As we enter 2016, a year in which Americans will elect their forty-fourth president, the low theater of “debates” abound, and, on the eve of the Iowa Caucus, little seems clear (or, perhaps, what does seem clear is too disconcerting to acknowledge in published prose). Rather than hazard predictions or projections, with ten months until election day, now is a good time to begin to establish a common presidential platform by identifying issues and positions each candidate can adopt. In the same way that beginning with a presumption of liberty can lead to a more carefully articulated scope of governmental authority, beginning with a voter’s platform of presidential issues and positions can lead to a national and federal agenda driven more by the electorate than the candidates and parties. In that vein, this post proposes a working draft platform:
- Declare Super Bowl Monday a national holiday
- Open the books on extraterrestrial research
- Declare the first Thursday and Friday of the NCAA men’s basketball tournament national holidays
- Devise a plan for the regulation of environmental externalities
- Reform federal law enforcement, including both conventional criminal law and immigration law
- Address student-loan debt
- Simplify the federal tax code
- Clarify a reasonably transparent foreign policy that addresses both the surveillance and killing of civilians, both citizen and non-citizen
- Initiate the updating of the federal domestic infrastructure (e.g., roads, bridges, and railroads)
Feel free to add your planks to the peoples’ platform or suggest revisions to the foregoing in the comment section below.
As we conclude the leftover days of 2015, the nemontemi, preferably with a hopeful eye toward genuine positivity in the new year, a brief pause to remember the muse that is true hatred, a personal distaste that comes from a passionate place of deep emotion. Inspired therefrom can be words so effective, smoldering slow burns punctuated by efficiently biting lashes, true rants, that they are– in something that is apart from and rises above schadenfreude– enjoyable and even beneficial as a result.
One of the great personal feuds of the twentieth century to produce such literary output belonged to Hunter S. Thompson, vis-à-vis Richard M. Nixon. Thompson’s hatred of Nixon generated an entire book, one of Thompson’s best. When the thirty-seventh American president died, Thompson’s obituary, entitled “He Was a Crook,” evidences a true sense of personal loss. It begins:
MEMO FROM THE NATIONAL AFFAIRS DESK DATE: MAY 1, 1994 FROM: DR. HUNTER S. THOMPSON SUBJECT: THE DEATH OF RICHARD NIXON: NOTES ON THE PASSING OF AN AMERICAN MONSTER…. HE WAS A LIAR AND A QUITTER, AND HE SHOULD HAVE BEEN BURIED AT SEA…. BUT HE WAS, AFTER ALL, THE PRESIDENT.
“And he cried mightily with a strong voice, saying, Babylon the great is fallen, is fallen, and is become the habitation of devils, and the hold of every foul spirit and a cage of every unclean and hateful bird.”
Richard Nixon is gone now, and I am poorer for it.
The full program is available here.
Best wishes for safe passage into 2016.
One yearTwoThreeFourFiveSix years and eight days ago today, I started this site with the following statement: “An attorney should always put a statement of the questions presented at the very beginning of any brief unless the rules forbid it.” In that opening post, I tried to map an approach that would guide content then unwritten.
My goal has been to try to ask real questions, not leading or rhetorical ones, in an attempt to reveal something about what underlies our assumptions, ideas, and viewpoints. I’ve tried to at least imply a question in every post, and where I did not, my approach was to put forth a position that invited responsive comments, of which the site received many. Although things have slowed down a bit here this year, with
nearly 3,500over 9,700nearly 14171920,000 views in the first yeartwothreefourfivesix years and eight days, I still think we’re off to a good start.
Thank you for your readership and feedback.
Halloween easily is among my least favorite holidays, but one good thing about this fall celebration is the fun musical possibilities the day offers. On this Halloween, the ninth since Bobby “Boris” Pickett entered the crypt for good, enjoy this timeless sonic spook and stay tuned for something soon on a scholastic scare that should shake the structural stanchions of the law school sphere.
Have a happy Halloween.
But Ruth said, “Do not urge me to leave you or to return from following you. For where you go I will go, and where you lodge I will lodge. Your people shall be my people, and your God my God. Where you die I will die, and there will I be buried. May the Lord do so to me and more also if anything but death parts me from you.”
From their beginning to their most recent page, the annals of human history reveal the transcendent importance of marriage. The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life. Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm. Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.The centrality of marriage to the human condition makes it unsurprising that the institution has existed for millennia and across civilizations. Since the dawn of history, marriage has transformed strangers into relatives, binding families and societies together. Confucius taught that marriage lies at the foundation of government. This wisdom was echoed centuries later and half a world away by Cicero, who wrote, “The first bond of society is marriage; next children; and then the family.”…No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were.
Atticus told me to delete the adjectives and I’d have the facts.
Harper Lee, To Kill a Mockingbird (1960).
To write many words here would defeat the purpose of this post, which is to highlight the expansion in our popular discourse of both the use of extreme descriptors and their likely associated increasing application to mundane subjects. I am not a brilliant sociologist, so I am not sure exactly why everything is so incredibly incredible these days, although I suspect some of the concepts surrounding the notion of the attention economy (e.g., our increasingly-difficult-to-satisfy need for other people to pay attention to us) may be helpful in answering that question.
Whether this is happening, though, is a more readily answerable question, I think. While the NSA still isn’t releasing searchable transcripts for all of our written and verbal conversations, we do have some proxies. One is the Google Ngram viewer, which allows a variety of queries from the text of all of the books Google has scanned into its system. Another is Chronicle, which allows similar searches of the text of the New York Times. Some results from both sources:
These are incredible times indeed.
Please feel free to share the results of your own queries and suggest your own hypotheses or explanations in the comment section below.
If you die in the United States and your death is someone else’s fault, your surviving family members probably can recover legal damages (i.e., money) from the person who wrongfully caused your death. For example, Georgia allows a surviving spouse to recover “the full value of the life of the decedent, as shown by the evidence.” O.C.G.A. § 51-4-2(a). Placing a monetary value on a human life is a notion and, subsequently, a process fraught with moral, ethical, and practical obstacles, but, as democracy is to forms of government, we have come up with scant else in the way of providing a legal remedy to the surviving victims of a wrongful death. (Indeed, the availability of civil wrongful death actions offer these victims at least two things the criminal justice system does not provide: 1) the possibility of receiving tangible compensation– again, in the form of money– for the loss of their family member, and 2) the ability to control the legal action directly, as the plaintiff in the lawsuit, rather than as an observer to a criminal case controlled by a government prosecutor, who is not strictly bound by the wishes of surviving victims.)
If someone decides that you are going to make Alabama your eternal sweet home, though, things will go a bit differently for your surviving kin than they would had you died in neighboring Georgia, or, really, anywhere else in the country. Unlike those in other states, Alabama’s wrongful death statute does not afford survivors the right to recover based, in some measure, on the value of the life of the decedent; instead, Alabama courts have made clear that only punitive damages are available to wrongful death plaintiffs. Atkins v. Lee, 603 So.2d 937, 942-43 (Ala. 1992). Rather than compensating the surviving family of the deceased for the lost value of their deceased relative’s life, punitive damages are designed to punish the wrongdoer and thereby deter such wrongdoing in the future. Instead of the value of the life of the particular deceased individual, in Alabama, the sole measure of damages potentially available to wrongful death plaintiffs is based on the (jury’s view of the) reprehensibility of the wrongdoer’s action:
The amount of damages should be directly related to the amount of wrongdoing on the part of the defendant or defendants. In assessing damages, [the jury is] not to consider the monetary value of the life of the [deceased], for damages in this type of action are not recoverable to compensate the [family] of the deceased from a monetary standpoint on account of his death, nor to compensate the plaintiffs for any financial or pecuniary loss sustained by the family of the deceased on account of his death.
Id. at 943. As the Alabama Supreme Court explained, this restricted approach “rests upon the Divine concept that all human life is precious.” Id. at 942.
Alabama’s adoption of the legislative premise, whether “Divine” or otherwise, “that all human life is precious” is laudable, but the state’s unique wrongful death statute does not necessarily operate to advance the goal of valuing all human life equally. First, it simply does not treat each case identically, as different juries will award different amounts to wrongful-death plaintiffs in different cases (based upon the reprehensibility of the wrongdoer’s action). Second, by taking a purely punitive stance, the civil action essentially duplicates the purpose of any companion criminal action. Third, and related to the second point, it is not obvious that a strictly punitive civil arrangement operates as a greater deterrent on actions resulting in wrongful deaths than the more common, compensatory schemes of other states. Fourth, and related to the third point, the practical effect of this statute is that it is more difficult for wrongful-death plaintiffs to collect in Alabama than it would be if their deceased relative died in a different state, because they must convince a jury of the (degree of) wrongfulness of the defendant’s actions that caused the decedent’s death instead of focusing on the value of the life lost, which can be challenging when the act that caused the death looks more like mere negligence than intentional homicide. Indeed, and fifth, the result of Alabama’s approach is that the wrongdoer effectively is allowed to determine the value of the life lost; whatever label the state applies to the variety of damages recoverable, it seems likely that plaintiffs in Alabama will, for all practical purposes, view whatever they recover in a wrongful death action to represent a measure of what they wrongfully lost.
There is nothing necessarily wrong with enacting idealistic or aspirational legislation. Such pronouncements can serve practical purposes, and a document like the Declaration of Independence would seem to serve as a good example. Legislatures must take care, though, that the immediate practical effects do not serve to undermine, in actual effect, the principled stance taken. When that happens, one rightly wonders about the government’s true aim. Is Alabama’s goal to treat “all human life [as] precious,” or is it simply to make the legal landscape less hospitable to wrongful death plaintiffs and their attorneys?