Witzlaw's News and Comment

Memorandum on Civility in Personal and Public Discourse

2011-12-13T23:13:00.001-06:00

To be frank about it, the biggest worry I have isn't the deficit in the U.S. or the debt crisis in Europe. It isn't about immigration, whether legal or otherwise. It's not about the continued instability in the middle east, or regarding the oil supply. Now, don't get me wrong: These are all extremely serious issues, every one of them. I can think of still others that are potentially very grievous, such as international terrorism, or whether Iran or North Korea are about to go nuclear. In all these things and still others, there are many people who are in harm's way on a daily, even continuous basis.

But you know what often worries me still more, what causes me to sometimes flip the channel when I watch the news? It is that as a nation, we are less prone to seeking common ground when faced with challenges, and more prone to frank hostility and knee-jerk thinking. I am even concerned that the very fabric of our nation is beginning to unravel after this manner, to the point where we even take our Constitution and freedoms for granted, or worse, as a thing of naught. This is not to single out any group or political party for either ridicule or praise. The truth is, I've even fallen into knee-jerk thinking on occasion. But I strongly believe the time has come, and is arguably overdue, where we look ourselves in the mirror and resolve to do better in our interactions with others, beginning with our spouse, our children, our extended families and neighbors, and then, if we dare, in the political realm as well, even on the world stage.

For I believe you can find common ground whenever possible without compromising one's own values. I believe it is possible to be respectful and that doing so is not a sign of weakness. I believe it is possible to state a view, even forcefully, and yet not raise one's voice or talk over others. I believe it is possible to even do this when the other side isn't attempting to abide by these principles.

I hope and pray that from this point hence, I will go forward with the resolve to just a little bit better, and more after the pattern of our Creator, in all of my own interactions and dealings. And I will continue that prayer with respect to others until it covers the entire Earth. And that pretty much concludes what I have to say tonight. Ultimately, may God bless us all. --SJR

In re.: State Intervention for Obesity

2011-11-27T22:35:00.001-06:00

Source: CBS News (27 Nov 2011)

Synopsis: An eight year-old Ohio boy, allegedly weighing about 200 pounds, was placed into foster care based on allegations the parent(s) were not doing enough to control his obesity.

Comment: I have some very mixed feelings on this, in part because the news report is so incomplete. It is very difficult to imagine an 8 y/o reaching 200 pounds and there NOT be an underlying medical problem that goes above/beyond dieting, such as a metabolic disorder. Also, I believe reasonable minds, even among doctors, would disagree regarding the nature and extent of the medical intervention that will be needed under the circumstances. Ultimately, the state would have the burden of proof of showing that parental neglect had occurred, and in my view, it's going to require expert medical testimony, or at minimum, proof of some egregious acts on the part of the parent(s) that would directly cause the weight gain. --SJR

Sunday Memorandum: Gordon B. Hinckley on Avoiding Cynicism, Negatism

2011-11-14T00:01:00.000-06:00

Note: For whatever reason, this didn't publish when I posted it last July.

Sincere thanks to David Kenison for sharing the following. I'm just now reading this for the first time, and it is arguably even more relevant now than it was when it was first published in 1986.‎

"I am asking that we stop seeking out the storms and enjoy more fully the sunlight. I am suggesting that as we go through life we 'accentuate the positive.' I am asking that we look a little deeper for the good, that we still voices of insult and sarcasm, that we more generously compliment virtue and effort. I am not asking that all criticism be silenced. Growth comes of correction. Strength comes of repentance. Wise is the man who can acknowledge mistakes pointed out by others and change his course.

"What I am suggesting is that each of us turn from the negativism that so permeates our society and look for the remarkable good among those with whom we associate, that we speak of one another's virtues more than we speak of one another's faults, that optimism replace pessimism, that our faith exceed our fears. When I was a young man and was prone to speak critically, my father would say: 'Cynics do not contribute, skeptics do not create, doubters do not achieve.'"

- Gordon B. Hinckley, "The Continuing Pursuit of Truth," Ensign, April 1986, p. 2

Things are not what they used to be...

2011-07-05T00:39:00.000-05:00

...and sometimes, that's a good thing. Case in point:

YouTube - ‪Crash test: 1959 Chevy Bel Air‬‏

Public Prosecutor (Singapore) v. Nguyen Tuong Van

2011-06-17T21:38:00.002-05:00

Synopsis: In December of 2002, Nguyen Tuong Van, an Australian national is accused of smuggling a controlled substance on his person in a country that has the death penalty for such an offense. He was convicted, sentenced to death, and ultimately executed on 2 December 2005, just under three years later.

The transcript of the verdict is rather lengthy, and appears here http://bit.ly/iDM2nQ (via Foreign Prisoner Support Service). There are a lot of things that could be said about the case, but three things jump out at me.

1. The verdict was rendered by a judge, rather than by a jury, in a death penalty case. I think we take for granted the right we have to have a jury determine guilt or innocence, and the standard of proof that is needed to establish a conviction.

2. The right to an attorney does not happen immediately, if it even happens at all. My read of the transcript is that police began interrogating him straight away upon his arrest, and it does not appear he had opportunity to contact anyone.

3. The right to remain silent is far from universal; in fact, Singapore appears to take the opposite approach. Here's what their law says about the matter:

(6) Where any person is charged with an offence or officially informed that he may be prosecuted for it, he shall be served with a notice in writing, which shall be explained to him, to the following effect:

“You have been charged with/informed that you may be prosecuted for —

(set out the charge).

Do you wish to say anything in answer to the charge? If there is any fact on which you intend to rely in your defence in court, you are advised to mention it now. If you hold it back till you go to court, your evidence may be less likely to be believed and this may have a bad effect on your case in general. If you wish to mention any fact now, and you would like it written down, this will be done.”

(8) In subsection (6), “officially informed” means informed by a police officer or any other person charged with the duty of investigating offences or charging offenders.

In the U.S., we hear the Miranda warning so often on television programs, dating back to the 1960's, that I suspect most people have it memorized. In Singapore, on the other hand, you're informed that if you remain silent, your very silence is detrimental to your defense. Mind you, the person subjected to the "cautioned statement," as Singapore law calls it, does not have an attorney with him and cannot make an informed decision about what really would help his case. Even worse, the person in question is not even a citizen or national of Singapore--he was actually only connecting there--and would presumably be less familiar with their system of jurisprudence.

I think the message from all this is clear. First, while all is not perfect, and there are many elements of the American system that can be improved, we really don't realize how good we have things here. Second, when traveling internationally, we must remember that we are no longer in our home country. To the extent we ignore or don't understand the other country's laws or system of justice--or it's grave seriousness--we operate to our own peril. --SJR

YouTube - Raw Video: Courtroom Outburst

2011-01-17T18:14:00.004-06:00

Memo to Defendant: When making the initial appearance before a judge, be sure to keep it polite. At the very least, don't drop an "F bomb." Remember, the jail time you could receive for contempt for court may exceed what you'd have to serve on the original charge, especially if it had been a misdemeanor. (Video: WLKY-TV)

YouTube - Raw Video: Courtroom Outburst

CNN: Afghan faces death penalty for converting to Christianity

2010-11-21T09:26:00.001-06:00

For years, American forces have been putting their lives on the line, and are doing so even at this very moment . . . for this????

Afghan Christian faces trial for alleged conversion from Islam – CNN Belief Blog - CNN.com Blogs

This is madness. All I can say is I am thankful to live in a part of the world where one can practice after the manner of one's conscience freely. --SJR

From the Boston Globe: Unoriginal Thoughts

2010-11-08T18:30:00.001-06:00

This is an update to the copyright blog entry from the 7th. It begins: "A note to readers from the editor of Cooks Source: It was a dark and stormy night, four score and seven years ago . . . "

Famous last words - The Boston Globe

How Not to Respond to a Copyright Claim

2010-11-07T19:09:00.001-06:00

According to the ABA Journal [American Bar Association], "Writer Monica Gaudio protested when she saw the magazine Cooks Source had discovered her Internet article on the origins of apple pie and reprinted it without her permission, according to the Forbes blog Mixed Media and the Washington Post blog Faster Forward. Gaudio asked for an apology and a $130 donation to the Columbia School of Journalism for the purloined article, taken from a website on medieval recipes." The report goes on to say that the author received a disrespectful response, not only stating that she was not entitled to compensation because anything published on the internet is "public domain," but also stating that the author should be paying the publication itself for the edits it made.

The ABA Journal has more.
Original Blog Entry by the author
CNN also has more.

Caffeine Can Be Fatal

2010-11-06T16:12:00.002-05:00

I genuinely did not realize that it was possible to procure pure caffeine from the Internet or from other sources. Overseas, a young man passed away from caffeine toxicity following the ingestion of only 2 tsp. of caffeine powder, with an energy drink used as a chaser. The linked report states the man died shortly after ingestion. --SJR

Source: UK man dies of caffeine overdose - National caffeine | Examiner.com

High Drama in the World of Social Security Disability Appeals...

2010-10-14T23:14:00.007-05:00

...after an attorney gets into an altercation with an administrative law judge, rather literally, at the hearing office. The American Bar Association has more.

Response to Human Rights Campaign

2010-10-12T21:53:00.002-05:00

The Church of Jesus Christ of Latter-day Saints issued a statement today through a spokesman following the delivery of a petition by the Human Rights Campaign. The video appears immediately below my remarks. The text of the statement can be found here.

Comment: It is possible to agree to disagree on matters, particularly where it relates to core values and doctrine, without compromising them or our beliefs. At the same time, I submit that all of us, as children of our Heavenly Father, have the obligation and responsibility to treat each other with, at minimum, basic respect and courtesy. Indeed, the commandments go well beyond the aformentioned minimum (i.e., love thy neighbor as thyself). So I agree with all of this. There really isn't more that I can add. --SJR

Some Unexpected Name Recognition...Always a Good Thing? You Be the Judge.

2010-10-02T01:04:00.000-05:00

Meet Mark Zuckerberg, a bankruptcy attorney from Indiana. Somehow he got confused with a fellow by the name of Mark Zuckerberg, the founder of Facebook. The Wall Street Journal reported earlier tonight that Atty. Zuckerberg's office in Indianapolis now fields hundreds of calls from irate computer users seeking technical assistance the the social networking site, while others submit friend requests on his Facebook page. He has since put up his own website, iammarkzuckerberg.com, in which the attorney airs his side of the story.

Thankfully, I don't seem to share the same dilemma. Although my nickname does coincide with a horse illustrator from Connecticut. Should there be a sudden surge in demand for her artwork, my cellphone minutes might wind up getting used up in a hurry. --SJR

My Take on the Mosque at/near Ground Zero Controversy

2010-08-20T12:18:00.001-05:00

At the risk of stating the obvious, the events of 11 September 2001 has left a gaping wound in the national conscience that has never fully healed, even nearly a decade later. That there would be strong emotions are understandable--perhaps even expected--under the circumstances, especially among those who knew friends or loved ones who were in or near the towers, aboard the doomed aircraft, at the Pentagon, or were first responders at any of these locations.

But we must remember that not counting the terrorists, the people who perished that day, particularly at the WTC site, represented a number of different nationalities, backgrounds, and faiths, including, I would imagine, a number of innocent and peaceful Muslims who would have absolutely nothing to do with the Taliban or Al Quida, and who I think would be disgusted to learn that they were so associated in the course of the public debate of recent days.

Should there be diaglogue between the opposing groups in reference to the proposed center, with mutual respect as to each other's viewpoints? Absolutely. Should we oppose terrorists and terrorism? Without question. Should we care about finding a way to honor those who died? Of course. But at the end of the day, I submit to you that we dishonor those who died when we take our freedoms for granted. And I submit to you that we do precisely that when we presume that all Muslim adherents pledge their allegience to Al Queda or that all scholars of the Qu'ran would call for shedding innocent blood after the manner of 9/11. I'm reminded of the fact that in an earlier generation, it was followers of another faith who was on the receiving end of some fairly horrid accusations. Except these were followers of the Old Testament, or more accurately, the Torah. In still another period, followers of the Book of Mormon were literally driven from place to place, even under this very flag.

The bottom line is that we must not let our anger blind us to the point where we destroy, or seek to destroy, all that is sacred and important. And that includes the Constitution of the United States, up to and including the First Amendment, which, as an attorney, I have taken an oath to uphold and protect. --SJR

Facebook as a Law Enforcement Tool

2010-08-13T23:57:00.000-05:00

From a CNET report: "Evesham Township, N.J., recently started adding photos of people arrested for drunk driving to its Facebook page as a crime deterrent. Good or bad idea? Read this blog post by Caroline McCarthy on The Social."

The Facebook page itself is here. --SJR

Civil Procedure: Federal Rule 11 in Action

2010-08-07T23:52:00.001-05:00

What happens when counsel representing someone in Federal litigation fails to refrain from filing frivolous actions or motions?

In the case of one attorney, the result was a $20,000 fine: (ABA Journal)

Here's the order itself--
(PDF file)

The ABA Journal had more recently reported that the attorney lost the appeal and was now making multiple attempts at having the matter heard at the Supreme Court. --SJR

Sunday Memorandum in re.: The Diversity of Faiths

2010-05-16T02:01:00.003-05:00

This message was originally published on 4 April 2007, on another blog that I am about to remove.

* * *

Recently it has come to my attention that a purportedly Christian organization released a video seeking to discredit Latter-day Saints. Nothing new about that: It's happened before, and undoubtedly it will happen again.

I need not give the effort more prominence than necessary. I will say one thing, and one thing only, as a general proposition: If we change our religious affiliation or our personal beliefs solely on the basis of what someone states or claims, or solely because of logic or persuasion, we cannot be assured of reaching the truth, because many if not most faiths, denominations, and sects generally claim theirs to be correct, and all others in error. It is, quite frankly, impossible to be correct in the eyes of everyone. Not counting Latter-day Saints, some Christians will even accuse other Christians of error.

The critical point is this: God is able to speak for Himself, He is able to do so directly to us, and blessed be those who are able to follow His promptings, whether through scripture, personal revelation, or both. --SJR

Raw Video (Court Hearing: Exoneration)

2010-05-10T02:01:00.004-05:00

From ABC affiliate WEWS in Cleveland comes this hearing of a man, Raymond Towler, who was wrongfully convicted of rape in 1981. He was cleared of all charges as a result of DNA testing which showed that he did not commit the crime. The date of the hearing was 5 May 2010.

Sunday Memorandum in re.: Eternity

2010-05-09T02:01:00.003-05:00

Preface: This was originally published on 13 June 2006 on an unused blog that I'm about to remove. I felt it was worth saving.

* * *

The following scriptures came to my mind today, while discussing eternal life and related matters over email--
The original question that was put forth during the discussion was whether we could handle the blessings and responsibilities associated with the eternal worlds to come. Here are the conclusions I draw from the above scriptures and from others that I can't cite at the moment:

For my thoughts are not your thoughts, neither are your ways my ways, saith the LORD. For as the heavens are higher than the earth, so are my ways higher than your ways, and my thoughts than your thoughts. --Isa. 55:8-9 [OT]

For now we see through a glass darkly...now I know in part, but then shall I know even as also I am known. --1 Cor. 13:12

When I was a child, I spake as a child, I understood as a child, I thought as a child: but when I became a man, I put away childish things. --1 Cor. 13:11

1. The way we view Heaven and Eternity is unavoidably and severely distorted. Few of us have a terribly accurate view...even living prophets are only able to see a small portion of what God is able to see.

2. There are two ways to look at the phrase "...we are children of our Heavenly Father." The first is the one people usually think of, that is, we're literally His offspring. But we are also children in the sense that we are spiritually immature. We were less mature in the pre-existance than we are now...we hope in the post-mortal world we will be more mature. This is but one way that our view of Eternity is distorted.

3. Our perceptions are distorted in at least two other, critical ways. a) We live upon a fallen earth--one that has not yet been taken to a higher sphere. Likewise our own bodies, though in God's image, isn't in a higher sphere yet, either. b) Our own experiences will also to some extent shape our perceptions.

4. It follows that we cannot base our attitudes or decisions about Eternity based on what we perceive is going to happen. I sometimes hear protestants refer to the eternal world as a place where we sit around and play harps all day...a type of celesial waiting room where seemingly not a great deal happens, except we provide the music-on-hold for the rest of the Universe. That thought doesn't seem very palatable. But that's precisely what the adversary wants us to think.

5. For Satan uses the separation we have from God--which separation we know is for testing purposes and for our progression--to try to tell us either-- a) That Eternity after the highest manner is simply a load of nonsense (to put it mildly); b) Eternity is just like our present life's experiences, multiplied by the number of digits in Pi; c) We cannot handle the blessings or responsibilities of Eternity--not in this life, nor after the Resurrection, nor EVER; or d) We are not worthy to progress to such a level. At that point, we may think less about the Temple or about eternal families. Then we don't repent as we should, and so on.

6. Do I have a clue as to everything that will happen after this life ends? Not really, apart from what I know from the scriptures, and apart from reassurances I receive through the Spirit. In this, I am not alone...in fact, I am certain I share this lot with the bulk of the human race. But this much I can say. At the very least, I will know more about the transactions of this Earth than I do now. I will probably learn about all of the good and all of the evil that has ever happened at any point in history (without somehow becoming corrupted in spirit by the latter). I will learn that my thoughts on earth--including the ones I have this instant--were but those of a child in a very real and profound way. And most fundamentally, provided I remain true to the covenants I have made, I will be given tools there that I don't have now, and once I have those tools, a lot of the things that I don't understand now will make sense. And perhaps the most important of these tools would be a direct and unobstructed access to the Godhead, along with a corresponding transformation of our bodies.

Somehow, in that day, I am satisfied that we will know how to experience the blessings and responsibilities that we will encounter, even if it doesn't happen in an instant. We will be able to receive all of it as soon as we are able. The Lord will not bring his children to the threshold of Eternity, and bid us to drink of the fountain of everlasting waters, only to take aim at us with a fire hose. --SJR

All Right, Let's Try This Again...

2010-05-06T10:24:00.004-05:00

The question is: How often will I be blogging here going forward? Hopefully, the answer will be: More than 2-3 times every five years.

The fact is, however, things had been rather busy. First, there was the matter of finishing up law school. (Check.) Then there was passing the bar exam. (Check.) Meanwhile, it became necessary for me to end my original career somewhat earlier than I would have liked, an event that wasn't helped by the demise of the former Saturn division of General Motors. (Check.) Then I had my own practice for a time, and I can state from experience that working for yourself can be far more hectic than working for a third party. (Check. Check.) But presently, I have settled into the world of Social Security Disability law, in service to the American people. I say that rather literally, because this link reflects where I now work.

Still there are times when I want to speak out, especially on matters having a legal or political frame of reference. That's where this blog comes in. Of course, in the world of public discourse, there are several well known dangers of doing this, especially in an electronic forum. First, it must be assumed, as a general rule, that what I say here will be archived forever somewhere. As proof of that, I recently came across some postings I had done with a Usenet newsgroup dating clear back to 1991 as a result of a Google search. As further proof, there's always the "Wayback Machine" feature of archive.org. Second, there has to be a very solid distinction between one's work life and one's personal life. That there's some overlap between the two is unavoidable, but for instance, there must never even be the perception that I make known my views "on company time." Nor can there be the perception that I am any way speaking in any sort of official capacity, whether I fully agree with a policy or otherwise. Third, and most fundamentally, I expect some of my opinions to evolve or even change over time. This is not to say that I intend to compromise on anything that touches upon my core values, such as those relating to my beliefs regarding family, Deity, the purpose of life, or any similar or related subject. Stated differently, there are absolutes and I shall adhere to them. What I am saying, however, is that events happen, or as new information becomes available, I will want to "revise and extend my remarks."

Therefore, several overriding principles are in order that I think will be applicable to every posting in this forum.

First. Am I going to wave the American flag here? You bet I am, and I was doing that long before I even started law school. One of my absolutes, or rather, one my my core values, is in holding that the Founding Fathers were inspired by Providence to put into place the type of government that we now have, with the preservation of freedoms that have resulted from that, both here and elsewhere in the world.

Second. Do I speak for the government, at any level, in any official capacity? Absolutely not. As with any administration--indeed just like any citizen--I will agree with some policies but not with others. Or I may mostly agree with a policy, but question a particular element of it. If I do that, I speak for myself or for my family, as a private citizen, and for no one else, unless I expressly say otherwise (and I certainly don't expect I will be doing that as a matter of routine).

Third. It shouldn't be necessary to say this, but in the interest of ethics, if not common sense, it should be made plain that I shall make no statements, whether favorable or otherwise, on "company time," or, "on the taxpayer's dime."  Unless expressly stated otherwise, it is to be understood that everything on this blog is being composed on my own equipment, using communication services I personally pay for, on my own time, when I am not on official duty.

Fourth. While I will operate under certain absolutes, it is possible for an opinion on a particular subject to be modified or changed as additional information becomes available. There's a difference, you know, between changing one's views solely in the interest of political expediency, and doing so because you know it is right or to correct a misunderstanding or mistake. The intent is to be guided by the latter principle.

Fifth. The overriding objective is responsible, polite, and civil discourse. I may disagree on a subject. I may do so strongly and vehimently. I may even use some pretty awful words, like "condemn," "irresponsible," "miscreant," and et cetera. But I want what I say to be readable within a broad, general audience. A hypothetical eight-year old with the vocabulary of a lawyer ought to be able to read these remarks and not feel the need to blush.

Sixth. The other overriding objective is to sustain and uphold the Constitution and the rule of law.  The general principle is that if the viewpoint calls for terrorism, violence, anarchy, or the like, regardless of the underlying subject, I seek to condemn it.  To the greatest extent possible, and to stress an earlier point, there must be civil discourse, and where necessary, peaceful protest, in order to address the issues and concerns of our day.

And finally: Will things be this verbose going forward? Time will tell. I think the general advice with blogs is to be "short and sweet." That may be an ideal, but it is not an absolute. Where I can be concise, I will do so, but I will write no less than what I think is absolutely necessary to get the point across.

And with that, let the dialogue begin.  We'll start the expected frequency for blog entries at once weekly, and then see where we go from there.

Some Immigrants Denied Marriage Licenses

2007-07-14T00:01:00.000-05:00

From a AP-wire story posted earlier today via CBS News, datelined Nashville, Tennessee: Link to article

"A federal law that requires people to supply their Social Security number when applying for a marriage license has forced thousands of couples around the country, particularly illegal immigrants, to put their wedding plans on hold.

The law has been on the books for about a decade and was intended to make it easier to collect child support payments. But in some places it has prevented even legal immigrants and some American citizens from getting married."

Sure enough, here's Tennessee Code Annotated, sec. 36-3-104(a): "No county clerk nor deputy shall issue a license until the applicants make an application in writing, stating the names, ages, addresses, and social security numbers of both . . . parties." I'm cited to an attorney general opinion from 1998 (OAG 98-065) which may clarify the issue, but I can't get to it online.

One problem immediately arises as to the use of Social Security numbers, and it is this: Social Security numbers may not be immediately available for legitimate non-immigrant visa holders coming to the United States. For example, persons arriving on a K-1 visa (that's the fiancee visa) arrive expressly to be married to their U.S. citizen sponsors. They may not even be seeking employment (that's the usual reason for applying for a number in the first place). In fact, the Social Security Administration, on its website, states they will not issue numbers where the sole purpose is to obtain identification (for example, a driver's license) and not to procure employment.

But there's an even more serious issue. Marriage is a fundamental right under the U.S. Constitution. "The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. [...] Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival..." Zablocki v. Redhail, 434 U.S. 374 (1978) (citing Loving v. Virginia, 388 U.S. 1 (1967)). Being a fundamental right, if the Tennessee statute is being construed and enforced to prohibit marriages in the absence of a Social Security number, this is a matter that needs to be examined very, very closely. It's certainly something that I want to research more after the bar exam.

But for now, let me say this. It is not immediately clear that the enforced use of Social Security numbers in this instance was originally meant to uphold the immigration laws of the U.S. But even if it were, and ignoring for the moment the constitutionality issue, it is simply a poor policy choice. There are many ways to uphold and enforce immigration laws besides preventing people from entering into marriage. Let's therefore hope that saner minds in this matter will ultimately prevail. --SJR

At the Intersection of Immigration, Islam, and Intolerance

2007-01-06T01:36:00.000-06:00

Listen, I'm not a big fan of maintaining political correctness, but I still must wonder about the following--

FOXNews.com - Congressman Criticized for Muslim Letter - Politics See also: Actual Letter (via thesmokinggun.com).

Two points: First. The letter demonstrates an extraordinarily poor way of discussing immigration policy. For it is legitimate to ask whether an intending immigrant will subscribe to the collective and enduring values of the United States. I would also suppose it may even be legitimate to ask whether the United States has the resources to handle an increased immigration population--legal or otherwise--or whether there are economic or social impacts to be concerned about. But to suggest, as Rep. Goode (R-VA) does, that only persons who subscribe to Christianity or Judaism can be entrusted to sustain American values or uphold the Constitution seems not only to cross the line, but does so by an astonishing margin.

Second. Significant opposition has been raised, by commentators purporting to be conservative, regarding the use of the Islamic scriptures in an oath ceremony. Let me say this: While I cannot subscribe to Islam, and I consider myself to be very conservative as a Christian, the fact remains that it is holy scripture as to this faith. Our country stands, among the most important of things, for freedom of religion and thought. All members of Congress, all members of the Executive Branch, and all members of the Judiciary each swear to uphold the Constitution. In view of these facts, frankly, I don't see the issue here.

Seeing that this post appears immediately above the one from last August, I must make one other comment, lest this post be viewed as a contradiction. To the extent that one upholds terror in the name of religion--that absolutely needs to be addressed. But that issue is not confined to any specific faith, let alone Islam: One only look to the likes of Timothy McVeigh or Eric Rudolph and know that there are other relevant examples. Moreover, it is entirely separate from the question of whether one is free to practice the religion of his or her own choice, to the extent that such a choice does not abridge the rights or freedoms of others.

Analysis of Religious Rhetoric Requires Balance

2006-08-22T13:28:00.000-05:00

"JURIST Contributing Editor Ali Khan of Washburn University School of Law says that politicians' increasing use of abusive language to describe Islam in the context of the war on terror is symptomatic of multiple problems in Anglo-American democracy and culture."

Fighting Words: The Abuse of Islam in Political Rhetoric

RESPONSE: I agree with Mr. Khan to the limited extent that we should be cautious in rhetoric that paints entire religious belief systems with a broad brush. But I would submit such an agreement, in turn, needs to be broad enough to cover not only statements attributed to Western countries or officials, but also antisemitic or anti-Christian remarks attributed to predominantly Islamic countries, Iran being the most notable example. An analysis that criticises one but ignores the other is suspect in my mind.

I would also respectfully ask Mr. Khan to consider that much of the terrorism that has come to pass, both prior to and since 2001, have been ostensibly been done to support or maintain the faith, to please deity, or both. The term "jihad" comes to mind in this regard. The religious decrees issued by the likes of Osama Bin-Laden also come to mind. Even if we assume that the term "Islamic fascism" is inappropriate to describe such acts or behaviour, how does one avoid the fact that religion is unavoidably intertwined therein?

State v. Stephenson

2006-06-30T14:19:00.000-05:00

Link to opinion (Tennessee Supreme Court). The remarkable thing about this capital murder case is this: Defendant was tried and convicted of the charges in 1990 (he hired for someone to murder his estranged wife). At the initial sentencing hearing, the death sentence was imposed. During the initial set of appeals, the sentence was reversed. On remand, the State opted not to seek the death penalty and the defendant was re-sentenced to life in prison without parole. In 1998, defendant fights this sentence as well in a habeas action on the grounds that it was void. The Supreme Court agrees. On remand, the state again sought the death penalty. The re-sentencing jury agreed, so the original sentence was re-imposed. In this month's ruling, the Supreme Court affirmed.

Moral of the story: If you're a capital murder defendant who managed to get a death sentence reduced to life, be careful about what you ask for. You might very well get it, along with some extremely unpleasant surprises. Such as re-opening the door to the death penalty.

In re Death Penalty (Tennesseean Editorial)

2006-06-29T15:00:00.000-05:00

Here's a link to an editorial that was in the Tennessean on 29 June 2006. In this editorial, the commentator goes on to note how attitudes towards the death penalty and the method of execution has shifted over time. I submit that this observation misses the point.

It is understood that such a shift within our world has transpired. Nevertheless, there are certain crimes that throughout history have universally shocked society's conscience. These crimes are so inherently intolerable that a person of sound mind who commits them should forfeit his right even to subsist in a penal institution. This is so because the crime is not just against the victim or even his or her immediate family. For the same act irreparably and forever damages the very fabric of our society. Premeditated murder easily qualifies as just such an offense.

The writer also suggested that the death penalty is not valid because crime continues. That also misses the point. The question is not wither a certain penalty fully eliminates crimes, because sadly, crime will always be with us. The question is whether a purportedly civilized society is willing to uphold the life of a known murderer, even though that person clearly does not value the life of others. I personally question our level of civilization to the extent we do that.

The above is not to suggest that we must rush to the death chamber or that it is wrong to have years of appeals in a given case. I have no quarrel with the precautions and safeguards that need to be part of the appellate process. My point is that the death penalty must be fair and just...but it must be also certain as to those who are most deserving of it.

A civilized society deserves nothing less.

Tongue in Cheek: Diets and Establishing the Burden of Proof

2005-08-10T14:45:00.000-05:00

Abstract: You know you're too deep into law school when you begin thinking about your diet in legalistic terms.

* * *

When you undertake a diet, it is very likely that a significant other (including--but not limited to--a close friend, wife, or domestic partner) (hereinafter “S.O.”) will be involved in your efforts. Just as in a judicial setting, it is imperative to know the burden of proof or persuasion in a given matter, it is equally important to know what your burden of proof shall be in order to show to the S.O. or others, as trier(s) of fact, that you are truly in the process of accomplishing your goals. Hence, when you approach the S.O. on this issue, you may wish to consider the following guidelines as to each level of the evidentiary hierarchy:

• Probable Cause: You’ve been eating cheeseburgers and pizza all day, and chasing them down with regular Cokes. But someone managed to catch you one time in the middle of the night, sipping a SlimFast shake while watching a Jerry Springer episode. There is probable cause to support the contention that a diet has occurred and that you’re the one committing it.

• Preponderance of the Evidence: You concede under cross-examination that in the recent past, you’ve ingested a cup cake or two. And a bag of popcorn. And a double quarter-pounder (super-sized). You’ve even been caught nibbling off of the double-layered chocolate cake your S.O. was reserving for her nephews. (Well, all right, you’ve made the cake into the similitude of “PacMan,” but the evidence was circumstantial.) Still, if you’ve been drinking Diet Coke all day, have at least one good low-calorie meal, and follow it up with a few carrot sticks, you may be able to convince the fact-finder that more likely than not, you have been dieting.

• Clear and Convincing: Many of your meals are low-calorie. Your weight has been trending lower, although there are some up-ticks here and there. One time you’re caught inside of a McDonald’s, and when asked what you are doing there, you immediately corrected your order and asked for a Caesar salad. Your opponent can raise doubts over whether you are truly dieting; even so, the odds are largely in your favor.

• Beyond a Reasonable Doubt: You’re close to meeting your desired weight. Occasionally you’ll still have a french fry or two from your toddler’s Happy Meal. Your opponent may try to put forward a theory that you still eat mixed nuts in the middle of the night and fantasize about cheesecake dripping with wild cherry sauce, but you can respond that this is preposterous…and besides, you’re allergic to nuts. Counsel would be able to tell the jury with a straight face that you even look at the nutrition labels on bottled water to determine whether you are in keeping with your daily caloric intake. Under this burden, it would take a reasonable jury no more than a few hours to agree with you.

• Absolute Burden: You walk into the courtroom below the minimum weight recommended by the Surgeon General and scare the wits out of most of the jury simply by sitting at counsel’s table. At least three expert witnesses (all of whom are doctors who know the local standard of care for prescribing a diet regimen) all testify that you need to start increasing your calories immediately. One lay-witness testifies that you had already forgotten what a chocolate torte was, and when asked, you told him it was the conversion of cocoa plants in Brazil without the owner’s permission. Your opponent is too stunned to object to the hearsay and waives the point. Even the court takes judicial notice of your condition and offers you a ham sandwich (taxing it as costs against the other side). You’ve met the most stringent of burdens as to both production and persuasion.

With the above in mind, the following is a rough outline of the various burdens you will encounter when dealing with various individuals:

• Co-workers, distant relatives: You can generally get away with a probable cause standard, but the nosier of your associates may rise to the preponderance level, so some caution would be in order.

• Closer relatives, but not inside your immediate family (i.e., nephews, grandparents): You will be working inside a range that will fall largely under a preponderance standard. A few will rise to the clear and convincing level (for example, your uncle Ralph, who lifts weights in his spare time and looks to Jack LaLane as his childhood hero). Others will not care at all; your burden is diminished as to these individuals.

• Your S.O. and immediate family: You should presume a reasonable doubt standard unless the evidence begins to preponderate otherwise. For example, if your spouse one day makes you an pumpkin pie and adds a liberal amount of whipped cream, then henceforth you may be able to operate under a clear and convincing standard.

• Life insurance carriers, your personal physician, yourself: Beyond a reasonable doubt. A few insurance companies may even seek to impose an absolute burden. And of course, you have to live with yourself 24/7/365/etc., and there’s no getting away from that. (Not unless one has an out-of-body experience, but that’s well beyond the scope of this discussion, and will have to be saved for a later time.)

• Door-to-door salesmen, outright strangers, opposing counsel (as to other matters), the photographer at Wal-Mart: No burden whatsoever.

Appellate procedure. If you are assessed under the wrong standard, you could try to argue there was an abuse of discretion and that (s)he should try to re-examine your situation de novo without a presumption of correctness, but then, that person will look at you as if you were from another planet and wonder what in creation you are talking about. So perhaps it would be better to leave the matter alone and simply diet with increased zeal (so long as your efforts remain within reasonable or prescribed limits).

Conclusion. Factoring in the burden of proof when executing a diet and exercise plan may not cause you to lose additional pounds. But it may reduce the stress and friction you may receive while en route to your destination, which in turn will allow you to focus your attention towards weightier matters. Such as pondering whether a theft of $500 is a misdemeanor or a felony, or whether you should file a Rule 11 motion against opposing counsel because she gave you a very strange look during a summary judgment hearing.

Special Disclaimer. I did mention this was meant to be humor, right...?

Considerations in Selecting a Law School

2005-07-13T22:45:00.000-05:00

NOTE: The following item was originally posted at lawschooldiscussion.org, but I felt it was worth retaining here.

As many can attest, there is not a "one size fits all" approach that can be taken in choosing a law school. For most students, an American Bar Association ("ABA")-certified school is arguably the preferred route. Nonetheless, I would submit there are limited instances where the selection of a non-ABA (but state-certified) law school would be appropriate. The key is to make the decision--whatever it is--as objectively as possible and in full understanding of the consequences.Factors weighing into the decision would include (but is not limited to) the following--

Whether someone is entering law school directly from an undergraduate or bachelor's degree, or if there has been an intervening number of years of work experience;
Whether that person can afford to proceed to law school without outside employment (even after considering the availability of student loans and scholarships);
The availability of law schools within a reasonable driving distance of home and employment;
Whether the student would be willing to relocate solely for the purposes of entering into a law school;
Whether the law school's schedule will be compatible with outside employment; or in the alternative, whether a night school is available;
Whether the school is ABA accredited; or in the alternative, whether one would be able to accept the implications of going to a school that only has state accreditation (including certain jurisdictional limitations on where one can practice);
Family considerations (i.e., spouse, dependants, significant others, etc.);
The quality of the school(s) being considered, independent of the certification issue, including the track record of students that have have previously graduated from the school;
The student's prior accomplishments and legal aptitude (i.e., GPA and LSAT), including whether the student will be able to receive one or more scholarships at the desired school;
The cost of tuition for the schools being considered (or alternatively, the estimated amount of debt one will face after completion of studies); and,
One's reasons for going to law school in the first place, and to what extent these reasons are career-oriented.

Arguably, perhaps the last factor may be among the most important. If one's motive is specifically to join the top 5% of law firms anywhere in the country, or to work in a high profile position in federal or state government, the school one goes to becomes highly relevant. At the other extreme, there are those who study the law purely from the standpoint of personal interest or to supplement knowledge in one's current career. In such instances, the school becomes somewhat less relevant. Between these extremes are combinations of personal interest and career in various amounts, and these have to be balanced out carefully against the remaining factors as outlined above. --Sandy

Hello and Welcome

2005-07-13T00:01:00.000-05:00

On this date, Witzlaw's Commentary is open for business. If you are just joining us, you haven't missed very much. :-)

What I think I would want to do at some point is to publish a statement of some guiding principles, which in turn will hopefully place my subsequent remarks into context. But for right now, let me say at the very outset the following:

I will probably be more conservative than liberal, but beyond that, I'm not sure I would fit into a specific portion of the political spectrum. I'll consider myself independent for the time being, but this may be subject to change.
I will not seek to offend, but there will undoubtedly be some topics and some viewpoints that I will feel very passionate about. As to such items, I will seek to approach the subject matter tactfully and diplomatically, but at the same time zealously and perhaps even forcefully. That's not an easy balance, but it will be what I shall strive for. Obviously it will not be possible to be in agreement with everyone...such is life, especially in the world of everyday discourse. But even if one is in disagreement with a particular viewpoint, I believe that it is possible to handle differences in a way that respect is maintained and even cultivated.
Of course, all of the above sounds very idealistic. If it is so, it is because I am an idealist. I would like to talk more about how things ought to be, rather than how things actually are.
Finally, I will also note that my religious beliefs and my testimony are very important to me. It is the key building block on my life and is the foundation behind my growing family. Which is not to say that I intend to impose my religious beliefs upon others...in fact, I feel very strongly against such behavior. In a world of extremely divergent viewpoints, especially in matters of religion, it is important to recognize that our spiritual journey is a deeply personal one. In that context, the two most important things we can do are 1) Follow the spiritual compass that God has given to each of us, and 2) Stand firmly behind the things you know to be true, no matter what.

And that will do it for my first point. Stay tuned for some initial remarks about law school. And thank you for your time in looking through Witzlaw. I think it's going to be a very interesting journey indeed.

Cordially,
Sander J. "Sandy" Rabinowitz