• Mark Lilla: pick either faux populism or intellectual conservatism, you can’t have both [WSJ] #
• P.J. O’Rourke on where conservatives went wrong [Weekly Standard] #
• And how exactly did those mountain goats get up there without wings? [Flickr "Roger 80" h/t @coolpics] #
• Scotland authorities trawl social networking sites, then slap teen with £200 fine for posing with sword on Bebo [Massie] #
• “Victims’ rights” sound like lovely idea but can undermine fairness and practicality of criminal justice system [Greenfield] #
• Bizarre Czech case: driver hits, then tries to murder pedestrian, victim survives only to be sued by car’s owner [Feral Child] #
• Auto bailout would leave Big 3 in interest-group coils, bankruptcy could cut the knots [Bainbridge h/t @erwiest] #
• ACORN as the gang that couldn’t intimidate straight [PoL] #
• “Talked about in CivPro” I hope favorably [@sqfreak] #
• More public stirrings against traffic cameras [Jeff Nolan] #

• McCain hoist on his own campaign regulation petard [WSJ edit] #
• Conservatives should hold a retreat to talk about why they’re being sent to the wilderness [Friedersdorf/Culture11] #
• Disability activism and “anti-national sexual positions”: just another day in postmodern academia [Massie] #
• Unionism on steroids: Employee Free Choice Act would be Thatcherism in reverse [Claire Berlinski, City Journal] #
• Here’s a twist: a politician walking over his ambition to reach his grandmother #

• It’s still not over: Judge Roy Pearson of lost-pants fame returns to court with appeal against Custom Cleaners owners, the Chung family [WJLA]
• Columbus cops’ class action: dept. shouldn’t have asked us what our ailments were when we took sick leave [Dispatch]
• Culture Warrior Jeff Bell hopes Palin will reverse trends that have “legitimated a contraceptive ethic” [Weekly Standard] Better not count on it [York, NRO "Corner"]
• RIAA has now filed 30,000 lawsuits against file-sharing music fans [Wired "Threat Level", Ambrogi]
• Recently at Point of Law: Ohio’s Supreme Court in the balance this November; Biden vs. legal reform; guestblogging by Peggy Little and Jane Genova; Lilly Ledbetter at Democratic convention; big Peter Angelos cellphone-cancer case strikes out; call for Australian no-fault cerebral palsy fund; and more;
• Massachusetts high court ruling that docs can be sued over their patients’ medication-impaired behavior is predictably leading to new suits [Globe, Brockton hospital crash; earlier]
• What Alinsky-style “community organizers” do [York, NRO via Bookworm Room] “Organizers break laws if they have to.” [Thomas Geoghegan @ Slate -- and he's being admiring]
• California trial lawyers successfully gut original Schwarzenegger plan to reform award of punitive damages [four years ago on Overlawyered]

• To hold a party in the public parks of Bergenfield, N.J., you’ll need homeowner’s or renter’s insurance to throw on the line [Bergen Record]
• More on suits against Victoria’s Secret over allegedly hazardous bras, thongs, and undergarments, including an aspiring class action over contact rashes [Heller/On Point News]
• Supreme Court will review Navy sonar controversy, which we’ve long covered in this space [Adler @ Volokh]
• Hope of legalized online gambling fades, and you can blame Republicans on Capitol Hill for that [Stuttaford, NRO "Corner"]
• Disney said to be behind bad proposal to soak foreign tourists to fund visit-America promotions [Crooked Timber]
• “Squishier than most”: Nocera on A.M.D.’s predatory-pricing antitrust suit against Intel [NYT]
• Process serving company lied about delivering SEC witness subpoena and falsified later document, judge rules, awarding victim $3 million [Boston Globe]
• Revisiting the false-accusation ordeal of Dr. Patrick Griffin, and how it relates to pressure to have needless chaperones at medical procedures [Buckeye Surgeon, Dorothy Rabinowitz Pulitzer piece]
• Overlawyered turns nine years old tomorrow (more). Commenters: how long have you been reading the site? Any of you go back to its first year?

Toldjah so: The Virginia Supreme Court has unanimously ruled against Lisa Miller of Winchester, who has been ignoring a duly issued Vermont court order providing her former lesbian partner Janet Jenkins with rights of visitation to the child they had been raising together. Miller’s defiance of the law had been backed by Liberty Counsel, the ironically named pro bono group headed by the dean of Jerry Falwell’s Liberty University School of Law, as well as other conservative religious figures such as Chuck Colson. Despite misreporting to the contrary in some quarters of the conservative press, the case had nothing to do with recognition of the former couple’s Vermont civil union, nor did it eventuate in an award of custody (as distinct from visitation) to Jenkins. (AP/Newport News Daily Press; Ed Brayton and more; our earlier coverage).

An Arizona antiwar activist has been much criticized for selling a T-shirt with the slogan “Bush Lied, They Died” along with the names of the more than 4,000 U.S. servicemen killed in the war. Parents of a soldier killed in action in Iraq are suing, saying the use of their son’s name has caused them emotional distress; they want class-action status on behalf of all the parents of other soldiers killed in action, amounting to $40 billion. The suit’s Amended Complaint does little to advance the dignity of its cause with assertions like, “Most respectfully, this is a concept that even a mentally-challenged monkey could grasp.” (Howard Wasserman, Prawfsblawg, May 5; Balko, Reason “Hit and Run”, May 6; The Smoking Gun, Apr. 23).

I know we’re supposed to give prominent Religious Right figure Chuck Colson a pass because of his compelling life story and the work he’s done with prisoners, but jeepers, does he ever give a misleading account of the Miller-Jenkins case (Vermont-Virginia lesbian custody battle), discussed earlier in this space Aug. 15, 2004, Dec. 16, 2004, Aug. 26, 2006, and Nov. 29, 2006.

Colson begins his column (”Legal Fictions”, syndicated/TownHall, Feb. 28) by announcing that Miller-Jenkins presents “one of the most important legal battles of our time”. In fact, as I noted back in 2004, the case presents the somewhat less epochal issue: can a party dissatisfied with a visitation/custody outcome litigated in one state ignore a resulting court order in order to pursue proceedings in what is expected to be a more favorable state?

Colson cites a recent in-depth story about the case in the Washington Post Magazine (April Witt, “About Isabella”, Feb. 2). Somehow, however, he omits to mention a feature of the case that figured centrally in that account, namely the outstanding court order that Lisa Miller, biological and custodial mom of Isabella, has been defying for years now. Since Colson does not mention that court order, he naturally does not inform readers that it arose after Miller voluntarily submitted to the jurisdiction of a Vermont court dissolving her civil union with Janet Jenkins. Nor do his readers learn that Miller was happy to pocket child support payments from Jenkins, before eventually deciding to blow off the court order, or try to, by cutting off Jenkins’ regular visitations with Isabella.

Nor does Colson describe the current posture of the case. If he did, he would have to acknowledge that both the Vermont Supreme Court and a Virginia appeals panel have ruled unanimously against Miller, who nonetheless continues to defy the court order. There is no indication that Miller’s team of Religious Right litigators is uncomfortable with this posture of hers.

Colson frames the story for dramatic effect as one in which Jenkins, appearing from out of the past, demands custody of Isabella — although the dispute in fact arose over visitation, and although the likely outcome of the case (assuming Miller relents rather than pursuing her contempt of court all the way into a jail cell) is simply going to be the restoration of Jenkins’ visitation rights. Pricelessly, Colson dismisses Jenkins’ legal rights as those of “a woman [Isabella] barely remembers”, without inquiring as to how Miller managed to engineer this state of affairs.

And, no surprise, Colson also fails to mention the relevant federal statute, the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A, which as Eugene Volokh points out “requires courts [in other states] to adhere to preexisting custody awards generally, not just ones that follow the dissolution of a marriage”.

Probably the most enduring significance of the Miller-Jenkins case will be as an indication of the willingness of many on the Religious Right, even the lawyers among them, to applaud and defend the defiance of court orders when those orders inconvenience the godly or uphold the legal rights of the ungodly. I wonder whether Colson gives a thought to this when he decries, in the column, “our reckless pursuit of getting whatever we want at all costs”.

I also wonder whether the proposition that it’s just fine to violate laws and court orders when one feels impelled by a higher cause — I believe some social conservatives like to label this point of view as antinomian — is a message that Colson is accustomed to spread when he addresses groups of prisoners in the course of his public work. If so, we can only hope the prisoners don’t take the message to heart (& welcome Ed Brayton, MarriageDebate.com, Eugene Volokh readers).

I’ve got a review in today’s New York Post of Andrew Sullivan’s new book, The Conservative Soul: How We Lost It, How To Get It Back. A brief excerpt:

The “conservatism I grew up with,” notes Sullivan, stood for “lower taxes, less government spending, freer trade, freer markets, individual liberty, personal responsibility and a strong anti-communist foreign policy.” Defining figures such as Ronald Reagan and Margaret Thatcher spoke regularly of human freedom as the great aim of political life. “It has long been a fundamental conviction of the Republican Party,” declared the 1980 GOP platform, “that government should foster in our society a climate of maximum individual liberty and freedom of choice.”

Somehow from there we arrived at the presidency of George W. Bush, whose pronouncement on the state’s proper role - “When someone hurts, government has got to move” - owes more to LBJ than to Barry Goldwater.

Pennsylvania Sen. Rick Santorum brusquely waves aside “this whole idea of personal autonomy,” this “idea that people should be left alone, be able to do whatever they want to do.” Ex-Democrats of the McGovern-Dukakis era once popularized the line “I didn’t leave the party, the party left me”; if the Santorums prosper, plenty of old-line Republicans will be ready to sing the same refrain.

(Walter Olson, “Reforming the Right”, Nov. 5). Andrew Sullivan responds here.

Judith Reisman, a peripheral yet oddly influential figure in social-conservative circles who is perhaps best known for her attacks on the late sex researcher Dr. Alfred Kinsey, has taken up a new cause: proving that exposure to pornography causes the release of injurious “erototoxins” in the human brain. Reports Britain’s Guardian:

Under the auspices of Utah’s Lighted Candle Society (LCS), Reisman and Victor Cline, a clinical psychologist at the University of Utah, began raising money from American conservative and religious organisations. They hope to raise at least $3m to conduct MRI scans on victims under the influence of porn and so prove their theories correct. They foresee two possible outcomes: if they can demonstrate that porn physically “damages” the brain, that might open the floodgates for “big tobacco”-style lawsuits against porn publishers and distributors; second, and more insidiously, if porn can be shown to “subvert cognition” and affect the parts of the brain involved in reasoning and speech, then “these toxic media should be legally outlawed, as is all other toxic waste, and eliminated from our societal structure”.

(Mark Pilkington, “Sex on the brain”, Jul. 14). Rogier Van Bakel (Nobody’s Business) has much more on Reisman (Jul. 21). (& welcome Andrew Sullivan, Instapundit readers).

George Will has some sensible comments (”The Christian Complex”, syndicated/Washington Post, May 5). Christopher Hitchens, considerably more incendiary, begins by channeling Barry Goldwater (”Why I’m Rooting Against the Religious Right”, WSJ/OpinionJournal, May 5).

David Frum at National Review Online, in the course of his latest piece (Dec. 9) arguing for a constitutional ban on same-sex marriage, invokes — and badly misdescribes the facts of — the Miller-Jenkins custody case, discussed in this space Aug. 15.

Writes Frum:

Continue Reading »

Justifying government penalties for broadcasters, Federal Communications Commission head Michael Powell cited a surge in public complaints of on-air indecency — hundreds of thousands of complaints in all. “What Powell did not reveal — apparently because he was unaware — was the source of the complaints. According to a new FCC estimate obtained by Mediaweek, nearly all indecency complaints in 2003 — 99.8 percent — were filed by the Parents Television Council, an activist group.” (Todd Shields, “Activists Dominate Content Complaints”, MediaWeek, Dec. 6; Jeff Jarvis, BuzzMachine, Dec. 7).

Speaking only for myself and not for Ted (and obviously not for anyone else either), I’m among those who believes George W. Bush doesn’t merit re-election, though I supported and in fact actively advised his campaign the first time around. For some of the reasons, check the links in this Oct. 5 post. Foreign policy and defense blunders aside, the last thing I wanted was an administration combining aggressive social conservatism with uncontrolled spending and big new government programs.

Some Bush strategists have seemed confident that secular-minded supporters of small government and individual liberty — a rather important constituency, historically, within the Republican Party — would have nowhere to go this fall, since it’s not as if the record of Sen. John Kerry inspires confidence. But there are places to go, if not especially attractive ones. Prof. Richard Epstein of the University of Chicago School of Law, whose scholarship has inspired so many of us, says he plans to vote for the Libertarian nominee (true, as Megan McArdle points out, the nominee in question appears to be a barking moonbat, but the point of a Libertarian vote is to send a well understood protest message that stands apart from personalities). My favorite syndicated columnist, Steve Chapman of the Chicago Tribune, is actually planning to cast a Democratic presidential ballot for apparently the first time in his life (”Why I’m voting for John Kerry”, Oct. 24). Chapman quotes Cato’s Dave Boaz making perhaps the strongest argument that can be made for the Democrat on domestic policy: “Republicans wouldn’t give Kerry every bad thing he wants, and they do give Bush every bad thing he wants.” The Detroit News, meanwhile, editorializes in favor of none of the above. Finally, for balance, here’s a link to Coyote Blog, run by a small businessman who says he’s going to support Bush as a “single-issue voter” motivated by the subject matter of this website, that is to say, the need to reform the litigation system.

Over at Point of Law, the featured discussion has now wrapped up between Dr. Ron Chusid of Doctors for Kerry and our own Ted Frank on the presidential race and medical malpractice reform. If you haven’t looked at the exchange yet, you’ll find that it conveys a wealth of information about the state of the medical liability debate. Not surprisingly, I found Ted persuasive in arguing that Bush has the sounder position on this issue (which still doesn’t mean I’m going to vote for him).

More developments regarding Virginia’s antigay law, much criticized in this space (see May 31 and links from there): the state’s Attorney General, Jerry Kilgore, has put forth an opinion (which of course does not bind the courts) construing the statute narrowly so as not to restrict persons of the same sex from entering private contractual arrangements that convey any “rights or privileges not exclusive to the institution of marriage”. (”The law”, Style Weekly (Richmond magazine), Jun. 30; Lisa Provence, “Not gay: Marriage affirmation sparks protests”, The Hook (Charlottesville), Jul. 17; Adrian Brune, “ACLU to challenge Va. union ban”, Washington Blade, Jul. 16). The law is already being cited by some attorneys as reasons why persons in Virginia should be considered free to disregard not merely civil unions, but even court orders arising out of such unions, originating in other states. Attorneys for Lisa Miller-Jenkins, who recently moved to Virginia from Vermont after the breakup of a civil union in the latter state, are citing the Virginia law to justify their client’s reported refusal to comply with a two-month-old Vermont court order awarding her former partner, Janet Miller-Jenkins, rights to visit the daughter born to Lisa during their time together. “State law forbids Virginia courts from handling legal custody and parental rights disputes if proceedings are already under way in another state.” (Calvin R. Trice, “It’s Virginia vs. Vermont in custody case”, Richmond Times-Dispatch, Aug. 14; Justin Bergman, “Judge delays ruling on jurisdiction in lesbian custody battle”, Newport News Daily Press, Aug. 13; Jonathan Finer, “Custody Case Puts Lesbian Civil Union On Trial”, Washington Post/National Constitution Center, Aug. 7)(via Tim Hulsey). And some gay residents of the Dominion have reacted to the law by deciding to move away. Update Aug. 25: Va. judge takes jurisdiction of custody case notwithstanding court order (Washington Post). More background on case: Washington Blade, Aug. 20. Further updates Dec. 16 (I challenge conservative commentator David Frum’s description of the case); Aug. 26, 2006 (Vermont Supreme Court rules against Miller); Nov. 29, 2006 (Virginia appeals panel, reversing lower court, rules against Miller).

“‘I don’t think censorship is a bad word, but it has become a bad word because everybody associates it with some kind of restriction on liberty,’ said Mr. [Pat] Boone, who is in Washington making the rounds as the national spokesman for the 60-Plus Association, a conservative senior citizen lobby.” (Steve Miller, “Censorship in arts ‘healthy,’ Boone says”, Washington Times, Apr. 21)(via TMFTML).