Monday, October 31, 2016

Mr. Frog, the water is getting hotter!

California lists 800 substances with a "1 in 100,000 chance of causing cancer or birth defects over a 70 year period" This is from Prop 65, the law that authorizes the list. California boldly claims that these substances are "known to the State of California to cause cancer." That same "knowing state" is now considering a new gun law that sets limits on ammunition purchases and imposes stiff penalties on people who do not report stolen guns. Supporters "knowingly" proclaim that the law will save "untold lives". I am not sure which bright anti-gun politician came up with that notion. However, the law has broad support from the usual suspects. The Califonia sheep are in full follow mode and it appears that the people of California are going to let this go through.

2nd Amendment supporters beware,  the temperature is fixing to be turned up on the frog in the water.

Thursday, October 27, 2016

Being a Judge Means Never Having to Say You are Sorry..

Years ago there was movie called Love Story. It was a chick flick on steroids that yielded the mantra that has come down to us, "love means never having  to say you're sorry." Donald Trump has adopted this as a guiding principle in his life and he has been soundly criticised for it. However, Trump thinking that he has no need to say he is sorry will not hurt us.

However, there is an entire branch of government that has this as its motto... and it can and does hurt us. This is the mantra that "being a judge means never having to say you are sorry (or wrong)". This mantra has been enshrined in an ancient legal concept called "stare decisis" (https://en.m.wikipedia.org/wiki/Precedent) which literally means "to stand by decisions". The practical effect is that courts do not spend a lot of time looking at a case if they feel that stare decisis applies. For example, the "most abominable decision" ever reached by the Supreme Court was the Dred Scott case that held that blacks could not be citizens. The court never overtuned this  awful decision, rather it was left to the implementation of the 13th and 14th amendments to correct the evils of this case.

While stare decisis is a good thing in principle, the major goal of the law is not "the law", rather it is "justice". The entire legal profession needs to grasp this concept again. When stare decisis precludes justice, it is the responsibility of the judiciary to say "I'm sorry" and make things right. If they don't, then constitutional amendment may be in order.

Tuesday, September 27, 2016

Bloviation is a National Pastime

One of Bill ‘Reilly’s Words for the Day is ‘bloviate’. I must confess, I only watched the first 15 minutes of the first presidential debate last night. ‘Bloviation’ was in full swing! I doubt anything that was said after I turned it off would have changed my mind, so  I was able to abstain with a clear conscience. This morning the talking heads were “debating” who won the “debate”.  Who won the debate is irrelevant. As a nation we have lost the “debate” when the choice for president will be decided by who has the lowest “negatives”.

Friday, November 20, 2015

Raising the B.S. Flag

My son is a genius... no joke, his IQ is that high. However, when he was in high school and at the University of West Florida and living at home, he used to make some fairly controversial assertions at the dinner table. We finally devised a technique to call him back from the intellectual wilderness. It was called the B.S. Flag. Whenever someone at the table had enough, they would raise their right hand as if taking an oath. Whereupon the rest of us would follow suit. He did not appreciate it, but it was generally enough to change the topic. It would seem that it is way past time for university administrators throughout the country to raise the B.S. Flag. Censoring conservative professors (Vanderbilt), taking down pictures of ex presidents (Princeton), out of control protests (Missouri and Yale) are all examples of students run amok. Everyone expects sophomoric outbursts from students... (I would hate for some of my letters to Congressmen in the 60's to surface.) But what we have going on right now is absolute B.S. It is time for those endowments and individuals who fund these institutions to raise the B.S. Flag by defunding them. As us old farts would say "money talks"... and no money talks louder!

Thursday, October 8, 2015

Is Obergefell the "Law of the Land"

A lot of folks are saying that the Supreme Court Obergefell decision made same-sex marriage " the law of the land". A reminder is in order here, the Supreme Court does not "make law". The actual holding in the Obergefell case said "The Court, in this decision holds same sex couples may exercise the fundamemtal right to marry in all states." There are no Federal marriage laws and unless and until individual state legislatures change their state laws, county clerks who issue licenses contrary to the existing laws are actually violating the law. County Clerks are generally elected by the people and controlled by state legislatures... They are not beholden to Governors or judges. Truth is "the law of the land" relative to this issue is in limbo and if county clerks exercise their "fundamental rights", the litigation of same sex marriage is far from over.

Thursday, August 13, 2015

"Fire, Ready, Aim" and other Inappropriate Responses

In the wake of the Supreme Court Obergefell decision people have been falling all over themselves with ideas on what to do, how to do it, and whether to do whatever it is that they think should be done. Everyone seems to have an idea and the range of ideas reflects the lack of order and unity that got us here in the first place. In my office we have taken to calling it the "Fire, Ready, Aim" syndrome. Perhaps spending a little time reflecting on how and why we got here might be in order. My boss posted a commentary today on our website that may be worthy of your time.  bit.ly/1L9r7lO 

Wednesday, July 29, 2015

Thoughts on Restoring Order to the Supreme Court

The dust has begun to settle on the recent Supreme Court Obergefell Decision that found a constitutional right to same sex marriage in the 14th Amendment. Regardless of your position on same sex marriage, any supporter of American democratic process should be concerned by the flawed and tortured constitutional logic of the Obergefell decision. As people on both the left and the right are beginning to understand this fact, they are also beginning to understand that the time may have come to exercise the provisions in our constitution that can be used to rein in a runaway judiciary. A hearing was held last week in the Senate Judiciary Committee, Subcommittee on Oversight  to explore what remedies the Congress and the people might have in dealing with errant decisions by the Court. Dr. John Eastman and Mr. Ed Whelan both provided some excellent insight into the constitutional issues as well as some potential solutions. I commend the testimony of both these men to you.