Sunday, February 22, 2004

The Sunday Grab Bag 
I’ve been following the situation in San Francisco for a while now. The Libertarian side of doesn’t give a rat’s ass if gays want to get married. But the Conservative side of me wants to maintain the institution of marriage. But all of me is outraged at the actions of the mayor of San Francisco and the Governor of California. The one thing that bothers me the most is how long it has taken the Governor to finally openly oppose what is going on in Sodom & Gomorrah (a.k.a. San Francisco). Also on this Sunday edition, we have a SIXTH grader suspended for bringing the Swimsuit Edition to school. We also have Shaquille O’neal acting like an ass. And the President’s dog is dead. All these stories and more on your local edition of the Sunday potpourri.

Gay Marriage in S&G

Dear Mayor of San Francisco: You are not the legislature. You are not the judiciary. You are a fucking mayor! Quit thinking you are the President and can simply take unilateral action on any issue that you want. You’re job is administrative. You are a paper-pusher. You do not make policy. In fact, you’re city is so far out of the mainstream, that it was only three (3) years ago that San Francisco passed a law finally OUTLAWING pissing and shitting on the streets. Wow! It took you “progressives” until 2001 to realize that people going to the bathroom on the street MIGHT be a health hazard. Not to mention jus downright nasty! Ok, well I realize that you think this gay marriage think is an Equal Protection issue. Thanks for your opinion. I don’t think the SUPREME COURT of the UNITED STATES has yet concurred with your opinion so how about you leave the subject alone and let them rule on it since they possess just a little more authority than you. Love, Nathan.

And Governor, where have you been? I know you said you wanted to go “clean house in Sacramento”, but how about you pull your head out of the mop bucket and go deal with an unruly mayor who is violating the law of California. You are the Governor. It is your job to deal with unruly citizens and enforce the laws of your State. And if the law in your state is that marriage is between a man and a woman, then you damn well better enforce it. Why is enforcing the law such a hard concept. And if someone breaks the law, what do you do? You arrest them. Should we have the mayor of San Francisco arrested? If you do, he becomes the first martyr for the gay cause since Matthew Shepard. If you don’t, as the Governor you look like a pushover because you have no balls to enforce the law. Sucks for you Mr. Governor. Tough spot you got yourself into.

Porn in School?

Justin Reyes, a sixth grader in Parkersburg, WV was suspended for bringing a magazine to school that violated the policy in the school handbook. Justin, you should have just left the Playboy at home. But wait! It wasn’t a Playboy? Or Hustler? It was…Sports Illustrated Swimsuit Edition? Un. Freaking. Believable. Are there nude women in that magazine? No. Are there wet t-shirts or see-through tops? Occasionally, but the women aren’t nude! If the kid brings a magazine to school that he could have bought himself (i.e. not porn), then why is he getting in trouble for it. Tell me, what would have happened if he would have brought some gay porn to school? Would have he been treated so harshly?

Shaq Sux?

That seems to be the mantra around Orlando, Florida. Apparently, Shaq has skipped out on numerous charity events for a group called Tampa Bay Reads. He also skipped out on a $100 per-plate dinner with Governor Jeb Bush (simply inexcusable). It seems Shaq may have to pay for his little indiscretion. Shaq has been sued by Paramount Celebrity Management for $5.6 Million dollars for skipping out on numerous events he had committed to. But come on, $5.6 million is just a drop in the bucket for Shaq. He could care less. Never really like him. Now I really don’t like him.

The President’s dog dies

Spot is dead. No more “See Spot run.” Or “Sit Spot, sit.” It’s all over. Spot was born in the Whitehouse fifteen years ago. And now Spot has died at the Whitehouse. This is kind of sad…I think I’ll just leave it alone now.

Ms. Arreola just can’t get enough of those boys!

Ms. Arreola, a 30 year-old teacher was a caught NAKED IN HER CAR with a 14 year-old student after class recently. When the cop came upon the car in a park known for prostitution and drugs, the cop noticed foggy windows and went to investigated. Sure enough, there was the oddest sight you’ve ever seen. Hey woman! That could be your son! You freaks! Why?!?!?!? Un. Freaking. Believable. What the hell is attractive about a 14 year-old boy? 14 year-old boys are skinny, acne covered, smelly, obnoxious, gross pieces of shit. Lady, you are really warped.

You’ll LOVE this!

Andre Gainey was kind of bored was he was driving around on Tuesday night in Albany, NY. He decided to pop in the movie “Chocolate Farm”. As you can imagine, this movie was slightly on the adult side. Anyway, when Andre pulled up to a stoplight, a couple of cops were next to him and noticed the “obscene material” playing on the movie screens in his headrest. Andre was arrested and charged with public display of offensive material and watching a television while driving. So the point of the story is not only are not allowed to watch porn and drive, you aren’t allowed to watch TV period and drive. Good to know.

Thursday, February 19, 2004

Wisconsin and the Daubert Standard 
So let's have a discussion. The Wisconsin Senate voted recently to adopt the much more strict Daubert standard for admitting expert testimony. Alas, this standard will only apply to civil trials. Now, why would this new standard only apply to civil trials? Because the Wisconsin Senate perceives a problem with civil litigation. So their answer is to make it too expensive to bring civil suits. I fail to see the logic. If expert testimony is so important in in civil trials that we want to ensure that only scientifically accepted (sound) evidence will be admitted, why not in criminal trials? Are defendants not entitled to such a standard? If anything, I think the Daubert standard should be applied to criminal trials and not civil trials.

I have another theory too. The State doesn't have the money to prosecute under the Daubert standard. But I find it strange that the State seems to think that counsel for plaintiffs and defendants in civil trials have the resources to operate under the Daubert standard. I think it's slightly underhanded for the State to attempt to price out of court Plaintiffs that cannot afford the Daubert standard, while not requiring their own prosecutions to proceed under the same standard.


Friday, February 13, 2004

On Kerry 
I'm sure that by now we have all read about the possibility of a Kerry infidelity issue. I'm torn on how to feel about this.

On the one hand, I tend to think that it is in poor form to purposefully try to humiliate somebody for public gain by releasing potentially embarassing provate information. Everyone has done things that they regret, and has made poor judgments from time to time, especially in their younger years. Most people learn from it and move on. I'd much rather a debate on issues than a parade of skeletons.

On the other hand...if one side decides to use such tactics (see, e.g., a drunk driving arrest, a drug and alcohol abuse problem, missing national guard drills), then they cannot cry foul when their own candidate is subject to the same kind of criticism. In a way, it's sort of a political Geneva Convention. Officially, participants agree that there are rules of protocol that should be observed. But if one side violates the protocol, the agreements are void and the other side is justified to do the same (not that it is desirable for them to do so).

Also, if, as the story suggests, this impropriety is quite recent, then it does raise what I think are fair questions of judgment. Particularly after recent history, what are we to think of the judgment of someone who would make such a stupid choice? This evidence may be admissible to demonstrate current character and credibility. Even more so, now that he has publicly denied the story.

Again, this is all premised on the rumors being true, which we don't know yet. Only if some evidence is forthcoming do I think this story will go anywhere.
Well THIS could be an interesting presidential race 
Let's say, arguendo, that John Kerry did have an inappropriate relationship with a young female campaign staffer named Alex Polier. This is an interesting situation and I wonder how others feel about this and how it this will play out. As of now, Kerry is denying the allegations and did so on IMUS in the morning today. In case you aren't familiar with this story yet, go here, here, and here. The thing that I find most interesting is that this woman, Alex, allegedly fled to Africa AFTER she was approached by at least two television producers who were interested in her story. Additionally, she fled the country at Kerry's request. I don't know much, but I know that this should be some good fun!

Thursday, February 12, 2004

Allow me to introduce myself 
It is surely considered altogether untoward for one's first post to be of a less-than-substantive nature, but I will essay something more substantial in the near future, and, in view of this blog's nascent nature, I suppose this entry will be permissible. My name is Joe Hiegel, and I am here at the very kind invitation of Abe. I am a junior at the the University of Wisconsin-Madison where I major in political science and French, although I am currently taking a semester off, relaxing and working on the John Kerry campaign , inter alia. My politics are most ardently libertarian (although I typically vote for Democrats, for reasons on which I shall expound in my next post) and my judicial tendencies are toward textualism (Scalian--as to original understanding--rather than Borkian--as to original intent). My research interests lie in constitutional law (specifically with respect to the First and Fourteenth Amendments), law and economics, elections and voting behavior, English grammar, the history of the United States Supreme Court , and theories of the construction of government, so it should be expected that the majority of my posts will be of the categories supra. Should you have any off-blog comments for me, I can be reached via e-mail at duk1e@aol.com; I should look forward to hearing from all of you. Until tomorrow, when I shall return hither with a post on why libertarians and federalists should, in most cases, vote Democratic, in part a rejoinder to some previous posts--or at least to the presuppositions on which those posts rest--I wish you all well; I look forward to blogging here.
The view of a republican (soon to be...hopefully) plaintiff's advocate concerning tort "reform" 
Alright kids, let’s play a game. Let’s see how fast this post creates multiple postings warning of my impending death. Regardless of the risks to my physical well-being, I will post on the topic of Tort “Reform” anyway, and let you all attack me.

A required disclosure: I am a Republican and I am a Conservative. Always have been, always will be. But the actions of my party and my political brethren on this issue baffle me. It seems to me that by supporting tort reform, it appears to confirm the liberals’ constant charge that all that republicans care about is big business and profits. Now, opposing tort reform only to appear to be more sympathetic to the “little guy” is bullshit and not a valid reason to oppose such reforms. But to really oppose it and to understand the basis for doing so is very important. And hopefully this posting will at least help you slightly understand the reason that certain people in the Party oppose such reforms.


Understand first that “tort reformers” don’t really want reform, they want “tort restrictionalism”. It seems that every time a big award is handed down (for instance any tobacco award generally ranges from hundreds of millions up to somewhere in the billions) by a jury, people, particularly conservative talking-heads, get all up-in-arms about the jury’s decision that the defendant was liable for their actions and should be held accountable. In recent years, jury awards have “skyrocketed” and it seems that the legislatures of many states feel their constituents demand that something be done about those “goddamn, blood-sucking trial lawyers.” Sure, it’s the lawyers fault. Seeing as how most, if not all, readers of this blog are soon going to be lawyers, how do you feel about that. Is it all your fault? Is it a personal fault that you advocate on behalf of your client? Is it personal fault that you have excellent advocacy skills? Is it a personal fault that the jury felt empathy for your client because the defendant was a real asshole? Maybe these things are personal faults that trial attorneys need to rid themselves of, but I don’t really think so.

My apologies, I digress. But not only constituents argue for tort reform. The ones that yell the loudest (because their wallets are the biggest) are the lobbies for medical doctors and the lobbies for the manufacturing industry. It is in regards to products liability law and medical malpractice law that most legislatures take up the area of tort reform.

The legislature’s main idea of tort reform is putting “caps” on non-economic damages. This, to me, seems downright offensive. For example, the “cap” on non-economic damages for a wrongful death claim in Wisconsin is $450,000. That’s it. No matter what. Period. Game over. The legislature has determined (in their infinite wisdom no less) that a person’s life is only worth $450,000. I fail to see how a group of people sitting together in Madison can determine that there is not one person, in the entire fucking state, whose life is worth more than $450,000. This concept absolutely blows my mind.

In general, states put “caps” on non-economic damages for any type of injury. It is assumed that we do not want juries over estimating how much someone’s pain is truly worth. Let me put to you an example: Professor Kircher, in his torts class, would ask a particular person how much five seconds of pain is worth. After the student gave his answer, Kircher would then pull out a lighter as ask to hold the flame to the student’s skin for five seconds, and reward him with whatever monetary figure the student suggested. Generally, the student’s original monetary figure would increase dramatically. That’s the concept of non-economic damages. To a disinterested third party, the concept of pain and suffering, mental anguish and the like, are simply numbers to be thrown about. But think about it. How much money would it take for you to voluntarily (or involuntarily) submit to five seconds of pain? When dealing with non-economic damages, you must realize that the pain and suffering doesn’t only last five seconds. It doesn’t last only five minutes. Or five days. Months and years (and lifetimes in certain cases) are generally the time frames we are talking about. But apparently the legislatures of numerous states are wise enough to fully comprehend how much each individual’s pain and suffering will be worth. Basically, the legislatures are saying to every accident victim, “When you get hurt, you will probably suffer. But you will never experience pain and suffering beyond the point where $xxx,xxx will not satisfy you.” It really does boggle my mind how a disinterested third party can say that to any person. The very people that should be looking out for their constituents are in fact screwing them seven ways from Sunday.


Tort reformers attempt to make their case using medical malpractice awards to justify “caps” on non-economic damages. It is continually claimed that doctors are being forced out of practice because of ridiculous malpractice insurance premiums. I agree. Malpractice premiums are absolutely ridiculous. There is no insurance that should cost you as much as doctors have to pay for malpractice insurance. But alas, malpractice suits against doctors are NOT the cause of the rising premiums. Greedy insurance companies are the cause. Damn near every study every conducted concerning the connection between malpractice insurance and “caps” on non-economic damages in malpractice suits shows that there is little-to-no correlation between the “caps” placed on damages by the legislature and the premiums decreasing or at least remaining static. None. No correlation. But wait, it gets worse.

The State of Wisconsin LOVES doctors. The state loves them so much, that they decided to allow doctors to practice medicine without any economic exposure in a lawsuit. Let me explain. When a doctor gets sued, his insurance company comes to the rescue. If the insurance company and the plaintiff can reach an agreeable number, then they will settle somewhere inside the policy limits. But, if they can’t settle, the case goes to trial. Now, here’s the kicker. If the doctor’s insurance policy has limits of $1,000,000 and the jury gives an award of $2.5 million, the WISCONSIN PAITENT’S COMPENSATION FUND kicks in the rest. All of it. The doctor has NO economic exposure at all! None. So how does this system encourage doctors to not commit malpractice? Hell, I can’t figure it out either. But for some unexplained reason, I’m sure the Wisconsin legislature feels that we need “caps” on non-economic damages in medical malpractice cases.


First, I must admit that I took that heading from Paul Scoptur’s law review title. But it is so very true. Tort reform isn’t about the victims, it’s about screwing the lawyers. For as much as people bitch and moan about lawyers (and how lawyers alone created all of the world’s problems) I can guarantee you that if you speak to any victim, he will state that his lawyer is one of the best people in the entire world. Because he went to bat for his client. Because he helped his client recover a fair and equitable settlement. Because the lawyer would listen to his story when no one else would. The moral of this little story is that it’s good to be a lawyer. Even better to be a plaintiff’s advocate.

Now, back to screwing the lawyers. The common misperception that lawyers only sue people to make money. While that might be true in the minority of cases, lawyers sue people (or things such as corporations) because that person did something wrong, and either won’t admit to it or refuses to pay for his mistake. That’s why lawyers sue people. But back to the misperception, I assume the theory is that if these “caps” reduce the amount of money that lawyers can get, then they will stop suing people. They will stop making money. Essentially, the hope is that the lawyers will go out of business. But again, bullshit. Not going to happen.


When talking about tort reform and particularly “caps”, it is important to realize that the person that gets screwed the most is the victim. This is especially true in medical malpractice and products liability cases. The reason for this is that the cost of trying these cases is so ricockulously high, that if there is not going to be a sufficient recovery, the attorney will not take the case. For example, if the “cap” on non-economic damages in med-mal cases is $300K, and the attorney knows that he will have to spend at least, at a minimum, $200K on experts, he’s not going to take the case. And where does that leave the victim? Without recovery. You might as well have slammed shut the courtroom doors on her. She has no recovery.

Another example (see how this works for you): Microsoft is considering developing a new operating system. Microsoft knows that they will have to spend X number of dollars on R&D, X number of dollars on marketing, and X number of dollars on miscellaneous things. Now, if the expected profits outweigh the costs, it is a good business decision to design and manufacture the operating system. Well now, just as Microsoft is getting ready to start manufacturing the new system, the Washington legislature passes a law restricting any software developer’s profits to only .5% beyond what was spent on R&D, marketing, etc. Now will it make economic sense for Microsoft to invest all of that money into the new system? That’s a business decision that they would have to make. But do you now understand a little bit better the precarious situation that the plaintiff’s attorney finds himself in?

Okay, it’s been fun. I’m sure I haven’t covered everything relating to tort reform, nor have I made all the points I wanted to make. But that’s why you all will respond and point out the flaws and undiscussed points in my argument. Thank you, it’s been fun.

How to wreck a comedy career: 
There are just so many things about this story worth commenting on.
BERLIN (Hollywood Reporter) - The Berlin Film Festival has gotten a much-needed shot of levity when Robin Williams turned the news conference for Omar Naim's sci-fi thriller "The Final Cut" into a free-association comedy routine.

Williams got the biggest laughs from the packed room of international journalists and critics on Wednesday when he started taking shots at the Bush government and its search for weapons of mass destruction in Iraq.
I can't decide which I think is more likely - that international journalists and critics hate Bush so much that they think that it's the funniest thing (oh, THAT liberal media!), or that Robin Williams is now so unfunny that he can only make people laugh by making second-grade level jokes about things he doesn't really understand. The most likely answer, is, of course, both.
"Bush is complaining about a lack of intelligence, which seems sort of redundant," Williams joked.
How many ivy-league degrees does Robin Williams have? Oh, that's right. Apparently Mr. Williams' understanding of the issues is so deep that he's come up with the devestating critique of calling the President an idiot. Second-grade humor, meet second-grade analysis.
"They say they don't know if Iraq had any WMDs -- well, all they have to do is ask (Vice President Dick) Cheney for the receipts."
This is wrong, but at least it's short and pointless. I'm not sure what weapons Williams thinks Cheney sold to Saddam, considering that Cheney worked for an oil company. Maybe Williams was talking about the United States Government in general. In that case, he's still wrong. In fact, virtually no Iraqi weapons of any kind come from the United States, instead being provided by our good friends France, China, and Russia.

Maybe Mr. Williams should stick to impersonating black people and guys on quaaludes. Then I'd be laughing with him instead of at him.

Monday, February 09, 2004

Live from the footnote check room 
Taking a sanity break. I shouldn't be at the library this late, but that's what Law Review is all about, I suppose.

One thing that pops into my mind again and again as I read these articles and comments for editing is my wish that every single person who writes substantial amounts of nonfiction would read and take to heart Orwell's underappreciated essay, Politics and the English Language. It bluntly states what I consider to be one of the central lessons that Orwell wanted to communicate in 1984, that sloppy writing is not just a symptom, but a cause, of sloppy thinking.

It also contains the famous "Orwell's Rules for Writers:"
1. Never use a metaphor, simile, or other figure of speech which you are used to seeing in print.
2. Never us a long word where a short one will do.
3. If it is possible to cut a word out, always cut it out.
4. Never use the passive where you can use the active.
5. Never use a foreign phrase, a scientific word, or a jargon word if you can think of an everyday English equivalent.
6. Break any of these rules sooner than say anything outright barbarous.

I'm not quite sure why the writers of law review articles and comments seemingly feel compelled to violate all of these rules as frequently as possible. Maybe they think it makes them sound sophisticated. Maybe, like myself, they are trying to cover up the fact that they don't fully understand to the level that they would like whatever it is they are writing about. (I usually feel that it is simply impossible, given the sheer volume of legal materials and theories, to understand a subject completely enough to satisfy me.) Whatever the reason, it is unimaginably frustrating to see these kinds of stylistic atrocities and be powerless as a mere grammar and citation editor to do anything about it.
I encourage all federalistas to vote for Howard Dean in the Wisconsin primary a week from tomorrow. As far as I know, there is nobody important to vote for in the primary on the Republican side. Therefore, a Dean vote will cost you nothing, but might screw things up for the Democrats by allowing Dean to get more press, raise money for ads, etc.--all of which he will use to CRITICIZE KERRY, the heir apparent, which will simultaneously achieve our objectives.

A vote for Dean will require Kerry to spend his time and effort to explain why HE isn't a complete tool of the special interests (which he is), while at the same time diverting his, and other liberals, attention away from Bush. It's a win-win situation and requires very little effort on our part, so......


p.s. Who knows? Maybe a strong Dean showing will inspire the greatest good of all, RALPH NADER, to join the race!
What I like about Federalism 
I'd like to make a few comments about what I like about Federalism, and why I respect and participate in the Federalist society.

There are a lot of people, I think, that have some serious misconceptions about what the principles at issue here are. I get the impression that when most people think of the Federalist society, they think of something like the College Republicans for Law Students; a highly partisan, politically-oriented group for conservatives and libertarians.

It would be foolish to deny that there is a bit of truth to that perception. It is true that the large majority of Federalist Society members are politically of a conservative/libertarian bent. It is hardly surprising that when these people get together, their conversations and their attitudes trend in that general direction.

But the main question that concerns Federalists is this: Who makes policy in this country? Is it the people, through their elected representatives? Or is it the (often appointed with life tenure) judges? As a Federalist, I answer that it is us, it is the people.
Governments are instituted among Men, deriving their just powers from the consent of the governed...
When judges use their power to govern us, they are betraying this concept of consent. We submit to the laws because we have had our fair chance to shape them. We can accept being governed even by laws which we strongly oppose, because we got a fair chance to shape the law, and continue to have a fair chance to change the law again. We can accept as a fair reason for losing the policy debate that our principles are not shared by the majority of others.

Speaking for myself, I cannot accept being bound and governed by policies in which I have had no chance to directly shape the creation of such policy by vote, or right to petition the policymaker, or ability to marshall public opinion or outrage to apply pressure to the policymaker. I will not consent to being governed by judges who have no reason or obligation to care what anyone accept themselves thinks about a policy - whether I agree with the policy or not.

That is why it is not required that one be a conservative or libertarian with respect to policy preferences to be a Federalist. In fact, it is rather surprising to me that this would be perceived to be the case. Do so-called liberals accept it as their position that they are against giving the electorate control over its own fate? Where are the progressive cries of "power to the people" now? The sad fact is, I suspect that for many of them, these principles of power and government are not as important to them as whose ox is being gored. They still yearn for a return to the days not so long ago when the courts freely implemented their policies, seemingly without constraint. They point to political success as an argument against federalism. Perhaps they are right to a degree; certain political developments that are unquestionably positive might have taken slightly longer to occur.

But at what price? A benevolent tyrant is still a tyrant. "A government that is strong enough to give you everything you want is also strong enough to take it all away." And as we survey what has happened since these cases, can we really say that the issue has been settled? Who believes that racial animosity is less now than it was at the time of Brown v. Board of Education? Who believes that we have reached political concensus on government regulation of abortion? It may truly be that people, Americans especially of all, tend to simply radicalize when their input is shut out of the policymaking process. We're relatively graceful at politically losing, but we have to be allowed to play the game.

It doesn't matter what policies you want. It doesn't matter what you think about War in Iraq, or health care, or guns, or taxes. All you have to believe is that whatever political chages ought to occur, should be done by political concensus. All you have to believe is that everyone should have their fair chance for input into the policymaking process. That is what federalism is about.

Sunday, February 08, 2004

yes, i know tests are dumb. just thought i'd do it anyway. something more substanative to come later. i will be posting on tort reform at sometime in the near future. don't pee yourself in anticipation.
We're a secret cult. Don't tell anyone.

madison.com | archives: Sykes Has Dark Secrets

Then there's the secret cult Sykes belongs to. The Federalist Society, which regularly supplies Bush nominees, is an organization of legal conservatives devoted to "the principles of limited government embodied in our Constitution."

Their basic idea is for courts to return to the original text of the Constitution before the document got cluttered up with all those bothersome amendments guaranteeing rights.
Apparently we're so secret that editorial writers can't find out what we're about. I guess I can understand; if you can't be bothered to type the words "Federalist Society" into Google, you might not find the top-secret website: www.fed-soc.org!
I thought Madison was pretty far left, but seriously... 
What's up with Madison.com's (City of Madison, WI news portal) new website design? Am I the only one that thinks it has a creepy Soviet flavor, with the red star and all? Would people think it was as cute if it had a gray iron cross?
Is this thing on? 
Greetings! My name is Abraham Liebsch, and I am the (unofficial) Minister of Propaganda for the Marquette University Law School chapter of the Federalist Society. As such, I've set up this forum for the various members who care to publicly air their thoughts and grievances. Enjoy.

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