Sunday, September 25, 2016
Continuing my line of posts creating an arbitrary list of THE landmark case for each year. This time, we'll work our way from the moment of the lip syncing of Milli Vanilli to that of the sexual orality of Monica Lewinsky. I've posted one of them as the image for this entry.
1990, Cruzan v.Missouri -- States may require "clear and convincing evidence" of patient's end-of-life wishes (living wills).
1991, Harmelin v. Michigan -- life sentence without possibility of parole for possession of cocaine held not to be cruel and unusual punishment.
1992, Casey v. Planned Parenthood -- re-affirmation of right to an abortion as part of privacy right.
1993, Daubert v. Merrill Dow -- creation of the Daubert standard for the testimony of expert witnesses.
1994, Kiryas Joel Village School District v. Grumet -- Satmar Hasidic Jews can't get their own public school district.
1995, Adarand Construction v. Pena -- affirmative action as race-based set asides. Strict scrutiny.
1996, 44 Liquormart v. State of Rhode Island -- commercial speech and a package store.
1997, State Oil Co. v. Khan -- overturned the per se illegality of vertical maximum price fixing.
1998, Eastern Enterprises v. Apfel -- regulatory takings principle applied to invalidate a statute mandating contributions to a pension fund.
1999, Hunt v. Cromartie -- political gerrymandering still alive even if it looks a lot like prohibited racial gerrymandering.
Saturday, September 24, 2016
I'm thinking about The Light Between Oceans, a movie in the historical romance genre. It opened on September 2, which is called a "fall release" in Hollywood marketing terms, though sticklers will point to the calendar and say it was released in the summer.
It was not a huge commercial success. I saw it, in a less-than-packed theater, that first weekend. It was sixth at the box office that weekend.
SPOILER ALERT. Don't read further if you plan to see the movie and may want to be surprised by the plot twists, such as they are.
But commercial success isn't what I'm thinking about this morning. I'm thinking about the "compare and contrast" the movie makers set up between their story and the classic Bible story about Solomon and a baby.
Much of the film takes place on a small island off the coast of northwestern Australia, where the protagonist couple tend a lighthouse. There is talk about how critical the lighthouse is, as the Indian and Pacific Oceans meet there. Thus the resonant title of the movie.
We're in the 1920s, and Tom Sherbourne has served honorably in war, but has become morose and withdrawn, which renders him perfect for the lighthouse post. The courtship of Tom and the woman who joins him on that island as his wife, Isabel, nee Graysmark, is sketched in quickly.
Their married life on the island is painted idyllically, but for two miscarriages. After the second of these, by marvelous synchronicity, a dinghy washes up on shore with a grown man's dead body and a still-living baby girl. Since the outside world knows only of Isabel's second pregnancy -- it doesn't yet know of the miscarriage -- the couple decides upon a deception. They tell the world that Isabel has given birth (somewhat prematurely) to the expected baby. Then they raise this child, Lucy, as their own.
Four years pass, and we see Lucy Sherbourne happily walking, talking, fully adapted to life on an island and devoted to the parents she knows. At this point, the biological parents enter the picture, because they've finally managed to get the authorities curious about the disappearance of their child and of its uncle -- the dead fellow on that dinghy.
Now at this point you, my educated reader, will see the point of my mention of Solomon above. He hit upon a happy decision to another dilemma involving two women both of whom claimed to be the mother of one baby: threaten the baby's life! The one mother willing to give up her claim, for the baby's sake, is the true mother.
This novel differs from the bible story in a number of ways. One of these is that there is no Wise Authority called upon to make a decision. The authorities are more interested in a murder mystery than in a custody issue. We, the viewers, know there was no murder, but the authorities don't know that and the question of the manner of the uncle's death distracts them.
The question of who will raise the child for the rest of her childhood, and whether she will come to see herself as "Lucy" or as "Grace," -- these matters are decided by happenstance with a lot of bumbling along and muddling through. BUT the parallel to the Solomon case holds. The mother willing to give up her claim is in the end the mother more fit to care for Lucy-Grace. The right choice makes itself, in the absence of a King to make it.
Not just a weepy, then. Superior, I think, to the Nicholas Sparks stuff with which it has been compared.
Friday, September 23, 2016
If you have any sense of the recent history of the US presidency, the above sentence, applied TO that institution, will seem insane.
It appears to seem sane, though, to William G. Howell and Terry M. Moe, authors of RELIC, a new book about the presidency and related constitutional issues. Excessive suspicion of executive power is the late 18th century "relic" that they would like to excise from the US Constitution by amendment, on behalf of "effective government."
I haven't read the book, and am relying here on a review in the September issue of THE FEDERAL LAWYER. Unless the reviewer, Louis Fisher, is doing the authors an injustice, though, Howell and Moe seem headed down a dangerous road.
Whether the next President is named Clinton or Trump, my own response to the suggestion at the top of this blog post is, "hell no!"
Thursday, September 22, 2016
Avishai Margalit formerly of the Institute for Advanced Study, Princeton, New Jersey, has written a book on THE ETHICS OF MEMORY.
The very title evokes a number of thoughts. We are often told that we have an obligation to remember this or that. "Don't let it be forgot, that once there was a spot ...Camelot...." and other such sentiments. But is that really meant literally? is it even coherent as literally understood?
Galen Strawson has reviewed Margalit's book, here:
Strawson thinks it a fine book, but the point he wishes to make is that one of Margalit's points seems to him too selective. Margalit treats it as a near-universal point that humans don't want to be forgotten, they/we want fame that will live on after our death, and this is one reason our friends and family want to help us with that, and thus feel an ethical obligation to our memory.
Strawson says that may be true for some, certainly isn't true for him, and probably isn't true for a majority of humans.
I won't take a side on this, I'll just throw it out there.
Sunday, September 18, 2016
I'm continuing my list of most-important-decisions from the US Supreme Court, year by year. Today I'll cover the 80s. Again, each choice is extremely subjective.
If you don't care about SCOTUS, you might at least enjoy the photo of Molly Ringwald. Proceeding....
1980, Pruneyard Shopping v. Robins -- free speech, property rights, state sovereignty, shopping malls
1981, Minnesota v. Clover Leaf Creamery -- bottle bills survive constitutional challenge
1982, Arizona v. Maricopa Cnty Medl Society -- antitrust price fixing, physicians
1983, INS v. Chadha -- separation of powers, legislative veto
1984, Chevron v. NRDC -- deference to administrative discretion
1985, Harper & Row v. Nation Enterprises -- "fair use" of copyrighted material
1986, Batson v. Kentucky -- jury composition, racial bias
1987, Edwards v. Aguillard -- creationism and establishment of religion
1988, Morrison v. Olson -- separation of powers & special prosecutors
1989, Wards Cove. v. Atonio -- racial employment discr., statistical evidence
Saturday, September 17, 2016
Finishing up a thought of yesterday's.
Though recent North Korean rocket launches have sent projectiles in the general direction of Japan, and though Japan is the "former colonial power," I very much doubt that there is any close connection between those two facts. Why?
Because I ask myself, Where else could they have directed those missiles? Southward? Only when they're ready to resume the war paused more than 60 years ago. North? Siberia, a/k/a Russia. They wouldn't dare. West? The People's Republic of China. Again, they wouldn't dare.
They send the missiles over the open seas, even though that makes Japan nervous, because that is the only testing range they dare employ.
Mystery solved. You're welcome.
Friday, September 16, 2016
North Korea has been lobbing missiles in the direction of Japan, as a deliberate act of provocation and bravado.
Commentators on television can't mention this fact without at once saying "Japan is the country's former colonial overlord." And so it is, but I don't think the pertinent history has anything to do with the choice of missile-test target, or whatever 'this' is.
Just so no one will say I ignored it, though, let's say a few words about that history, even though we're just taking this stuff from wikipedia.
Korea was never colonized by one of the usual suspects, one of the western European powers one thinks of when the subject comes up.
The Russo-Japanese War was fought at the start of the 20th century largely over the issue of in whose sphere of influence did Korea fall. The Japanese won.
Not long thereafter, in 1910, the Japanese forced on the Koreans a Treaty of Annexation. This begins the period referenced when the news talking heads speak of Japan as the former colonial power.
The war that tore apart Europe and much of the Middle East in 1914-18 had muted echoes in Korea, but by the time it was over, Korea had a liberation movement. Japanese troops apparently killed thousands of demonstrators in Seoul on one especially busy day, March 1, 1919.
Though the leaders of the independence movement had been in part inspired by Wilson's 14 points, the US didn't stand with them when the crunch came. In April '19 the US ambassador in Tokyo received instructions from the State Department that the Seoul consulate "should be extremely careful not to encourage any belief that the United States will assist the Korean nationalists in carrying out their plans and that it should not do anything which may cause Japanese authorities to suspect American government sympathizes with the Korean nationalist movement."
That's enough work for my typing fingers today.
Tomorrow I'll speak to my skepticism as to why any of this has much to do with the NK missile tests in 2016.