[Guest post by Aaron Worthing]

We have already had one tragic example of spitting all over one’s keyboard and we don’t need another.

Frank J. Flemming of IMAO says it all in a piece explaining why the Republicans are going to win.  It’s something you understood instinctually but never quite articulated: Republicans Kind of Suck…  Which is Why They Will Win Huge in November.

Also, on related news, Frank runs a group blog called IMAO (In My Arrogant Opinion) and he has recently had a baby.  Er, his wife has.  I am pretty sure his contribution in the whole thing could be scarcely distinguished from a cheerleader’s contribution to winning the homecoming game.  Anyway, cute pictures are here, here and here.  And if you are inclined, you can find out how to send toys and nice stuff to him here.  Or just hit the tipjar.

I mean I doubt blogging pays very much for the guy.  You know the phrase, “don’t quit your day job?”  Well, I haven’t.  Neither has Patterico, Althouse, Instapundit, Legal Insurrection…

[Posted and authored by Aaron Worthing.]

[Guest post by Aaron Worthing]

To pre-judge a person is to literally “judge before.”  Before what?  Before it is appropriate, before you have all the facts.  Of course normally we think of prejudice as being based on specific traits.  Racial prejudice is to judge a man by his skin color, rather than getting enough facts to judge him as an individual.  But it can be based on anything.

Take for instance, Sarah Palin.  Liberals have convinced themselves that Palin is a moron.  So when Sarah Palin told a crowd of Tea Partiers that it was too soon to “party like its 1773” liberals freaked out.  OMG, she is so stupid.  Doesn’t she know the American Revolution was in 1776? As well documented by Cuffy Meigs, Markos Moulitsas, Gwen Ifil (who moderated Palin’s debate with Joe Biden) and others mocked her in that fashion.

One guy, Steve Paulo showed enough introspection to wonder “WTF happened in 1773?!”  Well, hey, I was a history major, but I couldn’t rattle off every event of any year, 1773 or otherwise.  But I can google.  As of this moment the first link I get is this.  You only have to page down once to discover that in December of that year was the original Boston Tea Party.  You know, the event that the Tea Party is self-consciously invoking with its very name?  Yeah, that one.

And then there is Christine O’Donnell’s whole exchange with Chris Coons about the first amendment. I was going to write a long break down, but Ann Althouse beat me to the punch.  I suggest you read the whole thing but I think this paragraph sums it all up:

The [two] were talking past each other, trying to look good and make the other look bad. It is a disagreement about law between [two] individuals who are not running for judge. It’s not detailed legal analysis. It’s a political debate and this is a political disagreement. An important one, no doubt. But it can’t be resolved by laughing at one person and calling her an idiot, something I find quite repellent.

And a commenter adds an important nuance to that analysis:

I don’t think they were talking past each other so much as O’Donnell was trying to get Coons to speak precisely whereas Coons wanted to speak in more general colloquial terms.

The real problem is the ignorance of the reporters and the people in the audience who couldn’t understand the point O’Donnell was trying to make and so just assumed she was being stupid. The irony being that she was right (and, on this point at least, smarter than them).

I think that is exactly right.  And Althouse captures well what I am trying to say, here:

It’s a bit annoying to me, because I cannot stand when people jump to the conclusion that someone they want to believe is stupid is being stupid when they say something that seems wrong. Think first. Is it wrong?

I think in truth she isn’t stupid.  What she is, is a chirpy wear-your-faith-on-your sleeve Christian.  You know the kind of person who will knock on your door unsolicited and tell you they are there to save you.  I find her faintly irritating for that reason, but she isn’t dumb.

Here’s the truth of the matter when it comes to the law.  Thomas Jefferson was the originator of the phrase “separation of church and state” in a letter written to Danbury Baptists.  It’s not actually in the constitution, and he didn’t write a single word of the first amendment—or indeed, any part of the constitution.  And while some cases have said that this is how the Court will interpret the First Amendment, that is less than clear in practice.  A wall of separation suggests a distinct segregation that does not exist in our modern case law.  For instance, the state is allowed to supply religious schools with textbooks and free busing for its children, and deaf people have been allowed to receive free sign interpreters as they go to divinity school.  What the courts have said in fact is that there isn’t separation of church and state so much as neutrality between the secular and the religious and among all religions.

Oh, and if you are a liberal longing for an anti-blasphemy law, please don’t talk to me about separation of church and state; you don’t even believe in separation of mosque and state.

Now I don’t expect Chris Coons or his campaign to be charitable toward his opponent; but I do expect everyone else there to be.  So watch this video, and listen not just to the candidates, but to the smug morons in the law school who cannot even conceive of a different point of view.  I mean, these people are preparing to be lawyers.  Let me tell you, as a lawyer, if you can’t see where the other side is coming from, and anticipate their arguments, you are not going to be very good at your job.  In argument, you will be constantly blindsided.  And writing contracts is a process of constantly trying to think of how someone else might come along and deliberately twist your words.  Being only able to see your own point of view is positively a handicap in this profession.

And the irony of all of this is that O’Donnell got something much, much bigger wrong in the discussion and I am not hearing much discussion of that.  She said that if a local school district wanted to teach creationism, it was up to the school district.  As a point of fact, that is not true.  I don’t think a school district has to teach evolution necessarily, but creationism is religion and teaching that in class is teaching religion.  I mean that is not just my opinon: there is supreme court case law directly on point.  And yeah, I am sure that is true even if you call it Intelligent Design.

Meanwhile, Gwen Ifil tries to walk back her comment about Palin.  And Iowahawk and Duane Lester have fun with the whole thing.

[Posted and authored by Aaron Worthing.]

[Guest post by Aaron Worthing.]

So Above the Law has been on a tear for the last few months to convince people not to go to law school.  Now I generally am sympathetic to at least a message of caution.  I think it is fair to say that the legal market is oversaturated and I certainly worry about their debt at the end of school.  But this Above the Law story is a bit much.  You see, an anonymous 3L (third year law student) at Boston College is asking for his money back.  He wrote a letter to the Dean explaining as follows in relevant part:

As a 3L, my peers and I find ourselves in the midst of one of the worst job markets in the history of our profession. A few of us have been able to find employment, but the overwhelming majority of us are desperately looking, and unable to find anything….

To compound our difficulties, many of us are in an enormous amount of debt from our legal studies. Soon after our graduation, we will be asked to make very large monthly payments towards this debt, regardless of whether we’ve been able to find employment or not. [Aaron: Proving he knows nothing of the law of garnishments.]  It is a debt which, despite being the size of a mortgage, gives us no tangible asset which we could try to sell or turn in to the bank. We are not even able to seek the protection of bankruptcy from this debt.

I write to you from a more desperate place than most: my wife is pregnant with our first child. She is due in April. With fatherhood impending, I go to bed every night terrified of the thought of trying to provide for my child AND paying off my J.D, and resentful at the thought that I was convinced to go to law school by empty promises of a fulfilling and remunerative career….

I’d like to propose a solution to this problem: I am willing to leave law school, without a degree, at the end of this semester. In return, I would like a full refund of the tuition I’ve paid over the last two and a half years.

This will benefit both of us: on the one hand, I will be free to return to the teaching career I left to come here. I’ll be able to provide for my family without the crushing weight of my law school loans. On the other hand, this will help BC Law go up in the rankings, since you will not have to report my unemployment at graduation to US News.

Let’s see here.  First, what school is he going to?  Oh, right, Boston College, the private law school that costs about $39K and is ranked at 27 according to U.S. News and World Report.  That’s his first mistake right there.  Assuming that this is the best law school he could be admitted to, why is he going there when there are so many more reasonable options among the state schools?  For instance, the University of Kansas costs $25K for even out-of-staters.  I mean, yes, it ranks at 67, but bluntly those ranks don’t mean as much as you might think.  In my practice, I certainly never think to myself anything like this: “Oh, I went to Yale and my opponent went to the University of Kansas, so this will be easy.”  That’s a recipe for getting whupped in court.  And that is assuming that he can’t get in-state tuition in a place like Georgia, which has a fine school (tied with several others at 28) around $15K a year.

(more…)

[Guest post by Aaron Worthing]

Really, if you don’t already, you should probably make Iowahawk a regular read.  Check it at least once a week and he will usually have something good.  For instance, his piece just after Obama’s election captured the ambivalence I felt that night perfectly, with comic exaggeration (I hope), by writing America Can Take Pride In This Historic, Inspirational Disaster.

But I suspect that you really need to get your nerd card to fully appreciate this one.  It’s an imagined text adventure, similar to the old text adventures that were popular on computers before there was such a thing as… um… graphics (or at least before they were good and easy to create).  If you want to get an idea how these things work, there is a new one for the Amazon Kindle explained here.

So anyway Iowahawk’s piece is called Beltway Adventure, reducing the President’s conduct since becoming president to a video game.  The commands entered are indicated with a “>.”  Hopefully that will be enough for you to get it if you are unfamiliar with the form.

And its actually a pretty good way to remind yourself of all the crud that has gone on since Obama became president.  Honestly I had forgotten a lot of this stuff, I think because the human mind generally tries to block trauma.

[Posted and authored by Aaron Worthing.]

[Guest post by Aaron Worthing]

This is a test of your geekatude.  Look at this picture of a Halloween display and then tell me what you thought.

If you didn’t know what you were looking at, or you thought, “Hey, clever!  Pac-man!” you probably aren’t a geek.

But if you thought, “that’s wrong.  When the ghosts are multicolored, Pac-man can’t eat them!” then you are a geek.

And if you thought, “those ghosts are the wrong color!” you are an ubergeek.

Happy (impending) Halloween.

(Via Joystiq.)

[Posted and authored by Aaron Worthing.  Who is a geek, but not an ubergeek.]

[Guest post by Aaron Worthing]

All of these videos are good, in the sense that they are hilariously awful, but for my money, the EzDivorce is the best one because you can tell he is working through some issues of his own.

Meanwhile, Corri Fetman always gets an honorable mention when we are talking about bad lawyer ads.

[Posted and authored by Aaron Worthing.]

[Guest post by Aaron Worthing]

So says a news release by Gallop which says that right now the unemployment rate is 10.0%.

Mmm, I wonder what happens that week…

[Posted and authored by Aaron Worthing.]

[Guest post by Aaron Worthing]

According to Jim Geraghty, Webster is stomping Dick Alan Grayson, by a spread of 16%.  Of course they are commissioned by the republicans so take that with a grain of salt, but still, it couldn’t have happened to a bigger jerk.

But as Insty says all the time, don’t get cocky.  Make sure you vote.  I mean even if it is for the guy I don’t like, show up and vote.

[Posted and authored by Aaron Worthing.]

[Guest post by Aaron Worthing]

I posted a link the other day to Judge Vinson’s opinion in Florida v. United States Department of Health and Human Services, the biggest of the Obamacare challenges, but I have only now had a chance to read it and I think I have something to contribute to the analysis.

One of the key questions in the case is whether the mandate is a tax or a penalty.  If it is a tax, it becomes much easier to defend the law from a constitutional perspective.  I mean, think about it.  Do you deduct interest on your mortgagewhen doing your taxes?  And of course one of the reasons why you would get a house with a mortgage, instead of just renting a house, is that you can’t deduct anything from a rental.  So in that situation, the government is encouraging you to enter into a specific kind of contract with a private party and raising your taxes if you refuse.  Which sounds a lot like the mandate, doesn’t it?  As much as I despise Obamacare, I can see the argument.

But if it’s a penalty and not a tax, it is a lot harder to justify.  So in his opinion, Judge Vinson spends a lot of time analyzing the law to determine that it is penalty, not a tax.  He arrives at that conclusion citing a number of facts:

• The act called it a penalty, not a tax.
• Earlier versions of this law, and similar proposals called it a tax.  So as they went through their drafts, they changed the word “tax” to “penalty.”
• The law enacts a number of taxes and labels them as taxes, but not this alleged “tax.”  This is an example of expressio unius, a concept I explain here.
• The findings of fact (in the statute) invoked Congress’ power under the commerce clause, but not the taxing power.  Meanwhile the taxes in the act were justified under the taxing power.
• When the CBO ran its cost estimates, tallying how much the law would cost versus how much revenue it would raise, it didn’t include any money from the mandate.  In other words, the CBO acted as though the mandate would raise absolutely no revenue at all.
• “[T]he Act lists seventeen ‘Revenue Offset Provisions’… and … it further includes a section entitled ‘Provisions Relating to Revenue’….  However, the individual mandate penalty is not listed anywhere in them.”

So put that all together, Judge Vinson says, and it is clear that Congress intended it to be a penalty and not a revenue-raising tax.

Now that is all well and good in classic plain language statutory construction.  But what leaps out at me is that his entire analysis depends on Congress paying a lot more attention to the language of the law than they actually did.  From Nancy Pelosi declaring that we had to pass the law to see what was in it, to Max Baucus claiming paradoxically that he wrote the healthcare law, but didn’t actually read it, not to mention that they manage to pass laws called “The ______ Act of ____,” it’s really hard to pretend that Congress carefully crafted this law.

Now, it is possible that Vinson was just applying precedent as he saw fit, and he didn’t want to send a message.  But whether he intended to or not, anyone who reads the opinion sees that the courts following this approach are going to act as though Congress carefully crafted and scrutinized every word.  So if they don’t actually devote this much attention to a statute’s language, then the law of unintended consequences will bite them right in the kiester.  Whether Vinson intended to send that message, it is the message being sent.

Of course the flaw in the theory that he is trying to send a message is that Judge Vinson would have to believe that Congress would actually read what he wrote—which is itself a dubious proposition.

Another possibility is that Judge Vinson felt that the law is constitutional under the tax power, but he chose to strike it down to force Congress to take a “second look.”  This is a theory of judicial review popularized by Alexander Bickel in his book The Least Dangerous Branch.  The idea is that for certain laws, the courts like to strike down a law based on B.S., in order to force them to look at the law and the policy underneath a second time.

Mind you, I am not defending this approach to interpreting the constitution.  In fact, I am appalled by it.  But just because it is wrong, doesn’t mean it’s not happening.

On the other hand, when Congress has so clearly abdicated its duty to actually know what it is passing, a “second look” seems more justified than usual.  I mean “second look” would seem like a misnomer in relation to Obamacare.  First look is more like it.

And you could consider it to be either a horrible or perfect example of the Bickelian principle in operation.  The fact is if the law is struck down in order to make Congress take a second (or first) look, it will be very hard to pass anything like this law twice.  Unless the poll numbers are very misleading, the next Congress won’t do it, so it would have to be done during the lame duck section, which also strikes me as unlikely.  So on one hand you might argue that the judge is manipulating constitutional interpretation in light of the elections.  Or, you might say that the voter anger over this issue is the second look Bickel was talking about and in that case, you could say this is a perfect example of this principle in operation.

And just as with the theory that Judge Vinson is trying to tell Congress to actually read the law, his application of precedent is reasonable enough that he might be doing nothing more than applying the law to the facts.  But the obvious effect of this his decision, if he strikes down Obamacare and his decision is upheld on the grounds he invoked, is to give Congress a second bite at the apple—a chance to give the matter a second (or first) look.  And when person’s actions has an obviously foreseeable effect, it is generally reasonable to wonder if that effect was intended.

[Posted and authored by Aaron Worthing.]

[Guest post by Aaron Worthing]

Take this for what it’s worth, but this is an account of a conversation with an anonymous Democratic insider:

Somehow, I turned the topic…  to Christine O’Donnell’s Senate race in Delaware because the guy I was talking to did a lot of fundraising in New England during the 2008 campaign and I know he “gets” states up there better than I do, having never lived there.

He told me that Christine O’Donnell is going to get VERY, VERY CLOSE to winning in Delaware but he does not think she will win. But, he emphasized, “It’s going to be scary close for Coons”.

Hmmmm…

[Posted and authored by Aaron Worthing.]