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:

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.

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: