Go To The Main Site For More Content on Other Topics!
"Now, it's time for the happy recap." - Bob Murphy

Law 2002-04 Archives

December 31, 2004
BLOG: Turning Over A New Leaf

As I've done in the past, I'm creating brand-new categories for the new year. You'll now go to Baseball 2005 for new baseball entries, Politics 2005 for new politics entries, War 2005 for new war entries, and Law 2005 for new law entries (the Law category hadn't needed an overhaul last year). I'll shortly be updating the link to baseball-only posts at the top of the page as well to send you to Baseball 2005.

Happy New Year!

Posted by Baseball Crank at 5:18 PM | Baseball 2004 • | Baseball 2005 • | Blog 2002-05 • | Law 2002-04 • | Law 2005 • | Politics 2004 • | Politics 2005 • | War 2004 • | War 2005 | Comments (0) | TrackBack (0)
December 30, 2004
LAW: Line of Duty

Yes, according to New Jersey workmen's compensation law, as construed by the Supreme Court of New Jersey, getting hurt while going out to dinner at your boss' insistence is a work-related injury.

Posted by Baseball Crank at 5:36 PM | Law 2002-04 | Comments (1) | TrackBack (0)
December 23, 2004
LAW: For The Rest of Us

It is inevitable that the Supreme Court will eventually be required to determine the constitutional status of the Festivus Pole.

Posted by Baseball Crank at 12:28 PM | Law 2002-04 | Comments (0) | TrackBack (0)
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.
Posted by Baseball Crank at 12:31 PM | Law 2002-04 | Comments (1) | TrackBack (0)
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.

Posted by Baseball Crank at 2:31 PM | Law 2002-04 • | War 2004 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 5:12 PM | Law 2002-04 | Comments (0) | TrackBack (0)
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

I think that he has been an embarrassment to the Supreme Court. I think that his opinions are poorly written. I don't--I just don't think that he's done a good job as a Supreme Court justice.

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:

Since Reid doesn't provide any evidence for his low opinion of Thomas, it sounds to me like he's thoughtlessly embracing the increasingly untenable view that Thomas is an affirmative action case utterly incapable of the kind of deep (or independent) thoughts Supreme Court justices are supposed to think, which has more than a slight whiff of racism.

I'll add a few examples of Thomas opinions of my own on a variety of subjects:

Read More »


Posted by Baseball Crank at 9:22 AM | Law 2002-04 | Comments (7) | TrackBack (1)
December 8, 2004
LAW: Theres Always One

Reading this months 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 Dont-Get-Too-Drunk-At-Your-Law-Firms-Holiday-Party article. I had to laugh at this in particular anecdote:

It is fairly common knowledge in one law firm that a decade or so ago a young associate, at the urging of a partner, dropped his pants on the dance floor at a party in Washington, D.C. The associate survived and went on later to the Justice Department. But no one at the firm wants to confirm or talk about the incident.

Im sure John Ashcroft would be proud.

Posted by Baseball Crank at 1:45 PM | Law 2002-04 | Comments (1) | TrackBack (0)
LAW: Three Strikes Foolishness

Tung Yin notes the following story:

Florida voters . . . approved a three-strikes law unlike any other state's a measure aimed not at killers and thieves but at doctors who foul up.

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).

Posted by Baseball Crank at 9:32 AM | Law 2002-04 | Comments (0) | TrackBack (0)
December 6, 2004
BASEBALL/LAW: Big Daddy Hits Back

Speaking of the media and ballplayers' personal lives, remember the story about Cecil Fielder's gambling problem? Well, now Fielder has sued the Detroit News for libel:

The libel suit, filed Nov. 23 in Wayne County Circuit Court, accuses the Detroit Newspaper Agency and reporter Fred Girard of defaming and slandering the three-time All Star by reporting that he was "in hiding," "not in contact with his family," not supporting his daughter financially, and had an "unstoppable gambling compulsion," according to the suit.

[snip]

Fielder's lawyers said the stories exaggerated the gambling and reported incorrect information.

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.

Posted by Baseball Crank at 8:42 AM | Baseball 2004 • | Law 2002-04 | Comments (1) | TrackBack (0)
December 1, 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.

Read More »


Posted by Baseball Crank at 9:15 AM | Law 2002-04 | Comments (7) | TrackBack (0)
November 30, 2004
LAW/POLITICS: Self-Evident Idiocy

One last spleen-venting legal case for the day:

A California teacher who teaches his fifth-grade students with the aid of primary source documents like the Declaration of Independence has been ordered by school administrators to stop using such artifacts of American history because the material contains references to God.

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 Hannitys 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 teachers complaint.

Politically, this is an example of Democrats needing to better police their fringes. I cant 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. Its 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.

Posted by Baseball Crank at 12:15 PM | Law 2002-04 • | Politics 2004 | Comments (2) | TrackBack (0)
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 militarys Dont Ask, Dont 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.

Posted by Baseball Crank at 11:32 AM | Law 2002-04 | Comments (0) | TrackBack (0)
LAW: Mary Jane's Last Dance?

Dahlia Lithwick has a snarky look at the Supreme Court's oral arguments concerning Californias 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?

Im 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 Lithwicks 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 Courts (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 doesnt really believe in federalism, but supports using it as a justification for drug legalization at the state level. Isnt that line of reasoning just as hypocritical as that which she prematurely accuses the Supreme Court of following?

Posted by Baseball Crank at 10:04 AM | Law 2002-04 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 6:53 AM | Law 2002-04 | Comments (1) | TrackBack (0)
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:

*Michael Rappaport

*Eugene Volokh

*Stephen Bainbridge

*John Hinderaker (although the Deacon has his own suggestions)

Posted by Baseball Crank at 7:32 AM | Law 2002-04 • | Politics 2004 | Comments (0) | TrackBack (0)
November 7, 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).

Posted by Baseball Crank at 12:42 PM | Law 2002-04 | Comments (0) | TrackBack (0)
November 6, 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:

The big silver lining, and it's significant, is that Kerry won't be tarred for cleaning up Bush's mess. Had Kerry gotten us out of Iraq, he would've been blamed for "losing the war". Now Bush will ineptly lose it for himself.

Kos is taken firmly to task for this by Greg Djejerian:

[S]uch flippant treatment of a major national security issue is also very small; and the American people have smelled this smallness out. That's part of the reason a somewhat embattled American president, with a less than ideal economy and with a tough war on his hands, was handily re-elected (I believe not since FDR has a President been re-elected while simultaneously gaining seats for his party in both Houses of Congress). Americans like to dream of big projects and goals--and the Democratic party is failing them in this--content instead to lazily carp from the sidelines. Worse, some of that party's activists, it too often appears, would wish for some important, declared national objectives to be scuttled. Trust me, that wasn't a winning strategy in the past, it isn't one right now, and it won't be one in the future.

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)

*Speaking of Blogs for Bush, the site will continue in a new format, although it's unclear to me how its function will differ from that of RedState.

*Catch Mark Steyn in something close to full gloat mode here and here. I liked this one:

Michael Mooronification damages everyone who gets it.

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:

It's a big country. Please take this in the spirit it's offered: we watch the news that comes from New York, read the magazines that come from New York, see the shows that come from New York. It's entirely possible we know you better than you know us. Nu?

*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 2002-04 • | 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?)

Posted by Baseball Crank at 1:56 PM | Law 2002-04 • | Politics 2004 | Comments (0) | TrackBack (0)
October 27, 2004
LAW: Free to Decide

Professor Volokh explains why President Bushs 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.

Posted by Baseball Crank at 9:45 AM | Law 2002-04 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 7:39 AM | Law 2002-04 | Comments (7) | TrackBack (0)
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.

Posted by Baseball Crank at 9:48 AM | Law 2002-04 | Comments (1) | TrackBack (0)
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:

A Washington Post reporter's confidential source has revealed his or her identity to the special prosecutor conducting the CIA leak inquiry, a development that provides investigators with a fact they have been pursuing in the nearly year-long probe.

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 [2003], 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.

Posted by Baseball Crank at 2:31 PM | Law 2002-04 • | Politics 2004 | Comments (19) | TrackBack (0)
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.

Posted by Baseball Crank at 6:59 AM | Law 2002-04 | Comments (1) | TrackBack (0)
September 4, 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.

Posted by Baseball Crank at 10:57 PM | Law 2002-04 | Comments (0) | TrackBack (0)
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:

While Casey concluded that such abortions are "gruesome, brutal, barbaric and uncivilized,'' he said the law banning them is unconstitutional because it doesn't contain an exception to protect the health of the mother. A previous U.S. Supreme Court ruling held that the procedure can be outlawed "only if there exists a medical consensus that there is no circumstance in which any women could potentially benefit from it,'' Casey said.

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.

Posted by Baseball Crank at 3:21 PM | Law 2002-04 | Comments (1) | TrackBack (0)
August 10, 2004
LAW: Easterbrook

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:

Judges must explain not only why their views are sound but also why on debatable issues only the judges' views count. Unless the Constitution encodes principles that can be applied using the approach of Marbury v. Madison, then the political resolution must prevail. (I expatiate on this in Abstraction and Authority, 59 U. Chi. L. Rev. 349 (1992).) Justices are fond of saying that all power must be checked, but where is the check on the Supreme Court's? It lies in text, logic, and history.

Read More »


Posted by Baseball Crank at 8:33 AM | Law 2002-04 | Comments (0) | TrackBack (0)
August 9, 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.

Posted by Baseball Crank at 4:41 PM | Law 2002-04 • | Politics 2004 | Comments (1) | TrackBack (0)
August 7, 2004
LAW: "Bombshell"?

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:

Near the end of the section on Thomas' confirmation crisis, Foskett makes a bold statement: He believes Thomas.

"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.

Posted by Baseball Crank at 11:58 AM | Law 2002-04 | Comments (0) | TrackBack (0)
August 6, 2004
LAW: Closing Argument

This one's for all the lawyers out there - c'mon, admit it, you've always wanted to do a closing argument like this. (Link via Dave Barry).

Posted by Baseball Crank at 8:34 PM | Law 2002-04 | Comments (1) | TrackBack (0)
August 5, 2004
LAW: Great Moments in Automated Messages

SarahK (a/k/a the official IMAO T-Shirt Babe), upon loading an automated sexual harrassment training program on her office computer, received the following welcome message:

"Welcome to the Sexual Harassment Setup Program. This program will install Sexual Harassment on your computer."

Posted by Baseball Crank at 10:43 PM | Law 2002-04 | Comments (0) | TrackBack (0)
August 1, 2004
POLITICS/LAW: Curse You, Fred Baron!

Wonkette:

Proving the axiom that the only interests that are special are the other guy's special interests, Democratic delegates are paying $120 a piece for liability insurance. . . As lawyer and blogger Walter Olson notes, "imagine if they were doing something physically riskier than just waving placards around."

Posted by Baseball Crank at 10:28 AM | Law 2002-04 • | Politics 2004 | Comments (0) | TrackBack (0)
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?

Well.

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:

McDonald's Corp. was hit with a lawsuit Thursday accusing the fast-food giant of failing to reduce fat in the cooking oil used in its french fries and other foods.

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.

Posted by Baseball Crank at 9:52 PM | Law 2002-04 | Comments (2) | TrackBack (0)
July 7, 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.

Posted by Baseball Crank at 9:40 PM | Law 2002-04 • | War 2004 | Comments (1) | TrackBack (0)
July 1, 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.

Posted by Baseball Crank at 7:40 AM | Law 2002-04 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 6:34 AM | Law 2002-04 | Comments (0) | TrackBack (0)
June 5, 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.

Posted by Baseball Crank at 12:16 AM | Law 2002-04 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 8:41 PM | Football • | Law 2002-04 | Comments (0) | TrackBack (0)
May 22, 2004
BLOG: End of The Week Non-Baseball Links

An accumulation:

*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.

*Daniel Drezner comes down hard on education school programs.

*Dana at Note-It Posts has some thoughts on abortion (via NGD).

*The MinuteMan comes down real hard on Brad Pitt's Troy.

*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.

*Those swift boat vets just won't let up on Kerry.

*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:

[S]tart honouring and respecting every human's need to live free and autonomously, to truly respect the sovereignty of every state. To stop making up rules by which others must live and then separate rules for ourselves.

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.

Posted by Baseball Crank at 12:46 AM | Blog 2002-05 • | Law 2002-04 | Comments (1) | TrackBack (0)
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.

Posted by Baseball Crank at 7:34 AM | Law 2002-04 | Comments (3) | TrackBack (0)
May 4, 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.

Posted by Baseball Crank at 11:55 PM | Law 2002-04 | Comments (3) | TrackBack (0)
May 1, 2004
LAW: Mugged

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.

Posted by Baseball Crank at 11:10 PM | Law 2002-04 | Comments (4) | TrackBack (0)
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.

Posted by Baseball Crank at 10:20 PM | Law 2002-04 | Comments (0) | TrackBack (0)
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 the long-suffering Iraqi people Saddam Hussein and some secretive financial institutions that have been linked to Al Qaeda. Rossett's piece is far from definitive, but it's cautious and apparently well-sourced, and raises some real issues about whether Saddam's dealings with shady Al Qaeda-linked financiers and his evident opportunity to funnel them money undetected was just coincidence. Among other things, Lileks notes the problem this could later present for the Democrats and their standard-bearer:

[W]hat does this do for John Kerrys 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:

Read More »


Posted by Baseball Crank at 12:42 AM | Law 2002-04 • | Politics 2004 • | War 2004 | Comments (4) | TrackBack (0)
April 9, 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.

It began its spike in the two days after the company said it swung to a quarterly profit as revenue more than doubled, rising to a high of $15.80 per share March 3.

After easing back gradually to close at $7.86 on March 15 the stock again jumped more than 24 percent March 16 after Mark Cuban, who owns the Dallas Mavericks professional basketball team, said he owned a 6.3 percent stake in the company.

(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.

Posted by Baseball Crank at 9:55 AM | Law 2002-04 | Comments (1) | TrackBack (2)
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."

Posted by Baseball Crank at 7:37 AM | Law 2002-04 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 6:54 AM | Law 2002-04 | Comments (0) | TrackBack (0)
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."

But "Now" in the Third Circuit, each active judge was responsible for deciding 381 cases in 2002, 327 in 2001, 330 in 2000; and 381 in 1997. That's fully briefed cases on the merits. The national average in 2002 was 485 per active judge, up from 429 in 1997. Divide 485 cases by 255 working days a year and you start to get the message I have been preaching for years -- to no avail. One-A-Day is a great name for vitamins, but I doubt that it's equally great in describing the caseload for U.S. Circuit judges.

You must understand that the case you file with us moves along an assembly line of over one case every 4.9 hours. Think about it. That's the time allotted to your case. In that time, the judge must read the briefs, research the law, perhaps hear argument, conference with colleagues, make a decision, write an opinion or order, examine draft opinions written by other judges, and at the same time study motions in other cases or petitions for rehearing. And, of course, travel to the court, check into the hotel. Answer the phone. One fully briefed case for decision every 4.9 hours.

All of this in the highest court to which a federal litigant has a right to take an appeal. Today there is no quiet library time. The circuit judge is on a treadmill, and your case comes to him or her in the midst of a gallop. No time to taste the morsels you dish up for a leisurely dinner here -- a fast-food menu is all that's available.

(Emphasis added).

Posted by Baseball Crank at 6:29 AM | Law 2002-04 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 7:59 AM | Law 2002-04 | Comments (2) | TrackBack (0)
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.

Posted by Baseball Crank at 11:44 PM | Law 2002-04 | Comments (0) | TrackBack (0)
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:

Read More »


Posted by Baseball Crank at 7:30 AM | Law 2002-04 | Comments (2) | TrackBack (0)
March 9, 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.

Posted by Baseball Crank at 7:54 AM | Law 2002-04 | Comments (0) | TrackBack (0)
March 5, 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.

Posted by Baseball Crank at 3:07 PM | Law 2002-04 | Comments (1) | TrackBack (0)
March 4, 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.

Posted by Baseball Crank at 7:45 AM | Law 2002-04 | Comments (0) | TrackBack (0)
March 2, 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.

Posted by Baseball Crank at 6:51 AM | Law 2002-04 • | Religion | Comments (3) | TrackBack (0)
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 [1] "described the [alleged standing order] agreement to sell ImClone at a predetermined price, [2] stated that her trade was proper and [3] 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):

Read More »


Posted by Baseball Crank at 5:01 PM | Law 2002-04 | Comments (0) | TrackBack (0)
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:

Read More »


Posted by Baseball Crank at 7:48 AM | Law 2002-04 • | Politics 2004 | Comments (4) | TrackBack (2)
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.
2. Call the president and other opponents of gay marriage bigots.
3. Ask whether the president doesn't have better things to do than worry about this issue.
4. Argue that we shouldn't go amending the Constitution over this issue.
5. Suggest that this is all politically motivated.

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.

Read More »


Posted by Baseball Crank at 7:45 AM | Law 2002-04 • | Politics 2004 | Comments (20) | TrackBack (0)
February 25, 2004
LAW: [sic]

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.

Posted by Baseball Crank at 11:47 PM | Law 2002-04 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 10:30 PM | Law 2002-04 • | War 2004 | Comments (3) | TrackBack (0)
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.

The regulatory framework that exists in this case demonstrates how, in certain circumstances, regulation significantly diminishes the likelihood of major antitrust harm. Consider, for example, the statutory restrictions upon Verizons entry into the potentially lucrative market for long-distance service. To be allowed to enter the long-distance market in the first place, an incumbent LEC must be on good behavior in its local market. Authorization by the FCC requires state-by-state satisfaction of 271s competitive checklist, which as we have noted includes the nondiscriminatory provision of access to UNEs. Section 271 applications to provide long-distance service have now been approved for incumbent LECs in 47 States and the District of Columbia.

* * *

Against the slight benefits of antitrust intervention here, we must weigh a realistic assessment of its costs. Under the best of circumstances, applying the requirements of 2 can be difficult because the means of illicit exclusion, like the means of legitimate competition, are myriad. United States v. Microsoft Corp., 253 F.3d 34, 58 (CADC 2001) (en banc) (per curiam). Mistaken inferences and the resulting false condemnations are especially costly, because they chill the very conduct the antitrust laws are designed to protect. The cost of false positives counsels against an undue expansion of 2 liability. One false-positive risk is that an incumbent LECs failure to provide a service with sufficient alacrity might have nothing to do with exclusion. Allegations of violations of 251(c)(3) duties are difficult for antitrust courts to evaluate, not only because they are highly technical, but also because they are likely to be extremely numerous, given the incessant, complex, and constantly changing interaction of competitive and incumbent LECs implementing the sharing and interconnection obligations. Amici States have filed a brief asserting that competitive LECs are threatened with death by a thousand cuts, Brief for New York et al. as Amici Curiae 10 (internal quotation marks omitted)-the identification of which would surely be a daunting task for a generalist antitrust court. Judicial oversight under the Sherman Act would seem destined to distort investment and lead to a new layer of interminable litigation, atop the variety of litigation routes already available to and actively pursued by competitive LECs.

Even if the problem of false positives did not exist, conduct consisting of anticompetitive violations of 251 may be, as we have concluded with respect to above-cost predatory pricing schemes, beyond the practical ability of a judicial tribunal to control. Effective remediation of violations of regulatory sharing requirements will ordinarily require continuing supervision of a highly detailed decree. We think that Professor Areeda got it exactly right: No court should impose a duty to deal that it cannot explain or adequately and reasonably supervise. The problem should be deemed irremedia[ble] by antitrust law when compulsory access requires the court to assume the day-to-day controls characteristic of a regulatory agency. Areeda, 58 Antitrust L. J., at 853. In this case, respondent has requested an equitable decree to [p]reliminarily and permanently enjoi[n] [Verizon] from providing access to the local loop market to [rivals] on terms and conditions that are not as favorable as those that Verizon enjoys. App. 49-50. An antitrust court is unlikely to be an effective day-to-day enforcer of these detailed sharing obligations.

(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.

Posted by Baseball Crank at 7:58 AM | Law 2002-04 | Comments (0) | TrackBack (0)
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 2002-05 • | Law 2002-04 • | 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?

A: Yes. I was a victim of an attempted carjacking.

Q: How was it stopped - did you fight off the attacker yourself?

A: Yes. I've been trained in the martial arts. [At this point, I and the other jurors are deeply impressed]

Q: Were you satisfied with how the justice system handled the case?

A: No. They said that because I continued hitting him after he dropped his weapon, they couldn't press charges. He actually brought charges against me, and there was a civil suit, and it was resolved by both sides dropping all charges.

You just gotta love our legal system sometimes. You can't make this stuff up.

Posted by Baseball Crank at 6:34 AM | Law 2002-04 | Comments (0) | TrackBack (0)
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:

25. Michael Lewis, Moneyball: This would rank higher except that so much of the story was already familiar to me, although in a few years' time I might change my mind. I discussed Moneyball here.

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.

If only.

1. The Bill James Historical Baseball Abstract:

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).

Honorable Mentions:

Read More »


Posted by Baseball Crank at 6:48 AM | Baseball 2004 • | Law 2002-04 • | 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.'"

2. A "label on a snow sled which says: 'Beware: sled may develop high speed under certain snow conditions.'"

3. "[A] 12-inch-high storage rack for compact disks which warns: 'Do not use as a ladder.'"

4. "A five-inch fishing lure which sports three steel hooks and cautions users that it is, 'Harmful if swallowed,' . . . " (The link has a picture of the lure).

5. "[A] smoke detector which warns: 'Do not use the Silence Feature in emergency situations. It will not extinguish a fire,' . . . "

(I know I found this through Pejman, but I couldn't trace back the link).

Posted by Baseball Crank at 11:04 AM | Law 2002-04 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 10:53 AM | Law 2002-04 | Comments (0) | TrackBack (0)
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).

Posted by Baseball Crank at 10:45 AM | Law 2002-04 • | Politics 2004 | Comments (0) | TrackBack (0)
January 8, 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).

Posted by Baseball Crank at 6:18 AM | Law 2002-04 • | Politics 2004 | Comments (0) | TrackBack (0)
January 5, 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?

Posted by Baseball Crank at 10:32 PM | Law 2002-04 | Comments (0) | TrackBack (0)
January 2, 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).

Posted by Baseball Crank at 9:33 PM | Law 2002-04 • | Politics 2004 | Comments (0) | TrackBack (0)
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?

One possibility is tactical. Justice Scalia may think that if he doesn't point out the logical consequences of his colleagues' decisions, somebody else will. Our nation faces no shortage of creative lawyers who know how to read a Supreme Court opinion for all it's worth. Perhaps Justice Scalia reasons that he does his own causes no harm by skewering his colleagues with what he regards as the plainly undesirable consequences of their decisions.

But such tactics--if that is what they are--seem ill-advised. There is a world of difference between a lawyer arguing that a precedent entails some result and a Supreme Court Justice doing so. In the latter case--especially if the majority does not specifically respond to the dissenting Justice's parade of supposed horribles--it is a plausible inference that the majority accepts those results as consequences of the principle it has announced (and may not even find them so horrible after all).

Ultimately, Justice Scalia's pointed dissents in the Texas sodomy case and the Denver affirmative action case seem more the product of ill temper, than of careful tactics.

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.

Posted by Baseball Crank at 6:17 AM | Law 2002-04 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 12:53 PM | Law 2002-04 | Comments (0) | TrackBack (0)
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."

These arguments, of course, echoed the defense of the Clintons from the beginning: nothing to see here, old news, we were cleared by Arkansas regulators, nobody but Ken Starr would have investigated this stuff, yada yada yada.

The key passage:

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.

The Clintons nevertheless argue that the DOJ would have conducted a substantially lesser investigation than that of the IC. The facts would not appear to substantiate this argument. Another independent counsel, albeit regulatory, had been appointed to investigate the matter, and in the short period he was in office he conducted an extensive investigation spending several hundred thousand dollars.

Indeed.

Posted by Baseball Crank at 10:32 PM | Law 2002-04 • | Politics 2002-03 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 4:45 PM | Law 2002-04 | Comments (0) | TrackBack (0)
December 2, 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:

Read More »


Posted by Baseball Crank at 7:07 AM | Law 2002-04 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 10:08 PM | Law 2002-04 | Comments (1) | TrackBack (0)
November 5, 2003
LAW: Cop Killing

Jerk.

Posted by Baseball Crank at 9:15 AM | Law 2002-04 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 5:26 AM | Law 2002-04 • | Politics 2002-03 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 10:54 PM | Law 2002-04 | Comments (0) | TrackBack (0)
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).

Posted by Baseball Crank at 6:24 AM | Law 2002-04 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 6:12 AM | Law 2002-04 | Comments (0) | TrackBack (0)
October 8, 2003
LAW: The Wisdom of Solomon

In the news down here in Washington, students at Georgetown Universitys Law Center protested the schools decision to allow the military to recruit on campus, since the Dont Ask, Dont 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 Dont Ask, Dont 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.

Posted by Baseball Crank at 12:00 PM | Law 2002-04 | Comments (0) | TrackBack (0)
POLITICS/LAW: Documents

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.

UPDATE: Josh Marshall cuts and pastes Kleiman's argument makes the same mistake.

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."

Posted by Baseball Crank at 7:04 AM | Law 2002-04 • | Politics 2002-03 | Comments (0) | TrackBack (0)
October 2, 2003
LAW: In Chaos There Is Opportunity

The SEC rounds up stock promoters who are alleged to have falsley touted an anti-anthrax drug in the fall of 2001.

Posted by Baseball Crank at 7:42 AM | Law 2002-04 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 6:00 PM | Law 2002-04 • | War 2002-03 | Comments (0) | TrackBack (0)
September 4, 2003
LAW: More Estrada

Lawrence Solum has much, much to say about Estrada.

Posted by Baseball Crank at 10:33 PM | Law 2002-04 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 5:53 AM | Law 2002-04 | Comments (0) | TrackBack (0)
August 27, 2003
LAW: Abuse

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.

Read this opinion from the United States District Court for the District of Columbia (opens as PDF file) -- in, what else, a case charging disability discrimination, sexual harrassment and retaliation, plus a few other brainstorms of the Democratic Party in the late 80s and early 90s -- to see a particularly lethal cocktail of these elements and how they appear to have been badly abused by a dishonest plaintiff. As you are reading this, reflect on the fact that the federal agency at issue has been stuck defending this case since March of 1998, and on how much lawyering and how many hours of time of not only attorneys but witnesses, doctors, investigators and a federal judge were wasted by this one individual litigant.

Now, you can say that this is an extreme case, and it is, at least in the extent to which the plaintiff's misbehavior was caught out, documented and sanctioned. But talk to any employment lawyer -- whether they represent the government or private business -- and you will hear story after story of people who use litigation like this to cover for the fact that they are just unable to bear the adult responsibilities of the working world, or to squeeze some extra dollars out of a company that had layoffs and had to pick somebody to let go.

Posted by Baseball Crank at 7:12 AM | Law 2002-04 | Comments (1) | TrackBack (1)
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.

Posted by Baseball Crank at 11:30 PM | Law 2002-04 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 6:39 AM | Law 2002-04 | Comments (0) | TrackBack (0)
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."

Posted by Baseball Crank at 7:04 AM | Law 2002-04 | Comments (0) | TrackBack (0)
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"?

Posted by Baseball Crank at 9:38 AM | Law 2002-04 | Comments (0) | TrackBack (0)
August 8, 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.

There's some weight to this objection; what's interesting is that it essentially mirrors one of Scalia's own objections to the use of legislative history in statutory interpretation (from his concurrence in Crosby v. National Foreign Trade Council):

[T]he portion of the Courts opinion that I consider irrelevant is quite extensive, comprising, in total, about one-tenth of the opinions size and (since it is in footnote type) even more of the opinions content. I consider that to be not just wasteful (it was not preordained, after all, that this was to be a 25-page essay) but harmful, since it tells future litigants that, even when a statute is clear on its face, and its effects clear upon the record, statements from the legislative history may help (and presumably harm) the case. If so, they must be researched and discussed by counselwhich makes appellate litigation considerably more time consuming, and hence considerably more expensive, than it need be. This to my mind outweighs the arguable good that may come of such persistent irrelevancy, at least when it is indulged in the margins: that it may encourage readers to ignore our footnotes.

Posted by Baseball Crank at 6:28 AM | Law 2002-04 | Comments (0) | TrackBack (0)
LAW: Now That's Foreign!

Via Professor Tung Yin, a hilarious parody of Justice Ginsburg's ode to foreign law:

[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.

ScrappleFace has a similar thought.

Posted by Baseball Crank at 6:25 AM | Law 2002-04 | Comments (0) | TrackBack (0)
August 7, 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.

Posted by Baseball Crank at 7:10 AM | Law 2002-04 | Comments (0) | TrackBack (0)
August 5, 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.

Posted by Baseball Crank at 6:35 AM | Law 2002-04 | Comments (0) | TrackBack (0)
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).

Posted by Baseball Crank at 6:33 AM | Law 2002-04 • | Politics 2002-03 | Comments (0) | TrackBack (0)
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 »


Posted by Baseball Crank at 10:25 AM | Law 2002-04 | Comments (0) | TrackBack (1)
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!

Posted by Baseball Crank at 12:06 AM | Law 2002-04 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 7:19 AM | Basketball • | Law 2002-04 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 7:12 AM | Law 2002-04 | Comments (0) | TrackBack (0)
July 8, 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.
"Many of them think President Bush nominated Erik Estrada I'd say a good third think that way," Mr. Bendixen said, adding that he heard one person say Mr. Estrada should be confirmed because he did such a good job playing a policeman on "CHiPS."

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 2002-04 • | Politics 2002-03 • | Pop Culture | Comments (0) | TrackBack (0)
July 2, 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.

Posted by Baseball Crank at 6:43 AM | Law 2002-04 | Comments (0) | TrackBack (0)
July 1, 2003
POLITICS/LAW: Charity Begins

From Jay Nordlinger's Impromptus on NRO:

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.

Posted by Baseball Crank at 7:52 AM | Law 2002-04 • | Politics 2002-03 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 7:49 AM | Law 2002-04 | Comments (1) | TrackBack (0)
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.

Posted by Baseball Crank at 9:34 AM | Law 2002-04 | Comments (0) | TrackBack (0)
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?

Posted by Baseball Crank at 11:46 AM | Law 2002-04 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 6:33 AM | Law 2002-04 • | Politics 2002-03 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 7:19 AM | Law 2002-04 | Comments (0) | TrackBack (0)
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).

Posted by Baseball Crank at 6:45 AM | Law 2002-04 • | Politics 2002-03 | Comments (4) | TrackBack (0)
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.

Posted by Baseball Crank at 10:49 AM | Law 2002-04 • | Politics 2002-03 | Comments (1) | TrackBack (0)
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).

Posted by Baseball Crank at 6:59 AM | Law 2002-04 | Comments (0) | TrackBack (0)
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.
2. Hate crimes statutes can easily be abused to pick on unpopular or controversial defendants or to reach things that only a hardened leftist would think of as "hate."
3. Hate crimes are an excuse for providing unequal protection of the law; we should be in the business of punishing and discouraging all crimes, not just crimes against "protected classes".
4. Relatedly, hate crimes laws draw us into unnecessary debates about who should be specially protected by the law. Consider the persistent debate over whether hate crimes statutes should extend to crimes against gays.
5. Hate crimes laws wind up violating the spirit of the important constitutional policy against double jeopardy (even if they don't technically violate the Fifth Amendment), and are often used to get a "second bite at the apple" for unpopular criminal defendants in high-profile cases.
6. In other cases, hate crimes laws are totally unnecessary; in Texas, as George W. Bush pointed out in the 2000 presidential debates, 2 of the 3 men convicted in the dragging death of James Byrd were sentenced to death, and you can't well add to that punishment.

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.

Posted by Baseball Crank at 7:02 AM | Law 2002-04 | Comments (3) | TrackBack (0)
June 8, 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.

Posted by Baseball Crank at 9:53 PM | Law 2002-04 • | Politics 2002-03 | Comments (1) | TrackBack (0)
June 7, 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:

Read More »


Posted by Baseball Crank at 10:16 PM | Law 2002-04 • | War 2002-03 | Comments (2) | TrackBack (0)
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.

Read More »


Posted by Baseball Crank at 8:53 AM | Law 2002-04 • | Politics 2002-03 | Comments (5) | TrackBack (0)
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.

Posted by Baseball Crank at 6:50 AM | Law 2002-04 | Comments (0) | TrackBack (0)
May 8, 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 . . .

Posted by Baseball Crank at 8:47 AM | Law 2002-04 | Comments (0) | TrackBack (0)
May 5, 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!

rehnquist_doll.jpeg

Posted by Baseball Crank at 3:19 PM | Law 2002-04 | Comments (0) | TrackBack (0)
May 2, 2003
LAW/POP CULTURE: Personal Injuries

Now this sounds like my kind of lawsuit.

Posted by Baseball Crank at 12:30 AM | Law 2002-04 • | Pop Culture | Comments (0) | TrackBack (0)
April 26, 2003
LAW: Lawyer Joke

Doc Weevil has an old but still amusing lawyer joke.

Posted by Baseball Crank at 12:53 PM | Law 2002-04 | Comments (0) | TrackBack (0)
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.

Read More »


Posted by Baseball Crank at 1:02 AM | Law 2002-04 | Comments (1) | TrackBack (0)
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.

Posted by Baseball Crank at 12:47 AM | Law 2002-04 • | Politics 2002-03 | Comments (1) | TrackBack (0)
April 21, 2003
LAW/BUSINESS: AOLTimeWarner On The Hot Seat

The Washington Post reports on a probe of AOLTimeWarner by the SEC.

Posted by Baseball Crank at 11:41 PM | Business • | Law 2002-04 | Comments (0) | TrackBack (0)
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)

Posted by Baseball Crank at 6:57 AM | Law 2002-04 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 6:36 AM | Blog 2002-05 • | Law 2002-04 | Comments (0) | TrackBack (0)
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?

Posted by Baseball Crank at 7:38 AM | Law 2002-04 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 7:34 AM | Law 2002-04 | Comments (0) | TrackBack (0)
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 companys nationwide conduct and operations. The Courts 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: Federalisms Edge.

Read More »


Posted by Baseball Crank at 7:17 AM | Law 2002-04 | Comments (3) | TrackBack (0)
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 . . .

Posted by Baseball Crank at 7:04 AM | Law 2002-04 • | War 2002-03 | Comments (2) | TrackBack (0)
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.

Posted by Baseball Crank at 6:57 AM | Law 2002-04 | Comments (0) | TrackBack (0)
LAW: Do Smoking Bans Kill?

This story is a depressing example of getting away with murder.

Posted by Baseball Crank at 6:50 AM | Law 2002-04 | Comments (0) | TrackBack (0)
April 14, 2003
DISCLAIMERS AND TERMS OF USE

As you would expect for a site created by a lawyer, there are important disclaimers and Terms of Use that you should be aware of in observing this site:

1. All statements herein are the statements of the author (i.e., the person whose pseudonym is listed with the entry) and do not represent the views of the author's employer, the author's clients (if the author is an attorney), the author's family, the other authors, or anyone else who has anything to do with the author.

2. All statements on this blog are opinions based on publicly disclosed facts and are accordingly protected expression under the First Amendment to the United States Constitution. No attempt has been made to independently verify any statement of fact.

3. Notwithstanding the fact that the authors of this blog are lawyers, nothing on this site should be taken to constitute legal advice or the practice of law, or to create an attorney-client relationship between the authors and the reader.

4. The maintenance and updating of this website does not constitute an intent to avail the authors of the benefits and protections of any jurisdiction other than the one in which each author resides. Readers may not be able to obtain jurisdiction over the authors.

5. The authors of the blog are not responsible for statements made in the comment boards, and make no representation that we can or will read all comments. We do, however, reserve the right - in our sole discretion - to remove comments, edit comments to excise offensive language, ban specific individuals from posting comments, or abolish the comment feature entirely.

6. CONFLICTS POLICY: The authors of this blog are lawyers. While it would be the better journalistic practice to disclose when we comment on something that we or our employers or clients may have an interest in, we generally do not make such disclosures, on the theory that doing so might involve disclosing more than we should about our employers and clients. So, take that for what it's worth.

7. The authors of this blog may, from time to time, be in possession of material, nonpublic information regarding companies whose securities are publicly traded. Nothing on this blog shall be read to create any duty to disclose such information or otherwise to create any liability relating in any way to purchases or sales of securities.

Posted by Baseball Crank at 11:54 PM | Blog 2002-05 • | Law 2002-04 | Comments (1) | TrackBack (1)
April 11, 2003
LAW: The Gig Is Up

The gig is up for Vincent 'the Chin' Gigante.

Posted by Baseball Crank at 7:04 AM | Law 2002-04 | Comments (0) | TrackBack (0)
April 4, 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').

Posted by Baseball Crank at 6:35 AM | Law 2002-04 | Comments (0) | TrackBack (0)
April 3, 2003
LAW: Stooopid

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."

Unbelievable.

Posted by Baseball Crank at 10:08 AM | Law 2002-04 | Comments (0) | TrackBack (0)
April 1, 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)

Posted by Baseball Crank at 6:59 AM | Law 2002-04 • | Politics 2002-03 | Comments (0) | TrackBack (0)
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.
Now, I haven't read Tribe's article, although the excerpts presented by Berkowitz and Wittes are lengthy. My own reaction at the time was that the real problem with the recount was the absence of a rational basis for the post hoc judicial remedy, and if the result of Bush v. Gore is more scrutiny of judicial remedies ordered after an election, when judges are most likely to be tempted to bend the rules, it's hard to argue with that. After all, recall that the Bush v. Gore decision ultimately restored the status quo; what was subjected to constitutional scrutiny was the remedy ordered by a state appellate court.

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.

Posted by Baseball Crank at 10:51 AM | Law 2002-04 • | Politics 2002-03 | Comments (0) | TrackBack (0)
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).

Posted by Baseball Crank at 7:26 AM | Law 2002-04 | Comments (0) | TrackBack (0)
March 4, 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."

Posted by Baseball Crank at 7:00 AM | Law 2002-04 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 6:31 AM | Law 2002-04 • | Politics 2002-03 | Comments (0) | TrackBack (0)
March 1, 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.

Posted by Baseball Crank at 9:07 PM | Law 2002-04 • | Politics 2002-03 | Comments (0) | TrackBack (0)
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" somehowtoo 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 diversityand 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.

Posted by Baseball Crank at 10:59 PM | Law 2002-04 • | Politics 2002-03 | Comments (0) | TrackBack (0)
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 . . .

Posted by Baseball Crank at 9:38 PM | Law 2002-04 | Comments (0) | TrackBack (0)
February 20, 2003
LAW/POLITICS: Who Speaks For Michigan?

Political State Report notes a controversy in Michigan, where the state's Democratic Attorney General has refused to file a brief supporting the University of Michigan's racial preference program.

Posted by Baseball Crank at 6:54 AM | Law 2002-04 • | Politics 2002-03 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 7:54 PM | Law 2002-04 | Comments (0) | TrackBack (0)
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).

Posted by Baseball Crank at 7:52 PM | Law 2002-04 • | Politics 2002-03 | Comments (0) | TrackBack (0)
February 6, 2003
LAW: Douglas

Turns out that Justice William Douglas' World War I record was a fraud.

Posted by Baseball Crank at 10:28 PM | Law 2002-04 | Comments (0) | TrackBack (0)
February 3, 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."

Posted by Baseball Crank at 12:00 PM | Law 2002-04 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 9:03 AM | Law 2002-04 | Comments (0) | TrackBack (0)
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 plansnot 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.

Posted by Baseball Crank at 7:38 AM | Law 2002-04 • | Politics 2002-03 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 12:05 AM | Law 2002-04 | Comments (0) | TrackBack (0)
January 15, 2003
LAW: Brief of the Day

The New York Times tells us:

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.

Posted by Baseball Crank at 6:51 AM | Law 2002-04 | Comments (0) | TrackBack (0)
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)

Posted by Baseball Crank at 8:36 PM | Law 2002-04 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 9:25 AM | Law 2002-04 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 10:14 PM | Law 2002-04 • | Politics 2002-03 | Comments (0) | TrackBack (0)
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."

Posted by Baseball Crank at 12:10 PM | Law 2002-04 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 7:10 AM | Law 2002-04 • | Politics 2002-03 | Comments (0) | TrackBack (0)
December 4, 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).

Posted by Baseball Crank at 11:27 PM | Law 2002-04 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 10:02 AM | Law 2002-04 | Comments (0) | TrackBack (0)
LAW: Testa

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.

Posted by Baseball Crank at 9:42 AM | Law 2002-04 | Comments (0) | TrackBack (0)
December 3, 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.

Posted by Baseball Crank at 7:56 PM | Law 2002-04 | Comments (0) | TrackBack (0)
LAW: Clifford Chance Damage Control

Clifford Chance does some damage control in this substance-free New York Law Journal puff piece.

Posted by Baseball Crank at 3:37 PM | Law 2002-04 | Comments (0) | TrackBack (0)
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!

Posted by Baseball Crank at 9:10 PM | Law 2002-04 • | Pop Culture | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 11:55 AM | Law 2002-04 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 11:41 AM | Law 2002-04 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 4:37 PM | Law 2002-04 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 11:20 PM | Law 2002-04 • | War 2002-03 | Comments (0) | TrackBack (0)
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?

Posted by Baseball Crank at 8:45 AM | Law 2002-04 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 6:43 AM | Law 2002-04 | Comments (0) | TrackBack (0)
November 13, 2002
LAW: Detector

The perfect Christmas gift for the litigator on your list!

Posted by Baseball Crank at 7:52 AM | Law 2002-04 | Comments (0) | TrackBack (0)
November 7, 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.

Posted by Baseball Crank at 9:15 PM | Law 2002-04 • | War 2002-03 | Comments (0) | TrackBack (0)
November 5, 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 2002-04 • | Politics 2002-03 | Comments (0) | TrackBack (0)
November 4, 2002
LAW: J'Accuse

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.

Posted by Baseball Crank at 5:23 PM | Law 2002-04 | Comments (0) | TrackBack (0)
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"

Posted by Baseball Crank at 9:34 AM | Law 2002-04 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 10:32 PM | Basketball • | Law 2002-04 | Comments (0) | TrackBack (0)
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?

Posted by Baseball Crank at 7:57 PM | Law 2002-04 • | Pop Culture | Comments (0) | TrackBack (0)
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).

Posted by Baseball Crank at 11:53 AM | Law 2002-04 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 7:07 PM | Law 2002-04 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 10:50 PM | Law 2002-04 • | War 2002-03 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 9:20 AM | Law 2002-04 | Comments (0) | TrackBack (0)
October 24, 2002
LAW: Fatherhood

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.

Posted by Baseball Crank at 9:39 PM | Law 2002-04 | Comments (0) | TrackBack (0)
LAW: Fantasy Court-Watching

My younger brother sends this link: a fantasy league to track Supreme Court decisions! Nerdvana! Where do I sign up?

Posted by Baseball Crank at 8:06 AM | Law 2002-04 | Comments (0) | TrackBack (0)
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? Havent heard that one in -

(crack)

(/life)

This even the stupidest root-causer gets. But I doubt theyll admit it. Theyll 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 theyll look like someone pissing off the parapets of the tallest building in Cloud-Cuckoo Land.

I think theyre up to the job."

Posted by Baseball Crank at 6:21 AM | Law 2002-04 • | War 2002-03 | Comments (0) | TrackBack (0)
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.

Read More »


Posted by Baseball Crank at 10:27 PM | Law 2002-04 • | Politics 2002-03 | Comments (0) | TrackBack (0)
LAW: Sniper Sketch

A sketch artist touches up the latest composite of the DC sniper.

Posted by Baseball Crank at 9:56 PM | Law 2002-04 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 8:12 AM | Law 2002-04 • | Politics 2002-03 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 2:07 PM | Law 2002-04 • | War 2002-03 | Comments (0) | TrackBack (0)
LAW: Chutzpah

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.

Posted by Baseball Crank at 2:05 PM | Law 2002-04 | Comments (0) | TrackBack (0)
October 18, 2002
LAW: Johnny Cochran gets sued

Johnny Cochran gets sued. Who says there's no justice?

Posted by Baseball Crank at 11:15 PM | Law 2002-04 | Comments (2) | TrackBack (0)
October 17, 2002
LAW: Sniper

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?

Posted by Baseball Crank at 11:46 PM | Law 2002-04 | Comments (0) | TrackBack (0)
LAW: White Collar Case

The full Second Circuit is wrestling with a case that could have a huge impact on white-collar criminal prosecutions.

Posted by Baseball Crank at 10:43 AM | Law 2002-04 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 8:31 AM | Law 2002-04 • | Politics 2002-03 | Comments (0) | TrackBack (0)
WAR/LAW: Sniper=Terror

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.

Posted by Baseball Crank at 6:35 AM | Law 2002-04 • | War 2002-03 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 10:12 PM | Law 2002-04 • | Politics 2002-03 | Comments (0) | TrackBack (0)
LAW: No Hsia

Supreme Court denied certiorari in case of Maria Hsia, the Clinton-era campaign finance scandal figure. I noted the case and its significance here.

Posted by Baseball Crank at 12:05 PM | Law 2002-04 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 8:43 AM | Law 2002-04 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 7:54 PM | Law 2002-04 | Comments (0) | TrackBack (0)
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 None.

Q None?

A [sic] Did you work while you were out there?

A No.

Q What did you do all day?

A Occupied an office.

Posted by Baseball Crank at 3:44 PM | Law 2002-04 | Comments (0) | TrackBack (0)
October 8, 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).

Posted by Baseball Crank at 3:24 PM | Law 2002-04 | Comments (0) | TrackBack (0)
October 7, 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?

Posted by Baseball Crank at 9:19 PM | Law 2002-04 • | Politics 2002-03 | Comments (0) | TrackBack (0)
LAW: Memo to Supreme Court Watchers

the Chief Justice is screwing with your head.

Posted by Baseball Crank at 7:34 PM | Law 2002-04 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 2:21 PM | Law 2002-04 • | Politics 2002-03 | Comments (0) | TrackBack (0)
LAW: Fun

For all the lawyers out there.

Posted by Baseball Crank at 7:10 AM | Law 2002-04 | Comments (0) | TrackBack (0)
October 3, 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.

Posted by Baseball Crank at 7:40 AM | Law 2002-04 • | Politics 2002-03 | Comments (0) | TrackBack (0)
October 1, 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.

Posted by Baseball Crank at 10:25 PM | Law 2002-04 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 10:24 PM | Law 2002-04 | Comments (0) | TrackBack (0)
WAR/POLITICS/LAW: McDermott

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 6:26 AM | Law 2002-04 • | 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.

Posted by Baseball Crank at 9:39 AM | Law 2002-04 | Comments (0) | TrackBack (0)
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."

Posted by Baseball Crank at 10:41 AM | Law 2002-04 • | Politics 2002-03 | Comments (0) | TrackBack (0)
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.

We are told that in this case the applicant's lawyers did discuss her case with persons other than herself over the telephone. Is Big Brother to have a ringside seat where he can listen to all the confidences of lawyers who defend an accused? If so, what happens to the valued right of counsel protected by the Sixth Amendment?

* * *

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.

(footnotes omitted)

Posted by Baseball Crank at 6:24 AM | Law 2002-04 | Comments (0) | TrackBack (0)
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:

Read More »


Posted by Baseball Crank at 6:29 AM | Law 2002-04 | Comments (0) | TrackBack (0)
September 24, 2002
LAW/WAR: Alan Dershowitz, Prosecutor

Alan Dershowitz, prosecutor: My Criminal Law professor wants to try Yasser Arafat for first degree murder.

Posted by Baseball Crank at 10:33 PM | Law 2002-04 • | War 2002-03 | Comments (0) | TrackBack (0)
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 . . . "

Posted by Baseball Crank at 10:25 PM | Law 2002-04 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 10:25 AM | Law 2002-04 | Comments (0) | TrackBack (0)
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."

Posted by Baseball Crank at 9:51 PM | Law 2002-04 | Comments (0) | TrackBack (0)
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!''"

Posted by Baseball Crank at 9:55 PM | Law 2002-04 • | Politics 2002-03 | Comments (0) | TrackBack (0)
September 16, 2002
LAW: Late Breaking News

Late breaking news here in Manhattan: a shooting at an office building on 40th Street near Broadway.

Posted by Baseball Crank at 9:42 AM | Law 2002-04 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 8:37 PM | Law 2002-04 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 5:18 AM | Law 2002-04 | Comments (0) | TrackBack (0)
September 9, 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."

Posted by Baseball Crank at 3:34 PM | Law 2002-04 | Comments (0) | TrackBack (0)
September 8, 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.

Posted by Baseball Crank at 9:26 AM | Law 2002-04 • | Politics 2002-03 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 7:18 AM | Law 2002-04 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 7:05 AM | Law 2002-04 | Comments (0) | TrackBack (0)
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)

Posted by Baseball Crank at 9:21 PM | Law 2002-04 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 7:23 PM | Law 2002-04 • | War 2002-03 | Comments (0) | TrackBack (0)
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).

Posted by Baseball Crank at 7:17 PM | Law 2002-04 | Comments (0) | TrackBack (0)
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:

Read More »


Posted by Baseball Crank at 7:43 AM | Law 2002-04 • | Politics 2002-03 | Comments (0) | TrackBack (0)
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.

Posted by Baseball Crank at 7:54 AM | Law 2002-04 • | Politics 2002-03 | Comments (0) | TrackBack (0)
Site Meter