You Can't Make This Stuff Up

This could only happen in Alabama. (Or Mississippi, or Kansas, or Georgia, or South Carolina, or. . . .):

A woman whose unborn baby was killed in a 2018 Pleasant Grove shooting has now been indicted in the death.

Marshae Jones, a 27-year-old Birmingham woman, was indicted by a Jefferson County grand jury on a manslaughter charge. She was taken into custody on Wednesday.

Though Jones didn’t fire the shots that killed her unborn baby girl, authorities say she initiated the dispute that led to the gunfire. Police initially charged 23-year-old Ebony Jemison with manslaughter, but the charge against Jemison was dismissed after the grand jury failed to indict her.

Yeah, this really happened. (And of course, she's black.)

Health Care and the Social Contract

Jack Balkin has an excellent post at Balkinization about the deeper significance of the Supreme Court's decision in King v. Burwell:

But on a deeper level, King v. Burwell had constitutional overtones. The Affordable Care Act was no ordinary statute-- it was a framework statute like the Social Security Act, the Wagner Act, Medicare, and the Civil Rights Act of 1964. It significantly changed the terms of governance in the United States by reorganizing the health care industry and creating a new guarantee of (virtually universal) health insurance.

This gets into the kind of discussion that fascinates me because it reflects on my basic question: Why do we form societies?

My answer is, of course, "To take care of each other." The ACA, as an aspect of that "common good" criterion for a successful society, is, indeed, one of those foundational pieces of legislation -- as Balkin terms it, a "framework" statute -- that describe the particulars of how we are going to implement part of that taking care of each other.

Balkin's post is worth reading in its entirety. It delves into the history and sometimes gets a little technical, but it's fascinating. The key concept:

Framework statutes that are central to the American social contract-- like Social Security and Medicare, have a special status in the American system of government, and courts understand this implicitly. (That is what made the Court's decision in Shelby County v. Holder so important and so shocking-- it gutted a key part of framework statute from the Civil Rights Revolution--the Voting Rights Act).

In NFIB v. Sebelius, the Supreme Court decided that the creation of a new framework statute designed to guarantee universal health care was a legitimate innovation in American government.

I think these ideas have ramifications for other cases -- Obergefell v. Hodges being of major concern right now. If the Court rules, as most expect it to, in favor of marriage equality, it's going to have repercussions across the spectrum of civil rights, and I don't think it's going to matter how narrowly the opinion is written: once the Court has decided that, for purposes of the fundamental right of marriage, "queers are people, my friend," it's going to be very difficult to exclude us from the exercise of other rights. There's no law in these cases that could be considered a "framework" -- that's the Fourteenth Amendment. What's important here is the Court restating that, yes, the Fourteenth Amendment, when it says "all persons," means exactly that.

Court Filing of the Year

Maybe the decade. It's short, read it -- the fun begins on page two. The set-up is that the prosecutor filed a motion to forbid the defense from referring to him as "the government," as being prejudicial.

Made my day.

Via Discourse.net.

King & Spaulding Pulls Out

That's the firm roped into defending DOMA for the House Republicans under a shady contract that included a gag order for all employees -- whether they are involved in the case or not -- who might want to engage in anti-DOMA activities.

There's huge outcry from the left on this, and comments from the right, to the effect of "defending an unpopular law is going to have repercussions." In fact, Paul Clement, the partner who would have argued the case, put it this way:

"I resign out of the firmly held belief that a representation should not be abandoned because the client's legal position is extremely unpopular in certain quarters. Defending unpopular clients is what lawyers do," Clement wrote to King & Spalding chairman Robert Hays. "I recognized from the outset that this statute implicates very sensitive issues that prompt strong views on both sides. But having undertaken the representation, I believe there is no honorable course for me but to complete it."

Read the full letter at the link.

Let me point out the obvious: No law firm of the stature of King & Spaulding is going to back out of a case because it's unpopular. I'm betting that at least part of the reason is the gag order making it a violation of the terms of the contract for any employee, anywhere, of K&S to engage in any advocacy for repeal of DOMA. My guess, and I admit it's a guess, is that the chairman of K&S heard from some of his partners at length and probably with some degree of heat about how the whole deal stinks. (I say this having heard bits of partners' meetings through closed doors when I worked for a law firm -- and our conference room doors were pretty solid.)

I do wonder why Boehner felt it necessary to write that provision into the contract -- it's certainly not something that K&S came up with, I'd be willing to bet on it. It's beyond overreach, but it's a good indicator of the way the modern Republican party (if you can accept the idea that statement is not an oxymoron) thinks.

The anti-gay right will, of course, make great capital out of this, beating the "evil homosexual activist lobby picking on the civil rights of bigots" drum for all it's worth. I suspect Clement landed W&S in a hot place with its own employees and principals with that contract, but acknowledging that would be inconvenient for the likes of Maggie Gallagher, who would much rather be a very public victim of the people whose lives she's trying to ruin.

I also find it interesting that Clement was able to announce joining a new firm this quickly. Someone had his escape hatch greased and ready. Like maybe he knew this was going to happen.

Or maybe I'm just too cynical.

Judicial Activism

Glenn Greenwald has a clear and somewhat scathing post on judicial activism, based on the recent suit by Dennis Kucinich against MSNBC for breach of contract for disinviting him to the Nevada debate. Greenwald's discussion is telling and, as far as I can see, perfectly apt.

I started hunting down and reading court decisions on a regular basis beginning with the various gay marriage cases in state courts, as well as findings of the federal courts in creationism/ID cases (which go back a lot farther than Kitzmiller), and I did once work in a law office (in itself no qualification in general, save that I'm not stupid nor incurious -- which I guess makes me unsuitable for the presidency -- and legal documents are not all that impenetrable, in spite of what lawyers would like you to think). I've found that, just to take perhaps the most egregious example, the opinion in Goodridge, et al. was cogent and tightly reasoned. It also caused perhaps the loudest screams from the right than any other finding in recent memory, with the possible exception of Lawrence because, as far as I was able to tell, it wasn't "godly" or something like that. The fact that it was a logical and reasonable extension of legal rights to a previously disfavored class seems to have had much more to do with the conservative reaction than its foundation in the Massachusetts constitution.

And you will note, I hope, as you remember back on some of the singular court cases of the last few years, that those most ready to scream "judicial activism" are those least likely to be willing to live under the rule of laws equally applied. (I don't think this is too strong a characterization. We've seen, in the actions of a conservative administration and the statements of conservative candidates, just how much contempt contemporary conservatives have for American traditions and the foundations of our society -- to the degree that I, who have normally voted a split ticket for lo! these many years, would not consider voting for a Republican until there is a major shake-up in that party.)

I do have to say that I'm not so forgiving as Greenwald in imputing the cries of "foul" on the right to mere wishful thinking. Aside from the overt contempt for the rule of law and for American judicial traditions, I see a deeply cynical political maneuver designed to discredit the courts. I do note that the pace of this reaction, reaching to the Oval Office itself, seems to have accelerated in the past six or seven years. From an administration that seems determined to establish that the executive is the only branch of government, this is no surprise.

At any rate, read Greenwald's post. He's spot on.

Creative Copyrights

There's been a huge outcry in recent years about American copyright law, sparked, I think, by the emergence of music downloads and the ease of burning CDs (and fueled by the ham-handed reaction of the RIAA), but affecting everything that is subject to copyright. I've not actually paid much attention to copyright law for years. My own work is copyrighted under the terms of existing law, but I've just begun investigating Creative Commons. It looks interesting, but from my own standpoint, I don't know that it's going to work for me. Any income I derive from my work -- the photographs, mainly -- is predicated on sale of physical prints or reproduction rights. It appears as though a Creative Commons license will impact this in some way, but I'm not sure. (Wading through the FAQ even as we speak.)

For example, if I sell a print, I sell only the physical object; I retain all other rights, including reproduction, so that if someone contacts the owner of the print asking to use it as an illustration, the owner has to refer them to me. I'm the only one who can legally grant permission. It appears as though a Creative Commons license will keep that intact, and doesn't affect the sale of prints at all.

Actually, as I read more, it starts to look doable. I may license all the work at a/k/a Hunter under a CC license.

Intellectual property law is something that, as you might expect, concerns me a great deal. I'm not convinced that current law is as dysfunctional as the "total access" side claims -- after all, it's my work, and I don't see any reason why I shouldn't make money from it. A lot of the instant-public-domain arguments seem to be coming from those who want to make money off someone else's work. I've never found the licensing requirements of copyright law all that restrictive, although that can be dependent on who holds the rights.

Another research project. Just what I needed.