My Friends:

I had not intended to discuss this controversial subject at this particular time. However, I want you to know that I do not shun controversy. On the contrary, I will take a stand on any issue at any time, regardless of how fraught with controversy it might be. You have asked me how I feel about whiskey. All right, here is how I feel about whiskey . . .

If when you say whiskey you mean the devil’s brew, the poison scourge, the bloody monster, that defiles innocence, dethrones reason, destroys the home, creates misery and poverty, yea, literally takes the bread from the mouths of little children; if you mean the evil drink that topples the christian man and woman from the pinnacle of righteous, gracious living into the bottomless pit of degradation, and despair, and shame, and helplessness, and hopelessness, then certainly I am against it.

But,

If when you say whiskey you mean the oil of conversation, the philosophic wine, the ale that is consumed when good fellows get together, that puts a song in their hearts and laughter on their lips, and the warm glow of contentment in their eyes; if you mean Christmas cheer; if you mean the stimulating drink that puts the spring into the old gentleman’s step on a frosty, crispy morning; if you mean the drink which enables a man to magnify his joy, and his happiness, and to forget, if only for a little while, life’s great tragedies, and heartaches, and sorrows; if you mean that drink, the sale of which pours into our treasuries untold millions of dollars, which are used to provide tender care for our little crippled children, our blind, our deaf, our dumb, our pitiful aged and infirm; to build highways and hospitals and schools, then certainly I am for it.

This is my stand. I will not retreat from it. I will not compromise.

Clinton v. Smith, 493 So. 2d 331, 336 (Miss. 1986). Justice Robertson helpfully points out that the text of the great Whiskey Speech of former Circuit Judge Noah S. Sweat, Jr., of Corinth, “togther with an account of its origins,” appears in an article by one M. Hughes called “Judge Sweat and ‘The Original Whiskey Speech,’ in The Jurist (Vol. I, No.2, Spring, 1986) at pp. 16-17.

And for what it’s worth, I agree wholeheartedly with old Judge Sweat.

*Mississippi is still a dry state—we just opt out different cities and counties, leading to a brittle constellation of blue laws as you weave through hills, city, and Delta.

01. Coat a nonstick skillet with cooking spray, and go ahead and coat a big saucepan with one, too.
02. Lie to your companion that you did not coat the nonstick skillet with cooking spray, even if they saw you do it. Advanced cooks: prepare a memorandum describing how you have never coated a skillet with cooking spray and resent any implications that you have.
02. Heat the skillet on medium-high heat until hot.
03. Tell your companion that the skillet is not hot. Convince them to place their hand in the skillet. When they are burned, warn them (preferably with a sneer on your face) that burned hands result from not supporting the Global War on Terror.™
03. Add green onions, bell pepper, and garlic.
04. Sauté 3 minutes or until tender.
05. Heat up the saucepan while you’re doing this and then dump in your sauteed goodies.
06. Stir in corn and next 5 ingredients (sauce through tomato, 06-10).
07. Cook until heated, dumping in tons of hot sauce or salt and pepper or however you like it.
08. If your companion asks how the dish is coming along, refuse to answer. If they pry, report them to the authorities. Explain that you are concerned about how interested they are in your perfectly legal activities. Remember, if you see something suspicious, report it!
09. Remove the vegetable mixture from heat; set aside, but keep warm.
10. Bake pie shells at 475° for 10 minutes or until puffed and browned.
11. Spoon half of the veggie mixture into each pie shell and sprinkle generously with cheese and (if you feel like it) some of the leftover chunky picante sauce.
12. Bake at 475° for a few minutes or until the cheese melts.
13. Cut each pie into 6 pieces and (if you dig it) garnish with sour cream.
14. If your companion asks if the food is ready, lie to them and explain that you had to throw it all away. As you begin eating, protest vigorously if they demand to know why you lied to them and why they can’t have any. Explain that you never lied, but rather always acted in their best interests.

Serve immediately, but refrigerates well. No murder boards allowed. Makes two or three pies depending on how thick you lay down the goods.

Adapted freely from the legendary “Mexican Vegetable Pie” crafted by the good folks at Cooking Light, and the ongoing failures and corruption within the Bush Administration.

In this clip he takes the Republicans to task, calls the Bush Administration out for their continuing crimes and outright corruption, and the House erupts in an uproar. Rep. Taylor, Rep. Barney Frank (D.-Mass) and Rep. Sheila Jackson Lee (D.-Tex.) absolutely own this debate in a striking display of parliamentary ninjitsu. I must admit that Rep. Hoyer comes across as a gentleman, especially in the face of the grotesque, cringing whiners he is surrounded by in the Republican party—including that embarassingly coiffed creature from Georgia and the pathetic, mealy-mouthed, opportunist Lynn Westmoreland, who’d rather take a shot at Speaker Pelosi than help people who are in need.

As you watch this video, remember that it’s about a bill to help people in Mississippi who lost their homes and were then abandoned by their government. The only thing the Republicans try to do is stall, stutter, and derail the proceedings. Never before has the failings and corruptions of that gang of cowards been so utterly clear.

We’re proud of you, Gene.

Rough transcript is here.

Find out this week, on CHANNEL AWEXXOME!!

Update: Two big cloudy things on the Venice is Sinking stormfront. Er. First, pick up this month’s Copper Press for a good article on the band.

Secondly, the legendary Big Gray now has a proper website!! Go peruse, and don’t believe what he says: “Deer Park (Crime Is Economic)” is bomb.

The statutory and decisional laws of [New Jersey] protect individuals from discrimination based on sexual orientation. When those individuals are gays and lesbians who follow the inclination of their sexual orientation and enter into a committed relationship with someone of the same sex, our laws treat them, as couples, differently than heterosexual couples. As committed same-sex partners, they are not permitted to marry or to enjoy the multitude of social and financial benefits and privileges conferred on opposite-sex married couples. In this case, we must decide whether persons of the same sex have a fundamental right to marry that is encompassed within
the concept of liberty guaranteed by . . . the New Jersey Constitution.
[ . . . ]
Only rights that are deeply rooted in the traditions, history, and conscience of the people are deemed to be fundamental. Although we cannot find that a fundamental right to same-sex marriage exists in this State, the unequal dispensation of rights and benefits to committed same-sex partners can no longer be tolerated under our State Constitution. With this State’s legislative and judicial commitment to eradicating sexual orientation discrimination as
our backdrop, we now hold that denying rights and benefits to committed same-sex couples that are statutorily given to their heterosexual counterparts violates the equal protection
guarantee of [our state constitution].

Lewis v. Harris, full decision at How Appealing. Take note that this is a 4-3 decision, with the majority finding that New Jersey must create a “separate-but-equal” marriage framework. Chief Justice Deborah T. Portiz wrote a separate opinion concurring in part and dissenting in part, joined by two of her fellows, arguing that Jersey citizens ought to have access to marriage as we currently know it. None of the justices argued that the citizenry ought not have the right to marry under some scheme.

Chief Justice Portiz retired today, as is required under New Jersey law, because she is seventy years old. The judge is a titan.

I wrote about the New York Court of Appeals decision in Hernandez v. Robles previously, and hailed the dissent as “a portrait of a better world, one where we value all citizens, and their liberties, equally.” Today New Jersey, unlike some states, walked boldly into that new world of liberty, and for that, I applaud them.

Apparently, they forget, or don’t understand, how much John Geddes Lawrence and Tyron Garner v. Texas meant and means for all Americans. Justice Stevens said it best in his dissent from Bowers, which Justice Kennedy quoted for the Court in Lawrence:

[I]ndividual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons.

In other words, Lawrence is about being safe and secure in our own homes from government intrusion. We are a free country, and Texas forgot that, like its faux child Mr. Bush often does. We the People cannot forget that. For we are all “entitled to respect for [our] private lives,” just like John and Tyron.

There are some places that the government has no place going: our bodies, our spiritual life, our private emotional life. Justice Kennedy wrote Lawrence with a bunch of “theirs” and “thems,” because he was talking about John and Tyron personally. I’m going to switch it to American, because when we talk about freedom in America, the words we always use are “ours” and “us.”

Because in America, no “State can[] demean [our] existence or control [our] destiny by making [our] private sexual conduct a crime,” because our “right to liberty under the Due Process Clause gives [us] the full right to engage in [our] conduct without intervention of the government.”

So written and so ordered, June 26, 2003. So, Tyron—because you had the courage to push forward, to demand that those words be written for all of us—I thank you, and may God bless you and hold you close to Him,

Your Friend,

gorjus

In She-Hulk #10, star lawyer Mallory Book (who was graduated summa cum laude from J. Reuben Clark Law School at BYU) is interviewing a potential client, the Gray Gargoyle. She’s become known lately for representing super-villains against the superheroes that punch them in the mouth.

Query: Can Mallory do for her potential client what she has suggested?

There’s several things going on here, and I’ll try to address them in the most logical order. First, the Gray Gargoyle tells us what predicated his confrontation with Thor Girl:

It is an outrage, I tell you. Had I committed a crime? No! I was casing the diamond exchange. Since when is casing . . . ?

The Gargolye is probably about to say “since when is casing illegal?” “Casing” in and of itself isn’t necessarily illegal. However, it may be the basis of probable cause to search a person; yet standing alone, just “acting weird” may not be enough. People v. Burton, 848 N.E.2d 454, 458-59 (N.Y. 2006) (“accused can raise a factual issue simply by alleging that he or she was standing on the street doing nothing wrong when the police approached and searched and discovered contraband in the process”) (internal quotations and citation omitted).

What casing can do, added with other facts, is to provide the basis for a warrant to arrest a suspect or begin police surveillance of them. See People v. Seney, 316 N.E.2d 335, 335 (N.Y. 1974) (eavesdropping warrant proper for suspected member of burglary ring when, among other facts, suspected burglar “was also observed by police cruising in his automobile in a neighborhood of estates, driving repeatedly over the same courses, suggesting that he was ‘casing’ the homes”).

What’s a tough call here is that supeheroes, unlike the cops, can just go on in and whomp folks in the mouth, and that’s what Thor Girl did. The Gargoyle is using the time-honored criminal defense of “I weren’t doin’ nothin’,” even though he does implicitly admit to Ms. Book that he was contemplating a crime.

Let’s assume for our purposes that Thor Girl (who we know is licensed under the Superhuman Registration Act, or “SRA,” that has been adopted by the U.S.A. in the Marvel Universe’s so-called “Civil War“) observed this behavior. Let’s further assume her registration under the SRA allows her to act in some manner as a law enforcement official (although this may not be the case). I think it would be a close call at this point to determine if Thor Girl acted without probable cause to whomp the Gargoyle up in the mouth.

If she did act with probable cause, the SRA likely has a type of “hero immunity” in it which will shield her from civil liability, much in the way police officers and firefighers, among others, enjoy “qualified immunity.” This means Thor Girl may not be liable for whomping, and it would be a tough case to push.

Ms. Book also says that she thinks she can get Thor Girl to serve time. Unless she has some high-placed friends in the D.A.’s office, this is not going to happen. There seems to be a confusion between the two systems at work within our legal system: the civil world, where plaintiffs sue defendants for money and other damages, and the criminal world, where the state or government prosecute individuals for criminal acts.

The confusing thing is that sometimes people can sue in a civil context for a criminal action. For example, let’s say you’re at your local restaurant one night, and in the parking lot you’re attacked by a criminal. In some jurisdictions, you may have a civil suit against the restaurant if they knew of the criminal or knew there was a lot of criminal activity.

However, you can’t sue to have somebody put in jail. You can request the police pursue the issue, but in a crowded place like Marvel’s New York, I found it unlikely that the folks in blue are going to go after a hero for simple assault on a known super-criminal.

What about Ms. Book’s next assertion—that they might be able to “out” Thor Girl? Again, I haven’t read the text of the SRA (um, because it’s not real, although I’m debating inviting Professor Fury to write one with me). But I highly doubt that it would provide for the exposure of secret identities that were revealed to the government. In fact, I would expect that as a counterbalance to disclosure and as a further incentive the government would take strong steps towards protecting that information.

Ms. Book’s analogy to the “overzealous policeman” is also inapposite. She’s likely talking about civil requests through interrogatories, requests for production, or depositions for information about an unknown assailant. That is information that is not protected by any privilege that I know of (although sometimes it is used in the national security context), and those persons also do not act in secret.

Thor Girl does have an interest in the non-disclosure of her identity and she does work in secret. Again, I think the SRA would prohibit disclosure. In fact, I find it doubtful that a lawyer might even discover that information through any conventional legal means, as it is likely deeply classified information.

You might say, man, this academic stuff is boring! How much money would GG get if he did sue?? Ultimately, the Gargoyle may have a suit against Thor Girl, if he can jump through the hoops to prove there was no probable cause. However, his suit is only going to be predicated based upon the intentional tort of battery. He doesn’t look too busted up on-panel, and again, if can even jump through the hoops to maintain suit, there’s not going to be a lot of damages offered before the jury—not to mention that a jury is going to be unlikely to award money to a supervillain who was beat-up by a super-hero. (I also doubt they’d look favorably on an emotional distress claim).

There’s no way Ms. Book should take this case on a contingency contract, which most personal injury actions use, because it’s unlikely there would be a good recovery (since there’s no real damages), and the cost of litigation through the uncharted waters of the SRA could be high. Any award could certainly be appealed, as the SRA is brand-new and any decisions based upon it would certainly be open to appellate scrutiny.

Conclusion: It’s a loser, Mallory! Be nice to the Gray Gargoyle, refer him down the street, and get to work on some real cases.

Bonus Query pt. I: The Gray Gargoyle is French; does that mean he can’t sue Thor Girl in America?

Without going into insane detail, no, the suit is likely fine in at least New York district court (the federal court), and probably in the state court (since the issue in question happened on New York soil, and all the witnesses and evidence are likely in New York).

Bonus Query pt. II: Is Ms. Book treading into awkward ethical territory by suggesting an unrealistic outcome to her client?

This is a sticky one, and I’m going to punt and address it on another day. While there may not be explicit prohibitions on communicating unrealistic goals to the client, it is another to base a lawsuit on them (there are often multiple ethical, rule-based, and statutory prohibitions on bringing lawsuits with little merit, no matter what you hear from Congress). The one thing I’ve always found is that artificially inflating the expectations of clients can really bite you in the rear later on, as the results you procure for them may be out of line with a long-time expectation.

And when the client can turn you into stone with a mere touch? I would counsel great caution in suggesting the result of a case!

No-Prize!: Mallory Book is a highly competent lawyer, but she is dealing with three traumatic events that are likely influencing her judgment. First, she was terribly injured in a metahuman battle. Secondly, her injuries have left her in a wheelchair, and she has expressed great anger towards the costumed “heroes” she blames for her injuries. Third, it seems that a few issues back Starfox put a “spell” on her that has seriously impeded her actions.

So in her fervor to destroy heroes, she’s going overboard and overreaching.

Previous Law & Comics entries: She-Hulk #9 and Jonah’s fraud case against Spidey.

PrettyFakes legal disclaimer.

This comic is just plain fun in so many ways, and writer Dan Slott justly deserves the praises he’s garnered for the “real world” take on the life of a superhero—in this case, Jennifer Walters, an attorney who happens to be the cousin of the Hulk. (Although I think we all miss the cartoony work of Juan Bobillo).

In issue 9, “The Big Reveal,” Shulkie is arguing with her new father-in-law, the Spider-Man hating Jonah Jameson. Jonah had purchased photos taken by Peter Parker (the now not-secret identity of Spider-Man) that supposedly showed Spidey in action—but the photos were consciously faked by Peter with the help of his friend, John Jameson—Jonah’s own son.

Jonah’s still smarting from the deception, and wants to get back at Peter, but his lawyers have told him that there’s likely no recourse. Shulkie wins Jonah over by telling him he can sue Spidey for fraud.

Query: Can Jonah sue? Is She-Hulk right, or Jonah’s lawyers?

“The essential elements of a cause of action for fraud are representation of a material existing fact, falsity, scienter, deception and injury.” New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 318 (N.Y. 1995) (internal quotation and citation omitted). Let’s look at those five elements separately, and closely, since “[t]he elements of fraud are narrowly defined, requiring proof by clear and convincing evidence.” Gaidon v. Guardian Life Ins. Co. of Am., 725 N.E.2d 598, 607 (N.Y. 1999).

First, “representation of a material existing fact.” The photos were supposed to be of Spidey, Peter represented them as such, and they were only purchased by Jonah because they were supposed to be of Spidey. That’s a representation made by Peter on a critical subject of the business transaction.

Second, falsity. The photos were supposed to be of Spidey—but they weren’t.

Third, scienter. This is just an old Latin word meaning “having knowledge.” Did Peter know he was selling a bogus photo to Jonah? Yes, because he’s Spidey and he rigged the shots.

Fourth, deception. Did Peter deceive Jonah? Again, yes.

Fifth—did Jonah suffer an injury? This is where he’s going to have the biggest problem, and where I think his case falls apart. Jonah paid a hefty sum for the pictures, yes—but he also published them in the Daily Bugle and likely made oodles off the photos (if Jonah paid that much, you know it was worth triple). It was only later that the pictures were revealed as fake, once Peter made his identity public.

Jonah could argue that Peter has injured his reputation, but this is going to be a hard path, I think. If the recent Reuters scandal has taught us anything, it’s that with the rise of technology even savvy editors may miss obviously fake photos under deadline and competitive pressure. I just don’t think Jonah has suffered any injury he could put a dollar value on, although it is certainly a novel argument (bonus query: should Reuters attempt to sue their fraudulent former photographer for the injury to their business reputation?).

This doesn’t mean Jonah can’t sue, it just means his chances of recovery are slim. (This also assumes there wasn’t a contract between Peter and Jonah that explicitly granted the right to sue or pursue damages if the photos were faked).

She-Hulk is also possibly making a gigantic mistake in encouraging Jonah to sue. Let’s say Peter gets the complaint; Matt Murdock (every good superhero’s lawyer, although I can never tell if he’s been disbarred or he’s in jail for being a crime lord or what) would likely move to bring in John Jameson as a necessary party. John helped Peter rig the photos, and knew why he was doing it—any good defense lawyer would want to defray costs and lessen their liability of their client.

And, as we know, John and She-Hulk are now married, which in may mean their financial affairs are intertwined in many ways. So she may have just brought a lawsuit down on her own husband, from his crazy father! John would have to get his own lawyer—or knowingly waive the conflict of interest that would arise from Matt repping him and Peter—and that costs money. Money which I’m assuming would come from attorney Jennifer Walters’ pocket, as opposed to the salary of an Air Force colonel who also happens to have a predilection for turning into a white-furred wolf-man.

Conclusion: Shulkie, shush! You’re opening a can of worms for yourself, your husband, and—not to mention—Spidey! All to woo Jonah Jameson? For shame!

No-Prize! (wherein I attempt explain the legal advice) Shulkie only said this to Jonah to get him to calm down and quit being mad at her. By focusing his anger back on Peter, she shored up their relationship.

She also knows that once Jonah goes to his lawyers (whom he hates), they’ll ask for a retainer fee to handle the case (even though it’s a plaintiff’s action, it’s unlikely they’ll take this one on contingency, given its low chance of success and possible “zeroing out” by a judge or jury even if successful). Jonah will balk at the price, and continue to seethe in his hatred of Spidey, now feeling even more aggrieved.

Join us next time for an examination of She-Hulk #10!

PrettyFakes legal disclaimer.

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The Chief Judge writes, by way of introduction, that the:

Plaintiffs . . . include a doctor, a police officer, a public school teacher, a nurse, an artist and a State legislator. Ranging in age from under 30 to 68, plaintiffs reflect a diversity of races, religions and ethnicities. They come from upstate and down, from rural, urban and suburban settings. Many have been together in committed relationships for decades, and many are raising children—from toddlers to teenagers . . . In short, plaintiffs represent a cross-section of New Yorkers who want only to live full lives, raise their children, better their communities and be good neighbors.

For most of us, leading a full life includes establishing a family. Indeed, most New Yorkers can look back on, or forward to, their wedding as among the most significant events of their lives. They, like plaintiffs, grew up hoping to find that one person with whom they would share their future, eager to express their mutual lifetime pledge through civil marriage. Solely because of their sexual orientation, however—that is, because of who they love—plaintiffs are denied the rights and responsibilities of civil marriage. This State has a proud tradition of affording equal rights to all New Yorkers. Sadly, the Court today retreats from that proud tradition.

That is not language that is squeezed from precedent or statute; that’s just flat-out guts and feeling. I like it: it reminds you that this is not a case about laws or constitutions, not really, but about human beings who want to have the same lives as anyone else.

The Chief Judge strides purposefully through Lawrence v. Texas, the landmark Supreme Court case overturning laws against same-sex sexual activity, and, a bit suprisingly, Loving v. Virginia, the 1967 Supreme Court case that demolished laws prohibiting marriage between men and women of different races. What struck me the most was that the dissent argues that “the classification challenged here should be analyzed using heightened scrutiny,” one of the most powerful tools for ensuring that rights are preserved.

This is a revolutionary statement, one which has not yet been recognized by the Supreme Court. In addition, courts have also rejected the dissent’s argument that one might find protection for sexual orientation in laws prohibiting discrimination on the basis of sex (Title VII litigation in this field has been a particuarly depressing failure). This is not a dissent based on existing interpretations of the law: this is a dissent based on how the laws should be interpreted.

Which is why it is quite wonderful to read. It’s a portrait of a better world, one where we value all citizens, and their liberties, equally. We are not there yet, but I have great hopes that we are making progress, and in the words of the dissent, “I am confident that future generations will look back on today’s decision as an unfortunate misstep.”

You can read the case here.

Update: Daily Kossak Bill in Portland Maine thanks the New York court from saving him and his partner “from ourselves,” since if they were able to get married society would crumble. Hee. Also check that rad quote from PrettyFakesFave Howard Dean, tumping the decision for relying “on outdated and bigoted notions about families . . . .”