"Now, it's time for the happy recap." - Bob Murphy
December 23, 2004
LAW: For The Rest of Us
December 17, 2004
LAW: Sorry, Harry
Prominent left-wing Yale constitutional law professor Jack Balkin gives no comfort to defenders of Harry Reid's baseless attack on Justice Thomas' competence, and grounds his objections to Thomas in purely results-oriented terms:
Having seen his work over the course of more than a decade, I have no reason to think that Thomas is appreciably better or worse in terms of his lawyerly skills than many other Justices who have sat on the Supreme Court. The positions he takes are often quite striking, almost to the point of being "off-the-wall," but sometimes ideas once thought "off-the-wall" become orthodoxy later on depending on how the political winds blow. If I have an objection to him, it is that his constitutional vision is very different from mine, and so I think he interprets the Constitution in ways that lead to very unjust and uncalled for results. I think his arguments are often wrong and his assumptions misguided, but that does not make him an embarrassment. It makes him a powerful person who is using his power to move the law in what I consider to be the wrong direction. I would oppose appointing more Justices to the Supreme Court who agreed with him not because they believed in natural law, or original understanding, or disagreed with legal realism, but because they would be likely to push the practical meaning of the Constitution in very unjust and inappropriate directions.
December 16, 2004
LAW/WAR: Habeas Extended
Judge John Bates of the US District Court for the District of Columbia issued an opinion today in Omar Abu Ali v. Ashcroft (the kind of case that pretty well announces what it's about in the caption) refusing to dismiss a habeas petition brought by a US citizen who has been detained by Saudi Arabia since June 2003. Ali, who alleges that he has been tortured by the Saudis, also alleges that he is being held at the behest of the US government. The court concluded that habeas jurisdiction was not necessarily barred either by the fact that Ali was held outside the US nor by the fact that he was in the custody of a foreign power, but ordered further discovery proceedings to develop the factual record.
December 10, 2004
LAW: The Office Christmas Party
In light of the Mad Hibernian's post on this topic Wednesday, I though I'd flash back to my own reflections, from 2002, on office Christmas parties.
LAW: If Not Bigotry, What Then?
I really meant to blog earlier in the week about Harry Reid's bizarre comments about Clarence Thomas; as you've probably seen by now, in an interview with Tim Russert, Reid objected to Justice Scalia as Chief Justice but conceded that "I may not agree with some of his opinions, but I agree with the brilliance of his mind"; then, turning to Thomas, he argued that
Taranto, Stuart Buck, and Ann Althouse have all taken this apart quite well. I hate to throw around unjustified accusations of bigotry, so I'm certainly prepared to believe that Reid wasn't taking a potshot at Thomas' intellect either (1) because he regards Justice Thomas as dumb because he's black or (2) because he thinks he can convince others that Thomas is dumb because he's black. But if Reid has something else in mind, I can't imagine what it is. He didn't bother to give examples, and Russert didn't press him for any. I very much doubt that Reid has read many of Thomas' opinions, and I suspect that he was just parroting what his staffers tell him. I have read quite a number of those opinions, ranging from opinions on intensely arcane subjects to critical issues of civil procedure to impassioned dissents on hot-button issues, and I can tell you that the charge of bad writing is ludicrously off the mark. At times, he can be quite eloquent. Thomas may not be the stylistic genius Scalia is, but Scalia is almost certainly the best writer the Court has ever seen (which is high praise, compared to people like Robert Jackson and Oliver Wendell Holmes); nobody else on the Court today compares to him either. Thomas' opinions certainly don't suffer from the kind of sloppiness and high-handedness that characterized, say, William O. Douglas. Buck, who's a great admirer of Justice Thomas, has links to some sample opinions and to comments of grudging admiration for Thomas' legal thinking by a prominent left-leaning academic, and you should go check out his links. (I should add that I've met Justice Thomas, and he's quite an impressive guy in person).
If Reid has even a shred of support for the argument that Justice Thomas is unqualified to be Chief Justice by virtue of his writing abilities or any other defect of competence or intellect, let him come forward with it. Thus far, I'm hearing nothing from Reid or his defenders to suggest he can. To the contrary, Noam Scheiber of the New Republic had to conclude:
I'll add a few examples of Thomas opinions of my own on a variety of subjects:
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December 08, 2004
LAW: There’s Always One
Reading this month’s ABA Journal, I came upon an annual rite of the holiday season as easy to predict as the Perils-Of-Trick-Or-Treating articles you see every Halloween or the Blinding-Of-Larry-Driscoll-type stories you read about fireworks every 4th of July. It could perhaps be classified as the Don’t-Get-Too-Drunk-At-Your-Law-Firm’s-Holiday-Party article. I had to laugh at this in particular anecdote:
I’m sure John Ashcroft would be proud.
LAW: Three Strikes Foolishness
The newly approved amendment to the Florida Constitution would automatically revoke the medical license of any doctor hit with three malpractice judgments. The law is backed by doctors' foremost antagonists — lawyers — and the ramifications could be huge.
This amendment has nothing to do with patient safety and everything to do with giving additional leverage to plaintiffs' lawyers to coerce settlement of med mal lawsuits. How can I be so sure? As Prof. Yin notes, "the amendment speaks of three judgments, not three lawsuits". I'd bet the plaintiffs' bar would scream bloody murder if a settlement counted as a strike, and especially if a settlement above a specified dollar amount counted as a strike, which it would if the idea was actually to punish malpractice rather than create a hammer for settlements. After all, a doctor who repeatedly commits malpractice but never goes to trial would never have a judgment against him, just a bunch of settlements. Whereas if you counted settlements against the doctors, they would have more incentive to fight claims rather than pay off the plaintiffs and their lawyers.
You can compare this to the way the NASD, which regulates stockbrokers, operates. NASD rules now make it very difficult for a broker who settles a claim to get it expunged from his record; even with the consent of the other party, you still need a specific order from an arbitration panel and court approval of that order. While this procedure is controversial and of debatable effectiveness, there's no question that its intention is to prevent crooked brokers from settling quietly with anyone who complains. If the Florida statute had a similar rule, there would at least be the possibility that it was intended to crack down on bad doctors, rather than on doctors who insist on defending themselves before a jury. (Of course, even a three-settlements rule might work as a hammer for plaintiffs' attorneys if it allowed you to avoid the rule by settling before a case is filed, but it would be closer to the expressed purpose of the statute).
December 06, 2004
BASEBALL/LAW: Big Daddy Hits Back
In a follow up story Oct. 21, Fielder told the News he planned to repay his debts, saying: "I'm going to be a man about it. I'm going to take care of all my responsibilities."
From the story reported on ESPN, it doesn't sound as if Fielder is disputing many of the key allegations against him - that he gambled away millions of dollars and had lost his Florida mansion as a result of inability to pay gambling debts - and is instead attacking charges that are harder to pin down, like the extent to which he was "in hiding" or in contact with his family. Those are facts as to which it will be hard to show that the News recklessly disregarded the truth if they relied on what somebody told them or on the fact that they couldn't find him, and Fielder will have a tough time proving $25 million in damages if the thrust of the story - massive gambling debts, loss of his house - is true.
December 01, 2004
LAW: It Depends Whose Ox Is Getting Gored
The latest example of judicial overreaching on social issues comes from the United States Court of Appeals for the Third Circuit, where a panel ruled on Monday in FAIR v. Rumsfeld (link opens 100+ page PDF file) that the Solomon Amendment violated the First Amendment freedoms of speech and association of university law schools. The Mad Hibernian noted the decision here; I first blogged about the Solomon Amendment here, on the second day of this blog's existence.
For those of you who are unfamiliar with the issue, the Solomon Amendment provides that universities may not continue to receive federal funding if they refuse to allow military recruiters on campus. Many colleges and, in particular, law schools banned military recruiters during the Vietnam War as an anti-war protest, although the bans that remain in effect today are mainly predicated, at least ostensibly, on a protest against the military's "don't-ask-don't-tell" policy towards gay servicemen and women. A group of law schools sued, saying that their freedom of speech and association was violated by making them, as a condition of receiving federal funding, accept recruiters on their campuses.
There is, of course, no constitutional right to federal funding, so the case turns on the doctrine of "unconstitutional conditions," by which the government may not impose an undue burden on the exercise of a fundamental right as a condition of receiving a benefit. In other words, the court had to balance the degree of imposition on the law schools' rights of speech and association with the strength of the government interest involved.
This is where the court's opinion is problematic.
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As an initial matter, a Powerline reader noted that the court appears to have stacked the deck by improperly placing the burden on the government to justify the statute, rather than on the plaintiffs to show the burden. But the court appears to have gone further than that.
On the side of weighing the law schools' interests in disassociating themselves from the military recruiters' nefarious "message," in what has to be taken as a too-cute attempt to hoist cultural conservatives by their own petard rather than offer a straightforward analysis of precedent, the Third Circuit relied heavily on the US Supreme Court's decision in Boy Scouts v. Dale, which used the "unconstitutional conditions" reasoning to rule that the Boy Scouts could not be pressured into accepting a gay scoutmaster. The court makes clear that it was thumbing its nose at the Dale decision when it emphasized that the Supreme Court had held that the reason why "a gay scoutmaster would undermine the Boy Scouts' message was because the Boy Scouts said it would." Slip op. at 30 (emphasis in original). Thus, the Third Circuit effectively held that it was compelled to accept the law schools' objection as an unrebuttable presumption.
Of course, this is a radically different approach from that taken by the Supreme Court in an earlier case that generated much controversy: Bob Jones University v. United States, 461 U.S. 574 (1983), in which the Supreme Court - to the cheers of nearly all the same people who back the FAIR lawsuit - found it appropriate for the IRS to deny a tax exemption (like federal funding, a benefit, not a right) to a university whose policies were, like the denial of access to military recruiters, against public policy. In fact, those policies - refusal to admit students involved in interracial relationships - were, while repugnant, far more directly entangled with the university's core mission (i.e., its admissions policies) than the minimal intrusion of an annual visit from a recruiter. The freedom of speech and association claims in Bob Jones were also stronger because they were based upon sincerely held religious beliefs and thus impacted yet another fundamental right.
(Emphasis added; citations omitted). In short, the Supreme Court has recognized the significant need for the military to recruit from institutions of higher education. To defer blindly to the law schools' need to disassociate themselves from the occasional recruiting visit, while giving little weight to the interference with the military's recruiting objectives caused by a complete ban from campus is unreasonable and unrealistic. I have a hard time seeing the Supreme Court let this stand. Unfortunately, though, the broader issue of coming to consistent treatment of the interests of military and educational institutions is unlikely to be settled soon.
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November 30, 2004
LAW/POLITICS: Self-Evident Idiocy
I heard about this one during the significant amount of time I spent stuck in traffic on I-95 over the holiday weekend, while flipping past Sean Hannity’s radio show. Not considering that the most reliable source and more than a little skeptical, I decided to check it out and, lo and behold, The Smoking Gun had the documentation, including the teacher’s complaint.
Politically, this is an example of Democrats needing to better police their fringes. I can’t imagine that the mainstream of that party is really opposed to the Declaration of Independence or shares such absolutist hostility to religion, but the cumulative effect of stories like this, fairly or unfairly, pushes a lot of otherwise undecided people into the Republican camp. It’s hard to get anyone to trust their children to people who think the ideas of people like Thomas Jefferson and John Adams are unfit for public schools.
LAW: Anti-Military Academics 1, Common Sense 0
Meanwhile, in a ruling I missed, the 3rd Circuit of the U.S. Court of Appeals handed down an outrageous opinion striking down the Solomon Amendment, which withholds federal funds from schools banning the military from appearing on campus. See here and here. (Academia, generally anti-military to begin with, frequently tries to ban groups like the ROTC or JAG recruiters on ideological grounds, the most fashionable recent pretext being protest of the military’s “Don’t Ask, Don’t Tell” policy.)
UPDATE: As you can probably tell, I feel very strongly about the issue of my taxpayer dollars going to institutions that ban our military from campus and have written in support of the Solomon Amendment in the past. This is a decision that politicians, from President Bush on down, need to condemn and the Supreme Court needs to reverse. It should not stand.
LAW: Mary Jane's Last Dance?
Dahlia Lithwick has a snarky look at the Supreme Court's oral arguments concerning California’s medical marijuana law, asking “should the court's staunchest conservatives get away with being for states' rights only when the state in question isn't California?”
I’m sympathetic to the medical marijuana law in question, defended in this case by Randy Barnett, and, in fact, would support a good deal of reform of American drug laws. Yet Lithwick’s accusations of hypocrisy would be a lot more convincing if the Court had not, on the very same day, (correctly) declined to hear a case challenging the Massachusetts Supreme Court’s (egregious) “gay marriage” ruling, presumably on federalism grounds.
Also, in a broader sense, this is an annoying form of argument. One gets the sense here that Lithwick doesn’t really believe in federalism, but supports using it as a justification for drug legalization at the state level. Isn’t that line of reasoning just as hypocritical as that which she prematurely accuses the Supreme Court of following?
LAW: Tragedy Strikes Estrada
A lot of conservatives were frustrated when Miguel Estrada, one of the best and brightest of Bush's judicial nominees, withdrew his nomination to the DC Circuit. Some have speculated that he may still be nominated to the Supreme Court.
Perhaps, at some point, he will. But Andrew McCarthy noted in The Corner yesterday that Estrada's wife died on Sunday. I don't know if she was his age (early 40s) or if they had kids, but the man will clearly have other priorities right now than the judiciary. Apparently, her death was sudden and unexpected. (Link via Bashman). For now, our prayers should be with him and his family.
November 11, 2004
LAW/POLITICS: McConnell for Chief Justice
The more I think about it, the more I have to agree with Stuart Buck that, if Chief Justice Rehnquist is the first Supreme Court Justice to step down, Michael McConnell would be the best choice to replace him. As Buck pointed out in an email, this People for the American Way brief against McConnell actually summarizes pretty well why pro-life conservatives should want him on the bench. McConnell is one of the most distinguished scholars in the federal judiciary, having for many years been a leading scholar and court advocate on Establishment Clause issues. He is well-regarded as well in academia as a man of even and judicious temperment, which is one reason why his nomination for the bench in 2001 attracted the broad support of even liberal academics like Laurence Tribe and Cass Sunstein. This is one reason why Senate Democrats, having seen how badly the filibuster issue hurt them in many elections in 2002 (as it did again this year), moved swiftly to drop the filibuster against McConnell, and he was approved by the Senate by voice vote on November 15, 2002. That issue will loom again for 2006, as five Democratic Senators face re-election in states Bush carried in 2004 (although two of those, Robert Byrd and Jeff Bingaman, are likely to be immune to public pressure). Surely, recognizing that a filibuster of a Supreme Court nominee will be an unusually divisive and unpopular move - it's only been done once, in the case of Abe Fortas' elevation to Chief Justice, and then only on allegations of improprieties that eventually forced Fortas' resignation from the bench - the Dems may quietly be looking for an excuse not to filibuster the replacement for the conservative Rehnquist but instead save their fire for nominations to replace the moderate Sandra Day O'Connor or liberals John Paul Stevens or Ruth Bader Ginsburg, especially if the nomination comes up right on the heels of the election. McConnell would give them a good reason not to fight, and present major obstacles to having one.
Others who agree that McConnell would be a good choice:
*John Hinderaker (although the Deacon has his own suggestions)
November 07, 2004
LAW: Monkeying Around With History
Following up on a comment from this David Brooks op-ed, Jim Lindgren at the Volokh Conspiracy makes a good point about the 1925 "Scopes monkey trial” and how it is selectively remembered. (Via Instapundit).
November 06, 2004
POLITICS/WAR/LAW: 11/6/04 Links
*Now, They Tell Us: the lead story on the NY Times website yesterday was one that veterans of the 1992 election will find familiar: the discovery, all of a sudden, that the jobs picture is better than it was painted in the run-up to the election. I'm watching carefully for signs of economic revisionism where Democrats and Bush Administration critics who just a few days ago were comparing this economy to the Great Depression start arguing that Bush was hard to beat because economic times are good.
*Kos just topped the "screw 'em" classic, by openly hoping for America's defeat in Iraq:
Kos is undoubtedly particularly peeved at the failure of his personal ambition to become a power player in the Democratic party, as all 15 of the House and Senate candidates he backed lost. The list, here, is particularly funny now due to the misspellings and egregious cheap shots, like claiming Jim Bunning's mental health was deteriorating. (Link via Blogs for Bush)
Look at the recently resurrected Osama bin Laden. Three years ago he was Mr Jihad, demanding the restoration of the caliphate, the return of Andalucia, the conversion of every infidel to Islam, the imposition of sharia and an end to fornication, homosexuality and alcoholic beverages. In his latest video he sounds like some elderly Berkeley sociology student making lame jokes about Halliburton and Bush reading My Pet Goat.
*Speaking of gloating, while I might divide the group differently, I endorse the general sentiment of John Derbyshire as to the people who deserve to be gloated at and those who don't.
*From November 2: Best Jimmy Breslin column ever.
*Lileks on New Yorkers who are aghast at the supposed ignorance of the red states that voted for Bush:
*Tim Blair links to some classic inside stuff from the Bush and Kerry camps. The guy who comes off in this as the real political brains isn't Karl Rove but Bush himself - note that Bush figured out before Rove did that Howard Dean was toast in the primaries. Of course, this is consistent with the theory that Bush's expertise is knowing people, and he knew Dean personally.
*Stuart Buck thinks - and I agree with him - that Justices Rehnquist and O'Connor would have retired before the election if it were not for the legitimacy questions that people raised after Bush v. Gore.
*Where credit is due: Wretchard notes that "[t]he French may have performed a valuable service by admitting Arafat to a military hospital in Europe which will reduce the risk of imputing his death to Jewish poisoning, a rumor that has already made the rounds in the Middle East."
Posted by Baseball Crank at 10:35 AM | Law | Politics 2004 | War 2004 | Comments (7) | TrackBack (0)
October 28, 2004
LAW/POLITICS: Chutzpah Award
Stuart Buck passes along word of an Alice-in-Wonderland decision to prevent the Ohio Secretary of State from investigating what may well be a substantial number of voter registrations - on the grounds that the individuals can't be notified of a hearing on the matter because they don't live at the addresses they used to register! (Coincidentally, the decision is by a Clinton appointee who is the wife of one of Ohio's leading plaintiffs' attorneys - what are the odds of that?)
October 27, 2004
LAW: Free to Decide
Professor Volokh explains why President Bush’s support for same-sex civil unions is not inconsistent with the current version of the Federal Marriage Amendment.
The difference lies in whether the people or the courts get to make the decision.
October 11, 2004
LAW: The Parallel
The folks over at Daily Kos have only just now figured out the obvious parallels between the Dred Scott decision's reliance on non-textual substantive due process theory to elevate the rights of slaveholders to the status of a protected constitional right and Roe v. Wade's reliance on similar non-textual theories to elevate the rights of the mothers of unborn children to have an abortion to the status of a protected constitional right. (Link via Sullivan). Yes, anyone who pays attention to constitutional law debates understood the parallel Bush was trying to draw, however inartfully.
September 26, 2004
LAW: Lost Tribe
Wowsers. The Weekly Standard's Joseph Bottum, fresh from his denunciations of Charles Ogletree, now charges no less a figure than Laurence Tribe with plaigarism over the incessant repetition of identical or similar phrases from Henry J. Abraham's 1974 book Justices and Presidents in Tribe's 1985 book God Save This Honorable Court - a popular work, with no footnotes, which Bottum suggests was rushed into print to provide intellectual ammunition to otherwise unarmed Senate Democrats bracing for attacks on Reagan appointees to the Supreme Court (an effort that bore fruit in the Bork hearings in 1987). Go read Bottum's whole article and judge for yourself.
I actually worked for Tribe briefly my third year of law school, as part of an army of research assistants who summarized Supreme Court cases - every Supreme Court case for several recent years, between us - for a revision of Tribe's American Constitutional Law treatise. Tribe isn't the kind of guy to plaigarise out of a lack of ability to do independent work; as Bottum suggests, the trap for people like Tribe is more the temptation to be inhumanly prolific.
September 16, 2004
LAW/POLITICS: More Cracks In The Wall
Breaking news in the Valerie Plame case. DC District Judge Thomas Hogan yesterday unsealed this opinion (link opens a PDF file) requiring New York Times reporter Judith Miller to "appear before the grand jury to testify regarding alleged conversations she had with a specified Executive Branch official" and produce related documents; the court notes that Miller did not write an article but "spoke with one or more confidential sources regarding Ambassador Wilson's article, 'What I Didn't Find in Africa.'" The court concluded that requiring Miller's testimony was proper because "all available alternative means of obtaining the information have been exhausted, the testimony sought is necessary for the completion of the investigation, and the testimony sought is expected to constitute direct evidence of innocence or guilt." (Emphasis added).
Meanwhile, the Washington Post reports that one of its own reporters, Walter Pincus, has indicated that his source has revealed his (or her) identity already:
Post reporter Walter Pincus, who had been subpoenaed to testify to a grand jury in the case, instead gave a deposition yesterday in which he recounted his conversation with the source, whom he has previously identified as an "administration official." Pincus said he did not name the source and agreed to be questioned only with the source's approval.
"I understand that my source has already spoken to the special prosecutor about our conversation on July 12 , and that the special prosecutor has dropped his demand that I reveal my source. Even so, I will not testify about his or her identity," Pincus said in a prepared statement.
"The source has not discharged us from the confidentiality pledge," said The Post's executive editor, Leonard Downie Jr.
September 14, 2004
LAW: Shaking The Tree
Juan non-Volokh notes a slap on the wrist for plaigarism on the part of Harvard Law professor Charles Ogletree; apparently his research assistants slapped a chunk of some work from Jack Balkin into a book Ogletree was doing on the anniversary of Brown v. Board of Education. Joseph Bottum of The Weekly Standard is appalled that having your research assistants cobble together other people's ideas on the central area of your expertise is considered scholarship.
Of course, most legal scholarship does depend to some extent on input from research assistants. But while Ogletree's scholarship may well be subject to criticism, I would note that the man is nonetheless an asset to the Law School; he's a well-liked and respected instructor, has run the clinical program, gets lots of media attention, and otherwise does things to improve both the Law School's public profile and its attention to students. It may be that the problem is the expectation that all professors will be equally focused on research.
Anyway, for a walk down memory lane to September of 2001, here's an amusing email exchange involving Ogletree's efforts to get Jesse Jackson to speak at Harvard Law School, courtesy of his eccentric colleague Charles Nesson.
September 04, 2004
LAW: Air Force Sodomy Case
Phil Carter has some interesting thoughts on a case upholding an anti-sodomy provision in the Uniform Code of Military Justice, and its broader meaning for debates about the aftermath of Lawrence v. Texas.
August 26, 2004
LAW: Following The Rules
Judge Richard Conway Casey of the Southern District of New York has joined judges in San Francisco and Nebraska in enjoining the partial-birth abortion ban, despite his own convictions on the issue:
Casey - an alum of both my college and my law firm, I should add - is a sort-of Clinton appointee; he was originally nominated by George H.W. Bush at the recommendation of Al D'Amato but had his nomination blocked by Senate Democrats. President Clinton renominated him in 1997, making him the first blind man appointed to the federal bench. I haven't seen the opinion and I am, of course, disappointed with the result, but I have to respect the fact that Judge Casey went against his own expressed policy preferences in following what appears to be the Supreme Court's lead on this issue. It's unfortunate that that sort of judicial restraint tends to be a one-way street.
August 10, 2004
I'm a little late to this particular party (what else is new?), but you owe it to yourself to read Howard Bashman's interview with Seventh Circuit Judge Frank Easterbrook in its entirety (and weep that this man does not sit on the Supreme Court). Don't know how I missed this, but I actually didn't know he was the brother of Gregg Easterbrook, the New Republic writer and Tuesday Morning Quarterback and one of the most entertaining politics/sports writers in the business. But which brother is more entertaining is debatable, as Judge Easterbrook has some great lines here. I'd emphasize that you should read the whole thing; here are some excerpts:
*How can you not be impressed by a guy who says, "I read science journals as well as economics journals and law reviews in my spare time"
*Easterbrook catches Bashman at one of his tricks in this feature: "although the interview is captioned '20 Questions for the Appellate Judge,' you propounded more than 40, with multiple interrogatory sentences per paragraph and compound inquiries per sentence. So a two-to-one ratio must be acceptable."
*On judicial legitimacy:
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*On oral argument:
I use argument to grasp details about the case (such as whether particular arguments were preserved in the district court or what the record shows about some potentially important fact) and test my tentative legal impressions. The latter, especially, means laying out for counsel the difficulties with that side's position and seeing whether counsel has a riposte. If yes, I must go back to the drawing board (which is fairly common); but if the lawyer lacks an answer, or tries to weasel out of meeting the question, then I'm more inclined to think the difficulties insuperable. That's one reason why an oral advocate should never say "I'm coming to that later" (the time is now, when it matters to the judge) or "That's a hypothetical; the facts of this case differ" (the judge knows it is a hypothetical; the goal is to abstract away from the facts and test the legal issue at a more general level). Lawyers who say "just decide this case on its own facts" are asking for a law-free zone, which we don't offer. (I sometimes mutter under my breath: "Whew! Until that reminder, I had been planning to decide this appeal on some other case's facts!")
. . . The best way to prepare is to follow John W. Davis's Rule #1 of appellate advocacy: change places mentally with the court and imagine what a generalist judge would find troubling about your position. Friends who have had nothing to do with the case (other than to read the briefs) can help you by supplying the outsider's perspective. Visits to the court also help. Watching other oral arguments before yours commences introduces you to the court's style. Assistants in the SG's Office regularly watched their colleagues' arguments in the Supreme Court and sometimes attended oral arguments in private litigation. By the time they stood up to argue their own cases, they knew what the process was about, what worked, and what didn't.
*On the importance of jurisdiction:
Last year my clerks gave me a sketch, done by a cartoonist, that captures my attitude: a lawyer is disappearing through a trap door, which I opened by pushing a button on the bench. On his way down (way, way down; the Seventh Circuit's courtroom is on the 27th floor of the Dirksen Courthouse) the lawyer exclaims: "BBUT, YOUR HONOR, JURISDICTION WASN'T RAISED BELOOOOOWWW...!" . . . (The phrase "Your Honor, I wasn't trial counsel so I don't know what’s in the record" also opens the trap door. A voice-activated switch should automate the process, but I can't persuade the General Services Administration to install a trap door. GSA expresses concern about disrupting ongoing trials if an appellate lawyer should pass through district courts on the way to the street.)
*On the frequently reversed 28-judge Ninth Circuit:
*On the judicial appointment process:
It is bad enough to assume that a scholar who writes an article opposing rent control would automatically think as a judge that rent control is unconstitutional--the subjects are unrelated--but terrible to assume that a lawyer who (say) represents persons accused of committing securities fraud would then favor securities fraud while on the bench. Nonsense. Ex-prosecutors on the bench acquit defendants; former defense lawyers appointed to the bench convict defendants; proponents of public support for religious instruction still apply the Establishment Clause after appointment; and so on. There is a nasty side effect of condemning the lawyer on the client's account: ambitious lawyers will shy away from representing controversial clients. And as almost any cause or client can be depicted as controversial from some perspective... Do we really want this?
*"[T]he bottomless pits in Star Wars [hold a special place in my heart, as they] demonstrate that once civilizations have achieved sufficient technological progress OSHA will wither away."
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August 09, 2004
LAW/POLITICS: Confidential Sources
The US District Court for the District of Columbia today released an opinion (dated July 20, 2004; link opens as PDF file) ordering Tim Russert and Time Magazine reporter Matthew Cooper to disclose information provided to them by confidential sources (presumably, the identities of individuals within the Bush Administration) in the Valerie Plame investigation. (The Washington Post has more here).
UPDATE: Here's the bottom-line order (also a PDF) holding Cooper and Time in contempt but staying the contempt order pending an appeal to the DC Circuit.
August 07, 2004
Stuart Buck properly slams this Legal Times article for calling it a "bombshell" that a new biography reveals that Clarence Thomas doesn't believe in stare decisis in constitutional cases, something that should have been well-known to any reader of his opinions. I rather think the author of the article overstates the case as well in calling stare decisis in constitutional cases "the key principle of our society's rule of law."
Interestingly, the book under discussion also sides with Thomas (at least partially) in the famous sexual harassment charge:
"In the end Thomas and Hill remained the only two people who knew what transpired between them, and each told a different story," Foskett writes, noting that the two had a social relationship of some form before they worked together. "Although it was plausible that Thomas said what Hill alleged, it seemed implausible that he said it all in the manner Hill described.
"Bullying a woman wasn't in Thomas's nature and ran contrary to how he conducted himself around others in a professional environment. And if the context wasn't as Hill alleged, was it fair to turn private conduct into a political weapon to defeat his nomination?" Foskett asks.
August 06, 2004
LAW: Closing Argument
August 05, 2004
LAW: Great Moments in Automated Messages
August 01, 2004
POLITICS/LAW: Curse You, Fred Baron!
July 10, 2004
LAW: Want Fries With That Lawsuit?
With a plaintiffs' lawyer on the national ticket, the issue of tort reform - often promised by George W. Bush but never delivered - is back on the front burner. But, but - ask the defenders of the status quo - what's so bad about seeking to hold corporations responsible when they cause grievous injuries?
Walter Olson has the daily grind on this; I spend more of my time beating back bogus or severely exaggerated lawsuits than I do blogging about them. But if you want an example that's all too typical of the kind of criticism of corporate behavior that winds up getting turned into a big-money, resource-sucking lawsuit, look no further than this example:
Oak Brook, Ill.-based McDonald's pledged in September 2002 to switch to a lower-fat oil by February, 2003.
The suit, filed in federal court on behalf of a California woman, says McDonald's has not disclosed "to the public in an effective manner that it had not switched to a new, healthier cooking oil."
The restaurant chain had announced it planned to cut the trans fat levels in its fried foods. But McDonald's has delayed the plan, citing concerns of product quality and customer satisfaction.
You got a problem with McDonald's french fries, which - I should add - are incredibly tasty and accordingly popular? Start a blog, issue a press release, open a competing chain. But no; somebody's looking to strike attorney-fee gold here. And they'll probably get paid, before this is all through.
July 07, 2004
WAR/LAW: Edmonds Gets Shut Down
Remember Sibel Dinez Edmonds, the disgruntled former FBI translator who aired sensational charges of disloyalty and deliberate incompetence at the FBI after September 11? Well, on Tuesday the US District Court for the District of Columbia dismissed her lawsuit, accepting an affidavit by John Ashcroft to the effect that resolution of her claims would require the disclosure of state secrets.
Edmonds' charges are grave, but not tremendously credible. Here's hoping that Congress has conducted or will conduct an adequate investigation, because her claims (probably properly) won't get their day in court.
July 01, 2004
LAW: You Knew This Was Coming
Big but predictable end-of-term Supreme Court decision; really, it was compelled by any number of recent precedents.
June 15, 2004
LAW: Not Your Father's Legal Ethics
Overlawyered has a horror story of seduction and blackmail . . . and nobody in the legal system willing to say a bad word about it.
June 05, 2004
LAW: Fisking a Disclaimer
Jack Shafer fisks an email disclaimer. It's not really a fair fight.
I see his point - disclaimers on email messages are hardly ironclad legal protection - but any careful lawyer will tell you that you're better off trying. In some contexts, such as protection of the attorney-client privilege, courts will look at what steps you took to keep things confidential - and having a disclaimer, while hardly determinative, can't hurt. Granted, it's hard to argue that something a computer stamps on every outgoing message is an indicia of the privileged nature of the contents, but it's at least a sign that you are notifying an inadvertent recipient that this could be sensitive stuff they should give back.
May 25, 2004
FOOTBALL/LAW: Clarett Runs Out Of Time
The United States Court of Appeals for the Second Circuit, which previously lifted the injunction ordering the NFL to permit Maurice Clarett to participate in the NFL Draft, has now rejected Clarett's contention that the antitrust laws require the NFL to let him be eligible for the draft. The opinion is here, but it's pretty dry reading unless you're a labor antitrust lawyer (and believe me, that's coming from someone who reads a lot of judicial opinions). Clarett has 90 days to file a petition with the United States Supreme Court, although unless he can convince the Court to issue an injunction providing for new emergency relief, the Court's usual schedule won't permit his appeal to be heard and decided until December at the earliest, and quite probably after the NFL season.
May 22, 2004
BLOG: End of The Week Non-Baseball Links
*Gen. Anthony Zinni has a new book out this summer, entitled "Battle Ready," co-authored by Tom Clancy and chronicling Zinni's career. Sure sounds like a guy auditioning for VP to me.
*Michael King has some thoughts on a recent Bill Cosby speech that didn't go down so well with an assemblage of 'civil rights leaders'.
*Kevin Drum gets in a huff about the Texas state controller ruling that Unitarian-Universalists aren't a real religion. This is indeed pretty dumb, but only people on the Left could blame it on what evil cretins all Texans are. The problem here is one that's common throughout government: idiotic decisions driven by fear of litigation, in this case fear that the absence of a clear standard will render the controller vulnerable in future litigation with genuine crackpots. Horror stories are common of government officials - especially at the public school level - overreacting to stuff, especially where religious liberties are concerned, out of misunderstanding of the applicable law coupled with fear of litigation. The fault, dear Brutus, lies not in the Texans but in our courts.
*Pejman seeks to correct the common misperception that "being a law student is like being a Jew during the Inquisition." He has and links to some good advice; I'd heartily second the idea that law school is still less work than having a job (personally, I found that the stress of job-hunting was actually the main anxiety-builder in law school) and that it's just crucial to spend time with people who are not law students.
*Venomous Kate is a good place to start for strange theories about Nicholas Berg (link via An Unsealed Room). I just want to know if this Zelig of the Terror War was related to Moe Berg, catcher and spy.
*Speaking of Berg, Michele tears into his father's fatuous editorial for the Guardian, the left-wing London rag. Read the whole thing. It's the Guardian that should really be ashamed for printing this drivel. I love this line, which is one of the best things I think I've ever read: "let me tell you, Mr. Berg - if George Bush had looked into your son's eyes, it wouldn't be while he was slicing his head off." A sample of the foolishness:
Well, we can respect other humans, or we can respect sovereign states. We can't have both, not when other sovereign states are run with not the slightest regard for our fellow humans or for us.
Likewise, we can expect others to live up to the same rules we do - or we can accept that they don't. Again, we've gotta choose between the two. It's astounding how often the Left looks at homicidal dictatorships and assumes that this is how their subjects freely choose to live. If you start with the (rather indisputable) premise that the Saddams and the Zarqawis of the world wish to impose their will on a population that does not want to live that way, all the talk in the world about respecting how other people choose to live falls away to nonsense.
*Anything that gets William Donahue to blast the Vatican is pretty misguided. That's like Terry McAuliffe ripping Clinton.
*The NY Daily News' headline from Rudy Giuliani's testimony before the increasingly farcical September 11 commission: "We did all we could" (Underlining in the print headline on the front page). But that's not what he said; what Rudy said, which was much wiser and encompassed the failures of 9/11 and why we shouldn't rush to place blame for them, was "we did everything we could think of ... to protect the city." Ponder that one. We, as a nation, and our governments, federal, state and city, did not do everything we could. We did do, as Rudy said, everything we could think of. The problem was a collective failure of imagination.
May 20, 2004
LAW: Prediction Holding Steady
With the news that the Attorneys General of Connecticut and Rhode Island are following Elliot Spitzer in deciding that they are obligated to recognize same-sex marriages from Massachusetts, my prediction from February looks better every day:
Gay marriage will become the law of the land without any state legislature ever having voted it into law, without a majority of either house of Congress ever having voted in favor of gay marriage, without any statewide popular referendum ever having voted in favor of gay marriage, and without any state or federal constitutional provision ever having explicitly authorized it.
As I've noted before, the way in which this is being done is what I find most problematic. It's one thing for democratically elected legislatures to enter into a radical social experiment like recognizing same-sex marriage; if there are unintended consequences or things just don't seem to be working out, you can change. But by judicially imposing a no-compromises, all-or-nothing, one-size-fits-all solution and having it enforced administratively, the proponents of same-sex marriage are giving the people no room for compromise, balance, or reflection. That's no way to run a democracy.
May 04, 2004
LAW: Hey, I Won That Prize Already!
So, from Wonkette we learn that one of the networks is doing a "reality" show where the prize is a job at a law firm. Or, as the notice calls it, "YOUR CHANCE TO WIN A LUCRATIVE POSITION WITH A PRETIGIOUS LAW FIRM!" As one Wonkette reader (well, me, actually, but I can still quote myself) emailed her, "Presumably, if the show is anything like real law practice, you get extra points for pointing out that 'PRETIGIOUS' is not a word."
The contest: "Compete in mock trials/courtroom showdowns on prime-time TV." I'm guessing they only show the trial, not the preparation . . . my question is, what sort of "PRETIGIOUS LAW FIRM" wants to tell its clients it is handing out jobs on the basis of a TV show? I'd guess a plaintiffs' firm that does a lot of trial work, since the show appears to be testing trial skills rather than some of the less visual lawyering skills.
May 01, 2004
Fortunately, it looks like Justice Souter is OK after being mugged last night. Of course, there's an old saying that a conservative is a liberal who's been mugged . . . but that would be too much to ask for. Ideological carping aside, it's good to see he wasn't seriously injured.
April 22, 2004
LAW: Friends Like These
Around the blawgosphere and elsewhere . . .
*Eugene Volokh notes that the metamorphosis of amici curiae from friends of the court to friends of the parties can be traced to the early- to mid-19th century and the rise of written as opposed to oral advocacy.
*If you haven't noticed yet, the indefatigable Howard Bashman has moved to a new address at http://legalaffairs.org/howappealing/; like Kevin Drum, he's now the opening act for the online home of a magazine, in this case Legal Affairs. Speaking of which, Legal Affairs has a good writeup on New York's Martin Act, with some useful historical detail as well as some anonymous potshots at New York Attorney General Eliot Spitzer.
*California gets tough on unfounded lawsuits, as a California Supreme Court opinion (authored by DC Circuit nominee Janice Rogers Brown) concludes that a lawyer can be sued for malicious prosecution for continuing to pursue a lawsuit that appeared to have arguable merit when filed but was later discovered to be frivolous:
"Continuing an action one discovers to be baseless harms the defendant and burdens the court system just as much as initiating an action known to be baseless from the outset," Justice Janice Rogers Brown wrote. "As the court of appeal in this case observed, 'It makes little sense to hold attorneys accountable for their knowledge when they file a lawsuit, but not for their knowledge the next day.'"
Ironically enough, the case involved (stay with me here) a lawyer suing his former client's lawyer for malicious prosection in bringing an action on behalf of the former client against her former lawyer. For his actions in yet another lawsuit.
April 21, 2004
POLITICS/WAR/LAW: Lileks and More Lileks
Lileks has been on a ferocious roll lately. Tuesday's Bleat looks at Claudia Rossett's NRO piece drawing up a roadmap of the ties between the UN's oil-for-food boondoggle for the benefit of
[W]hat does this do for John Kerry’s credibility? He stated on Sunday that Saddam had no connections to Al-Qaeda, an assertion that has now taken on the mantle of Absolute Fact.
Monday, Lileks gave a well-deserved Fisking to Andrew Sullivan's call for a regressive, growth-strangling gas tax. Read the whole thing.
Friday, Lileks offered up the best effort I've read yet to articulate the opposition to the gay marriage movement (indicative of his openness to honest debate on the one issue but not the other, Sullivan links to the gas tax Bleat but ignores this one). After noting that he doesn't have a religious issue with homosexual relations or with same-sex marriage, Lileks tears into the argument of an anthropologist in support of same-sex marriage, in terms that are worth reprinting here in full:
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[W]hat perked up my ears was one of the anthropologist’s assertions that there is no difference between a two-parent / two-sex family and a two-parent / same-sex family. None. He said: Any preference for a traditional mom/dad family was based in a “superstition.” His word: “Superstition.” Because, you see, there was no evidence that two moms were different in any important way than a mom and a dad. Belief in werewolves, belief in the evil eye, belief in the walking undead or the superiority of a mom-dad household: superstition.
Lileks admits that this may not be the prevailing view of advocates of same-sex marriage -- oh, but it is, at least as it's presented in the courts (as opposed to some legislatively negotiated, half-a-loaf compromise), and he nails precisely why this argument strikes such an emotional chord with opponents of same-sex marriage. Remeber: under well-settled constitutional law standards, the legal argument under the Equal Protection Clause depends on showing that the distinction between same-sex marriage and traditional marriage has no rational basis at all. That the State has no reason that could be articulated with a straight face as justifying a preference for marriage in the form it has always existed, including its integral relationship to the bearing, begetting and rearing of the next generation. If they concede that there is any unique value whatsoever to children having both a mother and a father, advocates of imposing same-sex marriage through the courts have no argument; they've given away the game. Thus, they must attack, and attack, and attack, and chip away at faith in the institution so many of us hold dear, and denigrate it to the point where it's indistinguishable from the alternative.
But those of us who value marriage, who believe that having a mother and a father is a good thing for children - we're the ones who are being "divisive".
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Posted by Baseball Crank at 12:42 AM | Law | Politics 2004 | War 2004 | Comments (4) | TrackBack (0)
April 09, 2004
LAW: You Are Being Watched
When I first noted Mark Cuban's weblog three weeks ago, I noted that one of his entries at the time was discussing his investment in search engine company Mamma.com, and that "the fact that he's talking here about investments about which he's making SEC filings . . . could get him in a whole lot more trouble than an NBA fine." Now, as day follows night, comes a CNN report that the SEC "launched an informal probe concerning recent activity in [Mamma.com] stock, which has almost quadrupled over the past month in highly volatile trading," with CNN specifically noting that the stock
closed at $15.66 Monday on Nasdaq, up from its $4 price range at the beginning of March.
(Emphasis added). Now, investigations like this are often opened without there necessarily having been any wrongdoing by anyone, and I'm not saying that Cuban did or did not do anything improper here (I'm particularly hesitant to comment on the merits because my law firm does a lot of work in this area, and for all I know we may be representing somebody already in this particular probe). But my initial point remains: if you blog about your investments in a way that could even arguably be construed as encouraging others to make investment decisions, you could wind up blogging yourself into some trouble.
March 31, 2004
LAW: Now This Is Power
Generally, when judges snap their fingers, lawyers come a'-runnin'. For Howard Bashman, it's the other way around: Bashman puts out a call at 9:40 a.m. yesterday for a substitute federal or state appeals judge to do his "20 questions" blog interview, and by 6:11 p.m. he can report that "more than one volunteer came forward."
LAW: We Have Our Sources
Can the government place monitoring software on a child porn sex offender's computer as a condition of probation? The Second Circuit isn't prepared to say no, but nonetheless remands the particular sentence in light of the inherent privacy intrusion.
March 29, 2004
LAW: Appealing Advice
This Myron Moskovitz column has some good basic advice for lawyers working on an appeal, something I've done a lot of recently. And this nugget, from Howard Bashman's interview with Judge Ruggero J. Aldisert of the U.S. Court of Appeals for the Third Circuit, should make a particular impression as far as the need for clarity and concision:
When I became a member of the Third Circuit in 1968 each active judge was responsible for deciding 90 appeals a year. The national average was 93. That was "Then."
March 12, 2004
LAW: Out of Balance
Miami law professor Michael Froomkin and Volokh conspirator David Bernstein have some additional thoughts on Justice Scalia's denunciation of constitutional balancing tests in Crawford v. Washington, noted earlier here.
March 10, 2004
LAW: Oh, Yeah, and Bill a Little
Via Prof. Bainbridge, we come upon this hilarious and pointed rendition of "Howard Bashman's Daily To-Do List". Fans of Bashman's site - myself included - can appreciate the humor here. I really do wonder how the man ever manages to bill a full day while doing all that blogging.
LAW: Confronting The Sixth Amendment
Really, really big news from the Supreme Court Monday, although thus far among the major bloggers and blawgers I've seen only a brief, non-analytical writeup by Eugene Volokh and a bare-bones announcement from Howard Bashman (Tung Yin, call your office!). The Court's decision in Crawford v. Washington, No. 02-9410 (U.S. Mar. 8, 2004) amounts to a revolutionary reassessment of the Confrontation Clause of the Sixth Amendment, one that will have wide-ranging effects on the criminal justice system. Justice Scalia wrote the opinion for a 7-2 Court; the Court's decision to reverse the conviction was unanimous, but Chief Justice Rehnquist, joined by Justice O'Connor, disagreed with the Court's analysis.
The Sixth Amendment provides: “[i]n all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.” Crawford holds that the Clause bars the admission in criminal prosecutions of prior testimony unless the witness is unavailable and there was a prior opportunity for cross-examination. In so doing, the Court rejected the prior rule of Ohio v. Roberts, 448 U.S. 56, 66 (1980), under which such testimony, to be admitted, "must either fall within a 'firmly rooted hearsay exception' or bear 'particularized guarantees of trustworthiness.'". It was the latter part of the Roberts test -- allowing un-cross-examined prior testimony to be admitted if it was deemed to have sufficient indicia of reliability -- that prompted Justice Scalia's characteristically pithy observation that
Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes.
Slip op. at 27. The Court described the scope of its holding as follows:
Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law-as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. We leave for another day any effort to spell out a comprehensive definition of “testimonial.” Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.
Slip op. at 33 (emphasis added). The Court thus left unsettled such traditional hearsay exeptions issues as dying or other spontaneous declarations, and was also careful to note that its holding did not address non-hearsay statements such as statements in furtherance of a conspiracy.
Crawford is interesting academically; a good constitutional law professor could find much to discuss in the way Justice Scalia proceeded, after determining that the language of the Clause did not answer the questions at bar, to offer a historical exegesis of why the Framers of the Constitution feared inquisitorial practices under which out-of-court statements could be given to judicial or law enforcement officers and then admitted as evidence without cross-examination, as well as his explanation of why the Court should depart from its prior decision in Roberts: "[t]he framework is so unpredictable that it fails to provide meaningful protection from even core confrontation violations." Then there's his enviably concise explanation of how the new rule could be squared with past cases: "If nothing else, the test we announce is an empirically accurate explanation of the results our cases have reached."
But its real significance is in practice, where the decision - while it may handcuff law enforcement in some cases - will also do much to prevent abuses in the system:
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One prime example of that can be found in Crawford itself, where the testimony admitted was a statement given by the defendant's wife to police; the prosecution was able to introduce the statement in spite of the fact that she could not be called to testify due to spousal immunity. A quick look at her statement, implicating her husband in a stabbing and partially undermining his self-defense claim, shows the problem:
“Q. Did Kenny do anything to fight back from this assault?
The Court found this deeply problematic:
Sylvia Crawford made her statement while in police custody, herself a potential suspect in the case. Indeed, she had been told that whether she would be released “depend[ed] on how the investigation continues.” App. 81. In response to often leading questions from police detectives, she implicated her husband in Lee’s stabbing and at least arguably undermined his self-defense claim. Despite all this, the trial court admitted her statement, listing several reasons why it was reliable. In its opinion reversing, the Court of Appeals listed several other reasons why the statement was not reliable. Finally, the State Supreme Court relied exclusively on the interlocking character of the statement and disregarded every other factor the lower courts had considered. The case is thus a self-contained demonstration of Roberts’ unpredictable and inconsistent application.
As Justice Scalia noted, dispensing with one of the 'reliability' factors, "The Framers would be astounded to learn that ex parte testimony could be admitted against a criminal defendant because it was elicited by 'neutral' government officers." He also added a rather lengthy admonishment about the hazards of such evidence to liberty, and the limitations on courts' ability to provide meaningful protections by using fact-intensive balancing tests:
We readily concede that we could resolve this case by simply reweighing the “reliability factors” under Roberts and finding that Sylvia Crawford’s statement falls short. But we view this as one of those rare cases in which the result below is so improbable that it reveals a fundamental failure on our part to interpret the Constitution in a way that secures its intended constraint on judicial discretion. Moreover, to reverse the Washington Supreme Court’s decision after conducting our own reliability analysis would perpetuate, not avoid, what the Sixth Amendment condemns. The Constitution prescribes a procedure for determining the reliability of testimony in criminal trials, and we, no less than the state courts, lack authority to replace it with one of our own devising.
I should note that there is a distinct overtone in his caution of concern over the War on Terror. Which does concern me; but it also points out that, in cases where the exigencies of war collide head-on with the need for protecting civil liberties, we may well be better off leaving cases out of the courts entirely.
Of particular practical relevance, the Court specifically disapproved of the practice of admission of plea allocutions, noting such cases as an example to show that "Courts have invoked Roberts to admit other sorts of plainly testimonial statements despite the absence of any opportunity to cross-examine" and overruling numerous Circuit precedents (including several cases in the Second Circuit, where I practice) in the process. Slip op. at 29. Of more specific interest to white-collar practitioners, the disapproval of admission of plea allocutions without cross-examination may make it extremely difficult for prosecutors to introduce the guilty pleas of corporations, an already controversial practice.
Admissions of prior testimony, including allocutions in addition to the other items identified by the Court, have become such routine features of the criminal justice system that Crawford is sure to spawn numerous challenges to existing convictions (although the dissent observed that such challenges may be subject to harmless error analysis).
To give an example of the way in which admissions of plea allocutions can be abusive, let me examine a case I worked on a few years ago (this is all public record). The Justice Department threatens charges against W Corp. W Corp., for various reasons (it's a business in a heavily regulated industry and on the eve of a merger), is under intense economic pressure not to fight the case, and enters a guilty plea and allocution to the charges (the terms of which are negotiated with the prosecutors), pointing the finger at employees X, Y and Z.
X, Y and Z are then indicted. Close to trial, X pleads guilty. As with W Corp., X has to enter a plea allocution that is acceptable to the government, so there's an opportunity beforehand for the prosecutors to influence the terms in which X pleads guilty, so as to maximize its usefulness at trial against Y and Z. Now, here's the tricky part: under the rules of evidence, the government needs to show that X is unavailable to testify so they can use his un-cross-examined allocution instead. So they argue that, because he hasn't been sentenced yet, X still has a Fifth Amendment right not to testify to the facts surrounding his guilty plea. Of course, the only way his testimony can hurt him at sentencing is if the same prosecutors who cut the deal with X choose to do so - an unlikely eventuality indeed. But, OK, from X's perspective, this is still a valid objection. But then, the government could grant X use immunity, promising that, unless he perjures himself, they can't use his testimony at sentencing. But the federal courts, at least, have accepted the prosecution's separation-of-powers argument that they can't be compelled to grant use immunity.
Result: simply by taking advantage of the timing of sentencing, any time a co-defendant pleads guilty, the prosecutors can manipulate the situation to have his plea allocution introduced in evidence without cross-examination and - an added bonus - without the need to present a guy who pled guilty as a credible witness before the jury. (In our case, we succeeded in excluding W Corp.'s allocution, but not X's).
Now, I'm very sympathetic to the idea that a co-defendant who pleads guilty can have testimony of real probative value, and I can understand why prosecutors prefer to be able to cut deals that don't require continuing cooperation on the stand; now, they will have to do so. But to allow this whole process to go on as it has before winds up presenting a defendant with a stream of 'witnesses' who just say 'guilty' and can't be cross-examined about it. By putting and end to that process, Crawford has done the administration of justice a real service.
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March 09, 2004
LAW: What Clients Really Want
Nothing revolutionary in here, but I thought this Law.com article from January was, in my experience at least, a good summary of what corporate clients expect from law firm associates.
March 05, 2004
LAW: GUILTY ON ALL COUNTS
1010 WINS Radio reporting that Martha Stewart was convicted on all charges. MSNBC will have more here. Trading halted on stock of her company.
Back to work.
March 04, 2004
LAW: So Much for Federalism?
Elliot Spitzer concludes that same-sex marriage is not recognized by New York law, but then concludes that New York courts would recognize same-sex unions from other states. So much for the argument that an amendment is not needed to prevent one state's court ruling from imposing itself on the nation?
On the other hand, if you look at Spitzer's actual ruling (opens in PDF form) rather than his press release, you'll see that his conclusion on the latter issue is much less certain and relies on a lower court decision (involving civil unions) that's currently on appeal to the Appellate Division, Second Department. So stay tuned.
March 02, 2004
LAW/RELIGION: No Such Thing As The Catholic Church?
The California Supreme Court rules that Catholic Charities can not decline to provide health insurance coverage for birth control to its workers. Of course, only big government run rampant explains why workers get to sue over the precise terms of health insurance coverage in the first place - well, that and the fact that the statute is explicitly targeted at religious employers who have objections of conscience. Tolerance of religion does not go far in California these days. Appalling.
February 27, 2004
LAW: Ain't No Crime
Judge Cedarbaum's opinion in United States v. Stewart, 03 Cr. 717 (S.D.N.Y. Feb. 27, 2004), dismissing the securities fraud charge against Martha Stewart, is now available online in PDF form. (You can read a news account of the decision here). The case provides an interesting look at the difficulty of proving intent in criminal securities fraud cases, especially in situations such as this one, where the alleged misrepresentations did not relate directly to the business of the issuer.
The securities fraud charge was always somewhat novel, in that it accused Stewart of fraud in connection with the purchase and sale of stock in her own company, Martha Stewart Living Omnimedia (MSLO), by misrepresentations during the investigation of her sales of ImClone stock in which she  "described the [alleged standing order] agreement to sell ImClone at a predetermined price,  stated that her trade was proper and  denied trading on nonpublic information." Slip op. at 5. For purposes of the analysis of the Rule 29 motion on the sufficiency of the evidence, the court assumed the falsity of these statements. Id. at 7 n.1. The court found sufficient evidence that Stewart, who owned 60% of MSLO stock in addition to being CEO, closely tracked the stock's price (including the impact on that price of insider sales, as evidenced by an informal company policy restricting insider sales), and was aware of the importance of her personal reputation to the company, as well as evidence that MSLO stock began dropping on news of disclosure of the investigation into Stewart's sale of ImClone stock.
The court's dismissal was based on the finding that the jury would need to rely entirely on "speculation and surmise" to find beyond a reasonable doubt that Stewart's statements were made with the intent to affect the price of MSLO stock, and that the issue could not be permitted to go to the jury where "the competing intentions appear to be nearly in equipoise." Id. at 16, 20. As the court concluded, in light of the fact that Stewart had made no statements indicating a concern about the response of MSLO's stock price to the ImClone controversy (and, apparently, had made no suspicious sales of MSLO stock):
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To compound [the] weak evidence [that Stewart's statements were made with intent to defraud MSLO shareholders] with the reasonable inferences that Stewart possessed many other intents -- to protest her innocence or repair her reputation, to reassure her business partners, advertisers, and the consumers of her products -- would only invite the jury to speculate.
Id. at 22. The court found that the falsity of the statements alone would not support an inference of intent to defraud:
In some securities fraud cases, the falsity of a defendant's statements may lend weight to an inference of intent to deceive. But in this case, the falsehoods lack a direct connection to the supposed purpose of the alleged deception. The falsehoods involve Stewart's personal trade in the securities of ImClone. Evidence of intent to defraud investors of a different company is not readily discernible from the content of the falsehoods.
Id. at 21. In this regard, the court observed that the responsiveness of the statements to questions arising in the media about her ImClone trade did not suggest a connection to MSLO's stock price:
Because this argument does not distinguish meaningfully between the general public and MSLO investors, it cannot support a permissible inference of intent.
Id. at 16 n. 4. The court also found that the context in which the statements were made did not support the idea that they were targeted at affecting MSLO's stock price. The first statement was made by her attorney to the Wall Street Journal, but there was "no evidence that Stewart or her lawyer reached out to the Wall Street Journal as opposed to other publications" and "[t]hus, there is no evidence that Stewart chose the forum for the statement." Id. at 18. The second statement was made in a press release:
The Government argues that Stewart's intent with respect to the second statement can be inferred from the fact that she released it knowing that it would be widely disseminated in financial publications. This argument, which can be made with respect to any public statement, adds nothing to the evidence of criminal intent.
The third statement was made to a previously scheduled conference of analysts and investors, but the court emphasized that "the fact that Stewart made [this] statement to an audience of analysts and investors cannot retroactively endow her previous statements with a bad purpose," and found that the evidence that the statement itself was intended to affect MSLO's stock price was weak, given that Stewart's statement was only a small part of a larger statement about MSLO, made at an event where there were several other MSLO representatives and representatives of other companies and that neither Stewart nor MSLO organized the conference:
There is no evidence that the negative publicity about ImClone influenced Stewart's decision to attend and take advantage of a platform from which to reach investors directly.
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LAW/POLITICS: Over The Edge on Gay Marriage, Part II
Following up on yesterday's argument . . . as I think you can tell, I'm hardly a bitter-ender on the substance of the gay marriage question. I don't necessarily think that the world would spin off its axis if we had gay marriage . . . frankly, I hadn't really thought about "gay rights" issues until maybe my senior year of college, and I've made a real effort since then to take in all sides of the issues. And while I don't have the patience to read as much on these issues as Andrew Sullivan puts out, I do try to read his stuff on this. But what I do take very seriously is the Left's concerted effort to impose radical social changes without ever getting the sanction of democratically elected representatives or explicit authority in the Constitution or statutes, and then turn around and call conservatives the radical ones.
Now, we've got yet another local official threatening to issue marriage licenses to gay couples, this time the mayor of New Paltz, New York (this is what you get for electing a 26-year-old Green Party mayor). As in California, this will suddenly put both the Governor and the state Attorney General in a very awkward position.
Tom Maguire, who's been all over this issue, points us to Ramesh Ponnuru's article on NRO essentially endorsing the same solution that Maguire, I and James Taranto would all prefer: an amendment that would do nothing more than leave exclusively to each state's legislature the question of what kind of marriages or civil unions to approve. Indeed, the WSJ comes out with an editorial today endorsing precisely this position:
Now, even some who support a constitutional remedy wonder about the language. There is debate about whether the amendment's language would bar states from endorsing civil unions, which Mr. Bush says they should be free to do. We think this entire issue should be decided in the states, by the people through their elected legislators. And if the voters want to alter the definition of marriage as a new social consensus develops, that should be their democratic right.
This is a popular position. Indeed, even Sullivan says "I will support a federal constitutional amendment that would solely say that no state is required to recognize a civil marriage from another state," although he contends that we should first wait for the courts to bulldoze all the existing legislation on the matter - at which point, I do question whether he'd argue that it's a "divisive" attempt to "roll back" the facts on the ground . . .
Given that the votes clearly will not be there for a more sweeping amendment - something such noted weak-kneed moderates as Tom DeLay seem to have already appreciated - those pushing for an amendment need to take what they can get. I agree with Taranto that the more modest solution would put John Kerry in even more of a terrible box than he's already in (as opposed to his current position, in which he (1) says that opposing gay marriage is bigoted and divisive and (2) says that he opposes gay marriage), since the GOP could honestly portray its effort as one that preserves the status quo without casting it in stone. Kerry would then be forced to bet his chips on the losing hand of opposing his own position - or face the wrath of the Left within his own party.
Turning briefly to the merits of gay marriage, a few non-comprehensive thoughts:
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*As I've noted before, I have no problem with civil unions that essentially formalize a gay couple's ability to pledge themselves to each other and gain those benefits and privileges that are reasonably related to such a relationship, including things like hospital visitation rights and survivorship inheritance rights that don't cost the rest of us anything. The sensible way to do this is by statute, so that the government can sift through all the incidents of marriage and decide which ones can reasonably be applied to this context.
*Probably the major reason for preserving the special and unique status of traditional marriage is its intimate relationship to the bearing, begetting and rearing of children. While radical thinkers have tried to undermine this concept since Plato, nobody's yet come up with a better way. The usual rejoinder to this is that we don't bar heterosexual couples from marrying if they are infertile or don't want children . . . this is a complete red herring. It's not unusual at all for the government to encourage A and not B, where A is more likely to lead to C and C is what the government wants to see happen. When you shift the argument to "which has a more obvious, traditional, natural, longstanding and proven relationship to the raising of children," the answer is pretty obvious.
*As Jonah Goldberg has observed, given that gay unions of any sort are a relatively novel phenomenon, the genuinely conservative approach is to recognize civil unions by statute and adjust things as we go along and learn from experience. On the "slippery slope" arguments . . . well, if you took a snapshot of our culture 20, 30, 40 years ago, it would have been very hard indeed to predict where we are today. I don't really think the burden should be on those of us who prefer more incremental changes to foresee everywhere a radical, permanent, set-in-stone court-imposed rewriting of the definition of marriage might lead us. Leaving this stuff within reach of the polity to change in the future is a far healthier answer and one that mature adults can recognize as consistent with dynamic changes in society.
*Andrew Sullivan, who has argued that opponents of gay marriage are hypocrites for focusing on the one issue where they are presently on the defensive without calling for an accross-the-board change in, say, attitudes toward divorce, shot that argument in the foot yesterday by arguing that the proposed amendment is, in fact, part of such a broader initiative. I never gave much credence to this objection; we take the issues as they arise.
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February 26, 2004
LAW/POLITICS: Over The Edge on Gay Marriage, Part I
Well, looks like it's time for me to talk about gay marriage. . . I didn't choose the time or the terms of this debate, but then, neither did President Bush. Keep that in mind.
You see, like any controversy over the intersection of law with the culture, the gay marriage debate has both a substantive aspect (what the right outcome for society should be) and a procedural aspect (how we get there, who legitimizes the decision, how it's enforced). And in this fight, the procedural issue is, in my view, a lot more troubling even than the substance.
On the merits, I first looked at this issue ten years ago, when I was in my first year of law school, and I came down in support of some form of civil union solution; I haven't seen anything to change my mind since then. More on the substantive merits another day (this post is already too long) . . . but I can recall having a debate in my property class with a lesbian woman who thought it highly unrealistic to await a democratic resolution of the issue. She wanted it to come from the courts.
From sources around the blogosphere too numerous to link here, we've tended to see five basic lines of attack against the president's decision to come down in favor of a constitutional amendment on the topic:
1. Ask why anybody cares who else is married.
These are deeply misguided arguments, and notwithstanding the fact that many of them are coming from people I otherwise respect and agree with on many other issues, they buy into the thuggish and dishonest tactics of the cultural Left, tactics that have been repeated so many times that those of us who consider ourselves social conservatives know exactly where this is going.
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Andrew Sullivan, who's been leading the charge for gay marriage for years, has framed the constitutional issue this way: "All true conservatives need to rally to protect the Constitution from being used unnecessarily for wedge politics."
I have to say: I agree with nearly everything Jonah Goldberg has written on this issue. He was right when he said that social conservatives are probably going to lose this battle, and that we can't just put our heads in the sand and pretend that the question will go away. He's also entirely correct that this fight is being picked by the Left, on its terms, and it's absurd to call conservatives "divisive" for not rolling over and playing dead when they are, after all, on the defensive against a court decision that overturned thousands of years of human experience and hundreds of years of settled assumptions in the law, and against rogue local officials who have precipitated a crisis by issuing marriage licenses that fly in the face of democratically-enacted state laws, including a popular referendum.
In that sense, this is a replay of past battles over the culture, and much of the ferocity of social conservatives comes from a deep sense of "we've lost this way before, this time we have to put a stop to it." If that makes this in some ways a proxy fight over abortion . . . well, thank Harry Blackmun for that. Over and over again, we've seen the same tactics from the Left: (1) use the courts to make dramatic changes; (2) immediately declare any attempt to alter those decisions through the democratic process "divisive"; (3) call conservatives "bigots."
We know how the Left will proceed here, having seen this all before. In the Congress, they will frame this as a civil rights issue and contend that majoritarian preferences shouldn't trump the legal process; in the courts, they will point to changing social consensus to effectively urge the judges to place the popular will (i.e., the opinions of the judges and their friends) ahead of the text of the law. The singular goal, at all times, will be to evade having the matter decided by a democratically legitimate authority, whether it be a legislature, a referendum, or any provision of the constitution.
I'll make a prediction right here, one that I dare any gay marriage supporter to disagree with:
Gay marriage will become the law of the land without any state legislature ever having voted it into law, without a majority of either house of Congress ever having voted in favor of gay marriage, without any statewide popular referendum ever having voted in favor of gay marriage, and without any state or federal constitutional provision ever having explicitly authorized it.
If you're not willing to disagree with that one, spare me the hypcritical blather about how conservatives shouldn't tinker with the constitution. To those who say, "trust us, don't amend the constitution, each state will get to decide" . . . when have the courts ever given social conservatives reason to believe that? It won't happen that way. I'd love to support an amendment that simply guarantees that the issue would be worked out by state legislatures (like James Taranto's suggestion), but if the only way to prevent a judicial takeover is to support a more broadly-worded amendment, many of us may feel we have no realistic choice.
In a sane world, we'd let the state legislatures handle this, as any good federalist would want. (As I've noted before, resort to state courts is no friend of federalism; Goldberg also notes the obvious disinterest in its bedrock principles by the proponents of gay marriage.) And on the merits, I tend to agree again with Goldberg that the best answer is to enact the incremental, yet in itself radically novel, measure of civil unions in at least some states and see how they work, giving our democratic representatives time and perspective to sort through the many legal implications (see below) of the marital relation. I'd be perfectly happy with that.
And you know what? If my state legislature decided to vote to change the law and let gays marry . . . I'd disagree with that, but it's not the end of the world. It would bother me a bit, but it would hardly burn me up. But what does stick in my craw rather severely is the Goodridge approach of having a bunch of judges pronounce not only a change in the thousands-of-years-old definition of marriage, but also that there is no rational basis whatsoever for that institution as it has always existed. Again, Goldberg is on target here: we're being asked to swallow a legal declaration that our longstanding and sacred institutions have no meaning, and we're supposed to smile when they tell us that. Why shouldn't that bother me? Mary Ann Glendon hits another key point, and given how this issue has unfolded in Europe and Canada, she's hardly being hyperbolic:
Religious freedom, too, is at stake. As much as one may wish to live and let live, the experience in other countries reveals that once these arrangements become law, there will be no live-and-let-live policy for those who differ. Gay-marriage proponents use the language of openness, tolerance and diversity, yet one foreseeable effect of their success will be to usher in an era of intolerance and discrimination the likes of which we have rarely seen before. Every person and every religion that disagrees will be labeled as bigoted and openly discriminated against. The ax will fall most heavily on religious persons and groups that don't go along. Religious institutions will be hit with lawsuits if they refuse to compromise their principles.
As to the other points above . . . on argument #1, I have to agree with what Atrios wrote on this (yes, I can't believe that I just wrote that either): like it or not, the government is in the marriage business, and pervasively so: as Atrios notes, a 1999 GAO study found more than 1,000 rights and benefits of civil marriage. As some of your more reasonable libertarian types like NZ Bear have recognized, disentangling marriage from the law isn't going to happen any time soon.
Which means the law has to deal with this. And there are real financial consequences, among other things, as Glendon has noted: for example, if gay marriage is declared a constitutional right, there could be hugely expensive claims for retroactive benefits from various federal entitlement programs, and resources will inevitably be diverted from existing programs directed to traditional families.
And that gets us to objection #3: as long as this is an issue that both the federal and state governments are going to have to deal with, how can you fault the president for taking a position? John Kerry may claim that Bush hasn't always followed through on his positions (claiming that "the single biggest say-one-thing-and-do-another administration in the modern history in this country"), but as I've noted before, at least Bush makes sure you know exactly where he stands, as opposed to Kerry's preferred tactic of saying one thing, then saying its opposite, then doing nothing at all. This is also the answer to the "it's all politics" charge (#5): you can argue all you want about Bush's motives, but, as Allahpundit has all-too-vividly illustrated, Bush's position on this issue has always been clear. Should he ignore the issue? As John Edwards has noted, the president needs to be able to "walk and chew gum at the same time" - and that means taking positions on tough domestic issues even while prosecuting the war on terror, and even while his chief opponents are hiding behind a fog of evasions so thick that even their supporters can't figure out where they stand.
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February 25, 2004
We litigators have all been on the other end of lawyers like this . . . my favorite is the part where the guy wrote to the court to defend all the typos in his work, and he misspelled the judge's name.
February 23, 2004
LAW/WAR: This Time, It's Personal
Darren Kaplan notes that Solicitor General Ted Olson will personally argue the government's case before the Supreme Court in Rumsfeld v. Padilla, the case addressing the government's ability to detain "dirty bomb" suspect Jose Padilla. As you may remember, Olson's wife was killed on September 11.
January 26, 2004
LAW: Mistrust of Antitrust
I didn't really see this get much attention around the blogosphere: the Supreme Court's opinion two weeks ago in Verizon Commun., Inc. v. Law Offices of Curtis Trinko, LLP, No. 02-682 (U.S. Jan. 13, 2004). The Court's decision was interesting enough, for those who closely follow antitrust law: the Court unanimously rejected an attempt by a customer of a long-distance telephone company (AT&T) to sue the local exchange carrier, or "LEC" (Verizon) under the Sherman Antitrust Act on the theory that Verizon harmed long-distance competition (and thus the customer and a putative class) by failing to provide AT&T with sufficient access to Verizon's facilities pursuant to the 1996 Telecommunications Act. Justice Scalia, writing for 6 members of the Court, found that the plaintiff failed to meet fit within the narrow class of cases where antitrust law imposes a duty on companies to assist their rivals, given that the alleged duty to do so arising from the Telecommunications Act was a creature of statute:
In the present case, by contrast, the services allegedly withheld are not otherwise marketed or available to the public. The sharing obligation imposed by the 1996 Act created “something brand new”-“the wholesale market for leasing network elements.” . . . The unbundled elements offered pursuant to §251(c)(3) exist only deep within the bowels of Verizon; they are brought out on compulsion of the 1996 Act and offered not to consumers but to rivals, and at considerable expense and effort. New systems must be designed and implemented simply to make that access possible . . .
(Citation omitted). (Justices Stevens, Souter and Thomas thought that the case should have been dismissed because the plaintiff lacked standing to sue). The Court also refused to embrace or reject the so-called "essential facilities" doctrine (a controversial doctrine of antitrust law, never directly ruled upon by the Supreme Court, under which it is sometimes argued that access to private facilities like railway switching stations -- or desktop operating systems -- are so essential to competition that all competitors must be given access). The Court reasoned that the plaintiff had failed to state a claim under the doctrine in light of the fact that the fact of federal legislation showed that the facilities could be accessed by means other than recourse to antitrust law -- in other words, if Congress can regulate the facility directly, it isn't so essential that only antitrust law can do so.
What really makes the Verizon opinion interesting, though, was Justice Scalia's strongly-worded expression of skepticism (still joined in by a 6-Justice majority) about the value of extending antitrust law to create duties of companies to aid their rivals in already-regulated industries:
One factor of particular importance is the existence of a regulatory structure designed to deter and remedy anticompetitive harm. Where such a structure exists, the additional benefit to competition provided by antitrust enforcement will tend to be small, and it will be less plausible that the antitrust laws contemplate such additional scrutiny. Where, by contrast, “[t]here is nothing built into the regulatory scheme which performs the antitrust function,” the benefits of antitrust are worth its sometimes considerable disadvantages. Just as regulatory context may in other cases serve as a basis for implied immunity, it may also be a consideration in deciding whether to recognize an expansion of the contours of §2.
(Emphasis added; citations omitted). The Court clearly 'gets it': in fast-moving markets, the blunt instrument of antitrust law is usually more trouble than it is worth (note the citation to the DC Circuit's Microsoft opinion). And where regulatory agencies already tread, adding private treble damages litigation to the mix is likely to reduce, rather than enhance, free and open competition.
January 24, 2004
BASEBALL/BLOG/POLITICS/LAW: Musings on Pinto
Congratulations are in order for David Pinto, who's moving on to a job with Baseball Info Solutions, the publishers of the new Bill James Handbook. David's been a great friend to this site, and I wish him well; he'll apparently be moving his blog to their site.
I have to wonder if the Sporting News, which bought out STATS, Inc. and shut down its annual baseball handbook (which competed with TSN's inferior publication), made a huge mistake common to arrogant baseball men by failing to consider that the key STATS employees, starting with John Dewan, might go and re-start essentially the same book with a new company. Had they thought about that, they could have (1) incorporated more of STATS' elements in the TSN annual or (2) included contract provisions in the sale requiring that key employees not compete with TSN for a number of years. Looks like they whiffed on that one.
On another note, David has this amusing nugget from Peter Gammons:
Gammons and [John] Kerry played hockey against each other in prep school, and Peter told me once that Kerry was the dirtiest hockey player he ever saw.
Posted by Baseball Crank at 10:30 AM | Baseball 2004 | Blog | Law | Politics 2004 | Comments (2) | TrackBack (0)
January 22, 2004
LAW: American Justice
So, I had to report for jury duty yesterday in state Supreme Court; didn't get put on a panel, but sat in the back for the voir dire of prospective jurors for a criminal case. One juror - I won't mention any identifying information about him - was asked the following questions and gave the following answers (this is a rough approximation, of course):
Q: Have you ever been a victim of a violent crime, charged with any crime or involved in any way with the criminal justice system?
You just gotta love our legal system sometimes. You can't make this stuff up.
January 21, 2004
POP CULTURE/BASEBALL/POLITICS, etc.: A Few Of My Favorite Books
Nothing scratches the blog itch quite like a little bout of list-making. With that in mind, I decided to draw up a list of my all-time favorite books. For reasons that will become obvious, I limited myself to one book per author, and in some cases the one book is something of a stand-in for a larger body of work. The top 10-15 of these are the real immortals, the ones I go back to again and again. In some cases, I suppose, I've also stretched the definition of "book," but hey, it's my list. I also decline to apologize for the paucity of literature and the prominence of baseball memoirs on this list; I've always preferred polemics, analyses, humor and great storytelling, and I've never made pretense at being deeply intellectual in my interests:
24. Raymond Woodcock, Take the Bar and Beat Me: I enjoy my job and the law, but not to the point where I can't see the humor in the profession of law. Woodcock, a reformed lawyer, graduate of Columbia Law School and practitioner at a big New York firm that has since gone under, wrote a scathingly humorous look at law school and the legal profession, and one I highly recommend to anyone considering a career in the law. Woodcock's take is blithely cynical in some places, but also self-critical, as he looks at how the law changed him, including his divorce (an occupational hazard of lawyering).
23. Leo Durocher, Nice Guys Finish Last: Leo's book, like Leo himself, is funny, vindictive, manipulative and an essential key to understanding six decades of baseball history, from Leo's run-ins with Ty Cobb to his frustrations with Cesar Cedeno.
22. Ayn Rand, Atlas Shrugged: A cliched choice for conservatives, although I came to read this one relatively late in life (just a few years ago) after I was pretty well set in my thoughts, and I still haven't read any of Rand's others. It's a tale well-told (even if John Galt's didactic speech drags a bit), skillfully playing on the unfairness, pettiness and venality of a system that gives some people the ability to decide how to dispose of the fruits of others' labors.
21. Joe Garagiola, Baseball is a Funny Game: Garagiola's was one of the first baseball books I read as a kid, and dog-eared it rather severely. It's unmistakably pre-Ball Four in its G-rated treatment of the game (it was published in 1960), and thus will seem horribly dated to the modern adult reader, but still manages to capture the earthy humor of ballplayers and the genuine love for the game of guys like Garagiola and his boyhood pal Yogi Berra, who came up from a working-class Italian-American section of St. Louis. Garagiola also captures an up-close look at important figures like Branch Rickey and Frankie Frisch. A similar collection of humorous stories about the game from the 1970s can be found in the late Ron Luciano's books.
20. Stephen Carter, Reflections of an Affirmative Action Baby: A tough choice between Carter's books on church and state, affirmative action, and judicial confirmations, so I picked the one I read first. Carter describes himself mostly as a political liberal, but he fits comfortably in the neo-liberal camp in his willingness to challenge orthodoxies of the Left, especially on questions of race and religion. His writing is also a model of clarity and directness.
19. Scott Turow, One L: Yes, this was particularly influential because (like most everybody else in my law school class) I read it the summer before starting law school at Harvard. Harvard and law schools generally have changed a good deal since the 1970s, but Turow captures perfectly (and contributes to) the essentially internal psychodrama of the place. I'm also giving Turow credit here for his works of straight fiction, which are intricate and absorbing, however seamy.
18. Stephen King, Christine: King's books are always gripping, most of all The Shining and Christine. The latter gets extra points here for King's vividly accurate portrait of the minds of high school kids and the real and imagined terrors that can overcome them.
17. Mark Bowden, Black Hawk Down: As frightening as any Stephen King book, but much sadder; Bowden not only rescued the Battle of Mogadishu from historical obscurity, but in the process drew a compelling picture of the modern American military and the men who populate it, the mindset and tactics of its Third World adversaries (sometimes in spite of decent men in their midst), and the gulf that separates the two. The book's indictment of foreign-policy adventures like Somalia is almost an afterthought but one that stays with you.
16. Barbara Tuchman, The Guns of August: If Bowden provided a readable and engrossing look at war from the ground level, Tuchman's World War I classic did the same from the top down. Tuchman recognized the Shakespearean tragedy of the onset of the Great War, and presents the plans of the various generals and the vissicitudes of the onset of war to maximize that effect. I also loved her book A Distant Mirror, a chilling compendium of the ills (literal and figurative) of 14th Century Europe.
15. Raymond Smullyan, Alice in Puzzle-Land: One of the many things I got from my mother was a love of logic puzzles, and Smullyan is the master of them. This book isn't just a collection of increasingly brain-bending puzzles, like his book The Lady or The Tiger?; it's also a clever and stylish takeoff on Lewis Carroll's bizarre cast of characters. The book is out of print and hard to find, but it remains a favorite.
14. J.K. Rowling, Harry Potter and the Prisoner of Azkaban: I was a bit of a latecomer to the Harry Potter books, having seen the first two movies with my wife (who'd read the books) before diving into this, the third installment (I've subsequently read the first two to my son); now I'm hooked. Having read all five, the third is the best, with a taut, fast-moving plot carrying lots twists (granted that a number of the surprises are telegraphed in advance). Perhaps as importantly, for the adult reader, Prisoner of Azkaban introduces the series' serious adult characters (i.e., characters who are more than just quirky authority figures).
13. The Opinions of Justice Antonin Scalia: The Caustic Conservative: Yes, I'm cheating here by citing a book that hasn't been released yet, based on its likely contents consisting of judicial opinions. I'll narrow it down here to its essence: the two opinions I particularly have in mind, and which have greatly influenced my thinking about American government and its principles, are his lone dissent in Morrison v. Olson (in which he argued that the independent counsel statute was unconstitutional, in terms that his nearly unanimous critics eventually had to concede a decade later), and Planned Parenthood v. Casey (his denunciation of the theoretical emptiness and illegitimacy of the Court's abortion jurisprudence). Taken together, the opinions set out a central theme of conservative thought about government: the need to draw governmental power only from sources whose legitimacy can be reaffirmed by keeping them accountable to the people.
12. Dr. Seuss, Horton Hears a Who: In enumerating favorite and influential books, too many people neglect the books they learned from first. But Dr. Seuss deserves a special place, and not only for charming this and many other hearers of his books to become readers of books in the first place. (I've also noted their usefulness in teaching children to read aloud). His longer books, with stories that have a moral to them, are masterpieces of precise and whimsical use of the English language, and in most cases manage to make their point without getting preachy, even on subjects (e.g., The Lorax and environmentalism) that are prone to heavy-handed one-sidedness. And they hold up so well that they are the rare children's book that an adult actually enjoys reading for its own sake.
My current favorite of these is I Had Trouble In Getting To Solla Sollew, which is a none-too-thinly-veiled slap at utopianism of all kinds. But the one that's endured the most in my consciousness since childhood is Horton Hears a Who, with a mantra that should be the creed of any pro-lifer: "A person's a person no matter how small." And its message of Horton's solitary courage when surrounded by neighbors who wish to define the Whos out of existence (one with undoubted Holocaust overtones) remains a powerful one for readers tall and small alike.
11. Baseball Prospectus 1999: I've arbitrarily picked the first of the BP books I bought. The Prospectus hasn't always been on the right side of the many arguments its staff has raised. Nor has it been as influential or groundbreaking, or nearly as entertaining, as Bill James' work; but the comparison is unfair. What matters is that they've consistently asked the important questions that were needed to move serious analysis of the game forward in the 1990s and beyond, and in so doing they've done a lot to drive the terms of debate ever since. I would never have understood baseball's post-1994 business environment and its ramifications without BP, and their work on projections, translations and pitcher workloads has often been groundbreaking. This is the first book I turn to every year to get a handle on the new season.
10. Tom Wolfe, Bonfire of the Vanities: Wolfe's novel about a Wall Street investment banker who becomes a cause celebre after hitting a young African-American teen with his car after taking a wrong turn in the Bronx just perfectly sums up all the ills of pre-Giuliani New York (only some of which have been fixed since then). The satirical bite of the book is only enhanced by Hollywood's ham-handed efforts to sanitize its portrait of New York's ethnic politics. My dad, who was on the NYPD until the late 80s, swears by the authenticity of many of the scenes in this classic.
9. Dave Barry's Only Travel Guide You'll Ever Need: If you've only read Dave Barry's columns and skipped his books, you've missed a lot. I had a tough choice between the Travel Guide and Barry's Short History of the United States, which is basically his annual year-end column writ large, but the Travel Guide packed in just an unbelievable number of laughs in a short space.
8. Lawrence Ritter, The Glory of Their Times: Simply the best oral history of baseball ever done, and the one all the others copied. Ritter got a number of ballplayers from the early 20th century to open up to him; all or nearly all of them are dead and gone now, but not their stories.
7. The Book of Job: As you can no doubt tell from the balance of content on this blog, I'm a Catholic who doesn't think about religion as often as I should. But the Bible undoubtedly informs my thinking in ways I can't even perceive, and when I have read Scripture, the book I've most enjoyed reading (from the Old Testament, ahem) is Job. Job deals with the toughest questions that face any believer in an omnipotent and benevolent God must grapple with -- why bad things happen to good people, where sin and suffering belong in the world -- and doesn't provide any easy answers.
6. Peter Gammons, Beyond the Sixth Game: The best assignment I ever had in school was when my sophomore English teacher, Mr. Donnelly, gave us a list of books to report on and one of them was this classic by Peter Gammons. Gammons is a lot of things to a lot of people, and these days he's best known for (1) having the game's most extensive network of sources, and (2) uncritically repeating everything those sources tell him (which is not unrelated to the maintenance of (1)). He is at times an open mind friendly to statistical analyses of the game, and at times gives a soapbox and his imprimatur to denunciations of statistical analyses of the game.
But first and foremost, Gammons is a guy who loves baseball, loves the Red Sox, and can really write. Beyond the Sixth Game is the tale of the Red Sox from 1976-1985, when Gammons was the Boston Globe's beat writer for the team, and it's a love letter to every fan whose heart was broken by those teams, and a cold-eyed analysis of how it happened (Gammons' thesis is that the ownership of the Sox failed to appreciate the new financial realities of the free agent era). His portraits of the players are detailed and affectionate (especially Carlton Fisk and Luis Tiant, two guys Gammons obviously really did think were very special people), and his narratives of the pivotal 1977 and 1978 seasons soar. No Red Sox fan - no baseball fan - should do without this book.
5. Peggy Noonan, What I Saw at the Revolution: Ask conservatives of my generation about Ronald Reagan or conservatism, and chances are pretty good that you will get a picture heavily influenced by one of his "wordsmiths," Peggy Noonan. The book is only secondarily a memoir, although it does capture (with Noonan's eye for sympathetic detail) numerous Washington figures of the 80s, as well as her previous boss, Dan Rather, of whom Noonan was very fond despite his politics. More importantly, it's a book about writing -- about a particular kind of writing (political speeches), how they get created, why they matter, and what's important in crafting them. It's also a tribute to a set of conservative ideals, and how they continued to inspire conservatives even when their practitioners didn't always live up to their promise.
4. The Orwell Reader: Yes, I'm cheating again by including an anthology. Another invaluable assignment -- the best thing I got out of college, academically -- was buying this book for Professor Green's British Empire class. I re-read it end to end again after September 11. Orwell hardly needs my introduction; his depictions of working-class life in the 1930s (coal miners, dish washers) are famously vivid, and his jeremiads against those who wouldn't stand up to fascism are the stuff of legend. My favorite essays are "Politics and the English Language" and "England Your England" (I reached for the latter in the opening of my September 11 column, as well as reaching for a scene from the Council of Elrond from the next selection) and I'm sure I'm not alone in those choices.
3. J.R.R. Tolkien, The Fellowship of the Ring: I had a tough choice here; The Hobbit was the first "grownup" book I ever read, back in the second grade, and it remains Tolkien's best-written book. But Fellowship of the Ring perfectly bridges the gap between the lighthearted adventure of The Hobbit and the epic sweep of Lord of the Rings, and launches the greatest fantasy epic of all time. The question: what will good men do in the face of unremitting evil? Tolkien's answer isn't always reassuring.
2. P.J. O'Rourke, Parliament of Whores: As far as I'm concerned, still the best book ever written about American government; O'Rourke brings his vicious humor to every branch and agency of the federal government he can locate. His chapter on farm policy is the best thing I've ever read on the subject, and his account of a Housing NOW! march is sidesplitting. Along the way he encounters everyone from Pat Moynihan to Mike Dukakis to Ken Starr. But the book does have just one terribly cringe-inducing line, in retrospect; in his look at American foreign policy in Pakistan and Afghanistan, O'Rourke states that
the main thing to be learned about foreign policy in this part of the world is that a wise foreign policy would be one that kept you out of here. There are some things you ignore at your peril, but you pay attention to Central Asia at the risk of your life.
Well, you knew that was coming; if I hadn't limited myself to one book per author, I'd have had a top 10 of Bill James books. As I've repeatedly noted, James has had a tremendous influence not only on my thinking about baseball but on my entire thinking process. I picked the first edition of the historical book because it is, on balance, the largest compilation of James' most pointed and entertaining writing and original thought, effortlessly spanning twelve decades of baseball history and bringing even the most distant past vibrantly to life. (I reviewed the new Historical Abstract here).
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BASEBALL: Jim Bouton's Ball Four; Ron Luciano's umpire books (noted above); Pete Palmer and John Thorn, The Hidden Game of Baseball; Keith Hernandez, If at First (a very post-Ball Four look at the 1985 Mets); Rob Neyer and Eddie Epstein, Baseball Dynasties (another one I'd have enjoyed more if I didn't know the subject so well already); Charles Alexander's biographies of Ty Cobb, John McGraw and Rogers Hornsby; Roger Kahn's The Boys of Summer (I really didn't enjoy the first part, about Kahn himself, but the sections on the players were fascinating, and it was particularly poignant in retrospect to read about Carl Furillo as a hardhat helping build the World Trade Center).
POLITICS: Jeffrey Birnbaum and Alan Murray, Showdown at Gucci Gulch; The Autobiography of Malcolm X; Alan Bloom, The Closing of the American Mind; Hannah Arendt, The Origins of Totalitarianism.
WAR/HISTORY: George Kennan's writings on the Soviet Union and on American foreign policy; David Pryce-Jones, Closed Circle: An Interpretation of the Arabs.
LAW/LEGAL FICTION: The works of John Grisham, notably his first few novels; Jonathan Harr, A Civil Action.
HUMOR: The collected books and cartoons of Gary Larson (The Far Side), Scott Adams (Dilbert), Charles Schulz (Peanuts), Charles Addams, Berke Breathed (Bloom County) and Bill Watterson (Calvin and Hobbes).
FICTION/LITERATURE: The collected works (nearly all of them) of Michael Crichton; Mark Twain, A Connecticut Yankee in King Arthur's Court.
SCI-FI/FANTASY: The works of Isaac Asimov (including many of his books in other areas, notably his mysteries). There's a number of others I've enjoyed, but not enough to note a mention here.
BASKETBALL: The Rick Barry basketball annuals; I haven't seen one in years, but they heavily influenced my thoughts on the game in the early 1990s. I'm still reading the Basketball Prospectus, and that could be on the list soon.
CHILDREN'S BOOKS: The works of Richard Scarry; the Curious George books.
UPDATE: The Mad Hibernian reminds me that Michael Shaara's The Killer Angels should have been on this list.
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Posted by Baseball Crank at 06:48 AM | Baseball 2004 | Law | Politics 2004 | Pop Culture | War 2004 | Comments (2) | TrackBack (0)
January 11, 2004
LAW: Wacky Warnings
A contest reveals the most unbelievable warnings that have been placed on products to protect against lawsuits by people with no brains and less common sense. The winners:
1. "[A] bottle of drain cleaner which says: 'If you do not understand, or cannot read, all directions, cautions and warnings, do not use this product.'"
(I know I found this through Pejman, but I couldn't trace back the link).
LAW: Take Back Massachusetts?
Harvard Law Professor Mary Ann Glendon, one of the few socially conservative members of the HLS faculty, argues that the Massachusetts Legislature could still work around the Goodridge decision on gay marriage by propounding legislative findings on the benefits of traditional marriage and the significance of the distinction between the two. (Link via Howard Bashman). Her reasoning: the Massachusetts Supreme Judicial Court didn't say that the distinction lacked a rational basis, just that the Legislature had failed to provide one. I'm not really convinced that this would work, since the SJC could and probably would then find any proferred distinctions to be irrational (courts are not known for being willing to cede to legislatures once they've stuck out their necks on an issue like this). But it's true that the SJC would probably feel compelled to at least address the findings.
POLITICS/LAW: From The Department of Not Moving On, Part III
Looks like the DC Circuit's trying to wrap up the last detritus of the Clinton years; we've got another opinion on attorney fees, this one denying Susan McDougal's application out of hand, noting that the statute on its face doesn't permit reimbursement of people who were actually indicted.
(Link via Howard Bashman).
January 08, 2004
POLITICS/LAW: From The Department of Not Moving On, Part II
Following after the decision to deny the Clintons' legal fees for the Whitewater investigation, the DC Circuit denies Monica Lewinsky's application for $1.1 million in legal fees from the Independent Counsel investigation; the court recites the relevant details of the scheme to give Lewinsky a job and her offer of financial inducements to Linda Tripp to have both of them give false testimony, among other things, and concludes that she (and Clinton) would have been the subject of an investigation even in the absence of the Independent Counsel statute. (Of course, coming from the court that appointed Ken Starr and referred this investigation to him, this isn't a surprising conclusion).
January 05, 2004
LAW: An Unexpected Hazard?
The subtitle of this BBC article says it all:
A chef who cut his finger is suing a hotel for £25,000 compensation by claiming no-one warned him about the danger posed by an avocado.
Um, isn't a professional chef supposed to be familiar with the properties of the avocado?
January 02, 2004
LAW/POLITICS: An Important Distinction
Liberal Oasis says that critics of the Bush Administration's handling of the Plame investigation should continue to be skeptical of new chief prosecutor Patrick Fitzgerald, despite his sterling reputation, because Ken Starr also once had a sterling reputation. (Link via Oliver Willis). Now, I generally think a lot of the criticisms of Starr were and are unfair, but before you compare Fitzgerald to Starr, you have to take account of one very critical distinction: Fitzgerald is a career prosecutor. Starr had never worked in a prosecutor's office; while he's a fine lawyer, his training was as an appellate advocate and an appellate judge, not a prosecutor. And many of Starr's missteps can be traced to the fact that he had no training or background as a prosecutor (as well as no training or background in news management, at which his adversaries were experts).
LAW: Scalia, Misunderstood
I meant to get to this one when it ran in November -- this column by liberal legal commentator Michael Dorf criticizes Justice Scalia for writing "what he regards as parade-of-horribles dissents that risk becoming self-fulfilling prophecies." Dorf observes:
Why does Justice Scalia repeatedly characterize decisions from which he dissents in ways that will likely give ammunition to those with whom he disagrees, enabling them to extend what he regards as improper precedents even further?
Dorf concludes that the "problem" is that Scalia so fundamentally differs in his outlook from his colleagues as to regard their decisions "as not merely different from his own, but as fundamentally illegitimate." (Emphasis in original).
That's one way to put it, although I doubt that Scalia really believes that the cases are always that cut-and-dried. But I think that, at bottom, Dorf just doesn't understand Scalia's concept of the role of a judge, which is not "tactical" in any sense, but rather that a judge should be trying to derive the right answer to a question -- and should, when he sees his colleagues get it wrong, criticize them in the strongest terms. Admittedly, no judge - even Scalia - can avoid having his or her reasoning in reaching such decisions colored by policy preferences, but the point is that Scalia simply doesn't look at it as his job to do anything but give the answer to the question posed. And if that's impolitic or un-tactical, so be it; tactics and politesse are the job of legislators and litigants.
December 31, 2003
LAW: Recruiting for Wall Street Lawyers
Via Ernie the Attorney, for all my colleagues who are at the office today as I wind down my much-needed vacation: let's just say that recruiting for Wall Street lawyers has changed a lot between this letter (opens as a PDF file) and today.
December 30, 2003
POLITICS/LAW: From The Department of Not Moving On
Another one you might have missed, that I noticed I never got around to blogging: in August, the D.C. Circuit rejected most of Bill and Hillary Clinton's request for reimbursement for their attorneys' fees incurred in the course of the Whitewater and related investigations (although President Clinton did not seek reimbursement for the Lewinsky investigation, as per his agreement with Robert Ray resolving the charges arising from that case). The Clintons argued that they were statutorily entitled to reimbursement on the theory that the fees "would not have been incurred but for the requirements of" the Independent Counsel statute (the Ethics in Goverment Act) -- i.e., that "1) if not for the Act, the case could have been disposed of at an early stage of the investigation; and 2) they were investigated under the Act where private citizens would not have been investigated."
Two years before the appointment of Independent Counsel Starr, a criminal referral was submitted by the Resolution Trust Corporation to the U.S. Attorney for the Eastern District of Arkansas alleging illegal activities involving Madison Guaranty Savings and Loan Association, and naming the McDougals as suspects and the Clintons as witnesses. When in early 1994 the Attorney General appointed Robert Fiske as regulatory independent counsel, she gave him broad authority to investigate the Clintons' relationship with, inter alia, Madison Guaranty and the Whitewater Development Corporation. And when we appointed Kenneth Starr as statutory independent counsel in the summer of 1994, at the request of the Attorney General we granted him investigatory authority almost identical to Fiske's. The IC's final report on the Whitewater matter states that "[t]he breadth of the criminality already uncovered by the Fiske investigation in part contributed to the length of time necessary for the statutory Independent Counsel to complete his work." See Robert W. Ray, Final Report of the Independent Counsel, In Re: Madison Guaranty Savings & Loan Association, Vol. I, 21 (2001). Taking all of the above into consideration, we harbor no doubt that in the absence of the independent counsel statute the allegations surrounding the Clintons, Madison Guaranty, and Whitewater would have been similarly investigated and prosecuted by the Department of Justice.
December 19, 2003
LAW: Quiet Company
Stuart Buck links to an interview with leading Supreme Court advocate Carter Phillips, who observes that Clarence Thomas is hardly unusual, even by the standards of recent history, in rarely asking questions at oral argument:
When I argued in 1981, you could pretty much bet you weren't going to get any questions from Justice [William] Brennan [Jr.], and you might get one question from Justice [Thurgood] Marshall. Justice Blackmun would ask a question that you weren't always sure you were quite ready for because you could never quite understand necessarily what the purpose of the question was, although I think he usually had one. And my old boss, Chief Justice Burger, very rarely asked one. I don't think he ever asked me a question at all in the years that I argued there.
Of course, Thomas' detractors, who use his silences to paint him as a stupid man, are generally huge fans of people like Brennan and Marshall.
December 02, 2003
LAW: Gunning For Interstate Commerce
As I noted two weeks ago, the United States Court of Appeals for the Ninth Circuit ruled in Ileto v. Glock, Inc., No. 01-09762 (9th Cir. Nov. 20, 2003), an opinion written by Judge Richard Paez with a dissent from Judge Cynthia Holcomb Hall, that the alleged "oversupply" of guns by Glock and other gun makers -- including legal sales of guns in states with lax gun laws, allegedly with the knowledge that they would make their way to states with more restrictive gun laws, such as California -- could subject the gun manufacturers and distributors to liability under the common law of negligence and public nuisance in California. Now, I'm not a huge gun-rights guy, but this decision strikes me as an obvious affront to the limits of state power laid down by the Commerce Clause.
The case arises from the notorious shootings of several children and the murder of a postal worker in California as part of a shooting rampage by neo-Nazi Buford Furrow; the plaintiffs are the shooting victims and the mother of the postal worker. The plaintiffs allege, among other things, that by selling "more firearms than the legitimate market demands," the gun companies facilitate the creation of a secondary market in guns that enables purchases by people like Furrow, who should not have been able to buy guns due to a pending felony indictment and a prior commitment to a mental hospital. The Ninth Circuit stated that the complaint alleges that
Glock knows that by over-saturating the market with guns, the guns will go to the secondary markets that serve illegal gun purchasers.
(Slip opinion at 16444). Note that it is not alleged that any of Glock's sales are themselves illegal (as Eugene Volokh notes, the ATF "warnings" cited in the opinion refer to gun dealers whose licenses ATF had made no moves to revoke), nor that the secondary markets are illegal (see footnote 9 of the decision, at page 16449); only that the secondary market for guns has fewer safeguards, and that in the absence of those safeguards, sellers in the secondary markets have been known to sell guns to people like Furrow.
Significantly, the guns sold to Furrow had been sold by Glock and the other defendants in Washington state, leading to the most problematic part of the plaintiffs' theory:
Glock allegedly targets states like Washington, where the gun laws are less strict than in California, in order to increase sales to all buyers, including illegal purchasers, who will take their guns into neighboring California.
(Slip opinion, at 16458).
Under these circumstances -- sales of a non-defective product, legal where made, with at least an element of liability premised upon the tendency of the sales to lead to resales in a legal secondary market -- extending state common law liability to Glock's sales made outside California seems to me to transgress as many as three distinct constitutional limitations on state power:
1. The prohibition, arising principally from the Commerce Clause, on states enacting extraterritorial legislation that exports their own domestic public policy to legal commercial activities in other states;
2. The prohibition, also arising under the Commerce Clause, on state regulation on the means and instrumentalities of interstate commerce itself; and, possibly,
3. Washington State's right, under the Second Amendment, to regulate the rights of its citizens to bear arms so as to constitute a well-regulated militia.
Let's examine each of these in a bit of detail:
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The Commerce Clause grants Congress the power "to regulate Commerce with foreign Nations, and among the several states, and with the Indian Tribes." Since Chief Justice John Marshall's 1824 opinion in Gibbons v. Ogden, 9 Wheat 1 (1824), the Supreme Court has generally recognized that the regulatory power granted to Congress carries with it implicit restrictions on the power of the states to enact regulations (including, as recognized in subsequent cases, common law causes of action that impose civil liability under state law) that would interfere with Congress' authority to regulate commerce on a uniform basis nationwide. In fact, as Justice Johnson noted in his concurring opinion in that case, the need to federalize regulation of interstate commerce was the immediate cause for the calling of the constitutional convention in 1787. While the idea of a "negative" or "dormant" Commerce Clause limitation on state power is controversial in some quarters -- Justice Thomas, in particular, has generally refused to recognize it, and other Justices have expressed misgivings about its application -- it remains well-settled constitutional law backed by centuries of precedent.
The extraterritoriality principle is one of the necessary corollaries of federalism, and applies specifically to interstate commerce: the Commerce Clause precludes a state from enacting legislation that has the practical effect of exporting that state's domestic policies by enacting legislation that compels companies doing interstate business to comply with a single state's law in all jurisdictions (although there is a generally recognized exception for corporation law that governs the internal governance of a corporation). As the Court held in last term's decision in State Farm Mut. Auto. Ins. Co. v. Campbell, "A State cannot punish a defendant for conduct that may have been lawful where it occurred." (I discuss this aspect of the State Farm decision at much greater length in my post on the opinion and its relationship to the broader theory of Federalism's Edge).
The history of the extraterritoriality principle in action can be traced back at least to Justice Cardozo's opinion in Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511 (1935), striking down a New York statute that barred sales in New York of milk purchased from producers in Vermont at prices below those required to be paid to milk producers in New York; Justice Cardozo observed that, as a basic proposition, "New York has no power to project its legislation into Vermont by regulating the price to be paid in that state for milk acquired there." Id. at 521.
The principle was expressly adopted in a series of cases in the 1980s, starting with the plurality in Edgar v. MITE Corp., 457 U.S. 624 (1982), dealing with the application of state anti-takeover statutes to corporations incorporated in other states, and culminating with Healy v. The Beer Institute, 491 U.S. 324 (1989), dealing with a Connecticut statute -- echoing the milk price support statute in Baldwin -- requiring that prices charged for beer in Connecticut be no higher than the prices charged by the same beer shippers in certain neighborning states. (The best description of the various theories of the dormant Commerce Clause cases on this and other points can actually be found in a district court opinion by Judge Loretta Preska, American Libraries Ass'n v. Pataki, 969 F. Supp. 160 (SDNY 1997)).
In recent years, the extraterritoriality principle has been applied to punitive damages as well, in BMW, Inc. v. Gore, 517 U.S. 559 (1996), and in State Farm. As the Court held in BMW, regarding an Alabama common law claim for fraud based on nondisclosure that BMW was selling cars that had been repainted:
[W]hile we do not doubt that Congress has ample authority to enact such a policy for the entire Nation, it is clear that no single State could do so, or even impose its own policy choice on neighboring States. . . . one State's power to impose burdens on the interstate market for automobiles is not only subordinate to the federal power over interstate commerce, . . .but is also constrained by the need to respect the interests of other States. . . . We think it follows from these principles of state sovereignty and comity that a State may not impose economic sanctions on violators of its laws with the intent of changing the tortfeasors' lawful conduct in other States. . . by attempting to alter BMW's nationwide policy, Alabama would be infringing on the policy choices of other States. . . . Alabama does not have the power . . . to punish BMW for conduct that was lawful where it occurred and that had no impact on Alabama or its residents.
The Court in State Farm added,
A basic principle of federalism is that each State may make its own reasoned judgment about what conduct is permitted or proscribed within its borders, and each State alone can determine what measure of punishment, if any, to impose on a defendant who acts within its jurisdiction.
(emphasis added). In Ileto, the violation of the extraterritoriality principle is fairly straightforward; California seeks to impose civil liability on companies that make lawful sales of non-defective guns in Washington State, simply because those sales conflict with the public policy of California (as announced by two federal judges). It is apparent that this "oversupply" theory -- in which the effect on the Washington market is not incidental but is the entire point of the suit -- is intended to have, and will have, the effect of exporting California law to govern sales in other states. The Commerce Clause does not permit this.
Unfortunately, the Ileto court gave short shrift to this argument. First, the court disregarded BMW by noting that the plaintiffs in Ileto were not seeking punitive damages. Then, effectively ignoring the entire thrust of the claim, the majority asserted that
[T]he economic "regulation" that defendants allege is most accurately construed as a form of regulation that has only indirect effects on interstate commerce and regulates evenhandedly . . . [Accordingly,] we must examine whether the State's interest is legitimate and whether the burden on interstate commerce clearly exceeds the local benefits.
(Slip op. at 16481) (quotation omitted). This statement of the law is plainly incomplete; it is true that the Commerce Clause cases have often spoken of undue burdens, but Ileto seeks to read out of the cases the prohibition on extraterritorial legislation, which is often treated as a separate, per se violation of the Commerce Clause. Having stacked the deck, the majority then dismisses out of hand the idea that Washington could have any interests worthy of being offset against California's interest in projecting its own policies beyond its borders:
Here, the state's interest in protecting the health and safety of its residents is clearly legitimate, and whatever indirect burden an award of damages might have on defendants, it does not approximate the public's interest in protecting the health and safety of California's citizens.
(Id. at 16482)(emphasis added).
2. Direct Regulation of Interstate Commerce
A second strain of jurisdprudence under the Commerce Clause -- also entirely ignored by the majority in Ileto -- is the longstanding ban on state regulation of the instrumentalities of interstate commerce themselves. This rule has generally been applied to state regulation of such things as railroads, truck lengths, and the Internet. Here, what we have is regulation of an interstate secondary market for guns -- but more than that, because what California seeks to regulate is not simply sales within an interstate market but the interstate movement of firearms itself. Moreover, gun manufacturers would be subject to inconsistent regulation -- the sales at issue occur outside of California, and thus would be subject to the law of the state where the sale is plus the law of any state adopting a theory such as the one adopted. This places companies operating in multiple jurisdictions in the impossible position of having to ascertain their compliance with California law no matter where they be, and possibly with numerous different or conflicting laws regardless of what state they do business in. This is, again, precisely the type of crazy quilt of battling state rules that the Commerce Clause was designed to avoid by placing the authority for national legislation with Congress.
3. The Second Amendment
My third objection to the Ileto decision is somewhat more novel, and as I will freely admit to not being an expert on the Second Amendment or schooled in the caselaw and history of that amendment, I invite comments. But here it goes:
The Second Amendment provides:
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
The term "Militia," in turn, has a fixed historical meaning, and one that resonates today in an era when the greatest military threats come not from armies but from terrorists against whom the only line of defense may be ordinary citizens:
[T]he Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, . . . ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.
United States v. Miller, 307 U.S. 174, 179 (1939). Now, there remains intense controversy over whether the Second Amendment protects an individual's right to bear arms, or only a collective right of the individual States to have a well-regulated militia. That debate is mostly irrelevant here (although I will leave aside the question of whether a gun manufacturer would have standing to challenge the Ileto decision on the Second Amendment grounds I propose), because it would seem obvious that, at a minimum, the Second Amendment protects the rights of individual states to ensure that their citizens can bear arms. In other words, if Washington has gun laws that permit legal gun purchases in certain circumstances, that permission isn't just an ordinary part of the state's economic regulations; it's a decision that at least implicitly (and in some states, I am sure, explicitly) touches on the state's policy regarding the role of individual citizens in the common defense. As such, the decision of a California court to render legal sales in Washington unlawful under California law is an infringement on Washington's ability to set its own policy with regard to its own citizens' right to bear arms.
While I'm not aware of any cases that deal with this question, the Supreme Court has recognized a similar argument in reconciling the dormant Commerce Clause with the Twenty-First Amendment, which repealed Prohibition but left intact the authority of states to regulate the sale of alcohol within their borders. In Brown-Forman Distillers v. N. Y. Liquor Authority, 476 U.S. 573 (1986), the Court struck down a New York statute that effectively provided that companies selling liquor in New York could not charge higher prices than they charges for the same beverages in other states. The Court first found that this regulation violated the Commerce Clause by violating its extraterritoriality principle (by its effect on prices in other states) as well as by preferring New York consumers over consumers in other states. The Court also rejected the argument that New York's conduct was immunized from Commerce Clause scrutiny by the unique state role in regulating alcohol under the Twenty-First Amendment, but it then went further to find additional support in that Amendment for limits on New York's regulatory power in the area of booze:
New York's affirmation law may interfere with the ability of other States to exercise their own authority under the Twenty-first Amendment. Once a distiller has posted prices in New York, it is not free to lower them in another State, even in response to a regulatory directive by that State, without risking forfeiture of its license in New York. New York law, therefore, may force other States either to abandon regulatory goals or to deprive their citizens of the opportunity to purchase brands of liquor that are sold in New York.
Here, similarly, the Ileto panel majority's rule interferes with other states' ability to exercise their own authority over sales of firearms within their borders, even to their own citizens. That provides additional support for finding the decision to violate the federal Constitution.
Finally, a jurisdictional oddity in the Ileto decision. As any lawyer knows, federal courts have, in general, only two sources of jurisdiction: jurisdiction over cases that arise under federal law (such as claims brought under a federal statute), and jurisdiction premised on the citizenship of the parties (generally between citizens of one state and citizens of other states). Ileto doesn't seem to fit either one: the claims were brought under state law, and several plaintiffs and at least one corporate defendant are citizens of California. So why is this case in federal court? Well, according to the opinion, one of the defendants, China North Industries Group (Norinco), is a state-owned enterprise of the Chinese government, and as such is entitled to have all claims against it (or all claims against anyone else in the same lawsuit) heard in federal court under the Foreign Sovereign Immunities Act. Thus, the irony: a radical departure in state law is issued by two federal judges who have the case solely due to a statute designed to protect the interests of America's relations with foreign countries. (Whether Norinco is now expected to comply with California law in all its worldwide operations was left unanswered).
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November 20, 2003
LAW: Oversupply of Guns - Or Tort Law?
Eugene Volokh has multiple posts tearing into the Ninth Circuit's decision today in Ileto v. Glock, Inc., No. 01-09762 (9th Cir. Nov. 20, 2003), authored by controversial liberal Clinton appointee Richard Paez. Apparently, the decision holds that the "negligent oversupply" of guns by Glock -- including legal sales of guns in states with lax gun laws, allegedly with the knowledge that they would make their way to states with more restrictive gun laws, such as California -- could subject Glock to liability under the common law of negligence in California. Volokh argues, among other things, that the decision severely oversteps the boundaries of state negligence law by imposing restrictive California laws to the legal sales of guns in other states.
I'll have to read the 61-page opinion soon (it's on the list along with the gay marriage decision in Massachusetts, which may similarly threaten to export a single state's judge-made law to the whole nation), and I'll have more to say then. (Unlike Prof. Volokh, I feel pretty confident that I know the dormant Commerce Clause cases in this area quite well, having briefed similar issues fairly exhaustively a few years back and continued to follow developments in the area.). For now, you can read my take here and here on why I think the 'oversupply' theory violates the dormant Commerce Clause; a sample:
The problem with this theory is twofold. First, this directly imposes liability on the very act of interstate commerce - a serious problem under existing Commerce Clause cases. Second, by making legal sales in State A illegal under State B's law because of their impact on State B, State B has effectively overstepped the very boundaries that the Supreme Court's State Farm v. Campbell decision purports to police.
For more on the theory of Federalism's Edge that unites the gun issue, the gay marriage issue and a host of other hot-button issues, see my lengthier essay here.
November 05, 2003
LAW: Cop Killing
October 31, 2003
POLITICS/LAW: Levin Family Values
Turns out that one prominent filibusterer of Bush-appointed judges may be willing to make a deal to get a judgeship for his cousin's wife.
October 29, 2003
LAW: Luskin In His Heart
Instaman notes that Donald Luskin is threatening to sue Atrios over calling him a stalker, which was Paul Krugman's charge. Luskin does some valuable work dismantling Krugman's unhinged and fact-challenged rants, but he often gets himself too worked up, and this is just way over the line for a fairly simple internet spat. Den Beste has some thoughts on what real libel is here (and on why these are tough claims to win here), and I'll say that for a non-lawyer he's got a pretty good handle on the basics.
LAW: Fat of the Land
Speaking of lawsuit mania, McDonald's has settled a suit brought by a 420-pound man who claimed disability discrimination (oh, the irony) based on his weight. The amount of the settlement was undisclosed and may well have been just for nuisance value, but what caught my eye was the claimed damages of $300,000 for loss of a $6.75/hour job. I ran the numbers, and this comes to 44,444.44 hours of work. Assuming that the hourly wage has a constant present value of $6.75, working 40 hours a week, that comes out to 1,111.11 weeks of work, which assuming 2 weeks off a year (for the sake of argument) would mean holding the job for 22 years.
Leaving aside the question of how many people actually work at McDonald's for 22 years, isn't it wonderful that people think our legal system can be used to get paid for 22 years of dreary, unfulfilling work -- without having to do the work itself?
(Yes, I know the article says he also wanted an order to give him the job, but if the damages aren't supposed to be a substitute for salary, then they are really just pure fluff pulled from the air).
LAW: 17200 or Bust
Law.com reports that a ballot initiative is underway to repeal those portions of California Business & Professions Code 17200 that permit the filing of mass actions challenging "unfair" or "unlawful" business practices without proof that the plaintiff was injured or even ever did business with the defendant and without meeting the standards for class actions. I've previously commented here on this liability monstrosity, which to me at least is the single most business-unfriendly aspect of California's uniquely business-unfriendly legal environment.
While I think it would be a wonderful thing to return to the core principle of law that only one who has been harmed can sue, I'm not so sure the initiative process is the best way to do this. First, the plaintiffs' bar will be very well-funded and is likely to distort the issue; they're already framing this as a question of "the ability of private attorneys to prevent impending harm to the public by filing suit," which is ridiculous. The statute, as currently used by the plaintiffs' bar, doesn't aim at preventing businesses from commencing conduct that will cause grave harm; rather, it is more commonly employed to tie down companies over existing business practices that can't be found to have caused actionable harm under traditional legal principles. Second, the new Governor has promised to make 17200 reform a key part of his revival of the business environment; while Schwarzenegger may well fail in getting legislative action on this (the plaintiffs' bar has such a tight grip on the legislature that before the recall the legislature was pressing to expand 17200), he should be given a chance to prove that it can be done through normal channels; the initative process should, at most, be a last resort for the Governor to go over the heads of the legislature if they obstruct any changes.
October 08, 2003
LAW: The Wisdom of Solomon
In the news down here in Washington, students at Georgetown University’s Law Center protested the school’s decision to allow the military to recruit on campus, since the “Don’t Ask, Don’t Tell” policy allegedly conflicts with school policies mandating “anti-discrimination” compliance by employers. Similar grumbling recently took place at my former law school and, I suspect, goes on at virtually every such institution.
These protests, however, highlight the wisdom of the Solomon Amendment, which threatens revocation of all federal funding from a school if it refuses to allow the military to recruit on campus. Since the Vietnam War, liberal academic institutions, while proudly welcoming the most outrageous of advocacy groups, always find some reason to oppose allowing military or national security-related institutions to recruit or organize on their campuses. The “Don’t Ask, Don’t Tell” policy, an imperfect product of political meddling by the Clinton Administration, is their most recent target and, indeed, the merits of that policy are quite debatable.
Yet, in a post-9/11 world, one would think that schools would show a little more gratitude to the military, perhaps the most highly respected profession in modern America, and would somehow find a way to hold their noses and their tongues while the services come to speak to a new generation of willing individuals, prepared to serve their country and to defend the lives and rights of ungrateful idiots who dwell in ivory towers.
Mark Kleiman charges the White House with "an unspeakably sleazy trick that makes sense only as part of a cover-up" in the fact that documents that have been requested from White House employees by the Justice Department will be reviewed by the White House Counsel's office first and will be turned over to DOJ in two weeks. (Link via Calpundit; the same post is now up at Kleiman's new Movable Type blog).
My reaction: Kleiman and others complaining about the "two weeks" really have no clue about the work of laywers. For the White House Counsel's office to just turn over the file without reviewing everything would be irresponsible and tantamount to legal malpractice. I know we'd all love to see total, non-adversarial cooperation, but once you turn over the whole file to the Justice Department, you've got a heck of a time then arguing that the stuff is privileged when Larry Klayman and his ilk come knocking with FOIA requests (he could argue that you've waived any privileges by handing things over, and he'd have some legal support for that position). Two weeks to do a document production of this nature is not even close to a foot-dragging time frame.
I'm not suggesting the White House should take an aggressive position on privileges (or start inventing new ones, a la Bill Clinton). But any time you pull a big file of stuff, there may be things you shouldn't produce - attorney-client privileged communications, embarrassing and irrelevant personal stuff, and in this context, classified national security information that doesn't need to be spread around anymore than necessary. You do have to be careful if you don't want this one leak to open the door to more sensitive disclosures. Ask any lawyer who's represented a government agency, corporation, church, or other organizational client whether they would turn all this stuff over without anyone reviewing it.
Kleiman further claims that
This would be completely routine in a civil case. . . But in a criminal case it's unheard-of: investigators don't usually let the lawyer for one of the defendants take a look at all the documents submitted by the other potential defendants and key witnesses, even if that defendant happens to be the boss of all the others.
This is just not true, and Kleiman, a non-lawyer academic, obviously doesn't know what he's talking about. If a corporation gets a grand jury subpoena, and the company orders its employees to gather evidence, even if the investigation focuses on individuals rather than the company, you bet the company's lawyer will look at the documents. They are, after all, the company's own records. As Kleiman conveniently forgets -- and as Bill Clinton was wont to forget -- the White House counsel represents the institution of the presidency, not the president personally, and the people at issue here are employed by the executive branch. (I assume that the evidence being gathered here is people's work-related records, pursuant to requests made to the White House).
I haven't really gone into the whole Plame thing very far yet, in part because of the baseball playoffs and in part because there's only so much new I would have to add. But this particular gripe is just way overblown and a sign that guys like Kleiman are losing their grip on reality.
ANOTHER UPDATE: Conrad from The Gweilo Diaries agrees with me. And Kleiman backtracks and tries to pretend that he didn't call this . . . well, "an unspeakably sleazy trick that makes sense only as part of a cover-up."
October 02, 2003
LAW: In Chaos There Is Opportunity
September 26, 2003
LAW/WAR: Silverstein Loses
The Second Circuit today affirmed summary judgment against Larry Silverstein and his related real estate companies, holding that the September 11 attacks on One and Two World Trade Center were a single "occurrence" rather than two "occurrences" within the meaning of the insurance policies on the World Trade Center, and thus that Silverstein is entitled to $3.5 billion rather than $7 billion in insurance proceeds. I mostly just skimmed the 62-page opinion (link opens in PDF form), which appears to be rather dusty reading relating to the negotiation of the various insurance policies; probably the most interesting part looks to be the court's decision that the Port Authority is a citizen of both New York and New Jersey for purposes of federal diversity-of-citizenship jurisdiction.
Of course, if I'd just won a case saving my client $3.5 billion, I'd find that pretty interesting. Congratulations to the 47 lawyers listed as appearing on the appellees' various briefs, including my Constitutional Law professor, Charles Fried, and my college classmate and fellow Harvard Law grad John C. Demers.
September 04, 2003
LAW: More Estrada
August 29, 2003
LAW: Bigger Than I Thought
Looks like that order I noted Monday night in the John Hinckley case was bigger news than I suspected: Hinckley is trying to get released, at least partially, and until the order unsealing the files, even Ronald Reagan's family didn't know about this. A hearing will be held on Tuesday to determine the status of his request.
August 27, 2003
You often hear debates about frivolous or abusive litigation that stay on the level of abstraction or generality, or focus on outrageous verdicts where the plaintiff was the one who did something horrible or complained about something trivial. But an aspect that gets missed is how many truly meritless cases get filed, and how many of those are enabled, aided and abetted along by vague theories of law, liberal pleading and discovery rules, and (in various types of tort cases) hard to disprove allegations of psychological harm or emotional trauma. The collective cost of this stuff, to the economy and the judicial system, is tremendous.
August 25, 2003
LAW: Hinkley Pinkley
The United States District Court for the District of Columbia has ordered that the sealed record of recent proceedings in the ongoing matter of United States v. John Warnock Hinkley jr. be unsealed, with one exception. Wonder if there's anything interesting there; probably not, since it's pretty recent stuff.
LAW: Fat's Not Enough
Canadian immigration authorities rejected a Venezuelan woman's claim for asylum under Canada's "Gender-Related Persecution guidelines": she claimed she'd be persecuted in Venezuela because she was overweight. The story suggests that this was a classic example of a bogus claim by someone who had no other leg to stand on:
Ian Clague, the adjudicator, had doubts about her claim, including questions on just how overweight the woman actually is.
"At the hearing, the claimant did not appear to fit the dictionary definition of obese. According to her personal information form, she had gained weight since she had been in Canada. No evidence was presented as to what her weight actually was, if she was medically overweight, or how her weight compared to others, male or female, in Venezuela," says the decision summary.
Mr. Clague also questioned how damaging being overweight is to life in Venezuela. "She graduated from university.
August 11, 2003
LAW: Client Service
Got this one from a colleague: the Arkansas Supreme Court ruled that a contingent fee lawyer was not entitled to a percentage of a settlement, but only to payment for services actually rendered, where the client fired him after he who neglected the case and then responded to the client's complaints about delays in the case with "I don't have a speedometer up my ass."
August 10, 2003
LAW: Ladies' Night
Ah, the long arm of the law: did you know that bars in California can get sued for having "Ladies Night"?
August 08, 2003
LAW: Originalism Sin?
Law Professor Jeff Cooper (link via Howard Bashman) criticizes Justice Scalia's theory of originalism on the basis that it's too much work: because serious historical research into the original meaning of a particular provision is expensive for litigants, nearly impossible for trial and appellate judges, and often unreliable when done by Supreme Court Justices and their clerks, the argument goes, originalism simply doesn't work even if it's attractive in theory.
LAW: Now That's Foreign!
[T]he Supreme Court today voted 6-3 to jettison the Constitution in favor of Sharia law, effective immediately.
"Once we decided that foreign attitudes towards the law were more important than the framers' intent, the decision was a natural," said Justice David Souter. "Islam is the fastest growing religion on the planet, so it was obvious which law system was the most popular, and thus the most correct."
Dissenting from the decision were Justices Scalia and Thomas, who were last seen drinking bourbon straight from the bottle in a local watering hole before it was shut down by the newly organized American Religious Authority. Justice Bader Ginsburg also dissented from the decision, saying "This isn't what I meant at....." before she was dragged from the building, beaten, forced into a burkha and imprisoned for general immorality, standing in judgement over men, and being a Jew.
* * *
Former Justice O'Connor, who arrived before the vote clad in a burkha, has since resigned from the Court and directed all questions regarding her vote to her husband, which is only natural and proper.
August 07, 2003
LAW: Foreign Law
Eugene Volokh had some useful thoughts on the issue noted by The Mad Hibernian below: the use of foreign precedents in American courts. I agree with Volokh that there's nothing wrong in theory with using foreign precedents from similar cases as persuasive authority regarding genuinely unsettled questions, the way the courts of one state will do with decisions from another state. The key issues, though, are whether the cases are similar and whether the issues are truly unique:
1. European opinions (let's not pretend that "international" law means anything but Europe) may be persuasive in construing similar constitutional or statutory provisions, moreso if they are rendered by courts with a similar common law tradition such as Britain. They are not, however, persuasive merely because they reach a particular result. Thus, for example, decisions about the death penalty would not be persuasive if rendered by a jurisdiction whose governing rule is something distinct from "cruel and unusual punishment," and decisions about homosexuality (the latest hot button discussed in many of these debates) would not be persuasive if rendered by a jurisdiction whose governing rule is something distinct from "equal protection of the law."
2. Likewise, European decisions should have no weight in cases, such as Lawrence v. Texas or Atkins v. Virginia, where there is already binding precedent from our own Supreme Court. This is the real objection of conservatives: not to considering European cases as persuasive of the meaning of unsettled interpretive questions, but to the use of European opinion to declare our own precedents to be "out of step with world opinion" or some such nonsense.
Democracy, civil liberties, the rule of law and separation of powers have been out of step with European opinion for most of our history. The Justices would do well to remember that.
August 05, 2003
LAW: The Dog That Didn't Bark
Harvey Fierstein, writing in last Thursday's NY Times about his view that too many young gay men are too cavalier -- or worse -- about HIV, argues that "Many of our young men see infection as a right of passage, an inevitable coming of age."
Um, shouldn't that be a "rite of passage"?
The article, by the way, reminded me of something interesting. Maybe I missed something, but in all the hoopla over the Supreme Court's determination in Lawrence v. Texas that there was no legitimate state interest in banning homosexual sodomy while not banning heterosexual sodomy, I didn't see anybody -- parties or commentators -- argue that homosexual sodomy is uniquely likely to spread disease. Certainly, such an argument would not be entirely implausible, given the history of the AIDS virus and the fact (correct me if I'm wrong about this, but I'm sure I've read this somewhere) that anal sex in particular is conducive to passing germs from one bloodstream to the next, as well as the fact that the Court in the past has accepted restrictions on liberty (such as mandatory vaccinations) in the name of medical science.
The absence of this argument is interesting on a couple of levels. First, I suspect that the proponents of the law either wanted to test the assertion that morality alone is a valid basis for law or felt that Justices Kennedy and O'Connor would be more receptive to that argument. Second, it now seems that people may feel that a "medical" argument connected to AIDS is actually more offensive or stigmatizing than a moral one, and thus may have felt it improper to make the argument. Third, times have changed since 1986 and Bowers v. Hardwick; while the opinion says nothing on the subject, the AIDS epidemic was certainly on many minds on the time; today, not a peep was heard about it in all the commentary. And fourth, perhaps the "medicalization of morality" -- so prevalent today in debates over smoking or even guns -- has its limits.
July 29, 2003
POLITICS/LAW: Racial Privacy
Via The Corner, conservative opponents of Ward Connerly's Racial Privacy Initiative raise an issue that I aired as early as last September: that, if passed, it would hobble efforts to expose racial preference programs that produce the kind of massive disparities (with preferred groups having many, many times better chances of admission) that were on display in the Michigan cases. Also, Kevin Drum has news that the initiative might get pushed up to this November to be on the ballot with the recall election.
Politically, I suspect that this will greatly hurt the chances of a Republican succeeding Gray Davis, by bringing out larger African-American turnout (Mickey Kaus also thinks those voters will help Davis, but I'm not so sure). But there's also a flip side: by taking Connerly's initiative off the March ballot, you (a) improve its chances of passing (March will be Democratic presidential primary time) but possibly (b) depress turnout for the presidential primary (I'm not sure how that cuts, but fewer African-American and Latino voters is probably good news for Howard Dean, whose supporters are decidedly upscale and white).
July 27, 2003
LAW: Anyone Can Sue
The Wall Street Journal carries an alarming op-ed by Walter Olson of Overlawyered.com (it actually ran in the print edition on Tuesday) on moves to further expand California Business & Professions Code section 17200, which permits anyone (whether or not they have been injured, suffered any damages, or even been a customer of the business) to sue a business for any "unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising." As I've noted before, Justices Breyer and O'Connor recently questioned this statute's constitutionality, at least when applied to lawsuits challenging businesses that seek to defend their reputations in public controversies:
Read More »
I doubt that this particular instance of regulation (through use of private attorneys general) can survive heightened scrutiny, for there is no reasonable “fit” between the burden it imposes upon speech and the important governmental “interest served,” . . . . Rather, the burden imposed is disproportionate.
I do not deny that California’s system of false advertising regulation–including its provision for private causes of action–furthers legitimate, traditional, and important public objectives. It helps to maintain an honest commercial marketplace. It thereby helps that marketplace better allocate private goods and services. It also helps citizens form “intelligent opinions as to how [the marketplace] ought to be regulated or altered.”
But a private “false advertising” action brought on behalf of the State, by one who has suffered no injury, threatens to impose a serious burden upon speech–at least if extended to encompass the type of speech at issue under the standards of liability that California law provides, see Cal. Bus. & Prof. Code Ann. §§17200, 17500 (West 1997) (establishing regimes of strict liability, as well as liability for negligence); Cortez v. Purolator Air Filtration Products Co., 23 Cal. 4th 163, 181, 999 P.2d 706, 717 (2000) (stating that California’s unfair competition law imposes strict liability). The delegation of state authority to private individuals authorizes a purely ideological plaintiff, convinced that his opponent is not telling the truth, to bring into the courtroom the kind of political battle better waged in other forums. Where that political battle is hard fought, such plaintiffs potentially constitute a large and hostile crowd freely able to bring prosecutions designed to vindicate their beliefs, and to do so unencumbered by the legal and practical checks that tend to keep the energies of public enforcement agencies focused upon more purely economic harm.
That threat means a commercial speaker must take particular care–considerably more care than the speaker’s noncommercial opponents–when speaking on public matters. A large organization’s unqualified claim about the adequacy of working conditions, for example, could lead to liability, should a court conclude after hearing the evidence that enough exceptions exist to warrant qualification–even if those exceptions were unknown (but perhaps should have been known) to the speaker. Uncertainty about how a court will view these, or other, statements, can easily chill a speaker’s efforts to engage in public debate–particularly where a “false advertising” law, like California’s law, imposes liability based upon negligence or without fault. At the least, they create concern that the commercial speaker engaging in public debate suffers a handicap that noncommercial opponents do not.
At the same time, it is difficult to see why California needs to permit such actions by private attorneys general–at least with respect to speech that is not “core” commercial speech but is entwined with, and directed toward, a more general public debate. The Federal Government regulates unfair competition and false advertising in the absence of such suits. 15 U.S.C. § 41 et seq. As far as I can tell, California’s delegation of the government’s enforcement authority to private individuals is not traditional, and may be unique, Tr. of Oral Arg. 42. I do not see how “false advertising” regulation could suffer serious impediment if the Constitution limited the scope of private attorney general actions to circumstances where more purely commercial and less public-debate-oriented elements predominate. As the historical treatment of speech in the labor context shows, substantial government regulation can coexist with First Amendment protections designed to provide room for public debate.
These reasons convince me that it is likely, if not highly probable, that, if this Court were to reach the merits, it would hold that heightened scrutiny applies; that, under the circumstances here, California’s delegation of enforcement authority to private attorneys general disproportionately burdens speech; and that the First Amendment consequently forbids it.
(Emphasis added; citations omitted). Of course, the dynamics of litigation identified by Justice Breyer apply more broadly to actions under this statute even outside the area of speech regulation; the unique nature of California's statutory enforcement scheme presents burdens on any kind of business activity. But if you're looking for suspects in the ailments that plague the California economy, the litigation costs imposed by this statute are a good place to start.
« Close It
LAW: Daily News Confesses To Murder
The story of the shooting of a NY City Councilman by a "political rival" (really just a crackpot who got close to the Councilman styling himself a politician) just keeps getting more complicated. But perhaps the most bizarre twist is this NY Daily News article indicating that one of the triggers for Othniel Askew's panic over the possible revelation of his criminal record and his private life was . . . a cover story in Monday's Daily News!
July 22, 2003
BASKETBALL/LAW: Presumed Nutso
ESPN's Kevin Jackson has an important point to remember in the whole Kobe thing: while we should give Kobe Bryant some slack on the grounds that he's presumed innocent, we should also remember not to rush to judge his accuser, either.
I'm sick of this story already, and it will only get worse. I can only imagine if my son was old enough to follow the NBA; Bryant's the kind of guy you wouldn't have minded seeing a poster of on your kid's wall. And then, not only the fall from grace, but to have to explain the idea of rape to, say, an 8-year-old kid . . . innocent or no, I'd be pissed at Bryant for putting us all in that position.
July 17, 2003
LAW: The Parents Have Rights
The Second Circuit rules (link is to PDF file) that a school district was within its rights to fire a teacher affiliated with the National Man-Boy Love Association (NAMBLA), given the reasonable concern of parents that he could not be trusted to report instances of child molestation. Of significant importance, the court gave weight to parental concerns over the objections of the plaintiff that this amounted to giving societal prejudices a "heckler's veto" over unpopular opinions.
July 08, 2003
POLITICS/LAW/POP CULTURE: Judge Ponch?
This story from a few weeks back is simultaneously amusing, humbling and a little depressing about how little attention the average American pays to inside-the-Beltway power plays: a Democratic pollster not only finds that 61% of Latino voters are unaware of President Bush's nomination of Miguel Estrada for the DC Circuit, but concludes that
it was clear many of those who supported Mr. Estrada were also confusing him with actor Erik Estrada, who was on the 1977-1983 television police drama "CHiPS" and is now a popular Spanish-language soap-opera star.
Hey, anybody who can talk his partner out of giving a traffic ticket to H.R. Puffenstuf is ready for the D.C. Circuit . . .
Posted by Baseball Crank at 10:38 PM | Law | Politics 2002-03 | Pop Culture | Comments (0) | TrackBack (0)
July 02, 2003
LAW: Only The Beginning
If you're interested in the debate over racial preferences, this column on NRO by U.S. Civil Rights Commission member Peter Kirsanow is a must-read. Kirsanow does what I had hoped to do with the Michigan decisions if I'd had time, and then some: walk through all the practical problems that will face university administrators in defending additional litigation brought under the Gratz/Gruttinger standards. One of the key unsettled issues Kirsanow doesn't address -- but that will become very important in these cases -- is the pleading standards required to sustain a claim before discovery becomes available.
Of course, whether or not you agree with Justice O'Connor's resolution of the issue, the fact that her decision encourages protracted and highly fact-intensive (read: expensive) litigation can't really be seen as a good thing.
July 01, 2003
POLITICS/LAW: Charity Begins
In a previous Impromptus, I wrote of Kathy Boudin, the Weather bomber and Brinks murderess who's always up for parole. At her latest hearing, she talked about how guilty she'd felt that she was white. (You remember: "white skin privilege.") I said what she ought to feel guilty about is killing people - including Waverly Brown, the first black police officer on the Nyack, N.Y., force. It took forever to get him there. And then Kathy and her friends took him away.
Anyway, my homegirl Michelle Malkin wrote me to say that a scholarship fund had been established in his name, along with that of Edward O'Grady, another officer murdered by the Boudin crew. Money goes to students who pursue careers in law enforcement. Checks can be made payable to: O'Grady-Brown Memorial Scholarship Fund, Inc., P.O. Box 1024, Nyack, N.Y. 10960.
As MM says, "Fight left-wing domestic terrorism. Send your check today."
I grew up in Rockland County, NY (Nyack was a few towns over), and I can remember how the Brinks story dominated the news. When I worked in the Rockland DA's Office my first summer during law school, they took us to an exhibit on the Brinks case in the Rockland County Sherriff's Office. One exhibit that made a particular impression was the front winshield of the armored car -- it must have been several inches thick -- with a hole blown in the glass more than six inches in diameter from machine gun fire. The armored car drivers and the cops killed in this incident never had a chance.
LAW: Fish Story
The NY Times, perhaps belatedly recognizing the offensive nature of Maureen The Greek's column-length sneer at Clarence Thomas, runs an op-ed by uber-postmodernist professor Stanley Fish, de-deconstructing (reconstructing?) Thomas' affirmative action opinion: that is, Fish makes the most un-postmodern argument that Thomas' critique of affirmative action deserves to be dealt with on its merits, rather than explained away as a product of Thomas' own experiences and psychology. (This may also be a further sign of the postmodernists' loss of confidence in their methods). Kudos to Fish, no conservative, for writing this, and to the Times for realizing that Dowd's noxious blast deserved a rebuttal. What's striking about the article is not that it offers a different perspective from Dowd's but that it has no other possible purpose than as a rebuttal to Dowd (although she's not mentioned by name).
On a related note, for all you Harry Potter fans, the analogy of the week goes to Mindles H. Dreck, writing about Dowd (in the comments section):
The basic problem is that the NYT is the paper I settle down with on Sundays after cooking the family pancakes. You open it and there she is. It's like getting a Howler.
June 29, 2003
LAW: More on Affirmative Action
Two good followups: Stanford Law School professor Marcus Cole, on Volokh, pouring further scorn on Maureen Dowd's "assum[ption] that Clarence Thomas, and all successful African Americans, owe their success to Affirmative Action as the but-for cause of their success," and Michael Kinsley's devastating column slicing through the nonsense in Justice O'Connor's compromise solution. (link via Sullivan)
Charles Krauthammer offers a dissenting view: that as bad and dishonest as the Court's opinion was, it's a good thing that the Court didn't close off democratic debate on the issue as it has on, say, abortion.
June 28, 2003
LAW: We Own Your Opinions
One of the most offensive arguments about affirmative action is perfectly captured by Maureen Dowd's broadside against Clarence Thomas:
He knew that he could not make a powerful legal argument against racial preferences, given the fact that he got into Yale Law School and got picked for the Supreme Court thanks to his race. . . . The dissent is a clinical study of a man who has been driven barking mad by the beneficial treatment he has received. . . It makes him crazy that people think he is where he is because of his race, but he is where he is because of his race. . . .It's impossible not to be disgusted at someone who could benefit so much from affirmative action and then pull up the ladder after himself. So maybe he is disgusted with his own great historic ingratitude.
Eugene Volokh rightly takes to task the idea that good judging requires a judge to be biased in favor of "gratitude" for whatever social privileges he's obtained in his life. But the problem goes deeper than that.
You see, for its supporters, affirmative action isn't the repayment of a debt after all: it's a loan that can and is called in whenever needed. Justice Thomas hasn't simply been given a helping hand and set free; rather, he's required to declare perpetual fealty to the cause of racial preferences, even when his better judgment and his understanding of the law tells him otherwise, because he owes. His very thought is shackled by the stigma, so gleefully thrown in his face at every opportunity: we bought you, and we expect you to stay bought! You're nothing without us! You really think you are qualified for the job you hold, or even for your degree to practice law in the first place?
Read Dowd's piece and ask yourself if she really believes that Clarence Thomas has earned the right to make up his own mind. So much for dignity and respect.
Of course, to complete this picture, it's also fair to note that if Justice Thomas supported racial preferences in higher education, conservatives who oppose such preferences would also be all over him for being corrupted by the programs to which he was indebted. (As I've pointed out before, and as Dowd raises again, a similar stigma sticks to those, like President Bush, who got into college as children of alumni). But does that make preferences better? Either way, Thomas is damned by his history; he is not free, in the way that you or I are free, in the way that someone about whom it is known that he has made it on his own merits is free. Is that the legacy we want for still more generations of African-Americans -- unfree to act, rather than be acted on, unfree to think, rather than be thought about?
June 19, 2003
POLITICS/LAW: Jane Roe
Like Eugene Volokh, I can't see, legally, what will be accomplished by the motion filed by Norma McCorvey (aka Jane Roe of Roe v. Wade) attempting to overturn the Supreme Court's decision in Roe 30 years ago. But her affidavit still makes for some rather powerful reading.
June 17, 2003
LAW: Is This New?
I'm not an expert in this particular area, and it may well be that I'm forgetting a case from my Federal Courts class that ruled on this point previously -- an interesting aspect of Justice Scalia's opinion for a unanimous Supreme Court yesterday in Virginia v. Hicks, which overturned a decision of the Virginia Supreme Court finding a statute overbroad under the First Amdendment, was the holding that Virginia had standing to bring the case to the U.S. Supreme Court based on its "injury-in-fact" in being unable to enforce the statute. The salient point here is that the state's standing to sue was determined at the time the case was brought into federal court, at the certiorari stage, rather than as things existed before the litigation was filed. This, of course, also relates to one of the side issues in Bush v. Gore -- i.e., the fact that the Bush campaign's standing to raise constitutional issues was determined on the basis of how things stood after the Florida Supreme Court's decision. The other interesting aspect of Hicks in this regard is the state having standing to defend its statutes in federal court, where it could not have enforced them in the first place.
POLITICS/LAW: "[N]ot just the right last name"
Patrick Ruffini notes the irony in a rather egregious example from John Edwards of what, if said by a Republican, would almost certainly be a career-threatening racial slur: the charge that Miguel Estrada is unqualified to be a federal appeals judge, and was nominated just for his ethnicity:
"I think we need more Hispanics on the federal bench, but we should choose people because they have the right record, not just the right last name"
I know Bush hates demonizing his opponents, but somebody needs to very publicly tear Edwards a new one over this comment. As Ruffini notes, the real irony is that Edwards is the one who's painfully short on qualifications (to be president, that is). Estrada has a resume to die for, and is, if anything, overqualified; every job he's had is an extremely hard one to get in the legal world, and he's done them all with great distinction. But apparently it's OK to run down those qualifications because he's Latino.
I've been slow to consider the Democrats' behavior in this case to be racist or a genuine problem with Latino voters -- I always thought it was completely bogus for Clinton to play the race card every time one of his African-American nominees got held up -- but there's no question in my mind that Estrada has been targeted (in ways that other equally conservative white male nominees haven't) specifically because the Democrats fear that his nationality and life history, combined with his evident brilliance, would make him a potent Supreme Court choice.
Targeting a man for defeat to public office because of his race -- isn't that the sort of thing Democrats were supposed to be against? (Don't bother answering that).
(Link via The Corner).
June 14, 2003
LAW/POLITICS: Frightening Specter
I see that Chuck Schumer has suggested that Bush appoint 73-year-old pro-abortion Republican Arlen Specter to the Supreme Court, which would let Democratic Ed Rendell pick his immediate replacement. Nice try, Chuck.
June 13, 2003
LAW: The Oldest Freshman
By tradition, the most junior Supreme Court justice gets stuck with a variety of menial obligations as a sort of hazing. But with no vacancies on the Court, Justice Breyer has been stuck in freshman hazing status for nine years. (Link via Pejman).
June 10, 2003
LAW: Hate Crimes
I'd been meaning to post on this point for some time, and recent posts by Eugene Volokh and Kevin Drum got me thinking again about hate crimes. Hold on to your hats, because for the first and perhaps last time, I'm going to take the more liberal position than Kevin Drum. What I propose, in fact, is a modification of hate crimes laws to fit comfortably with conservative principles as well as with the realities of our times, in which virulent and dangerous hatreds have once again become a widespread concern.
The conservative case against laws targeting "hate crimes" (for today, I'll stick to violent crimes; laws against things like cross burning are another issue) boils down to the following objections:
1. It's frightening to have the government punish people for what they think, and hate crimes cases wind up involving too much evidence about the defendant's opinions and motives and what books he reads.
All these are serious objections, but I think that some of them beg the question and others can be resolved through changes in the statutes. I did a 180-degree reversal on hate crimes after September 11, because it became clear to me that the harm targeted by the hate crimes statutes is precisely the same as the harm caused by terrorism: in addition to the violence itself, hate crimes, by their very nature -- the targeting of random persons for violence because of some distinguishing characteristic, such as race -- cause harm to the fabric of society as a whole, both by spreading fear among people similarly situated to the victim and by sowing mutual suspicion and resentment.
The "added fear" factor is really hard to deny. If you were a black man living in Jasper, Texas, and you basically trusted white people (as Dorothy Rabinowitz pointed out in Friday's Wall Street Journal, Byrd apparently voluntarily got in the truck with a couple of white guys who'd been drinking), you would almost certainly have felt more afraid in the aftermath of that crime; same for a Jew in Crown Heights after Yankel Rosenbaum was murdered, or a gay man in Wyoming after the Mathew Shepard murder. While it's true of any crime that it spreads fear, these crimes -- much like acts of terror like the DC sniper or the anthrax scare -- made certain people more afraid to go out in public in their own communities because they feared that they could be targeted next, and did so immediately (as opposed to more run-of-the-mill crimes that cause fear mostly as a matter of accumulation).
That, alone, is why the "unequal protection" argument begs the question; it's always true that the criminal law treats people unequally when it punishes a similar act more harshly because it was committed in circumstances that were likely to cause greater harm.
As for double jeopardy, hate crimes re-prosections have passed constitutional muster under a Supreme Court decision called Blockburger and its progeny because the laws have different statutory elements (i.e., different things need to be proved than for the underlying crime). But if we agree that multiple prosections are bad (and there are some counter-arguments on this point, although I'm not a big fan of them), there's no reason to be limited to the bare minimum protection provided by the constitution; a statute can easily be written to say that the "hate crime" statute can not be used in a subsequent prosection where there has been a prior prosection based on the same act or transaction, regardless of the charges.
The "it's not necessary" objection was useful for the James Byrd case, but it's true that in some cases, an added punishment will have some effect, particularly where the crime in question is a lower-level assault.
The remainder of the objections are aimed at the fact that we presently define hate crimes by (1) the defendant's actual motivation and (2) a laundry list of divisions: race, gender, religion, etc. I think I have a solution to this, although you might play with the language a bit to get it just right:
A person shall be guilty of a 'hate crime' and eligible for a higher sentence if he or she commits (one of a list of specified crimes), under circumstances that would lead a reasonable person to conclude that he or she intentionally selected the victim based upon an identifiable or perceived personal characteristic.
That's it. Just look at the circumstances of the crime, not the defendant's motive or history of using racial slurs or reading nasty literature; if the circumstances (statements made, the random nature of the selection of a stranger to victimize, perhaps the absence of another logical motive like robbery or a personal animus) would lead a reasonable person to conclude that this was a hate crime, then it was. You might consider writing in an express exclusion for robberies or domestic crimes, but I think in most cases that would be unnecessary.
As for who the laws "protect," the definition of "an identifiable or perceived personal characteristic" could be left as well to the courts, or simply to the common sense of juries, without need to create specific "protected classes" by legislation. The defendant picked on fat guys, or lesbians, or people with Mohawk haircuts? It's a hate crime. Doesn't matter if the classification is otherwise a legally suspect one or an immutable characteristic; doesn't matter which "side" of the line the victim was on; doesn't matter if the victim really was Jewish or gay or a Red Sox fan; if somebody appears to have targeted the victim because of some trait or characteristic, then a stiffer penalty applies because of the unique potential for spreading fear through such crimes.
Yes, the definition of the crime is still rather elastic, but that's true of a lot of laws; I suspect that refocusing the statute on the appearance of the crime to a reasonable person, and away from proof of subjective motivation, would remove a lot of the hazard of an Orwellian redefinition of "hate." I believe this is an elegant solution to the problem of hate crimes, and I submit that this is a type of hate crimes law that conservatives and libertarians could support.
June 08, 2003
LAW/POLITICS: Self-Fulfilling Prophecy
Stuart Buck wonders why the Democrats are sending up signals that they intend to pitch a bitter battle over Supreme Court nominees no matter who Bush nominates. There's an important point here: if Bush is convinced that he faces a massive battle no matter who he puts up, then his only incentive to pick a more 'moderate' candidate is if he faces defections from Republicans. The Dems certainly give no reason to suspect that they will give Bush any credit no matter what he does.
June 07, 2003
WAR/LAW: War Profits For HLS?
I meant to blog about this when I got it a couple of months ago: of all the examples I've seen of shameless attempts to profit from the war in Iraq, few of them irritated me more than a letter I received that used the war as an excuse to ask for money for Harvard Law School. Of course, just asking for money's not enough; HLS has to use the occasion to ask for $1000 donation. The text of the letter is scanned below:
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May 26, 2003
LAW/POLITICS: Judges And Politics
Josh Marshall, who's been hung up on redistricting in Texas lately, argues:
Many of those who are defending -- professionally or otherwise -- the DeLay power-grab are arguing that courts simply should not be involved in drawing congressional maps, period. . . . we have an established system and DeLay & Co are changing it . . . the courts-out-of-elections mantle hangs rather heavy on a crew whose president owes his office to a judicial ruling.
Hmmmm. Dr. Marshall's memory of Florida 2000 is rather selective indeed if he expects us to believe that Al Gore would have won Florida if only the courts hadn't gotten involved! For those who have forgotten: there was a long established practice in presidential races of respecting the Election Day outcome, even when (as was the case in 1960 but not in 2000) there were credible bases to believe there had been fraud by the winning party. It was the Bush camp that argued all along that the courts shouldn't be involved in picking presidents, and it was the Gore team that pushed at every turn for a larger role for the court system, including asking the courts to disregard express statutory language enacted by the Florida Legislature and to disregard rulings of the Florida Secretary of State, to whom substantial authority was delegated under the Florida statutes.
In a similar vein, Yale law professor Jack Balkin has been arguing on his blog lately that Democrats are justified in breaking down traditional barriers in another way -- by filibustering appellate court nominees on purely ideological grounds -- because of their anger over Bush v. Gore. Balkin makes the hypocrisy/inconsistency charge a centerpiece of his argument that
[t]he five conservatives were the least likely, one would think, to extend the Warren Court's equal protection doctrines in the area of voting rights. Indeed, one member of the majority, Justice Scalia, is on record as opposing novel interpretations of the Equal Protection Clause that undermine traditional state practices. It is hard to imagine that if the parties had been reversed-and Vice-President Gore had been ahead by 537 votes-the five conservatives would have been so eager to review the decisions of a Republican Florida Supreme Court that was trying to ensure that every vote had been counted. The unseemliness of Bush v. Gore stems from the overwhelming suspicion that the members of the five person majority were willing to make things up out of whole cloth-and, equally importantly, contrary to the ways that they usually innovated-in order to ensure a Republican victory . . . The Justices could have avoided the appearance of a conflict of interest by simply remaining out of the fray . . .
(emphasis added). The quotation is from a Virginia Law Review piece by Balkin and Prof. Sanford Levinson.
Of course, "traditional state practices" is precisely what was not at issue in Bush v. Gore; the central and inescapable fact about the case is that it involved the Court's review of a judicial remedy, one crafted after the election, without any statutory basis, without precedent in history, and without anything but arbitrary standards to guide its implementation. I've posted here my reaction to Bush v. Gore written the day after it was decided, and the more I read about the case, the more I stand by my initial gut reaction to the decision; here's the key excerpt:
"[T]he Court went out of its way to limit this to the facts at hand, and to show how the current system wasn't so much discriminatory as it was lacking in any rational basis. Far more to the point, as far as consistency with conservative principles is concerned, the Court made clear that its decision does not (at least on its face) apply to the conduct of elections generally ("The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections"). Rather, the Court's decision focuses in on, and arguably applies a higher standard for, judicial proceedings to review elections ("[W]e are presented with a situation where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards. When a court orders a statewide remedy, there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied") (emphasis added). The net result is to counsel state as well as federal courts to be more circumspect in the future in ordering remedies in election cases where the remedy has not been explicitly set out in advance in a statute. It is this aspect of the decision that essentially constitutionalizes the James Baker Doctrine: you can't go to court to change the rules after the election."
In that sense, the Court's decision is deeply and profoundly conservative, and it is not surprising at all that the conservatives on the Court would have found the Florida court's approach so troubling, and so hazardous in its gravtitational pull of courts into what Balkin calls the "low politics" of partisan side-taking. By imposing a higher standard of scrutiny on post hoc judicial remedies in election cases, the Court has (admittedly, at some cost to its own short-term credibility with the public) erected a barrier to the use of courts, state or federal, in such adventures in "low politics" in the future.
As to the idea that the Justices could have "remain[ed] out of the fray" -- that's an awfully convenient bit of ledgermain, given that the matter had already been pushed into the court system. This is why I find it particularly laughable that some commentators have invoked the political question doctrine in this context: the doctrine says that some issues are just not suitable for courts to resolve. How can you apply that to say that courts can not review what are judicially crafted remedies in the first place?
What was clear to me at the time -- something that should have been familiar to any practicing litigator, though perhaps less so to a law professor -- was the extent to which the Court was reacting to the procedural posture of the case and the behavior of the court below.
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The Court, particularly Justice O'Connor, acted as if they saw the antics of the Florida Supreme Court as being irresponsible and unprecedented; the Court's view in its second decision in the case clearly appeared to be colored by the Florida Supreme Court's insistence on rewriting the deadlines for the protest phase in its initial decision. Balkin, in a Yale Law Review piece on the case, dismisses this possibility mostly on the grounds that the Court did not level any accusation of "invidious motive" at the lower court - but such things are commonly unsaid in appellate opinions that reek of mistrust of a runaway court below.
Consider this exchange, from the oral argument:
BOIES: ... I think, at that point, then you can conclude that what it has done is it's changed the law. But I think the standard is the standard this court has generally applied in giving deference to state supreme court decisions.
O'CONNOR: But is it, in light of Article II? I'm not so sure. I mean, I would have thought that that bears on the standard, frankly, when it contemplates that it is plenary power in the legislature. Does that not mean that a court has to, in interpreting a legislative act, give special deference to the legislature's choices insofar as a presidential election is concerned? I would think that is a tenable view anyway, and especially in light also of the concerns about Section 5.
BOIES: I think, Your Honor, that if the Florida Supreme Court, in interpreting the Florida law, I think the court needs to take into account the fact that the legislature does have this plenary power. I think when the Florida Supreme Court does that, if it does so within the normal ambit of judicial interpretation, that is a subject for Florida's Supreme Court to take.
O'CONNOR: I'm sorry. You are responding as though there were no special burden to show some deference to legislative choices in this one context. Not when courts review laws generally, for general elections, but in the context of selection of presidential electors, isn't there a big red flag up there, "Watch Out"?
BOIES: I think there is in a sense, Your Honor. And I think the Florida Supreme Court was grappling with that.
O'CONNOR: You think it did it properly?
BOIES: I think it did do it properly.
O'CONNOR: That's, I think, a concern that we have. And I did not find, really, a response by the Florida Supreme Court to this court's remand in the case a week ago. It just seemed to kind of bypass it and assume that all those changes in deadlines were just fine, and they'd go ahead and adhere to them. And I found that troublesome.
O'Connor, remember, was a state legislator herself; it is unsurprising that she would be particularly offended by the cavalier attitude of the Florida Supreme Court towards state statutes. And as I've noted before, the Court was wise to be more skeptical than usual of the state court below, because the siren song of what Balkin calls "low politics" is all the stronger when a state court's decision will have an impact that reaches outside its own state.
Getting back to Balkin . . . oddly, the Balkin-Levinson Virginia Law Review piece 's reference to "traditional state practices" cites in a footnote to Scalia's dissent in the case regarding admission of women to the Virginia Military Institute - which is very much a case where the federal courts sought to change traditional practices of long standing in a state, rather than simply prevent a judicial remedy forged after the fact from creating its own new reality. In other words, it's a red herring.
In fact, the Virginia Law Review piece says little about the substance of Bush v. Gore at all; for that, you need to go to Balkin's Yale Law Review article. The Yale piece goes in some detail on the Florida statutory arguments, and I won't rehash all that here; it's sufficient to note that I've discussed another law review piece at some length that I found a good deal more persuasive on the matter. (Either way, it is clear that the questions of Florida law can not be separated from the federal constitutional issues).
But the guts of Balkin's argument, and the core of his disagreement with both the majority and the concurring Justices, is his insistence that the Court drew an improper distinction between state courts and state legislatures, while failing to give adequate respect to the difference between state law and federal law. Which is why his protests are ultimately so ironic. Because if Bush v. Gore has any lasting impact on the law, it will be - as Justice Stevens recognized - to draw more firmly a line that places state and federal courts on one side, and legislatures on the other, and a "Do Not Cross" sign in the way of courts of all types. And for anyone concerned about keeping courts out of elections, that's a good thing.
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May 23, 2003
LAW: Solum v. Balkin
If you haven't been following the ongoing debate between law professors Lawrence Solum and Jack Balkin about the proper method of constitutional adjudication and judging in general, I'd suggest you go and catch up: Solum's latest salvo, which has links to the earlier posts by both sides (scroll down to Tuesday's post on "Fear and Loathing in New Haven" if the Blogger links are busted) is an excellent illustration of how serious legal theory and jurisprudential philosophy can be written in a style that is chatty, conversational, accessible, and immensely entertaining. Balkin's last post argued, in a nutshell, the usual argument of legal academics on the left: that you have to drink their Kool-Aid and abandon hope of following the Constitution as it was written, or you don't get a lot of the results that we've come to take for granted as popular precedents. I had read this and thought, "I know this isn't right, but I can't quite put my finger on the precise problem with it." Solum has the answer.
May 08, 2003
LAW: A Headline Writer's Dream
From law.com: "Texas Court Upholds Butt Search for Crack"
I'd say you've got pretty good odds on that search . . .
May 05, 2003
LAW: Bob To The Chief
OK, I just have to briefly violate my no-blogging-during-the-work-day rule for this one, from the New York Law Journal Online: it's the Chief Justice Rehnquist bobble-head doll!
May 02, 2003
LAW/POP CULTURE: Personal Injuries
Now this sounds like my kind of lawsuit.
April 26, 2003
LAW: Lawyer Joke
April 22, 2003
LAW: Federalism and Guns
Jacob Sullum, writing in the libertarian journal Reason, questions whether new federal legislation to protect against lawsuits against the gun industry is consistent with a narrow reading of the commerce power and a commitment to federalism. I haven't studied the bill he's addressing, but I do think it's worth considering the fact that at least some of the current litigation flies in the face of existing law on the Commerce Clause and conflicts with the principles I cited in my post on Federalism's Edge.
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A number of the recent suits, rather than challenge guns as inherently dangerous, have pushed some variation of an "oversupply" theory: that gun manufacturers allegedly have knowingly sold more guns in states with lax gun laws than the local demand, knowing that such guns would then be illegally shipped across state lines to states where the gun laws are tighter. The problem with this theory is twofold. First, this directly imposes liability on the very act of interstate commerce - a serious problem under existing Commerce Clause cases. Second, by making legal sales in State A illegal under State B's law because of their impact on State B, State B has effectively overstepped the very boundaries that the Supreme Court's State Farm v. Campbell decision purports to police.
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POLITICS/LAW: Not Exactly Pro-Choice
I just knew this was coming: somebody from NOW objects to a murder charge for Laci Peterson's child, fearing that giving any legal protection to a child carried nearly to term would help the pro-life cause: "If this is murder, well, then any time a late-term fetus is aborted, they could call it murder" Jonah Goldberg is right that this is just one county-level NOW rep, but it's still all too characteristic of the mindset that places the value of abortion above even the prohibition on murder.
April 21, 2003
LAW/BUSINESS: AOLTimeWarner On The Hot Seat
April 18, 2003
LAW: Scandal in Mississippi
Reports of a possibly growing scandal in Mississippi, where federal investigators have subpoenaed records of the state Supreme Court, "looking into whether lawyers paid off loans for state court judges in exchange for favorable treatment in court." The lawyers in question include "well-heeled trial lawyers, including Paul Minor of Ocean Springs and Richard "Dickie" Scruggs of Pascagoula." (Link via Howard Bashman)
LAW: Is an Ungoogled Life Worth Living?
Harvard Law Professor Jonathan Zittrain on the Google Death Penalty. Google's enormous influence does raise some interesting issues, perhaps more in the nature of policy than legal issues. I'm not an expert in antitrust economics, but it seems to me that Google is what you might call an ephemeral monopoly: the reach and influence of a monopolist, but coupled with the certainty that it could be easily unseated from its position in a heartbeat if it attempted to exploit the consumer, or - and this is key - if it was suddenly subjected to added regulatory/legal burdens that impeded the flexibility that got it where it is. I can see why that's frustrating to sites that get banned from Google, but the social downside of imposing any sort of hightened legal duty on an entity like Google solely due to its prominence would be counterproductive.
Of course, I've still never heard a good explanation of how Google makes any money, either.
April 16, 2003
LAW: Fine Young Cannibal?
I've heard record labels accused of a lot of things, but encouraging cannibalism by musicians to improve their image is a new one. Let's just say this lawsuit sounds unlikely to go far. (Link via Howard Bashman). And am I mistaken, or was this incident the basis for a CSI episode?
LAW: Some People Never Learn
'Motorist' Rodney King crashes his car after weaving through traffic at 100 mph. To hear the media a decade ago, King was beaten by the cops for nothing worse than Driving While Black. Maybe the repeated instances of King threatening the lives of everyone around him with his reckless races around the streets of L.A. will make a point; I suspect he'll actually have to kill someone before it sinks in, though.
LAW: Federalism's Edge
On Monday, April 7, the United States Supreme Court handed down a decision, captioned State Farm Mutual Automobile Insurance Company v. Campbell, that struck down a $145 million punitive damage award premised heavily upon the defendant insurance company’s nationwide conduct and operations. The Court’s 6-3 opinion, authored by Justice Kennedy, set out one of the strongest statements yet in favor of a constitutional principle that has increasingly underlay any number of controversies over the past 10 or 15 years: Federalism’s Edge.
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At least since the issue of slavery came to dominate the national debate in the mid-19th century, one of the great structural controversies of American government and politics has been the question of “States’ Rights” in the context of a federal system; put more simply, the tug of war between the increasing authority of the federal government and the traditional roles of state and local government. In this century, federal power was ascendant from the New Deal through the civil rights movement and the Great Society, promising efficiency and freedom from local prejudices. The corresponding reaction, noting the distance and unresponsiveness of centralized policies made in Washington, came to a head during the Reagan years, and echoes down to this day in conservative politics.
As a result, when you mention “federalism,” many on the Left and Right alike assume that you mean only “States Rights,” defined as local autonomy in opposition to federal power. But in recent times, the greater threat to political diversity and responsiveness in self-government has come instead from states overstepping their boundaries to the point that they make policies for the whole Union. That is what I define as Federalism’s Edge: the point at which an exercise of state power (by a state or group of states) infringes on the right to self-government of the citizens of the other states. If a national government is overweening, intrusive and unresponsive when it is housed inside the Beltway, it is no less so – in fact, even more so – if it sits in a legislature in Sacramento, a jury room in a small town in Alabama, or a law office in Hartford. After all, at least the average citizen sometimes gets to vote in a contested election for representatives in Washington.
The subtext of Federalism’s Edge can be seen in many controversies. The issue of same-sex marriages is a classic example: opponents in other regions of the country get so exercised over the drive to recognize same-sex marriages in places like Vermont or Hawaii not because they are horrified at the effect on Vermonters but because they fear that even a single jurisdiction allowing gay marriage will, through the Full Faith and Credit Clause of the Constitution, allow people in their own state to enter into same-sex unions in Vermont, thus rendering completely irrelevant the policy preferences of the state’s own residents. State attorneys general have been criticized in some quarters for reportedly holding up settlement of nationwide litigation brought by the Department of Justice, and have been on the move elsewhere as well, acting alone or in small groups, targeting tobacco, the gun industry, more recently the securities industry. California operates under an exemption from federal preemption that enables it to set its own vehicle emission standards, standards that – due to the sheer size of the California economy – wind up effectively setting standards for the entire nation (including the states that, unlike California, include a lot of auto workers). Last year, Jonathan Chait of The New Republic kicked up a storm with a full-throated attack on the influence of the state of Delaware, principally through the incorporation of so many major corporations in Delaware, a trend that results in nationwide reach for the corporate law of one of the nation’s smallest states.
An early example of how a violation of Federalism’s Edge in civil litigation provided the subtext for a major movement in constitutional law came in the Court’s famous 1964 decision in New York Times Co. v. Sullivan, in which an Alabama court handed down a libel judgment against the New York Times (for publishing an advertisement about the civil rights movement that supposedly defamed a Montgomery, Alabama City Commissioner) for $500,000, even though sales in Alabama amounted to just 394 of the 650,000 copies of that issue of the Times. Although the Court’s decision revolutionized the relationship between the First Amendment and the law of defamation, the Court’s consideration of the issue was surely influenced by the specter of a national newspaper being brought to heel by a local jury in a jurisdiction where it barely did business.
One of the more subtle violations of Federalism’s Edge came in the Supreme Court’s decision last spring in Atkins v. Virginia, in which the Court pointed to a “national consensus” consisting of less than half of the states as evidence that the Court should overrule its 13-year-old decision concluding that the Eighth Amendment does not prohibit execution of the mentally retarded. The problem with that conclusion, regardless of one’s feelings about the merits of the death penalty argument at issue, should be obvious: Article V of the Constitution provides a method by which the people of a certain percentage of the states can amend the Constitution, and for the Court to allow the meaning applied to a constitutional provision to be changed by action of a lesser number! of state legislatures severely undermines the intent of the Framers that Article V should be a bulwark against easy abrogation of the national compromises struck in the Constitution.
The policing of Federalism’s Edge can likewise be seen as a critical subtext of the Court’s endlessly controversial decision in Bush v. Gore. The standard line criticizing the decision was easy to understand: the case involved a garden-variety dispute between a state statute and its interpretation by the state executive, on the one hand, and the state supreme court on the other. With the exception of a period of activism centered around the civil rights movement, the Supreme Court has rarely intervened in such disputes, giving great deference to state courts and leaving to the political branches the task of disciplining overreaching state judiciaries. In that light, the sudden solicitousness for the proper application of state law may look hypocritical. But the Court surely understood the reason why greater, and less deferential, scrutiny was required: because the rest of the nation would have to live with the Florida court’s choices. (The concurring Justices argued that this greater scrutiny was explicit in the terms of Article II dealing with selection of electors for president and vice president).
In ordinary litigation, the principal bulwark against encroachments on Federalism’s Edge has been the Commerce Clause, and a body of law has grown up (dating back as far as Chief Justice Marshall’s opinion in Gibbons v. Ogden) limiting the “extraterritorial” reach of state laws or the imposition of state law forms of liability directly on interstate commerce. In the 1990s, the Court also began scrutinizing punitive damage awards – long the bane of nationwide businesses in unfriendly state court venues – for “excessiveness” under the Due Process Clause. The Court’s decision in BMW, Inc. v. Gore – a notorious case in which a doctor was awarded $4 million in punitive damages after discovering that the paint on his BMW had been retouched – explicitly grounded authority for its Due Process review in this line of authority. The Court noted that BMW’s conduct had not been previously found unlawful in other states, and that in fact the existing laws provided “a patchwork of rules representing the diverse policy judgments of lawmakers in 50 States.” Thus, speaking of a court judgment that would effectively subject nationwide conduct to liability under a single standard, the Court held:
[W]hile we do not doubt that Congress has ample authority to enact such a policy for the entire Nation, it is clear that no single State could do so, or even impose its own policy choice on neighboring States. . . . one State's power to impose burdens on the interstate market for automobiles is not only subordinate to the federal power over interstate commerce, . . .but is also constrained by the need to respect the interests of other States. . . . We think it follows from these principles of state sovereignty and comity that a State may not impose economic sanctions on violators of its laws with the intent of changing the tortfeasors' lawful conduct in other States. . . by attempting to alter BMW's nationwide policy, Alabama would be infringing on the policy choices of other States. . . . Alabama does not have the power . . . to punish BMW for conduct that was lawful where it occurred and that h! ad no impact on Alabama or its residents.
The Gore decision attracted its share of critics; Justices Scalia, Thomas, Ginsburg and Chief Justice Rehnquist all dissented, arguing that constitutional regulation of punitive damages was a break with the traditional role of state law and an unwarranted expansion of “substantive Due Process.” In the years since, the case has spawned much litigation and a developing body of law on the limits of punitive damage awards.
Campbell provided the Court with an opportunity to expand on the federalism aspects of Gore, and the Court’s opinion provides ample grounds for encouragement for an active role in the policing of Federalism’s Edge. The facts of the case were unsympathetic for the plaintiffs (the Campbells); according to the Court’s recitation of the facts, Mr. Campbell had recklessly caused a fatal auto accident and insisted that he was not at fault, then sued his insurer for taking the case to trial and temporarily refusing to cover the ensuing judgment. The Campbells alleged bad faith refusal to provide coverage and won $1 million in damages, principally for emotional distress.
Much of the evidence on which the Utah Supreme Court based the $145 million punitive damage award involved conduct outside of Utah:
[T]he Campbells introduced evidence that State Farm's decision to take the case to trial was a result of a national scheme to meet corporate fiscal goals by capping payouts on claims company wide. This scheme was referred to as State Farm's 'Performance, Planning and Review,' or PP & R, policy. To prove the existence of this scheme, the trial court allowed the Campbells to introduce extensive expert testimony regarding fraudulent practices by State Farm in its nation-wide operations. . . Evidence pertaining to the PP&R policy concerned State Farm's business practices for over 20 years in numerous States. Most of these practices bore no relation to third-party automobile insurance claims, the type of claim underlying the Campbells' complaint against the company.
Reviewing whether the conduct at issue was sufficiently “reprehensible” to warrant a punitive damage award 145 times the size of the actual damages, the Court the chastised the Utah Supreme Court for permitting the case to be “used as a platform to expose, and punish, the perceived deficiencies of State Farm's operations throughout the country.” Explaining why this was wrong, the Court provided a ringing endorsement of the limits on the power of a single state's law to punish nationwide conduct:
A State cannot punish a defendant for conduct that may have been lawful where it occurred. . . . Nor, as a general rule, does a State have a legitimate concern in imposing punitive damages to punish a defendant for unlawful acts committed outside of the State's jurisdiction. Any proper adjudication of conduct that occurred outside Utah to other persons would require their inclusion, and, to those parties, the Utah courts, in the usual case, would need to apply the laws of their relevant jurisdiction. . . . A basic principle of federalism is that each State may make its own reasoned judgment about what conduct is permitted or proscribed within its borders, and each State alone can determine what measure of punishment, if any, to impose on a defendant who acts within its jurisdiction.
The Court further noted the unique dangers in allowing juries to adjudicate punitive damage claims based on conduct that was different from the conduct for which compensatory damages were awarded:
A defendant should be punished for the conduct that harmed the plaintiff, not for being an unsavory individual or business. Due process does not permit courts, in the calculation of punitive damages, to adjudicate the merits of other parties' hypothetical claims against a defendant under the guise of the reprehensibility analysis . . . Punishment on these bases creates the possibility of multiple punitive damages awards for the same conduct; for in the usual case nonparties are not bound by the judgment some other plaintiff obtains. . . ."Larger damages might also 'double count' by including in the punitive damages award some of the compensatory, or punitive, damages that subsequent plaintiffs would also recover".
The Court observed that such measures raised the danger of crossing the line between the civil and criminal justice systems: “Great care must be taken to avoid use of the civil process to assess criminal penalties that can be imposed only after the heightened protections of a criminal trial have been observed, including, of course, its higher standards of proof.”
The practical significance of Campbell is principally in its explicit rulings on the use of evidence and jury instructions regarding out-of-state conduct under standards that were applied more generally in Gore. Lawyers, of course, will argue for years to come over how broadly Campbell can be read outside of its fact situation, and advocates of judicial restraint may continue (as Justices Scalia, Thomas and Ginsburg did in dissenting in Campbell) to argue that the entire enterprise is an excess of judicial activism. But for now, when Federalism’s Edge is overrun by judges and juries in plaintiff-friendly jurisdictions, the Supreme Court is on the case.
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WAR/LAW: Who Shall Make No Law?
The Boston Globe yesterday (registration required) ran this exceptionally fatuous piece complaining about the treatment of anti-war celebrities:
It's been a good long while since I've had a sit-down with the US Constitution, but if my junior high school memories serve me correctly, I don't recall the Bill of Rights guaranteeing free speech only to those who espouse one particular opinion.
Um, you might try reading the first five words of the First Amendment; in fact, reading the first word alone might have spared us from reading this column . . .
LAW: New Zealand Courts
Howard Bashman has news and links about a plan afoot in New Zealand to create a new Supreme Court; it's hard to tell from the story whether this is a cynical attempt to pack the court, an honest attempt to create a more responsive local institution, or both. Either way, it''s more proof of something we should remember as the reconstruction of Iraq gets underway: democracies can be messy.
LAW: Do Smoking Bans Kill?
This story is a depressing example of getting away with murder.
April 14, 2003
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April 11, 2003
LAW: The Gig Is Up
April 04, 2003
LAW: Dean Kagan
Harvard Law School has named a new dean, Elena Kagan. Like Harvard University President Larry Summers, she's a former Clinton appointee (or, as they call Clinton appointees at Harvard, a 'right-winger').
April 03, 2003
I loved this story from some weeks back but couldn't find a subscription-free link; here's the summary. Two idiots in Marlborough, Mass. tried to sell drugs at a party packed with off-duty undercover cops. Here's the key quote from the story: "Our party-crasher might have been able to guess that he was among law enforcement had he taken time to study the picture of the Framingham SWAT team on the fridge. Or look at the sweatshirt worn by the host. It had the words Burlington Police Academy and a pair of handcuffs stitched on. Oblivious to these and other clues, Garland struck up a conversation with Gutwill, never knowing he was a police detective. One thing led to another, until Garland asked the detective if he wanted to get high."
April 01, 2003
LAW/POLITICS: McCain-Feingold in the Courts
Election law blogger Rick Hasen has the transcript of an NPR report discussing unusual behind-the-scenes details of the divisions on the three-judge court considering the constitutionality of McCain-Feingold. Hasen also follows up on a comment by Volokh Conspiracy blogger (and my law school colleague) Orin Kerr on the same subject. (Links via Howard Bashman)
March 11, 2003
LAW/POLITICS: Rethinking Bush v. Gore
On the flight, I caught up on a fascinating draft law review article by Peter Berkowitz and Benjamin Wittes, defending the Bush v. Gore decision against an attack by Laurence Tribe (the article is a working paper and hasn't been cleaned up for legal citation, but I assume it's fair grounds for comment since they put it on the web; link courtesy of Stanley Kurtz at NRO).
The thesis of the article is that both the majority and concurring opinions in Bush, despite the scorn heaped on them from liberal legal academics, were at least reasonable resolutions of the issues before the Court. The authors are careful to point out that the Court really could have gone either way on the Equal Protection ground and could likewise have declined to hear the case at all; they are more definitive in arguing that (1) Tribe is totally wrong and overwrought in claiming that the terms of the Twelfth Amendment (which gives the Senate the job of counting the electoral votes) barred the Court from considering the issue (they note that Tribe himself did not make this argument in representing Gore before the Supreme Court); (2) that the Florida Supreme Court's decisions were not only unreasonable but a clear departure from the statutory scheme and (3) that this departure gave strong support to the concurring justices' conclusion that the recount procedures that were ordered violated Article II, Section 1 of the Constitution.
They make two particularly interesting arguments. First, they note that Tribe essentially concedes all the key points of federal law -- i.e., that a sufficiently arbitrary or extreme departure from state law or from equal treatment of voters could justify overturning a recount under both the Equal Protection Clause and Article II -- and thus that his quarrel with the Court is really about Florida law and the facts of the case. This, alone, shifts the ground of the dispute away from the idea that the Court bent or twisted constitutional law, and onto the ground where the Court's critics are on their weakest ground, which is in trying to defend the Florida Supreme Court and the Gore camp's absurdly biased legal strategy. They particularly note the utter lack of justification for the Florida Supremes in counting only a partial recount of Miami-Dade County that tilted to the county's most heavily Democratic precincts.
Second, they note that the Florida Supreme Court was completely unjustified in disregarding the clear statutory mandate of deference to Florida Secretary of State Katherine Harris' reading of the election laws, which the Court's critics have apparently elided by looking solely at the recount provisions of the Florida election code and ignoring that the Secretary of State was given authority to interpret the entire election code. This is not the kind of mistake that experienced law professors should make, at least not if they're being intellectually honest.
The authors clearly sympathize more with the Article II argument, and the more I read about the issue, the more I agree with them.
A few of the federal law questions are not addressed by the authors, such as Bush's standing to intervene and raise the Equal Protection challenge, which after all involved not his rights but the rights of the voters (on the other hand, if anyone had standing to raise the Article II issue it would have to be the candidate or possibly the electors). I'd also be interested to see a discussion of whether the political question doctrine would ever justify a federal court in vacating the state court remedy rather than deciding that a political question unsuitable for court decision must therefore be resolved by the state courts.
March 10, 2003
LAW: How Justice Scalia Really Feels
Justice Scalia, on his decisions striking down anti-flag-burning laws under the First Amendment: "Just between you and me, I don't like scruffy, sandal-wearing, bearded people who go around burning the United States flag, and if it were up to me, I would ban it." (Link via Antioch Road).
March 04, 2003
LAW: Diarmuid O'Scannlain
Howard Bashman has 20 questions with Ninth Circuit judge Diarmuid O'Scannlain. Key quote, on the metastatic growth of the Ninth Circuit and its docket: "we are losing the ability to keep track of our own precedents."
POLITICS/LAW: Eenie Meenie
Kathleen Parker on a lawsuit claiming that "eenie meenie miene mo" is an irretrievably racist phrase giving rise to liability for damages. She's not kidding, unfortunately.
March 01, 2003
POLITICS/LAW: That Depends What The Meaning of 'Impartial' Is
I think I'd have to agree that, especially if I'm a prosecutor, I wouldn't want Bill Clinton on a jury.
February 28, 2003
POLITICS/LAW: Dahlia Lithwick on Affirmative Action Jujitsu
Slate's Dahlia Lithwick, a supporter of affirmative action, on why the debate over the Miguel Estrada nomination, particularly the debate among Latino groups, is yet another example of Bush destroying his political adversaries by doing exactly what they ask for:
This, then, is what the discussion has come to: a battle about who is Hispanic enough to warrant the racial preferences that most Americans oppose in the first place. What the Hispanic groups on both sides don't seem to understand is that, with all this infighting, they are managing to dismantle every single argument for affirmative action and making the case that race should play no role at all in public life.
* * *
[The attitude of Estrada's supporters who argue for him on the basis of his race regardless of his views] reflects several justifications for affirmative action: Break down racial barriers, remedy past discrimination, and create minority role models. All these arguments decline to look past skin color in the interest of getting the bodies onto the bench. But this argument has boomeranged badly in the past, not only because the Clarence Thomases have simply not been better for blacks than the David Souters, but because this kind of single-minded race-consciousness can only denigrate the minority in question. By ending the discussion at skin color, it sets up the implication that minorities succeed only because of preferences, that they couldn't have achieved such successes on their own merits. Could Miguel Estrada or any other minority candidate really sleep at night knowing that half his supporters would support a Honduran Hannibal Lecter as readily as they support him?
* * *
[The argument of opponents who say that Estrada is not a 'real' Hispanic because he is a conservative] decimates the only other justification for affirmative action (and the only one that now counts as a matter of law)—the argument that racial preferences automatically generate "diversity" of experience. To his detractors, Estrada's principal failing is that his privileged upbringing in Honduras and beyond were too "white" somehow—too Columbia and Harvard Law and Gibson, Dunn, and Crutcher. He was not born in squalor, nor did he rise from the barrio. As a result, he does not represent the "Latino experience." By making this argument, Estrada's detractors are merely proving that race is indeed not a proxy for diversity—and that if you really want to guarantee diversity of experience, favoring minority candidates over poor or rural ones is the absolute wrong way to go.
Meanwhile, another racially charged issue that I continue to follow, the Washington Times points to some anecdotal evidence that Southern African-American voters may not be willing to embrace Joe Lieberman, because Lieberman is Jewish, has questioned affirmative action, is a longtime member of the DLC and has said nice things about Strom Thurmond. Quote from Al Sharpton: "They don't call themselves the Dixiecrats now; they call themselves the DLC." I've said all along that, contrary to the media's popular wisdom, the people most likely to hold Lieberman's Judaism against him are Sharpton and his African-American supporters, not conservative white Southern Protestants. The interesting question is whether Sharptonism and its fellow-traveler, anti-Semitism, will sell in the South as well as it sells in urban areas in the Northeast and the West Coast; the WaTimes points to bitterness over Cynthia McKinney's ouster, but remember that it was her own African-American constituents who dumped McKinney, and the same for Earl Hilliard. The counter-argument also focuses on the resovoir of good will for Lieberman having gone to Mississippi as a young 'Freedom Rider' in the Sixties, when it was legitimately dangerous to do so. I'm still not sure how it will all shake out, but without a real regional base, Lieberman will need to do well among African-American voters in the South if he wants the nomination.
February 22, 2003
LAW: Injustice Douglas
From reading his opinions on matters I'm familiar with, I've long suspected that Justice William O. Douglas was a sloppy, careless, agenda-driven judge. To give an obvious example about which I've written at more length in an article in the Securities Regulation Law Journal ("The 'In Connection With' Requirement of Rule 10b-5 as an Expectation Standard," 26 Sec. Reg. L.J. 1), Douglas authored a unanimous opinion for the Court in Superintendant of Insurance of New York v. Bankers Life & Cas. Co., 404 U.S. 6 (1971), the first Supreme Court case to recognize the implied private right of action under section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder. Naturally, the opinion -- a brusque 7-0 opinion (the Court was short-handed) delivered less than a month after the case was argued -- gives no analysis to support the existence of such an implied right of action, but that's not the problem. The problem is that the Court found that the alleged fraud in the case was properly considered to be fraud "in connection with the purchase or sale of any security" within the meaning of the statute, on the theory that the Board of Directors of the Manhattan Casualty Company was deceived into selling $5 million worth of Treasury bonds in exchange for a certificate of deposit based upon the representation that the CD was worth $5 million, when in fact it was worthless. See id. at 8-10 & n.1. If this were true, the case would be rather uncomplicated, which is how the Court treated it -- but the Second Circuit Court of Appeals had rejected precisely the same theory below on the grounds that it was neither alleged in the complaint nor supported by any record evidence adduced after six years of discovery. See Superintendant of Insurance of New York v. Bankers Life & Cas. Co., 430 F.2d 357, 360 & n.3 (2d Cir. 1970), rev'd, 404 U.S. 6 (1971).
Seventh Circuit Chief Judge Richard Posner thinks the same about Justice Douglas as a judge, and more, in his review of a new book that sheds light on Douglas as:
one of the most unwholesome figures in modern American political history, a field with many contenders. . . a liar to rival Baron Munchausen . . . Apart from being a flagrant liar, Douglas was a compulsive womanizer, a heavy drinker, a terrible husband to each of his four wives, a terrible father to his two children, and a bored, distracted, uncollegial, irresponsible, and at times unethical Supreme Court justice who regularly left the Court for his summer vacation weeks before the term ended. Rude, ice-cold, hot-tempered, ungrateful, foul-mouthed, self-absorbed, and devoured by ambition, he was also financially reckless--at once a big spender, a tightwad, and a sponge--who, while he was serving as a justice, received a substantial salary from a foundation established and controlled by a shady Las Vegas businessman.
Posner also thinks Douglas would have been a good president, which probably says more about Posner's view of elective officials . . .
February 20, 2003
LAW/POLITICS: Who Speaks For Michigan?
February 11, 2003
LAW: Supreme Potential
MSNBC takes a closer look at California Supreme Court justice Janice Rogers Brown, one of Bush's possible Supreme Court picks.
POLITICS/LAW: Race at Princeton
This story, about Princeton University cancelling a summer program for minority students over concerns that it might be illegal, actually disturbed me; I know the program is a benefit of sorts and its admission criteria are race-conscious, but this type of outreach falls on the side of the affirmative action line that we ought to be encouraging. (Either that, or this is the university equivalent of the 'Washington Monument strategy' - Princeton is trying to suggest that a ruling against the University of Michigan will kill all programs of this nature, which is just not so).
February 06, 2003
Turns out that Justice William Douglas' World War I record was a fraud.
February 03, 2003
LAW: Tough Bagels
Howard Bashman on a lawsuit against McDonald's over a "tough" bagel: "So let's get this straight -- many have recently sued McDonald's because its food has allegedly caused them to become obese. And now McDonald's is being sued because its food is allegedly inedible. The company simply can't win, it seems."
LAW: More Brobeck
Slate had more Friday on the demise of Brobeck. Brobeck took a lot of chances, many of them unwise, in breaking out of the conservative mold of traditional law firm management. It will be some time -- or at least, until the next big boom -- before that model is seriously questioned again.
POLITICS/LAW: Boddie on Preferences
On Thursday, Slate ran a piece by Elise Boddie, a former Harvard Law classmate of mine, attacking President Bush's position on affirmative action. There are a few decent points here, but also several crucial fallacies. Let's walk through:
Bush still professes to favor racial diversity, but he opposes the use of race to create it. Sort of like saying that you like meatloaf but prefer preparing it without hamburger.
This does capture the mealy-mouthed nature of Bush's support for racial "diversity" as a permissible goal of a taxpayer-supported insitutions.
Bush claims there is another way, under his "colorblind" "affirmative access" proposal. This refers to the law adopted by Texas in the aftermath of the 1996 court ruling in Hopwood v. Texas abolishing race-conscious admissions at the University of Texas. Similar versions have been enacted by California and Florida. The Texas law mandates the admission to university of all high-school seniors graduating in the top 10 percent of their class; California and Florida give a boost to the top 4 percent and 20 percent, respectively.
Many commentators have already pointed out the glaring problems with these percentage plans—not the least of which is that their success in creating racially diverse student bodies at the college level depends in significant part on the continued racial segregation of the state's high schools. They also don't affect admissions in private universities or in graduate or professional schools; and, in California, there is no guarantee of admission to the state's flagship institutions. There is some indication that minority first-year admissions at Texas universities have increased under the percentage plan, following the post-Hopwood plunge. But such admissions have yet to reach the heights achieved in the years prior to Hopwood, and at least some of the increase is due to a rising college-age black and Latino population in Texas.
First of all, arguments that assume that the sole end goal of admissions policies should be to increase the proportion of students "of color" -- on a zero-sum basis -- are deeply problematic. Boddie then goes on to say that preferences aren't so bad because the number of white students who lose out isn't that high, although, presumably, it would rise in the near future "due to a rising college-age black and Latino population" in places like Texas.
Second, to object to the public university plans on the grounds that they assume large racial disproportion in high schools . . . well, yes. Racial disproportion -- segregation, if you want to call it that, although it's principally caused by housing patterns - is precisely what supports the argument that there's any need for affirmative action in the 21st century at all. African-American students who attend top high schools are hardly the oppressed and downtrodden in need of a hand, after all. The "percentage plans" are a Band-Aid aimed directly at the problem of students trapped in bad schools, and are designed to ensure that the best students from those schools get preferential treatment. It's still open to fair question whether this is in their best interests -- whether some students are getting promoted beyond what they've been academically prepared for -- but it's at least a solution that's designed to be proportionate to the problem.
[W]hile most of the public scrutiny concerning affirmative action has been on the qualifications of African-American and Latino students admitted to Michigan, it is scarcely mentioned that other white students are also admitted with SAT scores or GPAs lower than those of the plaintiffs (and lower than those of rejected minority applicants). Nor is much attention paid to the other racialized dimensions of Michigan's admissions policy that favor whites. The preference given to the children of alumni (including, incidentally, Patrick Hamacher, one of the plaintiffs challenging Michigan) disproportionately benefits whites, as does the enhancement given for candidates from Michigan's predominantly white Upper Peninsula, and the points awarded based on the quality of the candidate's high school and curriculum.
Well, the Upper Peninsula plan seems to be basically another form of the percentage plans, and it's presumably driven by in-state politics, which is a hazard of any public university. I would tend to agree that alumni preferences should be eliminated in public universities, however; they don't serve any academic purpose and they do institutionalize the past racial and other makeup of the student body. The main justification for such preferences in private colleges -- and I'm somewhat skeptical there as well -- is that alumni preferences help build loyalties that are essential to fundraising. Even if you buy that argument, it loses support when the college is financed by the state.
Opponents of affirmative action have spent the past two weeks repeating what seems to be their main, patronizing argument: that race-neutral admissions are better for racial minorities because affirmative action stigmatizes its beneficiaries as inferior (while at the same time denying their own agency in perpetuating such stereotypes). But the "stigma" is one-sided. It isn't applied to legacy admits; and it isn't applied to white Anglo Saxon Protestant men admitted to universities before the 1970s. Until affirmative action kicked in, these groups had a virtual lock on admissions at selective institutions because white women, blacks, Asians, and Latinos were either excluded from selective institutions altogether or were admitted in token numbers. Yet one never hears that this de facto affirmative action has "stigmatized" white males.
A funny thing about this argument is that it ignores the scorn usually heaped on George W. Bush for being a guy who would never have gotten into Yale without alumni preferences (see this Michael Kinsley article for a sample); conservatives tend to hurl the same stuff at Ted Kennedy. Of course, it may be unfair, but the main reason the stigma isn't more prominent is that you can't tell someone is a child of alumni just by looking at them. Still, I think most people knew some people in college who were clearly there just because their parents got them in. Also, go to any Ivy League campus and try to talk up a classical education in the Western canon and tell me there's no stigma attached to the writers for being dead white males . . .
In any event, this is a classic example of the false dichotomy set up by proponents of preferences -- between rich old-money WASPs and poor African-Americans. Meanwhile, your typical middle-class/working-class white kids, whose parents and grandparents got shut out of the old order, get told "meet the new privileges, same as the old privileges." And Jews and Asians need not apply.
Studies repeatedly document the continued pervasiveness of discrimination in housing, employment, health care, and in the criminal justice system, and the persistence of racial segregation in elementary and secondary education. President Bush and others who oppose affirmative action may well preach "colorblindness," but really they are just willfully blind to the continuing relevance of race.
Well, so make the case that "the continuing relevance of race" in those other areas is a bad thing - don't celebrate it as an excuse to give upper-middle-class African-American kids a leg up in admission to elite colleges.
January 31, 2003
LAW: Mighty Brobeck Has Struck Out
Mighty Brobeck has struck out. I guess innovations like taking payment in the stocks of internet companies didn't turn out to be much of a financial plan. A friend who used to work there emailed me the poem "Ozymandias" ("'My name is Ozymandias, king of kings: Look on my works, ye Mighty, and despair!' Nothing beside remains."). An appropriate sentiment.
January 15, 2003
LAW: Brief of the Day
President Bush has asked administration lawyers to present him with a brief arguing that the University of Michigan's programs for using race in admission decisions go too far, officials said today. The officials said Mr. Bush was prepared to have the government file the papers with the Supreme Court on Thursday, a move that would inject the administration into one of the largest affirmative action cases in a generation. But the White House said Mr. Bush had not yet given the final approval to move ahead. And it was unclear how sweeping a stand the administration would take on the fundamental question of whether race may ever be used as a factor in higher-education admissions decisions.
Leaving aside for the moment the politics of the issue, what I find hilarious is the suggestion that Bush decides, on Tuesday, that he wants the Solicitor General's office to prepare a Supreme Court brief on a constitutional issue of colossal importance. As if legal briefs of this nature grow on trees, rather than being wrung in blood from a staff of lawyers over a period of weeks or months (yes, I've written briefs in a day, but not for an appellate court and certainly not on an issue that I expect the U.S. Supreme Court to settle for all time). The article later says that "[o]fficials have been wrestling over the wording of the brief," which hints at reality. The truth is that the bulk of the brief needs to have been written by now, unless they've actually gone to the extraordinary, although I'm sure not unprecedented, step of writing more than one version of the brief.
December 30, 2002
LAW: A Jackass By Any Other Name
A gentleman by the name of Jack Ass is suing over harm to his reputation from the movie "Jackass." I kid you not - read his affidavit (the best part may be the request for $10 million in damages). (Link via Howard Bashman)
December 16, 2002
LAW: Over The Line
Regardless of who you believe in this particular dispute, it's heartening to note that, in the law, there can be consequences to overheated rhetoric. It's one reason why I love my job: few things are more fun than using your adversary's own words to hang them.
December 13, 2002
POLITICS/LAW: The Lott Fallout
The National Review Online continues its saturation coverage of the Trent Lott story with a blaringly headlined editorial calling on Lott to resign as Republican Senate leader, and noting that NR had called for Lott's head four years ago. The succinct statement of Lott's moral culpability:
Minority leader Tom Daschle's initial reaction . . . to Lott's remarks was essentially sound — Lott misspoke. But Lott misspoke in a particular way, one freighted with symbolic significance. Many southern whites of a certain generation have a shameful past on civil-rights issues. This doesn't necessarily make them reprehensible people, or mean that they are racists today. But, when they are public figures, it is reasonable to expect from them an honest reckoning with their past, and, of course, an awareness that a reckoning is necessary.
This is basically the same point the Supreme Court seemed to be leaning towards making in the cross-burning arguments this week: sometimes, words and symbols have a history, and you invoke that history at your peril. That's why being a Nazi is merely scorned in the United States, but illegal in Germany.
The Wall Street Journal also essentially asks Lott to step down. It's not entirely accurate, as the Journal suggests, to say that conservatives led the charge against Lott's remarks, but certainly many more conservatives outside of politics piled on the issue early than did liberals in journalism or the other usual sites of outrage. The Journal also strangely suggests that John Kerry has been the most vocal of the Democrats' presidential hopefuls on this, which he hasn't; to his credit, albeit with his usual smarmy overstatement, Al Gore was 'fustest with the mostest' in this fight. Peggy Noonan also has a wonderful column accusing Lott of playing the race card and telling him to go; it's worth reading in its entirety.
On the legal front, I have to think the number one casualty of the Lott brouhaha is Charles Pickering. George W. Bush has suggested that some of the judicial nominees killed in committee - namely, Priscilla Owen, the Fifth Circuit nominee who became a key issue in the Texas Senate campaign - would be revived, and with Pickering's son elected to the House from Mississippi and Lott stepping back up as majority leader, it seemed like Pickering would be back too. But Pickering is a white Mississippian, he was charged with racial 'insensitivity,' he was basically sponsored by Lott, and in the current circumstances, that combination will almost certainly make him too hot to handle. It's unfair to him, but that's the way it goes; at least he's still got that life tenure as a US District Judge.
December 12, 2002
LAW: Thus Sayeth Justice Thomas
Here's advice I'm not good at following: when you speak infrequently, your words carry more weight. This account of yesterday;s oral argument in the Supreme Court on the constitutionality of a law banning cross-burning suggests that rare comments by Justice Clarence Thomas at oral argument - castigating the Justice Department for taking too narrow a position in defending the law rather than making explicit the unique symbolism of cross-burning as a trigger to terrorism against African-Americans - made a deep impact on the tenor of the entire argument. (Link via How Appealing).
UPDATE: Slate Court-watcher Dahlia Lithwick has the definitive, and sidesplittingly funny, account of this case; she notes that "Some of the alleged cross-burners in this case were either too drunk, racist, or stupid to actually set a wooden cross on fire, even with the help of lighter fluid." And this:
Out of nowhere booms the great, surprising "Luke-I-am-your-father" voice of He Who Never Speaks. Justice Clarence Thomas suddenly asks a question and everyone's head pops up and starts looking madly around, like the Muppets on Veterinarian Hospital. "Aren't you understating the effects ... of 100 years of lynching?" he booms. "This was a reign of terror, and the cross was a sign of that. ... It is unlike any symbol in our society. It was intended to cause fear, terrorize."
POLITICS/LAW: Just What Bush Needs
Questions about his new pick for SEC chairman. Of course, virtually anybody who's been a corporate CEO has been named in a class-action lawsuit, and believe you me, the fact that such a lawsuit is filed - by itself - is absolutely no reason to believe that there has been wrongdoing. I didn't have a high opinion of securities class actions when I was in law school, but after practicing in this area for more than six years, I've often been shocked at how little merit is behind many claims.
Of course, pointed questions about the issue are perfectly fair game; we don't need any unpleasant surprises. And I'm not, myself, familiar with the lawsuit in question. But the favorable quote from Chuck Schumer in this story seems to support the idea that Donaldson is not really in any trouble at this point.
December 04, 2002
LAW: An Outsider's Beliefs
In a decision that may provide unintended benefits to religious people asserting their rights, the Ninth Circuit declines to dismiss the Pledge of Allegiance case on standing grounds. After the initial decision in the case holding the Pledge of Allegiance to be an unconstitutional establishment of religion (due to the phrase "under God"), the mother of the schoolgirl in the case got a custody order specifying that the dad, who was the force behind the lawsuit, did not have custody. He then dropped his claim to bring suit on behalf of the girl and sued instead as a parent, arguing that he had a personal right to sue as a parent. Let's pick up the Ninth Circuit's reasoning:
Newdow . . . can expect to be free from the government's endorsing a particular view of religion and unconstitutionally indoctrinating his young daughter on a daily basis in that official view. The pledge to a nation "under God," with its imprimatur of governmental sanction, provides the message to Newdow's young daughter not only that non-believers, or believers in non-Judeo-Christian religions, are outsiders, but more specifically that her father's beliefs are those of an outsider, and necessarily inferior to what she is exposed to in the classroom.
(Thanks to the prolific Howard Bashman for noting the decision).
This is a powerful argument that the judges may not have entirely thought through, because it implies a direct parental right not to have doctrines taught in school that contradict one's theology. The creationists will just loooove this language.
(Leave aside for now the PC hooey in the reference to "non-Judeo-Christian religions," which may be intended to exclude from the annals of the oppressors here a certain other prominent monotheist religion of arguably Judeo-Christian origin).
LAW: "[L]aid-back jurisprudence of a morphing Constitution"
Stuart Buck has a great post on Laurence Tribe and his momentary disdain a few years back for a "laid-back jurisprudence of a morphing Constitution." On the broader point raised on the Volokh site, about people's constitutional theories hewing to their policy preferences, I think that's true up to a point, and it's most true where the constitution is most ambiguous. But there are neutral principles, there is a historical record; the document is not just an ink blot.
A friend at his law firm sends along this Boston Globe obituary for Richard Testa, founder of Testa Hurwitz & Thibeault, who died in his sleep yesterday at age 63.
December 03, 2002
LAW: Harvard Leaving Harvard Square?
This Boston Globe column has some amusing stuff about BC law profs with their knickers in a twist over the Solomon Amendment, but also some serious business - the possible move of Harvard Law School away from its historic site and Harvard Square to a location in Allston. For the record, I'm very much against this.
LAW: Clifford Chance Damage Control
Clifford Chance does some damage control in this substance-free New York Law Journal puff piece.
November 27, 2002
LAW/POP CULTURE: The Christmas Party
Slate's Dear Prudence advice column tells a guy to break up with his girlfriend rather than let her go to an office Christmas party at her law firm where spouses and 'significant others' are not invited. Leave aside the general asininity of this advice, although it may be harmless; the fact that the guy has written to an internet advice columnist to say he doesn't trust his girlfriend suggests that this particular relationship is doomed anyway. But consider Prudence's first reaction: "Office Christmas parties are famous occasions for drunken women lurching at the boss ... or the other way around." Am I naive, or is this a totally outdated stereotype? I mean, my law firm has an annual Christmas party, and people are generally too uptight about the possibility of making fools of themselves to dance, for crying out loud. I mean, not that extramarital affairs and the like don't happen in the business world, but I really can't see the office Christmas party as a major culprit in that kind of thing, especially at a party full of lawyers in these days of hair-trigger sexual harassment litigation. Get a grip!
November 25, 2002
LAW: Rehnquist Falls
The urgency of the scenarios outlined in Stuart Taylor's much-discussed article handicapping the next Supreme Court vacancy are underlined as Chief Justice Rehnquist slips and falls at his home.
LAW: To Take The Case?
BIG decisions on deck at tomorrow's conference about what cases the Supreme Court will take, including the Michigan affirmative action case (which presents squarely the issue of whether schools can use "diversity" as code for racial preferences) and a challenge to the 1986 decision finding no constitutional obstacle to sodomy laws (a debatable decision, but expect much enthusiasm for re-visiting this issue from corners of the profession that swooned with ecstasy over the 1992 decision that held that Roe v. Wade had been on the books too long to be reconsidered). The Court's decisions on whether to take the cases may be available as early as December 2.
November 21, 2002
LAW: The Poverty Line
It just doesn't get more "only in America" than a lawsuit against a restaurant filed by someone who got fat . . . while living in a homeless shelter.
November 19, 2002
WAR/LAW: Ivy League Follies
I guess it's Ivy League Day here . . . if you went to Yale, OxBlog has links and info on how to sign a petition opposing a petition calling for divestment of the university's interests in the State of Israel (I signed the Harvard anti-divestment petition myself some months back). Meanwhile, Stuart Buck, Instapundit, Eugene Volokh, and Howard Bashman all have links and commentary on the Harvard Law School race-speech controversy, including a battle between Dershowitz and proponents of a speech code.
LAW: The Forum
A Bahamas-flagged oil tanker captained by a Greek skipper sinks off the coast of Spain, prompting criticism of Britain and Latvia.
Why do I have the sneaking suspicion that all of this will wind up in court here in New York?
LAW: Nesson and Rosenberg
Either things have changed quite a lot since I graduated in 1996, or Dorothy Rabinowitz is entirely overwrought in her conclusion that "At Harvard Law today, skill in hard combative argument is no longer prized, nor even considered quite respectable. Indeed, first-year law students can hardly fail to notice the pall of official disapproval now settled over everything smacking of conflict and argument." True, with the death of Philip Areeda, HLS is down to just one agressive practitioner of the Socratic method (Arthur Miller), and the school no longer flunks a lot of students. But I'd invite her to attend one of Alan Dershowitz's classes, or any Con Law section, if she thinks that argument and intellectual combat have given way to holding hands and singing 'Kumbaya.'
The real, and more substantial charge in her article is that the administration caved in too easily to demands from the Black Law Students Association for punishments for Professors Charles Nesson and David Rosenberg for alleged racial insensitivity. Now, you have to get the background here. Nesson is a strange, strange man (some of you may remember his protrayal as 'Billion-Dollar Charlie' in the book A Civil Action, or as one of the moderators of Fred Friendly's 'Ethics' series on CBS in the 1980s, which brought together congresspersons, network anchors, priests, generals and judges to discuss difficult hypothetical questions of ethics), who has spoken publicly about his drug use and generally worked hard to be seen as an eccentric who's not afraid to force people to look at things from different directions. Indeed, Nesson's favorite illustration in his Evidence casebook is the 'Necker cube," the box of lines that seems to change directions depending how you look at it. I personally didn't find his "Introduction to Lawyering" class exceptionally useful, but he did give us some real-world examples of things like obstructive conduct in the defense of depositions that are rarely seen in the law school environment but all too often displayed in the real legal profession. Nesson's attempt to put the user of a racial slur on trial, with himself as defense counsel, is of a piece with this; maybe (as Dershowitz did when my Criminal Law class discussed rape), he should have warned people that if they'd be too upset to listen to this discussion, they should leave the room and come back in a few days (then again, now that I think of it, Dershowitz also devoted a third of the final exam to rape shield law, so maybe that's a bad example). But it's really sad if law students think that some things are so upsetting they can not even be put on trial and opened to debate.
As for the other accused professor, I suppose some people just don't like Professor Rosenberg. I had Rosenberg for first-year torts, and he presented himself as an outsized caricature of the politically incorrect professor. He threw a casebook at the wall the first day of class and argued that most of the 'law' of torts was useless and meaningless in the real world; when anyone would get too far into actual doctrine he would snap, "when you graduate you can hire people from Yale to make dumb arguments like that." He claimed to hand out grades via a roulette wheel in his office. He also made an obviously tongue-in-cheek show of being politically incorrect, like claiming to enjoy clubbing baby seals for sport. One guy in my torts class did nothing but take down funny sayings of Rosenberg (and he got an A+, so who am I to argue?). Anyway, taking a stray remark from David Rosenberg as the cause for theatrical outrage seems to be an obvious case of a complete failure of the irony detector.
It's been a tough year for Dean Clark, who may have felt pressure to throw a bone to perennially dissatisfied campus Leftists after the Solomon Amendment compelled him to go back on HLS' policy of discriminating against military recruiters. Law students are never a happy bunch; we used to joke about the fact that the business students all cheer their dean at graduation, while law students are always in the middle of some mass protest. And giving people permission to cut class is no great revolution; some people don't go to class at all, ever, anyway (some of the school's urban legends suggest that Nesson was one of these in his student days). I can't necessarily fault Dean Clark for letting Nesson step down voluntarily, since Nesson has come under disciplinary scrutiny before, and his voluntary withdrawal may actually serve as a bit of a lesson here itself.
In other words, I don't entirely fault the administration here; far harsher measures were available, and I'm sure the BLSA is deeply dissatisfied with the response anyway. Nor do I suspect that open and contentious debate generally is endangered at HLS; the more likely result is simply that debate on race is stifled. But even that seems overstated; you can still take a class on race relations with Randall Kennedy, who's just written an entire book on the N-word. Another tempest in a teapot, but life will go on.
November 13, 2002
The perfect Christmas gift for the litigator on your list!
November 07, 2002
WAR/LAW: Closer than a blade!!!
Closer than a blade!!! Of course, one moral of this story may be, if you find a mechanical or electronic device in a McDonald's bathroom, don't bring it home and plug it in.
November 05, 2002
POLITICS/LAW/BUSINESS: Pitt Resigns
Slipping his resignation letter over the transom on a busy news day: people I work with know and respect Harvey Pitt, and everyone seems to agree that he deserved better than this.
Posted by Baseball Crank at 11:08 PM | Business | Law | Politics 2002-03 | Comments (0) | TrackBack (0)
November 04, 2002
Howard Bashman on a very unusual Eighth Circuit opinion in which the en banc court defends itself against an implicit charge of racism made by the district judge.
LAW: Idiot Box 1, Devil's Workshop 0
The Second Circuit vacates a sentence that barred the defendant from watching TV while under home confinement, rejecting the District Court's conclusion that the defendant should be forced to spend some time with himself:
"[L]acking [in the record] is a sufficient relationship between the television restriction and the abatement of Bello's criminality. Even if contemplation is deemed somehow more beneficial for this defendant than for most others (for reasons not clear from the record), we are inclined to agree with Bello that because other amusements are available to him at home, there is no reason to assume that in the absence of televised entertainment he will tend to his conscience. Bello cites radio and the Internet as ways he might spend his time at home without resort to silent introspection. He could add crosswords and jigsaw puzzles, not to mention light reading. For all the record shows or the district court has found, Bello is as likely to occupy his mind by planning his next crime as anything else"
October 31, 2002
BASKETBALL/LAW: Jayson Williams in Hot Water
I haven't been following the story that closely, but this certainly puts the case against Jayson Williams in a different light.
POP CULTURE/LAW: Girls Club
The Washington Post with a good roundup of the faults and bad reviews of the late, unlamented 'girls club'. All I saw were the ads and reviews - from the ratings, I gather I was not alone in this - but among the show's numerous flaws were its Lifetime-network-ish assumption that nothing in the least has changed in the way women lawyers are treated at work (in San Francisco, no less) since the Fifties, and its equally absurd presumption that a successful law firm would be sending first-year associates out, without training, no less, to do things like the opening statement of a murder trial. What planet did David E. Kelley practice law on?
October 30, 2002
LAW: OH, THE HUMANITY!
Dahlia Lithwick of Slate captures some of the ironies of the now-infamous Clifford Chance memo. (The New York Law Journal also captures the real bad news in the memo, from the perspective of big-law-firm managing partners). Of course, Lithwick herself is not innocent of griping about (spare us!) the tedium of being an internet legal pundit, where one never has to set foot in a courtroom with fewer than nine judges in it. (Any litigator who follows the Supreme Court could have told her that the real drama of First Monday in October is the cert granted/cert denied lists).
October 29, 2002
LAW: A Word In Favor Of The Billable Hour
The NY Times calls out the usual parade of horribles to denounce the billable hour. I'm no fan of the billable hour, to be sure, but critics invariably lose most of their steam once they try to come up with a workable alternative. Clients pay the bills, and for large law firms engaged in defending civil litigation or in many types of corporate transactions, clients have generally preferred to have the bills determined on the basis of hourly rates. In areas like bankruptcy, it's the courts themselves that often determine the bills, and they do it by the hour. There are intermiediate steps that can be taken to help clients keep a watchful eye, like the ABA's task-based billing codes that some clients prefer. None of this excuses the egregious cases of fraud, like people billing 44 hour days, but at the end of the day, as long as clients are reviewing the bills and are happy with what they are paying for what they are getting in return, the billable hour system will endure.
October 28, 2002
WAR/LAW: American Lawyer Killed In Bali; CCRW Memo
An American-born lawyer - a former Nebraska football player working in Hong Kong for the international firm of Clifford Chance (formerly Clifford Chance Rogers & Wells) - is among those confirmed dead in the bombing in Bali. He was reportedly planning to leave the globe-trotting law business for a job back home with his family in Kansas.
Turning to something completely different, but also on the subject of Clifford Chance . . . well, as a big-firm associate at one of the firm's sometime competitors, I'll just pass on without further comment the link to this New York Law Journal story as a sample of the blizzard of bad press coming from the leaking of this internal memo by associates unhappy with the firm's billable hour targets and a host of other issues.
October 25, 2002
LAW: Goldberg on the Media's Rush
Jonah Goldberg has the goods on the media's jump to conclusions about the sniper(s). Instapundit also links to blogger Rand Simberg, with a similar but more pointed observation: that the media was dying to "paint Republicans as bigoted enablers of right-wing violence . . . two weeks before a mid-term election."
On a lighter note, Wednesday night I was flipping channels with the sound down, and saw on FOXNews the bizarre headline "BREAKING NEWS: A Tree Stump Was Removed And Loaded Into A Truck."
The scary thing is, I knew what they were talking about.
October 24, 2002
My older brother had the best line when they arrested Mr. Muhammad and his stepson: "I guess that guy who took his son out to beat up the first base coach at Comiskey Park is out of the running for 'Father of the Year'."
On a related note, Howard Bashman asks how the arrest of the 17-year-old stepson will affect the debate over the constitutionality of the death penalty for minors.
LAW: Fantasy Court-Watching
My younger brother sends this link: a fantasy league to track Supreme Court decisions! Nerdvana! Where do I sign up?
WAR/LAW: WHAT'S THE DIFFERENCE BETWEEN WAR AND CRIME?
Lileks with characteristically acid scorn for the usual suspects:
"If it is Islamic terrorism, it will be delightful to watch the root-causers explain this one. They could get away with writing off 9/11 as karmic justice, because it was so large, so theatrical, so massively calamitous that it instantly took on symbolic meaning. And symbols are always up for grabs. But shooting a dozen people at random is something the mind grasps and understands at once . . . everyone has stood in the open pumping gas, watching the numbers race, hoping we can hold it under twenty bucks, waving to the kid strapped in the backseat, wondering when the gas station started playing oldies through the loudspeaker - jesus, “My Eyes Adored You?” Haven’t heard that one in -
This even the stupidest root-causer gets. But I doubt they’ll admit it. They’ll have to draw a direct link between American foreign policy and some poor guy getting his head opened up at a 7-11. It will require meta-meta-meta thinking so elaborate, so vaporous, so consumed with the sins of the West that they’ll look like someone pissing off the parapets of the tallest building in Cloud-Cuckoo Land.
I think they’re up to the job."
October 23, 2002
POLITICS/LAW: Gun Fingerprints
Dave Kopel & Paul Blackman, writing on NRO, argue that the proposal for gun barrel 'fingerprinting,' which has gained some cache from the DC sniper case, is impractical and dangerous. Their arguments are worth considering at some length for what they do and don't prove.
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Starting first with the latter argument, Kopel & Blackman contend that (1) fingerprinting in advance, as opposed to after an arrest is made, will only be useful if accompanied by universal gun registration (since otherwise you can ID the gun after the fact but you can't trace it), which is largely true; (2) gun registration is dangerous to gun rights and politically impossible because many gun control proponents see it as a first step to seizures and it would make seizure more feasible. I don't buy this. People register their land, their cars, and their children with the government without fear of seizure. The motives of some extremists, which they seek to prove with a 25-year-old quotation, are irrelevant: confiscation is truly politically impossible as well as unconstitutional under the Second, Fifth and Fourteenth Amendments (guns are property, too, after all). Moreover, leaving aside for the moment the source of any federal authority to register all guns, a federal registration requirement could be drafted by Congress in a way that would effectively commit the federal government - above and beyond the Fifth Amendment -- to pay money damages to all registered gun owners if their guns were outlawed. The added guarantee of fiscal apocalypse would provide additional reason for gun owners to see that regulation would not lead to confiscation.
(I leave out the question of federal authority because the same could be done by state governments as well. One way to implement such a proposal would be for the feds to require 'fingerprinting' of guns manufactured for interstate shipment and a record of who the gun was sold to, which is not so far from current law and which would have the additional benefit of aiding in the tracking of how legally manufactured guns get sold illegally; the states could be left to choose whether to take the follow-up step of then also registering the owner himself).
Kopel and Blackman also, however, present an impressive battery of arguments, most of which I'm not really qualified to evaluate, as to why ballistic fingerprinting is limited in its usefulness. Some of these points are underwhelming -- the fact that such a system won't catch ALL gun crimes is not really an answer, as long as it would catch enough to justify the expense -- but the overall picture of a system that would be expensive and cumbersome without providing a whole lot of bang for the buck is a serious charge, and one to which policymakers have to give real consideration.
As I've said before, I don't buy into the ideology of gun ownership as being necessarily protected by unique privacy interests or immune to reasonable regulations, particularly when those regulations ensure that any organizable militia is "well-regulated" by the State, and I don't see this type of regulation as a threat to the Second Amendment right to bear arms. But, as with any government regulation, cost-benefit analysis has to be applied before we turn the heated rhetoric of a particular election-season crisis into a permanent bureaucratic program.
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LAW: Sniper Sketch
A sketch artist touches up the latest composite of the DC sniper.
October 22, 2002
LAW/POLITICS: McConnell's Cred
Mickey Kaus has been trumpeting Michael McConnell's trashing of Bush v. Gore on Slate, but don't forget to check out his later piece on OpinionJournal on the same subject.
October 21, 2002
LAW/WAR: Is Jihad Speech?
On the other hand, Justice Stephens issues a wise note of caution about how the First Amendment may have its limits when "speech" involves the long-range planning of a criminal enterprise. Not hard to read between the lines of this one.
Read this very short opinion (in PDF format) by Justice Thomas, which pours well-deserved scorn on Justice Breyer's argument that the Eighth Amendment permits defendants to run out the clock on the death penalty and then complain that the delays caused by their appeals have created a cruel and unusual punishment. Justice Stephens adds a weak disclaimer to Thomas' opinion.
I'm not totally a death penalty cheerleader, but arguments like this are appalling. Even if there was some merit to the "delay" argument, its proponents should at least recognize that the "delay" should - after the fashion of the Speedy Trial Act - exclude any delays caused by the defendant himself, including the pendency of appeals, delays in bringing a habeas petition, etc., which would exclude nearly all of the time at issue in most of these cases.
October 18, 2002
LAW: Johnny Cochran gets sued
Johnny Cochran gets sued. Who says there's no justice?
October 17, 2002
This reads like something from the Onion, but sadly, it's not. Can one man really turn our nation's capital and scores of surrounding suburbs into Beirut?
LAW: White Collar Case
The full Second Circuit is wrestling with a case that could have a huge impact on white-collar criminal prosecutions.
October 16, 2002
POLITICS/LAW: The State of The Gun Debate
The Wall Street Journal has a front-page story this morning (here's the link if you're a subscriber) on how Smith & Wesson has rejoined the fight against gun regulations in an environment where lawsuits and new regulations have lost a lot of steam as a result of skeptical courts and the Bush Administration. Personally, I always thought the lawsuits - other than those few for purely accidental shootings that might have been prevented by safety devices, which are fairly standard tort claims -- were silly. First, everybody knows guns are dangerous. Second, many of the claims were based on the theory that it was a violation of one state's gun policies to sell too many guns legally in another state, knowing that some of them would then be shipped across state lines (the "oversupply" theory). Adopting such a rule under state law is a straightforward violation of the Commerce Clause - a state regulating the very act of interstate commerce. (A more interesting question is whether both the high- and low-regulation states are transgressing Federalism's Edge, a concept I've discussed in more detail here and here).
BUT, WILL THE DC SNIPER CHANGE THE POLITICS OF GUN CONTROL? Not much, I suspect. Except in New Jersey -- where the Torricautenberg campaign has been hammering the issue for months -- nearly all the contested Senate elections, and the majority of hot House and governor's contests, are in states where gun control is not popular (Missouri, New Hampshire, Colorado, Arizona, Michigan, the Carolinas, etc.), so the national Democrats have been terrified of the issue. What's worse, the case raises the specter of a ban on hunting rifles, the crown jewel of gun ownership.
Personally, I'm pretty moderate on this issue - I'm generally apt to support gun regulation like registration requirements, but not outright bans. After all, the Second Amendment guarantees an individual's right to bear arms, but much unlike the First Amendment (which says "Congress shall make no law" regulating speech and religion), the Second Amendment expressly contemplates that gun ownership by the militia - i.e., the able-bodied adult (then, male) population - shall be "well-regulated." I'm not an expert on the history, but I doubt that the Founding Fathers would have been alarmed by efforts to register the gun owners in the State if they'd seen a need.
Andrew Sullivan has a point on the sniper that seems obvious to me: whether or not it's connected to any terrorist group or organization, and whether or not the shooter is pressing any particular agenda, this is terrorism by any reasonable definition: i.e., the targeting of innocent, unsuspecting noncombatant strangers for the purposes of creating fear in a broader population.
October 15, 2002
LAW/POLITICS: No Right To Vote Early and Often
The things people will ask for . . . Second Circuit says it's not unconstitutional to deny people with multiple homes in different localities the right to vote in all of them.
LAW: No Hsia
LAW: THE DC SNIPER
OK, the "Confederate battlefield" theory is out the window with last night's shooting in Falls Church. They're gonna get this guy, somehow, but it looks like he'll probably kill again before they do, which is a horrible thought. I'm sure plenty of people are afraid to leave the house in the DC area, and I can't say I blame them. When things have calmed down, somebody should remember to extend a very warm thank you to these guys.
My father, who was a New York City cop, reminds me that the simplest slips can break a case like this - they got the Son of Sam because a cop who wrote traffic summonses noticed that he'd written up the same car at the site of three of the shootings. Once they had the car, they had David Berkowitz, and they still do.
My guess is, when they get this guy, Virginia will try him first. I have mixed feelings about the death penalty, but this is one of the easy cases.
October 14, 2002
LAW: Racial Profiling of the DC Sniper
Dave Shiflett over at the American Prowler is doing some racial profiling on the DC sniper (ask yourself what the sniper looks like before you click). If you missed it, Slate had a nice piece last Teusday (has this story been going on that long?) with an NYPD detective profiling the weapon. Here's a random thought: last two shootings were at Manassas and Fredricksburg. If the next one's at Anteitam or Appomattox, I think we've got ourselves a much clearer profile.
October 11, 2002
LAW: A RIGHT TO DO NO WORK?
The DC Circuit affirms summary judgment dismissing an employment discrimination claim by a Postal Service employee who claims that his job got worse when he was reassigned, at the same pay and benefits, to a job including "general budget duties for an office and supervis[ing] up to a dozen workers." What was his previous job? The court quotes this priceless exchange from his deposition:
Q So you stayed at Merrifield. What were your duties at Merrifield?
A [sic] Did you work while you were out there?
Q What did you do all day?
A Occupied an office.
October 08, 2002
LAW: Campaign Finance News
Howard Bashman notices that the Second Circuit has withdrawn its opinion upholding the Vermont campaign finance law, Act 64. So there. (I may update this post later if I find out more).
October 07, 2002
LAW/POLITICS: The Invisible Foot In Vermont
This Fox News report notes the heavy schedule of debates, and lack of spending on TV ads, in the Vermont gubernatorial race. What seems missing, to me, is any mention of Act 64, Vermont's stringent new campaign finance law, which was upheld by the Second Circuit in August. (This NRO analysis boldly predicted a reversal by the Supreme Court, although near as I can tell, no petition has been filed as yet). Are they not in effect yet this campaign cycle?
LAW: Memo to Supreme Court Watchers
LAW/POLITICS: BREAKING NEWS
Supreme Court opens its 2002 term denying cert in scores of cases, including the New Jersey election case (click here for the link to the order list, a 94-page PDF file). But the story's not over: there were potential standing and jurisdiction problems with the appeal from the NJ Supreme Court -- but a new federal lawsuit in NJ, brought by people who voted already, may give the courts the evidentiary record to make a definitive ruling on the Uniformed and Overseas Citizens Absentee Voting Act claim -- and better yet, from the Supreme Court's perspective, to let federal courts decide those issues without the High Court's involvement, rather than replay another showdown with a state Supreme Court.
October 03, 2002
LAW/POLITICS: What Choices Count In New Jersey?
The usual suspects - Instapundit, Kaus, Sullivan (links on my left) - lead the roundup on the New Jersey Supreme Court's decision that "51 days" doesn't mean "51 days" if it's applied to a candidate from one of the major parties (at least the court had the decency to pretend that its ruling would apply to Republicans).
Question 1: What happens if some voter who got the original ballots (let's say, for example, a Patterson native serving in Kabul or Qatar) sends it back and doesn't have time to look at the new ballot? Or what if he gets confused or concerned about his vote counting, and sends back both? Does one or both votes count, if the election is really close? Does it matter who he voted for? Will a vote for the Torch be counted for Lautenberg? (What if some serviceman wanted to reward the Torch for his position - whatever it is - on the war? Are we now back to not caring what the soldiers think about that? That was fast.)
Question 2: Is it now too late for some third-party candidate (i.e., not the Republicans) to intervene to appeal this decision to the Supreme Court (or file a federal action, which would probably face collateral estoppel problems)? Professor Eugene Volokh (as well as Kaus and Sullivan) attacks the decision's assumption that the dispositive issue is whether the candidate dropping off the ballot leaves any "voter choice," which therefore would not apply if, say, Jesse Ventura or Ross Perot or Ralph Nader or Pat Buchanan or Bernie Sanders or Jim Jeffords dropped off the ballot (hey, do Vermont voters have choices?). A non-party generally has a real hard time intervening, but this one went straight to the Supreme Court so fast they may have had little chance to get organized. I don't have my thinking cap on that one, but if you could get around the procedural issue, it's a heck of an angle and the US Supreme Court (liberals included) would likely be much more intrigued than by some GOP protest.
October 01, 2002
LAW: Cert Watching
Supreme Court's term opens less than a week from today, and I'm already watching for cert petitions likely to be granted or denied early next week. Already, the 2002-03 term looks chock full of cases likely to have a big impact on businesses and civil litigation.
LAW: Tribe Defends Scalia!
From Instapundit, this link to a letter from Laurence Tribe, of all people, defending Justice Scalia against an op-ed piece by Sean Wilentz in (where else?) the New York Times that "grievously misrepresented" Scalia's views.
Upon hearing that Congressman James McDermott has been in Baghdad criticizing the Bush Administration and lauding the need to place our trust in our enemies, some of you may be asking, "McDermott . . . that name sounds familiar, doesn't it?" Here's why: you may remember McDermott as the guy who had to resign from the House Ethics committee, and was sued by Congressman John Boehner, for publishing an illegal tape recording of an internal telephone conference between House Republicans. (In a postscript, the lawsuit was ultimately rejected after the Supreme Court, in Bartnicki v. Vopper, found the provisions of the statute barring disclosures derived from illegal wiretaps to be overbroad).
Posted by Baseball Crank at 06:26 AM | Law | Politics 2002-03 | War 2002-03 | Comments (0) | TrackBack (0)
September 27, 2002
LAW: Legal Fees
A federal judge here in NY has ordered the defendant in a lawsuit over the terms of a surety bond to pay Brazil's state-owned oil company $37 million in legal fees.
September 26, 2002
LAW/POLITICS: Gray Davis SLAPPdown
I haven't seen this anywhere else - a California court yesterday vacated an injunction issued by a lower court and threw out a lawsuit filed by Gray Davis' campaign committee against the American Taxpayers' Alliance, which had alleged that ATA violated California's campaign finance laws by running an advertisement that "has no other purpose than to denigrate Governor Davis." What kind of country would let just anyone denigrate the Governor, on television no less? The court found that the lawsuit ran afoul of a California statute prohibiting "SLAPP" (Strategic Lawsuits Against Public Participation") and the First Amendment because the ad, while critical of The Governor, did not expressly advocate his defeat in an election. (Of course, campaign finance 'reformers' may take heart from the court's distinction of other cases on the grounds that the ad ran in June 2001 when "no election was imminent . . . [t]he primary and general gubernatorial elections in 2002 were 8 months and 18 months away, respectively."
LAW: Justice Douglas' Fears
Speaking of "Bugs" Harkin, the story brings back memories of one of the more bizarre Supreme Court opinions I've ever read - one that speaks both to the climate of hysteria in the early 1970s and to Justice Douglas' paranoia: his opinion dissenting from the denial of certiorari in Heutsche v. United States, which includes the following passage:
Mr. Justice Holmes in Olmstead v. United States, 277 U.S. 438, 470 (dissenting), called wire-tapping 'dirty business.' That decision was rendered in 1928. Since that time 'dirty business' has become the apt phrase describing the regime under which we now live. . . . We who live in the District of Columbia know that electronic surveillance is commonplace. I am indeed morally certain that the Conference Room of this Court has been 'bugged'; and President Johnson during his term in the White House asserted to me that even his phone was tapped.
We deal with a disease that has permeated our society. . . . The conversation of one's lawyer over the telephone may be as helpful to Big Brother as the conversation of the accused herself. . . . If electronic surveillance were strictly employed by the Executive Branch, we might be chary in enlarging its duties as requested here. But since we live in a regime where the 'dirty business' of wiretapping runs rampant, I would apply the statute liberally to check the disease which almost every newspaper tells us has poisoned out body politic.
* * *
In a country where the Government overhears over 500,000 conversations a year pursuant to court authorized wiretaps alone, it is difficult to gainsay anyone's fear of the intrusion of Big Brother's ear. The daily news brings fresh evidence to make a reality of Chief Justice Warren's warning that the 'fantastic advances in the field of electronic communication constitute a great danger to the privacy of the individual. . . .' In such circumstances the Government's claim that it should not be put to the task of searching its files for evidence of specific surveillance cannot be treated lightly. I take cognizance of the fact that the mass of aggregate data on the citizenry yielded in this Orwellian era may indeed make the task a difficult one.
September 25, 2002
LAW: Scalia on Impartial Judges
As Chuck Schumer gears up his crusade against judges who have ideas and convictions (other than his own), it is an appropriate moment to quote Justice Scalia, from a case this past spring striking down regulations of speech by judicial candidates:
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"A judge’s lack of predisposition regarding the relevant legal issues in a case has never been thought a necessary component of equal justice, and with good reason. For one thing, it is virtually impossible to find a judge who does not have preconceptions about the law. As then-Justice Rehnquist observed of our own Court: “Since most Justices come to this bench no earlier than their middle years, it would be unusual if they had not by that time formulated at least some tentative notions that would influence them in their interpretation of the sweeping clauses of the Constitution and their interaction with one another. It would be not merely unusual, but extraordinary, if they had not at least given opinions as to constitutional issues in their previous legal careers.” Laird v. Tatum, 409 U.S. 824, 835 (1972) (memorandum opinion). Indeed, even if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable to do so. “Proof that a Justice’s mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias.” Ibid. The Minnesota Constitution positively forbids the selection to courts of general jurisdiction of judges who are impartial in the sense of having no views on the law. Minn. Const., Art. VI, §5 (“Judges of the supreme court, the court of appeals and the district court shall be learned in the law”). And since avoiding judicial preconceptions on legal issues is neither possible nor desirable, pretending otherwise by attempting to preserve the “appearance” of that type of impartiality can hardly be a compelling state interest either."
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September 24, 2002
LAW/WAR: Alan Dershowitz, Prosecutor
Alan Dershowitz, prosecutor: My Criminal Law professor wants to try Yasser Arafat for first degree murder.
LAW: Campaign Finance Complexity
Speaking of campaign finance laws, Clinton-era figure Maria Hsia is asking the US Supreme Court to throw out her false statement conviction on the grounds that she didn't know the campaign finance laws she was accused of violating. The Solicitor General's office says that they don't have to prove that and the Court shouldn't take the case. The Court's docket sheet says the petition will be reviewed (to see if the Court takes it) at the end of September. Granted that the statute at issue isn't the only way to skin this prosecutorial cat, such a requirement, if adopted, would underline the enforcement problem with having insanely complicated laws in the first place. A simpler scheme would say, "Congress shall make no law . . . abridging the freedom of speech . . . "
September 20, 2002
LAW: Investor Responsibility
The Second Circuit throws out a $111.5 million (plus interest) jury verdict and strikes a blow for individual responsibility, holding that a billionaire currency trader couldn't sue his brokers for negligence over trades he authorized on the theory that he should have been given more warnings. One of the people whose advice was at issue in the case was former Bear Stearns chief economist Lawrence Kudlow, now the chief financial writer for National Review Online and co-host of CNBC's Kudlow & Cramer.
September 19, 2002
LAW: No Claim on Harry Potter
Harry Potter has been cleared of copyright infringement! It gets better - an author who sued J.K. Rowling for copying her ideas (principally, a book using the term "muggles") has been sanctioned (to the tune of a $50,000 fine) by a federal court in New York. "The judge noted seven instances of false evidence, including an advertisement that was modified to include a trademark symbol, altered paragraphs that allegedly refer to a book titled "Larry Potter and His Best Friend Lilly," and forged sales invoices."
September 17, 2002
LAW/POLITICS: Tobacco War Profiteers
Dave Barry is back to one of his favorite targets, the War on Tobacco:
"[L]et's review how the War On Tobacco works. The underlying principle, of course, is: Tobacco Is Bad. It kills many people, and it causes many others to smell like ashtrays in a poorly janitored bus station.
So a while ago, politicians from a bunch of states were scratching their heads, trying to figure out what to do about the tobacco problem. One option, of course, was to say: ''Hey, if people want to be stupid, it's none of our business.'' But of course that was out of the question. Politicians believe EVERYTHING is their business, which is why -- to pick one of many examples -- most states have elaborate regulations governing who may, and who may not, give manicures.
Another option was to simply make selling cigarettes illegal, just like other evil activities, such as selling heroin, or giving unlicensed manicures, or operating lotteries (except, of course, for lotteries operated by states). But the politicians immediately saw a major flaw with this approach: It did not provide any way for money to be funneled to politicians.
And so they went with option three, which was to file lawsuits against the tobacco companies. The underlying moral principle of these lawsuits was: ``You are knowingly selling a product that kills tens of thousands of our citizens each year. We want a piece of that action!''"
September 16, 2002
LAW: Late Breaking News
Late breaking news here in Manhattan: a shooting at an office building on 40th Street near Broadway.
September 15, 2002
LAW: Shine On You . . .
NY Daily News picks up a bizarre and explosive allegation. Justice Marylin Diamond, a New York State Supreme Court justice (in NY, that's the primary trial court), has had 24-hour police protection for 3 years due to threatening letters. The News claims that a law enforcement source says that a 'profiler' has analyzed the letters and concluded that Justice Diamond wrote them herself. You should read the story yourself; as a lawyer practicing in Manhattan, I'm not going to characterize it any further myself.
September 10, 2002
LAW: Federalism's Edge, Part II
Following up on my point about Federalism's Edge -- the tipping point at which a state's assertion of power threatens other states' autonomy -- take a look at this Michael Barone piece on the Supreme Court's upcoming look at punitive damage awards, as well as another case trying to swim upstream to get certiorari granted (in any individual civil case, the odds are extremely long, in the 100-to-1 neighborhood if I remember right) to prevent a West Virginia court from using what Barone describes as a coercive procedure to force settlement of nationwide asbestos claims. The main federalism aspect here, which seems like one that may intrigue the current Court if it wishes to make more explicit the extraterritoriality analysis of BMW v. Gore, is the notion that a state is overreaching if it allows punitive awards calculated on the basis of a defendant's nationwide/worldwide operations rather than its operations in the state.
If you think about it, this was also at least a subtext in one of the Warren Court's most famous decisions, New York Times v. Sullivan, the case that imposed a constitutional requirement that a libel suit against a public figure must show "malice" (generally, knowledge of the falsity of the libelous statement). As any First Amendment afficionado can tell you, one of the egregious things about the Sullivan case was that an Alabama jury (like the one in BMW v. Gore) imposed liability exceeding the Times' operating revenues from sales in Alabama. It was this disproportion that presented the factual setting of Sullivan as being so threatening to free expression: the idea that a national newspaper could be silenced from speaking on the civil rights movement by a single Southern state. It was, in short, a state action that passed over Federalism's Edge.
September 09, 2002
LAW: Truth? What Truth?
This gossipy New York Law Journal article contains this brilliant one-sentence summary of the pitfalls of being sued for defamation:
"Of course, truth is a defense, but nobody wants to litigate a case to the point where truth matters."
September 08, 2002
LAW/POLITICS: Federalism's Edge, Part I
FEDERALISM is often thought of -- principally by its critics on the Left, but by some fairly zealous conservatives as well -- as synonymous with "States' Rights" as against a powerful federal government. That's a big part of the picture, of course, but it's not the whole story. There's also what I call "Federalism's Edge" - the right of the states to be free of overweening influence by other state governments that seek to impose their public policies on the rest of the nation. After all, a distant and intrusive setter of national policy is no less obnoxious if it's set in Montgomery' Alabama than inside the Beltway. More so, since at least there are SOME mechanisms for controlling Washington.
Federalism's Edge, as much as States' Rights, has been one of the hottest issues of the past decade or so. Whatever you think of the merits, can one state cram gay marriage down the throats of the country? Can one state's Supreme Court decide who gets to be President of the rest of us? Can one or a handful of State Attorneys General, or juries in a few tiny jurisdictions, prescribe codes of conduct for nationwide businesses?
Liberals have long bemoaned what they see as the opposite problem, the "race to the bottom" where states compete to LOWER regulatory burdens, although at least there there's market forces at work rather than ironclad mandates. This is where Jonathan Chait's assault on Delaware, after the fashion of Jonah Goldberg's French-bashing columns, comes in. Personally, from my experience as a business and securities litigator, I think Chait doesn't know much about Delaware's court system if he thinks it's apt to be lax in imposing liability on corporations and their management. But there's an interesting point here: is it inconsistent with Our Federalism for one state to create conditions for what is effectively a national corporate governance regime? And does it say something that corporations seem to WANT the efficiency and stability provided by such a regime?
PART II of this comment to follow later.
August 30, 2002
LAW: Article V
You know, I touched on this in my 8/23 Atkins post below, but using a "consensus" of counting state laws to determine what is constitutionally acceptable strikes me as a flagrant violation of the spirit (to say nothing of the letter) of Article V of the Constitution, which sets out very rigorous requirements for state legislatures to amend the constitution. Make no mistake: if enough state legislatures (2/3 of them) demand a Convention for the purposes of changing the Eighth Amendment, and if enough state legislatures (3/4 of them) further ratify the resulting work of such a Convention (bearing in mind that, in modern practice, no such convention is called as long as you have enough ratifications), presto! The Constitution prohibits executing people whose names begin with the letter "M", or whatever else those states may desire. To use an "emerging consensus" based on differing statutes passed in less than that number of states, and on the basis of statutes that were not debated with the gravity of a (generally permanent) constitutional amendment, is a direct attack on the Article V procedures.
LAW: First Amendment Exclusionary Rules
Apparently the California courts are looking into whether you have a First Amendment right to link to websites that facilitate the theft of intellectual property, and the business community is in an uproar. This subject fascinates me, although I haven't dealt with it much in practice; I did my third year law school paper on "First Amendment Exclusionary Rules," and they come up all the time. We have lots of rules (going back to common law causes of action for fraud and defamation) that impose restrictions on speech that is demonstrably false. But there are also a lot of areas of the law, nearly all of them fraught with uncertainty, that govern restrictions on truthful speech that conveys information that was obtained through some sort of illegality, from trade secret law to military intelligence to inside information about stocks. Our speech is not so free as we pretend, and in many cases there are good reasons why.
August 29, 2002
LAW: Stevens' Poll-Watching Continues
Justice Stevens isn't done applying the "apparent consensus among the States and the international community" as the standard for interpreting the Constitution. (Warning: Link is to a PDF file)
August 23, 2002
WAR/LAW: MILITARY RECRUITERS ALLOWED BACK AT HARVARD LAW SCHOOL
Dean Clark says the feddle gummint made him do it by threatening to take away the University's allowance. Oh, yeah, and there's some patriotism stuff thrown in at the end. Of course, somehow I don't think that the safety of the Republic will depend any time soon on Harvard lawyers storming the banks of the Tigris and the Euphrates, but it's a start.
LAW: Atkins Away
It's easy to make fun of the Supreme Court for relying on such ephemera as public opinion polls and "international opinion" in construing the Constitution - recall that when the Constitution was written, "international opinion" (which then, as now, meant "Europe") was very, very much against democracy and the separation of powers, while barely a decade later the Continent was awash in the bloody tide of the guillotine - but what to do about it? Well, to stop this type of thing in its tracks, Congress could pass a statute simply stating that no court shall consider certain things in construing the meaning of the Constitution or federal statutes - such things to at least include public opinion polls or any "consensus" from outside our borders or that depends on, say, legislative enactments in a smaller number of the States than is required to amend the Constitution's text in Article V. (You'd have to draw the thing more carefully than I'm doing now, but you get the idea).
Of course, the Atkins decision itself may likewise be easy to evade, since in at least some circumstances it appears to give state legislatures the wiggle room either to define who is "retarded" or easier yet to turn the question over to juries, who might yet be able to find that the nature of the crime (including what the Federal Sentencing Guidelines refer to as "more than minimal planning") is evidence that the perp is not retarded. Since the Court has already held for some time that juries must consider retardation as a mitigating factor at sentencing, this is not a real sea change. In addition, because the sole focus is on the "mentally retarded criminal," the decision does not appear to bar executing people like Rickey Ray Rector, the guy Clinton fried during the 1992 campaign, because Rector was not retarded at the time of the crime (he apparently lost a lot of brain when he shot himself in the head following the crime).
December 13, 2000
POLITICS/LAW: Bush v. Gore, and a few thoughts and observations on the end of an era
From an email I sent to some friends in the aftermath of the Supreme Court's Bush v. Gore decision:
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1. First of all, it is a wonderful thing to see all the same liberals who gloried in their raw power to prevail throughout the Clinton years left with the same sputtering, impotent rage we all had during impeachment and other fiascos. As for the consequences, we all predicted doom for Clinton many times, and Bush seems to have a little of Clinton's pure political skill in getting out of the noose.
2. I can't say this is a great decision as far as legal reasoning and judicial restraint. I am always suspicious of judicial opinions that take notice of facts outside the record and that are long on prononcements of fundamental principles and short on citations. However, the Court went out of its way to limit this to the facts at hand, and to show how the current system wasn't so much discriminatory as it was lacking in any rational basis.
Far more to the point, as far as consistency with conservative principles is concerned, the Court made clear that its decision does not (at least on its face) apply to the conduct of elections generally ("The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections"). Rather, the Court's decision focuses in on, and arguably applies a higher standard for, judicial proceedings to review elections ("[W]e are presented with a situation where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards. When a court orders a statewide remedy, there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied") (emphasis added). The net result is to counsel state as well as federal courts to be more circumspect in the future in ordering remedies in election cases where the remedy has not been explicitly set out in advance in a statute. It is this aspect of the decision that essentially constitutionalizes the James Baker Doctrine: you can't go to court to change the rules after the election.
3. The Court also went out of its way to essentially put the blame on the Florida Supreme Court for extending the original deadline in violation of its own statutes, thus leaving no time to remedy a problem that the Court suggested could possibly have been remedied if there had been adequate time. This was clearly Justice O'Connor's stick in the eye, which is fitting in that she is the only member of the Court who has experience as a state legislator (I think Souter might share her experience as a state Supreme Court justice) and doesn't appreciate when courts ignore state statutes. It's also consistent with her view, as well as Justice Kennedy's, strongly favoring respect for state law against the intrusion of the courts (state or federal), a point made and emphasized explicitly by the Chief Justice's concurring opinion.
4. A (pro-Gore) colleague here raised an interesting question that the parties ignored: the Court held, citing Article II section 1, that an "individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College." Is this consistent with Section 2 of the Fourteenth Amendment, which provides that "when the right to vote at any election for the choice of electors for President and Vice President of the United States . . . is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state"? The matter may be somewhat academic, since the Court implicitly concluded that nobody's right to vote was denied or abridged if they cast their ballots into a system that counted all those ballots the same way, and it is arguable that the use of the phrase "any election" implies that no such election need be held if that is the way the legislature wants it. The question would have more direct relevance if the Florida Legislature's slate of electors was challenged as a denial of the right of the people to vote, which is one reason I thought they should have tried to vote in the very same people that were on the ballot.
5. The Twelfth Amendment requires that electors' votes be sealed and opened only by the President of the Senate (i.e., Al Gore) at a special session of both Houses of Congress. Such a session, by tradition and (I believe) by federal statute would be in January. There is no requirement that electors disclose publicly who they voted for, is there? Or are the votes tabulated at public proceedings at the statehouses? What I am getting at is the possibility that, if there are "faithless" electors (following the Cuomo/Beckel line), we might only discover in January that Al Gore actually won the electoral college vote and is the president, despite not having been elected such by the voters who chose the electors, and possibly despite having conceded and not having prepared over the next several weeks for a transition. Ugh.
6. Also in the realm of being hoist by one's own petard, it was interesting to see how the per curiam and concurring opinions relied on some of the more elastic decisions handed down during the civil rights movement with the effect of curtailing state control over the franchise. Justice Ginsburg just undoes her own argument by claiming that it was proper in those cases to disrespect state court conclusions on state law matters because the circumstances suggested motives by the state court to be less than their usual selves. In fact, a case of this nature puts equal if not greater pressures on state courts to twist their own laws so as to determine the leader of the other 49 states.
7. I had a lot of trouble following some of the Bush team's arguments in the Supreme Court on the Article II/statutory deviation points arising from the second Florida Supreme Court decision, but the concurrence focuses in on two good ones: (1) that the Florida Supreme Court should have given greater deference to the Secretary of State in a presidential election than in other elections, inasmuch as it was her statutory mandate; and (2) the definition of "vote" in the protest statute should be presumed to be the same as its definition in the contest statute.
8. In theory, Justice Stevens had a good point -- the majority's equal protection reasoning could arguably be extended to the use of two different types of voting machines with different error rates, although even Justice Souter rejected this argument. I would, however, question as a matter of appellate procedure whether it was proper for him to rely (see footnote 4 of his opinion), as the Florida Supreme Court also erroneously relied, on statistical evidence that was reviewed and rejected as not credible or reliable by the trial court. Once the trial court has disclaimed reliance on such evidence in its factfinding capacity, appellate courts -- who resolve all inferences in favor of the party prevailing at trial -- are forbidden to rest their determinations on it.
9. While Justice Stevens is probably right that the 3 U.S.C. 5 deadline of yesterday is not mandatory, his reliance on the 1960 Hawaii precedent is totally bogus -- Nixon, as the losing candidate and sitting as President of the Senate, ruled (and was supported by voice vote) for the later-cast slate of electors primarily as a gracious gesture, and explicitly stated at the time that he did not intend to create a precedent for accepting the later-submitted slate of electors in the future.
10. Hopefully, Justice Stevens will be correct in his prediction that Americans, in the future, will not blindly accept the notion that courts are always and everywhere impartial and unbiased.
11. At first glance, it seemed wise to accept the Florida Supreme Court's conclusion that the trial judge's "reasonable probability" burden of proof was higher than the "place in doubt" standard used by the legislature, but it would be a very curious construction of a statute to hold that a defendant in any sort of litigation has the burden of proof beyond any "reasonable possibility." I can't think of any cause of action anywhere that has that sort of standard, and given that the legislature stated that it wasn't altering existing caselaw, I think this was a rare case where the circumstances have to trump one reasonable meaning of the statutory language.
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November 20, 2000
POLITICS/LAW: Right To Choose At Stake In Presidential Election
From an email I sent to friends on November 20, 2000:
The Democratic Party now says all pregnant chads must be delivered; all chad pregnancies must be carried to term. I say every chad must be a wanted chad. If a voter has exercised his or her right to control when and whether to deliver the chad, the states should have no authority to force them to be delivered. It is fundamental to the scheme of ordered liberty that the right to decisions made in the privacy of the voting booth stay there. Liberty finds no refuge in a recount of doubt.