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What If?

by: tmess2

Sun Oct 26, 2014 at 11:07:54 AM EDT

Imagine for a second.  It is Wednesday morning, November 5.  The numbers in Alaska are too close to call waiting for the votes from small towns all over the state to come in, Louisiana and Georgia are heading to run-offs (with Georgia's taking place after the Senate convenes in January), and the current numbers the Senate is 47 Republicans, 45 Democrats, and 5 Independents (with newly elected Senators Greg Orman and Larry Pressler, joining Bernie Sanders, Lisa Murkowski, and Angus King). 

While it is almost certain that, in the end, Bernie Sanders will caucus with the Democrats and Lisa Murkowski will caucus with the Republicans, there might be a period of time when these five will work together to make some changes to how the Senate operates to make it less dysfunctional and less party-based.  If the election results theoretically turn the independents (especially King, Orman, and Pressler) into the balance of power in the Senate, what changes do you think will take place?  What changes would you like to see take place?

For me, I would like to see changes to the filibuster rule.  I do not oppose having a filibuster, but I think that the filibuster should be limited to final passage of a bill.  Let the bill come to the floor for a debate by majority vote, let amendments to the bill pass by majority vote, prevent the leadership from just substituting a new version for the amended bill at the last second (any leadership substitute being treated as just another proposed amendment), and then permit a filibuster only on the final vote after the Senate has had a chance to address all of the objections to specific provisions in the bill (making it clear that the filibuster is to the concept of a bill and not the substance). 

Keeping the requirement for sixty votes for cloture on the final bill would also give the declining number of centrists in the two parties (of course, if we are replacing centrists in the two parties with independents, the result is the same) a chance to work out a compromise version that centrists on both sides can live with.     

Discuss :: (2 Comments)

Notes from your Doctor - Ebola: New York will be fine

by: DocJess

Fri Oct 24, 2014 at 08:57:45 AM EDT

The fact that an MSF doctor came home with Ebola is not surprising. He will not be the last. We should all thank him for his service during the scourge, and feel lucky that he lives in New York City and was taken to Bellevue in one of the 36 ambulances outfitted by NYC to handle Ebola..

Back when Kent Brantley and Nancy Writebol were taken to Emory, Bellevue started training for Ebola. Bellevue is the oldest public hospital in the United States, dating back to the early 1700's. It has seen its share of things like Tuberculosis and AIDS. Owing to being a public hospital that accepts all comers, it has experience with serious infections like MRSA and CDiff, along with tropical and other foreign illnesses. Its people are world class. Months ago, they not only repurposed eight communicable disease rooms for Ebola, they started training: what to do to care for patients, how to protect the employees from doctors and nurses through security guards and housekeepers. Pair this with the fact that the State of New York included Bellevue on its list of 8 hospitals ready for Ebola, came up with a plan, and have been holding open trainings for a few weeks now. Craig Spencer is in good hands.

Last night, after the Bellevue lab confirmed Ebola (to be re-confirmed by CDC) a press conference was held. Governor Cuomo, Mayor De Blasio, representatives of the Public Health Service, even Tom Frieden via remote connection. They talked, they took questions and they gave direct answers to those questions.

Will Dr. Spencer survive? Statistically, his chances are good. While the mortality rate from this Ebola outbreak is 70%, that's in Africa. That's the inverse of the patients who have been cared for here in the States, with a mortality rate of 10 - 20%. Modern medicine's palliative care is working, and being in specialized facilities instead of tent clinics is also helpful. In addition, the medical community has been taking lessons from what DOES work in Africa: the salt-sugar-electrolyte mixture attributed with helping immensely in  Nigeria, keeping the spread rate lower amoungst health care workers. Also, adopting the buddy system and gallons of antibacterial hand sanitizer through the process of removing protective gear. 

Will Ebola spread throughout New York City? Highly unlikely. The three people with whom Dr. Spencer had close contact are being quarantined, and it doesn't appear that anyone else, other than the properly protected Bellevue personnel have/had contact with him while he was contagious. Nonetheless, New York is tracing contacts, as the NY Public Health Service has done successfully in prior communicable outbreaks. 

The only question is why other states and large cities have not picked up the banner of training, ordering materials, designating hospitals and giving more training. And then more training.  

Discuss :: (0 Comments)

Reflections on Ben Bradlee

by: DocJess

Wed Oct 22, 2014 at 05:20:42 AM EDT

Ben Bradlee, Washington Post editor, passed away yesterday at the age of 93.  He will be missed by those who loved him, and remembered thankfully by so many of us involved in writing.

There's a good chance that without Ben Bradlee's leadership and vision, people like me (read: women) wouldn't be writing in public forums about anything other than fashion and letters to the lovelorn. One of the first things he did when remaking the Post was to take the women's section, and make it the Style section - a clean and upstanding forerunner to Page 6 and all that came after.  He inspired a whole generation of reporters who dug with his support of Woodward and Bernstein, pushing them to be the best they could be, to check and doublecheck their sources, and to strive to do even better the next day.

We owe him a great debt. He was fearless in publishing the Pentagon Papers after being scooped a few days earlier by the Times, which was enjoined by Justice to quit publishing. He believed in truth and honour.

My favourite story about him is that he was twice divorced when he started seeing Sally Quinn in the 1970's. She wanted to get married, he was gun shy, and famously told her that they'd get married when there was a Polish Pope. They were married 36 years when he passed away.  

Go find one of the in-depth obits and learn about his fascinating life: his bravery and decency, his friendship with John Kennedy, the changes he brought to politics and government. He was truly inspirational.

Rest easy, Mr. Bradlee. And thanks. 

Discuss :: (0 Comments)

Notes from your Doctor - Ebola: Part 3 - The Politics

by: DocJess

Mon Oct 20, 2014 at 18:08:45 PM EDT

Link to Part 1 here, and Part 2 here.

First and foremost, a travel ban to the United States from West Africa will be counterproductive and will help to spread, not contain, the outbreak. Science knows that, medicine knows that, but politically, it's close to inevitable, even though there are no direct flights from that part of Africa to North America.

The saddest part about our fractured politics and polarized electorate is that reason takes a back seat to the political whims of idiots. (For those of you who like to write me about the difference between idiots and morons, yes, I'm using the right choice here with "idiots".) 

When doctors do what they're supposed to do they treat the cause of the disease, not the symptoms.  When there is no cure, they provide palliative care. In this case the cause is in Africa, and we should be undertaking treatment there. We should be making it easier for doctors and nurses to go to West Africa by insuring that the few planes available to transport Ebola victims are not denied access to America. We should make military transports available for the healers who agree to travel to the region, we should help prop up the private companies equipped to transport sick people. 

Further, we should honour our pledge to WHO, and encourage other countries to do so. We can argue later about the disaster that WHO's African branch has been, as now Dr. Chan and her cohorts are coordinating out of Geneva. Of the $20 billion (with a b) that has been pledged, only $100,000 has been received. That was from Colombia. Shame on the rest of us.

And the medical personnel? Only one country has sent its doctors and nurses (the rest are all through aid groups). Want to guess? Cuba. The same only country who sent doctors and nurses to fight cholera after the Haiti earthquake. If we won't support Cuba with matching humans, at least we should help transport their medical personnel here to the US's nine Ebola beds when some of them contract the disease. And they will. Because doctors and nurses are the most likely to contract Ebola - not strangers on a train, not the person across the airport lobby and certainly not someone who just happened to be in the city of Dallas. That's right kids, an idiot city in Maine put a teacher on leave because she was 10 miles from Texas Presbyterian for a conference. I am not making this up.

In addition to sending medical personnel, we should continue to utilize the troops we've sent, and we should send more, to build medical facilities in Africa. Including related infrastructure like roads, sanitation, food distribution. The things our military is actually really good at. I concur with the idea that we should stop bombing for a few days and take those dollars and do something good with them: like save West Africa. This is, for sure, a contrarian view, as polls show most Americans want to kill in Syria, Iraq and the rest of that region rather than save lives in Africa. Most people are idiots.

We should also stop blaming the nurses and doctors in Dallas for not following protocol and admit that Texas Presbyterian HAD no actual protocol. CDC lacked clear guidance, which will likely be issued today and will follow MSF guidelines, modified for places with running water and autoclaves. It will include full body coverage, a buddy system, and rigorous, on-going training. Until then, medical personnel and first responders should err to the side of caution, and stay 3 - 6 feet away from potential Ebola victims until someone dressed properly arrives.  

We should also realize that our health care system is stratified, much like our population. Texas Presbyterian has been nicknamed the Neiman-Marcus of hospitals. It is dedicated to rich people and their first world problems. I haven't seen their stats, but I'd bet they see a lot more heart disease, cancer, births and plastic surgery than they do MRSA, CDiff, AIDS or Tuberculosis.  They weren't ready. Most private hospitals that spend money attracting rich patients with suites and private chefs are not. Put the money into training and supplies. Increase your nursing staffs and pay them correctly. And, oh yeah, Single Payer....but I digress.

The politics of Ebola are the politics of panic and pandering to the uniformed. The chances of contracting Ebola through the air are nil, and the chance that the virus will mutate to an airborne form are minuscule.  Yet, the right wing, the science-averse, and even some people in tight races who should know better prey on the fears of people facing something they don't understand. Something new. 

The way we eradicate Ebola is not any different from how we went after other scourge diseases like smallpox, polio, typhoid or plague. We treat what we can, we contact trace, we quarantine, we endeavor to develop drugs and vaccines. We stamp it out as close to the root cause as is possible. We understand that with diseases in new places, there will be deaths, and those are sad and unavoidable. Most likely, those deaths will come more from medical personnel than anyone else. 

Thus, we seek to eradicate this outbreak in West Africa by moving people and money there. We protect the medical personnel, aid workers, and soldiers as best we can. We care for those who get sick. While we're there, we endeavor to make the continent better in terms of sanitation and infrastructure, because that will help going forwards.

In this country, we leave the panic behind, and protect our first responders and health care personnel with full body garb, training, and proper procedures for removing, disinfecting and destroying Personal Protective Equipment. We make sure that facilities utilized by Ebola patients are equally disinfected and that the staff who does that work are also protected.

We should focus on what WILL kill Americans in vastly higher numbers in the next months: flu, enterovirus 68, heart disease and cancer.

Finally we should remember that we live in a wholly interconnected world. The reason we didn't look for Ebola cures back in the 70's was because it was Africa's problem. Ditto for AIDS, which first reared its ugly head in Africa in the 1800's. (Yes, 1800's.) And let's not forget Marberg, another African hemorrhagic fever. Not to mention the Middle Eastern MERS, nor bird flu and SARS which hail from China. We need to funnel dollars to researching these diseases before they, too, spread.

So my advice for you? Are you a health care provider or first responder? Full body suits, proper protocols. The rest of you? Live your lives, wash you hands (as always, fingers, nails, fingers, fingers, fingers.) Vaccinate your kids. If you're sick, stay home. If you think you, or your child, is sick with something communicable, stay home and call your doctor. Can't afford a doctor? VOTE, you know the drill.

Above all else, avoid panic and idiocy. This too shall pass, and hopefully we'll learn from our mistakes.  

Discuss :: (0 Comments)

Notes from your Doctor - Ebola: Part 2 - Understanding the Outbreak

by: DocJess

Tue Oct 14, 2014 at 19:47:34 PM EDT

Missed Part 1? Click here.

Ebola developed in Africa. It's not a new disease, potentially a very old one, harboured by fruit bats and other fauna. It was first found in humans in 1976, and most outbreaks were limited in scope by geography.

So why is it emerging now? Let's take a look at Africa. It's a young continent, due to massive growth over the last half century. Currently about 1.1 billion people live on the continent. The continent has gone from about 200 million people in 1950. In many countries, half the population is under age 25, owing to war, disease, famine and drought.  And that continent is HUGE, second largest in the world. From the northernmost point to the southernmost point, is about 5,000 miles, and from west to east, again, the largest spread, it's about 7,500 miles across. The population is relatively mobile for a lot of reasons. Again, war, disease, famine and drought cause people to migrate. Increasing population leads to growth of both cities and villages. Further, there is little true infrastructure throughout most of the continent. More people have cell phones than landlines. Roads are in many areas non-existent, as are the things we take for granted like potable water, indoor plumbing, walls and roofs. There are tons of natural resources, but they're owned by very corrupt governments. Think a kind of unimaginable poverty. 

Illness is a huge problem. Not just malnutrition, starvation, and general infections. Malaria is endemic. Five times as many children are blind in Africa then elsewhere in the world due to a combination of Vitamin A deficiency and measles. Health care? In Liberia, when Ebola broke out this year, there were 51 (native) doctors meaning one doctor for every 76,000 people. More doctors have arrived from MSF and other aid organizations since then. 

As people move around, and populations shift geographically, there is more interaction with wildlife. Further, when people are hungry, they'll eat what there is, and that, in Africa, often means bushmeat, which is often infected with all sorts of diseases, including Ebola.

Further, there are certain cultural priorities in Africa, such as interaction with corpses, no matter what the matter of death, and a belief in non-Western healing. Far too many people trust a witch doctor over a European or American one.

The emergence of Ebola in a highly populated area was always a matter of time. 

So what is Ebola? It's a hemorrhagic fever. There are five different strains identified so far. It is passed from fruit bats and bushmeat to humans, and then from human to human by exposure to bodily fluids. A full description of the history and epidemiology of Ebola can be found here.

Of note, the viral load of a person with full-blown Ebola is very high. "Viral load" relates to the number of viral cells in an amount of human fluid such as blood, urine, etc. With Ebola, the virus keeps multiplying even for a short time after death. In half a teaspoon, we're looking at thousands of virus cells in AIDS, half a million in Hepatitis C, and up to 10 million in Ebola. Thus, it is more contagious in later stages than other viruses.

And this brings us to why the rate of infection in medical personnel is as high as it is. You've likely seen articles about the huge rate of infection, but not all groups were infected similarly. In African hospitals, there have been many deaths. But MSF has had hundreds of people on the ground with little transmission. And Samaritan's Purse had one infected doctor, Kent Brantly, who is now recovered and donates blood factors to other patients, including today Nina Pham, the Dallas nurse.

Two things: first, Samaritan's Purse personnel were trained by MSF and strictly follow their guidelines. MSF guidelines have been developed since they worked the first epidemic in 1976. These folks REALLY know what they're doing, and their protocols are much more stringent than the "standard" CDC guidelines which are outdated, limited in scope, and not actually useful. The personnel at Emory and in Nebraska follow protocols even more stringent to the MSF ones, as they have access to things like autoclaves that are not exactly easy to find in Africa. 

Second, people go into medicine to help people. As people get sicker, they try all sorts of life-saving measures, even when those attempts are futile. Treating Thomas Eric Duncan with intubation and dialysis was too little, too late, and the increased risk from those procedures easily overran the CDC protocols. 

The question I keep hearing is whether Ebola will end up making the US look like West Africa. It's unlikely. I am hopeful that the CDC, in concert with NIH will come around to updating their protocols, and that patients will be treated in Ebola centers and not community or even teaching hospitals.

In Part 3, we'll take a look at what governments need to bring an end to this epidemic before Ebola becomes endemic to Africa, and then really does start reaching other continents in epidemic numbers. 

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Notes from your Doctor - Ebola: Part 1 - Overview

by: DocJess

Mon Oct 13, 2014 at 20:17:18 PM EDT

There's a lot of panic going around about Ebola. A nurse who cared for the first person to bring Ebola to our shores via public transport has contracted the disease, and doubtless some of her co-workers will, also. There is fear-mongering, and a movement to cease allowing people who have been to West Africa to enter the U.S.

This article is about what we know, and what needs to be done. Future articles in this series will focus on the medical, historical and political aspects of Ebola.

First, and above all, avoid panic. If you want to worry about catching something, worry about CDiff, MRSA, Measles, Mumps, Whooping Cough and Polio. And as always, fingers, nails, fingers, fingers, fingers. Wash your hands. Then wash them again.

Most of the US was unprepared for a patient with Ebola. There are four facilities that are capable of taking care of this level of infectious disease: the Nebraska Biocontainment Patient Care Unit, in Omaha, the specialized unit at Emory University Hospital in Atlanta, the National Institutes of Health in Bethesda, Md., and St. Patrick Hospital in Missoula, Mont. Other hospitals have facilities to treat infectious and communicable diseases but Ebola is of the class Filoviridae, which is hardly ever seen in the Americas. (We'll talk more about the virus itself in Ebola: Part 2 - Medicine.) Most of what is seen here are airborne, and thus reverse pressure suites and "standard" infection protocols are enough. Filoviridae are different, and require health care worker protection more akin to hazmat suits.

Further, despite warnings since February from Doctors Without Borders (MSF, known as Médecins Sans Frontières in most of the world) and other aid organizations with medical teams on the ground in Africa, we didn't take the potential of patients arriving here seriously. No one did: not the government, nor the medical community. No systems were in place, they still aren't. We'll look at this in Ebola: Part 3 - Science and Politics.

There is a reason that the people who care for patients, most likely medical personnel, are most likely to contract the disease. With Filoviridae, the patient becomes more contagious as the disease progresses, in fact, the patient is most contagious when he/she passes away. There are certain protocols we know work to prevent transmission. The two most interesting come from Firestone (yes, the tire people) and their facility in Liberia, and a young nursing student who nursed 4 family members, and saved 3, without becoming infected herself. These two anecdotal incidents should give hope that it is possible to treat patients successfully, if and only if, the strictest of protocols are followed. None of this happened in Texas.

If you're a medical professional, you give up the right to let fear dictate your actions: you depend on your training, and the best information available. I say this as someone who treated AIDS patients in the 1980's, when there was still some question about whether the virus could be spread by tears. You're a doctor, you're a nurse, you chose that profession to save lives. I have great sympathy for those medical personnel who have become infected doing what they love, and that to which they are committed.

But the medical personnel in Texas were led astray by a number of factors. First, as the investigation will likely show, the CDC likely disseminated poor advice, or perhaps rather advice that wasn't stringent enough. No buddy system. No space suits as exist at the four "really ready" facilities. Not enough training. Second, in a great shame to America, we have no Surgeon General, and we've been underfunding science for way to long (thank you, Republican knuckle-draggers, she said with dripping sarcasm.) Third, not enough people have been individually following the blog posts and missives that have been coming out of Africa since February, explaining what is working and what is not working. Finally, as a country, we rely on technology instead of base knowledge. 

There are a lot of things that we could do over the next several days that would be of great help in this country. First, we could designate facilities in every major population center, especially ports of entry, that would be exclusive facilities for Ebola patients. They do not have to be hospitals, as Firestone has proven, just facilities. Better that they be hospitals, but facilities can come on line much more quickly. The staffing could include people from the four facilities who could adequately train additional workers. Second, we could set up 800 numbers for people who think they've been exposed. Then, teams could come to them instead of having them come into hospitals. Third, people arriving from West Africa could be quarantined in safe, secure environments. As we've learned from Nancy Snyderman and her crew, people cannot be trusted.  Hell, she's a doctor, she should have known better.

There are other actions we should take which will take more time. Nominate and confirm a Surgeon General. Release funds for vaccine and drug research without asking for an offset. (Personally, I'd use the money we're wasting on the ISIS air raids, but that's a different rant.) Start training people. 

So that's it for the overview. 

Coming up in Part 2 - some history about the disease, the chances of Ebola becoming endemic, and the other related diseases. 

Discuss :: (2 Comments)

Same-sex Marriage Update

by: tmess2

Sun Oct 12, 2014 at 13:11:52 PM EDT

This time two weeks ago, most court watchers thought that the United States Supreme Court was certain to agree to review at least one of the cases from the Fourth, Seventh, and Tenth Circuit striking down the state bans on same-sex marriage in Indiana, Oklahoma, Utah, Virginia, and Wisconsin.  Then the Supreme Court turned down all of the applications and things began to happen quickly over the past five days.

First, the Ninth Circuit (not too surprisingly) joined the other three circuits by striking down same-sex marriage bans from Idaho and Nevada.  Idaho filed a stay application with the U.S. Supreme Court, and Justice Kennedy temporarily granted the stay (preventing the enforcement of the Ninth Circuit decision).  This stay application and stay caused some confusion as the application and the original stay referred to both the Idaho case numbers and the Nevada case numbers, but. by the end of the day. it was clarified that the stay only applied to Idaho.  Even that stay was listed by the end of the week.

Second, state officials in Colorado (part of the Tenth Circuit) dismissed their state court appeal and agreed to lift the stay on the federal appeal.  While not completely final, same-sex marriage is currently legal in Colorado.

Third, a stay on further judicial proceedings has been lifted in the West Virginia case and state officials will not be defending their state ban.  West Virginia's official response is due on October 21 and the ban will probably be struck down officially shortly afterwards.

Fourth, a federal judge in North Carolina struck down that state's ban on Friday.  As of now, there is no stay on that decision, and it is unlikely that one will be granted.

Fifth, while there is no currently pending federal case in Kansas, a state judge ordered that local clerks begin issuing same-sex marriage licenses, and a review of that decision is pending on an emergency basis in the Kansas Supreme Court.

Right now, there are federal cases pending in Alaska, Arizona, South Carolina, and Wyoming.  It is likely that those cases will soon be resolved with the marriage bans in those states being struck down.

The real legal action is in the remaining four circuits that have not yet addressed the issue.  The Sixth Circuit (Kentucky, Michigan, Ohio, and Tennessee) heard argument at the start of August.  It is not unusual for a court to take three to four months to write an opinion (particularly if it ends up being a 2-1 decision); so most likely a decision will not occur until November.

The Fifth Circuit (Louisiana, Mississippi, and Texas) currently has cases from both Louisiana and Texas.  Briefing is complete in the Texas case, but no argument date has been set yet.  There will probably be a decision from the Sixth Circuit before the argument date (most likely December or later).

In the Eleventh Circuit (Alabama, Florida, and Georgia), there is a pending case from Florida, but the district court judgment was only at the end of August.  With a normal briefing schedule, the argument in the Eleventh Circuit will probably be some time next Spring.   

Finally, in the Eighth Circuit (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota), cases are moving more slowly with some state court actions and only one federal court actions.  It is unlikely, that there will be any decision from the Eight Circuit before the remaining three circuits have addressed the issue.   

With its actions of the last week, it now seems unlikely that the Supreme Court will take any case unless one of the four remaining circuits upholds a same-sex marriage ban.  Given the current pace of decisions from the lower court, it seems likely that any case on this issue will not reach the Supreme Court before October 2015 (with a decision in the Spring of 2016).  If there is no split, the Supreme Court might take a case after the 2016 election to issue a decision after same-sex marriage is de facto recognized in all fifty states merely to ratify those decisions.   

 

Discuss :: (2 Comments)

Supreme Court 2014-15 Term: Part 4

by: tmess2

Sat Oct 11, 2014 at 10:56:30 AM EDT

With the Supreme Court back in session, the fireworks have already started.  As discussed in the previous parts of this series, there are interesting cases working their way to the Supreme Court (with the next key decisions on same-sex marriage now due from the Sixth Circuit -- probably toward the end of this month or in November) as well as several interesting cases in October and November.

We pick up in December.  Despite having more argument slots (12 arguments) than either October or November (10 arguments each), December seems to be more about technical cases specific to certain legal practice areas than cases of public significance with two major exceptions.

One case that has drawn a lot of attention is Young vs. United Parcel Services.  This case involves the intersection of several anti-discrimination statutes.  In particular, the Americans with Disability Act requires employers to provide reasonable accommodations to employees with a physical disability.  Title VII of the Civil Rights Act has (at least since 1978) provided that discrimination against a pregnant employee is illegal gender discrimination.  The issue posed in this case is whether -- if pregnancy causes a temporary inability to perform certain job-related tasks -- employers need to make the same accommodations to the pregnant employee that they would make for an employee who could not perform those tasks because of a permanent disability. 

The other significant case for December is Elonis vs. United States.  Technically, the issue in this case is the mental state required by a federal criminal statute.  (Traditionally, a crime requires both the commission of a prohibited act and a mental state -- i.e. that the act is reckless or done knowingly or done intentionally).  What makes the case significant is that the statute in issue is the federal harassment statute which prohibits the act of threatening others.  Because the crime involves speech, there is a First Amendment component to the case.  While it has probably been most noticed in the campaign finance area, since the Chief Justice and Justice Alito joined the Supreme Court, there has been a lengthy list of pro-free speech decisions.  To the extent that the First Amendment plays a significant role in this decision, it could have a substantial impact on similar state laws (including laws criminalizing the violation of order of protection/restraining orders).  These laws tend to be use to protect victims of domestic violence from continued threatening conduct from their exes, so a broad opinion that greatly restricts the conduct that can be reached such laws could result in law enforcement being unable to step in before the ex actually commits a new assault.

At this point, the Supreme Court has not yet set its January argument docket (presumably ten cases).  Even before last weeks grant of eleven new cases (the most significant of which were covered in Part 1), the Supreme Court already had five cases available for argument.  Three of these cases are potentially of general interest/political significance. 

There's More... :: (0 Comments, 487 words in story)

The Gay Marriage Win

by: DocJess

Tue Oct 07, 2014 at 05:19:36 AM EDT

The post just below this one is from Tmess, our resident attorney. You should read that article. He explains the full legality of yesterday's Supremes "action" in normal human terms. As an aside, he's framed the SCOTUS cases for the upcoming term here, here and here. No one does it better than Tmess, and it pays to be informed.

I never argue law with Tmess, because he knows law like I know politics, but I have a different view. 

Let's go back to 2001. Goodridge v. Department of Public Health was filed: it was the case that would, in 2004, lead to Massachusetts being the first American state to legalize gay marriage. At the time, I was editor of the local Mensa newsletter, and I wanted to find two people who would write dueling editorials: one pro and one anti. The rule was that all articles and editorials in the newsletter were signed, and while I could find many people who opposed gay marriage, I could not find one person willing to sign his/her name. They would say things like "I know it's wrong, but I really like my neighbors and they're gay" or "I'm a good Christian, so I know gay marriage is against natural law but I don't want anyone to think I'm a bigot." (Yes, I still have the email for that last one -- hard to imagine but true.)

That reticence on the part of semi-knuckle-draggers gave me hope that things would change. I would chat with my gay friends: the consensus was that we, as a country, weren't there yet, but give it 20, 25 years and m-a-y-b-e.

Flip forward. 

I never understood why gay people couldn't get married. I never saw a difference between my gay friends and me. We all went to work, paid our taxes, dealt with lawn weeds and difficult neighbors, served in volunteer capacities, loved our kids and our dogs....it wasn't my business who anyone slept with, who anyone loved. But somehow, too much of the world didn't see things my way.

As of last Friday, in most of America, most gay people couldn't do what "the man I'm not dating" and I could...swallow our fear of commitment (him in the form of wine, me in the form of Xanax), walk into the courthouse, sign for a license and just get married. And yet, more and more of my gay friends were running off to the limited number of states where they could be married, pulling the trigger, and coming home to deal with the insanity of paying taxes as a gay couple in one state, and unmarried adults in another. A few years ago, with great joy, I got to buy my first "Congrats Tim and Victor" cake after they ran off to Vermont to get married after an engagement that had lasted 18 years. 

As of this morning, we're at 24 states and the District of Columbia. In a few weeks, that number will grow to 30. It's almost coda: the wave it unstoppable. I know that because the Supremes refused to take the case. They may say they're waiting for a split decision (the man I'm not dating has his money on the case coming out of the 6th circuit) but I think one knuckle-dragger actually slightly lifted his hands. Here's the deal.

To win a case with the Supremes, five votes are needed. To decline to take a case, only 4 votes are needed. Thus, at most three justices said "NO" to taking the five cases yesterday. Thus, at least one of Roberts, Scalia, Alito or Thomas declined to take the case. If I were making book, I'd put the longest odds on Thomas since he'd never do anything that Scalia didn't do first, but it wouldn't surprise me if it was Scalia because he may well know the jig is up. Even if they take a split decision later, they'll NEVER invalidate the marriages of what will surely be hundreds of thousands of gay married couples. Yay!

Just like watching a giant wave form, and waiting for it to reach the shore, gay marriage is close to being the law of the land. While Tim and I are in no danger of heading to the courthouse, we can. Any day we want, and pretty soon all of our gay friends can, too. There is a huge difference between not wanting to get married, and not being allowed to get married. Having the option is what matters.

Soon this will be laid to rest, gay married people as ubiquitous as straight married people, and then we can move on to the other huge issues: making sure no kid goes to bed hungry, solving immigration, equal rights in all arenas for all people independent of gender, sexual orientation, race, disability...the list of what we have to do dwarfs what we have already done. But it's doable. And moving forward, as always, it starts with you. VOTE on November 4th, bring a friend. Get your friends to bring friends...let's oust the remaining knuckle-draggers so we can ALL live happily ever after.

Discuss :: (4 Comments)

Today's Supreme Court (Non-)Decision

by: tmess2

Mon Oct 06, 2014 at 20:48:02 PM EDT

If you have been following today's headline, one of the big stories of today was the decision by the U.S. Supreme Court that it would not grant review on seven cases filed by state and local officials from five states involving state bans on same-sex marriage.  Below are some of the more common questions that the news media/interested parties have been asking and answers to those questions.

1.  What did the Supreme Court decide today?  A.  Technically, all the Supreme Court decided today is that declined the petitions of the state officials asking the U.S. Supreme Court to review these seven cases on the merits (technically, the Supreme Court denied the applications for a writ of certiorari to the appropriate circuit of the U.S. Court of Appeals).  Such a decision is literally a non-decision and does not take a position on the merits of the cases or mean that the Supreme Court will not hear a similar case in the future.  It just means that, for whatever reason, the Supreme Court has opted not to consider this issue at this time in these cases.

2.  What does this decision mean for these cases?  A.  In all seven cases, either the Supreme Court or a lower court had stayed the decision (in plain English, not let the decision go into effect) pending the final decision by the Supreme Court.  While the state and local officials can still ask the Supreme Court to reconsider its decision, the stays should be lifted within the next several days.  That means, by the end of the week, same-sex couples will be able to get married in Indiana, Oklahoma, Utah, Virginia, and Wisconsin.

3.  What does this decision mean for other states?  A.  It depends upon the state.  The federal court system has thirteen "intermediate" (in the sense of being above the trial court and below the Supreme Court) appellate courts.  Putting to the side the federal circuit (which handles specialty cases like patents and copyrights) and the D.C. Circuit, the remaining eleven circuits cover geographic areas of the country.

Today's decision involved cases from three circuits -- the Fourth (basically Maryland to South Carolina), the Seventh (Illinois, Indiana, and Wisconsin), and the Tenth (basically the southern Great Plains and the Rocky Mountains).  By declining review, the Supreme Court left these seven cases as the governing precedent in these three circuits.  In the Seventh Circuit, after today's decision, same sex marriage is now legal in all three states, making the binding nature of these decisions on future cases an academic point as there are no potential future cases.

For the other two circuits, a lot of the media report inaccurately describe the impact of today's decision.  The existence of this precedent does not mean that same-sex marriage is now legal in all of the states within the circuit.  It means that any court deciding any future challenges must take into account the earlier decisions in these cases.  The remaining states (Colorado -- which is already on appeal -- Kansas, and Wyoming in the Tenth Circuit and North Carolina, South Carolina, and West Virginia in the Fourth Circuit) can still try to argue that there state ban is somehow different from the state laws in Oklahoma, Utah, and Virginia or that there is some additional evidence or theory that was not presented by those three states in defending their laws.  (Additionally, all of the opinions were panel opinions.  While panels of the same court are supposed to follow the decisions of other panels of that court, a different panel can reach a different conclusion and none of the parties in these cases asked for rehearing by the entire circuit.  So if the entire circuit were to hear an appeal from one of the other states, the circuit might reject the reasoning of the panels in this first round of cases).

For the circuits not involved in this case -- the Fifth (Louisiana, Mississippi, and Texas), the Sixth (Kentucky, Michigan, Ohio and Tennessee), the Eighth (mostly the Louisiana Purchase minus Kansas, Louisiana, and Oklahoma), the Ninth (the Pacific Coast and the states west of the Rockies), and the Eleventh (Alabama, Florida, and Georgia) -- these circuits remain free to reach their own conclusion.  Right now, there are cases pending in the Fifth, Sixth, and Ninth.   

There's More... :: (0 Comments, 437 words in story)

Supreme Court Term 2014-15: Part 3

by: tmess2

Sun Oct 05, 2014 at 11:02:58 AM EDT

While we will not know the full docket for all the months until late February or early March, November is looking like it might be the most significant month of the docket.

The first case is a returning case:  Zivotovsky v. Kerry.  This case involves a statute mandating that U.S. passports should show that the place of birth of any American born in Jerusalem is Israel.  For diplomatic reasons (namely that Jersualem's status is a central issue in on-going negotiations between Palestinians and Israel), the State Department refuses to comply with this mandate.  (The status of Jerusalem is an example of an issue in which candidates for office say one thing -- supporting Israel's position that its annexation of all of Jerusalem is final -- but then let the professional diplomats do something else -- avoid taking sides to be in a position to mediate the negotiations and push them toward a conclusion).  In past decades, this is a case that the court would avoid like the plague.  Last time that it took this case, the Supreme Court set aside an attempt by the lower court to punt this case on procedural grounds.  Now, it will have to decide whether this statute impermissibly infringes on an executive power or if the State Department has to follow the statute.  Whatever it decides will upset a lot of people. 

The other really, really big case involves the Alabama Democratic Party and the Alabama Legislative Black Caucus challenging Alabama's legislative redistricting plans.  While it is unlikely that even the fairest redistricting plan would give Democrats a chance in Alabama, what the Supreme Court says about the rules for drawing lines might make a difference in 2021 in some other states.

Besides these two cases, there are four other cases that are worthy of note. T-Mobile South v. City of Roswell involves the Telecommunications Act of 1996.  This act tried to encourage the spread of wireless services and mobile phones by placing limits on the ability of small towns to use zoning rules to completely ban cell towers.  In particular, the law requires that all decisions be made in writing and supported by a written record.  This suit involves whether a short order saying that the application is denied with no explanation of the reasons for the denial meets these requirements. 

Another case involves health care benefits for retirees in union contracts.  The employer takes the position that those benefits are not permanent and can be taken away from current retirees in a new contract.  The retiree takes the position that once granted as part of a contract, those rights are vested.  This case may end up turning on the specific wording of the union contract in question.

Also before the case is Maryland's state income tax law.  Most state income tax laws include a credit for income taxes paid in other states.  Maryland's does not.  This case will address whether such credits (essentially avoiding paying state income taxes on the same income twice) are constitutionally required.

Lastly, there is Yates v. United States.  On its face, this case is an overreach by a prosecutor -- using the anti-shredding provisions of Sarbanes-Oxley to reach the dumping of illegally caught fish by a fishing boat.  The odds that this conviction survives are very slim.  The bigger question is what the Supreme Court does to define what type of objects are covered by the statutory language banning the alteration, destruction, or concealment of any "tangible object."  Needless to say, Sarbanes-Oxley was passed in the wake of very gross misconduct by several major corporations (e.g., Enron), but with over a decade passed since that misconduct, will a business friendly Supreme Court try to water down these legal requirements.

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Supreme Court Term 2014-15: Part 2

by: tmess2

Sun Sep 28, 2014 at 18:54:45 PM EDT

The Supreme Court handles a wide variety of cases.  Some cases directly concern political matters (things like redistricting, campaign financing, separation of powers, elections).  Some cases are not directly political, but involve the issues that separate the two parties (health care, civil rights, worker's rights, gun control).  Some cases have the potential to impact a large number of people or are otherwise plainly significant, but tend to concern issues that are not center-stage in political debates (e.g. some criminal law issues, some intellectual property issues).  Other cases are important only to the lawyers who practice in the area (e.g. most bankruptcy cases, most intellectual property cases) but need the uniformity that only the Supreme Court can provide.  And occasionally, you get cases that involve legal principles taken to their absurd limits in lower courts.  For the most part, in my posts over the past several years on the Supreme Court, I have tried to focus on the first three groups.

This term we will see cases that fit into all five categories.  The term starts on October 6 with five days of argument (ten cases) in October.  There are three cases in October that are potentially significant.  First up is, Holt v. Hobbs, a case involving the Religious Land Use and Institutionalized Person Act.  This Act, is a limited restriction on state governments (mostly zoning and prison cases) similar to the Religious Freedom Restoration Act that was at the center of last term's case on contraceptive mandates.  The actual issue is one of those issues that seem minor enough to make this case one of those "absurd" cases that stumble up to the Supreme Court.  Arkansas prisons, for security reasons, ban beards.  Some Muslim inmates believe that Islam (or at least their version of Islam) requires them to have some beard, and want an accommodation to allow them to have very short beards (no more than one-half inch in length).  However, this case will give another indication about how far this Court's protection of religious liberty extends.

Also up in October is Integrity Staffing Solutions v. Busk.  Normally, most time spent at the work place getting ready for work, checking in and checking out, is not counted as time on the clock.  In some circumstances, however, those activities are closely connected enough to the job to count.  Here, the employer requires the staff to go through a security screening before leaving the job as an anti-theft security device.   The issue is whether this type of practice should count as time on the clock. 

October also brings us North Carolina Board of Dental Examiners v. Federal Trade Commission.  Normally, state licensing boards are exempt from anti-trust law even though one effect of state licensing requirements on professions and other businesses is to limit the number of members of the profession.  The Federal Trade Commission has taken the position that, because North Carolina law (like the law in many states) requires that the majority of the members of the Board be licensed in a dental profession, North Carolina has forfeited the "governmental" exemption for licensing boards.  In this case, the support for the FTC position comes from two main groups:  1) those trade associations representing groups (e.g. nurses) that are typically limited to a supporting role under current licensing schemes; and 2) certain conservative groups that see all licensing restrictions as unwarranted infringement on their preferred version of the free market (where the government has no role in keeping incompetent professionals out of the market place and any consumer unfortunate enough to use a quack doctor, dentist, or lawyer has to hope to recover something after a long, law suit with the decks stacked against them). 

Next post:  November's full docket(six major cases). 

 

Discuss :: (0 Comments)

Supreme Court Term 2014-15: Part 1

by: tmess2

Sat Sep 27, 2014 at 01:59:43 AM EDT

It's once again that time of year.  After taking three months attending conferences, vacationing, or whatever it is Supreme Court Justices do between July 1 and mid-September, the Supreme Court returns to business on September 29 with the infamous "Long Conference" when they dispose of most of the business that has piled up over the last three months.

At the present time, the Supreme Court has published their argument dockets for October, November, and December (32 cases over sixteen days).  In the 2015 part of the term, the Supreme Court will have twenty-three days which (assuming the typical two cases per day) means that they have room for 46 cases on this year's argument calendar.  Since they already have granted five cases that did not make the three months of arguments this year, that leaves 41 spots to fill between now and mid-January.  (I will cover the 37 cases on the argument docket in the remaining part(s) of this post later over the weekend and next week).

Obviously, over the summer, a lot of potentially big cases pile up.  (Attorneys for the sides that win below like being on the Long Conference for that reason in the hopes that their case will get lost in the shuffle.)  At the present time, there are two potentially big cases (or more to the point sets of cases) awaiting a decision on whether the Supreme Court will accept them for argument. 

The biggest of the two (in terms of sheer numbers at least) are the same-sex marriage cases.  Back in 2013, the Supreme Court found that the federal Defense of Marriage Act (denying federal recognition to same-sex marriages) was unconstitutional, but opted out of deciding if there was an actual constitutional right to same-sex marriage by finding a procedural reason to avoid deciding the validity of California's ban (leaving intact the lower court decision striking it down).  Since July 2013, most state and federal lower courts have rejected state bans on same-sex marriage (and state refusals to recognize same-sex marriages from other states).  These decisions are slowly working there way through the federal appellate court.  At the present time, the U.S. Supreme Court has applications from the Tenth Circuit (specifically, Utah and Oklahoma), the Fourth Circuit (specifically, Virginia), and the Seventh Circuit (specifically, Wisconsin and Indiana).  So far, all three federal appeals court to decide this issue have struck down state bans on same sex marriages.  However, there are cases pending in the Sixth Circuit (Ohio, Kentucky, and Tennessee) and the Fifth Circuit (Texas and Louisiana) which might come out in favor of upholding the restrictions.  While most people expect the Supreme Court to eventually take a case, it is unclear if the Supreme Court will rush to take one of the current cases or will wait to see what the remaining appellate courts do. (Of the eleven Circuits, three -- the First, Second, and Third -- are unlikely to face the issue as the states in those circuits allow same sex marriage; the three noted above have already ruled; three -- the Fifth, Sixth, and Ninth -- currently have appeals pending; and two -- the Eighth and the Eleventh -- do not yet have any appellate cases.) 

The other really big issue is the latest version of a dispute over the Affordable Care Act.  Some people who oppose universal health care keep on looking for new ways to attack the Affordable Care Act.  The latest theory is that the statutory language providing subsidies to middle-income families to purchase health care on exchanges only applies to individuals who purchase from a state-run exchange.  Since most states refused to set up their own exchanges, most people purchased their insurance from the federal exchange.  Under the theory presented in these cases, if you purchased insurance from the federal exchange, you don't get any subsidy to help you purchase health care.  Over the summer, a panel of the Fourth Circuit rejected this argument, but a panel of the D.C. Circuit accepted the argument.  When you lose before a panel of a federal appeals court, you have two options:  1) you can go straight to the U.S. Supreme Court or 2) you can ask for the full appeals court to review the case.  Seeing a conflict between two courts, the opponents of universal health care opted to go straight to the Supreme Court, bypassing the full Fourth Circuit.  Thus, the Supreme Court has the Fourth Circuit case on the Long Conference docket.  The federal government, on the other hand, decided to ask for a hearing by the full D.C. Circuit, and the D.C. Circuit granted that request.  For now, the Fourth Circuit case has not yet been scheduled for a conference (the U.S. receive an extension on their response, and it will probably be on one of the November conferences).  While anything could happen, it is likely that the Supreme Court will either turn down the request to review the Fourth Circuit or will wait to see what the D.C. Circuit does. 

There's More... :: (2 Comments, 776 words in story)

Another Senate Seat Leaving Republican Hands

by: DocJess

Thu Sep 11, 2014 at 17:09:49 PM EDT

A couple weeks ago, in Sunday with the Senators: How we Hold the Senate, I wrote that Kansas might be the 53rd Democratic Senate seat come January. I thought that it was possible that Chad Taylor would overwhelm Pat Roberts, who doesn't even live in Kansas. I hadn't expected that Taylor would pull out of the election, nor that the Independent, Greg Orman, would be polling as well as he is. Would Greg caucus with the Democrats? Most likely.

So. Chad Taylor withdrew from the race and none other than Kris Kobach decided not to let him. (It's hard to make this stuff up, if I could, I'd be writing novels for a living.) Kobach is best known for authoring the heinous Arizona kill-the-immigrants bill and other right wingnut nonsense. He's also currently Kansas' Secretary of State AND serving on Roberts re-election committee, which would have caused any reasonable person to withdraw from the decision, but hey. 

So Taylor sued. Kobach asked the Kansas Supreme Court to kick it down to a lower court, and today, they said no. The order is below. Basically, it says that next Tuesday Taylor will have 20 minutes to explain why he should be allowed to withdraw from the election, and then Kobach will have 20 minutes to explain his ineptitude why he said no. Taylor will say that Kansas law allows any candidate to drop out for any reason provided he/she does so prior to the closing date. What Kobach will say is anybody's guess: I'm hoping he invokes religion and immigrants. 

Discuss :: (3 Comments)

Going to War. Again.

by: DocJess

Thu Sep 11, 2014 at 06:55:41 AM EDT

After the jump are President Obama's full remarks as delivered last night to the nation. We are STILL at war, still cleaning up for the wanton destruction and destabilization caused by Shrub's desire to avenge Saddam's threat against his dad. 

I am concerned, and I may well be the only person I know who believes that this is a bad path. Is ISIS/ISIL bad news? Absolutely. Do they need to be routed out, decimated, and vanquished? For sure. Are we the people to do it? I don't think so.

There is no such thing as surgical air strikes without boots on the ground. That we know of, there are more than 11,000 Americans in Iraq and Syria right now. Providing targeting support and coaching the Pesh Merga, and possibly the Iraqis.

ISIS/ISIL is a threat to Arab countries of the Middle East, less so to the Western countries that have supplied fighters. When one's homeland is attacked, these are the people who should be on the front lines. Where is the support from Saudi Arabia? Where is the actual support from the non-Kurdish Iraqi government? Where are the Turks? Until there is verifiable support from all of these people, as well as the Arab League, I say we adopt a do-nothing approach. No one seems to be asking what happens if we stand down until others step up.

We're looking at an unwinnable situation. One that's not all that different from the incursion into Iraq the last time. "Shock and Awe" first, and then more and more ground troops. And say we are able to push ISIS/ISIL - where will they go? Does going after them align us with the Sunnis against the Shi'ites? Does this align us with Iran and Al-Assad, even though we have no diplomatic ties with either? Is there a chance that ISIS/ISIL will attempt to overtake Mecca and Medina? Will we end up obligated to fight within Saudi Arabia where our women soldiers are not allowed to drive cars? 

Too many questions on this, the anniversary of 9/11.

Make haste slowly. 

There's More... :: (2 Comments, 1986 words in story)
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Quick Hits
Supreme Court Declines to Review Same-sex Marriage Cases (tmess2)
Supreme Court Upholds Michigan Ban on Affirmative Action in College Admmissons (tmess2)
Supreme Court Strikes Down Aggregate Limits on Campaign Contributions (tmess2)
OK February Jobs Report: +175,000 Jobs (SarahLawrence Scott)
January Jobs Surveys Continue to Show Murky Picture (SarahLawrence Scott)
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