Things That Weren’t On the Virginia Bar Exam

Somehow, I have lived in D.C. for the past three and half years, and yet remained unaware until now that Virginia is one of those few U.S. states without an open container law.

The National Highway Traffic Safety Administration (NHTSA) withholds funding from states that do not comply with federally “suggested” scheme in the Transportation Equity Act for the 21st Century, which would prohibit any open alcoholic containers in a moving vehicle. (Note: TEA-21 did have the foresight to exclude Drunk Buses from this prohibition. Bachelor/ette parties everywhere remain thankful.)

Currently, only eight states lack state-level open container laws. In addition to Virginia, they are: Arkansas, Connecticut, Delaware, Mississippi, Missouri, Tennessee, and West Virginia. But note that Mississippi takes it a step further — so long as they stay below the legal BAC limit, even the driver is allowed to drink.

That being said, having an open alcoholic beverage in a car in Virginia is still a very poor idea, and I would very strongly recommend against it. First, sub-state laws may say something entirely different, so don’t rely on the state code. Second, Virginia has a rebuttable presumption scheme not favorable to open containers:

§ 18.2-323.1. Drinking while operating a motor vehicle; possession of open container while operating a motor vehicle and presumption; penalty.

A. It shall be unlawful for any person to consume an alcoholic beverage while driving a motor vehicle upon a public highway of this Commonwealth.

B. A rebuttable presumption that the driver has consumed an alcoholic beverage in violation of this section shall be created if (i) an open container is located within the passenger area of the motor vehicle, (ii) the alcoholic beverage in the open container has been at least partially removed and (iii) the appearance, conduct, odor of alcohol, speech or other physical characteristic of the driver of the motor vehicle may be reasonably associated with the consumption of an alcoholic beverage.

Any cop that spots an open alcoholic beverage during a traffic stop is going to use that as an excuse for a more invasive search. And you just know that no cop out there will have a problem concluding that there is something about the driver of a vehicle that is “reasonably associated” with the consumption of alcohol.

Question, though. What about jello shots? Do those qualify as an “alcoholic beverage“?

-Susan

Customary Domestic Law

Something that has bugged me since, literally, the first class of the very first International Law course I ever took, is the emphasis on “customary international law” as if it were a distinct phenomenon unique to the formation of international law.

It’s just not. CIL is a specific term for a general phenomenon that occurs at all levels of law making everywhere.

I was reminded very much of that today, while making an early morning excursion into the heart of the Snowpocolypse. I was allegedly “going to get milk for the coffee,” but we really were stocked up on supplies, and I just wanted the excuse to venture out onto the streets.

D.C. was beautiful and desolate and exactly how I imagine the end of the world will look. And the most striking thing was the utter disregard for the normal rules of daily urban life.

Pedestrians walked openly down major downtown streets. People walking dogs waited on the dead middle of K while their dog did its business, and people on skis slid their way across 14th and U. The roads were easier to traverse than the sidewalks, so everyone used them instead.

I passed two cars during my whole walk. One was a Hummer that was stuck in a snowbank and spinning its wheels, and I laughed. The other was a police cruiser, that skirted around me as I walked openly down the middle of 14th, and the policeman waved.

There is not a statute somewhere that says, ‘Hey, when there’s a blizzard, it’s actually okay to disregard traffic laws.’ What almost everyone outside did today was blatantly illegal, and forbidden, and subject to numerous penalties and fines and who knows what.

But under D.C. Customary Law, when the Snowpocolypse hits, you can do whatever the hell you want when you’re trying to make your way down the street. Everyone — from the pedestrians to the police force — simply intuitively knows this, and makes no effort to enforce any other rules, no matter what the written codes may say.

-Susan

Nauru’s Prohibition on Transfers of Land to Non-Citizens

Earlier, I used the “cybernation of Wirtland” as a thought experiment for discussing how international law might treat the acquisition of territory for the deliberate purpose of obtaining sovereignty. Wirtland has ‘proposed’ to acquire territory, and therefore eventually achieve statehood, by entering into a deal with Nauru by which Wirtland would obtain sovereignty over Nauru’s strip minded lands.

Although Nauru would be entirely free to enter into such a deal, as the principle of permanent sovereignty requires that every State recognize “the inalienable right of all States freely to dispose of their natural wealth and resources in accordance with their national interests,” (GA Resolution 1803 (XVII), preambular para.5), there are many reasons to seriously doubt another entity could achieve statehood by acquiring them.

It turns out I was looking at the issue far too abstractly. While I still think it is an interesting question as to whether or not a country can, in a financial transaction, withdraw claims of sovereignty over a portion of its territory and grant them towards the establishment of an entirely new State with no prior existence, using Nauru as the hypothetical example is a nonstarter. Nauru is, in itself, an interesting test case for many of our notions of sovereignty, but it cannot be the basis of a new nation’s claim to territory — because Nauruan law prohibits the alienation of real property to non-Nauruan citizens.

I knew from the Case Concerning Certain Phosphate Lands in Nauru that phosphate mining in Nauru took place under a series of complex mandates, trusteeships, and leases, and I got curious about who exactly would have been said to be “sovereign” over Nauruan territory prior to Nauru’s independence in 1968.

While looking up stuff about that, though, I was surprise to see that under Nauruan law today, it is a criminal offense to sell land to a non-Nauruan citizen, and any such attempt to do so will result in a void transaction. The Lands Act 1976 of Nauru provides that:

(1) Transfer inter vivos of the freehold of any land in Nauru to any person other than a Nauruan persons prohibited, and any such transfer or purported transfer, or any agreement to execute any such transfer, shall be absolutely void and of no effect.

(2) Any person who transfers, or agrees attempts or purports to transfer, the freehold of any land in Nauru to any person other than a Nauruan person is guilty of an offence and is liable to imprisonment for six months.

So, looks like Wirtland needs to buy land from someone else.

-Susan

Akbar Zeb

Via Passport,

Despite having served for years as a distinguished Pakistani diplomat, Akbar Zeb reportedly cannot receive accreditation as Pakistan’s ambassador to Saudi Arabia. The reason, apparently, has nothing to do with his credentials, and everything to do with his name — which, in Arabic, translates to “biggest dick”…

Pakistan had previously floated Zeb’s name as ambassador to the United Arab Emirates and Bahrain, only to have him rejected for the same reason. One can only assume that submitting Zeb’s name to a number of Arabic-speaking countries is some unique form of punishment designed by the Pakistani Foreign Ministry — or the result of a particularly egregious cockup.

The United States should not stand idly by while Pakistan takes the prize for best named diplomat — I propose that as a countermeasure, we appoint Ex-Rep Dick Armey to be our new Ambassador to the United Nations.

-Susan

Wall Street Journal Op Ed Argues Women Should Be Banned From Military

Read the article by Mackubin Thomas Owens here:

As Sen. James Webb (D., Va.), who was awarded the Navy Cross for valor as a Marine officer in Vietnam, wrote in the Weekly Standard in 1997, “There is no greater or more natural bias than that of an individual toward a beloved. And few emotions are more powerful, or more distracting, than those surrounding the pursuit of, competition for, or the breaking off of amorous relationships.”

The destructive impact of such relationships on unit cohesion can be denied only by ideologues. Does a superior order his or her beloved into danger? If he or she demonstrates favoritism, what is the consequence for unit morale and discipline? What happens when jealousy rears its head? These are questions of life and death, and they help to explain why open homosexuality and homosexual behavior traditionally have been considered incompatible with military service.

Err, wait, hold on a second. Got confused there — I guess he’s not trying to ban women from the military after all, he’s just trying to keep Don’t Ask, Don’t Tell in force. Which is funny, because under the argument he’s using here, allowing the ladies into the exclusive homosocial bonding zone of the military should apparently have resulted in the destruction of our armed forces.

But we have had women serving in the military since 1941. (Actually, they’ve been serving in the U.S. forces much long than that, dating as far back as to when it was the U.S. forces were only known as the Continental Army. It’s just that women have just only been able to serve openly since WWII). And yet, as far as I’m aware, our military is still considered to be at least moderately impressive in its size and capabilities.

So we have 70 years of experience with having in the ranks military personnel who are openly attracted to their fellow service members, and yet we have no proof that there is any accompanying reduction in military effectiveness. But even allowing for the sake of argument that having people in the military that, theoretically, could be in relationships with each other might cause “[f]avoritism and double standards [that] are deadly to philia and its associated phenomena—cohesion, morale and discipline,” the military has well developed institutional methods for addressing their potential threat.

First, the military has strict rules on fraternization for this very reason. You do not have to be romantically in love with someone to hesitate before selecting them for a dangerous mission; good old friendship will cause the exact same problem. The military therefore takes steps to prevent service members from developing relationships that might undermine the normal command structure. Having a “absolutely no dating anyone under your command” rule would involve no change from current policy.

Second, the issues Owens brings up all are strictly combat related issues. And yet we are kicking people out of the military who serve as interpreters, cooks, or accountants. At the very least, Owens should be advocating for DADT to be reduced so that it applies solely to combat positions, instead of arguing for a stupidly broad blanket prohibition. Because Owens is unable to offer even one argument for why having a gay interpreter is a problem for the military.

What infuriates me the most about Owens’ oped — and the arguments of others like him — is the naked bad faith of their claims. Owens writes,

There are many foolish reasons to exclude homosexuals from serving in the armed services. One is simple antihomosexual bigotry.

But the only justification Owen proffers that makes any coherent sense is an argument premised upon uncontrollable bigotry in the ranks. I much prefer those who simply argue that “they shouldn’t have to shower with gays because that’s gross.” Because that is what Owens’ argument actually is, although he disguises it with a thin cover of irritating and inconsistent rhetoric.

Because there is one fundamental fact that those arguing for the continuation of DADT almost uniformly fail to acknowledge: gays are not banned from the military, nor is anyone trying to implement such a ban. There are gays in the military right now — always have been, always will be, and that is not subject to change.

So with that in mind, Owens’ argument, stripped down, is the following:

  1. It is unquestionable that gays currently and legally do serve in our armed forced.
  2. However, having gays in the military causes problems X, Y, and Z.
  3. Therefore, we should not allow it to be known who in the military is gay.

There is an obvious gap in the chain of logic here, to put it mildly. Gays cause problems, therefore we should make it so we cannot know who the ones likely to cause problems are? This makes no sense. If they are going to be there anyway, shouldn’t we at least be able to flag the potential trouble spots?

But Owens is not actually unaware of this flaw in his logic. Although he hides it with poetic entreatments to honor and comradery, what Owens is truly arguing is this:

  1. Gay people may or may not directly cause problems for the military. But they are not severe problems, because if they were, people who are against DADT would be arguing to exclude women from the military. Or, failing that, they would not be arguing so strenuously for policies that allow these threats to enter into the military and yet prohibit us from identifying and locating them, therefore preventing us from taking steps to reduce the risk.
  2. But whether or not gays are unable to carry out the military’s mission in the same manner that a straight person is, having gays serve openly in the military may (note the may: I have yet to see anyone produce empirical evidence that they actually do) create conflict and morale issues with other service members that were not there before. Just like women, non-whites, and people who are extremely socially awkward, the presence of gays may cause a decrease in unit cohesiveness.
  3. Therefore, in order to prevent the precious, delicate flowers that are our service men and women from experiencing any discomfort, which might cause a decrease in morale, we should force everyone in the military who is gay to live their life in the closet, so as not to cause those military members who are prejudiced from experiencing mental stress.

Of course, there are two possibilities here.* Owens’ arguments may just be the apology for ‘antihomosexual bigotry’ that they appear to be. Or, instead, Owens might honestly believe that allowing people who are romantically attracted to each other to serve in the armed forces is destroying the military. However, Owens knows there is not a chance in the world that we will go back to the dark ages of banning women from the military, so instead he draws his line in the sand at maintaining DADT. Although DADT will not directly prevent the problems that having gays in the military causes, Owens believes it will make life so uncomfortable, unhappy, and stressful for gay service members that they will be greatly reduced in number, thus decreasing the threat posed by them.

But neither of these rationales are worth listening to. The first argument is too hopelessly inconsistent — by allowing non-whites and women into the military, we have already made clear that our military will be integrated, and that the individual prejudices of service members is not a justification for prohibiting an entire class of people from serving. The second argument is too dishonest — if you do believe that gays qua gays are destroying the military, don’t advocate for policies that decrease the quality of life of gay service members in order to try to force them out. Be honest about your position and simply try to prohibit them all together.

Neither argument is a suitable basis for military policy.

Finally, even if we decide that, due to the unique nature and purpose of the military, we must allow discrimination and prejudice to be the basis of decisions governing military operations, the onus should always be on those in favor of discrimination to show that there are benefits to continued bigotry.

This means that before a policy like DADT could exist, there must be, at a minimum, empirical evidence showing that allowing gays to serve openly causes decrease in military effectiveness . But not just that — you cannot look at the negatives alone. In addition to showing that DADT furthers military objectives, those in favor of legislated bigotry need to also show that the detriment caused by allowing open homosexuals to serve in the military is not outweighed by the benefits that ending DADT would have. Among these benefits are: (a) Halting the mindless expulsion of service members who have irreplaceable skill sets and extensive training that is hugely expensive to replace; (b) Improving the morale and welfare of the many gay men and women currently serving in the armed forces; and, finally, (c) Acknowledging our nation’s dedication to the idea of civilian control over the military, by acceding to a political decision that is supported by the vast majority of American citizens.

-Susan

*To be fair, there is a third possibility as well. You could also argue that gays are so inherently immoral, perverted, and malformed that they are simply not qualified to serve in the military. But because people who tack to this line of argument are incapable of being reasoned with, I will not bother to address it here.

Class Action Against Microsoft for XBox Points Fraud: I Wish This Lawsuit Were Real

Sadly, it turns out the news that a class action law suit had been filed against XBox, challenging XBox Live’s Microsoft Points system, is not quite as satisfying as early reports had suggested:

This week attorney/gamer/and frequent plaintiff Samuel Lassoff filed a class-action lawsuit against Microsoft for “fraud, breach of contract, negligence, unjust enrichment, and unfair business practices . . .” The plaintiff/attorney appears to be the only member of the class.

It is widely reported that the lawsuit concerns Microsoft’s points system, which Microsoft uses for online purchases. The system has been problematic because the “points don’t correspond to real-world dollars, and often you’re left stuck with unused points.”

Unfortunately, nothing in the complaint discusses this problem.

The actual lawsuit seems to allege merely the loss of “15 attorney hours over several days” trying to deal with the Microsoft support staff. While the suit itself may be pretty silly, I do think the amount of time claimed in damages is extremely plausible. Every time I have ever had to call the XBox hotline, I have been told that “their system is down” and I need to call back in a few hours. Repeat ad nausea.

As for the case everyone hoped this lawsuit was actually about: Essentially, for downloadable content XBox Live, real world currencies are not allowed. Instead, you use your national currency to purchase Microsoft Points, which in turn can purchase items online. (And, oh, don’t even think about trying to buy Points for an account registered to a different country than you are physically residing in. Take my word for it, it’s next to impossible to do so without setting up some off-shore accounts in the Caymans.) Unfortunately, Microsoft only allows to purchase points in pre-set packs — and those packs are always just under or just over the actual number of points you need, assuring that you will likely never be able to achieve a 0 balance thereafter.

In other XBox 360 lawsuit related news, a Plaintiff in the Northern District of California has issued a subpoena on Bill Gates for a lawsuit brought regarding the XBox’s infamous Red Ring of Death:

The subpoena instructs Gates to bring “documents pertaining to the true and relative number of actual Xbox 360 units that have been fixed by Microsoft over the past 3 years.” Estavillo is also seeking statistical data showing the true number of Xbox 360s that experienced the RROD (or other break-downs) and data on the actual number of people banned from Xbox Live for “piracy” over the period of 11/28/2008 through 11/28/2009.

-Susan