The Oratorical Snob

Progressive Tax, Progressive Problems

2009-02-03T13:59:00.001-05:00

We are in the heart of budget season, and a particularly contentious one at that. This of course leads to the inevitable discussion about taxes. When times are rough, we should be focused on removing the portion of income that government takes from individuals. I don’t care who you ask; the $2730 per person ($819B/300M) the government is prepared to spend could be put to better use by the individuals from whom it is being taken. I, for example, could afford to buy my casebooks for this whole school year and pay a month of rent. People would put money into the industries that really need it: retail, banking, real estate, automobiles, etc.

But I digress. My post today isn’t about the financial wisdom of the bailout bill. It’s about our system of taxes.

I, of course, truly morally oppose income taxation. But for the sake of discussion, I won’t propose abolishing the income tax at all. I’m just going to propose a way to achieve our stated goals.

In my Income Tax class, we pointed out that there are three principles to which the tax code tries to adhere. Progressivity, or vertical equity is one (why they use the word “equity” for an inherent inequality is beyond me). The second is horizontal equity between individuals or married units. Third is neutrality between remaining single and getting married.

This discussion is based on the terms “marriage penalty” or “marriage bonus.” The idea here is that persons may have an economic incentive or disincentive to get married or work once married. The marriage penalty occurs when two individuals of roughly equal income get married. Individually, they would be in one income bracket (say 15%), so if they file independently, they would pay a total of 15% in taxes. However, their combined income pushes them into a higher tax bracket, perhaps 20%. Just for getting married, there is a 5% penalty.

Before we go on, yes, I realize I am simplifying this and not including a broad number of things, including progressive marginal tax rates and tax credits. I’ll come back to that momentarily.

As you can see, in our current system, we can achieve the first two principles, but fail on the third. We are not neutral between being single and being married. But at least we have achieved progressivity and horizontal equity.

Lawmakers often talk of “eliminating the marriage penalty”. The way they do this, as the Bush tax reforms attempted to do, is to adjust the width of brackets and play with tax credits and deductions. That may achieve near neutrality, but it screwed up the second principle. Now we treat married units who file individually different than married units who file jointly.

The truth is, there is no way to achieve both horizontal equity and neutrality between married persons and single persons. At least, not by staying in the tax system that we have had for the last hundred years. The more you try to create neutrality, the less equal you make the system. Like a balloon, you squeeze one and expand somewhere else.

My cynical nature says that politicians want it this way. First, they can all stump on removing the marriage penalty, thus sounding like people with good family values. But they don’t fix it wisely. They try to achieve their goals by adding other deductions and credits, further complicating the tax code. And as we all know, it’s so confusing right now that even the people writing the tax code (I’m talking to you, Barney Frank) and other politicians (you too Daschle, Killefer, and Geithner) can’t figure it out.

Of course, there is one way to simplify the tax code while still achieving equity and neutrality. Of course, it’s the one that few politicians actually talk about. Why not tinker with the first principle: progressivity? After all, whereas equity and neutrality should be goals of every good government, progressivity isn’t exactly something about which people revolt. “Darn you, George III, why won’t you tax rich people at higher rates than me?!?!”

Let’s assume that you have a flat tax of 10%. If people combine their incomes at marriage, they still will pay only 10%. If you decide to stay single, you still only pay 10%. If that couple over there pays 10%, this couple over here will pay 10% too. We have achieved equity and neutrality while sacrificing only this antiquated notion of progressive rate structures. 10% is 10%, no matter who you are or how much you earn. Even Tim Geithner could figure that one out.

Yes, there could still be tax credits that would have the effect of a progressive tax code. The EITC and Child Tax Credit could still exist. Poor people could still get perks in the tax code that just aren’t available to the wealthy. But at least we could say we are trying to be equal while still doing something about it.

Of course, such a system would require the government to spend less. I could talk about that for months. But I won’t. Government should have to spend less. But whether you agree with me on that point or not, I hope we can see eye-to-eye on a flat tax and eliminating the prejudicial, archaic, biased progressive tax system.

One of my friends once tried to defend the progressive tax system by using a logical fallacy. “Progressive means moving forward, achieving progress. You don’t want to be moving backwards do you?” Fallacy aside, the progressive tax doesn’t move us forward or achieve progress. It means that people are treated differently based on their income. Just because it’s the reverse of what most people think of as income discrimination doesn’t mean it’s any less invidious. Reverse-racism is just as bad as racism. We should focus on treating all Americans equally before the law.

After all, that’s what we were founded on.

Thanksgiving Thoughts

2008-11-26T00:46:00.003-05:00

It's probably clichéd to make a blog of all the things you're thankful for on Thanksgiving, so I won't do that. I think most of that stuff speaks for itself. I do want to wish everyone a happy Thanksgiving, and give best of luck to all of my law school comrades who have only a couple weeks left until finals.

As for me, I've been spending my time working in the IUSA Congress. It has been my passion, and as a result I've been in several hours of meeting for the past few weeks. Will this make it harder to study for finals? Yes, but I'm okay with that. In the coming weeks (okay, probably not until next semester starts) I'll be making a big announcement regarding my future in which folks at IU will have at least a modicum of interest. That will have to wait until after finals and Christmas Break.

Until then, have a happy Thanksgiving break.

Thoughts on Election Day 2008

2008-11-04T10:14:00.003-05:00

Well, I just got back from voting. No, I didn't vote because of the hundred and twelve pieces of junk left on my door by certain campaigns. I voted because I always have, and always will. I pride myself on doing the research on everything on the ballot. I pride myself on never voting for only one party. I pride myself on thinking about the public questions, and analyzing decisions by the judges up for retention. Yes, I love voting, because it's the reason my ancestors came to this wonderful country.

That said, I disagree fundamentally with the "duty to vote" that we keep hearing about. Voting is a right. Not a fundamental right, since it can be taken away. But nowhere is there a duty to vote. It is a disgusting campaign tactic to get people to mindlessly support the candidate of the day. They say, "If you don't vote, your voice won't be heard." That's right, but my mom always said you should think before you speak, and a lot of voters don't.

Today at my polling place, a woman came into the booth beside me and immediately asked for assistance. She asked the assistant if she could vote for just one party. Of course the assistant pointed out the straight ticket buttons, and reminded the woman that there were several other things on the ballot that weren't ticket items: judicial retention, public questions, and races that are non-partisan here in Monroe County. "No," the woman said, "I just want to vote for the democrats today."

This is what is wrong with American voting mentally today. It doesn't matter if she blindlessly supports Democrats, Republicans, Libertarians, or anyone else. The problem is that she isn't taking the time to think anything out. She's ignoring public questions. She's ignoring the judiciary. All she cares about is putting her party into office. That is stupid voting.

I propose that we eliminate the straight ticket buttons. If you want to vote for all one party, you can take the minute and a half to push their individual names. But at least then you'd have to go through the seven pages and answer the damn questions. See what it is you're voting for. Think for five seconds about whether assessments should be run through the township or the county.

My biggest problem with this woman and voters like her is that she ignored the public questions. She obviously supports "democracy," and yet she chose to ignore the one area where we are democratic. No, we vote in a republic in almost all ways. Our representatives makes the laws, not us. The closest thing to actual democracy we have in this country is public questions. We the people make the law. Incredible. But she doesn't care. No one does.

And that is the problem.

Election 2008: Texas Turns... Yellow?

2008-09-22T16:13:00.004-04:00

As some will know, I am a pretty big supporter of third-party rights in this country, believing that both of the two major parties are in need of some serious revision. So I was delighted to hear about a suit filed in Texas by Libertarian Party candidate Bob Barr, contesting the presence of John McCain and Barack Obama on the ballots in November.

According to the campaign's press release:

"The seriousness of this issue is self-evident," the lawsuit states. "The hubris of the major parties has risen to such a level that they do not believe that the election laws of the State of Texas apply to them."
Texas election code §192.031 requires that the “written certification” of the “party’s nominees” be delivered “before 5 p.m. of the 70th day before election day.” Because neither candidate had been nominated by the official filing deadline, the Barr campaign argues it was impossible for the candidates to file under state law.
"Supreme Court justices should recognize that their responsibility is to apply the law as passed by the Legislature, and the law is clear that the candidates cannot be certified on the ballot if their filings are late," says Drew Shirley, a local attorney for the Barr campaign, who is also a Libertarian candidate for the Texas Supreme Court.
A 2006 Texas Supreme Court decision ruled that state law "does not allow political parties or candidates to ignore statutory deadlines."

It's true that too often, the two major parties break election rules and allowed to get away with it because both parties violated them. Essentially, why would McCain complain about Obama breaking a law, when he knows that Obama will do the same thing right back to him? This is an example of why multiple parties keep the election process [more] honest. Smaller parties are forced to know the election laws forwards and backwards, because they have to follow every letter to survive the attacks the major parties put on them (see, for example, the removal of Barr from the West Virginia and Connecticut ballots).

Other states have kicked Barr and others off the ballot because they did not meet filing deadlines. If it's fair to remove candidates for failing to meet deadlines when they represent minor parties, then turnabout should be fair play. If I were a resident of Texas (or any other state that placed their deadline earlier than August 27, the day the Democrats officially declared Obama their candidate), I would be tremendously offended that the major parties thought they were more important than my state's laws.

Of course the point of deadlines so early is to make certification for minor parties extremely difficult. But if the major parties are too cocky to read the rules of every state, then the Secretaries of State for the various states should boot the punks off their ballot and let parties that know how to read appear on the ballot.

Of course I'm not hopeful for the success of this lawsuit. The judges in Texas are elected on a partisan basis, so they owe a debt to their parties. And when it gets appealed up, the judges were all appointed by partisan elected officials, so they still owe a debt. Not quite fair, I know, but it would be nice if judges would simply read the law and apply it equally in all cases. Either they filed by August 26 or they didn't. Risk getting kicked off the bench to do the right thing.

But as we all know, "...some are more equal than others."

Public Understanding of Bankruptcy Law

2008-09-22T15:48:00.005-04:00

I'm deep into this semester, and my schedule is quite heavy. In addition to coursework in Constitutional Law, Criminal Procedure, Secured Transactions, Federal Criminal Law, and Evidence, I am in the depths of Moot Court (and that is all I'm allowed to say about Moot Court, apparently) as well as representing the student body as a member of the Indiana University Student Association. That would explain why I haven't blogged since I got back from the ABA Annual Meeting in New York (which, incidentally, was one of the most enjoyable law-related activities I have yet to participate in).

There is no doubt that the press sometimes picks up stories about the law and frames them in the context of "Judge is evil for enforcing law X". Sometimes I agree; the law in question is sometimes abhorrent and should be overturned on Constitutional grounds. Even better, here in Indiana, let a jury find that the law is something other than it seems to be. But other times, the press is making something sound horrible without considering anything in the world of the law.

Today the AP picked up a story about a bankruptcy court ordering a victim to pay back a thief. The story begins:

Mark Poveromo feels ripped off twice over. A judge ordered him to repay money he collected from a builder convicted of stealing from him — and told him to kick in the thief's attorney fees and court costs, too.
Some legal experts say the case, in which a criminal case in Connecticut intersects a bankruptcy judgment filed in St. Louis, shows a need for Congress to revise the nation's bankruptcy laws to better treat people who are awarded money as part of ruling in a criminal case.

Apparently, the builder stole a lot of money from Mr. Poveromo. Then, two months before being convicted, the thief declared bankruptcy because, well, he was bankrupt. The thief paid off a large portion of the stolen property. Then the bankruptcy judge took it back because, as we all know, Article 9 of the U.C.C. says unsecured creditors are on the bottom of the totem pole (nevermind that the reporter never mentions the law behind this judge's reasoning... just make the judge out to be a jerk).

Now, a few months ago I may have thought to myself that this is completely unfair; a miscarriage of justice! But I've taken a few weeks of Secured Transactions now, and, unlike the general populace, I won't fall for this reporter's trickery.

The story advocates altering the bankruptcy code to allow victims of crimes to essentially become secured creditors after their judgment. As the law exists now, as Mr. Poveromo puts it, "Crime does pay." Obviously, this would be a hard law to write. Why limit the law to protect only victims of crime? If your legislative intent is to protect victims, shouldn't every victorious plaintiff in a tort claim be granted this secured status? And what makes a victim more important than a commercial lender? After all, if a new class of secured parties suddenly appears, lenders will be less likely to grant loans (because they will be in a worse position), or at least will demand higher interest rates to compensate them for the additional risk.

Do I feel bad for victims who, unfortunately, don't get the protections of Article 9? Sure. They've been wronged, and they deserve restitution. But why should we put them above commercial lenders, or anyone that was wise enough to get a security agreement? Mr. Poveromo's lawyer should have done enough research to know that the thief had filed for bankruptcy.

Of course, my biggest complaint here is the reporter who covered this story. He should have at least put the judge's reasoning in the article instead of making judges out to be evil dictators taking money from victims to compensate thieves (or, as one law professor was quoted, making "outrageous decision[s]" and executing a "miscarriage of justice"). If the populace feels judges are acting improperly, the press is certainly responsible for leading them in that direction.

Come on, Allen County!

2008-07-19T13:31:00.003-04:00

What is going on in Allen County's courts?

This week we got news that a state panel cited Judge Kenneth R. Scheibenberger for official misconduct. Apparently, back in November, he put on his robe and walked into another judge's courtroom (misstep number one). Then he listened to an alleged drug dealer get sentenced by the other judge. He then threw a bit of a fit and started swearing the the family of the defendant (misstep number two). He claims that the drug dealer sold his son drugs that resulted in his son's death.

Well, today's News-Sentinel reports that the Circuit Court judge in Fort Wayne, Judge Thomas J. Felts, was operating his vehicle while drunk, and let it "coast backward" into a police cruiser in Indianapolis. He was pulled over near Monument Circle, and instead of putting the vehicle into park, he put it in reverse. This is his re-election year, but is running unopposed.

I have to wonder what the voters in Allen County think about all this. Fort Wayne is one of the busiest court systems in Indiana, and they really can't afford to lose their Circuit judge and one of their Superior judges.

Further, what were these judges thinking? Scheibenberger couldn't have thought anything good would come of going to this sentencing in his robe. In doing so he tarnished the reputation of judges everywhere. To swear up a storm while in your robe just looks bad all around.

I'm glad I work for a Judge this summer. I'm also glad it's not in Allen County, which has to be in chaos right now.

More on: The Real Reason for Number Two

2008-07-11T10:47:00.004-04:00

Kyle Michael at KMitB was kind enough to post a response to my previous post praising the Heller decision. Always in the mood for a good discussion, I want to respond to his response.

Michael writes:
You may have noticed that you don’t see many good militias these days; I suspect they’re hard to get together. Blair sticks to his guns (so to speak) here, maintaining that this is still a relevant purpose. That’s fine, if silly, but it fails to account for the use of guns for other purposes. Where does hunting fit in? Or, for that matter, why should you be allowed to use a gun to defend yourself against any threat other than an “oppressive government” or an invasion? The 2nd Amendment doesn’t mention anything about any of this; you’d think Scalia would have a problem with that.

I should first point out that I don't believe that the Second Amendment exists solely for the purpose of protection from an oppressive government. While that may be its most important purpose, there are certainly others - anything from self-defense to sport hunting. The language of the Amendment doesn't even mention invasion or self-defense.

Presumably, Michael is making the ill-fated grammar-based interpretation of the Second Amendment, that suggests that the preamble of the Amendment (i.e. "A well regulated militia, being necessary to the security of a Free state,") means that it applies only to organized militias and the security of the state. George Mason law professor Nelson Lund destroyed this position in his amicus brief in Heller. One need only examine other documents from the same time period to know that writing preambles was the fad, and that those preambles are not all-inclusive.

For example, one can look at Article 3 of the Northwest Ordinance ("Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged"). I doubt many people will argue that the only reason we encourage schools in this nation is because education makes for good government and happiness, or that religion, morality, and knowledge are their only purpose. Sure, those are pretty good reasons, but they are not the only reasons.

Michael continues:
Like Blair, Scalia combines the 2nd Amendment with a common law right to self defense. In doing so, and in endorsing the dipshit view that keeping handguns in the home for self-defense is a good idea, Scalia writes (and I swear I am not making this up): "[a handgun] can be pointed at a burglar with one hand while the other hand dials the police."

The Cato Institute's amicus brief in Heller discusses the English roots of the right to bear arms, which does cover the fact that the common law right to bear arms is derived from, and must be understood with, the common law right to self-defense. The English Bill of Rights of 1689 supports it, as does Blackstone and a variety of other English sources. Whether it is a "good idea" is a separate matter. Michael falls back on tired rhetoric to argue that kids will find the gun and do harm with it. Even if you take that position and do intelligent things, like putting the gun away and teaching kids about gun responsibilities from a young age, the point is irrelevant. The Second Amendment doesn't cover stupid parents; it covers a right that cannot be taken away from an individual.

I do, however, agree with Michael about one point. Justice Scalia's reliance on the notion that I will call the police while holding a gun is a poor choice in his opinion. I will shoot first with both hands (as you're taught to do in firing ranges), then call the police with both hands.

The Real Reason for Number Two

2008-06-27T15:01:00.004-04:00

The past few days have given the blogosphere much to talk about in regards to the Supreme Court, and in due time I plan to get to the ones I care about. The one that I care the most about, Heller, is the main focus of this post.

For the past 28 hours or so, I have seen plenty of status updates from friends who are upset by the ruling, wishing that it could have been decided after some of Obama's appointments were on the Court. Completely disregarding the chickens-hatching time quandry presented there, I can't help but ask my friends where they put their copy of the Bill of Rights. In case you lost it, the words "shall not be infringed" are still there.

One columnist in northern Indiana posed this question: "If our forefathers lived in 21st century America - with its ungodly crime and murder rates, its wealth of deadly weaponry, and its attempt to interpret a document written more than two centuries ago - would they be celebrating or castigating Thursday's landmark ruling?"

I'm fairly certain the answer to that question is an obvious "celebrate, but with hesitation". Yes, they would have been quite pleased with the outcome of the case. They would have been less pleased that an originalist believed that there are some acceptable firearm regulations.

Certainly the Second Amendment refers to a militia, like the National Guard in New York, or the entire population in Indiana. Taking weapons away from a militia would be counter-productive and wonderfully ironic. The concept of a universal (all free white men) militia can be traced back to at least 12th century England. But the more vital American interpretation of the right to bear arms became abundantly clear during the years preceding the American Revolution.

The British government couldn't help but notice those pesky colonists arming their militias while talking about how much they disliked the Crown. Parliament sought to disarm their militias, despite the Declaration of Rights and the common law right to self-defense. Conveniently, they had no problem with the right to self-defense (in fact, John Adams used the defense in the Boston Massacre trials), just with colonists possessing firearms.

It was those very firearms that allowed Americans to throw off the chains of British rule. The newly formed United States owed their freedom to their firearms. So they enshrined their right to firearms in their most important document, the Constitution.

This leads me to my main point, that the real reason for the Second Amendment was not solely to arm and regulate a militia. Yes, we wanted our citizens armed in case Britain, or Canada, or Mexico, or anyone else, tried to invade (indeed, this may have been the primary reason Congress passed the Second Amendment). But the reason the States ratified the Second Amendment was because they remembered the oppression of the last all-powerful government. Their firearms were the only thing that saved them.

Yes, the main reason to support the Second Amendment is because, if and when our government becomes too oppressive, our firearms will be the only thing stopping them from crushing us. When the firearms go, so too does the rest of the Bill of Rights. The Second Amendment is the one the ensures the rest.

Freedom to Spank your Brats

2008-06-12T11:10:00.003-04:00

On Tuesday, the Indiana Supreme Court ruled in Willis v. State that parents have the legal right to discipline their children physically, even if it leaves marks or bruises. In the case, the defendant was a mother of a son who had a history of lying and stealing. The boy stole some of his mother's clothes and gave them away at school. As a punishment, the mother struck him five to seven times with a belt. The school nurse saw the bruises, the son told the nurse from where they came, and the nurse called the police, who charged the mother with battery, a D felony.

Corporal punishment is sometimes acceptable. The Model Penal Code says so. The Second Restatement of Torts says so. Blackstone says so. Heck, the last four thousand years of human history says so.

It is a sad state of affairs that any time a parent tries to punish a child, the state thinks it should come to the child's aid. How long has this been going on? When did we become a nation of wimps? The sad truth is that American kids feel entitled to do whatever they want, and they have been too eager to complain to authorities when they get a spanking. Is it any wonder that, as the Fort Wayne Journal Gazette reports, Indiana is 6th in the nation for juveniles locked up? When parents don't punish appropriately, the law will eventually have to.

I don't mean to suggest that child abuse is acceptable. I have seen many CHINS cases this summer, and there are some parents that really are doing it wrong. And punishment that leads to permanent or severe injuries should be, and is still, illegal. But I am glad to see that Indiana is taking a step back in the proper direction of letting parents punish their children as they see fit.

In re Marriage Cases

2008-05-18T01:33:00.003-04:00

A friend asked me today what I thought about the result in the recent California Supreme Court decision overturning the same-sex marriage ban in that state.

I must admit that I'm somewhat torn. On one hand, I don't like courts stepping in to overturn the will of the electorate. Prop 22 passed, and that seems to suggest that at least half of Californians didn't want same-sex marriage recognized by the state. However, the legislature twice passed bills legalizing same-sex marriage that were vetoed by the governor (who, incidentally, said that if they wanted gay marriage, then they would have to take it to the state Supreme Court). So "the will of the people" here seems a bit cloudy.

On the other hand, as any long-time reader of this blog could tell you, I am a pretty big supporter of gay rights, and I do personally believe that if government recognizes marriage at all, it should do so for any type of couple (not that I believe that government should be in the business of recognizing marriages). To me, it seems like most arguments against same-sex marriage are based on religion, which makes me squeamish in government. In fact, very few counterarguments that I have heard when debating this topic end up relying on anything other than morality.

I don't feel like beating this to death right now, mostly because I have made my position very clear in the past, and because the rest of the blogosphere seems to be discussing it just fine without me. For a particularly interesting set of discussions, try looking at the Volokh Conspiracy's stream of posts. So, to answer my friend's question, I agree with the general outcome of the case (giving the right to marry to gays) but disagree with the method (in court, rather than democratically).

A Quick Catch-Up

2008-05-18T01:04:00.004-04:00

I recently realized that it has been a month since I last posted, and that makes me seem at the very least forgetful, and possibly even negligent in my duties as a blogger. However, I had to make it through a final LRW assignment, several difficult finals, a job search, planning next semester's courses, and a basic maintenance of sanity. In the end, blogging seemed like the least of my worries. I'll try to catch you all up to date with where I am with regard to these various tasks.

My final exams were certainly more difficult than those in the Fall, despite that I have done this process twice before. I think it was the subject matter rather than the procedure that made them more difficult. This semester I has coursework in Property and Constitutional Law rather than Torts and Ethics, in addition to substantially different material in LRW, Contracts, and Civil Procedure. I really enjoy the topics of Property and ConLaw, and I feel like I'm fairly knowledgeable in those arenas, but I tend to do what some consider foolish: I try to learn and understand the law rather than learn for the exam. This may harm my scores in the end, but at least I can feel like I know something, and can discuss it in ordinary conversation (when non-lawyers are willing to listen or make the mistake of asking me my opinion on something). In the end, I think the finals went well. Probably no A*s, but good nonetheless.

I did find and accept a job for this summer, though it is unpaying, which meant more loans. I will be working for a Circuit Court judge in southern Indiana. I think for the purposes of this blog my exact court and position will be confidential, but I expect to have interesting work to post about when I can find the time (the School requires these touchy-feely essays about what I'm doing, which will probably consume my spare time). The downside is that there is a considerable commute, and gas prices are hovering at $4. The upside is that I get to work inside one of the beautiful old courthouses of Indiana.

I have a full plate in the Fall. In addition to participating in Moot Court, I will be taking six courses for fifteen credit hours. Included in that reading-laden schedule are Federal Criminal Law, Criminal Procedure I, Constitutional Law II, Evidence, Secured Transactions, and Appellate Advocacy. I am used to taking exorbitant numbers of credit per semester, but not in law school. If I disappear completely in the Fall, you'll know why.

I spent this weekend in Louisville, Kentucky, for the 11th Annual National Firearms Law Seminar, hosted by the NRA Foundation. It was a worthwhile experience to learn about law from various professors and practitioners. Some of the topics included discussions about Heller, federal firearms laws, civil rights and guns, and an enjoyable keynote speech by Lt. Col. Oliver North about the Rules of Engagement. Afterwards, we spent some time at the Expo Center and I experienced my first NRA exhibition. We also drove over the Sherman Minton Bridge, mostly to get good luck in the Moot Court named after him at IU, as well as to celebrate the only Hoosier to ever sit on the Supreme Court.

This August I will be attending the ABA Annual Meeting in New York. Any of my readers that will also be in New York can feel free to drop me a line if they'd like to chat or go out. After this weekend, I think I can find interesting things to do just about anywhere.

IU Law Tuition... this better be worth it

2008-03-29T12:41:00.003-04:00

Well, it was bound to happen. We got an e-mail from the dean alerting us that tuition would be going up a bit this year, despite the $25 million gift that we recieved from Lilly. More money for professors, in turn leaving us with more money for scholarships. But scholarships for next year's class, not for me. So I don't care.

I hear that last year the tuition for out-of-staters (60% of our population) went up dramatically, and many were angry. Well, now it's my turn. My in-state tuition is going up 12%, while the out-of-staters get a mere 8.5%. Granted, my tuition is still only half as much as their tuition, but still. 12%! I want to work in government, and these student loans are soon going to make doing so rather difficult.

On the plus side, our dean basically guaranteed us that the tuition increase will be used to improve our rankings drastically in the next two years. I suppose that's good, since IU-Indy moved up twenty spots this year. And Notre Dame went up 6. If we don't move up soon then it'll start getting much harder to compete to get native Hoosier law students.

And yes, I'm aware that rankings are a thing to be shunned. Too bad lawyers don't think so.

Oral Argument: Great Fun, or the Greatest Fun?

2008-03-29T12:14:00.002-04:00

It's that time of the year in 1L land, where we get to do enjoyable things in LRW. Not that I didn't enjoy bluebooking and learning research methodology (insert sarcastic eye-roll), but I much prefer doing, you know, lawyerly things. Unlike some of my comrades, I quite enjoyed my experience with oral arguments. It was the first time we actually got to go head-to-head against our classmates and test our legal acumen, even if it was just for 10 minutes in a summary judgment hearing.

Apparently I wasn't the only one who thought I did a reasonable job at the podium. On my official notecard, I had six phrases, each beginning with the word "good" and none with any bad words. Which is good, because I didn't think I did well at all. Among my earned accolades was "good presence at the lectern" and "good analogy." The analogy in question was one that I thought up in the shower the night before. I think the RedBull I drank before the argument made it stick.

I do have this to say about the whole process: it sounds like it was better before. Last year, they brought in outside judges and we would have had to argue in front of a panel of learned scholars. We also would have had to write an appellate brief at some point. I don't know if we exhausted our judge rolodex, but arguing in front of our professor and opposing counsel doesn't have the same fear factor. I'm sure the LRW staff had something in mind. It just seems like the way things were was better than the way things are.

Two Tidbits from the News

2008-03-13T15:20:00.003-04:00

I know it's been a while since I posted, mostly because of Spring Break and a variety of other scheduling conflicts. But two tidbits from the news really caught my eye and I think that they are worth mentioning here.

Today's Indianapolis Star reports that Governor Daniels has used his first veto of this session, something he has done only seven times in office. I must say, he saved it for a good one. The bill: HEA 1210. The premise of the bill: allow a loophole for individuals who do not pass the teacher's licensing exam to still become teachers in Indiana. Easily one of the dumbest bills passed by the General Assembly this session.

Now, as anyone who has been reading this blog for a long time can tell you, I am no fan of public education. But if you're going to have public education, then it would best for your teachers to have some sort of standard. This bill would have allowed persons who fail the test to become teachers by showing that they had a good GPA in their education coursework and have good references from those under whom they student taught. If that's not lowering the standards, I don't know what is.

The bill was authored by Rep. Vernon Smith (D-Gary), who complained after the veto that the governor hadn't met with him to discuss the bill. I don't blame the governor. He has better things to do than argue about pointless bills. I can understand why Rep. Smith wants the bill: Gary schools are a dismal failure, and they can't get teachers to teach there. He probably thinks that lowering the standards of licensing will mean more teachers in Gary. Well, Mr. Smith, even if your plan worked, it wouldn't improve the education quality in Gary. You need qualified, talented, devoted teachers to come to Gary, not the people who couldn't pass the test. A better plan would be to pay teachers better.

In other news, a student at UVa-Wisa was expelled because of prose he composed in a creative writing class. His story involved a student who dreams of killing his professor and commits suicide. Okay, maybe I could see some threat here, but you need to consider the context. Nevermind that this is a creative writing class, and creativity doesn't always fit nicely into a pre-approved box. The student is an Iraqi war veteran with no history of mental illness and medals for good conduct. In fact, the school couldn't put together a case, except for the fact that the student had a few guns in his car. Okay, again, maybe I could see some threat here, but consider that he had a right to carry them, as he had permits for each of them. And he's a war veteran.

To make matters worse, the school involuntarily committed him for psychiatric testing, something that automatically revokes his ability to hold the gun permits. Well, that's one way to get around the law.

Eugene Volokh points out that "expulsion would still strike [him] an excessive remedy; nor would protecting the university from the possibility that he would turn into a Virginia-Tech-style mass killer justify this: If he really does plan to commit mass murder, he could do that as an expelled student pretty much as easily as an enrolled student (since the school doubtless doesn't have guards at each possible entrance to keep him off campus)."

I would love to use a case like this to get the issue of gun bans in schools brought before the Supreme Court. To me, it is ridiculous that a Constitutional right stops being a right when you cross an invisible barrier onto a campus. Only problem is that this case is not the one I'd bring up. Justice Scalia's son was the professor of that creative writing class. Scalia would have to take a breather on this case, which would leave us 4-4, which is unacceptable. On the plus side, such a lawsuit would encourage the legislators in Indianapolis to pass a bill allowing certain persons to carry firearms on campus.

The Petri Dish

2008-02-27T18:53:00.002-05:00

The Law School has become a petri dish. Dozens of students have been out sick (including this one). Classes have shrunk to half their size. Some professors have been calling in sick. I had forgotten how volatile biological systems can be when you pack 700 of us into one building during flu season.

To make matters worse, briefs are due for LRW tomorrow. From what I can tell, many people are struggling to keep working while the viruses keep working. As for me, I'm nearly done. But only with the help of a lot of tea.

"Oeniphile Rejoice" Part III

2008-02-22T18:16:00.004-05:00

Some of my luckier colleagues at IU Law today did not have their usual Constitutional Law class. That is because their professor, Mr. Patrick Baude, had oral aruments in Chicago before the Seventh Circuit regarding the Indiana wine shipping case, Baude v. Heath. I wrote about the decision before Judge Tinder back in November.

The 16 filed briefs are available here, while an MP3 of the oral argument itself can be heard here. From what I can tell, arguments went well... for the state. Judges Posner and Easterbrook did not seem to like what Professor Tanford included in his brief (chastising him like they were LRW professors). Nor did they like the way he argued, nor the way he listened. Hopefully the court finds for the oeniphiles so that we Hoosiers can be one step closer to having the freedom to buy what we want through the internet and the mail, but I'm not holding my breath for that holding.

I would think it would be beneficial for his class to read some of this stuff. Always good to hear someone you know arguing before a circuit court, even if it is a bit brutal.

TOS Reporting Live - IU Pres. McRobbie

2008-02-15T14:45:00.006-05:00

In an exciting first for the Oratorical Snob, I am reporting live from the IU Law Moot Court Room, where IU president Michael McRobbie will be holding a press conference regarding the Hoosier Hoops Scandal. Why they chose the law school's moot court room (which can hold a mere 200 or so) rather than anywhere else on campus is unclear. Rumor has it that the idea is to show the university as fair and interested in finding truth rather than supporting the scandalous aspects of the story.

The crowd is mostly reporters, whose trucks and satellite feeds block the street in front. I heard at least one unhappy local screaming from his car that he couldn't get through the street. That, or he was yelling at the school for firing Bob Knight. Inside, many of us may have agreed with that particular angry fellow.

Listening to the various reporters chattering, I have heard that some suppose that this is actually going to be the firing of Coach Sampson. I suspect that it is a bit premature to predict that. The NCAA has been known to get facts wrong in the past, and certainly there is the issue of intent. Either way, IU wrote a very good contract for Coach Sampson that permits them to fire him for just cause. Perhaps they learned their lesson from the litigation following the Bob Knight removal.

The president's posse has just entered the room and sat down in front, alerting us that we have five minutes until the press conference begins. I think that I qualify as press, since this is a live blog feed, right? Additionally, there is a live video stream that I will link to as soon as it is available.

The press conference begins:

President McRobbie won't take questions that involve speculation or hypothetical situations. Obviously he has never been in the law school before.

Athletic Director Greenspan will have seven days to investigate the allegations and determine their truth. Fairness and due process have been mentioned, outside of my ConLaw class. Perhaps he has been in the law school. The Indianapolis firm of Ice Miller and a Business Economics and Public Policy professor will assist him.

McRobbie has not spoken to Sampson since the allegations came out. There have been conversations about resignation, but not with McRobbie. An intern found the original data that lead to the allegations. Sampson's contract does not allow suspension with pay. The only mention of suspension in the document is "without pay". McRobbie does not have the entirety of the contract memorized, but he can quote parts of it fairly well.

After the press conference, I gave some interviews to the press (as one of only a few students in attendance - perhaps they chose the law school because it is so far away from everyone else on campus). If video of those interviews becomes available on the internet, I might link to it. Otherwise, this live report is finished.

2008 General Assembly Series: SB65 and Needless Tragedy

2008-02-15T00:02:00.002-05:00

Tragedy has befallen the nation yet again. Less than a year after the shootings at Virginia Tech, we have seen four school shootings in less than week. February 8, two students gunned down at Louisiana Tech. February 11, a high schooler shot another during gym class in Tennessee, and a junior high schooler in California is brain dead. Now, tonight, we get word that five people were killed at Northern Illinois University. This one hits particularly close to home, since I'm from northern Illinois, and at one time my brother had considered attending NIU.

I have no idea what is causing the increase in school shootings. Blame it on whomever you wish: parents, the media, the schools, rap music, or any other scapegoat. The fact is that more students are finding recourse through violence in schools. The fact that these shooting sprees tend to end in suicide does not mean that they are intended as suicide missions; I would tend to believe that at least some of these shooters realized what they had done and concluded that the only way out was through suicide.

How fortunate that the Indiana General Assembly happens to have bills before it to help prevent such shootings in Indiana. While nothing can make us 100% safe (even in the law school), I think that the laws the GA might pass would help disincentivize such shootings.

Senate Bill 0065, the so-called Handguns In Public bill is essential, and must be passed quickly, especially with this last week in the forefront of our minds. SB65 would add language to Title 35 that would read, in part:

"A person who possesses a valid license to carry a handgun issued under IC 35-47-2 may not be prohibited from possessing a handgun on land or in buildings and other structures owned or leased by:
(1) the state or a political subdivision of the state; or
(2) a nonpublic elementary school, nonpublic secondary school, or nonpublic postsecondary educational institution."

With the obvious exceptions of airports, prisons, and courthouses, under SB65 no card-carrying Hoosier could be prohibited from having a concealed weapon in a public place. This makes tremendous sense, but let me start by discussing the opposing side.

Opponents are concerned that the bill would mean more violence in schools. After all, if schools have more weapons, only more violence can occur, right? Wrong. First of all, to get a CCW, one must be over 18. That means high school kids (those who would be most likely to go off because of a hormonal imbalance or because a girl turned him down for a dance) would not have access to them, but the teachers (i.e. the people whose responsibility it is to guard the young people) would.

Further, since no person who has been convicted of a felony can get a CCW, the riskiest college-age students would also be prevented. On the other hand, responsible students who took the time to fill out the paper work and get registered would be able to keep weapons, in case, say, a student starts shooting in the middle of a geology lecture. Additionally, professors and administrators could keep a weapon for such times.

In other words, the good guys get armed while the bad guys either don't, or they resort to the same means they do now - that is, they carry them illegally.

On the other hand, a potential gunman would have second thoughts if he knew that any person he pulled a gun on was also armed. Certainly a gunman appearing in front of a class of 165 students to start shooting would fear, knowing that 150 guns were aimed back.

But even if we assume the possibility of deterrence was insufficient to prevent the shooting, the duration of the shooting would be dramatically shorter. The shooting at Virginia Tech went on for 9 minutes, and more than thirty people lose their lives. Imagine after minute 1, or even minute 2, how many lives could have been saved if even one person had possessed a firearm to stop the shooter.

Sadly, a similar bill (SB356) did not pass its third reading, due to a lack of a constitutional majority.

Any reasonable person knows that there is little we can do to deter a potential school-shooter. If he has his mind made up, then he's going to do it, and saying "No Guns on Campus" will mean nothing. But while we can't prevent such shootings easily, we can at least provide some protection for the potential victims of these tragedies. The Senate needs to vote Yes on SB65, and they need to do it now, before any Hoosier blood is tragically spilled.

My Hero and His Fleet

2008-02-01T14:41:00.000-05:00

In Constitutional Law, we happen to be discussing the separation of powers. Our discussions in class me reminded me of a story about my favorite President, and as a "TGIF"-type posting, I thought I'd share.

Theodore Roosevelt has got to be my favorite U.S. President. Sure, there are some other good ones, but I really like him. He was, of course, our youngest president, and probably the one with the most exciting life. He seems to be the type of politician that we today lack: a true statesman, but one who gets what he wants, and was quite handy with a gun.

In December 1907, President Roosevelt made the ultimate display of not only American power, but presidential power. It was a rough time. Japan was flaunting its victory over the Russians in the Russo-Japanese War, and the U.S. fleet in the Pacific was still quite small. President Roosevelt assembled a fleet of 16 battleships and their supporting vessels, painted brilliant white, and proposed to send them around the world a la Magellan.

Congress disagreed. They saw it as wasteful, and potentially dangerous. The fleet couldn't pass through Panama, so they would have to travel around South America, then to victorious Japan.

But President Roosevelt was a stubborn man, and, as a trained lawyer, knew that the President had the power to move the military, not Congress. Congress refused to pay for the trip, a correct use of their powers. Roosevelt told Congress that he didn't need their money, and at Congress's dismay, he sent the fleet on their journey on December 16, 1907.

When the fleet reached Japan, Roosevelt went to Congress. He told them that the navy was out of money. Congress was left with the option to fund the return journey or strand the fleet at sea. If they ever wanted the fleet back, they would have to pay for it to circumnavigate the globe. President Roosevelt had used the beauty of the Constitution to smack Congress in the face.

That is why he is my hero.

2008 General Assembly Series: SJR7 and the Waste of Tax Dollars

2008-01-31T15:47:00.000-05:00

Anyone that has read my post from last February regarding SJR7, the so-called "Indiana Gay Marriage Ban", knows how I feel about the bill. I think it is a broad overreaching of the state government into the private lives of individuals and an attempt to codify bigotry in our most important document. Those opposed to the thought of same-sex marriage can be comfortable that Indiana law still prevents the marriage or civil union of two persons of the same gender. A constitutional amendment is just one more way to ensure that future generations can't become less bigoted than the current one.

I applauded last year when the bill died in the House. But the bill has again passed the Senate, with a vote of 39-9 (practically the same as last year). The bill is stalled in the House, and it looks ready to die at the hands of House Democrats again. That is, unless Rep. Eric Turner (R-Marion) has his way, and manages to have it attached to the same bill capping property taxes. That just shows the shady dealings that go on in politics: attaching a frivolous and hateful bill to one for which the people are desperately crying out.

The arguments for this ban are same arguments we heard for decades regarding interracial marriage. Anti-miscegenation laws were in place since the beginnings of this nation, often appearing in state Constitutions. Loving v. Virginia, 388 U.S. 1 (1967), was the final nail in the coffin of those racist laws. There, the Supreme Court reversed a trial judge's decision that a black woman and white man could not enter the state without being subject to arrest. The trial judge showed his true colors when he stated, "Almighty God created the races white, black, yellow, and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix." Id. at 3. In other words, interracial marriage was "unnatural." This argument sounds familiar.

It took 103 years, but South Carolina finally removed the prohibition on "marriage of a white person with a Negro or mulatto or a person who shall have one-eighth or more of Negro blood" from its Constitution in 1998. How sad that such bigotry was written into a Constitution for so long. It casts a shadow of shame on the people of the state. Now Indiana wants to do the same.

If the state wants to ban gay marriage in statutes, and that is the will of the people, so be it. Not all of us may agree, but such is the way of politics and legislation. As I stated in my previous post, amending the Constitution really is not something we should do lightly. And besides, haven't we got more important bill to pass right now?

Ought the law feel?

2008-01-28T16:53:00.001-05:00

In property, we began discussing property rights in the human body, and had a bit of a debate about whether a person should be able to sell their own body parts. I was one of the few on the side of the right to do so. I should note that I believe there are two restrictions on that right: 1) that no person under 18 should have parts sold (either by their own choice or by that of their parents); and 2) that no person should be able to sell an essential body part while still alive. The first restriction prevents the possibility (horrible though it may be) that impoverished persons would have children solely to "part them out". The second restriction prevents one person giving their life for another. All well-and-good to sell blood, or bone marrow, or a kidney. Not okay to sell your heart or stomach.*

While some of the opponents relied on reasonable (though in my opinion, wrong) arguments as to why we should not be allowed to sell body parts, others did not. The concept that such a system would unfairly punish the poor is reasonable. The concept that it could bring about a black market in human organs is reasonable (though, as I pointed out, there is already a $1 billion-a-year black market in organs harvested illegally). The concept that it would make the recipients feel guilt is not reasonable.

That concept was brought up by a good friend of mine. A family member received a heart transplant some time ago, and as a result, she has deep feelings about the right to sell body parts. She feels that the law should prevent selling organs because the recipients would feel guilt about having the life of one individual sacrificed for another (i.e. the recipient of a heart would know that a person died to give him that heart). Let's forget my second qualifier on the right for the moment (that is, that no living person could donate a heart while still alive).

Should the law deal with emotions, sympathy, or empathy? Does such thinking prevent real legal analysis? I tend to believe that emotions have no place in the law. No matter what case you look at, there is an emotional appeal. Every murderer has a mother. Every house has a history. Even suing a cigarette company could become emotional because you are lower the stock price of retired persons who have savings in safe companies like Altria. But these are irrelevant. They only cloud the true legal questions.

The virtue of the law is that it is neutral, that it relies on logic and reason. It does not waver in the winds of poll data. While the emotions may help to ferret out good reasons in an argument, I am of the opinion that they should not, in and of themselves, be arguments.

I would like to hear other opinions on the matter. Should emotions have a place in the law? If you believe so, how can you get around the problems that such emotions place in the debate?

*I will save the greater debate on property rights in the body for another time. Trust me, I'll be back with data points and everything else you could want in such a discussion. But that is beside the point of this post.

Is Amending the Constitution a Good Idea?

2008-01-16T17:07:00.000-05:00

Last night I sat down to watch the State of the State address by Governor Daniels here in Indiana. I found myself pleased with the speech overall. He gave relatively few specific plans and instead acted as the cheerleader-in-chief (promoting Indiana's 8.5 minute transaction time at the BMV, or our declining unemployment rate surrounded by Midwest states who find theirs rising). However, he had to cover the property tax mess, and the way he did it got me thinking.

In his four step plan for solving the "property tax crisis" here in Indiana, he included an instruction that the general assembly should offer "permanent protection against the return of unaffordable taxes, though a permanent, constitutional cap of one percent of a home's value[.]" While I won't pass judgment on whether such a plan is good or not, it brings up the notion of amending the constitution. Ought the constitution be amended in such a way?

Black's calls a constitution "the fundamental and organic law of a nation or state that establishes the institutions and apparatus of government, defines the scope of governmental sovereign powers, and guarantees individual civil rights and civil liberties." Should a constitution then state the design of the General Assembly? Yes. Should a constitution state that the government can tax? Presumably. Should a constitution guarantee the right of citizens to bear arms? Yes. But should a constitution put a specific percentage cap on taxes, or force the Congress and the President to agree on a balanced budget (unless 3/5 of Congress vote to overspend), or to limit pardons between October 1 and January 21 of any presidential election year? Perhaps not.

Such things may be wonderful laws. I have no problem with a law saying that we ought to balance the budget. I have nothing against a law limiting taxes. But such things make for better laws than they do constitutional amendments. I understand that the idea of putting it into a constitution is to make it "permanent". I understand that putting things in a constitution automatically makes them "constitutional" and thus impossible to overturn in the courts. But does such technical verbiage about the operation of government belong in a document ensuring us fundamental rights and powers?

Chief Justice John Marshall didn't seem to think so. In McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 4 L.Ed. 579 (1819), Marshall discusses whether all the powers of the government ought to be found in the Constitution. "A constitution," he writes, "to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. [W]e must never forget that it is a constitution we are expounding."

I couldn't agree more with Marshall. Our goal ought to be to have a constitution that the average citizen can read and understand. To weigh it down with tax brackets, definitions of marriage, requirements of "moments of silence", or any other frivolous notion that could pass in a generation is to dilute the meaning of a constitution as a general document putting forth general principles upon which we can build interpretations and legal reasoning.

So, with all due respect to our great Governor and the various representatives, both in Indianapolis and in Washington, D.C.: keep your hands off my Constitution.

2008 General Assembly Series: SB47 and the Request for Death

2008-01-15T23:51:00.000-05:00

It is my favorite time of the year. Not because I like snow or the cold, or because I enjoy the post-Christmas atmosphere. No, this is my favorite time of year because our fine legislators here in Indiana have the opportunity to meet for their short annual session. I'm not entirely sure why I enjoy the General Assembly so much, but I think it has everything to do with my interest in politics and law, my inspired admiration of federalism, and the sheer history in those two chambers in Indianapolis.

As part of this year's General Assembly Series, I wanted to take a closer look at some of the proposed bills that our elected representatives have put forth as being the will of the people. This series will run over the next week or two, and will give me a chance to inform the public about some of the laws being debated.

One of the more interesting proposed bills this session is Senate Bill 0047, authored by Senator Waterman (R, Dist. 39) and now before the Committee on the Judiciary for its first reading. The bill would allow certain incarcerated persons who have been sentenced to: (1) at least 200 years imprisonment; (2) an executed sentence of life imprisonment; or (3) life imprisonment without parole; to request the imposition of a death sentence. Individuals requesting the sentence would be interviewed by a psychologist or psychiatrist to determine whether the person understands the proceedings, is mentally ill or has mental retardation (as defined in IC 35-36-9-2), and whether the person has attempted suicide, among other things. Should they have a change of heart, the incarcerated person has the authority suspend execution and reinstate the original sentence.

While evaluating this bill, we ought to consider three major points: the cost comparison for the taxpayers of the two options, the Constitutionality of the bill, and whether this is a fair punishment in the eyes of the victims.

Many studies suggest that the actual cost of imposing the death penalty is higher than putting a person in prison for life. The Indiana Criminal Justice Institute notes that the major reason that is true is that "[in] Indiana[,] capital cases are more extensively litigated than other murder cases… When the ultimate penalty is at stake, litigation moves into a 'super due process' mode that goes above and beyond the due process invoked by a potential term of years." Goodpaster, Cost Comparison between a Death Penalty Case and a Case Where the Charge and Conviction is Life without Parole, The Application of Indiana's Capital Sentencing Law: Findings of the Indiana Criminal Law Study Commission, 2002, at 122A. The report states that the death penalty costs exceed "life without parole" costs by 34% to 37%. Id. But for cases covered under the new law, the cost of the original trial would be the same as any other non-capital offense.

Admittedly, the cost of the court hearing and psychological testing would drive up the cost of the death penalty. However, the individual would not use prison (and thus taxpayer) resources for the remainder of their life. The report puts the estimated time on death row at 10.5 years, and the average stay for LWOP at 30-40 years. Id at 122E. Further, the report puts the cost of health care for aging prisoners at over $6000 per year. Id at 122D. Assuming that the person elected to have the death penalty shortly after their sentencing, and that the psychological screening took only a short while, the incarcerated person could potentially have received death within one to two years. Compared to thirty years, the taxpayers are saving quite a bit of money. Even if the individual waits five years (and all possible appeals), the turnaround under this bill would be so quick that there would not be a 10.5 year wait for death. Purely economically, incarcerated persons electing the death penalty could save Hoosier taxpayers thousands, while freeing needed space in our already overcrowded prisons.

Of course the major concern ought to be the constitutionality of the bill, both in the Indiana and U.S. Constitutions. After all, a jury of his or her peers found only that the incarcerated ought to be in prison for life, not that he or she ought to be executed. To punish a person more than a jury saw fit might be considered cruel or unusual. I sought comparable laws in other states, but it seems that Indiana is the first to propose one. As such, no such law has been tested by any court for its constitutionality. Some states do allow death row inmates to choose their method of execution, and this has been found to be constitutional. Looking purely at the language of the Constitution, it would seem that the voluntary election of the death penalty can hardly be considered cruel, since the incarcerated is putting the punishment onto himself. Can one be cruel to oneself? Yes, but people with such tendencies would likely be ruled out through the psychological exam. I would tend to believe that such a law is constitutional, but without precedent to guide me, it is frankly a shot in the dark.

Perhaps the concern that some taxpayers and believers in punishment will have is the concern that choosing the death penalty is a cop out. I tend to agree with this view. It is much easier for a person to elect death than to sit in a cell thinking about their crimes, their solitude. Just as we tend to call suicide "the coward's way out," allowing a needle into your arm (should our honorable Supreme Court hold needles still uncruel and usual) could be called cowardly. Passing such a law could be seen as weak on crime.

On the other hand, one of the primary concerns with the death penalty is that it kills innocent people. Yes, without a doubt innocent people have been sentenced to death. However, I cannot believe that an innocent person would elect to choose death, and thus the law would have 100% accuracy. An innocent person clings to hope, believing that they will one day be vindicated and set free. Even those who lose hope couldn't pass the psychological exam, because "I've lost hope" hardly qualifies as a reason to elect death.

I certainly am not suggesting that I like or dislike the law. I think it is inventive, and certainly worth looking at. I simply hope that the Judicial Committee, and eventually the General Assembly, will consider these points as they debate the purpose, wording, and efficacy of this bill.

Back at It

2008-01-10T20:28:00.000-05:00

After a long delay for Christmas break, and a warm vacation in Arizona, I am back to post. I would have posted over break, but, to be honest, I was enjoying relaxation and working on getting out résumés for this summer. I spread my net wide, and hopefully my undergraduate record will help me get a few interviews. Several federal agencies received my information, as did a few firms in Indianapolis. I am hoping that I can find a paying job, but I won't be holding my breath.

I am particularly excited by my schedule this semester. Not that there was anything wrong with my schedule last semester, but rather than Ethics and Torts, I get libertarian lovables Property and Constitutional Law. Further, we get into advocacy in Legal Research and Writing, which I think is my strength. I found it difficult to write completely neutrally last semester, and the opportunity to practice oral advocacy will lend itself well to whatever is in my future.

I am keeping up with the election coverage, but I won't get political here other than to say that the candidate I support is gathering far more votes than the "mainstream media" believed he would. Hopefully he will make a splash in Michigan, where he was running ads in Arabic to the Muslim communities there. I was disappointed to see Bill Richardson drop out of the race, since I believed he was the Democrat most qualified to be President, and a man who developed far more innovative solutions to problems (boycotting the Beijing Olympics to put pressure on China to get involved in Africa, for example). He should have gotten more votes, but apparently he wasn't liberal enough to win in the primaries. He also didn't say the words "change" or "hope" enough on stage. C'est la vie.

Mid-Finals Update

2007-12-07T13:45:00.000-05:00

Along with a little bit of snow, finals season has fallen on us here in Bloomington, and I am in the thick of it. My toughest exam, and the one I was most dreading, was Torts on Wednesday. My worry was, perhaps, not founded. Actually, I knew more than I thought I did, which I think is the general consensus about the law among 1Ls. It doesn't feel like we know anything about the law, but suddenly when an outsider asks us a question, we seem to have the answer. None of us are sure when it happened - I suspect that it was over Fall Break - but most of us know the basics of the law, even if we don't think we do.

That said, I have this one recommendation to anyone thinking about coming to law school: take plenty of Economics. They tell you that a couple of courses will make you well suited for law classes, but that is an understatement. In undergrad, I took (I think) five or six Econ courses. On my Torts exam, I think I used each of them at least once. Well, except Labor Economics. I suppose I will have to wait until 2L to apply that one.

I have three exams remaining: Legal Profession, Contracts, and Civil Procedure. I feel the best about Civ Pro, though LP is a take-home exam this Saturday. It finds itself due at the exact time that IU will face off against Kentucky in basketball. I suspect that I will be turning it in early.

One final note. Today we received an e-mail telling us that the faculty has approved a new grading scheme that will benefit us ever so slightly. This makes me breathe easier about Torts, and since the grades are retrofitted, and because I was right on the edge, my Criminal Law grade from the summer should be moving up. I'm not entirely sure how I feel about the new grading system. Sure, it benefits me. But it doesn't do much for the competitive nature of things. Despite the negative image law school competition has, I believe that competition is what drives a vast majority of us. I suppose we'll have to see how it all works in the long run.

IU and Indiana Law Rankings

2007-11-20T14:54:00.000-05:00

Yes, we all know you're not supposed to care about rankings. But they exist, and, if nothing else, they make for fun conversation.

The TaxProf Blog posed an interesting question recently: how much is a law school helped or hurt by the university of it is a part? "Of the Top 100 (105 with ties) law schools in the most recent ranking, all but 13 are affiliated with national universities." He posted a list of the biggest positive spread and the biggest negative spread schools. I'm proud to say that Indiana Law is #27 on the biggest positive spread list, with a spread of 39 ranks (#36 law school with a #75 undergrad). Maybe we're holding them up.

Although the administration of our law school officially shuns the rankings, it's good to know that we continue to make upwards strides. We are consistently ranked in all sorts of rankings, from U.S. News and World Reports to TaxProf to Professor's Articles Receiving Citations. I'm glad I made a good choice in law school.

Hoosier Gun Owner?

2007-11-20T14:09:00.000-05:00

As expected, the Supreme Court has granted cert in the D.C. gun ownership case. The court phrased the granting issue as: “Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?”

Not wanting to get into a debate about Second Amendment rights quite yet (my undergrad Constitutional Law course helps, but perhaps I'll debate after ConLaw next semester), I just want to point out an interesting quirk in that phrasing and how it impacts Indiana law.

Certainly such a case wouldn't arise in Indiana (assuming that this state is, in fact, a "red state"). But if it did, the phrasing that the Court chose would provide a pretty clear answer. In Indiana, "a militia shall be provided and shall consist of all persons over the age of seventeen (17) years, except those persons who may be exempted by the laws of the United States or of this State." Ind. Const. Art. 12, § 1 (emphasis added)*. Male, female, old, young. Basically everyone that doesn't have a note from the Governor (or are conscientiously opposed to bearing arms) is part of a militia. Perhaps that is why our state takes such a strong stance on the Second Amendment. That's why a D.C. style law won't come about here, and why such a law certainly wouldn't survive our courts.

The phrasing of the question in front of the Supreme Court says that it applies to individuals without no affiliations to a state-regulated militia but who want to possess guns in their homes. In Indiana, the only persons not in the state-regulated militia are those who are conscientiously opposed to bearing arms. Seems unlikely that those folks would want to bring guns into their homes anyway.

*In the original 1851 Constitution of Indiana, the section read "The Militia shall consist of all able-bodied white male persons, between the ages of eighteen and forty-five years, except such as may be exempted by the laws of the United States, or of this state; and shall be organized, officered, armed, equipped, and trained, in such manner as may be provided by law." A 1936 amendment deleted "white". A 1974 amendment rewrote the section to its current version.

"Oeniphiles Rejoice" Redux

2007-11-20T13:52:00.000-05:00

On August 29, I posted a story about Professor Pat Baude's victory in an Indiana wine shipping case. The case was decided by Judge John Tinder, an Indiana Law alumni and District Court judge.

The state of Indiana is appealing the decision to the Seventh Circuit (see briefs here). In a delightful turn of fate, Judge Tinder is awaiting Senate confirmation for his appointment to that court.

On a side note, I usually like what my state is doing. But in this case, I certainly hope that Indiana fails. Professor Baude et al are representing the freedoms of Hoosiers. Fortunately, the Seventh Circuit is fairly libertarian, and hopefully will affirm the decision of its future comrade.

One Month Left

2007-11-13T23:41:00.000-05:00

It occurred to me, as I checked my official Indiana Law day planner, that my finals are in less than a month. This must explain why I haven't been posting much. I have two papers to write (one would best be described as an undergrad touchy-feely paper that has little place in a law school curriculum, but I digress) in the next week, and eventually I'll have to solidify some sort of outline for my four finals. So far I've felt that law school has been, well, exactly what I thought it would be. I don't think I came in with inordinate fear, but I don't think I was sugarcoating what life would be like in a Tier 1 law school either. I've seen a lot of people start to fall apart from the stress, and a lot of folks have been getting sick lately. I don't know if my general comfort with the process is aided by my summer start or not, but I suspect that my nature is helping keep my sanity.

On top of all that, I've been working incessantly to secure myself a job for my first summer. Somewhere along the line I decided that I would best fit into bigger law firms in Indianapolis (where I intend to stay after graduation), so I've been looking into all of them, along with a few government agencies. I'm hoping for the best, and the few hiring partners I've had casual conversations with seemed interested in my business experience. I'll be happy anywhere I work, but I certainly have my preferred places.

Lastly, I've met a few potential 1Ls at various law school events, and I've noticed an increase in traffic coming from searches by sundry students. I'll try to keep both in mind over the next few weeks, as prime application season begins, and as more seek advice on which law school to attend. I certainly vouch for the quality of Indiana Law. I'm sure my comrades in the blogroll to the right will certainly agree.

Occam's Tax Code

2007-10-29T22:20:00.000-04:00

Not so long ago in Torts, we discussed Occam's razor as it relates to strict liability. The razor is the 14th century principle of lex parsimoniae; that is, that, all other things being equal, the simplest solution tends to be the right one. What followed was a delightfully intellectual discussion that does not need repeating here. Rather, it made me think about all the places in life that the razor would make life that much better.

As we get into election season (not that today is any different than the last eight months), it occurred to me that my vote should go to the one who follows the concept of the razor most closely, specifically regarding the tax code. The version just recommended by Charlie Rangel (D-NY) had tortious action performed upon it by CNBC, and rightfully so. Even though it keeps the AMT at bay, and reduces top corporate taxes, it raises taxes elsewhere (for example, a 4% surtax on all AGI over $200,000, which I suspect several of my readers make or will be making). In fact, as the report from the Tax Foundation states, "almost all of the 90 million taxpayers whom Rangel claims would pay less under his tax plan would still end up paying more to Uncle Sam in 2011 as a result of the tax cuts' expiring."

Fortunately, it's unlikely that this bill will pass before 2009, and then only if a Democrat takes the White House. For that reason, this goes as a large point in the "con" column for voting Democratic. I still put my support behind Ron Paul (who, incidentally, will be on the Tonight Show tomorrow), because it seems that his tax code is the most Occam-like. Simple solution indeed.

Shadow Day

2007-10-27T22:35:00.000-04:00

As part of the first-year PRACTICE program that IU has implemented, we get the chance to link up with an alum and shadow them. Since I was going home for Fall Break anyway, I opted to seek only persons in Lake County. I was very fortunate that one of our grads is a senior judge in the Lake County Criminal Court, specifically the high crimes division. I jumped at the opportunity, and it was fantastic.

I knew that shadowing the judge would make my options clearer in terms of career planning and summer work, and indeed it did just that. His career path after IU was fairly straightforward: several years as a prosecutor, then a stint as a defense attorney, then election to the bench. This certainly is one of the paths that I thought might fit my own ambitions.

I have to admit that the day was fast-paced and surprising, and I realized just how little I actually knew about the function of a felony court. The first part of the day was almost Fordian: an assembly line of criminals and lawyers being brought to the podium as prosecutors rotated in and out of several doors. I saw plea agreements accepted and rejected by the bench, several translators trying to keep up, closing arguments in a double-murder jury trial, a sentencing for a high-profile brutal murder, and dozens of other administrative proceedings.

Law and Order tries to make the process look busy, but nothing compares to just sitting in the room watching everyone. Since I was nearer to the back, I got to watch the reactions of the families. Some took it rather well, almost stoic. Others fell apart. I watched a girl and her mother respond to the sentencing of their brother and son, respectively, and saw how a life can be destroyed by one stupid mistake. There were eighty-plus year old mothers, and little children who might never see their parents without bars. The emotions were hard to deal with, even as a neutral bystander.

To be honest, I'm not sure how the whole day affected me. On one hand, it made me want to be a prosecutor even more. The opportunity to be on a stage, performing for a jury, is appealing. The ability to decide how and why to prosecute someone is appealing. The high-profile nature of it all is appealing. Yet, on the other hand, it was overwhelming. You have to keep your emotions hidden. You have to keep from being empathetic. You have to do your best to be "the state." It's a lot to take in at once.

As a result, I know a lot more about the criminal justice system, in reality and out of the books. No matter what I decide to do, at least I will know that I did all I could to be informed before making it.

Finally a good use for all this computing power

2007-10-23T10:27:00.000-04:00

To my regular readers: I apologize for the lack of posting in the last week or so. I've been quite busy. Fear not, however; I have a list of topics to discuss that should be up here before too long.

It seems to me that only a few law schools in the nation actually require laptops, much less laptops with certain required characteristics. IU is one of them. I suppose this is a good thing, because it gave me an excuse to buy a new laptop, but in the long run, it is probably excessive.

The requirements were such that we needed top-of-the-line everything. High powered processors, massive hard drives, and more memory than a herd of elephants. All that so that we can run Microsoft Word in class to take notes, and at the end of the semester run exam software. I equate this to using C4 to light a firecracker.

So, in an effort not to have my money wasted, I sought something for which I could use this thing for. As a result, I have joined the World Community Grid. Essentially, it is a grid computing software that I now run every hour of the day. According to the site, "Grid computing joins together many individual computers, creating a large system with massive computational power that far surpasses the power of a handful of supercomputers. Because the work is split into small pieces that can be processed simultaneously, research time is reduced from years to months. The technology is also more cost-effective, enabling better use of critical funds."

Since I joined the WCG three days ago, I have joined four projects. Discovering Dengue Drugs - Together, Human Proteome Folding Project, FightAIDS@Home Project, and SETIatHome. The program runs in the background all day, and lets me help out worthwhile causes for the sake of humanity. For those looking for a feel-good project that lets you use your excessively powerful law school computers, I invite you to sign up and download the software.

For all students, professors, staff, and alumni of Indiana Law, I have set up teams on the two websites to represent our school (called IU School of Law - Bloomington). The teams don't do anything particular, but they allow us to compete with other teams (notably, the one at the law school up 37).

And trust me, if I happen to be the one who finds proof of intelligent life elsewhere in the universe, you'll be the first to know.

Reader Opinions Sought

2007-09-26T22:56:00.000-04:00

I am in the midst of deciding how I should spend my first summer. I have two basic alternatives: study abroad or find a job. I would like opinions (in comment form) on which would be better in the long run, and why. Obviously the opinions of practitioners and upperclassmen are more valuable at this point than opinions from fellow 1Ls.

I know (with a fair amount of certainty) that I want to work in criminal prosecution when I finish law school, and I also know that I want to stay in Indiana. Although nearly all study abroad programs I found involved international business or human rights, I was able to find a study abroad program through Tulane University that focuses on Criminal Law. It takes place in Amsterdam, because of its proximity to the Hague, among other reasons. The focus of the coursework would be comparative criminal procedure, international criminal law, and terrorism (as seen in the European way, as a crime rather than something upon which to declare war). The downside is that it is costly, and I would have to take out additional loans to fund such a trip.

My other alternative is to find work in a prosecutor's office or courtroom somewhere in Indiana. More populous counties like Marion, Lake, Monroe, Tippecanoe, and St. Joseph have large court systems, but I would love to work in a rural office (say, Park or Adams county) just as much. I have also looked into the Army JAG summer internship program, and wouldn't be opposed to working there, either. All of these alternatives give me valuable networks for when I want to find a job in a prosecutor's office in three years. The downside is that many of these positions are unpaid, so I might still need to take out loans.

So, for all the practitioners, judges, professors, and upperclassmen reading this: in your opinion, which is the better alternative? Your help is much appreciated.

Terror-Management Theory and the Law

2007-09-21T17:50:00.000-04:00

Today I made the hike up to the Psychology Building to listen to a lecture. The lecture, by University of Missouri-Columbia professor Jamie Arndt was on the topic of Terror-Management Theory (TMT). The topic of the lecture was "Is Death Hazardous or Good for Your Health?: Understanding the Impact of the Awareness of Mortality on Health-Relevant Behavior". The lecture was quite enjoyable, especially since I am sure I was the only law student there.

The basic premise of TMT (and I apologize to Professor Arndt if I falsely describe it) is that when you combine 1) the human biological need for self-preservation and 2) the fact that humans are unique in their knowledge of the inevitability of death, you get the potential for extreme terror. Some have called it a fear of death or a fear of annihilation. When we reach that point, we respond in one of two ways: we take better care of ourselves (trying to delay our inevitable demise), or we take worse care of ourselves (either through denial or, if death is soon anticipated, risk taking).

The experiments the psychologists in this area are running are quite interesting. Reminding people of their own mortality has been shown to increase their inclination to respond favorably to people who bolster their own worldview and negatively to those who oppose it. One test Dr. Arndt mentioned was a mention of death or cancer to a person who values tanning. The surveys show that they are more inclined to buy higher-SPF sunscreen right after the reminder of their own mortality. My business undergrad instantly kicked in and developed a marketing ploy for sunscreen manufacturers: put up a billboard with the words "Death" and "Skin Cancer" and nothing else. Further down the interstate, perhaps just a few moments later, advertise your product. The inclination will be for the individuals to buy your product, at least theoretically. Such advertising would work as well for churches and exercise clinics.

TMT has some interesting effects in the study of law (or else why would I have attended, other than for pure intellectual stimulation on a Friday afternoon). I am curious how it would impact death row inmates, for example. How would such an effect alter a person's feeling of the necessity for deadly force in self-defense? Are people who are reminded of their inevitable annihilation more likely to commit crimes?

The ideas for journal articles abound. And all I had to do was hike to the north side of campus.

Absorbing Wisdom

2007-09-13T19:52:00.000-04:00

I found myself a new hobby.

As I described in my last post, I found myself very interested in listening to the stories and knowledge of a variety of persons in the legal field. It has taken the place of reading The Economist in my weekly schedule, actually. And, thankfully, the law school offers a great deal of optional educational opportunities for people like me.

Yesterday I had the pleasure of listening to a lecture on mental capacity and the legal ramifications of being on the fringe of such a category (i.e. those who are capable of making good decisions, but only just, and those who are not capable of making good decisions, but only just). The main thrust of the discussion was aimed at Alzheimer's patients, and how to treat them. For example, if a person my age says "When I'm old, if I can no longer remember my children, and cannot enjoy the intellectual pursuits I once did, I would like to be killed." Do we respect that person's choice when they become old, or do we count the older self as a new person?

The lecture was given by visiting Oxford professor Jonathan Herring, a very qualified speaker (nothing like hearing about Hoo-zee-er basketball in an English accent). I found it particularly interesting that in Britain, whether a person is mentally qualified is a question of law, while here in the States it is a question of medicine. I suppose that we Americans assume doctors are better at assessing mental incapacity than judges.

In the coming weeks, we have lectures on comparative British & American law, constitutional design in emerging democracies, and others. In October we have a pair of Courts of Appeal hearing arguments (one is a military court) in our Moot Court Room. You can be assured that I will be there for all these lectures and more. The law never ceases to amaze me (although, to be honest, Contracts can occasionally cease to do so).

I must rest up. Tomorrow after class I'm going to sit in on the Monroe County Court and hopefully hear some worthwhile legal argument.

Dinner Date with the Judge

2007-09-07T22:35:00.000-04:00

One of the new things Indiana Law is trying on us is a 1L PRACTICE program, that ties in themes of ethics, professionalism, and career-planning. Last night we were fortunate to have a pair of speakers practicing in an area of the law in which I'm particularly interested. One is a county judge and former prosecutor here in Bloomington, while the other is a top criminal defense attorney. The actual presentation was quite interesting, as the two often disagreed and bickered (over such things as whose job is harder and who has better investigators).

As insightful as the presentation was, the most enjoyable part of the evening happened afterwards. One of my professors invited a group of students to dinner with the two speakers. The dinner conversation lasted about three hours, and I was glad that I accepted the invitation. I spent the first part of the night talking to the defense attorney, a highly regarded lawyer from Indianapolis. While I have no interest in working on that side of the courtroom, it was great to talk to the guy one-on-one. His golf-course living and iPhone were a testament to the economic success that such a position can offer.

After he left, we spent a while talking with the judge, exchanging law school stories and hearing tales of the most interesting folks to enter her courtroom. I felt like her life story was similar to mine, in regards to growing up, and our opinions of the legal profession. At the end of the night I was unhappy about leaving, as I could have absorbed her knowledge for at least a few more hours. Not all my comrades shared that enthusiasm, though. In the end, I found a good connection in a prosecutor's office and a courtroom.

Moral of the story: never turn down a dinner date with the judge.

The Getting Involved

2007-09-05T17:52:00.000-04:00

Week two. So far, so good. Classes are exactly how I thought they would be, which is comforting, even though the classes themselves are not. I've settled into a cozy routine of sleep, work, and class. And of course I leave Saturdays open for college football (Go Hoosiers!) and going out.

But, I haven't felt involved yet. In high school, I was in about a dozen extracurriculars (more, possibly). In undergrad, I participated in a few (limited more by my working than by lack of interest). And I feel like those experiences were priceless (volunteering to help poor individuals file tax returns, for example). So now that I'm in law school, I feel like I should get involved, if not to meet new people than to keep busier.

This week has been "get involved" week, where we get fed free lunch every day and find activities with which we want to get involved. My interests vastly outnumber the hours of free time I have, though, so determining which are best has been tricky.

First of all, I needed to join one of the legal fraternities. I settled on Phi Alpha Delta, mostly because of the size of the network and the names of the more famous members. This group should take care of my need and desire to participate in service projects.

I then needed to find a group to give me outreach in the political environment (especially since one of my libertarian friends turned liberal the other day). Since my choices were American Constitution Society and the Federalist Society, the choice was obvious. I chose the smaller Federalist Society, mostly because I needed a place to talk to fellow conservative-leaning libertarians and network nationally. Who knows who might one day support my campaign?

I then needed something to help get me involved in the practice of law. IU has three practice programs, and the one I chose is the Inmate Legal Assistance Project (or Program?), in which I will travel to the federal prison in Terre Haute and assist inmates with legal issues. This should help me fill my need for justice while offering basic skills like, I don't know, talking to clients.

Lastly, I needed a place to feel political and contribute to the betterment of the law school. I thus decided to run for 1L representative to the Student Bar Association. The election is next week, but I have felt a great deal of support from my classmates. We have buttons made up, and all-around positive press. Even if I'm not elected, the experience of politicking is making me feel alive. As I've always said: "Life is politics."

So what do you think? Did I get involved enough?

Oenophiles rejoice!

2007-08-29T22:20:00.001-04:00

One of the great perks of being situated in south-central Indiana is that I happen to be in wine country (as much as one can have in this particular climate). There are several wineries in the Bloomington area, and I have to believe that their presence brings Indiana Law a wealth of connoisseur law professors.

Ironically, Indiana is a harsh place to be an oenophile. The state is in the pockets of the large alcohol distributors, providing that we can't import wine from out of state, and, until recently, couldn't even have wine from Indiana wineries shipped to our homes (today, the restrictions on wine shipping are still extremely harsh). As a result of this environment, several lawsuits have been brought in an attempt to loosen the grip of these distributors. Fortunately, the biggest wine lovers I know are all law professors.

One such professor, Patrick Baude, was recently involved in a suit, and today the court ruled in his favor. I'd love to summarize the decision, but aside from its length*, I'd hate to screw up briefing a professor's case. If and when I have Professor Baude again, I'd hate for that to be hanging over my head.

"This litigation challenges the constitutionality of Indiana laws that allegedly restrict the ability of wineries, and out-of-state wineries in particular, to sell their product directly to Indiana residents, primarily by orders placed by telephone or over the Internet."

Preventing out-of-state wineries from shipping to Indiana residents violates the Commerce Clause. The defendants, the Indiana ATC and one of the wholesalers, say that the restrictions are there "for the children". Poppycock, says the court (not in those words, of course).

The gist of the decision:
"[T]he court finds the wholesale prohibition, Ind. Code § 7.1-3-26-7(a)(6), to be unconstitutional insofar as it bars wineries that possess wholesale privileges in states other than Indiana from seeking a Direct Wine Seller’s permit. The court also finds the requirement of an initial face-to-face transaction between a winery and customer prior to direct shipment, as described in Ind. Code §§ 7.1-3-26-6(4), 7.1-3-26-9(1)(A), to be unconstitutional. These two conditions constitute a form of economic protectionism and violate the Commerce Clause of the Constitution.

"The court does not find Indiana’s general prohibition of direct shipping, Ind. Code Ind. Code § 7.1-5-11-1.5, to be unconstitutional except with respect to the two specific conditions in the statutory provisions cited above. Nor does the court find the statute allowing an Indiana farm winery to sell its product onsite and at certain other locations, Ind. Code § 7.1-3-12-5, to be unconstitutional."

Not a complete knock-out win, but definitely a step in the right direction. So on this night, I propose a toast to Professor Baude and his success in this litigation. Congratulations!

*Please note, Professor, that I did actually read the whole case. I just didn't think my readers wanted the details.

[Day] One: They Scare [Me] to Death

2007-08-22T17:38:00.001-04:00

It's only day one and I already have a rule of contract law named after me. This can't be a good sign of things to come.

The day actually wasn't bad at all. I started off my day with Contracts, a course, I feared, that had great potential to cure my insomnia. First day of class wasn't bad, but I found myself in the line of fire. I was just sitting there minding my own business when, suddenly I heard the words no one wants to hear on the first day. "Mr. Blair..."

We were discussing expectancy damages, and we had the hypothetical that a buyer chose between two identical cars. One cost $37K. The other cost $34K. The buyer agreed to buy the more expensive car, but when the seller refused to turn over the car, the buyer sued. For what could the buyer sue? I said $34K, because, to me, the substitute performance penalty, worked in reverse, should make the person as well off as if the contract had been completed; in other words, $3K in the hole. For the remainder of the class period, this concept of giving the seller something for nothing was termed "The Blair Rules of Contract Enforcement." I'm not deep enough into the class to know if it is real or not, but someone said it sounds a lot like the Restatement of Contracts. I can only hope.

I also had Torts, Civil Procedure, and Legal Profession (Ethics), but wasn't cold called in any of them. I can honestly say that Torts today was the first time I ever felt like I really didn't want my name called. That class, so far, has been a mental workout like no other. I have a feeling that it will require all my effort not to let it kill me. The other two are more my style: remember and apply written rules. That I can enjoy. Common law, on the other hand... blah.

Only 991 days until graduation...

A Late-Night Post

2007-08-22T00:36:00.000-04:00

Well, I survived orientation, which, from what I had heard beforehand, seems to be just short of a miracle. I'll post more thoughts on orientation at a time when I shouldn't be in bed. Tomorrow I begin my classes, and find out if I'm any good at this 1L thing.

Unlike my summer start course, where anyone anywhere could have found out who my professor was, I have decided to keep my regular semester professors unnamed for the purposes of this blog. While I'm sure that anyone from Indiana Law will figure out my professors from descriptions of course work I discuss (and if they were to ask me in person, I'd tell them), I think it would be most respectful to these men and women to keep their names out of my blogs. This practice will hopefully keep me from feeling the Socratic fire more than my classmates. I doubt that it will alter the quality of the posts on this blog (I'll let you decide if that's a good thing or a bad thing).

I have the full array of courses tomorrow (less LRW, of course), so I should know by tomorrow afternoon whether or not I made a substantial (or procedural) mistake in going to law school. Until then, adieu.

Playing Catch-up

2007-08-19T13:44:00.000-04:00

I'm finally back in town, after a much needed break from the hectic life of a law student. Tomorrow starts the next leg of the race, and I feel (moderately) prepared for it.

The final in Criminal Law was certainly... unexpected. I don't want to give away details about the questions or my answers, but the exam certainly shifted us out of the realms where we had practiced up to that point. I've been trying to avoid doing a post-op on the exam, and I think getting out of town helped with that a bit. I hope I did well, since my Crim Law grade matters more to my desired profession than, say, Contracts or Property, but we'll see in a couple weeks when grades are posted.

While I was away, good things happened in the Ron Paul campaign. #5 (9%) in the Iowa straw poll and #3 (18%) in Illinois makes for a dramatic shift from the 1% he had been polling with up to that point. And he spent markedly less than most of the "big name" candidates. I still don't think it's likely that the management of the Republican Party would nominate him, but he's certainly making a buzz in the electorate. We'll just have to sit back and wait.

I'll have more to post after tomorrow, when I get my fall schedule, and I see where the other persons of my study group end up. Whatever happens, I feel pretty confident that I'm ready. Summer start was the right choice for me, and I certainly feel like I got my money's worth. For all pre-Ls reading this, I recommend such a program highly, if for no other reason than the social aspects. And doing it at IU is the icing on the cake.

Always Say "No"

2007-08-04T01:34:00.001-04:00

One of the first things I did when I started studying law in depth was to fill my younger brothers in on their rights as American citizens. Like all good lads, they drive cars and may occasionally speed. Such speeding might just bring about an officer of the law, who might just ask them questions not relating to their driving at all. And what did I tell my brothers?

"Always tell them no. Ask for a warrant, and don't let them touch the inside of the car, or any part of your person, without seeing one."

It may not make you popular with the police, and it may cause even more of a delay in your busy schedule, but that's the high price of having rights. I don't suspect that either of my brothers would be in possession of anything illegal. Then again, if they were, I would hope that both would be smart enough to demand a warrant. Letting them know that police sometimes act "unscrupulously" was my job as their older brother.

Thanks to a commenter on my last post, I was alerted to yet another wrongdoing in my great state. There's just something about law enforcement in Indianapolis and their thinking that they can throw the net wide.

As DailyKos describes, federal agents working for the TSA, including Air Marshals, took up base at two bus stops in downtown Indianapolis and set up random checkpoints to pat people down, look in bags, and perform "behavior" tests for the stated purpose of finding weapons and people who were a threat to public safety.

Never mind the fact that there have been no federal crimes occurring on Indy buses. Never mind that Indiana allows anyone with a concealed carry permit (from any state) to carry a handgun legally. Never mind that citizens weren't informed that they could opt out (so that the searches weren't in violation of the Fourth Amendment).

DailyKos has some alarming first-hand accounts of the searches, as well as a far more detailed account than what I can give. Sadly, the Indy Star managed to keep the story to a few lines near the middle. At least this time the comments seem to agree with the general legal consensus.

So, little brothers, I add on to my previous statement. You should also say no to any federal officer demanding to search you anywhere that's not an airport or the White House. In fact, you might want to just steer clear of Indianapolis until the ACLU takes care of this.

It's Not a "Technicality"

2007-08-01T16:26:00.000-04:00

A couple weeks ago I wrote a post concerning the Indiana seat belt laws, and why I disagreed with them. The discussion in the comments was insightful, and I appreciated the feedback.

One of my arguments against such seat belt laws was that they often give police a way of stopping a car that they would like to search, possibly on stereotypical reasons, such as a black driver in a white town. Yesterday, the Indiana Court of Appeals handed down a judgement to that fact. A man was pulled over for a seat belt violation, and in the course of the traffic stop, the officer told the man to get out of the car and be subjected to a pat-down. The man was carrying marijuana on his person, and methamphetamine in his vehicle. He was promptly arrested.

The Court of Appeals was kind enough to say that such a search and seizure is unconstitutional, and that the evidence could not be admitted. They also have a very nice summary of other traffic incidents in the decision.

While reading about the story in the Indianapolis Star, I decided to read the comments left by other readers. I'm sad to say that far too many were upset with the Court's ruling. My favorite comment, summarizing the views of the opposing (and very wrong) side was this:

"What a sad civilization we live in. Blatant criminal activity goes unpunished and we avoid helping this person recover from drug addiction. This is all simply because of a technicality. Wow America, way to help better our youth and clean up or country. Our legal system is severely screwed up."

My jaw just about fell off. The Fourth Amendment is not a "technicality". It's not a sign of a "screwed up" legal system. It's what keeps the government in check from becoming King George III, the Schutzstaffel, or Big Brother.

It's sad that so many people don't have an understanding of the basic purposes of the Constitution.

Irony Defined

2007-07-31T14:00:00.000-04:00

While snorkeling in Hawaii, a lawyer was attacked by a shark.

So much for that old joke about sharks, lawyers, and professional courtesy.

Speeding Towards the Start

2007-07-29T00:36:00.000-04:00

I have a mere eleven days before my Crim final, and something odd happened. I found myself in the library.

I know what you're thinking: "How can you think that's odd?" Well, I haven't really been in there yet this semester. I did all of my studying at home with the few books I had there, or in the conference rooms with the study group. But I never felt the need to really study in there. Until Thursday.

On Thursday, it occurred to me that there are several dozen episodes of Law and Order on every day. They appear on TNT, A&E, Spike, NBC, and probably others. They run in batches of four or five. And once I start watching, I can't stop. The only thing that can stop me from watching more is an episode of Criminal Intent (which is, by far, the worst of the spin-offs). That's my problem. So, feeling the need to get away from the temptation to find out how Jack McCoy can sink the defendant this time, I retreated to a carrel in the library, where I have spent that last two days.

It feels like it worked. I spent my time studying inchoate crimes, and my outline for this section is better than any of my previous work. If I continue to spend this number of hours in the library, I might be slightly less worried about my final. Slightly.

The sad thing is that it's Saturday night, and I'm here studying attempt instead of going out. Oh, how far I've come. Oh, how far I have yet to go.

What you do on your own time...

2007-07-25T19:23:00.001-04:00

The ABA Journal picked up an interesting story today from Florida that seems to involve the Amendment VIII.

Back in November, Terry Lee Alexander, in prison for armed robbery, was caught masturbating in his jail cell. A female sheriff's deputy saw the act, and he was charged with indecent exposure. During jury selection, the potential jurors were asked about their masturbation habits. All the men and all but two women admitted to the act. In the end, the jury convicted Mr. Alexander on the charges and added sixty days to his sentence.

While I don't argue that the act would be indecent if done in public, it seems to me that it is tremendously cruel to disallow such acts in the privacy of one's home. Prisoners are home in their cell, and when there is no cellmate, the area would be sufficiently private (the deputy saw the act from a nearby control room). He wasn't intimidating her, nor does it seem that he was using her as the object of his fantasy. He was simply trying to indulge himself.

In fact, we could go one step further. Public urination is a crime. The prisoner's cell is being called a public place in this case. In prison, toilets are in the cell. Therefore, the state is forcing the inmates to commit a crime every time they use the toilet. Thus, one would reasonably expect that the male organ in question would regularly be visible, self-gratifying or not.

Sexual acts are a biological necessity for human beings, especially men. Any law that disallows masturbation, even if it is in a prison cell, is at least potentially a violation of the Eighth Amendment's prohibition on cruel and unusual punishment. The ruling in this case is wrong, and his lawyer ought to appeal.

EDIT: The ABA Journal reports today that seven more inmates are being charged by the same female deputy. Writers in the Miami papers are suggesting that this is a large waste of tax dollars. I'd have to agree.

Dissecting the Debates, Part 1

2007-07-24T23:18:00.000-04:00

It has now been 24 hours since the YouTube/CNN Democratic Debates, and I'm finally putting in words what my opinions were of the debates. It's a shame that half the questions were posed directly to Ms. Clinton and Mr. Obama. I think (as a member of a third party) debates are often the only chance for lesser-known candidates to get a word in edgewise (when was the last time you saw front page news about Mike Gravel or Ron Paul?). So, while I thought the format was generally very creative, I thought questions aimed specifically at the front-runners ought to have been cut back.

I'm no Democrat, and so I watch the debates with the eye of a skeptic. The Democrat I like is Bill Richardson, who has the most "libertarian" views of them all. He's the only one that doesn't like tax increases, the only one who supports gun rights, and the only one whose solution to Darfur is reasonable (boycotting the 2008 Olympics to get China to pressure Darfur is genius, and an option far-too-often overlooked). I also believe that governors tend to make better presidents than senators. Senators are legislators, which means they make the laws. The president is not a legislator, and thus the experiences of a legislator are less valuable than those of a governor, who was him- or herself a chief executive.

That being said, I think Richardson came off poorly in the debate. I liked his video segment, but his answers just didn't seem to be well put together. I've read his writings, and I know he's brilliant. He just doesn't speak well in this debate format.

My distaste for Barack Obama grew even more last night. We counted the number of times he skirted the question or changed topic. It was just about every time he spoke. He doesn't seem to have solid ideas at all, and, while popular to the younger voters, just doesn't have (yet) what it takes to lead the country. This debate showed it. His answer that bothered me most: his response that the only reason his children went to private school (University of Chicago Lab School) was because he taught at the university. A good answer would have been, "I sent them to private school because I believed it was in their best interests." At least there he would have been honest. And I think many parents can relate. It's not "giving up on" our public schools to do what is in the best interests of you children. It's called being a good parent.

I enjoy Mike Gravel in these debates. While I don't think he has a chance of winning, I love that he's so self-deprecating, and that he spends the rest of his time tearing down the other Democrats. Not one for party unity, he seems to have the (reasonable) assumption that if more people hate another candidate, his chances increase. His best answer: when asked who his favorite teacher was, he said it was the teacher who helped him overcome his speech impediment, helping him learn to speak, so he could do so little of it at the debates.

Dennis Kucinich. Wow. What can you say about a man like that? He is the epitome of a single-issue candidate. I'm sure he has other opinions, but his basic argument in every answer is that he was the only one to have voted against the Iraq war and spending on the Iraq war every time. Again, at least he's tearing apart his fellow Democrats.

Joe Biden, while sometimes a bit abrasive, has the most realistic view of the Iraq situation. He proposes slicing the country into a confederation. At least his plan accounts for the fact that Iraqis hate one another, and you'll need to separate them somehow for the fighting to (mostly) end. And he would bring on Dick Lugar as Secretary of State, which is a smart move. I did NOT care for his smirky comment about Tennessee in response to the Red State Update question about Al Gore. Not that he was going to win Tennessee anyway. Nor did I like him saying that the gun owner wasn't mentally qualified to own the firearm. Way to sound like a jerk.

Chris Dodd had the most entertaining video clip (vote for the guy with the white hair for the White House). But otherwise he was unremarkable. Give credit to the lack of questions his way, perhaps, but his most worthwhile solution was to change the entire federal fleet of vehicles to hybrids (a good call, since the #1 polluter in the world is the U.S. government). Not so keen on his opinions about health care. Then again, I'm not a fan of ANY Democratic solution to health care.

John Edwards may have turned on the southern gentleman charm a bit much last night. I like him as a person, especially since he's one heck of a lawyer, but I'm not sure about his presidency. His solution for health care was the first and most complete out there (a pathetic attempt by Mr. Obama followed, which Edwards won't let him forget). It's still universal health care, but at least he's reasonable about it. He covered the bases well when asked about talking to his kids about sex. If nominated, this guy might actually win. At least now he uses his hair as a laughing point.

Read into it all you want, but I've saved Hillary Clinton for last. She's probably the smoothest talker on the stage who still answers questions. I wasn't a fan of Clinton before this debate, and I'm certainly not any more entranced now. Doug Hass covered one of my big issues with her very well back in February, with her talk of taking oil company profits. Too liberal for my blood, or as she prefers, "progressive" (a word used by all great communist leaders). On the other hand, at least she had the guts to say she wouldn't automatically talk to Castro and Chavez (unlike Obama) within the first year.

I have to say that I like the notion of "the people" submitting questions to the candidates, even if they do go through several layers of selection from obviously biased individuals. I dislike the time limits imposed, though I understand why they're there. But you can't answer a question like "How would you solve health care?" in sixty seconds.

Some friends and I will be submitting some questions for the Republican debates. Look for us in September!

WW You D?

2007-07-21T02:50:00.000-04:00

Hypothetical situation:

You're a law student. You're spending your Friday night at a local bar listening to a band. As you and your friends "bang your hair" to the sounds of the 80s, you see two bouncers removing another patron of the establishment. One bouncer has the man by the neck; the second kicking the guy's feet and pushing them along. The patron has a look of confusion and shock. The bouncers throw (literally) the guy out of the fire exit, and proceed to kick the guy several times in the ribs before closing the door. What do you do?

A) Walk out the door, help the patron up, and offer your advice on torts.
B) Tell the bouncers that they were out of line (and prepare to be strangled and kicked yourself).
C) Contract local police to a gross abuse of power by the bouncers.
D) Stand quietly by and watch someone get treated like crap.

The People You Meet

2007-07-16T19:03:00.000-04:00

It is incredible the diversity of the people you meet in law school. Not just in terms of race, gender, sexuality, and the like, but the pure mindset of the others. So far, almost everyone has had a personality that is enjoyable, or at least insightful into worlds I have never known. This excludes our two main gunners, whose personalities are generally unpalatable. However, this is not to say that every idea everyone has is one with which I could agree, or even understand. Case in point.

Today in class we started discussing "To Catch a Predator" like scenarios, where the police entrap or entice (depending on your viewpoint) adults online trying to seduce underage persons. After class, one student mentioned to me that he disbelieved in age of consent laws. I couldn't let this go, so I walked with him and tried to wrap my head around his reasoning.

He explained to me that there should be no such thing as statutory rape. He believes that, in the interest of personal freedom, any two individuals should be able to do what they want with their bodies. I should point out that I believe this too, but only when the two persons involved are adults. Anyway, I asked him if he meant persons of any age, using an example of a nine-year-old girl who "wanted" to have sex with a fifty-year-old man. He said such a scenario would be fine, if the girl really wanted it.

I argued that the purpose of statutory rape laws were to prevent older people from taking advantage of particularly persuadable young people. He suggested that they were for the sake of prevention of pregnancy and STD in young people. The notion that the government worries about five-year-olds getting pregnant is one I cannot understand.

He made an interesting argument. He proposed that there would be a license that people younger than 18 could get that would give them permission to have sex with anyone they wanted of any age (all over 18 would automatically get the license). The license would operate much like a driver's license, in that the person would be required to have a knowledge of what he or she was about to do, and that they could appreciate the consequences of their actions. By having them jump through such a bureaucratic hoop, he suggests that young girls would get what was coming to them if they chose to have sex (since, in taking the test, they would be demonstrating consent). He likens this to a person who gets into deep credit card debt and have to pay it back three years down the road.

It was at that point I chose to end the conversation. I'm going to work on an argument to refute this notion (since apparently saying that young people can fall prey to perverts too easily is not sufficient).

I should emphasize that the guy is a generally good guy, and we've had many deep conversations about law and philosophy. But nonetheless, it's incredible the people you meet.

Party News

2007-07-10T15:17:00.000-04:00

More good news from the Washington Times today. Just as I was disenfranchised with the two-party system several years ago, it seems that more and more of the American people are also losing faith in both parties. From the article:

"Polls show that fewer Americans are calling themselves Republicans or Democrats and the number of Americans unaffiliated with either party has reached an all-time high — good news for Libertarians, say officials of the nation's third-largest party.

"The Libertarian Party has had an 18 percent increase in membership since January, said Shane Cory, executive director of the Libertarian National Committee....

"A survey released last month by Rasmussen Reports found that a record share of Americans, 32.9 percent, identified themselves as neither Republican nor Democrat.

"The Rasmussen poll — conducted in May with a sample of 15,000 adults — found that the percentage identifying themselves as Republicans (30.8 percent) dropped for the fourth consecutive month, while the percentage of Democrats (36.3 percent) decreased for the third straight month, following trends that began for Republicans in the middle of 2005 and Democrats in January 2006."

I can imagine this trend continuing through the entire 2008 election cycle. As both parties spend more time bashing the other side, the people in the middle might realize that, in that respect, both major parties are correct.

If I've said it once, I've said it a thousand times. Vote Libertarian.

Magister rerum mens (Mind is the Master of Things)

2007-07-09T20:22:00.000-04:00

The current discussion in class is Mens Rea. The concept of a guilty mind is one of the cornerstones of our criminal justice system. Mens rea accounts for free will; in essence, man is responsible for his actions because he chooses them. While it is not always so simple, crimes are punished, in part, based on the levels of intent.

Aside from the usual issues of general/specific intent and scenarios involving intoxication, modern neuroscience is changing the way we look at human behavior, and thus, how we should punish wrong doing. This article in the New York Times magazine discusses some of the impact of brain-monitoring technology on the judicial process.

Generally speaking, there are two issues with using such technology. First, should we allow biological deficiencies as a defense against crimes? Second, should we use this technology to "predict" who is more likely to commit crimes? The article does a good job covering these issues, but I'd like to discuss a couple points in regards to the concept of mens rea in criminal law.

Under the Model Penal Code, there are generally no strict liability crimes. A crime always requires some guilty mind. This means having one of four mental states: purpose, knowledge, recklessness, or negligence. If a defendant has a growth on his prefrontal cortex that causes him to act in a way that is criminal, should we hold him accountable? Perhaps he knows the difference between right and wrong, yet still pushes someone down a flight of stairs. With fMRI scans, among others, we can establish that the growth may cause anger or rage in response to certain stimuli. How would punishing the individual meet our purposes of punishment? While the goal of incapacitation would be met, we cannot "deter" an individual whose brain makes him commit a crime, and without surgery (and perhaps even with it) we cannot "reform" the individual. Yet a brain growth doesn't necessarily make one "insane" by our definitions. Further, wouldn't taking scans of a suspect's brain to determine their guilt in a crime be a violation of the ban on self-incrimination?

A striking second problem is that of holding individuals accountable for their predispositions. Let us suppose that we know that a growth in a particular area makes a person 1000x more likely to lose control of their rage and kill a person. Would it be fair to lock them up without an actus reus? If we punished thoughts, no man would be free. It leads to imagining horrible futures like that in Minority Report (don't get me started on how wrong punishing "precrime" would be).

I prefer the antiquated concept of free will. But modern science seems to be coming closer and closer to proving that free will is nothing but a combination of chemicals mixing in the right proportions at the right moments. In that sense, are any of us free at all?

Nanny State Strikes Again

2007-07-09T00:24:00.000-04:00

First of all, before I get started, I want to give a shoutout to the several blogs that have linked to mine in the past week or so. I have all of them in the Blogroll to your right, but I appreciate the warm welcome to IU Law from Doug Hass and Kyle Michael, and of course the links from Evan Schaeffer are always appreciated.

This was a sad week in Indiana for civil liberties. At the demands of the General Assembly, Indiana modified its seat belt laws to require use for all occupants of a motor vehicle, with a few exceptions for farm trucks, mail carriers, and newpaper delivery persons, among others. I simply cannot agree with this law and its alleged benefits for the public.

I agree completely that seat belts are a good idea. For the love of mercy, wear a damn seatbelt. Since we were kids, we've been raised to know that seat belts make driving much safer, and news stories abound of what happens when you don't (like Governor Corzine's incident in New Jersey when his SUV was driving 91 mph). Plain and simple, if you don't wear a seat belt, you are taking unnecesary risks in an age when stupid drivers are everywhere.

That said, the government has no place telling me how I should behave in my space. Who is harmed when I don't wear a seat belt? Well, unless my body flies out of the car and happens to hit another vehicle or human being, only myself. I agree with laws saying that parents should buckle in their children (duty of care). And I mostly agree with laws that make seat belts in cars mandatory (though my libertarian beliefs lead me to believe that a car company would have to be stupid not to install them anyways, simply because sales to educated [or common sense-using] consumers would drop). But telling me that, as an adult, I can't make up my own mind about my own safety is ridiculous.

Sure, there were 899 seat belt deaths in Indiana in 2006. Again, I'm all for safety. But when the government has to take care of us, we've lost everything that gives us free will, the essence of any free society.

I also oppose these laws from the standpoint of a law student. Generally speaking, I distrust laws criminalizing omission. There are times when such laws are necessary (requiring lifeguards to act to save drowning children, requiring parents to feed their children, and other scenarios where there is a duty to act). But criminalizing NOT acting for one's own good is government coercion. Think about it. Blacks defines coercion as "compulsion by physical force or threat of physical force". What happens if you choose not to wear your seat belt? Punishment by the state.

Perhaps the law is bad also because it encourages arbitrary enforcement. If I get pulled over in my Benz wearing a suit and listening to smooth jazz, I am probably less likely to recieve an actual citation than the poor black kid driving a beat-up Lincoln. Further, police may use this law as an excuse to pull over "suspicious" vehicles for a chance to get a whiff of that potentially pot-laced air. I am not saying that police are naturally corrupt, or that these scenarios will necessarily happen, but it doesn't take much of an imagination to see these problems in the law.

This is the latest in a string of government attempts to make us all better off by taking away our freedoms. It's the little things that count. This may seem minor (like surrendering trans-fats), but it preps us for losing more freedoms in the future. At some point we have to say, "Enough is enough; we can take care of ourselves."

I would love to get some feedback on this if you have a moment. Do you agree/disagree with my position?

Criminal Meiosis

2007-07-05T20:53:00.000-04:00

Having been in class for three days now, I have noticed that there is an interesting group mentality beginning to show. It's almost like meiosis, in that our class is quickly dividing into groups. Not social groups, per se, but the so called "study group". Let me explain.

On day two, we were given two cases to analyze under a specific statue and the void-for-vagueness doctrine over lunch. Interestingly, the class split into two types of person: the types who wanted to go it alone, and the types that sought other human contact. Being in the latter, I found two guys that seemed reasonably intelligent, that I had gone out with the week before, and that I thought might contrast well with my mindset. At that moment, our cell divided from the others. I had to turn away good friends, perhaps better friends.

Over lunch, the three of us actually came up with answers that were fairly close to the "correct" answer given by the prof. And we worked quite well together, each contributing ideas that built upon the others for a full legal thought. We agreed that this was the ideal study group.

Fast forward to today. Again, we had fairly deep thought lunch work, so we decided to have a working lunch. This time, however, someone else wanted to tag along. None of us wanted to be "that guy" that refuses to share answers, so we allowed it. After a fairly unproductive lunch, we gathered another unattached soul, and lost the first. Again, our group didn't work as efficiently as it did on day two.

There is an exchange that goes on in this situation. As law students, we recognize the importance of networking and being social with one another. After all, our legal life will be dependant on these people. And yet, there must be a cutoff. When the engine runs fine, you don't need to keepadding parts. Sure, you may get supercharged here, or you might get a speed boost there. But as you go, there is a diminishing marginal return on additional study partners. Where do you draw the line?

The (Migratory) Birds and the Bees

2007-07-03T18:43:00.001-04:00

Having completed two full days of law school, I feel like I made a great choice. Not just a great choice coming to Indiana Law, but a great choice in going to law school period. In these discussions, I feel at home. It feels good to sit at a lunch table and bounce legal theories off study partners. This is me in my element, and I feel like I'm ready.

The first day went surprisingly smooth. After a brief spiel by some of the deans, we were officially introduced to Dean Robel as the first third of the Class of 2010. It felt good, looking around, knowing that these people will be the folks with whom I spend my next three years. It became very real, as if all the dreaming and hypothesizing of the past year had finally materialized.

I feel comfortable saying that Professor Baude is an amazing professor. Everything you hear about law professors being tremendously witty is true. One minute we're discussing swarms of bees forcing us out of our homes, the next we're talking about whether an individual migratory bird needs to migrate in order to be migratory. We've had hearty discussions about voluntary reflexes, and how Baude told his son robbers wouldn't break into their house. Burglars would.

At this point, Crim Law is primarily philosophical and much less black-letter law. Why do we punish people at all? Why must laws be made in advance of crimes? Why don't we let judges "make" criminal law, while we let them create property and tort law? These sorts of questions are deeply thought-provoking, and they are a very good place to start the study of law. I can't imagine taking other law courses without this basic background. In that respect, I feel that the summer start program was the best use of money I could ever want.

Though the start of class meant the end of a solid week of going out, I have a feeling that I will enjoy my time in the classroom as much as my time out of it. I truly love this.

Until next time, try not to appear drunk in public, and keep your clipped-wing geese from jumping into my alfalfa fields.

I should clarify that this blog is chock-full of inside jokes that exactly 67 people understand. Sorry to the rest - take Baude, and you'll get it.

The Changing of the Minds

2007-06-29T13:53:00.000-04:00

Even though classes haven't started yet, it seems that law school is already having a mind-altering affect on us. My experience in the last couple days has demonstrated this affect.

Law school seems to bring together a fairly diverse set of individuals. The only common factor seems to be that we are all smart, did well on the LSAT, and got good grades in college. Everything else is up for grabs. In my class, there are a fair number of libertarians, a large number of liberals (this IS Bloomington, after all), and I'm sure at least a few ultra-conservatives.

This week a few of us have been going out, and we got to discussing politics (as happens often when I'm around). One of my friends, a registered Libertarian, was telling me how he disagreed with the death penalty in all cases except treason and terrorism. Now, I am a firm believer in the death penalty, at least when guilt is 100% (or 99.9%) positive, and the crime took the life of another. This is just my personal belief, and I don't generally push it on others.

The following day, he had finished some of his reading for the first day of class, and discovered that perhaps his opinions were incorrect. You see, our first class in Criminal Law, and the first reading is about the purposes of punishment. The reading raised a good point about why the death penalty should exist. Let's assume that the death penalty is abolished, and that capital crimes earn life in prison. Well, as you may or may not know, so too does armed robbery. So in our hypothetical world, if an armed robber knows he is about to be caught, and thus will recieve life in prison, he might just start shooting. After all, a few murders on his hands won't gain him any more of a severe punishment.

While it is reasonable to assume that not all criminals think things out with such logical reasoning, we must believe that one of the purposes of punishment is to act as a deterrent. As such, many of the philosophical ideas that make us who we are will fall by the wayside as we begin to "think like lawyers".

And that's without having been in the classroom once.

Requiescat in Pace

2007-06-19T13:58:00.000-04:00

As a once and future Hoosier, my deepest sympathies go out to the family and friends of Coach Terry Hoeppner. The most important thing a coach can do is begin and keep traditions. Coach Hep did that, and his presence will surely be missed, both on the field and off. From all of us in the law school, rest in peace, Coach.

The Week in Ridiculous Legal News

2007-06-12T01:37:00.000-04:00

One of my biggest pet peeves is government hypocrisy. You know the type: you can't own guns but we can, you can't grow marijuana but we can, you can't generate nuclear power but we can. Well, this story out of Pennsylvania really has my gears grinding.

At a routine traffic stop, a police officer noticed that a passenger in the stopped vehicle had a video camera and was taping the interaction between the officer and the driver. The camera was originally off, but when the officer yelled at the driver, the friend thought to himself "maybe this cop isn't following all the rules" and started taping. After the officer took the camera, half a dozen more police officers showed up and arrested the teen for illegal wiretapping. In Pennsylvania, it seems, any recording of another individual without their knowledge is wiretapping.

This raises all sorts of issues with me. First of all, the patrol car has a video camera recording audio and video from every traffic stop. The police can tape you, but you can't tape them. Beyond that, though, I think officers ought to act in a way that suggests that they could be getting taped at any time. It is the responsibility of ordinary citizens to keep the government in check, and tapes of police beatings and other police misconduct often result in a cleaner police force. I'm thinking specifically of a video of an off-duty cop beating a bartender half his size in Chicago a couple months back. Government creating laws that can be used to subvert an honest check of government power is downright wrong.

In other ridiculous legal news, strippers in strip clubs apparently can be too naked. 14 dancers were cited for excessive nudity. In California of all places. Nothing against California or anything, but you would think a lovely liberal paradise would realize that the purpose of a strip club is to, I don't know, see naked people. Haven't the police got better things to do? And what happens to the club after these women (at least, I assume they were women) were released? It gets hit with a possible administrative review by the Department of Alcohol Beverage Control. So, was the liquor what made the dancers get naked? Or was it the sweaty singles? California, you confuse me.

And thus it begins...

2007-06-01T22:06:00.000-04:00

Today I received my first "be prepared to discuss" letter from the law school. In just 30 days, I will be sitting in a classroom, listening to and learning from Professor Baude, my classmates, and perhaps even myself. I've always heard that the moment you realize you've begun is when you get this letter. Wouldn't you know it; I heard right. Law school has never seemed so close. I'm nervous, I'm excited, and I'm hoping I'm prepared. 42 pages? I can handle that.

With a month to go until the beginning of "the next three years", I have spent more time thinking about why I chose to go to law school. I've never been shy about the fact that I want to enter politics, with the ultimate goal being the governor's office in Indianapolis. It's the reason I talk to everyone I meet, the reason I read everything I can get my hands on, and (to be honest) the reason I wake up in the morning. I don't believe that I could serve my fellow Hoosiers without being an attorney, and truly understanding and appreciating the law. The law is the one thing that binds us -- our whole society -- together.

Today was my last day at my job. As I shook the hands of the steady stream of well-wishers, I felt as if I had made real connections. Sure, I had worked there for two years, and they had become like family. But most of the people, as they shook my hand, promised me a vote. They promised the vote of their friends, their family, and their communities. As I talked to my supervisor, it was clear that, while he wished I would stay, he knew I was destined for bigger things. It was if he was proud -- proud that he had helped shape me into a leader. As I walked out, I knew that the best thing I could do for these people, my friends, was to become an attorney and speak on their behalf.

We all have reasons to go law school. Some do it for prestige; some do it for money. Some do it for the challenge; some do it because they can't decide on anything else. But I didn't choose it for any of those reasons.

Eternally optimistic, I want to change the world.

Gas Out! Or: How I Learned to Stop Worrying and Love the Gas Companies

2007-05-15T10:30:00.000-04:00

Did you buy gas? In case you were unaware, today is an official boycott on gas. Someone on the internet declared it, and it became law. Several times today I was reminded not to buy gas, and an e-mail circulated through the company. I think most of the things I've read have been similar to this, so I reproduce it here for discussion:

Don't pump gas on May 15th!!!

In April 1997, there was a "gas out" conducted nationwide in protest of gas prices. Gasoline prices dropped 30 cents a gallon overnight.

On May 15th 2007, all internet users are to not go to a gas station in protest of high gas prices. Gas is now over $3.00 a gallon in most places.

There are 73,000,000+ American members currently on the internet network, and the average car takes about 30 to 50 dollars to fill up.

If all users did not go to the pump on the 15th, it would take $2,292,000,000.00 (that's almost 3 BILLION) out of the oil companies pockets for just one day, so please do not go to the gas station on May 15th and lets [sic] try to put a dent in the Middle Eastern oil industry for at least one day.

Now, being a person with both an economics background and a little thing called common sense, I know that this is completely and utterly pointless. I hate to the be the one to burst the bubbles of the thousands of American youth that think that they have the whole system figured out, but then again, bubble bursting is a specialty of mine, so let's go ahead and get started.

First of all, more people drive than internet users. To be effective, a boycott would need everyone to get together on this. By limiting your rallying cry to internet users (who, perhaps, spend more time at home or the office and thus drive less), you limit the effects of any boycott.

Then, the author goes on to list the number of internet users. Wow, 72 million internet users... now that is an impressive number. That's almost a quarter of the population of the U.S. But, oh wise prophet, you forgot to account for the fact that a large portion of those who use the internet aren't even yet of driving age. And those between 16 and 18 might still get gas money from mommy and daddy, thus not caring about the cost of a tank of gas. I recall that when I was in high school, I got a gas card. When gas first hit $1.50 (oh, those were the days), I didn't care. My parents picked up the tab. My brother now has the same deal. If gas goes up the $5.99 a gallon, he will be relatively unfazed. The world goes on, and we still need to get there.

But, for the sake of argument, let's assume that the 73 million are all driving age adults, who each drive one car, and like to drive a lot. Hell, maybe they all drive silver American sports cars that drink gas like their owners drink gin and tonic on the rocks with a twist of lime. Now we get to some cold hard numbers. First of all, 2.29 billion is not, nor will it ever be, rounded to 3 billion. Bad rounding. Very bad. The author goes on to let us know that if all 73 million of us don't buy gas for one day, we are removing that amount from their pockets. Now, put aside the fact that maybe we don't all need to buy gas today, and thus wouldn't have bought the gas anyways, and thus are not removing cash from oil-covered pockets anyways. By the logic and numbers presented us, we could calculate that $2.292 billion a day would mean an annual income of $837.15 billion (in the logic of the author, that's almost 1 trillion!). $837 billion. Roughly the nominal GDP of Mexico. Very impressive. Especially when you consider the nominal GDP of Saudi Arabia is only $348.6 billion, the UAE is $168.3 billion, Kuwait is $96.1 billion, and Qatar is $52.7 billion (all numbers courtesy of the International Monetary Fund). Even if the entire economy of these four massive oil producing nations were oil based, it still wouldn't add up to that number. And since the boycott is aimed specifically at Middle Eastern oil industry, we should still feel free to buy from any American oil company, right?

But putting aside all the flawed reasoning, bad data, and high hopes discussed thus far, the most obvious defect in this entire scheme is that the vast majority of participants in this "gas out" are playing a zero-sum game; that is, while they may avoid buying gas today, they will inevitably buy gas tomorrow or bought it yesterday. There isn't a loss in the pockets of the gas companies. You're simply giving it to them earlier or later. And the gas companies, fully aware of what is going on, have accounted for this. You know how I can tell? Yesterday, in the 8 hours I was at the office, the price of gas shot up 40 cents a gallon. Today, the prices dropped. Money says prices go up tomorrow. Gas companies, those bastions of free-market economics, know that they can induce people to buy by dropping the price today. Buy it today, and you might actually get a good price (good being a relative term, of course).

How could you hurt the oil companies, oh optimistic youth of America? Don't buy gas for a month. Convince all your friends to carpool in a hybrid. Take over the NYMEX and use basic economics to drop the market-set price of oil to a range you deem reasonable (ah yes, traders set oil prices... always so overlooked). Convince every investor that oil is a bad investment, thus killing the demand, and the price.

Alternatively, you can do what one of my friends did: get a job at an oil company. He doesn't pay for gas, and gets more money when gas prices go up. All you have to do is relocate to Texas and sell your soul! At prices like these, it's a bargain!

Until then, it sucks, but I will keep buying gas, and, like it or not, so will you. In fact, the gas station across the street just dropped their price 15 cents. Excuse me while I get in line behind the elderly gentleman and his wife who clearly didn't get the e-mail. Fill 'er up.

*Pop* goes the bubble.

67 Days to Go

2007-04-26T20:13:00.000-04:00

One of the great things about IU is that they have a summer start program, where a few of us can get a head start on the whole law school process. It's only one class (Criminal Law), and it's only a couple hours a day, four days a week, for five weeks. The school says in their sales materials that it's a chance for students that have been out of school for a while to get back into the groove. While that doesn't exactly fit my description (I graduated in December, so I've only been done for a couple months), I am thinking of it more as a two-part adjustment to law school.

First of all, since half of the value of law school is networking, it will (hopefully) give me a chance to get close to a small group of 1Ls, some of whom may be in my section in the fall. Moving in a couple months early acquaints me with my future classmates, gives me an idea of the type of people Ill be spending three years with, and lets me feel a little more comfortable.

The second reason is a little more utilitarian of me. Since 1L grades are based solely on exams, figuring out how to take them well will mean the difference between high scores and less high scores. If I were to start in August with the majority of my classmates, I would be taking my first exams in December. One follows the other, so I would have no time to 'adapt' to this type of exam. If, by some chance, I bomb the first one, I wouldn't have a chance to figure out how not to bomb the rest. On the other hand, taking an exam in August means that, even if I bomb on my CrimLaw exam, I will still have an idea of how to better prepare for exams in December. I hope it doesn't come to that, but you never know.

In case it's not obvious, I'm starting to freak out a little bit at the prospect of law school. I've heard enough horror stories of exams from other bloggers that I'm concerned. I've never been 'challenged' academically, so I'm completely unsure if I'm capable of studying the way one needs to in order to succeed. I've talked to people online, people that will be my classmates, and they all seem so much smarter than me. There are the people with doctorates, the people who come out of the Ivy League, and people that just plain seem better than me.

For now, all I can hope is that my incessant reading will pay off. Aside from the periodicals (The Economist, BusinessWeek, Reason, and Wired, et al), I've been trying to digest heavy material (reading law journals, old textbooks, et al). I've also been making my way through a couple books on Criminal Law, law school exams, and legal writing and reasoning. Hopefully this all works. 67 days to go.

The Need for Privatization of a State-Owned Oligopoly

2007-02-28T10:03:00.000-05:00

Anyone acquainted with Indiana politics is aware of the 'trouble' our governor, Mitch Daniels, has gotten into with many of the state's residents for selling huge portions of previously state-run industries to private investors. His biggest 'mistake' was leasing the Indiana Tollway to an overseas conglomerate. Now he has privatized (or is trying to privatize) the Indiana Lottery, Indiana's Medicare program, and the construction of the proposed Illiana Expressway and the farther-south Commerce Connector. His critics (every Democrat, many Republicans, and a fair portion of the state's residents) say that he is butchering the state, selling it to the highest bidder, and screwing the public in every way. The General Assembly has passed laws giving them the final say on all sales, and putting a time limit on all such leases (any lease longer than 2 years must get Senate approval). What's worse, there's a good chance that Mr. Daniels won't be reelected in 2008. But 'My Man Mitch' is on to something here; he just hasn't gone far enough.

Most uneducated people would see this privatization plot as a bad thing. They don't believe that a foreign investor will provide fair prices and fair service on the Tollway. They don't believe that a private investor can run the state lottery or Medicare program as well as the bloated Indiana government. These views demonstrate how uneducated the Indiana population has gotten.

There is one purpose for government and one alone: to protect the rights of the individuals that it governs. Not to protect them from themselves. Not to give them everything they ever wanted. Just to protect their right to property and freedom. Since Roosevelt's New Deal, government has put itself in all sorts of places that it doesn't belong. As a result, those markets have become inefficient. This is the necessary side effect of Keynesian economics: markets that are influenced by an outside force cannot do what they do naturally.

Any person who has ever taken a course in economics (at least those that understood it) can tell you that markets are inherently efficient. Free markets, that is. When there is a demand, some producer will supply it. If prices increase, quantity sold will decrease, with few exceptions (prestige goods, for example). These are basic laws of economics, and they cannot ever be false, if left to the market. A producer can't produce low-quality, high-price goods for long, because no one will buy them, or another producer will enter the market and produce higher-quality, lower-priced goods. Even monopolies are limited in their power over consumers in a free market.

However, when government enters the picture, markets lose their efficiency. Take the food industry in America as an example. We've all heard about Upton Sinclair's The Jungle that exposed the disgusting habits of the Chicago sausage industry in 1906. Partly due to Sinclair's exposé, the national government formed the Food and Drug Administration to regulate the food industry here in America. That's a good thing for consumers, right? After all, the FDA wouldn't let bad food into the market, or allow drugs that kill people into the market. What most citizens don't realize is that the Chicago sausage industry cleaned up their act because of public outcry, not the FDA. Why? Because no consumer would buy sausage until the plants were cleaned up, or until the price was so low that they didn't care about the humans and rats in it. The FDA didn't do that; the free market did.

But surely the FDA should exist to regulate drugs, right? Libertarians like myself say no. People are better at deciding what to put in their bodies than the government. Let's say Pfizer creates a new drug that completely cures AIDS. A patient wakes up, and his HIV is gone. Now, this could save lives right now. RIGHT NOW. But the FDA wants to 'protect' consumers, so they will put this drug through trials (the same ones Pfizer ran) to test its efficacy, a process that takes over a year, and costs millions (which drives the final price up). During that time, more people die from AIDS, and taxpayer dollars are spent on a cure for something that most will not contract. All for what? Well, the FDA says that it makes the drug market safe. But remember The Jungle?

Tell me, would you buy a drug that you heard kills every person that takes it? Of course not. What if you heard it kills 50% of people? Would you still risk it? Depends on the pain you're in, I suppose. But the point is that no rational person will take a drug that will kill them. Which means that Pfizer, wanting to continue to make billions, NEEDS to produce a drug that works and is cheap, or else NO ONE will buy it. You can't run a multi-billion dollar industry if you have no customers. It is the best interests of the food and drug industry to put out products that will not hurt people. The FDA is a waste of money, doing exactly what the free market would do instead.

Now, I could write dozens of examples of government programs that waste money by doing what the free market would do anyway, but I want to get back to a point I made earlier. I said that, in privatizing major industries in the state, Governor Daniels had not gone far enough. There are still massive industries in Indiana that are inefficient, that don't do their job, and need reform that government cannot provide. The best example of this is education.

I support the abolition of public schools.

Now, I know what you're thinking: Ben, we can't take away the free education provided to poor Hoosier children! Ben, we can't fire thousands of teachers who do the best job they can do! Ben, you don't actually mean eliminating state-controlled education! Well, we can, we can, and I do. I know it sounds radical, but it is necessary to let children learn from the best, and bring back a level of intelligence we haven't seen in this country since the 1940s.

As I discussed earlier, free markets are efficient. Those with government control are not. Proof? See the decline in test scores of Hoosiers compared with those in other states. See the decline in test scores of Americans compared with those in other countries. We were the best. Now we rank lower than thirteen other countries in math scores, including places like Singapore and Hong Kong.

The idea behind public schools was that every child could receive a free education, and that, as a result, we would all be better off. First of all, dispel the notion that it is free. Everyone pays for it through taxes, even those of us who have no children, or who send our kids to private schools, or whose children are grown and out of college. There is no such thing as a free education. It just seems to cost less because everyone pays for it, even people who don't use it.

Wouldn't an all private school system be too pricey though, since the cost per student would be spread only over the people using the service? No, and the free market explains why.

Let's say there are two tubs of butter in the super market. They are identical in every way, except one is half the price of the other. Which do you buy? Well, if you are a rational consumer, you buy the cheaper butter. The butter companies, in perfect competition, must lower their prices to compete. The same thing happens with schools. If two schools are identical, then you would rationally send your child to the cheaper of the schools (unless one of the schools is a prestige good, where you pay more for the name alone, like Harvard). But, obviously not all schools are exactly the same.

Back to butter. Let's imagine you are shopping for butter again. There are two brands. They both cost the same, but one has fewer calories, more nutritional benefits, and the tub even looks prettier. Which do you buy? A rational consumer buys the better brand. So butter makers have incentive to raise quality, because consumers want better butter. The same thing applies to schools. If you have two schools that cost the same, but one has pumped out twelve Rhodes scholars, half the graduating class won full-ride scholarships, and the football team makes it to state every year, and the other is full of druggies and most end up at trade-schools, which would you send your kids to? The higher quality school wins again!

If schools in a free market want to compete, therefore, they have to provide the best education for the lowest price. Some schools will find a way to get more talent out of lower-paid teachers. Others might find that spending more increases test scores. Naturally, some schools will be better than others and some will be cheaper. Just like butter. There are lousy butters that barely get the job done, but are dirt cheap, and there are heart-healthy butters that cost more than my car. Here, consumers decide what matters more to them, prices or quality. People that want the best will pay more, but people who just want something to put on their bread will buy the best they can within the price range they are willing to spend.

This brings me to a second myth, that public schools make education available to all students. No market would have only two options: if we all had to choose between a buying a Maserati and a Ford Pinto, you would find a lot more people riding bikes or taking the bus. No market can sustain only having substandard cheap goods or overpriced quality goods.

Let's say you're an investor, looking for a safe moneymaking venture. You see a county in rural Indiana where there are two schools. One is a run-down building with broken windows and test scores in the bottom 5%, but that is virtually free. On the other side of the street is an elite boarding school, providing teachers with doctorates and which is better in every way, except that the price tag is higher than the cost of the homes in the county. Don't you see a middle ground -- a market for the taking? You could build a school that was a little more expensive than the rundown hole, but still provided good education. Don't you think a lot of rational parents would choose the middle ground? Of course. Now imagine a system where, at any time there is a niche to be filled, someone fills it. That system is called the free market. Do parents want a school with a top-notch soccer program? Someone can come in and build a school that has one, or one of the existing schools will have incentive to build one.

Critics of this plan will point out that I keep mentioning a scenario where poor kids would have to choose an inferior school. But a free market wouldn't allow that. After all, if poor families had to choose an inferior school, there would be a demand for a cheap yet moderate quality school. Sure, it wouldn't be Cornell, but it would be cheaper than Cornell too. If there is a need or want in a free market, someone will provide for it.

What about public schools though? Well, in most places, you have only one choice for a public school. You can either pay a lot of money for a private school or go to the one school that is in your district. What if that school is lousy? Well you're out of luck. This is what is happening to the poor now. They pay for education at the point of a gun (see what happens if you don't pay those taxes that fund the school) and yet they get a poor education. The Gary schools are a good example. Most people in Gary can't afford to move to a city that has high quality public education, and can't afford the private school options. Where does that leave them? A school district with bad teachers and unsafe hallways. I doubt that they think public schools are worth what they pay.

Historically, private schools have been better than public schools. Why is that? Is it because of the price tag, which allows the schools to spend more per student than the state? No. It is because private schools have to compete, not just with each other, but with public schools. They have to increase quality, because if they don't, then the parents will just send their children to the free public schools. And because they cannot afford to charge parents a huge tuition (for the same reason), they have to find ways of keeping per head costs down. They have to be run efficiently, like a business. Public schools, on the other hand, spend more per head than an annual salary at the poverty line (over $20,000 in many places). They waste money, because they do not have to compete to keep students.

Now, I have been looking at this from the view of students and parents so far, but what about the other side? Where are teachers better off? After all, the teacher's union makes sure that every teacher is paid highly in public schools (often to the dismay of taxpayers).

Let's go back to our hypothetical free-market Indiana. A teacher has five schools to choose from. Which school does he or she choose? The best paying, of course. So schools, wanting to attract the best talent, will raise teacher pay and benefits, and will do so cost-effectively to the students. No rational teacher would go to the lowest paying of five equal schools.

What about the quality of teachers? Well, in a completely free market, teachers would have every incentive to be as well trained as possible. You wouldn't see a group of teachers that were dropouts from other college majors. You wouldn't see teachers who don't teach. Why? Because they would be terminated as soon as someone better showed up. What about the union? A free market school could say "I don't want union teachers at my school." Would that annoy the union? You bet. But fewer teachers would join the union. Teachers would have to actually work to keep their jobs, because without incentives, they don't. Better teachers would get the raises (just like in a company, where better workers get better raises). Worse teachers would either be forced to get better, or would have to take lower pay.

If all of that isn't convincing enough that a free market in education is more efficient than a public school system, consider this last tidbit. This whole time I've been talking about incentives: incentives to lower prices, incentives to raise quality, incentives to fill a void in a market. Incentives are powerful things in economics. Incentives are why people act. Does the public school system use incentives properly? You decide.

Under the current system of public education, money is thrown at underperforming schools. The rationale is that more money will solve the problem by letting schools pay teachers better, or provide better facilities. Schools that are at the very top of the pyramid, those that produce the best test results, are seen as doing their job well, so they get the same amount, or less, the next year. Tell me, lawmaking supporters of public education: what incentive are you giving to underperforming schools? The message you send is, "If your scores get lower, we will give you more money. Keep going lower, and we will keep giving you more money. But beware: if you get too good, we'll cut off your money supply."

What kind of system rewards people for not doing their job? An inefficient one.

Mr. Daniels, you've done a great job privatizing the state so far. You just haven't gone far enough.

SJR7: A Legal and Philosophical Analysis of the Indiana "Gay Marriage Ban"

2007-02-23T23:50:00.000-05:00

Ten days ago, the Indiana Senate passed Senate Joint Resolution No. 0007 (SJR7) in a 39-10 vote. This mimics the same vote in 2005, which passed 42-8 in the Senate and 76-23 in the House. The text of this bill, kept the same as the 2005 bill, was read by the Senate Committee on Judiciary, and was reported favorably with a "Do Pass" recommendation. The text of the bill would create an additional section in Article 1 of the Indiana Constitution, to follow immediately Section 37 (the elimination of slavery in the state). The exact text that would be amended is as follows:

Section 38. (a) Marriage in Indiana consists only of the union of one man and one woman. (b) This Constitution or any other Indiana law may not be construed to require that marital status or the legal incidents of marriage be conferred upon unmarried couples or groups.

If passed by the Indiana voters, Indiana would be the 28th state to constitutionally define marriage.

The procedure to amend the Constitution of Indiana is no small task, and there is only one method of amendment, as opposed to the Central government (commonly called the Federal government, a misnomer since the word federal actually encapsulates both state and national government), which has many ways to amend. As described in Article 16 of the Indiana code, the amendment can be put forth by either branch of the General Assembly. If a simple majority of both houses agree, the bill is entered into the journals, and must wait for the next Assembly (presumably 2 years later). If the bill passes both houses with a simple majority without any changes, the bill is sent to the electorate at the next general election. If more than 50% of the voters that turn out approve the amendment, the Constitution is so changed, and every judge in Indiana must respect that law.

I should point out that Indiana law already defines marriage as one man and one woman. That law was originally more of a dig at polygamists that homosexuals. But the wording is clear, and the law stands. So why do we need to amend our Constitution if it's already a law? This is a question asked by most of the opponents of the bill, but it's quite simple. The Republicans in control of the Indiana GA are actually correct when they say that an "activist judge" could overturn the law. That's because that law is unconstitutional, and, frankly, I'm surprised that the law hasn't been struck down yet.

The Indiana Bill of Rights in Article 1 clearly states in section 23 that "The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens." So by allowing heterosexual couples the privileges of marriage (including tax breaks, adoption permits, insurance, hospital visitation rights, and much more), the GA has granted a class of citizens privileges over another class. This is right in line with not allowing blacks to marry (wait, we did that for a while too) or allow races to mix. Obviously, the law on the books now is unconstitutional, and the GA Republicans know that. They may be bigots, but they're not (all) stupid. So to make that law constitutional, they would have to change the Constitution. Removing Section 23 is probably not going to happen, since it would allow the GA to prevent blacks from voting or women from driving. So they have to add a section to justify their law.

Let me talk a bit about the philosophy of this law. Now, the same type of thing has been discussed on the National level, and it is my opinion that any Central mandate on marriage would be unconstitutional, and downright wrong. The Tenth amendment gives the states rights to control every not discussed in the Constitution, including licenses, law enforcement, and, yes, marriage. If any one is going to make a law banning some sort of marriage, it HAS to be the states, and there is no way to justify it any other way. That's right in line with allowing the Central government to control education (which, they do, and since they took over in the 1940s, Americans have gotten stupider and have received poorer educations than they ever did under state control).

But even though states have the legal right to define marriage, should they? Where I come from, dictionaries define, not politicians. Does the state have the right to tell churches what they can use their money for? No. Does the state have the right to tell churches how to pray, or who to pray for? No. So why can the state tell churches who to marry (or not)? Most churches won't marry same-sex couples anyway, but those that will have determined that it is religiously okay to do so. And if a same-sex couple wants to get married in a civil ceremony at the courthouse, why shouldn't they be permitted to? Who does their union hurt?

Okay, yes, the state would receive fewer tax revenues because of marriage deductions. That would be a drop in the bucket for Indiana, whose GDP is about the same as the Netherlands. Any other harm done? "Uncomfortable" situations when neighbors meet, maybe? Come on, every television show has done an episode where gay neighbors move in, and while at first the family is uncomfortable with how to talk to them, eventually they come to the conclusion that same-sex couples are just as normal as they are, if not more so. That's not "liberal media" spreading a message, it's how it works.

If you grew up in a conservative white-collar suburb like I did, you can remember the day that the first black family moved into the neighborhood. At first, everyone was nervous. Change is unusual, and we responded in different ways. But eventually we realized that they were just like us, that those kids could play tag and kick-the-can just like we could. The same thing would happen in a neighborhood if a gay couple moved in. At first, sure, there would be a lot of staring and a "there goes the neighborhood" sort of atmosphere. But that wears off, and normalcy returns. The state allowing same-sex marriage would hurt no one. Yet it would make citizens of the state happy. God forbid that government ever allows that.

I really hate that this law is even put forth in a state I love so dearly. I really do love Indiana, and I want to live here for the rest of my days (less maybe 8 years in D.C.). But I find it offensive that our lawmakers would even suggest such a law, and I will find it equally reprehensible if the electorate of this state writes bigotry into our Constitution. All for what, to prevent "activist judges" from interpreting the law as they see fit (hello, that's what judges do)? It doesn't take an activist judge to see that the law is unfair and unconstitutional. I haven't even walked into a law school classroom yet and I can tell you that.

So what do I do? Do I abandon the state that I love so much? Do I become part of the "Brain Drain" and jump off a ship that is clearly heading for an iceberg? No. I can understand people of my generation wanting to get off this ship, but I'm staying. Positive change can come just as quick as negative change.

I think this law will pass, and I believe the electorate of Indiana will pass the amendment. That's how little faith I have in the electorate of Indiana. Don't get me wrong, I'm conservative, but this goes too far. A real Republican would never vote for this law, because it's a case of the state telling people what they can and cannot do, and real Republicans hate that. Where they got the notion that being Republican meant being a religiously conservative person, I will never know. This is just another case of the government doing more than we pay them for. I'm a Libertarian, and this amendment is just one of many reasons why.

In conclusion, there is no justification for allowing a ban on gay marriage in our state. Legally and philosophically, there just isn't a convincing argument to be made for the law, and proponents of the amendment prove this by using religion to support their cause. But it will pass, and will become law, unless the minds of Hoosier voters turn dramatically.

Even if this law passes, don't leave the state as part of the Brain Drain. The State would be wrong, and the voters too, but I swear to you that when I get control of the Governor's office, that amendment will be wiped off the books. I can't get elected -- freedom-minded people can't get elected -- if the people that believe in their ideals leave the state. Stay here. Be a Hoosier. Love Indiana, even when you occasionally disagree with it. Only then will the love be returned.

And vote NO on SJR7.