Friday, February 24, 2012
Silky Pony & co-star negotiate return of sex tapes
I, for one, am relieved by this news: "Sex tape of John Edwards [&] mistress to be destroyed within 30 days after lawsuit settlement."
My relief flows from the general proposition that it's a good thing to reduce, when possible, the total number of things in the universe which, if seen by me by accident, might make me want to stab myself in both eyeballs with knitting needles.
The first version of the story I'd read, from TheHill.com, reported that "all copies of the tape will be destroyed within 30 days." If accomplished, that would be a rare exception to the general rule of thumb about sex videos in the digital/internet age.
But if you read to the end of the AP story, you'll find that "[i]n the settlement, the Youngs pledged to seek the destruction of any copies of the sex tape that may now be in the possession of the federal government." Meaning there are such, and meaning that the feds haven't yet made any such commitment. Nor, likely, could they — not while six felony and misdemeanor campaign finance charges are still pending against Edwards in connection with his co-star.
Just in case, I'm going to avoid acquiring knitting needles.
UPDATE (Fri Feb 24 @ wee-smalls): Local press coverage indicates that we'll certainly hear and see more about the sex tape:
Hunter sued Young after Young's tell-all book published in February 2010 described the tape. The 21-page consent judgment and permanent injunction does carve out a notable exception to the disclosure injunction: items already sold by the Youngs as part of a movie deal based on the book.
"Ms. Hunter was demanding money up until very recently," said Robert Elliot, the Youngs' attorney....
This makes it sound like a financial wash, a walk-away deal where neither side paid any cash to the other. As for what's coming soon to your local motion picture theaters — or, maybe, not?
Information about the sex tape and the list known as "The Slut Club," as described in "The Politician," were specifically exempted from the non-publication order. The Youngs had sold the rights to the tape to Aaron Sorkin of Colvin Road Entertainment as part of movie deal for Young's story and book, according to the agreement, and Elliot said that anything said in the book is fair game.
However, in the agreement filed Thursday, Hunter explicitly retained the right to take the Youngs to court again with regard to the movie if more information stemming from the property returned to her is publicized.
Conspiracy theorists will immediately seize upon Aaron Sorkin's close ties to the Democratic Party and draw enthusiastic inferences and conclusions therefrom. But the Sorkin connection is actually old news. The old saying was that "Politics is show-business for ugly people" — but now it's just all an ugly blur, isn't it, even though some very pretty people are involved?
Thursday, February 16, 2012
Is it okay for Obama to tell voters that Obamacare's individual mandate is not a tax, while telling the federal courts that it is?
I have been following the ongoing litigation about the constitutionality of Obamacare, and I have very strong opinions about it. But I haven't written much about it here because there are so very many other conservative and libertarian law-bloggers who are doing such a good job — including many of them who are directly involved in the litigation — that I haven't felt I had anything novel or useful to add. However, I was much struck by the concluding paragraphs of Wisconsin conlaw professor Ann Althouse's post today entitled "The Obama Administration clearly states that the individual mandate is not a tax" (all emphasis hers):
Well, I suppose it depends on what the meaning of the word "tax" is. It's one thing for the purpose of political argument: Democrats in Congress didn't want to call it a tax when they were jamming it through, and Obama doesn't want to call it a tax now as he's promoting a budget with no new taxes for those making less than $250,000 a year. But for the purposes of legal argument, you might want to characterize it as a tax. The serious question is whether the Supreme Court will accept that characterization for the purpose of upholding the law, even though for political purposes the word was not — and is not — used.
And the answer to that question depends on whether the Justices think that analysis of the political dynamics matters in the interpretation of the scope of Congress's enumerated powers. Whatever the vigor of the Court's role here — and obviously much is left to Congress's political will — it is crucial for the people — exercising their political pressure on the Congress that works its political will — to see what is happening. Even in the thrall of judicial restraint, the Court should reject an argument based fooling the people about what Congress is doing. The people are especially vigilant about new taxes, so denying that something is a tax is an important maneuver in the political arena. If that move is made to ward off public outrage, it should not be easy to turn around win the favor of judges by calling it what you did not dare tell the people it was.
As I said in a comment to her post (reprinted here without blockquoting, slightly edited and expanded here for clarity):
Every statute passed by Congress and signed by the POTUS (or passed over his veto) must be justifiable by some provision of the United States Constitution. That is essential to the maintenance of our Republic as a government of limited, enumerated powers — a government subordinate to, not the dictator over, its people.
Flacks for the Obama Administration, including many lefty lawyers and law professors, would love to persuade you, the people, that they're entitled to rely on one part of the Constitution, the taxing and spending clause, as a justification for Obamacare while they're arguing in the federal courts over its constitutionality, and yet to deny elsewhere that Obamacare involves any "taxes."
"This is complicated lawyer-stuff that only us high priests of penumbras and the living, breathing Constitution can possibly comprehend," they suggest. "Go back to your circuses — look, look, they're handing out more free bread! FREE BREAD!"
(Or maybe just free condoms and birth control pills.)
Democrats are the masters of cognitive dissonance. That's not in dispute and won't change. What might change — as between November 2008 and November 2012 — is the number of rubes who remain enthralled by their shameless hoaxes.
Monday, February 06, 2012
George Romney never had a little tip jar
Of the controversy surrounding Mitt Romney's profession that he isn't "concerned about the very poor," Stephen F. Hayes of the Weekly Standard artfully explains a rather subtle but important reason why "movement conservatives" were dismayed.
They understand, of course, Romney's full intentions and the entire context of the remarks. And like Romney himself, movement conservatives contemplating Romney as the potential GOP nominee wish he could better repress these self-inflicted rhetorical wounds; his considerable communication skills are offset heavily by something of a tin ear.
Yet even leaving these issues to one side altogether, movement conservatives reacted to Romney's in-context argument with disappointment, according to Hayes, because Romney
seemed utterly unaware of a long strain of conservative thought on the morality of capitalism. He seemed oblivious to the argument — central to the conservative movement — that free markets allow the poor to transcend their position, that poverty is not destiny....
This was, in other words, an opportunity that Romney missed, one in which he could have made a compelling pitch for why even the poor ought prefer Obama's defeat. Hayes continues:
But [Romney] received some help from Marco Rubio, who had shared his own story in the Republican response to the president’s radio address a week earlier.
“My father was a bartender,” Rubio said. “And I thank God every night that there was someone willing to risk their money to build a hotel on Miami Beach and later in Las Vegas where he could work. I thank God that there was enough prosperity in America so people could go on vacation to Miami or Las Vegas. Where people felt prosperous enough to have weddings or Bar Mitzvahs and, by the way, could leave tips in my Dad’s little tip jar. Because with that money he raised us. And he gave me the opportunity to do things he never had a chance to do.”
I think Hayes gets it about right when he concludes:
If Romney wants to return to Tampa to accept the GOP nomination, he would do well to spend more time before then with Rubio. And maybe, in a more formal way, afterwards.
That much seems a realistic hope, I think. It's sad, but probably true, that a key reason why Romney is so obviously uncomfortable about his own wealth and success in particular — and perhaps so uncomfortable in his own skin more generally — is that he hasn't internalized and committed to this morality of capitalism. I'm sure Romney understands the theory; on other occasions I've heard him articulate it well (if perhaps too dispassionately for my tastes). But to curtail these sorts of awkward gaffes and turn them into something which could help him win November if he's the GOP nominee, Romney would need to claim, own, and release his own embarrassment over, his own successful striving to achieve the American Dream.
That is probably not a realistic hope, however; and thus the potential importance to Romney, as it was to McCain, of a Veep nominee who can help him mend fences, rally the faithful — and yes, preach the morality of capitalism.
Saturday, February 04, 2012
Duty, breach, and bottle rockets
Librarians, taxonomists, cartographers, philosophers, priests, lawyers — many professions categorize things, trying thereby to define and explain them. One of the first times I got a sense of the sweep of the law, and its elegance, was when I learned the definition of "tort."
A tort is a noncontractual civil wrong.
A client, Paul, comes to a lawyer and says, "Doug hurt me and I need justice!" Paul's lawyer must not only decide what he can do for Paul, but what sort of law will be involved in getting Paul the relief he seeks from Doug. How did Doug come to hurt Paul? Was a contract involved? No? Was a crime committed? No. Then it must have been — a tort!
As legal reasoning goes, this is roughly the equivalent of the great chef boiling a pot of water: basic, basic.
Of course, Paul's and Doug's respective obligations toward, and rights against, one another depend on their respective positions and relationship. If Doug was Paul's next-door neighbor in a condo complex, Paul may have different expectations of Doug than if Doug had been, say, a business competitor from another continent. But one of the law's lowest common denominators — and therefore one of law's most commonly applied classifications — is simply that of the "reasonable person" who coexists with other reasonable people in the society subject to our laws. The civil law — tort law in particular, and negligence law even more particularly — implies a duty upon each of us, as a reasonable person, to use due care not to harm the people or property with which we interact. If one breaches that duty, one has committed the tort of negligence.
When tort lawyers plead their clients' cases in written petitions to the relevant court, then, those lawyers have, for centuries, been careful to touch all these bases: duty, breach, resulting injury.
And such is the magnificence of the law that almost anything you can imagine a person doing that might hurt some other person — so long as we're not talking crimes or contracts — can be dealt with through civil tort law. It's all about how you frame the legal issues to fit your particular factual setting, and, in particular, how you identify the relevant duty, breach, and injury.
That, I think, fully explains this case, in which the plaintiff alleged that the defendant owed, and breached, a duty to use reasonable care "not to fire bottle rockets out of his anus."
That would be the defendant's anus; sorry for the imprecision, but of course you can imagine a slightly different set of facts where a parallel duty and breach might arise with respect to the plaintiff's own anus. Law professors delight in setting up factual hypotheticals like this, and then selectively varying one fact at a time to see when and why the outcome might change. At some point during the variations on this particular hypothetical, there's a near certainty that flying monkeys will become involved.
Majestic and subtle is the law. Isn't it? (Hat-tip: InstaPundit.)
Beldar congratulates the PhilBob & bride
I didn't have the famous Philip Bobbitt as a professor at UT-Law. But when I was the book review editor for the law review, he was one of my favorite faculty resources — good-naturedly sharing on request (and my requests were frequent) his opinions about which just-released books were worth reviewing and who, among the law faculty members of the country's best law schools, might be an appropriate target for us to solicit to write a particular book's review. He never steered me wrong. Indeed, I'm confident that "You should talk to Bobbitt, a lot" has been advice handed down to generations of incoming Texas Law Review book review editors by their immediate predecessors.
A gregarious intermingler with the law student body, it was common to find Professor Bobbitt sharing (and occasionally even buying) pitchers of beer at the Posse-East near the law school. And when I was touring Europe after graduation and clerkship with a fellow UT-Law grad, my late and dear friend Craig Youngblood, we dropped in — unannounced, or maybe announced with a phone call that resulted in an immediate invitation, but in any event on little or no notice — on Prof. Bobbitt at his summer flat in London, where he served us a quite passable afternoon tea. (My recollection is that we talked about the then-just-concluded SALT-II missile treaty, which is to say, by the end of the session Craig and I had learned a great deal about an important topic on which we previously had known essentially nothing.)
Professor Bobbitt is a vivid individual, the sort of person who's clearly remembered decades later by even those who, like me, had only a somewhat passing acquaintance with him.
Congratulations and best wishes to Philip Bobbitt and his new bride, Maya Ondalikoglu Bobbitt!