The Considerations

We must convene!

2007-05-02T12:21:00.000-07:00

Friday doesn't work for me, but tomorrow would. Could we possibly arrange that in time?

Otherwise, next week is probably OK, assuming baby L. Hoffart doesn't decide to make an appearance.

Presenting . . .

2007-04-13T10:28:00.000-07:00

. . . my first photo book. I have a copy for each of you guys coming in the mail soon. Then I'll have to hunt you down and force you to accept them. In the meantime you can take a sneak peek here.

By the way . . .

2007-04-02T05:33:00.000-07:00

I passed.

Congrats!

2007-02-28T15:10:00.000-08:00

Kelly!

Congrats on finishing the BAR! I assume there were no problems, other than the ones on the exam. Well done. We must celebrate sometime.

Randy's?

2006-12-08T18:47:00.000-08:00

Are we going to Randy's soon? And, if so, when? And, either way, did you know they have a web site featuring events, (undoubtedly embarrassing) photos, and info on their poker?

Responses?

Incidentally, it seems you need to buy a card there for $20, and you can earn points on it based on how much you spend. You can use those points in the tournaments or use them as credit. That's how they get around gambling laws. Sounds good to me.

Can you argue with this?

2006-11-06T11:26:00.000-08:00

If this rationale wins out in American society, how are we to argue? How do you present scientific evidence of a belief? How do you argue against a universal negative proposition? What are we to do? Or, is this similar to the villiage-athiest-egomanic-syndrome that has always plagued socieity, so there is no need for alarm? Response?

(Link in post)

Obviously...

2006-09-25T12:26:00.000-07:00

Obviously, the slippery slope argument against homosexual marriage is wrong. UPDATE: and wrong (this one is sick)

A neat interview...

2006-09-06T06:26:00.000-07:00

Ok, back in my hometown the radio has a show called "Midwest Opinions". On this show, the host does interviews with people on a variety of issues. Recently, the host interviewed a former member of the Iranian empire. In order to protect this persons family he went by the name of "Bob". Below is a link to the interview, for your consideration.

Here

Where Is John?

2006-08-02T18:55:00.000-07:00

Where Is Everybody?

2006-07-19T09:01:00.000-07:00

I see that Todd has a good new post about a movie he made (which I'd like to see some day if possible). But Jon, Jon, Jon, where the heck are you? I haven't heard from you since that poker night fell through about a month ago. How's the wedding planning going? (Ing Ing Ing--that was kind of awkward. Let's try it again.) How are your wedding plans coming along? (Much better.) Are we going to get another chance at poker night before school starts again?

Just Checkin' In

2006-06-04T20:51:00.000-07:00

Just a note to say, "hey" and inquire about what you guys are doing. Kelly's in class (I cannot believe it is almost over for him), so how's class Kelly? Jon, how is work? I had an interview w/ Wolf, Snowden, Hurd, Luers and Ahl last Wednesday, my third interview. I was a bit naive, arrogant, overly-confident going into this job search thing.

I thought I'd post a note I got from Poser b/c I think it will encourage. I always send thank-yous to my first-year profs (after grades are posted, of course) and got a couple of nice responses this year. One from Duncan and one from her. I've included my note to her as well so you can see what prompted her response.

Professor Poser:

Thanks for a great year! Since I got to drag my first year out over two years, I guess I was doubly blessed. At least that is what I tell myself.

Also, torts is difficult, in case you didn't know. I got an 8 in contracts (you gave me a 5) and will proclaim boldly to anyone who asks that contracts is a cake-walk compared to torts. Right up to the bitter end I could see the cruel taunting "faces" of duty and causation blending, morphing, amalgamating, etc., into one gooey glob that my dull wits could never quite yank apart.

Yet, I somehow find myself longing for more. The blows I took from Hand and Cardozo and Posner and Epstein and you have left sensations not unlike those deep gratifying aches one gets after a good day bending over a vegetable garden.

I envy those brainiacs who get this stuff quicker than I do, but I will never give up. I don't know yet what the future holds for me as far as law practice goes, but I do hope that one day I'll get a chance to prove that even I am capable of proving D,B,C, and $$..

Yours Sincerely,

TM

Todd,

I'm glad you liked the course and that you got something out of it. I
enjoyed having you in the class - it is easy to tell who is truly
interested. Grades are far less important than interest, enthusiasm
and energy, so you'll do just fine. And congrats on Contracts - that is no
small feat.

Have a great summer.

Susan Poser

I thought you guys might like to hear that from a flesh and blood prof., and not just some dubious and/or vapid remark from a stranger. If there is one thing the four of us have in common, it is interest, enthusiasm, and energy. Right?!

How 'bout this: Brandt, Hoffart, Nosov and Morten - Daddy like!!

Grades are up. Let's play poker!

2006-05-20T17:13:00.000-07:00

Hey! Grades are up and I was correct about my performance in Employment law, but life goes on and I guess I didn't do too bad...

Kelly, Tuesday night is cool with Brent if you want to play that night, let me know.

Wish You Were Here

2006-05-12T21:28:00.000-07:00

I got a new camera for my b-day. These are a couple pics I took of the lake by my hometown. Sorry they aren't even close to anything Kelly and Todd do, but, I'm learning.

Double Yikes!

2006-04-28T12:22:00.000-07:00

Refering to the obnoxiously difficult and my unpreparedness for the Employment law exam.

Well, someone has to set the low end of the curve as well I guess...

Yikes

2006-04-26T14:21:00.000-07:00

Referring to the criminal law exam.

2Ls and 3Ls Only Please

2006-04-20T09:07:00.000-07:00

What do we do this time? How about the Friday after finals? A nice joint, like we did last spring? With wives/fiancees. Lemme know.

Search Terms

2006-04-10T10:22:00.000-07:00

Jon, somebody found Full Metal Attorney by searching for FREE SEX PORN MOISE. I'm not sure if they're looking for porn starring you or not. The results said this:
"... because he's doing work for Y doesn't mean that X should get free ... Moise objected on these grounds... I would imagine they have a ... in our culture that men and boys should be allowed to have sex ..."

Randy's

2006-03-11T07:15:00.000-08:00

Had a good time. I give it:

Confirmation Post...

2006-03-06T22:44:00.000-08:00

This Friday at 3:00 in our usual meeting spot in front of the law school. I asked Sergei about it and he said he should be able to, but he might have a make up class (which would suck)...Anyway...just a friendly reminder....

Kelly, Congrats again on the Royal Flush, you can tell your kids about that someday. :)

The Simpsons and the 1A

2006-03-01T09:19:00.000-08:00

Doh!

In need of a Randy's break

2006-02-27T06:40:00.000-08:00

Ok all, I'm am hating this new schedule where I don't see anyone very often! It totally sucks. It sucks so much that I am dying for a beer & burger at Randy's. I request that we get the timing of this sorted out in the comments section. I also request that we get this done before we all run off to the cayman islands for spring break. Or, in the instance of Kelly,before he runs off to Hedonism III.

I'm not exactly sure why I'm posting these . . .

2006-02-15T06:53:00.000-08:00

. . . but it has something to do with the pic Jon posted.

Cartoon Violence; Capitalism no longer elusive road runner

2006-02-15T04:50:00.000-08:00

When I said the violence wasn't over a cartoon, this is what I meant. They do seem to be quite happy about pilaging the icons of the west, though. I guess, part of me has always wanted to destoy a McDonalds as well, so I sympathize.

Blog Explosion

2006-02-13T15:09:00.000-08:00

As Jon already knows, I am participating in Blog Explosion. One of the features is called "Battle of the Blogs," which allows me to pit my blog against other blogs and people get to vote on them. I found out just now that I can't afford to wager too many credits on this. If I do, too many people go in and just randomly click so they can get credits. And the people who seem to like my blog stick around a while, browse, and find out that they're too late to actually vote for me. There are three people on right now that got there through my last challenge--which ended fifteen minutes ago. And they're still browsing.

A rant on U2

2006-02-08T21:33:00.000-08:00

How in the hell are they the best music artists today?

Yes, they are fine musicians and they make nice safe music for nice safe people, but DAMN. It seems as though people are honoring them simply because they are still together not because of any actual musical accomplishment. Case in point...this years Grammy's:

"The rock gods snatched Grammy history from the comeback queen Wednesday, as perennial favorites U2 took home five trophies while Mariah Carey had to settle for three.
U2 won the 20th Grammy of their careers, including album of the year for "How To Dismantle an Atomic Bomb" _ the same disc that earned them three awards last year."

Excuse me? How can they earn awards on the same album for two years in a row? How crappy does music have to be for one group to win "Best album of the year (on the same album)" for two years in a row? They might as well as given it to Green Day for American idiot! I'm bias, but it seems like U2's current album is nothing but a "b-side" collection to their last mega-selling disc.

I simply submit that Weezer's latest album "Make believe" is fall superior to U2's "All of our leftovers that you can leave behind". If not Weezer, at least White Stripes "Get Behind Me Satan" or even Kanye West! I'm pissed. Not at U2, but at an industry that would give them awards for the same album two years in a row. On a similar tangent I think that U2 should take a lesson from the Rolling Stones and exit the industry on a high note rather than looking like a geriatric/mummified version of their former cool selves. The music shold be preserved for future generatations, the artist should leave the stage gracefully.

"It's better to burn out than fade away" - Mr. Neil Young

News Flash!

2006-01-31T14:59:00.000-08:00

Alito confirmed!

Let's spruce this place up with a Nerdy Time

2006-01-26T21:20:00.000-08:00

Ok guys, this latest edition of nerdy time is based on a sad story (like most torts hypotheticals) and is meant to resemble a first year Torts hypothetical. I thought it was interesting and was wondering what other peoples take on it would be.

You have 1 hour to complete the exam. You may not consult any other materials besides the casebook or an outline that you substantially prepared on your own or with a member of the class. When time is called, stop writing. Writing beyond the time allowed is a violation of the honor code.

You may begin. Good luck.

You are a first-year associate at Gigantic & Huge L.L.P. here in Fakeville, State of Allen. Mr. Bigcheeseparterner comes to your office one idle Friday afternoon and states that they have this Torts issue with ACME Inc, a huge trucking company, and he can't help at all because his main area of expertise is business transactions. He wants you to write a memo discussing the rights and liabilities based on the following factual scenario.

(For your convenience, he has stated that he doesn't need it until 4:00 p.m. It is now 3:00 p.m., which gives you exactly one hour to create the memo based solely on your extensive knowledge of Tort Law.)

While driving truck for Acme, Inc, Dick Driver was involved in an automobile accident. He ran into a father and his 7 children while they were parked behind a school bus on a narrow stretch of highway in central Allen. All of the van's occupants died at the scene.

The investigative reports indicate the following facts:

The accident occurred at 11:12 a.m. The weather at the time was partly cloudy, but there was no rain and the street was dry. The speed limit on the two-lane highway was 60 mph. The School bus was stopped in order to drop off three children.

Kurt Childs, a 15-year-old boy with a learning permit, was the driver of the mini-van. . His father, Arthur Childs, was located in the rear of the mini-van in order to take care of his 6-month-old daughter, Anne Childs, who recently developed terminal cancer. Also, he wanted to keep a close eye on the other five children in the car. They ranged in age from 2 years to 12 years. With Billy Childs, being the second oldest boy. Jean and Bobby, "the twins" who just had their 9th birthdays. At 5 is, Nancy Childs a precocious tot who dreams of being a dancer. And the two-year-old Jimmy, a wide-eyed toddler who was playing with his new Dora the Explorer flashlight at the time of the accident. Allen law requires a driver with a learners permit to have an adult in the adjacent seat.

Mr. Driver was driving a load of eggs for Acme from Fakesville down to Nowheresville, Allen. He has stated that he was driving around 55 mph and the in cab recording instruments indicate that this is true. Mr. Driver has had 7 driving related citations over the past 12 years. The most recent citation was for speeding 10 mph over the posted limit. However, 6 years ago, he received a drunk driving citation while operating his truck for Spacely Inc. (Acme's rival trucking company).

On the morning of the accident, Mr. Driver had been on the road for 12 hours and was 1 hour away from his drop off. Allen law proscribes that truck drivers are only to drive for 12 hours without a break.

Mr. Driver testifies that he was adjusting his CB radio when he looked up and saw the van parked, but didn't notice the school bus. He further states that he honked his horn prior to slamming on his breaks. He stated that he was hesitant to forcefully apply the breaks because he didn't want to ruin his load of eggs. He went to apply the breaks, but was too close. The next thing he remembers is the face of the emergency personnel who arrived after the crash.

Mr. Driver was not the only witness to the event. One of the three 8 year olds who were getting off the bus witnessed the horrifying scene. Tate Newhouse describes a truck flying down the road and then honking his horn. He describes the truck as slamming directly into the back end of the van without slowing down at all. He says he doesn't remember much after that. He says he remembers the faces of the kids playing and then the blood. He is obviously in a state of shock over the incident and will require years of therapy to recover.

At 1:37 p.m. the grandmother of the children, Nancy Armstrong, was informed by her daughter, Sally Childs, that her entire family was killed in a car accident. Upon hearing the news Nancy suffered a fatal heart attack and died. Nancy was a Cardiologist at Allan State Hospital.

Please discuss Acme's rights and liabilities relating to the ineveitable lawsuit that will be filed by Sally Childs on behalf of her family and grandmother.

Jeff Buckley

2006-01-20T15:42:00.000-08:00

Todd,

I've been listening to him and I find him amazing and I just wanted to say thanks for turning me on to him.

I've been looking around and it seems he has a album called "mystery white boy"? Is that true?

I guess we won't be seeing much of eachother this semester. That sucks. I trust your classes are going well.

Did you grow a fu manchu? It looked like it when I saw you in Property the other day? How's crim law going?

Anyway...later dog

Vote Pitts

2006-01-20T07:01:00.000-08:00

It looks like they're starting voting today for professor of the year. I'll vote Pitts. You would too, if you were a true American.

Literature Review on Jury Decision Making

2006-01-17T14:40:00.000-08:00

by Kelly Hoffart
for CTA-399
December 15, 2003

Literature Review

The American practice of trial by jury is central to our idea of justice. The Seventh Amendment of the Constitution states, in part, “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.” It is sufficient to believe that since this is one of the original ten amendments that even the founding fathers believed that it was essential in order for true justice to be served. But why do we see it as such an indispensable factor in serving justice? Do they really make better decisions than judges? How do they make their decisions? And what factors affect their decisions?

In jury trials, there is still a need for a judge to moderate the trial and to make sure that the laws for trials are being followed. But this can have unwanted effects. A judge’s apparent bias can affect the outcome of a trial (Blanck, Rosenthal, & Cordell, 1985). And the influence of the judge is not necessarily overt, it is usually manifested in much more subtle ways. Blanck, et. al. (1985) says, “trial judge’s expectations for trial outcome can predict the manner in which the judge delivers instructions to the jury...and may predict and possibly influence the outcome of jury trials” (p. 92). Their expectations may also influence the courtroom climate (Blanck, et. al. 1985). Blanck, et. al. (1985) found that the defendant’s record relates to the degree of nonverbal influence exhibited by judges, although this is often information that the jury is not allowed to see. This is especially complicating for appeals, because non-verbal behavior is not recorded, and appeals courts usually only look at transcripts of the trial.

So, since judges influence the outcome of the trial anyway, why not skip the jury? Do they really make better decisions? A major assumption is that putting six to twelve people in a room together to solve the problem will come up with a better solution than the average of the whole group (Ellsworth, 1989). However, there are many critics of jury trials, especially in civil cases (Vidmar, 1989). One of the problems that critics often cite is that the better educated jurors and jurors with expertise pertinent to the case may be excused from the case or challenged during voir dire (Ellsworth, 1989), thereby making the jury incompetent. But, these critics rarely put forth a standard for competence (Ellsworth, 1989).

Would a judge make a better decision? Vidmar (1989) found that juries reached the same verdict as a judge would have on his own in 78% of 3000 cases. In cases of discrepancy, the jury will be more likely to favor the defendant, and isn’t it better to let a guilty man free than to imprison an innocent one?

So, since we’ve established that juries do make decisions at least as good as a judge’s, then we need to understand how it is that juries make their decisions? A common answer to this question is that jurors create stories (Diamond, Casper, & Ostergren, 1989, Ellsworth, 1989, MacCoun, 1989, Pennington & Hastie, 1986). Pennington and Hastie (1986) found that evidence is evaluated as it fits into a plausible story, and any gaps between testimonies are filled by a plausible story. The stories themselves are based on cause-effect reasoning (Pennington & Hastie, 1986). Ellsworth (1989) found that “deliberation seems to work quite well in bringing out the facts and arriving at a consensus about their sequence. Errors are corrected, and irrelevant facts and implausible scenarios are generally weeded out” (p223).

So, the jurors rarely disagree on the facts (Ellsworth, 1989). The relevant issue at hand is the law. The stories themselves are directly related to elements of possible verdicts (Pennington & Hastie, 1986), and the verdict is specifically how the law applies to the facts. Votes are only likely to change when discussing the law, and, though they take the law seriously, juries may not be able to understand it (Ellsworth, 1989). The jurors may also act as a mediator between the law and the norms of the community (Diamond, Casper, & Ostergren, 1989). According to Reskin and Visher (1986), “facts and values in a trial are intertwined in jurors’ decisions” (p. 435). Is not applying only the law a problem? Possibly not, as the writers of the Constitution undoubtedly intended jury trials to partly balance community norms with the law.

But the verdicts may not be important if the stories are biased. Pennington and Hastie (1986) brings up a relevant problem: do the jurors construct a story and then decide a verdict, or vise versa? The first vote of the jury almost always determines the outcome of the deliberations (MacCoun, 1989), in fact, this is true in over 95% of cases (Tanford & Penrod, 1986). According to MacCoun (1989), conformity pressure is a major issue in jury decision-making. This finding was corroborated by Tanford & Penrod (1986). At least the jurors that want to acquit have more leverage (MacCoun, 1989), so they should be more likely to err on the side of “not guilty.” And there are other undesirable factors in jury decision-making, although they are more important when the prosecution’s case is weak (Reskin & Visher, 1986).

One of these is the attractiveness of the defendant. Darby and Jeffers (????) found that defendants that are more attractive are convicted less often and punished less severely, since the jurors see them as being more trustworthy and happier. The jurors’ own attractiveness interplays with this effect. Unattractive jurors punish unattractive defendants less severely, since they feel they have something in common, while all jurors seem to favor attractive defendants (Darby & Jeffers, ????). In effect, this makes moderately attractive defendants the most vulnerable to severe sentences. But this is not any different from a judge’s decision, as they are also affected by the attractiveness of the defendant (Downs & Lyons, 1991).

Jurors are also prejudiced racially. Gordon (1990) found that jurors are more likely to view the cause for the crime as an internal one if it matches demographic stereotypes, i.e. blacks are more likely to commit armed robbery and whites are more likely to commit fraud. This causes them to recommend longer sentences. And the juror’s own race affects their sentences. Overall, “black subjects...gave significantly longer sentences regardless of defendant race” (Gordon, 1990, p. 981).

Prior juror experience is also an unwanted factor in the process of jury decision-making. Himelein, Nietzel, and Dillehay (1991) found that juries with more experience tend to give harsher sentences. They believe that this could be caused by a loss of their belief in the concept of “innocent until proven guilty.” Previous experience with the prosecutor (they are more likely to see the same prosecutor multiple times than the defense attorney) may also cause the jurors to trust him more. Not only that, but when they become more familiar with the judge’s instructions, they are more likely to disregard them (Wiener, Habert, Shkodriani, & Staebler, 1991).

One of the ways that courts try to reduce jury bias is by blindfolding the jury to evidence that would be “unduly biasing” (Diamond, Casper, & Ostergren, 1989, p. 248). They may also blindfold the jury to parts of the law, as in 50% rules for comparative negligence cases and trebling rules.

Review of Methodology

The major problem with jury research is methodology. The Supreme Court has ruled that it is illegal to make any recordings or observations of actual jury deliberations. This has led to major complications in getting externally valid results from jury research. Many researchers have avoided this by simply comparing the results of jury deliberations with other factors, leading to high validity but to low understanding of the actual deliberation process. Other researchers have found ways to create artificial jury conditions, which leads to a good understanding of the process but to low external validity.

Tanford and Penrod (1986) used actual trial videotapes and videotaped mock juries in groups of six. They used content analysis and self-report measures. The juries were allowed one hour to deliberate.

Using actual trial videotapes does a great deal to improve external validity for the study. An artificial trial situation would have almost no external validity whatsoever. There is almost no other alternative to using this method. The only major disadvantage is that it is still not an actual trial, so the jurors may not take it as seriously, but there seems to be no way around this. The content analysis seems to be well-implemented, and the self-report measures are a valid measure of juror certainty. The major problem with this study is that they only allowed one hour for deliberations. If the jurors would be willing to spend more time, then the researchers should allow it to improve external validity, as a normal jury would not be so limited. This is the most important mistake that the researchers made.

Wiener, Habert, Shkodriani, and Staebler (1991) used summaries of trial transcripts, in which they changed some of the included information for different groups of mock jurors. They administered self-report measures to measure the jurors’ decisions.

The use of summaries of transcripts leads to less external validity. In this case, it is almost necessary, however, because they were adding and removing different elements to the case to find effects of each element. It would have been better to use trial videotapes and edit them to show the desired elements. Using a self-report questionnaire seems to be good to find out individual juror differences, but it does not show us anything about how this works in real deliberations, since the jurors were not even asked to deliberate. This study would have benefited from videotaped and content coded deliberations that would have taken place after all the elements in the original study.

Reskin and Visher (1986) coded trial data in actual trials, and interviewed the jurors for each of these trials. This seems to be an externally valid study. Since they used actual trials and the jurors for those trials, there are no problems with validity in this regard. Interviews are preferable to any other self-report measures. This study represents the most externally valid of all research designs legally available. The only weakness of this study is that the actual deliberations could not be observed, and so it is still difficult to test the actual deliberation process.

Darby and Jeffers (????) generated used mock cases and self-report measures to test their hypotheses. This is a perfect example of what to avoid in testing jury decision making. Completely mock cases may have no external validity whatsoever, and the offenses contained within the mock cases were not realistic since none of them would result in an actual jury trial. They would have been better off using real court transcripts for the purpose of this study. The self-report measures without any deliberations provide little validity in the results, since there could have been some change in opinions during the deliberation process. They should have proceeded with a deliberation process and re-administered the questionnaire afterwards.

Himelein, Nietzel, and Dillehay (1991) used actual trial information, including verdicts and sentences. This type of study has no problems with external validity, and is excellent for finding overall trends. This type of study, though valid, can’t tell us anything about the actual process of jury decision making, and is difficult to control for specific variables without enough trial information.

These studies cover the variety of research methods employed in studying jury decision making. They highlight the best and worst of all methods and their relationship to external validity. They also point out the need to consider what the study is meant to determine in creating a research design. If the research is intended to study the deliberation process, mock jurors are needed and the participants should go through an actual deliberation process. If the research is intended to find trends without studying the process, actual trial data is needed, et cetera. But two things must be true to ensure external validity: actual trial data needs to be used, and deliberations cannot be ignored. Any use of summaries of transcripts or of artificial trials are the biggest threat to validity, and videotapes are preferable to transcripts. Self-report measures cannot replace the deliberation process, as a number of important things happen during this process. If at all possible, actual trials and jurors should be used.

I would actually recommend that the Supreme Court reconsider their ban on recording deliberations. They would simply have to set up a method to approve research and to protect the jurors. If this were possible, then truly valid studies of jury decision making could be conducted, and we would understand what happens in the deliberation room. Until then, my recommendations should be followed in any research on the subject.

REFERENCES
Blanck, P. D., Rosenthal, R., & Cordell, L.H. (1985). The appearance of justice: judges’ verbal and nonverbal behavior in criminal jury trials. Stanford Law Review, 38, 89-151.
Darby, B. W., & Jeffers, D. J. (????). The effects of defendant and juror attractiveness on simulated courtroom trial decisions. Society for Personality Research, ??, ???-???.
Diamond, S. S., Casper, J. D., & Ostergren, L. (1989). Blindfolding the jury. Law and Contemporary Problems, 52, 246-267.
Downs, A. C., & Lyons, P. M. (1991). Natural observations of the links between attractiveness and initial legal judgments.PSPB, 17, 541-547.
Ellsworth, P. C. (1989). Are twelve heads better than one? Law and Contemporary Problems, 52, 205-224.
Gordon, R. A. (1990). Attributions for blue-collar and white-collar crime: the effects of subject and defendant race on simulated juror decisions. Journal of Applied Social Psychology, 20, 971-983.
Himelein, M. J., Nietzel, M. T., & Dillehay, R. C. (1991). Effects of prior juror experience on jury sentencing. Behavioral Science and the Law, 9, 97-106.
MacCoun, R. J. (1989). Experimental research on jury decision making. Science, 244, 1046-1049.
Pennington, N., & Hastie, R. (1986). Evidence evaluation in complex decision making. Journal of Personality and Social Psychology, 51, 242-258.
Reskin, B. F., & Visher, C. A. (1986). The impacts of evidence and extralegal factors in jurors’ decisions. Law & Society Review, 20, 423-438.
Tanford, S., & Penrod, S. (1986). Jury deliberations: discussion content and influence processes in jury decision making. Journal of Applied Social Psychology, 16, 322-347.
Vidmar, N. J. (1989). Empirical research and the issue of jury competence. Law and Contemporary Problems, 52, 1-8.
Wiener, R. L., Habert, K., Shkodriani, G., & Staebler, C. (1991). The social psychology of jury nullification: predicting when jurors disobey the law. Journal of Applied Social Psychology, 21, 1379-1401.

Ah...satisfying smoke and wind

2006-01-07T11:27:00.000-08:00

I too am satisfied with my grades...Especially because I kept up a pretty healthy social life last semester which I didn't my First year...Congrats to all of you...It's nice to know they won't be able to kick us out for a while. My ConLaw grade didn't live up to my (or Todd's) high expectations, but I at least am deemed competent! :)...

See you all in a couple days and Kelly we need to decide what we want to do about Poker night :)...

Yes! I have been upgraded from "Nitwit" to "Competent" (Alas, not "Expert")

2006-01-07T08:31:00.000-08:00

And congrats, Kelly, on solid tax grade! You are an inspiration.

2006-01-07T05:52:00.000-08:00

Grades are finally up on WAM. You guys may have been right about how I would do in Con Law and Evidence, but the best news of all is a freakin' B in Tax. I don't know how that happened.

Good Movie

2006-01-01T15:00:00.000-08:00

Jon, (and Kelly, too)

I'm not sure you are checking your blog so I post this here as well.

Check out a movie called "Happy Accidents" - at the Blockbuster on 16th downtown.
I know you will like it. Only 7 days left!

Merry Christmas!

2005-12-25T12:03:00.000-08:00

This is me in my father-in-law's new welding helmet. It was quite interesting to wear. Everything looked green through the panel, and when the cameras flashed it turned black so quickly I couldn't even see the flash. Not only that, but it looks pretty badass.

2005-12-10T15:53:00.000-08:00

Merry Christmas? --- Who thought this was a good Idea? Anyone?

Traditions

2005-12-09T16:11:00.000-08:00

We are going to meet at Randy's after the ConLaw torture chamber, yes?

Welcome to the 1990s

2005-12-02T18:21:00.000-08:00

Let me get this straight before I sit down to my first exam ever on a laptop.

I'll be using Exam4. All I gotta do when I'm finished is click it away, right? I don't hafta print it or nothin'?

Please, someone, let me know.

Friends, Nebraskans, Countrymen...Finals means War!

2005-11-30T21:38:00.000-08:00

To Sir Todd and Sir Kelly/Jell-o,

As I get prepared to lock myself in my office for two weeks staring at outlines and worrying about my future as an attorney, I thought I would take this time to wish all of you best of luck on your finals.. And a Merry Christmas thereafter...

God bless.

And Kelly, try not to set the curve to high in Evidence ok? Please? Just miss a couple for me...Alright? You could have so much fun by being an absolute genius on portions of the exam and then on, like, two questions make up outlandish answers like "Section 666 Subsection Purple of the Federal Rules of Evidence requires that the Defendant present otherwise inadmissible evidence in the form of a writing made with a Sharpe Magic Marker on the Outside of a newly ripe yellow chaquita banana; otherwise it will not be considered and he will be deemed to have waived any confrontation clause privileges" -- I double dog dare you...

Just kidding...

Seriously though...Good luck to both of you and Remember that each final you take is one less instance of when you can be assured that someone is reading your legal writing :)

Much Love,
Jon

A Meaningless Observation?

2005-11-28T12:23:00.000-08:00

In Torts we talk a lot about money. In Contracts we talked more about what is fair.

Nerdy Time

2005-11-16T16:00:00.000-08:00

Sometimes a slippery slope argument is the most rational argument.

I remember being chastized for going against a lawsuit alleging that a ten commandment display in a public square violated the constitution by saying that the better and more broad claim would be against our nations Coinage and national Motto..."In God We Trust"...

I was told that would not happen and my slippery slope argument failed to address the question properly...

Well...here ya go undergraduate debate person who accused me of an "outlandish" hypothetical....

Class today did get me wondering and I'd like to continue the discussion here if I may.

"If marriage and sodemy are protected under the fourteenth amendment, why not Pologomy?"

Why not Beastiality? Why not Incest? Further, with genetic engineering, would I be disallowed from creating a genetic copy of my wife and than marrying her when she turns 18 after raising her as my daughter?

(Of course this is all purely hypothetical)

Don't we have to draw the line somewhere? And shouldn't the people's power of the polls be the correct place to draw the line?

Just wondering...Please get Nerdy on this stuff...

Who Says Tax Lawyers Are Boring?

2005-11-10T12:56:00.000-08:00

[T]he Supreme Court decided that a newspaper could depreciate its customer list upon a factual showing that the list had an ascertainable useful life (because customers on the list would die, move away, complete the training of their puppy, or otherwise drop their subscriptions, in a statistically predictable manner).

Heh. They “complete the training of their puppy,” and so don’t need a newspaper subscription anymore.

2005-11-08T09:39:00.000-08:00

Be it enacted . . .

Relevant

2005-11-07T12:34:00.000-08:00

Nerdy Time - In the spirit of the McLaughlin group (PBS or SNL anyone?)

2005-11-02T19:29:00.000-08:00

Question:

"Is Justice Scalia merely a reincarnation of Justice Harlan? Why or why not?"

Sub question: "Is it better to burn out or fade away?" (i.e. O'Connor v. Rehnquist (R.I.P.))

Sub-Sub Question - "What (really) is the compelling state interest in regulating advertising by optometrists/opticians?" See Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 75 S.Ct. 461 (upholding, inter alia, as constitutional a statute that made it unlawful "to solicit the sale of...frames, mountings...or any other optical appliances.").

DISCUSS!!

Trivial Trivia: Abe Lincoln appointed 5 Justices during his time in office. Taft got to appoint 6. Roosevelt got to appoint 10. Poor Carter didn't get to appoint any. :(

Duck, Duck, Duck, Duck....Alito!

2005-10-31T18:28:00.000-08:00

Welcome your Honor,

I'm going to say there's a 95% chance we'll be reading you soon....
Provided you never donated money to a hate group and you can get your mother to stop talking to reporters...

(Former Drudge Headline "[Alito's] Mom: Of Course he's against abortion"...[Alito quietly responds: "Mom, you're embarassing me!])

I am still racked with disapointment that GW didn't go with the sure thing that is "Justice Tron"....

Goodbye Harriet! Hello Tron!

2005-10-27T07:43:00.000-07:00

Goodbye Ms. Miers...we will miss considering you.

However, you made the right decision.

Goodbye Miers, Hello Justice Tron!

Justice Tron is a perfect pick for the Bush administration. He is beyond qualified with a JD and MLS from Yale. Argued in front of the Supremes 48 times. Spent 12 years on the D.C. Circuit bench. He will rally Bush's conservative base with his strong oposition to Roe v. Wade and Lawrence v. Texas. The only drawback could be that he insists on wearing his glow in the dark laser tag skin tight yellow jumpsuit. Will the Dems attack him for his style of dress? Stay tuned.

Template

2005-10-26T12:38:00.000-07:00

I changed my template over at FMA.
Make sure to let me know what you think.

First thoughts on Jude (the musician, not the book of the Bible)

2005-10-21T17:16:00.000-07:00

Jon, I listened to the Cd you gave me on my way home this afternoon. The Cd and the Nebraska countryside at dusk made for a nearly perfect driving experience.

He reminds me a little of Jason Mraz, for whatever that is worth.

For me the highlight is the first song; very nice, nearly brought me to tears. "Sometimes I call my lady, 'Mama', so I can feel at home for awhile." Love it. Superb voice and I can see why you thought of him when you heard Jeff Buckley.

I also enjoyed the Bread cover.

It has definitely found a permanent home in my CD holder.

And, sorry again for posting this here. Oh, well, maybe it will draw comments from around the world.

The Supreme Court's Hypocrisy

2005-10-19T08:40:00.000-07:00

For tomorrow, we have to read a case in which the Court depends upon Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872.

Then it struck me. In Smith, the Court held that laws which abridge the First Amendment's right to religious freedom would not be subjected to the strict scrutiny test. In fact, under Smith it is unclear when they would ever overturn a law as applied to a religious establishment, unless it violates another constitutional prohibition.
But in Roe v. Wade, a law abridging the "constitutional" right of privacy is subjected to strict scrutiny, and can only be upheld based on a compelling state interest.

The question: what kind of people are on the Supreme Court, that they give greater protection to a right that they find implied in several different places in the Constitution than they give to a right that is explicit in the text of the Constitution?

What kind of f***ing jurisprudence is that?

This is not to say that I think abortion should be illegal. Maybe it should, and maybe it shouldn't. But isn't this disparity a little confusing, and a bit suspicious?

Ah yes....

2005-10-18T16:39:00.000-07:00

You are very wise young grasshopper, but answer me this query...

Is "The Simpsons" without Moe's Bar still "The Simpsons" ?

Homer: mmmm....Duff Soda?

The Mailbox Rule

2005-10-14T13:31:00.000-07:00

I have no idea what song they're referring to, but I thought this was pretty cool.

Star Trek and Steven Spielburg

2005-10-12T11:14:00.000-07:00

I doubt anyone here watched Star Trek...It's pretty nerdy, but ST:TNG had something called the "Hol[o-]deck"...it looks as though Mr. Spielburg has brought some device back from the future...

Here..

It looks as though Steven Spielburg (Director Genious) has invented a machine...some sort of magic box that will soon be the newest trend...

EDIT - I always thought it was "holideck" because they used it for a "holiday" or "Vacation" - What a fool I was...Thanks for the correction...

Helping Harriet Miers...

2005-10-10T13:59:00.000-07:00

Help is being offered to Harriet Miers as she begins the intensive study of Constitutional law.

I was thinking, watching her confirmation and preparing responses to their questions might be a good review of Con Law thus far.

Sen. Specter: Ms. Miers, what, in your view, are the basic tenents of the Supreme Court's prudential standing doctrine?

Ms. Miers: Um...I'll have to check my outline.

Site Traffic & Abortion

2005-10-10T07:02:00.000-07:00

You guys are going to love the post I made on abortion over on my other blog. As a side note, I think it was the best thing I could have done for the traffic on the blog. One of the Blogs of Note on Blogger was The Language Guy, and I linked to my post in the comments of one of his abortion posts. I was hoping that a few people would follow it. Not only did more than just a few people follow it, but he linked to it in one of his main posts. That (and the wasp post) make me feel like I have new direction for my blog.

Baseball v. Property

2005-10-07T11:30:00.000-07:00

Is a Baseball stadium and an Apple Pie factory more Amercian than property rights?

here...

This is scary because the landmark takings decision last year will make this kind of...well...basically thievery...to become more common.

Thus undermining our ability to own and use our own land. Thereby nullifying the property rights among the populace. Creating a corporate swell of businessman who will thereby take power away from the people and undermine our democracy...wait a second...maybe it's too late...

Buzz Cola :)

2005-10-06T13:30:00.000-07:00

=

Kelly, I hope you're ok.

I sent you the notes from today's class...hope they're ok.

And just in case you're interested...

2005-10-03T16:18:00.000-07:00

Harriet Miers blog....here

Good luck? There is about a 50% chance we'll be reading you soon.

2005-10-03T06:18:00.000-07:00

Congrats (Perhaps) future Miers J.

This is going to be a really tough battle for Bush. I think the Dems have some definite rocks to through at this Nominee and with Bush's approval rating so low they might just whip out the old Filibusta on this one. Anyway, she has never served as a judge in any capacity before their nomination to the Supreme Court which I've heard is similar to Rehnquist and Warren. It's odd that those people have been the most influencial stewards of the Court in the past 75 years.

Speaking of Abortion . . . again

2005-09-30T08:26:00.000-07:00

Here is an interesting discussion of the abortion controversy from a communications perspective (this was my undergrad major). He started off with an excellent introduction, but then it went off on a tangent to explain the Sapir-Whorf Hypothesis, with which I was already well-acquainted, and then never got back to what the introduction promised. Still, definitely worth a read.

Welcome, be reading you soon

2005-09-29T11:55:00.000-07:00

Speaking of Abortion

2005-09-29T08:16:00.000-07:00

This is kind of crass, but I believe it makes the point...

Here...

If Satanists will even believe that a fetus is alive what does that say about we Americans?

Resolution...

2005-09-29T07:46:00.000-07:00

Who says the government doesn't respond quick enough?

Butter Knife

I think we can be a little proud today because we Freedom fighters have released this boy from the clutches of a day off of school....wait... :)

Thanks for taking such a (buzzword warning) proactive approach to this situation....If you find anything else we can mobilize let me know....I think our law school community would benefit by being more involved in issues like this...or at least knowing that they exist...

It is a huge contrast when we read cases every day about people being assaulted or murdered and getting off on a "technicality" but this kid would have been permenantly punished (having the zero tolerance violation on his permenant record) because of a technicality....which doesn't make any sense...

2005-09-28T07:26:00.000-07:00

Write to the Omaha School Board about this travesty.

2005-09-27T11:21:00.000-07:00

You can't get married if you're already married.
That's the legal loophole that has led Virginia authorities to drop bigamy charges against Charles Hicks. Court records show he was married to seven women over the last 40 years.

Officials say he got hitched three times while married to someone else. But under Virginia law, the marriages are invalid. Hicks later divorced wife number-five and officials say therefore, his marriage to wife seven is legal.

However, prosecutors say they may file additional charges.

The 61-year-old Hicks is a former Naval Postgraduate School administrator and now works for the Army Publishing Directorate.

Got it here.
I, for one, find this exceedingly interesting. Does this make Virginia's bigamy statute useless in that it's a law that's impossible to break?

NOLA: Defining the Need for the 2nd Amendment

2005-09-23T08:23:00.000-07:00

Today, the National Rifle Association (NRA) filed a motion in United States District Court for the Eastern District of Louisiana seeking a temporary restraining order to block authorities from confiscating law-abiding citizens’ firearms in the aftermath of Hurricane Katrina.

NRA statement
After reading it, you know, I have to agree. This is, in my mind, the one time when it is absolutely necessary for law-abiding people to be allowed to have guns. I've heard horror stories about gangs kidnapping, raping, and then killing women, and because people are unarmed they can't do anything about it. And the New Orleans police want to take all the guns away from the law-abiding people, not realizing that the lawbreakers are going to be the only ones to have guns after this order is carried out.

"At a time when 911 is non-operational and law enforcement cannot respond immediately to calls for help, people have only the Second Amendment to protect themselves, their loved ones and their property,” said NRA Executive Vice President Wayne LaPierre.

What do you guys think?

2005-09-21T12:25:00.000-07:00

Is the banner fixed? Let me know.

Another dumb gas warning...

2005-09-21T11:28:00.000-07:00

Fill your car with gas this week....because next week might really suck...

Barrister's Ball

2005-09-21T11:10:00.000-07:00

Anybody going?

I think it might be fun...I didn't go last year...

Plus, Mimi really likes shopping and she would enjoy the opportunity to search out "the best" cocktail dress....

4th Amendment

2005-09-20T12:03:00.000-07:00

The Supreme Court’s 4th Amendment jurisprudence is completely retarded and confusing. You don’t need a warrant to search a person when you arrest them, but if you find a pack of cigarettes on him you can’t look in it without a warrant. You don’t even need to arrest a guy before you can search his entire car after he violates a traffic law, but if you find a bag in it then you have to get a warrant. You can take the bag until you get a warrant, though (wouldn’t it be easier on the person if you just searched him and let him be on his way/arrest him?). If you arrest a guy in his house, you can search his immediate vicinity for any weapons or contraband. You can even do a protective sweep of the house to look for people. But you can’t search the rest of the house, even with probable cause. You can look at a TV in plain view, but you can’t read the serial number on the back. If you arrest someone in their house, then you can “secure” the building until a warrant can be obtained, even if that may take 19 hours. Isn’t this an even bigger intrusion on privacy than searching the damn place, especially when you just arrested the guy? If a guy violates any traffic law, then you can pull him over and look around. Even if you have a warrant, it might be no good just because you filled in the wrong blank on it.

You know what, I have no idea if any of that is absolutely correct.

And the only remedy for 4th Amendment violations is exclusion of illegally obtained evidence. So only criminals benefit from it. They justify this on the grounds that it encourages police to obey the Amendment, but at what cost? And what can regular people do about it when their 4th Amendment rights are violated? Absolutely nothing.

A Clear Abuse (by me) of the Blog

2005-09-19T07:33:00.000-07:00

Sorry, but I was cleaning out my emails and I failed to leave one of Kelly's; I have to "email" through this blog. Jon, feel free to pipe in on any subject related or otherwise to the content of this note to Kelly.

I was wondering if Kelly looked at the video I gave him (Water and Rocks). Also, if he gave a listen to those Rush albums I suggested. Afterwards I began to think that "Fly By Night" would have been a better one from the '70s. See 'ya Wednesday.

Lame Joke

2005-09-17T18:05:00.000-07:00

Ok, Here's the set up...the punchline will be in the comments....

What's George Bush's Position on Roe vs. Wade?

(Be prepared it's lame)

New Banner

2005-09-16T18:13:00.000-07:00

I modified the banner using Javascript. Reload the page or click on the picture to see all three. I may add more as the mood hits me. Comment in this post for further people who should appear in different banners.

2005-09-16T10:14:00.000-07:00

Nerdy Time

2005-09-15T06:08:00.000-07:00

The question for this week is:

"Should New Orleans be rebuilt or should the people be relocated?"

Sub Question: If the country were to disallow any rebuilding effort in favor of
relocation is that a taking that requires compensation under the
Constitution?

Before you answer, you might find it interesting to take a look at an economic analysis recently posted here and here by a man we law students know and love, Judge Richard Posner...

Interested on your thoughts...

2005-09-09T07:41:00.000-07:00

Laura Bush and an unknown child attend a classroom performance by a sans make-up "KISS"...obviously the child has been to a concert before...

Can't Chew Gum and Walk at the Same Time

2005-09-08T16:45:00.000-07:00

Could either of you send me any notes you took from Lujan v. Defenders of Wildlife on? I cannot take notes and talk to a professor at the same time.
Muchas gracias.

Property-Type Constitutional Question

2005-09-08T13:36:00.000-07:00

I posit a theory: if the Emancipation Proclamation happened today, would the plantation owners have had a suit against the federal government under a taking theory?
Should they have had a claim in 1865?

A public service...

2005-09-01T15:19:00.000-07:00

Here's a site that list's Lincoln Gas prices...Here

This public service brought to you by "blogger" and the letter "T"

2005-09-01T13:34:00.000-07:00

Here the link to Google earth

2005-09-01T06:26:00.000-07:00

Now we're talking! $120 to fill my car with gas....I can't wait!

Worst Album Covers of All Time

2005-08-29T09:01:00.000-07:00

Here
These are hilarious. Check out the slide show.

Sad...

2005-08-25T17:04:00.000-07:00

A Sad story I thought we might comment on...Here

On a completely different note. Todd, could you post the name of the "Property" Blog for Duncan?

Thanks.

Nerdy Time

2005-08-23T22:44:00.000-07:00

Ok, welcome to the first weekly post of "Nerdy Time". This is an opportunity to ask a question and post responses to a various "Nerdy" (usually law school related) topic.

This week, we will start with something simple.

What's your favorite article and/or section of the Constitution of the United States of America?

Missed ya Todd Boy

2005-08-22T20:27:00.000-07:00

Hey,

Just wanted to say thank you to Sergei and his wife for the lovely evening of bocce ball, pictionary and booze. Great time. Sorry ya missed it Todd! How are classes going? You did switch so you have class during the begining of the week right?

Books...

2005-08-19T14:59:00.000-07:00

Hey ya'll...

I just got my books...

I believe there is a direct coralation between weight of the books and ease of the class...However, not in the way you would surmise...

The more difficult classes are in fact...Lighter! while the easier concepts to grapple with are hidden between thick volumes of dead trees...

Anyway...Just a thought...Also...How do you write 1172 pages on election law without repeating yourself?

2005-08-18T00:53:00.000-07:00

Is this good news?

I received a phone call yesterday from the powers that be informing me that I and a few others are being permitted to enroll in Con Law meeting on R and F. Great!

But wait. That means I would have to switch Properties to avoid a timing conflict, and that means being at school 5 days a week instead of 3. Yikes. I may just do it though to snag the extra hours

Where be ye?

2005-08-07T11:43:00.001-07:00

I noticed that I have posted most of the blogs of late and wonder where everyone is; haven't heard from Jon in quite awhile. Are you out there? Kelly? I suddenly feel like a spaceman whose been cut off from the rest of the team. Choking (gasp) . . . cannot transmit . . . you're breaking up . . . request assistance . . .

A 1L, though not exactly

2005-08-05T19:51:00.000-07:00

The new school year looms ahead and I am filled with anticipation. A whole new bunch of greenhorns are out there right now; nervous, excited, fearful. I pray that I may be a shining beam of light for them all, illuminating the dark path which leads to a head crammed full of facts and rules and, hopefully, a grand schema on which to hang it all come exam time.

Yeah right.

All I know for sure is I am likely going to turn cartwheels everytime I hear one of my classmates ask another one, "So, how is your draft coming?"

In keeping with my distaste, nay, my loathing for the icky politesse of law school (even our laid-back Midwest one did not defy expectations: it's fun to deliberately use words incorrectly or mispronounced and hear folks snicker) I'll just lay it all out for you guys, true comrades and real men, if ever there were such things. For me, my first year was as easy as ABC. That's A for Contracts, B for Legal Writing and C . . . well, you know what that stands for.

Three more weeks is all we have left. I want to see you all (Sergei, too?) before the season commences. Let's meet soon.

2005-07-29T20:19:00.000-07:00

It is true that the very ancient Hebrews had a different idea of "soul" than we do. It isn't that they didn't have a word for soul, they did; however, like you pointed out, to them it was not a thing wholly separapable from the body, and, consequently, it wasn't necessarily even immortal. "It came about that as her soul was departing (for she died) that she called him Benoni . . . ." Genesis 35:18. The idea of a distinct and immortal spirit did come through the Greeks, I think. The Greek word "psyche" means "life" or "self" which isn't much different than the Hebrew word as far as I know. It is just a matter of adding another idea, a Greek one, "pneuma" to the mix which gives us an immortal part. I do not understand yet the distinction between "spirit" and "soul" sometimes found in the New Testament. One passage from Hebrews reads: "For the word of God is living and active and sharper than a two-edged sword, and piercing as far as the division of soul and spirit, of both joints and marrow, and able to judge the thoughts and intentions of the heart." Hebrews 4:12. To my mind, from this passage we can safely deduce two things: first, that behind the words soul and spirit are two different things, and second, that these two things are somehow bound very tightly together. Of course, from this passage alone we shouldn't assume that the body is itself distinct from these two things. But in Matthew we read the words of our Lord Himself: "Do not fear those who kill the body but are unable to kill the soul; but rather fear Him who is able to destroy both soul and body in Hell." Surely from these words we can believe that the soul and the body are separable, at least ultimately, if not in this life. Christ was speaking to His disciples when He said this; since all of the disciples were Hebrew, if it safe to assume that they at least had heard of immortality and were willing to believe Him.

The problem with your idea, I think, has two parts, one which isn't such a big deal maybe, and one which is. The first problem I see is that it is simply primitive in the sense that it ignores the whole revelation of the New Testament regarding this subject. The letter of Paul to the Romans and the two letters to the Corinthians are filled with implications of a soul distinct from the body. Your idea strikes me as being something like a guy who is content to ride a unicycle when he could have a bike.

The second problem is bigger and makes me think of Jon's syllogism. If the soul and body just mean the same thing, that is, a person, or a person's life, then what becomes of that life when it is extinguished? What would Freud say? "Nil", that's what. You rightly say that life is not "totally extinguishable", but if we are standing there looking down at a corpse in a casket, what exactly is it that hasn't extinguished? I'm looking at Uncle Fred and saying to myself, "Sure looks like he's been extinguished to me." So, whether or not the spirit or soul is separate from the body at creation-time, it is clear that the two things are separable at death. But I don't think taking this view would be a huge leap for you.

I see what you are trying to do as far as how this idea informs the abortion debate. Avoid the question of when the thing gets its soul. Like I told Jon I think that is a wise move. Again, the issue is what is a fetus. Is it a person or is it not a person? But just for you, why not think of the life/death cycle you mentioned backwards? The immortal soul departs the body at death. When would it make sense that the soul goes into the body, is "breathed" into it by God? Doesn't that sound a lot like the event in Genesis concerning the first man? The Hebrews knew that God breathed life into Adam. St. Paul went further telling us (by implication) that that life contains an immortal part which is bound up with and yet distinct from the body. On Jon's syllogism, the conclusion that losing my hair = losing some of my soul from the premise that the soul arrives as soon as new DNA appears is a sound argument, but not necessarily true. That conclusion assumes that the soul and the DNA are the same thing, which they aren't if we believe Socrates as refined by St. Paul.

Maybe we should abandon the abortion problem and talk about "snakes and snails and puppy dog tails". Or better yet, "sugar and spice and everything nice".

Also, we can edit our own posts, just not our comments. Isn't that right?

P.S. Next time I see you, Kelly, you MUST tell me which pathologies you are thinking of. I have to know, for my own well-being.

2005-07-28T15:52:00.000-07:00

Jon, first: I insist that you are a philosopher, maybe not professionally, but from what I know of you all that means is that you don't charge people a fee when you give them truth. Philo (lover) + Sophist (of Wisdom). That you are.

Second. Now we are cooking with gas! No, I am not thinking specifically of the spirit in me. Your question brings up a big issue, but one that need not concern the abortion debate as I perceive it. Just one more useless sidetrack, rather. However, I think your question belies a bit of a conflation of two ideas which we may as well talk about to be clear.
One: The "me of me" which you suggest we may not be able to even talk about could simply be "Todd" or "Jon" as conceived in the mind of God, which is to say, there never has been a time when we were not on His mind, as He can never have a new idea. I think that is what you mean when you say the "me of me". Is that right?

Second: The spirit is an altogether different thing, though. Surely the spirit is a created thing, is it not, at some point in time, unlike the idea of me, described above. How it becomes part of the flesh, who knows? The precise nature of man's dual nature is a mystery. Whatever we are, I do not think we are simply a spirit poured into an empty shell. But neither is my spirit cemented to my flesh, at least not forever.

So, back to the Debate. I don't see how getting into an argument about the spirit can help when, apparently, many people who say they believe in a spirit, or something in man which is immortal, will still argue that a woman should be permitted to kill the fetus is she chooses. They say it's not a person, therefore, it has no spirit. A sound argument for sure.
And so, we argue, "oh, but it is," or, alternatively, "it surely COULD be." We start with a definition of what a person is and go from there.

I like your syllogism. "My spirit is in my DNA?". This makes me think of something along similar lines; the argument that the fetus is just "part of the mother". If that is true, it follows that if the fetus is male, then the mother has four kidneys, eight limbs, and a penis.
Does this get us away from the spirit questions as far as this debate is concerned?

Lastly, does it bug anyone that I hog up space by making these posts instead of just comments? I tend to get lost down there in the comments section.

Pertinent

2005-07-27T18:48:00.000-07:00

When do we meet for libations?

Abortion Paper, 2004

2005-07-27T08:09:00.000-07:00

Following is the paper I wrote last year in my Human Sexuality class. It appears to be more or less in APA format. I can’t remember the title of the book from which the quotations are taken, and anything that I have added for purposes of this post is in brackets []. It’s lacking a bit in the systematic F1+F2+F3=conclusion type of writing, although the reasoning is solid, if you look between the lines.

Kelly Hoffart
Abortion Paper
3/23/2004

Chapter 1: Is Abortion Immoral?
Abortion ends the life of a human being. It stops a beating heart. It kills an innocent baby that cannot defend itself. “[T]he child is too weak to overcome the power of…rationalization,” (p18) the rationalization of the choice to abort.
A fetus is a human being even at conception. This has been supported both by numerous Bible passages and by science (the zygote has unique DNA in comparison to the DNA in all the cells in the mother’s body). Therefore abortion falls under the jurisdiction of the Fifth Commandment, “Thou shalt not kill.”
In addition, it is a moral choice that puts the convenience of the mother above the very life of the unborn child. I would say that as a nation we put a very high value on life, but restrict this value to only those who have been born. We have long followed the philosophy of unrestricted rights for all people until they infringe on the rights of others, but abortion clearly infringes upon the rights of the unborn.
The cases of pre-emptive euthanasia are on gray area, however, as euthanasia itself is a gray area. [I failed to adequately define the concept of pre-emptive euthanasia in this paper originally. These are the cases in which they find that there is something wrong with the baby medically and abort on this basis.]
Chapter 2: Should Abortion Rights be Protected or Restricted?
The question of the legality of abortion is up to the state. The Bible mandates separation of church and state, and gives the state the power to take lives [I don’t remember where I found all of this information, but largely it is from the work of Dietrich Bonhoeffer]. Therefore, as the state sees fit, it may allow or disallow abortion.
In a democracy, however, the state is up to the people, and therefore the majority of people should decide the legality of abortion. I don’t believe that this is currently the case. [I have nothing to back this up.]
And this does not mean that Christians should not try to make change in the laws of the nation. It is a Christian’s right, as it is any citizen’s right, to try to make the laws of the state agree with their own moral beliefs.
The issues regarding teens are the most clear-cut. “In America today, a 13-year-old girl cannot see the popular teenage movie Scream without the consent of her parents. She cannot get an aspirin from the school nurse, go on a class trip to the zoo or get her ear pierced without the consent of her parents” (p74). It logically follows that she should not be able to get an abortion without her parents’ consent either.
Chapter 3: Should Women Have Greater Access to Abortion
Women do not need greater access to abortion. Access is already very high, and the people that would need to drive a great distance live in rural areas and therefore are accustomed to driving greater distances. In fact, "70 percent of women of childbearing age lived in counties with facilities in 1992" (p89).
The abortion pill, if legalized, would be a huge step toward a less moral society, because it would make abortion even easier than it is now. "[T]he population will increasingly be deceived into accepting abortifacients as a version of effective birth control" (p95).
Chapter 4: Should Protesters Target Abortion Clinics and Providers?
Targeting abortion clinics and providers with protests is illogical. No abortion provider is going to come to work, see a sign that says “Abortion is murder,” and then decide to no longer provide abortions because they hadn't thought of that before.
Targeting clinics and providers with violence is not only illogical, but it is also hypocritical and illegal. It is hypocritical because it is an attempt to stop violence with more violence, and it is clearly illegal. [It’s amazing how undergraduate writing compares with legal writing—you can get by with a paper written in an hour filled with a whole lot of fiat.] It accomplishes nothing, because clinics will re-open and hire new “doctors” if need be. "On the surface, claiming to be 'pro-life' yet approving cold-blooded murder reflects either twisted logic or rank hypocrisy" (p132). It also hurts the popularity of the anti-abortion cause. "Such justification also indicates that the movement's real agenda is not the protection of so-called unborn 'people,' but a political campaign bent on denying women...the right to decide how their lives will be lived" (p132). [I find this last one to be a particularly persuasive argument—it makes protesters no better than the London bombers, and it is counter-productive.]
Protestors should target government buildings. They should sign petitions to get laws passed or put onto ballots, and make it known to the government that they want to stop abortion.
Chapter 5: Should Aborted Fetuses Be Used for Medical Research?
As long as abortion is legal, there is no reason that fetuses should not be used for medical research. Cadavers are often used for medical research, and the recently dead are used for organ and tissue transplants, even if they were killed immorally, so there is no legal or moral reason not to use them for medical research. "[T]hey argue that this does not preclude the possibility of using the tissue, since organs and tissues for transplant typically come from tragic events..." (p148).
There is little chance that someone would have an abortion simply to donate cells. The thought that medical research will increase the number of abortions is ridiculous.

2005-07-26T20:11:00.000-07:00

I couldn't agree more. Arguments from Scripture won't work on folks who don't believe it is infallible,and often times those who do argue from scripture wrest passages out of context and so lose credibilty anyway. Furthermore, one thing the most visible group of anti-abortion folks (i.e., the screechers on t.v. and in newspapers) get wrong is that they do the same thing the abortion-rights people do in that they claim to "know" something which they simply do not. In fact, I am not even sure the abortion rights people do this all the time. I think some just say, "Yeah, we don't know, but who cares, it's her right to choose" which is at least an honest, albeit a very odd honest approach.

So, like you, I think, I don't think a search of the scriptures is going to do a lot of good. I am curious as to why you posed the question in the negative, however, that is, to go looking for instances of a fetus being treated as "less than human" as opposed to simply ascertaining what the texts say about the unborn, if anything. What you described sounds like the gearing-up for an exercise in proof-texting. At any rate, if you approach a document which is between 2000 and 6000 years old with concepts behind a word like "fetus" on the brain you are probably headed for trouble. A serious study of the Pentateuch requires more than a curiosity about what an ancient Jew might think about 21st century western culture's take on abortion, which is what I think such an undertaking will really amount to. The ancient Jew doesn't care about us, could scarcely begin to comprehend, much less approve or disapprove of us. Like Augustine, who the court in "Roe" mentions briefly in one of its myriad touch-and-go nods to antiquity, the ancient Jews knew little about human gestation and nothing about genetics. My guess is that God knew that when He handed them the Books. Nevertheless, as you pointed out getting our noses in Scripture is never a bad idea.

So, my reference to the passage from King David was merely intended for us "insiders", so to speak. Again, I know that many non-believers may not give one whit about what David says and so arguing from the Bible will get us nowhere. But that doesn't matter. We don't have to convince many people that murder, polygamy, rape and incest are immoral because the scriptures say so, do we? I'm not even sure that we could.

One argument is simply that since we don't know when life begins, we shouldn't abort fetuses, since, well, they might be alive, or people. This goes to humility, the willingness to submit to not knowing, and acting like we don't know, even when it is difficult to do that. Which reminds me, we should get our terms straight. When I say "when life begins" I mean "when a person starts". I think we are straight on this. For my money, I see a person once the sperm and egg become an altogether different thing with its own genetic code. The creature is the very beginning of a process of changes which terminates at death. Zygote, embryo, fetus, baby, child, adolescent, adult. So, I find it no more troubling to think of a zygote as a person than I do a young child or a debilitated old man. The talk of the fetus not being viable makes me say, "So, what? Neither is a baby." Or, if by viable the argument is that the fetus cannot survive without more gestation, or incubation, does that mean that a fetus delivered away from medical care is not a person, but one delivered in a hospital is?

These are, of course, more "beginnings" of the whole debate. We can go anyway you like, though I suggest we leave Darwin out of it since his own followers no longer believe much of what he said, and the same goes for Freud. Those guys are to evolution and pyschology what Copernicus is to physics. As for psychologists, dreams don't mean anything, or maybe they do, they urge us to believe.

Whatever we do, I have no doubt that I will gain more from any discusion we have than you two guys will, so if no one is up to basically instructing me, I understand. I am, admittedly, coming late to this and am quite stupid to boot. Maybe we should simply start with discussing what we know versus what we believe.

Finally, I was in no wise flattering Jon. I had a good hearty laugh and owed him a heartfelt thanks. That is a great story.

Red Square

2005-07-25T07:04:00.000-07:00

When you guys saw Sergei's pic of Red Square, could you think of anything but Tetris? That was my first thought. A testament, really, to the initial impression and continuing popularity of the game.

Erratum

2005-07-24T19:53:00.000-07:00

I wrote below that the issue for Christians (on abortion) is whether or not it is a good idea for a woman to terminate a healthy pregnancy. You would think that after 1st-year law school one would be able to zero in on a crux of a matter; apparently, my brain sagged there momentarily and I asked a silly question. The issue is, of course: what is a fetus?

I owe a debt of gratitude to both you guys for prodding me (unintentionally, I know) into thinking about this matter. I ran off a copy of "Roe" and am reading it now for the first time. I simply did not know that abortions could be had as easily (within certain time limits) as they could in many states prior to 1973; I see better now precisely what the decision did to affect what states can do regarding abortions.

Also, is it me or is Nebraska just the absolute worst place on the face of the earth to live from about ten in the morning until nine o'clock at night during the whole month of July? Then at nine it's perfect again.

Jon: I was outside tonight after three of our four kids were in bed, twilight, the locusts chirping wildly (I love that sound). Kelly and Stella were sitting on our little patio and I walked down to the shop to bring the lawnmower up to the house for tomorrow. It's about a 500-foot walk and was getting dark fast, so when I got down there and realized I had forgotton the key I swore to myself. As I was walking back I looked toward the house and saw a toddler playfully stomping about on the sidewalk. Of course it was Stella, but for one second I believe I had just a taste of what I think Chesterton is talking about in "Manalive". In that slender moment I got to see her for the first time, and I didn't even have to go around the world to get it, just to the shed and back. If I forgot to say so, thanks for recommending that book and I haven't forgotton that you want to produce a stage version of it. A great idea!

2005-07-22T21:01:00.000-07:00

On Warren Zevon. I, too, admired his brave exit of this life. For years I wondered if the man behind the bespectacled, cigarette smoking skull (his trademark, you may know) was as tough as the image he projected and emoted through his music. When I saw the VH1 special chronicling his final months, my question was answered. He died how he lived; apparently, to the fullest, foregoing any cancer treatment which would surely make him feel sicker sooner, and opting instead only for the drugs he needed to keep right on working.

I had mixed feelings about the "enjoy every sandwich" remark. That is exactly the kind of sound-bite that folks in t.v.-land crave, something very broadly rendered and easily digested by billions people. I noticed it circulated like an epidemic across the internet for awhile, was even adopted by Zevon's own son as the title of the Zevon Web Site. I understand what he meant, who wouldn't?

On the other hand, Zevon as a Letterman guest sounded much like what I hear when I listen to his music, i.e., he seemed authentic, what you see is what you get. Letterman asked a simple question and Zevon gave a simple, honest answer. I wonder what Tom Cruise's response would be to such a question.

2005-07-22T20:48:00.000-07:00

I will post this here because I fear you'll forget to check the comments section of your own blog.

Jon, you screenname story gave me the best genuine straight from belly out-loud laugh I have had in a very long time. Positively superb. How sad! Sounds like something straight out of Wes Anderson. Actually reminds me of me at that age; any outright attempt to be cool always seemed to backfire. Very courageous of you to share. Thanks.

Russell's Picture

2005-07-22T07:54:00.000-07:00

I finally got my filebucket account working again, so here's a picture of Kurt Russell Hoffart.

2005-07-21T19:24:00.000-07:00

Jon: I am guessing you'll find some typos in this one.

Thanks. Lots of good remarks here. I will repond very briefly and we can all discuss this maybe when we hook up next time.

My "narcotics" analogy means simply this and no more. Permitting something which is detrimental to the health of a society in order to accomodate those individuals who insist on behaving badly toward themselves and society would make no sense in other scenarios, so why do it in this one? Whether or not certain drugs should be legal was not the point, just an example of a thing I perceive to be similar.

I sense that you may be lumping me in with those self-righteous types who seeth with shrieking rage toward pro-abortion folks. Please don't. They can get on one's nerves, I know. We do tend to see other's sins more readily than our own. But I ask you, does that mean that we ignore the sin altogether? To forgive is not to condone, indeed, to encourage by default. "Go and sin no more," says the Lord, full of compassion, not, "We can fix this at the clinic down the street." The woman who survives the stoning still carries with her the consequences of her actions, though not the guilt of her sin. From that she is saved. Again, we can do what we do to the unborn for one reason; because they are weak. The situation that this or that particular girl is in is irrelevant to the issue of what is to be done. I know we agree on this.

What I call a human being is what any biology professor worth his weight in petri dishes would call a human being; an organism which contains the same genetic material as you and me and that includes a zygote. Of course, the real issue is when is it a person, I know. So, when is it? And here is where we humans stubbornly refuse to submit to mystery, to say, "I do not know", and resign ourselves to the difficulties we face, whether we bring those difficulties on ourselves or not. Do you know what I mean?

Of course abortions will and probably have indirectly resulted in a decline in monogamy. Again, how could they not? I don't see what is so difficult about that when we are talking about premarital and extra-marital sex. Furthermore, the "stigmatizing" of unwanted pregnancies? Give me a break. Do you think that in the last fifty or so years divorce, homosexuality and promiscuity have not each found their way further into the clear light of day. Of course they have. Don't get me wrong, I don't worry much about these things, cultures come and go and cultures past have been more or less as depraved as our own. But the people of those cultures have a luxury I don't have; they are all dead. I have to live in this one and face it and listen to all the mumbo-jumbo excuses for why we do dumb things and how we can (we think, wrongly) undo something with one stroke of a scalpel.

Likening abortion to adoption is ridiculous really. The whole point of abortion is to avoid the hassle of a pregnancy, obviously; adoption demands that the pregancy be carried all the way. I cannot fathom a man or a woman saying, "We can coplulate with whomever we please because we can always give the child away, heh, heh!" To that the world replies, "Yeah, sure, if that's what you want then knock yourself out, er, up". Sure, we are a wicked generation and I, for one, need little encouragement to behave badly. But for heaven's sake, if you tell me that it's not only understandable that I am inclined to beat my wife silly from time to time, but, furthermore, that I am permitted by Caesar to do that, well, gosh, I might just fall over backwards with glee, certainly I will not feel as compelled NOT to do it when the urge comes over me next time.

So, very young children are safe under the constitution. Well, sure, for now! Why on earth could that not change tomorrow? It certaily could and if trends continue the way they have for the past fifty years I see no logical reason how an infant in years to come will be safe from its mother who perceives it to be a nuisance and threat to her well-being.So, these weren't very brief remarks. I gotta go mow now, let's keep talking about this if you guys don't mind. Game?

tm

Also, I didn't mean to compare those who get abortions with thieves or murderers (I don't think I mentioned murderers at all) in order to spew at them. I only chose one type of behavior which most sane cultures prohibit with another one which I think sane cultures should prohibit if they don't already.

The problem comes down to mystery, I think, coupled with a conviction (held by 46% of the population if your figures are right) that our Creator places a value, a high value, on an unborn "human", "person", "fetus" "zygote" or whatever that damn thing is and we would do well to leave it be and deal with it alive when it gets here. See Psalm 139 for what one wise and noble king believed about what God knows about the unborn, bearing in mind that the poem was written long before 1860 (10th century B.C., I think.)

Kelly, there very well could be a distinction between capital punishment and war versus abortion. Capital punishment is certainly permissible, but not necessarily demanded of a society, unless you take the Genesis mandate as binding on us today: "Whosoever sheds man's blood by man shall his blood be shed" War, on the other hand, is, apparently, taken as a fact of life for a society by St. Paul in Romans 13. It is inconceivable that a society can exist for long without wielding the sword from time to time. I wonder if maybe that should be government's sole purpose, but that is another topic.

Jon: Forget about coming off as pretentious. Who you are (young, white, unmarried, childless law student) is wholly irrelevant to the topic if, and only if, the unborn are valuable. Because if they are, then you are affected by how society treats them. If they have no value, which is exactly what current law says, and that is the status quo regardless of what the other 46% want, then we are simply wrong and need to be set straight with a little education and training. Convince me, I say, I am all ears.