Law 2002-04 Archives

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!

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.

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

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.

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.

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.

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:

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Reading this month’s ABA Journal, I came upon an annual rite of the holiday season as easy to predict as the Perils-Of-Trick-Or-Treating articles you see every Halloween or the Blinding-Of-Larry-Driscoll-type stories you read about fireworks every 4th of July. It could perhaps be classified as the Don’t-Get-Too-Drunk-At-Your-Law-Firm’s-Holiday-Party article. I had to laugh at this in particular anecdote:

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.

I’m sure John Ashcroft would be proud.

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).

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.

The latest example of judicial overreaching on social issues comes from the United States Court of Appeals for the Third Circuit, where a panel ruled on Monday in FAIR v. Rumsfeld (link opens 100+ page PDF file) that the Solomon Amendment violated the First Amendment freedoms of speech and association of university law schools. The Mad Hibernian noted the decision here; I first blogged about the Solomon Amendment here, on the second day of this blog's existence.

For those of you who are unfamiliar with the issue, the Solomon Amendment provides that universities may not continue to receive federal funding if they refuse to allow military recruiters on campus. Many colleges and, in particular, law schools banned military recruiters during the Vietnam War as an anti-war protest, although the bans that remain in effect today are mainly predicated, at least ostensibly, on a protest against the military's "don't-ask-don't-tell" policy towards gay servicemen and women. A group of law schools sued, saying that their freedom of speech and association was violated by making them, as a condition of receiving federal funding, accept recruiters on their campuses.

There is, of course, no constitutional right to federal funding, so the case turns on the doctrine of "unconstitutional conditions," by which the government may not impose an undue burden on the exercise of a fundamental right as a condition of receiving a benefit. In other words, the court had to balance the degree of imposition on the law schools' rights of speech and association with the strength of the government interest involved.

This is where the court's opinion is problematic.

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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 Hannity’s radio show. Not considering that the most reliable source and more than a little skeptical, I decided to check it out and, lo and behold, The Smoking Gun had the documentation, including the teacher’s complaint.

Politically, this is an example of Democrats needing to better police their fringes. I can’t imagine that the mainstream of that party is really opposed to the Declaration of Independence or shares such absolutist hostility to religion, but the cumulative effect of stories like this, fairly or unfairly, pushes a lot of otherwise undecided people into the Republican camp. It’s hard to get anyone to trust their children to people who think the ideas of people like Thomas Jefferson and John Adams are unfit for public schools.

Meanwhile, in a ruling I missed, the 3rd Circuit of the U.S. Court of Appeals handed down an outrageous opinion striking down the Solomon Amendment, which withholds federal funds from schools banning the military from appearing on campus. See here and here. (Academia, generally anti-military to begin with, frequently tries to ban groups like the ROTC or JAG recruiters on ideological grounds, the most fashionable recent pretext being protest of the military’s “Don’t Ask, Don’t Tell” policy.)

UPDATE: As you can probably tell, I feel very strongly about the issue of my taxpayer dollars going to institutions that ban our military from campus and have written in support of the Solomon Amendment in the past. This is a decision that politicians, from President Bush on down, need to condemn and the Supreme Court needs to reverse. It should not stand.

Dahlia Lithwick has a snarky look at the Supreme Court's oral arguments concerning California’s medical marijuana law, asking “should the court's staunchest conservatives get away with being for states' rights only when the state in question isn't California?”

I’m sympathetic to the medical marijuana law in question, defended in this case by Randy Barnett, and, in fact, would support a good deal of reform of American drug laws. Yet Lithwick’s accusations of hypocrisy would be a lot more convincing if the Court had not, on the very same day, (correctly) declined to hear a case challenging the Massachusetts Supreme Court’s (egregious) “gay marriage” ruling, presumably on federalism grounds.

Also, in a broader sense, this is an annoying form of argument. One gets the sense here that Lithwick doesn’t really believe in federalism, but supports using it as a justification for drug legalization at the state level. Isn’t that line of reasoning just as hypocritical as that which she prematurely accuses the Supreme Court of following?

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.

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)

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).

*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."

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?)

Professor Volokh explains why President Bush’s support for same-sex civil unions is not inconsistent with the current version of the Federal Marriage Amendment.

The difference lies in whether the people or the courts get to make the decision.

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.

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.

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.

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.

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.

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.

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.

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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.

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.

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).

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."

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."

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.

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.

Big but predictable end-of-term Supreme Court decision; really, it was compelled by any number of recent precedents.

Overlawyered has a horror story of seduction and blackmail . . . and nobody in the legal system willing to say a bad word about it.

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.

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.

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.

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.

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.

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.

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.

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 Kerry’s credibility? He stated on Sunday that Saddam had no connections to Al-Qaeda, an assertion that has now taken on the mantle of Absolute Fact.

Monday, Lileks gave a well-deserved Fisking to Andrew Sullivan's call for a regressive, growth-strangling gas tax. Read the whole thing.

Friday, Lileks offered up the best effort I've read yet to articulate the opposition to the gay marriage movement (indicative of his openness to honest debate on the one issue but not the other, Sullivan links to the gas tax Bleat but ignores this one). After noting that he doesn't have a religious issue with homosexual relations or with same-sex marriage, Lileks tears into the argument of an anthropologist in support of same-sex marriage, in terms that are worth reprinting here in full:

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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.

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."

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.

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).

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.

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.

Really, really big news from the Supreme Court Monday, although thus far among the major bloggers and blawgers I've seen only a brief, non-analytical writeup by Eugene Volokh and a bare-bones announcement from Howard Bashman (Tung Yin, call your office!). The Court's decision in Crawford v. Washington, No. 02-9410 (U.S. Mar. 8, 2004) amounts to a revolutionary reassessment of the Confrontation Clause of the Sixth Amendment, one that will have wide-ranging effects on the criminal justice system. Justice Scalia wrote the opinion for a 7-2 Court; the Court's decision to reverse the conviction was unanimous, but Chief Justice Rehnquist, joined by Justice O'Connor, disagreed with the Court's analysis.

The Sixth Amendment provides: “[i]n all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.” Crawford holds that the Clause bars the admission in criminal prosecutions of prior testimony unless the witness is unavailable and there was a prior opportunity for cross-examination. In so doing, the Court rejected the prior rule of Ohio v. Roberts, 448 U.S. 56, 66 (1980), under which such testimony, to be admitted, "must either fall within a 'firmly rooted hearsay exception' or bear 'particularized guarantees of trustworthiness.'". It was the latter part of the Roberts test -- allowing un-cross-examined prior testimony to be admitted if it was deemed to have sufficient indicia of reliability -- that prompted Justice Scalia's characteristically pithy observation that

Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes.

Slip op. at 27. The Court described the scope of its holding as follows:

Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law-as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. We leave for another day any effort to spell out a comprehensive definition of “testimonial.” Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.

Slip op. at 33 (emphasis added). The Court thus left unsettled such traditional hearsay exeptions issues as dying or other spontaneous declarations, and was also careful to note that its holding did not address non-hearsay statements such as statements in furtherance of a conspiracy.

Crawford is interesting academically; a good constitutional law professor could find much to discuss in the way Justice Scalia proceeded, after determining that the language of the Clause did not answer the questions at bar, to offer a historical exegesis of why the Framers of the Constitution feared inquisitorial practices under which out-of-court statements could be given to judicial or law enforcement officers and then admitted as evidence without cross-examination, as well as his explanation of why the Court should depart from its prior decision in Roberts: "[t]he framework is so unpredictable that it fails to provide meaningful protection from even core confrontation violations." Then there's his enviably concise explanation of how the new rule could be squared with past cases: "If nothing else, the test we announce is an empirically accurate explanation of the results our cases have reached."

But its real significance is in practice, where the decision - while it may handcuff law enforcement in some cases - will also do much to prevent abuses in the system:

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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.

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.

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.

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.

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):

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Following up on yesterday's argument . . . as I think you can tell, I'm hardly a bitter-ender on the substance of the gay marriage question. I don't necessarily think that the world would spin off its axis if we had gay marriage . . . frankly, I hadn't really thought about "gay rights" issues until maybe my senior year of college, and I've made a real effort since then to take in all sides of the issues. And while I don't have the patience to read as much on these issues as Andrew Sullivan puts out, I do try to read his stuff on this. But what I do take very seriously is the Left's concerted effort to impose radical social changes without ever getting the sanction of democratically elected representatives or explicit authority in the Constitution or statutes, and then turn around and call conservatives the radical ones.

Now, we've got yet another local official threatening to issue marriage licenses to gay couples, this time the mayor of New Paltz, New York (this is what you get for electing a 26-year-old Green Party mayor). As in California, this will suddenly put both the Governor and the state Attorney General in a very awkward position.

Tom Maguire, who's been all over this issue, points us to Ramesh Ponnuru's article on NRO essentially endorsing the same solution that Maguire, I and James Taranto would all prefer: an amendment that would do nothing more than leave exclusively to each state's legislature the question of what kind of marriages or civil unions to approve. Indeed, the WSJ comes out with an editorial today endorsing precisely this position:

Now, even some who support a constitutional remedy wonder about the language. There is debate about whether the amendment's language would bar states from endorsing civil unions, which Mr. Bush says they should be free to do. We think this entire issue should be decided in the states, by the people through their elected legislators. And if the voters want to alter the definition of marriage as a new social consensus develops, that should be their democratic right.

This is a popular position. Indeed, even Sullivan says "I will support a federal constitutional amendment that would solely say that no state is required to recognize a civil marriage from another state," although he contends that we should first wait for the courts to bulldoze all the existing legislation on the matter - at which point, I do question whether he'd argue that it's a "divisive" attempt to "roll back" the facts on the ground . . .

Given that the votes clearly will not be there for a more sweeping amendment - something such noted weak-kneed moderates as Tom DeLay seem to have already appreciated - those pushing for an amendment need to take what they can get. I agree with Taranto that the more modest solution would put John Kerry in even more of a terrible box than he's already in (as opposed to his current position, in which he (1) says that opposing gay marriage is bigoted and divisive and (2) says that he opposes gay marriage), since the GOP could honestly portray its effort as one that preserves the status quo without casting it in stone. Kerry would then be forced to bet his chips on the losing hand of opposing his own position - or face the wrath of the Left within his own party.

Turning briefly to the merits of gay marriage, a few non-comprehensive thoughts:

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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.

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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.

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.

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 Verizon’s 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 §271’s 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 LEC’s 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.

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.

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.

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:

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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).

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.

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).

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).

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?

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).

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.

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.

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.

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.

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 »

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.

Jerk.

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.

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.

Speaking of lawsuit mania, McDonald's has settled a suit brought by a 420-pound man who claimed disability discrimination (oh, the irony) based on his weight. The amount of the settlement was undisclosed and may well have been just for nuisance value, but what caught my eye was the claimed damages of $300,000 for loss of a $6.75/hour job. I ran the numbers, and this comes to 44,444.44 hours of work. Assuming that the hourly wage has a constant present value of $6.75, working 40 hours a week, that comes out to 1,111.11 weeks of work, which assuming 2 weeks off a year (for the sake of argument) would mean holding the job for 22 years.

Leaving aside the question of how many people actually work at McDonald's for 22 years, isn't it wonderful that people think our legal system can be used to get paid for 22 years of dreary, unfulfilling work -- without having to do the work itself?

(Yes, I know the article says he also wanted an order to give him the job, but if the damages aren't supposed to be a substitute for salary, then they are really just pure fluff pulled from the air).

Law.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.

In the news down here in Washington, students at Georgetown University’s Law Center protested the school’s decision to allow the military to recruit on campus, since the “Don’t Ask, Don’t Tell” policy allegedly conflicts with school policies mandating “anti-discrimination” compliance by employers. Similar grumbling recently took place at my former law school and, I suspect, goes on at virtually every such institution.

These protests, however, highlight the wisdom of the Solomon Amendment, which threatens revocation of all federal funding from a school if it refuses to allow the military to recruit on campus. Since the Vietnam War, liberal academic institutions, while proudly welcoming the most outrageous of advocacy groups, always find some reason to oppose allowing military or national security-related institutions to recruit or organize on their campuses. The “Don’t Ask, Don’t Tell” policy, an imperfect product of political meddling by the Clinton Administration, is their most recent target and, indeed, the merits of that policy are quite debatable.

Yet, in a post-9/11 world, one would think that schools would show a little more gratitude to the military, perhaps the most highly respected profession in modern America, and would somehow find a way to hold their noses and their tongues while the services come to speak to a new generation of willing individuals, prepared to serve their country and to defend the lives and rights of ungrateful idiots who dwell in ivory towers.

Mark Kleiman charges the White House with "an unspeakably sleazy trick that makes sense only as part of a cover-up" in the fact that documents that have been requested from White House employees by the Justice Department will be reviewed by the White House Counsel's office first and will be turned over to DOJ in two weeks. (Link via Calpundit; the same post is now up at Kleiman's new Movable Type blog).

My reaction: Kleiman and others complaining about the "two weeks" really have no clue about the work of laywers. For the White House Counsel's office to just turn over the file without reviewing everything would be irresponsible and tantamount to legal malpractice. I know we'd all love to see total, non-adversarial cooperation, but once you turn over the whole file to the Justice Department, you've got a heck of a time then arguing that the stuff is privileged when Larry Klayman and his ilk come knocking with FOIA requests (he could argue that you've waived any privileges by handing things over, and he'd have some legal support for that position). Two weeks to do a document production of this nature is not even close to a foot-dragging time frame.

I'm not suggesting the White House should take an aggressive position on privileges (or start inventing new ones, a la Bill Clinton). But any time you pull a big file of stuff, there may be things you shouldn't produce - attorney-client privileged communications, embarrassing and irrelevant personal stuff, and in this context, classified national security information that doesn't need to be spread around anymore than necessary. You do have to be careful if you don't want this one leak to open the door to more sensitive disclosures. Ask any lawyer who's represented a government agency, corporation, church, or other organizational client whether they would turn all this stuff over without anyone reviewing it.

Kleiman further claims that

This would be completely routine in a civil case. . . But in a criminal case it's unheard-of: investigators don't usually let the lawyer for one of the defendants take a look at all the documents submitted by the other potential defendants and key witnesses, even if that defendant happens to be the boss of all the others.

This is just not true, and Kleiman, a non-lawyer academic, obviously doesn't know what he's talking about. If a corporation gets a grand jury subpoena, and the company orders its employees to gather evidence, even if the investigation focuses on individuals rather than the company, you bet the company's lawyer will look at the documents. They are, after all, the company's own records. As Kleiman conveniently forgets -- and as Bill Clinton was wont to forget -- the White House counsel represents the institution of the presidency, not the president personally, and the people at issue here are employed by the executive branch. (I assume that the evidence being gathered here is people's work-related records, pursuant to requests made to the White House).

I haven't really gone into the whole Plame thing very far yet, in part because of the baseball playoffs and in part because there's only so much new I would have to add. But this particular gripe is just way overblown and a sign that guys like Kleiman are losing their grip on reality.

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."

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

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.

Lawrence Solum has much, much to say about Estrada.

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.

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.

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.

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.

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."

Ah, the long arm of the law: did you know that bars in California can get sued for having "Ladies Night"?

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 Court’s opinion that I consider irrelevant is quite extensive, comprising, in total, about one-tenth of the opinion’s size and (since it is in footnote type) even more of the opinion’s 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 counsel–which 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.

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.

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.

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.

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).

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:

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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!

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.

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.

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 . . .

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.

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.

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.

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.

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?

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.

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.

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).

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.

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).

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.

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.

I meant to blog about this when I got it a couple of months ago: of all the examples I've seen of shameless attempts to profit from the war in Iraq, few of them irritated me more than a letter I received that used the war as an excuse to ask for money for Harvard Law School. Of course, just asking for money's not enough; HLS has to use the occasion to ask for $1000 donation. The text of the letter is scanned below:

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Josh Marshall, who's been hung up on redistricting in Texas lately, argues:

Many of those who are defending -- professionally or otherwise -- the DeLay power-grab are arguing that courts simply should not be involved in drawing congressional maps, period. . . . we have an established system and DeLay & Co are changing it . . . the courts-out-of-elections mantle hangs rather heavy on a crew whose president owes his office to a judicial ruling.

Hmmmm. Dr. Marshall's memory of Florida 2000 is rather selective indeed if he expects us to believe that Al Gore would have won Florida if only the courts hadn't gotten involved! For those who have forgotten: there was a long established practice in presidential races of respecting the Election Day outcome, even when (as was the case in 1960 but not in 2000) there were credible bases to believe there had been fraud by the winning party. It was the Bush camp that argued all along that the courts shouldn't be involved in picking presidents, and it was the Gore team that pushed at every turn for a larger role for the court system, including asking the courts to disregard express statutory language enacted by the Florida Legislature and to disregard rulings of the Florida Secretary of State, to whom substantial authority was delegated under the Florida statutes.

In a similar vein, Yale law professor Jack Balkin has been arguing on his blog lately that Democrats are justified in breaking down traditional barriers in another way -- by filibustering appellate court nominees on purely ideological grounds -- because of their anger over Bush v. Gore. Balkin makes the hypocrisy/inconsistency charge a centerpiece of his argument that

[t]he five conservatives were the least likely, one would think, to extend the Warren Court's equal protection doctrines in the area of voting rights. Indeed, one member of the majority, Justice Scalia, is on record as opposing novel interpretations of the Equal Protection Clause that undermine traditional state practices. It is hard to imagine that if the parties had been reversed-and Vice-President Gore had been ahead by 537 votes-the five conservatives would have been so eager to review the decisions of a Republican Florida Supreme Court that was trying to ensure that every vote had been counted. The unseemliness of Bush v. Gore stems from the overwhelming suspicion that the members of the five person majority were willing to make things up out of whole cloth-and, equally importantly, contrary to the ways that they usually innovated-in order to ensure a Republican victory . . . The Justices could have avoided the appearance of a conflict of interest by simply remaining out of the fray . . .

(emphasis added). The quotation is from a Virginia Law Review piece by Balkin and Prof. Sanford Levinson.

Of course, "traditional state practices" is precisely what was not at issue in Bush v. Gore; the central and inescapable fact about the case is that it involved the Court's review of a judicial remedy, one crafted after the election, without any statutory basis, without precedent in history, and without anything but arbitrary standards to guide its implementation. I've posted here my reaction to Bush v. Gore written the day after it was decided, and the more I read about the case, the more I stand by my initial gut reaction to the decision; here's the key excerpt:

"[T]he Court went out of its way to limit this to the facts at hand, and to show how the current system wasn't so much discriminatory as it was lacking in any rational basis. Far more to the point, as far as consistency with conservative principles is concerned, the Court made clear that its decision does not (at least on its face) apply to the conduct of elections generally ("The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections"). Rather, the Court's decision focuses in on, and arguably applies a higher standard for, judicial proceedings to review elections ("[W]e are presented with a situation where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards. When a court orders a statewide remedy, there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied") (emphasis added). The net result is to counsel state as well as federal courts to be more circumspect in the future in ordering remedies in election cases where the remedy has not been explicitly set out in advance in a statute. It is this aspect of the decision that essentially constitutionalizes the James Baker Doctrine: you can't go to court to change the rules after the election."

In that sense, the Court's decision is deeply and profoundly conservative, and it is not surprising at all that the conservatives on the Court would have found the Florida court's approach so troubling, and so hazardous in its gravtitational pull of courts into what Balkin calls the "low politics" of partisan side-taking. By imposing a higher standard of scrutiny on post hoc judicial remedies in election cases, the Court has (admittedly, at some cost to its own short-term credibility with the public) erected a barrier to the use of courts, state or federal, in such adventures in "low politics" in the future.

As to the idea that the Justices could have "remain[ed] out of the fray" -- that's an awfully convenient bit of ledgermain, given that the matter had already been pushed into the court system. This is why I find it particularly laughable that some commentators have invoked the political question doctrine in this context: the doctrine says that some issues are just not suitable for courts to resolve. How can you apply that to say that courts can not review what are judicially crafted remedies in the first place?

What was clear to me at the time -- something that should have been familiar to any practicing litigator, though perhaps less so to a law professor -- was the extent to which the Court was reacting to the procedural posture of the case and the behavior of the court below.

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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.

From law.com: "Texas Court Upholds Butt Search for Crack"

I'd say you've got pretty good odds on that search . . .

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!

Now this sounds like my kind of lawsuit.

Doc Weevil has an old but still amusing lawyer joke.

Jacob Sullum, writing in the libertarian journal Reason, questions whether new federal legislation to protect against lawsuits against the gun industry is consistent with a narrow reading of the commerce power and a commitment to federalism. I haven't studied the bill he's addressing, but I do think it's worth considering the fact that at least some of the current litigation flies in the face of existing law on the Commerce Clause and conflicts with the principles I cited in my post on Federalism's Edge.

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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.

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

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)