Annals of Zero Tolerance

I realize that this is like shooting fish in a barrel (has anyone ever shot a fish in a barrel? Isn’t it likely that the bullet would pierce the barrel and make it spring a leak?), but here’s another one of those insane overreaction stories, from this morning’s Times – about a six year-old in Delaware.

Zachary’s offense? Taking a camping utensil that can serve as a knife, fork and spoon to school. He was so excited about recently joining the Cub Scouts that he wanted to use it at lunch. School officials concluded that he had violated their zero-tolerance policy on weapons, and Zachary now faces 45 days in the district’s reform school.

For Delaware, Zachary’s case is especially frustrating because last year state lawmakers tried to make disciplinary rules more flexible by giving local boards authority to, “on a case-by-case basis, modify the terms of the expulsion.”

The law was introduced after a third-grade girl was expelled for a year because her grandmother had sent a birthday cake to school, along with a knife to cut it. The teacher called the principal — but not before using the knife to cut and serve the cake.

We can all pretty much agree that this is batshit insane, right? Well, everyone but this guy:

Charles P. Ewing, a professor of law and psychology at the University at Buffalo Law School who has written about school safety issues, said he favored a strict zero-tolerance approach.

“There are still serious threats every day in schools,” Dr. Ewing said, adding that giving school officials discretion holds the potential for discrimination and requires the kind of threat assessments that only law enforcement is equipped to make.

Right.  Only law enforcement officials (a/k/a to cops) are qualified to decide whether a Cub Scout camping utensil is a serious threat to classroom safety.  I am generally a good liberal and all of that, but this is the kind of stuff that makes me want to pull my kids out of the public schools and move to a cabin without electricity  in Montana.

Seriously? It wasn’t “rape-rape”?

Good Lord.  The idea that anyone even has to post in 2009 about this is crazy.  So Whoopi Goldberg and the women on The View put women back another 50 years.  Now a 40 year old man who admitted having sex with a 13 year old girl (oral, anal, and vaginal) after giving her drugs and alcohol did not commit “rape-rape”?!?!?!  WTF?

So — by law you cannot consent to sex if you are 13  — IN ANY STATE.  Also, you cannot consent on drugs and alcohol.  SO by definition there was no capacity for her to consent.  That’s why “sex with a minor” is A CRIME.  Duh.  Sex without consent = rape.

Aside from deciding you can never look at Whoopi Goldberg or Melissa Gilbert without puking a little bit, if you watch the video, you can watch the women ridiculously misuse the word “allegedly.”  There is no “allegedly” about it.  HE PLED GUILTY to sex with a minor.  It was part of a plea agreement – he was charged with rape and pled down to “sex with a minor”.  So um . . . he did this.   He admitted it.

Finally, don’t get me started on the victim not wanting to go forward with this.  The case is THE STATE OF CALIFORNIA versus Roman Polanski.  The state of CA and all of us have an interest in bringing criminal rapists to justice and in hopefully deterring future rapists.

Did I seriously even need to write this?  Is there any possible argument that he should not be extradited?  Is there any argument that this was somehow not rape?  He got away with it for years because he is famous.  But Karma’s a bitch.

And Whoopi Goldberg is an idiot.  Who knew?  Dear Whoopi — great book for you it is called, Real Rape by Susan Estrich.  You can buy it here.

PS — if I have not convinced you, cruise by any middle school and look at a 13 year old girl — they are babies.

What Serena Williams Can Teach Joe Wilson and Kanye West

Inappropriate, unprofessional, and obnoxious outbursts are everywhere (I try to confine mine to my home).

Surely you have seen the clip of Joe Wilson calling Obama a liar in the middle of his speech before Congress (above) and by now you must have seen Kanye West jump up and take the microphone from Taylor Swift when the 19 year old won her first VMA award to say essentially that Beyonce should have won. And, of course Serena Williams lost her temper and her chance to go to the finals at the US Open.

Here’s the thing — THE APOLOGIES! Dear people, this has nothing to do with law, but an apology has 3 elements:

1. apologize genuinely to the person you harmed,
2. say what you are sorry for, and
3. say what you are going to do to make up for the damage you caused.

Here is Serena’s apology:

I want to amend my press statement of yesterday, and want to make it clear as possible – I want to sincerely apologize FIRST to the lines woman, Kim Clijsters, the USTA, and tennis fans everywhere for my inappropriate outburst. I’m a woman of great pride, faith and integrity, and I admit when I’m wrong.

I need to make it clear to all young people that I handled myself inappropriately and it’s not the way to act — win or lose, good call or bad call in any sport, in any manner.

I like to lead by example. We all learn from experiences both good and bad. I will learn and grow from this, and be a better person as a result.

We don’t know what Joe Wilson said to Rahm Emmanuel and maybe he has to write a note since it is not easy to get the president on the phone but

#1: he did not apologize to the person he harmed (Obama for sure and maybe everyone in Congress).

#2: His statement to the press was, “The Republican Leadership told me to apologize and I did.” My Mommy/boss told me to say sorry does not cut it for sincerity.

#3: And I’d like to make it up to you by (helping pass health care we can all agree on, having you over for dinner, sponsoring some other piece of legislation we CAN agree on if it can’t be health care).

Kanye West’s “apology” still said Beyonce’s video was the best. He (or someone who is vested in preserving his career) has removed it from his website, but luckily TMZ captured it as a screen shot so we can have an example of the lamest apology ever.

Serena got it: She had multiple people to apologize to, she named her bad behavior, and she promised to learn from it and try to be a better example in the future. All 3 elements.

Please people – when you mess up, apologize. And when you apologize, get it right. And teach your children. **thank you, this has been a message from the manners police**

Michael Jackson’s Insurance Policy – real life law school question

So  Michael Jackson’s tour company (or promoters or someone) took out an insurance policy for the BIG tour that isn’t. Tours cost lots of money up front and now ticket holders want refunds, the company has probably spent money on payroll for promoters, dancers, and has contracts with venues, etc. So it makes sense to have an insurance policy should the concert tour not come to pass.

I have no idea if this is true, but reports are that the policy does not cover concert cancellation due to “illegal” drug use or “illicit” drug use. So, here is the real-life law school question:  If a licensed medical doctor prescribes and administers you a drug illegally without telling you it is an illegal use of the drug, have you illegally taken drugs? 

The doctor should know that Propofol (or whatever) is not supposed to be administered in a home and without an oxygen saturation level monitor and all the other life saving stuff in case you go into a coma and die, but is it Michael Jackson’s responsibility to know that? Or rather, is it yours? You might imagine that MJ knew he had a drug problem (although denial is a big part of addiction), but if your doctor gave you a drug and administered it to you illegally but he did so in his professional capacity, were you taking illegal drugs?

For the record: I have no idea who knew what or if he really died of Propofol or if this or that doctor gave it to him legally or otherwise — I am interested in the question of the mitigation of your criminal liability when a drug is administered illegally by a licensed professional. And, does Lloyd’s of London have to pay? Great law school exam question. Opinions? What would constitute enough knowledge on MJ’s part to constitute mens rea?

Law School Hijinks

a scene from LB’s alma mater:

Proofreading

I once saw this quote printed on a coffee mug: “Proofreading is the first virtue of a lawyer.” I have no idea who said it, and Google comes up dry, but it’s true. It’s also true that I am an indifferent proofreader, and so I have some sympathy for the woman depicted below. What’s interesting about her sign is that she put a fair amount of effort into designing and lettering it; how in the world did she leave out the “l” that turns our private area public?

This is a funny sign. But the most notable thing about the picture is not the typo; it’s the birther sign in the background. It underscores that the loony right aren’t opposed to health care reform as much as they are opposed to (OK, hate and fear) the health care reformer.

The Uses Of A Yiddish Education

Barney Frank “reverts to his ethnic heritage” to answer a question with a question. (Q: Why do Jews always answer a question with a question? A: Why shouldn’t we answer a question with a question?)

This is how you deal with the loony right — ridicule. I have previously opined that Tina Fey won the election for Barack Obama by opening the floodgates of ridicule that washed away Sarah Palin. It’s a powerful weapon, and the Dems need to use it here, too.

Health Insuarnce as a Protection Racket

I am a partner in a law firm. I have a wife and two kids. I pay 100% of my health insurance premiums. I have a high deductible family plan, which I couple with a tax-deductible health savings account. My family has never reached the deductible in any year — this is good, because it means that we haven’t been very sick. It also means that my family has been paying for its own health care out of the HSA, with pre-tax dollars.

So why do we have health insurance? The obvious answer is that if (when) one of us gets really sick, we will blow through the deductible, and the insurer will (I hope) pay claims. The second thing is that even under my high deductible plan, the insurer still pays for some preventive stuff before the deductible kicks in. This makes sense for the insurer, I guess, since it lessens the likelihood of larger covered claims later.

But the other reason is because even though we are paying for most of our health care out of pocket, we are paying at the lower “negotiated” prices that health care providers charge insurance companies. Only the uninsured minority are charged the “official” prices set by health care providers — Medicare, Medicaid, and privately insured patients typically pay a fraction. Here’s a 2003 WSJ article about the plight of an uninsured young woman — for my purposes, look at the chart at the end, which shows what insured v. uninsured pay for a routine procedure. I bet the differences in price have only increased.

The fact that uninsured patients get (to use a legal term) hosed is not new news. But it strikes me that my high deductible plan has some of the features of a protection racket. I pay premiums every month not with the expectation of ever collecting benefits (although, again, I hope I will if one of us ever gets really sick — that’s where the analogy breaks down), but to avoid the certain very bad outcome of being charged fantastically high prices for routine care — prices much, much higher than providers charge the insured. And “pay or something bad will happen” is the essence of a protection racket.

The serious note — we have a health care system in which the most vulnerable, the uninsured, are charged multiples of what actors with bargaining power — the government and insurance companies — are charged for the same services. So that’s a problem, and it’s one where government intervention is appropriate — the unregulated market is producing socially undesirable outcomes.

Disrupting Town Hall Meetings

So there is a big broo-ha-ha over the libertarians and conservatives disrupting these town hall meetings about health care. Soo. . . I have to say, I don’t care who started it. Organized political protest is our first amendment right. AND, there are rules for public meetings like school board, town hall, and city council meetings. If people are speaking out of turn, they can be removed to preserve the order of the meeting. So duh. Remove them.

Holy Mess

Remember President G. W. Bush? Barack Obama was wrong — there are two Americas, and I don’t want to live in the one in which the President starts wars based on his understanding of Biblical prophesies.