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The Minimum Number of Dukes in the Duke Family

If you've obsessed over The Dukes of Hazzard as much as I have, you no doubt know of the Duke family structure. Uncle Jesse is an uncle to Bo, Luke, and Daisy. Bo, Luke, and Daisy are all cousins to each other. Where are all the parents, brothers, sisters, children? The family we see on screen is like an old, abandoned spiderweb, torn and frayed by the ravages of life and time to its gossamer structural minimum.

For the curious and the insane, I dusted off my childlike math skills, not really used since 1996, except for when I read James Gleick's Chaos with half-comprehending glee two years ago. And I have determined a simple linear equation for the Minimum Size of the Duke Family. This formula only applies to the two generations encompassing Uncle Jesse and his nephews and niece.

Beginning with the customary nuclear family of Jesse, Bo, Luke, and Daisy, we have a familial structure like this:

Jesse
   |             |            |          |
                  Bo      Luke    Daisy

Because we are determining the minimum size of the family, we must assume that Jesse has never married or had children. However, as cousins, each of Bo, Luke, and Daisy must have had a discrete pair of parents. So we can flesh out the family structure thus:

Jesse       ? -- ?    ? -- ?   ? -- ?
   |             |            |          |
                  Bo      Luke    Daisy

From this, we can conclude that the 4 known Dukes correlate to 6 unknown Dukes, for 10 total Dukes. So:

4k = 10t

Now, during a contractual dispute with John Schneider and Tom Wopat, two "scab" Duke Boys by the name of Coy and Vance rolled in from the Merchant Marines. For simplicity's sake, these guys could have been siblings of the known Dukes, or perhaps Uncle Jesse's kids. But no. They were cousins (of everyone including each other) and nephews of Jesse. Hence we had this situation:

Jesse       ? -- ?    ? -- ?   ? -- ?  ? -- ?  ? -- ?
   |             |            |          |          |          |
                  Bo      Luke    Daisy    Coy    Vance

With the two added cousins, 6 known Dukes correlate to 10 unknown Dukes, for a total of 16 total Dukes. Here,

6k = 16t

How do we find a linear equation from these two calculations? Damned if I can remember. So I just graphed it:

As shown in the graph, the two points represented by 4k = 10t and 6k = 16t lie on a straight line that also intersects the point represented by a situation in which we only know of Uncle Jesse's existence. If we only know about Uncle Jesse, we can't infer the existence of other Dukes in his or the subsequent generation "Uncle" may be a nickname, and we have to go on what we know. Hence, the known and unknown Dukes here are equal.

From this simple line, I concluded that the equation relating known to total Dukes is:

t = 3k - 2

That's about all the math I'm good for. But there are other avenues of research in this area, just waiting to be developed. For instance, I would posit that the existence of each additional cousin implies a greater tendency for large numbers of offspring in the family tree, because it means Uncle Jesse's parents had a greater number of children. From this, one could reason a higher likelihood that each parental pair of a known cousin had a greater number of children. Therefore, each additional known cousin would increase the probable size of the Duke family by some complicated multiple thingy.

(Somebody did turn up once claiming to be Bo's long lost brother, but he turned out to be a bad guy. Of course. Another chapter in the Duke family tragedy.)

I leave such questions to greater mathematical minds. Not that they'll take it, but they certainly know who they are.

More Blog Fight

This is excellent. Timmentator's comments on my post below had me frightened at the prospect of fighting a two-front battle in the litigation debate.

[Which, for reference, began here, went here, then here, then here, whereupon I went on vacation, which led to some whack bullshit here.]

Well, now Armed Prophet is on hiatus, so I can just deal with Tim's comments until he returns. Here:

The Naderite Quest Against GM:
I'm not intimate with the facts of that quest, but I will say that I see nothing wrong with suing an auto manufacturer for an unreasonably dangerous design, particularly when they are aware of the risk. Case in point, McCathern v. Toyota, here in Oregon, dealing with the rollover of a Toyota 4Runner. Toyota was aware of the high rollover risk, and indeed widened the wheelbase in the next model year, significantly mitigating it.

If a company fears lawsuits, they will work harder to produce safer products. I think that's a worthy goal when it comes to automobiles. And, for the hell of it, look at situations like this from a libertarian perspective. What's preferable -- centralized government enforcement of safety standards, or private enforcement by citizens? Government oversight is at worst draconian and at best lazy. Private enforcement is preferable both in terms of liberty and of vigor. Think of it as a form of customer feedback.

Hold Ups of Business Over Environmental Litigation
As a guy with some environmental leanings, I must say that the shift in the environmental movement from legislating to litigating is disappointing and does nothing to curry public favor. (Ahem, DAMN HIPPIES!) I also think legislation and regulation have definite limits, and personally favor private, non-litigative conservation measures via property law, such as easements, dedications, and restrictive covenants.

But enough about me. I'm not sure what sorts of environmental litigation you are talking about, but I can say that much of the litigation over timber sales and the like is effected simply to force government officers and businesses to follow existing laws. Maybe it holds up business, but laws are laws.

For instance, the ESA includes a private right of action. Citizens have a right to sue for enforcement of it. If you don't like that, get the law changed. But again, as with suits against auto manufacturers, the private right encourages zealous enforcement of the law, like a pinprick in the ass of government. If you agree with the goals of the ESA, it's good. If you don't, I suppose it's bad. But don't blame the litigants.

I suspect, honestly, that your concerns about environmental lawsuits have less to do with the soundness of the judicial system and more to do with political beefs with environmentalists. On the flip side, many environmental groups have been hit by business interests with hollow and groundless defamation lawsuits, often called "SLAPP" suits. These suits stifle public debate as much as environmental litigation stifles business. Yet I have heard few tort reformers cry foul over them. Why is that? Many environmental lawsuits at least have the benefit of being grounded on statutes and solid legal theories, and do not threaten free speech.

The branding surgeon
First off, if I ever found out that my surgeon had branded "OSU" on my tonsils before cutting them out, I wouldn't even bother with court, if you know what I mean.

That said, I don't see any cognizable harm inflicted by the surgeon in that case beyond an intentional infliction of emotional distress. I don't know and have not bothered to research whether the law in that state allows med-mal actions founded strictly on emotional distress, but I'm dubious. I'm further dubious that the plaintiff would be able to prove any actual emotional distress damages. So, just on what I know of it from the article, I'd be highly surprised if it survived a motion for dismissal.

I couldn't find the case on Lexis or Westlaw, but that doesn't necessarily prove that it was dismissed. Lexis and Westlaw generally only compile appellate opinions, with some trial court decisions of precedential value thrown in. But they only publish opinions on points of law, not the final disposition of trials. So I can't tell you what happened to that case, but my guess is not much.

memo on the validity of the engagement agreement

The Offer
An offer is a statement or other act in which one person confers power on another to make a contract. In order to do so, the offeror must manifest his present intent to be bound in contract.

The query "Will you marry me?" is, on its face, ambiguous. It sounds more like an invitation to bargain than an offer to contract, similar to the query of "Will you sell...for the sum of $6000?" in Owen v. Tunison, 156 A. 926 (Sp. Ct. Me. 1932). In any other context it would likely be construed as such. If a salesman asks "Will you buy my vacuum?", that would fall well short of muster, if for nothing else than its total lack of specificity of terms.

However, for two reasons the phrase "will you marry me" makes a special case. First, in trade usage it is without exception treated as a valid offer to contract, met inevitably with either acceptance or rejection (we have found no case involving even a rejection and counter-offer).

Trade usage alone may be dispositive, but this usage is in fact a result of the unique nature of the engagement agreement. There is no spectrum of possible terms to be negotiated; in their absence the facially ambiguous "will you marry me" carries as much specificity as "Will you buy my 1964 Ford Falcon, the one with the primer spots and the leaky radiator, with all express and implied warranties including the implied warranty of merchantability, disclaimed, for $653.33 payable on delivery?"

The fact that the only possible responses are "yes" or "no" demonstrates the specificity of the terms, and therefore "Will you marry me" is a valid offer and not an invitation to bargain.

The Acceptance
What action or communication from the offeree brought the contract to fruit? The record indicates tears, followed several seconds later by a "yes." If tears alone could constitute a valid acceptance, the offeror would have lost his power of revocation; if not, he retained it until the affirmative oral communication. As he did not revoke, the point is moot, but some issues are raised.

The key issue is whether the tears were accompanied by the offeree taking physical possession of the offered material goods ("ring"). If she did not, tears would be insufficiently clear in meaning to a reasonable person, and would not constitute an acceptance. (If, however, the offeror subjectively had reason to believe that tears might indicate a particular answer, and this subjective belief could be proven in evidence, then tears could count as a valid acceptance or rejection.)

The record indicates that the offeree did take the ring box into her possession. This is still not dispositive, as tears are objectively ambiguous and will be treated as akin to a silent retention. If an offeree silently takes possession of goods, that in itself is not acceptance, unless it can be shown that the parties have a pre-existing, continuing business relationship from which acceptance can be implied. No evidence has been introduced of previous contracts of engagement or marriage between these parties. Therefore, tears were not a valid acceptance, and the offer remained open and revocable until the affirmative oral communication.

Structure of The Contract
It would appear that the contract between the parties is unilateral. I.e., the offeror specifically performed by delivering a ring, in exchange for a promise of marriage by the offeree. No express promise to marry is given by the offeror. Having specifically performed, he appears to no longer be bound by the contract, as he has given no promise to the offeree. Yet he retains a right of enforcement if the offeree breaches by refusing to marry him.

This can't be so. Surely no right-minded offeree would promise marriage merely in exchange for a ring. Some further consideration must have extracted her promise. Further, her ability to perform her promise would be completely impaired if the offeror created conditions preventing his being bound in marriage. Therefore, in the absence of an express promise on the part of the offeror, there must be found an implied promise to marry the offeree.

But the finding of this implied promise introduces yet another complication. It appears to be gratuitous, unsupported by any consideration. If the offeree's promise is given in consideration of the ring, what binds the offeror's promise? By a formalist approach, nothing. It is nudum pactum.

But such is the trouble with formality. As demonstrated above, the ring is not the complete consideration for the offeree's promise. In truth, it is not the consideration at all. It is a mere physical embodiment of the agreement, much like a writing down of terms. What the offeror genuinely offered, and what the offeree exchanged her promise for, was his own promise to marry, implied though it may have been. This promise was the consideration for the offeree's promise, and vice versa. The contract is in reality bilateral, a bargained-for exchange of promises.

Illusory Promises
Although, as demonstrated, the exchanged promises to marry are consideration for one another, and are therefore, to an extent, not gratuitous, they are unfortunately illusory. An illusory promise is one supported by consideration that nonetheless offers an escape route. In the case of Strong v. Sheffield, 144 N.Y. 392 (Ct. App. N.Y. 1895), a man accepted a promissory note on a debt in exchange for his promise not to cash it for an unspecified period of time. Because the period of forbearance was indefinite, the promise was held to be illusory. He could have cashed the note the following day.

The promises in the present case are similarly indefinite, although in an opposite temporal direction. Rather than setting no minimum, they set no maximum. A lifelong promise to marry, without ever agreeing on when to do so, is an illusory promise. Therefore, neither party is legally bound by or to their own promise. Since both promises are illusory, they are both worthless as consideration and are therefore gratuitous, after all. This contract is as solid as a wisp of smoke.

Conclusion
I need a long break from school.
___________________
Fine Print
This post is a mere intellectual exercise and in no way indicates second thoughts.

R.I.P. Saki

By turns a tightly wound little ninja and a desperate momma's boy, an avid hunter and a bedwarmer, capable of humid purring one moment and chirping like remote keyless entry the next, that little pile of black and white energy known as Saki met an untimely end this evening. Word is he went quickly and painlessly, but that doesn't diminish the loss. We'll miss you, l'ombre.

FLOG™ and FLOGette™

In a boldly corny move, FLOG™ (Daniel Atkinson) proposed to, and was affirmed by, FLOGette™ (Ashley Olson) on a 70-degree Spring Equinox at Portland's Rose Test Garden.

We currently plan to continue our march toward domesticity a couple of years from now, when I'm out of law school and my best man is a civilian again. For now: Yep, we're engaged!

Coming soon: an analysis of the contractual structure of the engagement agreement. Is it enforcable? Are the promises valid, gratuitous or illusory? Was crying a valid acceptance? And more legal wanking.

FLOG™ is on vacation

If you are expecting argumentative responses to your representations about the state of litigation, you're going to have to cool your bellis* till about Thursday the 25th.

Good day.
________________________
*bellis should by all rights mean something like "fighting spirit," but in truth it means daisy. Sometimes even the language itself produces bad results. So cool your daisy!

The Spanish tragedy

Right on, e-rocky-confidential. [A Simple Desultory Phillipic (Or How I Was Donald Rumsfelded Into Submission)] I tried to make the same point a few days ago over at AP, but backblog bugged out and I let it drop.

The speed with which "pundits" started asking whether Europe would now "get tough", and their condemnation of the subsequent election results, struck me as a rather cold and inconsiderate response to Spain's horror. For fuck's sake, I thought, let the nation grieve and save the tactical discussions till after the funeral.

Further, I'm of the view that the Spanish election was as much a reaction to being bullshitted by Aznar about the ETA, as it was any sort of "appeasement" of al-Qaeda. And, like Volokher Jacob Levy, I'm willing to see a bit of daylight between pulling your troops out of Iraq and outright folding in the fight against terrorism.

And now I will quit trying to sound like a real blogger and go back to FLOGging™. Thank you.

blog fight? okay, but no puppies!

Armed Prophet wants to get in the ring with me over the current state of civil litigation in this country. What's happened so far can be found here and then here

Fine. I've been considering taking on one of you "Lawsuits have gone berserk" guys for a while now. If this is to be the time, so be it. I'm not really ready, but I do have an opinion. And this discussion does seem to be popular, though it might be more about the commas., So here we go.

AP said:

I used to be a lifeguard, you know, and while nobody knew anyone who had actually been sued, we were always told it was possible. I'm sure it has happened. And even if it hasn't happened to these clubs, the fear of scurrilous lawsuits enabled by unethical trial lawyers is a legitimate one.

In a general sense, the fear of lawsuits, both scurrilous and non-scurrilous, is indeed legitimate. But so is the fear of being pulled over for speeding, or getting a parking ticket. When it's running well, the civil law system works to enforce decent and civilized behavior, at times more effectively than the criminal system, and there is nothing wrong with that.

Granted, opportunistic plaintiffs, and willing attorneys, will from time to time file scurrilous lawsuits. This is a problem, but I believe it is blown out of proportion, for two reasons, both of which have to do with the utter idiocy with which reporters cover civil litigation.

First, the great majority of "frivolous lawsuits" that make the news are winnowed out of the system very early in the process, by two motions, the motion to dismiss and the motion for summary judgment.

BORING LEGAL SIDEBAR
On a motion to dismiss, the judge decides that even if all the facts in the suit are as the plaintiff says they are, the plaintiff has "failed to state a claim on which relief can be granted." This motion can take place as soon as the suit is filed, and it disposes of a great number of lawsuits before the legal machinery even begins to move. All those suits against video game manufacturers failed at this early step.

The motion for summary judgment takes place a bit later in the process, but before trial. On a motion for summary judgment, the judge rules for the defendant if no facts are in dispute and the plaintiff has no legal case. If a scurrilous suit has lasted even this long -- beyond the discovery period -- it's probably not getting any further.

The trouble is that a news story like "Shooting Victim Sues Grand Theft Auto" gets major play, while the subsequent "Judge Throws Out GTA Suit" gets much less, and the lasting public impression is "I can't believe they let someone sue a video game manufacturer." Well, actually they didn't. And the way the subsequent story is reported may mislead the public into believing the suit actually had a chance for a while. After all, news cycles move about 300 times faster than legal proceedings, so the two weeks it took for the case to come up on the docket seems like an eternity, during which the average media consumer may envision the suit actually going forward.

So we're treated every year to several dozen of these headlines for illusory lawsuits, and the impression builds up that the legal system has gone berserk, when in truth it's tossing them out as quickly as it can.

I will admit that being sued does cost money and time, even if the suit is immediately dismissed. You need to have a lawyer review the complaint and do a bit of research on the relevant law, to come up with the argument for dismissal or, later, summary judgment. But in most contexts, this does not put overwhelming hardship on individuals. If you are sued for an auto accident, your insurance company handles it for you. If you are sued for actions taken in your duties as an lifeguard, your employer is vicariously liable and will handle it, and many employers retain in-house counsel. The small hassle of quickly fending off a scurrilous lawsuit is easily outweighed, in my view, by maintaining an open court where persons with genuine claims stand a good chance of relief.

Second, the details of cases that go to trial often get lost or distorted when they are reported in the media. The "twinkie defense" is one example; the McDonald's coffee case is another. I myself thought the McDonald's case was ridiculous, until I actually read about it. The facts take far more measured consideration than they recieved in the public eye, where it was reduced to "woman spills coffee on herself and successfully sues McDonald's for $2.7 million." Here are a few facts from the case that might give a better view of it:

-The plaintiff suffered life-threatening third-degree burns. She was hospitalized for eight days, recieved numerous skin grafts, suffered permanent scarring over 16% of her body, and took two years to recover.

-She originally offered to settle the case for the cost of her medical bills (almost $10,000); McDonald's refused. She then filed suit, but offered to settle for $20,000. Again McDonald's refused and insisted on going to trial.

-The McDonald's coffee was 180 to 190 degrees; most restaurant coffee is about 160 degrees and home-brew is 135-140 degrees. The difference in temperature affected the speed and severity of the burns -- at the temperature McDonald's went with, life-threatening burns can occur within 2 to 7 seconds.

-McDonalds was aware of 700 burn cases involving its coffee, and had settled many out of court, but refused to reduce the temperature.

-The jury concluded that the plaintiff was 20% responsible for her own injuries, reducing her damages by that amount.

-The jury's award of $2.7 million for punitive damages was reduced by the judge to $480,000. The final damage amount, however, was determined in an undisclosed settlement.

Does that "wacky" coffee case still seem to be frivolous? Is it still an example of a legal system gone wild? Personally, I don't think so. It's amazing what facts can do. And look at the bottom line: did the cost of litigation (a course McDonald's themselves chose) force McDonald's to raise its prices? With a dollar menu?

So my point so far is, most frivolous cases don't get anywhere, and the "outrageous cases" that do get somewhere can turn out to be a whole lot less outrageous upon closer inspection.

Much has been made by "tort reform" folks of obscene jury verdicts, but these are nearly always reduced by the trial judge, as the McDonald's case demonstrates, or on appeal. Further, fewer cases actually make it to juries these days. Between 1962 and 2002, a period during which the number of suits filed in federal court increased fivefold, the number of jury trials dropped from 5802 to 4569. (See here.) Much of this reduction is attributable to an increase in mediated settlements, but surely the winnowing process I described has also played a role. Yes, okay, so the number of suits filed has risen. The world's also gotten a hell of a lot more complex and dangerous. If, in fact, this increase reflects a rise in frivolous suits, the fact that trials have not increased indicates that the system is working to get rid of them.

I think that's all I have to say at the moment. Your move, AP.

eeeeeeeeeeeeeeeeeeeeep!

Also, omigodomigodomigodomigod!:

"A small near-Earth asteroid (NEA), discovered Monday night by the NASA-funded LINEAR asteroid survey, will make the closest approach to Earth ever recorded."

The 100-foot wide asteroid is swinging by, within 26,500 miles, about 15 minutes from now. JPL does its best to reassure us that this is no big deal:

"On average, objects about the size of 2004 FH pass within this distance roughly once every two years, but most of these small objects pass by undetected. This particular close approach is unusual only in the sense that scientists know about it."

But that's chilly comfort, isn't it?

Clayton Cramer points out that this asteroid, were it to hit, would do something along the lines of the meteor crater in Arizona.

I say, screw Mars. I want my $100 billion spent on super-duper telescopes and trajectory-altering nukes . . . And maybe a force field.

oh brother where art thou?

Hearing from Bryan reminds me that some of you might be curious about Spc. Mike's whereabouts. Well, here is the latest correspondence, rec'd yesterday by email:

Fuckin' Germans...

...nuthin' fuckin' changes...fuckin' Nazis

Soooo I've just arrived and gotten situated here in lovely Baumholder (pronounced "Bomb-holder") Germany. What a shitty duty station this is: I'm mechanized, and I'm stuck in the most dismal remote mountain base in Germany. But at the end of the day, who's getting paid to tour Europe? I'm centrally located on the continent, 20 min. from the Eurail, and we get one 3-day weekend a month. I arrived right in time for one. So this is going to rock.

My whole Battalion is in Iraq right now, so the place is kinda empty, but they should be back within the next month or so. That means I won't be going there anytime soon.

This region is where Hitler made his last stand, I'm told. The area of the Battle of the Bulge is not too far from here. There are still Nazi bunkers and dragon's teeth around here, plus I saw a faded swastika in one of the old buildings on post. I can't get that over-used echoing bugle motif from "Patton" out of my head.

-Mike

I looked up Baumholder on the mapquest and found that he's only 130 miles from the city of Nancy, France. A humorous collision is inevitable. Stay tuned.

10 new background images

So keep hitting reload and run up my counter stats! It's even better than flattery.

Portland's sleazy past

Despite its recent charge into the fray of homosexual marriage, its vaunted ratio of strip clubs to potential strip club patrons, and its continued association with Tonya Harding, the sad fact is that Portland, as a whole, is a city hellbent on becoming a kid-friendly yuppie haven.

Just in the years since I was a no-good Super Ball tossin' punk adolescent, I have witnessed major strides in the city's efforts to sweep away its longstanding seediness. Consider this photograph:

That hulking black aqueduct looming over my brother's long-lost muscle car is the Broadway Bridge's Lovejoy Onramp, a skyway over the industrial blight that once defined inner northwest Portland. Back there in the shadows by that warehouse, I once caught a fleeting glimpse of a blowjob for hire being performed in a rusting Ford pickup truck. It was one of the turning points of my early adolescence -- the day I learned that people really did have sex somewhere beyond the pages of a magazine.

The Lovejoy Onramp, like the blowjob, is now gone. In its place is a tree-lined pedestrian-friendly street. That delapidated warehouse, if it still stands, is likely one of the many that were converted into chi-chi little industrial-chic condominiums, complete with private garage, for the tide of yuppies that invaded the Pearl District in the late 1990's. And so, all over Portland -- up on NW 23rd, down in China Town, out on MLK -- Portland's pockets of sleaze and seediness are being stamped down and squeezed out by the city's relentless pursuit of gentility.

I don't mean to argue that this is a 100% bad thing. I myself am a burgeoning yuppie -- I'd have to be in serious denial to go through law school without facing that fact. And there are advantages to a clean, well-lighted city. Such as being able to stumble from bar to bar throughout the bulk of downtown without any fear of being seriously hassled. Sure, you may get a little heckling down by Hung Far Low, but nothing to take seriously.

But something must get lost in all this gentrification. For cleanliness and safety, we're trading away the urban grittiness and the frontier wildness of old Portland. The age of the Shanghai Tunnels and the block-long bars, and God knows what else. Which is why I enjoy reading about Portland history. Much as I love the city I grew up in, what it used to be is rather more enchanting.

The absolutely indispensible piece of literature on Portland's sleazy past is Kent Anderson's Night Dogs, a novel based on the author's experiences as a Vietnam Vet-turned-North Precinct beat cop in the 1970's. Anybody who takes their Portland affiliations seriously, and has not yet read Night Dogs, had better get off their ass and do it. For all its pulpy simplicity in terms of character development and story, the unflinching brutality with which it is written will leave you shaken. The motherfucker pulls no punches. Here's the second paragraph:

Just above his gold police badge, Hanson wore a yellow "happy face" pin that he'd noticed in the bottom of his locker before roll call that afternoon. He'd picked it up back in December, off the body of a kid who'd OD'd in a gas station bathroom, sitting on the toilet. The needle was still in his arm, half-full of the China White heroin that was pouring in from Southeast Asia, through Vancouver, B.C., and down the freeway.

There are better passages, but I don't have my copy with me so I'm stuck with the amazon.com teaser.

Another great source for old Portland sleaze, incidentally, is Mikal Gilmore's Shot in the Heart. Somehow, amidst this wrenching memoir of the infamous murderer Gary Gilmore's cursed family, his brother manages to work in this take on 1950's Portland, which I'm just going to fully transcribe because it's freakin' awesome and this beats homework. After describing Portland's insular, conservative early history, Gilmore writes:

The postwar sense of release -- plus all the new citizenry -- had temporarily forced a crack in the city's Victorian veneer. By day, downtown Portland was still a conventional shipping and business district ... By night, though, downtown Portland changed its character. Along the main drag of Broadway there was a strip of bustling bars and restaurants, and many of them stayed open all night. Inside these spots, you could find an interesting late-night social life: a mix of Portland's rich folks and aspiring bohemians, plus a colorful smattering of its would-be criminal types. In the blocks off Broadway, down toward the Willamette River, there were other all-night emporiums, if you knew where to find them. Places like twenty-four-hour movie houses, where the last thing anybody did was watch the movies. Instead, various hustlers worked the patrons, dispensing oral sex or hand jobs for a few dollars, or selling marijuana or harder drugs to the more daring customers. There were also all-night gambling dens and crowded brothels that weren't shy about servicing teenagers. I wish I could have seen this Portland. It seemed like a somewhat sordid place in those days, instead of the dull and mean town it struggled to become in later years.

I wish I could have seen it too, Mr. Gilmore. Gilmore sums up his review of Portland thusly:

In short, Portland became a lot like other midsized Western towns: a place hell-bent on believing that the darkness of its nights held nothing more provocative than the protected decency of American family life.

Of course, we can all take heart in the knowledge that this hell-bent belief is not yet true. The darkness of the Portland night still holds Mary's Club. All is not lost.

some few words in defense of judicial activism

In 1970, in the case of Javins v. First National Realty Corp., Judge Skelly Wright, of the Court of Appeals for the District of Columbia, issued something of a landmark ruling. Acting on precious little precedent and a whole lotta judicial swagger, Skelly Wright cast aside several centuries of common property law and declared that urban landlords are bound to their tenants by an "implied covenant of habitability." Meaning that the landlord, and not the tenant, is responsible for basic upkeep and management of the property.

However right the decision was in principle, it was literally unprecedented. Which is not surprising for Skelly Wright, a poster-boy for judicial activism. Javins was among the most activist decisions of one of the most activist judges in American history. Rightly deserving of opprobrium and much hemming and hawing about "making law, not interpreting it," right?

Not so fast.

Within a few years of Javins, many states had incorporated Skelly Wright's decision into law. Statutory law, that is -- the kind made by legislatures. Now, 34 years later, it is so widely accepted and legislatively codified we never give Javins a first, let alone a second, thought as we dial up Mr. Landlord to fix the toilet.

The point of this story is not, if you were wondering, that judges know what's best for us. Not exactly that. It is, instead, a suggestion that the judiciary's job may be more than merely interpreting and applying the laws the legislature hands down to it. The judiciary may also rightly provide items for the legislative agenda. And this side of the job may sometimes require active inquiry into problems the legislature has not yet encountered.

On paper, the legislature makes law, the executive administers it and the judiciary applies it. In truth, however, all three branches make law in some sense--by legislation, rule-making, or setting precedent. Two of the three branches deal every day with real-life problems relating to the law. The legislature is not one of them.

The executive branch, as administrator, deals with the front-end application of the law--setting rules, policing, etc. The judicial branch deals with the tail-end, determining culpability and resolving disputes. I believe this division of labor is best expressed by the introduction to Law & Order.

Now then. It has long been accepted that a part of the executive's role in administering the law is advising the legislative branch on needed legislation. While the legislature sits around yelling at each other and holding hearings, the executive is out there on the streets learning about what needs to be done. Its ideas about needed legislation, therefore, are unquestioned. Well, sure, legislators question them, but not with accusations of "executive activism" and "interfering with the proper role of the legislature."

Why is this not the same for the judicial branch? Every day, judges across the country hear genuine disputes between adversary parties, often involving factual situations no legislature could imagine when it passes a statute. In such situations, the judiciary can help the legislature in its duty as law maker. They can't very well propose bills to the legislature. But they can seek out a fair resolution and hope the legislature takes notice (which it often does).

Such decisions help the legislature in two ways. First, by calling to its attention a situation it may not have contemplated. Second, by putting forth a solution to the situation that the legislature is free to either codify or overturn. The list of statutes that originated with court decisions such as Javins is too long to contemplate, and most are rather mundane. The legislative overturnings of court decisions have been far more dramatic--all the way from the repudiation of Dred Scott by the 13th and 14th amendments, to the recent actions of the Florida legislature in keeping Terri Schiavo alive. The judiciary plays as vital a role as the executive does in helping impell the legislature to action, whether or not its decisions are upheld. Think of this next time you call a judge "activist."

i saw you

Probably nobody else bothers to blog what goes on in the tabloid its victims call Eugene, Weakly, and I don't aim to start doing so in earnest. However, this pair of ads in the I saw You section of the personals caught my eye:

WATCH BABE
Saw you working in VRC fixing watches with your tiny hands. I have a little pocket for you to put your hands in. Call for a good time. XOXOX.

WATCH STALKER
Are you a dude or a chick?

Real-life drama sure to end badly, or elaborate practical joke? I report, you decide.

There was also this; do with it as you will, Girl-Who-Got-Blog-That-Radio-Show:

KWVA QUEEN AUTUMN
Where are you? We need your show on Saturdays. Please come back! What ever will we do? You disappeared!

More pathos a personal ad has never seen. Except maybe this one:

LET'S HOOK UP
Blonde, blue eyes and sexy. Let's hook up.

photoshop wizards, your country needs you

Honestly, how can this sit out there and not become a golden shower? I have neither the time nor the privacy to do it. eatyourdamnpeas, I'm looking in your direction.

hippie watch™: Aggro rolls out the "F" word

Mr. Blog has hooked me into a bit of a shooting war over my "Old Hippie" / "Post-Hippie" distinction. The whole business is here. Rather than respond immediately to his last comment, I'd like to run a little induction on his ass by continuing with Hippie Watch™

Last weekend, the Public Interest Environmental Law Conference (PIELC) descended on my precious Law Center. For the uninitiated, PIELC is a 3,000-strong invasion of exactly the "Post-Hippies" I've been talking about. They roll in from all over the country in VW's and Kia's for four days of networking and seminars. Laundry, showers, and basic adherence to well-posted signs such as . . .

QUIET PLEASE! CLASSES IN SESSION

. . . and . . .

STUDENTS ONLY BEYOND THIS POINT

. . . is strictly optional.

As the organizers euphemistically put it, "the Conference attracts thousands of independent thinkers and free spirits, and we try our best to keep this crowd from distracting you in your normal affairs." Not terribly well, but let that be.

For a couple months leading up to this conference, I saw grumblings of dread ripple through the school listserv whenever one of the Conference organizers sent out a request for help. Here is one of the funniest. Names, of course, have been changed. Aggro is the star:

To: Students
From: "Kell"
Subject: have a big backyard?

Hey there everyone!

Do you have a big backyard?

We have several Conference attendees who need a place to set up their tents - so all they need is a nice patch of grass!

You'll get the chance to meet some great folk!

To: Students
From: "Tony"
Subject: RE: have a big backyard?

How about the lawn behind the law school – we can have our own Law School Hippie fest. Who wants their backyard smelling like the law school during the conference anyway?

Hippies smell!

To: Students
From: "Aggro"
Subject: RE: have a big backyard?

Fascists are worse.

After Aggro's provocative point, the "debate" quickly decayed into a battle of Big Lebowski quotes. And rightly so.

So there you have it, Blog. Why is Aggro best called a "Post-Hippie", and not something like "dirty activist"? Well, among other things, because (1) he does nothing to disclaim the "hippie" label, and (2) he tosses around the word "fascist" the way most of us breathe.

birth of a CRYPTOGRAM in real time

Finals are still a ways off, so you'll have to wait a month or so before FLOG™ cranks back into the cryptogram business.

However, I have just created one that even I can't decipher. My attention drifted for a moment in Property and I was left trying to copy down what the Prof. wrote up on the board. Here's what I got . . . but what in god's name does it mean?

A. Lease severs JT = Tenancy in Common (heirs subject to rent)

B. Lease doesn’t sever JT (Towne)
then --> a. Lease survives death (T gets reversion; right to rent)
or --> b. Lease doesn’t survive death (T get FSA, B = no O)

uh . . . huh.

This is not hippie watch

3 heads.
6 legs.
I want one.

miuzi weighed a ton

Las Vegas' Gun Store, where I BECAME A MAN some eight years ago by firing 50 rounds out of an Uzi, has a write-up in Slate. Ah, it takes me back.

hippie watch™: a rant in prelude

Those of you who caught this post may believe I have an antipathy for hippies. Which I do.

But I'd like to refine that a bit. I've given it some thought and decided it isn't actual Hippies I dislike. By which I mean, the kind from the 1960's whose only real ambition was to ingest a lot of chemicals and maybe bang out some loud, anarchic rawk and roll while sincerely believing they were in the middle of a gangland shoot-out on the moon. No, I like those hippies. Many of my American cultural heroes are of that ilk, from Tommy Chong on down the line. I also have crossed paths with a few and know them to be truly enjoyable company, good for a laugh, a toke, and the occasional half-baked leftist rant. These are perfectly harmless and decent folk.

My beef, instead, is with the Post-Hippies. Uptight, self-righteous boho-fascists, these individuals go through all of the motions of hippie-dom -- the marijuana, the folk music, the dirty living -- but with none of the mirth. In its place they offer joyless, uncompromising and (still) half-baked political activism.

(Aside: If your thoughts immediately wander to the joyless political activism of places like Berkeley in the 1960's, I recommend the book Berkeley At War, which documents, among other things, just how frustrated the radicals at Berkeley became in trying to get the hippies over on Haight Street to care about anything political.)

Anyway. Old Hippies, it is true, have had their political and ontological disagreements with The Man and The Square Community. But they've generally been happy to live and let live, in classic American style. Not so with Post-Hippies, who tend to make themselves known in public life in a shrill, censorial, and domineering fashion. At least if you live someplace like I do.

The Post-Hippie men are the worst, methinks. I mean to give no short shrift to the women, who do their part. But a Post-Hippie man is a strange, strange creature. Whereas the Hippie males of Old were goddamn primal beasts who would gobble up psilocybin and amphetamine and howl at the moon, no Post-Hippie man gives even a tenth as much rein to his masculinity. Either through the demands of their culture, or by their own self-denial, they do their best to be mellow, unaggressive, and totally emasculated. They ride bicycles everywhere, eat brown rice, and any "insensitive" outburst is greeted by the herd with hours of inquisitorial soul-searching. The hunter inside is never allowed a moment of freedom.

The results are disastrous, of course. The repressed testosterone accumulates within them in odd little reservoirs, from which it either trickles out passively or bursts forth in violent rage. Drum circle fights are an example of the latter. I know many examples of the former, but the one that springs most readily to mind is a fellow law student who shall go by the pseudonym "Aggro."

Longtime FLOG™ readers may remember Aggro for his unorthodox views on the relative immorality of Adolf Hitler and Ronald Reagan. He is a flaxen-haired granola cruncher whose goal in life is to sue the pants off of American oil companies. Ambition, I'll give him.

What I won't give him is a healthy emotional balance. As with all the Post-Hippies, he goes through the hippie motions. Long hair, naked dips in Cougar Host Springs, etc. But conversation with him is an object lesson in passive aggression. He may be all for world peace, but in person it's nothing but mean-spirited, undercutting "jokes" and small outbursts of deep rage at computer printers, textbooks, lounge chairs and USDA biologists. This can't be chalked up merely to the rigors of law school: he was like this in Orientation. And he's not unique.

Next on Hippie Watch: Aggro rolls out the "F" word.

Categories!

In a tireless effort to bring my 7 readers the bestest FLOG™ possible, I have drafted a set of "categories" for my entries here, to help you decide which ones are up your alley. Some time in the distant future, I may begin archiving by category. I don't know how just yet.

And yes, HIPPIE WATCH™ is on the way.

Coming soon: hippie watch™

"There was dirt on the floor near the banana, and the banana was sticky around the edges."

Fellow law student "J. J. Joe Jr." finds his true calling in the exciting field of banana peel law. Please go look.

A good rule of thumb in this area: You can't win a lawsuit with a fresh banana.

This just in: Multnomah County's marrying gay people!

Yes, alright, so I'm late to the party on this, but I have a few interesting perspectives. First, I've obtained some of the relevant legal materials behind Multnomah's decision, as well as the expert advice of UO constitutional scholar Garrett Epps. Second, I've got a unique take on the issue straight from the horse's mouth, Chief Justice Wallace Carson of the Oregon Supreme Court! (And believe me, it's a doozy!)

The Legal Materials
At the outset, it's vital to note that unlike California, Oregon does not have a "Defense of Marriage Act" explicitly denying marriages to gay couples, so whether or not Multnomah County officials are openly defying any state law based on their interpretation of the Oregon constitution is an open question, and really comes down to how you read the Oregon marriage statute.

The Oregon Constitution

Art. I Sec. 20. Equality of privileges and immunities of citizens. No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.

Similar in terms to the U.S. Constitution's 14th amendment, it has been held by Oregon courts to be a "good deal stricter" in scrutinizing state laws than that amendment's "equal protection" clause, according to UO Law professor Garrett Epps.

One thing I would add to Epp's observation is that it explicitly provides protection to "class[es] of citizens," and not just individuals. This is rather expansive language, and might arguably permit a member of a "class" to claim injury from a law discriminating against that "class," regardless of whether he or she has suffered injury from the law. Perhaps--and this is just speculation--this language might allow a person to sue for the right to get a gay marriage before even attempting to get one and being refused. Although this seems to be becoming a moot point!

The important point is that the Oregon "equal protection" provision goes much further in protection of civil liberties than the federal 14th amendment provision, and the Oregon courts have supported that.

The Oregon Marriage Statute

O.R.S. 106.010 Marriage is a civil contract entered into in person by males at least 17 years of age and females at least 17 years of age, who are otherwise capable, and solemnized in accordance with ORS 106.150.

As I've noted before on OLD FLOG™, I can't find any support in this statute for the allowance of marriages between two males or between two females, strictly on the basis of the naked language. My final two cents on it are that the plural construction is a result of terrible draftsmanship but is negated by the "and' in the middle. Perhaps it allows two or more males to marry two or more females but I can't find a clever way to ignore the "and" and allow two males to marry each other.

Epps, on the other hand, finds the lack of the word "between" to be significant, e.g., "between males . . . and females." But this seems a distraction; the presence of "between" would not change either my interpretation or anyone else's. Those who want to read it a certain way would see "between males" just as they now see "by males" and they'd be done with it, and I'd still not be able to get over the "and" that joins the males to the females. So who knows?

A Highly Relevant Court Case:
Tanner v. Oregon Health Sciences Univ, 157 Or App 502 (1998).

In this Court of Appeals case, which the Oregon Supreme Court refused to review, the court held that a denial of insurance benefits to the domestic partners of homosexual OHSU employees was unconstitutional because no "genuine difference" between domestic homosexual and heterosexual partnerships could be found.

The "genuine differences" test is now the reigning legal principle on the legal status of homosexual partnerships in Oregon. It varies from the national standard pronounced in Romer v. Evans and Lawrence v. Texas, which provides that discrimination by sexual orientation is permissible if the law is "rational." Like our constitution vis-a-vis the 14th amendment, the "genuine differences" principle provides much stricter scrutiny of discriminatory laws than is seen nationally (even post-Lawrence).

Multnomah County, adhering to this principle, probably (rightly) concluded that there is no "genuine difference" between gay and straight couples that would justify permitting one class, and not the other, to marry. So here we are. Where will it go next?

The Oregon Supreme Court
This morning, the Oregon Supreme Court sat at the UO Law School to hear oral arguments on a couple of cases before them. It's part of some "outreach program" they do, and, lecture hall layout being the way it is, it is probably one of the few times in the year that the Court sits below the lawyers and the audience.

Anyway, after hearing their cases, the Court took questions from students for a few minutes. Most were fairly innocuous; others provided the justices with fodder to mock Antonin Scalia's steadfast refusal to recuse himself from that Cheney case (a position widely frowned upon among the legal crowd). Then one young man stood up and asked, "What do you think of Multnomah County's decision today to allow gay marriages?" What is the sound of 200 foreheads slapping? Of all the things to ask the Oregon Supreme Court. Here is what Chief Justice Carson said (get ready):

"I'll answer that question by not answering it yet. I'm sure it will come before us in the not-to-distant future and I'll be happy to let you know what I think then." So there you have it: the Oregon Supreme Court may have the last word on this contentious issue of state law! Just goes to show, the only stupid question is the one that goes unasked!

Bitchin'

I finally found a way to randomize my background image here on New FLOG™. I have really been working hard for you™ on that, believe me. My search led me to file extensions I knew only from porn sites, such as ".asp" and ".php." Yes, I am an HTML caveman. But me learn quick.