It's a good thing that we had trained Hollywood film actors on anti-terrorism duty or we would never have known that the September 11 hijackers were practicing their conspiracy before that tragic day. According to Mark Steyn, only actor James Wood noticed that a group of young middle-eastern men looked like conspirators - e.g., boarding without hand luggage, not reading magazines, being rude to the "whore American stewardess." Yet, the more they stuck out, the more everyone who mattered was trained not to notice them.

This is frightening. Americans advised to leave India

This is wonderful. Adam Pearl joined the world today, maybe not during the best of times or in the best of circumstances, but certainly in the best of countries. Welcome aboard, Adam. Your father would have been proud.

According to this article it may be technically possible to state a claim under the Racketeer Influenced and Corrupt Organization Act ["RICO"] against a Catholic diocese if at least two phone calls were made within the last ten years as part of the cover-up of a sexaul abuse claim.

God bless the Charlie Daniels Band for keeping pride in America alive during the dark and hopeless Carter years. Look at one of the lines from the song "In America" where Charlie observes that "and a lot of people [are] sayin' that America's fixin' to fall." It's hard to remember that that really was the feeling that I had as a teenager during that era. I remember the Carter ethos that the winds of historical change favored socialism and communism - in Southeast Asia, Latin America and Europe - and that realism required a recognition that capitalism and limited government were a spent force. Now, twenty-years later, we're still here, and it was the USSR that was "fixin to fall" onto the ash-heap of history. Consider also how fortunate we are as a nation to have September 11 happen after the Reagan revival, instead of during the Carter administration.

In the Marketplace of Ideas, don't even think of turning a profit.

Suppose you make shoes. Suppose left wing radicals accuse you of making your shoes in Third World sweat shops as part of an exploitive economic system. Suppose you decide to explain your view of the issue to the news media, academics and the public. Suppose the left-wingers viewed your statement as false, and sued you for the unfair business practices of defending yourself.

Issue: Would your public statements be afforded First Amendment protection thereby imposing on your opponent a higher standard of proof and the requirement that they prove 'malice?'

Answer: Not in California.

In Kasky v. Nike, Inc. 5/22/02, the California Supreme Court in a 4 to 3 decision held that Nike's statements to the media and to university presidents and athletic directors was "mere" commercial speech which was not entitled to commercial protection. Finding the elements of (a) a commercial speaker [someone who sold shoes], (b) a commercial audience [the public and universities who buy shoes] and (c) a commercial purpose [a desire to sell shoes] the California Supreme Court determined that while there was no constitutional merit in falsity, the policy reasons for the First Amendment do not apply to commercial speech. Those policies, according the Majority, were: (1) the truth of commercial speech may be more easily verified by the speaker than artistic truth; (2) commercial speech is hardier because speakers act from a profit motive and (3) governments traditionally regulate commercial activity.

QED: If Nike wants to speak about global trade, it had better be prepared to have its utterances picked over by legions of dedicated anti-globalist fanatics looking for any possible mistatement.

The dissent in contrast - including Fresno's very own Justice Baxter - focused on the obvious inability to carefully delineate between classic commercial speech [e.g., "buy my shoes because women will find you more attractive"] and political speech [e.g., "don't be afraid to buy my shoes because although the Guatemalan factory in which they were made doesn't meet conventional OSHA standards, the conditions are better for the workers than the alternatives available to them."] The dissent seemed to feel that the political discussion inherent in the speech shouldn't be discouraged.

Conclusion: I think this one goes up to the United States Supreme Court. Justices Scalia and Thomas have been uncomfortable with the commercial speech doctrine -conjured out of thin air in 1942, according to Justice Brown, by the U.S. Supreme Court like a "wizard trained at Hogwarts" - for years. If this case doesn't show why the commercial speech doctrine is a problem, nothing will.

Further, the case does illustrate the content-determines-who-wins approach that is becoming common in First Amendment cases. Critics of Nike, or the free market, can say anything, and they are essentially given immunity for their speech by the First Amendment. Don't like American agriculture? Then start a rumour that apples are contaminated by Alar. On the other hand, if you have a livelihood invested in those industries, then you had best be careful about what you say, or you will be facing a lawsuit for unfair business practices.

Finally, notice the disturbing buried assumptions in the majority decision. Commercial speech is "hardier" because of the "profit motive." In what statist think-tank was this empirical proposition proved? I guess this truism explains why in the USSR, while free market advertising was rampant, political and religious dissent was completely exterminated. A moment's contemplation of history shows that this empirical assertion is obviously wrong.A single example is sufficient; Christianity did quite well for four centuries despite the absence of State encouragement or a profit motive.

Hey, look at this, and other, more famous, last words at the Vocabula Review by Christopher Orlet.

As long as I'm at PejmanPundit let me point out this dazzling and deserved take-down of Maureen Dowd's current meanderings through the current church scandal.

From PejmanPundit comes Star Wars dialogue the way it should have been written.

Bad news for teenage boys; good news for fathers of teenage girls, and future fathers of future teenage girls, nude slumber parties unmasked as an urban legend.

Democracy in action. From the Parisian Asphalt Initiative come compelling Reasons to Pave France.

Always restrained, always temperate Ann Coulter offers her dispassionate observations on the Democrats' demand to know what the President knew about September 11, and when he knew it.

Don't have a watch? 767-8900 circuits are busy? CheckWorld Time Server for your local time, or the time in Swaziland.

This is either harmless fantasy or deep political commentary. This summer's movies include Reign of Fire, where medieval beasts are awakened to ravage the world with their ancient hatred. The visuals look good, with scenes of helicopter gunships battling fire-breathing dragons over a burning London.

Well, at least she's happier now, except she's dead, and, according to Dante, planted as a tree in the fifth circle of Hell. Australian blogger Tim Blair has a post on the assisted suicide of sixty-nine year old Nancy Crick, who for a short time was the poster great-grandmother for the cause of assisted suicide. Ms. Crick, who was suffering intense pain from bowel cancer, was firmly resolved to end her suffering through assisted suicide, until she obtained appropriate pain medication, her spirits then revived, she then changed her mind, she was then pressured into suicide, she was then assisted in suicide, she was then autopsied, and it was then determined that she didn't have bowel cancer. Until that last part - starting with at least the coercion - Ms. Crick was great agitprop for the cause of assisted suicide. Recquiscat in Pace.

O.K. this is interesting. If you don't put quotation marks on both sides of an embedded hyperlink, the link "eats" your edit function. Then, you have to exit safe mode to edit the link.

Ask me how I know that.

I suspect there are two kinds of people who will read that comment. Those who have already done that, and know the solution, and those who have no idea whatsoever what I'm talking about.

The key rule for using computers is found on the cover of "The Hitchhikers Guide to the Galaxy" - Don't Panic.

As a lawyer, I like to say that one of my cardinal rules is that I would defend Fidel Castro if he could pay my retainer, and I would hire him as a law clerk if he could bill 2,400 hours a year. Then there comes this essay - The Case for the Empire - which does the unthinkable and persuades me that maybe Luke, Han and Leia were on the wrong side after all. Wait, what am I saying, I'm a conservative; I always knew those long-haired slackers were dangerous.

Overlawyered.com's dream lawsuit

Kashian v. Harriman 5/23/02 CA5 A local developer, apparently stung by a local attorney's attempt to instigate an Attorney General's investigation against the developer, sued the attorney for unfair business practices allegedly consisting extorting settlements through filing meritless lawsuits. Although the developer was not a "victim" of the prior settlements, and apparently the alleged victims did not appeal or attempt to rescind the settlements, the developer sued as a member of the public.

Good idea, right? The best defense is a strong offense.

Wrong. The attorney filed a motion under California's Strategic Lawsuit Against Public Participation [SLAPP] on the claim that the developer's lawsuit was designed to chill public participation in matters of public concern. This motion was granted, with costs and attorney's fees, by the Trial Court and affirmed by the Fifth District Court of Appeals. This seems conceptually reassuring. There is something odd about a third party going into another person's lawsuit and essentially saying 'you were wrong - you shouldn't have settled - you had no exposure." It seems like the person in the best position to make that decision is the person making the decision, and a substantial portion of law ranging from the finality of judgments to res judicata requires that assumption.

On the other hand, the Fifth DCA's Opinion appears to focus on the developers lack of evidence supporting his complaint. So, it would seem that if you have enough evidence, you may be able to go and second-guess the settlement decisions of entirely unrelated parties.

Everyone else is wrong about "the Situation"

Vast quantities of ink - real and virtual - have been spilled about the pedophilia crisis which is gripping the Catholic church. As a Catholic father trying my best to raise three little girls as Catholics, it is always a special moment to turn on the morning news and hear the announcement that "another" Catholic priest has been arrested. [It's like the joke from the late-eighties that the police had announced that they would not rest until every last cast member of Different Strokes was behind bars.]

Every one has an opinion on the root causes. Homosexuality, celibacy, a changing ethical environment, men from the sexually repressiver 1960s and 1970s. They are all wrong.

The problem is lack of accountability.

Every human institution grows lazy and self-indulgent without accountability. The human members of the institution start thinking that they are special and more valuable than their fellow men. Then they give themselves allowances because - after all - they are doing such special things. Then, they start making excuses for the evil they do. In my experience, from numerous business fraud cases, no one starts off corrupt; they earn their corruption step by tiny step. The Catholic doctrine - oddly enough - is that virtues and vices are a kind of habit. Another Catholic doctrine is that sin is always punished - here and now, or later - but it is always punished.

The answer then is to reaffirm that no one gets to do wrong without fear of consequences. The answer is accountability. People are encouraged to find a way to express their better natures when they appreciate that unpleasant consequences will follow bad conduct.

That's where people like me come in. I carry a law degree, and I'm not afraid to use it. If anyone messes with my vulnerable brothers and sisters and daughters, I will come after them. They may think they are special and protected, but I've dealt with tougher, smarter and better protected defendants. Until this April, I had viewed priest abuse cases as basically being part of a tradition of anti-Catholic slander. I have changed my mind. I now appreciate that it is the duty of Catholic lawyers to protect the Church from itself. The free ride ends now. Just a friendly reminder, if you step over the line in my Diocese, I will own your future.

There, that should help clarify issues.

PLANNED PARENTHOOD V THE AMERICAN COALITION OF LIFE ACTIVISTS The Ninth Circuit holds that a distasteful and nauseating website is not entitled to First Amendment protection. Kozinski and others pen spirited dissents. It may be just me, but when I was the other lone conservative at UCLA Law School, I got First Amendment absolutism crammed down my throat. Heck, Nimmer, who argued the "Fuck the Draft" case, taught copyright down the hall, and some people thought that message was a little threatening. I don't know how many times I heard about "slippery slopes" and "chilling effects" and how we had to provide a wide area of protection for dissent. Despite that, I never became a First Amendment absolutist. So how come judges who can spot an illegal religious motivation in a no preferential treatment statute, somehow lose that sense of concern when the issue involves abortion?

It may be against the politically correct stereotype that religious belief is frightened by science, but the best astronomical observatory is run by the Vatican.

It can't always be about autoerotic asphyxiation and obscure developments in contract law. Sometimes you have to realize that Ted McGinley is the Patron Saint of Bad Television.

Someone is running a blog on the SLA murder trial at this site . In the interest of publicizing the site, and making sure that the scum who murdered Myrna Opsahl are remembered, I am going to add a permanent link to the site to the left over there.

Flying high in April, shot down in May

A case out of California's Fifth District Court of Appeals - Neil v. Jones [2002 DJDAR 5283] - demonstrates the 'easy come, easy go' of litigation. In 1996, the Jones hit Cal-Eagle Insurance Company for $2 million compensatory damages and $11 million punitive damages for Cal-Eagle's bad faith miscalculation of monies owed by Jones for additional insurance premiums. The Plaintiff[Neil] essentially brought a collection action for the $21,000 allegedly owed as additional premiums after an audit purported to show that more premiums were owed than was paid in the estimated initial premium. Jones cross-complained against Cal-Eagle for damages arising from a breach of the Covenant of Good Faith and Fair Dealing by alleging that the audit was fraudulent. Jones eventually prevailed at trial to the tune of $11 million in punitive damages.

That's right a $21,000 collection case turns around and results in a $11 million pop the other way. That's like going to your doctor to get a splinter removed and coming out in a coma.

An issue in the case was whether the Insurance Company's premium practices, which concededly constitute a breach of contract, will support the punitive damage claim. Under California law, like most states, you can't get punitive damages for a breach of contract. The law doesn't want to discourage people from breaching contracts. People shouldn't generally be forced to comply with non-economic bargains; they should be able to pay the contract's value and be on their way to bigger and better breaches of contract.

However, California developed a doctrine which allowed the recovery of 'non-economic' damages - such as punitives - for tortious breaches of the Covenant of Good Faith and Fair Dealing. The high water mark of this doctrine was in the mid-1980's, but by the early-1990's the doctrine was substantially pruned back. The Death of Contract was prematurely predicted.

The one place where the tortious breach doctrine remained vital was with insurance contracts. Like the guy in your fourth grade class who ate paste, insurance is viewed as being "special." Insurance is heavily regulated, and the last thing you want is for insurance companies to start negotiating coverage after the accident happens. In the Neil case, the trial court was persuaded to apply the tortious breach doctrine to the premium side of insurance, rather than limit the doctrine to the claims side.

The Fifth DCA basically said 'no.' The factors that allow the imposition of tort damages in insurance cases do not apply to an abuse of an insurer's rights to audit premiums. Interestingly, the Neil court was quite clear that it was part of a process of rolling back the tort of bad faith, which according to Professor Gilmore, would "tortify" contract law. This is interesting in large part because it shows how the zeitgeist plays an important role in practical litigation. When this case was winding its way through pretrial motions in the early-90s, it was unclear how far the bad faith breach of contract doctrine had been rolled back. However, from the safe distance of a decade, its very clear that the bad faith breach of contract doctrine has the same intellectual force as mood rings, and you end up with two different decisions, and Plaintiff is out $11 million, and counsel is out something like $4 million.

Side note: although I was not involved in this case, my old firm represented the insurance company before the appeal. I always believed that the bad faith breach doctrine could not be applied to the premium side of the insurance contract. But, then I'm a business litigation attorney, and not an insurance attorney. When someone says 'your client breached in bad faith', we say ' and your point is....'

Preliminary observations on the Cardinal Law deposition:

First, I commend the attorneys involved in the deposition - and there was a country ton of them - for their civility. The objections were kept to a minimum. I didn't see any egregious coaching of the witness, even when he started to ramble off topic. If this deposition is typical of New England litigation, it is light years ahead of certain heavily urbanized portions of the Golden State in terms of civility.

On the other hand, things might have gotten far more intense by the second day. Particularly, after defense counsel found out about the leak of the transcript.

Second, Cardinal Law did not strike me as a very impressive witness. Of course, I am limited to the transcript, which always reads very cold, but it seemed he had a problem which is all too typical of highly succesful businessmen. They don't listen worth a damn. A number of times questions were put to Cardinal Law that could have been answered simply and directly, and he went off on some tangent. It just didn't seem that the Cardinal was woodshedded very effectively.

Third, I repeat, it didn't seem that the Cardinal was woodshedded very effectively. Let's face it, all depositions involve polishing up the witness so that he is comfortable with the themes of the case and knows the basic facts of the litigation. Witnesses are always taken to the woodshed where after you get their attention, you can address their attitude. However, woodshedding can run into the sow's ear problem; you can't turn a sow's ear into a silk purse. Witnesses are who they are, and 10 to 20 hours of deposition preparation won't change a lifetime of habits. This is particularly true when you have a succesful person who is used to being treated deferentially.

Cardinal Law' seems to have learned at least one them from his deposition preparation. That theme appears to be something like "I relied on my underlings and psychiatrists to advise me." He retreated to his theme at least a dozen times in his deposition.

The problem is that it really doesn't sound very strong. He can't take the position that he didn't know that Geoghan was a pedophile; he sent the man to counselling. He can't take the position that he didn't think Geoghan's pedophilia was a serious problem; again, he sent Geoghan to counselling. So, he's left with the argument that he did everything he could, and everything he did was reasonable and prudent.

The key deposition passage goes as follows:
Q. In 1984, you knew, did you not, that it would
16 have been wrong for a priest to have sexually
17 molested boys; is that correct?
18 A. Oh, absolutely.
19 Q. Okay. And that is something you would have tried
20 to stop from happening again?
21 A. That's correct.
22 Q. Okay. What was the practice that you had in
23 place in 1984 when you were Archbishop to deal
24 with this kind of allegation when it comes in?
1 A. I viewed this as a pathology, as a psychological
2 pathology, as an illness. Obviously I viewed it
3 as something that had a moral component. It was,
4 objectively speaking, a gravely sinful act. And
5 that's something that one deals with in one's
6 life, in one's relationship to God. But I also
7 viewed this as a pathology, as an illness, and so
8 consequently, I, not being an expert in this
9 pathology, not being a psychiatrist, not being a
10 psychologist, my, my modus operandi was to rely
11 upon those whom I considered and would have
12 reason to consider to have an expertise that I
13 lacked in assessing this pathology, in assessing
14 what it is that this person could safely do or
15 not do.
16 Q. So in -- you would have relied on some sort of
17 medical or psychiatric expertise in dealing with
18 this issue --
19 A. That's correct.

The problem is that the Cardinal's remedy - sending Geoghan off to a short counselling session - doesn't seem consistent with the "gravely sinful act" that he committed. Also, the lack of follow up supervision, and the acknowledged failure to warn Geoghan's subsequent supervisors, doesn't seem consistent with a person who viewed Geoghan's actions as involving a "gravely sinful act."

Further, Cardinal Law seemed weak on the soundness of his approach. A substantial portion of the deposition was taken up with the question of whether a letter from a psychiatrist attesting to Geoghan's harmlessness was or was not produced to Plaintiff's counsel. Whether it was produced or not, if I was the Cardinal's counsel, and the letter existed, I would have had the Cardinal prepared to reach for the letter and start talking about how much he relied on the psychiatrist, and how he trusted the psychiatrist. In other words, I would have had the Cardinal shift the blame to where it "belonged" - to the psychiatric professional. I would have had Law testify: "He told me Geoghan was safe. I believed him. I was so shocked to find Geoghan going back to his old habits."

I would also have Law prepared to testify about Geoghan's good character. How Geoghan wanted to change. How he was remorseful. If I had a garrulous elderly man, I would have told him to start volunteering that information where appropriate, as opposed to volunteering bits about his work history, which made the Cardinal seem not entirely sympathetic.

I didn't see any of that in the deposition. This lacunae may be because defense counsel are saving it for trial, or because it doesn't exist.

On a different point, if I were the Plaintiff's counsel, I think I would have beat the Cardinal up with the Catechism or other authoritative Catholic teaching on sexuality. There might be some First Amendment objections, but since it goes to the Cardinal's state of mind - surely he thought it was a very, very serious matter - it would be relevant to impeaching the Cardinal's claim that he thought that he had resolved the problem simply through psychiatric intervention. The examination would start with establishing the Cardinal's acknowledgement that sexual misconduct of the kind Geoghan was charged with is very serious in the Cardinal's [Catholic] view, that sexual orientation of that kind is inherent [the Church is of the view that homosexuality is an inherited condition] and, therefore, the Cardinal did not really believe that a counselling session solved Geoghan's problems.

Anyhow, these are general thoughts. I don't intend to be too critical of the people in the trenches. As Kipling says, there are a thousand ways of making a fire lay, and every one is right.

I thought this activity was an urban legend.

The Ninth Circuit has ruled that "autoerotic asphyxiation" which is described as the "act of intentionally stopping blood flow to the brain during masturbation to heighten sexual pleasure, is neither suicide nor intentionally self-inflicted injury." This comes out of an ERISA case where the insurer refused to pay the decedent's wife insurance benefits on the ground that his injuries were self-inlicted. According to the Court in Padfield v. AIG Life Insurance [2002 DJDAR 5447] "data from the United States, England, Australia and Canada indicate that one to two hypoxyphilia-caused deaths per million population are detected and reported each year."

Editorial comment: Yuck.

On the other hand, I guess that one person out of one million doing something really stupid isn't all that bad from a statistical viewpoint, and it has to have a positive effect on the gene pool. Also, this case has a timely X-File tie-in. I'm reminded of Clyde Bruckmann reassuring Agent Mulder that "no matter what they say, there are worse ways to go than auto-erotic axphyxiation."

Well, I am new at this. I wanted to say isn't the internet great. Here I am reading the casual observations of an Iranian-American attorney at PejmanPundit which then takes me to a New Hampshire based columnist, who writes some of the best prose on Democracy in America since De Tocqueville. Mark Steyn's column is one post down. As soon as I figure how to link to two sites in the same post like the pros, I will do so.

The Spectator.co.uk

WHDH-TV - Boston - - News This site has Cardinal Law's partial deposition transcript. I intend to review it for style and substance at my first opportunity. Probably, sometime after I recover from all the screeching and giggling that will be generated at my nine year old daughter's first sleepover.

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