Per Curiam
-- A man has to do something for a livin' these days

-- Bloggin' ain't much of a living, boy
Friday, March 12, 2004
Litigious patients (updated):Paul Scott has a good discussion of - the directory of medical malpractice plaintiffs designed to allow doctors to screen out patients who pose a high risk of litigation.

Scott's argument for the service's legality seems to rest on a shaky premise, however. He acknowledges that if a group of doctors agreed not to serve patients based on their listing on the website, that would constitute a potentially-illegal boycott under the Sherman Act. But then he hints that the test might be applied under a discriminatory impact or disparate impact theory; that is, if someone came forward and could demonstrate that they had systematically been denied medical treatment because of their posted litigation history, they might have a valid claim.

The provision of medical care is a sensitive issue, and in this era of activist courts, I think Scott is probably on to something: if someone could simply show they had been unable to obtain care, they might be able to find a sympathetic court to accept an antitrust violation theory demonstrated by its impact.

But this may mean that the website is only legal, so long as it isn't used for its intended purpose. Hmm.

Thanks to the Texas Law Blog for the pointer.

I am off to New York for the first Board of Directors/Board of Advisors meeting of Fitness Forward, a non-profit organization addressing issues of youth health and fitness.

Tuning in online:In this week's issue, the Sporting News reports on sports radio listenership declines since 1999. Listening in the 18-24 age group has fallen 20%; in the 25-34 age group, it's a 9.1% decline, and in the 35-44 demographic, it's an 8.3% decline. Meanwhile, listening by those 55-64 has soared 37.5%.

The Sporting News doesn't offer any explanation for this phenomenon, except to quote Len Weiner at WMVP-AM in Chicago as saying: "older people are the ones who tune in to the game broadcast, the baseball."

That makes some sense: I've noticed that older people seem pretty unenamored with the reality-TV shows that have taken over the airwaves during the last few years. Perhaps they're tuning in to baseball games as an alternative.

One factor that may be driving changes for younger listeners: direct-broadcast satellite services. The rise of packages like "NFL Sunday Ticket" make it much easier to follow out-of-market teams, satisfying that fan impulse.

I can equally imagine that the Internet plays a role in declining listenership among younger audiences. Particularly for students, streaming broadcasts (even by subscription) and play-by-play tickers are also good ways to see your favorite, distant team.

Coming soon, the Valles Marineres Motor Speedway?In an interesting turn of events, the Champ Car World Series has become a lead corporate sponsor of the X-Prize:
Checkered flags aside, there is still a race for the stars going on and the Champ Car World Series has just become a key part of it. The open-wheel racing series announced today that it would become the presenting sponsor of the X PRIZE Competition, which is an international race offering $10 million to the first private team to finance, construct and fly a manned spaceship.
Interesting to see a racing series as sponsor, rather than sponsored, especially in the context of NASCAR's problems finding full-season sponsors.

Thursday, March 11, 2004
The French reaction: France appears to be hedging its bets on whether the Madrid bombings are the harbingers of more to come. While this article points out that ETA is suspected of using France as a conduit, the French are likely to be worried only about the possibility that it may be Islamic terrorists -- ETA is hardly likely to endanger its ability to source weapons through France by inviting even closer cooperation between France and Spain and a general French crackdown.

Incidentally, who knew that France had a color-coded terror alert system, just like the United States? France established their system almost one year ago. I have read dozens of stories like this one criticizing the DHS system here in the U.S. over that time period, and I can't recall ever seeing anyone mention that even the French think it's a good idea.

Well, o.k., I'm not sure how much credibility that adds, but still.

Similarly, if there's anyone in the blogosphere that hasn't been following the media's preposterous spin on the Seattle-Post Intelligencer reporter, Democratic staffer, and Andy Card cousin who spied for Iraq, you should be. (Card apparently turned her in. The right thing to do, but I imagine it was difficult).

The 'Truth' In Movies: Gregg Easterbrook laments the death of playwright Jerome Lawrence with an essay on his most famous work, Inherit the Wind. In doing so, he supports a contention made by Tyler Cowen about the importance of movies in modern society.

Many fans of Inherit, including myself until fifteen minutes ago, do not realize that the story told in the play and movie often does not accurately portray the actual events of the "Scopes monkey trial." In reality, Scopes volunteered to be a test case for the law (in the movie he was arrested), the townspeople were equally divided on the issue of evolutionism (everyone is town was portrayed as a Bible-beating bigot) and William Jennings Bryan was not the single-minded, religion-or-bust orator as he was portrayed. Lawrence intended his play to be a satire of McCarthyism, and as such, created a caricature of religious advocates as clamoring for blood without any credible evidence.

Despite this intention, countless fans of the play and movie do not realize this, and thus view the film as a documentary. It is shown in countless high school history classes (including my own), without any indication that the story has in any way been changed. Thus, countless individuals believe the "history" as presented by Lawrence and never discover the what truly happened.

Over on Volokh, Tyler Cowen points out that this phenomenon of taking movies as historical fact represents the real danger of Mel Gibson's Passion of the Christ. As Cowen points out, this is only Gibson's version of the last 12 hours of Christ, but he has the means to put them into a mainstream movie. In the coming decades, how many people will view this film rather than opening a Bible, and as such, have a skewed version of historical or religious events. Granted, there will be less of a problem due to the influence of religious leaders and their interpretations of events. However, as controversial movies come out, one must ask -- in the future, will people learn history, or learn Hollywood's version of it?

What if it wasn't ETA? In the wake of the Madrid bombing, all signs have pointed to ETA as the prime suspect. But there are many indications (size of the attack, no claim of responsibility) that ETA may not be behind this act. Perhaps it was a group that wanted everyone to think it was ETA? Also, I am not one for conspiracy theories, but it is March 11 -- exactly six months from the most significant terrorist date in recent history.

Update: Back Seat Drivers has more on this, including the possibility that there may have been an Arabic tape found near one of the train stations.

Counterpoint: While Greg correctly points out that the United States remains vulnerable to a Madrid-style terrorist attack, despite the billions of dollars invested in airport security, I don't share his conclusions.

Mass transit facilities are particularly important to protect. Terrorists around the world have targeted subways and rail lines, and it would be surprising if they weren't eventually targeted here. And bomb detection equipment is particularly valuable in these places, because they are confined spaces, with limited entrances, where bombs will usually be delivered on a person. They also typically have dedicated police forces that can respond quickly to a signal of detection.

But when Greg points to other public places where people gather en masse, he blends together those with characteristics friendly to security measures, such as sports arenas and amusement parks, with those unfriendly to security measures, such as shopping malls. Unfortunately, when security is tightened in one area, terrorists will likely attack at other vulnerabilities. This too is a lesson that can be drawn from Madrid. But no technology can secure us from bombs placed at security screening checkpoints, like in Israel; or from car bombs driven into crowded streets; or from suicide bombs in malls with dozens of entrance and exit points. This possibility, not the value of increased security, is what needs to be thought about when we consider counter-terrorist security investments.

We can spend an unlimited amount of money on self-defense and never be safe. Does this mean we shouldn't protect subways? No. But it does mean that we should carefully consider the value of a dollar of defensive security at a mall versus a dollar of rooting out terrorists before they strike.

What the US Can Learn from Madrid: A violent terrorist attack hit Madrid today, as a series of coordinated bombs ripped through commuter trains entering the city during rush hour. No group has claimed responsibility for the attacks, but the Spanish government has been warning of a possible attack by the Basque separatist group ETA in advance of next week's national elections. The conservative Popular Party, which has taken a hard-line stance against ETA, has been leading in the polls.

I have lived in Madrid and been through the train stations hit many times. Normally, the Spanish people try to ignore ETA and continue their lives after attacks, because the nation as a whole does not want the group to win. This attack, however, will prove difficult to move past quickly, because of its severity and the constant threat of similar future attacks in the wake of the election.

For Americans, the attacks take on a much greater significance, because it showcases how vulnerable we are as a society. The next attack will not come on an airplane, or in an airport -- the terrorists know of the increased security measures and will not attempt an attack that has a high probability of being stopped. But while our nations airports are growing more secure, what of the other possible terrorist targets? Hundreds of commuter trains just like this one enter and exit New York, Chicago and Philadelphia every day. This attack could have just as easily taken place in one of these cities. In addition, there is almost no security on any of the nation's subway systems. An underground attack could kill thousands and cripple a city's infrastructure. Attacks could take place in shopping malls, amusement parks and many sports arenas that lack advanced security measures.

Unfortunately, it usually takes an attack to mobilize the American people to solve a problem. If it had not been for the 9/11 attacks, airport security would be the same as it was on September 10, 2001. However, perhaps all governments -- federal, state and local -- can learn from the tragedy in Madrid and enact security measures at rail stations and subways before a similar attack kills hundreds of our citizens. Such security does not have to be overly intrusive of people's privacy, nor subject major cities to a police-state feel. Perhaps there will be some invasion, but security does not have to mean metal detectors and strip searches. For instance, the technology exists for bomb-detecting sensors. The installation of these sensors in train cars and stations, as well as shopping malls or even city buses, could go a long way towards preventing terrorist attacks. Will such a program take an enormous amount of money and resources? Yes. But I, for one, would rather spend the money now and hope that it is "wasted" because no terrorist attack ever occurs.

A great day of basketball yesterday in the NBA's often unrespected Eastern Conference.

In addition to Tracy McGrady's understated and gorgeous 62-point performance, the Rasheed-empowered Pistons kept their defensive streak (most consecutive games holding opponents below 70 points since the institution of the shot clock) with another fine outing, and Jason Kidd returned with an impressive team performance in the Nets' nail-biter.

Most people think that the West will easily roll to another championship, but I'm not so sure. The East's best have been getting stronger as the season marches on -- the Nets, Pistons, and Pacers have the ability to make it a long series, and maybe more...

Wednesday, March 10, 2004
Can Software Kill?: eWeek tells us that the answer to this question is yes, and describes several cases in which software glitches have led to human fatalities. The main case discussed in one in which 27 patients at a cancer-treatment facility in Panama received massive overdoses of gamma radiation due to a computer malfunction. Twenty-one of those patients has now died. The article is very long, but to the get overall idea, read the first three pages. Also, for the legally-inclined, the last page has information about the lawsuits, which have been dismissed for lack of personal jurisdiction and forum non conveniens.

Hiibel v. Nevada - a Per Curiam viewpoint: Yesterday, the Harvard Journal on Law and Technology co-sponsored a moot court for Hiibel v. Nevada. Hiibel tests whether a Nevada law requiring lawfully-detained individuals to identify themselves to authorities violates either the 4th Amendment protection against unreasonable search and seizure or the 5th Amendment protection against self-incrimination.

Because of its connections to privacy, Hiibel has become a magnet for amicus briefs. The Electronic Freedom Foundation, the Cato Institute, the ACLU, the Electronic Privacy Information Center, and others have weighed in to argue against the Nevada law.

Yesterday's moot court suggests that they have an uphill struggle.

Certainly the case holdings run against them. In the defining 4th Amendment case of Terry v. Ohio, the Court authorized stops like this "for investigation," and the idea that this investigation involves asking questions has been ratified in many subsequent cases. Terry also authorizes limited searches to protect the officer, and these searches, according to Atwater v. City of Lago Vista in 2001, may be constitutional either under the common law or under a "reasonableness" test. The "nightstalker" laws that Justice Scalia looked to in Minnesota v. Dickerson likely included asking one's name, so that argument is foreclosed. Meanwhile, the police interest in safety looks pretty strong, and the individual's interests are hard to articulate in the balancing test of "reasonableness." Why? There is a lack of good anonymity doctrine to point to, common-sense suggests that disclosure of one's name is frequent and often unintrusive, and the Terry court characterized the search it authorized as a "severe," if "brief," intrusion on privacy. Moreover, if there is no "reasonable expectation of privacy" in the information sought, no Fourth Amendment protection exists. The case law suggests that information voluntarily exposed to the public does not receive protection (as in Greenwood, the trash-search case, and Mara, the handwriting case). Certainly one's name is repeatedly and commonly exposed to the public.

The Fifth Amendment case holdings are hardly more promising. Hiibel must show that supplying his name is both testimonial and incriminating, against a backdrop in which providing fingerprints, "voice exemplars" (i.e. repeating the words used in a robbery), and signed consent forms have been held to be non-testimonial. In Byers, the Court held that leaving your name for civil justice purposes at the scene of an auto accident was non-testimonial. Likewise, the Court has held that providing administrative information, including one's name, in the "booking context" is not incriminating.

After a few minutes of brutal questioning by the mooting judges, many in attendance were probably wondering "why this case?" Mr. Hiibel did not appear engaged in any activity for which anonymity seemed advisable. The parties have stipulated that the case arose in a "reasonable suspicion" context, and that the police lacked "probable cause" to arrest Mr. Hiibel -- but taken together, the facts suggest a level of suspicion well above the minimal levels of the stop in Terry -- perhaps even approaching the level of probable cause. Finally, this is a case in which the inquiry about names is fundamentally related to the "investigatory" purpose of the Terry stop. The officer had a tip that the driver had struck the passenger -- given specific, family-based abuse crimes, the police officer's investigation would seem to naturally focus on the question of whether the parties were related.

The amici are undoubtedly worried about the "next case" -- if the government can compel disclosure of your name or your identification in this situation, can it do so in all situations, particularly in electronic encounters. And can it use the collection of your name to build a "Big Brother"-esque portrait of your activities, as opponents of the Pentagon's "Total Information Awareness" program feared.

The existence of the video documenting the stop is another likely factor that this case has been promoted, although it's not clear which way it cuts. It's doubtful that the Court will have much sympathy for Mr. Hiibel's belligerent behavior, although the level of force used to subdue Mr. Hiibel's daughter (a question wholly unrelated to the case) may raise eyebrows. Another attraction of Mr. Hiibel's arrest is that the police officer did not search him for weapons during the stop, which may cast doubt on the claim that the officer needed his name for safety purposes. On the other hand, the petitioners are challenging the statute, not just its application, and the Court may be reluctant to take away police officers' discretion to decide that sometimes, requiring a name or identification will make them safer.

The moot court did showcase several interesting arguments. Prof. Sam Bagenstos explored whether cert may have been improvidently granted -- the Nevada statute requires that the suspect be given the choice of producing identification or giving his name, but the officer repeatedly requested identification, rather than saying "Sir, can I simply have your name, then." If the Court decides that it doesn't like any of the options for deciding this case, that would be a convenient way to make it go away.

Prof. Frederick Schauer suggested an interesting inverse-Kyllo argument. One concern raised by Kyllo is whether the adoption and acceptance of new technology inevitably erodes the "reasonable expectation of privacy." Schauer noted that perhaps people's expectations of privacy in their names are rising because of technology, because of increased awareness of identity theft and the sensitivity of things like medical records.

The debate over whether compelled disclosure of one's name actually would make officers safer is an interesting one, considered at length in the amicus brief of the National Association of Police Organizations. Although Prof. Michael Meltsner hammered away skeptically, the petitioners made a good case that Al Capone is probably not going to truthfully identify himself, perhaps creating a false sense of security for officers.

Prof. Bagenstos suggested that Hiibel has only one sure vote on the Court. Assuming that this is true, it doesn't seem that they have enough law on their side to win this case. But where they do have a chance is that this question highlights weak spots in the existing 4th Amendment, 5th Amendment, and 1st Amendment framework.

The results, if this law is constitutional and other jurisprudence is correct, are surprising. Anyone who is acting innocently, is approached by a police officer, and thinks they have the "right to remain silent" can be arrested. It will then be up to them, as defendants, to prove that the officer did not have reasonable suspicion. This task is particularly tough because nothing compels an officer to answer any questions the citizen poses in trying to decide whether or not to lawfully give his or her name. This is a remarkable shifting of the burden to defendants. Practically, the likely outcome would enable police officers to learn anyone's name at any time without reasonable suspicion, because few people would risk arrest in this way.

Moreover, since many protected First Amendment activities give rise to reasonable suspicion (e.g. clustering on a street corner, and walking back and forth in front of stores to see how many customers are inside, to decide when to begin a protest), this law could be used deliberately or inadvertently to remove the otherwise-protected anonymity of speech.

This is a tough one. The dicta cited by Hiibel and the civil libertarian amici highlights that the Court has not been unaware of the value of anonymity. But its jurisprudence certainly isn't geared towards protecting it. Will this case be a building-block in creating some form of anonymity exception? Maybe, but given its parameters, don't hold your breath.

The Electronic Privacy and Information Center has the briefs and other information for Hiibel v. Nevada here.

Cell Phone Etiquette-- Where Have Ye Gone?: Technology is changing the world and nowhere is the more evident than my local library, which has been overrun by [telephone rings] mobile telephones. As I sit in the (supposedly quiet) reading room, the constant stream of ringtones I hear reminds me how much social conventions have changed over the past five years.

I purchased [phone rings] my first cell phone in the fall of 1999. I bought it because it allowed me 500 minutes a month to call anywhere in the US and I had a long-distance girlfriend. At the time, I was a student at Duke and I remember being one of only a handful of students that had a cell phone. I would often get strange looks from people when I was talking on it, with people's eyes implying, "Wow, he thinks he is important." On one occasion, [phone rings] my phone rang on the bus [phone rings] and forty sets of eyes riveted on me as if I had just let out a tremendous belch. If my phone had ever rang in the library, I am quite certain that campus security would have had me escorted from the building. After all, how inconsiderate could us snobby rich people with cell phones get?

Fast-forward five years. Mobile telephones have become as vital an accessory as a watch or a wallet. For my few friends without phones, the question is, "Are you serious? How am I supposed to reach you?" People talk [phone rings -- ooh, that's a cool ringtone] freely everywhere -- on the street, in restaurants, in stores, in the car -- everywhere you go, there are cell phones. I recently visited Duke and saw the incredible difference. Half of the bus passengers were having conversations -- not with the people next to them, but on the phone. In the library, phone ringing was incessant, but no one batted an eye as Beethoven's Fifth or the Smurfs theme song alerted someone of an incoming call. [phone rings]

This is not a diatribe against cell phone use -- I love my phone [phone rings] and take it with me everywhere. But do all realms of politeness and respect for others have to be sacrificed in the name of technology? As I have written this, I have heard seven phones ring, had three people walk past me having conversations (in hushed, but noticeable, tones) and even had a person at the same table answer her phone and proceed to talk at the table. Have we sunk that low when it comes to mutual self-respect? Are the calls that important? If you want to talk outside, that's your business. In a restaurant? I don't like it, but it is no different than having a conversation with someone sitting next to you. But this is a library--have we no decency?

More on "judicial arrogance": Apropos to Professor Richard Parker's comments, cited by Greg, about judicial arrogance, Justice O'Connor has criticized the release of the late Justice Blackmun's personal papers: "I think it's unfortunate if the papers of a member of the court are released while people are still serving on the court with whom the deceased justice has served." Of course she doesn't like it. How can the nine men and women of the Supreme Court reign above all Americans if the people were to realize that they are human and lack a divine connection to the fount of constitutional authority. Sorry, Justice O'Connor. Princesses and presidents have had to expose their shortcomings to the public eye -- it's hard to feel sorry for you.

Volokh v. Soskin on Brilmayer: Eugene Volokh (my not-yet-former professor) and I often differ on which arguments we find most relevant. It's true again today (well, yesterday) in the context of Lea Brilmayer's WSJ op-ed on the Full Faith and Credit Clause and the Federal Marriage Amendment. Brilmayer makes this argument:
Longstanding precedent from around the country holds that a state need not recognize a marriage entered into in another state with different marriage laws if those laws are contrary to strongly held local public policy.
Professor Volokh correctly points to Lawrence as evidence that the Supreme Court doesn't find itself constrained by long-standing precedent when it doesn't like the effects of that precedent, and argues that judges and the public may want these precedents overturned.

I think it's equally apparent, however, that when one's argument cites anti-miscegenation laws, the burden is naturally going to shift anyway. Given the pride we take in our great legal achievements granting equality on the basis of race (including Loving, it's just hard to imagine a court giving significant continuing weight to a "public policy doctrine" whose motivation is rendered suspect by its racist underpinnings.

Admittedly, Brilmayer can point to incestuous and polygamous marriages as other examples (I believe there is even Supreme Court language suggesting this is an exception to interstate marriage recognition -- perhaps in Loughran?). But in those cases, you just don't have anything like Romer and Lawrence suggesting that the state interest is illegitimate. It seems likely to me that any Full Faith and Credit analysis will now simply analogize to miscegenation, and say that any precedent that suggests states can refuse to recognize marriages on the basis of a suspect public policy purpose, no matter how strong, died with the end of state-sponsored racism.

Tuesday, March 09, 2004
On "Record" Gas Prices: Gregg Easterbrook has a very interesting read on the much maligned "record high" gas prices. In turns out that once you figure in inflation, gas prices now are not so bad. It is a good example of how you don't always know if you are getting the whole story.

When reporters make the news: I hope if the Democrats nominate Tom Brokaw for vice-president, we'll at least have an honest debate about the role of media in politics.

We missed out on one in the context of Gen. Wesley Clark's presidential campaign. Gen. Clark pretended to be an "impartial" commentator for CNN during the Iraq war, even as he likely was planning his presidential run. Certainly, the "Draft Clark" movement was already in full swing. As a news anchor, Mr. Brokaw's control over the tenor of news coverage of President Bush is much more significant than Gen. Clark's. Surely he can't be unaware that his name is being bandied about for VP, and if he's interested, it seems laughable to imagine that he can remain "even-handed."

OK, so that's laughable to anyone who's watched him in the last decade. But the fact remains that Mr. Brokaw's potential candidacy is another indication that Big Media, while constantly trying to deny its partisanship, edges closer and closer to overt identification with one party or the other.

Kerry: No View in Space. Jim McDade discusses Kerry's "general attitude" towards space exploration, concluding that:
He apparently views NASA as a useful grant-generating machine.
McDade suggests that over time, there are a number of details that Sen. Kerry will need to fill in to satisfy space advocates.

Does anyone want to bet that Kerry will answer them in a contradictory way?

As commentary, I'm not surprised that he appears to view NASA as a welfare program for academic researchers. NASA has certainly functioned as one, in conjunction with its role as welfare to aerospace contractors. And Sen. Kerry has generally failed to impress me, in any area, with a sense that he has a "vision" of government or of America. If one reason that he often exhibits contradictory positions is that he is constantly maneuvering for political advantage, an equally-important reason is that there is no "high-priority" idea in his mind that must take precedence over politics.

My conclusion is that anyone interested in space policy should take whatever positions Kerry ultimately adopts with a huge grain of salt, because space policy today is entirely about vision. Whether you envision scientific discovery, "swashbuckling exploration" (thanks to Neil Farbman for putting this phrase in my mind with his forthcoming note on space policy), private commercial activity, or international cooperation, this is an area that requires examining something more than "what constituencies does it help?" There just aren't very many votes to be won in space, even counting those of academic researchers; and it's not a very efficient way to channel money to universities, anyway.

Monday, March 08, 2004
More on Comics: I'm returning from my lengthy trip to San Francisco and D.C. with a light post. I see that Greg has been thinking about comics, but apparently he no longer reads them.

For his benefit, and yours, I recommend adding a daily dose of comics to your web-surfing or blogging diet. My preferred source is the Houston Chronicle's Build your own Comics page, but you may prefer a better source.

If you'd like to laugh along with me, here's my page of favorites, including the wonderful Tank McNamara.

About two years ago, the Washington Post decided that Tank no longer attracted sufficient readership, and briefly axed it when it brought in Stephan Pastis' often-insipid Pearls Before Swine. I don't recommend PBS, but many people swear by it. Anyway, Tank is back there now, and as Sports Law Blog-master, Greg, you should definitely be reading it.

I disagree with Watterson and with Greg on the question of whether commercialization tarnishes the messages of comic strips that intend to have more depth:
Believable characters are hard to develop and easy to destroy. When a cartoonist licenses his characters, his voice is co-opted by the business concerns of toy makers, television producers, and advertisers. The cartoonist's job is no longer to be an original thinker; his job is to keep his characters profitable. The characters become "celebrities", endorsing companies and products...
But what makes comic strip characters different from actors in this standpoint? We accept that Kelsey Grammer can endorse McDonald's and Candice Bergen can endorse Sprint, and that's just another role for them. Admittedly, we don't ordinarily think about comics as having an actor and a role component, except when we watch films like Who Framed Roger Rabbit? or Looney Tunes: Back in Action. But I think people make the same distinction in their mind: when they see Charlie Brown in an advertisement for Met Life, that doesn't take away the impact of Lucy pulling away the football.

On the other hand, the actors who come to mind when we think about endorsement deals, like Bergen and Jason Alexander, are often comedic actors. Does this mean that actors who deal with more serious material are more likely to be tarnished? But comedy often does deal with serious material in a light-hearted way, and certainly most serious comic strips fall into this category.

In the end, the reason that I disagree with Watterson is that the commercialization of comic characters in television shows, stuffed animals, piggy banks, and other venues makes them accessible and familiar to more people. And it invites deeper exploration. It is similar to how summery Shakespeare in the Park performances (or references on the Simpsons) entices people into deeper exploration of the art and meaning within them. I never would have followed "Bloom County" if it wasn't for the stuffed Opus I acquired somewhere in my childhood. But I'm glad I did.

And I'm even more glad that Berkeley Breathed is giving us one more encore with Opus, which is not officially available online, but has been archived by private fans.

Check out Opus' escape from Antarctica, if you missed it.

Brokaw for VP?: The Wall Street Journal has a suggestion for John Kerry's running mate: Tom Brokaw, who is planning his retirement from NBC. According to the Journal, the idea of Brokaw on the ticket worries some prominent Republicans, although many believe Kerry will go with a safer choice such as Dick Gephardt or Bob Graham. Of course, the evidence indicates that the Vice Presidential nominee rarely makes a significant difference in the Presidential race. But one can't help but wonder what would have happened if Gore had chosen Bob Graham (from Florida) in 2000.

Sunday, March 07, 2004
Gay Marriage and Judicial Activism: The decision by the Massachusetts Supreme Judicial Court on gay marriage has further sparked the debate over judicial activism. Dave Denison of the Boston Globe has an insightful article that features both sides of the debate over the role of courts in shaping the law. After highlighting the opinions of scholars such as Randy Barnett, Laurence Tribe and Cass Sunstein, Davison concludes:

    There's little doubt that the SJC read new meaning into the language of Article 1, as courts have been doing, rightly and wrongly, throughout American history. Whether they have shown admirable activism or unjustified activism is hotly disputed now. But only history can hand down the definitive judgment.

In the end, I feel that the decision of the Supreme Judicial Court will be viewed favorably by history. Same-sex marriage, though viewed skeptically by large segments of the population, will one day be overwhelmingly accepted by the general public, following much the same path as interracial marriage. However, this does not mean that I support the SJC's decision. The fact remains that there is a right way and a wrong way to build a consensus for a position and the judges on the SJC are pursuing the wrong course.

What differentiates the SJC's decision from cases such as Loving (interracial marriage), Brown and Roe is the overwhelming popular sentiment against the decision. Prior to Loving, the great majority of states has already repealed their miscegenation statutes and the case was not even viewed with much controversy. While Brown did meet with opposition, especially in the South, many schools in northern states had already integrated, or begun the process of integration, as had a number of universities and graduate schools. In the case of gay marriage, however, thirty-eight states have passed 'Defense of Marriage' laws and a federal law allows states not to recognize marriages between members of the same gender. Even the Democratic Presidential nominee cannot come out fully in favor of gay marriage for fear of alienating large sectors of his own supporters.

Despite this fact, the majority of the Massachusetts high court ruled not only that same-sex couples must be given the same benefits as heterosexual couples, but that nothing short of calling the union "marriage" would suffice. As Professor Richard Parker of Harvard Law has stated, this goes beyond judicial activism to "judicial arrogance." Should judges strike down laws in violation of the Constitution? Yes. But, if Ronald Dworkin is correct, and the Constitution must adapt to the changing times, then the judges should read the signs of the times before imposing their will. Only by doing this will the people continue to respect the courts. And only by doing this will decisions that are viewed as correct in the future not cause drastic overreactions in the present.