Saying “Whatever” To The Judge Is Generally Not An Optimal Trial Strategy

In Kentucky, an attorney is facing jail time for refusing to reveal the name of her client to the court. Attorney Adams represented a minor seeking an abortion in a bypass-proceeding, and in the course of the hearing it was revealed that the girl and her sibling lived in an abusive home. The judge wanted to know the identity of the girl in order to address the abuse:

After 36 years of practice, Amelia “Mikki” Adams faced an attorney’s worst dilemma: Protect the identity of her client — a 17-year-old girl — or comply with a judge’s order to disclose her name.

Adams opted to protect her client, and now she faces six months in jail for contempt of court.

Sounds pretty unjust, no? Although Kentucky has a mandatory child-abuse reporting law — which the judge is relying on in making her demand for the child’s name — U.S. Supreme Court precedent has held that states with laws requiring parental consent for abortion must provide a method by which the minor can anonymously request the court for an exemption. It is unclear which of the laws trumps the other:

“The judge certainly was justified in attempting to deal with the abusive parents,” said Hofstra University law professor Monroe Freedman, an expert on legal ethics who has testified in Kentucky courts. “But the lawyer was unquestionably correct in refusing to divulge the information without making every reasonable effort to appeal the judge’s order.”

On first glance, it sounds like the judge is being extremely unreasonable in holding the attorney in contempt here. … But then, upon reading the transcripts, the real reason for the judge’s harsh stance becomes apparent:

Adams: “ I respectfully decline to give any information that I may have. At this time I have no information. … I do not know anything other than that her initials are “J.J” and that her first name is (redacted). … And she has instructed me to decline giving any information. She is my client. The privilege is hers. It is not mine. … “
[Judge] Karem: “ And how do you know her first name?”
Adams: “ She gave it to me.”
Karem: “ But she didn’t give you her last name?”
Adams: “ She did give me her last name, and I am not going to give it to the court.”
Karem: “ So you do know her last name?”
Adams: “ Yes, I do, and I’m not going to give it to the court.”
Karem: “ That is contrary … to what you told me a few seconds ago, that you didn’t have any other information but her first name.”
Adams: “ I misspoke. I’m sorry.”
Karem: “ At this point I think you need to be quiet.”
Adams: “ Whatever.”
Karem: “Ma’am, you have an attitude.”

Shouldn’t that have at least been “Whatever, your honor”?

While I still respect the attorney and think she made the right call in not revealing her client’s name, I gotta be honest, she kind of deserved to be held in contempt.

-Susan

Month-long Traffic Jam Expected in China

The Beijing-Tibet Expressway is currently on day 9 of a 60-mile long traffic jam…. and the gridlock is expected to last a month more, as construction on a parallel roadway continues. (Where’s the Doctor when you need him?)

This is not just slow moving traffic. The roadway is at a standstill, and highway-side markets have sprung up to keep the people trapped in their vehicles fed:

Truck drivers interviewed by Chinese state media said they were forced to buy instant noodles at four times their original price from local residents while they sat for days playing cards or just resting in their vehicles.

Traffic is rapidly becoming a major problem in China — the traffic has a spill-over effect off the highway, as delays in delivery lead to delays in production and manufacturing, not to mention that any perishable goods will be ruined long before the current traffic jam is over — but the government has some creative proposals for how to address the problem. I’m skeptical about whether the Straddling Bus will work as well in practice as it does in theory, but it still looks pretty darn cool:

Proposed by Shenzhen Hashi Future Parking Equipment Co., Ltd, the model looks like a subway or light-rail train bestriding the road. It is 4-4.5 m high with two levels: passengers board on the upper level while other vehicles lower than 2 m can go through under. Powered by electricity and solar energy, the bus can speed up to 60 km/h carrying 1200-1400 passengers at a time without blocking other vehicles’ way. Also it costs about 500 million yuan to build the bus and a 40-km-long path for it, only 10% of building equivalent subway. It is said that the bus can reduce traffic jams by 20-30%.

-Susan

We Cannot Afford to Be Tolerant Towards Islam When Our President is a Muslim: The Rise of Islamophobia Under the Obama Administration

Is there a connection between the increasingly anti-Muslim tenor of American political discourse and the persistent rumors of Obama’s secret Islamic faith?

There’s no way to empirically prove the connection that I can think of, but I do wonder if the paranoia over Obama’s religious beliefs and location of birth have contributed to the current hostility towards Islam, culminating in the “Ground Zero Mosque” controversy.

Under Bush, the hysteria over Muslims as a whole was not as prominent. The hysteria over Muslim terrorists was pretty high, yes, but there was a firm distinction drawn between “Muslims” and “terrorists.” Bush’s political message was, in general, focused on outreach to and inclusion of the Muslim majority while characterizing Al-Qaeda and other terrorists groups as “a fringe movement that perverts the peaceful teachings of Islam”:

I also want to speak tonight directly to Muslims throughout the world. We respect your faith. It’s practiced freely by many millions of Americans, and by millions more in countries that America counts as friends. Its teachings are good and peaceful, and those who commit evil in the name of Allah blaspheme the name of Allah. The terrorists are traitors to their own faith, trying, in effect, to hijack Islam itself. The enemy of America is not our many Muslim friends; it is not our many Arab friends. Our enemy is a radical network of terrorists, and every government that supports them.

For Obama, however, such inclusiveness and tolerance comes at a much higher political cost and meets with greater resistance and anger. Although he did publicly defend the building of Park51 — a step I was surprised to see him take, and do give him credit for — it came at a very high cost in terms of the poll numbers.

Bush could defend the rights of Muslims and be thought of a just and respectful man for it; but no one believed Bush was secretly born in a Muslim nation, and he was overwhelmingly known to be a Christian. He also took a hawkish approach to foreign policy and national security, and had the Republican branding on both those points to back him up.

Although Obama is no dove — and, if anything, he has simply continued the national security strategy of the previous administration — he is viewed as weaker on national security by default for being a Democrat. He has done a good job of giving his critics very little ammo on this front, though, and by and large the “Obama is a weakling dove” meme hasn’t taken hold, because Obama’s policies haven’t given the media any chance to spin him out as a coward who won’t use force when it’s require. However, the “Obama is an Anti-American Islamosocialist” meme is out in full force, and it polarizes any political issue that touches on Islam.

In fact, 1 out of every 5 Americans believe Obama is a Muslim. And if you narrow the sample down to Republicans, a whopping 1 in the 3 believe he is. This is stupidly, crazy high.

And in an America where nearly 20% of the population thinks their president is a “secret Muslim,” there is less room for tolerance and nuance in political messaging. I do suspect that the fact Obama is president is a large part of why — compared to eight or nine years ago — expressions of anti-Muslim sentiment have increased and been met with greater acceptance, and I suspect it is also why the Ground Zero Mosque controversy came to exist at all.

-Susan

Paper Towel Dispensers and Restroom-User Confusion

Via the Trademark Blog, is it a trademark violation to put paper towels in a paper towel dispenser, if the paper towels are manufactured by someone other than the paper towel dispenser?

Answer: Maybe. Or at least, there’s enough of a question there to survive summary judgment.

GP licenses the ENMOTION towel dispenser to distributors who license it to restroom operators. The restroom operators are contractually obligated to use only ENMOTION brand toweling. Von Drehle created compatible (and allegedly inferior) paper for the ENMOTION dispenser. Fourth Circuit reverses lower court’s dismissal of GP’s trademark infringement cause, as GP may be allowed to show actionable post-purchase confusion by the non-purchasing public: namely restroom users who expect ENMOTION towels to come out of an ENMOTION dispenser (GP argued that this was analogous to expectations that COCA COLA is dispensed from a COCA COLA-marked soda fountain.

So no, it’s not a problem that the “consumers” here are restroom patrons that pretty much have no choice about which kind of paper towel they would prefer to use. The court accepts the analogy that what the Defendant is doing is like a hotel lobby that dispenses complimentary generic cola out of a Coca-Cola branded machine. As the consumers are expecting to receive a tasty trademarked beverage, they will be confused when instead they get some brackish generic knock off.

Because the 4th Circuit found there was a disputed question of fact, it remanded the case. GP managed (somehow) to find three experts who could testify that public restroom visitors expect there to be a correlation between the kind of dispenser and the kind of paper towel that comes out. I am exceedingly dubious about those studies’ validity, because I can’t imagine anyone out there seriously expects to be getting “brand name” paper towels. While the Defendant won’t get its summary judgment, I have an awfully hard time believing GP can prevail on this claim before a jury.

As noted on the Trademark Blog, the concurrence at page 25 is pretty entertaining: “oh hey GP, btw, if you win this whole trademark infringement, watch out on that whole ‘tying arrangement’ deal, that’s maybe kind of an antitrust violation you got going on there.”

Also — I don’t think I’ve ever seen an opinion where, as here, rather than writing out the word marks or assigning names for the logos, the actual stylized marks are shown. Is this a common practice that I’m just unaware of because I’m almost always reading from Lexis or WestLaw?

It’s annoying as hell, and doesn’t look very professional. I’m not usually the crotchety type about this kind of thing, but I don’t like it.

-Susan

New Titi Discovered in the Amazon

A pair of White-eared Titis. Not the newly discovered species, but they are cuter, so I used a photo of them instead.

A new monkey species has been discovered in Colombia

A scientist first glimpsed Callicebus caquetensis—a type of titi monkey—in the 1960s. But political strife in the southern Caquetá Province kept scientists away until 2008, when an expedition finally confirmed the bearded monkey as a new species.

The cat-size primate is “fascinating” because it mates for life, an unusual trait among monkeys, said expedition leader Thomas Defler, a primatologist at the National University of Colombia in Bogotá. Pairs are often spotted sitting on branches with their tails intertwined.

The Caquetá titi has, somewhat unoriginally, been named for the Colombian province it was discovered in. Back in 2004, another newly discovered monkey species got a much more interesting name — the GoldenPalace.com Titi, Callicebus aureipalatii. The naming rights to C. aureipalatii were auctioned off, with the funds going to a non-profit organization. You can probably guess who the winner of that auction was.

-Susan

The Constitution, Gay Marriage, and the Fact-Finding Power of Judges

As a matter of policy, I couldn’t feel more confident that allowing gay marriage is the right and moral thing to do, and that there will be no significant negative side effects once gay marriage is legalized.

But as a matter of the Constitution, it’s a whole lot harder to feel that same level of confidence.

I’ve been thinking about this a lot lately, for obvious reasons, and I think that, for me, my hesitancy and uncertainty about whether there are Constitutional protections for gay marriage grows directly out of of my hesitancy and uncertainty about the role of judicial fact finding in Constitutional interpretation.

To be clear, my use of the word “fact” here does not mean refer exclusively to empirical scientific fact — although that sort of fact is included as well — but rather I mean “facts” that are based not merely on physical occurrences but are sociological or even, to an extent, philosophical “facts.”

For instance, I hold the following to be accurate factual statements:

  1. Males and females are, jurisprudentially, identical. That is, there are no differences that are legally cognizable between people in the class of humans that we call “male” and people in the class of humans that we call “female.” (To clarify, I don’t believe in the slightest that males and females are biologically identical. But while knowing a specific person’s sex will allow you to guess, with increased accuracy, the degree to which that person displays various physical and mental attributes that are distributed unequally among the sexes, the simple fact of whether they are male or female does not reveal a sufficient distinction which would permit a law to discriminate between them.) (Or if that’s still too muddled: I believe any differences between males and females are as significant as differences between different races, which is to say, not at all.)

  2. There are no meaningful differences between same-sex couples and opposite-sex couples. (If you really want to be pedantic, I’m willing to clarify this to be “between same-sex couples and opposite-sex couples where one partner is completely infertile,” but I don’t think it makes non-inconsequential difference.)
  3. There is no rational basis for allowing straight marriage but not gay marriage. True, the bar for “rational basis” is pretty low, but it requires more than just a basis by itself. A rational basis, to me, requires: (1) that the legislative goal of the law is not itself discriminatory, irrational, or based on factually incorrect beliefs; and (2) that there is a rational, non-discriminatory and factually correct reason for believing that the law will actually promote that goal. And given that there are no differences between same sex couples and opposite sex couples, there is nothing on which a rational basis for a distinction can be found.

So here’s the problem: based upon all of these factual assumptions, I literally cannot articulate a valid argument for why banning same sex marriage is constitutionally permissible, even under the most deferential standards of review.

And yet the idea of a Constitutional right to marriage still gives me pause. I am, probably reflexively, exceedingly skeptical of any new constitutional guarantee that has been hitherto “undiscovered.” This remains so even where given all my factual beliefs, I am unable formulate an acceptable rationale for why prohibiting same-sex marriage is constitutional.

That’s the problem, though. “Given my factual beliefs” is a pretty huge premise to start from. It’s not that I have any personal doubts about whether or not those beliefs are empirically correct — because I don’t. I know I’m right, with the sort of certainty I reserve for believing in things like the heliocentric theory of the solar system.

But when it comes to constitutional law, I just don’t know how important factual truths should be.

Let’s be honest: the Constitution, as originally enacted, was a narrow-minded, petty, and tyrannical document that had inscribed into its heart factually incorrect prejudices regarding the essential humanity of non-white males. Yes, many of these flaws were fixed by later amendments, but that doesn’t change the fact that the U.S. Constitution can, indisputably, be based upon factually wrong assumptions about the nature of the world.

This means that in the abstract, there is nothing “unconstitutional” about hateful, biased, and factually incorrect laws. Even if it can be established empirically that a given prejudice is wrong and motivated by animus, and even if you can get near universal agreement on this point, that does not necessarily imply that it would be unconstitutional to have a law based on that prejudice.

But at the same time, modern Equal Protection and Due Process clause jurisprudence requires that judges make factual findings about sociological and philosophical facts, and it requires that judges use those factual findings to dictate whether or not a given governmental activity is constitutionally permissible or impermissible. And areas of the law involving topics where legislators are likely to be factually incorrect, because their biases are likely to lead them to a false conclusion, are precisely the areas of the law where judges are empowered to give greater deference to their factual beliefs than to the will of the legislative branch.

But seeing how levels of scrutiny is judge-made law, there is no objective, a priori way of determining forever what exactly falls into this category of “things legislators are likely to get factually wrong.” Today, most lawyers and judges agree that laws based upon distinctions involving race, religion, national origin, or alienage are the kinds of laws that the legislative process is supremely likely to screw up. They also agree that distinctions based upon sex and illegitimacy are “things that legislators are reasonably likely to screw up.” But there is zero reason or requirements that heightened judicial review be given to just these categories — it is entirely permissible under EP and DP precedent to add new ones, if such addition is justified.

So here we are, then. We have:

(1) A Constitution that is entirely okay with having incorrect factual conclusions enshrined within it, including false factual assumptions based on prejudice. (And for anyone who wants to claim that the 14th Amendment changed this, then why did we need the 19th?)

And, (2) A Constitutional jurisprudence that requires the judicial branch to discern where the legislative branch has made incorrect factual conclusions as a result of bias, and to then overturn those laws as unconstitutional on the basis of their factual incorrectness.

These points are in tension with one another. How much fact finding are judges allowed to do, then, given these two competing principles?

It is clear, today, that judges are allowed to make the factual finding that the essential humanity of all people is the same, regardless of their skin color. But do judges have the power to make the factual finding that the human impulse for romantic and sexual attraction is the same, whether it is directed towards a male or a female?

I don’t know. And sometimes, I very much suspect there is no “legal” answer to this question at all. Judges will have the power to make this factual finding at the point when they actually do make it, and not a moment before.

-Susan

ICRC Launches Customary Humanitarian Law Database

The International Committee for the Red Cross has launched its Customary International Humanitarian Law Database, and it is a huge time waster. Or huge time-saver, I guess, if your work actually involves IHL, but for me it’s pretty much just a shiny new method of procrastination.

This thing is seriously comprehensive — it’s the best free resource on Customary International Law I can think of, and the database is pretty much idiot-proof to navigate. In addition to looking at the practice records of particular countries, you can also look at a listing of the state practice for any given IHL rule. The ICRC has listed of 161 identified norms of customary international law relating to humanitarian law, and provides the practice in support thereof for reach. (The rules are not intended to be a comprehensive listing of all of customary humanitarian law: “As the approach chosen [by the ICRC] does not analyse each treaty provision with a view to establishing whether or not it is customary, it cannot be concluded that any particular treaty rule is not customary merely because it does not appear as such in this study”. But the ICRC does not seem to have missed much.)

For instance, take ICRC’s Rule 86 of IHL: The use of laser weapons that are specifically designed, as their sole combat function or as one of their combat functions, to cause permanent blindness to unenhanced vision is prohibited.

This would normally be a somewhat difficult norm of CIL to research, in part because it is one of those “accelerated CIL norms” that has come into being rather recently and rather abruptly, and in part because it’s a norm of CIL that states have not really had an opportunity to violate in the first place. To quote China’s statements upon the adoption of Protocol IV to the Convention on Certain Conventional Weapons, “this is the first time in human history that a kind of inhumane weapon is declared illegal and prohibited before it is actually used.” So it could take a bit of digging to determine if there truly is CIL prohibiting the use of blinding lasers … or if nations simply haven’t developed the technology to implement such weapons, yet, and therefore the total absence of state practice refuting the norm is meaningless.

But as it turns out, there is actually vastly more examples of state practice behind the norm than I would have guessed. If any domestic or international tribunal wanted proof that such a norm of IHL genuinely existed and was actually accepted as law by the world’s nations, they wouldn’t need to look much further.

A database like this ought to exist for all of customary international law. The difficulty, of course, is in ensuring that the database administrator is operating from a neutral and objective standpoint, diligently compiling incidents of conformance and non-conformance with alleged CIL norms. From what I’ve seen so far, the ICRC’s database of IHL does a good job of that, but it would be far too easy for a database to selectively include or exclude particular examples of state practice to create a warped view of how robust the norm truly is.

-Susan

Major Defect of Washington, D.C. To Be Cured

As a native Atlantan, I consider Chick-fil-A to be an important staple of a healthy diet. On road trips between Atlanta and D.C. with other friends from home, Chick-fil-A is generally the only acceptable fast food stop. In the search of delicious chicken burgers, we have been known to push the gas gauge until it’s pointing past empty, refusing to turn off the highway until we hit an exit with a Chick-fil-A sign. (Under my Rules of Driving, you’re only allowed one pit stop the whole trip, so it’s important that you don’t stop to fill up until you find decent food.)

So I was pretty pleased to see that Chick-fil-A is planning to open up “Urban Store,” including a Washington, D.C. location:

The College Park-based chain’s 1,500th store, opening Thursday, is about two blocks from the Coliseum in downtown Los Angeles, adjacent to the University of Southern California. Urban stores also are planned for Chicago and Washington, D.C. The company has fewer than two dozen “in-line” stores — part of an urban block as opposed to stand-alone stores or food courts.

Although to be fair, there actually is a Chick-fil-A in D.C. already. It’s in the GW foodcourt, which was pretty handy during law school, even though it was more like a Chick-fil-A-lite — if you wanted something other than a basic sandwich or chicken nuggets, you were out of luck.

-Susan

Victory Over Japan Day Still Exists? For reals?

Today is the 65th anniversary of the day on which Fat Man, the second atomic bomb, was dropped on Nagasaki.

It also happens to be VJ Day. That is, “Victory Over Japan Day,” commemorating Japan’s surrender to the Allies. And it’s a state holiday in Rhode Island.

I had no idea such a thing even existed past the 1940’s, until a friend living in RI mentioned it. Rhode Island is, at least, the only state to celebrate this rather anachronistic holiday, but it’s really sort of awkward that it exists at all. There’s just something bizarre about having a holiday celebrating a military victory over a Major U.S. ally.

Although back in 1990 the Rhode Island GA passed a resolution helpfully clarifying that VJ Day is “not a day to express satisfaction in the destruction and death caused by nuclear bombs at Hiroshima and Nagasaki,” all other attempts at revoking the holiday or at least renaming it have failed.

I suppose it’s just too risky of a political activity, with too little gain, for any politician to try very hard at getting rid of it. Although it’s kind of embarrassing, it doesn’t cause any real harm, so people are content to let it be. Otherwise, any politician that does give a “yes” vote to nixing the holiday will forever after have to deal with charges from opposing candidates that “Politician X is against supporting U.S. veterans,” or deal with campaign trail questions of, “Why do you think America should not celebrate its victories and pay its respects to those who gave the ultimate sacrifice?”

-Susan

Trades on the Sovereignty Market: Serbia Gives Iraq Weapons in Exchange For Non-Recognition of Kosovo

The rise of the relative importance of soft power in international relations has had an unintended consequence on international law: the creation of a sovereignty market.

The sovereignty market involves an international exchange of aid in return for recognition of an entity’s claims for statehood. This trading is sometimes carried out in a very blatant fashion, as was the case in Abkhazia’s outright purchase of Nauru’s recognition. More commonly, though, they are done in a more subtle fashion, with both the aid and the declarations of recognition done behind the disguise of normal diplomatic relations.

The latest swap on the sovereignty market’s trade floor is between Serbia and Iraq. It’s a reverse sovereignty swap, though, in that Serbia is not seeking recognitions of itself — it’s claims to statehood are secure — but rather it is seeking non-recognition of Kosovo. Kosovo’s claims to statehood have steadily grown, and although the recent ICJ opinion on the legality of its declaration of independence was somewhat ambivalent, with 69 out of 192 nations recognizing its sovereignty, Kosovo is well on the path to statehood.

To battle the rising recognition of Kosovo, Serbia is attempting to woo other nations into agreeing to non-recognition. However, because the importance of any state’s decision to recognize or not recognize is decreased where ulterior motives for the decision exist, Serbia has to be subtle about it. In the case of Iraq, the purchase of Iraq’s non-recognition of Kosovo has been disguised behind flowery declarations of long-standing friendship, and, oh, by the way, we’ve just given them three fighter jets:

The [Serbian] Ministry of Defence said that Iraq did not recognise the unilaterally proclaimed independence of Kosovo, and added that that Iraq’s support to the sovereignty and territorial integrity of Serbia was confirmed.

Sutanovac highlighted that Serbia and Iraq have a long tradition of having a good, quality, partnership and friendly relations, adding that the two countries have common views on Kosovo-Metohija.

The Defence Minister stressed that the government of Iraq intends to purchase weapons and equipment in Serbia, and added that he spoke with the Prime Minister of Iraq about cooperation in the field of the military industry, after yesterday’s delivery of three aircraft.

He declared that the Iraqi side is very satisfied with the fulfilment of deadlines and quality standards.

Sutanovac affirmed that Iraq wants to engage Serbia in the reconstruction of an air base, building a military hospital and for the supply of ammunition of all calibres.

-Susan

[Edit: Another interesting angle that just occurred to me is the political-religious intersection at work here. Kosovo is, of course, an overwhelmingly Muslim state*, while Serbia is not. It might seem odd that Iraq is willing to barter its non-recognition of a Muslim nation in return for military goods, but I wonder if this trade reflects a more different political divide at play: while Kosovo's population is largely Sunni, Iraq's government is now Shia and has been since the overthrow of Saddam. Conflict between Iraq's majority Shia population and its minority (but still substantial) Sunni population plays a huge role in Iraqi domestic politics, and non-recognition of Sunni Kosovo may have been both a bid for Serbian aid and a way for the Shia government to give the Sunni factions in Iraq a poke in the eye.]

* Yes, LL2 (or at least the Susan-half of it) does extend its diplomatic recognition to the state of Kosovo.