Law 2006-08 Archives

It's the old story:
Boy searches for girl on SexSearch.com
Boy meets girl
Boy has sex with girl
Girl turns out to be 14
Boy gets arrested for sex with a minor
Boy sues SexSearch.com for allowing her to represent on her profile that she was 18.

The Sixth Circuit dismisses the case:

A risk is considered open and obvious when its "dangers are within the body of knowledge common to the community" and "generally known and recognized by the ordinary consumer." Gawloski v. Miller Brewing Co., 644 N.E.2d 731, 733 (Ohio Ct. App. 1994). In this case, the danger that a member of SexSearch could be a minor is open and obvious. Internet users' anonymity and potential for false personal representations are well known. Doe was familiar with the registration process and knew that SexSearch did nothing more than asking members to check a box indicating that they are at least eighteen. Furthermore, even if there was a duty to warn, the statement in the Terms and Conditions that SexSearch could not verify members' information could be seen as a satisfaction of that duty. Therefore, Doe has failed to state a claim for failure to warn.

From this to this to this, I'm starting to take an even dimmer view of my own profession than I already did. The first guy I actually dealt with on a case about ten years ago, and he did in fact seem like a perfectly reasonable guy.

Two thoughts on the Valley Stream Wal-Mart trampling story.

1. You need one seriously unruly crowd - at 5am! - to trample to death a man who is 6'5" and weighs 270 pounds.

2. Somehow, it seems there's a rush here - obviously by lawyers looking for deep pockets - to blame absolutely everybody except the people who trampled a guy to death to go shopping, and apparently did so only because he was in the way of a pregnant woman they were in the process of trampling. I mean, Wal-Mart is a store, not a zoo. It shouldn't have to anticipate people acting like this.

Apparently, marijuana-selling cafes near schools are too much even for the Dutch, and indeed there is broader concern that the cafes are, predictably, bad news:

The Dutch coffee shop policy has come under fresh criticism after the Dutch cities of Bergen op Zoom and Roosendaal, located near the Belgian border, said they will close all their shops within two years to combat drug tourism and crime.

Is this the last hurrah for the land of the Hemp Festival? Perhaps not, as apparently the inevitable result of the continuation of the legal-pot policy is on the way: the government becoming the nation's monopoly dope dealer:

HOLLAND is pioneering cannabis plantations to supply the drug to coffee shops in a bid to cut out criminal gangs.

Dozens of Dutch mayors voted for the scheme at a "weed summit" to discuss how to enforce their relaxed drug laws.

Cannabis can be legally sold at licensed shops and people can carry up to five grams without prosecution. But cultivation and dealing is outlawed, which has created an illicit two billion Euro ...annual trade. The plantations would supply cannabis legally.

Marijuana policy is a slippery thing to get hold of; there's a libertarian case to be made for letting people waste their lives getting high on a drug whose ill effects are more similar to those of booze and cigarettes than to those of crack or meth or heroin, and of course there's the fact that enforcement against such a widely-used and easily-grown substance tends by nature to be arbitrary, invasive, cost-ineffective and shot through with hypocrisy. But legalization, as the Dutch have had time to experience, nonetheless presents its own perils. Personally, I tend to think the issue ought to be left to the most local governments possible, and the Dutch experiment reminds us that a local-control regime can lead even the most libertine communities gradually to wake up and smell the potheads.

A look at how the election could affect the state court system.

Ah, the death of a talking point...we have news from Alaska that the investigator for the State Personnel Board has issued a report - contrary to the findings of the Legislature's independent investigator - and concluded that Gov. Palin did not abuse her authority in the case of State Trooper Michael Wooten, the controversy over "Tasergate" or, if you prefer, "Troopergate."

Let's do a Q&A on the 263-page Branchflower report, which I read from cover to cover, and on the 125-page Petumenos report, which I have only yet had the chance to skim. I may return to this after the election when we have more time to walk through the evidence (win or lose tomorrow, Gov. Palin will continue to be an important figure in national politics).

First, the Branchflower report:

(1) A report was issued by one man, Stephen Branchflower.

(2) Branchflower was handpicked, and his investigation directed, by Hollis French - an Obama supporter who has a personal axe to grind in the facts under investigation. Branchflower, French and Walt Monegan, the chief witness in the case, all appear to go way back together in Alaska law enforcement circles.

(3) The only wrongdoing Branchflower could find was under a general statute that says public officials may not engage in an "effort to benefit a personal ... interest through official action" - he did not find a violation of any specific statute, rule or regulation. To conclude that Gov. Palin's actions were in her personal interest rather than the best interests of the Alaskan people and their government, you must believe that her actions were actually wrong.

(4) In order to find that Gov. Palin's actions were actually wrong, Democrats must be willing to argue that an irresponsible and abusive state trooper who made death threats against Gov. Palin's father and menaced her sister in her hearing and used a Taser on a 10-year-old is a good person to have wielding armed authority on behalf of the State of Alaska. Because otherwise they are making a technical legal argument that she did the right thing in the wrong way - yet they don't have any technical violation to hang their hats on.

By contrast, the Personnel Board investigator, Timothy Petumenos, found no impropriety and concluded, regarding Branchflower's report:

Independent Counsel has concluded the wrong statute was used as a basis for the conclusions contained in the Branchflower Report, the Branchflower report misconstrued the available evidence and did not consider or obtain all of the material evidence that is required to properly reach findings.

Read on.

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An SEC Press Release issued today offers a clarification that may relieve institutions that feel compelled to use "mark to market" or "fair value" accounting for debt securities as to which there is no liquid market (I'll try to just offer a neutral description here; other people at my law firm will no doubt be offering our clients more detailed advice on this topic). This is just one aspect of the credit crisis, but MTM has acted as something of an accelerant for the financial troubles of institutions holding mortgage-backed securities for which there is no active market. Some people, mainly on the Right, have argued that suspending MTM would give needed breathing space and eliminate the need for Treasury to step in as market maker and buy up MBS, while others have argued that loosening the accounting rules just conceals the problem and delays the day of reckoning.

Anyway, today's statement offers at least some clarification that companies need not be rigidly tied in to market prices where there's no market:

When an active market for a security does not exist, the use of management estimates that incorporate current market participant expectations of future cash flows, and include appropriate risk premiums, is acceptable...The determination of fair value often requires significant judgment. In some cases, multiple inputs from different sources may collectively provide the best evidence of fair value.

The statement goes on to note that distressed sales may also not be the best evidence of fair value and deals with other indicia of value such as broker quotes and methods of determining impairment of an asset (recall that unlike, say, the New York Stock Exchange, markets for debt securities do not necessarily have instantaneous public price reporting of all transactions). This is one example of how the regulators are now acting to use the tools already at their disposal rather than wait for Congress to give definitive guidance.

More analysis here.

UPDATE: McCain camp notes they've been pressing this issue since March. Fuller statement excerpt here.

The very existence of this lawsuit makes me sad.

A divided panel of the DC Circuit this morning, in Free Enterprise Fund v. Public Company Accounting Oversight Board, No. 07-5127 (D.C. Cir. Aug. 22, 2008), rejected a challenge to the Public Company Accounting Oversight Board's appointment on separation of powers grounds; because of the lack of a severability clause in Sarbanes-Oxley, the challenge presented the possibility that the court would have had to declare the entire statute unconstitutional. Judge Judith Rogers, joined by Judge Janice Rogers Brown, found that the statute did not unduly dilute the executive branch's control over the PCAOB:

We hold, first, that the Act does not encroach upon the Appointment power because, in view of the [SEC]'s comprehensive control of the Board, Board members are subject to direction and supervision of the Commission and thus are inferior officers not required to be appointed by the President. Second, we hold that the for-cause limitations on the Commission's power to remove Board members and the President's power to remove Commissioners do not strip the President of sufficient power to influence the Board and thus do not contravene separation of powers, as that principle embraces independent agencies like the Commission and their exercise of broad authority over their subordinates.

Slip op. at 3 (emphasis added). In short, the court found "no instance in which the Board can make policy that the Commission cannot override." Id. at 33. The court did, however, find that the constitutional challenge was properly presented and did not require exhaustion of administrative review procedures. Id. at 7-8. Judge Brett Kavanaugh dissented, on essentially similar grounds to Justice Scalia's masterful (but lone) dissent in the 1988 independent counsel case, Morrison v. Olson, although he also argued that the constitutional problems here go beyond those in Morrison:

The President's power to remove is critical to the President's power to control the Executive Branch and perform his Article II responsibilities. Yet under this statute, the President is two levels of for-cause removal away from Board members, a previously unheard-of restriction on and attenuation of the President's authority over executive officers. This structure effectively eliminates any Presidential power to control the PCAOB, notwithstanding that the Board performs numerous regulatory and lawenforcement functions at the core of the executive power. So far as the parties, including the United States as intervenor, have been able to determine in the research reflected in their exhaustive and excellent briefs, never before in American history has there been an independent agency whose heads are appointed by and removable only for cause by another independent agency, rather than by the President or his alter ego. But that is the case with PCAOB members, who are removable for cause only by the SEC - and it is undisputed that the SEC as an independent agency is not the President's alter ego.

Presumably, the plaintiffs will petition the Supreme Court for cert; it remains to be seen if the Court takes the case.

UPDATE: The plaintiffs say they will either petition for cert or for rehearing en banc by the full DC Circuit.

FrankJ on Mexican nationals facing the death penalty in Texas: "A lot of those Mexicans came here illegally hoping to be treated like citizens. I guess they got their wish."

Heh.

I rather liked the first comment as well.

The full en banc 8th Circuit Court of Appeals handed a victory Friday to GOP Gov. Mike Rounds and the people of South Dakota, lifting an injunction sought by Planned Parenthood against a South Dakota statute that mandates disclosures to women seeking abortions about the consequences of their decisions, including disclosure of the fact that an "abortion will terminate the life of a whole, separate, unique, living human being." In no other area of the law is the Left so dedicated to preventing the full disclosure of facts to consumers. The 8th Circuit opinion, written by George W. Bush appointee Judge Raymond Gruender and joined by five other of President Bush's appointees to the bench, recognized Planned Parenthood's opposition to the disclosure of scientifically accurate facts for what it was.

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TIME Magazine's Massimo Calabresi thinks that Barack Obama is being savvy in "moving to the center" by announcing that he sides with the conservative bloc of the Supreme Court (and at least to some extent against his own prior positions) in supporting the individual Second Amendment right to own guns and the death penalty for child rapists. Plainly, Obama is hoping for gullible reactions like that of Jay Newton-Small, who tells us:

Of course, there's little Obama would be able to do to about either ruling, even as president. So, his comments come purely as opinions that give voters an idea of where he stands on the political spectrum.

What he's hoping to avoid is the reaction of Andrew Hyman, who notes that Obama voted against Justices Roberts and Alito (who he now supposedly agrees with) and cited Justices Breyer, Ginsburg and Souter as model Justices even though he now disavows their views on these cases. As Hyman observes, don't watch what Obama says but what his preferred judges do. Because Obama sure as heck is not going to put people like John Roberts on the Supreme Court, and as Calabresi admits, Obama won't be eager to talk about that:

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I get quoted by Reuters on one of my cases. It was a busy day, yesterday.

Justice Alito's opinion this morning in Davis v. FEC won't get as much attention as Heller, and breaks a lot less new ground, simply holding that Congress can't set up one set of contribution-and-expenditure campaign finance rules for everyone and then a second set of rules giving an unequal advantage intended to 'level the playing field' for candidates whose opponents are able to self-finance all or part of their campaigns (the so-called "Millionaires' Amendment," one of the more egregiously incumbent-protective features of McCain-Feingold). The Court's 5-4 majority (you can guess the lineup) didn't tinker with any of the existing and misguided structure of campaign finance regulation that's existed since the 1976 Buckley v. Valeo opinion, as Justice Alito was careful to note that the parties had not asked the Court to reconsider Buckley. Instead, the Court rather pointedly told Congress that if it had made a mess of campaign finance regulation, that's Congress' problem, not the Court's.

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The Supreme Court will hand down the DC gun control/Second Amendment case, DC v. Heller, this morning around 10am. I won't be covering the opinion when it comes down, but SCOTUSBlog will have the first breaking reports, and my RedState colleagues will be looking at the opinion and its political ramifications. (I had looked at the tea-leaf-reading predictions here and here).

UPDATE: Note that Barack Obama is now rendering his prior position on the case inoperative, although it remains to be seen if he will similarly flee from his long record of support for drastic gun-control measures, and of course, as with yesterday's death penalty decision, don't listen to what Obama says, watch what the kind of judges he would appoint actually do.

The Supreme Court today, in Kennedy v. Louisiana, found that the Eighth Amendment bars the death sentence of a man who brutally raped his 8-year-old stepdaughter, causing traumatic physical injury (decency doesn't permit quoting here the Court's discussion of the facts on p. 2 of its opinion), to say nothing of the emotional trauma. The decision was 5-4, with Justice Kennedy writing the opinion joined by the Court's liberal bloc. The decision is significant in three major main ways:

1. It essentially bars the death penalty in all cases that do not result in the death of the victim, with the exception of "offenses against the State."

2. It explicitly confirms that the Court's reliance on an 'evolving national consensus' against the death penalty in specified circumstances is truly a one-way street; the Court frankly admits that unless there is strong evidence of a national consensus favoring the death penalty for a particular crime at a particular time, the Court will permanently bar every state from using the democratic process to impose such a penalty at any time in the future.

3. It rejects the notion that state legislatures are competent to come up with any sort of safeguards, a conclusion much in line with the Court's recent view that Congress is incapable of determining procedures for the handling of alleged enemy combatants. The assertion of judicial supremacy inherent in this conclusion is staggering.

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As Chief Justice Roberts pointed out, the core issue in today's detainee decision is the struggle between the power of Congress and the power of the courts: it's not whether the U.S. has the right to detain enemy combatants, and not whether non-U.S. citizen detainees have access to legal process to challenge their detention, but simply whether Congress has a right to define and limit those procedures (as it did by statute in 2005 and 2006), or whether the Supreme Court has absolute authority to require that all procedural rules be determined by the district courts and reviewed by the Supreme Court. For this President and his successor, however, the bottom-line question remains what to do with enemy combatants: continue to hold them at Guantanamo or some similar facility subject to the new procedures, go back to Congress for yet another set of rules, or perhaps ship more detainees off to other countries to handle in their own way.

In a serious world, we'd expect presidential candidates to present competing visions of how to answer both sets of questions. But the responses of the McCain and Obama campaigns to today's decision shows that each is too busy struggling in their own ways with the politics of this issue to address it meaningfully.

Let's start by noting the fact that the two statutes struck down by the Court today were passed by the U.S. Senate, in which both candidates sit. The Detainee Treatment Act of 2005, a rider to military appropriations, among other things provided a set of procedures, and limited judicial review, for detainees challenging their enemy combatant status. It passed 90-9, with both McCain and Obama voting in favor. The Court today held "those procedures are not an adequate and effective substitute for habeas corpus." The Military Commissions Act of 2006 specifically precluded the DTA's procedures from being evaded by recourse to habeas corpus review, and eliminated the Supreme Court's jurisdiction over such cases; it passed 65-34, with McCain voting in favor and Obama voting against. The Court held today that the MCA "operates as an unconstitutional suspension of the writ."

How did the candidates respond to the decision? First, the McCain response, as related by Michael Goldfarb at the McCain Report (the excellent official campaign blog):

SEN. JOHN MCCAIN: It obviously concerns me. These are unlawful combatants, they are not American citizens, but -- and I think that we should pay attention to [Chief J]ustice Roberts' opinion in this decision -- but it is a decision the Supreme Court has made. Now we need to move forward. As you know, I always favored closing of Guantanamo Bay and I still think that we ought to do that.

McCain's position has always been that these people do not "deserve the protections of the kind of judicial process that a citizen of the United States would have." This is also the position of Chief Justice John Roberts, who dissented from today's ruling, noting that the process already in place included "the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants."

The rest of Goldfarb's post smacks Obama for voting against Roberts. You can tell that Goldfarb would like to go harder after the Court's decision, but the campaign and the candidate are constrained by McCain's own Gitmo-bashing, and so while McCain's response sides with Roberts and the statutes McCain voted for, it has to be somewhat muted on the pragmatic consequences of the decision because McCain isn't really clear on what he himself would do with those detainees.

Obama, meanwhile, is off in his own little world, unconstrained by the facts but therefore unwilling or unable to confront McCain over McCain's actual position:

Today's Supreme Court decision ensures that we can protect our nation and bring terrorists to justice, while also protecting our core values. The Court's decision is a rejection of the Bush Administration's attempt to create a legal black hole at Guantanamo - yet another failed policy supported by John McCain.

It's not clear what Obama means here. First, if the DTA's procedures are themselves "a legal black hole," and if he agrees with the Court that they are inadequate to satisfy due process, why on earth did Obama vote for them? Second, he's ripping McCain for "support" of Bush's Guantanamo policy, completely ignoring the fact that McCain has been calling for some time for shuttering the place. Third, if Obama means that McCain "supported" Bush's policy by voting for the DTA and the MCA, what about Obama's own vote for the DTA?

I don't have nearly the time and space here to do justice to today's opinions on enemy combatants, starting with the decision in Boumediene v. Bush, extending habeas corpus to foreign nationals detained at Guantanamo (which I partially summarized over at RedState as it broke, before I had to stop to deal with a decision of the Court in which I was directly involved). I'd highly recommend the scathing dissents of Chief Justice Roberts, who explains why the Court should not have decided that the Congressionally enacted procedures provided to detainees were inadequate without either (1) seeing how those procedures worked in practice or (2) explaining in any detail how the procedures required by the Court would be different, and Justice Scalia, who explains why the Court got the basic question of the historical scope of habeas wrong and illustrates the lethal consequences of today's decision.

But I'd like to highlight two points from today's opinions that illustrate some unintended consequences, and why in the end they may not accomplish the results claimed for them. Specifically, today's decisions will hasten the process of handing off detainees to foreign governments while protracting rather than accelerating the legal process for determining the status of detainees.

The first comes from the Court's less-publicized unanimous decision today in Munaf v. Geren, which held that while habeas extends to U.S. citizens detained by the Multinational Force-Iraq, the writ cannot be used to prevent the U.S. from transferring U.S. citizen detainees to the Iraqi government if it has warrants for their arrest for, essentially, being enemy combatants:

Munaf and Omar are alleged to have committed hostile and warlike acts within the sovereign territory of Iraq during ongoing hostilities there. Pending their criminal prosecution for those offenses, Munaf and Omar are being held in Iraq by American forces operating pursuant to a U. N. Mandate and at the request of the Iraqi Government. Petitioners concede that Iraq has a sovereign right to prosecute them for alleged violations of its law. Yet they went to federal court seeking an order that would allow them to defeat precisely that sovereign authority. Habeas corpus does not require the United States to shelter such fugitives from the criminal justice system of the sovereign with authority to prosecute them.

(Presumably, the same rule would apply to non-citizens). This, despite the fact that the Iraqi justice system is obviously not precisely equivalent to our own in terms of procedural protections. The Court also rejected the idea that a U.S. court could prevent transfer of the prisoners based on their claim that they might be tortured by the Iraqis, although the Court did note that there was not a record of a likelihood of torture, and three Justices would have left the door open for courts to review "whether substantive due process bars the Government from consigning its own people to torture."

What does this mean? Well, it means that detainees at Guantanamo could be transferred out of the reach of the new habeas process if the governments of Afghanistan, Iraq or other allies (some of whom have been known to swiftly behead such people upon their transfer) request that we do so. In other words, if the new procedures prove onerous in practice or run the risk of revealing classified information to our enemies, the unintended consequence of the decision to strike down procedures enacted by the U.S. Congress may be instead to substitute procedures provided by the Afghan or Iraqi governments. (Can you say, "rendition," boys and girls? I knew you could!) Even five Justices of the U.S. Supreme Court cannot repeal the law of unintended consequences.

The second point, on the question of swift justice, is explained by the Chief Justice in Boumediene:

The Court is ... concerned that requiring petitioners to pursue "DTA review before proceeding with their habeas corpus actions" could involve additional delay. ...The nature of the habeas remedy the Court instructs lower courts to craft on remand, however, is far more unsettled than the process Congress provided in the DTA. See ante, at 69 ("[O]ur opinion does not address the content of the law that governs petitioners' detention. That is a matter yet to be determined"). There is no reason to suppose that review according to procedures the Federal Judiciary will design, case by case, will proceed any faster than the DTA process petitioners disdained. On the contrary, the system the Court has launched (and directs lower courts to elaborate) promises to take longer. The Court assures us that before bringing their habeas petitions, detainees must usually complete the CSRT process.... Then they may seek review in federal district court. Either success or failure there will surely result in an appeal to the D. C. Circuit - exactly where judicial review starts under Congress's system. The effect of the Court's decision is to add additional layers of quite possibly redundant review. And because nobody knows how these new layers of "habeas" review will operate, or what new procedures they will require, their contours will undoubtedly be subject to fresh bouts of litigation. If the majority were truly concerned about delay, it would have required petitioners to use the DTA process that has been available to them for 2 1/2 years, with its Article III review in the D. C. Circuit. That system might well have provided petitioners all the relief to which they are entitled long before the Court's newly installed habeas review could hope to do so.

Of course, the question as to whether additional delay is a bad thing depends on whose intentions are at stake. For a detainee who is actually improperly held in custoday, delay is a bad thing, because it means more time in Gitmo. But for those who are genuinely enemy combatants, more delay is wonderful - more ability to tie up U.S. personnel and resources in courtroom battles, more publicity for their "cause," more grinding down of U.S. morale as expensive court proceedings drag on and provide political fodder for critics of the mission and the military. Like the exclusionary rule in criminal procedure (which excludes illegally seized evidence of guilt but gives no remedy to the innocent), the Court has managed to create a perverse system that burdens anyone who might actually be deserving of a remedy, while rewarding those who seek to game the system to the disadvantage of the nation. Gee, thanks.

The First Circuit yesterday rejected a variety of constitutional challenges to "Don't Ask Don't Tell" under the Supreme Court's Lawrence v. Texas decision.

You know, I'm not really an expert on this particular corner of antitrust law, so maybe I'm missing a good, persuasive argument for why this rule makes sense, but I have to express some cognitive dissonance at the Sixth Circuit throwing out a lawsuit by a former Kentucky assistant football coach on the grounds, among others, that the NCAA rule enforcement process is not subject to the antitrust laws because it does not involve commercial activity:

In order to state a claim under the Sherman Act there must be a commercial activity implicated....the appropriate inquiry is whether the rule itself is commercial, not whether the entity promulgating the rule is commercial.... Although the question before us is whether the enforcement activities of NCAA violate the Sherman Act and not a particular rule, the analysis must focus on the enforcement action itself and not NCAA as a commercial entity....Bassett's Complaint contains considerable information on the size and scope of college football and the revenues generated by it. The Complaint is wholly devoid of any allegation on the commercial nature of NCAA's enforcement of the rules it determined Bassett had violated. Bassett's Complaint contends NCAA's enforcement process violated its own due process requirements and, as a result, constitutes a Sherman Act violation. We find Bassett's Complaint lacks the critical commercial activity component required to permit application of the Sherman Act.

...NCAA's rules on recruiting student athletes, specifically those rules prohibiting improper inducements and academic fraud, are all explicitly noncommercial. In fact, those rules are anti-commercial and designed to promote and ensure competitiveness amongst NCAA member schools. Violation of the applicable NCAA rules gives the violator a decided competitive advantage in recruiting and retaining highly prized student athletes. It also violates the spirit of amateur athletics by providing remuneration to athletes in exchange for their commitments to play for the violator's football program. Finally, violators of these rules harm the student-athlete academically when coaches and assistants complete coursework on behalf of the student-athlete.

If the rules themselves and the corresponding sanctions are not commercial, as the reasoning
in Smith supports, then the enforcement of those rules cannot be commercial. As long as the
enforcement of non-commercial rules is reasonably and rationally related to the rules themselves, we find enforcement is a non-commercial activity.

I'm not saying the rule should be different, since there is much to be said for keeping NCAA decisions of this nature from turning into federal lawsuits. But one gets the sense that the salami is being sliced rather narrowly here.

The New York Court of Appeals (the state's highest court) today affirmed the dismissal of a baseball-related personal injury suit:

While at a ballpark, plaintiff sustained injuries when a baseball player in an off-field on-deck batting circle struck her with a bat. Because plaintiff concededly observed batting equipment and players swinging bats in the area where the accident occurred, the Appellate Division correctly held that she had assumed the risk of her injuries, and properly affirmed the Supreme Court order dismissing the complaint.

The fact description is pretty sparse, but this seems a sensible enough rule at least in cases where the batter didn't throw the bat and she just got too close to somebody swinging a bat.

Supreme Court refuses to step in:

The U.S. Supreme Court on Monday declined to hear an appeal by Major League Baseball Advanced Media and the players association in their case against CDM Fantasy Sports. The justices' decision ends a bitter legal fight that lasted more than three years.

St. Louis-based CDM in 2006 won the right in federal district court to use major league players' names and statistics in commercial fantasy games without a license. That set off a lengthy series of appeals from MLBAM and the union that mushroomed into a case with significant implications for all of celebrity licensing.

Read the whole thing for the implications.

Note to practicing attorneys: You do not want to end up in this situation.

Who names their kid "Nimrod," anyway? No wonder the poor guy is nuts.

In case you missed it yesterday morning - opinion in Bloomberg v. Beretta U.S.A. here. Basically, the court found that the federal Protection of Lawful Commerce in Arms Act is a constitutional exercise of Congress' Commerce power, doesn't violate the 10th Amendment, and bars New York City's lawsuit seeking under state law to enjoin gun manufacturers' lawful firearms sales on the grounds that those sales resulted in diversion of guns to the black market.

The Supreme Court this morning, by a 6-3 vote in Crawford v. Marion County Elec. Bd., upheld Indiana's voter ID law. This is a major defeat for the Democrats' efforts to prevent states from requiring valid identification to vote. The lawsuit was brought by the Indiana Democratic Party.

The Court took a fractured approach. Justice Stevens, joined by Chief Justice Roberts and Justice Kennedy, found no showing of an undue burden on various voters who challenged the voter ID law on its face. Justices Scalia, Thomas and Alito would have upheld the law on the broader ground that it imposed the same requirements equally on all voters. Both opinions give great weight to the state interest in ensuring that only eligible voters cast ballots. Justice Souter, joined by Justices Breyer and Ginsburg, dissented on the grounds that they felt the statute did, in fact, unduly burden some voters. Justice Breyer wrote separately.

Justice Scalia's separate opinion is redolent of the judicial hangover from Bush v. Gore in its emphasis on the hazards of permitting case-by-case judicial review of neutral rules established by state legislatures before an election takes place. This is a point I've been making since the Bush v. Gore decision came down: the most important thing about that case is the fact that the SCOTUS was reviewing a non-statutory judicial remedy crafted by an appellate court after the election had taken place, when all the participants knew - or at least thought they knew - what remedies would benefit which candidates, as opposed to a statute of general applicability enacted before the election, setting out rules and procedures that all participants knew from Day One they would have to comply with.

Extended excerpts from the Stevens and Scalia opinions, and commentary, below the fold. Note that this is the third election-law case this Term (I discussed the first two here and here), and the democratically-enacted statute won in each case.

(UPDATES also below the fold).

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Sound the alarms!

As consumer, employee and other groups carefully build momentum in Congress for changes in the nation's arbitration landscape and business groups just as carefully organize their opposition, a new empirical study reports a "disturbing trend" at the state level: state courts vacating many arbitration awards for employees, but not for employers.

See, here's the thing: if the statistics were the opposite, these same people would be arguing (as they do in with other types of arbitration) that the arbitration panels are biased against them, and they'd cite the reversal rates by the courts as evidence that the arbitrators were less fair than a court would be.

In fact, overall statistics of this nature are famously uninformative because they assume a static universe in which the cases decided by arbitrators or the courts are a representative, evenly divided sample. But there are numerous ways in which data can be biased - just for example:

*If a forum is more favorable to plaintiffs, it may attract more weak or frivolous cases, and thus end up with a higher rate of defense victories - sort of the way outfielders with weak arms get a lot of assists because a lot of people run on them (between 1993 and 2003, Mike Piazza threw out 384 base thieves, Pudge Rodriguez threw out 387 - if you looked just at the total number thrown out, you might draw a very bad conclusion).

*Highly meritorious cases are much more likely to settle, especially in arbitration where plaintiffs are less likely to hold out for massive punitive damages. But the prevalance of nuisance-value settlements means it's also impossible to use settlement data as a reliable proxy for the merits, especially if you lack the means to assess the value of the settlement.

*Defendants who are repeat players (in employment litigation, that's pretty much every business) may be more likely to go to court to challenge awards they are dissatisfied with than employees represented by attorneys working on commission.

*Cases can settle at any stage of the process, so these numbers also don't include cases where a settlement is reached somewhere between the arbitration award and the court decision reviewing it. A defendant who wins in arbitration but faces a likelihood of reversal in court may very well decide to settle the case while the getting is good.

That's even before you get into the asymmetries here - in most employment cases the employee is the plaintiff, who has the burden of proof, a fact that will impact review of the award. The fact is, there are many points in litigation at which decisions can be made by one or both sides about what avenue to pursue next, and each of those decision-points can skew the sample.

If you want to understand precisely why Barack Obama's sneering condescension towards the beliefs and culture of ordinary voters - and willingness to treat them as irrational prejudices - is a concern in presidential politics, you really need look no further than what happens when such attitudes are brought to the Supreme Court, whose Justices Senator Obama wants to pick. Check out the conclusion of Justice Scalia's brief but masterful concurring opinion yesterday Baze v. Rees, taking Justice Stevens to task for his separate opinion urging that the death penalty be held unconstitutional under the Eighth Amendment (a position the Court had taken once before, only to be reversed by Justices then including Stevens himself), despite the many state and federal legislatures that have repeatedly endorsed it, the many juries that have imposed it, the studies supporting its effects, and the fact that the Constitution itself makes explicit references to the death penalty:

As Justice Stevens explains, "'objective evidence, though of great importance, [does] not wholly determine the controversy, for the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.'" .... "I have relied on my own experience in reaching the conclusion that the imposition of the death penalty" is unconstitutional.

Purer expression cannot be found of the principle of rule by judicial fiat. In the face of Justice Stevens' experience, the experience of all others is, it appears, of little consequence. The experience of the state legislatures and the Congress - who retain the death penalty as a form of punishment - is dismissed as "the product of habit and inattention rather than an acceptable deliberative process." Ante, at 8. The experience of social scientists whose studies indicate that the death penalty deters crime is relegated to a footnote. Ante, at 10, n. 13. The experience of fellow citizens who support the death penalty is described, with only the most thinly veiled condemnation, as stemming from a "thirst for vengeance." Ante, at 11. It is Justice Stevens' experience that reigns over all.

(Bold added; italics in original). Read the whole thing; as I said, it's pretty short, as Justice Thomas' separate concurrence (there were seven separate opinions) does the heavy historical lifting.

Now, take note here; it's not Justice Scalia in this debate who wants to take the issue of the death penalty away from the people of Kentucky and make it a matter to be determined by presidential appointees; it's Justice Stevens. I think a lot of Americans wish that we had presidential politics free of hot-button cultural issues, but it's not conservatives who are the main obstacle to doing that. Yet if you listened to Senator Obama last night, he would still have you believe that there's something wrong with voters who care about the rights and democratic privileges that people like Senator Obama want to bring under federal control:

[P]eople are going through very difficult times right now. And we are seeing it all across the country. And that was true even before the current economic hardships ...And so the point I was making was that when people feel like Washington's not listening to them, when they're promised year after year, decade after decade, that their economic situation is going to change and it doesn't, then, politically, they end up focusing on those things that are constant like religion.

They end up feeling this is a place where I can find some refuge. This is something I can count on. They end up being much more concerned about votes around things like guns, where traditions have been passed on from generation to generation. And those are incredibly important to them. And, yes, what is also true is that wedge issues, hot-button issues, end up taking prominence in our politics.

And part of the problem is that when those issues are exploited, we never get to solve the issues that people really have to get some relief on, whether it's health care or education or jobs.

In other words, you're only supposed to vote about what Obama says you should vote about - even when Washington is busy meddling in other areas of life. On the "wedge issues," people who agree with Obama should just be given a free hand. (It's also rather rich for Obama to suggest that guns should not be a political issue given his own record of voting to restrict gun ownership - I guess he cast those votes because he was too bitter to stick to economic issues, eh?).

Cases like Baze vividly illustrate that, for the foreseeable future, the Presidential power to appoint federal judges will have an outsized impact on the resolution of "hot-button" or "wedge" issues. I understand full well why, given the unpopularity of "rule by judicial fiat" for liberal ends, Senator Obama doesn't want voters to consider those aspects of the president's powers in voting for who the president should be. But I very much doubt that most voters are such ignorant rubes that they don't realize that a President Obama would be quite happy to use his powers to advance his own values, not theirs.

On Thursday, the U.S. Court of Appeals for the Third Circuit affirmed yet again the 1982 conviction of the man who calls himself Mumia Abu-Jamal for murdering Philadelphia Police Officer Daniel Faulkner, who Abu-Jamal took from his family more than 26 years ago. That conviction was upheld on direct appeal in 1989, an appeal the U.S. Supreme Court refused to hear at the time, but has been the subject of successive habeas corpus petitions ever since, this one supported by the efforts of a flotilla of lawyers with apparently nothing better to do from, among others, Widener University School of Law, The NAACP Legal Defense and Educational Fund, Inc., and the Criminal Justice Institute at Harvard Law School (the latter appearing on behalf of the National Lawyers Guild, National Conference of Black Lawyers, International Association of Democratic Lawyers, Charles Hamilton Houston Institute for Race & Justice of Harvard Law School, Southern Center for Human Rights, and National Jury Project). The court did, however, vacate the death sentence handed down by the jury in 1982 and the death warrant signed by Governor Tom Ridge in 1995, and remanded for a new penalty proceeding. I have not plowed through the entirety of the court's 118-page opinion, which deals with Abu-Jamal's challenges to the jury selection and the prosecutor's closing argument as well as the penalty phase, but it's worth reading the introduction to be reminded just what a cold-blooded killer and political extremist Abu-Jamal was and is, and how utterly meritless is the suggestion that he is anything but guilty. I excerpt here at length:

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Yesterday's Supreme Court decision in Washington State Grange v. Washington State Republican Party is interesting on a couple of levels. Coupled with the Court's January decision in the case involving New York's system for nominating candidates to run for judicial elections, the Court seems to be signalling pretty clearly that it's not eager to get into overturning state primary election procedures - a signal the national Democrats are hopefully receiving, not that there's been any move just yet for the loser to follow the Al Gore plan.

Anyway, the short summary is that the Court ruled 7-2 to uphold a state open election system that allowed candidates from all parties to run in an initial election with their chosen party listed, without having been nominated by the party, followed by a runoff for the top two candidates; the major parties challenged the constitutionality of this procedure under a 2000 decision invalidating California's "blanket primary" under the First Amendment's right to freedom of association. The crux of the Washington case was whether the parties have a right to prevent candidates who have not been nominated by the party from using the party label on a ballot open to the general public.

Justice Thomas, writing for the Court, said no:

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Glenn Reynolds understands how in this case, litigation really is war by other means.

The U.S. Supreme Court today, in a unanimous opinion by Justice Scalia in NY State Bd of Elections v. Lopez Torres, reversed a Second Circuit decision that had overturned New York's system for selecting party nominees for trial judges. The appeals court had held that the First Amendment right to political association of prospective candidates for New York Supreme Court judgeships* were violated by the system of choosing nominees through party conventions dominated by party bosses, rather than through a more directly democratic system such as a primary.

Justice Scalia's opinion starts out with a concise summary of familiar and settled (if theoretically debatable) ground: the Constitution gives a political party some First Amendment associational rights to control its own processes for choosing its nominees, but imposes some restrictions (including Fourteenth and Fifteenth Amendment restrictions against discrimination) on a party's candidate-selection process when the state grants the party the right to a line on the ballot. But as he explains, the problem with the conventions is not any legal restriction on who can throw their hat in the ring but rather a practical, political limit to who can win those contests - a problem for which the solution is necessarily political, not legal:

To be sure, we have...permitted States to set their faces against "party bosses" by requiring party-candidate selection through processes more favorable to insurgents, such as primaries. But to say that the State can require this is a far cry from saying that the Constitution demands it. None of our cases establishes an individual’s constitutional right to have a "fair shot" at winning the party's nomination. And with good reason. What constitutes a "fair shot" is a reasonable enough question for legislative judgment, which we will accept so long as it does not too much infringe upon the party's associational rights. But it is hardly a manageable constitutional question for judges - especially for judges in our legal system, where traditional electoral practice gives no hint of even the existence, much less the content, of a constitutional requirement for a "fair shot" at party nomination. Party conventions, with their attendant "smoke-filled rooms" and domination by party leaders, have long been an accepted manner of selecting party candidates. "National party conventions prior to 1972 were generally under the control of state party leaders" who determined the votes of state delegates. . . . Selection by convention has never been thought unconstitutional, even when the delegates were not selected by primary but by party caucuses.

(Emphasis added, citations omitted). The Court similarly rejected the idea that one-party rule in many parts of New York State created a constitutional problem with the party's candidate-selection process that was resolvable by the judiciary:

The reason one-party rule is entrenched may be (and usually is) that voters approve of the positions and candidates that the party regularly puts forward. It is no function of the First Amendment to require revision of those positions or candidates. The States can, within limits (that is, short of violating the parties' freedom of association), discourage party monopoly - for example, by refusing to show party endorsement on the election ballot. But the Constitution provides no authority for federal courts to prescribe such a course. The First Amendment creates an open marketplace where ideas, most especially political ideas, may compete without government interference. . . . It does not call on the federal courts to manage the market by preventing too many buyers from settling upon a single product.

Limiting respondents' court-mandated "fair shot at party endorsement" to situations of one-party entrenchment merely multiplies the impracticable lines courts would be called upon to draw. It would add to those alluded to earlier the line at which mere party popularity turns into "one-party dominance." In the case of New York's election system for Supreme Court Justices, that line would have to be drawn separately for each of the 12 judicial districts - and in those districts that are "competitive" the current system would presumably remain valid. But why limit the remedy to one-party dominance? Does not the dominance of two parties similarly stifle competing opinions? Once again, we decline to enter the morass.

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*Tom Maguire on Paul Krugman's efforts to put lipstick on the pig of the European welfare state. Of course, deceit is to Krugman what the fedora and the bullwhip are to Indiana Jones.

*And here I thought Daniel Webster had driven him out of New Hampshire permanently.

*Megan McArdle has the, er, skinny on people who are waaaaaaaay too sensitive.

*Excellent GOP primary roadmap from David Freddoso.

*Don't mess with Vladimir Putin, Part XXVIII

*Two war-related decisions yesterday from the DC Circuit; one that rejects First Amendment challenges by Cindy Sheehan to her arrest at a protest but reverses her conviction for failure to prove her state of mind, the other of which rejects a variety of civil claims against Donald Rumsfeld and a variety of other DoD personnel, brought by Guantanamo detainees claiming that they were tortured or otherwise mistreated in violation of the Geneva Conventions.

*The All-Messed Mets Team.

*Heh.

*Slate has a really silly article about the demise of the billable hour, while admitting that the big law firms that handle high-end cases (i.e., lawyers like me) are not likely to abandon hourly billing any time soon. Yes, it's true that basically every lawyer in private practice hates the billable hour; that's been true as long as anyone could remember. And it's true that clients don't love it either, and that if change comes to billing methods, it will come from client demand. But like Churchill's dictum about democracy being the worst form of government except every alternative that has been tried, hourly billing endures because lawyers and clients alike are familiar with it, and for potentially major litigation, it's hard to come up with alternatives that don't have larger problems. The flaw in the Slate piece is not suggesting any feasible alternative - that works at least minimally for both lawyer and client - for how to bill a case that walks in the door with potentially huge damages liability, yet even the most experienced litigator can't tell you up front whether it will be quickly dismissed or settled, or end up in years of labor-intensive discovery and trial, or somewhere in between. Without a workable alternative, large organizations will always prefer the tried and tested, and work within that framework to make the process work for both parties.

Some of you may remember my post about the cert petition in Kennedy v. Louisiana, and the question of whether the "evolving national consensus" theory of the Eighth Amendment only goes in one direction - that is, if it's true that the action of some states to ban a punishment in a particular context (here, the death penalty for child rape) transmutes that punishment into a "cruel and unusual" one for constitutional purposes where it was not before, is it also true that more states adding that punishment can make it not cruel and unusual?

Well, today the Court granted cert in Kennedy, so the Court will be faced with that question, among others.

Prof. Douglas Kmiec suggests that Hillary Clinton, if elected, could have her husband follow the footsteps of former President Taft by appointing him to the Supreme Court. Taft was, in fact, a very good Chief Justice after being a failure as President, a job for which he never had the talent or desire.

Prof. Kmiec gets right some of the obvious problems with this parallel: Clinton, unlike Taft, has no prior judicial experience and loves politics much more than the law; Clinton, unlike Taft, would presumably not be taking the Chief Justice job; and Taft, unlike Clinton, never had his law license suspended for perjury in a judicial proceeding.

What Prof. Kmiec misses is the showstopper* - even beyond losing him as a campaigner - that would prevent Hillary Clinton, especially, from considering this: confirmation hearings. Nobody in her right mind who was at all sympathetic to Bill Clinton would ever want to see the man testify under oath again. And given the tendency of modern confirmation hearings to delve into any and all scandals in the nominee's past, hearings with Bill Clinton as the nominee would be both exhaustively lengthy and acrimonious and potentially uniquely damaging to Hillary personally. Assuming the Democrats hold control of the Senate they could potentially try to quash much questioning at the hearings, but even Republicans who hold principled objections to filibustering judges would be on firm ground blocking a floor vote until the Judiciary Committee was willing to hold a full hearing on the nominee.

I suppose in theory, I could imagine Hillary pulling such a stunt as a deliberate provocation and/or for the express purpose of breaking the tradition of such hearings. But I think it far more likely that she would avoid at any cost the spectacle of William Jefferson Clinton being sworn in to testify anywhere ever again.

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Barry Bonds wants only the best legal representation - but only at a discount.

Of course, this begs the question of who is familiar with these negotiations that is blabbing them to the press.

The speed of the deportation process at work - the name may not ring a bell for some of my younger readers:

CINCINNATI - A lawyer for a former autoworker accused of being a Nazi death camp guard on Thursday challenged the right of the nation's chief immigration judge to order his deportation.

The 6th U.S. Circuit Court of Appeals heard arguments on the accused guard John Demjanjuk's challenge to a final removal, or deportation, order issued in 2005. The federal government has been trying to deport him for three decades.

The three-judge panel didn't say when it would rule, but it's usually several months after arguments before the court issues a decision.

The arguments revolved around whether an immigration judge had the authority to order the removal of Demjanjuk, 87.

Of course, this is why both advocates and opponents of aggressive use of the deportation system are fooling themselves and/or their listeners; whatever the merits of other options for controlling the border (employer enforcement, fencing, etc.), we simply don't and aren't likely to ever have procedures in place to handle large numbers of deportation proceedings with great dispatch.

When the New York Times disclosed a top-secret program of surveilance of international phone calls with suspected terrorists, the Bush Administration faced a critical choice: defend the program in public - including correcting misimpressions left by press reports - or try to preserve such secrecy as had not been shattered by the Times. Both choices had substantial downsides, but today the Ninth Circuit held (in a decision that is otherwise somewhat of a split decision* in a challenge brought to the program by "Al-Haramain Islamic Foundation, a designated terrorist organization, and two of its attorneys") that the Bush Administration waived its legal defense that a full judicial review of the program would involve disclosure of state secrets because the Administration responded to the Times in a way that confirmed the program's existence and some facts about it:

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Pushing driver's licenses for illegal aliens, gay marriage, extremist legislation on abortion and having his top aides investigated for perjury is one thing; but going after Derek Jeter over back taxes...that would definitely be too far.

Hoo boy. The DC Circuit this morning rejected a class action - filed by an M.D. - by people who drank milk before discovering they were lactose intolerant, demanding warning labels on milk:

Tort law does not provide protection from the obvious or "widely known" risks of consuming a particular food. The risk that some people will get gas after consuming certain foods, such as milk, is widely known. A bout of gas or indigestion does not justify a race to the courthouse. Indeed, were the rule otherwise, a variety of food manufacturers as well as stadiums, bars, restaurants, convenience stores, and hot dog stands throughout the country would be liable to millions of would-be plaintiffs every day.

SCOTUSBlog notes that the State of Louisiana - in opposing a certiorari petition - is pointing to a trend of adding child rape to the list of capital crimes as a basis for finding that it's not cruel and unusual punishment under the Eighth Amendment to execute a man who raped his 8-year-old stepdaughter:

The state said that the Court, if it agrees to hear the case, should focus not only on how many states treat rape of a child as a capital crime, but also on a trend toward applying the death sentence to more crimes where the victim is not killed. Five states, like Louisiana, now have capital punishment for child rape, all enacted since 1997 with the most recent, in Texas, in 2007.

Moving beyond that specific crime, the state’s brief said, 15 out of the 38 states and the federal government – 41 percent of the jurisdictions, it notes — "authorize some form of non-homicide capital punishment." That includes treason, espionage, aircraft piracy, aggravated kidnapping, and some drug trafficking crimes.

"The trend toward capitalization of non-homicide crimes, child rape in particular, is significant," the state asserted. "Six states have now enacted the death penalty for child rape after this Court [in Coker v. Georgia, 1977] held that the death penalty for rape of an adult woman was unconstitutional."

This argument puts the Court's liberals and swing vote Justice Kennedy to the test to see if they actually mean what they say.

If you recall, the Court in cases such as Atkins v Virginia, involving the execution of the mentally retarded, and Roper v. Simmons, involving the execution of defendants who were under 18 at the time of the crime, has pointed to some variant of an "evolving national consensus" drawn from a trend in state statutes dealing with the death penalty as a basis for finding that the meaning of the Eighth Amendment has been changed sufficiently to extend the constitutional rule to force the dissenting states into line. In Roper, that "evolving consensus" consisted of four state legislatures and one state court changing positions between 1989 and 2005. As I have argued previously, because Article V of the Constitution provides a specific mechanism for the meaning of the document to be altered by action of three-fourths of the states voting in a specified way on a specific written amendment proposed either by two-thirds of the states or two-thirds of both Houses of Congress, this line of reasoning is hopelessly irreconcilable with the text of the Constitution.

But for now, we are stuck with the doctrine; the issue is its application. Is it possible for the "national consensus" to "evolve" in a direction that Justices who oppose the death penalty* don't like or agree with? Or is this, like so many liberal Constitutional doctrines, a one-way ticket?

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Justice Scalia on faith and the law.

Via Bashman.

The Third Amendment! I've actually long argued that the Third Amendment was, at least, the most successful of the Bill of Rights, in terms of actually getting respected by the government. The funny thing is that the Onion actually gets the history right here.

Via Bench Memos.

This video from Slate is hilarious.

H/T WSJ Law Blog.

OJ seeks the next best thing.

The U.S. District Court for the Eastern District of Michigan has ruled, as a matter of law, that lawyers are unable to understand what "courtesy and respect" means.

OK, a little more detail on that one: outspoken Michigan lawyer Geoffrey Fieger, best known for representing Dr. Jack Kevorkian and for running as the Democratic candidate for Governor of Michigan in 1998, was disciplined under Michigan Rules of Professional Conduct 3.5(c), which prohibits lawyers from "undignified or discourteous conduct" toward judges and courts, and Rule 6.5(a), which requires lawyers to treat everyone involved in the legal process with "courtesy and respect." Fieger's original grievance stemmed from a Michigan appellate court decision that reversed a medical malpractice verdict, finding that he had

(1) without any basis in fact, accused defendants and their witnesses of engaging in a conspiracy, collusion, and perjury to cover up malpractice, (2) asserted without any basis in fact that defense witnesses had destroyed, altered, or suppressed evidence, and (3) insinuated without any basis in fact that one of the defendants had abandoned the plaintiff's medical care to engage in a sexual tryst with a nurse. The panel described Mr. Fieger's misconduct as "truly egregious" and "pervasive" and concluded that it "completely tainted the proceedings."

The Michigan Supreme Court described how Fieger responded to the decision by this panel - and for all the practicing attorneys in the audience, I would not advise you to try this yourself:

Three days later, on August 23, 1999, Mr. Fieger, in a tone similar to that which he had exhibited during the Badalamenti trial and on his then-daily radio program in Southeast Michigan, continued by addressing the three appellate judges in that case in the following manner, "Hey Michael Talbot, and Bandstra, and Markey, I declare war on you. You declare it on me, I declare it on you. Kiss my a**, too." Mr. Fieger, referring to his client, then said, "He lost both his hands and both his legs, but according to the Court of Appeals, he lost a finger. Well, the finger he should keep is the one where he should shove it up their a**es."

Two days later, on the same radio show, Mr. Fieger called these same judges "three jackass Court of Appeals judges." When another person involved in the broadcast used the word "innuendo," Mr. Fieger stated, "I know the only thing that's in their endo should be a large, you know, plunger about the size of, you know, my fist." Finally, Mr. Fieger said, "They say under their name, 'Court of Appeals Judge,' so anybody that votes for them, they've changed their name from, you know, Adolf Hitler and Goebbels, and I think - what was Hitler's - Eva Braun, I think it was, is now Judge Markey, she's on the Court of Appeals."

The Federal District Court, however, overruled the State Supreme Court on the federal constitutional question of whether the Michigan rules are vague, overbroad, and "are so imprecise that persons of ordinary intelligence must guess at their meaning." It's the latter ruling that prompted the District Court to conclude:

One person's courtesy may be another person's abomination. For example, a man extending his hand in greeting may be a courtesy to many. To others, it may be a violation of a fundamental belief. Thus, the chance of selective enforcement based on the judiciary's sensibilities is too great for these rules to withstand constitutional scrutiny.

Yes, and one man's threat to put his fist up....well, there is probably merit to the conclusion that rules of this nature are overbroad and give the judiciary power to sanction legitimate speech. But I fail to see how there is any possible basis for saying that Fieger was unable to understand that he was crossing and leaving far behind in the dust any pretense at the minimal level of decency and civility that an attorney is supposed to show to the courts he practices before. Unless lawyers really are unable to understand what "courtesy and respect" means.

WSJ Law Blog carries a series of excerpts from a lengthy NY Times Magazine profile ($) of Justice John Paul Stevens, the senior Justice on the Supreme Court and by any commonly used standard the leader of the Court's liberal wing. Some of the key excerpts:

"I don't think of myself as a liberal at all," he told me during a recent interview in his chambers, laughing and shaking his head. "I think as part of my general politics, I'm pretty darn conservative." Stevens said that his views haven't changed since 1975, when as a moderate Republican he was appointed by President Gerald Ford to the Supreme Court. Stevens's judicial hero is Potter Stewart, the Republican centrist, whom Stevens has said he admires more than all of the other justices with whom he has served. He considers himself a "judicial conservative," he said, and only appears liberal today because he has been surrounded by increasingly conservative colleagues.

[H]e emphasized that he still thinks of himself as a judicial conservative, which he defined as someone who tries to follow precedents and "who submerges his or her own views of sound policy to respect those decisions by the people who have authority to make them."

+++

"Originalism is perfectly sensible. I always try to figure out what the original intent was, but to say that's the Bible and nothing else counts seems to me quite wrong."

Up to a point, Justice Stevens is framing his view of the Court's job in terms similar to those commonly used by Justice Scalia or by Chief Justice Roberts to describe their judicial philosophies, and he's self-identifying as a "judicial conservative." Now, you can take this, if you like, as so much disingenuousness in light of his record, but I think it's also a powerful tribute to how far conservatives in general and Justice Scalia in particular have shifted the landscape in how people within and outside of the Court perceive its role and mission that even Justice Stevens finds it desirable that he be perceived as engaging in the same sort of project, and disagreeing mainly at the margins of what constitutes "judicial conservatism." Just as was true when Bill Clinton declared that "the era of big government is over," the moment your opponents start cloaking themselves in your philosophical garb, you know you are winning the battle of ideas. It also means that nostalgia for the old order (H/T) is simply the lament of the losing side in that battle.

Relatedly, Tom Goldstein, who is certainly no conservative himself but is a careful observer of the Supreme Court, has a thought-provoking post on the political implications of the upcoming Term. Among other things, he predicts a victory for Guantanamo detainees in their pursuit of access to federal courts, and notes that whichever way the DC gun ban case comes out, it's likely to mobilize the Right more than the Left. His analysis is worth considering:

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The Ninth Circuit today affirmed the dismissal of a complaint by the family of Rachel Corrie, who was crushed to death by a bulldozer operated by the Israel Defense Forces while protesting the destruction of Palestinian homes, against Caterpillar, the manufacturer of the bulldozers. The plaintiffs also included the families of various Palestinians. The court did not wade into the facts far enough to grasp the extent to which Ms. Corrie was actively abetting the smuggling of weapons used in terrorism against Israel, nor to discuss who was really at fault in the specific incident that led to Ms. Corrie's death. Instead, it dismissed under the political question doctrine, finding that, because the bulldozers were financed and permitted to be sold by U.S. aid to Israel, it was not the place of the courts to allow a civil lawsuit to decide such explosive foreign policy questions and possibly resolve them differently than would the Executive and Legislative Branches:

The decisive factor here is that Caterpillar's sales to Israel were paid for by the United States. . . .

+++

Allowing this action to proceed would necessarily require the judicial branch of our government to question the political branches' decision to grant extensive military aid to Israel. It is difficult to see how we could impose liability on Caterpillar without at least implicitly deciding the propriety of the United States' decision to pay for the bulldozers which allegedly killed the plaintiffs' family members.

+++

We cannot intrude into our government's decision to grant military assistance to Israel, even indirectly by deciding this challenge to a defense contractor's sales.

+++

In this regard, we are mindful of the potential for causing international embarrassment were a federal court to undermine foreign policy decisions in the sensitive context of the Israeli-Palestinian conflict. Plaintiffs argue that the United States government has already criticized Israel's home demolitions in the Palestinian Territories. They point, for example, to former Secretary of State Powell's statement that "[w]e oppose the destruction of [Palestinian] homes - we don't think that is productive." But that language is different in kind from a declaration that the IDF has systematically committed grave violations of international law, none of which the United States has ever accused Israel of, so far as the record reveals. Diplomats choose their words carefully, and we cannot subvert United States foreign policy by latching onto such mildly critical language by the Secretary of State. Cf. Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 386 (2000) ("[T]he nuances of the foreign policy of the United States . . . are much more the province of the Executive Branch and Congress than of this Court.") (internal quotations omitted).

It is not the role of the courts to indirectly indict Israel for violating international law with military equipment the United States government provided and continues to provide. . . . Plaintiffs may purport to look no further than Caterpillar itself, but resolving their suit will necessarily require us to look beyond the lone defendant in this case and toward the foreign policy interests and judgments of the United States government itself.

Three cheers for the Ninth Circuit panel (consisting, by the way, of two Clinton appointees and a Carter appointee) for getting this one right.

*Michael Lewis is a wonderful writer and a guy who understands and loves markets. You have to read (here and here) his take on the subprime lending crisis. (Not everyone is amused). Lewis himself was a bond trader for a few years in the 1980s, leading to his smash hit book "Liar's Poker," and he poses here as a Gordon Gekko-type hedge-fund manager who blames poor people for evertything. The great thing about these pieces is that they are double-edged satire, containing enough cold-hearted economic truth to effectively skewer subprime borrowers and Capitol Hill demagogues, but at the same time mocking the misanthropic (at best) attitudes he parrots.

*Speaking of which, Gekko himself is apparently coming back as a hedge-fund manager (improbable given his insider-trading conviction, but that's Hollywood - it wouldn't be as much fun if he was running a car insurance company). I wonder how he reacts when he finds out Martin Sheen ended up President.

*Medieval scholastics would have been awed by the effort exerted by the Third Circuit to determine that putting on a hair net is "work". Of course, I am thankful not to work in a place of employment that has an "evisceration" department.

*The Constitution stops at the frat house door, as the Second Circuit upholds a college's right to use anti-discrimination policies to deny recognition to a fraternity on grounds of not admitting women. There's a case to be made for greater autonomy of educational institutions and a case to be made for the fundamental ambiguity of right-to-association law, but the reasoning used in this opinion is almost as flimsy as the public policy at issue is blinkered.

*An ex-parrot who was impressively intelligent.

*Of course, Michael Moore's new movie is loaded with untruths. (H/T). That's like going to a Jackie Chan movie and seeing a lot of kicking.

*Seems like a whole lot of nothing to me.

From Patterico:

[Richard] Haynes, the witty and gentlemanly criminal defense lawyer, recalls the prior generation’s legal master Percy Foreman warning him that the law is a jealous mistress "but they don't explain that the law is a nymphomaniac."

Senator Webb wants to know why Bush nominated an attorney who wasn't on a list submitted by Webb for the Fourth Circuit.

Elections=>Consequences.

There's getting screwed by a lawyer, and then there's . . . this.

Former Judge Michael Mukasey has a great summary of why the Jose Padilla case, even after Padilla's conviction, still shows that processing terrorists and potential terrorists through the regular criminal justice system is such a bad idea. Key graf:

First, consider the overall record. Despite the growing threat from al Qaeda and its affiliates--beginning with the 1993 World Trade Center bombing and continuing through later plots including inter alia the conspiracy to blow up airliners over the Pacific in 1994, the attack on the American barracks at Khobar Towers in 1996, the bombing of U.S. embassies in Kenya and Tanzania in 1998, the bombing of the Cole in Aden in 2000, and the attack on Sept. 11, 2001--criminal prosecutions have yielded about three dozen convictions, and even those have strained the financial and security resources of the federal courts near to the limit.

Second, consider that such prosecutions risk disclosure to our enemies of methods and sources of intelligence that can then be neutralized. Disclosure not only puts our secrets at risk, but also discourages allies abroad from sharing information with us lest it wind up in hostile hands.

And third, consider the distortions that arise from applying to national security cases generally the rules that apply to ordinary criminal cases.

On one end of the spectrum, the rules that apply to routine criminals who pursue finite goals are skewed, and properly so, to assure that only the highest level of proof will result in a conviction. But those rules do not protect a society that must gather information about, and at least incapacitate, people who have cosmic goals that they are intent on achieving by cataclysmic means.

Khalid Sheikh Mohammed, the mastermind of the 9/11 attacks, is said to have told his American captors that he wanted a lawyer and would see them in court. If the Supreme Court rules--in a case it has agreed to hear relating to Guantanamo detainees--that foreigners in U.S. custody enjoy the protection of our Constitution regardless of the place or circumstances of their apprehension, this bold joke could become a reality.

The director of an organization purporting to protect constitutional rights has announced that his goal is to unleash a flood of lawyers on Guantanamo so as to paralyze interrogation of detainees. Perhaps it bears mention that one unintended outcome of a Supreme Court ruling exercising jurisdiction over Guantanamo detainees may be that, in the future, capture of terrorism suspects will be forgone in favor of killing them. Or they may be put in the custody of other countries like Egypt or Pakistan that are famously not squeamish in their approach to interrogation--a practice, known as rendition, followed during the Clinton administration.

At the other end of the spectrum, if conventional legal rules are adapted to deal with a terrorist threat, whether by relaxed standards for conviction, searches, the admissibility of evidence or otherwise, those adaptations will infect and change the standards in ordinary cases with ordinary defendants in ordinary courts of law.

As I have said repeatedly, it's a terrible mistake of the critics on the left to assume that everyone must either be treated as an ordinary criminal defendant or a lawful combatant. The system needs to formally recognize a third category and tailor the rules to the special needs of dealing with them.

My kids hate Michael Vick. Not, mind you, because of anything he did on or off the field, but simply because on vacation, every time they turned on ESPN to get baseball news, they instead got The Passion of the Vick, repeated endlessly. (Two summers ago it was the same with Terrell Owens).

Vick's deal is no cakewalk - a likely 12-18-month sentence plus possible state charges carrying stiffer fines. In fact, I don't know if I would have let him plead to the federal charges given the state exposure. Although I can't say I see what point there is to the state getting involved once he has plead to a federal felony; is Virginia really that short on crimes to prosecute?

Apparently, Vick is cooperating with an ongoing investigation of other dogfighting rings, so analysts like Roger Cossack were wrong in assuming that he had nothing more to offer once his co-defendants pleaded out. But even if he was the last man standing, Vick had two key chips to play. First, if the investigation really had ended with him, there's the benefit to the prosecutors of being able to close a case and close it successfully - move on to other things, wrap up without a defeat or a messy, labor-intensive trial.

And second, Vick's plea legitimizes his prosecution - not a minor thing when a man has lined up the NAACP and similar groups to charge racism and witch-hunting in the bringing of the investigation. Having the man stand up and accept responsibility goes a long way in that regard.

False advertising cases can be fairly amusing (well, in an amusing-to-lawyers sort of way):

Here, the District Court found that Shatner's assertion [as Captain Kirk in a DIRECTV commercial] that "settling for cable would be illogical," considered in light of the advertisement as a whole, unambiguously made the false claim that cable's HD picture quality is inferior to that of DIRECTV's. We cannot say that this finding was clearly erroneous, especially given that in the immediately preceding line, Shatner praises the "amazing picture clarity of DIRECTV HD." We accordingly affirm the District Court’s conclusion that TWC established a likelihood of success on its claim that the Revised Shatner Commercial is literally false.

I guess Mr. Spock was correct to question this statement. A Jessica Simpson-as-Daisy Duke commercial got the same treatment.

The en banc DC Circuit holds that there's no constitutional right for the terminally ill to take experimental but potentially life-saving drugs while they are being tested for safety and effectiveness by the FDA. This decision is bad public policy, but it's good law; it's clear from reading the arguments made for the plaintiffs that there was no way to describe the right that would even remotely resemble a guarantee protected by the Constitution.

In the process, the court discusses but rejects an idea that has long intrigued me - that unenumerated rights protected by the Ninth Amendment are those rights that government has never previously invaded, as opposed to things that were widely prohibited at the time the Ninth Amendment was adopted:

True, a lack of government interference throughout history might be some evidence that a right is deeply rooted. But standing alone, it cannot be enough. If it were, it would be easy to employ such a premise to support sweeping claims of fundamental rights. For example, one might argue that, because Congress did not significantly regulate marijuana until 1937, relatively late in the constitutional day, see Gonzales v. Raich, 545 U.S. 1, 11 (2005), there must be a radition of protecting marijuana use. Because Congress did not regulate narcotics until 1866 when it heavily taxed opium, a drug created long before our Nation’s founding, see United States v. Moore, 486 F.2d 1139, 1215-16, 1218 n.50 (D.C. Cir. 1973) (Wright, J., dissenting), it must be that individuals have a right to acquire and use narcotics free from regulation. Or because speed limits are a recent innovation, we have a fundamental right to drive as fast as we deem fit. But this is most certainly not the law. A prior lack of regulation suggests that we must exercise care in evaluating the untested assertion of a constitutional right to be free from new regulation. But the lack of prior governmental regulation of an activity tells us little about whether the activity merits constitutional protection: "The fact that powers long have been unexercised well may call for close scrutiny as to whether they exist; but if granted, they are not lost by being allowed to lie dormant, any more than nonexistent powers can be prescripted by an unchallenged exercise." See United States v. Morton Salt Co., 338 U.S. 632, 647 (1950). Indeed, creating constitutional rights to be free from regulation based solely upon a prior lack of regulation would undermine much of the modern administrative state, which, like drug regulation, has increased in scope as changing conditions have warranted.

Slip op. at 22-23. I'd agree with the court that the mere absence of prior regulation is not by itself enough to create an unenumerated right, but I do think this particular point merited more thoughtful consideration than the Court gave it - the fact that an argument makes "much of the modern administrative state" unconstitutional may be reason to invoke stare decisis and avoid overturning such widespread and settled practices, but it is not a basis for saying that the argument is wrong. Experimental drugs didn't really exist in 1789 in the way we think of them today - but plenty of other things unregulated by the government at the time did, and a serious effort to make sense of the Ninth Amendment requires a better explanation of why it was not meant to restrict new and novel forms of government intrusion.

*Pedro Feliciano's meltdown on Saturday can probably just be chalked up to nobody being perfect (Wagner, whose ERA is down to 1.39, is almost certainly overdue for one of those games), but with Joe Smith down in the minors, it's also a reminder that guys like Feliciano can go south on you in a hurry if overworked. The Mets don't have the juice for a Mark Teixeira deal at this point, so the deal they need to make is for another arm in the pen.

*Via Bob Sikes: Bill Robinson has died. Robinson always seemed like a classy guy, and as a ballplayer he was (along with Mike Easler) one of the guys rescured off the scrap heap in mid-career to help build the Pirates into a championship team in the late 70s and early 80s: Robinson was a 31-year-old .235/.386/.281 hitter and busted ex-prospect when he came to Pittsburgh, but batted .276/.477/.313 (114 OPS +) over 8 seasons at Three Rivers. RIP.

*David Pinto makes an excellent point about changing sizes of ballplayers: scrappy little Craig Biggio is the same listed height and weight as Willie Mays and Carl Yastrzemski.

*For all the guff David Wright takes, recall that in 2007, he is batting .295/.516/.423 with runners in scoring position and .333/.611/.400 in the late innings of a close game.

*I banged out a quick column on Spitzergate last week that I never got around to cross-posting here. Mindles Dreck and Prof. Bainbridge both point out that Spitzer would not have cared whether corporate executives claimed, as he does now, not to have known of their subordinates' misconduct.

*Ryan McConnell aptly sums up my feelings about Glavine:

I'll be honest: I hated when Steve Phillips and the Mets signed Tom Glavine five years ago. I thought it was a stupid, misguided attempt to steal away a rival's player and a complete waste of money. But, while Glavine's never been a personal favorite -- I'm Irish, grudges don't fade as easily for us -- he's far outperformed any reasonable expectations of him while behaving in the most professional, likeable manner possible. He may not be dominant any more, and he seems particularly prone to giving large leads away lately, but I'll always remember the tremendous performance he turned in during last year's playoffs. And I'll be thrilled to see him finally achieve his 300th win.

He also quotes this bizarre statement from Wallace Matthews:

Historically, he may be the best pitcher the Mets have had on their staff since Tom Seaver was run out of town 30 years ago...

How soon they forget. Has Matthews never heard of Pedro Martinez?

*Jaw, meet floor: Byron York notes Obama's pledge in last week's debate "to meet, one-on-one, in his first year as president, with Mahmoud Ahmadinejad, Bashir Assad, Hugo Chavez, Fidel Castro, and Kim Jong Il."

They never learn. They never, ever, ever learn.

*There are many reasons to doubt the veracity of TNR's formerly pseudonymous mil-blogger Scott Thomas Beauchamp, but Megan McArdle, as usual, cuts to the root of why the stories set off people's BS meters even beyond the parts (e.g., the Bradley dog-hunting tales) that seemed to clash with physical reality:

It beggars belief that 100 or more people silently watched some pottymouthed privates taunting a cripple who had acquired her injuries in the line of duty. I'm moderately well-versed in the stories about battle-hardened veterans committing atrocities in World War II. I've never come across a single story about making fun of your own side's wounded.

Atrocities, and just plain barbaric behaviour, do happen, even on the good guys' side. But the fact that they happen doesn't mean that anything can happen. AFAIK, the taboo behaviours soldiers engage in tend to fall into fairly well-defined patterns: rape, pillage, looting, revenge exacted on innocent but handy targets, graveyard jokes, taking trophies from the enemy dead. There's a kind of primitive logic to them that may sicken you, but still ultimate[ly] makes some sort of emotional sense. Beauchamp's stories defy that logic, which makes me distrust them.

*This study doesn't sound too promising by itself, but it is true that fantasy baseball is a great microcosm of how humans learn and adapt - getting your butt whipped in a fantasy league, and the desire to avoid doing so again, is a great motivator for not just gathering information but also learning how to sift between the useful and the fool's gold (similarly, I have crammed years of lessons about, say, the value of on base percentage into the past year by playing Strat-O-Matic with my son).

*John Kerry, Genocide Denier.

*Yes, Bush has been more stymied than Clinton in getting judges through the Senate.

*Who else but James Lileks would describe the young Hugh Hefner as being "built like a bag of yardsticks"?

*Bonobo apes: not so politically correct after all (somebody tell Maureen Dowd!).

*How Roger Clemens ruined Michele Catalano.

*Crazy Pooh.

*Hanson is back. I actually thought those guys had talent, if not much depth to them (unsurprising, at their age back then). I'll be interested to see if they've done anything useful with it now that they have grown up.

*Shockingly, Justice O'Connor's case-by-case approach to the law has left her jurisprudence with little influence now that she is not there to vote on particular cases.

*NCLB - hated on the Left, distrusted on the Right, but getting results?

From the comments, this is just a ludicrous lawsuit:

Stephen Dunne, 30, of Boston, is seeking $9.75 million in the suit against the Massachusetts Board of Bar Examiners and the Massachusetts Supreme Judicial Court. He was denied a license to practice law in May after scoring 268.866 on the exam, just shy of the 270 passing grade.

Dunne, who is representing himself in the case, refused to answer an exam question addressing the rights of two married lesbians, their children and their property, and claims in the suit that it cost him a passing score.

In the suit, Dunne called the question "morally repugnant and patently offensive," and said he refused to answer it because he believed it legitimized same-sex marriage and same-sex parenting, which is contrary to his moral beliefs.

Now, I'll agree that there can be a problem when professors in college or law school ask politcally loaded questions and give better grades to people who agree with them. But let's walk through the absurdities here:

1. The bar is pass-fail.
2. The bar is written by committee and graded by committee, generally in haste.
3. The entire purpose of the bar is to demonstrate your ability to regurgitate the rules that make up the law as it presently is. There's nothing offensive about being asked to describe the world we live in. And if men were angels, no bar exams would be necessary.
4. $9.75 million?

Federal District Judge Gladys Kessler has lifted a temporary restraining order barring the "DC Madam," Deborah Jane Palfrey, from distributing copies of her list of telephone numbers, over objections by the prosecution. Presumably there will be some unhappy people in DC this afternoon.

Just hours after the DC Circuit affirmed the order requiring Scooter Libby to face jail time pending the appeal of his conviction, President Bush used the presidential pardon power to commute Libby's sentence, thus sparing him jail time while leaving in place the conviction - in other words, an unsentenced conviction for a victimless crime:

President Bush Monday spared former vice presidential aide Lewis "Scooter" Libby from going to prison for 2 1/2 years for obstructing the CIA leak investigation, a White House official said.

The official said Bush "has commuted the prison sentence ... leaving intact the probation and fines handed down by the court."

"That means he is not going to jail," the official said.

Now, we get to hear what Hillary Clinton thinks about the proper uses of the pardon power and whether losing your high position in federal office is insufficient punishment for perjury.

UPDATE: What do I mean by "victimless crime"? Libby was convicted for misleading an investigation into a whodunit where the investigators already knew whodunit and didn't prosecute. Granted, Libby's false statements to the FBI (unlike his grand jury testimony) preceded Fitzgerald's appointment and Armitage's confession, but even so, the "harm" to the investigation was pretty fleeting and had no real consequence.

I don't underrate the seriousness of perjury, but in sentencing, or using the pardon power, you consider mitigating factors. Unlike the Paula Jones case, no individual litigant was harmed by obstruction of the discovery process. And unlike the Sandy Berger case, there was no successful coverup.

Patterico gold.

The Second Circuit ruled, in today's decision in Best Van Lines, Inc. v. Walker, that making statements on an Iowa-based website about a New York-based moving company, responding to a question from a reader in New York, and accepting donations from New York readers does not subject the proprietor to jurisdiction in the New York courts under New York law. The court did not reach the issue of constitutional due process limitations on personal jurisdiction, and noted the limited scope of jurisdiction for defamation claims in the New York statute (a view influenced by the New York Times v. Sullivan case, which I have long cited as a significant horizontal-federalism case). For those who follow this issue closely, the court's skeptical treatment of the Zippo standard for jurisdiction will be interesting.

Some people just need to be fired.

This is insane:

The father of Josh Hancock filed suit Thursday, claiming a restaurant provided drinks to the St. Louis Cardinals relief pitcher even though he was intoxicated prior to the crash that killed him.

The suit, filed in St. Louis Circuit Court by Dean Hancock of Tupelo, Miss., does not specify damages. Mike Shannon's Restaurant, owned by the longtime Cardinals broadcaster who starred on three World Series teams in the 1960s, is a defendant in the case along with Shannon's daughter, Patricia Shannon Van Matre, the restaurant manager.

Other defendants include Eddie's Towing, the company whose flatbed tow truck was struck by Hancock's sport utility vehicle in the early hours of April 29; tow truck driver Jacob Edward Hargrove; and Justin Tolar, the driver whose stalled car on Interstate 64 was being assisted by Hargrove.

The Cardinals and Major League Baseball were not listed as defendants.

Authorities said the 29-year pitcher had a blood alcohol content of nearly twice the legal limit when he crashed into the back of the tow truck. He was also speeding and using a cell phone and wasn't wearing a seat belt, police chief Joe Mokwa said after the accident. Marijuana was also found in the SUV.

***

The lawsuit claimed Tolar was negligent in allowing his vehicle to reach the point where it stalled on the highway, and for failing to move it out of the way of oncoming traffic. A police report said the car became stalled when it spun out after being cut off by another vehicle.

Police said Hargrove noticed the stalled vehicle and stopped to help. The report said he told officers he was there five to seven minutes before his truck was hit by Hancock's SUV. But Kantack said the tow truck may have been there up to 15 minutes, yet failed to get the stalled vehicle out of the way.

"Were the police contacted?" [Keith] Kantack[, a lawyer for Dean Hancock] asked. "Why weren't flares put out? Why was the tow truck there for an exorbitant amount of time?"

Let's see how many things are wrong with this picture:

1. Isn't Hancock responsible for knowing that drinking for hours and then getting in his car is a bad idea (to say nothing of speeding, talking on a cell phone and not wearing his seatbelt)? The man had pot in his car, the bar didn't put that there. He made bad choices, and there are consequences for those. It's not like this is a lawsuit filed by some innocent bystander injured by Hancock.

2. Hancock made good money, died single as a grown man, left no dependents. Why should his father be entitled to get money on his behalf?

3. He's suing the guy whose car stalled on the highway? Because his car stalled out after he got cut off? And from whom he will presumably seek a share of the lost wages for a major league ballplayer who was driving drunk while yakking on the phone? Gimme a break. The tow truck driver may have been in some ways negligent, but even then, the guy drives a tow truck, and it's not his fault that Hancock was plastered and on the phone.

4. The cell phone manufacturer hasn't been sued. Yet.

WSJ Blog notes yet another story about how Justice Thomas doesn't ask questions at oral argument.

The logical answer to this would seem to be that Justice Scalia is an extremely aggressive questioner, and Chief Justice Roberts has now joined him in that regard - and on a nine-judge Court, there is a diminishing return in having multiple voices from the Right asking the same questions. But as I noted last fall, Thomas' own explanation is rather different, and in fact seems to be almost the opposite conclusion:

Thomas said that as a young state attorney general arguing before the Supreme Court of Missouri, he recalled justices who "actually allowed me to make my argument. They listened to what I had to say. ... Nor did I ever feel I had not been heard or did not have my day in court." . . . "It seems fashionable now for judges to be more aggressive in oral arguments," he said. "I find it unnecessary and distracting. ... I truly think oral arguments would be more useful if the justices would listen rather than debating the lawyers. ... I think the judges need to listen if the arguments are to be effective."

A lawsuit against the Little League for failing to teach how to slide.

In what will almost certainly be the most practically significant case of this term, a major, major win for defendants, especially corporate defendants, today in the Supreme Court, and via a 7-2 decision written by Justice Souter from which only Justices Stevens and Ginsburg dissented.

The Court, in Bell Atlantic v. Twombly, No. 05-1126 (May 21, 2007), held that plaintiffs in an antitrust conspiracy case may not survive a motion to dismiss the complaint at the outset under Rule 12(b)(6) by a bare assertion of conspiracy. In so holding, the Court significantly clarified the Rule 8 pleading standards governing motions to dismiss non-fraud-based claims.

To put the matter in non-lawyer-ese, the Court held that plaintiffs' lawyers (in this case class action plaintiffs in an antitrust case, but the ruling will affect all civil lawsuits in federal court) need to have more of a factual basis for filing lawsuits before they can kick-start the expensive and intrusive discovery process.

Read More »

Allahpundit notes that Sandy Berger has surrendered his law license rather than face cross-examination about his destruction of original classified documents to obstruct the investigation of the 9/11 Commission. Allahpundit thinks that Berger would have been able to assert the Fifth Amendment to avoid answering those questions, but I'm not so sure; after all, he has already been sentenced for the conduct in question, and in light of the Double Jeopardy Clause the right against self-incrimination no longer attaches after sentencing.

Unless, of course, there are other crimes he could still be charged with besides the ones he was convicted and sentenced for.

Patterico responds again to the idea (see here, h/t here) that voter fraud is a non-existent problem simply because it is hard to get criminal convictions for voter fraud. More background in this post, and that's before we even get to some of the voter-turnout figures for cities like Philadelphia and Milwaukee (I've never heard a legitimate explanation as to how a large city can have voter turnout in excess of 100%).

A California appeals court throws out a lawsuit against the Internet Movie Database (IMDb), holding that under California's SLAPP statute (designed to reduce lawsuits targeting public speech), IMDb was entitled to immunity from suit for basing its listing of film credits on the credits used by the studios. The plaintiff claimed an entitlement to be listed as a producer on three films but had had his credits deleted by the studio after he left its employ.

Chief Justice Roberts reads Howard Bashman's blog? Frankly, it's amazing that anybody associated with the appellate courts doesn't.

As for the substantive issue Ann Althouse raises, I agree that blogging about pending litigation or judicial opinions is no more or less ethical than writing a newspaper op-ed. And anyway, blogging is more often going to be about the law rather than the evidence, and we expect courts to consider outside sources about the law.

(H/t Bill Hobbs)

So the Ninth Circuit rejects claims that San Francsico discriminated in applying its noise ordinance against roving Christian evangelists, rejecting a rare marriage of evangelical Christians and the ACLU. Maybe it's just me, but my reaction to this case is that I can think of higer-leverage uses for dedicated Christian evangelists than preaching by loudspeaker on the streets of San Francisco.

Orin Kerr spots a good one from Chief Justice Roberts at the expense of Justice Stevens.

Instapundit quotes Radley Balko arguing that the manifest injustice in the Nifong/Duke scandal should lead to a reassessment of the criminal justice system more broadly because

Nifong is by no means the only overly aggressive prosecutor in this country. And Durham is by no means the only jurisdiction where the wrong people have been wrongly accused. As Seligmann suggested, the only real difference may have been that the Duke players had the resources to fight back. Many others don't.

Balko's other examples support his thesis that the Nifong case certainly wasn't a complete outlier in terms of law enforcement misconduct, but I think Balko sells short a hugely significant aspect of the Duke case that isn't present in a lot of ordinary criminal cases: the fact that an elected prosecutor used a high-profile, highly publicized case to win an election by playing to race and class resentment, with the complicity of the media and powerful forces in the community (in this case, local and national African-American "leaders" and the Duke faculty). While that's hardly the first time that's been done, it does suggest that there was rather a stronger-than-usual motive for the DA and the cops (one of whom appears to have had a long-running vendetta against Duke students) to bend, break and mutilate the rules to frame innocent men.

Justice Scalia defends his colleague:

One of the most persistent media myths about Thomas is that he follows the intellectual lead of fellow conservative Scalia...

...Questioned about that view of Thomas, Scalia replied, "It's a slur on me as much as it is a slur on him - like I'm leading him by the nose... I don't huddle with Clarence and say, 'Clarence this is what we're going to do.'" The myth's persistence, Scalia said, is "either racist or it's political hatred."

H/T

*There's a fair number of debates from the Virginia Tech shooting I don't have time to weigh in on now (there's the gun control issue; Glenn Reynolds aptly summarizes the case for less of it here, there's the university's reaction time, and there's the appalling spectacle of NBC News broadcasting the killer's videotape), though it seems the most important question is why it was so hard to get the killer out of circulation or at the very least on a list of people who should not be permitted to buy firearms, when he was giving off every sign of being a potential danger to himself and others and everyone around him saw those signs and several people tried to do something about it.

In all the horror I did find one moment of a little levity from this quote:

Briettney said her friend, who was shot in the knee, buttocks and shoulder, was expected to be all right. "The one day he goes to class, he gets shot three times!"

*If you were wondering what was so gosh-darn important about holding that Rutgers press conference: the Rutgers coach now has a book deal.

*All three of my fantasy baseball teams have Felix Hernandez. This is not good news for any of them. Perhaps letting him throw a 111-pitch complete game on a cold April night in Fenway in his last start was not such a good idea.

*I definitely did not see a Mark Buehrle no-hitter coming. The past four years, Buehrle has finished second, second, first and first in the AL in hits allowed.

*You can read my reactions to the partial-birth abortion decision here, here and here. This is also a good summary of the concurrence (H/t).

*Please, wear your seatbelts.

CNN header on the front page: "Howard K. Stern hires lawyer in JonBenet case".

The actual story shows that Stern - of Anna Nicole Smith fame, not the radio shock jock - hired the lawyer from the JonBenet case. As in, a guy who represented the Ramseys. But to read the headline you would think he was a suspect in the JonBenet case, a combination that would keep the tabloids in business for centuries.

In a concurring opinion, Seventh Circuit judge (and Supreme Court short-lister) Diane Sykes calls foul on plaintiffs who claimed taxpayer standing to sue to block the Army from aiding the Boy Scout Jamboree (on grounds of the Scouts' rather bland and generic religious requirements) but didn't have the guts to take their position to its logical conclusion:

The district court held that Sec. 2554 violated the Establishment Clause and enjoined "the U.S. Secretary of Defense and his officers, agents, servants, employees and attorneys . . . from providing any aid to the Boy Scouts of America pursuant to 10 U.S.C. Sec. 2554, with the sole exception of aid provided or to be provided in support of the 2005 Jamboree that will take place from July 25 through August 3, 2005." (Emphasis added.) This order was dated June 22, 2005, and it notes that "[t]he injunction the plaintiffs are seeking specifically excludes the upcoming 2005 Jamboree." Whether the plaintiffs’ forbearance in this regard was the product of generosity, the spirit of compromise, or a desire to avoid the public relations fallout that would have attended their eleventh-hour scuttling of the 2005 Jamboree (if that’s what would have occurred), their conduct undermines any claim that they were suffering a grave constitutional injury. Constitutional litigation is legitimate only where there is a real injury and a legal remedy available to redress it. A willingness to postpone the remedy suggests that the plaintiffs' injury was not real but only a legal fiction to get their Establishment Clause claim before the court.

H/t Bashman.

Patterico thinks the FBI should drop its resistance to taping interviews with suspects and witnesses. As he notes, there are practical reasons why you can't and shouldn't record every such interview, but no particularly good reason to have a blanket opposition to them.

In fact, the Scooter Libby case provided a good example of why - recall that, if I remember correctly, Libby was acquitted on the count of lying to the FBI that related to an interview that was not transcribed in contemporaneous notes produced at trial, even though the jury convicted him of what was apparently the same general statements to the grand jury. And there were signs that the jury simply didn't believe that Fiztgerald had proven beyond a reasonable doubt what Libby said in that interview.

Any lawyer who has ever gone back to a deposition or court transcript - or even a legal brief - knows that you sometimes come away recalling that something was said that wasn't, at least in so many words. That's why transcripts are invaluable. And it's why recorded interviews or videotaped confessions are, when practicable, a tremendous step forward for the system.

The US District Court for the District of Columbia has rejected the Free Enterprise Fund's lawsuit seeking to have Sarbanes-Oxley declared unconstitutional (the FEF argues that the Public Company Accounting Oversight Board violates the Appointments Clause and the Non-Delegation doctrine).

The opinion is not yet online.

Authorized corporate blogs are rarely interesting, but the blog by Mike Dillon, General Counsel of Sun Microsystems, is occasionally candid enough to be worth reading; his description from last month of the challenges of trying to actually do business in Hugo Chavez's Venezuela is illuminating:

The current congress in Venezuela has given their president broad powers to unilaterally enact laws for a period of 18 months in a wide range of areas. The result is that new laws and changes to existing laws are issued almost weekly. Last month, Venezuela's president announced plans to nationalize the country's oil, telecommunication and electricity companies. There are concerns that he may go further.

I spent over an hour meeting with a group of eight local attorneys in Caracas to discuss this fluid political situation and how it impacts their work. They represented a cross-section of the local legal profession - lawyers from firms and in-house with IT, energy and telecommunications companies. They very openly described the challenges of trying to advise their clients about laws that appear first in the morning newspaper with no prior legislative debate or announcement. Many of these new enactments were described as inconsistent or ambiguously drafted. This forces citizens to seek prior approval from the government before taking any action. And, there is no stare decisis to be relied upon for guidance.

It's a very anxious environment in which uncertainty pervades most aspects of life.

The Ninth Circuit, on remand in Raich v. Gonzales (9th Cir. March 14, 2007), held yesterday that there is no fundamental Constitutional right to smoke pot, no matter how sick you are - but there might be later, once we have all expanded our minds just a little more:

Though the Lawrence [v. Texas] framework might certainly apply to the instant case, the use of medical marijuana has not obtained the degree of recognition today that private sexual conduct had obtained by 2004 in Lawrence.

+++

We agree with Raich that medical and conventional wisdom that recognizes the use of marijuana for medical purposes is gaining traction in the law as well. But that legal recognition has not yet reached the point where a conclusion can be drawn that the right to use medical marijuana is “fundamental” and “implicit in the concept of ordered liberty.” ... For the time being, this issue remains in “the arena of public debate and legislative action.” ...

As stated above, Justice Anthony Kennedy told us that “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.” Lawrence, 539 U.S. at 579. For now, federal law is blind to the wisdom of a future day when the right to use medical marijuana to alleviate excruciating pain may be deemed fundamental. Although that day has not yet dawned, considering that during the last ten years eleven states have legalized the use of medical marijuana, that day may be upon us sooner than expected. Until that day arrives, federal law does not recognize a fundamental right to use medical marijuana prescribed by a licensed physician to alleviate excruciating pain and human suffering.

Translation: they will let us have our democracy a little while longer. Note that, as usual, the discussion assumes that the meaning of the Constitution can be changed by legislative action of a number of states that is smaller than the number expressly required to change the Constitution itself in Article V.
Granted, had the Supreme Court held - as it should - that the regulation of purely intrastate pot sales and use is beyond Congress' Commerce Clause powers, this issue would be where it belongs, with individual state governments. But in any event there is no warrant for declaring that a fundamental constitutional right is being grown under the Ninth Circuit's heat lamps.

"One of the things I am asked is if I believe in a living Constitution," Alito said in his speech, referring to a thought that the Constitution can reflect the times. "Umpires face this very same problem. For example, do we want a living strike zone?"

I guess he doesn't want to see Questec imposed on the federal courts...

Link. H/T.

*Business Week has a rare interview with Justice Thomas, mainly about his Holy Cross days. H/T Stuart Buck. Thomas comes out swinging right away on why he doesn't talk to the press much (although, as I can attest, he can be warm and accomodating in meeting with visitors to the Court):

One of the reasons I don't do media interviews is, in the past, the media often has its own script. One reason these stories are never told is that they are contrary to the script that people play by. The media, unfortunately, have been universally untrustworthy because they have their own notions of what I should think or I should do.

Thomas on his job as a Justice:

Isn't this where you want to be, where you can have the greatest impact?

Nah. I don't think you should do these jobs with that in mind. I don't think you should relish affecting people's lives like that, because you don't know whether you have the right answers. Along the way, you learn that.

Thomas also speaks warmly of friends at HC, including Ted Wells (who's been in the news lately defending Scooter Libby, though Wells himself is no Republican). On Holy Cross compared to Yale:

You went to Yale later on. Would you have wanted to do your undergraduate degree there?

No. No, I belonged at a school like Holy Cross. In fact, in today's world, I probably belonged at a place like the University of Georgia. Holy Cross was perfect for me at that time. I had enough on my platter.

Do you feel a sense of fraternity with the people you went to school with?

In a distant way, I absolutely do. We don't pal around. I absolutely admire Ted Wells and he and I are quite different. He's one of the finest lawyers in the United States. But you know what? It's not unpredictable. It's something that could have been predicted. Think of the people who took chances on him.

There was a wonderful fraternity-The Cross. When you were a crusader, you looked after each other-no matter where you were. That doesn't mean they would always be in a position to do you a favor. But they were there, just as a friend. I've never been turned away by a graduate of The Cross.

How did you find your experience at Yale?

Let me put it this way: It wasn't the kind of environment Holy Cross was and I would not have done well there. I don't fit in there. It wasn't about them. I just didn't fit. I don't fit in an orchestra. I don't care how great the orchestra is. It's nothing against Yale. I'm extraordinarily pleased that through serendipity or, I like to think, almost divine providence, I wound up at Holy Cross.

(I should add, having been both at HC and Harvard, that I feel exactly the same way).

Read the whole thing, there's a lot more there.

Business Week has a rare interview with Justice Thomas, mainly about his Holy Cross days. H/T Stuart Buck. Thomas comes out swinging right away on why he doesn't talk to the press much (although, as I can attest, he can be warm and accomodating in meeting with visitors to the Court):

One of the reasons I don't do media interviews is, in the past, the media often has its own script. One reason these stories are never told is that they are contrary to the script that people play by. The media, unfortunately, have been universally untrustworthy because they have their own notions of what I should think or I should do.

Thomas on his job as a Justice:

Isn't this where you want to be, where you can have the greatest impact?

Nah. I don't think you should do these jobs with that in mind. I don't think you should relish affecting people's lives like that, because you don't know whether you have the right answers. Along the way, you learn that.

Thomas also speaks warmly of friends at HC, including Ted Wells (who's been in the news lately defending Scooter Libby, though Wells himself is no Republican). On Holy Cross compared to Yale:

You went to Yale later on. Would you have wanted to do your undergraduate degree there?

No. No, I belonged at a school like Holy Cross. In fact, in today's world, I probably belonged at a place like the University of Georgia. Holy Cross was perfect for me at that time. I had enough on my platter.

Do you feel a sense of fraternity with the people you went to school with?

In a distant way, I absolutely do. We don't pal around. I absolutely admire Ted Wells and he and I are quite different. He's one of the finest lawyers in the United States. But you know what? It's not unpredictable. It's something that could have been predicted. Think of the people who took chances on him.

There was a wonderful fraternity-The Cross. When you were a crusader, you looked after each other-no matter where you were. That doesn't mean they would always be in a position to do you a favor. But they were there, just as a friend. I've never been turned away by a graduate of The Cross.

How did you find your experience at Yale?

Let me put it this way: It wasn't the kind of environment Holy Cross was and I would not have done well there. I don't fit in there. It wasn't about them. I just didn't fit. I don't fit in an orchestra. I don't care how great the orchestra is. It's nothing against Yale. I'm extraordinarily pleased that through serendipity or, I like to think, almost divine providence, I wound up at Holy Cross.

(I should add, having been both at HC and Harvard, that I feel exactly the same way).

Read the whole thing, there's a lot more there, as well as a longer feature story on Justice Thomas' African-American classmates at HC.

It may not be enough anecdotes to constitute a trend, but a look at appellate court decisions over the past week gives reason to hope that the courts may finally be beginning to weary of interfering in the culture wars - but also offers some cautions about the consequences of each step towards an activist judicial role in those battles. A single step into the fray can take a log time and a lot of litigation to cabin.

We begin with two decisions from the DC Circuit. In the first, DKT Int'l Inc. v. U.S. Agency for Int'l Development (D.C. Cir. Feb. 27, 2007), a recipient of federal funds under a federal program designed to fight HIV/AIDS in the developing world filed suit, arguing that its First Amendment rights were violated by a condition that groups accepting funding certify that it has a policy opposing prostitution and sex trafficking. Yes, you read that right:

DKT alleged that it refuses to adopt a policy opposing prostitution because this might result in "stigmatizing and alienating many of the people most vulnerable to HIV/AIDS - the sex workers . . . "

The DC Circuit sensibly noted that compelling recipients of federal funds to agree with the message they were being paid to promote was well within the government's rights (as my Con Law professor used to say, "It's the government's nickel"):

In this case the government's objective is to eradicate HIV/AIDS. One of the means of accomplishing this objective is for the United States to speak out against legalizing prostitution in other countries. The Act's strategy in combating HIV/AIDS is not merely to ship condoms and medicine to regions where the disease is rampant. Repeatedly the Act speaks of fostering behavioral change, see, e.g., 22 U.S.C. § 7601(22)(E), and spreading "educational messages," id. § 7611(a)(4). The Act's stated source of inspiration is the success in Uganda, where President Yoweri Museveni "spoke out early, breaking long-standing cultural taboos, and changed widespread perceptions about the disease." Id. § 7601(20)(B). The Act details the program Museveni instituted, which primarily involved a "message" about "a fundamental change in sexual behavior." Id. § 7601(20)(C). "Uganda's success shows that behavior change . . . is a very successful way to prevent the spread of HIV." Id. § 7601(20)(D). Spending money to convince people at risk of HIV/AIDS to change their behavior is necessarily a message.

+++

The government's brief summarizes these points: "It would make little sense for the government to provide billions of dollars to encourage the reduction of HIV/AIDS behavioral risks, including prostitution and sex trafficking, and yet to engage as partners in this effort organizations that are neutral toward or even actively promote the same practices sought to be eradicated. The effectiveness of the government's viewpoint-based program would be substantially undermined, and the government's message confused, if the organizations hired to implement that program by providing HIV/AIDS programs and services to the public could advance an opposite viewpoint in their privately-funded operations."

A victory for democracy (this is an act of Congress supported by the Bush Administration), and for common sense as well, although the court noted (in footnote 4 on p. 9) that the government's policy could just as easily have been evaded by DKT if it simply separately incorporated its pro-prostitution organization and the organization receiving federal funds.

The second decision involved an effort to change behavior closer to home: the court in Decatur Liquors, Inc. v. DC (DC Cir. Feb. 27, 2007) rejected a challenge to a zoning rule in one ward of DC (sponsored by the now-Mayor of DC) barring the sales of single containers of beer, on the theory that single-container sales "were especially likely to lead to public drunkenness and other antisocial behavior." The court found that there were no substantial federal Constitutional bars to this rule, in particular rejecting an equal protection challenge to the fact that the rule encompassed only a single ward:

Council Member Fenty identified reasons why public drunkenness and other concerns were particularly acute in Ward 4, and, again, there can be no doubt that a link exists between the sale of alcohol and public drunkenness. Thus, plaintiffs' equal protection claim is insubstantial.

Now, one can agree or disagree with the policy, as with USAID's policy on prostitution, but in both cases the court gave room for democratically elected officials and their appointees to make a policy determination and implement it, so they could be judged on the results of that policy rather than being tied up in court trying to justify the rationale in abstract terms.

Next up, a decision from an intermediate appellate court in California, California Family Bioethics Council v. California Institute for Regenerative Medicine (Cal. App. 3 Dist Feb. 26, 2007), in which the court rejected a battery of challenges to Proposition 71, the initiative establishing taxpayer funding for stem cell research. The challenges included technical attacks (such as violation of the "single-subject rule" for ballot initiatives, a favorite of courts that disapprove of ballot initiatives, and various California Constitutional challenges) and charges that the initiative was misleading or misunderstood by the voters. The court rejected these arguments. First, the court noted that the proponents of the initiative had had to concede that stem cell research will provide uncertain benefits:

As the Attorney General observes, the ballot materials repeatedly stressed the speculative nature of any savings from research or earnings to the state from licensing royalties under the Cures Act.

More fundamentally, though, the court refused to second-guess the voters:

To say that the issues surrounding Proposition 71 and the issues surrounding stem cell research generally were well-aired prior to the election undoubtedly would be an understatement. Though many voters probably do not understand the science underlying somatic cell nuclear transfer, therapeutic cloning, and in vitro fertilization, they are not required to grasp the intricacies of this research frontier to intelligently decide whether to support a measure providing funding for such research. The ballot materials included a box entitled "Stem Cells and Stem Cell Research" that provided objective nontechnical answers to three questions: "What Are Stem Cells?," "What are Embryonic and Adult Stem Cells?," and "Why do Researchers Want to Study Stem Cells?" No more was required to permit voters to vote intelligently.

Unlike the DC Circuit decisions, the California decision won't make social conservatives happy - but it springs from the same basic principles of restraint. The voters were asked, the voters decided.

Then there's the Second Circuit, which was asked by a teachers' union in Port Washington Teachers Assn. v. Board of Ed. of the Port Washington Union Free School Dist. (2d Cir. Feb. 27, 2007) to strike down a policy promulgated by the school superintendant requiring teachers and staff to notify students' parents if they learn that the student is pregnant. The Second Circuit rejected the challenge, finding that the teachers and staff lacked standing, because they could not show that the policy placed them in direct conflict with confidentiality obligations (the policy "advises staff members to inform students that conversations about student pregnancies will not be held in confidence," is not mandatory, and the threat of suit by students is speculative).

The court's decision isn't a clear-cut victory for restraint: the Second Circuit avoided a premature decision on the constitutionality of the policy, but it also neutered the policy by concluding that it was outside the superintendant's powers under New York's Education Law.

Another ambiguous case comes from the Supreme Court, which in the case of Harper v. Poway School District, No. 06-595 (U.S. Mar. 5, 2007), reversed a Ninth Circuit decision from last April that had denied First Amendment protection to a high school student who claimed a constitutional right to wear T-shirts to school that read, "BE ASHAMED, OUR SCHOOL EMBRACED WHAT GOD HAS CONDEMNED" handwritten on the front, and "HOMOSEXUALITY IS SHAMEFUL" handwritten on the back. A divided Ninth Circuit panel, in an opinion by Judge Reinhardt (with Judge Kozinski dissenting), had exercised restraint, of a sort, by lifting a preliminary injunction against the school district. In a saner world, the court might have been able to say that schools have an inherent right to tell students whatever they want about appropriate attire, and that students have no business using their torsos as sandwich boards. But the court expressly declined to address the school dress code as a whole, or to establish a bright-line rule that discouraged litigation of this sort. Instead, the Ninth Circuit ruled on the particular content of the shirt, stating that its content could be banned out of concern over "psychological attacks that cause young people to question their self-worth and their rightful place in society," and declared a rule that protects some students more than others from provocative or insulting speech:

Speech that attacks high school students who are members of minority groups that have historically been oppressed, subjected to verbal and physical abuse, and made to feel inferior, serves to injure and intimidate them, as well as to damage their sense of security and interfere with their opportunity to learn. The demeaning of young gay and lesbian students in a school environment is detrimental not only to their psychological health and well-being, but also to their educational development.

As Eugene Volokh pointed out at the time, this is classic viewpoint discrimination (the court also cited Confederate flags as a type of speech the schools may properly ban, while glossing over the fact that the shirt was worn to protest a school-sponsored Gay-Straight Alliance "Day of Silence"), holding that some students are entitled to greater protection from competing viewpoints than others. It's also a distinctively activist posture - Judge Reinhardt left the door open for students with more favored opinions to file t-shirt suits.

As it turns out, the Supreme Court (with only Justice Breyer dissenting) ended up vacating the Ninth Circuit's opinion, but on the narrow ground of mootness, without ruling on the merits - robbing the Ninth Circuit opinion of its precedential value, but going no further.

Finally, we turn to the progeny of Lawrence v. Texas, the 2003 decision in which the Supreme Court announced a constitutional right to sodomy between consenting adults, premised upon a right of sexual privacy:

The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.

This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.

Unsurprisingly, the Lawrence decision has spawned to a battery of attempts to expand its rationale to other laws governing sexual conduct of one sort or another. First, the Supreme Court this past week declined to review the decision of the Supreme Court of Utah in State v. Holm (Utah May 16, 2006), which among other things rejected (over a dissent) a claim that Lawrence invalidated Utah's prohibition on bigamy. The court first stressed the Lawrence Court's drawing of lines intended to limit the decision's application:

Despite its use of seemingly sweeping language, the holding in Lawrence is actually quite narrow. Specifically, the Court takes pains to limit the opinion's reach to decriminalizing private and intimate acts engaged in by consenting adult gays and lesbians. In fact, the Court went out of its way to exclude from protection conduct that causes "injury to a person or abuse of an institution the law protects."

The Utah court found that the threat presented by bigamy to the institution of marriage justified a departure from Lawrence:

In marked contrast to the situation presented to the Court in Lawrence, this case implicates the public institution of marriage, an institution the law protects, and also involves a minor. In other words, this case presents the exact conduct identified by the Supreme Court in Lawrence as outside the scope of its holding.

First, the behavior at issue in this case is not confined to personal decisions made about sexual activity, but rather raises important questions about the State's ability to regulate marital relationships and prevent the formation and propagation of marital forms that the citizens of the State deem harmful.

+++

[A] marriage license significantly alters the bond between two people because the State becomes a third party to the marital contract. . .

[M]arital relationships serve as the building blocks of our society. The State must be able to assert some level of control over those relationships to ensure the smooth operation of laws and further the proliferation of social unions our society deems beneficial while discouraging those deemed harmful. The people of this State have declared monogamy a beneficial marital form and have also declared polygamous relationships harmful.

The Connecticut Supreme Court, in State v. McKenzie-Adams, (Ct. Feb. 27, 2007), rejected a similar effort to extend Lawrence to the case of a male teacher who had consensual sexual relations with two 16-year-old female students and claimed a "right to engage in noncommercial consensual sexual intercourse with individuals over the age of consent." The court found that the teacher-student relationship is "an inherently coercive relationship, . . . wherein consent might not easily be refused." The Connecticut court, like the Utah court, found it necessary to place a limiting construction on Lawrence, albeit one that is in some tension with the Utah court's reading of the case:

We conclude that the defendant's reliance on Lawrence is misplaced because, contrary to the defendant's claim, the court in Lawrence did not ignore the relationship between the participants to the prohibited sexual act. The court merely cautioned that, when reviewing a statute criminalizing private noncommercial consensual sexual conduct, it is improper to focus on the right to engage in specific sexual acts, as the court had done in Bowers. Instead, the court should focus on the right to foster certain intimate relationships. Accordingly, pursuant to Lawrence, the critical inquiry is whether the prohibited intimate relationship is within the liberty interest of the participants to choose, not on whether a right to engage in sexual conduct exists generally.

Finally, the Ohio Supreme Court, in State v. Lowe (Ohio Feb. 28, 2007), rejected (again over a dissent) an effort to use Lawrence to strike down a ban on consensual sexual conduct between a stepparent and adult stepchild. The Ohio court stressed that Lawrence did not announce a new fundamental right, and thus concluded:

[T]the state in this case distinguishes Lawrence as being limited to consensual sexual conduct between unrelated adults. Lowe and his stepdaughter were not unrelated. The state argues that since Lowe has no fundamental right in this case, and the state has a legitimate interest in prohibiting incestuous relations and in protecting the family unit and family relationships, the rational-basis test should apply. . .

. . . Lawrence did not announce a "fundamental" right to all consensual adult sexual activity, let alone consensual sex with one's adult children or stepchildren.. . .

Ohio's statute serves the legitimate state interest of protecting the family unit and family relationships. While it is not enough under the rational-basis test for the government to just announce a noble purpose behind a statute, the statute will pass if it is reasonably related to any legitimate state purpose. . . . Ohio has a tradition of acknowledging the "importance of maintaining the family unit." A sexual relationship between a parent and child or a stepparent and stepchild is especially destructive to the family unit. R.C. 2907.03(A)(5) was designed to protect the family unit by criminalizing incest in Ohio. Stepchildren and adopted children have been included as possible victims of the crime of incest because society is concerned with the integrity of the family, including step and adoptive relationships as well as blood relationships, and sexual activity is equally disruptive, whatever the makeup of the family. . . . [P]arents do not cease being parents - whether natural parents, stepparents, or adoptive parents - when their minor child reaches the age of majority.

Accordingly, as applied in this case, R.C. 2907.03(A)(5) bears a rational relationship to the legitimate state interest in protecting the family, because it reasonably advances its goal of protection of the family unit from the destructive influence of sexual relationships between parents or stepparents and their children or stepchildren. If Lowe divorced his wife and no longer was a stepparent to his wife's daughter, the stepparent-stepchild relationship would be dissolved. The statute would no longer apply in that case.

(As Howard Bashman has noted - and as the Utah court discussed footnote 10 at page 23 of its opinion, and the Connecticut court addressed as well - there have been other challenges based on Lawrence as well. In one, a recent 11ith Circuit decision that upheld Alabama's ban on sale of sex toys on the grounds that unlike Lawrence "the statute at issue in this case forbids public, commercial activity" but also explicitly concluded that "public morality survives as a rational basis for legislation even after Lawrence, and we find that in this case the State's interest in the preservation of public morality remains a rational basis for the challenged statute." In another, the same issue presented in Lawrence was decided the opposite way in the context of the military's ban on sodomy by the Court of Appeals for the Armed Forces (discussed here by Phil Carter)).

As it turns out, both Rick Santorum and his critics can claim some measure of vindication from the Utah, Connecticut and Ohio decisions. Santorum (who, you will recall, gave his famous interview before seeing precisely how the Supreme Court would frame its decision) has been proven right about the flood of efforts to use Lawrence to overturn well-settled prohibitions on sexual conduct long thought to be uncontroversially subject to criminal sanction, as well as about the fact that members of the judiciary (including the dissenters in Utah and Ohio) would find those arguments appealing. Santorum's critics can point to the fact that the courts have, in fact, found ways to draw lines to keep Lawrence from having such slippery-slope effects.

At the end of the day, though, the stronger criticism of the Lawrence decision, like the Ninth Circuit's decision in the T-shirt case, is that it sucks the courts into making a whole new body of law to distinguish between conduct that is favored and protected by the Constitution, and conduct that is disfavored and properly subject to societal sanction or regulation through the democratic process. But that body of law is not based on anything in the Constitution, but rather in the courts' value judgments about social interests in the family, or the protection of students - judgments the legislatures are equally competent to make in a way that reflects the collective wisdom and experience of society. That's why even the victories over efforts to expand the Lawrence decision are signs of defeat for judicial restraint in the culture wars.

Bad news, I think, for Scooter Libby:

Jurors asked for the definition of "reasonable doubt" Friday after completing a shortened, eighth day of deliberations Friday in the perjury trial of ex-White House aide I. Lewis "Scooter" Libby.

"We would like clarification of the term 'reasonable doubt,'" jurors wrote. "Specifically, is it necessary for the government to present evidence that it is not humanly possible for someone not to recall an event in order to find guilt beyond a reasonable doubt."

I think that's bad news for Libby because Judge Walton will tell them no, the standard for conviction isn't that high, and that will swing the one/several/all jurors who are leaning to acquit under that definition.

My guess is, that note was written in pique to get an answer that can be used to bludgeon a holdout into voting to convict. If you own shares in Libby getting acquitted, sell.

I'm sorry, but at 100mph the cops shouldn't care what is or is not a well-established Fourth Amendment rule, they should only care about public safety. What seems to get lost here is the fact that Officer Scott's actions - ramming a car moving that fast - were exceptionally dangerous to himself, for the benefit of the public. What kind of sick society rewards that with a civil lawsuit?

The Yale Daily News reports that some "advocates" want Yale to aspire to fill its incoming classes with people who couldn't get into state colleges (H/T):

States that have enacted constitutional amendments banning the use of racial preferences in public college admissions have seen acceptance rates for minority applicants go down. As more states consider such measures, civil rights advocates said, private colleges may inherit those students who can no longer get into public schools, or who no longer want to attend public schools with increasingly homogenous student bodies.

In a small sign of sanity - or, more likely, of the tribute vice pays to virtue - Yale officials aren't buying this logic:

But Yale Dean of Admissions Jeff Brenzel said the ripples might not make it to New Haven. Since Yale typically competes for applicants with only a small number of universities, almost all of which are private, the University’s applicants and admissions officers are insulated from the shock that the recent bans have had in California and Michigan.

"With respect to achieving diversity at the most competitive schools, I think the key is always to evaluate students as individuals, in light of whatever opportunities and challenges they have been presented," he said. "Race and socioeconomic class are relevant aspects of an applicant's context, and to the extent we do a good job overall of weighing context, we will sustain a diverse undergraduate body with exceptional talent and promise."

Good for Yale. Granted, these are elite state colleges we are talking about, and granted, the Yale admissions office, like many in academia, is undoubtedly doing its bean-counting on a retail basis these days and learning to keep quiet about it. But even the necessity of driving race-consciousness and what is increasingly its open embrace of mediocrity underground is a victory of sorts.

Oh, it must be a proud day for the framers of the Americans with Disabilities Act:

A man who was fired by IBM for visiting an adult chat room at work is suing the company for $5 million, claiming he is an Internet addict who deserves treatment and sympathy rather than dismissal.

James Pacenza, 58, of Montgomery says he visits chat rooms to treat traumatic stress incurred in 1969 when he saw his best friend killed during an Army patrol in Vietnam.

In papers filed in federal court in White Plains, Pacenza said the stress caused him to become "a sex addict, and with the development of the Internet, an Internet addict." He claimed protection under the Americans With Disabilities Act.

Of course, he casually defames Vietnam vets in the process, with his claim that combat stress forced him into frequenting sex chat rooms at work.

UPDATE: Overlawyered has more on the case.

If you have not already, you should read Tom Maguire's roundup of the trial testimony in the Libby case. What remains bizarre about the case is not that perjury charges were brought where there was no underlying crime - that does happen - but that perjury charges were brought where the prosecutor was investigating a whodunit and already knew when he started the investigation who done it.

Did Libby lie? I have to say, Maguire's portrait of the testimony certainly suggests that Libby's account was probably untrue, and difficult to square with the testimony - but also that (1) it would be very hard to have enough confidence in that conclusion to convict him, especially given how much trouble the prosecution witnesses had keeping their own stories consistent over time and (2) Tim Russert probably did not tell the truth either.

The biggest obstacle for Rudy Giuliani in the GOP primaries is his stance on social issues, which in many cases diverges from the views of most GOP primary voters and the party's platform. And for the most part, Mayor Giuliani is not backing off those positions, most notably his belief that abortion should be legal.

For me and other socially conservative, pro-life voters who are inclined to support Mayor Giuliani, however, there is one bridge he can build to make him acceptable - appoint judicial conservatives to the federal bench, judges who are likely to leave divisive social issues to voters in the states rather than attempt to settle them through extra-textual and ahistorical readings of the Constitution.

In convincing voters that Mayor Giuliani is serious about appointing those kinds of judges, there are few endorsements better than the one he just picked up: former Bush Administration Solicitor General, Reagan Administration head of the Office of Legal Counsel and long time Federalist Society lawyer Ted Olson:

Read More »

Ann Coulter (yes, yes, I know; standard Coulter-related disclaimers apply) offers a sensible and practical assessment of why the perjury case against Lewis Libby is so much weaker than was the case against Bill Clinton:

The exact same people who are now demanding prison for Libby for not remembering who told him about Plame are the ones who told us it was perfectly plausible for Bill Clinton to forget that Monica Lewinsky repeatedly performed oral sex on him in the Oval Office. Even if chubby Jewish brunettes aren't your type, be honest: Which of the two events would stand out more in your memory? . . .

Here are some simple illustrations. If Clinton had been asked how many sexual encounters it took for him to remember Monica's name (six) and he got the answer wrong, it would not be perjury since, like Monica's name, it's an easy thing to forget.

If Clinton had been asked whether he talked to Rep. Jim Chapman and then to Rep. John Tanner, or to Rep. Tanner and then to Rep. Chapman while Monica was performing oral sex on him in the Oval Office and he got the answer wrong, that would not be perjury because it's not relevant to the investigation. (Correct answer: Chapman, then Tanner.)

But when Clinton was asked under oath -- in a case brought by Paula Jones under the law liberals consider more sacrosanct than any passed in the 20th century, Section 1983 of the Civil Rights Act: "Mr. President ... at any time were you and Monica Lewinsky alone together in the Oval Office?" and he answered, "I don't recall," that was perjury.

Of course, there's also the matter of relevance. Libby was interviewed by federal agents in October and November 2003 and questioned by the Grand Jury in March 2004 - after it was already known to the Special Prosecutor that the Plame leak had come from Richard Armitage. Clinton, by contrast, was answering a series of questions that a federal judge had specifically ordered to be answered on grounds that they were relevant to an ongoing civil case in pretrial discovery, in which the core question (did Clinton sexually harass another subordinate?) had not been resolved.

Perjury being a serious crime, I'm still willing to give Fitzgerald something of the benefit of the doubt on the decision to indict, but there's no question that his evidence is significantly weaker, the defense significantly more plausible, and the case for bringing charges at all significantly more attenuated than in Clinton's case.

If the answer to that question is "yes," Mike Nifong's career is over, as it should be. It would be difficult to come up with a more comprehensive and provable case of misconduct on the part of a prosecutor short of bribery or threats of violence.

Not only did Roe [v. Wade] not . . . resolve the deeply divisive issue of abortion; it did more than anything else to nourish it, by elevating it to the national level, where it is infinitely more difficult to resolve. National politics were not plagued by abortion protests, national abortion lobbying, or abortion marches on Congress before Roe v. Wade was decided. Profound disagreement existed among our citizens over the issue - as it does over other issues, such as the death penalty - but that disagreement was being worked out at the state level. As with many other issues, the division of sentiment within each State was not as closely balanced as it was among the population of the Nation as a whole, meaning not only that more people would be satisfied with the results of state-by-state resolution, but also that those results would be more stable. Pre-Roe, moreover, political compromise was possible.

Roe's mandate for abortion on demand destroyed the compromises of the past, rendered compromise impossible for the future, and required the entire issue to be resolved uniformly, at the national level. At the same time, Roe created a vast new class of abortion consumers and abortion proponents by eliminating the moral opprobrium that had attached to the act. . . Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court, in particular, ever since.

Justice Scalia, dissenting in Planned Parenthood v. Casey, 505 U.S. 833, 995-96 (1992).

It would, in fact, be a far better world if the President of the United States and the Justices appointed by the President had nothing to do with abortion policy, but in the world made by the seven Justices who made Roe and the four others (plus the author of Roe) who preserved it in 1992, abortion is a matter of federal law, to be addressed mainly by the selection of Supreme Court Justices.

It is possible that abortion opponents, like me, can hope that Justices who may be receptive to overruling Roe could be appointed by a President who is not. That, at least, is the central challenge for the presidential candidacy in particular of Rudy Guiliani, a long-time supporter of legal abortion who now seeks the presidential nomination of the Party of Life. The debate over whether Rudy can be trusted on the courts is for another day, but I must say that as much as I am willing to support him, I am not at all persuaded, and do not expect other pro-lifers to be persuaded, by this Deroy Murdock column arguing that abortion rates fell during Rudy's tenure as Mayor of New York. The problem is, he doesn't really have an argument that Giuliani had anything to do with this. About the only policy Murdock can point to to attribute this to Giuliani is that he was not as bad as Bloomberg:

New York pro-lifers concede that Giuliani never attempted anything like what current Mayor Michael Bloomberg promulgated in July 2002. Eight city-run hospitals added abortion instruction to the training expected of their OB-GYN medical residents. Giuliani could have issued such rules, but never did.

That's something - evidence that Giuliani is hardly a zealot on the issue - but cold comfort in trying to make him out as actively participating in the decline in abortion rates.

In fact, specious claims about rates of abortion have been a staple of abortion's most zealous cheerleaders, including Hillary Clinton, who claimed in 2005 that:

In the (first) three years since President Bush took office, eight states have seen an increase in abortion rates and four saw a decrease.

This was a thoroughly bogus claim that nonetheless survived vigorous debunking, but as you can see from the chart presented by FactCheck.org, abortion rates were declining gradually from about 1980 on nationwide, and underwent a particularly sharp drop between about 1989 and 1995, the tail end of which coincided with the beginning of Giuliani's mayoralty.

On the other hand - and this is a very important part - the rates may go up and down, but no matter how you slice them, the overall number of abortions in this country is horrifying, and you can play with the charts all day long and not get them to where that is not true. (Compare the number of abortions to the number of executions some time, if you don't believe me). Trends and blips don't change that reality, which is why the issue is still, fundamentally, whether abortions should be thinkable at all in a civilized society.

I know Murdock, like many conservative New Yorkers, believes that the nation needs Giuliani's brand of leadership and just wants to help. But if there's one lesson Giuliani will need to fully absorb if he is going to succeed in wooing pro-life voters, it's that we have heard a lot before and we are not easily fooled. Rudy has one, longstanding position on Life, and we have another. Pretending otherwise will not help. The middle ground, the sensible, moderate position, is what Justice Scalia spoke of 15 years ago - democracy, federalism, getting the Supreme Court out of the business of making the rules off the top of its head and restoring to individual jurisdictions the power to make their own rules in line with the varying standards of their own communities. Which is why the judiciary is the whole ball of wax, one that can't be sugar-coated.

Not for the last time, I am sure, House Democrats vote to raise taxes. Naturally they start with a politically unpopular target: domestic oil companies. The new taxes and fees, of course, raise the costs to domestic producers, thus benefitting their foreign competitors. Nice work. Hopefully, someone is keeping close track of how many times each of the newly elected Democrats ends up voting for a tax hike of one sort or other.

This aspect of the bill could be interesting:

The legislation "amounts to a taking of private property" by forcing oil companies to renegotiate leases they view as valid contracts, [Rep. Don Young, an Alaska Republican] said.

The bill would bar companies from future lease sales unless they agree to renegotiate flawed leases issued in 1998-99 for deep-water drilling in the Gulf of Mexico.

Because of a government error, the current leases do not contain a trigger for royalties if prices soared, as they have in recent years. As a result, the companies have avoided paying $1 billion in royalties so far and stand to avoid an additional $9 billion over the life of the leases, the Interior Department says.

The caselaw is narrowly divided over the circumstances under which government can change the terms of business with its contractors without incurring liability, but if all that's being done is to refuse future business as an incentive to renegotiate, I would think that doesn't amount to a taking of vested contract rights. But the devil will be in the details.

My initial reaction to the story of a 28-year-old mother of three who died from "water intoxication" after a radio show contest to see who could drink the most water without using a bathroom ("Hold your wee for a Wii!") was that (1) it was a horrible tragedy, especially for her kids, (2) it sounded like rather a dumb idea for a contest, but (3) I didn't think much of the inevitable lawsuit because really, radio show DJs aren't exactly rocket scientists and aren't any better situated than the average person to know the hazards of drinking too much water. The blind leading the blind, you might say.

But it turns out that the DJs were joking on the air during the contest about precisely those risks, the radio station has fired everyone involved, and a criminal investigation has been opened. In which case this is a much bigger problem for the radio station.

Chances that this story will spawn an episode of CSI: about 99%.

You know, Chief Justice Roberts could write the phone book and make it readable. His report on judicial pay - really a brief directed to Congress - is lucid and to the point, focusing on how stagnant judicial pay skews the membership of the judiciary away from private practitioners. And he focuses at least implicitly on the fact that judicial independence is undermined if federal judges are likely to have one eye on the exit to make more money.

I don't quite buy the idea that judges are scandalously underpaid in the abstract. Yes, it's a challenge to live in New York City and put your kids through college on $150,000 a year, but let's be real here - a whole lot of people get by on a whole lot less (I'm guessing that even with the high cost of living here, the median income is significantly less than half the salary of a federal district judge), starting with the Marshals who protect the judges. What is ridiculous is that judges make less money than even junior associates at the big firms, lawyers who (as Roberts dryly notes) are not yet senior enough to set foot in those judges' courtrooms. The government has a persistent habit of paying its most skilled employees (like lawyers) far less than what they could make in the private sector, while paying its least skilled employees (like toll collectors) far more than what they could make in the private sector. Maybe fairness isn't the most compelling argument, but you can't deny the Chief's point about how pay affects the composition of the judiciary. Absent a good reason to think that judges really are worth a lot less than they were 35 years ago, Congress should listen to the Chief.

UPDATE: I should note one perverse trend, which I suppose could be argued to support low pay. Maybe this is just anecdotal, but it seems to me that the lower pay of government lawyers leads to more women taking those jobs. The economic reason is simple, and equally applicable to judging:

1. Government law jobs are seen by many lawyers as more desirable than private practice in its various forms, for a variety of reasons.

2. However, such jobs entail taking a significant pay cut compared to private practice.

3. Women (especially female attorneys), being more likely than men to be married to a higher-earning spouse and less likely than men to be the sole breadwinner for a family of three or more, are likely to be less sensitive (on average) to salary in choosing legal jobs (this is even before we consider whether women are more likely to be sensitive to other considerations such as hours and flexible schedules).

4. Therefore, all other things being equal, you would expect more women to take the more desirable but lower-paying jobs, and more men to take the less desirable but higher-paying jobs.

Professional athletes make tons of money, travel frequently, and are often uneducated, financially unsophisticated, and/or marginally literate in English. Unfortunately, that combination makes them easy targets for ripoffs and scams.

But they still have an obligation to read their own bank statements to see if someone is stealing their m