From Steinbuch v. Pulaski County Circuit Court, decided today by the Arkansas Supreme Court (note that the lead plaintiff is a professor at the University of Arkansas at Little Rock):

Judge Welch presided over a civil action involving whether licensed attorneys in Arkansas are "officers of the court" and thus authorized under Arkansas Code Annotated section 5-73-122(b) to carry firearms in courthouses. The plaintiffs were Arkansas attorneys. Their complaint sought a declaratory judgment and injunctive relief. The defendants—the Pulaski County Sheriff and the Pulaski County Judge—filed a motion to dismiss the complaint. Judge Welch granted the motion to dismiss. Judge Welch ruled not only that the plaintiffs were procedurally barred from bringing the action but also that "an interpretation of ACA § 5-73-122 as suggested by the Plaintiff, [would] be [u]nconstitutional." Judge Welch also concluded that the "Plaintiff's [a]rgument fails, as it is founded upon a flawed premise that mis-reads the plain meaning of ACA § 5-73-122."

The plaintiffs appealed from the dismissal order. The appeal brought the interpretation of section 5-73-122 before this court. We affirmed in part and reversed and remanded in part. We held the statute's use of "officers of the court" included attorneys and that the statute allows them to possess handguns in courthouses. We therefore concluded that "the circuit court erred when it denied … plaintiffs' petition for a declaratory judgment." The charge on remand was not complex—Judge Welch was instructed to "enter an order consistent with this opinion."

Upon remand, Judge Welch entered a "Temporary Order on Lawyer/Officer-of-the-Court Carry, Partial Stay, Notice of Hearing, and Order of Partial Dismissal." The following includes some relevant excerpts from his order:

The Opinion [referring to this court's Corbitt decision] limits the Supreme Court's Superintending Authority over courts under Amendment 80. It also creates a new class of unlicensed, heretofore untrained, armed lawyers in courthouses of the State, in apparent conflict with the myriad of legislative enactments promoting carry permits….

The "Lawyer/Officer-of-the court Carry" Opinion ("LOCO," hereafter) ….

"Stakeholders" (In addition to the Sheriff, and the other parties), including Police Chiefs, and District Court Representatives will be invited to attend and submit input, on application, as Amici. The Court anticipates more than one hearing may be necessary to implement the vision of the Supreme Court….

IT IS ORDERED that PENDING THE HEARING, further implementation of "The Lawyer/Officer-of-the court Carry" Opinion in this case SHALL BE STAYED except as concerns the FIRST FLOOR of the Pulaski County Courthouse ….

Judge Welch proceeded to enter various additional stays of this court's opinion pending a hearing scheduled in August 2024…. [W]e issued notice to Judge Welch that his order may have violated the Code of Judicial Conduct….

The substance of Judge Welch's response can be summed up under two points. First, Judge Welch understood this court's mandate in Corbitt, which reversed and remanded his prior decision, as a charge to conduct further proceedings. He took that as his duty to consult with others, issue a variety of orders, and implement the court's decision as he deemed practical and appropriate, and "that is what … Judge [Welch] did." He was wrong. His written response contains the following explanations:

For example, on April 22, 2024, Judge Welch began researching and reviewing other applicable laws and regulations that might impact the manner in which he would carry out this Court's holding. …

He also toured the North Little Rock District Court Complex; he reviewed layouts of other courthouses; and he met with numerous colleagues and county officials….

The varying floor plans of Pulaski County's many courthouses presented unique challenges not contemplated in the Corbitt Appeal Opinion or Mandate. He listened to the frustrations of those directly impacted by this Court's decision….

He issued the May 7 Order, the intent of which was to create a procedure for holding "further proceedings consistent with this [Court's Corbitt Appeal] opinion," while simultaneously balancing the valid safety concerns addressed in neither the Corbitt Appeal Opinion nor Mandate.

Second, Judge Welch explains that he meant no disrespect to this court but that his "style, diction, and delivery are consistent with the vigorous written debate that has defined our judiciary for over a century." He believes he properly exercised his right of free speech but "admits that some of its characterizations should not have survived the editor's pen … [and that his] diction may have deserved greater care and forethought." He also suggests that injury to reputation should not quash the right to free speech and that he spoke on a matter concerning the safe administration of justice….

This court is exercising its superintending authority under Amendment 80, section 4 of the Arkansas Constitution….

Rule 1.2 [of the Code of Judicial Conduct] provides that

[a] judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.

We find that Judge Welch's order failed to promote confidence in the judiciary. It did the opposite and undermined public confidence. Labeling and referring to an opinion by the Supreme Court of Arkansas as "LOCO" erodes public confidence. His written opinion stating that the Supreme Court's opinion "creates a new class of unlicensed, heretofore untrained, armed lawyers in courthouses of the State" also erodes public confidence. To suggest that this court created a class of armed lawyers is dangerous, and it undermines the public's understanding of the judiciary's role. In Corbitt, we interpreted a statute passed by the Arkansas General Assembly. We interpret laws, we do not make them, and Judge Welch's suggestion to the contrary damages the public's view of the separation of powers and the role of the judiciary.

His response does not demonstrate that he understands the severity of his conduct. Suggesting that his comments were consistent with "the vigorous written debate that has defined our judiciary for over a century" is misguided. A trial court is not "participating in rigorous debate" when it receives a mandate from an appellate court and issues an order staying most of it and labeling it as "LOCO." That is disingenuous.

Imagine if circuit courts across this state were to ignore mandates and stay orders of the Supreme Court of Arkansas and our Court of Appeals. It would be unprofessional, rebellious, and harmful to the public's confidence in the judiciary's ability to follow its own rules. As judges, we must follow our established framework if we expect others to do the same. Judge Welch's actions had no place on the bench, and it is disheartening that, when given an opportunity to reflect, he failed to recognize the impact of his actions. The public must have confidence that judicial orders will be followed and that appellate mandates will be carried out. We find that Judge Welch violated Rule. 1.2….

Rule 2.2(A) provides that

[a] judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially.

The comment explains that "[a]lthough each judge comes to the bench with a unique background and personal philosophy, a judge must interpret and apply the law no matter if the judge approves or disapproves of the law in question." Judge Welch made it clear in his written order that he disagreed with this court's interpretation of the statute and with the statute itself. His opinion was sprinkled with disparaging remarks about the court's interpretation of the statute. He then purported to stay an opinion and a mandate of the Supreme Court of Arkansas for three months because he "believe[d] a need for restraint pending the Hearing [was] required before the influx of Lawyers Officers." Judge Welch exceeded the role of circuit judge by staying our decision. {We note that, although Judge Welch attempted to stay the implementation of our mandate, he had absolutely no authority to do so. Lower courts are vested with jurisdiction only to the extent conferred by this court's opinion and mandate, and any proceedings on remand that are contrary to the directions contained in our mandate are considered null and void.}

Judge Welch had earlier declared the statute unconstitutional; on appeal, this court disagreed and concluded that Judge Welch had erred by denying the plaintiffs' petition for declaratory judgment. On remand, any learned judge would know that the next step is to enter judgment for the plaintiffs—not to stay the supreme court's order and sua sponte attempt to create an administrative scheme that redefines the legislation and this court's mandate. A declaratory-judgment action seeks a declaration one way or another. It does not ask a judge to initiate and create an administrative scheme for application of a statute. That is not the role of the circuit court.

Further, the principle of fair and impartial treatment forbids judges from conducting independent fact-finding and ex parte discussions involving a case. Yet Judge Welch's response states that, following the Corbitt opinion and before entering his subsequent order, "[h]e also toured the North Little Rock District Court Complex; he reviewed layouts of other courthouses; and he met with numerous colleagues and county officials." This is independent fact-finding and ex parte communication. We find that he neither performed his duties impartially nor left his personal views behind him and he violated Rule 2.2….

Rule 2.3(B) states that

[a] judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, and shall not permit court staff, court officials, or others subject to the judge's direction and control to do so.

The comment explains that examples of bias include the use of demeaning nicknames or negative stereotyping. Using the word "LOCO" to refer to an opinion from the Supreme Court of Arkansas violates this rule. Judge Welch is a circuit judge with Amendment 80 general jurisdiction. According to the Sixth Judicial District's Administrative Plan, he is one of the circuit judges who hears cases in the civil-commitment mental-health court, thus we think he should be more circumspect with his word choice. Using the Spanish word loco, meaning crazy, cavalierly referring to another court's judicial order in a joking manner exceeds the bounds of appropriate judicial behavior. And when given an opportunity to respond, to admit only that he should have had better editing skills, suggests a lack of judicial maturity and reflection. We find that Judge Welch violated Rule 2.3.

We are also mindful that this court in 2012, acting on encouragement from Arkansas members of the American Board of Trial Advocates, added the following pledge of civility to the Attorney Oath of Admission to the Bar of Arkansas:

I will maintain the respect and courtesy due to courts of justice, judicial officers, and those who assist them.

To opposing parties and their counsel, I pledge fairness, integrity, and civility, not only in court, but also in all written and oral communication.

It is not lost on this court that we administered this oath to the newest members of the Bar of Arkansas on May 3, 2024, only to have Judge Welch undermine it four days later, on May 7, 2024.

Because this court finds that Judge Welch has violated Rules 1.2, 2.2, and 2.3 of the Code of Judicial Conduct, we formally admonish him. Given his failure to recognize the severity of his actions, we order the following remedial measures:

• Enroll and complete Ethics and Judging: Reaching Higher Ground (JS 601), a web-based 6-week course with the National Judicial College from June 10 to July 25, 2024.
• Complete another 3 hours of ethics continuing legal education by September 30, 2024.

… Judges must be circumspect in their official roles and while presiding over a case. Judge Welch expressed his frustration at the wrong time and in the wrong manner. This court does not make law. His actions as a member of the Arkansas Bar were unacceptable and indeed fell far below what we expect from a member of the judiciary….

I'm skeptical of some of the analysis: For instance, I don't think that characterizing a higher court's decision as "creat[ing] a new class of unlicensed, heretofore untrained, armed lawyers in courthouses of the State" (as opposed to merely interpreting the law) is sanctionable misconduct. Likewise, the problem with labeling a court opinion as "LOCO" strikes me as unrelated to whether the judge "hears cases in the civil-commitment mental-health court," and unrelated to concerns about "bias" and "prejudice" as the Code of Conduct seems to use those words. Nonetheless, it does seem to me that trial judges ought not be labeling higher court opinions "LOCO," or staying higher court opinions for months because they think they're unsound.

The post Arkansas S. Ct. Formally Admonishes Judge Whose Order Characterized S. Ct.'s Opinion as "LOCO" appeared first on Reason.com.

I've always been partial to the Stoic philosophers. Something about their approach to life has always resonated with me:

"The Stoic virtues of Courage, Temperance, Justice, and Wisdom offer a timeless roadmap to living a life of purpose and integrity. These virtues are not mere abstract ideals but practical principles that guide our actions, decisions, and character. — Read the rest

The post Some of my favorite quotes from Stoic philosophers appeared first on Boing Boing.

Kat Abu on TikTok and Media Matters have revealed that a Fox News guest, identified as James Lee, has a contentious past that was not disclosed on air. James Lee, whose full name is James Lee DePaola, appeared on Jesse Watters' show to discuss crime, but Watters failed to mention DePaola's prior violent behavior over trivial matters, such as a dispute over a grilled cheese sandwich. — Read the rest

The post Fox's Jesse Watters hides guest's violent past: the grilled cheese incident exposed appeared first on Boing Boing.

The sorry history of anti-miscegenation and forced sterilization laws in the U.S. provides ample evidence that preemptive government interference in the reproductive decisions of its citizens should be strongly rejected. In a free society, the default should be that individuals are best situated for weighing the costs and benefits, moral and material, with respect to how, when, with whom, and whether they choose to become parents.

The now infamous Alabama Supreme Court decision earlier this month essentially outlawing the use of in vitro fertilization (IVF) by would-be parents highlights the consequences of unwarranted government meddling in reproductive decisions all too well. At its most basic, IVF is a treatment for infertility involving the fertilization of eggs in a petri dish with the goal of installing them afterward in a woman's womb where they have a chance to implant and hopefully develop into a healthy baby. Since the implantation of any specific embryo is far from guaranteed, IVF often involves creating several embryos that are stored in liquid nitrogen that could be made available for later attempts at achieving pregnancy.

Some 12 to 15 percent of couples in the U.S. experience infertility. Fortunately, since 1981 many infertile folks have been able to avail themselves of IVF and assisted reproduction techniques with the result that more than 1.2 million Americans have been born using it. Currently, about 2 percent of all babies in the U.S. are born through assisted reproduction. A 2023 Pew Research poll reported that "four-in-ten adults (42%) say they have used fertility treatments or personally know someone who has." Given the wide public acceptance and ubiquity of IVF, it is no surprise that a new Axios/Ipsos poll finds that two-thirds of Americans oppose the Alabama court ruling that frozen IVF embryos are the equivalent of born children.

The moral intuition that embryos are not people implied by these poll results reflects what research has revealed about the fraught and complex biology of uterine implantation and pregnancy. In both IVF and natural conception most embryos will not become babies. Research estimates that between 50 to 70 percent of naturally conceived embryos do not make it past the first trimester. In other words, one foreseen consequence of conception through sexual intercourse is the likely loss of numerous embryos.

In his 2012 Journal of Medical Ethics article, University of Illinois Chicago philosopher Timothy Murphy argued that the moral good of the birth of a child counterbalances the unwanted but nevertheless foreseen loss of other embryos in both natural and IVF conception. Again, polling suggests that most Americans endorse this moral reasoning.

In another 2012 article speculating on the metaphysical ramifications of endowing embryos with souls, Murphy basically recapitulates the line of reasoning in my 2004 article asking, "Is Heaven Populated Chiefly with the Souls of Embryos?" There I suggest that "perhaps 40 percent of all the residents of Heaven were never born, never developed brains, and never had thoughts, emotions, experiences, hopes, dreams, or desires."

Murphy similarly concludes, "Since more human zygotes and embryos are lost than survive to birth, conferral of personhood on them would mean—for those believing in personal immortality—that these persons constitute the majority of people living immortally despite having had only the shortest of earthly lives."

Metaphysical conjectures aside, former President Donald Trump clearly knows where most Americans stand on IVF. "We want to make it easier for mothers and fathers to have babies, not harder! That includes supporting the availability of fertility treatments like IVF in every State in America," he posted on Truth Social. He's right.

Now, the 124 denizens of the House of Representatives (all Republicans) who cosponsored just over a month ago the Life at Conception Act are scrambling to explain that, no, they did not really mean that every frozen IVF embryo is a "human person" entitled to the equal protection of the right to life. As a butt-covering move, Rep. Nancy Mace (R–S.C.) is circulating a House resolution "expressing support for continued access to fertility care and assisted reproduction technology, such as in vitro fertilization."

More substantially, Sen. Tammy Duckworth (D–Ill.) is pushing for the adoption of the Right to Build Families Act that states, "No State, or official or employee of a State acting in the scope of such appointment or employment, may prohibit or unreasonably limit…any individual from accessing assisted reproductive technology."

The post Parents, Not the Government, Should Make IVF Decisions appeared first on Reason.com.

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The world-famous Bayreuth Festival in Germany, annually centered around the works of composer Richard Wagner, launched this summer on July 25 with a production that has been making headlines. Director Jay Scheib, an MIT faculty member, has created a version of Wagner’s celebrated opera “Parsifal” that is set in an apocalyptic future (rather than the original Medieval past), and uses augmented reality headset technology for a portion of the audience, among other visual effects. People using the headsets see hundreds of additional visuals, from fast-moving clouds to arrows being shot at them. The AR portion of the production was developed through a team led by designer and MIT Technical Instructor Joshua Higgason.

The new “Parsifal” has engendered extensive media attention and discussion among opera followers and the viewing public. Five years in the making, it was developed with the encouragement of Bayreuth Festival general manager Katharina Wagner, Richard Wagner’s great-granddaughter. The production runs until Aug. 27, and can also be streamed on Stage+. Scheib, the Class of 1949 Professor in MIT’s Music and Theater Arts program, recently talked to MIT News about the project from Bayreuth.

Q: Your production of “Parsifal” led off this year’s entire Bayreuth festival. How’s it going?

A: From my point of view it’s going quite swimmingly. The leading German opera critics and the audiences have been super-supportive and Bayreuth makes it possible for a work to evolve … Given the complexity of the technical challenge of making an AR project function in an opera house, the bar was so high, it was a difficult challenge, and we’re really happy we found a way forward, a way to make it work, and a way to make it fit into an artistic process. I feel great.

Q: You offer a new interpretation of “Parsifal,” and a new setting for it. What is it, and why did you choose to interpret it this way?

A: One of the main themes in “Parsifal” is that the long-time king of this holy grail cult is wounded, and his wound will not heal. [With that in mind], we looked at what the world was like when the opera premiered in the late 19th century, around the time of what was known as the Great African Scramble, when Europe re-drew the map of Africa, largely based on resources, including mineral resources.

Cobalt remains [the focus of] dirty mining practices in the Democratic Republic of Congo, and is a requirement for a lot of our electronic objects, in particular batteries. There are also these massive copper deposits discovered under a Buddhist temple in Afghanistan, and lithium under a sacred site in Nevada. We face an intense challenge in climate change, and the predictions are not good. Some of our solutions like electric cars require these materials, so they’re only solutions for some people, while others suffer [where minerals are being mined]. We started thinking about how wounds never heal, and when the prospect of creating a better world opens new wounds in other communities. … That became a theme. It also comes out of the time when we were making it, when Covid happened and George Floyd was murdered, which created an opportunity in the U.S. to start speaking very openly about wounds that have not healed.

We set it in a largely post-human environment, where we didn’t succeed, and everything has collapsed. In the third act, there’s derelict mining equipment, and the holy water is this energy-giving force, but in fact it’s this lithium-ion pool, which gives us energy and then poisons us. That’s the theme we created.

Q: What were your goals about integrating the AR technology into the opera, and how did you achieve that?

A: First, I was working with my collaborator Joshua Higgason. No one had ever really done this before, so we just started researching whether it was possible. And most of the people we talked to said, “Don’t do it. It’s just not going to work.” Having always been a daredevil at heart, I was like, “Oh, come on, we can figure this out.”

We were diligent in exploring the possibilities. We made multiple trips to Bayreuth and made these milimeter-accurate laser scans of the auditorium and the stage. We built a variety of models to see how to make AR work in a large environment, where 2,000 headsets could respond simultaneously. We built a team of animators and developers and programmers and designers, from Portugal to Cambridge to New York to Hungary, the UK, and a group in Germany. Josh led this team, and they got after it, but it took us the better part of two years to make it possible for an audience, some of whom don’t really use smartphones, to put on an AR headset and have it just work.

I can’t even believe we did this. But it’s working.

Q: In opera there’s hopefully a productive tension between tradition and innovation. How do you think about that when it comes to Wagner at Bayreuth?

A: Innovation is the tradition at Bayreuth. Musically and scenographically. “Parsifal” was composed for this particular opera house, and I’m incredibly respectful of what this event is made for. We are trying to create a balanced and unified experience, between the scenic design and the AR and the lighting and the costume design, and create perfect moments of convergence where you really lose yourself in the environment. I believe wholly in the production and the performers are extraordinary. Truly, truly, truly extraordinary.

Q: People have been focused on the issue of bringing AR to Bayreuth, but what has Bayreuth brought to you as a director?

A: Working in Bayreuth has been an incredible experience. The level of intellectual integrity among the technicians is extraordinary. The amount of care and patience and curiosity and expertise in Bayreuth is off the charts. This community of artists is the greatest. … People come here because it’s an incredible meeting of the minds, and for that I’m immensely filled with gratitude every day I come into the rehearsal room. The conductor, Pablo Heras-Casado, and I have been working on this for several years. And the music is still first. We’re setting up technology not to overtake the music, but to support it, and visually amplify it.

It must be said that Katharina Wagner has been one of the most powerfully supportive artistic directors I have ever worked with. I find it inspiring to witness her tenacity and vision in seeing all of this through, despite the hurdles. It’s been a great collaboration. That’s the essence: great collaboration.

This work was supported, in part, by an MIT.nano Immersion Lab Gaming Program seed grant, and was developed using capabilities in the Immersion Lab. The project was also funded, in part, by a grant from the MIT Center for Art, Science, and Technology.

© Image: Enrico Nawrath. Courtesy of the Bayreuther Festival

Frozen embryos are "children" under Alabama law, the state's Supreme Court says. Its decision could have major implications for the future of fertility treatments in the state.

Frozen embryos are "unborn children" and "unborn children are 'children,'" Justice Jay Mitchell wrote in the court's main opinion. Only two of nine justices dissented from the holding that an 1872 wrongful death statute applies to the destruction of frozen embryos.

The ruling seems to represent a turn toward judicial activism among members of Alabama's Supreme Court, which for a long time held that the law's text could not justify reading it to include "unborn children"—let alone frozen embryos.

It also portends a creeping Christian conservatism into court decisions, with Alabama Supreme Court Justice Tom Parker citing the Bible in his legal reasoning. In a concurring opinion, Parker justifies prohibitions on murder not by invoking classical liberal principles, like natural rights, but rather on the basis of "Man's creation in God's image" and the "you shall not murder" edict of the Sixth Commandment. "Human life cannot be wrongfully destroyed without incurring the wrath of a holy God, who views the destruction of His image as an affront to Himself," Parker writes.

Embryos Destroyed 

The decision stems from suits brought by former patients of the Center for Reproductive Medicine in Mobile, Alabama. These patients—couples James and Emily LePage, William and Caroline Fonde, and Felicia Burdick-Aysenne and Scott Aysenne—had used in vitro fertilization (IVF) to successfully have several children and still had some embryos stored in the Center's "cryogenic nursery." In December 2020, a patient at the Mobile Infirmary Medical Center (which the Center was a part of) entered the cryogenic nursery unauthorized and proceeded to remove and then drop some of their frozen embryos, destroying them.

The couples sued the fertility clinic and the hospital, citing Alabama's Wrongful Death of a Minor Act. This 1872 law lets parents sue for monetary damages "when the death of a minor child is caused by the wrongful act, omission, or negligence of any person."

The LePages and the Fondes brought a joint lawsuit, and a separate suit was filed by the Aysennes. Both suits alleged negligence and the Aysenne suit also alleged wantonness and breach-of-contract.

A trial court granted the Center's motion to dismiss all but the breach-of-contract claim. "The cryopreserved, in vitro embryos involved in this case do not fit within the definition of a 'person'" or "'child,'" the lower court held.

The three couples appealed, and their suits were consolidated for Supreme Court purposes.

No Exceptions for "Extrauterine Children" 

In a first-of-its-kind decision, the Alabama Supreme Court decided that frozen embryos are, indeed, children, rejecting the lower court's dismissal of the couples' wrongful death claims.

In the court's main opinion, Justice Jay Mitchell referred to frozen embryos in turn as "embryonic children" and "extrauterine children."

While the state's Wrongful Death of a Minor statute doesn't explicitly include "unborn children"—let alone "extrauterine children"—in its purview, "the ordinary meaning of 'child' includes children who have not yet been born," asserted Mitchell.

Furthermore, Alabama's Supreme Court "has long held that unborn children are 'children' for purposes of Alabama's that law," he wrote. The central question in this case, said Mitchell, is "whether the Act contains an unwritten exception to that rule for extrauterine children—that is, unborn children who are located outside of a biological uterus at the time they are killed."

The couples in this case raised some truly ridiculous arguments for why such an "exception" shouldn't exist. They argued that a finding that the Wrongful Death of a Minor Act doesn't apply to unborn children (including frozen embryos) would mean partial-birth abortions are legal, since the baby would no longer be in utero but would also not be fully born. They also suggested it would OK murdering hypothetical toddlers entirely gestated in artificial wombs, since such children—no matter how old they got—would not technically have been born.

Amazingly, the majority lent credence to these crazy arguments. They are "weighty concerns," wrote Mitchell, albeit ones that needn't be resolved at this time since "neither the text of the Wrongful Death of a Minor Act nor this Court's precedents exclude extrauterine children from the Act's coverage."

Dissent, Dissent, Dissent

Not all of the justices agreed with the majority's logic, and some offered quite scathing rebukes of it.

For instance, Justice Brady E. Mendheim—who concurred with the result of the main opinion but disagreed with some of its reasoning—doesn't think that it's so clear cut that "child" includes frozen embryos. For one thing, the wrongful death statute in question was written a century before IVF was even a scientific possibility. Furthermore, other parts of Alabama law, including the 2019 Human Life Protection Act, explicitly define an unborn child as a human being in utero.

Justice Will Sellers also rejected the idea that this is an easy and obvious call. "Any sequence of linguistic gymnastics, cannot yield the conclusion that embryos developed through in vitro fertilization were intended by the legislature to be included in the definition of 'person,' much less the definition of 'minor child,'" he wrote. Rather, the inclusion of in utero children in certain statutes was there to allow for punishment of violence perpetrated against pregnant women. "To equate an embryo stored in a specialized freezer with a fetus inside of a mother is engaging in an exercise of result-oriented, intellectual sophistry, which I am unwilling to entertain," Sellers added.

Meanwhile, Justice Greg Cook—who dissented in full from the main opinion—rejects the idea that the 1872 law meant to include fetuses and zygotes in its definition of children, even when they are in utero.

The main opinion suggested that the "leading dictionary of that time defined the word 'child' as 'the immediate progeny of parents' and indicated that this term encompassed children in the womb," notes Cook. But if you look at the full entry in the cited dictionary, it indicates the opposite, saying "the term is applied to infants from their birth."

Furthermore, interpreting the Wrongful Death Act to include unborn children is a recent phenomenon. "There is no doubt that the common law [in 1872] did not consider an unborn infant to be a child capable of being killed for the purpose of civil liability or criminal-homicide liability," wrote Cook. "In fact, for 100 years after the passage of the Wrongful Death Act, our caselaw did not allow a claim for the death of an unborn infant, confirming that the common law in 1872 did not recognize that an unborn infant (much less a frozen embryo) was a 'minor child' who could be killed."

Thus, applying the wrongful death act to the loss of frozen embryos runs counter to the philosophy of originalism (the idea, common among libertarians and conservatives, that laws should be interpreted only as they were originally intended) and closer to the progressive idea of a malleable "living Constitution," suggests Cook. And he's not a fan. "It is not our role to expand the reach of a statute and "breathe life" into it by updating or amending it," Cook writes. If the legislature thinks the law needs expanding, it can do so.

Cook and Mendheim both object to characterizing the defense's position as seeking an "exception" for frozen embryos, because to declare it an exception to the state's protection of minor children assumes that embryos are minor children—a point that's far from a given. And they both pan the tacit acceptance of the out-there hypotheticals offered by the patients.

"The main opinion ignores the fact that it is not now—or for the foreseeable future—scientifically possible to develop a child in an artificial womb so that such a scenario could somehow unfold," writes Mendheim. Should that become possible, "the answer to this futuristic hypothetical is simple," writes Cook: "the Legislature can address future technologies and can do so far better than this Court."

Bibles and Broad Reach

Pointing out that no other state has interpreted wrongful death laws this way—and a number have specifically rejected it—Cook suggests that being "the sole outlier" should "cause us to carefully reexamine our conclusions."

He concludes the decision could end IVF in Alabama, since "no rational medical provider would continue to provide services for creating and maintaining frozen embryos knowing that they must continue to maintain such frozen embryos forever or risk the penalty of a Wrongful Death Act claim for punitive damages."

This fear was echoed by the defendants in this case, who told the court a finding that the statute includes frozen embryos could make IVF prohibitively expensive.

Barbara Collura, president and CEO of RESOLVE: The National Infertility Association, called the court's decision "terrifying" for people "who need in-vitro fertilization to build their families."

Chief Justice Parker's opinion suggests that their fears are not unfounded.

His opinion is chilling in the way is showcases the theocratic underpinnings on which he sees Alabama governance resting. Pointing to a 2018 amendment declaring it "the public policy of this state to recognize and support the sanctity of unborn life," he notes that the term sanctity can be defined as "holiness of life and character," godliness, and "the quality or state of being holy or sacred." He goes on to cite the King James Bible, noting that in Genesis man's creation was described as being "in the image of God." Its on these foundations that the legal treatment of frozen embryos should rest, he suggests.

According to Parker, this would not mean the end of IVF in Alabama. But it could mean changes that would seriously upend the IVF process.

In IVF, the process of preparing the body for ovulation and harvesting eggs can be extremely taxing on women's bodies, as well as time-consuming and expensive. After this, not all of the eggs collected may be successfully fertilized. And when viable embryos are created, it may take multiple tries at transferring one into a woman's body before implantation is successful. For all of these reasons, it makes sense for doctors to collect myriad eggs at one time, fertilize these eggs, and then freeze the viable embryos for later transfer, rather than harvesting eggs and creating a single new embryo for each transfer. (This also helps people who may want to create embryos when they are younger to use when they are somewhat older, or who may face illness that will impede their future fertility.) And to maximize the chances of success, doctors sometimes transfer two or more embryos at once.

Treating embryos as having the full legal rights of children could imperil all of these practices.

In Italy, "cryopreservation of embryos" is banned "except when a bona fide health risk or force majeure prevented the embryos from being transferred immediately after their creation," writes Parker. He also points approvingly to countries with other stringent regulations, such as a rule limiting the number of embryos that can be transferred at a time.

"These regulations adopted by other countries seem much more likely to comport with upholding the sanctity of life," Parker concludes, writing that "certain changes to the IVF industry's current creation and handling of embryos in Alabama will result from this decision."

Even if the ruling doesn't end IVF in Alabama, it could pave the way for changes that make fertility treatments more difficult, time-consuming, expensive, and impractical.

Today's Image

 

The post Frozen Embryos Are Now Children Under Alabama Law appeared first on Reason.com.

From Manookian v. Bd. of Prof. Responsibility, decided Friday by the Tennessee Supreme Court (majority opinion by Chief Justice Holly Kirby):

In this lawyer disciplinary case, the lawyer's conduct compels disbarment. The lawyer sent a series of intimidating, demeaning, embarrassing, and harassing communications to opposing counsel and others.

Some targeted family members of opposing counsel, including one family member who was also a former client, and caused well-founded concern for their well-being and safety. In the ensuing disciplinary proceedings, a Board of Professional Responsibility hearing panel found that the purpose of the communications was to intimidate opposing counsel in order to gain unfair advantage in pending litigation. It concluded inter alia that the lawyer's conduct was prejudicial to the administration of justice, that he failed to respect the rights of third persons, and that he violated his duty to a former client, in violation of Tennessee's Rules of Professional Conduct.

The hearing panel said the presumptive sanction was disbarment, found four aggravating factors, and found no mitigating circumstances. Without explanation, the hearing panel recommended a two-year suspension instead of disbarment. The attorney appealed to the trial court. The trial court indicated that, had the Board of Professional Responsibility filed a separate petition for review, the trial court would have recommended disbarment, but because the Board did not, the trial court affirmed the sanction of suspension. Both parties appeal.

Here, the lawyer's conduct was egregious. Victimizing the families of opposing counsel and causing concern for their well-being and safety is an especially grave offense and a profound dishonor as a lawyer. The hearing panel's decision to deviate downward from the presumptive sanction of disbarment was arbitrary and capricious, and the lawyer must be disbarred. Accordingly, we modify the judgment of the hearing panel and impose the sanction of disbarment.

An excerpt from the long discussion of Manookian's misconduct:

The attorney in this case, Appellee Brian Philip Manookian, and the Tennessee Board of Professional Responsibility ("Board" or "BPR"), both appeal discipline imposed by the BPR hearing panel for communications by Mr. Manookian to opposing counsel in Mr. Manookian's representation of a client in pending civil litigation….

In mid-July 2017, the lawyers representing [a litigation adversary of Mr. Manookian's] in Shao withdrew. In their stead, Mr. Manookian's former employer C. J. Gideon was substituted as counsel, along with another lawyer in Mr. Gideon's law firm. Mr. Gideon began evaluating the plaintiff's outstanding discovery responses. On August 17, 2017, Mr. Gideon sent a letter to Mr. Manookian and the other lawyers in the Shao case detailing "continuing deficiencies in the plaintiff's response" to discovery requests propounded on Mr. Manookian's client and asking plaintiff's counsel to supplement them.

Two days later, on Saturday August 19 at 9:29 p.m., Mr. Manookian sent an email from his law firm email address to Mr. Gideon at his law firm email address:

Clarence –

I hear [name of Mr. Gideon's daughter] is working at [name of daughter's employer]. What a fantastic opportunity; particularly given her history of academic failure and alcohol and substance abuse.

I happen to have some very close friends at [name of daughter's employer].

I will make it a point to see what I can do regarding her prospects there.

I am reminded that it is good for us to keep apprised of each other's lives and the things we can do to influence them….

Mr. Manookian's email, Mr. Gideon later explained, brought him back to the worst time in his and his wife's life. On her eighteenth birthday during her high school senior year, Mr. Gideon's daughter drank some wine before going to school and was suspended for it. This incident occurred while Mr. Manookian was employed by Mr. Gideon's firm. It resulted in Mr. Gideon's daughter leaving high school to attend a six-week camp in the mountains. Mr. Gideon later said he had not spoken to Mr. Manookian about this.

Mr. Gideon characterized the description in Mr. Manookian's email of Mr. Gideon's daughter having a history of academic failure as "[a]bsolutely a lie." He did not dispute the incident with alcohol but said his daughter had a 4.0 GPA when she left that high school and enrolled in another school, and that she ultimately graduated from college.

Mr. Gideon said Mr. Manookian's email made him sick to his stomach and angry that "anybody would be so low to attack an opponent through their kids." He said it provoked "unbelievable anxiety over what [Mr. Manookian] was going to do to my daughter" and a helpless feeling that "I wouldn't be able to do anything about it." Mr. Gideon saw the intent of the email as a "brushback pitch to get me to back off" in the Shao litigation, to send the message: "Don't be so vigorous in defending these people against their claims."

The following Monday, Mr. Gideon filed a complaint with the BPR against Mr. Manookian for the August 19 email about his daughter. The same week, Mr. Gideon filed a motion in Shao for sanctions against Mr. Manookian. He attached the offending email to his motion, but to protect his daughter's privacy, he redacted identifying information about her and about her employer.

Mr. Manookian's response filed with the trial court claimed innocuous intentions. He said the company that employed Mr. Gideon's daughter was one of Mr. Manookian's clients and included some of his close friends. He explained that he spoke with the daughter's employer and then "emailed Clarence Gideon on August 19, 2017 regarding [the daughter's] position at [employer] stating, 'I will make it a point to see what I can do regarding her prospects there.'"

Inconsonant with Mr. Manookian's claimed good intentions, however, his response to the motion for sanctions included the identifying information Mr. Gideon had redacted, such as the name of Mr. Gideon's daughter and the name of her employer, and it attached an unredacted copy of the offending email. And for good measure, an exhibit to Mr. Manookian's filed response also included the same email, unredacted, for a second time.

Going still further, Mr. Manookian inserted into his filed response a footnote ["Footnote 1"] that contained information about Mr. Gideon's son, whom Mr. Manookian had represented on a sensitive sexual matter while he was employed by Mr. Gideon's firm:

Mr. Manookian's prior experience with Mr. Gideon's adult children is limited to having successfully represented his adult son in a matter involving Mr. Gideon's adult son exchanging sexually graphic emails with a much older man for the sexual gratification of the older man.

The footnote included detail such as the heading of the case naming Mr. Gideon's son, the court in which it was filed, the docket number, and the pleading with specific page references where the referenced sexual information could be found. Mr. Manookian's filed response did not explain how the information in Footnote 1 related to the subject matter of Mr. Gideon's motion for sanctions.

Mr. Gideon later explained that, in 2008 or 2009, while Mr. Gideon's son was in college, the son was contacted over the internet by someone who claimed to be a woman and sent the son photographs of a beautiful woman represented to be the sender. Mr. Gideon's son thought it was odd and "too good to be true" and showed his father the photographs. Mr. Gideon said he did not know the term "catfishing" at the time, but he sensed something amiss. At the time, Mr. Manookian was still employed by Mr. Gideon's firm, and he had often described himself as very knowledgeable about the internet. Mr. Gideon solicited Mr. Manookian's help for his son.

After investigating, Mr. Manookian determined the sender was a man, not the beautiful woman depicted in the photos. Mr. Manookian located the man, sued him on behalf on Mr. Gideon's son, and the matter was concluded by the defendant paying a financial settlement. Though the lawsuit was not sealed, Mr. Gideon said it never made any headlines, few people knew about it, and it "certainly wasn't in the public domain." He said neither he nor his son heard another word about the matter until Mr. Manookian inserted it into the Shao litigation.

Mr. Gideon pointed out that his son had nothing to do with the Shao case, his daughter's employment, or the subject matter of the motion for sanctions against Mr. Manookian. Mr. Gideon said Mr. Manookian's description of the son's lawsuit was "written to make it look like my son was knowingly communicating with a guy for their joint mutual sexual satisfaction. That's not right. That's not accurate." He viewed Mr. Manookian's act of inserting the son's lawsuit into his response as done "to take a shot at me and to embarrass a former client and in that sense get back at me yet again."

Judge Brothers held a hearing on September 21, 2017 on Mr. Gideon's motion for sanctions. At the hearing, Mr. Manookian explained that his email to Mr. Gideon about Mr. Gideon's daughter was intended to convey only that Mr. Manookian intended to help Mr. Gideon's daughter….

Judge Brothers declined to credit Mr. Manookian's explanation. Instead, Judge Brothers viewed the email as a "thinly veiled threat." He likened Mr. Manookian's email to a scene "in a gangster movie" where a "mobster" says "just want to let you know, I know where you live, I know where your children go to school … and I know what kind of car you drive" and adds "y'all have a great day" before he walks away.

The Tennessee Supreme Court went through a long analysis of these and other misbehaviors, rejected Manookian's First Amendment arguments (concluding that lawyers' speech in the course of litigation that sufficiently interfered with the administration of justice could be restricted), and concluded that the Board erred in imposing a sentence short of disbarment. An excerpt:

As we consider the propriety of the sanction, several aspects of Mr. Manookian's misconduct deserve particular comment. First, to say that Mr. Manookian engaged in multiple offenses is to understate. Despite lectures, fines, sanctions, and suspensions from judge after judge, Mr. Manookian did not choose merely to continue engaging in misconduct—each time he received the expected negative reaction to his behavior, he responded by escalating it….

Mr. Manookian engaged in this long pattern of intimidating and degrading conduct in order to succeed in Shao by coercing opposing counsel into standing down to avoid personal humiliation and emotional distress for them or their families. A business model of sorts, based on fear.

The length to which Mr. Manookian went to obtain detailed private information about opposing counsel also warrants comment. Mr. Manookian explained he used tracking applications imbedded into routine litigation email to give him detailed personal information about each person who opened the email, followed by a second service used by private investigators to obtain an even greater level of private information. Mr. Manookian's matter-of-fact testimony almost made it sound as though using private-investigator-level intrusive tools on everyday litigation correspondence to secretly extract private information to weaponize against opposing counsel is normal business behavior for a lawyer. It is not.

Most important, victimizing the families of opposing counsel and causing well-founded concern for their well-being and safety is an especially grave offense and a profound dishonor as a lawyer. Lawyers in litigation may be expected to assume the risk of a certain amount of rough-and-tumble. Their families do not. In preying on the families of opposing counsel, Mr. Manookian crossed the Rubicon.

The subversive impact of Mr. Manookian's conduct on the justice system cannot be overstated. Were we to permit such conduct to go unchecked, lawyers would flee the profession rather than risk personal mortification or the welfare of their families….

Finally, the record in this case offers no encouragement that Mr. Manookian would benefit from suspension and change his ways upon reinstatement. Apart from the misconduct in Shao, the record indicates Mr. Manookian drew findings by many judges that he engaged in fraudulent, threatening or demeaning conduct, or conduct that endangered the public or abused the judicial process….

Justice Sharon Lee dissented; here's her introduction:

While this Court has inherent jurisdiction over attorney disciplinary matters, attorneys must be afforded fair notice and an opportunity to be heard. For the first time, this Court has increased an attorney's discipline through the exercise of the Court's inherent jurisdiction outside of the process outlined in Rule 9 by disbarring Brian Philip Manookian without giving fair notice of its intent.

The post "Victimizing the <i>Families</i> of Opposing Counsel and Causing Well-Founded Concern for Their Well-Being … Is … a Profound Dishonor as a Lawyer" appeared first on Reason.com.

The world-famous Bayreuth Festival in Germany, annually centered around the works of composer Richard Wagner, launched this summer on July 25 with a production that has been making headlines. Director Jay Scheib, an MIT faculty member, has created a version of Wagner’s celebrated opera “Parsifal” that is set in an apocalyptic future (rather than the original Medieval past), and uses augmented reality headset technology for a portion of the audience, among other visual effects. People using the headsets see hundreds of additional visuals, from fast-moving clouds to arrows being shot at them. The AR portion of the production was developed through a team led by designer and MIT Technical Instructor Joshua Higgason.

The new “Parsifal” has engendered extensive media attention and discussion among opera followers and the viewing public. Five years in the making, it was developed with the encouragement of Bayreuth Festival general manager Katharina Wagner, Richard Wagner’s great-granddaughter. The production runs until Aug. 27, and can also be streamed on Stage+. Scheib, the Class of 1949 Professor in MIT’s Music and Theater Arts program, recently talked to MIT News about the project from Bayreuth.

Q: Your production of “Parsifal” led off this year’s entire Bayreuth festival. How’s it going?

A: From my point of view it’s going quite swimmingly. The leading German opera critics and the audiences have been super-supportive and Bayreuth makes it possible for a work to evolve … Given the complexity of the technical challenge of making an AR project function in an opera house, the bar was so high, it was a difficult challenge, and we’re really happy we found a way forward, a way to make it work, and a way to make it fit into an artistic process. I feel great.

Q: You offer a new interpretation of “Parsifal,” and a new setting for it. What is it, and why did you choose to interpret it this way?

A: One of the main themes in “Parsifal” is that the long-time king of this holy grail cult is wounded, and his wound will not heal. [With that in mind], we looked at what the world was like when the opera premiered in the late 19th century, around the time of what was known as the Great African Scramble, when Europe re-drew the map of Africa, largely based on resources, including mineral resources.

Cobalt remains [the focus of] dirty mining practices in the Democratic Republic of Congo, and is a requirement for a lot of our electronic objects, in particular batteries. There are also these massive copper deposits discovered under a Buddhist temple in Afghanistan, and lithium under a sacred site in Nevada. We face an intense challenge in climate change, and the predictions are not good. Some of our solutions like electric cars require these materials, so they’re only solutions for some people, while others suffer [where minerals are being mined]. We started thinking about how wounds never heal, and when the prospect of creating a better world opens new wounds in other communities. … That became a theme. It also comes out of the time when we were making it, when Covid happened and George Floyd was murdered, which created an opportunity in the U.S. to start speaking very openly about wounds that have not healed.

We set it in a largely post-human environment, where we didn’t succeed, and everything has collapsed. In the third act, there’s derelict mining equipment, and the holy water is this energy-giving force, but in fact it’s this lithium-ion pool, which gives us energy and then poisons us. That’s the theme we created.

Q: What were your goals about integrating the AR technology into the opera, and how did you achieve that?

A: First, I was working with my collaborator Joshua Higgason. No one had ever really done this before, so we just started researching whether it was possible. And most of the people we talked to said, “Don’t do it. It’s just not going to work.” Having always been a daredevil at heart, I was like, “Oh, come on, we can figure this out.”

We were diligent in exploring the possibilities. We made multiple trips to Bayreuth and made these milimeter-accurate laser scans of the auditorium and the stage. We built a variety of models to see how to make AR work in a large environment, where 2,000 headsets could respond simultaneously. We built a team of animators and developers and programmers and designers, from Portugal to Cambridge to New York to Hungary, the UK, and a group in Germany. Josh led this team, and they got after it, but it took us the better part of two years to make it possible for an audience, some of whom don’t really use smartphones, to put on an AR headset and have it just work.

I can’t even believe we did this. But it’s working.

Q: In opera there’s hopefully a productive tension between tradition and innovation. How do you think about that when it comes to Wagner at Bayreuth?

A: Innovation is the tradition at Bayreuth. Musically and scenographically. “Parsifal” was composed for this particular opera house, and I’m incredibly respectful of what this event is made for. We are trying to create a balanced and unified experience, between the scenic design and the AR and the lighting and the costume design, and create perfect moments of convergence where you really lose yourself in the environment. I believe wholly in the production and the performers are extraordinary. Truly, truly, truly extraordinary.

Q: People have been focused on the issue of bringing AR to Bayreuth, but what has Bayreuth brought to you as a director?

A: Working in Bayreuth has been an incredible experience. The level of intellectual integrity among the technicians is extraordinary. The amount of care and patience and curiosity and expertise in Bayreuth is off the charts. This community of artists is the greatest. … People come here because it’s an incredible meeting of the minds, and for that I’m immensely filled with gratitude every day I come into the rehearsal room. The conductor, Pablo Heras-Casado, and I have been working on this for several years. And the music is still first. We’re setting up technology not to overtake the music, but to support it, and visually amplify it.

It must be said that Katharina Wagner has been one of the most powerfully supportive artistic directors I have ever worked with. I find it inspiring to witness her tenacity and vision in seeing all of this through, despite the hurdles. It’s been a great collaboration. That’s the essence: great collaboration.

This work was supported, in part, by an MIT.nano Immersion Lab Gaming Program seed grant, and was developed using capabilities in the Immersion Lab. The project was also funded, in part, by a grant from the MIT Center for Art, Science, and Technology.

© Image: Enrico Nawrath. Courtesy of the Bayreuther Festival