With Justice Sandra Day O'Connor retiring, the blogosphere is abuzz with speculation about whom the President will name as her successor. I have previously posted my criteria for what I would want to see in a justice, and a "short list" of potential nominees I would like to see. Of course, none of them are within the Bush circle (all are too libertarian, and not conservative enough) so it's just a fun speculative game.

Other posts that are more useful:

Professor Randy Barnett provides a helpful guide to following the debate, with the most insightful [to me] comments critiquing conservatives:

LESSON ONE: Watch the switch from a list of ignored textual provision to good and bad results.

This debate should not allowed to be turned into a debate over results. It should instead be a debate over constitutional method and the restoration of portions of the text that have long been discarded. This includes challenges to judicial conservatives who, like Justice Scalia, would continue to ignore the Ninth Amendment or Privileges or Immunities Clause because they fail to meet his standard for a "rule of law." Ignoring portions of the Constitution because they fail to conform to your theory of the "rule of law" is no different than ignoring portions that fail to conform to your theory of "justice."

(Emphasis mine). Of course we libertarians often share much common ground with "conservatives" in critiquing the excesses of past activist supreme courts that abandoned original intent. So the most interesting debate to me is the one between the libertarian and conservative philosophies. Read Barnett's other two lessons here.

Nick at Crime and Federalism has a list of questions he would like to ask.

But the best post I have found so far was Annika's Freakin' Idiots Guide to the Supreme Court. The choice cut is her handy cut-out-ready pocket guide to the court, which describes Scalia thus: "Anthony Scalia: The first Supreme Court Justice to score perfect 18's in intelligence, wisdom and dexterity on the LSAT. He carries a short sword, is skilled in the use of the bo staff, has 36 hit points, and is also a 13th level Palladin [sic]. The ABA rates him as: good.

My predictions about candidates below: more...

Posted by: JohnL at 11:14 PM | No Comments | Add Comment
Post contains 509 words, total size 4 kb.

Jeff Goldstein nails MSNBC's Brian Williams, just like our patriotic forefathers did with their blunderbusses loaded with nails and glass at the Battle of Bunker Hill (which, when you get right down to it, is not all that different from the nail-and-rat-poison methods of the modern-day minuteman, right?)

Posted by: JohnL at 09:59 PM | No Comments | Add Comment
Post contains 54 words, total size 1 kb.

Of all the so-called natural human rights that have ever been invented, liberty is least likely to be cheap and is never free of cost.

- Mr. Dubois in Starship Troopers.

Posted by: JohnL at 12:27 AM | No Comments | Add Comment
Post contains 45 words, total size 1 kb.

Looking at my Google AdSense ads, I marvel at the diversity of opinions seeking to be heard.

They represent, quite literally, a marketplace of ideas. People are spending money to get these small commercial blurbs read by web surfers (please click on them to support this site, btw).

Looking at them today got me to thinking about the figurative marketplace of ideas. Consider this quote, from the originator of the phrase, Justice Oliver Wendell Holmes:

"Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole-heartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country."

Whenever some leftist gets the vapors over some alleged suppression of dissent, read the facts in the case that led to the above dissent and ask whether we are more or less free today. Are we hauling Michael Moore into court under some sedition act? Are we shutting down MoveOn.org or the Democratic Underground under the Espionage Acts?

Call me Pollyanna, but I think we have it pretty good.

Posted by: JohnL at 11:51 PM | No Comments | Add Comment
Post contains 418 words, total size 3 kb.

So leftist fever-swamp proprietor DailyKos likens the "torture" allegedly perpetrated by American troops in Iraq and Guantanamo to the torture inflicted upon Iraqis by Saddam Hussein. In fact, they are "equally bad" in his eyes.

Bullshit. [Warning! Graphic images provided for the sake of providing perspective].

Only the willful mischaracterization of [allowed] aggressive interrogation techniques or occasional instances of abuse or mistreatment by Americans as "torture" allows Kos to draw that conclusion. This same sort of reality-distortion field also allows the loony left to compare Gitmo to the gulag.

Posted by: JohnL at 10:49 PM | Comments (1) | Add Comment
Post contains 81 words, total size 1 kb.

"At least once every human should have to run for his life, to teach him that milk does not come from supermarkets, that safety does not come from policemen, that "news" is not something that happens to other people."

- Jake in Number of the Beast

Posted by: JohnL at 10:05 PM | No Comments | Add Comment
Post contains 60 words, total size 1 kb.

Reading Random today, I was reminded how the blogworld recently noted, and analyzed, General Motors' decline.

The Wall Street Journal's Holman Jenkins, quoted by Virginia Postrel, provided this damning (to me) assessment of GM:

GM's boss should be the media's darling, running his company to provide job security and health care for its workers first, second and third. Wonder why GM invests just enough in new product to keep the game going, not enough to make its cars really sought after? Because the extra capital that would have to be invested goes instead to doling out gold-plated health care -- no copays, no deductibles -- to workers and to plumping up their pension fund, which two years ago required the largest corporate debt offering in history to top off....

Has anyone else here read Atlas Shrugged? Remember the Twentieth Century Motor Company, where the book's hero was originally employed? Remember how that company met its end?

"Were you familiar with the production of that factory? With the kind of work they were doing--or planning?"

"Certainly. I took a personal interest in all my investments. I went to inspect that factory very often. They were doing exceedingly well. They were accomplishing wonders. The workers' housing conditions were the best in the country. I saw lace curtains at every window and flowers on the window sills. Every home had a plot of ground for a garden. They had built a new schoolhouse for the children."

"Did you know anything about the work of the factory's research laboratory?"

"Yes, yes, they had a wonderful research laboratory, very advanced, very dynamic, with forward vision and great plans."

"Do you . . . remember hearing anything about . . . any plans to produce a new type of motor?"

"Motor? What motor, Miss Taggart? I had no time for details. My objective was social progress, universal prosperity, human brotherhood and love. Love, Miss Taggart. That is the key to everything. If men learned to love one another, it would solve all their problems."

It seems that GM might have gotten its priorities mixed up, much like Twentieth Century Motors. Let's hope they can find a way out of the trap their workers' union and social conscience have led them into.

Posted by: JohnL at 10:39 PM | No Comments | Add Comment
Post contains 387 words, total size 3 kb.

Yesterday I was leafing through my new issue of IP Law & Business at the office and was happy to see some coverage of a CopyNight gathering in New York city. It's unusual for an industry magazine to acknowledge the existence of another side of the debate about intellectual property rights and the public domain.

Unfortunately, the article's author (or editor?) chose to run only one quote from an attendee regarding technologies like Grokster:

"Why can't it be like in headshops? ... You know, you can sell a bong but like not explicitly for weed."

No bias there, hmm?

The rest of the article was somewhat more balanced, exploring the parallels of the free-culture movement to environmentalism. But it didn't really delve into any of the really interesting strands in the current debate over technologies that enable widespread duplication and sharing of copyrighted materials.

If you want to better understand the contours of the debate over IP rights, avoid IP Law & Business and check out Timothy Sandefur's article from yesterday instead.

Posted by: JohnL at 10:08 PM | No Comments | Add Comment
Post contains 176 words, total size 1 kb.

Talking to lawyers -- about as fun as talking to dentists, or used car salesmen, right?

Seriously, though, you may find yourself needing legal advice someday. And Timothy Sandefur has prepared an excellent list to help you get the best value out of your lawyer.

Number 1 on his list is one of the hardest to get across. What seems important to the client is not necessarily legally important. The challenge for the lawyer is to explain why certain things are not legally relevant, even though they seem very important to the client. (Unfortunately, the law is often not "fair" and the client can feel a sense of injustice that the things that are important to them won't be heard in court).

Number 10 (don't call every day, but do call) is also equally important for both the lawyer and client to observe.

Go read the whole thing.

Posted by: JohnL at 09:25 PM | No Comments | Add Comment
Post contains 154 words, total size 1 kb.

I haven't said much about the Schiavo matter, because I strongly believe that it is none of our damn business. This cartoon pretty well sums up my thoughts and feelings on the politics involved in this.

Stephen Green, Timothy Sandefur, and, surprise of surprises, John Derbyshire, all approach the issue much like I would, so I point you to their thoughtful opinions on this, too.

Just as an aside, my wife and I both have wills and medical powers of attorney, which we prepared a couple of years ago. I plan to pull out the powers of attorney to make sure they still say what we want. I'm pretty sure they address specifically the issue of withholding extraordinary care, including feeding tubes and hydration. But we have also given each other a fair amount of discretion to try what is reasonable (like what Michael Schiavo did for about three years) while granting each other the final say to consent to discontinuing treatment.

If you plan to write an advance healthcare directive or power of attorney as a result of this mess, I would recommend the same approach. Be careful not to be too specific.(*) What I mean is that in addition to granting certain explicit instructions (for the most foreseeable situation), be sure to include a general blanket authority to the person you want to speak for you. If you are married, after the Schiavo case, you cannot count on your spouse presumptively having that power anymore. (Way to strengthen the institution of marriage, conservatives!) If you want your parents or kids or siblings to have input, say so. Having written it down, be sure to discuss it, too. If there is one good thing to come out of this mess, it's that we are all talking about a topic we usually avoid. Take advantage of this moment to get your opinions expressed and memorialized.

(*)Usual caveat applies: I am an attorney, but not your attorney. You should discuss the terms of any legal documents (including without limitation advance healthcare directives or powers of attorney mentioned above) with a qualified lawyer of your own choosing before signing them. My general comments are intended to focus you on some issues that I myself have discussed that I think are relevant to planning.

That's all I plan to say on this.

Update: She (what's left of her) has passed away. May she rest in peace.

Posted by: JohnL at 08:00 AM | Comments (2) | Add Comment
Post contains 413 words, total size 3 kb.

I've written a few legal writing rants, criticizing stuffy, wordy legal writing. This past Friday, I ran across a hilarious Force Majeure clause in a contract. While it may seem like a joke, the rest of the quotation to which this term was attached was perfectly serious.

For those of you non-lawyers, force majeure is an intervening event beyond the reasonable control of either party to an agreement that prevents one or both parties from performing. The most common of these kinds of events are colloquially referred to as "acts of God." Parties usually agree to waive performance by the other party for some period of time during an event of force majeure.

The person who drafted this clause wanted to cover all the bases:

Issuance of a PO or other engagement of [Consultant] services enacts full force of this proposal and constitutes acceptance of the terms and conditions set forth above regardless of purchasing or other corporate contractual policies. In the occurrence of natural events, World War, biological or nuclear holocaust, whereby such events cause delay in travel, installation or other on-site and delivery schedules, customer/client agrees to hold [Consultant] harmless against such misfortunes and pay for reasonable and customary costs incurred by [Consultant] during travel at such instance. In the event of the End of the World, this contract becomes void in its entirety. Should either party survive the End of the World, World War, biological or nuclear holocausts, both are released from any remaining obligations.

I didn't fix any grammatical mistakes; I just deleted the names of the parties to protect the innocent.

Posted by: JohnL at 11:07 PM | Comments (4) | Add Comment
Post contains 269 words, total size 2 kb.

1 Damn, that's pretty funny!

Posted by: Eric at March 22, 2005 12:58 AM (g51VZ)

2 I'd laugh if I weren't so appalled. [Consultant] needs to get a competent [lawyer].

Posted by: Chan S. at March 23, 2005 12:47 PM (j8rcN)

3 Dude. I saw one recently somewhere that referenced intergallactic warfare. Now that was creative!

Posted by: RP at March 24, 2005 04:09 PM (LlPKh)

4 I'm 3/4ths tempted to stick that in a contract, simply for the entertainment value. However, I fear that other members of the local bar may not have exactly the same sense of humor that it would play to. >

Posted by: Lysander at March 25, 2005 12:42 PM (ShW/G)

Hide Comments | Add Comment

I haven't really been following this in any way (just saw the headline for this story on Yahoo), but I find myself wondering -- just where is the Federal interest here? And under which enumerated power in the Constitution is Congress acting?

Posted by: JohnL at 10:02 PM | Comments (1) | Add Comment
Post contains 46 words, total size 1 kb.

This month's Heinlein Quote of the Month (mentioned here), prompted an interesting comment from new-to-me reader [the best kind!] Tommy Hall:

"...conjure up the ghosts of Napoleon Bonaparte and of the Duke of Wellington and let them debate [the doctrine that 'violence never solves anything']. The ghost of Hitler could referee, and the jury might well be the Dodo, the Great Auk, and the Passenger Pigeon."

There seems to be some unintentional irony in the Heinlein quotation. He has Bonaparte pleading the case for pacifism while Hitler acts as impartial moderator. Logically someone like Ghandi or Martin King should argue the effectiveness of soft power, but of course Indian independence and the passage of the voting rights act undermine the point Heinlein wished to make.

Napoleon and Hitler were among the staunchest champions of naked force the world has seen during these last few blood-soaked centuries, to their everlasting regret. All their example shows is that those who rush to plead their case before the bar of violence run the risk that justice will hand down the harshest of verdicts.

First, I wouldn't agree that Bonaparte is pleading the case for pacifism, unless it's the case that his enemies should be pacifists.

Second, I don't really see any irony in Heinlein's choice of Napoleon or Hitler to illustrate his point. They were both initiators of violence who were stopped (and only stoppable) by violence. Sweet talking, negotiating, cajoling, and conceding would not have ended Napoleon's or Hitler's respective reigns over continental Europe. Only the use of overwhelming violence stopped them.

When is the use of violence in foreign affairs appropriate? One of the fundamental principles of what we call "libertarianism" has always been that one should never initiate the use of force against another. At the same time, it is morally required to use violence to respond to the initiator of force. So the Waterloo and WWII examples make pretty easy cases.

But what about the current war? Whether a pre-emptive use of force is ever justifiable is one of the issues that has split libertarians over the war in Iraq (and to a lesser extent, in Afghanistan). I think that one of the great mistakes of the anti-war libertarians is in their conflation of individual morality with international law. While states are technically "persons" (like corporations) in classical international law, they are not people. They are not endowed with the natural rights to life, liberty, and property.

Indeed, to the extent that they dishonor those natural rights, they lose legitimacy. So in my view, an illegitimate state should not benefit from some abstract non-initiation principle designed to protect an individual. There's quite a bit more to write on this, but I can't do it justice tonight. I hope I get some good comments to help guide some future refinements of this idea.

Tommy's conclusion is undoubtedly correct: if you initiate violence, you should be prepared to be dealt with violently. Or, more pithily, "live by the sword, die by the sword."

Posted by: JohnL at 10:33 PM | Comments (5) | Add Comment
Post contains 505 words, total size 3 kb.

I'm sure glad that Vodkapundit Steve Green has returned to blogging. And over the past 24 hours, he has blogged with a vengeance. Just click over and scroll, but pay particular attention to this veritably den Bestean analysis of the Lebanese goings-on.

Just a couple posts later, he covers this hilarious summer project of a couple of British students who are planning a scofflaw vacation. That is, they intend to embark on a crime spree, breaking old and silly laws that are still on the books, though no longer enforced.

This reminds Mr. Green of the proposal in Heinlein's The Moon is a Harsh Mistress to have a bicameral assembly in which one house would be the house of legislators and the other the house of repealers. The legislators would need a 2/3 majority to pass new laws while the repealers would require only a 1/3 vote to repeal existing laws. Great idea, I think.

Speaking of Heinlein, I have updated the quote of the month for March, with a Starship Troopers quote appropriate to the changes underway in the Middle East:

"Anyone who clings to the historically untrue — and thoroughly immoral — doctrine that 'violence never solves anything' I would advise to conjure up the ghosts of Napoleon Bonaparte and of the Duke of Wellington and let them debate it. The ghost of Hitler could referee, and the jury might well be the Dodo, the Great Auk, and the Passenger Pigeon. Violence, naked force, has settled more issues in history than has any other factor, and the contrary opinion is wishful thinking at its worst. Breeds that forget this basic truth have always paid for it with their lives and freedoms."

Update: I was referring above to Steve's month-long hiatus over December and into the New Year. Not sure if that was clear as originally written.

Posted by: JohnL at 09:55 PM | Comments (3) | Add Comment
Post contains 314 words, total size 3 kb.

If you've ever tried to slog your way through a pre-printed contract, you've probably assumed that the stilted, archaic language is just the way that legal documents should be written. You wouldn't be alone. Most people seem to think that contracts, pleadings, wills, and all kinds of legal instruments need to sound like the King James Bible to be effective. THEY DON'T!

Moreover, after paying $300 an hour or more to document a straightforward business transaction, businesspeople have to wonder why they receive such incomprehensible work product for so much money. (At the same time, some of those clients are suspicious when they can actually understand what their lawyer has written; they wonder whether it's really legal).

Legal documents can be written in clear, precise English. When I encounter legaldegook -- writing that is good for nothing other than sounding "legal" -- I save it both for amusement and to use as an exercise in improving my own writing. Fixing someone else's mistakes is a good way to learn to recognize and fix my own.

That's where tonight's post comes from. I pulled this example from a contract I reviewed just today. I didn't rewrite it for the deal at hand, because it's just a no-cost product evaluation agreement. But because of its high concentration of pretentious legalisms in one short paragraph, I thought it would be a good editing challenge for the blog. I've italicized all of the objectionable parts of this section:

At the end of the Evaluation Period, Customer shall promptly return the Products to [Seller] at CustomerÂ’s sole expense. In the event that ten (10) calendar days following the end of the Evaluation Period Customer has not returned the Products or issued a valid Purchase Order to [Seller] therefore, this Agreement shall be considered CustomerÂ’s Purchase Order and [Seller] shall invoice Customer, and Customer shall be obligated to pay [Seller], for such Products at the then current list price pursuant to [SellerÂ’s] standard terms and conditions of sale as set forth on the invoice issued by [Seller] to Customer and/or on its website.

Note the redundancy of words like "promptly" (there's a 10 day time limit!), "sole" ("Customer's expense" doesn't express or imply anyone else's expense does it?), and "calendar" days (the contract doesn't use "business" days elsewhere, so there's no need to distinguish, and the word "day" without modification commonly means "calendar day") .

Also note the multiple archaisms and pretensions of legal writing: "shall" instead of "will" or "must," "in the event that" instead of "if," "therefore" (which, if it is to be used at all, should be spelled "therefor" -- meaning "for that" -- a Germanic artifact in the English language), and "pursuant to" instead of "under."

Note also the lazy "and/or," which can almost always be replaced with "or." Here, the "and/or" actually tries to gloss over an ambiguity that the drafter didn't want to deal with (but would have been forced to, had he or she used only "and" or only "or"). What if both the invoice and the website contain different terms of sale? Which set of terms governs?

Addressing these issues, here's what I would do to clarify and invigorate the above:

At the end of the Evaluation Period, Customer will return the Products to Seller at Customer's expense. If Customer does not return the Products or issue a purchase order for them to Seller within 10 days after the end of the Evaluation Period, Seller may invoice Customer against this Agreement at Seller's then-current list prices for the Products. Customer must pay Seller the amount due under the invoice within [x] days after receiving it. Unless contrary or supplemental terms are printed on the invoice, Seller's standard terms and conditions found at [Seller's web address] will govern the sale of the Products to Customer.

OK, it's not Hemingway, but surely my version is both easier to read and legally clearer than the original, isn't it?

Posted by: JohnL at 08:58 PM | Comments (1) | Add Comment
Post contains 656 words, total size 4 kb.

More here, here, and here.

Posted by: JohnL at 10:40 PM | Comments (4) | Add Comment
Post contains 17 words, total size 1 kb.

Two days ago, Congresscritter James Oberstar introduced /bss/d109query.html|">a bill to "enhance" the safety of the infant commercial space flight industry. Here's a sampling of his verbal diarrhea (via SpaceRef):

"We can and should protect the safety of passengers on space flights in this new and emerging industry, without placing unreasonable limitations on industry development. I urge my colleagues to join me in working to pass this important legislation."

(emphasis mine)

It's clear from the context of Oberstar's comments that he's not merely concerned with range safety (i.e., innocent bystanders). No. He wants to use the blunt instrument of federal regulation to "protect" the safety of early passengers on commercial spaceflights.

Yeah, right. We all know what a good job the government does at protecting passengers in spaceships. (Cheap shot, I know. But I'm not sorry). I'm not sorry, because there is one trait of government that I simply cannot abide, regardless of party affiliation: nannyism. Manny, in Heinlein's The Moon is a Harsh Mistress, put this unsavory aspect of government, as a reflection on human nature, most eloquently:

Must be a yearning deep in human heart to stop other people from doing as they please. Rules, laws -- always for other fellow. A murky part of us, something we had before we came down out of trees, and failed to shuck when we stood up. Because not one of those people said: "Please pass this so that I won't be able to do something I know I should stop." Nyet, tovarishchee, was always something they hated to see neighbors doing. Stop them "for their own good" -- not because speaker claimed to be harmed by it.

In a nascent industry like this, which is just an exotic form of "extreme tourism," participants should be allowed to make up their own minds about risk tolerance. Asshats like Oberstar either (a) want to strangle the private space business in the cradle (look for donations from entrenched contractors like Boeing/LockMart) or (b) are stupid enough to think there is such a thing as safety regulations for experimental spacecraft that do not impose unreasonable limitations on commercial space flight startups. Either way, he should be turned out of office.

Posted by: JohnL at 11:01 PM | Comments (1) | Add Comment
Post contains 371 words, total size 3 kb.

BoingBoing had an interesting article today about Google's AdSense technology. I thought I would test it. Warning: boring autobiography in the extended entryfollows.

If you've followed my site for a while, you might know that I play an attorney in real life. Although I used to be a musician, I eventually had to grow up and "get a real job." Through a combination of decent grades and acing the LSAT (99th percentile, thank you very much), I made it into a top-10 (or top-25, depending on your poll) law school.

Funny thing, though: few Texas law firms wanted to hire anyone out of Georgetown in the early 90s unless they were in the top 10%, which I wasn't. When I got back to Texas - with a very pregnant wife and no job - I pretty much had to scratch and scrape for work. The first real job I got was as a staff attorney (read: underpaid associate attorney NOT on the "partner track") in a big insurance-defense firm doing asbestos litigation.

I lasted in that job exactly one year. During that period of time, I attended 80 or so depositions of plaintiffs asserting that their lung disease had nothing to do with their 2-pack-a-day smoking habit and everything to do with the brief exposure they had to my then-client's insulating cement during a few-year period in the 1960s.

I think there was only one legitimate claim among those 80 or so plaintiffs; a man with mesothelioma (a lung cancer which is caused pretty much only by asbestos exposure). Of course, my client was one of 25 or so defendants, so it was hard to tell what, if any, role my client's cement played in the poor guy's cancer. It costs too much to take the cases to trial, so we settled for nuisance amounts. I thought it was a complete waste of time and resources.

I took particular joy in John Kerry's loss, since the chairman of his Victory '04 committee was one of the name partners in that asbestos plaintiffs' mill.

Posted by: JohnL at 10:16 PM | Comments (2) | Add Comment
Post contains 351 words, total size 2 kb.

Steve Green blogged it so I didn't have to.

Check out the blow-by-blow here.

Posted by: JohnL at 09:09 PM | No Comments | Add Comment
Post contains 18 words, total size 1 kb.

I found a perfect Heinlein quote for the coming month, to mark the momentous Iraqi elections yesterday:

Democracy is a poor system; the only thing that can be said for it is that it's eight times as good as any other method. Its worst fault is that its leaders reflect their constituents--a low level, but what can you expect?

From Heinlein's Stranger in a Strange Land.

Posted by: JohnL at 10:29 PM | No Comments | Add Comment
Post contains 72 words, total size 1 kb.