On January 18, 2012, Missing the Point is joining other blogs, websites, and service providers to protest the ham-handed SOPA and PIPA bills being considered by the US government.  Here at Missing the Point, we believe strongly in intellectual property rights.  However, we also believe in many other rights, including  free speech, freedom of the press, and due process.  These two bills bypass due process and have the potential to disrupt the internet, while massively interfering with free speech and the free press.  This is not the proper way to protect intellectual property rights, and will likely not even protect the intellectual property for those that most need it protected.  I urge any who read this to join in the protest by whatever means they feel most comfortable doing, so long as the means chosen do not violate the rights of others.

For 24 12 hours, all content at Missing the Point will show up as censored, with a message explaining why.


The Failure of Frothingham

– this post also appears as a guest post on Dispatches from the Cuture Wars

Standing is a concept that has been much-maligned on Dispatches.  All too often it seems to be used as an excuse for a court to dodge a prickly situation.  But does it serve a valid purpose?  Is it merely being abused, or should it be scrapped entirely?
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For Our Canadian Correspondent

In the comments in the previous post, monado makes a request:

Post something else! It’s April!

If you’re short of inspiration, take your excellent explanation of Hawai’ian certificates of live birth from Ed Brayton’s blog and post that. It was admirably clear.

This of course is in reference to the claims that Obama is not qualified for President.  Specifically, that because Hawai’i issues COLB to certain individuals born outside of Hawai’i, his COLB doesn’t prove that he was born in Hawai’i.  Unfortunately, it looks like my original comment got mangled.  So here’s how it was supposed to look:

IF Obama were a Natural Born Citzen, he would have long ago produced his Birth Certificate (the Certificate of Live Birth is NOT even accepted by Hawaii as proof of Hawaiian Birth )

Incorrect. The reason the short form (COLB) is insufficient for proof of Native Hawai’ian birth is because the short form doesn’t have proof that the parents are Native Hawai’ians. And by Native Hawai’ian, I mean descended from the original, indigenous population, the Hawai’ian equivalent of Native Americans.

For everything but certain genealogical data, the COLB is legally the equivalent of a certified photocopy of the original. That means that a COLB is sufficient proof of citizenship to get a driver’s license, register to vote, get a government job, get a passport, and even become President of the United States of America.

(I also had wanted to respond to Michael Raston in the same post, but that part and the quote from Gregory Black somehow got deleted, and I can’t remember what I said).  A followup to that comment:

wrt COLB for non-Hawai’ian birth:

If the parents of a child born outside of Hawai’i lived in Hawai’i as their primary residence for at least a year before the child was born, they can request a birth certificate issued by Hawai’i. One reason is for the extra information required for the indigenous population program I mentioned earlier. The other reason is more pragmatic: Hawai’i is in the middle of the world’s largest ocean. Although not as difficult as it once was, it’s a major expense for someone to get certified documents if they are not stored on the archipelago. However, as noted, the vault copy and any other copy, such as the short form (often called the COLB, even though the long form acronym also is COLB) by law must have the accurate place of birth.

For similar reasons, adoptive parents may also request a Hawai’ian birth certificate. I am unaware of any provisions for immigration (and would be surprised if there were, because the immigration documents should have the necessary information).

Hope that clarified things.

Caldwell Denied, Caldwell Wins

The most recent Establishment Clause lawsuit presented to the Supreme Court, Caldwell v. Caldwell (no relation), was denied a writ of certiorari by the Court today. The suit was filed by Jeanne Caldwell, wife of the infamous Larry Caldwell (who is known for filing frivolous lawsuits against teaching evolution). The defendant was UC Berkeley (coincidentally, the lead defendant is also named Caldwell), which maintains the Understanding Evolution website. The lawsuit was previously dismissed at the District and Circuit Court levels due to lack of standing. This denial of cert officially ends the lawsuit.

No Can Has Cert, Berg

Jan 12 2009  Petition DENIED.

The Supreme Court announced today, in a totally expected move, that they were denying certiorari to Philip Berg’s quixotic attempt to prevent Obama’s ascendancy to the office of President of the United States of America.  This also makes moot this Friday’s hearing on the injunction pending disposition of cert – the cert has been disposed.  Properly.  In the circular file.  Rumors of hysterical laughter emanating from chambers are as yet unsubstantiated.

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Vegas Vicarious

I have great news!  I will be guest blogging for Ed Brayton over at Dispatches from the Culture Wars.  Ed is going to Vegas this week – anyone who follows his blog know that he enjoys gambling.  Since he usually posts 5 times a day, he invited several bloggers to  fill in for him.  He pulled together a crack team of bloggers: Radley Balko, Chris Rodda, Jon Rowe, James Hanley, and the infamous DarkSyd, a veritable Who’s Who of legal blogging.  So why me?

He’s a gambler.  It’s no fun going with just the safe bets, eh?

So join me over at Dispatches all week long, and maybe I can kick start my own creative juices.

2nd Summary Judgment – Followup

This is a brief followup to my previous post.  In addition to the numerical error, there was some confusion from my readers about the use of the original expert witness reports.  The original expert witness reports, which were timely, covered the seven courses named in the complaint.  However, they did not address the as-applied challenges to the individual course rejections, only the facial challenges to the policies.  When the plaintiffs finally identified the 41 course rejections they were challenging, they dropped two of the original seven from the list, and then three more after UC objected.  This left 33 new courses (not offered by Calvary Chapel), four original courses offered by Calvary Chapel, and one original course not offered by Calvary Chapel.  ACSI submitted supplemental reports/affadavits (they submitted them as both types of documents just in case one type was precluded) for all 38 of the courses, this time arguing specifically for the as-applied challenge (and specifically for unreasonableness).  The judge rejected the supplemental reports, leaving only the original reports for the 5 remaining courses named in the Complaint.

As I noted, these original reports only addressed the facial policies.  The evidence offered in a facial challenge can be used to demonstrate that the policy, on its face, is unreasonable.  But once that policy is determined to be reasonable (as was determined in the first partial summary judgment), the evidence offered must demonstrate that the course would not have been rejected by a reasonable person working under the guidelines of the policy.  In other words, did the course meet the requirements listed by the policy?  That is an entirely different kettle of fish.

So the plaintiffs tried to shoehorn their old evidence into the new standard of review.  The problem was, for each course, the evidence they provided failed to demonstrate that they had met the listed requirements for that type of course.  For example, one of the requirements for a literature course is that whole works be used as the primary text, not anthologies or short stories.  Rather than argue that they met the “whole works” req, ACSI argued that the other courses approved by UC had used texts by the same authors in the anthology ACSI used.  This analysis also failed to address whether the works of those authors in the approved courses were whole works or part of anthologies.

Of particular interest to many of my readers is the biology course.  Although UC challenged this course based on standing*, the judge declined to address the standing issue for this course (and since it was based on prudential standing, not constitutional standing, the judge could use his discretion on the issue).  Dr. Behe, a familiar face to those following creationism, provided the expert report. The portion of his report that ACSI offered up tried to demonstrate that the Christian textbooks met the state BOE standards as well as certain secular textbooks.  He did this by analyizing whether a topic was mentioned in the books (even going so far as to include misreperesenting a scientific claim as mentioning a topic, because a teacher could use that as a launching point for further discussion! – though he didn’t quite word it that way, of course).  His criteria was merely a mention of the concept, openly admitting “I did not consider how much detail or depth a text went into on a given standard.”  See pages 2-3.  The problem, aside from using a standard that UC is not obligated to accept, is that doesn’t meet the requirement for content – and Behe acknowledged what that requirement was.  Behe cites the requirements on page 17-18:

Certification Categories.  Generally, courses that are suitable for satisfying the minimum requirement will fall into one of three categories: 

  1. College preparatory courses in biology, chemistry, or physics.
  2. College preparatory courses which may incorporate applications in some other scientific or career-technical subject area, but which nonetheless cover the core concepts that would be expected in one of the three foundational subjects.  A few examples could include some courses in marine biology or agricultural biology, which may qualify as providing appropriate content in basic biology; and some advanced courses in earth and space sciences, which may provide suitable coverage of chemistry or physics.  These are only examples; other possibilities exist.  Hoever, it is emphasized that courses in this second category must cover, with sufficient depth and rigor, the essential material in one of the foundational subjects in order to qualify for “d” certification.

Behe then follows with the following observation: “It seems clear from this description that the university’s prime concern is that the “essential material in one of the foundational subjects” must be covered…”  Correct, but Behe neglected to mention the part about “with sufficient depth and rigor” – which he previously admitting not having evaluated.  Behe failed to produce evidence that the rejection was unreasonable because he abdicated the discussion of whether the course met the stated requirements.

In a similar vein, ACSI had no evidence for the unreasonableness of other course rejections.  The evidence ACSI produced was merely “a thin veneer” quickly destroyed by the judge.


*Allowing myself to get distracted tracking down whether UC objected to the course is the root cause of why I made the numerical error in the previous post.

-Edited for wordpress display issues (stupid indents not working with numbered lists)