Law 2005 Archives

I remain ambivalent about the death penalty on a number of levels, not least the question of under what circumstances a Catholic can support it. (On the other hand, as I've said before, the more I listen to opponents of the death penalty, the more I tend to lean towards supporting it). In particular, I'm not sure the death penalty is worth the economic cost, nor that it can be applied consistently enough in the case of ordinary homicides - armed robberies, individual feuds, domestic violence - to make the necessary deterrent effect worth the varied costs of the penalty. Anyway, more on that another day.

Because the execution of Stanley "Tookie" Williams seems to me to fall on the pro-execution side of an important line. What is significant about Williams' case is that he was responsible for being one of the founders of the vicious street gang the Crips; Williams set in motion an organization that specializes in preying on the weak and the vulnerable and corrupting the young and the impressionable. The case for the death penalty is at its strongest in dealing with organized crime - whether terrorists, street gangs, the KKK, the Mafia or the drug cartels - both because civilized society must use the means at its disposal to defend itself, and because the goal of deterrence is much more directly served when directed not at the general criminal population but at an organization whose members may know the defendant and who have reason to expect that they could be next.

Last Thursday, the New York Appellate Division, First Department - the intermediate appellate court in Manhattan - upheld, against constitutional challenge, the New York Domestic Relations Law's extension of marriage only to opposite-sex couples. (H/T: Althouse). In so doing, it touched on some arguments on the issue that I've been thinking about for some time now.

In particular, our democratic polity has a rational basis for preferentially allocating scarce resources to benefit opposite-sex rather than same-sex married couples to promote two vital interests: promoting the population growth needed to sustain a healthy society and discouraging illegitimacy and abortion.

Glenn Reynolds quotes the Washington Post:

Mental health practitioners say they regularly confront extreme forms of racism, homophobia and other prejudice in the course of therapy, and that some patients are disabled by these beliefs. As doctors increasingly weigh the effects of race and culture on mental illness, some are asking whether pathological bias ought to be an official psychiatric diagnosis.

Can lawsuits claiming that racists are a protected class entitled to sue under the Americans with Disabilities Act be far behind?

UPDATE: This is as good a time as any to recount my all-time favorite "ADA run amok" story: after the $5 billion Exxon Valdez verdict, which was supposed to send the message to Exxon not to hire drunks as ship captains . . . the EEOC sued Exxon for, essentially, having a policy of not hiring drunks as ship captains. The Fifth Circuit ruled in Exxon's favor after something like seven years of litigation, but its ruling merely set the case for further proceedings, and I'm not sure how it eventually came out. But the point was made: Exxon was damned if it did, and damned if it didn't.

Supreme Court correspondent Tony Mauro pens an odd dispatch (reg. req.) on John Roberts' first opinion as Chief Justice, a unanimous opinion for the Court in Martin v. Franklin Capital Corp., No. 04-1140 (U.S. Dec. 7, 2005):

The case, which interpreted the statute that governs the removal and remand of civil cases between state and federal courts, did not lend itself to soaring constitutional rhetoric, and it got none from the chief justice.

Instead it was a straightforward eight-and-a-half-page ruling with few flourishes and only one footnote. The Court ruled that when a case is removed to federal court but then sent back to state court, attorney fees should not be awarded when the party who sought removal had an objectively reasonable basis for doing so.

It is customary at the Court for a justice's first opinion to come in a case that draws no dissents. But Kenneth Geller of Mayer, Brown, Rowe & Maw, a longtime connoisseur of Supreme Court opinions, noted that Chief Justice Roberts "could have assigned himself anything. It shows some humility that he assigned himself such an unimportant case."

Mauro is right that the opinions issued this early in the term are usually unanimous dispositions of cases raising no major constitutional issues. But actually, I found this opinion to be both important and eloquent. Important, because successful remand motions are a fairly common event - maybe not to the average citizen, but to practicing lawyers - and thus the standard for awards of attorneys fees in that situation is a matter of practical significance. The need for the Supreme Court to revisit this issue being unlikely, this opinion will probably still be routinely cited a hundred years from now.

And eloquent, in Roberts' treatment of how courts deal with matters that are within the discretion of the district judge, in a passage that is likely to be widely cited outside of its narrow context:

The fact that an award of fees under Sec. 1447(c) is left to the district court's discretion, with no heavy congressional thumb on either side of the scales, does not mean that no legal standard governs that discretion. We have it on good authority that "a motion to [a court's] discretion is a motion, not to its inclination, but to its judgment; and its judgment is to be guided by sound legal principles." United States v. Burr, 25 F. Cas. 30, 35 (No. 14,692d) (CC Va. 1807) (Marshall, C. J.). Discretion is not whim, and limiting discretion according to legal standards helps promote the basic principle of justice that like cases should be decided alike. See Friendly, Indiscretion About Discretion, 31 Emory L. J. 747, 758 (1982). For these reasons, we have often limited courts' discretion to award fees despite the absence of express legislative restrictions. . .

(As some other commentators noted, Roberts managed to slip in citations to both judges he clerked for, then-Justice Rehnquist and legendary Second Circuit Judge Henry Friendly).

Anyone who has ever had trouble with a bar exam can take some comfort in seeing that prominent constitutional lawyer and former Stanford Law School Dean Kathleen Sullivan has failed the California bar. Click the link for the Angry Clam's explanation of why he thinks this would happen.

The Supreme Court just held (in an opinion by the as-yet-unretired Justice O'Connor) that if you are delinquent on your student loans, the government can take it out of your Social Security.

This decision of the US District Court in DC, Friday, reaffirming a prior decision, is a good illsutration of the same principle that underlay the courts' refusal to allow press freedom to trump the needs of Patrick Fitzgerald's investigation in the Plame case. The court here allowed a subpoena to a financial publisher (McGraw-Hill) who published market prices, so as to permit an investigation of an energy company accused of false reporting of those prices. The take-home lesson is that when the media is used as a necessary conduit in an alleged criminal act, it can't hide behind the First Amendment to avoid giving evidence.

SCOTUSBlog thinks yesterday's argument in FAIR v. Rumsfeld, the Solomon Amendment case, went very well for the US. Justice Scalia is pushing the idea that Congress is due particular deference on the subject of military recruiting due to its enumerated power to "to raise and support armies" under Article I.

David Bernstein had a fine point last week on why law schools should rethink military boycotts, during wartime, as a way of protesting policies adopted by Congress and the President:

A hypothetical: would it have been morally appropriate for law schools to ban military recruiters during World War II because of military segregation and discrimination, or would it have been morally superior to cooperate with the military and provide needed talent for WWII, while still urging the political branches to change the military's policies (as Truman eventually did in 1948)? . . . when people criticized Joe Louis for recruiting blacks to join the then-segregated military during WWII, he responded . . . "[t]here may be a whole lot wrong with America, but there's nothing that Hitler can fix."

UPDATE: Dahlia Lithwick has a lengthier and more colorful account of the argument, but is equally convinced that the law schools are going to lose.

Charges that Tom DeLay conspired to violate the Texas campaign finance statute are dismissed on the grounds that what he allegedly did wasn't a crime at the time, and Kos, displaying his usual grasp of factual and legal nuances, calls this "a technicality," pronouncing - in a phrase that would make George Orwell cringe - that this mere technicality is "that what is illegal now wasn't illegal under state law when DeLay committed his crimes."

Um, if they weren't illegal then, they weren't crimes. Now, some rules of criminal procedure, even ones with obvious constitutional roots, are technicalities, in the sense that they have nothing to do with guilt or innocence. The notion that you can't be prosecuted for something that wasn't against the law when you did it is not one of them, least of all in an area as heavily regulated as campaign finance law.

UPDATE: The decision dismissing the conspiracy indictment and upholding DeLay's indictment on money laundering charges is here. The court's decision seems persuasive on both grounds, that conspiracy to violate the Election Code was not a crime in 2002, and that the term "funds" in the money laundering statute can include funds paid by check.

The nutshell of what charge remains against DeLay is described thus:

If the state can prove that funds were obtained from corporate contributors by these defendants with the express intent of converting those funds to the use of individual candidates, or if the state can prove that these defendants entered into an agreement to convert monies already on hand, though originally received for lawful purposes, to that use by sending the money to the Republican National State Elections Committee with an agreement that funds of the same amount would then be made available by that committee to individual candidates for Texas political office, and can prove that funds in the same amount were in fact contributed to individual candidates by the Republican National State Elections Committee, then they will have established that money was laundered. The money would have become "dirty money" at the point it began to be held with the prohibited intent.

Correct me if I'm wrong, but on my understanding of the evidence, this framing of the issues is very, very bad news for DeLay, particularly the latter standard - while it may well be that DeLay wasn't particularly involved in the specifics of receipt and routing of particular funds, it seems pretty clear that he's the kind of guy who would be intensely involved in controlling where and to which candidates funds would end up being disbursed.

A Texas plaintiffs' firm specializing in silica and asbestos litigation lays off 8 attorneys and closes an office in response to a tort reform bill signed by Texas Governor Rick Perry that separates claims of injured from non-injured plaintiffs. The firm's managing partner says, "[w]e are not going to handle as many cases as we used to handle because of the reforms." (Reg. Req.)

The New York Observer notes Harvard Law School's tentative steps towards faculty diversity with the hiring of three right-leaning professors among 20 recent hires:

[R]ecent hires have . . . added to the conservatives' ranks. There is John Manning, 44, an expert on the separation of powers and the structure of government, who advocates for a strict reading of the U.S. Constitution, and 43-year-old Jack Goldsmith, an international-law expert known for questioning the efficacy of the International Criminal Court. Both are highly regarded scholars and former Republican administration officials (Bush I for Manning, Bush II for Goldsmith). . .

In addition to Messrs. Manning and Goldsmith, joining next year is Adrian Vermeule, a constitutional, statutory-interpretation and administrative-law specialist who takes a social-science approach, reading empirical research and looking for counterintuitive solutions. Mr. Vermeule is currently at the University of Chicago, where he has won various teaching awards. He has written about constitutional issues in the context of national security, arguing that restricting some liberties isn't at odds with the freedoms Americans enjoy, that people overreact in what he calls "libertarian panics." He has also argued for the death penalty on "pro-life grounds," citing studies that show it deters would-be killers. Yet he has also criticized some of what others see as the court's conservative activism.

It's a start. Link via Bashman.

An NYPD hero:

Stewart, in his last heroic moments, ignored the bullet that had pierced his heart and continued pursuit of the fleeing suspect yesterday - helping nail his alleged killer.

Not realizing he had been shot, Stewart, 35, continued to gun his unmarked police car through the streets of Flatbush, in close pursuit of the armed driver, speeding away in the 1990 Infiniti.

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After Stewart was shot, he still managed to tail Cameron to a garage, where police opened fire. Only then did Stewart realize he had been struck, police said.

"I got shot," a stunned Stewart told his partner as he clutched the bleeding wound under his left arm.

Stewart's fellow cops from Brooklyn's 70th Precinct bundled the wounded but conscious officer into the backseat of his own bullet-riddled car and sped him to Kings County Hospital, where he died despite valiant efforts to save him.

RIP.

Orrin Hatch, on a conversation at the Supreme Court, presumably during Rehnquist's tenure:

I attended a meeting at the U.S. Supreme Court at which some of the justices said to me, "you have to get rid of diversity jurisdiction." I stared the Chief Justice down, and said, "we’re not going to do that."

Hmmmm. Hat tip: Ann Althouse.

This is just too funny (bad language is prominently involved).

I did not know that Lindsey Graham is also an appeals judge (registration req.):

Sen. Lindsey Graham of South Carolina is also Judge Graham on a federal military court -- an arrangement that has drawn the Republican into a battle over the separation of powers.

Can Graham write laws as a senator and then interpret them as a military reserve judge? Does his job as a partisan politician prevent him from being impartial on the bench?

Those were the questions raised in a hearing Tuesday, when attorneys for Airman 1st Class Charles Lane argued that Lane was denied a proper appellate review of a cocaine conviction because Graham -- assigned two years ago as a reserve judge -- helped hear the appeal. It's a contention the government denies.

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The court Graham sits on is a lower appellate court -- the Air Force Court of Criminal Appeals at Bolling Air Force Base.

Graham has served in the military for more than two decades as an Air Force judge, prosecutor and defense lawyer, making him a recognized expert on military issues on Capitol Hill.

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He served on active duty in Germany in the 1980s, then in the South Carolina Air National Guard before transferring to the Reserves in the 1990s. He was elected to the Senate in 2002 after three terms in the House and became a Reserve Appellate Judge in October 2003.

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The reservist issue is not a new one.

A private group sued the government to challenge the practice of lawmakers serving as reservists during the 1970s, when more than 100 were doing so, said Spitzer.

Plaintiffs "felt Congress was so full of military officers that it created a conflict ... in favor of the military," he said of the case, which succeeded in the lower court but was reversed on appeal on the grounds the group didn't have standing to file the suit.

According to this AP report (via ConfirmThem), the schedule for the hearings on Judge Alito worked out by Arlen Specter with the Democrats calls for hearings beginning January 9, a committee vote on January 17, and a vote of the full Senate on Friday, January 20.

Which means that the final vote will likely come either that day or the next business day - Monday, January 23. Sunday, January 22, of course, is the 33d anniversary of Roe v. Wade. Coincidence? Even if it's not, you can be sure that the timing will ratchet up the tension over the vote.

Ace notes another bizarre decision, which would seem ripe for certiorari and reversal, discussed here - the Ninth Circuit struck down a California statute making it a crime to file a false complaint against a police officer:

The Ninth Circuit's rationale . . . is that because the statute is silent on penalizing false statements in support of the police, false allegations of abuse are being discriminated against on viewpoint grounds. . .

The 9th Circuit notes - for the purpose of discarding - that false statements against public officials are not protected by the First Amendment. The Court's problem in this case was the under-inclusiveness of the regulation - regulating false statements by the complainant while not prohibiting same by parties taking the opposite side. However, it is noted in the opinion itself that under-inclusiveness is also not barred by the First Amendment. (And since the stated problem the legislation was intended to address was an increase in false abuse allegations - the Court could have read the legislation as being narrowly tailored to address a specific problem rather than a sinister attempt to criminalize criticism of the government . . . )

The case for certiorari is strengthened by the fact that the Ninth Circuit, in so holding, expressly overruled the California Supreme Court, which had held that the statute was constititional. The Ninth Circuit's opinion is here (in PDF form). Frankly, having just skimmed the opinion, I'm not even sure why the First Amendment is implicated here: the complainant is free to make the false charge of police brutality, but is penalized only for making that false charge in the process of filing a complaint that triggers a legal process. The court's reasoning unintentionally makes this point crystal clear:

An illustration drawn from this case