One L(ove)

March 12, 2009

The world could sleep a little better tonight…

Filed under: Uncategorized — galileehitchhiker @ 3:30 pm
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now that this disgraced fuckstick is heading off to jail. 

Currently listening to: U2 – New Line on the Horizon

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January 10, 2009

The Yassa and Bankruptcy

Filed under: Uncategorized — galileehitchhiker @ 8:05 pm
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Genghis Khan

Genghis Khan

I’ve recently become interested in bankruptcy law. I guess it came while updating and reading some excerpts from Professor Resnick‘s Collier volumes that are in one of the libraries in the firm. I guess it also came when I found out that one of the attorneys in the law firm I work in is going to be teaching at Hofstra this semester on debtor and creditor rights. Feeling a little pressure within me to narrow down my interests and figuring out what field in law I want to adopt when I graduate, I became curious about bankruptcy law in the United States and started googling some information about it. I came upon this Web site about Yassa, which is a secret code of law created by Genghis Khan, the founder of the Mongolian Empire. The Web site contains some excerpts from historians about the Yassa. One of them I found particularly interesting. It is that of the famous 14th/15th century Egyptian historian al-Maqrizi, who, knowing that the task of analyzing the Yassa would be too great since no copies of it were made available (since it was a secret yet the principal law of the land), made a list of what the Yassa entailed:

1. An adulterer is to be put to death without any regard as to whether he is married or not.

2. Whoever is guilty of sodomy is also to be put to death.

3. Whoever intentionally lies, or practices sorcery, or spies upon the behavior of others, or intervenes between the two parties in a quarrel to help the one against the other is also to be put to death.

4. Whoever urinates into water or ashes is also to be put to death.

5. Whoever takes goods (on credit) and becomes bankrupt, then again takes goods and again becomes bankrupt, then takes goods again and yet again becomes bankrupt is to be put to death after the third time.

6. Whoever gives food or clothing to a captive without the permission of his captor is to be put to death.

7. Whoever finds a runaway slave or captive and does not return him to the person to whom he belongs is to be put to death.

8. When an animal is to be eaten, its feet must be tied, its belly ripped open and its heart squeezed in the hand until the animal dies; then its meat may be eaten; but if anyone slaughter an animal after the Mohammedan fashion, he is to be himself slaughtered.

9. If in battle, during an attack or a retreat, anyone let fall his pack, or bow, or any luggage, the man behind him must alight and return the thing fallen to its owner; if he does not so alight and return the thing fallen, he is to be put to death.

10. Chingis Khan decided that no taxes or duties should be imposed upon fakirs, religious devotees, lawyers, physicians, scholars, people who devote themselves to prayer and asceticism, muezzins and those who wash the bodies of the dead.

11. He ordered that all religions were to be respected and that no preference was to be shown to any of them. All this he commanded in order that it might be agreeable to Heaven.

12. He forbade his people to eat food offered by another until the one offering the food tasted of it himself, even though one be a prince and the other a captive; he forbade them to eat anything in the presence of another without having invited him to partake of the food; he forbade any man to eat more than his comrades, and to step over a fire on which food was being cooked or a dish from which people were eating.

13. When a wayfarer passes by people eating, he must alight and eat with them without asking for permission, and they must not forbid him this.

14. He forbade them to dip their hands into water and ordered them to use some vessel for the drawing of water.

15. He forbade them to wash their clothes until they were completely worn out.

16. He forbade them to say of anything that it was unclean, and insisted that all things were clean and made no distinction between the clean and unclean.

17. He forbade them to show preference for any sect, to pronounce words with emphasis, to use honorary titles; when speaking to the Khan or anyone else simply his name was to be used.

18. He ordered his successors to personally examine the troops and their armament before going to battle, to supply the troops with everything they needed for the campaign and to survey everything even to needle and thread, and if any of the soldiers lacked a necessary thing that soldier was to be punished.

19. He ordered women accompanying the troops to do the work and perform the duties of the men while the latter were absent fighting.

20. He ordered the warriors, on their return from the campaign (battle) to carry out certain duties in the service of the Khan.

21. He ordered them to present all their daughters to the Khan at the beginning of each year that he might choose some of them for himself and his children.

22. He put leaders, (princes/bogatyrs/generals/noyans) at the head of the troops and appointed commanders of thousands, hundreds, and tens.

23. He ordered that the oldest of the leaders, if he had committed some offence, was to give himself up to the messenger sent by the sovereign to punish him, even if he was the lowest of his servants; and prostrate himself before him until he had carried out the punishment prescribed by the sovereign, even if it be to put him to death.

24. He forbade military leaders to address themselves to anyone except the sovereign. Whoever addressed himself to anyone but the sovereign was to be put to death, and anyone changing his post without permission was also to be put to death.

25. He ordered the Khan to establish permanent postal communications in order that he might be informed in good time of all the events of the country.

26. He ordered his son Chagatai to see that the Yasa was observed.

While there is no doubt that most of the demands made by the legal prescriptions of the Yassa are barbaric, for our purposes read #5 again. Under Genghis Khan’s law, the debtor would be put to death if he “files” for bankruptcy for the third time! This certainly would have made the life of the counsel for the creditor much easier. At times, it is really frustrating to comprehend that the law is not immutable, that it can change at any time (I am willing to bet that if there’s anything that people want to be permanent and unchangeable in society, it would be the law. The reason is because there are so many interests at stake when the law changes. That’s why people get worked up over the decisions made by the Supreme Court and who’s going to sit on the bench when a spot is available). However, reading about the codes like the Yassa make you grateful that the law is alterable and flexible. It’s not disastrous or catastrophic when the law changes (that is inevitable since we change over time in our ideas about ourselves, our existence, how we relate with one another, and how we should be governed — essentially, the law changes when we change and the argument that the law should be immutable since it is anchored in morality is futile since morality also gets weathered by the deluge of time and by the progressiveness of human thought; in other words, there’s no such thing as the law or morality if there are no humans [what good are law and morality if there are no humans? How can we talk about these concepts if there are no humans?], and since we are creative beings, the law and morality are bound to change). When the law changes, it’s rather an opportunity, a blossoming of society to become more humane or, conversely, more mad.

Currently listening to: Karl Böhm & the Wiener Philharmoniker – Beethoven’s Symphonie no. 9

November 25, 2008

32nd Annual NYU Public Interest Legal Career Fair

Filed under: Uncategorized — galileehitchhiker @ 3:49 pm
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Vanderbilt Hall

Vanderbilt Hall

This is just a reminder that if you are interested in making a career out of public interest or are just looking for somewhere to work during the summer, make sure you register for the 32nd Annual NYU Public Interest Legal Career Fair. The last day of registration is on December 3rd at 3 p.m. The fair will take place on February 5 & 6 at NYU School of Law, specifically at Vanderbilt Hall, 40 Washington Square South, between MacDougal and Sullivan Streets. It is the largest fair of its kind in the country. About 200 organizations are going to be there and you can get an interview there as well for internships and post-graduation jobs. If you are a 1L and are not interested in a career in public interest, I’d still recommend you to sign up (it’s for free!) as a back up to gaining legal experience during the summer.

Currently listening to: M83 – Saturdays = Youth

November 20, 2008

Human Rights & Forum Non Conveniens

Filed under: Uncategorized — galileehitchhiker @ 9:00 pm
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Forum non conveniens is granted when the court dismisses an action because it believes that there is a more appropriate forum available where litigation can take place, regardless if that first court has proper jurisdiction and the venue requirements have been met. In deciding on whether to dismiss an action on the basis of forum non conveniens, the court takes into consideration private (e.g., litigants access to sources and proof), public (e.g., drawing a pool of jurors from an area that has no connection with where the event that gave rise to action took place), and local interests (e.g., locals want an event that took place around their area to be decided there). When the court balances these interests, it then determines whether dismissing an action on the basis of forum non conveniens is appropriate.

What gets really interesting is when a foreign plaintiff (usually, a U.S. court has its finger on the button for forum non conveniens and if it feels that the foreign plaintiff is there because of taking advantage of a favorable legal system in the U.S., it will most likely press it) brings an action claiming violations of human rights to a U.S. court. Under the Alien Tort Statute (28 U.S.C. sec. 1350), a foreign plaintiff can bring a tort claim based on violations of international law in the U.S. courts. A reason why we allow foreign plaintiffs to bring violations of human rights claims to U.S. courts is because the forum in a country that has violated a plaintiff’s right might conceivably be an inadequate forum.

The essence of the debate is whether forum non conveniens should apply in human rights cases brought forth by a foreign plaintiff? There are basically two sides to this debate: 1) Forum non conveniens should not apply when there are compelling interests at stake in litigating human rights claims in the U.S.; and 2) Forum non conveniens should apply when there are few meaningful reasons for the U.S. to adjudicate a human rights claim here and when the interests of another country outweigh the interests of the United States. I guess answering that question and determining where you stand on the issue is to answer a simple (hah!) foreign policy question: Do we have a stake in interests in every single abuse of human rights that takes place in the world? I guess we have to ask ourselves what “stake in interests” includes. Being that it is the greatest global power in the world right now, should the U.S. include moral reasons besides economic ones? Would it or would it not be practical?

Currently listening to: Bob Dylan – The Times They Are A-Changin’

November 19, 2008

Copyleft

Filed under: Uncategorized — galileehitchhiker @ 9:05 pm
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Does copyright law, the way it is being practiced today, have a harmful impact on society? In other words, do copyright and intellectual property hinder not only artistic creativity but our democratic freedoms? Even though this article is old, it is extremely interesting and captures the views of law professors on the issue. Prominent among them is Professor Lawrence Lessig.

Currently listening to: Miles Davis – Bitches Brew

November 12, 2008

Thoughts on Proposition 8

Filed under: Uncategorized — galileehitchhiker @ 12:34 pm
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As I walk through the halls of school, I hear a lot of conversations centered around Proposition 8. It’s not only a hot topic of debate within the walls of the law school, but also without it. Political pundits, community organizers, lawyers, academics, religious leaders, television and radio shows, and editorial sections of newspapers across the country are discussing about the approval of Proposition 8 by Californians in last week’s elections.

I first learned about the proposition the day before the elections when a friend from school, who is from California, said that Californians were voting whether gay marriage should be allowed in their state. Proposition 8 (its ballot title was Eliminates Right of Same-Sex Couple to Marry), seeks to overturn the California Supreme Court’s recent decision of recognizing same-sex marriage as a fundamental right. The proposition will amend the Californian Constitution in defining marriage solely between a woman and man. Californians (shockingly) approved the proposition (52% yes, 48% no). This has caused a public furor from the LGBT community in California and, I bet, from the LGBT communities around the whole country.

One of the things I truly admire in a person is his or her ability to make sound logical statements – that their flow of thought succeeds in a logical fashion. I believe public policy should be based on sound logical reasoning, although I do think the application of logical reasoning should be curtailed in some instances (I suggest you read Arthur Koestler’s classic book Darkness at Noon to know what I mean). In this instance, that of gay marriage, I do personally believe that policy should be determined by sound logical reasoning. Of some of the arguments that I have personally heard that are put forth to justify the passing of Proposition 8, I can’t help but think how weak they are. It’s scary to see these types of arguments put forth to justify limiting the rights of a significant portion of our society:

1. “I believe homosexuality is natural and also the right of homosexuals to marry but Proposition 8 should be passed because I don’t want my kids to learn about homosexuality in sex ed.”  Yes, ladies and gentlemen. I have personally heard this argument proposed in support of Proposition 8. What would be the logical consequences of such an argument? Wouldn’t passing Proposition 8 just so homosexuality cannot be taught in sex ed only negate the first half of the argument, i.e. homosexuality is natural and that gay marriage is also natural? Doesn’t the second half of the argument belie the first part? There’s an apparent contradiction underneath the surface. The things that are taught in sex ed only communicate to the children what is natural in society. If only sexual relationship between a man and woman are taught in sex ed and the child learns this to be the only natural type of sexual relationship between humans, isn’t it possible that when a child gets out of the classroom and sees other types of sexual relationships that he’ll or she’ll deem them to be “unnatural”? Surely, it’s plausible that the child would come to the conclusion: “Well, I didn’t learn that in school. This is an unnatural type of sexual relationship.” This will only give children an idea that homosexuality is unnatural and a deviant sort of relationship, since it is distinguishable from that which has been taught at school. Therefore, a logical consequence of this argument would only perpetuate that homosexuality is unnatural, something to be feared and hated. I’m sure that no matter what position you take on this issue (whether homosexuality is natural or unnatural), you can defintely see (I hope) that how such an argument only contradicts itself. I don’t know how a person can believe homosexuality is natural while putting forth this argument. What about a teen who feels “different” from the rest? That he or she feels differently from a person his or her gender is supposed to feel (remember gender is different from sex, the former is a social construction and the latter is biological). Certainly, there’s a lot of confusion. I personally think that such an argument proposed above would only serve to confuse such a person more.

2. “The right of gays to marry is natural but I don’t want them to show it in public.”  Yep, I first heard of this argument after the elections. What does it mean? Marriage is a social invention and a powerful institution in our society. It provides benefits that are denied to unmarried couples and single people. It carries with it a powerful status and a great sense of security. Certainly, in the eyes of the law, there are definitely more privileges and benefits conferred to those who are married than those who are not. But what does it mean when such a person would say, “I don’t want them to show their marriage in public”? How do a heterosexual married couple display their marriage in society? I don’t know. The only thing I could think of is a wedding. That’s how you know when someone is a married couple. Then arguing that gay marriage is natural but it shouldn’t be displayed in public (i.e. wedding) is only an inherent contradiction. Does it send out the message: “Both homosexuals and heterosexuals have the equal right to marry but heterosexual marriages are more equal than homosexual ones”? But does the person mean kissing, hugging, and holding hands? These are displays of affection that couples (whether married or not) generally do. These activities go on and will go on no matter if a couple (gay or straight) are married or not. Stopping these displays will only needlessly infringe upon the rights of people to do so.

3. “Allowing gay marriage will lead to a slippery slope.” Ah! The slippery slope argument. This type of argument is drilled inside the heads of every first-year law students to reflect upon what would be sound public policy. What the slippery slope is that if you basically allow something to happen, it’ll only open doors for (socially) less favorable activities to take place. Such an argument when applied to the issue of gay marriage (I’ve heard Bill O’Reilly make this argument a lot) seeks to show that allowing gay marriage will pave the way for other types of marriages such as between a human and an animal. I think this type of argument is unfair and would surely be offensive and hurtful to homosexual couples. Think about it. How can the relationship between two consenting adults who happen to be of the same sex be analagous to a relationship between a man and, let’s say, a goat (I like goats)? It must be insulting for homosexual couples, indeed. There’s such difference between a relationship between two consenting human adults of the same sex and that of a human and goat (although goats are incredibly cute, I seriously doubt they can consent, lawfully speaking, to marriage with humans). I think it’s reasonable for fair-minded proponents and opponents of gay marriage alike to see that the slippery slope argument does not logically hold.

Some things to think about:

1. An example from criminal law. Judges often tell juries to think if a person, who happens to be white, shoots and kills some black teenagers which the former thought were threatening, would the switching of the race of the killer and victims matter? If it does change, what does it mean to you? That means race and our attitude towards people of a certain race does matter in our decisions. Ask yourself: What if the elimination of the right to marriage between heterosexual couples should be taken away, does it matter? If it does, what does it say about your attitude toward sexual minorities? Do you believe that those who identify themselves differently when it comes to sexuality are more privileged than those who identify themselves totally the opposite? Is this fair and just? If not, should it be the basis of public policy? Something to think about.

2. The problematic title of Proposition 8. Rachel Maddow, a person I truly admire and who happens to be a gay American, said on election night after President-elect Obama was announced to have won the presidential election, that the ballot title of Proposition 8 is extremely problematic: “Eliminates Right of Same-Sex Couples to Marry.” In its wording, she says that the proposition realizes that there is a right of gay Californians to marry, as the Supreme Court of that state held. The aim of the proposition is to take that right away. Isn’t the wording of the proposition disturbing? Something to think about.

I do think people have a right to believe and opine about whatever they want to believe and opine about – no matter how reasonable or unreasoable those beliefs and opinions are. However, when it comes to public policy, especially when it affects the lives of a significant portion of people in our society, our public conscience needs to be free of illogical and unreasonable defects in the rails of our train of thought.

Currently listening to: Mudhoney – Superfuzz Bigmuff

November 9, 2008

Public Humiliation and the Law

Filed under: Uncategorized — galileehitchhiker @ 11:07 pm
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Yesterday, I watched an episode of Taboo (seriously one of the greatest shows on television), which comes regularly on the National Geographic Channel (“check your local listings for airtimes”). The episode was dedicated to punishments and it was divided into three segments: 1. blood feuds in Albania; 2. open prison system in India; and 3. public shaming in the United States. While the other two segments were intriguing, the last one was extremely interesting since it’s what’s happening at home.

The setting for the segment about public shaming was Dayton, Tennessee. An 18 year old student got in trouble with the law after he stole a CD from a record store. The reason he stole the CD was because a fellow student told him that he would be his friend if he did so. Now, this seems like a ridiculous reason for stealing but I felt sorry for him because he had no friends and he was desperate for communication. But still, that shouldn’t excuse him for stealing. So Judge McKenzie, who was going to sentence him, offered the kid two choices: either go to jail for ten days or walk in front of the store from which he stole for four days while carrying a sign that lets people know what he did. The kid, foregoing this right to an attorney, chooses the latter option. So for four days, this kid carries a sign saying: “I stole from this store and am walking due to an order by Judge McKenzie.”

Apparently, this is becoming a popular practice, especially in the South. Tennessee and Texas have judges that issue what is termed as “shame punishment.” This reminds me of Nathaniel Hawthorne’s Scarlet Letter where the character Hester Prynne wore an “A” (for adultery) on her clothes. Shame punishment is not a new concept. It had been an old practice but eventually faded away when we became concerned with human rights. However, as can be seen from its recent revival, it didn’t totally die out.

Now, the issue is whether this is a good way to punish a perpetrator of a petty crime? There is no doubt that it is effective in the sense that public humiliation is one of our greatest fears and we try to avoid any situation that would make us a social stigma. To be subjected to humiliation of such type definitely affects us deeply in the psychological realm. So what are the arguments for it? Well, there are quite a few. There are arguments grounded in communitarianism, stating that public shaming will allow for a community to be united in reacting with shame towards certain acts that violate social “norms.” Thereby the community takes a central role in defining what is public policy. Also there are more economical arguments such as that shame punishment will keep petty criminals from being incarcerated, thereby saving taxpayers money. And of course, there is the argument of deterence – that it’ll keep potential violators at bay. Statistics, documented in the episode, show that only 9% of those who received shame punishment violated probation. Therefore, a person who experiences public humiliation will be more likely to have his behavior “rectified” and become once again part of the community.

Notwithstanding my own personal bias against public shaming and any other sort of public punishment, one has to wonder whether these judges who authorize shame punishment are overlooking the consequences of their decisions. There are certainly many problematic issues raised by such punishment. Does it not compromise human dignity? For those of you who are among the godawful people who argue that criminals forfeit their right to human dignity, keeping in mind that such punishment is reserved for petty crimes, wouldn’t public humiliation have a disastrous impact upon the lives of the perpetrators of these crimes? Isn’t it possible that such punishment can have a more direct harm upon the lives of these offenders than is actually thought of? Is it possible that becoming socially stigmatized by one’s own community could lead to devastating consequences such as suicide? Isn’t the position of the communitarians dangerous in the sense that having the community as a whole punish the offender paves the way for mob justice? Suppose a man walking with a sign saying that he killed two people while driving drunk (as was shown in the episode) is confronted by a person who was related to or was good friends with another person who died due to a drunk driver, how could such an encounter end? Isn’t it possible that shame punishment actually overlooks the real problem and does not address the real issue or motivation behind an offense? What if a person who stole did so due to a drug problem? Should the law take emotions into consideration? For a great treatment of how the twin emotions of shame and disgust play a role in law, check out this sample chapter from Martha Nussbaum’s book (which I really want to get!) called Hiding from Humanity: Disgust, Shame, and the Law: http://press.princeton.edu/chapters/i7697.html

haha, Won’t I make a great editor of a casebook? Watch out, Dressler!

Currently listening to: Portishead – Dummy

October 30, 2008

On Ugliness

Filed under: Uncategorized — galileehitchhiker @ 11:04 pm
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There’s an interesting article in the Times today about ugliness and how it impacts society. It has become a hot topic for philosophers, economists, sociologists, other academics, popular culture, and even the law. You can read it here: http://www.nytimes.com/2008/10/30/fashion/30ugly.html?_r=1&oref=slogin

Above is a painting by Jean Dubuffet, a French painter, who was known for creating “ugly” art and held an exhibition entitled Plus beaux qu’ils croient (More beautiful than they believe). Although, Dubuffet shocked society with his art, there was some reason to his madness: perhaps, there is no such thing as ugliness or even that ugliness and beauty are virtually the same, indistinguishable.

Currently listening to: Led Zeppelin – Physical Graffiti

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