusual.

Attorneys, in response to Justice Roberts’ inquiry as to where the 8th Amendment distinguishes based on age, argued that the Court in 2005 ruled it unconstitutional for any person under the age of 18 to be executed under the death penalty. Roberts seemed unconvinced however, answering that “death is different”. Still, those claiming violations of the 8th Amendment argued that the 2005 ruling not only ruled that “death is different”, but that minors are different as well.

Justice Kennedy echoed Justice Roberts concern in asking, “Why does a juvenile have a constitutional right to hope, but an adult does not?" To this, attorneys claimed that minors are not yet fully developed, and that they still have a chance to reform. Attorneys claimed that these minors should not be held to the same level of culpability as adults.

Justices Antonin Scalia and Samuel A. Alito Jr., moving past the distinguishing characteristics of minors, claimed that this punishment was about retribution for serious crimes. Whether these crimes are perpetrated by adults or minors, the Justices claimed that society has a right to justice. Justice Alito went on to recall a number of offenses committed by minors that were "so horrible that [he] couldn't have imagined them if [he] hadn't actually seen them." He claims that such crimes should not be excused or the seriousness diminished, as well as the punishment, just because they were committed by minors.

The Justices still seem divided on this issue, making it all the more uncertain of the final outcome. Justice Ginsberg seems to agree with the attorneys representing the fact that minors are still developing and have a more likely chance to reform; Justice Sotomayor seemed troubled by the fact that there is no minimum age at which a minor could be imprisoned for life without an opportunity for parole.

As Justice Roberts pointed out in the case, “death is different”. But to imprison these people from the age of minority for the rest of their life with no chance of parole may be viewed as a quasi-death. To imprison these minors in such a way gives them no chance for a true future and also no reason to reform. Without the hope of an opportunity to one day be released, there is nothing for these minors to look or forward to or work towards.

Justices Scalia and Alito are also correct in that a large part of the justice system is about retribution for heinous crimes. Justice is one of the primary goals of our judicial system. However, one of the primary goals of the penal system is for reform. Minors imprisoned at the age of 13 are still developing and have a chance to reform; however, once again, without an opportunity for parole, they have no reason to seek reform, or even if they do they will achieve no benefit (other than internal) from such reformation. An opportunity for parole for these minors would provide them with hope, while still allowing a board to determine whether they have actually been reformed or not. By giving them this opportunity, it does not guarantee they will be paroled, but will reward those who truly have changed.

For the full article from the Washington Post, click here.

For more information on Sullivan v. Florida, click here.

For more information on Graham v. Florida, click here

The Extent of Prosecutorial Immunity

2009-11-05T10:04:00.003-05:00

Yesterday, the United States Supreme Court heard arguments regarding the reach of prosecutorial immunity. The Court is being asked to decide whether prosecutors can be held liable for actions leading to wrongful imprisonment through coerced testimony and fail to provide all relevant facts.

In 1978, Curtis W. McGhee Jr. and Terry Harrington were convicted of murdering a security guard who had previously been a police officer in Council Bluffs. The prosecutors in the case, Joseph Hrvol and David Richter, relied heavily on the testimony of a 16-year old witness; however, this witness had originally identified other suspects and originally reported incorrectly to police on several key aspects of the crime.

In 2003, McGhee and Harrington were released from prison after it became known that the prosecutors failed to reveal the fact that they had initially identified another individual as the suspected murderer. The individual in question had actually been seen near the crime scene, with a weapon similar to that used in the crime, and failed a polygraph relating to the crime. McGhee and Harrington also alleged that prosecutors had coerced witnesses into giving false testimony. These witnesses later recanted their testimony regarding the crime.

Prosecutors claim they need unqualified immunity in order to ensure their ability to perform their job functions properly. Prosecutors claim that this immunity needs to apply to trial work, as well as work performed prior to charging a suspect. Without such immunity, there is a fear that prosecutors would constantly be sued by convicted criminals.

McGhee’s and Harrington’s lawyer argued it unfair that police officers could be held liable for their pretrial wrongdoings, but prosecutors could not be. He also argued it inconsistent that prosecutors only have limited liability for violating a suspect’s Constitutional rights before trial, but could not be sued for using any manufactured testimony in court.

Prosecutorial immunity makes great sense in most instances. Every time a prosecutor is successful in his or her case, they do not want to have to worry about being sued. They must be able to rely on witness testimony when presenting their cases, and should not be held accountable for any wrongdoing they have no place in procuring.

However, in this case, the argument is that the prosecutors were the ones who hid evidence and aided in creating false testimony. They did not present a witness in good faith that later turned out to be lying; instead, they proffered a witness who had provided incorrect facts and identified other suspects. They ignored this information and hid the facts of the other suspect from the prosecutors and allegedly coerced witnesses to testify against the two individuals who were wrongfully imprisoned. But for the actions of these prosecutors, these two individuals would most likely not have been convicted, or for that matter may not have been charged in the first place. In cases such as this, it is hard to see why these prosecutors should be granted prosecutorial immunity for acts they did not perform in good faith and the spirit of their positions.

For the full article from the Washington Post, click here.

For more information on the case of Pottawattamie County v. McGhee, click here.

The FBI and the Right of Privacy

2009-10-29T10:43:00.004-04:00

In response to a Freedom of Information lawsuit, the FBI has recently made public its Domestic Investigations and Operations Guide. This document details the FBI’s interpretation of domestic intelligence-gathering rules which were relaxed under the Bush Administration.

In order to begin an investigation into a suspected terrorist, the initial requirements set forth under the FBI’s interpretation are rather low. This guide also allows for the use of ethnicity and/or religion to be used as a factor for determining persons of interest, as long as ethnicity and/or religion are not the only factors used. While information gathering may not be based on “arbitrary or groundless speculation,” the factual evidence required to start such an investigation is not clearly defined. The FBI claims that the flexibility provided by their interpretation is required in order to properly perform a proactive sweep for would-be terrorists residing within the United States.

If an investigation is commenced, the FBI can then send out “confidential informants to infiltrate organizations and following and photographing targets in public.” Even if nothing is found, the information gathered is then stored in the FBI databases. The FBI had the ability to perform such investigation previously regarding criminal activities, but greater justification was required to do so (at least prior to the FBI’s new interpretations).

Some are concerned that this broad interpretation interferes with citizens’ civil liberties, as the FBI’s interpretation allows them the “right to collect broad personal information about people they don’t even suspect of wrongdoing.” However, the FBI’s general counsel claims that this interpretation is not as threatening as some fear, and that civil liberties still will be protected; she claims that the FBI’s job is not to wait to investigate somebody until they perform some type of terrorist activity, but to ensure they don’t get a chance to do so at all.

The ability of the FBI, or any government agency, to collect data on its citizens for no more of a reason than basically a hunch is rather disturbing. While the FBI may deny it (or even prevent it in writing), this opens the door for profiling of citizens based on religion or ethnicity. The FBI has already used this new-found power to investigate whole Somali communities rather than just those people for whom they had prior information.

While the threat of future terrorist activity on United States soil is frightening, the government ‘s exploitation of this fear to expand their powers and reduce citizens’ rights is even more frightening. With this proactive approach and lack of properly defined guidelines, the FBI has the ability to gather information on almost anybody, and any data gathered, whether the person is found of wrongdoing or not, will be stored in the FBI’s database; with such procedures in place, many innocent citizens will have their right to privacy violated for no sufficient reason.

For the full article from the New York Times, click here.

Animal Cruelty and the First Amendment

2009-10-08T09:49:00.002-04:00

This week, the United States Supreme Court was asked to rule on the First Amendment as it relates to animal cruelty. In United States v. Stevens, the Court was asked “to reinstate a 10-year-old federal law that bans the production and sale of videos that show torture, mutilation and death of animals.” By reinstating this federal law, videos depicting such things as dog fighting and cock fighting; also, so-called “crush” videos would lose any First Amendment protections they may have once been covered by.

The last time the Court ruled that speech was found unredeeming of First Amendment protection was 25 years ago; in that instance, the Court ruled that child pornography was not protected speech under the First Amendment. After oral arguments on Tuesday, it does not seem likely that the Court will add videos of animal cruelty to this list of unprotected speech.

Supporting the reinstatement of this federal law are groups such as the Humane Society. Their claim is that the actions depicted are already deemed illegal under state and federal law, and as such depictions of these acts on video should also be illegal. Supporters of reinstating the law claim that the law will only illegalize speech depicting "the most extreme and unimaginable acts of cruelty,” and as such there "should be no safe harbor in the First Amendment for those who perpetrate them."

Those opposing the reinstatement of the law claim that the language of the law is too overbroad. It is feared that this language of this law can be read to extend to videos of hunting and bullfighting, as well as to any documentaries that may actually be discouraging cruelty to animals. With the language how it reads now, the decision of what is and isn’t protected by the First Amendment would have to be subjectively decided by the government.

Being a believer in the need for First Amendment protections, as well as an opponent to any form of animal cruelty, this case at first glance seems like one that would cause a conflict between the two beliefs. However, if the language of the law is in fact so broad that it could allow the government to ban videos in which the message is to prevent animal cruelty, then it seems as if this law is not the proper answer to disallowing said videos.

There are already laws against dog fighting, cock fighting and cruelty to animals. To take the next step to ban videos of this, while admirable, apparently does more than it is intended to. At the same time, it is not the government’s job to be the morality police of its citizens, especially at the expense of limiting Constitutional rights. Cruelty to animals is not the same as child pornography, and does not require the same level of government aid to prevent. It is sad what is happening to these animals in these videos, and it is also illegal (at least in the United States); still, to overly limit First Amendment protection violates the Constitutional rights of citizens and as such it would seem appropriate in this case that the law not be reinstated as is currently written.

For the article from the Washington Post, click here.

The 2nd Amendment and the States

2009-10-01T10:02:00.002-04:00

The United States Supreme Court is scheduled to hear challenges to handgun laws in Chicago and Oak Park, Illinois. The Supreme Court last year ruled in District of Columbia v. Heller that the 2nd Amendment provides for handgun ownership in relation to the “federal government and federal enclaves such as Washington. “ In hearing these challenges to gun laws in Illinois, the Supreme Court will rule on state and local laws and whether these laws are constitutional in regards to the 2nd Amendment.

According to Alan Gura, the lawyer who filed the challenges, the laws in question is “identical” to the law that was challenged in Heller. “Gura hopes for a ‘definitive ruling’ on Chicago's restrictions and said he thinks that at a minimum the court would strike the same kind of handgun ban it found objectionable in Washington. “

Gun-control advocates show little concern for whether the laws in question are found unconstitutional. Even though many expect the Court to find that the Second Amendment applies to states and municipalities, gun-control advocates remain confident that, as in Heller, the application of the 2nd Amendment as applied to states will be narrowed to limit guns in the home for self-defense purposes.

The decision in Heller was split 5-4 last year. For the minority, the more liberal judges argued that the 2nd Amendment only guaranteed the right to bear arms to maintain groups such as militias. Still, many expect the five Justices from the majority to prevail once again, which may lead to challenges to state gun laws. Such challenges are expected to include challenges to such things as: gun registration; storage requirements; where guns may be carried; and, how (i.e. concealed or not) weapons may be carried.

Once again, it will be interesting to view how the Justices interpret and apply the 2nd Amendment in this case. Perhaps one of the most divisive and debated Amendments, the Supreme Court finally has a chance to make “definitive ruling” on the matter. However, even if such a ruling is handed down, it appears that arguments as to related issues will only get started.

For the full article from the Washington Post, click here.

Free PACER?

2009-08-18T12:46:00.005-04:00

PACER (Public Access to Court Electronic Records) has received a lot of negative press lately for not providing free public access to federal court docket information. Well, that isn’t true anymore . . . anyone with Internet access can now retrieve Pacer dockets 100% free from Courtport, LLC.

With the announcement of RECAP last Friday, Courtport, LLC opted to announce today the launch of its free federal court docket retrieval site, Free Court Dockets.

What's the difference between RECAP and Free Court Dockets?

The difference is simple -- RECAP is a plug-in for the Firefox web browser that makes it easier for users to share documents they have purchased from PACER, the court's pay-to-play access system. With the plug-in installed, users still have to pay each time they use PACER, but whenever they do retrieve a PACER document, RECAP automatically donates a copy of that document to a public repository hosted at the Internet Archive; however, with Free Court Dockets, the user bypasses PACER entirely and hass access to full court dockets from any U.S. district civil, criminal, or bankruptcy court, as well as from the U.S. Supreme Court, the U.S. Court of Claims, and the U.S. Court of International Trade.

For full details about Free Court Dockets, please read the press release here.

RECAP: A New & Better way to access Public Court Records

2009-08-15T12:31:00.002-04:00

So, what is RECAP? RECAP is a free extension for Firefox that improves the experience of using PACER, the electronic public access system for the U.S. Federal District and Bankruptcy Courts. It helps you give back by contributing to a public archive hosted by the Internet Archive. It also saves you money by showing you when free documents are available.

When a RECAP user purchases a document from PACER, the RECAP extension helps her automatically send a copy of that document to the RECAP archive. And RECAP saves its users money by notifying them when documents they’re searching for are already available for free from the public archive.

Whos is behind RECAP? RECAP is a project of the Center for Information Technology Policy at Princeton University. It was developed by Harlan Yu, Steve Schultze, and Timothy B. Lee, under the supervision of Prof. Ed Felten.

There is a video on the RECAP website that provides a quick demonstration of RECAP in action, and RECAP is currently looking for beta testers. If you are interested, check out their privacy policy and then head to the installation page to get started.

I think that RECAP is inspired! It is a great way to open up public court records that would otherwise be unavailable because of the PACER “pay to play” restrictions. Everyone should have access to public records.

Continuing Developments in Same-Sex Marriage Rights

2009-04-08T10:15:00.005-04:00

In the past week supporters of same-sex marriage have experienced two victories – each unique in their own way. Last week, an Iowa court ruled that same-sex marriage was permissible in the state. On Tuesday of this week, the Vermont Legislature passed a Bill allowing same-sex marriage.

Many were surprised by the ruling in Iowa, as the issue was not as showcased as it had been in other states. While many focused on California’s Proposition 8 and New York’s consideration of same-sex marriage rights, Iowa’s court entered a judgment addressing this issue.

In Vermont, the Governor Jim Douglas had vetoed a Bill permitting same-sex marriage in the state. On Tuesday, the State Legislature overrode this veto to become the first state to allow same-sex marriage by statute rather than by court decision.

Supporters of same-sex marriage are hoping that these recent developments spur action in other states. At present, New York, New Jersey, Maine and New Hampshire have same-sex marriage proposals are receiving support from the legislature. With Vermont having taken this step, many hope that these states will do the same.

For the full article, click here.

Text Patterns and Culture 11

2009-03-29T19:14:00.005-04:00

--I've been reading through the archives of Alan Jacobs' excellent reading/writing/technology blog Text Patterns the last few days, and a couple of entries stand out. In December, Jacobs--responding to an essay from New York Times reporter David Streitfeld--raised questions about blaming online used book sales for the publishing industry's current woes:

"Seriously? Are there that many people buying used books online? I suppose it’s possible, but my own experience wouldn't suggest that that market is huge. But then, a lot of used book sales are done via Amazon, and no one really knows how well Amazon is doing. Maybe Streitfeld is right and used-books-via-Amazon-and-eBay constitute a major threat to the whole publishing industry. But I have my doubts."

Without any sort of reliable data, it's difficult to tell how much the used-book market has really affected publishers as a whole. And that factor, I think, should be enough to currently prevent any scapegoating of people who buy used books (which is what Streitfeld does). It's also a bit oversimplistic to dismiss the recession and general readership declines as probable causes, even though in would be helpful to have hard data for these areas as well.

More recently, Jacobs has provided--and linked to--solid analysis of the Kindle. "a dialogue" (both the post and accompanying comments) reiterate familiar but still quite valid drawbacks to the Kindle's proprietary format. Conversely, John Siracusa's essay on e-books (found in "linkages") is excellent, and presents a pretty compelling case for why e-books will eventually win over consumers, even if the Kindle eventually fizzles.

--Culture 11 was the original host for Text Patterns, but it became defunct in January after exiting less than six months. As Charles Homans wries in his article on the website's rise and fall, its goal was to serve as "a place where social conservatives could talk about culture—a safe zone between the purely political critiques of the conservative media and the secular liberal criticism that dominated the mainstream media..." The concept that Cultural 11 writer Conor Friedersdorf had of providing narrative-based reporting from a conservative angle--with Tom Wolfe as an emulative example--is what I think could have been most appealing. Besides Wolfe, Joan Didion and Garry Wills emerged during the New Journalism period as conservative writers who were remarkably sharp social commentators, and who were willing to commonly deviate from conservative policies. Having recently dipped into Didion and Wills' work as a self-identified liberal, I can see why liberals and conservatives alike have found them compelling. There certainly should be a place today for conservative long-form journalism that doesn't resort to predictable positions and arguments.

Homans suggests that Culture 11's brief lifespan exhibits how conservatives have, since Nixon's "silent majority," continued "to simply wall off the parts of society that they didn’t like or understand, secure in the belief that there were more people on their side of the wall." That's a reasonable explanation, though I think commenters at The American Scene also have a valid point about the website containing a sustainable idea within an unsustainable business model. Regardless, Culture 11 simply wasn't around long enough to fully test its hypothesis that free-thinking, creative journalism could find a home in contemporary conservatism.

2009-03-27T14:33:00.002-04:00

From Ohio Citizen Action:

I'm delighted to report on a major development in the battle to end mountaintop removal coal mining. On Tuesday, the Obama Administration announced the first step toward a crackdown on mountaintop removal permits. The Army Corps of Engineers had been poised to approve scores of new mountaintop removal projects, and this announcement put the brakes on. Credit for this goes to thousands of Ohio Citizen Action members and others in Appalachia and elsewhere who have fought doggedly for years, and of course, to President Obama.

Our work is not done though. Coal companies have already leveled over 500 mountains and, under current permits, are detonating dynamite charges every day to level more. They are not going to stop voluntarily. Though Obama's action yesterday was a good first step, it is not the ban on mountaintop removal we need.

For more on this campaign, please visit Ohio Citizen Action.

Live Blogging in the Courtroom

2009-03-12T10:36:00.004-04:00

Last week, Campbell County Circuit Court Judge Julie Reinhardt Ward issued an order preventing anybody from bringing electronic devices into the courtroom. While this in itself is not unique, the fact that one of the Judge’s aims in issuing this order was to prevent live blogging from the courtroom is. Due to this order, several news outlets challenged this ruling in the Kentucky Court of Appeals; this may be the first time the issue of live blogging within a Kentucky courtroom has been the subject of such an appeal, and as such this ruling may set a precedent for how other Kentucky courts deal with the issue in the future.

In both Ohio and Kentucky, judges are permitted to set the rules for their courtrooms as to what people can and cannot bring to an active trial. Most judges appear to be concerned about distractions that may be caused by cameras, gum chewing and other items that may take the jury’s attention away from the trial. In federal courtrooms, electronic devices cannot be brought past their security checkpoint at the entrance to the building.

Due to the immediacy of courtroom blogging, some judges are worried that a witness’ testimony could be tainted based on what they read on-line. Judge Ward stated she was also worried about these blogs tainting the jury, even though jury members are prohibited from watching media coverage. In order to prevent such influence, she placed the ban on live blogging in order to allow only portions of the testimony to be shown.

Over a decade ago, courts showed similar resistance to the broadcast of live trials on stations such as Court TV. At first, especially after the O.J. Simpson trial, courts were reluctant to allow television cameras into their courtroom. Outside of a few states, these cameras are very rarely banned today. According to a former senior on-air correspondent, “Ohio and Kentucky courts have been easy to deal with.”

Blogging in the courtroom is a relatively new aspect of reporting. As such, there are no set rules stating what can and cannot be blogged. Because of this lack of guidelines, it is most likely that judges are overprotecting to ensure the jury and witnesses are not improperly influenced. Until such rules are set, it seems to be in the best interest of ensuring justice and avoiding improper influence that judges do this. With this being said, it is more than likely that, just like Court TV cameras in the courtroom, live blogging will become commonplace at future trials. Although the media outlets lost their appeal in this case, it is my belief that once a balance is worked out between interests of justice and the availability of information, live blogging will serve as a valuable tool for those wishing to find trial information easily and efficiently.

For the article from the Cincinnati Enquirer, click here.

Shaman Drum Bookshop and the Realities of Market Changes

2009-03-08T19:19:00.008-04:00

Last month, a friend of mine who lives and works in Ann Arbor, Michigan sent along this Chronicle column by Karl Pohrt, owner of the local Shaman Drum Bookshop. His profile of his store's "steep financial decline" is a depressing on a personal level. As a graduate student in popular culture studies at Bowling Green State, I made the seventy-mile trip up to Ann Arbor fairly frequently, and Shaman Drum was always one of my favorite stops. Pohrt's description--"a first-rate browsing store for books in the humanities in the university neighborhood"--is accurate. I consistently came across academic titles in cultural studies and ethnomusicology that would have been extremely difficult to find in most other bookstores. It was always pleasurable and surprising to scan their shelves.

Shaman Drum's concentration on academic humanities titles certainly has its drawbacks, even during better times. After some reflection, I can't say that I'm terribly surprised at the number of local commenters who describe having "never really felt welcomed," "uncomfortable," etc. I don't personally remember ever having unfriendly exchanges with their staff, but the store (if you'll pardon the pun) does march to a different drumbeat. Its setup is wonderful for browsing, but many shoppers probably aren't going to experience the same "finds" that they might at, say, the flagship Borders (which is just around the corner). In this regard, Shaman Drum benefits from its surrounding environment--a top public university nearby, several high-quality bookstores located in the same district, and the liberal, scholarly climate of Ann Arbor. It has had the luxury to cater to a fairly specific target market.

Of course, it was much easier for Shaman Drum to specialize when textbook sales were robust, and Pohrt's laments about the University of Michigan's new online textbook listing policies is understandable. At the same time, I have to agree with commenter Jim Canty's post on textbook purchasing in person. The traditional system of buying textbooks through stores is, on the whole, an acutely unpleasant experience, and one where students are typically at a financial disadvantage, whether they are buying or selling. And, as Canty alludes, Pohrt's theoretical argument--that brick-and-mortar bookstores offer the "intangible value" or browsing and talking with informed staff--is important, but simply doesn't hold water when it comes to textbook sales. I'd love to talk to a student that treasures the "intangible value" of a textbook store while standing in long lines and often paying to much for used books of questionable quality.

Nevertheless, Pohrt's right in that there aren't really "villians" responsible for changes in the textbook market. It's simply the same shift that's occurring with regard to general book sales, and working out a solution that leaves Shaman Drum anywhere near financial solvency will be extremely difficult. Despite disagreeing with him on the textbook issue, it'll be a sad day if his store closes, so I found his column to be a downer. The column is well worth reading, though, and the commenters offer thoughful opinions on a host of related issues, including Pohrt's current efforts to classify Shaman Drum as a non-profit organization.

Hearing on California's Proposition 8 Today

2009-03-05T09:32:00.005-05:00

Today, the California Supreme Court will be hearing arguments on the validity of Proposition 8. Proposition 8, overturning a previous ruling that same sex marriages were legal in the state, was approved by voters in the November, 2008 election. Today, the California Supreme Court will begin consideration of the validity of the measure, which will in the end determine the validity of same sex marriages within the state.

Of primary concern in determining the validity of Proposition 8 is determining whether this measure improperly amended a constitutional amendment. Should the Court determine Proposition 8 constitutes a proper revision to the state constitution, which apparently many experts believe will be the case, the Court will then have to determine the validity of previously performed same sex marriages during the time period when such marriages were legal. Many feel that the Court will uphold Proposition 8, as well as the existing same sex marriages.

Opponents of Proposition 8 contend that this measure improperly amends the state constitution by means other than what is provided in the constitution itself. The Attorney General is contending that Proposition 8 “eliminates an inalienable right without compelling reasons.”

Supporters of Proposition 8 “have threatened a campaign to remove justices who vote to overturn the measure.” If Proposition 8 is upheld, gay right activists will most likely seek to add a measure to the 2010 ballot to reconsider gay marriage.

The original ruling had a slight majority, 4 to 3, determining that same sex marriages were legal in California. Should the supporters of Proposition 8 be able to swing a single justice’s vote, Proposition 8 will be declared valid and same sex marriage will once again be illegal in the state of California.

This topic has been written about quite a bit, including blog postings on this site when the measure was initially passed. As stated here, it is good to see that Americans have started accepting some forms of change, but the continued opposition to same sex marriage makes one question how truly open we as a society are. As the California Attorney General is expected to contend, marriage is one of the inalienable rights granted to the American people; to eliminate this right merely because the people desiring to marry are of the same sex does not seem a valid enough reason to prevent them from doing so. By denying these inalienable rights to certain groups of people, America is showing a tendency to cling on to the past rather than openness to change and the future.

To read the entire article, click here.

The arguments will be streamed here from 9:00 A.M. until noon Pacific on March 5, 2009.

Court Rules on Religious Displays in Public Parks

2009-02-26T10:18:00.005-05:00

Yesterday, the United States Supreme Court ruled that a public park in Utah need not provide space for a religious monument reflecting the Summum religion. The case, Pleasant Grove City v. Summum, was brought due to the fact that members of the Summum religion wished to display a monument reflecting their religious beliefs; said monument would be in direct contrast to the park’s current monument displaying the Ten Commandments.

This case was brought under a First Amendment claim. However, unlike most cases dealing with religion, this case was brought under the freedom of speech clause rather than the freedom of religion clause. Justice Alito, writing for the majority, stated that the religious monuments in cases such as this are “best viewed as a form of government speech.” Justice Alito concluded that the Summum church’s First Amendment right to the freedom of speech was not violated, as the government has the right to choose what it wishes to say, and similarly what it wishes not to say.

Although this was a unanimous opinion, six of the Justices wrote concurrences which offered alternate viewpoints than that written by Justice Alito. One of the issues which concerned the other Justices is the apparent creation of government language which is not subject to First Amendment review. The Justices also differed in their opinions as to whether the Summum church could bring another challenge under the freedom of religion clause of the First Amendment.

Like many of the concurring judges, this decision is also bothersome to me as it does expand a government’s ability to seemingly bypass any First Amendment review. By merely calling a display a form of “government speech”, it would seem that a city would obtain support from this decision to prevent any monuments or displays that contradict the religious message of those in charge of the local government.

Also of issue is the seemingly blurred line of church and state. While the Supreme Court decision seems to argue that a monument to the Ten Commandments can be seen outside of a religious perspective, it is hard to be persuaded that these tablets, a very religious icon, can be seen any other way. To say then that a city can choose what qualifies as “government speech”, and such “government speech” seems to be tied to these religious displays, would seem to cross the line of the separation of these two institutions.

For the full article from the New York Times, click here.

The President's Mortgage Modification Plan

2009-02-19T11:09:00.001-05:00

Yesterday, President Barack Obama revealed what would amount to be “the largest federal foreclosure-prevention package in decades”. The plan would allocate more than $75 billion in aims of assisting U.S. home buyers in obtaining “more affordable mortgage terms.” The President’s plan would allow homeowners with little equity in their houses to refinance their mortgages, allocate funds to keeping a large number of homeowners out of foreclosure, and increase government funding of Fannie Mae and Freddie Mac.

The President assures that this program "will not rescue the unscrupulous or irresponsible by throwing good taxpayer money after bad loans." It will allow homeowners to refinance “at a time of historically low mortgage rates” “as long as their mortgage does not exceed 105 percent of the current value of their property.” The program would also create financial incentives for lending institutions to lower required payments, attempting to make the mortgage aspect more financially attractive than foreclosure.

As expected, many have come out with criticism of this plan. Many bring up the issue of how second mortgages will be affected and handled through this program. Also, many feel that for most lending institutions, any participation in this program would be purely voluntary. Although Bankruptcy Court judges will be permitted to lower the principal of the mortgage to that of the current market value of the property, the lending institutions will not be required do modify mortgages in this way. Other issues of concern include mortgages being sold into securitized pools and the focus on owner-occupied housing with little to no mention of investor owned property.

It is hoped that offering financial incentives to lending institutions would be sufficient to have them voluntarily work with borrowers, but anytime something is voluntary there is a chance that somebody will not participate. At the same time, the President cannot force banks to comply as that is beyond the scope of his power. I would suspect that allowing Bankruptcy Court judges to modify the principal of the mortgage loan would bring up similar issues of the court exceeding its power. With these issues, and the unresolved issues mentioned above, it is hoped that the criticism levied against this plan will be used constructively to shape a plan that will assist distressed homeowners as planned.

For the full article from the Washington Post, click here.

An Alternate Take on Evolution in the Classroom

2009-02-15T16:16:00.012-05:00

Paul's post from Thursday on Darwin's birthday and classroom approaches to evolution raises a lot of hot-button topics: public opinion on evolution; continuing battles over scientific curricula in public schools (and the freedom of speech/religion implications that are involved); and the relationship between faith and reason. None of these topics are areas of strength for me, but I want to generally discuss my thoughts and where I differ from Paul.

When we think of the phrase "culture wars," the two political issues most likely to come to mind are abortion and gay marriage. There's a good reason for that, considering the energy, finances, and polarization surrounding both issues; Proposition 8 in California continues to provide a strong example. Yet we often overlook public opinion on evolution as a significant part of the culture wars, which is a huge mistake. Paul cites recent Gallup and Pew Research Center polls where more than 40% of Americans favor creationism, which Gallup defines as agreement with the statement "God created human beings pretty much in the present form." The Pew Research Center indicates that these numbers (according to Gallup) have remained consistent for over the last quarter-century.

Historian Paul Harvey notes that "America has a very peculiar history with the idea of evolution," and public doubt about the validity of evolution is nothing new. But such strong poll numbers in favor of creationism--which also holds that the earth is no more that 10,000 years old or so--remains remarkable. In his book The Scandal of the Evangelical Mind, historian Mark Noll identifies that evangelicals have been responsible for the rise of creationism since 1960, and that their efforts resulted in "one of the great innovations of recent evangelical history." Noll argues that after the 1961 publication of the seminal creationist text The Genesis Flood, evangelicals capitalized on several factors--including, most notably, the belief in a "simple" or "literal" reading of Scripture--to create a groundswell of support for the doctrine. Historian Ronald Numbers elaborates that by the late 1970s, creationist political advocates adopted the strategy of arguing for a "two-model" approach in public classrooms, one that would provide a "balanced approach" towards both evolution and creationism.

Though the Supreme Court banned such "equal time" efforts in Edwards v. Aguillard (1987), creationists turned to the burgeoning intelligence design (ID) movement to advance their causes. Though prominent ID supporters such as Michael Behe have attempted to distinguish their work from creationism, evidence demonstrates that the two doctrines are intertwined. One example emerged in the hearings during Kitzmiller v. Dover Area School District (2005), which centered on the school board of Dover, Pennsylvania's attempts to mandate the teaching of intelligence design in its ninth-grade biology curriculum. The textbook that the school board chose for its biology classrooms, Of Pandas and People, was the first pro-ID pedagogical text of its kind. Yet the Of Pandas authors (Dean H. Kenyon and Percival Davis) "had originally conceived their book as a scientific brief for creationism," according to Numbers. Moreover, the plantiffs in Kitzmiller discovered that after the Supreme Court ruling in Edwards, Percival and Davis replaced the term "creationists" with "design proponents" throughout the book. An error in one of the newer drafts--"cdesign proponentsists"--became a key piece of evidence that helped lead to the ruling against Dover's school board.

Nevertheless, Numbers writes that the ID movement's " 'wedge' strategy"--as they exhibited in Kitzmiller--has "succeeded beyond all but their own expectations in convincing the public and press that a serious scientific controversy existed about the status of Darwinism." And journalist Laurie Lebo documents that it is this strategy that lies at the heart of Louisiana's recent "academic freedom" bill. The bill (and its use of the term "strengths and weaknesses") implies a "controversy" where there is none, scientifically speaking, and is intended to deceptively disguise the promotion of a religiously motivated and unscientific doctrine as a freedom of speech issue. This is where I would disagree with Paul. It's reasonable to expect classroom debates to exist along the lines of what Amy Harmon profiles for the New York Times from last August, where students grapple with understanding and accepting evolution. But when we legally claim that teachers are exercising academic freedom by officially debating evolution's "strengths and weaknesses" as part of a science curriculum, we are opening the door to violating church/state separation, bearing in mind that the current "alternatives" to evolution are explicitly religious in origin.

Besides its legal implications, I'll admit that this issue is a personal one for religious reasons. As a teenage member of a conservative Methodist church, I remember watching a video during our youth meeting on evolution. The video dramatized a scenario where, upon hearing her science teacher present the case for human evolution, a girl runs out of the classroom, protesting that she didn't believe in such a thing. The message was clear: Christian belief and evolution were antithetical to each other. Not caring enough to seriously challenge this view, I became a supporter of creationism, and wondered at points if humans and dinosaurs co-existed together. It took many years--and a shifting of viewpoints on several other topics--before I really accepted that theism and evolution, faith and reason, could co-exist together.

My story is hardly unique, of course; determining the relationship between faith and reason when it comes to evolution is a common difficulty for religious believers, and especially so for those from theologically conservative backgrounds. Creationism and ID, however, oversimplify this process to an "either/or" decision, where one must choose to be either on God's side or the side of secularism. Without going into a lengthy theological argument, this demonstrates bad faith as well as being unscientific. Noll is particularly unsparing on this point, bluntly stating that creationism has obscured clear thinking about "human origins, the age of the earth, and mechanisms of geological or biological change." As he elaborates, "... if the consensus of modern scientists, who devote their lives to looking at the data of the physical world, is that humans have existed on the planet for a very long time, it is foolish for biblical interpreters to say that 'the Bible teaches' the recent creation of human beings."

Across the nation, young high school students are sitting in introductory biology classes, encountering evolution for what may be--or is likely--the first time. From a legal standpoint, these students have the right to hear scientific truth from their teachers, to learn in an environment that is absent of religious motivations. From a religious standpoint, they deserve better outside-of-class help in determining how evolution will fit into their faith backgrounds than from reductionist and dishonest doctrines.

Celebrating Darwin

2009-02-12T10:21:00.003-05:00

Today marks the 200th birthday of Charles Darwin, famous for this theory of evolution. In celebration of Darwin’s birthday, people throughout the globe are celebrating Darwin Day, “a global celebration of science and reason”.

However, as most are aware, not all agree with Darwin’s theories and the teaching of evolution has continued to be a hotly debated issue in schools throughout the United States. According to a recent poll, 40% of Americans discredit evolution and instead cling to a belief in creationism. Scientists claim that there is no merit to these claims, and instead choose to teach Darwin’s theory of evolution, which they claim has the scientific backing creationism lacks. As such, issues often arise as to which a teacher is permitted to present in their classroom.

In 2005, US District Court for the Middle District of Pennsylvania ruled that intelligent design (creationism re-designated as to avoid religious connotations) is not science and therefore cannot be taught in public schools. However, last year, Louisiana passed what they term an “academic freedom” law. This law protects the teachers’ freedom of speech by allowing them to “discuss the ‘scientific strengths and scientific weaknesses’ of issues such as evolution.” Recently, bills have been introduced in Oklahoma, Alabama, Iowa, and New Mexico; similar bills have already failed in Florida, Michigan, Missouri, and South Carolina.

As a pure freedom of speech issue, I wholeheartedly agree with states attempting to protect such rights by allowing for classroom debates of evolution and creationism/intelligent design. Unfortunately, this topic also broaches the topic of the separation of church and state and directly affects how children are being taught and molded. In private schools, it is expected that students will be exposed to the topic of religion. However, as the Pennsylvania Court ruled, religion cannot be taught in public schools, and intelligent design certainly seems to approach religious teaching.

By Louisiana wording their law allowing teachers to “discuss the ‘scientific strengths and scientific weaknesses’ of issues such as evolution”, the state seems to create an ideal solution as long as the subject of God or religion does not come into play. All scientific principles are open for debate in scientific terms, and evolution is certainly not immune from this debate. Such open communication in classrooms would allow for different viewpoints to be expressed and allow for the furthering of a scientific education. In such debates, people could truly celebrate science and reason, which is exactly what Darwin Day is suppose to further. Unfortunately, other states at this point have not agreed with this viewpoint.

For the complete article, click here.

Considering The Long Civil Rights Movement and "Praying Away the Gay"

2009-02-08T16:19:00.006-05:00

There is quite a bit to ponder from Joseph Crespino's excellent study In Search of Another Country: Mississippi and the Conservative Counterrevolution, which I recently finished reading. Crespino, an associate professor of history at Emory University, argues that Mississippi did not simply provide "massive resistance" against the civil rights movement, as we often believe. Instead, as he writes:

"...despite segregationist' popular pledges that they would never submit to racial integration, white leaders in the state initiated a subtle and strategic accomodation to the demands of civil rights activists and the federal government, one that helped preserve the priorities of white elits and that put Mississippians in a position to contribute to a broad conservative countermovement against the liberal triumphs of the 1960s" (4).

Crespino notes in his conclusion that there are several implications to this argument. One of the implications that stood out to me was how we should think about the time span of the civil rights movement. Just as it's easy for us to imagine Mississippi as being what he calls a "closed society" (one that was more racist that anywhere else in the U.S.), it's also easy to imagine that the struggle for civil rights ended in the 1960s, when segregationists in the South lost their fight against the Civil Rights Act and Brown v. Board of Education. Yet Crespino makes a case for " 'the long civil rights movement,' " a term he quotes from fellow historian Jacquelyn Dowd Hall. In documenting Mississippi's racially charged "battles over access to schools, jobs, and political power" during the 1970s and 1980s, he argues that those battles "flowed directly out of civil rights battles of earlier decades" (276).

Crespino provides a good example of the long civil rights movement in his November 2007 article about President Ronald Reagan's infamous campaign visit to the Neshoba County fair in Philadelphia, Mississippi. The article responds to an argument between New York Times columnists David Brooks and Paul Krugman over the racial meaning of "states' rights," a term that Reagan used in the speech he gave at the fair. While Crespino criticizes Krugman for generally oversimplifying the role of racism in conservative politics, he also finds that Brooks' defense of Reagan is unwarranted. As he finds, "Reagan was content to let southern Republicans link him to segregationist politics in the South’s recent past." The reference to "states' rights" was a clear signal of support to Mississippi conservatives who had resented federal efforts to bring about school desegregation and biracial poverty programs in their state. To this constituency, the battle over political control of their state--and the civil rights that consequently remained at stake--was quite alive and well.

Admittedly, this is a very watered-down take on a complex argument, but Crespino's book and the above article are well worth reading.

--In her review of the Lifetime television movie Prayers for Bobby, Tanya Erzen (an assistant professor of comparative studies at Ohio State University) finds fault with the movie's good intentions:

"The film hews to the conventions of Lifetime, in which tragedy inevitably leads to personal growth. There are archetypal characters: the jock brother who makes gay jokes, the sinister psychiatrist, the judgmental minister from the Griffith’s church, and the sympathetic gay man with whom Bobby shares a drink at a dance club. It is a film designed to teach us a lesson about religious intolerance, but in doing so it reproduces the unspoken rules for rendering gay people sympathetic or likeable to a television audience: they were “born that way,” they never have sex, and, of course, they die tragically."

Erzen also writes that the "film’s response to the ex-gay argument that gay people can and should change is that sexuality is biological or genetic—a politics that grants full citizenship regardless of whether sexuality is immutable is illegible for the television genre." It's not all bad, as Erzen identifies the transformation of Bobby's mother, Mary (played by Sigourney Weaver), as "the most meaningful form of redemption in the film." But her critique is a timely one, and should force us to consider how seemingly positive representations of gay people can actually be stereotypical and deterministic. Erzen has written a book on the "ex-gay movement" within certain stains of conservative Christianity, and her 2006 interview with Terry Gross on National Public Radio's Fresh Air is a good introduction to her work.

Ethics and Octuplets

2009-02-05T10:47:00.003-05:00

As reported in various news outlets this week, Nadya Suleman gave birth to octuplets – only the second reported case of live octuplets being born in the United States. At present, Suleman, a single woman, has not yet revealed whether the births are a result of artificial insemination or any details concerning the conception of the children. However, the possibility that a fertility doctor implanted Suleman with eight embryos is causing concerns within the profession.

Whether artificial insemination is performed in vitro or intrauterine, doctors typically only work with two to four embryos. American Society for Reproductive Medicine (ASRM) guidelines call for no more than two embryos for women in their thirties seeking in vitro fertilization. A spokesperson for ASRM, Eleanor Nicoll, stated regarding Suleman, “"It should not have happened. Eight children should not have been conceived and born."

The reasoning behind the ASRM guidelines centers on the health of the embryos and mother. Multi-birth pregnancies create a higher risk for premature labor and delivery. The developing embryos have a higher risk for brain injuries, underdeveloped lungs and intestines, and cerebral palsy.

The apparent violation of these guidelines gives rise not only to medical concerns for the children and mother, but also to ethical questions. Lawrence Werlin, medical director of the Coastal Fertility Center in Irvine, indicates that prior to artificial insemination, questions are asked of the woman regarding how long she has attempted to get pregnant and the existence of other children. Given that Suleman already had six children, Werlin states, “I can't believe that she came in and said to the doctor that 'I want eight more children.' I can't believe that. And if she did, I would say, 'I'm sorry, I'm not the person for you.'" However, it appears that somebody may have done just that, whether Ms. Suleman asked for only one more child or did in fact ask for eight.

David C. Magnus, director of the Stanford Center for Biomedical Ethics, states that current guidelines are not as strict as in some other countries, and use the word “should” in many places. Magnus states that the only true remedy for those affected for violations of these guidelines is tort law. As of yet, medical organizations have failed to tighten up guidelines and/or create additional remedies.

No matter what one thinks about Ms. Suleman, this event has definitely resulted in many people thinking about multi-birth pregnancies. No matter whether these people agree or disagree with the propriety of artificial insemination giving rise to such pregnancies, this Washington Post article raises issues that require resolution. As David C. Magnus states, the current state of in vitro fertilization is basically an unregulated marketplace; if this marketplace remains unregulated, "there will be abuses." Until Ms. Suleman tells her full story, many will assume that such an abuse may have already taken place.

Same-Sex Rights in Washington State

2009-01-29T09:57:00.001-05:00

Add Washington to the list of states working to expand the rights of same-sex couples. On Wednesday, the state announced plans to give the same rights given to heterosexual married couples to same-sex domestic partners.

The proposed Bill would amend the current state law to include same-sex domestic partners in sections where currently only married couples are addressed. All state statutes dealing with married couples would be amended; such sections range from “labor and employment to pensions and other public employee benefits.” Previously, lawmakers had been successful in adding protections for same-sex domestic couples to areas of law including probate, trust, community property, guardianships and power of attorney.

As expected, those opposing this latest measure claim that this Bill will only further the move towards same-sex marriage. These opponents claim that sanctioning same-sex marriage will dilute traditional marriages. A separate measure to legalize same-sex marriage in the state has in fact been introduced, “but is unlikely to go anywhere this year.”

When it comes to this type of legislation, one thing always seems to strike me: the opponents’ claim that same-sex marriage will dilute their own heterosexual marriage. Even mentioning same-sex marriage or providing similar protections to same-sex domestic partners, as Washington is attempting to do, brings out those who claim that any such expansion of rights makes traditional marriage less “pure”. The granting of such rights should not affect the quality of another’s relationship; whether it’s an interracial marriage, a marriage of two people with a wide age gap (granted there is no other illegality such as undue influence) or a same-sex marriage, the overall quality will remain the same.

Additionally, the main crux of this Washington Bill is to provide similar rights to same-sex domestic couples. While it may lead to the legalization of same-sex marriage, it will not necessarily do so. This will merely entitle same-sex domestic partners to enjoy employment benefits that heterosexual couples already receive. It will allow same-sex couples to exercise these rights with the force of the law supporting them, instead of having to fight to receive these benefits. If a state is to recognize a same-sex domestic partnership or marriage, it is only right that they are provided applicable rights under the state law.

For the complete article, click here.

President Obama and Guantanamo

2009-01-22T10:03:00.001-05:00

In one of his first official act as President, Barack Obama is expected to sign an executive order today that will close the detention camp at Guantanamo as well a number of C.I.A. “secret” prisons. Along with closing these prisons, the executive order would set in place new procedures for the handling of suspected terrorists.

The over two-hundred terrorism suspects currently being held at Guantanamo would be reviewed immediately to determine their status and whether to release, transfer or prosecute them. The executive order will also reduce the amount of time terrorism suspects are held in custody; currently, many of these suspects are secretly being held for months and sometimes years. Finally, the order would require the C.I.A. to follow interrogation rules similar to those used by the military, disallowing any coercive interrogation techniques.

While this order is being lauded by some as a solution to current human rights violations, there are some unresolved issues in President Obama’s plan. With the closing of Guantanamo, the immediate review required will be a challenge; questions still remain as to how many prisoners will be transferred and/or prosecuted, as well as where they will be transferred to. The executive order also leaves room for President Obama, or another future President, to reopen the C.I.A. prisons that are being closed by this order, “as some have argued would be appropriate if Osama bin Laden or another top-level leader of Al Qaeda were captured.” Also, there appear to be worries within the C.I.A. that the restriction of interrogation techniques will prevent them from acquiring vital information from those high up in suspected terrorist groups.

From a human rights standpoint, it is easy to support President Obama’s plan. With the reports of torture and coercive interrogation techniques from the past year, the President is making a strong move to avoid further transgressions. Many of the suspects affected are not even necessarily officially within the government’s custody; many of these suspects have been held for longer than what many would consider a reasonable time. With the signing of this order, such prolonged and secret custody will be eliminated.

While the human rights standpoint is strong and convincing, there is still the practical matter of how to effectively and efficiently review the currently held suspects, and how and where to handle those that are determined to be transferred and/or prosecuted. As for the C.I.A.’s claim that the restriction on the interrogation techniques they can use limits their effectiveness, that is a claim that perhaps cannot be substantiated until the new standards are in effect. Once these practical issues are resolved, it appears that President Obama’s plan will prevent the continuance of such wrongdoing related to terrorism suspects.

For the full article from the New York Times, click here.

The Uneasy State of Book Publishing

2009-01-18T17:06:00.002-05:00

A brief food-for-thought entry: As I mentioned last week, e-books were a definitive highlight for book publishers over the past twelve months. E-book sales in the U.S. have shot upward; the Amazon Kindle has become a hit consumer item, even with limited availability; interest in the Sony Reader remains high; and one publisher's recent comments reveal the potential for e-books on the iPhone. Dana Goodyear's essay on Japanese "cell-phone novels" also indicates how digital technology can influence what--and who--is professionally published.

The unfortunate flip side is that the traditional, bread-and-butter wing of of book publishing--hardcover and paperback books--is in serious trouble. (Goodyear notes that Japanese publishers have "embraced cell-phone novels" in part because the industry has "shrunk by more than twenty percent in the last eleven years.") Jason Boog summarizes just how bleak the near future will be for the industry. In mentioning Boog's essay, Anika at WriteBlack is blunt in her assessment: "Somebody’s got to reinvent publishing, and it has to happen faster than it’s happening now."

So what's the future path? Anika elaborates in a comment to the above post:

"I think part of the problem for the book publishing industry is the same problem as in newspapers: It’s obvious that the way of the future is digital, but even as dead-tree profits are falling, dead trees still make way more money than digital editions. If companies drop paper versions right now, they’ll have to fire 90 percent of their staffs and get rid of 90 percent of their editors, because the new business model right now just won’t sustain the overhead that actually keeps the industry running."

In other words, there are no easy answers.

Obama sworn in with Lincoln's Bible

2009-01-17T15:43:00.002-05:00

Interesting tidbit of the day:

President-elect Barack Obama will be sworn in as the 44th president of the United States on January 20, 2009. He will be taking the oath of office with his hand on the same bible Abraham Lincoln used at his 1861 inauguration.

Why is this interesting? Well, use of this particular Bible by the first black man to be elected president is considered significant because it was used by the president credited with ending slavery in this country more than a century ago.

New Supreme Court Ruling to Affect Exclusionary Rule

2009-01-15T09:58:00.001-05:00

Yesterday, the United States Supreme Court issued a ruling allowing for the admissibility of evidence, even if said evidence was improperly seized. Under this ruling, the Court found that as long as the improper seizure was the “result of isolated negligence”, the arrest is not necessarily invalidated.

The ruling stems from a case of a man from Alabama who was arrested due to an improper notification that an arrest warrant had been issued. Upon acting upon this non-existent warrant, police discovered guns and drugs in possession of the individual, which led to his challenged conviction.

Justice Roberts, writing for the majority which also included Justices Scalia, Kennedy, Thomas and Alito, stated that, “We conclude that when police mistakes are the result of negligence such as that described here, rather than systemic error or reckless disregard of constitutional requirements," the evidence may still be admissible in court. Justice Roberts concluded that this was more of a “bookkeeping” error, and not a deliberate attempt to violate an individual’s Fourth Amendment rights.

Writing for the dissent, Justice Ginsburg, joined by Justices Stevens, Souter and Breyer, stated that, “The most 'serious impact' of the court's holding will be on innocent persons 'wrongfully arrested based on erroneous information [carelessly maintained] in a computer data base'". Instead of having motivation to ensure records are maintained correctly, the dissent argues that this ruling allows too great a leeway to encourage any need to correct any defects or problems.

The Court seems to leave the decision of the severity of the error, “bookkeeping” v. disregard of Fourth Amendment rights, up to the trial court. By allowing the trial court to determine the severity of the error, the trial court seems to have final discretion as to what can and cannot be admitted in these cases. With such discretion, it is uncertain how far this exception will go.

As an illustration of the uncertainty this ruling may cause, also reported today is the recent announcement that 945 cases in Los Angeles are being reviewed due to improper fingerprint analysis. So far, only two wrongful arrests have been found, but there is still much work to be performed. Still, the question becomes, in relation to this recent Supreme Court decision – would this fall under a “bookkeeping” error and any incriminating evidence found due to this improper fingerprinting be admissible in court? If fingerprints at a scene of a crime lead to an arrest, albeit an arrest of a different individual for an unassociated crime due to the mislabeling or misreading of fingerprints, have the rights of this unassociated individual been violated? Prior to this ruling, the answer would most certainly seem to be “yes”; however, with this ruling the answer is not so certain.

The Fourth Amendment protects individuals against unreasonable, unwarranted searches and seizures. Any evidence gained in violation of this right is excluded from being used at trial. To now say that a court has the discretion to admit evidence gained in violation of this right, due to a “bookkeeping” error, seems to be nothing more than an improper circumvention of an individual’s Constitutional rights.

For the Washington Post article discussing the Supreme Court’s decision, click here.

Reconsidering Digital Readers, Thanks to the Amazon Kindle

2009-01-11T16:24:00.005-05:00

Back in October, I criticized Library Journal editor John Berry's "Escape from Reading" for, among other things, oversimplifying new media as a form of "liberation" from reading books. Berry's personal dislike of reading is what seems to fuel his flawed argument, and it's fair to criticize him for letting his own bias obscure what could have been a thoughtful column. Yet after writing my entry, I realized that when it comes to the subject of digital books, I've been guilty of the same problem. With an occasional exception, my attitude towards e-books and e-book devices (hello, Sony Reader!) has been consistently negative, even though I had never actually used an e-book reader, or even done that much with Google Books. My problem is the opposite of Berry's--reading books is one of my favorite forms of mass media consumption, and I love buying books and managing my book collection at home. The experience of reading and buying physical books has left me disinclined to explore e-books, and that personal preference has colored my opinion of e-books as a viable option for the general public.

Hopefully, that's now beginning to change a bit. On New Year's Eve, a friend let me try out the Amazon Kindle that he had received as a Christmas present. And though I only used the Kindle for a few minutes, my impressions were generally positive. At just over 10 ounces, it weighs less than an average $14-16 retail paperback, and I found that it was fairly comfortable to hold aloft. The menu interface wasn't spectacular, but navigating to and from different books was simple after some trial and error. Most significant, in my opinion, was the screen. Amazon boasts about its "electronic-paper display," and that's understandable, because it really is quite sharp and paper-like. When I held it up close to a floor lamp, there was virtually no glare. Combined with adjustable font sizes, the Kindle's display is extremely readable.

Does that make it (or the Sony Reader) an adequate replacement for physical books? For some people, the answer may be yes; the Kindle has gained popularity (and remains sold-out), and e-books were a definite bright spot in what was otherwise a pretty glum 2008 for book publishers. My friend mentioned that the Kindle would be a supplement to his reading habits. He's going to read physical books regardless of technology, but having the option to buy relatively cheap e-books might entice him to make purchases that he wouldn't normally consider. This, I think, is a healthy approach. The Kindle still has significant limitations, including its price and how it renders periodical and web content. It's disappointing that its e-books are in a proprietary format (in other words, work only with the Kindle). Additionally, as my friend noted, it and other e-book readers still can't provide the same type of spontaneous reading experience where one can, say, peek ahead to the end of a chapter or flip back and forth between pages rapidly. It is possible to do those things on an e-book reader, but not in the same way.

Nevertheless, reading from and using a Kindle was enjoyable, and it was silly for me to have envisioned a soul-draining experience. It still is far from perfect, and the digital rights questions about e-books in general--such as the lack of resellability--remain valid. But there is a lot to like, and considering that the device is still in its 1.0 version, there are certainly possibilites for reaching heretofore untapped markets (consumers with disabilities and college students being two examples). For me, it's offered a personal reminder to try to not let preconceived notions and opinions overdetermine my thinking on the subject.

New Jersey's Flu Vaccination Requirement

2009-01-08T12:01:00.001-05:00

This week, a New Jersey court is set to hear challenges to a newly implemented policy requiring children between the ages of six (6) months and five (5) to obtain a flu vaccination before being allowed to return to their licensed pre-school and child care centers. Citing health concerns, New Jersey is the first state to institute such a requirement.

As classrooms tend to be ideal places for children to spread illness, which often times is later passed on to family members at home, requiring this vaccine is seen as a measure to ensure the “overall public health”. According to the Centers for Disease Control and Prevention (CDC), “[e]ach year, more than 200,000 people are hospitalized from flu complications and about 36,000 people die from the flu”; approximately 10% of those affected by the flu are children, and last year there were reports of 86 child deaths due to “flu-related complications”. Already in New Jersey, “[t]here have been about five cases of pediatric flu-related illnesses that required hospitalization this season.” Additionally, the CDC had previously recommended that all children between the ages of six (6) months and eighteen (18) years be immunized.

On the other side of the argument, parents are claiming that it should be their decision as to whether their child is immunized or not. Also, many parents claim they are hesitant to have their child(ren) vaccinated due to fears of health risks. In order to allow the parents a choice in this matter, the New Jersey Coalition for Vaccination Choice is attempting to obtain exemptions for any conscientious objectors.

The difficult issue in this scenario is the intrusion by the government into the lives of private citizens, but for purposes that will purportedly help the general public as much as the individual being intruded upon. Adding to the difficulty is that this requirement is only being levied upon those attending government approved facilities, which are arguably not required to be attended.

Parents in this case seem to have some options, albeit not very attractive options, such as: not use these facilities and keep their children at home, which is not very likely especially if both parents, or a single parent, are/is employed; find non-licensed daycares/preschools for their children, which raises obvious issues of its own; hire in-home care, which has several issues including cost; or, have their child vaccinated, which is problematic for many. Balancing the interests is not easy from a non-legal point of view, but it would seem that the government’s health interests will override those of the individuals. As evidenced by various challenges to smoking bans implemented by states in the past, courts have seemed to side with the overall health interests cited by the state over those of a select class. It would seem that this trend will continue in this case as well.

For the New York Times article, click here.

Five Favorites from 2008

2009-01-04T16:39:00.003-05:00

--Hanna Rosin's reporting for The Atlantic
GetReligion's Terry Mattingly: "Rosin is a liberal’s liberal, when it comes to issues of science, religion and culture, but she is a brutally candid reporter and writer." Rosin's 2007 book God's Harvard was a critical, nuanced account of student experience at the fundamentalist Patrick Henry University in Virginia. Her two stories for The Atlantic this year were November's "A Boy's Life," which Mattingly discusses in the link above, and "American Murder Mystery" from the July/August issue. Both are fantastic pieces, challenging the ideological assumptions and conventional wisdom of both conservatives and liberals while providing first-rate analysis.

--Mark Silk's blog Spiritual Politics
Spiritual Politics first appeared in October 2007 as an election blog that would seemingly have multiple contributors. But Trinity College professor of religion Mark Silk has provided virtually all of the blog's posts since its inception, and that's been a good thing; his takes on religion and politics during the recent election season were consistently sound and insightful. Even better is that Spiritual Politics will have a post-election presence, as Silk continues to write regular updates.

--Constantine's Sword (documentary)
I have yet to read James Carroll's book Constantine's Sword, and can only imagine how much cutting and editing was necessary to create a documentary based on the seven hundred and fifty-plus page bestseller. Still the documentary makes for compelling viewing, especially as Carroll works through his own Catholic experience in an effort to understand the presence of militarism and anti-Semitism in Christian history. It's far from perfect--the issues Carroll raises require a lot more than ninety minutes of film--but certainly thought-provoking.

--Rightward Bound (eds. Bruce J. Schulman and Julian E. Zelizer) and The Family (by Jeff Sharlet)
Most of the books I read in the past twelve months weren't from 2008, but these two are notable exceptions; I reviewed both for PopMatters (see here and here). Rightward Bound convincingly argues that several factors from the 1970s help explain how conservatism began dominating American politics (and also why it has begun to fail in recent years). In The Family, Sharlet urges readers to reconsider fundamentalism, how religion influences politics, and the basic nature of American political power--a tall order, but one that he acomplishes with strong evidence and prose.

--The Hold Steady's Separation Sunday
There plenty of music I could list here, but the Hold Steady's most recent album is as good of a choice as any, combining several different rock influences into something creative, catchy, and worthy of many, many repeat listens.

Another victim of the economy . . . recycling

2008-12-23T14:15:00.002-05:00

More evidence of the down turn in the economy is demonstrated by the decreased demand for packaging made from recycled materials.

The past couple of years have been very, very good to waste paper recycling exporters. The demand from Asia has been huge. Speaking in terms of volume, waste paper is one of our top exports. Unfortunately, over the last three months, the recycling industry has slowed due to the decline in consumer spending. Bales and bales of abandoned cardboard and newsprint just sit in Chinese ports. Material that was previously selling for $150 a ton was suddenly selling for $20. Recycling exporters were stunned.

The question then becomes – If China doesn’t want our recycling anymore, what happens to it? It may just end up in a landfill. Recycling (like most things) is based on an economic need. The sad fact is that no one is going to recycle if there is no money in it. Local recycling efforts are feasible because is it easier and cheaper to coordinate; however, not all recycling efforts are that simple. Whatever happened to reduce, reuse, recycle?

From NPR: Recycling Industry Slows as Consumers Shop Less

The Rising Cost of Higher Education

2008-12-04T10:16:00.002-05:00

As the United States continues its attempts at economic recovery, the New York Times is reporting on another trend that may have more dire long-term implications. While most are aware of the ever increasing costs of college tuition, a recent report by the National Center for Public Policy and Higher Education finds that in the not so distant future many Americans will not be able to afford higher education.

“Over all, the report found, published college tuition and fees increased 439 percent from 1982 to 2007 while median family income rose 147 percent.” It is argued that if this trend continues at a similar rate, a college education will no longer be affordable for many people. College loans have doubled in the last ten years, and low income families – who would be hit the hardest by such an increase – do not receive sufficient grant money to offset this increase in price.

Some are worrying that a reduction in the number of people who afford college would increase the educational gap between the United States and the rest of the world. Patrick M. Callan, president of the National Center for Public Policy and Higher Education has stated that, “Already, we’re one of the few countries where 25- to 34-year-olds are less educated than older workers.” With such an educational disadvantage, the United States could easily fall behind many other countries in several important areas.

Public universities have acknowledged the rising tuition costs, but point to the options that are available to students today. People have the option to go to a community college (average tuition fee of $3,200.00), a private research institution (average tuition fee of $33,000.00) or a number of alternatives in between.

In order to help ensure a strong economy, education is a key factor. With the rest of the world recognizing the importance of higher education, the United States cannot ignore this potential problem. Luckily, there are more cost feasible choices for students (i.e. community college) which can provide students with useful skills and knowledge. However, for some these community colleges may not provide the education they are seeking; if tuition increases at the rates projected, these students may have to forego the specialized learning available at some private institutions, causing a lack of qualified employees in some key occupations.

Barbara Fisher and the Benefits of Community Gardening

2008-11-23T22:26:00.002-05:00

We have, for the time being, witnessed a merciful decline in the cost of food since last spring, when a confluence of factors triggered worldwide price increases. Yet as New Yorker financial analyst James Surowiecki writes, "the recent price drop doesn’t provide any long-term respite from the threat of food shortages or future price spikes...we’re still having a hard time insuring that people simply get enough to eat, and we seem to be more vulnerable to supply shocks than ever." For those who can afford it, paying more for food can be a good thing, particularly in the case of the U.S. Journalist and writer Michael Pollan notes in last year's essay "Unhappy Meals" that "Americans spend, on average, less than 10 percent of their income on food, down from 24 percent in 1947, and less than the citizens of any other nation." Still, unstable food prices mean that more people have less to eat.

While there aren't any easy solutions to avoiding another food crisis, it's instructive that Pollan has been a strong advocate for domestic food policy reform, while also urging his readers to make personal changes in their eating habits. This combination of thinking structurally and individually is what I enjoyed about a recent post from Barbara Fisher's blog Tigers and Strawberries. Fisher is a leader of the local food movement, and in answering the question of what to say about food and farming with "one minute of [President-elect] Obama's undivided attention," she responds thusly:

"I would suggest that federal support for urban community gardens and farms could help the urban poor produce some of their own fresh food, and perhaps a program of tax credits for suburban and small town families who turn some or all of their yards to food production would encourage the middle class to not only produce some of their own food as well. Educational programs to help non-gardeners learn the skills needed to grow food, such as the current County Extension Agencies could be expanded so that there was more community outreach and involvement, as well as tying the Extension offices to public school Edible Schoolyard programs across the country.

"Americans really want to roll up our sleeves and do something to help make our country great again, and these sorts of self-help programs will get people moving in a positive direction again, as well as providing good, fresh food to people who may otherwise have no access to it at all. "

That first sentence--federal funding and tax credits for producing food locally--is particularly striking. Obviously, neither proposal would ameliorate the type of problems that Surowiecki identifies within the global food market. But with proper planning, they would allow citizens, regardless of economic status, to participate in the growing of their own food. As Fisher points out, such policies would have environmental and educational benefits; they also would provide a healthy source of food without the use of industrial farming's less desirable growing methods, such as heavy fertilizer and pesticide use.

While it's unlikely that we will see federally subsidized community gardens anytime soon, local governments can certainly promote local food habits without having to spend a lot. Terre Haute, Indiana offers a good example. Thanks to the efforts of many people (including my father Pat Martin, a city planner), Terre Haute opened its Community Garden to the public in April. The garden has several other sponsors in addition to the city (with Indiana State University being the primary sponsor); it asks members to donate a "portion of their produce" to a local food bank; forbids the use of pesticides, herbicides, inseticides, and fungicides; and, for this year's growing season, offered education programs and workshops related to gardening. Perhaps the only drawback is that the garden includes seventy-one plots, which limits potential participants.

So Barbara Fisher's idea is practical and more than feasible to implement, even if it will take a lot of approaches to, in her words, insure "good, fresh food to people who may otherwise have no access to it at all."

Update on Nebraska Safe Haven Law

2008-11-22T16:12:00.000-05:00

Nebraska Governor Dave Heineman signed into law yesterday a bill adding a 30-day age limit to a safe-haven law that allowed 36 children — including teenagers as old as 17 — to be abandoned at state hospitals.

Hours after the Governor signed the law, which went into effect today, a 14-year-old California boy was dropped off at a Nebraska hospital. He will mark the last teen to be dropped off after the safe-haven law established an age limit.

The law was meant to prevent newborns from being dumped in trash bins or worse.

Hospital officials have described children crying hysterically as they pleaded with their parents not to leave them.

Five of the children have been from other states, including from as far away as Florida and Michigan. The law was not revised to preclude infants from other states from being dropped off.

Two Updates

2008-11-20T10:14:00.001-05:00

The past two weeks I have written about Proposition 8 (here and here), and the week before these articles I had written on Nebraska’s safe haven statute (here). As new developments have arisen with both of these issues, I would like to take the time this week to bring these latest updates to the attention of the readers of this blog.

Proposition 8

Being reported today on this issue is the fact that the California Supreme Court has agreed to hear challenges to this recently passed ban on same-sex marriages. Three lawsuits have been filed in California challenging that the Plaintiffs’ civil rights have been violated with the passage of Proposition 8. Challengers to Proposition 8 also claim that the State had improperly bypassed the Court’s judicial authority by allowing voters to effectively overturn the previous California Supreme Court.

Arguments in the case are due by December 19, and responses are due by January 5, 2009. Oral arguments, at the earliest, will be heard in March. While this suit is pending, the Court has not authorized the continuation of same-sex marriages; allowance of such marriages will not be allowed unless the Court finds in favor of those opposing Proposition 8. During these hearings, the Court will also determine the validity of those marriages performed after the Court’s original ruling, but before the passage of Proposition 8.

Nebraska Safe Haven Statute

The Nebraska Legislature has reportedly voted 14-6 to send a newly worded safe haven statute for second approval. The language has been amended to set an age limit of 30 days for those children covered under this statute. Such language will create an age limit in Nebraska, the only state that had previously not set such a limit. The final vote on this language is scheduled for Friday, after which the Bill would go to the Governor who has already expressed approval for these changes.

Why did Indiana go blue? (Part 2)

2008-11-16T17:35:00.001-05:00

Another reason for Obama's Hoosier success concerns the evangelical vote. Spiritual Politics blogger Mark Silk notes that while the state's "evangelicals favored Bush by 77-22" in 2004, McCain won "by only 66-41 [sic; should be 31]." In contrast, evangelicals in Southern states generally broke for McCain by a larger margin than they did for Bush in 2004. (Mississippi's 90-9 split is the most extreme example.) Silk offers two different possibilities for this regional difference. The first:

"The most likely explanation for what happened in the South and Southern Crossroads is the persistence of racial prejudice in those regions. It's also the case that this is where evangelicals are most heavily organized and mobilized as Republican partisans. But in the Midwest, there is Obama's identity as a Midwesterner, and the common Midwestern religious sensibility that he appealed to, to take into account."

Silk also mentions in the comments section to his post that since "nearly 40 percent of mainliners answer yes to being born-again or evangelical Christians...it could be that the differential has to do with large numbers of [Indiana] mainliners voting for Obama, rather than 'true' evangelicals."

Both of these possibilities deserve some context. There is a very, very strong correlation between church attendance and political voting patterns. Protestants and Catholics who attend church on a weekly basis are much more likely to vote for Republicans; those who attend church less, practice another religion, or are non-religious are more inclined to vote for Democrats. To demonstrate, here's a chart that compares this year's "pew gap" with that of 2004. The pew gap remained fairly constant from 2004 to this year, but Obama, crucially, was able to make up a little bit of ground. Since evangelicals typically are every-Sunday church attenders, they factor heavily into this overall equation.

Regarding Silk's second point, the standard exit poll determiner of an evangelical is someone who answers "yes" to the question of whether they consider themselves to be a "born-again Christian," as he alludes. In Indiana, this means that while voters from actual evangelical denominations (for example, Southern Baptists and Pentecostals) will answer "yes," there is likely also a significant percentage of voters from mainline denominations that will self-identify as evangelical (for example, Methodists). This means that while mainliners adhere to the "pew gap" pattern I mention above, they tend to be a bit more flexible politically (even in a relatively conservative state like Indiana). So if the percentage of mainliners within Indiana's evangelical vote was high for this election, then that would, in theory, present slightly more favorable conditions for Obama.

And this leads us to Silk's first point. With a larger percentage of "true" evangelicals in Southern states--evangelicals that identify more as Republicans, and who might have more issues with Obama's race--the evangelical vote breaks most heavily for McCain. Yet in Indiana, the communitarian religious impulse, combined with a higher possibility of mainliners voting evangelical, becomes more important. An instructive example appears in a post that Silk made in late April as the Jeremiah Wright fiasco was still unfolding. Silk notes that Obama had attended a service at St. Luke United Methodist Church in Indianapolis. The sermon he links to that St. Luke pastor M. Kent Miller had presented a few weeks before Obama's visit celebrates the church's "big tent congregation" and ability to overcome racial barriers through honest dialogue and collective worship.

Neither the evangelical vote nor Obama's spread-the-field canvassing offer a full answer of why Indiana went blue. Yet they both signify how Obama deserves credit for running a very strong campaign, as well as how his political and personal identify proved favorable to Hoosier voters.

Protests of Proposition 8 Continue Around the Country

2008-11-13T11:08:00.002-05:00

With the defeat of California’s Proposition 8 in last week’s election, many continue to push to regain the rights they briefly had within the state. However, California is not the only state where such battles are being waged. A number of articles this week (here, here, here and here), point to one move towards actual achievement of these goals, but also to other moves that may or may not aid in achieving this right in other states.

In Connecticut, a judge on Wednesday issued an order allowing for same sex couples to marry within the state. Upon the issuance of this order, it has been reported that many same sex couples began applying immediately for licenses. With the passage of Proposition 8, there are once again only two states which allow such marriages – Massachusetts and Connecticut.

In Utah, supporters of same sex marriage arranged protests at Mt. Hope Church. Protesters in Utah have chosen mainly Mormon churches as these churches had spent millions of dollars in support of Proposition 8.

In New York City, a large number of protesters surrounded the LDS Manhattan temple in opposition to the temple’s involvement in the passage of Proposition 8. The article also mentions that a protest in all 50 states is scheduled for this upcoming Saturday (November 15, 2008).

Finally, in Michigan, protesters have also chosen to stage their demonstrations outside of a church. However, unlike the demonstrations in Utah and New York City, the demonstration in Lansing seems (based solely only on what is presented in the articles) to have gone a bit too far. It is reported that there were two groups – an outside group who held a legitimate protest, and an inside group. The troubling aspect of this protest is that the inside group apparently pulled a fire alarm, dropped leaflets and yelled at parishioners.

It is quite understandable that many were upset with the passage of Proposition 8 last week. However, demonstrations such as those in Lansing seem to be counterproductive to the cause. I doubt that the Connecticut judge would have been influenced by an angry mob gathered outside (or worse inside) the courtroom; instead, in Connecticut they chose to follow the proper procedures to attempt to have same sex marriages approved.

Protesters have First Amendment rights, and so I see little problem with the protests in places such as Utah or New York City. However, I am not sure that after-the-fact protesting will do any more than send a message of anger to these churches. And, once such protests are finished, the task will remain to attempt to legalize same sex marriage through proper legal channels. The more protests approach that of the scale in Lansing, the more difficult finding support through these proper legal channels may be.

Whales lose as Navy wins case over sonar

2008-11-12T14:20:00.000-05:00

From the Wall Street Journal:

The Supreme Court on Wednesday lifted restrictions on the Navy's use of sonar in training exercises off the California coast, a defeat for environmental groups who say the sonar can harm whales.

The court, in its first decision of the term, voted 5-4 that the Navy needs to conduct realistic training exercises to respond to potential threats by enemy submarines.

Environmental groups had persuaded lower federal courts in California to impose restrictions on sonar use in submarine-hunting exercises to protect whales and other marine mammals.

Chief Justice John Roberts wrote the majority opinion, which was joined by Justices Samuel Alito, Anthony Kennedy, Antonin Scalia and Clarence Thomas.
The court did not deal with the merits of the claims put forward by the environmental groups. It said, rather, that federal courts abused their discretion by ordering the Navy to limit sonar use in some cases and to turn it off altogether in others.

A species of whales called beaked whales is particularly susceptible to harm from sonar, which can cause them to strand themselves onshore.

To read the full opinion, click here.

To read a transcript of oral arguments, click here.

Why did Indiana go blue? (Part 1)

2008-11-09T19:20:00.002-05:00

One of the more stunning aspects of the presidential election returns came around 2:00 AM on Wednesday, when networks began calling Indiana for Barack Obama. Having grown up in western Indiana, I learned at a young age that Indiana always chose Republican candidates for president, despite the fact that Democrats are quite competitive at the state level. (The last Democratic presidential candidate to buck this trend was Lyndon Johnson in 1964.) This year was seemingly going to be no different.

So why did Indiana go blue? It's a bit early to ascertain a thorough answer, but at least two reasons are suggestive. The first emerges from Walter Shapiro's article "Turning Indiana Blue," which Salon published just over two weeks before the election. As Shapiro writes:

"...if Obama wins the state, more than anything it will be due to the best voter-contact operation Indiana has ever seen. Even Murray Clark, the Indiana Republican chairman, says with grudging admiration in his voice, 'Obama's done these things right. That's how he nearly beat Hillary in the primary...' "

"Finding Democratic voters in fast-growing suburban Hamilton County, just north of Indianapolis, seems as unlikely as spying a herd of giraffes frolicking in a mall parking lot. In 2004, Bush rolled up the kind of victory in Hamilton County that Vladimir Putin might envy--obliterating Kerry by 51,000 votes with a 74 to 25 percent margin. Yet Obama has two storefront offices in the county (among 44 offices statewide) and is running an aggressive canvassing operation. This unusual commitment of resources is not lost on the Republicans. 'Obama's campaign has targeted the Doughnut Counties'--local lingo for the eight counties that ring Indianapolis--'particularly Hamilton County,' says Clark, the GOP chairman. 'They are targeting upscale voters, particularly women.' "

And Obama's strategy of campaigning in McCain's political backyard paid off. CNN's county-by-county return map shows that Obama lost Hamilton County by less than 29,000 votes (or 38 to 61 percent). Considering that he won Indiana by less than 26,000 votes, this was an important tactical victory, and an example of what influential Indiana political blogger Brian Howey calls "the greatest political campaign in American history that played out vividly amidst Hoosier cities, towns, taverns and farms." Howey writes in a later article that Obama improved upon John Kerry's 2004 tallies in several other Republican counties as well, thanks to "an audacious, successful game plan that spread the field [in other words, across the entire state]." It also helped that Obama had huge margins in arguably the two most important Democratic counties: Lake County, next to Chicago (67-32, with a 71,000 vote difference), and Indianapolis' Marion County (64 percent, with a 105,000 vote difference).

Next post: Why the evangelical vote was so important.

Same Sex Marriages Dealt Setback in Tuesday's Election

2008-11-06T09:52:00.000-05:00

While America has seemingly embraced change in electing Barack Obama the next President of the United States on Tuesday, voters in three states were apparently not ready to accept full scale changes to what many consider a fundamental right. Voters in California, Florida and Arizona on Tuesday voted to ban gay marriages within their borders.

In California, approximately 52 percent of voters approved Proposition 8, only months after the state’s Supreme Court had ruled in favor of allowing such unions. Although Arizona had rejected such a ban two years ago, bans against allowing same sex marriage won by larger margins than that in California in this past election in both Arizona and Florida.

For those in California, some question whether the marriages performed between the time of the state Supreme Court decision and this vote will remain valid. The state Attorney General has gone on record as saying he believes they will remain valid; however, it is expected that law suits and debate will ensue as to the legality of these unions. The actuality legality of these unions may not be determined for some time, as these battles continue.

Aside from expected legal battles challenging the validity of these California marriages, many in California have already announced their intentions to sue to block the ban. Some opponents of this ban have specifically stated that they would fight this ban through all available methods, even to the United States Supreme Court if possible. Some hope that this issue will eventually appear before the Supreme Court of the United States so that this issue may be resolved once and for all.

With the passage of these measures, along with the passage of a measure in Arkansas which prohibits gay men and women from adopting children, some are questioning the prospects of the ability to obtain overall acceptance of same sex marriage by more states in the near future. Although Massachusetts and Connecticut will still allow same sex marriage, and New York and Rhode Island will still honor such unions, forty states now have laws or constitutional bans on allowing such marriages. With the current trend exhibited by this past election, it seems uncertain that the number of states allowing such marriages will be increased in the foreseeable future.

What five months ago seemed like a great victory for same sex couples has now turned into a crushing defeat. While options do remain open for same sex partners (Massachusetts, Connecticut, civil unions and domestic partnerships), the acceptance and change hoped for does not seem forthcoming. Even as Americans await the inauguration of their first African American President and the promise he makes of change, they seem unable to accept the legal marriage of these same sex couples.

To read the New York Times article, click here.

Issue 5 and the Dishonesty of the Payday Lending Industry

2008-11-03T17:22:00.007-05:00

Ohio voters will have no fewer than five statewide ballot measures to consider when they step into the voting booth tomorrow. While Issue 6's proposal of a $600 million casino project has become the most controversial (and costly) measure at this point, we still shouldn't overlook Issue 5 and its implications for payday lending reform. Although it has been less than six months since Governor Strickland signed House Bill 545, a rejection of Issue 5 will repeal the bill's 28 percent interest-rate cap. Consequently, payday lenders would once again be able to charge up to 391 percent interest on short-term loans.

Payday lenders and their supporters that are on the "no" side are primarily relying upon three arguments: 1) payday loans are the only viable option for consumers in need of short-term financing; 2) reform represents unnecessary government interference due to the creation of a database that records loan transactions; and 3) reform will cause lenders to shut their doors, leading to the loss of some 6,000 jobs statewide. As newspaper editorials and columnists around the state have documented, all of these arguments are (perhaps unsurprisingly) disingenuous:

--Cheryl Harris of the Cleveland Plain Dealer notes that the lenders' argument about viable financial options is really an effort to avoid describing how their loans actually work. The truth is that there are short-term alternatives--credit cards, bank and credit union loans, overdraft protection for checking accounts, credit counseling services--that are all better options than pre-reform payday loans. This comparison chart demonstrates why.

--Syndicated columnist Thomas Suddes dismisses the complaint over government interference by writing that "lenders themselves mishandle such data. Cincinnati-based Check 'n Go paid the state of Texas $220,000 in May because Check 'n Go 'exposed customers to indetify-theft [sic] by discarding records in easily accessible trash cans'--records such as borrowers' names, addresses, Social Security and driver's license numbers, and checking account information. It takes a lot to disgust Congress, but payday lenders did."

--Are payday lenders crying wolf when it comes to their claims that 6,000 jobs--their entire in-state workforce--will disappear. If Issue 5 passes, there is a distinct possibility that the industry will have to eliminate some jobs. But it's incredibly unlikely that the number will reach 6,000 because, according to Suddes and the Columbus Dispatch, over 70 percent of the state's payday lenders--1,149 out of around 1,600--have already applied for licenses as small-loans and/or second mortgage operators. Contra their own claims, they won't be vanishing from the state anytime soon.

When we add up the facts, the Dayton Daily News is correct to point out that what payday lenders are arguing is, in a word, "baloney."

UPDATE: Issue 5 has passed, with 63 percent of voters in favor.

Nebraska to Amend Their Safe Haven Statute

2008-10-29T16:59:00.002-04:00

In the news the past several months there have been reports of parents abandoning their children, as old as 17, in Nebraska under the state’s safe-haven law. According to a news article today, Governor Dave Heineman has stated he will call for a special legislative session in order to correct the wording of the law.

Nebraska’s current law potentially allows any parent to abandon their children at hospitals up to the age of 19. As seen since the enactment of this law, hospitals in the state have received more abandoned children than they had expected and older than what most other state laws cover. People from outside of Nebraska have driven hours to the state just to take advantage of this safe haven law; nine children from Iowa, Michigan and Georgia have been abandoned in Nebraska.

Nebraska is the last state to adopt such a safe haven law, perhaps making it more surprising that they have not followed the lead of other states, and instead crafted their own language leading to these issues. The original bill was drafted only to encompass infants, but was later amended when the bill stalled in debate. According to one article, Senator Tom White defends Nebraska’s law by saying that, “All children deserve our protection.”

While Senator White’s statement that “All children deserve our protection” cannot be denied, Nebraska’s safe haven statute appears to go over and beyond the protection that needs to be provided. At this time, it appears that many parents are abandoning their older children as they are having a hard time dealing with their children’s attitude and/or behavior. Instead of working through these issues, children are being abandoned and are being sent to emergency shelters or foster homes.

Instead of protecting the children, it seems that the only people that are being protected are the parents who have given up and cannot deal with their teenage children any longer. These children are being dropped off at hospitals in Nebraska, being torn from their family with perhaps little possibility of finding another family for support. Such programs are helpful for infants and children up to a certain age, but it seems that extending such laws to include children up to the age of 19 are more harmful than good. Thankfully, the Nebraska Governor has realized this and is attempting to resolve this problem as soon as possible.

The Future of Google Book Search

2008-10-29T11:43:00.000-04:00

Three years ago, the Authors Guild, the Association of American Publishers and a handful of authors and publishers filed a class action lawsuit against Google Book Search.

Yesterday, that lawsuit was settled. Google will now be working closely with these industry partners to bring even more of the world's books online. Together Google and the publishers will accomplish far more than any of them could have individually, to the enduring benefit of authors, publishers, researchers and readers alike.

Google has agreed to pay $125 million to start the Book Rights Registry, resolve legal fees from the 3-year-old lawsuits, provide more access to out-of-print books, compensate authors for unauthorized use of their work and find new ways to sell copyrighted books online.

The settlement is subject to approval by the U.S. District Court for the Southern District of New York.

To read more about the settlement, click here.

Proponents of Proposition 8 Targeting Public Schools

2008-10-23T11:05:00.001-04:00

With the election just weeks away, proponents of Proposition 8 in California appear to be ramping up their efforts to overturn the state Supreme Court decision allowing for same sex marriages. In an effort to overturn the decision in In Re Marriage Cases, supporters of Proposition 8 have taken to running commercials suggesting the harmful effects that legalized same sex marriages will have on schools and their students. (Samples of some of the commercials can be found here and here.)

In these commercials, advocates of the proposition worry that schools will be required to teach students about same sex marriage. Proponents of the measure point to instances such as a field trip of first graders, with parental permission, to San Francisco City Hall where their teacher was married to her female partner.

However, opponents of Proposition 8 state that schools have already been teaching tolerance of gays and lesbians, long before the Court decision. Children have been taught about such issues as homophobia, discrimination against homosexuals and sexual orientation; whether Proposition 8 passes or not, schools indicate they will continue teaching such subjects.

Many campaign ads focus on the negative and often instill some level of fear into the public. However, as is the case in most instances, the opponents of Proposition 8 provided concrete evidence of the effects this measure will, or rather won’t, have on the education of students.

As presented in the article, “[a]n estimated 52,000 children are being raised by two mothers or two fathers in California.” Children will notice such things and have questions; this will occur whether same sex marriage is legalized or not. With the changing world, it seems necessary to help children with their questions and teach them acceptance rather than discrimination. Perhaps it should be the parents rather than the school teaching this, but it seems odd that this issue seems to only have appeared with the vote on Proposition 8 approaching.

John Berry’s “Escape from Reading”: Where to Begin?

2008-10-13T22:48:00.004-04:00

To be blunt, John Berry’s September 15 editorial column for Library Journal (“Escape from Reading”) is misguided. Berry begins by mentioning that “I never ‘loved’ reading, the way so many people declare they do,” with his increasingly poor eyesight only making the act “more difficult.” Therefore, as he writes:

“In this new phase of my life, I have begun to view the progress of media and information technology as advancing my liberation from reading, or at least from much of the guilt and drudgery I associate with it.”

The word “liberation” in this sense is a bit peculiar, but isn’t really problematic yet. But Berry further contrasts reading with other (aural-visual) forms of media consumption that he prefers. Reading is “time-consuming,” while new media forms are easier and more efficient. Classic literature full of “lifeless typography,” such as Ulysses and Moby-Dick, was once a proverbial millstone around his neck, while “[b]oth sound and image giver the words more color, more life.” Not liking books once meant negative feelings (guilt, embarrassment, shame), while “I [now] don’t have to...feel guilty because I’ve put down the book to watch the movie.”

So how is Berry’s dislike of reading meaningful for the modern library? As he writes:

“We librarians would be fools if we didn't take advantage of the liberation the new media have given us from our ancient role, chained to the codex book and the hard labor of reading it and toting it around. Though books will always have an exalted place on our shelves, there's a great deal more we can offer, both in our stacks and on our library web sites. It is clear to me that among our most exalted professional missions is to make sure these new ways to receive entertainment and information are accessible and available to everyone. That can only lead to more widespread enlightenment, even for those who, like me, need sometimes to escape the printed page” (emphasis mine).

This is a bewildering passage for several reasons. Berry’s support of new media as a tool of liberation is remarkably uncritical, ignoring any sort of social or historical context (other than his own personal experience). Are other forms of media consumption inherently “easier” than reading? How does “easier” equate with “liberation” or “enlightenment”? Moreover, librarians are more than adequately incorporating “these new ways to receive entertainment and information,” which is largely contributing to the 21st century library models that…Berry decried earlier this year. Hmm.

Similar questions arise with regard to Berry’s treatment of reading. As best I can tell, “reading” in this column primarily stands for reading canonical works with which many people struggle. But reading books is, quite obviously, about much more than wrestling with Ulysses, as the broad review coverage of Library Journal amply demonstrates every issue. What should also be quite obvious to Berry is that there are countless ways to read books and respond to what we are reading, whether James Joyce or Danielle Steele wrote it. There are too many counterexamples to plausibly imagine books as something to which we are enslaved or “chained.”

And this leads to perhaps the most irritating aspect here, which is tone and word choice. Berry declares halfway through that “some folks will see this as a confession,” which is really an unavoidable conclusion. By casting books as oppressive and the act of reading as guilt-ridden, he clearly makes it sound as if his general rejection of both is a courageous act. It isn’t. That’s not to say that Berry’s struggles with reading aren’t legitimate, or that libraries shouldn’t extend their outreach to patrons who are there for reasons other than to check out books. Rather, adequately addressing such issues requires an appreciation for complexity and a lack of hyperbolic claims—both of which are sorely lacking in this column.

2008 Nobel Peace Prize awarded to former Finnish President Martti Ahtisaari

2008-10-10T10:50:00.001-04:00

The Norwegian Nobel Committee announced today that former Finnish President Martti Ahtisaari has won the 2008 Nobel Peace Prize. The committee cited Ahtisaari's "significant" part in establishing Namibia's independence and his "central" role in solving the question of the Indonesian province of Aceh in 2005. Ahtisaari twice worked to find a solution in Kosovo -- first in 1999 and again between 2005 and 2007. He also worked with others this year to find a peaceful solution to the problems in Iraq, the committee said. Ahtisaari is Chairman of Crisis Management Initiative, an independent, non-profit organization that promotes and works for sustainable security.

The prestigious prize includes a medal, a personal diploma, and 10 million Swedish crowns ($1.4 million) in prize money. The committee awards the peace prize annually according to guidelines laid down in the will of its founder, Alfred Nobel. The committee plans to award the prize to Ahtisaari on December 10th at Oslo City Hall in Norway.

The peace prize is one of five Nobel prizes awarded annually. The others -- for physics, chemistry, physiology or medicine, and literature -- were announced this week and will be awarded in Stockholm, Sweden later this year.

There should be more people in the world like former Finnish President Martti Ahtisaari. I hope that he will inspire others by his efforts and accomplishments. Congratulations! Enjoy the $1.4 million.

source: CNN

The Bailout and Foreign Economies

2008-10-02T11:57:00.004-04:00

While the current market issues and the associated proposed government bailout continue to be major concerns in the United States, other countries are also feeling the effects of this financial crisis. Many countries are feeling the impact of the crisis and pending bailout in their stock markets and banking industries.

Yesterday, the Senate voted 74-25 to approve a bailout, which included amendments that raise the amount of funds that will be federally insured from $100,000.00 to $250,000.00, extended tax breaks and will restrict “"golden parachute’ severance payments to disgraced Wall Street executives.” President Bush has asked the House of Representatives to approve the bailout by the end of the week so it can be enacted “to avoid further damage to the US economy”. It is uncertain whether this vote will be taken this week, and whether the House will approve this amended bailout after previously rejecting an earlier bailout proposal.

Even with just the Senate approval of this bailout, European stock markets were lifted and the value of the dollar was raised in Europe. Although there has been some improvement due to this Senate approval, the European Central Bank has renewed millions of dollars in one-day loans to ensure that distressed interstate banks would continue to have proper cash flow. The Asian stock market continues to fall due to this American financial crisis; banks have been required to expend several billion dollars in order to ensure the Asian stock markets continue to move.

On Saturday, economic leaders from Britain, France, Germany and Italy will convene "to discuss the crisis and a Dutch proposal for a European rescue fund for banks.” Some countries have taken measures into their own hands rather than wait for a response from the European Union. Two major Dutch banks have already received government bailouts and an emergency law was passed in Ireland to guarantee bank deposits (a move several European countries fear will mean a large number of transfers from other European countries to Irish banks).

It is natural that we think of resolving our economic issues without necessarily considering the impact felt by other countries. Still, it is obvious that our economic difficulties are having a large impact outside of our borders. Hopefully, the bailouts and measures taken by both the United States and foreign countries will be sufficient to turn around this crisis and ensure measures are in place should something similar happen in the future.

You can read the original article here.

Violating Federal Tax Law from the Pulpit

2008-09-28T20:26:00.001-04:00

Earlier this morning, over thirty pastors planned to violate federal tax law by endorsing a presidential candidate while from the pulpit. As The Christian Science Monitor’s Jane Lampman reported last week, the pastors’ actions occurred on behalf of the Alliance Defense Fund (ADF), who proclaimed today as “Pulpit Freedom Sunday.” The ADF—a legal organization associated with the Religious Right—argues that pastors have the right to endorse political candidates within church as part of religious free speech. This stance goes against IRS tax codes, which prohibit churches from becoming involved in partisan political activity. Violations can result in churches losing their tax-exempt status.

So what might be the ultimate significance of what the involved pastors and ADF are doing? Writing for Church Law and Tax Report a few years ago, Richard R. Hammar noted that despite what the codes say, many “flagrant violations” occur during election years that the IRS fails to punish. Moreover, Jeff Sharlet elaborates on a related source of confusion:

“Outraged? You probably should be—we're talking about the money machine of the Christian Right—but I'm guessing you aren't, because I barely understand what I've just written myself. Most people don't know that churches aren't allowed to talk politics. So news of a bid to stop a bid to overturn the ban requires the journalistic equivalent of explaining why a joke is funny. It's hard to get outraged over defiance of a law you didn't know existed.”

So while the story has picked up some steam in the last several days, it’s still difficult to tell if what’s happened—and the oppositional stance from mainstream media and religious leaders—will ultimately amount to much in the long-term.

Two things are clear, though. The first is that despite what the pastors and ADF may claim, they do not have the Constitution on their side. Lampman mentions that in three separate cases since 1954, courts have ruled that the IRS prohibition “does not violate the Constitution’s free speech clause.” Mark Silk also contends that Pulpit Freedom Sunday does not pose a constitutional issue, since the free exercise clause “has never been interpreted to include a right not to be taxed. The remedy for the grievance here is simply for ADF to try to get the law changed.”

Secondly, ADF intends for the title “Pulpit Freedom Sunday” to signify a courageous spiritual stance against government (read: secular, evil) forces of oppression. Yet as a Duluth pastor commented, the event is, in reality, “kind of foolish.”

Redesigned Global Legal Monitor Launched

2008-09-27T16:24:00.000-04:00

From The Law Library of Congress:

The Global Legal Monitor has transformed from a monthly published PDF to a dynamic continuously updated website. The new Global Legal Monitor has the ability to view legal developments by topic (more than 100 so far) and by jurisdiction (over 150). The content of the Global Legal Monitor can also be searched through its advanced search interface.

Each legal development has its own permanent link for easy access, sharing, and bookmarking. To keep up-to-date on new legal developments in the Global Legal Monitor subscribe to its RSS feed.

The Global Legal Monitor is an online publication from the Law Library of Congress covering legal news and developments worldwide. It draws on information from the Global Legal Information Network, official national legal publications, and reliable press sources.

West Memphis Three Seeking New Trial

2008-09-25T11:06:00.000-04:00

One of the members of the famed West Memphis Three, Jason Baldwin was in court yesterday seeking a new hearing. Baldwin, along with Jessie Misskelley and Damien Echols, was convicted of murdering three young boys in 1993; since that time, new evidence has come to light which these convicted individuals hope to exonerate them of these crimes. Additionally, Baldwin claims he had ineffective counsel during the first trial. Earlier this month, all three members were denied new trials as the judge ruled the new DNA evidence failed to prove they were not at the scene of the crime; as such, Baldwin’s request for a new trial at this time focuses solely on his lack of effective counsel.

In 1993, three young boys were found bound and murdered in what police thought was an occult ritualistic murder. Baldwin, Misskelley and Echols were then arrested and put on trial, with the trial focusing on satanic rituals and heavy metal music. At the time, no forensic evidence could be found tying any of these individuals to the murder, but more recently DNA evidence was extracted from the knife used which match two unrelated individuals.

Due to the nature of the crime, some suggest that there was an attempt to appease the community as quickly as possible. Since the trial, allegations have come about regarding the confession of Misskelley, a “borderline retarded” individual. The reliability of his testimony has been challenged by many, even his own father.

In reexamining evidence, forensic specialists have also concluded that this was not any type of occult ritualistic murder. These specialists found no evidence of sexual abuse, and determined that the mutilation to the boys was caused by animals. Both the alleged sexual abuse and mutilation were the key facts giving rise to the idea of a satanic ritual.

Whether one supports the West Memphis Three or believes they are guilty, it seems very apparent that the judicial system did not work properly in this instance. While proper forensic tools may not have been available in 1993 to examine DNA, the fact that there was no physical evidence tying the accused to the murders and the reliance on a unreliable witness as the primary support for conviction would seem to give cause for a new trial.

It is understandable that the thought of ritualistic occult killings would give rise to fear in a community. Anybody hearing about such killings in their neighborhood would most likely react in fear the same way the residents of West Memphis did. However, a community’s fears do not override the right of Due Process that these individuals seem to have been denied. Whether they are innocent or guilty nobody will really know until all the evidence is properly presented.

For more on the West Memphis Three, many of the court documents and other updates can be found here. (Note: this site is pro-West Memphis Three and their opinions do not necessarily reflect my view; however, the site does provide much case information directly from the Courts, the police and other media outlets.)

Also, information on the case and additional evidence found since their conviction can be found here.

Afghanistan Opens First Full-Service Law Library

2008-09-20T16:14:00.000-04:00

As a Kent State University graduate myself, I was thrilled to hear about the wonderful work that a fellow MLIS graduate was doing in Afghanistan. Andrea Muto just established a new law library on the campus of Kabul University in Afghanistan. Her endeavor in establishing a library in Afghanistan is unprecedented. The country has suffered for 30 years from war and establishment of a law library was difficult.

Andrea had been working for a USAID-funded project in Kabul for about a year and a half. Among other projects, she created a new law library basically from the ground-up (space was provided) and hired a new law library staff (in a country where no tradition of librarianship exists). To read the full article, click here.

Take note of the searchable full-text database of laws Andrea worked with her staff. This database includes all laws from Afghanistan's Official Gazette from 1964 to present - and is the first of its kind in Afghanistan!

Elections Problems Expected (Already)

2008-09-18T09:43:00.002-04:00

It’s September 18, 2008, and people are already, and once again, concerned with polling place procedures and issues that are expected for the November 4 election. According to a Washington Post article this morning, the large increase in voter registration requests, new procedures and new technology leads one only to expect further problems with our nation’s Presidential election.

The goal of these new procedures and new equipment was to avoid problems as experienced in 2000 (Florida) and 2004 (Ohio). However, as the article explains, and many people have already experienced, such measures have done little except to discourage voters and cause new problems. In many places, such as Ohio, there has been much discussion of the touch-screen systems that had been put in place and the additional problems they have caused. Such states are now turning to paper ballots, to be read by an optical scan machine; even with the addition of this “paper trail” though, there are concerns about adequate reading of the ballots and the procedure for how and where these ballots are to be read.

Also, this upcoming election will be the first Presidential election where federally mandated state databases for matching voters to their information will be implemented. Any small error in this database and the voter may be wrongfully denied their vote. With the matching requirements being so strict, in addition to the higher expected turnout, it is very likely that there will be several such issues.

Some local primaries have already evidenced the problems that can be expected in November. In some cases, the vote count was artificially inflated while in others some votes went missing. Results have been delayed due to technical issues, and the manufacturer of many of the voting machines in use has admitted to issues with the machines and the opportunity for lost votes.

Many of these issues have been discussed here and elsewhere many times before. However, with this being the first Presidential election since many of these procedures and new equipment have been mandated, this may very well be the true test, and perhaps downfall, of these measures. Jurisdictions are already receiving a huge influx of voter registration requests, and it is likely that the turnout for the Presidential election will be higher than that for local elections. With the larger amount of people present, the expected problems will only be exacerbated.

One apparent saving grace, assuming people are aware of it, is the ability in many states, including Ohio, to vote absentee without requiring any reason. In fact, Montgomery County has been sending absentee voter applications to houses in order to make voters aware of this option. However, to vote absentee, one must have faith that their ballot will be received and must still maintain the faith that the voting equipment will actually read their ballot correctly.

It is hoped that the election goes off without any problems, however that seems very unlikely. If the expected problems occur to the extent expected, it will be interesting to see what the states and federal government attempt next to solve these issues. If we keep changing the procedures and equipment though, it seems unlikely that anything will ever finally “stick” and we will be reading articles such as this for a long time to come.

Michigan Voter Challenges

2008-09-11T14:36:00.002-04:00

An article published in the Michigan Messenger yesterday discusses the plans of the Republican Party in Macomb County to challenge voters’ eligibility based on matching their names and addresses to those published on a list of foreclosed homes. Macomb County is reported to be “a key swing county in a key swing state”.

In Michigan, parties are permitted to have representatives present to challenge voter qualifications. Such challenges can be made “provided they [the election challengers] ‘have a good reason to believe’ that the person is not eligible to vote.” The use of the foreclosure listings to challenge a voter’s qualifications is based on challenges being permitted to verify that the voter is a resident of the election district. The Republican Party’s logic in making these challenges based on the foreclosure list is that one a house is foreclosed upon, the person will no longer be living there and as such cannot use that address to meet residency requirements. However, what the Republican Party apparently is failing to recognize is that many people maintain residency of their property throughout the foreclosure process, often times negotiating with the mortgage company to settle their debt and still keep their property.

The primary issue with the use of these challenges is that minorities will be disparately impacted. Minorities comprise over half of all borrowers obtaining sub-prime loans – the type of loan that is most frequently defaulted upon. Not only are minorities, at least in Macomb County, a majority of the sub-prime mortgage holders, but they are also largely Democratic. As such, to disallow these votes, statistics would suggest that more Democratic votes will be disallowed than Republican votes.

In addition to disqualifying these voters, these challenges will cause delay in everybody’s voting process. While votes are being challenged, those in line will either wait patiently or most likely decide the wait is not worth their effort. Many are already disillusioned with the voting process since the installation of electronic voting equipment, and it is not unthinkable that added delays such as this will cause many potential voters to leave before casting their votes. Some people may be chased away from polling places by just hearing that such challenges may be occurring and that the process could be delayed.

It is understandable that counties have their own election procedures that must be followed and that the qualifications of voters must be determined. However, the way the Republican Party is handling such verification seems to have burdens that outweigh any of the benefits. A list of foreclosed properties does not seem like a very accurate account of these voters’ living conditions, and requiring voters to provide proof of their residency could disqualify many valid ballots. To add in the burden it has on all other voters, discouraging them from casting their ballots, really makes this plan troublesome.

Colgate slammed for Twittering

2008-09-09T17:10:00.000-04:00

The Chronicle of Higher Education had an article online yesterday that discussed Twitter, a service for friends, family, and co–workers to communicate and stay connected through the exchange of quick, frequent answers to one simple question: What are you doing?

The article received mixed reviews from readers. I tend to agree more with the comments that are critical of the article . . . I too expect more from the Chronicle. I don’t twitter, but my husband and several of my friends do. I’m always slightly amused when I catch a quick glimpse of some of the things that are posted on Twitter, but for the most part, it just isn't my cup of tea.

I guess my biggest complaint with the article is that it is the writer is quite presumptuous and unprofessional. Mr. Carlson doesn’t even give Colgate credit for trying something new to reach its students. Undergraduate students are particularly fond of Twitter and it serves no purpose to criticize and mock Colgate’s efforts in trying something novel. I approve of Colgate’s attempt at twittering . . . keep posting young man, I’m sure that you will have more than 10 followers soon.

Library 2.0 Programs/Sites and Their Possibilities (Part II)

2008-09-07T21:24:00.000-04:00

Facebook: I was kind of critical about Facebook a few months ago for its marketing approaches and the silliness of most of their programs. And then cruel irony intervened, and I became hooked shortly thereafter, to the point where it’s now become a daily “must-visit” site. This consistent interaction has really helped me to clarify Facebook’s strengths as a networking tool. Its interface is miles ahead of MySpace; it offers users several forms of communication that, altogether, can conceivably serve as a replacement for e-mail; and it’s extremely simple to locate people with a minimum of information. It also is averaging well over 100 million unique visitors a month, and has surpassed MySpace in overall popularity.

All of the above factors offer more than enough justification for libraries to consider how to integrate Facebook as a means of patron outreach. Several public and university libraries now offer a Facebook application that links to their catalog; user response seems to be modest so far, but it’s a useful effort. Chad Boeninger mentioned how he offers reference services through his Facebook profile, which also has potential. Yes, the marketing factors and clutter present drawbacks, but they’re worthwhile risks; the site’s features and amount of users are too good for libraries to ignore.

Instant Messaging/Skype: Instant messaging (IM) and Skype basically offer two different ways for libraries to provide real-time reference services; Ohio University offers both at their “Ask a Librarian” page. The logistics of using IM as a reference tool is pretty straightforward, and OU makes it even easier by offering a Meebo “Ask Us Now” client that automatically connects patrons under a guest screen name. Assuming that librarians have a regularly available schedule to answer questions, it has a lot of upside.

Skype—an Internet calling program—is a bit more complicated, as it requires a video camera. Boeninger mentioned that OU decided to set up a dedicated video kiosk in Alden Library for students to call reference librarians through Skype. (He personally takes calls whenever he is available at his desk; I think it’s the same for some of his colleagues, but I’m not certain.) This might not be such a great option for smaller libraries, but works rather well for OU, and is viable for similarly-sized academic libraries.

Another Develoment in Cell Manipulation

2008-08-28T11:28:00.000-04:00

The Washington Post has an article on-line today discussing scientists’ recent success with transforming living cells within living subjects. As the article indicates, this may eventually lead to great progress in curing disease, but will most assuredly cause controversy and debate.

The cells transformed were those from within a mouse’s pancreas that, when flipping what the scientists deemed were the key molecular switches, converted a common cell into an insulin-producing cell. While there will be numerous tests which will take a good length of time, this indicates that there is potential in humans to perform a similar procedure in order to cure diabetes. The scientists hope that such treatment can also be applied to those with heart disease and other illnesses.

Richard Doerflinger of the U.S. Conference of Catholic Bishops has already stated his support for this proposed method as he hopes it will end the need for stem cell research. Unlike stem cell research, where the cells to be converted are taken from dead embryos, the cells in this procedure would be able to be taken from a living person.

Still, many claim that stem cell research is needed, especially as this new procedure has yet to be performed on cells from any other living specimens aside from mice. It is uncertain how the procedure will transfer, and advocates of stem cell research claim that this new procedure may not be as useful.

The only problem I see with this new procedure is that advocates of stem cell research make a very valid point – this new procedure may not transfer over to humans. However, with research already being done to examine this potential roadblock, it seems that scientists are hopeful that they will be able to apply a similar procedure on humans. To be able to take cells from a living person and convert those into useful healthy cells that can cure disease would be ideal. It would avoid the issues associated with stem cell research, while meeting the goals that stem cell research was attempting to reach.

Library 2.0 Programs/Sites and Their Possibilities

2008-08-22T10:00:00.002-04:00

Earlier this month I attended an OHIONET workshop entitled “What’s the Point of Web 2.0?” Presenter Chad Boeninger, a reference librarian at Ohio University, had a simple answer: for libraries, the main point of Web 2.0 is patron outreach. Library 2.0 approaches allows librarians to 1) provide better learning experiences; 2) “shift time” by accessing audio/video/text on their own schedule; and 3) have opportunity to provide feedback for what they learn. This is one of the most straightforward (and best) arguments I’ve heard in favor of utilizing 2.0 technologies in a library setting.

But what kind of technologies can libraries use to their advantage? Boeninger touched upon several different examples, and what follows is my attempt to consider the significance for some of them.

Free weblogs (Wordpress, Blogger): Boeninger primarily focused upon the idea of using blogs as a supplemental learning tool. In his words, blog authors can “create dynamic content” that reaches students and (potentially) non-students alike. (He provided two good examples here and here). As far as I can tell, there’s very little downside in using blogs this way; it’s relatively easy, accessible, and provides a lot of flexibility for creativity.

What about using a blog primarily as a platform for professional development? That’s what we’ve tried to do with Nota Bibliothecae, and many other law and academic libraries are using their blogs in the same manner. The upside is that it’s provided a creative learning experience for us, as well as a chance to reach readers with whom we otherwise wouldn’t have contact. It also has raised a host of questions that are likely familiar to some other “lawbrary” and academic library blogs: Who is our audience? What kind of interaction might (or should) we have with the blogs of our colleagues? What should be the direction of our content? These are things we’ll have to consider as we continue updating.

Twitter: Twitter is already a quite popular form of communication, and its “micro-blogging” format is an attractive alternative to operating a “normal” blog. One relevant example for libraries that Boeninger provided was from the Ford Library at Duke University’s Fuqua School of Business. The library recently established a Twitter page, but also displays updates (or “tweets”) on their own site as well. Right now, it appears that Ford is using Twitter as a general news service, which is a no-brainer—it’s quick and couldn’t be simpler. It would be helpful to know how many visitors their Twitter and “Library Information” pages are receiving as a rough gauge of its popularity, but they’re on the right track. Another possibility would be using Twitter as an emergency notification system, particularly in cases of inclement weather.

Next post: Facebook, instant messaging, and Skype.

Mentally Ill Co-Conspirator to be Executed in Texas

2008-08-21T09:59:00.006-04:00

In the news this morning is an article discussing the next planned execution in Texas. Aside from the fact that there is already much controversy surrounding the death penalty, this case is causing greater debate as: (1) the prisoner in question did not actually kill anybody, and was only a co-conspirator to the murders giving rise to his execution; and, (2) the prisoner in question is mentally ill.

Texas is one the few states in the country that allows the execution of conspirators to commit murder, whether they actually take an active role in the murder or not. Those in support of this policy claim that the execution of conspirators deters crime and allows closure for a victim’s family. However, those opposing this policy claim that executing a person who has not actually killed anybody “violates the most basic principles of justice.”

As to the other controversy, the Supreme Court banned the execution of mentally ill prisoners in 1986, disallowing the execution of anybody who was not fully aware of the reasoning for their punishment. However, the Supreme Court never established rules in how to determine a prisoner’s mental competency; as such, such decisions in Texas are left to the governor or jury on a case-by-case basis.

With the combination of these two factors, this case becomes even more problematic. Many are arguing that without this mental illness, this prisoner would never have been convinced to take part in this conspiracy. Aside from not understanding the reasoning for his punishment, many claim that he never actually had free choice in his initial participation. However, even after this theory was argued in the court, the prisoner was found guilty and was sentenced to be executed.

To not account for the propensity of mentally ill conspirators to be more suggestible than other conspirators when issuing a death sentence seems to punish a person for something they did not understand, or basically had no choice in doing. Depending on the level of mental illness, this suggestibility will vary, and such variation should play a part in determing the severity of the sentence when a jury or Judge issues a judgment, especially when execution is one of the options.

With the failure to establish guidelines for determining when a mentally ill prisoner can and cannot be declared competent for the purposes of their execution, this decision is left in the hands of those who may not be qualified to make this judgment. Whether it be the jury or the presiding judge or somebody in the local government, they most likely are not able to make psychological evaluations. In fact, these individuals most likely have very minimal contact with the accused, and in these situations they only have the opportunity to make judgments on what they hear in the court proceedings.

I cannot make a judgment on whether this execution is proper or not by merely reading this article. I cannot make a definite judgment on whether the proper tests and analysis were performed in order to determine this prisoner’s competency because the article does not indicate how this competency was established, if in fact it was established. The only thing I can feel somewhat comfortable in concluding is that if there were established procedures, including a separate set of guidlines for when the mentally ill person is a conspirator and not an overt actor, issued by the Supreme Court or the government, then there would still be controversy, but at least everybody would have guidelines to refer to when making these difficult decisions.

Phil Donahue to receive Ohio Citizen Action Award

2008-08-15T09:09:00.000-04:00

Ohio Citizen Action will present the 2008 Howard M. Metzenbaum Ohio Citizen Action Award this year to Phil Donahue on Sunday, September 14^th at 7:00 pm at the Cleveland Institute of Art's Cinematheque. There will be a showing of Donahue’s stirring documentary Body of War, a question and answer session with Donahue and a coffee and dessert reception.

The Metzenbaum Award is the highest honor given by Ohio Citizen Action. Since 1995 the award has been presented to Ohioans who best reflect Senator Metzenbaum's example of principled tenacity. This year's award will be presented by Senator Metzenbaum's daughter, Susan Hyatt.

Born and raised in Cleveland, Phil Donahue launched his audience participation television talk show in Dayton in 1967. The show, which was honored with 20 daytime EMMY awards, ran for 29 years and changed the face of daytime television. He is currently touring the nation as co-producer/director of the documentary Body of War. This film follows the story of Tomas Young, a 25 year-old paralyzed U.S. soldier, who was wounded after serving for less than a week in Iraq.

Organ Donation After Cardiac Death

2008-08-14T10:35:00.003-04:00

An article from the Associated Press yesterday discusses a new controversy in the field of medicine – when to declare a person dead for the purposes of organ donation. This comes about after three newborns that had been placed on life support, but not yet meeting the legal criteria for going forth in harvesting their organs, were taken off of life support measures in order to allow for organ donations to other babies.

The standard for declaring somebody dead for the purpose of organ donation has been that the person no longer has any working brain functions. However, in the case of these newborns, they continued to exhibit brain functions, albeit minimal. Instead of using the brain functioning standard, the doctors in this case were able to harvest organs under a procedure known as donation after cardiac death.

Many organizations, including the federal government, are encouraging this type of donation. Instead of requiring a child to exhibit total lack of brain functioning while donees in dire need of these organs to allow them to continue living wait, this procedure allows families the option to donate and creates a larger supply of needed organs.

One of the biggest criticisms of this procedure centers on the fact that it involves children. The other major criticism is the fact that many claim that this donation process violates laws governing when organs may be harvested. In the case of the newborns, the doctors quickly transplanted organs soon after the life supporting measures were removed. It has been argued that the doctors did not wait long enough as they performed the transplants before the donor was declared dead, and the fact that the hearts could be restarted indicates that these donors could not have legally been pronounced dead as they had lost neither total heart nor total brain functioning.

It is understandable that many argue for the protection of children, especially newborns. For some, it is much harder to accept procedures such as these as the newborns in this instance obviously had no choice in the matter and were alive by medical standards. With modern medicine, many believe that more can and should be done in these cases rather than use these children as donors.

However, in these cases the parents were given free will and as legal guardians they have to make the best choice for their child. It cannot be easy to make such decisions, but in doing so these parents had the opportunity to save the lives of three other children. Had they waited for their child to lose all brain function, it is uncertain what the status would have been on the three children that received the donated hearts. The donors’ hearts may have deteriorated beyond medical use, and the three donees may have not had the chance to receive the hearts. From the article, it seems certain that death was imminent for the three donor children, and by allowing the parents to make this decision they were able to help out other families that may have not been able to wait.

Book Review: Sex and the Soul

2008-08-10T18:05:00.001-04:00

Freitas, Donna. Sex and the Soul: Juggling Sexuality, Spirituality, Romance, and Religion on America’s College Campuses. New York: Oxford University Press, 2008.

“Hooking up’s defining characteristic is the ability to unhook from a partner at any time,” declares Laura Sessions Stepp in her 2007 book Unhooked. Sessions Stepp, a Washington Post reporter who often writes about youth trends, goes on to define hooking up in terms of detachment: it can range from a single kiss to intercourse; occur in public or in private; involve close friends or complete strangers; and spark a relationship or simply be the relationship in itself. The practice of hooking up among high school and college students certainly isn’t new, but Unhooked was the first book-length study devoted to hook-up culture.

Mainstream media quickly picked up on Sessions Stepp’s argument that hooking up was detrimental to young women. Yet her work fails to justify such attention. Though there are references to several scientific studies, she profiles just nine girls, all of them from similar economic and geographic backgrounds. Equally as limiting is her tone, which at points is unnecessarily scolding to young women. As Rob Horning wrote about Unhooked last year, “[W]hatever young women choose to do sexually needn’t be pathologized automatically; it seems that the search for explanations for whatever sexual behavior a woman exhibits is ultimately an attempt to wrest it from her.”

This is why Donna Freitas’ new study Sex and the Soul is a welcome arrival. Freitas shares many of Sessions Stepps’ concerns, and finds that hookups often do not help college students “discover the thrill of sexual desire or romantic passion, of falling madly in love and expressing this love sexually.” What’s different is that she maintains a consistently feminist stance by contending that it requires a community effort for students to have a healthy sexual environment. Freitas also presents an impressive amount of qualitative evidence in exploring how hookup culture affects both young men and women on college campuses.

Indeed, methodology—presented within clear and concise writing—is the heart of Sex and the Soul. Freitas’ research questions involve whether religion and spirituality might help bring about positive changes for campus culture. Over 2,500 students at seven different institutions took part in her online survey about “sexual experiences and religious and spiritual commitments.” From that group, she interviewed more than one hundred students, and their responses comprise much of the book’s content. There’s little to criticize here; the schools range from small evangelical colleges to large public universities, and the distribution of students by gender, race, and sexual orientation is fairly diverse.

While the results of Freitas’ investigation “defy easy summary” (in the words of foreword author Lauren Winner), there is plenty to consider. The two main categories of difference that ultimately emerge are “evangelical” and “spiritual.” At evangelical colleges, students share a public faith, and mostly view sex and religion as “inseparable” from each other. Conversely, those at Catholic and other private and public institutions tend to be more privately spiritual than openly religious, and tend to keep their sex lives and spirituality separate from each other. Evangelical schools promote a culture of sexual purity and chastity, while hookup culture has a strong presence at “spiritual” schools.

These categories appear to be a bit too binary at first, but Freitas observes common traits and nuances between them. Many of the self-identified spiritual students that she interviews express unhappiness with how hooking up makes them feel about sex and romance. In fact, spiritual students, much like evangelical students, largely define romance as being free of sexual intimacy. Yet the same problem exists with purity culture as well. As Freitas writes, “The depth and intensity of…stress and anxiety around sex, sin, and shame among [evangelical] students are hard to overstate.” The only real exception is LGBT students, who instead face the “more basic” question of “what it means to be a sexual being with a minority sexual orientation.” Ultimately, no group is getting what it really wants.

What causes this discomfort, regardless of whether one is spiritual or religious? Freitas identifies peer pressure as a major factor. At spiritual schools, even though students say they want romance, they have perpetuated the practice of hooking up to the point where “the first hookup seems to have replaced the first date.” And there is a great deal of sexism involved in this change, for the language and activities of hooking up often emphasize male pleasure and female subservience. By stressing abstinence outside of marriage, purity culture also lapses into misogyny; men become the pursuers when it comes to relationships, while women—who face more pressure to remain virginal—become the pursued.

Yet the rigid gender roles of purity culture point to an additional factor—namely, that college campuses themselves are also responsible for the state of things. For example, evangelical students aren’t the ones who create strict rules and guidelines on their campus that often result in resentment and mistrust. And when spiritual colleges emphasize personal freedom over a specific value system, then there shouldn’t be much surprise when some students end up floundering. In this regard, Freitas thinks that evangelical schools have a slightly healthier model that their spiritual counterparts. Nevertheless, she thinks that both types of colleges can do better in helping students achieve a healthier connection between sex and the soul.

So what, then, are some plausible solutions to counteracting hookup culture? Unfortunately, this is where Freitas’ analysis lags a bit. It’s understandable that she criticizes the lack of overarching values systems at spiritual colleges. But how do those colleges address that problem when they face increasing competition from new educational providers? If anything, they will likely default more to a type of “pluralism as its own value” model as a means of attracting applicants. Or—to pose another question—are there historical examples for colleges to follow that would allow them to remain pluralistic and promote a plausible set of values for their student bodies?

Similar questions arise regarding evangelical colleges. In her conclusion, Freitas presents Lauren Winner’s work as a positive alternative to the sexism of purity culture. And it’s true that Winner’s 2005 book Real Sex sharply critiques some of the more egregiously false claims that purity culture has embraced. Yet her study also presents a quite orthodox approach to Christian sexual ethics, where any sex outside of heterosexual marriage is sinful. The point is that even if the values systems and community-based approach of evangelical campuses are admirable, will they really allow students more wiggle room when it comes to sexual propriety? It’s highly doubtful. The point is that as unique as evangelical approaches are, their particular religious grounding simply doesn’t translate well to other colleges.

But Freitas does present a quite reasonable solution at the end of Sex and the Soul—a small guide for parents, counselors, and other adults as a means of staying attuned to students’ concerns about sex, religion, and spirituality. This suggests that while it will take more consideration to develop system-level solutions to hookup (and purity) culture, there are approaches on an individual level that can make a difference. And it’s important to remember that she does best at critiquing the disjunction between students’ sex lives and their spiritual awareness. Thanks to her host of statistics, interviews, and analysis, any future research on this topic will have to start with her work.

American killed in Beijing as Olympics begin

2008-08-09T11:40:00.001-04:00

The Olympics' opening ceremony was a spectacular show, but the beginning of the games began with the stabbing of two American tourists. One of the victims has died. The attacker jumped to his death in this rare daylight stabbing.

A Chinese man stabbed the in-laws of the U.S. Olympic men's volleyball coach, killing one and injuring the other while they visited the 13^th Century Drum Tower, a 130-foot-high landmark. The victims were Todd and Barbara Bachman, parents of former Olympian Elisabeth Bachman, who is married to men's volleyball coach Hugh McCutcheon. Todd Bachman was killed.

The assailant also stabbed and injured a Chinese tour guide with the Americans. He then committed suicide by throwing himself off the Tower. The killing was a rare instance of violent crime against foreigners in tightly controlled China, which has ramped up security measures even more for the Olympics.

I find it interesting that the media is already calling this a rare daylight stabbing – an “isolated act not directed at Americans.” The embassy went as far as to say “we don’t believe this has anything to do with the Olympics.” Not to be cynical, but what else would it have to do with? American tourists at the Olympics were attacked. Communist leaders may be afraid that any negative press might take the shine off the games – well this certainly won’t help. Murdering tourists at the Olympics will definitely tarnish the games.

Waterboarding at Coney Island

2008-08-07T09:40:00.002-04:00

An article this morning reports that waterboarding has been brought to America, with a twist. People at Coney Island in New York now have the opportunity to see waterboarding performed firsthand, as demonstrated by robotic actors.

According to the article, the waterboarding being demonstrated is faithful to how many claim it is being done by the United States military; the robot actors include a hooded man and a person dressed in an orange jumpsuit with water being poured over his head. People watch through barred windows, and are able to see the disputed procedure by inserting one dollar into a bill acceptor near this window.

Signs describing the demonstration as a “Waterboard Thrill Ride” and using Spongebob Squarepants (stating that "It don't Gitmo better!") as advertisement would seem to be aimed at downplaying the seriousness of this interrogation method. However, the aim of the creator is completely the opposite. In the article, Steve Powers that he wants “people to understand the psychological ramifications of this."

He also claims that people are able to see the physical pain inflicted, even through the barred windows they watch through. Two patrons interviewed by the article seem to agree that this display was shocking, which I imagine is what the creator wanted. However, while one of the individuals interviewed is glad that people are gaining a better understanding of waterboarding, the other seems to write off the procedure as just another horrific incident of war that people don’t need to see.

What seems good about this display is the fact that it appears to respect these divergent viewpoints. It is not being forced upon anybody, and in fact can only be viewed by a person willingly inserting money at the display. For those who do not wish to view the display, they merely have to keep walking. Also, it appears that the fact that people watch through barred windows would make the display private enough that those happening to pass by would not be able to view it unless they really tried.

Bringing this practice to the attention of people in this way is very interesting. Obviously, by using robots nobody is actually being hurt in this demonstration. Still, it seems that the message is getting across. Many who have read about waterboarding can now get a more concrete handle on what actually happens and potential long-term effects. By providing the choice to people to view this display, I think that a valuable service is provided in educating people as to this practice.

Two Recent Takes on Food and Responsibility

2008-08-03T18:11:00.001-04:00

--I’m not really a fan of the New York Post, but their brief profile on Steve Dublanica—a.k.a. “The Waiter”—is notable for a couple of reasons. First, it represents the public unmasking of Dublanica, whose blog Waiter Rant inspired his “new book of the same name.” Secondly, Dublanica raises a salient point regarding restaurant dining:

“ ‘You need to know where your food comes from,’ he says. ‘The same thing holds true for restaurants. You should know that the waiter doesn't make a salary and a tip [or] that a good percentage of restaurants don't treat their employees well.’ ”

Is this somewhat obvious? Sure. But I think it’s a good reminder; even if a restaurant or food-related business is sourcing organic ingredients and humanely-raised meat, their responsibility—and our responsibility as diners and consumers—doesn’t stop there. This means being willing to criticize the establishments that we otherwise love (A good example is Whole Foods: great produce despite the high prices, excellent commitment to paying a living wage, shaky record regarding unions.)

--Gordon Atkinson offers a thought-provoking entry on hunting and gun control at his blog Real Live Preacher. In response to the recent shooting at Tennessee Valley Unitarian Universalist Church, Atkinson first describes his family’s history of hunting for food. He then praises both “careful hunters” and “gentles vegetarians”; criticizes irresponsible gun ownership and those complicit in consuming factory-farmed meat; and finally circles back to gun control and the possibility of finding common ground. This line of thinking isn’t perfect—he generalizes a bit too much, and really unpacking all of these issues would require a much longer essay. Still, I found one passage to be particularly striking:

“Honest and careful hunting of the type that leads to frugal living, care for the land, and respect for what it means to take the life of an animal is a good thing. It’s a natural thing. It’s much better than dropping into a fast-food restaurant and eating meat that doesn’t cost much or cost you anything in time and trouble. The meat industry treats animals as things. They grow up in pens and cages, do not live decent animal lives, and are killed with no sense of compassion, stewardship, or conservation.”

For years, I’ve been ambivalent about hunting deer, especially with regard to my home state of Indiana. One the one hand, Indiana’s deer-hunting season is crucial to controlling overpopulation, and there are enough restrictions to encourage responsibility. And deer hunting also has a practical food value, especially when processed venison can go to food banks. On the other hand, I have a hard time grasping why anyone would experience enjoyment while hunting, and I’m prone to lapsing into generalizations myself when it comes to shooting deer for sport.

Yet as Atkinson, points out, this is a hypocritical stance on my part considering how much meat I’ve consumed from fast food chains over the course of my life. He’s correct to note that there’s a huge difference between reckless hunting and conservationist-based hunting. For omnivores who stand disconnected from the source of their meat, there are valuable lessons to learn from the latter.

FDA to Regulate Tobacco Industry?

2008-07-31T09:00:00.001-04:00

Yesterday, the House of Representatives approved legislation that would grant authority to the Food and Drug Commission to regulate tobacco products. However, according to the New York Times, it appears as if any such legislation will be vetoed by the President.

Proponents of the legislation argue that granting the FDA authority to regulate tobacco products would aid in reducing teen smoking and health issues related to smoking. With this authority, the FDA will be able to regulate advertising and set guidelines on who can purchase these products and where.

Those opposing the legislation claim that this places too large of a burden on the FDA. The FDA would be responsible for approving all new tobacco products, taking away time from monitoring other products. Some even claim that, by having FDA approval, consumers will have the impression that these products are safe, when in fact there will still remain many of the health risks currently associated with tobacco products.

Surprisingly, tobacco companies are split in their support of this proposed regulation. Some companies claim that this legislation will require mergers, or closing, of companies as only large tobacco companies will be able to comply with any new standards and guidelines. However, other tobacco companies, both large and small, are fully behind this legislation.

As a non-smoker, it is easy for me to jump on the bandwagon and say that the tobacco industry definitely needs some regulation, and that the FDA is the agency to provide these regulations. While I do see that opponents of such legislation make some valid points, the potential benefits to be garnered from this legislation seem to outweigh many of these negatives. This legislation would still allow those who choose to use tobacco products the opportunity to do so, while attempting to minimize risks, to the extent possible, and hopefully reducing the number of underage smokers.

Barack Obama's Years at the University of Chicago Law School

2008-07-30T13:19:00.000-04:00

The NYT published an interesting profile of Barack Obama’s years at the University of Chicago Law School in Teaching Law, Testing Ideas, Obama Stood Apart. It chronicled the 12 years that he spent as a lecturer, offering classes on constitutional law, voting rights, and campaign finance law, and a seminar on racism. (Click here for statement regarding Barack Obama from the University of Chicago Law School website). Obama’s wife Michelle recently criticized the law school experience as narrowing instead of broadening one’s perspectives. (Click here to read the full interview). From everything that I read, it doesn’t appear that was the case in Barack Obama’s classroom.

From the article:

At a formal institution, Barack Obama was a loose presence, joking with students about their romantic prospects, using first names, referring to case law one moment and “The Godfather” the next. He was also an enigmatic one, often leaving fellow faculty members guessing about his precise views.

Of particular interest, the article includes links to a syllabus and several exams from his classes.

My hat is off to Obama for being offered a tenured position without meeting the University of Chicago’s strenuous tenure requirements. Chicago has a reputation of being a hardcore legal academic institution that doesn’t offer tenure lightly, particularly to a candidate who hasn’t published any legal scholarship. Given that Obama published nothing whatsoever and was offered tenure upon hire is feat indeed.

House Passes Measures to Aid Housing Market

2008-07-24T11:41:00.000-04:00

The New York Times reports this morning on proposed government measures that are aimed at helping the current housing market. The measures would help to ensure the continued existence of Fannie Mae and Freddie Mac, and would provide measures that would allow borrowers to refinance their mortgages with government-insured loans. It is expected that President Bush will sign this legislation, “despite his opposition to the inclusion of nearly $4 billion in grants for local governments to buy and refurbish foreclosed properties”, as the need to reestablish faith in the housing market is seen as such a high priority.

Only forty-five Republicans voted favor of this legislation, a fact which some see as a attempted separation from President Bush in an attempt to ensure their re-election in November. However, the House Republicans stated that this was nothing more than a vote against a measure that “puts taxpayer money at risk while potentially bailing out irresponsible borrowers and greedy lenders.”

Some describe these measures as a major step in the government’s attempt to reestablish a balance in the housing market, some ranking this move in the same league as the creation of the Home Owners’ Loan Corporation created as part of the New Deal for many of the same reasons. However, as is the case in most legislation, there are many who are not convinced that this legislation will have the desired affect.

It is still unsure as to whether the existing downward trend in the housing market will actually be affected by these measures, and many raise concerns about the government stepping in to save Fannie Mae and Freddie Mac when many had believed that the government would never spend taxpayer money for such a purpose. Other worries are raised in an Associated Press article; such worries include the fact that only first-time home buyers, whose income is under $75,000.00 ( $150,000.00 if married), who purchase a house between April 9, 2008 and July 1, 2009 will be able to take advantage of the tax breaks offered by the legislation. Even if they are able to take advantage of these tax breaks, such money will be paid back over a fifteen year span, albeit tax-free.

There seem to be a number of concerns that may cause these intended measures to fail. It appears as if the assistance provided to home buyers may be too narrowly tailored to help enough people, and/or it may be too late to turn around the housing market in the short time frame anticipated. Signs, unfortunately, point to failure for these measures, which causes even greater concern about the use of taxpayer money to bail out the two large mortgage companies; while it may be necessary to do so to steady mortgage interest rates, a slow to non-existent turn around in the housing market may require the government to expend more money than is economically appropriate or feasible.

Library Safety and Security, Part II: Practical Security Measures

2008-07-23T17:59:00.000-04:00

(See Part I here)

When I look over my notes from last month’s Ohionet workshop on library safety and security, one sentence particularly stands out: “Address [improper] behavior regardless of contextual causes.” While our workshop leaders (Dave Ferimer and Robert Wood) made this suggestion with specific regard to child behavioral issues in a library, it’s just as valuable on a general scale as well. In every library, there are certain rules by which every patron needs to abide; making exceptions because of contextual factors isn’t a sound or safe policy. In this regard, a private law school library like Zimmerman should be no different than a public library branch like Dayton Metro.

Yet because Zimmerman and Dayton Metro are quite different types of libraries, do they always require the same approach towards bad behavior, even if they share the same principle against tolerating it? For example, many of the public librarians at the workshop were describing a fairly consistent struggle to maintain order in their environments. (Even for those not facing significant safety concerns, there were still maddening problems such as teenagers taking CDs into bathrooms and smashing them on the floor.) In comparison, aside from a couple of serious rules violations this year, most of the day-to-day problems at Zimmerman concern food and drink violations. Zimmerman also chooses to restrict patron access at certain times of the year, which obviously isn’t (and shouldn’t) be an option for public libraries.

Still, there are fair and practical security measures that both types of libraries can take without singling out any individual patrons or groups unfairly. Here are three examples that Officers Ferimer and Wood presented during the workshop:

--It helps to post a visible set of rules that 1) are clear and concise, 2) include a concrete consequence. One Ohio public library has a “code of conduct” that lists the following:

--“Disruptive behavior of any kind is not permitted.”
--“Library staff [members] have the authority to determine what is disruptive.”
--“Disruptive customers will be asked to leave library property.”

This code of conduct is quite clear and concise, and it lets patrons know exactly what will happen if they are disruptive. I also like the fact that the second point allows staff members some autonomy in defining whether or not someone is being disruptive. Staff members that feel empowered will likely correspond to a better library environment for everyone, which will in turn help staff morale. In Zimmerman’s case, it might be helpful if we had a better way of visibly conveying our food and drink policy to patrons and library students, along with listing a consequence or two (getting rid of the food/drink, leaving the library until has consumed food/drink).

-- If a patron refuses to leave the library after a staff member confronts them for breaking the rules, it technically constitutes a criminal trespassing violation. In order to have their local police department enforce violations like these, Akron-Summit County Public Library has an official form that they can serve to the patron. The form advises the patron that they are not allowed onto library premises (for either a set period of time or indefinitely), and that any further violations “may result in prosecution for the charge of criminal trespass!” This is a sound option for managing serious cases, and (to the best of my knowledge) would be helpful for both public and private libraries. Even with only two major rule violations in the past year, Zimmerman could have benefited from a trespassing form in one particular case.

--There was a lot of discussion at the workshop about managing, documenting, and resolving unacceptable behavior that becomes threatening or violent. Documentation can be particularly difficult because it’s easy to forget key descriptive elements—the person’s physical appearance, what they said, weapons, and any related activity—after a stressful situation. Accordingly, Cleveland Heights-University Heights Public Library has an online report form that allows its staff to input and submit a thorough description of major incidents. That is an excellent policy, and it’s something that I’m recommending that Zimmerman implements soon. Such a form doesn’t necessarily need to be online, but having a way of quickly documenting what happened provides a potentially vital security benefit, regardless of whether the library is public or private.

Red Cross Fails to Properly Screen Blood Donations

2008-07-17T10:41:00.002-04:00

The New York Times Web site has an article this morning discussing current and persisting issues with the American Red Cross and their blood donation procedures. The article states that despite a total in fines of $21 million dollars in the past five years, the Red Cross has failed to implement measures to insure that donated blood is disease free.

The issues have apparently become so serious that the commissioner for the Red Cross attended a board meeting for the first time ever, warning “members that they could face criminal charges for their continued failure to bring about compliance.” The possibility of splitting off the blood services portion of the operations from the remainder of the organization has also been discussed; such a move would be similar to what the Canadian Red Cross has previously done.

According to the article, the major issues appear to be “shortcomings in screening donors for possible exposure to diseases; failures to spend enough time swabbing arms before inserting needles; failures to test for syphilis; and failures to discard deficient blood.” As some may expect, such failures have lead to diseases such as hepatitis, malaria and syphilis when performing blood donations using this blood; to date there appear to be no reports of transmission of HIV or hepatitis B through this blood, as the Red Cross does ensure that all blood are tested for what are considered the more serious diseases.

The Red Cross controls 47% of the nation’s blood supply and close to five million blood transfusions were performed in 2007. The Red Cross’, or any organizations’, failure to perform proper screening of blood donations could cause and apparently has caused unnecessary problems to the person receiving the blood. It is good to hear that the Red Cross is at least performing an adequate duty of screening for these more serious diseases that can be passed through tainted blood. Although it is implausible to think that every batch of diseased blood can be caught, the Red Cross needs to ensure that they take their success in screening for diseases such as HIV and hepatitis B and apply these measures in testing all donated blood for any type of infectious diseases in order to reduce these risks as much as possible.

On-line Classes and the Cost of Gas

2008-07-10T09:38:00.002-04:00

With the rising cost of gas, many businesses are seeing changes in consumer activities. Some are choosing more fuel efficient automobiles, while others are reducing their travel or overall spending. Educational institutions also appear to be noticing some changes in their consumers’ behavior. According to an Associated Press article, many colleges and universities are seeing an increase in those preferring to take classes on-line.

Prior to gas prices reaching $4.00/gallon and above, there was already an increasing number of students who preferred to enroll for on-line courses. However, with the latest surge in gas prices, administrators are seeing an even greater increase in enrollment in such courses. While the reasons for students choosing on-line over in person classes are usually not sought by these schools and universities, a clear link has been cited between the cost of fuel and this increase.

Students can enroll primarily in two categories of on-line classes. The first is what most think of when considering on-line coursework – the student logs into the class at their convenience, and communicate to professors through chat and e-mail. The other option mixes in person and on-line classes in that the student is required to log in at class time, and is able to communicate with others in the class via microphones and cameras.

This move towards on-line education is requiring professors to adapt to the new technology. In the article, it is stated that many professors are uncertain about the efficacy of these on-line classes. As would be expected, many of these professors would prefer to have their students live in their classroom, but current economic conditions do not always allow for this.

Computer technology has greatly increased the possibilities in our lives. They have created conveniences and cost-saving alternatives. However, with all new methods and technology, there are drawbacks. In the case of on-line education, one issue, at least when some exclusively on-line schools started popping up, is the fact that there is a risk of diploma mills. These “schools” would basically issue a degree for merely paying the tuition; no class work or learning was required. Many of these diploma mills were caught and shut down, but one would think that there is still a risk involved with similar schemes reoccurring. However, if students take these classes at reputable schools such as Villanova (mentioned in the article as providing such opportunities), these risks would be reduced.

Related to these fears of diploma mills is the fact that many businesses became wary of hiring students who attended these on-line schools. Even if students attend on-line classes at reputable schools, businesses, like professors, will need some time to adapt to the fact that more people are now choosing to attend school solely through the Internet. As this educational method becomes more widespread, it is hoped that the acceptance of students with degrees acquired through on-line coursework will be more easily accepted.

Finally, with taking classes solely on-line and communicating only through e-mail and chat, there is a loss of the close connection between the teacher and student. Some classes would seem to require such contact and not lend themselves as easily to on-line education. Some see college as a time to work with the peers you will eventually be entering the “real world” with, and sitting alone in front of the computer does not necessarily lend itself well to this networking and group work.

All this said, on-line learning definitely works at least in some situations and for certain categories of students. This educational method provides valuable knowledge to students while allowing them to reduce their costs of attending. The trick becomes how to offset the negatives listed above so that students will truly be able to take advantage of these positives.

Library Safety and Security, Part I: Dayton Metro Library and Patron Perception

2008-07-07T19:31:00.004-04:00

I recently ran across a Daytonology post from earlier this year about Dayton Metro Library's high volume of homeless patrons at its main branch. The main library is right next to the heart of downtown, while Cooper Park is located directly behind the building. The park's usage has been a particular source of controversy over the past few years; it used to serve as a site for homeless feedings until the city banned them in 2005. Now, with only one daytime homeless shelter in Dayton, Cooper--along with the library--remain a relatively safe rest area for the homeless.

As for the complaints that the Daytonology reader and blogger express, I'm a bit torn. On one hand, they're expressing questions and frustrations that are familiar to other libraries. I attended an Ohionet workshop a couple of weeks ago entitled "Dealing with Unacceptable Behavior in the Library: Protecting Patrons and Staff." Our library has witnessed a couple of serious rule violations this year involving non-student patrons, and I figured that we needed to clarify some safety procedures for managing future problems. But working in a private library that predominantly serves law students must have sheltered me, because I was initially surprised at how almost all of the public librarians and staff at the workshop expressed concerns about pervasive problems that they face. Some of these problems (such as vastly inappropriate sexual and bodily activity) pose quite a threat to the role of their public libraries as safe and democratic spaces. Concerns about drugs, prostitution, and homelessness at Dayton's mail library--as well as how those activities may affect staff morale and patron accessibility--should be no different.

Yet on the other hand--and at the risk of remaining naive--I would still agree with some of the more skeptical comments to this post. I normally go to the Wilmington-Stroop branch that is closest to my apartment, but have been to the main branch enough times to know that the homeless most certainly have not "overrun" it. I would also want to know more information about drug activity (admittedly, a possibility) and prostitution (quite a stretch) directly from librarians and staff before making such claims. And even in the case of illegal activity, it's reprehensible to automatically assume or insinuate that the homeless are the root source of the problem. Yes, the presence of homeless people during the daytime may still raise questions concerning space and usage. But as one commenter rightly notes, "If there is outright illegal activity going on there, then the staff and security guards are perfectly within their rights to tell a perpetrator to hit the bricks. If someone is not being disruptive, however, [then] they have a public right to use the public library."

So we must face the reality that there are several safety and security issues that can adversely affect patron perception of the libraries that they use. But they--we--also have to avoid lazy generalizations and stereotyping that can cloud one's assessment of these issues. How is this possible? I'm certainly not an expert, but I want to explore this topic a bit further in my next post, considering both public libraries and university libraries like Zimmerman that are more limited in access.

Failure of DOJ to Disclose Fact May Alter Supreme Court Decision

2008-07-03T12:04:00.002-04:00

In a rare move yesterday, the United States Justice Department has admitted an error in not informing the United States Supreme Court of a material fact that may have affected a pending case. The New York Times reports that the Justice Department’s failure to notify the Court of legislation that makes the rape of a child by a member of the military a capital offense caused Justice Kennedy to write an opinion in Kennedy v. Louisiana that contained mistaken facts.

In the Supreme Court case, the constitutionality of the death penalty being applied to child rapists was challenged. In a 5-4 decision, the Supreme Court held that such a penalty is improper. However, Justice Kennedy, writing for the majority, set forth as part of the reasoning for this decision the fact that only six (6) states allow a person to be sentenced to death for such an offense. In addition, Justice Kennedy found that since child rape was not a capital offense under federal law, Louisiana’s imposition of the death penalty was unconstitutional.

However, prior to the ruling, Congress had set forth that, as far as the military is concerned, child rape is a capital offense. Additionally, President Bush issued an executive order which added child rape as a capital offense to the Manual for Courts-Martial. Government lawyers failed to inform the Supreme Court, whom they knew was hearing this challenge, that child rape, at least in some circumstance, was a capital offense under federal law, leading the Court to include this misstatement in its opinion.

The Solicitor General’s office did not file a brief with the Court, and none of the briefs filed by others brought this fact to the attention of the Court. After the opinion was issued, this error was pointed out on an individual’s military law blog, and then later by the New York Times. Until such time, it is presumed that the Supreme Court justices had no knowledge of their error.

Parties to a case can request a rehearing in front of the Supreme Court. With these new facts being brought to light, it would seem likely that Louisiana would ask for such a rehearing. If so, it remains uncertain as to whether any change in the ruling would be made. Additionally, there may be questions as to whether the addition of child rape to the list of military capital offenses is constitutional.

It seems interesting that such a seemingly major error was made in a case such as this. It is implausible to think that the Supreme Court has the time to stay up on every law and change Congress makes, but it seems that many were aware of the case docket and issues within the Department of Justice. To not inform the Court of such a material fact has most likely rendered a decision that would be different had the item been disclosed. Especially with the Court divided 5-4, all it would take would be for this information to sway one Justice for the decision to be reversed. Whether the decision is reversed or not, it is hoped that, at the least, the case be heard again and judged with all relevant facts being disclosed to the Court.

Supreme Court Issues Ruling on 2nd Amendment

2008-06-26T11:57:00.001-04:00

The United States Supreme Court has just issued their opinion in the case of District of Columbia v. Heller. In the case, the District of Columbia’s prohibition against the possession of firearms and requiring that shotguns and rifles be kept disassembled under trigger lock was challenged. Writing the majority opinion, Justice Scalia found that the 2^nd Amendment does protect an individual’s rights to possess arms.

For many, the 2^nd Amendment’s application to individuals, rather than militia, has been a subject of debate over the intentions of the language. However, with today’s decision, the Supreme Court explicitly held that the right extends to all, not just soldiers. Quoting from the Court’s Syllabus:

“The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”

In analyzing the history of the 2^nd Amendment, the majority concludes that the intent of the Amendment was to codify pre-existing rights. The majority uses history and the inclusion of the language “shall not be infringed” as evidence of the understanding of this pre-existing right and how this right was intended to be affected. Finally, the majority sets forth that the debate over whether to keep and bear arms was not over the right’s desirability, but over whether such language even needed to be codified.

In his dissent, Justice Stevens (joined by Justices Souter, Ginsburg and Breyer) does not argue that the 2^nd Amendment confers an individual right; his concern is more focused on what the scope of this right is. He contends that the right to keep and bear arms by individuals is unquestioned, but this right does not necessarily confer a right to possession of firearms for uses such as hunting. Justice Stevens argues that the government has the power to limit the scope of the 2^nd Amendment’s applicability, an issue which the majority opinion failed to address in reducing this power. Finally, he argues for respecting precedent, quoting Justice Cardozo:

“[The] labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case, and one could not lay one’s own course of bricks on the secure foundation of the courses laid by others who had gone before him.”

In Justice Breyer’s dissent (joined by Justices Stevens, Souter and Ginsburg), he argues that the scope of the 2^nd Amendment was intended to be for militia-related, not self-defense related, purposes. Also, Justice Breyer seems to set forth a similar argument as Justice Stevens in stating that the government has the power to regulate in the interests of the citizens, as long as any limitation of the Amendment is reasonable and appropriate.

Even with the Court dividing 5-4 on the decision, the effect of the ruling seems rather clear – the 2^nd Amendment provides the right to possess firearms to individuals. By stating this explicitly, and not including any types of exceptions or qualifications to the holding, it would seem that states now have guidance as to their regulations of the ownership of guns.

Even with the explicitness however, it is almost certain that the debate will continue. It will not be surprising to see other jurisdictions attempt to enact legislation in an effort to challenge the ruling, perhaps by further tailoring their laws to be more narrow. However, as long as the current composition of the Court remains as it is, it appears as if this will remain the interpretation of the Amendment.

For more analysis from ScotusBlog, click here.

In Brief: Revisiting Digital Archiving and Lebanese Food Resistance

2008-06-25T22:39:00.000-04:00

--Last August, I wrote about D.T. Max’s New Yorker article on Tom Staley and the University of Texas’ Harry Ransom Humanities Research Center. As I indicated, Staley’s perspective on digital archiving remains one of the most notable aspects of the profile. By refusing to offer any material online, as well as referring to the Center’s materials as future “bastions,” he’s taking a firmly traditional position with regards to access and audience.

That’s all well and good—there’s a legitimate argument for having scholars and patrons experience valuable literary collections in person. But the more I think about library technology issues, the question that Ayanna Prevatt-Goldstein asks here seems more relevant: “…what will Staley’s successors collect when no one writes on manual typewriters…any more?” In other words, what happens to the Center’s collections when its collections material will consist of e-mails, Microsoft Word documents, and Web pages? Even if Staley’s successors will follow his course in concentrating upon the modernist period, one would think that collections from younger authors would eventually make the question more urgent.

Of course, digital storage presents its own problems, now least of which is how to provide secure storage for valuable virtual communication and documents that can disappear quite easily (as the White House has aptly demonstrated). But if we believe that digital methods provide “another powerful weapon to the armory of solutions,” then Staley and the Center are working with an incomplete arsenal. And it’s quite legitimate to wonder when that approach will ultimately be costly.

--Also from last year: in this post, I discussed how the Slow Food movement in Lebanon constituted a positive form of “public resistance in the war-torn region.” Another possible form of resistance is Buns and Guns restaurant in Beirut, which has caught the attention of the BBC. In offering dishes named after military weapons, owner Yousef Ibrahim argues that the theme “attracts customers in an unconventional way,” providing them with some humor.

Katie Hunter writes that “recent events in Lebanon are no laughing matter” in light of six deaths earlier in the week. She notes (as does the BBC) that Ibrahim is a Hezbollah supporter, and operates his restaurant in a neighborhood with strong Hezbollah sentiment. From an ideological standpoint, is there more to Buns and Guns than just humor? It’s hard to say, but perhaps offering “RPG” sandwiches is a small way of using food to reconcile the violence that Beirut has witnessed over the past couple of years.

Zimbabwe election troubles continue

2008-06-24T15:15:00.002-04:00

Zimbabwe’s main opposition party, the Movement for Democratic Change (MDC), has formally withdrawn presidential candidate, Morgan Tsvangirai, from Friday’s run-off election. A hand delivered letter signed by Tsvangirai was taken to the Zimbabwe Electoral Commission.

"The situation ... now is very different from what has been experienced in this country since independence," Tsvangirai wrote. "The violence, intimidation, death, destruction of property is just too much for anyone to dream of a free and fair election, let alone expect our people to be able to freely and independently express to free themselves. For this reason, my party and I have resolved that we cannot be party to this flawed process."

Mugabe's spokesman, George Charamba, has said that Friday's vote will happen, even without Tsvangirai.

President Mugabe, 84, made it clear at a rally today that there is "only one thing for us to accomplish... it's the legal process on the 27th of June."

Tsvangirai got more votes than Mugabe in the March 29 election, but failed to gather enough to avoid a runoff.

His decision to abandon his presidential campaign gives an apparent victory to Mugabe, who has been Zimbabwe's only leader since it gained independence from Britain in 1980.

Observers are worried that the violence will continue to spiral out of control. One ominous sign is the withdrawal of independent monitors who would be able to observe and protect voters at the polls. There have been reports that people in the Musana Communal Lands, in the Bindura / Shamva area (Mashonaland Central), have had their hands cut off.

On Monday, the U.N. Security Council unanimously condemned the Zimbabwean government because of the violence that has continued in advance of the election runoff. To read Secretary-General Ban Ki-moon made the following remarks on Zimbabwe, click here.

It is disappointing to learn the Tsvangirai was forced to withdraw from the election; however, can anyone blame him? When Mugabe claims that “only God” will end his reign, it is pointless for Tsvangirai to think that he would live to serve even if he won on Friday. The elections are not fair and free, and that’s a tragedy for Zimbabwe, for Africa, and for the world.

For more on the Zimbabwe Election . . .

Zimbabwe Election turmoil continues

ANC 'dismayed' by Zimbabwe crisis

Doctors' Religion and Their Refusal to Perform Medical Procedures

2008-06-19T10:28:00.005-04:00

The Washington Post has an article this morning regarding yet another interesting issue before judges in California. The court is being asked to determine whether doctors can refuse medical treatment to patients based on the doctors’ religious beliefs.

The issue apparently arose when a gay woman sought fertility treatment from two doctors. The Plaintiff in the case stated that she had her civil rights violated and is alleging that the doctors refused treatment as “it was against their religion to perform insemination on a lesbian.” The doctors replied by stating that the fact Plaintiff was gay played no part in their decision, as the insemination of a single woman, no matter their sexual orientation, contravenes their religion.

Defendants’ lawyer claims that, “Freedom of religion absolutely protects all of their conduct in this case. There are two areas in medical care where freedom of religion is invoked most clearly: in the creation of life and the termination of life." He believes that doctors should have the right to exercise their religious beliefs in procedures involving either life or death. The Plaintiff’s lawyer does not necessarily disagree with this; she claims, however, that if a doctor is to refuse to perform such procedures based on their religious beliefs, this refusal must be applied to all patients and not just a specific group.

It is obvious in this case that these doctors are preventing a select class of individuals, namely single females, access to medical procedures. Depending on how the California State Supreme Court rules, there could be “far-reaching consequences for doctors and businesses, and for unwed women, particularly lesbians, trying to conceive.”

With California’s recent same sex marriage decision and the severity of the potential issues in this case, it would seem that the court would most likely side with the Plaintiff. If this turns out to be a refusal based on sexual orientation rather than marital status, it would seem that the state has already put in place measures to attempt to equalize the rights of gays living in the state, and allowing such selectivity in performing medical procedures would be a step backwards in such attempts. Even if this turns out to be an issue based on anything other than sexual orientation, to allow doctors to refuse patients treatment due to the doctors’ religious beliefs could lead to effects outside of abortion and fertilization treatments; some doctors may claim that their religion prevents them from treating a murderer or other criminal, causing delay in a life saving operation.

However, the issue becomes cloudy in a case like this as the fertilization treatment is obviously not a life saving procedure and not an emergency. Clients have the option to look for a doctor who will provide the treatments should they initially be refused based on the doctor’s religious beliefs. Clients in such cases have a conscious choice of where they are being treated and can select the doctor they feel comfortable with.

The trick for the court will be to ensure that their ruling does not have unintended effects such as those mentioned above and in the article. If they rule against Defendants and disallow selective treatment, it would seem that this would send a clear message to all doctors in all areas of the state on what the proper procedure is. If the court rules in favor of Defendants, again it would seem that a clear cut rule would be in place. However, if the court decides to delineate between elective and life-saving procedures, the ruling may become more ambiguous; in such a case, the court would most likely have to include language in their opinion limiting and/or specifying the applicability of religious based decisions in the medical profession.

The Effects of Ohio's Payday Lending Reform

2008-06-14T13:30:00.000-04:00

Now that Governor Ted Strickland has signed House Bill 545, Ohio’s landmark payday lending reform law, what happens to lenders within the state? It likely is quite simple: door-closing time. While Dayton Business Journal’s Matt Roth wrote last month that the future of payday loans in Ohio is “hazy,” his article headline—“Payday lenders prepare to close up shop”—is telling.

Roth does have a point about uncertainty; as he writes, the state’s Small Loan Act allows for “origination fees” that might be enough to keep larger lenders alive. Still, it’s helpful to consider the situation of Oregon’s payday lenders. Last year, Oregon legislators passed a bill that capped loan interest rates at 36 percent, while allowing for an origination fee of up to $30 for a 31-day minimum loan. This was enough for many lenders to start jumping ship almost immediately. Less than six weeks after the bill took effect, 60 of them were already out of business. By September, that number was above 100; in March, the chain Check into Cash announced that they were closing their remaining stores in the state.

In comparison, Ohio has more lending stores (over 1,600 as of last year) and more of a potential customer base. Yet Ohio’s reform law is also more stringent than Oregon’s, with a capped rate of 28 percent. Moreover, origination fee limits under the Small Loan Act are smaller than those of Oregon. This is why it’s unsurprising that the lenders quoted in Roth’s article paint a bleak picture of their future.

And—putting on my editorial hat—that’s a good thing. Payday lenders and their advocates protest that they provide a vital, beneficent community service, one that would otherwise leave those in need of short-term loans high and dry. This is a blatantly dishonest argument. There is nothing vital or beneficent about a predatory system that targets vulnerable clients whom quickly fall into “debt traps.” It’s also remarkably cynical to suggest that consumers have no other alternatives to such a system. Credit unions and counseling services are much better alternatives, both in terms of financial cost and general goodwill.

Ohio citizens have every right to celebrate the potential end of the payday loan era.

Ohio Considers Constitutionality of Its Lethal Injection Method

2008-06-12T10:16:00.002-04:00

After the United States Supreme Court upheld the constitutionality of lethal injection in April, a Lorain County Court of Common Pleas Court ruled Tuesday that Ohio must change its lethal injection formula. Judge James Burge held that the current formula does not meet Ohio’s requirement that “an inmate’s death be painless”.

The current procedure employed by the state requires three steps: (1) the inmate is rendered unconscious; (2) the convict is given a muscle-paralyzer; and, (3) the final injection is given which stops the heart. If any one of these steps is performed incorrectly or is not effective, it is argued that the inmate will suffer much pain prior to death.

In order to comply with state law, Judge Burge has suggested that the procedure be reduced to one injection – “a single massive dose of anesthesia” sufficient to kill the inmate. According to the Judge, "A single massive dose of sodium thiopental or another barbiturate or narcotic drug will cause certain death, reasonably quickly, and with no risk of abrogating the substantive right of the condemned person to expect and be afforded the painless death mandated by the law." The procedure would limit the number of painful injections, but would prolong the process.

With the ruling by Burge, it is now up to the Ohio Attorney General, the Department of Corrections and the Lorain County Prosecutor to determine the true effects of this ruling. Also to be determined is whether state law will need to be amended to remove the phrase “or combination of drugs" from Ohio’s law.

The Supreme Court ruling as to whether lethal injection constitutes cruel and unusual punishment “only directly applied to the southeastern state of Kentucky, where two convicts initially brought the case.” Ohio, unlike Kentucky and the remaining forty-eight states, requires that "death by lethal injection must be caused quickly and painlessly." Even so, some experts believe that the Ohio ruling may provide guidelines to other states in deciding their own lethal injection questions.

After the decision by the United States Supreme Court, it will be interesting to see how this ruling is applied and the actual ramifications it will have upon Ohio law and death penalty procedures. With the requirement in ORC 2949.22 that lethal injection is to cause death “quickly and painlessly”, it is still not certain if the current method (potential pain) or the method suggested by Judge Burge (quickness) actually follow this law. I am sure that many, in Ohio and outside the state, will be following this matter to see how it is ultimately resolved.

Review of Jeff Sharlet's The Family

2008-06-09T22:49:00.001-04:00

A stuffy courthouse in Dayton, Tennessee was supposed to have been the burial ground of American fundamentalism in the public sphere. The Scopes “monkey” trial in July 1925 did result in a legal victory for William Jennings Bryan and his fellow believers. But Bryan died less than a week later, and media coverage of the trial characterized fundamentalism as rural belief that was out of touch with the American mainstream. Its adherents retreated in response, creating a subculture with its own colleges and church organizations.

Historians have affirmed the facts above for decades, to the point where they’ve become conventional wisdom. But what if they don’t reflect the whole story? What if there also have been fundamentalists that not only remained “in the world” (so to speak), but also established themselves within the upper echelons of governmental power? And what if their power and influence became such that they helped destabilize the New Deal, played key roles in anti-Communist foreign policy during the Cold War, and supported numerous bloodthirsty dictators?

This is Jeff Sharlet’s stunning claim in The Family, one of the most important books on American religion and politics to appear this year. Sharlet is a talented religion journalist, and he capably synthesizes much of his reporting from the last several years. Relying on a keen sense of history and literature, he also provides a cogent meditation on democracy, power, and myths of American nationalism.

The central subject of Sharlet’s study is a network called the Family (formerly the Fellowship), which he refers to as an “elite” or “avant-garde” branch of the fundamentalist movement. The Fellowship began taking shape in 1935 through the efforts of Seattle businessman Abraham (Abram) Vereide. Concerned about increasing labor unrest and the big-government politics of the New Deal, he formed “breakfast prayer meetings” for a select group of like-minded colleagues. Their organizing principle was “the Idea”: it wasn’t the “down and out” in need of God the most, but the “up and out,” the powerful leaders who could shape the world in God’s image.

It isn’t surprising, therefore, that as the Fellowship grew in power and influence, their skewed theology led to self-serving and unethical stances. After Abram recruited several members of Congress to join his Washington, D.C. “Breakfast Group” in the 1940s, he convinced them that anti-labor legislation was in line with God’s will. More egregious were his diplomatic efforts with and on behalf of German war criminals after World War II. Communism was a different story, as Abram’s views “ran parallel to and often infused American Cold War tactics,” with repentant Nazi key men joining his cause as allies.

Nevertheless, the Fellowship’s means of growth after Doug Coe became its president in the 1960s is perhaps most damning of all. As Sharlet writes, Coe, unlike Abram, “never lied to himself about the virtues of lack thereof of the top men he was courting.” Accordingly, he was comfortable forming “prayer cells” with men such as Haiti’s brutal “Papa Doc” Duvalier, using the Idea as a means of gaining the power of their diplomatic aid. Even as Suharto of Indonesia ruthlessly killed his own citizens and conducted genocide against East Timor, Coe remained silent despite his personal ties to the regime. So also with regard to Somalia’s Siad Biarre, a recipient of Coe’s aid whose mass burning of arable land before his exile in 1991 led to the country’s horrific famine.

That Sharlet was able to uncover this much evidence is impressive considering the hidden nature of his subject. The Billy Graham Center Archives contains over six hundred boxes of Fellowship material up to the early 1970s. But the collection’s abrupt end also reflects Coe’s deliberate decision at that time to make the network “invisible.” Their members now commit nothing to paper, their lone current public event is the annual National Prayer Breakfast, and one can only become a member through a trusted recommendation.

Through both good contacts and good fortune, Sharlet was able to join Ivanwald—a “training” house in Washington that the Family runs for young men with leadership potential—for a time shortly after 9/11. The first section of The Family is a reprisal of his 2003 Harper’s essay “Jesus Plus Nothing”; he documents his gradual discovery of Ivanwald’s purpose, the Family’s influence, and Coe’s absolutist vision (all of about which he was unaware when joining). In short, this is a subject that demanded unconventional reporting (as he wasn’t on assignment while at Ivanwald) and historical legwork. To his credit, Sharlet ably accomplishes both, demonstrating both thorough research skills and elegant—at times, outright beautiful—prose.

Where, then, does “populist” fundamentalism sit in relation to the elite faith of the Family? Sharlet contends that the two branches actually merge at points, creating a “Popular Front” in America’s culture wars. One point of convergence concerns “cells,” or small groups oriented around a set of common interests. The Family’s network is comprised of private political cells, where its members formulate insights and policy that favor their own elite status. Yet leaders such as Ted Haggard made cells an integral part of “free-market theology” within fundamentalist churches, which now commonly offer an array of small groups as a form of consumer “choice.”

Perhaps needless to say, this particular argument (as well as the book in general) will upset a lot of evangelicals. Most of evangelicalism does not view itself as fundamentalist, and it attempts to make that distinction clear. Therefore, it often embraces a narrow definition of what being a fundamentalist means. Sharlet, on the other hand, is arguing for a definition that is more wide-ranging. He finds that its tendencies can exist among American evangelicals who would claim otherwise. But they also are present within the ideology and actions of the Family, which isn’t really an evangelical network at all.

As a result, evangelical critiques of The Family will likely center on the idea that Sharlet is overgeneralizing. If they do, then two charges will be fairly predictable. The first is that Sharlet is using “fundamentalist” as a means of attack, or at least promoting attacks, upon evangelical belief systems. A second (and slightly more elaborate) variation is that he is cooking up a conspiracy that belies his political and religious bias. As an example, Books and Culture columnist Alan Jacobs essentially made both charges during a heated exchange with Sharlet last year.

These particular responses, regardless of where they originate, are flatly wrong. Sharlet’s observations about religion have been polarizing for quite some time, and he doesn’t hide his personal perspective as a leftist and a Jewish secularist. But his work certainly isn’t—and never has been—about grinding axes against religious belief, as Richard Dawkins and Christopher Hitchens recently have done. Nor is he concerned with uncovering any sort of conspiracy, especially since he states more than once in the book that the Family isn’t a conspiracy at all.

Perhaps worse than such criticisms being wrong are that they miss the forest for the trees. A close reading indicates how the Family uses a twisted fundamentalism to justify a lust for power and blind eye for violence. It’s this application of the Idea for undemocratic ends, and its influence upon popular religion, that should be of most concern. The same is true regarding Doug Coe’s decision to “submerge” the network into secrecy; readers should then wonder about the theological and political implications of Sam Brownback being a member and Hillary Clinton a “friend.”

Finally, it’s important to remember that The Family is a challenge to liberals as much as conservatives, and nonbelievers as much as the faithful. Nowhere is this more evident than the concluding paragraph, where Sharlet calls for “not simply a different answer, secular myths opposed to fundamentalism’s, but a question.” This call to let go of easy assumptions, to be willing to fight for an open democracy and fair religious practices, is a fitting ending to a book that is simply outstanding in its research, narrative, and conclusions.

US splits from UN Human Rights Council

2008-06-07T16:22:00.000-04:00

Human Rights Watch believes that a decision by the United States to disengage from the UN Human Rights Council amounts to an abandonment of human rights defenders and victims.

The United States has decided not to participate at the Council unless it is absolutely necessary and it feels compelled to do so by “matters of deep national interest.” Although not a member of the Human Rights Council, the United States had participated as an observer at the council since its inception in 2006.

Juliette de Rivero, Geneva advocacy director at Human Rights Watch said, “Whatever the council’s problems, this decision is a victory for abusive states and a betrayal of those fighting for their rights worldwide.”

I won’t claim to know if this was a good idea or not, but several of the other blogs that I’ve read today that are commenting on this story definitely believe that “it is about time.” However, even with all its faults, I have to wonder if leaving the UN Human Rights Council behind with a “never look back” attitude is going to end up as an abandonment of human rights defenders and victims. It is ironic that the United States never fully committed to aiding the Council, but used the substantial weaknesses of the Council as justification for us distancing ourselves from it.