Obiter Tacetum
Tuesday, December 02, 2003
Others Agree it's Really About a Public Pat on the Back
This, from Mike Potemra in The Corner.
Monday, December 01, 2003
Egg Foo Young, a la Parmesan
I've been mulling over a conversation I had recently with some classmates who favor a right to intrasex marriage. I thought I'd explain myself this way:

I am an American of Italian descent, the grandson of immigrants. My Italian heritage is inherent by my birth, and I had no choice in the matter. Because of this heritage, I have certain preferences, for example, cuisine. I like a dish of pasta with a good tomato sauce, prepared with certain ingredients, herbs, and spices. Notwithstanding my preferences, I may like to have a meal from a different cuisine, for example Chinese (as it has come to be prepared in America). After all, the origins of pasta trace back to the Chinese culture.

There are some benefits to having a Chinese meal: it is readily available in almost any strip mall; it is typically quickly prepared; if I tell friends or colleagues that I had Chinese for dinner, they understand the contours of the meal without further elaboration. Having decided to partake of these benefits, I enter a Chinese food establishment, and order the noddle dish of the day, with some minor modifications to suit my preferences. I would like the noodles to be served with a tomato sauce, cooked with beef and pork, garlic and onion, seasoned with salt, crushed black & red pepper, fresh basil leaf, and the finished dish dusted with freshly shredded Reggiano Parmigiano cheese.

Question: Have I eaten a Chinese meal? If I tell others I have eaten a Chinese meal, am I being accurate? At what point do changing the elements of something change the thing itself? Can I demand that everyone's definition of Chinese food include this dish? Can I sue to make a court force others to see this issue my way?

Which brings me to the question of why continue the fight over intrasex marriage? Especially when even most of the country seems prepared to accept Civil Unions as a way to bestow the utilitarian benefits of civil marriage on any couple that wants it. The answer I got to that question related to ostracization, and being treated as 'second-class' citizens. Then it's not about the civil rights, but about recognition and acceptance be the public at large.

Take this quote for Safire's NYT column today:
"The conservative in me wonders: if equal rights can be assured by civil union, why are some gays pushing so hard for the word 'marriage'?

"The answer is that the ancient word conveys a powerful message. Civil union connotes toleration of homosexuality, with its attendant recognition of an individual's civil rights; but marriage connotes society's full approval of homosexuality, with previous moral judgment reversed."
So it's not about toleration or benefits, or even rights. It's about the warm and loving acceptance of the individual by society at large. Seeking this is a fool's errand. To most of the liberal minority groups, I am the boogey man. I am a white male of European descent. Whatever evil you can think of, it's all my fault. (Go ahead. Blame me. I'm tough. I can handle it.) I don't yet feel warmly accepted everywhere I go. For that I must be content to surround myself with a circle of friends and loved ones. Where I don't find acceptance, I move on. There are five billion people in this world who couldn't give a rat's ass about how happy I am. What's a few more or less? If I were to make my happiness dependent on any or all of them, I surrender my well-being to their benevolence. No, thank you.

Working years ago and calling a friend from work to tell him about my new girlfriend. My office mate looks over and says "I've got to pick up your slack so you can tell your buddy that you're getting some on a regular basis? Get back to work!" Most of America doesn't care who you're sleeping with, gay or straight. We don't even care who makes your medical decisions, or who gets your stuff when you die (unless it's me).

What we do care about is ordered society. Where, in America, laws are made by people we elect for that purpose, not by judges whose job is resolve disputes. He who lives by the ipse dixit, dies by the ipse dixit.

Tuesday, November 25, 2003
Post-Goodridge Thoughts
Assume for a moment the SJC has truly gone fishing on the issue of intrasex marriage. The decision unambiguously states that the word marriage as used by the legislature was not meant to encompass same sex couples. Yet in the final analysis, the court construes marriage in precisely that way. The court has substituted its own policy choice, its own will, for that of the duly elected legislature, by its own admission directly in contrast to the legislative intent. The SJC gave the legislature an ultimatum of 180 days to comply with its decree. What recourse besides impeachment is available if a court oversteps its authority?

Begin from first principles: The Constitution states that the United states shall guarantee to every state in the union a republican form of government. Art 4, sec. 4. A right without a remedy is no right at all. But for over 150 years, any claim raised under this article has been deemed a political question for the legislature, and not justicible by the courts. Luther v. Borden, 48 US 1 (1849). The Supreme Court is also historically hesitant to contravene a state's interpretation of its own laws and constitution. But if the court will not act, hasn't it at least cleared the way for Congress to act directly? Was it just hyperbole and washing its own hands of the issue when the court said in Texas v. White that "[T]he power to carry into effect the clause of guaranty is primarily a legislative power, and resides in Congress." 74 U.S. 700 (1868) (overruled on other grounds). If that is the case, the let the Congress act.

It need not remove the judiciary. To paraphrase Goodridge, 'that would be wholly inconsistent with the nation's deep commitment to fostering stable government and would dismantle a vital organizing principle of our society.' Congress need only vacate the decision which is on its face a violation of representative government when taken on the opinion's own terms. This would empower the legistlature to carry out the will of the Massachusets voters, whatever that may be.


"Article 4, Section 4, of the Constitution of the United States guarantees to every state in the Union a republican form of government ... A distinguishing feature of this form of government is that the people are capable of self-government and have the right to choose their own officials for governmental affairs and enact their own laws pursuant to the legislative power reposed in representative bodies." Harris v. Shanahan, 192 Kan. 183, 204, 387 P.2d 771, 789 (1963) (emphasis added)

Further Update:

Direct Congressional action may solve the immediate problem, but represents a massive invasion of state sovereignty, and is fraught for potential for misuse. Much like the FMA, the consequences of the solution worry me at least as much as the problem.
Wednesday, November 19, 2003
Just a Few Reasons Why Fordham Law Should Not Join the FAIR Lawsuit Against the US Military
Open letter to the faculty and administration of Fordham Law:

A petition was circulated in one of my classes on this Veteran’s Day, Nov 11th, 2003, seeking support for Fordham to join the FAIR lawsuit. The irony of gathering support to hinder the mission of the United States military on that particular day was completely lost on the collector. However, respect for the institutions that secure our freedoms is not a requirement to exercise those freedoms.

I am writing to demand that Fordham University School of Law not join the proposed lawsuit on at least one immutable ground: Not with my tuition. At a time when staggering numbers of Fordham graduates are without jobs on graduation, more than one third by some estimates, it is not in the best interest of the student body at large to ban any major employer from on-campus recruiting. Students’ tuition dollars should be spent for the benefit of all students, not for the appeasement of a small, if vocal, minority. To do otherwise is a violation of the fiduciary duty the school administration owes to the students.

Spending my tuition dollars to join this lawsuit is compelling my speech on this issue in a manner against my wishes. “To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical." Thomas Jefferson. Though not state action, I urge the administration to consider the reasoning set down in Barnette, that no official should dictate what is orthodox in political maters or opinion, or force others to confess by word or act their faith therein.

Moreover, the FAIR lawsuit seeks to overrule legislative prerogatives by judicial fiat. It advocates precisely the sort of judicial activism that undermines public confidence in the federal system of justice. The continuing encroachment in precedent of the fickle and shifting political winds leaves our very freedoms in jeopardy, particularly when those winds change. “[H]e who lives by the ipse dixit dies by the ipse dixit.” Morrison v. Olson, 487 U.S. 654, 726 (1988). The propriety of the Solomon amendment has been debated in the legislature, and it is continually open to be revisited in that same forum. The considered deliberations of that body should not be whisked aside in the courtroom.

It would seem to me the ultimate victory for those who oppose the military’s policies to have a handful of uniformed recruiters sitting alone at a table in Platt Atrium on any given day, no student willing to talk to them. That is obviously not the case. Since those who would support FAIR cannot accomplish that goal by persuasion in the marketplace of ideas, they seek, through this lawsuit, to erect barriers to the freedoms of students who do wish to meet with military recruiters. The rights of those students are not considered in the least by those advocating joining the FAIR lawsuit.

Lastly, if it is the school’s considered opinion that military recruiters are to be excluded from campus, it is a simple matter to lawfully do so. Don’t cash the check. It is hypocritical and disingenuous to follow the course advocated by FAIR.

I regret that I lack the time at this point in the semester to go into further detail. It would be unwise to enter join the ill-advised FAIR lawsuit. It would be to the detriment of the student body at large, and it would be a slap in our face to use our tuition dollars in the effort.
Monday, September 15, 2003
Hail to the Conquering Heros
Though I never attended Michigan, I have adoped the Blue as my rooting interest, mostly for want of a successful Div. I sports program at my alma mater. Actually, a dear friend is a UM alum and still lives in Ann Arbor. In my far too few and infrequent visits, I found much to like about the school and the town. Needless to say, I was quite pleased with their crushing defeat of the Fighting Irish of Notre Dame last weekend. Apologies to an otherwise thoughtful blogger over at Southern Appeal.
Saturday, September 13, 2003
So WFB has this piece up on NRO about the airlines in general and business class in particular. His basic thesis is that business class is nice, but not worth the premium charged. A couple of points in response.

First, I have no sympathy for the airlines. They have costructed a tortuous pricing mechanism presumably because it maximizes their revenue. This is their right in a capitalist society, and their obligation to their shareholders. By the same token, in a capitalist society, government should not be proping up failed business models due to changes in market conditions. If one too many airline falls, others will rise.

I've never paid for a business class seat, though I have flown business class on upgrades, as I imagine many frequent or semi-frequent fliers have. For the reasons WFB points out, I believe that my $/miles ratio is better spent on upgrades than free coach tickets. In fact, the business class is likely maintained more for its value as a perk to good customers than for the revenue it generates on its own. Like the walk-up fares that are rarely paid, or MSRP on a new car, the number is almost irrelevant. If someone pays it, the supprized ticket agent will surely tell their colleagues later. My wife has flown business-class when her company was picking up the cost. The vast majority of business-class customers are not paying the tab themselves, through at one of these two methods. Like so many other areas where the user of the service has no interest in price, the price infates enormously, absent other constraints (e.g., medical costs).

Second, WFB suggests that if some wholesaler was responsible for selling passage en masse, that the price of a seat that would otherwise go unused would be deflated. I'm not sure I agree, because the seller has a motive not to devalue the product. But more importantly, why must there be an intermediary for this to be so?

An airline seat is the ultimate perishable product. An apple on the shelf too long can be made into applesauce. An empty seat on an passenger airliner that has already taken off is absoluetly worthless. Further, the marginal cost of carrying an extra passenger on an aircraft that is already traveling with open capacity is nearly trivial. The airlines themselves have ample incentive to fill empty seats. Why would an intermediary improve this?

Moreover, there is value in the certainty of knowing I will have a seat on a given flight. If I need to be in Phoenix on the 27th, then I would likely pay more to have a confirmed seat, rather than take my chances waiting in line on the 26th in hopes of a discount, knowing the market could well be sold out. Although there is some effort by the airlines to discount excess capacity on short notice through various internet models, by and large the former model of escalating ticket prices as the departure date approaches prevails. This model is illogical, and it is failing.

That the airlines needed a bailout and even went back to the well a second time is ample evidence their business model is flawed. The government should not have complied, and what's worse they did so too cheaply without adequate givebacks from the industry. The price of a business class seat is the symptom, not the disease.
Friday, February 07, 2003
"A window into the mind of a law student. You know, there's a reason they don't put windows in Scrapple factories..." Thus begins Obiter Tacetum, a blog of things unsaid in my passing through Fordham University Law School. I'm afraid I don't have time for more thorough introduction this morning, but much like the first year law student, you'll just have to glean what you can along the way. Thanks for stopping in, come back soon.

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