Not another boring law post!

OK, I lied, it is another boring law post. But, it will be interspersed with really bad attempts at humor, and a heartwarming story about Walter, the three-toed sloth who overcame debilitating bouts of narcolepsy.

In the pantheon of idiotic and demonstrably ridiculous statements, I rate “Lawyers are smarter than regular folk” somewhere between “I did not have sex with that woman, Ms Lewinsky” and “I was abducted by aliens from the Paramis, New Jersey Holiday Inn, and they took me to their spaceship and shoved a probe in my ass.”

Today’s refutation of that statement (the lawyers, not the anal probing Aliens) is brought to us by someone via email. Since the law article I am about to ridicule peripherally deals with IVAW, I am assuming that Raoul sent it, but I mistakenly erased the email when I got angry about it’s’ contents. If they ever have a Library of Congress for all things IVAW, Raoul would be the Chief Librarian. (This analogy is completely ridiculous, because I have never once heard the Chief Librarian at the Library of Congress openly wish that the library was relocated to the bottom of the Adriatic, but you get the idea.)

Anyway, this piece of (charitably characterized) Asshattery is brought to you by Daniel McFadden of the Boston College School of Law. (If Daniel’s Mom is reading this, I hate to malign a good Scot like Daniel, but his paper is ridiculous.) Seriously, this paper does for law what cannibalism did for cuisine. If I gave construction paper and a crayon to a kid wearing a hockey helmet on a short bus and asked him to draw something, I would have a better than average chance of getting something more incisive than “A First Amendment Analysis of Military Regulations Restricting the Wearing of Military Uniforms by Members of the IRR who Participate in Politically Themed Theatrical Productions.”

Ugh. (Why do we always come here, I really do not know. It’s kind of like a torture to have to watch this show.)

The premise of this pile of animal leavings is that Kokesh and his ilk should be allowed to wear their uniforms when they and their REMF buddies fake-walk patrols down the mean streets of the East Village. The paper is very well written and researched in the sense that it uses proper English and has a footnote at the end of virtually every sentence, none of which am I checking. I am fairly certain that Daniel has/had a GPA from BC that was at least a full point north of my Law GPA, and it shows in his writing style. I remember reading once about a OER that said that an officer was of two minds: one was lost and the other was out searching for it. Perhaps this notional officer should expand his search for a premise for this paper which might make even a modicum of sense.

First, my major complaint is not about what is in the Note, but rather what isn’t, namely, the issue of Contracts. When you join the military, it is a contract for 8 years. When in the IRR, you are still under contract, so a failure to even mention this is idiocy by omission. I question whether this guy picked a topic, researched it, found it wanting and realized he still had to turn something in. Reminds me of my 4th grade, 200 word writing assignment on my school vacation that was (and I quote here): very, very, very, very, very good.

The NFL requires it’s coaches to wear NFL attire when on the sideline. Even that demigod Bill Belichick is required to do so. (Although, like Charlie Sheen in Major League, Belichick expertly applied the scissors.) If the coach refuses to do that, the NFL fines him, or dumps him. Likewise, if I arrived for work tomorrow, prepared to walk the Halls of Congress decked out in rubber boots, a G string and a stove top hat, my employer would likely have me fired and put in a mental asylum, as they should. (Dennis Miller-esque reference incoming) I would be regarded like Dr. William Buckland whom Charles Darwin referred to as a “vulgar and coarse buffoon.”

And yet, in this note, there is no mention of the contractual aspects, which, as you will see in a second, would play a large part.

So anyway, The Good Dr McFadden states on page 1138 that

Although administrative separation is not punitive, it is adverse in the sense that the servicemember is fired and may be assigned an undesirable characterization of service upon discharge.

Go ahead and read that sentence again, I’ll wait. OK, now square that with statements on pages 1146 and 1172:

1146: Consequently, under current military policy, IRR members like Kokesh may be and have been punished by administrative separation for conduct that would be entirely lawful if performed by a person lacking military affiliation.

1172: The government has punished members of the IRR for engaging in uniform-related expression that is generally permissible.

Dude, what kind of redefinition of the word “punitive” do you need to do to work through those sentences? Unless you are reading this from fluffy bunny land (Hi ArmySergeant!) then those statements are not compatible.

Administrative separation is not punitive. No legal contortions by Boston College Law Students can make it so. You sign up for 8 years. You act like a crap sandwich on a stick in the rain, and they boot you. Not unlike having a work related retirement at 20 years, you can’t walk in and urinate on your bosses desk at 19 years 2 days and expect to walk away to wait for the checks to arrive in the mail. Actions have consequences, and Adam et al were well aware of what those were. I know, because I have had that exact briefing on about 50 occasions, and fell asleep in damn near every one of them.

Another aspect of this paper really angers me, but I will make it quick because I know everyone is waiting on the story of Walter. McFadden repeatedly characterizes the IRR like it was a woman’s bridge club or something:

Unless recalled to active duty, IRR members live and work in the civilian community, perform no military duties except occasional ministerial functions designed to ensure readiness for recall, receive no salary or substantial employment benefits from the military, and are not governed by the military justice system.

While true, this has NOTHING TO DO WITH ANYTHING. They ARE subject to recall, they signed up and they have yet to finish doing what they had contracted to do. When they successfully complete the IRR time, they get a discharge and receive the benefits. And part of the obligation you have during this period is to refrain from acting like a total assclown, which is to say, by NOT wearing the uniforms given to you by the military to do “street theater.” (Poll question: Street Theater guy or Mime, which one would you drown first if you were on a deserted island together?)

As regards the IRR and their uniforms, the author seemingly had a word limit, and put in some somewhat pointless discussion of the history of street theater and military veterans which actually cuts against his own position. I don’t honestly know why he included it, but some of you may find parts of this funny. One paragraph in particular had me guffawing. (That boom you hear is Raoul’s head exploding)

While advocating an end to the Vietnam War, members of VVAW employed the components of military uniforms in order to achieve several objectives. First, VVAW members wore elements of military uniforms in order to communicate and confirm their status as recently discharged veterans, an element of personal identity to which they attributed the unique credibility of their message. (footnotes omitted, see below)

You mean like this guy?

The footnote for the above had this:

See id. (some dopey book) at 101 (stating that, in response to insinuations by President Nixon that many veterans of VVAW were not actually veterans, VVAW encouraged participants in a demonstration in Washington, DC to wear their uniforms and medals during the event as proof of their authenticity.)

BWAHAHAHA. Reminds me of the WSI guy who threw his medals and everyone clapped, thankfully drowning out the sound of Jonn and I laughing our 4th points of contact off. These clowns wouldn’t know “Authenticity” of they were wearing it on their uniforms besides the CIBs they earned but the Army lost their paperwork on.

OK, so why all the venom for this paper? Because in the ecosystem that is law, these people actually occasionally listen to each other, and this paper would only be good if it was printed on Charmin and distributed in port-o-johns at Ft Polk. He talks about military deference, and then says not to follow it because, gee wilikers Wally, these guys are just civilians anyway. And they’re not, they are guys who haven’t completed their period of service that they signed up for. And what pisses me off is anyone who had the knowledge that Drill Sergeants install in the most 2nd week privates would have recognized this crap for what it is. Does BC not run this crap by someone? I thought Law Review was supposed to be the best and the brightest. I admit that if a madman killed all but 4 of my classmates, I would be the fifth one selected for law review, but damn man…..

And that is why I dub Daniel, The Worst Person In the World!!!! {insert KO voice here}

And if you disagree with me, than you sir, are worse than Dick Jauron.

Oh, and this is Walter. He died. It’s heartwarming to people like me who hate sloths. Damn thing tried to steal my title as the most lethargic semi-sentient being in our galaxy.

Category: Politics