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Archive for the ‘The Law’ Category

…On Some Damn Fine Judging.

Posted by Steve on August 27, 2009

I have often been critical, here on this blog, of the American legal system, the judiciary of multiple countries, and multiple tenets of American common law. So, I feel like I ought to try and balance that by giving props when I can. So, this is by no means news since it’s about a case that was decided back in May, but Maryland’s highest court, the Court of Appeals of Maryland, totally hit one out of the park when it unanimously upheld Baltimore Circuit Court Judge Stuart R. Berger’s ruling on the inadmissibility of junk pseudoscience in Blackwell v. Wyeth. They ruled that in Maryland, in order to be an expert witness you have to actually 1) be an expert 2) who used legitimate methods 3) in a legitimate field 4) that’s relevant to the testimony you’ll offer. If there’s a court ruling that more strongly and explicitly establishes adherence to the scientific method as a prerequisite for testimony on scientific matters, I’m not aware of it. So Maryland Judiciary, a tip of the hat to you.

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Posted in The Law | Tagged: , , , , , | 1 Comment »

…On Chinese Democracy and Indian Courts.

Posted by Steve on October 26, 2008

On Wednesday morning, I heard the title track from the new Axl Rose & Studio Band Guns N’ Roses album on Y101 in Richmond, where I was working all week (which is why I didn’t post any. Posting to a personal blog while in company-paid-for housing on a company-paid-for internet connection using a client-owned laptop just doesn’t seem appropriate to me) and will be again all next week. Got to say, it’s what I expected: Rose’s voice, which while at times annoying (Knockin’ on Heaven’s Door would’ve been so much better with damn near any other singer) was distinct, has been destroyed and is mostly gone, and the important parts of Guns N’ Roses aren’t there anymore. Guns N’ Roses was good back then because of Izzy Stradlin and Slash, and that was it. What we have here is a band by that name, but no Slash and no Stradlin. In short, no good.

As to the title, well, I imagine Rose had some sort of irony in mind, given China’s long history (China has the oldest written history of any extant civilization) of being not democratic. I guess it’s as good as any album title – those aren’t really things I care about.

Onwards from China to their neighbor, India, and old news: courts in India allow snake oil as evidence and base convictions on it. The specific snake oil? The claim that an EEG, fMRI, or other brain-imaging technology can be used to determine whether or not a person has memories of committing a crime. Um… no. It can’t. Back when Niels Birbaumer and his research assistants developed a system that allowed paralyzed patients to type with EEG in a lab setting, it took months of training each patient, and then around 80 seconds just to get a single letter. I think that’s a good illustration of how little use EEG’s got for much more precise determinations than, “Yeah, this brain’s been damaged”. Granted, Birbaumer’s team used a different EEG brain wave (which, bear in mind, just means the voltage difference between an electrode on the scalp over the brain and an electrode somewhere like the earlobe or the chin, not a measurement of the activity in any specific set of neurons) than this Indian approach. Good thing (in a way) an American has patented a system based on the same underlying EEG wave – and far better that it’s been been thoroughly debunked (PDF, I recommend you download and then read – always works better for me with PDFs on the internet).

My hope is that this sort of snake oil would be excluded in all U.S. courts under Federal Rule of Evidence #702 (especially subpart 2: the requirement that “the testimony is the product of reliable principles and methods”) and its state analogues. That may not be the case, what with “widely accepted” being optional, rather than mandatory, under the Daubert test. Although, as of 1998, at least in civil cases, the rule was pretty much “brain scans are inadmissible except as the answer to the yes no question, ‘Is some unspecified thing wrong with this brain at this time?'”. That’s where it should stay – indefinitely. Because face it, a machine that can actually detect guilt or innocence is every bit as realistic, and likely to happen in the same time frame, as a machine that lets Scotty beam us from place to place.

And, as an aside, it appears the accuracy of DNA profiling, which of course doesn’t use the entirety of a person’s DNA, has possibly been severely overstated.

Posted in From the News, Music, The Law | Tagged: , , , , , , , , , | Leave a Comment »

…On Those Proposed HHS Regulations.

Posted by Steve on August 31, 2008

It’s been now nine days since I reported the Department of Heatlh & Human Service’s release of a draft regulations for public comment. I wanted to talk about those some. This will probably get hell of long, so…

Read the rest of this entry »

Posted in The Law | Tagged: , , , , , , | 1 Comment »

…On Experience and The Presidency.

Posted by Steve on August 28, 2008

I pay attention to the world around me, and thus I have become aware that once again, the unnecessarily long process of a U.S. Presidential Campaign is ongoing. And, it seems, much has been made of some candidate’s “experience”, and what that signifies regarding their ability to be “Commander-in-Chief”. I just plain don’t understand why anyone would bring that up. Way I see it, “experience” is only ever relevant when it reveals incompetence, dipshittery, or some other strong disqualification. In other words, having lots of experience can reveal negatives, or it can be irrelevant, but it can’t ever be a positive. Likewise, not having any experience is irrelevant, since that experience either wouldn’t matter or would reveal something bad.

Now, here’s why I think that:
The U.S. President has exactly 14 powers/duties/authorities, all but one of which are defined in Article II of the U.S. Constitution. They are:

  1. “The executive power.” This is a very vague, open-ended power, but I take it to mean that Congress and the Courts are Patrick Stewart and the President is the guy who has to make it so when they tell him, “Make it so.” As I see it, this makes the President the Henchman in Chief, or perhaps the Assistant Manager in Chief. Administrative experience is indeed relevant – except that millions of people have experience in receiving a set of instructions from one person and directing a group of people to carry out those instructions. Like, say, the assistant manager at every fast food restaurant in America, or every department manager at every department store in America, or… yeah. While it’s possible someone actually doesn’t have any experience at this, it doesn’t strike me as a likely-to-be-valid criticism of a candidate for President of the United States.
  2. The authority of being “commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States.” This is, of course, the origin of the “Commander-in-Chief” term used to designate the President. But please note: it’s a very limited Commander-in-Chiefship, as it’s scope is over only one thing, the armed forces, and there constrained by the fact that under Article I, the entire armed forces are subject to Congress’s rules. Thus, you can call the President the Commander-in-Chief, but that’s misleading since he’s only the Military Commander-in-Chief and still subordinate to Congress in that role. Of course, “Ex Officio Highest Ranking General and Admiral” is too much of a mouthful. And no President’s actually exercised their authority as Commander-in-Chief since Madison took control of Barney’s battery at Bladensburg in 1814. So… this strikes me as mostly a ceremonial, almost trivial, aspect of the President’s job. You know, like throwing the first pitch at the World Series and having tea and crumpets with foreign royalty. For a slightly different take on this power, I highly recommend this.
  3. The authority to “require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices.” The President can make cabinet members and agency chiefs answer his questions in writing. Even granting for the sake of argument that there exists such a thing as meaningful experience at making people answer questions related to their job, what would that experience impart that its lack wouldn’t?
  4. The power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. Now, that’s some combination of the powers of forgiveness and of something akin to jury nullification. I actually have very little experience with giving people forgiveness because I don’t believe in it, but really… Experience has nothing to do with being Pardoner-in-Chief, unless it’s lots of experience at forgiving people too readily.
  5. The power to make treaties, provided two thirds of the Senators present concur. Experience at negotiation could be relevant – if the actual negotiations and treaty-draftings weren’t delegated to professional staff. Telling the staff what to negotiate for and what to write in the treaties, that’s the aforementioned administrative experience – and a matter of ideas, as in, “What will this candidate try to get put into treaties.” That’s a matter of ideology and goals, not of experience.
  6. The power to nominate and appoint, by and with the advice of the Senate, a whole heap of people unless they’re being appointed to a job that Congress said someone else would do the appointing to when it created the job. Named jobs consist of Ambassadors and “judges of the Supreme Court.” Makes me wonder if Congress could have vested appointments for Circuit and District Court judges in the Supreme Court. After all, Article III does specifically call those “inferior courts”, and it’s “inferior officers” where Congress gets to choose who does the appointing. I can speculate about that, of course, because it’s something where “experience” isn’t pertinent.
  7. The power to temporarily appoint the people described above without the Senate’s approval because the Senate isn’t in session. Experience still just isn’t pertinent.
  8. The duty to tell Congress about the state of the union “from time to time.” I love how that’s turned into a yearly thing rather than an “as often as I feel like it” thing, and while experience with public speaking may make him more comfortable, I don’t see where it’s really necessary.
  9. The duty to recommend to Congress such measures as he shall judge necessary and expedient. This is the second most important part of the President’s job, and… EVERYONE IN POLITICS HAS EXPERIENCE AT IT. So what if someone has more experience at it? It just means they’re that much older. That much more out-of-touch with what’s pertinent, that much more stuck in the past, and that much closer to the inevitability of Alzheimer’s and death. Not to mention, this is somewhere that ideology and ideas count for everything. That someone with a decades-spanning track record of writing and voting for mediocre or even pernicious legislation is an inferior candidate to a 35-year-old with good ideas, worthwhile values, and desirable goals should be self-evident to everyone who isn’t part of why we have wolves and other large predators.
  10. The right to call Congress to emergency session and to tell them how long their break’s going to be if they can’t agree on their own. Experience matters why? Oh, it doesn’t.
  11. The duty “to receive ambassadors and other public ministers.” He has to stand on protocol and attend black-tie galas with foreign dignitaries. Etiquette could be relevant. Patience could be relevant too, having to put up with all that silly fooferah. Experience? Meh.
  12. The duty to take care that the laws be faithfully executed. Most important part of the job, and that’s a matter of integrity. Other than that, see above about being the guy who makes it so.
  13. The power to commission all the officers of the United States. I’m pretty sure this has something to do with promoting military officers, but honestly don’t know for sure what it means. Don’t think anybody’s got experience at it, either.
  14. The power to veto legislation. Third-most important part of the job (well, maybe second), and the sole part that comes from Article I. It’s about judgment, and judgment doesn’t come from experience. Judgment comes from intelligence, thoughtfulness, inquisitiveness, and proper values. An idiot with a lot of experience is still an idiot and will still make execrable decisions, while a smart rookie can kick ass and take names.

Posted in From the News, Here be Politics!, The Law | Tagged: , , | Leave a Comment »

…On Doing it Twice in a Row.

Posted by Steve on August 21, 2008

Read these and weep, Ames. I’ve now scooped you twice. The topic from before has now been released for 30 days of public comment, as announced in a third post on the Secretary’s blog.

A quick scan reveals the following:

  1. The words “contraception” and “contraceptive” do not appear.
  2. The rule applies to “sterilization procedures” and abortions.
  3. It states “This regulation does not limit patient access to health care, but rather protects any individual health care provider or institution from being compelled to participate in, or from being punished for refusal to participate in, a service that, for example, violates their conscience” but does not provide analysis as to how not compelling providers to participate in the service does not limit patient access. I assume this is because of the flaws fundamental to U.S. law that actions are not judged solely by their effects and that any intermediation, however tenuous, between an action and its effects severs culpability.
  4. I’d say more but it’s a quarter to 7 and I have to be somewhere at a quarter after.

I encourage you, if you have an opinion on the matter, to submit a public comment. Instructions are contained at the beginning of the proposed rule. After all, active participation in government is a good thing.

Posted in From the News, Here be Politics!, Other people's blogging, The Law | Tagged: , , , , | 3 Comments »

…On the Perversity of “Running with the Land”.

Posted by Steve on July 29, 2008

It has become a common practice for housing developers to enter into “bulk-billing” agreements telecom contracts. Common enough, at least, for this article about them to come to my attention. In these, the developer enters into a contract with a telecom provider, whereby a specified combination of phone, TV, and internet is provided to every house in the development for a specified cost, locked in for a time frame up to and including multiple decades, and no other telecom provider will be permitted to gain right-of-way or easements within the development. These contracts are then incorporated into the covenants on all the houses sold.

So, a company writes a contract with another company, granting them a monopoly over an area of land, then writes the contract into the sale contract in such a way that no matter how many times the property is bought and sold, buyers must assume the obligations of the contract and can’t quit the service – whether they want that service, or can afford that service, or not.

Now, there’s a group on the web working to get the FCC to ban the practice, and I support their efforts. Thing is, I think they’re targeting a specific symptom of a much larger core problem: the very existence of deed restrictions and covenants.

Ordinarily, contracts only bind the parties to the contract. It’s called the rule of privity, and it’s a pretty good thing for what I should think are obvious reasons: it’s the reason that if Joe enters a contract with Bob specifying that Shelly will perform some action for Bob, in exchange for which Bob will give Joe money, Shelly doesn’t have to do squat. It’s an excellent rule, the rule of privity.

So, under privity, a covenant or a deed restriction shouldn’t be binding on subsequent owners. After all, you buy a house, you aren’t who entered into the contract putting that restriction on the homeowner, so you shouldn’t be bound. Right?

Oh, nope! See, that covenant/deed restriction, it includes a nifty little dodge around privity: it’s written as a term in the initial property sale contract, along with a term that specifies it must be offered and agreed to in all future sales. In other words, it gets made a perpetual, perpetually non-escapable, and perpetually non-severable contract of adhesion. Not to mention, this adhesive contract with no privity – to either buyer or seller, once the property is resold – has been grafted into a contract based on extensive offer & counter offer, a property sale, to create a truly dreadful Moreauean hybrid. When you buy or sell property, the buyer and seller can negotiate every term of the contract – except the covenants and conditions and deed restrictions the Homeowner’s Association adopted in 1962, or the developer tacked into the deed when they subdivided it before building the house and selling it to the first resident three owners ago, or that the now-dead old man who lived there ten years ago negotiated with his also-now-dead neighbor.

Seems to me a good goal to work for would be getting deed restrictions and property covenants declared voided and henceforth banned as per se unconscionable.

Posted in Developer Abuse, From the News, The Law | Tagged: , , , | 3 Comments »