Shades of Gray and Black

Thoughts on International Law

2011-08-04T22:20:00.000-07:00

In the first edition of An Introduction to the Philosophy of Law published in 1922, Nathan Roscoe Pound, the Dean of Harvard Law School from 1916-1936 argued that the law is cyclical in nature, and the evolutionary process that law undergoes reflects a series of reactions and counter reactions by advocates of various jurisprudential theories. Dean Pound asserted that philosophical nature of the debates about the relative merits of the various theories resulted in a process of legal development that is dynamic in nature because, as newer theories develop the older theories attempt to counter them. The ability of older more established schools of thought to reply to the newer schools requires the older schools nullify and disavow outmoded conventions, customs, norms, practices, and traditions. Conversely, for a newer theory to achieve a degree of legitimacy it must abjure the practice of attempting to create a single uniform standard of law universally applicable without the need for exceptions over an indeterminate time Id: (Pound 1982, 1-4).

Internationally an example of the debates described by Dean Pound occurred between Edward Hallett Carr and Sir Hersch Lauterpacht on the relative merits of the Machiavellian realistic tradition, and the Grotian humanistic tradition. In his seminal work, The Twenty Years' Crisis, 1919-1939: An Introduction to the Study of International Relations, Carr argued that law is a series of commands unencumbered by ethical considerations, see: (Carr 1946, 176) Carr’s view of the law recognizes sovereignty as an element of the authority by which, the state compels obedience to the laws of the state.

As a response to Carr’s realistic and positivist approach, Sir Hersch Lauterpacht advocated the Grotian view of international law rejecting outright Carr’s legal positivism see (Kwiecień 2011) and (Jeffery 2006).
Lauterpacht argued the inverse asserting that although legal questions are separate and distinct from ethical and moral questions, the three inextricably intertwined as they are renders it impossible to completely divorce, the law from ethics and morals that underpin it. The clearest and most concise statement of Lauterpacht’s humanistic approach to international law essay entitled “The Grotian Tradition in International Law,” which appeared in the British Year Book of International Law published in 1946. Concerning sovereignty Lauterpacht argued that the sovereignty of state derives not from the inherent power and authority of the state but from the law of nations and the natural law. On the law of nations, Lauterpacht maintained that the recognition of the law nations by individual states is by its nature a dualistic construction predicated on the will of the governments and in part on the consent of the citizens of the nation-state.

In the sixty-five years since the publication of “The Grotian Tradition in International Law,” the Lauterpachtian humanist view of international law has permitted humanism to assume a place as one of several viable theories of international law alongside Carr’s realistic positivism through its presentation in Judge Lauterpacht’s separate opinion in the Case of Certain Norwegian Loans. The International Court of Justice employed Judge Lauterpacht’s reasoning in the case concerning the military and paramilitary activities employed by United States against Nicaragua.
Given the cyclical nature of the law as demonstrated above, I would contend that over time a counter reaction develops, in which, the humanist perspective currently holding sway in international at present will give way to another theory. One descended from the twin theories of legal positivism and political realism who advocate positions similar to those norms adopted by Herbert Lionel Adolphus Hart and Hans Joachim Morgenthau norms and standards, which, impart to the state primacy over the individual.

Put simply the near constant state of fluctuation present within international law imparts a greater degree of fluidity and flexibility within international law than is present within municipal law. This flexibility allows the various schools of thought to achieve a greater degree of ascendancy over other theories in a shorter time. For example, the immediate aftermath of the Second World War ushered in a period in which the strict realistic legal positivism advocated by Lord McNair and Hans Kelsen dominated international law. By the 1960's Lauterpacht's neo-naturalistic humanist view of international began to supplant the strict realistic positivism advocated by the Kelsenians. Lauterpachtian Humanism reached its apogee in the mid 1980's, and in the following decades, several realistic theories of international law have been the process of formulating a cohesive response. It is believed, that this response will ultimately supplant Lauterpachtian Humanism as the dominant theory of international law.

Regardless of the theory in ascendancy, there are elements common to all theories that are immutable. For example, all theories of international law accept to varying degrees, the universality principle. The universality principle, all states are granted the right to adjudicate matters involving crimes under international law either within the international judicial system or the national judicial system of the various nation states, piracy, war crimes, crimes against humanity, and crimes against peace as defined within the sources of international public law.

In short, I view international law as being similar to Chinese concept of yīnyáng, or the Korean variant Um-yang as symbolized by the Taijitu of Chinese Daoism and the Taegeuk of Korean Daoism in the sense that international law consists of opposing forces that complement each other.

Works Cited
Carr, Edward Hallett. The Twenty Years' Crisis, 1919-1939: An Introduction to the Study of International Relations. Second Edition. Vol. One. 1 vols. London, England: Macmillan, 1946.
Case of Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits Judgment of June 28, 1986, p. 14. General List No. 70 (International Court of Justice, The Hague June 28, 1986).
Case of Certain Norwegian Loans (France v. Norway) Judgment of July 6, 1957. General List No. 29 (International Court of Justice, The Hague July 6, 1957).
Case of Certain Norwegian Loans (France v. Norway) Judgment of July 6, 1957, Separate Opinion of Judge Sir Hersch Lauterpacht. General List No. 29 (International Court of Justice, The Hague July 6, 1957).
Jeffery, Renée. "Hersch Lauterpacht, the Realist Challenge and the 'Grotian Tradition' in 20th-Century International Relations." European Journal of International Relations (Sage) 12, no. 2 (June 2006): 223-252.
Kwiecień, Roman. "Sir Hersch Lauterpacht's Idea of State Sovereignty - Is It Still Alive?" International Community Law Review (Nijhoff) 13, no. 1/2 (January 2011): 23-41.
Lauterpacht, Hersch. "The Grotian Tradition in International Law." British Year Book of International Law: 1946 (Oxford University Press ) 23 (1946): 1-53.
Pound, Nathan Roscoe. An Introduction to the Philosophy of Law. Third Edition. Vol. 1. One vols. New Haven, CT: Yale University Press, 1982.

Development

2011-06-09T14:49:00.000-07:00

While the wars in Afghanistan and Iraq have drained American
resources, the unrest in the Middle East might herald the beginning of
a transformative period, one in which semiperipheral nations either
replace the existing core states or increase their number by becoming
core states themselves.

History demonstrates that global conflicts often prefigure the
evolution of the international system. The failure of the Concert of
Europe resulted in the First World War, which in turn culminated in
the Treaty of Versailles and the League of Nations. The fundamental
flaws within the peace treaty rendered the League of Nations impotent
in the face of the rising tide of fascism during the 1930s that
inspired the horrors of the Second World War.

From the devastation of World War II arose the United Nations with the
Bretton Woods monetary system. The resistance toward concerted efforts
at restructuring both the UN Security Council and the global economic
consensus and trade regime as sustained by the International Monetary
Fund and the World Trade Organization serves as a concrete
representation of the latent conflict between the "global north" and
the "global south." Within the Security Council in particular, the
"permanent five" aim to maintain the status quo in order to prolong
their ability to assert and implement their interests, possibly at the
expense of developing nations.

The "world system" however, as it was described by sociologist
Immanuel Wallerstein (1930), may not be static but dynamic instead to
the extent that the classification of various states as core,
peripheral or semiperipheral can evolve over time. Modern day examples
include Brazil, India and South Africa which are rising to the status
of core power. China, it may well be argued, has already achieved that
status.

Economist Ricardo Hausmann (2001), argued that the sustainable
development of the peripheral states of the “global south” is dependent upon their ability to overcome the natural barriers imposed by their geography.
If Hausmann is correct then the continued growth of the “global south” requires the
investment and involvement of the developed nations in the “global north”

A Summation of my Philosophical Outlook

2011-04-12T11:55:00.001-07:00

My perceptions about the multitudinous sides to arguments are informed by my collegiate experiences, as an undergraduate I attended the University of Saint Thomas a Catholic university in Houston, Texas founded in 1,947 by the Congregation of Saint Basil (The Basilian Fathers). The core curriculum of the University mandates that all undergraduate students including transfer students complete a given number of theology and philosophy course prior to graduation. The manner of instruction on the philosophy courses offered by the University is consistent with the Thomistic foundation on which the University rests.

Thomism, the philosophy espoused by Thomas Aquinas maintains that faith and reason are neither mutually exclusive nor are they irreconcilable. Aquinas argued that God endowed humankind with a rational mind and a spiritual conscience, which, permits humankind to exercise freedom of choice. The effect Thomism has had on my perceptions as it relates to my understanding of the multiplicity of arguments available can be seen though my application of the Principle of Double Effect to given scenarios. I generally attempt to maintain positions that do not vitiate the Principle of Double Effect, although, I concede I am not able to always do so.

The Principle of Double Effect states that an act is moral if it meets four prerequisites, a morally acceptable act requires the fulfillment of the following conditions: One, the act must be either morally good or indifferent. Two, the good effect must not be achieved by means of the evil effect. Three, the proper intention exists when the intent underlying the act is the achievement of the good effect, with the evil effect construed as a tolerable unintended side effect. Last, the good effect and the evil effect must be proportionate to each other.

My ethics professor Dr. M. Jean Kitchel, always encouraged her students to see all the sides of an issue by drilling the following Latin epigram into the heads of her students: Cave ab homine unius libri roughly translated it means ‘beware the man who has only one book.’

Profile Update

2011-02-02T19:33:00.000-08:00

I updated my profile in response to an allegation of plagiarism made by a professor who accused me of plagiarizing from my own work.

Hegel v Hobbes

2010-08-22T23:41:00.000-07:00

During my first course as undergraduate pursuing, a course of study in international studies my classmates and I received our introduction to the differing philosophies of Yoshihiro Francis Fukuyama and Samuel Phillips Huntington.

In the final stages of the Cold War during the summer of 1989 Francis Fukuyama authored, the seminal article entitled “The End of History” which initially appeared in the summer 1989 issue of The National Interest. In the article, Fukuyama contended that the impending end of the “Cold War” as it had existed since the conclusion of hostilities during the Second World War on September 2, 1945 prefigured the completion of an evolutionary process in political thought and ideology. Fukuyama argued that the process would result in the eventual universalization of liberal democracy and it acknowledgment as the ultimate form of human governance.

What we may be witnessing is not just the end of the Cold War, or the passing of a particular period of postwar history, but the end of history as such: that is, the end point of mankind's ideological evolution and the universalization of Western liberal democracy as the final form of human government. This is not to say that there will no longer be events to fill the pages of Foreign Affair's yearly summaries of international relations, for the victory of liberalism has occurred primarily in the realm of ideas or consciousness and is as yet incomplete in, the real or material world. (Fukuyama 2005)

Fukuyama advanced a Hegelian argument influenced by work of Alexandre Kojève and his student Alan Bloom emphasizing the Hegelian position that a true understanding of history requires a thorough comprehension of the underlying historical processes originated in the realm of ideas (consciousness) and transcended the material world.
For Hegel, the contradictions that drive history exist first of all in the realm of human consciousness, i.e. on the level of ideas - not the trivial election year proposals of American politicians, but ideas in the sense of large unifying worldviews that might best be understood under the rubric of ideology. Ideology in this sense is not restricted to the secular and explicit political doctrines we usually associate with the term, but can include religion, culture, and the complex of moral values underlying any society as well. Hegel's view of the relationship between the ideal and the real or material worlds was an extremely complicated one, beginning with the fact that for him the distinction between the two was only apparent. He did not believe that the real world conformed or could be made to conform to ideological preconceptions of philosophy professors in any simpleminded way, or that the "material" world could not impinge on the ideal. Indeed, Hegel the professor was temporarily thrown out of work as a result of a very material event, the Battle of Jena. But while Hegel's writing and thinking could be stopped by a bullet from the material world, the hand on the trigger of the gun was motivated in turn by the ideas of liberty and equality that had driven the French Revolution. For Hegel, all human behavior in the material world, and hence all human history, is rooted in a prior state of consciousness an idea similar to the one expressed by John Maynard Keynes when he said that the views of men of affairs were usually derived from defunct economists and academic scribblers of earlier generations. This consciousness may not be explicit and self-aware, as are modern political doctrines, but may rather take the form of religion or simple cultural or moral habits. And yet this realm of consciousness in the long run necessarily becomes manifest in the material world, indeed creates the material world in its own image. Consciousness is cause and not effect, and can develop autonomously from the material world; hence the real subtext underlying the apparent jumble of current events is the history of ideology. . . . For Kojève, as for all good Hegelians, understanding the underlying processes of history requires understanding developments in the realm of consciousness or ideas, since consciousness will ultimately remake the material world in its own image. (Fukuyama 2005)

Fukuyama and his antecedents maintain that the preexisting universal consciousness, the realm of ideas, will eventually transform the material, particular world in such a way that it becomes a true representation of the universal consciousness capable of transcending and bridging areas of potential conflict.

As a counterpoint to balance the Hegelian and utopian aspects of Fukuyama’s article our professor, Dr. Col. Ronald L. Hatchett, UASF ret., required his students to read Samuel P. Huntington’s “The Clash of Civilizations.” Even though he was one of Fukuyama’s mentors, Huntington’s views are the antithesis of those espoused by Fukuyama.

Huntington argued that in the post Cold War era conflicts would occur along cultural fault lines, instead of political and economic ones that had occurred during and before the Cold War

Civilization Identity will be increasingly important in the future, and the world will be shaped in large measure by the interactions among seven or eight major civilizations. These include Western, Confucian, Japanese, Islamic, Hindu, Slavic-Orthodox, Latin American and possibly African civilization. The most important conflicts of the future will occur along the cultural fault lines separating these civilizations from one another. (Huntington 1993).

The core of Huntington’s thesis rests upon a Hobbesian response to the arguments raised within Fukuyama’s “End of History.” Huntington identified six root causes for future clashes between the various cultural groups: One, difference between civilizations; Two, heightened interaction between differing civilizations; Three, economic and social changes that undermine local identity and inhibit the nation-state from fulfilling its role as definer of the national identity, and unifying force. The need to fill the void created by the inability of the state to serve as a unifying force mandated that religion assume this function previously held by the state. Four, Huntington asserts that cultural differences are more static and less likely to be subject to concessions, unlike political and economic differences to which, solutions are more easily negotiated. Five, economic regionalism; Last, the dual nature of the Western civilization, has resulted in an admiration of the power and influence possessed by the Western nations by Non-Western nations, while, simultaneously inciting what Huntington termed a “return to roots phenomenon”

The six root causes for conflict documented above provide an illustration of the influence of Thomas Hobbes that underpins the “Clash of Civilizations.” In chapter, thirteen of Leviathan Hobbes contended that the nature of humankind was predisposed to be quarrelsome. Hobbes believed that the conflict between humans originated from three sources competition, indifference, and greed.

From this equality of ability ariseth equality of hope in the attaining of our ends. And therefore if any two men desire the same thing, which nevertheless they cannot both enjoy, they become enemies; and in the way to their end (which is principally their own conservation, and sometimes their delectation only) endeavour to destroy or subdue one another. And from hence it comes to pass that where an invader hath no more to fear than another man's single power, if one plant, sow, build, or possess a convenient seat, others may probably be expected to come prepared with forces united to dispossess and deprive him, not only of the fruit of his labour, but also of his life or liberty. And the invader again is in the like danger of another.
And from this diffidence of one another, there is no way for any man to secure himself so reasonable as anticipation; that is, by force, or wiles, to master the persons of all men he can so long till he see no other power great enough to endanger him: and this is no more than his own conservation requireth, and is generally allowed. Also, because there be some that, taking pleasure in contemplating their own power in the acts of conquest, which they pursue farther than their security requires, if others, that otherwise would be glad to be at ease within modest bounds, should not by invasion increase their power, they would not be able, long time, by standing only on their defence, to subsist. And by consequence, such augmentation of dominion over men being necessary to a man's conservation, it ought to be allowed him.
Again, men have no pleasure (but on the contrary a great deal of grief) in keeping company where there is no power able to overawe them all. For every man looketh that his companion should value him at the same rate he sets upon himself, and upon all signs of contempt or undervaluing naturally endeavours, as far as he dares (which amongst them that have no common power to keep them in quiet is far enough to make them destroy each other), to extort a greater value from his contemners, by damage; and from others, by the example.
So that in the nature of man, we find three principal causes of quarrel. First, competition; secondly, diffidence; thirdly, glory.

The first maketh men invade for gain; the second, for safety; and the third, for reputation. The first use violence, to make themselves masters of other men's persons, wives, children, and cattle; the second, to defend them; the third, for trifles, as a word, a smile, a different opinion, and any other sign of undervalue, either direct in their persons or by reflection in their kindred, their friends, their nation, their profession, or their name. (Hobbes 1995)
Huntington’s six sources of potential conflict readily reaffirm the Hobbesian contention humankind is in general a species of selfish beings, indifferent to the welfare of others, driven by the desire for self-preservation that is accomplished through the power accrued only through the achievement of economic and political capital.

Hence the West will increasingly have to accommodate these non-Western modern civilizations whose power approaches that of the West but whose values and interests differ significantly from those of the West. This will require the West to maintain the economic and military power necessary to protect its interests in relation to these civilizations. It will also, however, require the West to develop a more profound understanding of the basic religious and philosophical assumptions underlying other civilizations and the ways in which people in those civilizations see their interests. It will require an effort to identify elements of commonality between Western and other civilizations. For the relevant future, there will be no universal civilization, but instead a world of different civilizations, each of which will have to learn to coexist with the others. (Huntington 1993)
In 2002, nine years after the original publication of the “Clash of Civilizations” and thirteen years after Fukuyama’s propositions regarding the “End of History” Stanley Hoffmann offered a critique of both models in an article entitled “The Clash of Globalizations.”

Hoffmann rejected both Fukuyama and Huntington’s models because both possessed deficiencies in their abilities to account for various phenomena. Hoffmann’s primary objection to the Fukuyamian paradigm revolves around Fukuyama’s failure to account for extremist nationalism and the development of future religious conflicts especially those inspired by radical religious fundamentalist groups especially in the predominantly Islamic countries.

His refutation of the Huntingtonian concept is founded upon both a semantic and a substantive argument. Semantically, Hoffmann contends that Huntington’s definition of what constitutes a civilization is illdefined. Substantively, Hoffmann makes three points: First, he observed that the Huntingtonian model errs in the sense that it effectively minimizes intrastate conflicts, dismissing them as unimportant. Second, he believes that Huntington’s view grossly exaggerated role religion plays when considering the behavioral development of non-Western elites who are often more secular and Westernized than the lower classes of the populace. Hoffmann, third and final substantive point reflects the synthesis of his prior two points, he maintains that Huntington cannot establish a firm linkage between his concept of a civilization and the foreign policies of the nation-states comprising these civilizations.

Two models made a great deal of noise in the 1990s. The first one -- Francis Fukuyama's "End of History" thesis -- was not vindicated by events. To be sure, his argument predicted the end of ideological conflicts, not history itself, and the triumph of political and economic liberalism. That point is correct in a narrow sense: the "secular religions" that fought each other so bloodily in the last century are now dead. But Fukuyama failed to note that nationalism remains very much alive. Moreover, he ignored the explosive potential of religious wars that has extended to a large part of the Islamic world.

Fukuyama's academic mentor, the political scientist Samuel Huntington, provided a few years later a gloomier account that saw a very different world. Huntington predicted that violence resulting from international anarchy and the absence of common values and institutions would erupt among civilizations rather than among states or ideologies. But Huntington's conception of what constitutes a civilization was hazy. He failed to take into account sufficiently conflicts within each so-called civilization, and he overestimated the importance of religion in the behavior of non-Western elites, who are often secularized and Westernized. Hence he could not clearly define the link between a civilization and the foreign policies of its member states. (Hoffmann 2002)

As an alternative Hoffmann recommended a neoclassical realistic approach founded on the work of Hans Morgenthau and Raymond Aron but with modifications that can account for terrorism by non-state actors and the challenges posed by the political, cultural, and economic globalization especially in the aftermath of the destruction wrought on September 11, 2001. He urged caution and restraint in the development and use of a new framework.

For all these tensions, it is still possible that the American war on terrorism will be contained by prudence, and that other governments will give priority to the many internal problems created by interstate rivalries and the flaws of globalization. But the world risks being squeezed between a new Scylla and Charybdis. The Charybdis is universal intervention, unilaterally decided by American leaders who are convinced that they have found a global mission provided by a colossal threat. Presentable as an epic contest between good and evil, this struggle offers the best way of rallying the population and overcoming domestic divisions. The Scylla is resignation to universal chaos in the form of new attacks by future bin Ladens, fresh humanitarian disasters, or regional wars that risk escalation. Only through wise judgment can the path between them be charted. (Hoffmann 2002).

John Ralston Saul’s article entitled “The Collapse of Globalism: And the rebirth of nationalism” extends Hoffmann’s views on the subject of the relationship between globalization and terrorism to include market fundamentalism. Saul argued that globalism as an idea appeared in a fog much in the same way that God appeared to Moses in a cloud, that ultimately resulted in the formation of Crucifixion Theory of Economics

Finally, the new approach to debt—public versus private, First World versus Third World—revealed a fatal confusion. Those who preached Globalization couldn’t tell the difference between ethics and morality. Ethics is the measurement of the public good. Morality is the weapon of religious and social righteousness. Political and economic ideologies often decline into religious-style morality toward the end. But Globalization had shoved ethics to the side from the very beginning and insisted upon a curious sort of moral righteousness that included maximum trade, unrestrained self-interest, and governments alone respecting their debts. These notions were curiously paired with something often called family values, as well as an Old Testament view of good and evil. It somehow followed that if countries were in financial trouble, they were moral transgressors. They had to discipline themselves. Wear hair shirts. Embrace denial and fasting. This was the crucifixion theory of economics: you had to be killed economically and socially in order to be reborn clean and healthy. For a quarter century, under the severe hand of the International Monetary Fund, this moralizing and emotionally charged approach has been applied to the developing world with absolutely no success. Oddly enough, it had been presented as a form of cool, detached utilitarianism. Those who applied the theory seemed to fail the basic philosophical test of functioning intelligence and ethics—the ability to imagine the Other. They simply insisted, as developing-world debts continued to rise on a roller coaster of instability, that those people must learn to act in a more predictable manner. Which brings to mind rather aged priests insisting that young men should take cold showers and exercise more. (Saul 2004)

Fundamentalist economists argue in order to achieve `economic salvation’ requires a blind faith and catholic faith in the monolithic structure of Crucifixion Theory. The purists who advance a blind supplication to the theory are demanding a faith uninformed by the light of reason. The main flaws within the Crucifixion Theory are visible within the utilitarian underlayment that reinforces the theory because it advances the good of the state at expense of the individual.

Having read Fukuyama, Huntington, Hoffmann and Saul I find that I concur with Hoffmann’s assessment of both Fukuyama and Huntington’s model. Moreover, I would argue that the need for a more flexible model not tied to the Crucifixion Model was demonstrated as early as 1995-1996 with the bombings of the Alfred P. Murrah Federal Building, and the Khobar Towers.

Works Cited
Fukuyama, Yoshihiro Francis. "The End of History? (1989)." This is Robert L. Stevenson's home page. Edited by Robert L. Stevenson. Robert L. Stevenson. January 13, 2005. http://www.unc.edu/home/rlstev/Text/Fukuyama%20End%20of%20History.pdf (accessed August 13, 2010).
Hobbes, Thomas. "The Leviathan (1660)." Great Voyages: the History of Western Philosophy from 1492-1776, Winter 1997. Edited by Bill Uzgalis and Joy Hughes. Jon Dorbolo, et al. October 1995. http://oregonstate.edu/instruct/phl302/texts/hobbes/leviathan-c.html#CHAPTERXIII (accessed August 13, 2010).
Hoffmann, Irving. "The Clash of Globalizations." Foreign Affairs 81, no. 4 (Jun/Jul 2002): 104-115.
Huntington, Samuel Phillips. "The Clash of Civilizations." Foreign Affairs 72, no. 3 (Summer 1993): 22-49.
Saul, John Ralston. "The Collapse of Globalism: And the rebirth of nationalism." Harper's Magazine 308, no. 1846 (March 2004): 33-43.

2010-07-19T18:05:00.000-07:00

One of the titles given to Mary Magdalene by the Eastern Orthodox Church is Iσαπόστολος, isapostolos in Greek, aequalis apostolis in Latin, which, translates into English as Equal to the Apostles.

Another case is Saint Phoebe (1st century) who was a deaconess of the Church. Phoebe was commended to the congregation of Rome by St. Paul, who praised her for her assistance to him. According to tradition delivered the Epistle to Romans to the congregation, her feast day is 3 September

A third example is Saint Macrina the Younger, the elder sister of Saint Basil who served her community as a deaconess.
Finally, the life of Saint Melania the Younger a contemporary of Macrina founded numerous orphanages, hospices, and served as a deaconess,

I would humbly assert that Mary's designation and the work of these women and many others in the early church are sufficient reasons to warrant the full ordination and participation of women within the Roman Catholic Church. Furthermore, this position is consistent with the Jewish customs and mores that are the foundation for Christianity, traditions that recognized the feminine aspect of the Divine Presence exemplified by the Shekhinah.

The 2010 revisions made to Normae de gravioribus delictis, which ratified and reaffirmed the General Decree: regarding the delict of attempted sacred ordination of a woman, issued by the Congregation for the Doctrine of the Faith on 19 December 2007.
The more grave delict of the attempted sacred ordination of a woman is also reserved to the Congregation for the Doctrine of the Faith:
1° with due regard for can. 1378 of the Code of Canon Law, both the one who attempts to confer sacred ordination on a woman, and she who attempts to receive sacred ordination, incurs a latae sententiae excommunication reserved to the Apostolic See.
2° If the one attempting to confer sacred ordination, or the woman who attempts to receive sacred ordination, is a member of the Christian faithful subject to the Code of Canons of the Eastern Churches, with due regard for can. 1443 of that Code, he or she is to be punished by major excommunication reserved to the Apostolic See.
3° if the guilty party is a cleric he may be punished by dismissal or deposition
The position adopted by the Roman Catholic Church, flies in the faces of history and contravenes the positions adopted by the earliest communities.

The Musings of a Layperson on a Judicial Nominee

2010-07-01T00:21:00.001-07:00

The confirmation proceedings for Solicitor General Elena Kagan to become the newest Associate Justice of the Supreme Court of the United States have been largely unremarkable in that the hearings have not illumined Solicitor General Kagan’s personal views on any substantive points of law that are likely to be examined by the Court. Many of the Senators who are attempting to ascertain the Solicitor General’s qualifications and fitness for the appointment have complained about her scant production of literature related to topics such abortion and the right to bear arms. Indeed I would assert that this dearth of information is an effort to avoid the same fate as former Solicitor General Robert Bork whose writings were utilized to raise questions about his temperament and resulted in the defeat of his nomination to the Supreme Court of the United States as potential successor to former Associate Justice Lewis F. Powell in 1987. Since then potential nominees have been quite circumspect about the tenor of the writings they publish. As result the Senate Judiciary Committee will be forced to rely on the testimony of the nominee and the witnesses that have been called to testify on the nomination because, there is very little within the documents that could be held to be construed as controversial.
President Obama's commissioning of Solicitor General Kagan as the replacement for the retiring Justice Stevens is neither unexpected nor is it without precedent four other Solicitor’s General have ultimately occupied seats on the Supreme Court of the United States with one serving as Chief Justice of the Supreme Court of the United States, the other three former Solicitors General of the United States confirmed to the high court served as Associate Justices of the Supreme Court of the United States.
The first Solicitor General of the United States to serve on the Court was President Benjamin Harrison's second Solicitor General, the thirty-two year old William Howard Taft who served in the position from February 1890 until his confirmation to the Sixth Circuit Court of Appeals on 17 March 1892, although thirty-one years would pass before President Warren G. Harding would commission the former President of the United States on 30 June 1921. In June 1921 President Harding commissioned the sixty-three year old Taft to succeed Chief Justice, Edward Douglass White who had died on 19 May 1921 following complications from gallbladder surgery. Former President Taft was confirmed the same day his nomination was received in the Senate a feat few justices have achieved. The vote taken by the Senate overwhelmingly confirmed his nomination by a vote of sixty in favor, four against and thirty-two not voting. Chief Justice Taft took both the Constitutional Oath and Judicial Oath on 11 July 1921. Chief Justice Taft served eight years, six months, and twenty-three days before retiring on 3 February 1930 due to failing health. Chief Justice Taft died thirty-five days later on 8 March 1930 aged seventy-two
Since Taft's appointment to the court three other Solicitor Generals have been appointed to the Court, these individuals were the following:

1. On 26 January 1938, Solicitor General Stanley Forman Reed was commissioned by President Franklin Delano Roosevelt to replace Associate Justice George Sutherland who had retired 16 January 1938 after fifteen years, three months, and fifteen days at the age of seventy-five. Justice Reed served nineteen years and twenty-five days before he retired on 24 February 1957 at the age of seventy-two.

2. Three and half years later on 10 July 1941, Attorney General and former Solicitor General Robert Houghwout Jackson was nominated by President Franklin Delano Roosevelt to replace the newly promoted Associate Justice Harlan Fiske Stone who became Chief Justice on 2 July 1941 following the retirement of Chief Justice Charles Evans Hughes on 1 July 1941. Justice Jackson served thirteen years, two months and twenty nine days until his death from a massive heart attack on 9 October 1954.

3. Almost thirteen years after Justice Jackson’s death President Lyndon Baines Johnson nominated the last Solicitor General to become a Supreme Court Justice, Thurgood Marshall. On 13 June 1967 President Johnson nominated his Solicitor General replace Associate Justice Thomas Campbell Clark (Tom C. Clark) who had retired on 11 June 1967 concluding seventeen years, nine months and nineteen days of service in order to permit his Ramsey Clark’s nomination as Attorney General of the United States to proceed. Justice Marshall served for twenty-three years, eleven months and twenty-nine days before he retired on 30 September 1991 at the age of eighty-three due to ill health.

Another issue that has caused some concern among critics of Solicitor General Kagan’s nomination is her lack of prior judicial experience. In my view, however, this should not be an absolute bar to her confirmation. If one examines the levels of the four former Solicitors General to sit on the Court as Justices only Chief Justice Taft and Associate Justice Thurgood Marshall possessed previous judicial experience having served on the United States Court of Appeals for the Sixth Circuit and the United States Court of Appeals for the Second Circuit respectively. Neither Justice Reed nor Justice Robert Jackson served in any judicial capacity prior to their respective appointments to the Supreme Court. Furthermore, Justice Reed never attended law school, and Justice Robert Jackson briefly attended law school but did not graduate, a fact which differentiates Solicitor General Kagan from both Justices Reed and Robert Jackson.

I conclude my remarks on the nomination by reserving my judgment on how Solicitor General Kagan’s judicial temperament will manifest itself in the event that she is confirmed. I reserve my judgment because, I am reminded that in some in notable cases an individual once appointed has not fulfilled the expectations of the President who appointed them. For example, Oliver Wendell Holmes Jr., Earl Warren and William J. Brennan disappointed Presidents Theodore Roosevelt and President Dwight David Eisenhower. President Eisenhower is reputed to have remarked that he was not sure which was his worse mistake appointing Chief Justice Warren or Associate Justice Brennan.

A Brief Explanation of my Recent Hiatus

2010-05-11T14:54:00.000-07:00

My absence from my blog has in large measure been due to my need to focus on the rehabilitation of my reconstructed left leg.

Update

2010-05-11T14:44:00.000-07:00

My progress on my masters program has suffered a setback albeit a minor one. For some reason, which, has not been fully and adequately explained I was inadvertently dropped from my current courses. Fortunately I only have to wait a month before the next session begins.

On another note President Obama's civil service reforms that include the reduction and eventual elimination of KSA essays from the application process should make my quest for gainful employment easier.

Some Thoughts on Realism and its Progeny

2010-02-19T01:11:00.000-08:00

In the field of international relations, the realist school of thought founded by Hans Joachim Morgenthau, and Edward Hallett Carr was established as a counterpoint to the idealistic (utopian) school of thought as exemplified by Ralph Norman Angell and Alfred Zimmern.

As a theory describing the nature and purpose of international relations, classical realism rests on framework of six pillars first articulated by Carr in his seminal text The Twenty Years' Crisis 1919-1939, which, was released in 1939 just days before the outbreak of the Second World War. Carr’s six rudimentary theses were refined by Morgenthau in his 1948 classic entitled Politics Among Nations: The Struggle for Power and Peace.

The first principle underlying realism is the idea that international system developed in such way that the nation-state serves as the key actor within the system. Second, Carr, Morgenthau and subsequent realists argue that international politics is at its most basic level, an expression of a power struggle, a conflict between nation-states facilitated by the absence of an effective governmental structure on the international level. Furthermore, they maintained that continual state of conflict, which, exists on intrinsically the international level required the nation-states to inevitably rely on their own capacities and assets in order to ensure their survival as sovereign states. Third, the classical realists adhere to the belief, that in theory recognized nation-states alone possessed de jure the legal standing necessary to engage in relations with each other. The realists further qualified this point in order to account for the de facto differences in the capabilities of each nation-state and the boundaries imposed upon the states by the presence of these differences. The realists held that these de facto differences in capability amongst the nations resulted in the community of nation-states being divided into two general classes `more powerful states’ and `less powerful weaker states. The designation of a nation-state as a powerful state or a weaker state is based on the amount power and the nature of the influence exercised by the nation-state. The amount power and influence exercised the various states is calculated and determined by assessing quantitatively and qualitatively the de facto differences in capability. Fourth, in the realist school the nation-state is viewed as single unitary entities capable of separating domestic politics of the state from its foreign policy by compartmentalizing them into two independent and unconnected spheres. Fifth, realists perceive nation-states as entities characterized by rational decision making processes resulting in choices that benefit the national interest. Lastly, Carr and Morgenthau argued that power, its acquisition, exercise, and maintenance are the key, necessary to understanding, explaining and predicting the behavior of the nation state.

In the 1980’s a group of realist theorists led by Kenneth Waltz who were dissatisfied with the manner in which key concepts were being defined broke with the classical realist school and formulated neo-realistic theory as a critique of classical realism that was intended to be a reformulation of Carr and Morgenthau’s classical realism. As a preamble to the main body of their work Waltz and the other neo-realists forcefully argued that the core concepts of realism should be redefined in such a way that conformed to neo-realistic desire for a greater clarity, consistency and rigidity in the discussion of the key concepts of realism. Waltz and others also maintained that the structure of Carr and Morgenthau’s classical realism required several updates and revisions. First, the neo realists saw power not as a final end, but as a byproduct that resulted from a political relationship. Second, within the structure of realism, the neo-realists replaced power. Thirdly, Waltz and his collaborators sought replace Morgenthau’s single factor approach that viewed power as the ultimate end to a multi-factored approach asserting that politics is the master key, necessary to understanding, explaining and predicting the behavior of the nation state. Lastly, the neo-realists modified the anarchical formulation employed by traditional realists to describe the political landscape on the international level as well as the relationships between the international level and lower levels, creating the international system to better address these relationships, while retaining the wall isolating domestic policy and foreign policy.

Unlike the realists and neorealists, before them the neoclassical realists represented a major departure from long held ideas concerning the need to separate domestic and foreign affairs into two distinct and independent spheres. Neoclassical realists argue that since the same economic and technological variables effect both domestic and foreign policy alike there exists no need for the separation because, its serves no discernible purpose and in fact hinder a proper study power and politics.

Structural Functional Analysis: A Rudimentary Discussion

2010-02-18T23:00:00.000-08:00

Structural-functional analysis is a quantitative and objective method of analyzing different political systems by conducting a thorough examination of the individual structures within the political systems, and the institutions that form these structures, by comparing and contrasting the functions and roles these structures and institutions perform within the political system. Structural functional analysis also explains the interdependence that exists between the different structures and institutions that form the political system.

In order to conduct a structural-functional analysis two points must be assumed a priori: One is that the functions of the structures that form the political system, and the roles of the institutions that constitute the structures within the political system may differ from country to country. Two, structural functionalism assumes that while, a political structure and its institutions may possess and exercise more power with regard to a particular function within the political system, in most cases a single structure and its institution will not be permitted to possess absolute control over any one function within the political system. For example, within the United States political system even though the President of the United States, in his capacity as chief executive can appoint cabinet secretaries, for these appointments to become permanent the appointments must be confirmed by the Senate of the United States.

Within the political system there are six different structures that can be subjected to analysis. The six structures are the following: political parties, interest groups, legislatures, executives, courts, and bureaucracies. The outputs produced by these six structures can be examined to obtain quantifiable data concerning the four process functions which must occur for policy to be made and implemented. The first two functions involve the articulation and aggregation of interests. The other two processes are concerned with policy-making and the implementation of policy.
Structural-functional analysis can also be utilized to collect data about the three systemic functions that determine whether or not the political system will change or remain the same. The three functions that are used in this determination are the following: political socialization, political recruitment, and political communication.

The use of these functions impart to the theory its greatest strength namely, that because the data is purely empiric the data is not subject to the vagaries of any bias possessed by the authors or survey takers. Conversely, the nature of the data also lends itself to the greatest weakness of the theory. Structural-functional analysis by its nature cannot be used to account for the beliefs, mores and customs adhered to by individuals.

MA 2010

2010-01-20T00:24:00.000-08:00

Many argue that Brown's win is detrimental to the Democrats, while signalling the beginning a rejuvenation of the Republican Party. Although, this appears to be true on the surface Brown's win presents with the Republicans with some difficulties since, Senator-elect Brown's real politics follow along the same lines as former Senator Edward Brooke's, in the sense that Brown like Brooke before him is percieved as being a maverick with Massachusetts' Republican cricles. If Senator McConnell is looking to Brown to be a yes man who rigidly tows the party line in opposition to the Democrats then the leadershp will be sorely disappointed.

Brown's victory will necessitate alterations in the tactics and strategies employed by the majority when interacting with the minority.

In my mind Brown's victory serves a reaffirmation of the fact that the majority remains incapable of preventing a fillibuster thereby keeping the staus quo as it stood prior to Senator Kennedy's death.

The next races to watch will be the senatorial contests in Texas and North Dakota

An Update

2010-01-02T22:05:00.000-08:00

On 27 December 2009 I snapped my tibia and fibula an inch above the ankle in my left leg. The forced bedrest that this injury mandated has forced me to temporarily suspend both my job hunt and the physical therapy that forms a part of my treatment regimen to negate the symptoms associated with Fibromyalgia Spondalosis.

My injury allowed me to complete an in depth reading of the textbooks required for my first postgraduate courses.

Masters Program

2009-12-07T19:29:00.000-08:00

I know it has been a long while since, my last upadte. I am enrolled in the M.A. in Intelligence Studies offered through American Military University.

I begin my classes in February 2010, my first three courses will be Research Methods in Security and Intelligence Studies-Intel Majors, Strategic Intelligence and Collection.

Job Hunt Update

2009-09-04T10:46:00.000-07:00

I have another interview. Knowing my luck. I should probaby ask Saint Jude, the patron saint of lost and hopless causes to intercede on my behalf with the angelic powers.

Progress at Last: a premature post

2009-08-07T21:53:00.000-07:00

I have a job interview on Monday perhaps, if all goes well I will be gainfully employed starting next week. The interview came to naught.

Prime Minister Netanyahu's Conditions for the Establishment of a Palestinian State

2009-06-15T10:57:00.000-07:00

I am inclined to believe that Prime Minister Netanyahu's prequisites for the establishment of a Palestinian nation-state, are merely platitudes which are designed as an attempt to diffuse the criticism of Israeli positions that have been on the rise within United States and United Kingdom.

If Prime Minister Neatanyahu and his coalition believe that Palestians especially the memmbers of Hamas and Fatah would accept the conditions that Prime Minister Netanyahu elucidated on in his address to Bar-Ilan University, then they have deluded themselves.

Only a fatuous idiot would think that Palestinans would disarm in order to achieve the creation of state. History has demonstrated that the majority of such states ultimately fail. Indeed the Palestinians could argue that any agreement to such a condition would constitute an abdication of their responsibility to provide for the protection and defense of the Palestinian people.

Martial Arts and Politics

2009-06-15T10:34:00.000-07:00

I have studied the martial arts for many years. In my studies I have found that almost uniformly in the Chinese, Japanese, Korean, and Okinawan traditions the concept that an interrelationship exists between the active and passive principles as examplified by the by the Chinese Taoist principle of the Yin and Yang, its Korean variant Um and Yang or it Japanese incarnation of Inyodo.

This concept has a practical application within the political realm. I believe that the cyclical nature of politics lends credence to such an application.
Indeed if an individual examines the history of the shifts in power within the Congress, and the Presidency a clear cyclical pattern emerges.

In light of the constant shifts within politics. I would argue that a successful and durable political strategy, is a strategy employed by a party that recognizes the importance of these cycles, and utilizes their time in the minority to reconsolidate and marshal their forces anew, while acquiring the assets necessary to successfully transition from one cycle to another.

Some may interpret this as advocating a complete state of passivity while, being in the minority. This view is inaccurate because, neither principle can effectively govern without the presence of the other.

As such I would contend that the minority party should focus the majority of its activities on retrenchment, consolidation and acquisition of new assets. At this point it seems prudent in my opinion to choose battles with the majority selectively, being careful to avoid a wholesale disengagement and retreat from the press outlets controlled by the majority party, while, embracing only those outlets sympathetic to the positions adopted by the minority. Such an exclusive strategy could nullify efforts to expand the base to draw in more moderates and independent minded people like Senators Barrasso Chambliss, Collins, Hagan, Shelby, and Snowe. It would also negate Chairman Steele's overtures with respect to minority groups

Tea

2009-06-03T12:30:00.000-07:00

If you are cold, tea will warm you. If you are too heated, it will cool you. If you are depressed, it will cheer you. If you are excited, it will calm you. William Ewart Gladstone

I find that in my present difficulties that tea has proved to be a valuable relaxant. Indeed in my current state only long conversations with my beloved are more calming than a well made cup of tea.

Millvina Dean 1912-2009 and Bertram Dean 1910-1992

2009-06-01T15:53:00.000-07:00

The death on 31 May 2009 of Elizabeth Gladys Millvina Dean aged ninety-seven, was both ironic and befitting given her status as the last survivor of the tragedy, in the sense that she died on the ninety-eighth anniversary of the launch of RMS Titanic which occurred on 31 May 1911.

Her elder brother Bertram Vere Dean also died on an anniversary related to the RMS Titanic disaster. Bertram died on 14 April 1992 at the age of eighty-one. He died on the eightieth anniversary of the sinking of the Titanic

It is ironic that the deaths of the Dean's should occur on anniversaries related to a ship that affected the beginning of their lives so profoundly.

Feast of Saint Sarah: A Catholic Layman's Perspective

2009-05-27T13:55:00.000-07:00

The twenty-fourth of May was the Feast Day of Saint Sarah, as a Roman Catholic layman I would like to offer a few thoughts on the importance of Saint Sarah.

First, argue that feast of St. Sarah and its observance by French Catholics reflects an acknowledgement and affirmation of the divine feminine. The color of Sarah’s skin serves as a remiinder that powers that be within the Church attempted silence and discredit those whose thought was non-conformist by branding them as heretical or otherwise schismatic.

Second, I believe that in sense the festival served as a form of peaceful resistance by the Catholics of Languedoc whose pupose was an is to keep the pure unadulterated memory of the divine feminine alive within the hearts of Roman Catholics, as a counterbalance to the atempts made by the hierarchy to alter or otherwise adulterate the true nature of God to suit its purposes.

Last, Saint Sarah serves as a beacon of hope for those Catholics within the Church whose voices have yet to be heard by Rome and it is by following the example set by her and her parents that on the Day of the Last Judgment we will able to say God that we were faithful to you,

The Report out of Ireland on the Abuse that occurred in many Reformatories

2009-05-22T10:30:00.000-07:00

As a Catholic, I am horrified by the evidence presented which, illumines a pattern of systemic child abuse occurring within the Irish reformatories.

I am ashamed and disgusted by the conduct of the religious institutions, and bishops responsible for overseeing the reformatories at center of the abuse scandal that permitted the propagationof a culture of abuse within the Roman Catholic Church in Ireland and the United States.

The propensity of the superiors of the religious orders and the local ordinaries to reassign and transfer the clergy responsible for such barbarity is unconscionable and unjustifable. The actions of the bishops and the superiors is tantamount to an implicit admission that such behavior was and is acceptable within a religious institution.

That such reassignments of abusive clergy occurred at all, reflects a callous and intentional disregard for the safety and well being of their parishoners and charges. I would argue that the perpetrators of the abuse should be prosecuted to the maximum extent that law allows. I also believe that the local ordinaries, and superiors of religious orders responsible for reassigning abusive clergy should be prosecuted for their role in propagating the abuse.

Such conduct is an abomination, an anathema offensive in the eyes of God and humankind. The clergy responsible should be excommunicated and when they die its my hope that they reside for all time in the tenth circle of Hell.

A Laypersons Perspective: Governor Huntsman's Nomination and the Signals it Sends

2009-05-16T10:01:00.000-07:00

The nomination of Governor Huntsman as the next Ambassador from the United States of America to the People's Republic of China sends a strong signal to the government in Beijing that the relationship between the two countries continues to be of the utmost importance because Governor Huntsman's prior diplomatic service and his knowledge of Chinese culture demonstrates that he will be a worthy and able sucessor to Ambassador Clark Randt Jr.

Governor Huntsman's nomination also highlights the continuation of the efforts by the Obama administration to continue those policies of the previous administration aimed at discouraging Beijing from relasing into and flooding the common market with the sum total of excess U.S. currency that the Chinese treasury now holds in its reserves. Additionally, ther nomination also signals to Beijing that Washington will continue to negotiate trade issues respectfully but, forcefully and will not be easily cowed into giving up any advantages either tactical or strategic.

A Supplement to my post of 14 May 2009

2009-05-15T13:34:00.000-07:00

It has been suggested in discussions that Justice Souter lacked Republican friends and allies when he arrived in Washington D.C. ninteen years ago. This argument is at least partially refuted by the fact that the final result in the full Senate was that ninety Senators voted in favor his confirmation, nine voted against confirmation, and one Senator did not vote.

During the 101st Congress the seat distribution occurred in the following manner the majority party: the Democrats held 55 seats and the minority party: the Republicans held 45 seats with no other parties being represented.

All but one Republican Senator voted to confirm the nominee, Souter. The only Republican who did not cast a vote was Senator Pete Wilson (R-CA) who was not present when the vote was taken. The Republicans were joined by forty-six Democrats who voted in favor of Souter's confirmation. The nine Democrats who opposed the nomination were the following:

Brockman Adams (D-WA)
Daniel Akaka (D-HI)
Bill Bradley (D-NJ)
Quentin Burdick (D-ND)
Alan Cranston (D-CA)
Ted Kennedy (D-MA)
John Kerry (D-MA)
Frank Lautenberg (D-NJ)
Barbara Mikulski (D-MD)

If Justice Souter lacked friends in Republican circles it seems to me that his nomination would not have engendered the complete support of the Republican minority in the Senate.

Justices of the Supreme Court of the United States and Other Judges: A Response to the Valley of the Shadow: The Republican Encyclicals: The 3x3 Rule

2009-05-14T15:36:00.000-07:00

In the post that is linked here my friend JSF discussed how to avoid selecting individuals that strayed ideologically from the conservative fold, specifically he mentioned Governor Schwarzenegger and Associate Justice of the Supreme Court of the United States, David Hackett Souter.

Valley of the Shadow: The Republican Encyclicals: The 3x3 Rule

While, I defer to JSF regarding Governor Schwarzenegger and his tendencies. I am inclined to disagree with his assessment of Justice Souter and jurisprudence for the foregoing reasons.

I hate the use of the terms "activist judge," "passivist judge," "strict constructionalist," and "loose constructionalist," to describe the jurisprudential philosophies of judges especially those that serve on the Supreme Court of the United States because, these phrases are attached willy-nilly based upon a superficial reading of their opinions.

An execellent example of the failure of these terms can be illustrated in the case Griswold v. Connecticut, 381 U.S. 479; 85 S. Ct. 1678; 14 L. Ed. 2d 510; 1965 U.S. LEXIS 2282 (1965). The majority in the case led by Justice William O. Douglas argued that penumbras" and "emanations" derived from those righr explicitly set forth in the Constitution implicitly permitted the extension of those protections to include a "right of privacy." Justice Goldberg, a "liberal" justice concurred with the majority using the protections contained in the Ninth Amendment.

The result is interesting because two of the most "conservative' Justices on the court at the time Justices Harlan II, and Byron White also concurred with the result. In their concurrences with the result Justices Harlan II and Byron White both asserted that the protections provided Due Process Clause of the Fourteenth Amendment extended by implicstion to cover a right to privacy

Conversely, Justice Hugo LaFayette Black, the intellectual leader of the "liberal bloc" of Justices on the Court at that time dissented from the majority opinion arguing that Consitutional protections could be afforded to a "right of privacy"

...we are not, in my view, justified in holding that the First Amendment forbids the State to punish their conduct. Strongly as I desire to protect all First Amendment freedoms, I am unable to stretch the Amendment so as to afford protection to the conduct of these defendants in violating the Connecticut law. What would be the constitutional fate of the law if hereafter applied to punish nothing but speech is, as I have said, quite another matter. The Court talks about a constitutional "right of privacy" as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the "privacy" of individuals. But there is not. There are, of course, guarantees in certain specific constitutional provisions which are designed in part to protect privacy at certain times and places with respect to certain activities. Such, for example, is the Fourth [p509] Amendment's guarantee against "unreasonable searches and seizures." But I think it belittles that Amendment to talk about it as though it protects nothing but "privacy." To treat it that way is to give it a niggardly interpretation, not the kind of liberal reading I think any Bill of Rights provision should be given. The average man would very likely not have his feelings soothed any more by having his property seized openly than by having it seized privately and by stealth. He simply wants his property left alone. And a person can be just as much, if not more, irritated, annoyed and injured by an unceremonious public arrest by a policeman as he is by a seizure in the privacy of his office or home.

One of the most effective ways of diluting or expanding a constitutionally guaranteed right is to substitute for the crucial word or words of a constitutional guarantee another word or words, more or less flexible and more or less restricted in meaning. This fact is well illustrated by the use of the term "right of privacy" as a comprehensive substitute for the Fourth Amendment's guarantee against "unreasonable searches and seizures." "Privacy" is a broad, abstract and ambiguous concept which can easily be shrunken in meaning but which can also, on the other hand, easily be interpreted as a constitutional ban against many things other than searches and seizures. I have expressed the view many times that First Amendment freedoms, for example, have suffered from a failure of the courts to stick to the simple language of the First Amendment in construing it, instead of invoking multitudes of words substituted for those the Framers used. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254, 293 (concurring opinion); cases collected in City of El Paso v. Simmons, 379 U.S. 497, 517, n. 1 (dissenting opinion); Black, The Bill of Rights, 35 N.Y.U.L.Rev. 865. For these reasons, I get nowhere in this case by talk about a constitutional "right of privacy" as an emanation from [p510] one or more constitutional provisions. [n1] I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to. invade it unless prohibited by some specific constitutional provision. For these reasons, I cannot agree with the Court's judgment and the reasons it gives for holding this Connecticut law unconstitutional.

This brings me to the arguments made by my Brothers HARLAN, WHITE and GOLDBERG for invalidating the Connecticut law. Brothers HARLAN [n2] and WHITE would invalidate it by reliance on the Due Process Clause of the Fourteenth Amendment, but Brother GOLDBERG, while agreeing with Brother HARLAN, relies also on the Ninth Amendment. I have no doubt that the Connecticut law could be applied in such a way as to abridge freedom of [p511] speech and press, and therefore violate the First and Fourteenth Amendments. My disagreement with the Court's opinion holding that there is such a violation here is a narrow one, relating to the application of the First Amendment to the facts and circumstances of this particular case. But my disagreement with Brothers HARLAN, WHITE and GOLDBERG is more basic. I think that, if properly construed, neither the Due Process Clause nor the Ninth Amendment, nor both together, could under any circumstances be a proper basis for invalidating the Connecticut law. I discuss the due process and Ninth Amendment arguments together because, on analysis, they turn out to be the same thing -- merely using different words to claim for this Court and the federal judiciary power to invalidate any legislative act which the judges find irrational, unreasonable or offensive.Griswold v. Connecticut, 381 U.S. 479; 85 S. Ct. 1678; 14 L. Ed. 2d 510; 1965 U.S. LEXIS 2282 (1965).

I would argue that the same holds true when such language is applied to Justice Souter, the blanket characterization of Souter as an "activist" "liberal" or "loose constructionalist fails to thoroughly examine his record as a jurist. A proper study of his jurisprudential philosophy requires that the review be taken beyond cases such Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), or Lawrence v. Texas, (2006), and be extended into cases involving property rights issues such as "eminent domain."

Indeed, conservatives will be saddened by his loss when his voice is no longer heard in cases involving eminent domain and other property issues or issues related to commerce where he adopted a fiscally conservative position. I would argue that a thorough exmination of Justice Souter's record demonstrates that he was a highly qualified and thoughtful justice who sought a "middle road." He was for all intents and purposes a maverick who eschewed a rigid party identification.

Where Judges are concern and in particular Justices are concerned, I think that partisans only focus on those cases that serve to advance their points without giving due regard to the precedents that preceded the case at bar.

As Learned Hand pointed out in 1921 in his opinion regarding Reiss v. National Quotation Bureau, Inc., 276 F. 717 (S.D.N.Y., 1921), the Consititution by its nature is a flexible document, which, can and does readily adapt to the changing needs of the Republic.

Now it is argued that these cases are distinguishable, because they arose under an act of Parliament which was not limited by any Constitution. So, indeed they were, and if our Constitution embalms inflexibly the habits of 1789 there may be something to the point. But it does not; its grants of power to Congress comprise, not only what was then known, but what the ingenuity of man should devise thereafter. Of course, the new subject-matter must have some relation to the grant; but we interpret it by the general practices of civilized peoples in similar fields, for it is not a strait-jacket, but, a charter for a living people. Reiss v. National Quotation Bureau, Inc., 276 F. 717 (S.D.N.Y., 1921).

Thomas Anthony Heath

2009-05-02T10:17:00.000-07:00

I want to share a picture of my nephew Thomas Anthony Heath born yesterday. He weighed in at 4 pounds 2 ounces and was 17 inches long.

Justice Souter's Retirement and its Effect on Justice Kennedy

2009-05-01T20:32:00.000-07:00

Justice Souter's announcement tody that he plans to retire at the conclusion of the 2008-2009 term after nineteen years of service on the Supreme Court of the United States, while expected has left me reflecting on what his legacy on the jurisprudence of the nation will be and how history will remember him.

While, many conservatives will not be saddened to see him retire either because of his rulings on social issues including abortion.

Cnversely liberals who were infuriated by his holdings on land and property issues such as eminent domain.

For myself I will miss the independent spirit that have characterized his decisions. In sense the retirement of Justice O'Connor in 2006 and Justice Souter at the end of this term has largely divested the Court of moderate centrists who maintain the balance between liberal Justices led by Justice Stevens, and the conservative justices led by Chief Justice Roberts. Of the Justices who remain only Justice Kennedy could be classified as a centrist. Yet, unlike Justices O'Connor and Souter whose voices were strong amd clear.

Most observers would argue that Justice Kennedy's voice was up untill Justice O'Connor's retirement muted to an extent. With the exceptions being Planned Parenthood of Southeastern Pennsyvania v. Casey and Lawrence v. Texas .

What I find most interesting about the criticism of Justice Kennedy is the criticism that some observers level at him because, he like Justice O'Connor has been known to refer to international law and foreign sources of law from time to time in his opinions.

The opposition to the use of foreign and international laws in the deliberative process strikes me as quirte bizzare because, Justices have included such precedents in their opinions as far back as 1798. The evidence for the inclusion of such precedent can be found in Justice Chase's references to Sir. William Blackstone and Sir. Richard Woodeson the English jurists in his opinion in Calder v. Bull 3 U.S. (Dall.) 386 (1798).

Governor Perry and Secession

2009-05-01T14:25:00.000-07:00

I have descended into the tenth circle of hell, what happening to the State of Texas we had the nutters from the Republic of Texas separatists. Now it is being reported that both Governor Bush in 1994 during his campaign against former Governor Richards, and Governor Perry at various points in their tenure while, it is true that they have done so those incidents were not taken in situ

I would like to make four points in regard to these stories.

First, Texas was annexed to the United Sattes and admitted into the union in December 1845. No secession clause was included in the treaty admitting Texas into the Union. A prior treaty in 1844 which included such a clause failed to pass the United States Senate.

Second, the issue of Texas secession was settled in 1868 when the United States Supreme Court issued it decision in Texas v. White, 74 U.S. 700 (Wall.)(1868)

Third, the formation of the original Republic of Texas was only an interim measure, The original intent of the majority of the founders who were involved in drawing up the Texas Declaration of Independence in March 1836. General Houston and with his Jacksonian allies wanted to draw Santa Anna across the Sabine River and into Louisiana, where he would then face the combined armies of General Houston, and the Western Department of the United States Army commanded by Major General Edmund Pendleton Gaines. President Jackson and General Gaines favored the idea, while the Commanding General of the U.S. Army Major General Alexander Macomb and Major General Winfield Scott who commanded the Eastern Department opposed the plan. The purpose of the plan was to draw Mexico into a war with the United States so that the United States could acquire through military the Mexican province of Coahuila y Tejas.
It was only the dissatisfaction of the rank and file of the Texas Army that forced General Houston into battle at San Jacinto, and the opposition from the Whigs andthe northern Democrats that prevented annexation immediately after the Battle of San Jacinto.

Fourth, Governor Perry's comments were purely made out of poilitical calculations, specifically the need to align himself with the most conservative elements within the Republican Party in Texas. Governor Perry's standing within the Texas Republican Party made it necessary because on the whole he is less popular with the more moderate elements within the party are looking for other candidates to challenge him in the 2010 gubenatorial primary.

If Governor Perry's only opposition in the 2010 gubenatorial primary were from either Larry Kilgore of the Texas Secession Party, or Debra Medina, Chairwoman of the Wharton County Republican Party, then his renomination becomes more likely.

However, many of the influental moderate and liberal Republicans are looking to Seantor Kay Bailey Hutchison to challenge Governor Perry in the 2010 Republican primary election for the gubenatorial nomination. Senator Hutchison's potential challenge poses a looming obstacle to Governor Perry's desire for a third term as Governor of Texas because, the popular affection and popular support she possesses within Texas, are items to which Governor Perry cannot lay a claim and diminishes the Governor's chances of winning renomination.

I do not mind that both he and Governor Bush before him used the concept of secession for their own political gain. The problem I have with theris speeches are that they demonstrated how little they actually know about the history of the State of Texas. It is my belief that if any individual desires to occupy the statehouse of any state in the Union, then those candidates have a duty and a responsibility to study closely the history of their respective states. In my experience decisions made without due regard being given to the past, are questionable in both content and spirit.

Presidents Jackson, Lincoln, Clinton, Bush, Obama, and the Writ of Habeas Corpus

2009-04-29T22:24:00.000-07:00

President Obama has repeatedly asserted that he considers President Lincoln his role model, in terms of governance. There are parallels between the Lincoln and Obama administrations.

First, President Lincoln entered office during a period of conflict because, seven states had already seceded from the Union by the time Lincoln entered office on 4 March 1861. Likewise President Obama entered into office in the midst of conflicts in Iraq and Afghanistan involving United States armed forces.

Second, during the early days of the Civil War President Lincoln unilaterally and without consulting Congress suspended the right of Habeas Corpus. A similar situation now confronts President Obama because the Bush administration’s policies regarding the right of detainees suspected of terrorism or being enemy combatants with regard to applications for writs of habeas corpus, has placed the new Obama administration in the unenviable position of restoring the right of such suspects to petition for writs of Habeas Corpus. A process the Obama administration began on 21 January 2009 with an executive order.

Despite this order the right to petition for writs of Habeas Corpus has not officially been restored by executive order to the prisoners detained at Bagram Theater Internment Facility.

The question that I have been pondering is how quickly the Obama Administration will bring the executive branch into conformity with the stance assumed by the judicial system as elucidated in the following decisions of the Supreme Court of the United States:

1. Rumsfeld v.Padilla, 542 U.S. 426, 124 S. Ct. 2711; 159 L. Ed. 2d 513; 2004 U.S. LEXIS 4759; 72 U.S.L.W. 4584 (2004);
2. Rasul v. Bush, 542 U.S. 466, 124 S. Ct. 2686; 159 L. Ed. 2d 548; 2004 U.S. LEXIS 4760; 72 U.S.L.W. 4596 (2004);
3. Hamdi v .Rumsfled, 542 U.S. 507, 124 S. Ct. 2633; 159 L. Ed. 2d 578; 2004 U.S. LEXIS 4761; 72 U.S.L.W. 4607 (2004)
4. Hamdan v .Rumsfled, 548 U.S. 567, 126 S. Ct. 2749; 165 L. Ed. 2d 723; 2006 U.S. LEXIS 5185 (2006);
5. Boumediene v. Bush, 553 U.S. ___; 128 S. Ct. 2229; 2008 WL 2369628; 2008 U.S. LEXIS 4887 (2008).

Or will the Obama Administration follow choose to follow the reasoning that President Andrew Jackson articulated after hearing of the decision of the Supreme Court in Worcester v. Georgia 31 U.S. (6 Pet.) 515, 8 L.Ed. 483, (1832. President Jackson responded to the decision of the Court saying the decision of the supreme court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate. The idea that a decision of the Court could be "still born" was next articulated by President Lincoln in his administrations response to Chief Justice Taney's circuit court opinion in Ex Parte Merryman, 17 F. Cas. 144, (1861). It was not until 1866 that the suspension of the Writ of Habeas Corpus was rescinded. I would argue that the Bush administration adopted a similar stance relying on the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, enacted by the Clinton Administration in the aftermath of the 1993 World Trade Center bombing and the 1995 Oklahoma City bombing. A case could be made that AEDPA provided the heart of the position taken by the Bush Administration taken regarding the right of detainees to petition or writs of Habeas Corpus

Laymans Thoughts on Ex Post Facto Laws

2009-04-27T11:05:00.000-07:00

Turning to your second point I would argue that the Obama administration has not yet contravened the Ex Post Facto clause contained in Article 1 section 9 of the Constitution.

The holdings of the the Supreme Court on this issue have been remarkably consistent. The high court has always adopted a narrow interpretation of the clause even the Warren Court which was characterized as an "activist" court applied a restrictive reading of the clause. A reading which reaffirmed and upheld Justice Chase's view.

I would assert that Justice Chase's view of an Ex Post Facto law as illustrated in Calder v Bull 3 U.S. (Dall.) 386 (1798) serves not only as the foundation for the interpretation of the clause but, sets the standard by which future cases concerning ex post facto laws have been adjudicated.

I will state what laws I consider ex post facto laws, within the words and the intent of the prohibition. 1st. Every law that makes an action , done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2nd. Every law that aggravates a crime, or makes it greater than it was, when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender. All these, and similar laws, are manifestly unjust and oppressive.In my opinion, the true distinction is between ex post facto laws, and retrospective laws. Every ex post facto law must necessarily be retrospective; but every retrospective law is not an ex post facto law: The former, only, are prohibited. Every law that takes away, or impairs, rights vested, agreeably to existing laws, is retrospective, and is generally unjust; and may be oppressive; and it is a good general rule, that a law should have no retrospect: but there are cases in which laws may justly, and for the benefit of the community, and also of individuals, relate to a time antecedent to their commencement; as statutes of oblivion, or of pardon. They are certainly retrospective, and literally both concerning, and after, the facts committed. But I do not consider any law ex post facto, within the prohibition, that mollifies the rigor of the criminal law; but only those that create, or aggravate, the crime; or encrease the punishment, or change the rules of evidence, for the purpose of conviction. Every law that is to have an operation before the making thereof, as to commence at an antecedent time; or to save time from the statute of limitations; or to excuse acts which were unlawful, and before committed, and the like; is retrospective. But such laws may be proper or necessary, as the case may be. There is a great and apparent difference between making an UNLAWFUL act LAWFUL; and the making an innocent action criminal, and punishing it as a CRIME. The expressions 'ex post facto laws,' are technical, they had been in use long before the Revolution, and had acquired an appropriate meaning, by Legislators, Lawyers, and Authors. The celebrated and judicious Sir William Blackstone, in his commentaries, considers an ex post facto law precisely in the same light I have done. His opinion is confirmed by his successor, Mr. Wooddeson; and by the author of the Federalist, who I esteem superior to both, for his extensive and accurate knowledge of the true principles of Government. Calder v Bull 3 U.S. 386 (Dall.) (1798).

Time will tell whether the Obama Administration has violated the clause. However, I believe that an absolute answer to that question, an answer backed by proof sufficient to answer the question either affirmatively or negatively beyond a reasonable doubt cannot be ascertained at the present because of the dearth of compelliong evidence. On this point were involved in a trial oon the subject I would issue a verdict of "not proven."

Thoughts of a Layman on Treaties

2009-04-27T10:09:00.000-07:00

JSF, In regards to your third question related to the status of supranational agreements rasied in your post on Constitutional Issues.

As a layman with no formal training the field of law I would argue that the opinion in the 1884 Head Money Cases, written by Justice Samuel Freeman Miller afirmed that international treaties to which the United States was a party possessed the force of law within the American legal system. American law accords treaties the same status as any Act of Congress. I would argue that this decision served as the standard by which all such argeeements are judged even into the twenty-first century.

A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it. If these fail, its infraction becomes the subject of international negotiations and reclamations, so far as the injured party chooses to seek redress, which may, in the end, be enforced by actual war. It is obvious that, with all this, the judicial courts have nothing to do, and can give no redress. But a treaty may also contain provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal law and which are capable of enforcement as between private parties in the courts of the country. An illustration of this character is found in treaties which regulate the mutual rights of citizens and subjects of the contracting nations in regard to rights of property by descent or inheritance when the individuals concerned are aliens. The Constitution of the United States places such provisions as these in the same category as other laws of Congress by its declaration that this Constitution and the laws made in pursuance thereof, and all treaties made or which shall be made under authority of the United States, shall be the supreme law of the land.

A treaty, then, is a law of the land, as an act of Congress is whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined. And when such rights are of a nature to be enforced in a court of justice, that court resorts to the treaty for a rule of decision for the case before it as it would to a statute.

But, even in this aspect of the case, there is nothing in this law which makes it irrepealable or unchangeable. The Constitution gives it no superiority over an act of Congress in this respect, which may be repealed or modified by an act of a later date. Nor is there anything in its essential character, or in the branches of the government by which the treaty is made, which gives it this superior sanctity.

A treaty is made by the President and the Senate. Statutes are made by the President, the Senate, and the House of Representatives. The addition of the latter body to the other two in making a law certainly does not render it less entitled to respect in the matter of its repeal or modification than a treaty made by the other two. If there be any difference in this regard, it would seem to be in favor of an act in which all three of the bodies participate. And such is, in fact, the case in a declaration of war, which must be made by Congress and which, when made, usually suspends or destroys existing treaties between the nations thus at war.

In short, we are of opinion that, so far as a treaty made by the United States with any foreign nation can become the subject of judicial cognizance in the courts of this country, it is subject to such acts as Congress may pass for its enforcement, modification, or repeal. Head Money Cases, 112 U.S. 580 (1884).

Thoughts on Hate Speech

2009-04-09T12:33:00.000-07:00

This post is my commentary on my friend JSF's last blog post. I am posting my comments this way because, when attempted to attach the comment to his initial post I had technical difficultiues with the comments feature. Having appropriately prefaced my thoughts I will now move onto the substantive portion of my response.

Hate speech whether it is espoused by liberals or conservatives inherently denigrates the foundations of the Republic. In aspiring to the ideal of freedom that the founders of the Republic both Federalist and Anti Federalist sought to engender we as Americans have a sacred charge to safeguard liberty, freedom, and their offspring the representational democracy that is the Republic of the United States of America. As Judge Learned Hand pointed out in 1944 at the height of the Second World War:

What do we mean when we say that first of all we seek liberty? I often wonder
whether we do not rest our hopes too much upon constitutions, upon laws and upon
courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it. And what is this liberty which must lie in the hearts of men and women? It is not the ruthless, the unbridled will; it is not freedom to do as one likes. That is the denial of liberty, and leads straight to its overthrow. A society in which men recognize no check upon their freedom soon becomes a society where freedom is the possession of only a savage few; as we have learned to our sorrow. What then is the spirit of liberty? I cannot define it; I can only tell you my own faith. The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the mind of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the spirit of liberty is the spirit of Him who, near two thousand years ago, taught mankind that lesson it has never learned but never quite forgotten; that there may be a kingdom where the least shall be heard and considered side by side with the greatest. The Spirit of Liberty, (21 May 1944) reprinted in The Spirit of Liberty: Papers and Addresses of Learned Hand (Irving Dilliard ed., 3d ed., New York, A.A. Knopf, 1960)

It is seems that it is will of the individual partisans on either side of the aisle to affix to their senses blinders. I would argue that these blinders are by their nature designed to effectively fetter both the spirit in which, partisans approach issues and by extension limits the solutions offered by lobbyists in answer to problem. The blinders utilized by advocates both conservative and liberal elements are akin to the smoky glasses worn by judges in ancient China to hide their emotions from the parties involved in a case. The use of these blinders in effect creates a degree of tunnel vision that necessarily impacts the ability of lobbyists to readily adapt to changing circumstances in the socio-political, and economic realms. The absolutist rigidity exmplified by the radical left and radical right imposes a set of inherently small boundaries on the political spectrum beyond which the radicals on both sides are not willing to venture.
As long as these radical elements within the political spectrum continue to wage a war to annihilate the other by engaging in a destructive pattern of conduct that demonstrates a clear lack of civility the progress of the nation-state as whole will remain stagnant. A lack of constructive dialogue will only further weaken the Republic, and place it at the mercy of its enemies as Judge Hand argued in 1930.

For in such matters everything turns upon the spirit in which he approaches the
questions before him. The words he must construe are empty vessels into which he
can pour nearly anything he will. Men do not gather figs of thistles, nor supply
institutions from judges whose outlook is limited by parish or class. They must
be aware of the changing social tensions in every society which make it an organism; which demand a new schemata of adaptation; which will disrupt it, if rigidly confined. Sources of Tolerance, LXXIX University of Pennsylvania Law Review 1-14 (November 1930) reprinted in The Spirit of Liberty: Papers and Addresses of Learned Hand. (Irving Dilliard ed., 3d ed., NewYork, A.A. Knopf, 1960).

Valley of the Shadow: The Blood Libel against Republicans#links

2009-04-09T12:16:00.000-07:00

Valley of the Shadow: The Blood Libel against Republicans#links

Expansion of American Political Thought: A Layperson's Opinion

2009-04-05T11:58:00.000-07:00

It is true that by and large Americans have a short memory. I argue that it is true on both sides of the political fence. This allows both sides to engage in the endless cycle of debates about the validity of classical realism and its descendant, the neo-realism advocated by neo-conservatives as opposed to the neo-liberalism advocated by the proponents of the Obama administration that is slowly phasing out the classical liberalism advocated by the older generations of Democrats.

However, by adhering too rigidly to either one or the other schools of thought and their offspring, both the Republicans and Democrats have largely ignored or dismissed the theories advocated by the Rationalists led by Dr. Martin Wight.

While, do not think Rationalism possesses the answer to every socio-political and economic debate or question. I believe that both of the political parties and their partisans would benefit from a study of rationalist theory in the sense that it may broaden the viewpoint of both sides because, as they are now the partisans of both camps are blinded by a degree of tunnel vision not seen in the political arena since Reconstruction.

The Future

2009-03-27T11:54:00.001-07:00

The unexpected death of my academic advisor Dr. Gustavo A. Wensjoe, PhD., aged fifty-nine has served as the catalyst, which solidified a number of my future endeavors. As an undergraduate student Dr. Wensjoe was always trying to making me see that my focus on international law and international politics was too narrow a viewpoint, and that I should broaden my analysis to include a study of international political economics and development issues in order to better understand global conditions.

Truth told as an undergraduate I was far from an ideal student. I allowed my intransigence, my disability and my illnesses to adversely affect not only my academic performance these factors also diminished the way in which I perceived my self-worth to such an extent that I like many of my professors had despaired of me successfully completing the requirements necessary to achieve a Bachelor of Arts degree.

This devaluation on my part made Dr. Wensjoe very angry and frustrated with me. He called me into his office. I had never known him to be angry over the conduct of a student. However, I did not understand why he was angry with me and when I asked him why he was angry with me. He said to me Mr. Zimmermann you can sell yourself short and tell yourself that you will fail to graduate. However, I will not do so because, I still believe you can graduate. I was later told that the dressing down could be heard through whole of Tiller Hall. I did graduate by the grace of God and with Jefe's strength of will to inspire me.

It was a long and arduous path that I had to take before I realized the truth of what he was telling me, and that he was right and had seen all those years ago what I had been too myopic to notice. My acquisition of my paralegal certifications were the first steps on the path that he led me to so many years ago, The next step is to find a position and take the LSAT

Thoughts of a Layman III: Expression and Radicalism

2009-03-18T10:58:00.000-07:00

In Reiss v. National Quotation Bureau, Inc., 276 F. 717 (S.D.N.Y., 1921), Judge Learned Hand asserted that the Constitution of the United States and by extension the Copyright Act of 1909 was constructed to provide protection for the freedom of human expression.
Judge Hand’s holding specifically addressed the question whether or not Copyright Law as derived from Article I section 8 of the Constitution implicitly required a standard of comprehensibility in order for the expression that is the product of an intellectual effort to be worthy of copyright

Hand’s holding that copyright law did not mandate a standard of individual comprehension, while, clarifying specific point of law, also, serves to remind the citizens of the Republic of the desire of the Founders to ensure that the freedoms granted under the First Amendment remained available and accessible to succeeding generations of Americans through the preservation of the sum total of the intellectual efforts of their descendants uniformly without any distinctions being accorded to them because, of their beliefs, values, and mores.

Now it is argued that these cases are distinguishable, because they arose under
an act of Parliament which was not limited by any Constitution. So, indeed they
were, and if our Constitution embalms inflexibly the habits of 1789 there may be
something to the point. But it does not; its grants of power to Congress comprise, not only what was then known, but what the ingenuity of man should devise thereafter. Of course, the new subject-matter must have some relation to the grant; but we interpret it by the general practices of civilized peoples in similar fields, for it is not a strait-jacket, but, a charter for a living people. Reiss v. National Quotation Bureau, Inc., 276 F. 717 (S.D.N.Y., 1921)

The decision handed down in Reiss reflected I would argue Judge Hand’s belief that the greatest dangers to a society as a whole lay within legally sanctioned compulsory uniformity:

Our dangers, as it seems to me, are not from the outrageous but from
theconforming; not from those who rarely and under the lurid glare of obloquy
upsetour moral complaisance, or shock us with unaccustomed conduct, but from
those, the mass of us, who take their virtues and their tastes, like their
shirts andtheir furniture, from the limited patterns which the market offers.
(Learned Hand. The Preservation of Personality, VII, 7 Bryn Mawr
Alumnae Bulletin 7-14 (1927) reprinted in The Spirit of Liberty:
Papers and Addresses of Learned Hand (Irving Dilliard ed., 3d ed., New
York, A.A. Knopf, 1960)

This belief was reaffirmed by Associate Justice of the Supreme Court of the United States, Robert H. Jackson in 1943 during the depths of the Second World War, demonstrably highlighting his belief that the freedom to express oneself was a treasure to be protected in both war and peace.

Lastly, and this is the very heart of the Gobitis opinion, it reasons that
"National unity is the basis of national security," that the authorities have
"the right to select appropriate means for its attainment," and hence reaches
the conclusion that such compulsory measures toward "national unity" are
constitutional. Id. at 310 U. S. 595. Upon the verity of this assumption depends
our answer in this case. National unity, as an end which officials may foster by
persuasion and example, is not in question. The problem is whether, under our
Constitution, compulsion as here employed is a permissible means for its
achievement. Struggles to coerce uniformity of sentiment in support of some end
thought essential to their time and country have been waged by many good, as
well as by evil, men. Nationalism is a relatively recent phenomenon, but, at
other times and places, the ends have been racial or territorial security,
support of a dynasty or regime, and particular plans for saving souls. As first
and moderate methods to attain unity have failed, those bent on its
accomplishment must resort to an ever-increasing severity.
As governmental pressure toward unity becomes greater, so strife becomes more
bitter as to whose unity it shall be. Probably no deeper division of our people
could proceed from any provocation than from finding it necessary to choose what
doctrine and whose program public educational officials shall compel youth to
unite in embracing. Ultimate futility of such attempts to compel coherence is
the lesson of every such effort from the Roman drive to stamp out Christianity
as a disturber of its pagan unity, the Inquisition, as a means to religious and
dynastic unity, the Siberian exiles as a means to Russian unity, down to the
fast failing efforts of our present totalitarian enemies. Those who begin
coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.

It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings. There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority.
The case is made difficult not because the principles of its decision are obscure, but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous, instead of a
compulsory routine, is to make an unflattering estimate of the appeal of our
institutions to free minds. We can have intellectual individualism and the rich
cultural diversities that we owe to exceptional minds only at the price of
occasional eccentricity and abnormal attitudes. When they are so harmless to
others or to the State as those we deal with here, the price is not too great.
But freedom to differ is not limited to things that do not matter much. That
would be a mere shadow of freedom. The test of its substance is the right to
differ as to things that touch the heart of the existing order.
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.
We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power, and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943)

It seems to me that the Executive and Legislative branches have forgotten the idea illustrated above, and have allowed the government to be forcibly fettered by the shackles of extreme partisanship and its attendant rhetoric because, they have allowed themselves to forget Voltaire’s long held belief on the need for freedom of speech as a form of expression as restated by S. G. Tallentyre (Evelyn Beatrice Hall in her 1906 opus the Friends of Voltaire, when she wrote the following:

“I disapprove of what you say, but I will defend to the death your right to say
it.”

Truth told the situation as it now exists reminds me of the 1868 Impeachment of Andrew Johnson which was orchestrated by the Radical element within the Republican Party in the sense that then as now the United States was in a time of turmoil, decimated by partisan bickering. During the early years of Reconstruction politicians on either side of the political fence possessed of a spirit that was either unwilling to compromise, and unable to recognize the validity of the concerns raised by their opponents, threatened the stability of nation as a whole, and only the courage of a single Senator prevented the wholesale renewal of armed conflict.

The unwillingness of partisans on both sides to stipulate that even though they possess fundamental disagreements that the other side has legitimate concerns that should be considered and addressed in a civil manner has led to a divisiveness and intransigence that is dangerous and could potentially either stunt the growth of, or be fatal to continued growth of the Republic

I argue simply argue that radical partisanship on either the left or right when unrestrained by moderating influences poses a threat to the country as whole, because, it only serves to encourage and facilitate division which given the current economic woes would be function as a hindrance to the recovery of the nation.

Thoughts of a Layman II: Authorship and Ownership

2009-02-16T13:24:00.000-08:00

The summary given chapter four of Intellectual Property: Patents, Trademarks, and Copyrights, Second Edition authored by Richard Stim that summarizes the case involving a song entitled “The Bird on Nellie’s Hat” is to a degree misleading. There were in fact three decisions handed down on 26 January 1944 involving two separate causes of actions on three related cases of alleged copyright infringement.

In January 1941 Edward B. Marks Music Corporation filed three separate complaints against Jerry Vogel Music Company alleging that the Vogel Music Company infringed their renewed copyrights to the following items: One, the music complementing the musical composition “I Wonder Who’s Kissing Her Now;” Two, the music accompanying the musical composition “The Bird on Nellie’s Hat;” Three, the lyrics associated with the musical composition “December and May.”

During the course of the litigation the plaintiff, Edward B. Marks Music Corporation filed with the United States District Court for the Southern District of New York, motions requesting summary judgments in each of the cases in their favor. In the case involving “December and May” the plaintiff also requested a permanent injunction prohibiting future infringements, and requesting an award for damages based on past infringements.

On 13 January 1942 District Judge Vincent Leibell issued his rulings in the three cases which, were styled as Marks Music Corp. v. Vogel Music Co., 42 F.Supp. 859, 52 U.S.P.Q. 219 (S.D.N.Y. 1942). In the first action involving the music related to the musical “I Wonder Who’s Kissing Her Now;” Judge Leibell made the following determinations: First, even though the original copyright was obtained prior to 1 July 1909, the renewal of the copyright was governed by the provisions of the Copyright Act of 1909, in accord with section twenty-four of the Copyright Act of 1909 which provided for copyright renewals of works prior to the date on which, the Act entered into force. Second, Judge Leibell held that the renewal of a copyright pertaining to a part of the whole (a subsistent copyright) constituted a renewal of the whole work. Third, the judge adjudged that the original musical composition formed a joint work of which, was not dissolved in the renewed copyright. Fourth, Judge Leibell determined that when a co-author renews a copyright in his or her own name, the author requesting the renewal in effect becomes the constructive trustee responsible for safeguarding the whole work and protecting the interests of the non renewing partner. Last, Judge Leibell maintained that the controversy surrounding transfer of rights by the original composer were issues of fact to be determined at trial, and accordingly denied the plaintiff’s motion for a summary judgment

Moving on to the second complaint concerning the music of the musical composition entitled “The Bird on Nellie’s Hat,” Judge Leibell held that the dearth of facts underlying the cause of action prevented from properly applying the relevant principles of copyright law enunciated elsewhere in the opinion in relation to the other two cases. However sufficient evidence had been presented by both parties so that on the basis of the evidence presented Judge Leibell was able to issue two holdings. First, the judge found that questions still remained regarding the issue of common design and collaboration that needed to be adjudicated at trial. Second, the death of the composer Arthur Lamb raised issues of fact relating to the assignment and transfer of Lamb’s copyright that needed to be resolved at a trial. For the foregoing reasons Judge Leibell denied the plaintiff’s motion requesting summary judgment in this case.

Having disposed of the first two actions Judge Leibell turned his attention to the third complaint which, was predicated on alleged infringements of the lyrics associated with the musical composition named “December and May.” First, the judge held that even though the music and lyrics for “December and May” were written separately by Edward Marks and William Loraine respectively both composed their work with a similar design and purpose of intent as demonstrated by the fact that both Marks and Loraine submitted their works to Frank Harding. Marks had instructed Frank Harding to find a composer to write music that would accompany the lyrics, while, Loraine wrote the music to accompany Marks’ lyrics which, had been given to him by Frank Harding. After both were completed Frank Harding published finished composition as a unit. The common purpose and intention pre-existed the publication of the music and lyrics as a unit, in the sense that both Marks and Loraine possessed a similar intent even though they were unknown to each other. This unifying intent the judge argued was sufficient to demonstrate that collaboration existed and that Marks and Loraine could be construed as co-authors and collaborators because, both were united by their intent.
Second, Judge Leibell held that when the plaintiff renewed the copyright, the renewed the copyright like the original covered the unified musical composition, since neither, the music or lyrics when originally published were copyrighted independently of the other, as such the renewed copyright could not be applied separately. Third, the judge held that Marks renewal of the copyright on the composition conferred upon him the responsibilities of a constructive trustee responsible for safeguarding the whole work and protecting the interests of the non-renewing partner. As a consequence of his holdings Judge Leibell denied the plaintiff’s motion for a summary judgment while refraining from issuing the injunction and imposing damages.

Nine months later, Judge Lovett sitting in the Southern District handed down his judgments following the trial on the matters involving “The Bird on Nellie’s Hat,” and “December and May,” on 19 October 1942. Judge Lovett concurred with Judge Leibell’s earlier findings. On the matter of “December and May, Judge Lovett wrote the following:

Two men producing a musical composition jointly are nonetheless coauthors and
owners though they labor at different times, without conference or consultation,
and though they may remain strangers each other. If one produces lyrics or music
intending that they shall be combined with the production of another who shall
compose the music or write the lyrics (as the case may be) to make the composition complete, the work of both is necessary, the work of one is complementary to the work of the other, the work of one must be fitted, adjusted, even morticed, to the work of the other, to make the composition a finished product and marketable. One should not be allowed to take advantage of the other when the copyright is renewed. The renewal should be, and is, for the benefit of both. There can be bit one subsisting copyright of a single version, of a single work. Silverman v Sunrise Pictures Corp., 2 Cir., 273 F. 909(3), 914, 19 A.L.R. 289; Maurel v. Smith, D.C., 271 F. 211 Marks Music Corp. v. Vogel Music Co., supra. I think the line of coauthorship is to be drawn not when the colaborers worked but according to the original design Joel Chandler Harris did not originally write his Uncle Remus tales with any intention of having them illustrated when they were collected and put in book form (Harris v. Coca-Cola Co., 5 Cir., 73 F.2d 370); nor did Shakespeare write his Mid-Summer’s Night Dream, nor David the 23d Psalm, intending that they should be set to music and produced as musical compositions under copyrights. But here all the parties, authors of lyrics and
authors of music, intended that the finished product should be a musical composition consisting of the words set to music-that was the thing they intended to be marketed, and, naturally they wanted the monopoly a copyright gives for a limited time. It would be grossly inequitable, it seems to me, to let one of the two authors renew the copyright, attempt to limit it to the thing he wrote, and thereby exclude his co-owner from any participation in the profits arising from the new grant, on the theory that the product of the one renewing is the only thing the renewal copyright protects and the work of the other has become the property of the United States and therefore of the public. The practical result would be, so far as the musical composition as unit is concerned, to give the one co-owner renewing a monopoly for the new term upon the products of both. The better view seems to me to be that the one renewing holds for the benefit of both , either as co-owners or as trustee Marks Music Corp. v. Vogel Music Co., supra. 42 F.Supp. at page 864. Marks Music Corp. v. Vogel Music Co., 47 F.Supp. 490, 55 U.S.P.Q. 489 (S.D.N.Y. 1942)

In the case centered on the musical composition “December and May” Judge Lovett denied the plaintiff’s request for a permanent injunction against the defendant for two reasons: One, the non-renewing co-author was still alive; two he validly licensed some of his rights to the defendant. Therefore, the defendant possessed a legitimate interest that required protection

Turning to the controversy surrounding the musical “The Bird on Nellie’s Hat” the Judge focused his attention on the questionable assignment of copyright that occurred in the aftermath of the death in 1928 of the original composer Arthur Lamb. At the time of his death Arthur Lamb left no will and no information concerning any heirs. Several years after the copyright was renewed the Defendant produced a man they argued was Cecil Lamb, the brother of the deceased Arthur Lamb, and who by virtue of their sibling relationship should be construed as Arthur Lamb’s heir and the successor to his rights under the renewed copyright. During the course of the trial no proof was submitted to the judge that conclusively proved the claims of the defendant regarding Arthur Lamb’s heirs and successors as Judge Lovett noted in his opinion.

The other case is different. There the coauthor did not survive the term. Some five or six years after the renewal of the copyright the defendant obtained from a man in England, referred in the argument as the co-owners brother, authority to renew the copyright, its appointment as exclusive publishers, etc., and an agreement to assign the copyright. There is no proof that the man in England executing the instrument is the brother of the coauthor not renewing, nor is there proof that the deceased coauthor left no widow or children surviving him or that he died without a will or an executor. Under the statute, the right of renewal vested in them to the exclusion of the brother if they survived the coauthor. He had a wife at one time. We are left to conjecture what became of her. The defendant having pleaded affirmatively the authority under which it purported to act in publishing and vending the musical composition, giving the name of its licensor, the burden of proof is on it to establish the defense. Stodart v. Mutual Film Corp., D.C., 249 F. 507(6), 512 affirmed 2 Cir., 249 F. 513; Schellberg v. Empringham, D.C.,36 F.2d 991(4), 995; Gerlach-Barklow Co. v .Morris & Bendien, 2 Cir., 23 F.2d 159(13), 161, 162. Having failed to do so, for the purposes of this case it becomes a stranger to the copyright. Being such a stranger, it should be enjoined as prayed from interfering with the rights of the plaintiff. It would be otherwise if it had established by proof its affirmative defense. My conclusions, therefore, are: That an injunction should issue in case No. 12-400 permanently enjoining the defendant from infringing the copyright held by the plaintiff and that the case should be kept on the docket for such other relief as to gains, profits, fees, etc., as hereafter may appear appropriate In case No. 13-276 a permanent injunction should be denied. . . . . .
On Motion for Reargument.
Reargument in this case is hereby denied (Civil 12-400).

As I have previously ruled, it seems to me the plaintiff in this case is really proceeding in its own behalf and as trustee for those who succeeded to the rights held by the coauthor under the original copyright. As I view it, therefore, all of the necessary parties are before the court, either in person or through the plaintiff as trustee representing them. I do not feel under these circumstances that the burden of proof is on the plaintiff to establish that the defendant takes no rights from
the other coauthor or those who stand in his place. The defendant having pleaded
that the brother was the next of kin of the deceased coauthor, under the decisions in this circuit I am of the opinion that the burden is on it to establish (a) the absence of prior statutory designees and (b) that the person under who it claims is the next of kin. Having failed to do so, an injunction should issue. So far the record shows, the defendant is an entire stranger to the renewal copyright, and has no right to publish or vend the musical composition. This does not necessarily mean that the plaintiff shall not account to it for the gains and profits, if hereafter it should be able to show in a satisfactory manner the fact alleged but not proved by it on this hearing. Marks Music Corp. v. Vogel Music Co., 47 F.Supp. 490, 55 U.S.P.Q. 489 (S.D.N.Y. 1942)

For the forgoing reasons Judge Lovett issued the permanent injunction requested by the plaintiff preventing the defendant from infringing the musical composition “The Bird on Nellie’s Hat.”The Judge also denied the defendant’s motion requesting the case be reargued.

Following the trial before Judge Lovett only the complaint concerning “I Wonder Who’s Kissing Her Now” remained to be tried. The trial occurred in the District Court for the Southern District of New York with District Judge John Clark Knox presiding. During the course of the trial the proceeding against the co-Defendant Cora L. Harris were discontinued, with the trial against the primary defendant, Jerry Vogel Music Company proceeding. On 24 February 1943 Judge Knox rendered his verdict. Judge Knox concurred with the findings and holds of both Judges Leibell and Lovett saying:

The facts as adduced upon at trial show that Howard, Hough, and Adams unquestionably (though separated by time and space) must be held to have collaborated upon the composition of `I Wonder Who’s Kissing Her Now,’ and when the renewal copyright issued, it did not lie within the power of Howard, or his
assignee to exclude Hough and Adams from their beneficial rights therein. The
latter two have authorized the publication of composition by Jerry Vogel. As a
matter of fact, the publication is being made by Jerry Vogel Music Co., Inc.
But, as to this Howard and Hough make no objection, and plaintiff, as assignee
of Howard, is in no position to complain. Marks Music Corp. v. Vogel Music
Co., 49 F.Supp. 135, 57 U.S.P.Q. 37 (S.D.N.Y. 1943)

Judge Knox dismissed the complaint made by the plaintiff citing the plaintiff’s lack of standing.

Following the dismissal, the plaintiff appealed the decisions of Judges Leibell, Lovett, and Knox to the Court of Appeals for the Second Circuit. On appeal, the appeal was argued before a three judge panel consisting of Circuit Judge Learned Hand, Circuit Judge Harrie Brigham Chase, and Circuit Judge Jerome New Frank. On 26 January 1944 the panel delivered its opinions on the appeals.

Judges Hand, Chase, and Frank first reviewed the resolution of the dispute pertaining to the song “December and May” Judge Hand writing for the panel reaffirmed principles of copyright renewal as set forth in the District Court.

We decided in Maurel v. Smith, 2 Cir., 271 F. 211; that if one of several
authors took out the copyright in his own name upon a joint work, the copyright
was valid , but the copyright owner held it upon a constructive trust for the
other authors. This was extended to the renewal of a copyright in Silverman v
Sunrise Pictures Corp., 2 Cir., 273 F. 909, 19 A.L.R. 289; Carter v Bailey, 64
Me. 458, 18 Am.Rep. 273, turned upon the fact that there was no equity in the
plaintiff’s bill, but assumed that the co-tenant might be liable at law, as he
always has been in equity (Minion v Warner, 238 N.Y. 413, 144 N.E. 665, 41
A.L.R. 1412); it accords with what we have held. Hence, if the song was
the joint work of Marks and Loraine, when Marks took out the renewed copyright,
it was valid, but he held it upon a constructive trust for Loraine, as does the
plaintiff, his assignee. There only remains to be decided whether the song was a
joint work, or a `composite,’ as that phase is used in Secs. 23 and 24 of the
Copyright Act, 17 U.S.C.A. §§ 23, 24. Marks Music Corp. v. Vogel Music Co., 140
F.2d 266, 60 U.S.P.Q. 257 (2d Cir 1944)

Having reaffirmed the nature of valid copyright upon a joint work, Judge Hand then confronted the central question of whether the song “December and May” was a joint work or a composite. The three judge tribunal adjudged that the composition was a joint work, and the renewed copyright was for the whole composition as Judge Hand wrote:

As we have said, the original copyright was of the song as a `musical composition,’ and the renewal was in the same terms, the work being described as a `song and cho.’ (song and chorus). So far as it appears, Marks therefore never meant to renew the copyright for the words alone, though we will assume that that made no difference, if he was entitled to do so. He was not; the song was not a `composite’ work, it had to be renewed as a whole, or not at all for it was the indivisible product of `joint authors’ So far as we know, the first definition of `joint authorship ‘ is in Levy v. Rutley L.R.6 C.P. 523: `a joint laboring in furtherance of a common design’ (per Keating, J., p. 529); an agreement `to write a piece, there being an original joint design,’ (per Montague Smith, J., p. 530). This definition I accepted in Maurel v. Smith, D.C. 220 F. 195, when that case was before in the district court, and we accept it now. If so it makes no difference whether the authors work in concert, or even
whether they know each other; it is enough that they mean their contributions to
be complementary in the sense that they are to be embodied in a single work to be performed as such. That was the case here: Marks wrote the words as words for a song; Loraine composed the music as music for a song. It is true that each knew that his part could be used separately; the word as a` lyric’; the melody, as music. But that was not their purpose; the words and the music were to be enjoyed and performed together; unlike the parts of a `composite work’ each of which is intended to be used separately, and whose only unity is that they are bound together. Marks Music Corp. v. Vogel Music Co., 140 F.2d 266, 60 U.S.P.Q. 257 (2d Cir 1944)

The holdings that the renewed copyright on “December and May” constituted a valid copyright in which the renewing coauthor functioned as a constructive trustee on the behalf of the non renewing coauthor, and that in both the original and renewed copyrights o the composition demonstrated the work was represented as a joint work and not a composite work predicated the affirmation of the judgment of the District Court.

After upholding the pronouncements made by the District Court on the dispute involving “December and May” directed their attention toward the case revolving around “The Bird On Nellie’s Hat,” in this case the defendant in the District Court appealed Judge Lovett’s issuance of the permanent injunction in favor of the plaintiff, and the subsequent award of damages to the plaintiff by the District Court.

Judge Hand’s examination of the questions arising from the conclusion and decisions reached by Judge Lovett began with a brief restatement of the history of the composition entitled “The Bird On Nellie’s Hat.” Summarized briefly the history of the work is as follows:

1. Arthur J. Lamb, an English national wrote words that became the lyrics for the composition that ultimately became “The Bird On Nellie’s Hat,” while, Alfred Solman independently of and, unknown to Arthur Lamb composed the music for the for the composition that ultimately became “The Bird On Nellie’s Hat.”
2. Lamb and Solman submitted their respective works to the Joseph W. Stern and Co. publishing house to whom both had assigned their rights.
3. The Joseph W. Stern company combined Lamb’s lyrics and Solman’s into a
single composition entitled “The Bird On Nellie’s Hat,” which the Stern Company
copyrighted as a whole on 17 September 1906.
4. Arthur J. Lamb died on 10 August 1928 before the expiry of the original copyright. Arthur Lamb’s family status was uncertain, it was known that he had been married, but attempts to locate his widow failed, and all available evidence seemed to indicate that the marriage was childless. After his death his widow never renewed the copyright.
Also, it could never be determined whether he appointed an executor prior to his
death in order protect the estate.
5. On 27 September 1933 Alfred Solman renewed the copyright in the name of himself and the deceased Lamb.
6. On 20 June 1936 Solman executed an instrument assigning his rights under the renewed copyright to the plaintiff.
7. On 4 June 1940, an English national stating he was Cecil Lamb, the brother of the deceased author of the lyrics and heir to Arthur Lamb’s rights under the renewed copyright, assigned all rights to the composition to the defendant.

After surveying the chronology of the composition Judge Hand shifted his focus to the argument advanced by the appellant that Cecil Lamb, by virtue of his relationship to the deceased lyricist Arthur Lamb was the successor to his brother Arthur as the legal co-owner of the renewed copyright. As a consequence the appellant argued that Solman’s assignment of rights to the appellee covered only his portion of the title and rights under the copyright. Therefore, the defendant maintained that since, the plaintiff did not possess sole title to the copyright; he did not have the requisite standing to bring the lawsuit.

In the text of his opinion Judge Hand reduced the argument into four propositions: One was the work a composite work or joint work and what effect would that have on the validity of the renewal. Two, who does the statutes and case law give standing to bring a cause of action. Three, did Judge Lovett’s findings concerning the identity and status of Cecil Lamb result in an inequitable decision. Four, to what extent may a party recover damages in case.

The appellate panel in its deliberations and discussions on the style of the work resolved that the composition was a joint work and not a composite work. Since, the song was the joint work of Lamb and Solman, the renewal of the copyright mandated a renewal of the work as a whole. These findings raised the following secondary questions: First, was the renewal as a whole valid or invalid? Second, was the legal title vested in Solman alone, or was the title vested co-jointly in Solman and Lamb respectively. Judge Hand writing for the chamber found that “The Bird On Nellie’s Hat” embodied a joint work. Since, the song was a joint work possessed of a valid original copyright, the renewal of any copyright dictated that the application for an extension of the mandate cover the song as a whole, raising the question of whether the renewal was valid:

Although, as we have said, Solman described Lamb as having `written’ the song, and himself as having only `composed’ it, he nevertheless claimed to be the `renewal owner,’ and took out the renewed copyright in his own name. Since, it was not a `composite’ work , the copyright in which could be renewed in parts, we must choose between holding the renewal bad or good as a whole; and between holding that the legal title to it was in Solman alone, or in Lamb and Solman jointly. There cannot be any doubt as to the answer to the first question: the renewal was valid for the song as a whole. Although, as we are holding as to the two songs: `December and May’, and `I Wonder Who’s Kissing Her Now’, when one of the two authors takes out the renewal in his own name, the legal title is in him, some doubt may be raised whether the legal title does not run to both authors jointly, when as in this case, it appears, on the very face of the application that there are two, 140 F.2d 266; 140 F.2d 270. It is not necessary to decide the point, as will appear; but for argument we will assume that, when, as here, one of the joint authors asks for and gets the renewal in his own name, the legal right goes to him alone and the other author’s interest is equitable. Marks Music Corp. v. Vogel Music Co., 140 F.2d 268, 60 U.S.P.Q. 256 (2d Cir 1944).

On the question of who possessed the standing to bring a suit the court held that the holder of the legal title could bring a lawsuit independently of and without requiring others parties who possessed equitable interests to join in the litigation as a party to the suit. The court also held that as Solman’s assignee the plaintiff possessed the necessary standing to bring a suit, and request an injunction as well as damages.

It was early decided that the hold of the legal title to a copyright might sue
without joining others who had an equitable interest in the copyright (Little v Gould, Fed. Cas. No. 8,395, 2 Blatchf. 362; Hanson v. Jaccard Jewelry Co., C.C., 32 F. 202), and the same rule applies to patents. Yale Lock Manufacturing Company v. Sargent, 117 U.S. 536, 552, 553, 6 S.Ct. 934, 29 L.Ed. 954; Rude v. Westcott, 130 U.S. 152; 9 S.Ct. 463, 32 L.Ed. 888; Hazeltine Corp. v. Electric Service Engineering Co., D.C., F.2d 662, 668 (Thacher, J.). However, Federal Rules of Civil Procedure rule 17(a), 28 U.S.C.A. following section 723c, now requires and Equity Rule 37, 28 U.S.C.A. § 723 Appendix, before it required, all actions to be brought in the name of the real party in interest. It may be that this action would therefore have had to be brought in the name of the beneficiaries of the constructive trust of which the plaintiff is trustee, just as it would have, had the legal title been joint. The clause beginning `but,’ and enumerating persons who have no beneficial interest, includes only the trustees of express trusts. We shall assume arguendo, that Rule 17(a) would require the action to be brought in Lamb’s name.
Nevertheless, the plaintiff, as Solman’s assignee, was a `real party in interest’’ not, it is true, the only such party, but as much so as Lamb, or Lamb’s successors in interest. It therefore was entitled to sue in its own behalf. It was entitled to an injunction; it was entitled to its own damages; it was entitled to some share in any statutory damages; it was entitled to some share in the defendant’s profits. Marks Music Corp. v. Vogel Music Co., 140 F.2d 268, 60 U.S.P.Q. 256 (2d Cir 1944).

Judge Hand’s decision on this point also entailed a discussion on the related topic of the status of Lamb’s successors, and Judge Lovett’s decision in that regarding Lamb's successors. Judge Hand argued that their exclusion was immaterial to the case.

Therefore, the objection resolves itself into whether the nonjoinder of Lamb’s
successors is fatal to the plaintiff’s prosecution of the action; and makes no difference as to that whether their interest is legal or equitable. These parties are not indispensable within Rule 19(b); because their rights can be reserved in the judgment; the action can be finally decided as to the plaintiff without them, if they cannot be served. On this record we cannot say whether they can be served or not, because we do not know who they are. But even assuming that it rests upon the plaintiff to show that they cannot be served, the objection is nevertheless not good because, the defendant was obliged to take it by motion or by answer ((Rule 12(h)) which it did not do. Marks Music Corp. v. Vogel Music Co., 140 F.2d 268, 60 U.S.P.Q. 256 (2d Cir 1944).

On the matter of damages the Circuit Court of Appeals for the Second Circuit modified the judgment of the District to limit the Plaintiff’s right to recover only its actual damages, its proper share of statutory damages, and their proper share of any profits.

Nevertheless, the plaintiff, as Solman’s assignee, was a `real party in
interest’’ not, it is true, the only such party, but as much so as Lamb, or
Lamb’s successors in interest. It therefore was entitled to sue in its own
behalf. It was entitled to an injunction; it was entitled to its own damages; it
was entitled to some share in any statutory damages; it was entitled to some
share in the defendant’s profits.. . . . As we have already suggested, that does
not mean that the plaintiff may recover all the statutory damages, or all the
defendant's profits. The judgment must be modified to provide that the recovery
shall be confined to the plaintiff's own part; that is to say, its own actual
damages, to its proper share of statutory damages, and to its proper share of
the profits. What the proper share is we do not now decide. Marks Music Corp. v.
Vogel Music Co., 140 F.2d 268, 60 U.S.P.Q. 256 (2d Cir 1944).

The Second Circuit while, modifying the provisions of the District Court’s opinion impacting the apportionment of damages, affirmed the remainder of the decision.

Turning to the third appeal, centered on the song “I Wonder Who’s Kissing Her Now,” The appellate court affirmed the decision of the District Court without adding any additional substantive points to this portion of the appeal. As Judge Hand said:

This is an even stronger situation for the defendant than in the case of `December and May’, and we need add nothing to what we said in disposing of that appeal. Marks Music Corp. v. Vogel Music Co., 140 F.2d 270, 60 U.S.P.Q. 259 (2d Cir 1944).

After the decisions had been handed down by the Circuit Court of Appeals for the Second Circuit, Jerry Vogel Music Company filed a motion in the Federal District Court for the Southern District of New York, demanding a declaratory judgment against Edward B. Marks Music Corporation. By the terms of their motion the plaintiff, Vogel would be recognized as the half-owner of “The Bird On Nellie’s Hat” for the term of the renewed copyright. The defendant, Edward B. Marks Music Corporation countered that the plaintiff’s complaint as supplemented by a bill of particulars should be dismissed because, the plaintiff failed to state a claim upon which to base the relief requested of the court. On 21 August 1944 District Judge Edward A. Conger denied the plaintiff’s motion as stated in Vogel Music Co. v. Edward B. Marks Music Corp. 56 F.Supp. 79, 63 U.S.P.Q. 1 (S.D.N.Y. 1944).

After this point in the history of the controversies Westlaw is silent regarding any subsequent actions related to these disputes.

Endnotes

[1] Though Judge Lovett is listed as the judge who delivered the opinion in Marks Music Corp. v. Vogel Music Co. 47 F.Supp. 490 (S.D.N.Y. 1942) in the text of the opinion, this may be a mistake. Examining the lists of former judges of the Federal District Court for the Southern District of New York, contained on the Federal Judicial Center website and the History of the Court for the Southern District of New York no Judge with the surname Lovett appears on the lists of district judges.

[2] The citation given in Judge Lovett’s opinion gives the incorrect court in the citation. The volume and page numbers mentioned in the citation refernce the appellate decision.

Thoughts of A Layman on Fair Use

2009-02-16T10:09:00.000-08:00

In its modern incarnation the “fair use” doctrine illuminates the interconnectedness of the judicial and legislative processes. The origins of the “fair use” lay within the texts of the decisions and holdings of Burnett v. Chatwood, 2 Meriv. 441, 35 Eng. Rep. 1008-09 (Ch. 1720); Gyles v. Wilcox, 26 Eng. Rep. 489 (Ch. 1740) interpreting the Copyright Act 1709 8 Anne c.19 (1709) (Eng.)

Prior to the adoption and implementation of the Copyright Act of 1976, the doctrine of “fair use” was not explicitly stated in the laws of the United States. But the principles of “fair use” were recognized by the courts in the United States as being implied by Article I, section 8, clause 8 of the Constitution of the United States, and the Copyright Act of 1790, 1 Stat. 124 (1790). For almost two centuries implicit judicial recognition provided sufficient avenues to permit the “fair use” of copyrighted materials for such noble purposes as education and the development of the arts and sciences within the United States.

From the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright's very purpose, "to promote the Progress of Science and useful Arts . . . ." U. S. Const., Art. I, § 8, cl. 8. For as Justice Story explained, "in truth, in literature, in science and in art, there are, and can be, few, if any, things, which in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before." Emerson v. Davies, 8 F. Cas. 615, 619 (No. 4,436) (CCD Mass. 1845). Similarly, Lord Ellenborough expressed the inherent tension in the need simultaneously to protect copyrighted material and to allow others to build upon it when he wrote, "while I shall think myself bound to secure every man in the enjoyment of his copy right, one must not put manacles upon science." Carey v. Kearsley, 4 Esp. 168, 170, 170 Eng. Rep. 679, 681 (K.B. 1803). In copyright cases brought under the Statute of Anne of 1710, English courts held that in some instances "fair abridgements" would not
infringe an author's rights, see W. Patry, The Fair Use Privilege in Copyright
Law 6-17 (1985) (hereinafter Patry); Leval, Toward a Fair Use Standard, 103
Harv. L. Rev. 1105, 1105 (1990) (hereinafter Leval),and although the First
Congress enacted our initial copyright statute, Act of May 31, 1790, 1 Stat.
124, without any explicit reference to "fair use," as it later came to be known,
the doctrine was recognized by the American courts nonetheless.
In Folsom v. Marsh, Justice Story distilled the essence of law and methodology from the earlier cases: "look to the nature and objects of the selections made, the
quantity and value of the materials used, and the degree in which the use may
prejudice the sale, or diminish the profits, or supersede the objects, of the
original work." 9 F. Cas. 342, 348 (No. 4,901) (CCD Mass. 1841). Thus expressed,
fair use remained exclusively judge made doctrine until the passage of the 1976
Copyright Act, in which Story's summary is discernible:
"§ 107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted
work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors." 17 U.S.C. § 107 (1988 ed. and Supp. IV).
Congress meant § 107 "to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way" and intended that courts continue the common law tradition of fair use adjudication. H. R. Rep. No. 94-1476, p. 66 (1976)
(hereinafter House Report); S. Rep. No. 94-473, p. 62 (1975) (hereinafter Senate
Report). The fair use doctrine thus "permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle
the very creativity which that law is designed to foster." Stewart v. Abend, 495
U.S. 207, 236 (1990) (internal quotation marks and citation omitted).
The task is not to be simplified with bright line rules, for the statute, like the
doctrine it recognizes, calls for case by case analysis. Harper & Row, 471
U. S., at 560; Sony, 464 U. S., at 448, and n. 31; House Report, pp. 65-66;
Senate Report, p. 62. The text employs the terms "including" and "such as" in
the preamble paragraph to indicate the "illustrative and not limitative"
function of the examples given, § 101; see Harper & Row, supra, at 561,
which thus provide only general guidance about the sorts of copying that courts
and Congress most commonly had found to be fair uses. Nor may the four statutory
factors be treated in isolation, one from another. All are to be explored, and
the results weighed together, in light of the purposes of copyright. Campbell v.
Acuff Rose Music, 510 U.S. 569 (1994).

However, the rapid progress and development of the nation engendered the need for the codification of the principles underlying the ”fair use” doctrine into the statutes through the legislative process by Congress as illustrated by the Court of Appeals for the Second Circuit in On Davis v. the Gap.

Fair use is a judicially created doctrine dating back nearly to the birth of
copyright in the eighteenth century, see Burnett v. Chatwood, 2 Mer. 441, 35
Eng. Rep. 1008-09 (Ch. 1720); Gyles v. Wilcox, 26 Eng. Rep. 489 (Ch. 1740), but
first explicitly recognized in statute in the Copyright Act of 1976. See 17
U.S.C. § 107 (1994). Davis v. The Gap, Inc., 246 F.3d 152 (2d Cir. 2001) as
amended (May 15, 2001).

As noted in Campbell and On Davis, the formal codification of the “fair use doctrine” by the legislature occurred only with the enactment of the Copyright Act of 1976. Section 107 of the act established a multi-faceted test consisting of four factors to be weighed in making determinations regarding the question of whether or not the use made of a work by persons other than author constitutes a “fair use.” The four factors enumerated in 17 U.S.C. § 107 (2007) were as follows:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work. 17 U.S.C. §
107 (2007)

Numerous courts have held that the factors set forth in 17 U.S.C. § 107 (2007) are not meant to be construed as an exhaustive list of the factors to be weighed in making “fair use” determinations, but are intended to serve as a baseline to be applied in a case by case manner. See: Harper Row, Publishers v. Nation Enter., 471 U.S. 539 (1985) Letterese v. World Inst. of Scientology, 533 F.3d 1287, (11 Cir. 2008) Copr.L.Dec. P 29,589, 87 U.S.P.Q. 2d 1563, 21 Fla. L. Weekly Fed. C 911 (2008); Leadsinger Inc., BMG Music Publ’g., 512 F.3d 522, (9 Cir. 2008) 2007 Copr.L.Dec. P 29,499, 85 U.S.P.Q. 2d 1257, 08 Cal. Daily Op. Serv. 68, 2008 Daily Journal D.A.R. 36 (2008); Bouchat v. Baltimore Ravens Ltd., 587 F.Supp.2d 686, (D. Md. 2008); Warner Bros. Entertainment v RDR Books, 575 F.Supp.2d 513, 2008 Copr.L.Dec. P 29,616, 88 U.S.P.Q.2d 1723 (S.D.N.Y. 2008); Thornton v. J Jargon Co., 580 F.Supp.2d 1261 (M.D. Fla. 2008).

The four statutorily mandated factors possess a multifaceted nature each of which gives rise to several questions which require answers before any conclusions regarding the “fair use” of an object can be reached. Before, addressing the questions raised by the four factors described above, a word must be said about the manner in which, the individual questions are considered in relationship to the whole. It is well settled that the elements elucidated in 17 U.S.C. § 107 (2007) must be evaluated as a whole with due consideration being afforded to the context of, and circumstances surrounding the whole, rather than by attempting to isolate each of the constituent parts and analyzing them as independent abstract propositions detached from the whole.

Id. When conducting a fair use analysis, we are not restricted to these factors;
rather, the analysis is a flexible one that we perform on a case-by-case basis.
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994) (citing Harper
& Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985)).
Moreover, we do not consider these factors in isolation but weigh them together,
in light of the copyright law’s purpose “to promote the progress of science and
art by protecting artistic and scientific works while encouraging the
development and evolution of new works.”Mattel, Inc. v. Walking
Mountain Prods., 353 F.3d 792, 799-800 (9th Cir. 2003) (citing Campbell, 510
U.S. at 575-76). Leadsinger v. BMG Music Publ’g, 512 F.3d 522, (9 Cir. 2008)
2007 Copr.L.Dec. P 29,499, 85 U.S.P.Q. 2d 1257, 08 Cal. Daily Op. Serv. 68, 2008
Daily Journal D.A.R. 36 (2008).

When examining questions of whether copyrighted material has been subjected to a “fair use,” the first component addressed relates to the purpose and character of the use and possesses a minimum of two subsidiary facets: One, is the use of the object intended for commercial purposes, or is the use of the object intended to advance nonprofit purposes. Two are the emendations made to the original transformative, do they alter significantly and substantively the original object.

The first factor in a fair use enquiry is "the purpose and character of the use,
including whether such use is of a commercial nature or is for nonprofit
educational purposes." 107(1). This factor draws on Justice Story's formulation,
"the nature and objects of the selections made." Folsom v. Marsh, 9 F.Cas., at
348. The enquiry here may be guided by the examples given in the preamble to
107, looking to whether the use is for criticism, or comment, or news reporting,
and the like, see 107. The central purpose of this investigation is to see, in
Justice Story's words, whether the new work merely "supersede[s] the objects" of
the original creation, Folsom v. Marsh, supra, at 348; accord, Harper & Row,
supra, at 562 ("supplanting" the original), or instead adds something new, with
a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is "transformative." Leval 1111. Although such transformative use is not absolutely necessary for a finding of fair use, Sony, supra, at 455, n. 40, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine's guarantee of breathing space within the confines of copyright, see, e.g., Sony, supra, at 478-480 (BLACKMUN, J., dissenting), and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use. . . . . The Court of Appeals, however, immediately cut short the enquiry into 2 Live Crew's fair use claim by confining its treatment
of the first factor essentially to one relevant fact, the commercial nature of
the use. The court then inflated the significance of this fact by applying a
presumption ostensibly culled from Sony, that "every commercial use of
copyrighted material is presumptively . . . unfair. . . ." Sony, 464 U.S., at
451 . In giving virtually dispositive weight to the commercial nature of the
parody, the Court of Appeals erred. The language of the statute makes clear that
the commercial or nonprofit educational purpose of a work is only one element of
the first factor enquiry into its purpose and character. Section 107(1) uses the
term "including" to begin the dependent clause referring to commercial use, and
the main clause speaks of a broader investigation into "purpose and character."
As we explained in Harper & Row, Congress resisted attempts to narrow the
ambit of this traditional enquiry by adopting categories of presumptively fair
use, and it urged courts to preserve the breadth of their traditionally ample
view of the universe of relevant evidence. 471 U.S., at 561 ; House Report, p.
66. Accordingly, the mere fact that a use is educational and not for profit does
not insulate it from a finding of infringement, any more than the commercial
character of a use bars a finding of fairness. If, indeed, commerciality carried
presumptive force against a finding of fairness, the presumption would swallow
nearly all of the illustrative uses listed in the preamble paragraph of 107,
including news reporting, comment, criticism, teaching, scholarship, and
research, since these activities "are generally conducted for profit in this
country." Harper & Row, supra, at 592 (BRENNAN, J., dissenting). Congress
could not have intended such a rule, which certainly is not inferable from the
common law cases, arising as they did from the world of letters in which Samuel
Johnson could pronounce that "no man but a blockhead ever wrote except for
money." 3 Boswell's Life of Johnson 19 (G. Hill ed. 1934). Campbell v. Acuff
Rose Music, 510 U.S. 569 (1994).

The second aspect that necessitate consideration, while performing a “fair use” investigation are queries inextricably linked to the nature of the original copyrighted work. When studying whether a composition represents a “fair use” under the law, a valid test demands that consideration be accorded to the original copyrighted source material. An evaluation of the original source necessarily entails a discussion of the original opus and its relationship to the subject of the derivative work. Underlying, this ingredient of the “fair use” test exist a minimum of two propositions. First, what type of composition was the original because, the courts have long held that nature of the original source has a bearing on the derivatrive; and Second, was the original a published or an unpublished work.

The second statutory factor, "the nature of the copyrighted work," 107(2), draws on Justice Story's expression, the "value of the materials used." Folsom v. Marsh, 9 F.Cas., at 348. This factor calls for recognition that some works are closer to the core of intended copyright protection than others, with the consequence that fair use is more difficult to establish when the former works are copied. See, e.g., Stewart v.
Abend, 495 U.S., at 237 -238 (contrasting fictional short story with factual works); Harper & Row, 471 U.S., at 563 -564 (contrasting soon-to-be-published memoir with published speech); Sony, 464 U.S., at 455 , n. 40 (contrasting motion pictures with news broadcasts); Feist, 499 U.S. 348 -351 (contrasting creative works with bare factual compilations); 3 M. Nimmer & D. Nimmer, Nimmer on Copyright
13.05[A]2. (1993) (hereinafter Nimmer); Leval 1116. We agree with both the
District Court and the Court of Appeals that the Orbison original's creative expression for public dissemination falls within the core of the copyright's protective purposes. 754 F.Supp., at 1155-1156; 972 F.2d, at 1437. This fact, however, is not much help in this case, or ever likely to help much in separating the fair use sheep from the infringing goats in a parody case, since parodies almost invariably copy publicly known, expressive works. Campbell v. Acuff Rose Music, 510 U.S. 569
(1994)

After treating the subjects connected to the nature of the original compositions, the parties responsible for determining if “fair use” has occurred, then turn their attention to the third
aspect of the test contained in 17 U.S.C. § 107 (2007). This facet concerns questions related to the amount and substantiality.

Amount and Substantiality of the Portion Used.
Next, the Act directs us to examine the amount and substantiality of the portion used in relation to the copyrighted work as a whole. In absolute terms, the words actually quoted were an insubstantial portion of "A Time to Heal." The District Court, however, found that " The Nation took what was [471 U.S. 539, 565] essentially the heart of the book." 557 F. Supp., at 1072. We believe the Court of Appeals erred in overruling the District Judge's evaluation of the qualitative nature of the taking.
See, e. g., Roy Export Co. Establishment v. Columbia Broadcasting System,
Inc., 503 F. Supp., at 1145 (taking of 55 seconds out of 1 hour and 29-minute film deemed qualitatively substantial). A Time editor described the chapters on the pardon as "the most interesting and moving parts of the entire manuscript." Reply Brief for Petitioners 16, n. 8. The portions actually quoted were selected by Mr. Navasky as among the most powerful passages in those chapters. He testified that he used verbatim excerpts because simply reciting the information could not adequately convey the "absolute certainty with which Ford expressed himself," App. 303; or show that "this comes from President Ford," id., at 305; or carry the "definitive
quality" of the original, id., at 306. In short, he quoted these passages precisely because they qualitatively embodied Ford's distinctive expression. As the statutory
language indicates, a taking may not be excused merely because it is insubstantial with respect to the infringing work. As Judge Learned Hand cogently remarked, "no plagiarist can excuse the wrong by showing how much of his work he did not pirate." Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 56 (CA2), cert. denied, 298 U.S. 669 (1936). Conversely, the fact that a substantial portion of the infringing work was copied verbatim is evidence of the qualitative value of the copied material,
both to the originator and to the plagiarist who seeks to profit from marketing someone else's copyrighted expression. Stripped to the verbatim quotes, the direct takings from the unpublished manuscript constitute at least 13% of the infringing article. See Meeropol v. Nizer, 560 F.2d 1061, 1071 (CA2 1977) (copyrighted letters constituted less than 1% of infringing work but were prominently featured). The Nation article is structured around the quoted excerpts which serve as its dramatic focal points. See Appendix to this opinion, post, p. 570. In view of the expressive value of the excerpts and their key role in the infringing work, we cannot agree with the Second Circuit that the "magazine took a meager, indeed an infinitesimal amount of Ford's original language." 723 F.2d, at 209. of the original composition used in the
construction of the new derivative work. Harper Row, Publishers v. Nation
Enter., 471 U.S. 539 (1985)

The final element that requires consideration when treating questions of “fair use” examines the affect of the effect of the use on the marketplace in general, and the affect that the development of the derivative will have on the inherent value of the original work .

Effect on the Market. Finally, the Act focuses on "the effect of the use upon
the potential market for or value of the copyrighted work." This last factor is
undoubtedly the single most important element of fair use. See 3 Nimmer 13.05[A], at 13-76, and cases cited therein. "Fair use, when properly applied, is limited to copying by others which does not materially impair the marketability of the work which is copied." 1 Nimmer 1.10[D], at 1-87. The trial court found not merely a potential but an actual effect on the market. Time's cancellation of its projected serialization and its refusal to pay the $12,500 were the direct effect of the infringement. The Court of Appeals rejected this fact finding as clearly erroneous, noting that the record did not establish a causal relation between Time's nonperformance and respondents' unauthorized publication of Mr. Ford's expression as opposed to the facts taken from the memoirs. We disagree. Rarely will a case of copyright infringement present such clear-cut evidence of actual damage. Petitioners assured Time that there would be no other authorized publication of any portion of the unpublished manuscript prior to April 23, 1979. Any publication of material from chapters 1 and 3 would permit Time to renegotiate its final payment. Time cited The
Nation's article, which contained verbatim quotes from the unpublished
manuscript, as a reason for its nonperformance. With respect to apportionment of
profits flowing from a copyright infringement, this Court has held that an
infringer who commingles infringing and noninfringing elements "must abide the
consequences, unless he can make a separation of the profits so as to assure to
the injured party all that justly belongs to him." Sheldon v. Metro-Goldwyn
Pictures Corp., 309 U.S. 390, 406 (1940). Cf. 17 U.S.C. 504(b) (the infringer is
required to prove elements of profits attributable to other than the infringed
work). Similarly, once a copyright holder establishes with reasonable probability the existence of a causal connection between the infringement and a loss of revenue, the burden properly shifts to the infringer to show that this damage would have occurred had there been no taking of copyrighted expression. See 3 Nimmer 14.02, at 14-7 - 14-8.1. Petitioners established a prima facie case of actual damage that respondents failed to rebut. See Stevens Linen Associates, Inc. v. Mastercraft Corp., 656 F.2d 11, 15 (CA2 1981). The trial court properly awarded actual damages and accounting of profits. See 17 U.S.C. 504(b). More important, to negate fair use one need only show that if the challenged use "should become widespread, it would adversely affect the potential market for the copyrighted work." Sony Corp. of America v. Universal City Studios, Inc., 464 U.S., at 451 (emphasis added); id., at 484, and n. 36 (collecting
cases) (dissenting opinion). This inquiry must take account not only of harm to
the original but also of harm to the market for derivative works. See Iowa State
University Research Foundation, Inc. v. American Broadcasting Cos., 621 F.2d 57
(CA2 1980); Meeropol v. Nizer, supra, at 1070; Roy Export v. Columbia
Broadcasting System, Inc., 503 F. Supp., at 1146. "If the defendant's work
adversely affects the value of any of the rights in the copyrighted work (in
this case the adaptation and serializationright) the use is not fair." 3
Nimmer 13.05[B], at 13-77 - 13-78 (footnote omitted). It is undisputed that
the factual material in the balance of The Nation's article, besides the
verbatim quotes at issue here, was drawn exclusively from the chapters on the
pardon. The excerpts were employed as featured episodes in a story about the
Nixon pardon - precisely the use petitioners had licensed to Time. The borrowing
of these verbatim quotes from the unpublished manuscript lent The Nation's piece
a special air of authenticity - as Navasky expressed it, the reader would know
it was Ford speaking and not The Nation. App. 300c. Thus it directly competed
for a share of the market for prepublication excerpts. The Senate Report states:
"With certain special exceptions . . . a use that supplants any part of the
normal market for a copyrighted work would ordinarily be considered an
infringement." Senate Report, at 65. Placed in a broader perspective, a fair
use doctrine that permits extensive prepublication quotations from an unreleased
manuscript without the copyright owner's consent poses substantial potential for
damage to the marketability of first serialization rights in general. "Isolated
instances of minor infringements, when multiplied many times, become in the
aggregate a major inroad on copyright that must be prevented." Harper Row,
Publishers v. Nation Enter., 471 U.S. 539 (1985)

In applying the “fair use” test discussed in the preceding pages both attorneys and paralegals need to be mindful of Justices Brennan’s warning against applying the test either a manner that is overly narrow or excessively broad. Great care and caution must be used when employing the test. A carless and uninformed application of the "fair use" doctrine by legal professionals possesses the potential to lead to a society in which the creative impetus is allowed to run rampant because, there exists no checks to prevent from people from illegally appropriating the work of others and claiming it as their own,. Conversely, an improper application of the doctrine could serve to stifle the creative spirit.

A Constitutional Challenge?

2009-02-02T16:55:00.000-08:00

Governor Milorad "Rod" R. Blagojevich's impeachment by the State Legislature for the State of Illinois has the potential to engender constitutional questions.

The trial procedure employed by the Illinois State Senate during Governor Blagojevich's trial on the Articles of Impeachment passed by the Illinios House of Representatives could potentially give rise to questions of whether the State of Illinois violated Governor Blagojevich's civil rights

Governor Blagojevich's counselors have argued that the Rules of Procedure utilized by the Illinois State Senate prohibited them from presenting a defense for the Governor on the charges. If these charges are true, then the Governor could argue that the process violated his right to due process and by extension his civil rights.

Disturbing Trend: The Church Shifting Further Right

2009-01-26T10:47:00.000-08:00

The vacating of the excommunications of the leading members of the Society of Saint Pius X also known as the "Lefebvrists." signals a disturbing shift towards the outer reaches of the conservative wing of the Roman Catholic Church.

As an American Catholic I am alarmed by this event because, it seems that Pope Benedict XVI is trying to construct a papacy that bears the hallmarks of the papacies of Pius IX, Leo XIII, Pius X, and Benedict XV. By that I mean I fear that the Pope is attempting to reform the Church in such a way that it will be negatively transformed in an attempt to recreate the Church as it existed from 1846 to 1922. Without givinng due regard to those developments that occurred following the death of Benedict XV in 1922

No progress

2008-12-13T10:40:00.000-08:00

No new job. Nothing else to report.

Words II: Bramare

2008-10-28T15:03:00.000-07:00

Bramare, is an Italian word meaning to yearn. The word denotes and connotes a deep seeded desire or longing. In recent months I have found that this word has developed a greater degree of power in my life.

I find myself sorely unfulfilled. I am lacking fulfillment in the sense that I desire to be both productively employed, and I desire with an equal measure of conviction to take Jennifer in my arms and to hold her without needing to send her home to her parents. To a certain degree I find myself looking to tomorrow because, I am reminded of the words of the poet Kalidasa

Listen to the Exhortation of the Dawn!
Look to this Day!For it is Life, the very Life of Life.
In its brief course lie all the Verities and Realities of your
Existence.
The Bliss of Growth,
The Glory of Action,
The Splendor of Beauty;
For Yesterday is but a Dream,
And Tomorrow is only a Vision;
But To-day well lived makes Every Yesterday a Dream of Happiness,
And every Tomorrow a Vision of Hope.
Look well therefore to this Day!
Such is the Salutation of the Dawn!

It is in the light of the morrow that lies my hope for an enduring marriage founded on love and respect. Like the character of Frances in the film adaptation of Under the Tuscan Sun I hold the hope that the future will bring love, peace and contentment.

Words: La Verdadera Destreza

2008-10-27T21:05:00.001-07:00

La verdadera destreza is the term used to describe the school of swordsmanship founded by Don Jerónimo Sánchez de Carranza in 1569 expanded upon by his students over the next three hundred years. The term "La verdadera destreza" does not translate literally from Castillian Spanish into English. Roughly translated the term means the true skill.

Advocates like fencers engage in duels with their enemies and opponents, the only difference being the nature and the style of the combat. Fencers convey their skill and knowledge through their demonstrable mastery of their weapons. Conversely, the duels engaged in by advocates are primarily mental duels with the spoken and written word serving as the weapons of advocates. The mastery and skill of advocates are demonstrated by the artfulness with which, they construct their arguments and their ability to sway or persuade the populace of the veracity of their positions.

In my recent employment I found that my employer was adept at swaying and swaying people to the truth of his positions, even if the adoption of such a position resulted in people regardless of whether the opponent was an opposing counsel, a client, or an employee, ending up in final position that was more detrimental than their starting position.

Indeed I was initally affected by the siren song of my employers words much to my deteriment. I only rgained my senses after my second salary check was not honored because, my employer possessed insufficient funds to pay my salary. I allowed myself to be gulled into lowering my guard and allowed my self to be wounded wounded through his skillful use of words

Changes

2008-09-06T11:42:00.000-07:00

The rapidly approaching autumnal season is bringing not only the seasonal transformations often accompanied by the progression of time. This year the fall seasons has brought a radical change in my cicumstances. This evolution in my status is quite beneficial because, the alteration in my situation has come in the form of my first work in thirty (30) months.

I am now working for a non-profit organization on a voluuntary basis called Why Vote Now Incorporated, a public non-profit corporation whose purpose is to encourage the elders, the youth, and the disabled to vote in elections. This is accomplished through the use of targeted voter registration drives, and block-walking canvasses, in addition to other community outreach events.

I am contented with my work because, it allows me to utilize my academic training in History, International Relations, and Paralegal Studies for the advancement of the people and the common good.

More Musings on Celibacy

2008-08-03T19:53:00.001-07:00

The debate on celibacy of Jesus by extension the celibacy of priestshas been ongoing for two milennia. Saint Peter, the first pope wasmarried indeed Jesus even cured his mother in-law of an illness.Also, the Apostle Philip was married and had four daughters asClement of Alexandria pointed out in Book 3, Chapter 6, Paragraphs 52and 53 of the Stromata

52. How then? Did not the righteous in ancient times partake of whatGod
made with thanksgiving? Some begat children and lived chastely inthe married
state. To Elijah the ravens brought bread and meat forfood. And Samuel the
prophet brought as food for Saul the remnant ofthe thigh, of which he had
already eaten. But whereas they say thatthey are superior to them in behaviour
and conduct, they cannot evenbe compared with them in their deeds. "He who does
not eat,"then, "let him not despise him who eats; and he who eats let him
notjudge him who does not eat; for God has accepted him." Moreover, theLord says
of himself: "John came neither eating nor drinking, andthey say, He has a devil.
The Son of man came eating and drinking andthey say, Behold a gluttonous man and
a wine-bibber, a friend ofpublicans and a sinner." Or do they also scorn the
apostles? Peterand Philip had children, and Philip gave his daughters in
marriage.

53. Even Paul did not hesitate in one letter to address his consort.The
only reason why he did not take her about with him was that itwould have been an
inconvenience for his ministry. Accordingly hesays in a letter: "Have we not a
right to take about with us a wifethat is a sister like the other apostles?" But
the latter, inaccordance with their particular ministry, devoted themselves
topreaching without any distraction, and took their wives with them notas women
with whom they had marriage relations, but as sisters, thatthey might be their
fellow-ministers in dealing with housewives. I twas through them that the Lord's
teaching penetrated also the women'squarters without any scandal being aroused.
We also know thedirections about women deacons which are given by the noble Paul
inhis second letter to Timothy. Furthermore, the selfsame man criedaloud that
"the kingdom of God does not consist in food and drink,"not indeed in abstinence
from wine and meat, "but in righteousness,peace, and joy in the Holy Spirit."
Which of them goes about likeElijah clad in a sheepskin and a leather girdle?
Which of them goes about like Isaiah, naked except for a piece of sacking and
withoutshoes? Or clothed merely in a linen loincloth like Jeremiah? Which ofthem
will imitate John's gnostic way of life? The blessed prophetsalso lived in this
manner and were thankful to the Creator.

Even the Pauline epistles are at variance with one another consider the following passages:
First, from the First Epistle of Saint Paul to Saint Timothy:

This saying is trustworthy: whoever aspires to the office of bishop desires a
noble task. Therefore, a bishop must be irreproachable,married only once,
temperate, self-controlled, decent, hospitable,able to teach, not a drunkard,
not aggressive, but gentle, notcontentious, not a lover of money. He must manage
his own householdwell, keeping his children under control with perfect dignity;
for if a man does not know how to manage his own household, how canhe take care
of the church of God? He should not be a recent convert,so that he may not
become conceited and thus incur the devil'spunishment. He must also have a good
reputation among outsiders, sothat he may not fall into disgrace, the devil's
trap; 1 Timothy 3:1-7

As a second example consider this passage from Sant Paul's First Epistle to the Corinthians 9:3-5

My defense against those who would pass judgment on me is this. Do we
not have the right to eat and drink? Do we not have the rightto take along a
Christian wife, as do the rest of the apostles, andthe brothers of the Lord, and
Cephas? Or is it only myself and Barnabas who do not have the right not to
work? 1 Corinthians 9:3-5

Conversely, Paul seemingly demonstrates a preference toward celibacyin these two paasages from the first Epistle of Saint Paul to the Corinthians

I wish everyone to be as I am, but each has a particular gift from
God, one of one kind and one of another. Now to the unmarried and to
widows, I say: it is a good thing for them to remain as they are, as I do, but
if they cannot exercise self-control they should marry, for it is better to
marry than to be on fire. 1 Corinthians 7:7-9

and again in the First Epistle to the Corinthians:

I should like you to be free of anxieties. An unmarried man is anxious
about the things of the Lord, how he may please the Lord. But a married man is
anxious about the things of the world, how hemay please his wife, and he is
divided. An unmarried woman or a virgin is anxious about the things of the Lord,
so that she may be holy in both body and spirit. A married woman, on the other
hand, is anxious about the things of the world, how she may please her
husband. 1 Corinthians 7:32-34

The first attempts at deciding the question of celibacy in regard to priests and other ministers can be traced to the Synod (council) of Elvira in 306 and to a Synod (council) held in Carthage some time between 397 C.E. and 400 C.E.

The Roman Catholic Church as it exists in the aftermath of the Second Vatican Council (1962-1965) does not have a doctrine relating to celibacy per se, the celibacy requirements are codified in canon law.

In the Latin (Western) Rite celibacy has been the norm even though it was not formally codified into canon law until the revisions approved by Pope Benedict XV in 1917. Since the pontificate of Pius XII (1939-1958) exceptions to these provisions of canon law have been made onoccassion for married Protestant ministers who wish to convert and become ministers in the Roman Catholic Church. The canon laws that govern celibacy in the Latin Rite do not apply to the Oriental (Eastern) Rite churches in communion with Rome, these churches are permitted to ordain married men to the priesthood. Although, it has long been tradition that those who are bishops of the Oriental Rite be celibate.

In theory the Pope possesses the eccleasiastic and temporal authority necessary to abrogate and repeal the canon laws regulating thecelibacy and the pohibition of marrige requirements related to clerics without the need for convening an eccumenical council. However, in cases involving dogmatic changes the standard procedureis to convene an eccumenical council, which, in enables the otherbishops to have a voice in the decision making process

The Future Pope

2008-07-30T15:58:00.000-07:00

At the time of his election in April 2005 Pope Benedict XVI became only the third Pope elected in the last 275 years who was over the age of seventy. The two other Popes older than seventy were Pope Clement XII who reigned from 1730-1740 and Pope John XXIII who reigned from 1958-1963.

Three years later at the age of eighty-one, it seems that Pope Benedict's health is in better condition is considerably better than that of Pope John XXIII who was terminally ill with stomach cancer for the last year and a half of his reign. Unlike Pope John, Pope Benedict's health issues are managable and are not terminal. Given this fact, it seems likely that Pope Benedict could have a relatively lengthy reign.

If Pope Benedict's reign is approximately ten years several of the candidates considered papabili in the Conclave of 2005 must be removed from the list of possible successors due to being over eighty years old at the time of the next Conclave

Geraldo, Cardinal Agnello
Francis Cardinal Arinze
Tarcisio Cardinal Bertone
Godfried Cardinal Danneels
Francisco Cardinal Errázuriz Ossa
Cláudio Cardinal Hummes
Lubomyr Cardinal Husar
Walther Cardinal Kasper
Carlo Cardinal Martini
Cormac Cardinal Murphy-O'Connor
Severino Cardinal Poletto
Giovanni Battista Cardinal Re
Angelo Cardinal Sodano
Edmund Cardinal Szoka
Dionigi Cardinal Tettamanzi
Miloslav Cardinal Vlk
Friedrich Cardinal Wetter

The removal of these seventeen candidates leaves several that are high qualified for the office of Pope among them

Ennio Cardinal Antonelli, President of the Pontifical Council for the Family in the Roman Curia
Ivan Cardinal Dias, Prefect of the Congregation for the Evangelization of Peoples
Daniel Cardinal DiNardo Archbishop of Galveston-Houston
Marc Cardinal Ouellet, Archbishop of Quebec
José Cardinal Policarpo Archbishop of Lisbon
Óscar Andrés Cardinal Rodríguez Maradiaga Archbishop of Tegucigulpa
Angelo Cardinal Scola Patriarch of Venice
Jean-Claude Cardinal Turcotte Archbishop of Montreal

To this list of eight papbili I would add two others who are likely to be appointed a Cardinal in a future consistory

9. John Michael Archbishop Miller CSB the Archbishop of Vancouver.
10. Nerses Bedros XIX, the Patriarch of the Armenian Catholic Church

I added him to the list because of his wide experience in the field of education and his two tenures in the Vatican as a part of the curial staff.

Questions

2008-07-29T10:22:00.000-07:00

The Bible asserts that Adam and Eve were the progenitors of humankind, and that originally that they were created as perfect beings in the sight of God. However, their sin corrupted their nature and rendered them imperfect. The teachings of the of both Christianity and Judaism hold that the sin of Adam and Eve has been transmitted down through the generations, and that the imperfections found within the human race are the result of the Original Sin.

The original sin of Adam and Eve marred every aspect of their being both body and soul, this marring resulted in an imperfect understanding of the nature and will of the perfect God. Given humanity's imperfect understanding of the nature and will of God, it seems to follow that humankind would also possess an imperfect understanding of the revelations given by God.

If humans possess an imperfect understanding of God and its revelations, how then can the more fundamentalistic sectors of religions argue that because, a person holds different set beliefs that they will be denied salvation? Such a position assumes that the will of God as illustrated in its revelations have been perfectly and fully understood by humanity, a position not taken even by the Church Fathers.

I argue that while every religion may contain some degree of truth and falsehood, only the one perfect God the Most High possesses the requisite knowledge to discern and distinguish absolutely with finality truth from falsehood because God is above all else

We believe in one God, the Father, the Almighty, maker of heaven
and earth, of all that is, seen and unseen.

I affirm my belief in the tenets of the Nicene-Constantinopalian Creed and the Apostles' Creed, what I question is the accuracy with which, the Apostles and Disciples transmitted the message of Jesus to succeeding generations.

Some Random Musings on the Masculine and Feminine as it relates to the humanity of Jesus

2008-07-16T17:17:00.000-07:00

Over several years I have pondered the relationship between the Humanity and Divinity of Jesus recently I came across quotation from the Gospel of the Egyptains that quoted by Clement of Alexandria that has shed a new light on the subject.

When Salome asked when the things would be known that she asked about, the Lord
said, “When you have trampled on the garment of shame and when the two become
one and the male with the female is neither male nor female.”
Gospel of the Egyptians, quoted by Clement of Alexandria, Strom. 3.13.92

The position held by the Docetic it seems to me in a sense is akin to aceepting the male Logos while denying the validity of the female Sophia. As Professor Margaret Starbird eloquently pointed out in the Woman with the Jar the sacred feminine cannot thrive without its counterpart the sacred feminine just as the sacred masculine is rendered impotent without the sacred feminine.

This idea of divine union reaches as far back as ancient Egypt consider the case Geb and Nut who were forcibly separated on orders of Re. Yet, the seperation rendered them both barren and impotent.

One of the myriad of creation myths told by the Ancient Egyptains held that the passionate love Geb and Nut possessed for each other angered the sun god Re, their grandfather. Re, commanded that the young lovers be separated by their father Shu who stood on Geb and lifted Nut high up above him, creating the heavens and the atmosphere by separating the sky from the earth. Furthermore, Re declared that Nut would not bear any children during the calendar year.

However, Thoth the god of knowledge and wisdom took pity on them and through use of his guile and cunning, he played five rounds of draughts with the inebriated Moon. During the match the Moon not realizing he what he was doing wagered an additional five intercalary days which were not included in the normal calendar. Thoth won match and on these five days and five nights Geb and Nut were able to consumate their divine marriage. Nut became pregnant and gave birth to Osiris on the first night; Horus the Elder, on the second night; Set, prematurely on the third night; Isis on the fourth night; and Nephthys on the last night. It said that each still loves and longs for the other.

Um and Yang

2008-06-27T10:35:00.000-07:00

My life at the present reminds me of the Um and Yang symbol because, they are opposites that complement each other. The level of activity tends to shift from one aspect to the other. Currently my personal life is serving as the Yang, the active aspect because, of the wedding planning process. Conversely, my professional life seems to have reached a stalemate and has taken on the passive aspect of the Um. I have applied for numerous posiitions as both a paralegal and a teacher, but, the prospective employers have shown little interest and interviews have been few.

Plutoids: The continuing saga of Pluto

2008-06-11T18:34:00.000-07:00

Two years ago the International Astronomical Union (IAU) after a heated debate decided to reclassify Pluto as a dwarf planet, and a trans-Neptunian dwarf-planet altering its original designation as a planet, a designation that Pluto had held since, its discovery in 1930. www.iau2006.org/mirror/www.iau.org/iau0603/index.

Today the IAU announced that it had adopted the term Plutoids to describe Trans-Neptunian celestial objects that meet the definition of dwarf planets adopted two years ago:

Plutoids are celestial bodies in orbit around the Sun at a distance greater than that of Neptune that have sufficient mass for their self-gravity to overcome rigid body forces so that they assume a hydrostatic equilibrium (near-spherical) shape, and that have not cleared the neighbourhood around their orbit. The two known and named plutoids are Pluto and Eris. It is expected that more plutoids will be named as science progresses and new discoveries are made.
http://www.iau.org/public_press/news/release/iau0804/

The current definiton used by the IAU means that only Pluto and Eris are classified as plutoids, excluding Charon, which the IAU holds is merely a satellite of Pluto. Although, there is a minority of astronomers that have adopted the view that Pluto and Charon constitute a double dwarf planet. If this view ultimately prevails they would be the only double planetary system within the solar system

Update a third celestial body has been classified as both a dwarf planet and a Plutoid, it is named Makemake and is found in the Kuiper Belt.

Ordination of Women

2008-05-30T19:09:00.000-07:00

One of the titles given to Mary Magdalene in the Eastern Rite Catholic Churches in communion with Rome is Iσαπόστολος, isapostolos in Greek, aequalis apostolis in Latin, which, translates into English as Equal to the Apostles.

Another case and point is Saint Phoebe (1st century) who was a deaconess of the Church. She was commended to the congregation of Rome by St. Paul, who praised her for her assistance to him and who according to tradition delivered the Epistle to Romans to the congregation Her feast day is 3 September

I would humbly assert that Mary's designation and Phoebe's role in the early church are sufficient reasons to permit and work toward the full ordination and participation of women within the Ministry. Furthermore, I would argue that this position is consistent with the Jewish traditions that were the foundation for Christianity that affirmed the feminine aspect of the Divine Presence exemplified by the Shekhinah.

Update The Vaican just announced that women who are ordained and the bishops that ordain them would be excommunicated. So on issue of equality the Church remains in the Dark and Middle ages.

Life Themes within Prince Caspian A Revision

2008-05-29T10:12:00.000-07:00

RAF, aka little Trumpkin posited a question to me regarding the fact that I did not address themes related to life and the affirmation of life in previous post. In the film during a respite in his duel with Miraz, Peter asks Edmund:

What do you think happens at home if you die
here?

In the novels The Lion, Witch, and the Wardrobe, Prince Caspian and the films adaptations of the novels I noted the following formula Right Attitude + Right Action = Salvation

Right Attitude, the first part of the equation is a composite, which, requires that the faith of individuals be informed by reason and that reason of an individual complement, the faith of individuals enabling humankind to harmoniously balance faith and reason in a peaceful coexistence.

I would assert that the right attitude according to a Lewisian viewpoint would be akin to Eli's instructions to Samuel on how respond to G-D when G-D calls. Speak LORD thy servant is listening as illustrated by Aslan's chastisement of Lucy for neglecting her duties to the people and placing her own desires above the good of the people.

The existence of a right attitude endows humankind with the tools necessary to undertake the second part of the salvation equation which, is right action. The fact that a person has the proper attitude does not necessarily always result in the person undertaking righteous actions because, G-D granted to humankind the free will to make choices, and among the choices each human has to make is the choice to do good works for the betterment of humanity or evil works that harm humans.

For example after the disastrous raid on Miraz's castle and the loss of so many men both Caspian and Peter are tempted to a degree to call upon the White Witch and make a deal with the devil, but, Edmund's inherent faith in Aslan and his inherent reason accomplished the right action that saved both Caspian and Peter both of whom were blinded by their pride.

So also faith of itself, if it does not have works, is dead. Indeed someone
might say, "You have faith and I have works." Demonstrate your faith to me
without works, and I will demonstrate my faith to you from my works. You believe
that God is one. You do well. Even the demons believe that and tremble.
Do you want proof, you ignoramus, that faith without works is useless? Was
not Abraham our father justified by works when he offered his son Isaac upon the
altar? You see that faith was active along with his works, and faith was
completed by the works. Thus the scripture was fulfilled that says, "Abraham
believed God, and it was credited to him as righteousness," and he was called
"the friend of God." See how a person is justified by works and not by faith
alone. And in the same way, was not Rahab the harlot also justified by works
when she welcomed the messengers and sent them out by a different route? For
just as a body without a spirit is dead, so also faith without works is dead.
James 2:17-26
In answer to the question What do you think happens at home if you die here? The answer depends on the righteousness or lack thereof, but as to what will ultimately happen when an individual dies only G-D has the answer to that question. I have experienced first hand what death is and it is beyond my capacity to describe it.

Thoughts on Themes

2008-05-16T13:10:00.000-07:00

The movie Prince Caspian illustrates a variety of themes that are important for both children and adults to take to heart.

First, the movie illustrates the need to work as team and the importance of community as Queen Lucy demonstrates this principle when she reminds High King Peter to remember who actually defeated Jadis. King Edmund further reinforces this need later in the film when he destroyed the conjured image of Jadis.

Second, the film reminds viewers that wisdom often comes in surprising guises and from unexpected sources. The tome also recalls that even the youngest of individuals can exhibit a level of maturity in their faith, reason and strength that can equal or surpass those qualities in adults as Lucy and Edmund illustrate through their words and conduct.

Third, the movie serves a metaphor for crises of faith as demonstrated by Peter, Susan, and Caspian X, highlights the need to work through them because, this results in a heightened understanding of self and the individual responsibility that every human being bears.

Fourth, the adaptation calls the veiwer to examine the secular roles that every person possesses and to insure that the people are fulfilling both their secular and religious duties to the best of their abilities.

Last, the tale reinforces the need for parents and adults to take an active role in the development of children if they are expected become healthy vibrant adults.

OLLU Fire Update

2008-05-11T22:58:00.000-07:00

The San Antonio Business Journal is reporting that the cause of the fire was not an arson but, was an electrical short that occurred in the attic of the Old Main. This fact does not surprise me considering the age and condition of the building

Our Lady of the Lake

2008-05-06T19:26:00.001-07:00

Has anyone ever been moved by the sheer beauty of a building? I am curious because, one of the most beautiful buildings in the whole of San Antonio is rapidly being consumed by a raging fire.

The main building of Our Lady of the Lake University is being consumed by an inferno that is believed to have started as an electrical fire. I was only in the building once as young child but, to this day I remember the beauty of the building and the splendor of its architecture. I also recall the joy and happiness my grandfather derived from showing me the building.

The only portion of the main building still untouched by fire is the university chapel. The university has connections with my family dating back several generations. My parents attended the university and were married in the chapel. My grandfather and his brothers were involved in renovating the chapel in the 1960's

Fortunately the building was largely empty and the members of the cleaning crew who were inside were able to escape the fire.

Response to the 123 meme

2008-05-06T17:36:00.000-07:00

The number of perfection is the result of the union of spiritual totality
(3) with material totality (4). Other meanings are concealed in the sum of 1 (The Supreme Being) with 6 (the union of celestial and terrestrial forces; or of 2 (feminity) with 5 (magic). Divinatory meanings: Premonitory dreams, strange visions. Reverie, unlikely projects, small achievements. The Reverse: Futile dreams, vain ambitions.

Page 123 Visconti Tarots (Berti and Gonard 2002).

I do not know of anyone else to tag.

The Four Pevensies and My Faith Journey

2008-04-27T14:13:00.000-07:00

In re-reading The Chronicles of Narnia series I find that the characters of the four Pevensie children reflect to a degree the evolution of my faith. The four Pevensie's represent several metaphors: First, they symbolize the evolutionary nature of my faith. Lucy and Susan represent the ideas of pure faith and pure reason Second, Edmund serves as a metaphor for the potential for the harmonious coexistence of faith and reason. Peter serves as the realization of the ideal harmonious coexistence of faith amd reason.

Prayers Needed

2008-04-26T22:13:00.000-07:00

I do not normally make requests of my redears but, two special cases have occurred that require me to ask my readers to keep my extended family in their prayers.

1. Two days ago a younger cousin of mine, who was not yet thirty years old died. The exact cause and nature of his death are still under investigation. He and I formed part of a cadre of cousins that often played together when we were at extended family gatherings.

His death has shaken my family greatly for several reasons. First only a few family members knew the extent of his troubles. Second, his death is deeply troubling for me because, in the aftermath of his death I wonder what will be the fate of his younger sister. His younger sister has Down's Syndrome, I find that myself worrying about who protect and care for her when he mother is no longer able to do so. Third, the death of my cousin also badly affected my sister who had closer relationship with both my cousins.

2. Jennifer's grandmother is in the hospital with Diverticulitis which worries me because of her primary doctor is a useless quack and at her advanced age, she is eighty soon tone eighty one.

Spawn of the Devil: Counseling

2008-03-26T09:36:00.000-07:00

My fiancee and I went to a pre-marriage counseling session that is required by the church we both attend. In the aftermath of the session, I am inclined to argee with my friend Little Mal on the subject of such counseling. I hold that it is now ever shall be spawn of the devil and an anathema. All the counselor did was attack and berate a truly un-Christian thing to do.

Response to a Poll

2008-03-12T15:32:00.000-07:00

1) President George W. Bush or President William Clinton? Both although I would prefer Lieberman as President

You must answer 1a and 1b.

1a) Give 3 issues why you support your guy: Clinton

Signed the Rome Statute
Negotiated GATT AND WTO Treaties
Negotiated the Israeli and Jordanian Peace Accord

1b) Now name 3 things good about the other guy: Bush
Removed Saddam Hussein from power
Articulated a two state solution for Palestine
Inspired Bushisms

2) Favorite Sci-fi movie? Lord of the Rings

3) Favorite Sci-fi TV show? Star Wars Clone Wars

4) Favorite Alternate History story (movie, TV or book)? Name of the Rose

5) Best American Legislator? (if overseas, your local Legislators) Henry B. Gonzalez

6) Best Foreign Legislator? (if overseas, this is where you can choose American legislators)
Yitzak Rabin , King Talal.

7) Favorite Sci-fi scene? (Youtube it if you can) The duel between Obi Wan Kenobi and Anakin Skywalker

8) Pitch a cross-over between two sci-fi shows/movies/etc.: Lord Voldemort duels Yoda and Yaddle

9) Who will win the Democratic Presidential Primary? Clinton will win because, the establlishment wants an experienced campaigner to challenge McCain

10) Will Gordon Brown call an election before 2010? Yes, the disaffection of the Scots and the Muslims will force an election

11) Favorite Steampunk, Cyberpunk or Post-Cyberpunk novel, comic, book or movie? Hellboy

12) Best Pizza place? No such place exists the only good pizza is homemade and handmade.

A Lay Person View of Blanchard v. Morton School District

2008-02-29T12:25:00.000-08:00

The case of Blanchard v. Morton School District, docket number 07-825 revisits the question of whether the Individuals with Disabilities Education Act can be enforced using 42 U.S.C. § 1983.

The stated purpose of 42 U.S.C. § 1983, is to serve as a means of instituting a corrective civil action to provide a means of redress for the deprivation of the rights of individuals.

Section 1983. Civil action for deprivation of rights

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought
against a judicial officer for an act or omission taken in such officer's judicial capacity,
injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

The heart of the debate turns on the question of whether or not 42 U.S.C. § 1983 can be utilized as a remedy for violations of the Individuals with Disabilities Education Act or whether the text of the Individual with Disabilities Education Act contains a remedial statute, in the form of
20 U.S.C. § 1415.

Section 1415. Procedural safeguards
(a) Establishment of procedures
Any State educational agency, State agency, or local educational agency that receives assistance under this subchapter shall establish and maintain procedures in accordance with this section to ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of free appropriate public education by such agencies.
(b) Types of procedures
The procedures required by this section shall include -
(1) an opportunity for the parents of a child with a disability to examine all records relating to such child and to participate in meetings with respect to the identification, evaluation, and educational placement of the child, and the provision of a free appropriate public education to such child, and to obtain an independent educational evaluation of the child;
(2) procedures to protect the rights of the child whenever the parents of the child are not known, the agency cannot, after reasonable efforts, locate the parents, or the child is a ward of the State, including the assignment of an individual (who shall not be an employee of the State educational agency, the local educational agency, or any other agency that is involved in the education or care of the child) to act as a surrogate for the parents;
(3) written prior notice to the parents of the child whenever such agency -
(A) proposes to initiate or change; or
(B) refuses to initiate or change; the identification, evaluation, or educational placement of the child, in accordance with subsection (c) of this section, or the provision of a free appropriate public education to the child;
(4) procedures designed to ensure that the notice required by paragraph (3) is in the native language of the parents, unless it clearly is not feasible to do so;
(5) an opportunity for mediation in accordance with subsection (e) of this section;
(6) an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child;
(7) procedures that require the parent of a child with a disability, or the attorney representing the child, to provide notice (which shall remain confidential) -
(A) to the State educational agency or local educational agency, as the case may be, in the complaint filed under paragraph (6); and
(B) that shall include -
(i) the name of the child, the address of the residence of the child, and the name of the school the child is attending;
(ii) a description of the nature of the problem of the child relating to such proposed initiation or change, including facts relating to such problem; and
(iii) a proposed resolution of the problem to the extent known and available to the parents at the time; and
(8) procedures that require the State educational agency to develop a model form to assist parents in filing a complaint in accordance with paragraph (7).
(c) Content of prior written notice
The notice required by subsection (b)(3) of this section shall include -
(1) a description of the action proposed or refused by the agency;
(2) an explanation of why the agency proposes or refuses to take the action;
(3) a description of any other options that the agency considered and the reasons why those options were rejected;
(4) a description of each evaluation procedure, test, record, or report the agency used as a basis for the proposed or refused action;
(5) a description of any other factors that are relevant to the agency's proposal or refusal;
(6) a statement that the parents of a child with a disability have protection under the procedural safeguards of this subchapter and, if this notice is not an initial referral for evaluation, the means by which a copy of a description of the procedural safeguards can be obtained; and
(7) sources for parents to contact to obtain assistance in understanding the provisions of this subchapter.
(d) Procedural safeguards notice
(1) In general
A copy of the procedural safeguards available to the parents of a child with a disability shall be given to the parents, at a minimum -
(A) upon initial referral for evaluation;
(B) upon each notification of an individualized education program meeting and upon reevaluation of the child; and
(C) upon registration of a complaint under subsection (b)(6) of this section.
(2) Contents
The procedural safeguards notice shall include a full explanation of the procedural safeguards, written in the native language of the parents, unless it clearly is not feasible to do so, and written in an easily understandable manner, available under this section and under regulations promulgated by the
Secretary relating to -
(A) independent educational evaluation;
(B) prior written notice;
(C) parental consent;
(D) access to educational records;
(E) opportunity to present complaints;
(F) the child's placement during pendency of due process proceedings;
(G) procedures for students who are subject to placement in an interim alternative educational setting;
(H) requirements for unilateral placement by parents of children in private schools at public expense;
(I) mediation;
(J) due process hearings, including requirements for disclosure of evaluation results and recommendations;
(K) State-level appeals (if applicable in that State);
(L) civil actions; and
(M) attorneys' fees.
(e) Mediation
(1) In general
Any State educational agency or local educational agency that receives assistance under this subchapter shall ensure that procedures are established and implemented to allow parties to disputes involving any matter described in subsection (b)(6) of this section to resolve such disputes through a mediation process which, at a minimum, shall be available whenever a hearing is requested under subsection (f ) or (k) of this section.
(2) Requirements
Such procedures shall meet the following requirements:
(A) The procedures shall ensure that the mediation process -
(i) is voluntary on the part of the parties;
(ii) is not used to deny or delay a parent's right to a due process hearing under subsection (f) of this section, or to deny any other rights afforded under this subchapter; and
(iii) is conducted by a qualified and impartial mediator who is trained in effective mediation techniques.
(B) A local educational agency or a State agency may establish procedures to require parents who choose not to use the mediation process to meet, at a time and location convenient to the parents, with a disinterested party who is under contract with -
(i) a parent training and information center or community parent resource center in the State established under section 1482 or 1483 of this title; or
(ii) an appropriate alternative dispute resolution entity; to encourage the use, and explain the benefits, of the mediation process to the parents.
(C) The State shall maintain a list of individuals who are qualified mediators and knowledgeable in laws and regulations relating to the provision of special education and related services.
(D) The State shall bear the cost of the mediation process, including the costs of meetings described in subparagraph (B).
(E) Each session in the mediation process shall be scheduled in a timely manner and shall be held in a location that is convenient to the parties to the dispute.
(F) An agreement reached by the parties to the dispute in the mediation process shall be set forth in a written mediation agreement.
(G) Discussions that occur during the mediation process shall be confidential and may not be used as evidence in any subsequent due process hearings or civil proceedings and the parties to the mediation process may be required to sign a confidentiality pledge prior to the commencement of such process.
(f) Impartial due process hearing
(1) In general
Whenever a complaint has been received under subsection (b)(6) or (k) of this section, the parents involved in such complaint shall have an opportunity for an impartial due process hearing, which shall be conducted by the State educational agency or by the local educational agency, as determined by State law or by the State educational agency.
(2) Disclosure of evaluations and recommendations
(A) In general
At least 5 business days prior to a hearing conducted pursuant to paragraph (1), each party shall disclose to all other parties all evaluations completed by that date and recommendations based on the offering party's evaluations that the party intends to use at the hearing.
(B) Failure to disclose
A hearing officer may bar any party that fails to comply with subparagraph (A) from introducing the relevant evaluation or recommendation at the hearing without the consent of the other party.
(3) Limitation on conduct of hearing
A hearing conducted pursuant to paragraph (1) may not be conducted by an employee of the State educational agency or the local educational agency involved in the education or care of the child.
(g) Appeal
If the hearing required by subsection (f) of this section is conducted by a local educational agency, any party aggrieved by the findings and decision rendered in such a hearing may appeal such findings and decision to the State educational agency. Such agency shall conduct an impartial review of such decision. The officer conducting such review shall make an independent decision upon completion of such review.
(h) Safeguards
Any party to a hearing conducted pursuant to subsection (f) or (k) of this section, or an appeal conducted pursuant to subsection (g) of this section, shall be accorded -
(1) the right to be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities;
(2) the right to present evidence and confront, cross-examine, and compel the attendance of witnesses;
(3) the right to a written, or, at the option of the parents, electronic verbatim record of such hearing; and
(4) the right to written, or, at the option of the parents, electronic findings of fact and decisions (which findings and decisions shall be made available to the public consistent with the requirements of section 1417(c) of this title (relating to the confidentiality of data, information, and records) and shall also be transmitted to the advisory panel established pursuant to section 1412(a)(21) of this title).
(i) Administrative procedures
(1) In general
(A) Decision made in hearing
A decision made in a hearing conducted pursuant to subsection (f) or (k) of this section shall be final, except that any party involved in such hearing may appeal such decision under the provisions of subsection (g) of this section and paragraph (2) of this subsection.
(B) Decision made at appeal
A decision made under subsection (g) of this section shall be final, except that any party may bring an action under paragraph (2) of this subsection.
(2) Right to bring civil action
(A) In general
Any party aggrieved by the findings and decision made under subsection (f) or (k) of this section who does not have the right to an appeal under subsection (g) of this section, and any party aggrieved by the findings and decision under this subsection, shall have the right to bring a civil action with respect to the complaint presented pursuant to this section, which action may be brought in any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy.
(B) Additional requirements
In any action brought under this paragraph, the court -
(i) shall receive the records of the administrative proceedings;
(ii) shall hear additional evidence at the request of a party; and
(iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate.
(3) Jurisdiction of district courts; attorneys' fees
(A) In general
The district courts of the United States shall have jurisdiction of actions brought under this section without regard to the amount in controversy.
(B) Award of attorneys' fees
In any action or proceeding brought under this section, the court, in its discretion, may award reasonable attorneys' fees as part of the costs to the parents of a child with a disability who is the prevailing party.
(C) Determination of amount of attorneys' fees
Fees awarded under this paragraph shall be based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished. No bonus or multiplier may be used in calculating the fees awarded under this subsection.
(D) Prohibition of attorneys' fees and related costs for certain services
(i) Attorneys' fees may not be awarded and related costs may not be reimbursed in any action or proceeding under this section for services performed subsequent to the time of a written offer of settlement to a parent if -
(I) the offer is made within the time prescribed by Rule 68 of the Federal Rules of Civil Procedure or, in the case of an administrative proceeding, at any time more than 10 days before the proceeding begins;
(II) the offer is not accepted within 10 days; and
(III) the court or administrative hearing officer finds that the relief finally obtained by the parents is not more favorable to the parents than the offer of settlement.
(ii) Attorneys' fees may not be awarded relating to any meeting of the IEP Team unless such meeting is convened as a result of an administrative proceeding or judicial action, or, at the discretion of the State, for a mediation described in subsection (e) of this section that is conducted prior to the filing of a complaint under subsection (b)(6) or (k) of this section.
(E) Exception to prohibition on attorneys' fees and related costs.
Notwithstanding subparagraph (D), an award of attorneys' fees and related costs may be made to a parent who is the prevailing party and who was substantially justified in rejecting the settlement offer.
(F) Reduction in amount of attorneys' fees
Except as provided in subparagraph (G), whenever the court
finds that -
(i) the parent, during the course of the action or proceeding, unreasonably protracted the final resolution of the controversy;
(ii) the amount of the attorneys' fees otherwise authorized to be awarded unreasonably exceeds the hourly rate prevailing in the community for similar services by attorneys of reasonably comparable skill, reputation, and experience;
(iii) the time spent and legal services furnished were excessive considering the nature of the action or proceeding; or
(iv) the attorney representing the parent did not provide to the school district the appropriate information in the due process complaint in accordance with subsection (b)(7) of this section; the court shall reduce, accordingly, the amount of the attorneys' fees awarded under this section.
(G) Exception to reduction in amount of attorneys' fees
The provisions of subparagraph (F) shall not apply in any action or proceeding if the court finds that the State or local educational agency unreasonably protracted the final resolution of the action or proceeding or there was a violation of this section.
(j) Maintenance of current educational placement
Except as provided in subsection (k)(7) of this section, duringthe pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of such child, or, if applying for initial admission to a public school, shall, with the consent of the parents, be placed in the public school program until all such proceedings have been completed.
(k) Placement in alternative educational setting
(1) Authority of school personnel
(A) School personnel under this section may order a change in the placement of a child with a disability -
(i) to an appropriate interim alternative educational setting, another setting, or suspension, for not more than 10 school days (to the extent such alternatives would be applied to children without disabilities); and
(ii) to an appropriate interim alternative educational setting for the same amount of time that a child without a disability would be subject to discipline, but for not more than 45 days if -
(I) the child carries or possesses a weapon to or at school, on school premises, or to or at a school function under the jurisdiction of a State or a local educational agency; or
(II) the child knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school or a school function under the jurisdiction of a State or local educational agency.
(B) Either before or not later than 10 days after taking a disciplinary action described in subparagraph (A) -
(i) if the local educational agency did not conduct a functional behavioral assessment and implement a behavioral intervention plan for such child before the behavior that resulted in the suspension described in subparagraph (A), the agency shall convene an IEP meeting to develop an assessment plan to address that behavior; or
(ii) if the child already has a behavioral intervention plan, the IEP Team shall review the plan and modify it, as necessary, to address the behavior.
(2) Authority of hearing officer
A hearing officer under this section may order a change in the placement of a child with a disability to an appropriate interim alternative educational setting for not more than 45 days if the hearing officer -
(A) determines that the public agency has demonstrated by substantial evidence that maintaining the current placement of such child is substantially likely to result in injury to the child or to others;
(B) considers the appropriateness of the child's current placement;
(C) considers whether the public agency has made reasonable efforts to minimize the risk of harm in the child's current placement, including the use of supplementary aids and services; and
(D) determines that the interim alternative educational setting meets the requirements of paragraph (3)(B).
(3) Determination of setting
(A) In general
The alternative educational setting described in paragraph (1)(A)(ii) shall be determined by the IEP Team.
(B) Additional requirements
Any interim alternative educational setting in which a child is placed under paragraph (1) or (2) shall -
(i) be selected so as to enable the child to continue to participate in the general curriculum, although in another setting, and to continue to receive those services and modifications, including those described in the child's current IEP, that will enable the child to meet the goals set out in that IEP; and
(ii) include services and modifications designed to address the behavior described in paragraph (1) or paragraph (2) so that it does not recur.
(4) Manifestation determination review
(A) In general
If a disciplinary action is contemplated as described in paragraph (1) or paragraph (2) for a behavior of a child with a disability described in either of those paragraphs, or if a disciplinary action involving a change of placement for more than 10 days is contemplated for a child with a disability who has engaged in other behavior that violated any rule or code of conduct of the local educational agency that applies to all children -
(i) not later than the date on which the decision to take that action is made, the parents shall be notified of that decision and of all procedural safeguards accorded under this section; and
(ii) immediately, if possible, but in no case later than 10 school days after the date on which the decision to take that action is made, a review shall be conducted of the relationship between the child's disability and the behavior subject to the disciplinary action.
(B) Individuals to carry out review
A review described in subparagraph (A) shall be conducted by the IEP Team and other qualified personnel.
(C) Conduct of review
In carrying out a review described in subparagraph (A), the IEP Team may determine that the behavior of the child was not a manifestation of such child's disability only if the IEP Team -

(i) first considers, in terms of the behavior subject to disciplinary action, all relevant information, including -
(I) evaluation and diagnostic results, including such results or other relevant information supplied by the parents of the child;
(II) observations of the child; and
(III) the child's IEP and placement; and
(ii) then determines that -
(I) in relationship to the behavior subject to disciplinary action, the child's IEP and placement were appropriate and the special education services, supplementary aids and services, and behavior intervention strategies were provided consistent with the child's IEP and placement;
(II) the child's disability did not impair the ability of the child to understand the impact and consequences of the behavior subject to disciplinary action; and

(III) the child's disability did not impair the ability of the child to control the behavior subject to disciplinary action.
(5) Determination that behavior was not manifestation of disability
(A) In general
If the result of the review described in paragraph (4) is a determination, consistent with paragraph (4)(C), that the behavior of the child with a disability was not a manifestation of the child's disability, the relevant disciplinary procedures applicable to children without disabilities may be applied to the child in the same manner in which they would be applied to children without disabilities, except as provided in section 1412(a)(1) of this title.
(B) Additional requirement
If the public agency initiates disciplinary procedures applicable to all children, the agency shall ensure that the special education and disciplinary records of the child with a disability are transmitted for consideration by the person or persons making the final determination regarding the disciplinary action.
(6) Parent appeal
(A) In general
(i) If the child's parent disagrees with a determination that the child's behavior was not a manifestation of the child's disability or with any decision regarding placement, the parent may request a hearing.
(ii) The State or local educational agency shall arrange for an expedited hearing in any case described in this subsection when requested by a parent.
(B) Review of decision
(i) In reviewing a decision with respect to the manifestation determination, the hearing officer shall determine whether the public agency has demonstrated that the child's behavior was not a manifestation of such child's disability consistent with the requirements of paragraph (4)(C).
(ii) In reviewing a decision under paragraph (1)(A)(ii) to place the child in an interim alternative educational setting, the hearing officer shall apply the standards set out in paragraph (2).
(7) Placement during appeals
(A) In general
When a parent requests a hearing regarding a disciplinary action described in paragraph (1)(A)(ii) or paragraph (2) to challenge the interim alternative educational setting or the manifestation determination, the child shall remain in the interim alternative educational setting pending the decision of the hearing officer or until the expiration of the time period provided for in paragraph (1)(A)(ii) or paragraph (2), whichever occurs first, unless the parent and the State or local educational agency agree otherwise.
(B) Current placement
If a child is placed in an interim alternative educational setting pursuant to paragraph (1)(A)(ii) or paragraph (2) and school personnel propose to change the child's placement after expiration of the interim alternative placement, during the pendency of any proceeding to challenge the proposed change in placement, the child shall remain in the current placement (the child's placement prior to the interim alternative educational setting), except as provided in subparagraph (C).
(C) Expedited hearing
(i) If school personnel maintain that it is dangerous for the child to be in the current placement (placement prior to removal to the interim alternative education setting) during the pendency of the due process proceedings, the local educational agency may request an expedited hearing.
(ii) In determining whether the child may be placed in the alternative educational setting or in another appropriate placement ordered by the hearing officer, the hearing officer shall apply the standards set out in paragraph (2).
(8) Protections for children not yet eligible for special education and related services
(A) In general
A child who has not been determined to be eligible for special education and related services under this subchapter and who has engaged in behavior that violated any rule or code of conduct of the local educational agency, including any behavior described in paragraph (1), may assert any of the protections provided for in this subchapter if the local educational agency had knowledge (as determined in accordance with this paragraph) that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred.
(B) Basis of knowledge
A local educational agency shall be deemed to have knowledge that a child is a child with a disability if -
(i) the parent of the child has expressed concern in writing (unless the parent is illiterate or has a disability that prevents compliance with the requirements contained in this clause) to personnel of the appropriate educational agency that the child is in need of special education and related services;
(ii) the behavior or performance of the child demonstrates the need for such services;
(iii) the parent of the child has requested an evaluation of the child pursuant to section 1414 of this title; or
(iv) the teacher of the child, or other personnel of the local educational agency, has expressed concern about the behavior or performance of the child to the director of special education of such agency or to other personnel of the agency.
(C) Conditions that apply if no basis of knowledge
(i) In general
If a local educational agency does not have knowledge that a child is a child with a disability (in accordance with subparagraph (B)) prior to taking disciplinary measures against the child, the child may be subjected to the same disciplinary measures as measures applied to children without disabilities who engaged in comparable behaviors consistent with clause (ii).
(ii) Limitations
If a request is made for an evaluation of a child during the time period in which the child is subjected to disciplinary measures under paragraph (1) or (2), the evaluation shall be conducted in an expedited manner. If the child is determined to be a child with a disability, taking into consideration information from the evaluation conducted by the agency and information provided by the parents, the agency shall provide special education and related services in accordance with the provisions of this subchapter, except that, pending the results of the evaluation, the child shall remain in the educational placement determined by school authorities.
(9) Referral to and action by law enforcement and judicial authorities
(A) Nothing in this subchapter shall be construed to prohibit an agency from reporting a crime committed by a child with a disability to appropriate authorities or to prevent State law enforcement and judicial authorities from exercising their responsibilities with regard to the application of Federal and State law to crimes committed by a child with a disability.
(B) An agency reporting a crime committed by a child with a disability shall ensure that copies of the special education and disciplinary records of the child are transmitted for consideration by the appropriate authorities to whom it reports the crime.
(10) Definitions
For purposes of this subsection, the following definitions apply:
(A) Controlled substance
The term "controlled substance" means a drug or other substance identified under schedules I, II, III, IV, or V in section 202(c) of the Controlled Substances Act (21 U.S.C. 812(c)).
(B) Illegal drug
The term "illegal drug" -
(i) means a controlled substance; but
(ii) does not include such a substance that is legally possessed or used under the supervision of a licensed health-care professional or that is legally possessed or used under any other authority under that Act [21 U.S.C. 801 et seq.] or under any other provision of Federal law.
(C) Substantial evidence
The term "substantial evidence" means beyond a preponderance of the evidence.
(D) Weapon
The term "weapon" has the meaning given the term "dangerous weapon" under paragraph (2) of the first subsection (g) of section 930 of title 18.
(l) Rule of construction
Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990 [42 U.S.C. 12101 et seq.], title V of the Rehabilitation Act of 1973 [29 U.S.C. 790 et seq.], or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsections (f) and (g) of this section shall be exhausted to the same extent as would be required had the action been brought under this subchapter.
(m) Transfer of parental rights at age of majority
(1) In general
A State that receives amounts from a grant under this subchapter may provide that, when a child with a disability reaches the age of majority under State law (except for a child with a disability who has been determined to be incompetent under State law)-
(A) the public agency shall provide any notice required by this section to both the individual and the parents;
(B) all other rights accorded to parents under this subchapter transfer to the child;
(C) the agency shall notify the individual and the parents of the transfer of rights; and
(D) all rights accorded to parents under this subchapter transfer to children who are incarcerated in an adult or juvenile Federal, State, or local correctional institution.
(2) Special rule
If, under State law, a child with a disability who has reached the age of majority under State law, who has not been determined to be incompetent, but who is determined not to have the ability to provide informed consent with respect to the educational program of the child, the State shall establish procedures for appointing the parent of the child, or if the parent is not available, another appropriate individual, to represent the educational interests of the child throughout the period of eligibility of the child under this subchapter.
(n) Electronic mail A parent of a child with a disability may elect
to receive notices required under this section by an electronic mail
(e-mail) communication, if the agency makes such option
available.
(o) Separate complaint Nothing in this section shall be
construed to preclude a parent from filing a separate due process complaint
on an issue separate from a due process complaint already filed.

In addition to the aforementioned question of whether or not Section 1983 can be utilized as
the basis of a c ause of action demanding redress for violations if the IDEA, the Court has also been asked to determine whether or n0t the the parents of disabled students having the necessary standing to claim and can be awarded damages based on these claims.

I would argue that the decision of whether or not section 1983 will rest largely on the legislative intent because, the case law on the issue is divided. On the issue of damages I would argue that damages should be awarded if the purpose of the award is to provide compensation for the loss of salary accrued as the result of caring for a disabled dependent.

Addendum

The Supreme Court denied certiorari and refused to review of a claim that parents be allowed to sue for damages under the Civil Rights Act of 1867 to enforce their right to a free public education for their disabled child. So the holding of the Ninth Circuit stands.

Interview

2008-02-28T11:01:00.000-08:00

I have a job interview on Monday for a paralegal position with a law firm.

A Study on religion

2008-02-25T15:29:00.000-08:00

A new report from the Pew Forum on Religion and Public Life demonstrated that of all of the Christian faiths, the Roman Catholic Church has experienced greatest loss of adherents. I would argue that the losses suffered by the Roman Catholic Church due to affiliation changes are due to the following factors:

1. The position of the church taken on homosexuality, bisexuality, and transgenderism.

2. The positions taken by the Church on the role of homosexuals, bisexuals, and the transgendered in the spiritual and secular life of the community.

3. The position of the church taken on the role of women in the spiritual and secular life of the community.

4. The position of the church taken on the use of contraceptives and abortion.

5. The position of the church taken towards other faiths.

6. The position of the church taken on certain theological points that are secondary to the core beliefs of the church such as the Desponyi, the prepetual virginity of Mary, and the filioque.

Fear

2008-02-20T19:39:00.000-08:00

Recently I was asked if I feared the Religious Right or any other socio-political group. My answer at that time was that I did not, and that position remains unchanged. Having said that however, I feel the need to expand upon my answer, while it is true that I do not fear politicians that does not necessarily indicate that I fear no one and nothing. Their are in fact individuals of whom I am wary. The individuals I fear are certain individuals that possess a Special Intelligence Gamma (SIG) clearance because, they possess the power to destroy the life of an individual at their leisure.

I have crossed swords with such men and even though I survived the encounter I did not emerged unscathed. I will only say that it was it was a life altering experience and that only fools or those who are legally incompetent would willingly cross such men without a pressing reason.

An Interesting Conundrum: Which Ceiling to Break

2008-02-20T14:19:00.000-08:00

The presence of an African American and a woman as equally viable Democratic candidates each of whom represent groups, which, have been shackled and confined to roles as minorities in the political life of the nation since the inception of the Republic raises a conundrum.

The election of either candidate to the Office of the President would in effect overcome a barrier. the conundrum for Democrats iles in the decision as to which barrier should be broken first?

Justice Demanded

2008-02-13T11:12:00.000-08:00

When, in the course of human events, it becomes necessary for one portion of the
family of man to assume among the people of the earth a position different from
that which they have hitherto occupied, but one to which the laws of nature and
of nature’s God entitle them, a decent respect to the opinions of mankind
requires that they should declare the causes that impel them to such a
absolution.
We hold these truths to be self-evident: that all men and women
are created equal; that they are endowed by their Creator with certain
inalienable rights; that among these are life, liberty, and the pursuit of
happiness; that to secure these rights governments are instituted, deriving
their just powers from the consent of the governed. Whenever any form of
government becomes destructive of these ends, it is the right of those who
suffer from it to refuse allegiance to it, and to insist upon the institution of
a new government, laying its foundation on such principles, and organizing its
powers in such form, as to them shall seem most likely to effect their safety
and happiness.
Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and, accordingly, all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they were accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design despotism, it is their duty to throw off such government, and to provide new guards for their future security. Such has been the patient sufferance of the women under this government, and such is now the necessity which constrains them to demand the equal station to which they are entitled.
The history of mankind is a history of repeated injuries and usurpations on the part of man toward woman, having in direct object the establishment of an ate tyranny over her. To prove this, let facts be submitted to a candid world. Seneca Falls Declaration

We the People of the United States have a duty and responsibility to ensure that the women employed by contractors tasked by the Government of the United States with monumental task of nation builfing in Iraq and Afghanistan are shielded and that they can exercise their duties without fear of being raped, sodomized or otherwise sexually molested. The inaction by the United States Department of Justice in the Jamie Leigh Jones-Daigle case is unconscionable and an anathhema

I call upon the government of the United States and the appropriate states to bring an indictment against KBR for rape, sodomy, kidnapping, unlawful restraint, lewd, lascivious conduct, corruption and creating a hostile work environment.

It is my hope that the goverment will see sense a prosecute the individuals to the fullest extent of the law possible because, anything less would constitute in my opinion, the furtherance of injustice.

Some Musings on Old Testament Canon

2008-02-09T11:42:00.000-08:00

There are texts that are not included in the Roman Catholic or the majority of Bibles that I should have been deemed as canon when the texts that formed the canon were being discussed and debated

The Old Testament texts I would have included are the

First Book of Enoch which is cited in the Epistle of Jude

The Assumption of Moses also cited in the Epistle of Jude

Psalm 151 included in the Codex Alexandrinus

The Odes of Solomon included in the Codex Alexandrinus

The Epistle of Jeremiah included in the Codex Vaticanus

Third and Fourth books of Maccabees included in the Codex Alexandrinus

An Illustration of Depravity

2008-02-01T11:38:00.000-08:00

The use by al-Qaeda in Iraq of two women with Down's Syndrome demonstrates the heretical nature of the organization because, the possibility exists that they lacked mental capacity necessary to make an informed decision about their fate.

Suicide Bombers throughout history have embarked on their course of action as the result of making a conscious and informed decision about their ultimate fate, however in the case of thse women who have Down's Syndrome it is likely that they did not understand and comprehend what they were being asked to do, and that they only participated out of a desire to please others and that their inherently facile nature allowed for the planners of the attack to manipulate the women.

The use of individuals with disabilities that are accompanied by a mental affect further reinforces the inherent depravity and lack of humanity that characterizes al-Qaeda and its satellites.

Exams Update

2008-01-23T12:32:00.000-08:00

The week of 3 December 2007 to 7 December 2007 I sat for a series of exams to become a NALA certified paralegal. I received word yesterday that I passed the examinations and will be allowed to identify myself as a NALA Certified Paralegal in a manner consistent with the rules of discipline that apply to non-lawyers in my home state.

In the future I hope to attend law school and become an attorney.

The Shame of 2008

2008-01-21T10:14:00.001-08:00

The Democrats should be ashamed of themselves. The Constitution gives the power to regulate elections and the election process to the States under the provisions ofArticle 1 Section 4, Clause 1:

The Times, Places and Manner of holding Elections for Senators and
Representatives, shall be prescribed in each State by the Legislature thereof;
but the Congress may at any time by Law make or alter such Regulations, except
as to the Places of chusing Senators.

Amendment 10:

The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively, or to
the people.

In U. S. v. CLASSIC, 313 U.S. 299 (1941), Justice Stone writing for the majority extended these provisions to cover primary elections.

Unless the constitutional protection of the integrity of 'elections'
extends to primary elections, Congress is left powerless to effect the
constitutional purpose, and the popular choice of representatives is stripped of
its constitutional protection save only as Congress, by taking over the control
of state elections, may exclude from them the influence of the state primaries.
Such an expedient would end that state autonomy with respect to elections which
the Constitution contemplated that Congress should be free to leave undisturbed,
subject only to such minimum regulation as it should find necessary to insure
the freedom [313 U.S. 299, 320] and integrity of the choice. Words, especially
those of a constitution, are not to be read with such stultifying narrowness.
The words of 2 and 4 of Article I, read in the sense which is plainly
permissible and in the light of the constitutional purpose, require us to hold
that a primary election which involves a necessary step in the choice of
candidates for election as representatives in Congress, and which in the
circumstances of this case controls that choice, is an election within the
meaning of the constitutional provision and is subject to congressional
regulation as to the manner of holding it. Footnote omitted

Given this ruling I would argue that the Democractic National Committee had no right to strip the States of Michigan and Florida of their right to allocate delegates because, by stripping them the DNC has illegally abrogated and denied the citizens of Michigan and Florida their rights to choose a candidate under Article I, Section 4, Clause 1 and the Tenth Amendment.

The Amendments of Fools

2008-01-18T19:36:00.000-08:00

The idea of constitutional amendments regulating the nature of marriage and prohibiting abortion remind me of earlier attempts to legislate morality. These amendments are likely doomed to failure, like the eighteenth amendment and its enabling legislation the Volstead Act.
History demonstrates that attempts to regulate societal behaviors in this manner have failed in the past because such laws on appeal to certain specific groups. For example, the Temperance Movement were so concentrated on their goal of prohibition that they failed to take into account what the reaction would be from the population at large.

If such amendments are allowed to proceed, the result will be perilous to the stability of the Republic given the wide diversity on these topics.

Bobby Fischer

2008-01-18T10:51:00.000-08:00

Robert James Fischer, the highly controversial International Grandmaster of Chess who defeated Boris Spassky in 1972 to become World Chess Champion only to default the title three years later, died today at the age of 64.

Fischer although brilliant on the chessboard left much to be desired as a person in this way he was very similar to Grandmaster Alekhine and Joseph Henry Blackburne in the sense that their prejudice and anti Semitism tarnished their accomplisments.

My Thoughts on Papal Primacy

2008-01-17T21:24:00.000-08:00

The Pope's reaffirmation of the primacy of the Roman Catholic Church as the only true church will undermine all future attempts toward reconcillation with the Orthodox churches because the Othrodox hold that the twenty-eighth canon from the Council of Chalcedon which reads as follows:

Canon XXVIII.
Following in all things the decisions of the holy Fathers,
and acknowledging the canon, which has been just read, of the One Hundred and
Fifty Bishops beloved-of-God (who assembled in the imperial city of
Constantinople, which is New Rome, in the time of the Emperor Theodosius of
happy memory), we also do enact and decree the same things concerning the
privileges of the most holy Church of Constantinople, which is New Rome.
For the Fathers rightly granted privileges to the throne of old Rome, because it
was the royal city. And the One Hundred and Fifty most religious Bishops,
actuated by the same consideration, gave equal privileges (ἴσα πρεσβεῖα) to the
most holy throne of New Rome, justly judging that the city which is honoured
with the Sovereignty and the Senate, and enjoys equal privileges with the old
imperial Rome, should in ecclesiastical matters also be magnified as she is, and
rank next after her; so that, in the Pontic, the Asian, and the Thracian
dioceses, the metropolitans only and such bishops also of the Dioceses aforesaid
as are among the barbarians, should be ordained by the aforesaid most holy
throne of the most holy Church of Constantinople; every metropolitan of the
aforesaid dioceses, together with the bishops of his province, ordaining his own
provincial bishops, as has been declared by the divine canons; but that, as has
been above said, the metropolitans of the aforesaid Dioceses should be ordained
by the archbishop of Constantinople, after the proper elections have been held
according to custom and have been reported to him.
Notes.
Ancient Epitome
of Canon XXVIII.
The bishop of New Rome shall enjoy the same honour as the
bishop of Old Rome, on account of the removal of the Empire. For this
reason the [metropolitans] of Pontus, of Asia, and of Thrace, as well as the
Barbarian bishops shall be ordained by the bishop of Constantinople. http://www.ccel.org/ccel/schaff/npnf214.xi.xviii.xxviii.html

This canon and the canons of the Council of Trullo were protested by Leo I and his immediate successors although, some documentary evidence exists to indicate that Pope Ardian I ratified them in 787:

Nearly a century later Pope Hadrian I. distinctly recognizes all the
Trullan decrees in his letter to Tenasius of Constantinople and attributes them
to the Sixth Synod. “All the holy six synods I receive with all their
canons, which rightly and divinely were promulgated by them, among which is
contained that in which reference is made to a Lamb being pointed to by the
Precursor as being found in certain of the venerable images.” Here the
reference is unmistakably to the Trullan Canon LXXXII.
Hefele’s summing up of
the whole matter is as follows:
(Hefele, Hist. of the Councils, Vol. V., p. 242.)
That the Seventh Ecumenical Council at Nice ascribed the Trullan canons
to the Sixth Ecumenical Council, and spoke of them entirely in the Greek spirit,
cannot astonish us, as it was attended almost solely by Greeks. They
specially pronounced the recognition of the canons in question in their own
first canon; but their own canons have never received the ratification of the
Holy See. 358Thus far Hefele, but it seems that Gratian’s statement on the
subject in the Decretum should not be omitted here. (Pars I. Dist. XVI., c. v.)
“Canon V. The Sixth Synod is confirmed by the authority of
Hadrian.
“I receive the Sixth Synod with all its canons. http://www.ccel.org/ccel/schaff/npnf214.xiv.ii.html

The fact that the Papal legates were absent from the vote on the twenty-eighth canon of the Council of Chalcedon and from the Council at Trullo does not necessarily invalidate those canons as Pope Adrian I demonstrated.

I do not argue that the beliefs of the church are outdated. I argue simply that a return to the position taken by Pope Adrian I in 787 on these issues would be more beneficial to the church and would not necessarily alter fundamentally the belief of the church, this possition is illustrated by illustrated by the masses held by Pope Paul VI and Pope John Paul II celebrated with Eastern bishops they omitted the Filioque. Also the Dominus Iesus declaration signed by then Archbishop Bertone who was the Secretary of the Congreggation for the Doctrine of the Faith and then Joseph Cardinal Ratzinger, who was then the Prefect of the Congregation. The Declaration was ratified by Pope John Paul II of 6 August 2000, the document omitted the filioque without comment.

Musing on the International Criminal Court

2008-01-07T21:39:00.000-08:00

The development of an International Criminal Court are rooted in the Charter of the International Military Tribunal dated 8 August 1945 and Protocol Rectifying Discrepancy in the Charter dated 6 October 1945, Article six of the Charter broadly defined three classes of offenses prosecutable under internation law.

The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:

(a) CRIMES AGAINST PEACE: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the
accomplishment of any of the foregoing;

(b) WAR CRIMES: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;

(c)CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

Leaders, organizers, instigators and accomplices participating in
the formulation or execution of a common plan or conspiracy to commit any of
the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.

The text of article six provided the basis the Convention on the Prevention and Punishment of Genocide adopted in 1948 and the Principles of International Law Recognized in the Charter of the Nüremberg Tribunal and in the Judgment of the Tribunal adopted two years later in 1950 reaffirmed the existence of classes of offenses that are anathemas to civilized societies founded on the rule of law

Principle VI

The crimes hereinafter set out are punishable as crimes under international law:
(a) Crimes against peace:
(i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;
(ii) Participation in a common plan or conspiracy for the accomplishment of any
of the acts mentioned under (i).
(b) War crimes: Violations of the laws or customs of war
include, but are not limited to, murder, ill-treatment or deportation to slave-labour or for any other purpose of civilian population of or in occupied territory, murder or
ill-treatment of prisoners of war, of persons on the seas, killing of hostages,
plunder of public or private property, wanton destruction of cities, towns, or
villages, or devastation not justified by military necessity.
(c) Crimes against humanity: Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on
political, racial or religious grounds, when such acts are done or such
persecutions are carried on in execution of or in connexion with any
crime against peace or any war crime.
Principle VII

Complicity in the commission of a crime against peace, a war crime, or a
crime against humanity as set forth in Principle VI is a crime under
international law.

Principles III and IV of the Principles ofInternational Law Recognized in the Charter of the Nüremberg Tribunal and in the Judgment of the Tribunal, 1950 reaffirmed the doctrine of CommandResponsibility and the concept of agency flowing therefrom as outlined inArticles Seven and Eight of the Charter of the International Military Tribunal which read as follows:

Article 7.

The official position of derfendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment.

Article 8.
The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.

The related doctrines of command responsibility and agency as outlined in the documents of the Tribunal are closely linked to the doctrine of Respondeat superior found in the common law.

I find it ironic, paradoxical and hypocritical that United States, the nation that advocated pushed hardest for command responsibility provisions in the Charters of the International Military Tribunal; the International Military Tribunal for the Far East; and the International Criminal Tribunal for the former Yugoslavia, refused to ratify the Charter for the international Criminal Court because, of fears that the Command Responsibility and Agency provisions could be utilized to prosecute Americans.

It seems to me that we Americans have forgotten these words:

We hold these truths to be self-evident, that all men are created
equal, that they are endowed by their Creator with certain unalienable Rights,
that among these are Life, Liberty and the pursuit of Happiness

The American goverment seems to believe that their position endows them with the ability to act in a manner that to my mind is contrary to the Declaration of Independence of the United States, The Constitution of the United States and the obligations of the United States as member of the international community.

In my mind the ratification of the Statute of the International Criminal Court would serve as benefit to United States because the Statute provides a degree of protection not currently accessible to the American expatriates living abroad.

A response to some questions

2008-01-06T12:03:00.000-08:00

Some of my readers have asked me why I have not commented on the elections in the United States. The simplest, most direct answer, the answer that conforms to Occam's Razor, is simply that I am not a political scientist. My degrees are in International Studies and Paralegal Studies, I would argue that I lack the qualifications necessary to comment intelligently on such matters. As such I feel it appropriate to leave it to wiser people who are more knowlegdable than I am to comment on these areas.

Musings on the United States

2008-01-05T21:37:00.000-08:00

The United States of America stands now at a fork in the road of international diplomacy. There are two paths that stretch out before the United States and its people. One, is the path that leads ultimately to the United States remaining a relevant force on the international stage and retaining its leadership role within the community of nations. The second path leads down the road that will lead in the final analysis to irrelevance and result in the United States becoming a lesser power that longs for the glory, power, prestige, and honor of days forgotten in the mists of time.

Individuals may ask themselves what can be done to prevent the United States from sinking into total irrelevance. The answer my friends is very simple the United States must take the lead on issues where they have long been seen as neutral or acting contrary to the will of the international community.

There are at least four examples of actions that the United States Congress can readily and easily take without violating the Constitution and the laws of the United States of America

1. Ratify the Convention on the Rights and Dignity of Persons with Disabilities of 2006, and its Protocol A/RES/61/106 because, nothing within the text of the Convention in violates the Constitution or the laws of the United States. I would argue that words of the Declaration of Independence and those word inscribed on the Statute of Liberty demand that we the United States take a proactive stand to defend the rights of those who cannot defend themselves.

2. Ratify the 1971 Declaration on the Rights of Mentally Retarded Persons, G.A. res. 2856 (XXVI), 26 U.N. GAOR Supp. (No. 29) at 93, U.N. Doc. A/8429 (1971), and the Principles for the Protection of Persons with Mental Illnesses and the Improvement of Mental Health Care, G.A. res. 46/119, 46 U.N. GAOR Supp. (No. 49) at 189, U.N. Doc. A/46/49 (1991) because, the protection of all individuals is enshrined within the Declaration of Independence

3. Ratify the Convention on the Elimination of All Forms of Discrimination against Women, G.A. res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/46, entered into force Sept. 3, 1981, and its Optional Protocol Optional Protocol to the Convention on the Elimination of Discrimination against Women, G.A. res. 54/4, annex, 54 U.N. GAOR Supp. (No. 49) at 5, U.N. Doc. A/54/49 (Vol. I) (2000), entered into force Dec. 22, 2000 and the
Declaration on the Elimination of Violence against Women G.A. res. 48/104, 48 U.N. GAOR Supp. (No. 49) at 217, U.N. Doc. A/48/49 (1993). because, the principles contained therein are in accord with the First, Fourteenth, and Nineteenth Amendments to the Constitution of the United States.

4. Ratify the Convention on the Rights of the Child, G.A. res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force Sept. 2 1990 because the Declaration of Independence is the heart of the Republic and it proclaims the right of all mankind to life liberty and the pursuit of happines and to rob children of the ability to pursue these goals in in my mind akin to crime against humanityand conscience.

Susan Pevensie

2007-12-29T11:13:00.000-08:00

With the release of the trailer for movie adaptation of The Chronicles of Narnia: Prince Caspian. I thought it appropriate to pause and reflect briefly on the character of Susan Pevensie. In the Last Battle it is mentioned that Susan is no longer a "friend" to Narnia, and that she grown vain and conceited.

In my mind Susan's development reminds me of the lapsed or as I call them recovering Roman Catholics who have for a variety of reasons become disillusioned with the Church as an institution.

The text of the Last Battle infers that only Peter and Aslan retain the hope that eventually Susan will rediscover her faith and once again assume her role as Queen Susan the Gentle, Queen of Narnia. I find it odd that Edmund who knows and understands betrayal better than anyone else is not more sympathetic ot the plight of his sister.

From the standpoint of ecclesiastical history I would argue that Aslan's How and the four thrones of Cair Paravel represent the five major patriarchal sees Rome, Constantinople, Alexandria, Jerusalem and Antioch. I would argue that Susan's disllusionment reflects the Great Schism that resulted in the mutual excommunication of the Pope and the Patriarch of Constantinople. The mutual excommunication was not rescinded until 7 December 1965

Official Exam Results

2007-12-28T16:55:00.000-08:00

I received the official certified copy of my exam results. I have been officially recorded as having passed the exam.

Unofficial Exam Results

2007-12-22T12:33:00.000-08:00

I received notice that the content examination I took on 20 December 2007 has been graded. I also received the unofficial copy of the results. The unofficial copy indicates that I passed the content examination. I will receive the official certified results in the mail next week.

Having successfully passed this milestone, I only have one examination that I am still required to sit for and take because, the State of Texas requires that prospective teachers sit for an examination during their internship so that their suitability and competence may be reviewed.

An Update

2007-12-16T10:43:00.000-08:00

I have been very busy of late.

1. My beloved Jennifer, was ill last week and I was caring for her and helping her while she was ill.

2. I took a series of exams last week to become a NALA certified paralegal.

3. I am have been working on translating and editing several documents related to my family's history.

4. I have been conducting a research project for my friend Malcot.

5. I have been studying for my teacher certification exam which I sit for on 20 December 2007.

6. I have been drafting employment applications.

Mens Rea

2007-11-20T09:43:00.000-08:00

Yesterday, I heard on CNN about a rape case in which both the victim and the prepetrators were young children. The victim is eleven years old and the three prepetrators of the crime are an eight year old and two nine year olds respectively.

The Georgia court system decided that the criminals should be tried a within the juvenile court system.

I have great difficulty with this decision because, I feel in my heart that if an individual, however young intentionally rapes another individual that such an action presupposes the understanding necessary for an individual to be tried as an adult is present by implication.

In my view the actions of the perpetrators in this case demonstrates that they possessed the mental capacity necessary to be tried in the adult court system.

Further, I would assert that civil liabilities and criminal penalties should be imposed on the pof the perpetrators, because, ultimately the conduct of their children is a reflection of their own shortcomings

The Rights of the Disabled

2007-11-17T00:07:00.000-08:00

As many of my friends know, I generally attempt to remain impartial when discussing political issues, however on the issue of the rights and freedoms of the disabled, I am honor bound to take a stand.

There exists a personal reason for speaking my mind on these issues, some are aware that I have a physical disability, for the past thirty-one yearsI have been dealing with the effects of the cerebral palsy engendered by the circumstances surrounding my birth.

For those of my readers who are unaware of what I am talking about, I feel inclined to briefly share my story.

I was born exactly two months early on the morning of the 18th of September 1976, however, my birth was quite unexpected as matter of fact my mother was not due to deliver me until 18 November 1976.

During the time of my birth my mother's primary obstetrician was absent from my birth due to series of unfortunate and unforseen personal tragedies and accidents that occurred in the days preceding my birth, as result he was forced to absent himself from my mother's delivery. The obstetrician on call that night was not as well versed as my mother's regular physician and during the course of her labor he ordered the administration of anaesthesia. The administration of the anaesthetic resulted in complications which, culminated in a cardiac arrest. When my heart stopped beating, the staff cardioverted my heart successfully. however, the force of the cardioversion was sufficient to result in the collapse of one of my lungs. The hypoxia was severe enough to cause permanent damage to those portions of my brain relating to speech, gross motor skills and fine motor skills.

Without the exsistence of the Educcation for All Handicapped Children Act (EAHCA), the Individuals with Disabilities Education Act (IDEA), and the Americans with Disabilities Act (ADA) I never would have been allowed the opportunity to express my voice. I implore those who read my blog to review closely the ADA Resotration Act of 2007 ( S. 1881 and H.R. 3195)

I ask because, it is my long held belief that Justice Harlan was correct in 1896 when he asserted that The Constitution neither knows nor does it tolerate the creation of an artifical caste system in the United States. Indeed I believe that protetctions the EAHCA, IDEA and ADA provide to people with disabilities prevents the creation of an artificial caste system on the basis of ability.

I urge my readers to support these measures if they be found to be accord with your individual consciences because, Ifear without such neasures in place that a large percentage of the disabled population will find their ability to reach their maximum potential stunted.

The Passing of Carrie Rozelle: The End of an Era

2007-11-16T11:59:00.000-08:00

The disabled community within the United States received some sad news earlier in the week, the New York Times reported the death of Carrie Rozelle. Her death marks the passing of one most powerful voices for the disabled in the United States. Though I never met Mrs. Rozelle, her influence could be felt and seen from New York to Texas to Alaska and even into the corridors of power in Washington D.C.

In June of 2000 I participated in the 2000 National Leadership Conference for Youth with Disabilities, at the conference much of the discussion surrounding the plight of those individuals with learning disabilities revolved around the programs Mrs. Rozelle founded and the ease with which they could be adapted and implemented in other regions of the United States.

Mrs. Rozelle's death marks the end of an era and the start of another. We the disabled community have a duty and a responsibility to ensure the legacy of Mrs. Rozelle remains ever vibrant and undiminished.

Eighty-Four (84) Minutes

2007-11-16T11:48:00.000-08:00

I have a couple of questions for my readers:

Lindsay Lohan was sentenced to one day in jail for driving under the influence, the sentence was reduced to a total sentence of eighty four minutes or one hour and twenty-four minutes in custody.

My questions, are the following: what purpose does the imposition of such inconsequential sentences serve and by extension what message do such minimalist consequences convey to the public at large?

Engagement: An Official Announcement

2007-11-10T16:20:00.000-08:00

My girlfriend J, and I are now officially engaged. As many of my readers know I proposed in February but, at that time I did not possess sufficient funds to purchase an engagement ring. Due to some good fortune on the stock market my investments provided returns large enough to allow for the purchase of a ring while, maintaining the integrity of my savings account.

So, I purchased the ring and presented it to her last night at a romantic dinner.
For those of you who are wondering the wedding will occur at the earliest in December 2008.

Cycles Part III: Old Friends Questions

2007-11-10T13:23:00.000-08:00

My friend R. phoned me today, saying she ran into a Russian man who she and I both know. Even though this man did not inquire about me during their encounter. I wonder whether their reconnection may ultimately lead to a renewal of the friendship I possessed with both he and his brother.

Cycles Part II

2007-11-07T10:37:00.000-08:00

Yesterday I was reminded of the cyclical nature of life and death, I receieved a call from my friend J.P. informing me that his father died on Monday following a prolonged battle with lung cancer. I must admit I was shocked by the news because, the last time I saw Mr. P. his countenance was quite hopeful and he still seemed quite hale and hearty despite the delibating nature of his illness.

In my reflections I found a sense of peace in knowing that Mr. P. lived a full life and was loved by many and this gave me comfort because, during my brief contacts with him, Mr. P. demonstrated the character of a just, righteous, and honorable gentleman deserving of many honors and accolades.

Rest in Peace, Sir comfortable in the knowledge that you raised your to be a great and gentleman just as his ancestors were before him.

Cycles

2007-11-01T11:34:00.000-07:00

There is an appointed time for everything, and a time for every affair under the heavens.
A time to be born, and a time to die; a time to plant, and a time to uproot the plant.
A time to kill, and a time to heal; a time to tear down, and a time to build.
A time to weep, and a time to laugh; a time to mourn, and a time to dance.
A time to scatter stones, and a time to gather them; a time to embrace, and a time to be far from embraces.
A time to seek, and a time to lose; a time to keep, and a time to cast away.
A time to rend, and a time to sew; a time to be silent, and a time to speak.
A time to love, and a time to hate; a time of war, and a time of peace. Eccl 3:1-8

Life is cyclical in nature indeed I would argue that the life cycle and the cycle illustrated by Ecclesiastes 3:1-8 can be represented by the symbolism of the Ouroboros, which is often depicted as a circle or a snake biting its own tail.

Politics too is cyclical in nature as illustrated by the tenure of Ariel Sharon as Prime Minister of Israel, his election as Prime Minister in 2000 represented a complete cycle of his career from the nadir of 1982 when the Knesset forced Sharon to resign.

Speaking of cycles it seems as though the diagnosis of Prime Minister Olmert's prostate cancer may eventually result in Tzipi Livni being the second woman to be elected as Prime Minister. I assert that this represents a cycle because Prime Minister Olmert succeeded Prime Minister Sharon, as Prime Minister because, on 4 January 2006 Prime Minister Sharon suffered a massive stroke that resulted in his permanent incapacitation.

Phase II Complete

2007-10-29T10:42:00.000-07:00

Friday I completed the required minimum of fifteen hours of critical classroom observations.

I take the certification exam on the 20th of December.

A Funny Incident

2007-10-23T11:52:00.000-07:00

I had a long day yesterday, I spent the day conducting the first round of observations required to complete my teaching certificate at the high school where my father is an administrator.

While, at the school I received a compliment from one of his students. This student told me that I was scarier and more frightening than my father.

All I need now is a great electric blue revolving eye.

Some Musings on the Four Types of Love

2007-10-19T21:30:00.000-07:00

Ancient Greek philosophers developed a conceptualization of love that discerned four types of love. These four types of love were Eros, Philia, Agape, and Storge

Eros, is the ancient Greek word for romantic love and physical attraction.
Philia, is usually translated as friendship, this friendship is usually held to be platonic in nature.
Agape, is the love of the spouse, a love that is divine in nature, absolutely unconditional, self-sacrificing, and thoughtful, in which the spouse assumes the role of of both beloved soulmate, boon companion and lover, as opposed to Philia which, is the Greek term for a platonic friendshp built on the basis of mere cameraderie.
Storge, is the ancient Greek term for familial love.

In the thirty-one years of my life only once did I ever experience all dour forms of love and that was with the return of my beloved into my life. In the past year I have experienced fully a quintessence of all four forms of love, they have mereged into a fifth incarnation that is embodied by the undying eternal love I feel for my beloved fiancee. Everything else that came before her is but a pale imitation.

J.L. is the love of my life, the light of my world, she has transformed me into the best man I can be. I am truly the luckiest man in the world. The day I meet her before the altar will be the happiest day of my life.

Some Interesting Facts About Roman Catholicism in Texas

2007-10-19T15:07:00.000-07:00

The first two dioceses were the Diocese of Galveston-Houston established in 1847 and the Diocese of San Antonio founded in 1874

The first two metropolitan archdioceses were the Archdiocese of San Antonio created in 1926 and the Archdiocese of Galveston-Houston erected in 2004.

The first Cardinal to be a sitting Texas bishop will be H.E. Archbishop Daniel DiNardo Archbishop of Galveston-Houston who will be elevated to Cardinal on November 24, 2007.

Fear

2007-10-19T14:54:00.000-07:00

As I begin my fifteen hours of observations required for my teaching certification. I am filled with a certain amount of trepidation and fear. I am afraid because, two of my sessions will be supervised by my first teacher in the Cypress Fairbanks Independent School District and by fifth grade teacher both of whom I feared as a student and who I still fear at thirty-one years of age.

A weekend away

2007-10-15T12:13:00.000-07:00

I spent a lovely weekend in the Texas Hill Country with my family in Gruene, Texas. It provided a nice relaxing atmosphere to relax and unwind.

SM and SF Part II

2007-10-14T22:47:00.001-07:00

My friend Malcot Israel asserted that the consequences and the long term effects resulting from the intentional denial of women their status as equal partners within the Roman Catholic Church and other denominations, will take many years to address, and it will be a long while before proper redress is given to the women of the Roman Catholic Church and other denominations.

I agree with her assessment completely and unreservedly. I believe that the only way the Roman Catholic Church will survive and grow in the future is through the uncomditional full inclusion of women in the religious life as equals to their male counterparts.

I urge all Christian women to take a stand and fight for the heritage and honor Mary of Bethany the Magdalene, Mary the mother of Jesus, his sisters your foremothers who served as deaconesses, presbytera and bishops do not let their honor be sullied by silence stand and fight

The Next Phase of Training

2007-10-11T15:33:00.000-07:00

I have been approved to begin the fifteen hours of observation that marks the second phase of my training.

The Sacred Masculine and the Sacred Feminine

2007-10-09T19:33:00.001-07:00

In a sense I am both a Roman Catholic and heretic because, I believe that over the centuries the Roman Catholic Church knowingly and intentionally devalued the Sacred Feminine and deprived and denied generations of women the inherent and sacred rights that they enjoyed in the early Church. Denying women the right to fully realize a calling to the ministry as deaconesses, priests, bishops and as higher ranking prelates, is to me abhorrent given the fact that early Chiristian texts provide several examples of prominent female church leaders in the early church, these leaders include: Mary of Bethany the Magdalene, Phoebe, and Thecla.

In succeeding generations and centuries the males within the church sought to impose their dominance using the Pauline Letters and the text of the second creation story as it relates to women cf. Genesis 2:21 as the scriptural basis for imposing a patriarchy on the church and forcing women into a subservient and wholly unnatural role.

The traditionalists use Genesis 2:21 and 3:16 as the basis for their arguments and yet the existence of a prior creation story in Genesis chapter 1 that is fundamentally different from the account in Genesis chapter 2 calls into question in my mind the validity of the text and interpretations of Genesis 3:16.

Can a church that has systematically relegated women to a negligible role be considered catholic and apostolic since, it has for centuries accorded a tertiary status to the woman who first recieved news of the Resurrection and was considered by Hippolytus of Rome to be the Apostle to the Apostles while, overemphasizing over inflating the role of the Sacred Masculine, thereby exaggerating the value importance of the roles occupied by men within the religious
and denigrating the importance role of the Sacred Feminine and the value of the integral roles played by women?

The Supreme Court and Chess: A Question

2007-10-07T14:54:00.000-07:00

Several years ago the Oyez Project in conjunction with Justia developed a game called Oyez Baseball it is an expanded and updated version of a game devised in 1979 by Profesor Robert M. Cover called "The Law-Baseball Quiz" which debuted in April of 1979.

Both versions of the game compared baseball players Justices of the Supreme Court of the United States of America in an efort to enhance knowledge of the personalities that make up the high court,

The nature of the game makes me wonder whether it is possible to develop a game that involves chess players on the master and grandmaster levels with the jurists that have been members of the high court?

Musings on the Cary-Yale Tarot Deck

2007-10-05T22:02:00.000-07:00

The Cary-Yale tarocchi unlike other deecks illsutrates the equality of women and men in all fields through the inclusion of female knights and female pages in wach of the minor arcana suits.

Additionally, the Cary-Yale deck is the only deck known to have replaced the Popess, Empress, and the Star with cards depicting the three theological virtues of charity, fafth, and hope in addition to the four temporal virtues of fortitude, justice, prudence, and temperance, as illustrated by the Strength, Justice, The Hermit and Temperance.

The differences between the Cary-Yale and the later Gringonneur deck makes me womder whether the cultures that constructed the differing decks designed each for a specific purpose?

Chess and Politics Part VI: An Emendation to Part V

2007-10-04T19:41:00.000-07:00

I fear the Congress and the President as institutions have in large measure forgotten the importance of decorum, respect, fair play civility and honor. I find the increasing trend towards winning every vote using whatever tactics and strategems necessary to achieve the win regardless of however questionable to be quite disturbing.

For twenty-seven years I have been following politics during those years I noticed that the only time the Congress and the President refrained from promoting their own self interests and subverted the concerns of their states placing national concerns before them for any length of time occurred during the periodic governmental shutdowns that characterized the 1980's and the early 1990's, during times of national tragedy or crisis. At all other times it seems as though the mantra of Government has become anything goes.

The attitudes exhibited by the Congress and the Office of the President reminded me of an epigram given by Dr. Emanuel Lasker, the World Chess Champion from 1894 to 1920, Dr.
Lasker once remarked:

Chess is above all a fight.

It could be argued that politics like chess is a fight in the sense that both are contests in which opponents seek to obtain an advantage over each others often relying on combinations and other techniques to achieve their ends. Further there are numerous examples in both politics and chess illustrate the tendencies of master class politicians and chess players to promote their own self interests at the expense of the public at large. Having said that I should note that their have been individuals such as Jeanette Rankin and Edmund Ross who valued honor, decorum, civility, respect and principle. In this way they were akin to Carl Schelecter and Geza Maróczy chessplayers who valued fair play and honor over a win under questionable circumstances. The powers that be would do well to take to heart the lessons of these individuals who valued fair play and honor over a win under questionable circumstances.