Law 2009-11 Archives

Charles Fried has suddenly become a very popular fellow on the Left. The former Reagan Solicitor General and Bill Weld appointee to the Massachusetts Supreme Judicial Court is being touted by the Washington Post's in-house left-wing activists Greg Sargent and Ezra Klein, as well as ThinkProgress and Media Matters and its frenetic professional tweeters Eric Boehlert and Oliver Willis over Professor Fried's support for the constitutionality of Obamacare. Dahlia Lithwick went further, using Prof. Fried's prediction of an 8-1 decision as evidence that "[t]he conservative legal elites don't believe in the merits of this challenge". It's not surprising that these folks are in such a rush to get the cover of a former Reagan lawyer to restore their talking point - now in tatters after a week of serious, sober and probing questioning from the Supreme Court - that only an extremist would think there is any constitutional issue at all with Obamacare. But there are some things they're not telling you about Charles Fried.

Now, let me preface this by saying that I have a lot of respect for Prof. Fried. He was my constitutional law professor and probably the best teacher I had in law school, a brilliant man who had taught just about every area of law under the sun and was especially talented at bringing together the strands of disparate areas of the law. I read his book about his days as the SG before I started law school, and I respected his willingness - as a guy who is not pro-life - to argue, twice, for overturning Roe v Wade. He was also the faculty adviser for the Law School Republicans, which I headed for a time. Prof. Fried has indeed been, in the past, a longstanding member of the GOP legal establishment; he testified in favor of John Roberts' Supreme Court confirmation, and in 2006 wrote a NY Times op-ed defending his former deputy, Samuel Alito, as "not a lawless zealot but a careful lawyer with the professionalism to give legally sound but unwelcome advice" and "a person who can tell the difference between the law and his own political predilections."

But if you think brilliant people can't be horribly wrong, you have not spent much time studying lawyers and the law. And if you've been reading the left-wing activists, you might not have learned that the 76-year-old Prof. Fried has not only been a vigorous defender of Obamacare who famously testified that the federal government could mandate that you buy vegetables and join a gym, he also voted for President Obama and wrote him what amounted to a political love letter last summer, wrote a book in 2010 with his son which he characterized as showing that the Bush Administration's anti-terrorism policies "broke the law" and were "disgusting and terrible and degrading," and has been a vociferous critic of the Tea Party.

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The Ninth Circuit's 2-1 decision last week in Perry v. Brown upheld the decision of Judge Vaughan Walker holding that the people of the State of California violated the Equal Protection Clause of the 14th Amendment by passing - in a statewide referendum in 2008 - Proposition 8. Prop 8 amended the California Constitution to define marriage as between one man and one woman, restoring the rule previously set forth in California statutory law until overturned by the California Supreme Court earlier in 2008. Prop 8 garnered over 7 million votes, two million more than John McCain in liberal California - it was the supported by 52.3% of the same electorate that broke 61-37 for Barack Obama, including 58% of black voters and 59% of Latino voters.

Despite some game efforts to meddle with the burden of proof based on the sequence of events, the core of the decision - written by veteran arch-liberal Judge Stephen Reinhardt - was the same as that of the district court: the assertion that there is no possible rational basis for distinguishing between traditional, opposite-sex marriage and same-sex marriage. More specifically, in the California context, the court found that the federal constitution gives federal judges the right to dictate the language itself, holding that California's voters were not even permitted to reserve the term marriage to opposite-sex marriage while providing effectively all the practical state-law benefits of marriage to same-sex couples through "domestic partnership."

There are arguments for and against same-sex marriage as a policy matter, but the argument for declaring that the Constitution mandates that only one set of those arguments be considered "rational" is itself irrational and intellectually indefensible. This is so not only because it begs the question by redefining the language and because it ignores basic biological reality, but most of all because the argument for striking down Proposition 8 treats history, culture, tradition and social convention inconsistently. It should not be taken seriously as constitutional law.

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There are many species of bad journalism, most of which involve too much opinion by the writer, but sometimes the opposite is true and a writer gives you the apparent facts without the context needed to make sense of them. Let me use an article from the NY Times about 30 Rock to illustrate a common type of bad journalism that I find to be equally amusing and annoying: reporting negotiating positions without bothering to explain to the reader to take negotiating positions with a grain of salt, let alone how to interpret statements made in the course of negotiations. This has been a common thread in scores of articles these past few months about - among other topics - the debt ceiling negotiations, the Libya war, the perpetual Israel-Palestine 'peace process,' the NFL and NBA labor negotiations, the Mets' legal dispute with the Madoff trustee and other business machinations and their efforts to re-sign Jose Reyes, and the legal imbroglio surrounding the Dodgers. I've read more articles on all these topics than I could count that failed to give the reader the guidance to put the parties' statements in the context of the underlying negotiating dynamics.

The Times tells us, first, that Alec Baldwin has said he's leaving 30 Rock after next season, a departure that of course would be a terrible blow to a show built around the tensions between his (awesome) character, Jack Donaghy, and Tina Fey's Liz Lemon. It may well be true that Baldwin sincerely has other things on his mind, maybe even a run for public office, and/or that he's feeling he's done all he could with the character. But it's at least equally likely that he could be persuaded to stay on if NBC offers money or other contractual concessions to make it worth his while.

Then we get the response from NBC brass and from Lorne Michaels, the show's executive producer:

Executives from the show and NBC aren't sure, but they made it clear in interviews here this week that his departure would not mean an automatic end to the award-winning comedy.

NBC's new entertainment chairman, Bob Greenblatt, said: "I'd love nothing more than to have Alec for the duration of the show. That's my goal. Let's see what we get."

NBC's interest in keeping "30 Rock" around for at least one more year after the coming season can be explained by the need for more episodes to enhance the show's resale value in syndication.

The executive producer of "30 Rock," Lorne Michaels, was more definitive about a future for the comedy, even if Mr. Baldwin turns down all blandishments to continue. "I would hope he would want to go on," Mr. Michaels said on Monday. "But we're going to keep doing the show."

Again: I don't doubt that NBC would very much like to extend the show's run one extra season for syndication purposes; many a sitcom past has been kept on past its proverbial shark-jumping point for that reason. If 30 Rock is still making money at that point, the network would probably try to soldier on without Baldwin. And Lorne Michaels has never been a guy who thought any of his cast members were indispensable (to put it mildly). But this all smacks strongly of a negotiating posture: the network and Michaels are doing interviews here precisely to send Baldwin the message that he's not holding all the cards. And the reporter, Bill Carter, doesn't breathe a word of that, probably because he knows full well why they are giving him these interviews.

Of course, Greenblatt and Michaels have their own competing agendas:

Mr. Greenblatt did open the door to a possible disagreement with Mr. Michaels over the re-entry of "30 Rock" onto NBC's schedule. The show's sixth-season premiere has been postponed until midseason because of the pregnancy of its star, Tina Fey.

Asked if "30 Rock" was ensured a spot back on NBC's successful Thursday night comedy lineup, Mr. Greenblatt said, "That is a good question, and I really don't have an answer for it." He added, "Nothing's written in stone."

But as far as Mr. Michaels is concerned, it is. "The show will be back on Thursdays," he said confidently.

Of course, if Baldwin's future with the show is in doubt, that's one reason the network would not want to commit valuable Thursday night prime-time space, plus Greenblatt is taking charge of a fourth-place network and probably should keep his options open. But NBC has to keep Michaels happy, too; as the creator of Saturday Night Live, he remains a vital part of the network's brand image. Michaels' certainty here is obviously intended to send an unsubtle message that he will not be a happy camper if the network moves his prime-time baby out of its Thursday night sinecure.

I don't mean to pick on Carter, who in this article has at least offered us enough quotes from each of the participants that a skeptical reader can piece together what is really being said here; that's not always the case with this sort of journalism. But in general, reporters aren't doing their jobs if they don't report how someone involved in negotiations could stand to gain from taking a particular position in public, and worse still if they straight-facedly claim that someone will never make a particular concession (e.g., Jose Reyes won't talk about a new contract during the season), when in fact they might well do so for the right price. The dynamics of negotiations and how they are handled through the media can differ across situations, but there are a finite number of basic underlying approaches to negotiating, and they crop up across many different fields of endeavor.

Consider the debt ceiling debate - surely many Republicans would have preferred to pass 'cut, cap and balance,' and some were genuinely opposed to raising the debt ceiling at all. But for many people involved in the fight, pushing for the ideal policy, even if it was the policy they wanted, was also a matter of getting leverage to extract a better deal when the time came to compromise. Similarly, many Republicans sincerely opposed any deal that would raise any taxes at all; others may have been willing to trade some revenue-raisers for something better, but found it convenient to stay in line with the ATR pledge against tax hikes as a posture unless and until that better offer materialized. None of this is insincere; it's just good bargaining.

Learn to look for the signs of negotiating postures between the lines of news articles, and they will surface again and again in every section of the paper.

My latest at Grantland.

Michael Barone has an excellent essay on what the partial dissent in Wal-Mart v Dukes says about how businesses should be run. As someone who practices a lot of class action defense, my main interest in the case* was the procedural aspects, including the point on which the Court was unanimous: you can't use Rule 23(b)(2)'s mandatory, no-opt-out class action device and "Trial by Formula" for suits seeking individual damages. But Barone focuses on the real fissure that led to the 5-4 split on whether the case presented common, class-wide issues - the fact that Wal-Mart delegates discretion over personnel decisions down to the local store level and holds managers accountable simply for results - and how the dissent's approach would spell the end of that entire management style. This feeds into one of Barone's larger points: so much of "progressivism" is, for all its emotional hostility to big business, fundamentally dependent on an economy and society in which decisions are made on a nationwide basis by large, centralized institutions like big corporations, the federal government and large labor unions. Defined-benefit pension plans, nationwide class actions, a massively complex corporate tax code, volumes upon volumes of federal regulations - all these things are spectacularly ill-suited to addressing a decentralized world in which even people connected to large institutions are genuinely empowered at the local level, to say nothing of their poor fit with smaller businesses that lack the economies of scale to cope with byzantine federal regulatory demands, rent-seeking plaintiffs lawyers and long-term pension and health care costs for current employees.

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Aaron Worthing over at Patterico's place has great fun at the expense of an amazingly ignorant TIME magazine hatchet job on the Constitution and its originalist defenders.

As a practicing lawyer, I naturally have a professional interest in vague and/or complex legal rules that require lots of expensive legal research, training and experience to understand and explain. But complexity isn't just costly to consumers of legal services, and thus a burden on business as well as on citizen access to the courts. It's also a drag on the economy and on personal liberty, as businesses and ordinary citizens must choose between paying lots of compliance lawyers or steering too wide of increasingly large gray areas. It risks in particular the unfair, arbitrary and sometimes corrupt or discriminatory abuse of the criminal justice system to prosecute things that were hard to foresee as violations of the law. And it demeans democracy, as the actual making of law is done by judges and bureaucrats rather than citizen-elected legislators.

One of the greatest virtues of Justice Scalia in his quarter-century on the Supreme Court (he celebrates 25 years on the High Court in September) has been his structural critique of, and systemic assault on, unnecessary legal complexity. In three opinions this morning, he focused attention on three different aspects of that same problem - one of which was graphically illustrated by yesterday's news regarding the widespread practice of waivers under Obamacare. And last week's news regarding the indictment of John Edwards illustrates how the failure to heed Scalia's wise observations has made a hash of efforts by campaign finance "reformers" to regulate political speech in the United States.

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So the verdict has come down in the Barry Bonds trial, and while the jury was unable to reach a verdict on three counts of perjury, they convicted Bonds of one count of obstruction of justice based on his grand jury testimony regarding whether he was given steroids or HGH by his trainer, Greg Anderson, or allowed Anderson or others besides his doctor to inject him. As with the Manny Ramirez story, this is yet another example of how baseball news has been unable to escape the hangover of the PED scandals.

While I recognize that perjury in a grand jury setting is a huge red flag for any prosecutor, I ultimately think this case was a waste of resources by the Justice Department; it's hard to see how the whole steroids ring was that major a law enforcement priority to begin with, or Bonds' testimony that crucial to it, that it was really going to be a useful exercise to pour enormous resources into a public trial of the man. (For background, some thoughts here and here on what makes up a serious enough case of perjury to be worth prosecuting). And that's coming from a guy who's hated Bonds for nearly 25 years now.

But while I'm skeptical of the prosecution, the jury verdict isn't as nonsensical as some people are making it out. Here's what the judge apparently told the jury about the charges. Unlike the perjury statute, on which I did some work in law school, I am not that well-versed in the caselaw under 18 USC 1503, the obstruction statute; according to a summary on the Justice Department's website, obstruction can include the following:

Giving false denials of knowledge and memory, or evasive answers...or false and evasive testimony...False testimony may be a basis for conviction, ...however, false testimony, standing alone, is not an obstruction of justice.

(Citations omitted; it doesn't seem from the cases cited that the Supreme Court has yet laid out a definition of obstruction other than to require a very specific intent in false-statements-to-investigators cases). Here, the judge charged the jury in the perjury counts that they needed to find the following elements:

1. The defendant testified under oath before a grand jury;

2. The testimony described above was false;

3. The testimony was material to the grand jury before which he testified; and

4. The defendant knew that the testimony described above was false and material to the grand jury before which he testified.

A statement was material if it had a natural tendency to influence, or was capable of influencing,the decision of the grand jury to which it is addressed.

By contrast, the obstruction charge:

In order for the defendant to be found guilty of Count 5, the government must prove each of the following elements beyond a reasonable doubt:

1. The defendant corruptly, that is, for the purpose of obstructing justice,

2. obstructed, influenced, or impeded, or endeavored to obstruct, influence, or impede the grand jury proceeding in which defendant testified,

3. by knowingly giving material testimony that was intentionally evasive, false, or misleading.

A statement was material if it had a natural tendency to influence, or was capable of influencing, the decision of the grand jury.

The government alleges that the underlined portion of the following statements constitute material testimony that was intentionally evasive, false or misleading. In order for the defendant to be found guilty of Count 5, you must all agree that one or more of the following statements was material and intentionally evasive, false or misleading, with all of you unanimously agreeing as to which statement or statements so qualify:

1. The Statement Contained in Count One
2. The Statement Contained in Count Two
3. The Statement Contained in Count Three

In short, if the jury found that Bonds' statements were intentionally evasive or misleading, they could convict even without being convinced that they were outright false. That's a significant difference, and would seem to justify the jury in convicting on an obstruction charge on the same facts on which they were unable to convict on perjury. The statement he was convicted on was Statement C in the charge:

Q: Did Greg [Anderson] ever give you anything that required a syringe to inject yourself with?

A: I've only had one doctor touch me. And that's my only personal doctor. Greg, like I said, we don't get into each others' personal lives. We're friends, but I don't - we don't sit around and talk baseball, because he knows I don't want - don't come to my house talking baseball. If you want to come to my house and talk about fishing, some other stuff, we'll be good friends, you come around talking about baseball, you go on. I don't talk about his business. You know what I mean?...

Q: Right.

A: That's what keeps our friendship. You know, I am sorry, but that - you know, that - I was a celebrity child, not just in baseball by my own instincts. I became a celebrity child with a famous father. I just don't get into other people's business because of my father's situation, you see...

Presumably, the jury may have felt that Bonds was misleading or evasive by deflecting this question with a denial that he'd had anybody inject him, without explicitly denying what he was asked - whether Anderson gave him something to inject himself with. Which is a common-sense enough reading of that testimony. At least under the perjury statute, it's not a crime to give a literally true answer that evades the question, the lesson of which - hammered home to most lawyers - is that you need to keep asking until the witness is pinned down. As I said above, I'm not really sure if this is the law under the obstruction statute, but it's safely within what the judge told the jury, so you can't fault them for following instructions.

The Fourth Amendment, which protects Americans from unreasonable searches and seizures and demands that judicial officers issuing search warrants do so only on a showing of probable cause, is an important guarantee of our civil liberties, designed to protect personal privacy - especially in the home - from random governmental snooping. The Fourth Amendment tends to get a lot of bad press because it is usually enforced only by the Exclusionary Rule, which keeps the government from using illegally obtained evidence; by definition, the Exclusionary Rule protects only the rights of people with incriminating evidence to hide. It's also subject to various common-sense exceptions to allow law enforcement to operate on public streets when a warrant is impractical or public safety is imminently threatened. But whatever the misuses of the Exclusionary Rule, the protection against unreasonable searches and seizures remains a core Constitutional right.

And like all such rights, it is bound to come under more pressure the larger the regulatory state grows and the further it sinks its tentacles into every avenue of our existence. The growth of the regulatory state is a much greater threat to rights like these than are ordinary law enforcement or even the national security state, both of which are much more narrowly focused in their goals and thus unlikely to expend much effort harassing ordinary citizens.

A clear example of how the growth of the regulatory state threatens the rights protected by the Fourth Amendment was pointed out this morning by Justice Alito, in an opinion joined by Chief Justice Roberts, Justice Scalia and Justice Thomas concurring in the denial of a certiorari petition (scroll to the last two pages of the pdf):

Our cases recognize a limited exception to the Fourth Amendment's warrant requirement for searches of businesses in "closely regulated industries." ...The thinking is that, otherthings being equal, the "expectation of privacy in commercial premises" is significantly less than the "expectation in an individual’s home." ...And where a business operates in an industry with a "long tradition of close government supervision" - liquor dealers and pawnbrokers are classic examples - the expectation of privacy becomes "particularly attenuated."...

In this case, a New Jersey appellate court applied this doctrine to uphold a warrantless search by a state environmental official of Robert and Michelle Huber's backyard.... The Hubers' residential property contains wetlands protected by a New Jersey environmental statute...According to the court below, the presence of these wetlands brought the Hubers' yard "directly under the regulatory arm" of the State "just as much" as if the yard had been involved in a "regulated industry." ...

This Court has not suggested that a State, by imposing heavy regulations on the use of privately owned residential property, may escape the Fourth Amendment's warrant requirement.

(Emphasis added; citations omitted).

Justice Alito went on to note that the Court was properly declining to take the case for procedural reasons: the decision came from an intermediate appellate court, not a state Supreme Court, and thus didn't meet the Court's usual criteria for resolving disputed issues of federal law. But it is noteworthy nonetheless that the Court's four conservative Justices felt it important to remind lower courts that the creeping expansion of regulation up to the very doorstep of private homes - the heartland of the Fourth Amendment's protections - should not be used as an excuse to treat private property's privacy as yet another thing subject to bureaucratic whim.

There are a welter of issues raised by the public policy debate over same-sex marriage and whether to treat it, for purposes of the law, as identical to traditional opposite-sex marriage. Among other things, there is the broader debate over the propriety of valuing tradition (i.e., the collected experience by trial and error of large numbers of people over time) and the respect we give to broad-based popular sovereignty in evaluating human relationships. But even treated purely as a matter of quantifiable empirical social science, the legal debate comes down to whether there exists any rational basis for distinguishing the two relationships. The burden of establishing the complete absence of such a rational basis is on the proponents of court-mandated "marriage equality." And new Census data makes that burden harder to carry.

While I'm in favor of granting civil-union status to consenting same-sex adults, I have made the point at great length previously (see here and here) that the most obvious legal argument for why opposite-sex relationships are different from same-sex relationships - and can be recognized as such in democratically-enacted laws - is that they are vastly more likely to produce children, for reasons so biologically obvious they should not have to be repeated. Now the New York Times has given us some statistics from the Census Bureau that confirm the relatively low number of same-sex couples that are raising children (even before we get to the issue of bearing biological children): "About a third of lesbians are parents, and a fifth of gay men are." The Times article breaks this out by region, but even its most optimistic spin shows an incidence of child-rearing that would be very low by the standards of opposite-sex couples:

About 32 percent of gay couples in Jacksonville are raising children, Mr. Gates said, citing the 2009 Census data, second only to San Antonio, where the rate is about 34 percent.

Consider, by contrast, the overall Census data for married couples. If you compare the "All Families" line to the "With own children, any age" line, you can quickly calculate that 60.2% of married couples have children in the household, and 74% of those include at least one child under age 18. If you break it out by the age of the heads of household, you see that a very large proportion of married couples in the prime child-bearing years have children at home - 24.6% for married teenagers, 37.7%, 22.8% and 26.1% for married couples 55-64, 65-74 and age 75+, respectively, but for the prime years 58.5% (age 20-24), 69.8% (25-29), 80.6% (30-34), 86.2% (35-39), 84.9% (40-44), 77.8% (45-49), and 62.1% (50-54). And the declining numbers after age 55 simply reflect people who have finished the job of parenthood. If that's not a statistically significant disparity, what would be? I defy anybody to come up with any significantly-sized sample of same-sex couples at any age that shows over 80-85% to be engaged in raising children.

At the end of the day, this is why the real action in the legal battle - other than simply judge-shopping - is in the proponents trying to change the legal standard by which their evidence should be judged. Because the data is against them.

I haven't had a chance to review it or collect my thoughts yet, but here's the just-issued opinion from the US District Court for the Eastern District of Virginia holding the individual mandate portions of Obamacare to be unconstitutional on the grounds that it exceeds the scope of Congress' Article I power over foreign and interstate commerce.

UPDATE: One of my Redstate colleagues has a thoughtful analysis of some of the practical issues.

One of the enduringly stupid genres of legal writing is bemoaning the billable hour, which everyone hates but which has endured for a variety of practical reasons I've written about repeatedly in the past. This from the American Lawyer's AmLaw Daily is an extreme example of the genre:

Yet it survives because it has powerful defenders, including the U.S. Supreme Court's conservative five-man majority. Yes, the obstacles facing those seeking better days are that formidable.

The lawyers in Perdue v. Kenny A sued on behalf of children in Georgia's state-run foster care program. After eight years, the trial court awarded attorneys fees under the federal statute permitting winning plaintiffs to recover from the losers in such cases. In its April 2010 ruling, the Supreme Court adopted a rule that, ultimately, will reduce that monetary award by several million dollars.

Writing for the majority, Justice Alito took offense at the suggestion that the prevailing civil rights lawyers should "earn as much as the attorneys at some of the richest law firms in the country." He seems to think that's a bad thing.

Importantly, the Court rejected the argument "that departures from hourly billing are becoming more common." It noted that "if hourly billing becomes unusual, an alternative to the lodestar method [hours worked times billing rate] may have to be found. However, neither the respondents nor their amici contend that that day has arrived."

But now how will that day ever arrive? In 1983, the Court first adopted the lodestar calculation as a useful starting point for fee awards. Now, its first significant ruling on the issue in almost 30 years has stripped away almost everything but the lodestar in determining a lawyer's appropriate compensation level.

Where's the room for practitioners to experiment away from hourly billing? Nowhere to be found in the majority opinion. In fact, the Court's analysis extends beyond civil rights cases to "virtually identical language in many of the federal fee-shifting statutes." It will influence any federal court evaluating any kind of fee request--fee-shifting or not, including bankruptcy petitions. State courts will continue to use the lodestar approach in probate, divorce, and other proceedings.

This ignores the fact that - as the Court pointed out - the Court would be open to reconsidering its rule if the market changed, i.e., the market for legal services not subject to court approval but negotiated between willing parties with their own money. The job of the court in approving fee-shifting awards (or in class action or bankruptcy cases) is to attempt to produce a judicial resolution that best approximates what would be negotiated privately. If the private market changes, so will the law.

Judge Vaughan Walker, the chief district judge of the US District Court for the Northern District of California, handed down his post-trial decision yesterday in Perry v. Schwarzenegger, holding that Proposition 8 - the referendum approved by California voters in 2008, amending the California Constitution to define marriage as between a man and a woman and thus deny recognition to same-sex "marriages" - violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the federal Constitution. In a larger sense, the lawsuit, seeking to overturn judicially a status quo that has existed for essentially all of human history and was only recently reaffirmed by the California electorate, is yet more proof that it's not conservatives who are on the offensive in the 'culture wars'. But even focusing on the judicial process, and setting to one side its reliance on the oxymoronic concept of "substantive due process," Judge Walker's decision is fundamentally flawed in three ways, two of which represent failures of reasoning and the third of which highlights the structural problem with substituting judicial "factfinding" for the collected judgment of a democratic electorate. Specifically:

(1) Judge Walker's decision is internally, logically inconsistent in its treatment of the worth of cultural values, arguing that morality and tradition are not a valid basis for supporting the legal status of marriage, but at the same time finding a Constitutional violation from the fact that the same-sex alternative (domestic partnerships) lacks the social and cultural status that marriage has...and which it derives from its grounding in longstanding moral, cultural and religious traditions;

(2) Judge Walker's decision ignores the compelling state interest in promoting childbearing and childrearing within the context of opposite-sex marriage, and the absence of such an interest in same-sex marriage, specifically ignoring the fact that heterosexual relationships produce many more children than homosexual relationships; and

(3) the whole idea of leaving core judgments about a society's most central and longstanding values to a single judge rather than respect the collective wisdom of a diverse electorate is fundamentally anti-democratic.

Let's review these one at a time.

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Randy Barnett looks at the radicalism of the legal theory invoked to defend Obamacare. Barnett admits that he himself adheres to a particularly narrow view of the scope of federal powers and particularly broad view of the Ninth and Tenth Amendments, but as he points out, even if you don't buy his vision of the Constitution, the counter-argument would all but eliminate the existing limits on Congress' enumerated powers. Key excerpt:

[W]e are all looking at the law as it currently exists and observing that the Supreme Court has never upheld the use of the commerce power to mandate that everyone engage in economic activity. All it has ever done is regulate or prohibit those who choose to engage in economic activity. As such there is no existing authority for extending the Commerce Clause this far.

This is an entirely conventional legal argument....[T]he claim that this power is unprecedented is demonstrably true. If the commerce power had ever been used like this before, these lawprofs would have been able to produce an example....

[Y]ou want to know another claim that is unprecedented? The claim that Congress may require any person in the US to do anything it deems to be in the public interest or pay a fine or penalty to the IRS. I do not know who first came up with this theory, but whoever it was was pushing the envelope of federal power beyond anywhere it had ever gone. The Tax power has never been used to impose a mandate on the American people and the Supreme Court has never recognized such a power.

So I will make this prediction: If five justice vote to uphold the individual mandate, they won't use the Tax power theory because (a) its implications are just too radical and (b) there is zero public support for such a constitutional proposition.

Read the whole thing.

Coming as it does somewhat within my area of professional expertise, this is perhaps the most alarming example yet of the complete ignorance of the Obama Administration and Capitol Hill Democrats regarding how business operates - and to think these same people will be voting on overhauling financial services regulation:

The White House political and legislative operations were said to be livid with the announcement by several large U.S. companies that they were taking multi-million or as much as a billion dollar charges because of the new health-care law, the issue was front-and-center with key lawmakers. By last Friday, AT&T, Caterpillar, Deere & Co., and AK Steel Holding Corp. had all announced that they were taking the one-time charges on their first-quarter balance sheets. More companies were expected to make similar announcements this week.

"These are Republican CEOs who are trying to embarrass the President and Democrats in general," says a White House legislative affairs staffer. "Where do you hear about this stuff? The Wall Street Journal editorial page and conservative websites. No one else picked up on this but you guys. It's BS."

On Friday White House chief of staff Rahm Emanuel and Obama senior advisor Valerie Jarrett were calling the CEOs and Washington office heads of the companies that took the financial hits and attacked them for doing so. One Washington office head said that the White House calls were accusatory and "downright rude."

The companies are taking the charges because in 2013 they will lose a tax deduction on tax-free government subsidies they have had when they give retirees a Medicare Part D prescription-drug reimbursement. Many of these companies have more than 100,000 retirees each. AT&T may have more than three-quarters of a million retirees to cover.

"Most of these people [in the Administration] have never had a real job in their lives. They don't understand a thing about business, and that includes the President," says a senior lobbyist for one of the companies that announced the charge. "My CEO sat with the President over lunch with two other CEOs, and each of them tried to explain to the President what this bill would do to our companies and the economy in general. First the President didn't understand what they were talking about. Then he basically told my boss he was lying. Frankly my boss was embarrassed for him; he clearly had not been briefed and didn't know what was in the bill."

It isn't just the President who didn't understand his own proposal. Late Friday, House Energy and Commerce Committee Chairman Henry Waxman and Rep. Bart Stupak, chairman of the Oversight and Investigations panel, announced that they would hold hearings in late April to investigate "claims by Caterpillar, Verizon, and Deere that provisions in the new health care reform law could adversely affect their company's ability to provide health insurance to their employees."

Read the whole thing. H/T Moe Lane. Then, read Mark Steyn's explanation of the specific change at issue and why it's likely to change corporate behavior:

In 2003, Washington blessed a grateful citizenry with the Medicare prescription drug benefit, it being generally agreed by all the experts that it was unfair to force seniors to choose between their monthly trip to Rite-Aid and Tony Danza in dinner theatre.

However, in order to discourage American businesses from immediately dumping all their drug plans for retirees, Congress gave them a modest tax break equivalent to 28% of the cost of the plan.

Fast forward to the dawn of the ObamaCare utopia. In one of a bazillion little clauses in a 2,000-page bill your legislators didn't bother reading (because, as Congressman Conyers explained, he wouldn't understand it even if he did), Congress voted to subject the 28% tax benefit to the regular good ol' American-as-apple-pie corporate tax rate of 35%.

For the purposes of comparison, Sweden's corporate tax rate is 26.3%, and Ireland's is 12.5%. But just because America already has the highest corporate tax in the OECD is no reason why we can't keep going until it's double Sweden's and quadruple Ireland's.

I refer you to the decision last year by the donut chain Tim Hortons, a Delaware corporation, to reorganize itself as a Canadian corporation "in order to take advantage of Canadian tax rates." Hold that thought: "In order to take advantage of Canadian tax rates" - a phrase hitherto unknown to American English outside the most fantastical futuristic science fiction.

Ask yourself this: If you impose a sudden 35% tax on something, are you likely to get as much of it? Go on, take a wild guess. On the day President Obama signed ObamaCare into law, Verizon sent an e-mail to all its employees warning that the company's costs "will increase in the short term."

And in the medium term? Well, U.S. corporations that are able to do so will get out of their prescription drugs plans and toss their retirees onto the Medicare pile. So far just three companies - Deere, Caterpillar and Valero Energy - have calculated that the loss of the deduction will add a combined $265 million to their costs.

There are an additional 3,500 businesses presently claiming the break. The cost to taxpayers of that 28% benefit is about $665 per person. The cost to taxpayers of equivalent Medicare coverage is about $1,200 per person. So we're roughly doubling the cost of covering an estimated five million retirees.

Now, let me explain this real simple: If you do something that's going to cost a company a lot of money, they have a whole lot of legal reasons why they have to tell their shareholders that sooner or later. And, if they're being prudent, they will tell them sooner rather than later when it starts showing up in the company's cash flow and the stockholders panic. Dennis the Peasant goes through this in a bit more detail, and he and Erick and Ace all look at Waxman's plan to drag the disclosing CEOs before a Congressional committee to explain why they are daring to inform their shareholders of the impact that the new regulations, specifically the withdrawal of tax breaks, will have on their business.

At least honest leftists would admit that yes, they were doing something genuinely harmful to publicly traded employers, although honest leftists would next try to pass even more laws to prevent the companies from doing anything to pass on the costs to employees, customers and/or taxpayers so as to preserve enough return to shareholders to enable the company to keep raising capital to stay in business. But in the happy-fairy-land of guys like Obama and Waxman, there are never any costs or tradeoffs to heaping new taxes and regulations on businesses in the middle of a recession, and no behavioral incentives changed when you meddle with the tax code.

The level of ignorance here is staggering. George W. Bush understood this stuff. Sarah Palin understands this stuff. Yet, these people whose self-image depends on telling themselves how much smarter than Bush and Palin they are, are continually taken by surprise by these things.

UPDATE: Ben Domenech looks at how Waxman is banking on intimidation but may end up getting more than he bargained for by calling witnesses who have no realistic choice but to contradict him.

Here's the opening of the syllabus of today's lone Supreme Court opinion, United Student Aid Funds, Inc. v. Espinosa, No. 08-1134, a unanimous decision written by Justice Thomas:

A plan proposed under Bankruptcy Code (Code) Chapter 13 becomes effective upon confirmation, see 11 U. S. C. ss1324, 1325, and will re-sult in a discharge of the debts listed in the plan if the debtor completes the payments the plan requires, see s1328(a). A debtor may obtain a discharge of government-sponsored student loan debts only if failure to discharge that debt would impose an "undue hardship" on the debtor and his dependents. ss523(a)(8); 1328. Bankruptcy courts must make this undue hardship determination in an adversary proceeding, see Fed. Rule Bkrtcy. Proc. 7001(6), which the party seeking the determination must initiate by serving a summons and complaint on his adversary, see Rules 7003, 7004, 7008. Respondent Espinosa's plan proposed repaying the principal on his student loan debt and discharging the interest once the principal was repaid, but he did not initiate the required adversary proceeding. The student loan creditor, petitioner United, received notice of the plan from the Bankruptcy Court and did not object to the plan or to Espinosa's failure to initiate the required proceeding. The Bankruptcy Court confirmed the plan without holding such a proceeding or making a finding of undue hardship. Once Espinosa paid his student loan principal, the court discharged the interest. A few years later, the Department of Education sought to collect that interest.

If you're keeping score at home:

(1) The debtor failed to use the proper procedure to request the discharge of his interest obligations;

(2) The creditor failed to object when given notice of this defective proceeding; and

(3) The court failed to make the necessary findings to justify the discharge.

Can't anybody play this game?

Sensibly enough, after being presented with this train wreck of mutual malpractice, the Court decided to let sleeping dogs lie, holding that the creditor couldn't go back later on and reopen the judgment, having failed to object at the time (the creditor had argued, and the Ninth Circuit had agreed, that the court's failure to make the hardship finding was equivalent to acting without jurisdiction and thus voided the judgment even without a timely objection).

A unanimous Supreme Court this morning, in Hertz Corp. v. Friend, No. 08-1107 (U.S. Feb. 23, 2010), held that a corporation's "principal place of business" under the federal diversity-jurisdiction statute and the Class Action Fairness Act (CAFA)

refers to the place where the corporation's high level officers direct, control, and coordinate the corporation's activities. Lower federal courts have often metaphorically called that place the corporation's "nerve center." ... We believe that the "nerve center" will typically be found at a corporation's headquarters.

At first blush, while Justice Breyer's opinion is of great practical interest to commercial litigators, it would seem to be little more than a routine dispute over the construction of a federal statute governing the jurisdiction of the federal courts. But buried within is a small victory for horizontal federalism or what I have long referred to as "federalism's edge," i.e., protecting the balance of federalism from being upset by a single state's efforts to assert jurisdiction over the nation as a whole. Stay with me for just a bit of background and you'll see why.

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It's worth recalling, as the Massachusetts Senate election approaches, that Martha Coakley is not just some bland Democratic machine apparatchik. She's a bland Democratic machine apparatchik with a long record as a prosecutor that includes some very ugly things.

Exhibit A is the notorious case, familiar to readers of the Wall Street Journal over the past three decades, of Gerald Amirault. The case, discussed in summary here, was a terrible miscarriage of justice involving fantastical accounts of sex abuse of children, exposed by Journal reporter Dorothy Rabinowitz; it was originally prosecuted by another politically ambitious Democrat, Scott Harshbarger. And then:

When Martha Coakley became district attorney of Middlesex County in 1999, the Amiraults were still in the news. But by this time hardly anyone believed they were guilty of the horrendous crimes they were alleged to have committed. In fact there was no evidence that anyone had abused any children in the Fells Acres Day Care.

But what did Martha Coakley do when the Parole Board voted unanimously (5-0) to pardon Gerald Amirault? She did everything in her power to see that he stayed in prison, including sending an assistant DA to oppose his release at the hearing. Coakley also went on talk shows to spout her views about his guilt. (Read about Martha Coakley's involvement in Cheryl Amirault's Plea Bargain also).

That alone should disqualify Coakley as a candidate for higher office. But there's more. Such overzealousness is why criminal-defense-minded writers like Radley Balko and Jeralyn Merritt - neither of them exactly a right-wing Republican - are opposed to Coakley. Both cite other examples as well (Balko notes that Coakley first came to prominence in the notorious "shaken-baby" case against British nanny Louise Woodward, in which Woodward's murder conviction was reduced to manslaughter by the judge).

But overzealousness in questionable (or worse) cases isn't Coakley's problem. There's also the opposite, her lenient treatment of a Somerville cop who raped his 23-month-old niece - yes, a toddler - with a hot curling iron. Coakley's office let him out without bail pending trial; only under her successor was he convicted and sentenced to two life terms in jail.

It starts to be apparent that the persistent incompetence and tone-deafness of Coakley's campaign may not be a new thing for her.

UPDATE: Bigjournalism.com takes a similarly harsh look at Coakley's role in letting notorious pedophile Father John Geoghan off the hook in 1995.

SECOND UPDATE: But she is tough on ladies' gardening clubs.

THIRD UPDATE: Rabinowitz lays into Coakley.

Ed Morrissey has some fun with an article contending that if trials were good enough for the Nazis, they should be good enough for Al Qaeda - but completely ignoring the fact that the Nuremberg trials were military commissions without the full panoply of criminal procedures available today in federal court.

Want an illustration of problems faced by putting terrorists on trial that don't arise in military commissions or in ordinary criminal prosecutions? Try this:

A legal team is going to New York to prevent the use of evidence provided by Germany in seeking a death penalty. Berlin wants to ensure that promises made by the US are kept if the suspects are found guilty.

A team of observers from the German government is going to New York to oversee the trial of five suspects accused of orchestrating the September 11 terrorist attacks in the United States, the news magazine Der Spiegel reported on Saturday.

The federal trial of the suspect Khalid Sheikh Mohammed and his four co-defendants was announced on November 13 by the US Justice Department. The government also asserted that it intends to seek the death penalty if the accused are found guilty.

Germany, which does not have a death penalty, provided evidence for the trial on the condition that it could not be used to support a death sentence. Several members of the al Qaeda cell that planned and executed the attacks of September 11 were previously based in the northern German city of Hamburg.

"In this case we will observe very closely that the given assurances are kept," Justice Minister Sabine Leutheusser-Schnarrenberger said.

Now, we can certainly tell the Germans to mind their own damn business, but since the entire point of this exercise is good PR with the "international community," that's not going to advance the purpose of the trial.

*Lots of interesting stuff out there on Sarah Palin and her book tour. the Daily Beast looks at how Palin's book and tour are a one-woman economic stimulus package. Obama's organization wants a part of that action too: Organizing for America says Palin's book tour is "dangerous," so please give them $5. As liberal writer Ezra Klein notes of the Palin coverage:

Liberal sites need traffic just like conservative sites, and the mainstream media needs traffic more than both. And Palin draws traffic. This is actually pretty good revenge for a politician who hates the media. The press had a good time showing Palin to be a superficial creature who relied more on style than on substance, and in getting the media to drop everything and focus on her book tour, she's proving that they're much the same.

Amazingly, two positive Palin pieces at Salon, and neither of them written by Camille Paglia: a favorable review of her book and a look at what she means and why she's not going away as a public figure.

And witness the McCain campaign's crack rapid-response team in action: more than a year after the election, the NY Times finally gets to talk to the stylist who bought the Palin family's clothes, and admits that Palin had nothing to do with the money that was spent.

*Mitt Romney takes apart how Obama's inexperience has led to his failure to set clear priorities and resulting lack of focus on the war and the economy while he pursues as-yet-unfinished health care and cap and trade bills and failed efforts to salvage the campaigns of Jon Corzine and Creigh Deeds. It's a mark of how inexperienced and incompetent Obama is that he can be lectured credibly on these points by a 1-term governor like Romney and a half-term governor like Palin. Michael Gerson looks in more detail at the mess that is Obama's decision-making process in Afghanistan.

*Another glorious victory for the stimulus:

The Southwest Georgia Community Action Council, after receiving about $1.3 million in funding from The American Recovery and Reinvestment Act, reported creating or saving 935 jobs in their Head Start preschool program that only employs 508 people.

*Byron York looks at why Eric Holder is refusing to disclose how many Justice Department lawyers have previously represented the other side in the war.

*Patterico, as usual, is a man not to tangle with, and he remorselessly dismantles an LA Times columnist over the latest Breitbart ACORN videos. It's a facepalm with egg and crow!

*Jonathan Karl notices a $100 million payoff to Louisiana in the Senate healthcare bill to buy Mary Landrieu's vote. John Conyers, in griping about Obama's posture on the House bill, speaks about "the Barack Obama that I first met, who was an ardent single-payer enthusiast himself."

*Michael Rosen looks at Al Franken's so-called "anti-rape" bill that would preclude arbitration of sexual harrassment and various negligence-based employment claims. As Rosen notes, given that the law already bars arbitration of claims arising from rape, whereas the things it would actually change are much less dramatic, it is flatly false to describe opposition to the bill as being "pro-rape" - but then, that's pretty much Franken's M.O.

Lindsey Graham exposes the extent to which Attorney General Holder simply doesn't have a well-thought-out plan for how to handle interrogations of captured enemy combatants in a way that makes a rational distinction between those who should be given Miranda and other warnings in preparation for civilian prosecution, and those who should not. It's impossible for anybody involved in battlefield detentions to watch this video and come away with any sort of guidance from the nation's chief law enforcement officer. As a number of people have pointed out, whatever this is, it isn't the rule of law.

UPDATE: And Leahy doesn't even think there's any value in interrogating bin Laden.

I had the pleasure of hearing Justice Alito speak at the Federalist Society Convention a few years back; I didn't make it this year, but apparently he was again both entertaining and insightful, and Above the Law has a recap. H/T. A highlight:

Referring to [then-Judge Sotomayor's] opening statement, Alito said, "There was not a word in that statement that was controversial, but that's not how it was received by her progressive audience." He cited as an example a post on the Federalist Society's Web site by Georgetown law professor Louis Michael Seidman, in which Seidman wrote, "I was completely disgusted by Judge Sotomayor's testimony today. If she was not perjuring herself, she is intellectually unqualified to be on the Supreme Court. If she was perjuring herself, she is morally unqualified."

"And those were the words of one of her supporters," Alito said. "I had a lot of opponents, but I never had any supporters like that."

Here in New York, the Obama Administration's decision to try Khalid Sheikh Mohammed and other Al Qaeda terrorists in the civilian justice system in downtown Manhattan has garnered plenty of well-earned criticism, including from New York's leading anti-terrorism experts like Rudy Giuliani, Michael Mukasey (who handled the blind sheikh trial as a district judge before becoming President Bush's third Attorney General) and Andrew McCarthy (who was one of the prosecutors), and Long Island Congressman Peter King. And not just from the Right; even arch-liberals like Daily News sportswriter Mike Lupica have weighed in against the decision. Now the people are being heard from, and while the polls as usual show some diversity of opinion, the public is deeply skeptical of this enterprise even before it gets underway, let alone after what promises to be many months of grandstanding by the terrorists, gridlock in lower Manhattan, possible setbacks in the prosecution and the hemmhoraging of scarce resources on the trial(s) (as my retired-NYPD dad put it: "there's going to be plenty of overtime for the cops.").

The critics' bases for opposing a trial are numerous, and several of them are reviewed by Erick here. And the polls now show those criticisms are shared by a majority of the nation's voters and a significant minority even in liberal New York City, with the rest uncertain.

To quickly summarize the case against the trials:

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Pardon me if I am seeing red this morning:

Khalid Sheikh Mohammed, alleged mastermind of the Sept. 11, 2001, terrorist attacks, and four others accused in the attacks will be put on criminal trial in New York, Attorney General Eric Holder is expected to announce later Friday.

WHAT IN THE HELL IS WRONG WITH THESE PEOPLE?

So, Barack Obama will be staging his own New York production of Chicago, with Khalid Sheikh Mohammed as Roxy Hart ("You had it coming, you had it coming, you only have yourselves to blame...." ). We will be treated to months upon months of front page headlines giving a platform to this lunatic war criminal. The courthouses and City office buildings in lower Manhattan (City Hall, the state courts, the immigration offices, the Court of International Trade, the US Attorney's Office, the DA's office, and the main city office building that does marriage licenses and the like are all within about a two-block radius of the federal courthouses and the Metropolitan Correctional Center) will be snarled with massive security, as if lower Manhattan needs more traffic and more armed men. We'll have to have pretrial hearings on the inevitable countless motions about how KSM was apprehended and the evidence against him collected, undoubtedly to the detriment of vital sources of intelligence, like when we lost the ability to track Osama bin Laden by cellphone after our tracing of his calls was revealed by a prosecution under the DOJ Criminal Division then headed by...Eric Holder. And that's even before he starts in on the sob stories about being waterboarded. I'm not seriously concerned that KSM stands any chance of being acquitted, but a hung jury? It only takes one person with extreme political or religious views, one juror who just can't abide the death penalty (even assuming Obama's DOJ pursues it). Just imagine the controversy, if there are Muslims in the jury pool, over what questions prosecutors are permitted to ask them and whether they can be challenged. And of course, it sends the message to our enemies that there's nothing you can do to us that will get you sent through a process rougher than the one we used on Michael Vick or Martha Stewart.

I know I have spoken and written many rough things about Obama, but as Michael Moore would say, most New Yorkers voted for the man - why is he doing this to us?

It's impossible, really, to caricature this White House; even Josiah Bartlett didn't run through this many liberal stereotypes in his first season. Obama needs new writers. Blow up the World Trade Center and kill 3,000 Americans? Jail! Don't buy health insurance? Jail! Win the Nobel Prize for doing jack squat. Travel to Copenhagen to beg and grovel unsuccessfully for the Olympics, and pledge to go visit Hiroshima and Nagasaki, but blow off traveling to Berlin to commemorate the victory of freedom over Communism (then give a tepid speech on the subject that refuses to acknowledge Ronald Reagan). Commemorate the 70th anniversary of the Soviet invasion of Poland by unilaterally abandoning missile defense installations in Poland. Insult and disdain one faithful ally after another - Britain, India, Israel, Poland, Colombia, you name it - and cozy up to our enemies, with nothing to show for it - nothing to show for anything he's done in foreign affairs. All but ignore democratic protests in Iran while supporting an illegal effort by Honduras' president to stay on beyond the end of his term. Suddenly complain about corruption and electoral fraud in Afghanistan, while seeking the favor of Hugo Chavez and Mahmoud Ahmadenijad and Vladimir Putin - heck, Obama endorsed half a dozen people in Chicago more corrupt than Hamid Karzai. On and on and on we go, with President Apology constantly straining to run down his country's record and talk up the propagandized view of history of its enemies. He's taken more time to "evaluate" General McChrystal's recommendations about Afghan policy than it took George W. Bush to invade Afghanistan and capture Kabul after September 11. It would be funny if it wasn't tragically stupid and bound to get people killed. There is no mistake of our past that Obama is unwilling to remake.

If there's an upside to all this, after months of watching KSM up close, even liberal New Yorkers may be ready to give Dick Cheney a medal.

From AmLaw Daily, a classic Halloween tale of sexual harassment litigation. Worth reading the whole thing, but this is undoubtedly the highlight:

Cognex and its CEO, Robert Shillman, retained Lukey, and she sat in on what she remembers as a six-day deposition of Shillman. That's when the case took a bizarre turn. Shillman--known for his sense of humor and his devotion to Halloween, Lukey says--wore a different Halloween costume to each day of his deposition. The get-ups included a priest costume (complete with garlic necklace to repel vampires) and, most memorably for Lukey, a full Mr. Peanut costume, top hat and all. One problem: The hat made the costume top-heavy, and Shillman at one point toppled out of his chair when he tried to lean back, Lukey says.

*Josh Painter looks at how the latest financial disclosure forms tell the story of the intense financial pressure put on Sarah Palin by the stream of bogus ethics complaints filed by left-wing bloggers, culminating in the complaint that prevented her from accessing funds raised for her legal defense. It certainly makes a compelling case why an ordinary person in Palin's shoes would step down rather than be driven under by the expenses. Whether that's enough to absolve her as a potential presidential candidate is another matter; we tend to expect potential presidents not to act like ordinary people. Of course, most politicians would have escaped the mounting debts by writing a book or giving speeches for money, but Palin may have felt, not without reason, that any such activities while serving as governor would lead to further ethics complaints that would tie up those sources of income as well. Meanwhile, Melissa Clouthier looks at a CNN poll finding 70% of the public currently thinks Palin unqualified to be president.

I'm not picking a horse for 2012 yet, nor will I until after 2010. It's unclear if Palin will run, anyway. I do know a few things. One, for reasons I've been through many times, I'd much prefer to support a more experienced candidate - we're not the Democrats, after all, who have permanently forfeited the right to say anything on this subject by backing Obama - and the fact that people in my position are even open to Palin at all at this juncture is a sign of the weakness of the field so far. Two, Palin has proven to be extraordinarily effective at retaining the public's interest and even at exercising her influence as a guerilla opposition leader armed with nothing more than a Facebook page; by mostly absenting herself from the public eye except for Facebook and a few op-eds and obscure speeches, she's kept 'em wanting more (witness the explosive early pre-orders for her book, which non-fiction publishing people viewed as unprecedented), while still driving the public debate (i.e., "death panels"). But the Newt Gingrich experience is vivid proof for Republicans that effective guerillas don't always make good leaders when they come into power.

Whichever way Palin chooses to go, the book tour (including the appearance on Oprah, who is naturally hostile but not really accustomed to tough interviews) will be a sort of second coming-out for her on the public stage that will be critical and should reveal whether she has spent well her time out of the limelight in terms of boning up for future policy debates. We'll be able to assess her future much better in a few months.

*Meanwhile, a man to watch if he gets persuaded to run is Indiana Governor Mitch Daniels. (H/T) I'll have more on him another day...upside: Daniels is serious, tough-minded, won re-election in Indiana in 2008 (while it was carried by Obama) after being given up for politically dead in 2006 (when his low approval ratings were blamed as a cause for heavy GOP House losses in the state, paralleling a similar trend in Ohio and Kentucky). Downside: Daniels is as yet reluctant to run (recall how well that worked out with Rudy and Fred), and as a public speaker he's dry as dust.

*The Democratic circular firing squad over health care continues. And Jay Cost explains why the continuing threat to Lieberman from the Left has made it politically necessary for him to oppose the public option.

*Dan Riehl looks at how the GOP made the disastrous decision in the Congressional race in NY's 23d district to nominate Dede Scozzafava, who now seems likely to finish third in that race. Meanwhile, Newsbusters notices that the NY Daily News still refuses to acknowledge the existence of Doug Hoffman, the Conservative candidate in the race. Jim Geraghty is unsparing on the folly of Newt's continuing support for Scozzafava.

*George W. Bush, motivational speaker - without a teleprompter. The WaPo seems astonished that a man who won something on the order of 110 million votes in two national elections is actually a decent speaker. Key quote from Bush: "It's so simple in life to chase popularity, but popularity is fleeting."

*On the anniversary of his death, Bill Kristol remembers Dean Barnett.

*Naturally, he's retracted it, but you can't top Anthony Weiner's initial assessment of Alan Grayson as being "one fry short of a Happy Meal."

*Interesting breakdown of TV ad rates.

*ABA Journal on the tragic saga of Mark Levy.

Arguing that drugging and forcibly penetrating a non-consenting 13-year-old girl isn't one of the bad kinds of rape.

I knew Whoopi was rude, an ignoramus (she told John McCain last year that the Constitution doesn't prohibit slavery) and a walking crime against comedy, but even I was startled to discover her cavalier attitude towards the violation of a young girl.

Oh, and also following the same story with what only tries to be parody: the Onion.

This Salon piece says pretty much everything that needs be said about Roman Polanski.

UPDATE: This is also a good point. But then, sexual abuse of minors just doesn't get taken half as seriously when it's...well, pretty much anybody else.

Leon Wolf disposes swiftly of the legal "merits" of ACORN's lawsuit against Breitbart. One of Jonah Goldberg's readers has more, although I'm skeptical of his third point, on standing grounds (as to RICO, anyway; the False Claims Act would be more a matter of finding something new, and I'm not familiar with whether you can use civil discovery to become an "original source" for qui tam purposes).

Via Ace, ACORN is also $2 million in the hole in paying its taxes.

Leon Wolf has some fun explaining why President Obama's actions in the Inspector General firing scandal show Obama relying on the Unitary Executive Theory.

Not that there's anything wrong with that; we conservatives have been standing up for Justice Scalia's view of the unitary nature of executive power - and the democratic accountability it promotes - for years. It's the people who blathered about it during the Bush years who didn't know what they were talking about, and now have to pretend that they were in favor of this kind of thing all along, much the way they only learned to despise the Independent Counsel when they found themselves on the receiving end of it.

Must-read on Obama Administration's decision to give Miranda warnings to captured jihadists. Like so many things Obama has done, this one was derided as a straw man when Sarah Palin claimed last year that he would do it.

I don't know whether Jason Linkins at the Huffington Post is a lawyer, but from this post I have to assume not - and that he really should have talked to a lawyer before publishing it.

The main thrust of Linkins' post is his argument that Justice Scalia in his 2002 opinion in Republican Party of Minnesota v. White somehow endorsed the notion that it's appropriate for judges to make policy. (I have discussed before the importance of that opinion in judicial-nomination fights for a different reason: Justice Scalia noted that the restrictions in question imposed a nonsensical distinction between what a judge can say before and after announcing a candidacy for judicial office, and in so doing explained why it is silly to question whether a judge is "impartial" simply because he or she has previously stated views about what the law is.)

So, did Justice Scalia defend the making of policy by judges? It's true that nobody really disputes that at the margins, a judge in many cases will be involved in some level of policymaking and policy considerations, and that some of the questions courts must resolve entail the judges' view of how the world actually works. Justice Scalia, however, would seem a curious witness to call on this point, as he is the figure in American public life most associated with the view that the legitimacy of a court's decisions depends upon limiting judges' discretion to the maximum possible extent and never losing sight of the fact that the Constitution and federal statutes are democratic enactments whose interpretation must at all times conform to what the people understood they meant at the time they became law.

Let's look at the quotes Linkins chooses and why they are - assuming Linkins was writing in good faith - so hilariously misguided.

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Dahlia Lithwick has. Orin Kerr hasn't.

Just to get on record before the expected announcement at 10:15 this morning, I will be shocked if Obama does not pick Judge Diane Wood of the Seventh Circuit for the Supreme Court. Wood is a veteran federal appellate judge, she's female, she's a relatively low-key personality (usually an asset in confirmation hearings), she's reliably liberal, and he knows her personally from Chicago. Downsides? Well, Obama, like Bush, wants badly to name the first Hispanic Justice, but there are always multiple considerations in picking a Justice; Bush never got there either, and Obama may well have one or two more picks in the next few years. Otherwise, the main downside - if you consider it one - is that Judge Wood's record will put the abortion issue front and center even more than the usual SCOTUS battle.

UPDATE: No sooner had I written these words than the word came down that Obama has instead chosen Second Circuit Judge Sonia Sotomayor.

I'm going to need to be very cautious in writing about this nomination battle, for professional reasons. Let's just say that everyone with any interest in making a fight of this nomination is very happy with this pick.

SECOND UPDATE: Ruffini notes that Obama is making this announcement the same day the California Supreme Court is set to decide whether to throw out the verdict of the people of California in supporting Proposition 8, the anti-same-sex marriage proposition. Unclear whether Obama is hoping to preempt the issue, but the net result will likely be a sudden shift of focus to social issues.

The Supreme Court this morning granted certiorari in Free Enterprise Fund and Beckstead and Watts, LLP v. Public Company Accounting Oversight Board, et al., No. 08-861 on the Court's docket. The case will be briefed over the summer, heard in the Fall (after, among other things, Justice Souter's retirement, assuming all goes on schedule) and decided some time between next December and July 2010. Given that my firm and/or my clients may well end up being involved in the case, I won't try to handicap its success or get too far into its merits, but know this: the issue before the Court presents important questions generally about the scope of separation of powers restrictions in economic regulation, and specifically about the constitutionality of a key provision of Sarbanes-Oxley and, potentially, could threaten the entire statute.

Last August, a divided panel of the DC Circuit rejected a separation of powers challenge to the provision of Sarbanes-Oxley governing the Public Company Accounting Oversight Board's appointment. For the uninitiated, PCAOB promulgates accounting rules for public companies. The core question was whether the PCAOB's powers were such that constitutionally, its members should have been directly accountable to the President under the Appointments Clause. 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" and thus no undue intrusion on the President's power, acting through the SEC, to control the PCAOB. Id. at 33.

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 (the Independent Counsel case), 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.

The reason why the Free Enterprise Fund's lawsuit raised particular eyebrows is because of the lack of a "severability" clause in Sarbanes-Oxley, a standard provision that allows a statute to avoid being struck down if just one part of it is declared unconstitutional, thus presenting the possibility that the court would have had to declare the entire Sarbanes-Oxley statute unconstitutional (or, alternatively, raising the question of what power a court has in such a large and complex enactment to strike down only a part of it).

Stay tuned.

At this writing, we do not know who President Obama will nominate to replace David Souter on the Supreme Court, and so it's impossible to anticipate precisely how much Republican opposition his pick will meet with, or for that matter whether any Democrats will be opposed.

Nonetheless, of this much we can be sure, from Obama's own history and prior statements as well as that of his party: Obama is highly likely to select a nominee who will do a terrible job as a Supreme Court Justice, in terms of (1) following the reasoning process that we Republicans and conservatives believe is the legitimate and appropriate way for a Justice to decide cases and (2) reaching what Republicans/conservatives would regard as the correct results in interpretiting the Constitution and federal statutes.

So, the President is likely to do something Republicans legitimately and seriously disagree with, and which will do lasting damage to the nation. How then to respond? Here, sight unseen of the nominee, I can offer two main suggestions.

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This is certainly an entertainingly straightforward case for avoiding jury duty, but not the most persuasive one. Well, until you consider whether you'd want this guy on your jury.

In the process of declining to revisit a prior opinion after the Ninth Circuit (in a decision called McCoy) created a Circuit split by disagreeing with the Seventh Circuit, Judge Frank Easterbrook hits one of my pet peeves - unpublished opinions on unsettled questions of law, and the courts that ignore them:

Before McCoy issued, every federal judge (trial or appellate) who had analyzed this subject had concluded that [Section] 226.9(c) requires notice of a change in contractual terms, but not of a lender's decision to invoke its rights under terms already in the contract....It takes more than a vague regulation plus cloudy commentary to displace a contract.

One of the courts that had reached this conclusion was - the ninth circuit. Evans v. Chase Bank USA, N.A., 267 Fed. App'x 692 (9th Cir. 2008). True, Evans is a nonprecedential decision, see Fed. R. App. P. 32.1, and therefore did not bind the panel in McCoy. But nonprecedential decisions should be used only when the
legal issue is clear enough that all reasonable judges will come out the same way. The panel in Evans must think that the result of the panel in McCoy is unreasonable. What’s more, there was a persuasive dissent in McCoy written, as it happens, by a judge of this circuit sitting by designation. McCoy, 2009 U.S. App. LEXIS 5380 at *25–*46 (Cudahy, J., dissenting). If there is a conflict in need of resolution, it is among judges of the ninth circuit rather than between the seventh and the ninth.

This goes to the heart of the unpublished-opinion issue. Nobody disputes that, with the volume of appeals ever increasing, federal appellate courts may sometimes write abbreviated dispositions of routine cases without producing a full opinion suitable for publication in the Federal Reporter - opinions that provide just enough reasoning to explain to the parties that their arguments were heard and understood and why the court ruled as it did, but without requiring the court to concern itself with how the opinion will be read as a guide to future cases. But in a common law system, the emphasis must be on routine - like the scores of repetitive immigration, pro se cases and prisoner appeals that constitute the biggest chunk of the volume of the docket and that often presents no serious legal controversy. But if a court is grappling with the application of law to fact in a way that is frequently litigated in the lower courts, and still moreso if it is addressing a question on which courts have divided or the courts of that Circuit have yet to definitively rule, it is no excuse to say, in essence, 'we decide this case without deciding the rule' if the rule governs that case. Instead, my sense from seeing this arise with increasing frequency is that courts are disposing of more and more appeals raising serious, contested questions of law, sometimes on issues that have divided districts or circuits, and marking them unpublished. The result is bad for the administration of law and justice because it ignores the primary function of appellate courts: to say what the law is for the purpose of settling legal questions so that trial courts can focus to the greatest extent possible on the facts.

Christopher Badeaux continues his look at the dangers unleashed by threatening to impeach a federal judge over legal advice given prior to taking the bench. As he notes, Democrats proposing these sorts of things plainly are not planning for the possibility that Republicans might ever retake control of any branch of government.

The New York Times headlines an article about an appearance by Clarence Thomas before a high school group "Reticent Justice Opens Up to a Group of Students." What's amusing is that after Justice Thomas has spent 18 years on the Court, the Times still thinks it's newsworthy that he would speak to a student group simply because he does not ask questions at oral argument (a practice he has explained and defended and which was once more of a norm on the Court). In fact, anyone remotely familiar with the Court will tell you that Justice Thomas has long been very active, perhaps the most active Justice on the Court, in meeting with visitors from the general public (when I was in college, in the spring of 1992, he took 45 minutes to meet with a group of 12 of us who were in DC for Holy Cross' semester-in-Washington program, and I gather he's been doing that ever since), he's a frequent speaker at events around the country - he even wrote a deeply personal autobiography that may have escaped the Times' notice. (Note also Adam Liptak's shot at Thomas giving a "rambling" answer to a question - we are compelled to take his word for it, although of course it's rare to hear an unscripted Q&A with anybody without a few of those answers).

It's so hard to do satire these days, because the truth is so often beyond parody. The last of the heavily-armed pirates who stormed the Maersk Alabama, held a paralyzed U.S. Navy at bay for three days and repeatedly threatened to execute their hostage unless they were paid millions in ransom may well be tried in the United States for piracy. This is probably the right call, since this is piracy against American ships, although really it would have been better if all the pirates had been killed on the spot. Where this gets bizarre is the suggestion that an act of piracy on the high seas should be treated as a juvenile crime because the pirates reportedly were somewhere between age 16 and 20:

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Christopher Badeaux at the New Ledger looks at why the American Bar Association should be opposed to indicting lawyers for giving legal advice. One can certainly imagine a world in which lawyers would simply refuse to advise governments and other institutional clients as to what the rules governing some topics are, on the grounds that, say, the President should consult only his conscience - and possibly Scripture - before acting, rather than inform himself as to whether or not he is in compliance with the law. But that is hardly the world institutions like the ABA purport to champion.

Jack Dunphy looks at a stone-cold Oakland cop-killer and the morally depraved excuses made for him. The comments from Red Ron Dellums are enough to make you wonder why anyone would agree to serve in the Oakland PD under such a Mayor.

Here's three interesting ones (well, to me as a law nerd, anyway) from the carnival of law and humanity that comes out of my daily scan of the latest appellate court decisions:

-The Second Circuit overturns a lower court decision holding that medical residents are not "students" exempt from FICA taxes, concluding that the statute doesn't clearly define what a "student" is and the courts need to look at the facts of each particular program (regardless of whether this is right on the law, it's terrible policy, as it leaves the issue to expensive fact-intensive litigation rather than giving residency programs clear rules to plan around). The subtext, of course, is that residents who make little money now but expect to make a lot in the future would far rather opt out of the whole Social Security system to the greatest extent possible.

-The Eighth Circuit disagrees with a man who claims to be mentally retarded so as to receive disability assistance, saying his low IQ isn't proof enough to overcome his work history and general life experience of nobody treating him as mentally handicapped. While it's something of an amusing effort, the guy has obviously had a pretty hard life when you read the whole thing (for example, the court notes that he dropped out of school not due to mental impairment but due to an accident that nearly cost him his right arm).

-The Fifth Circuit rejects Dennis Kucinich's challenge to the Texas Democratic Party's 'loyalty oath' that presidential primary candidates must pledge to support the ultimate nominee. Judge Edith Jones clearly doesn't think much of the idea of the oath but finds no constitutional problem with it being a condition to ballot access in a partisan primary.

The DC Circuit today ruled that no expert testimony was required to establish that Allen Iverson had a legal duty to stop his bodyguard from beating a man in a bar fight:

In the early hours of July 20, 2005, a brawl erupted at the Eyebar, a Washington, D.C. nightclub. Among the injured was Marlin Godfrey, a patron in the Eyebar VIP area that night. He suffered a concussion, a ruptured eardrum, a burst blood vessel in his eye, a torn rotator cuff, various cuts and bruises, and emotional injuries. Godfrey sued Allen Iverson and his bodyguard, Jason Kane, both of whom were in the Eyebar VIP area that night. The amended complaint alleged that Kane and Terrance Williams, who also sometimes acted as Iverson's bodyguard, attacked him and directly caused his physical and emotional injuries, and that Iverson was negligent in failing to stop both men from injuring Godfrey.

Iverson's lawyer argued that traditionally, you can't sue an employer for "negligent supervision" (the theory under which Iverson was held responsible for what his bodyguard's misconduct) without expert testimony establishing how he should have trained his employee to deal with these situations. The court effectively concluded that an ordinary, reasonable-man standard of care applies when the beat-down happens in the employer's presence:

A jury may need the aid of expert testimony to evaluate how a hotel should train and otherwise supervise its security guards to ensure that they do not unreasonably use force on some future date. But it is a different thing altogether to say such expert assistance is needed to establish the standard of care for an individual who is present while his personal bodyguard, acting on his behalf in clearing a room in a nightclub, beats a customer and causes significant injuries. Iverson has pointed to no case in the District of Columbia - nor have we been able to locate any - dealing with the standard of care a person owes in supervising his personal bodyguard in his presence. The evidence in this case supported the jury's finding that Kane attacked Godfrey in a fight that lasted several minutes, and that Iverson stood and watched without attempting to do anything to stop the beating.

Of course, it may not have been admissible evidence given that it happened when he was a teenager, but Iverson has his own past history of brawling - which is, ironically, probably why he has a bodyguard now and possibly why he was hesitant to get involved. I'm not 100% comfortable with sticking him with the bill for everything his bodyguard does, and I'm sympathetic to the possibility that (1) the damages here were excessive and (2) the guy who picked the fight may have been setting Iverson up, but the jury didn't buy those arguments, and as far as the legal analysis goes, when you just stand there as a guy in your employ beats a man that badly, it's hard to say that the law shouldn't hold you responsible.

I've seen some strange lawsuits filed by crackpots over the years, but I can't say I have seen anyone attempt to sue the Constitution itself before.

Judge Posner explains why the meaning of when a salad dressing is "best when purchased by" is not sufficiently well-defined to support a federal wire fraud or food misbranding conviction for a reseller who changed the dates.

One of the benefits of reading a lot of judicial opinions, as I do, is that you get to see a lot of retail examples of how our government operates at its most legalistic-bureaucratic. Yesterday's opinion by the U.S. Court of Appeals for the First Circuit in River Street Donuts, LLC v. Napolitano is a wonderful little vignette about a bureaucratic system run amok.

River Street runs a donut baking operation, and in January 2003, it wanted to hire a new head donut baker/supervisor for a salary of about $40,000 a year. This is your basic business decision - hire a new baker, try to grow the business - but there's a catch: the guy they wanted to hire, a man named Farag Mohamed, is a foreign national, so River Street needed the approval of the Bureau of Citizenship and Immigration Services to sponsor a work visa for Mr. Mohamed.

At this point, some readers will balk at the fact that River Street wanted to bring in a foreigner, but in a sane world, if a business has a skilled laborer they want to offer a job to, as long as there's not some other reason to keep the guy out of the country, this should not be a terribly onerous process.

But here's where things get complicated. Because BCIS demands that River Street submit proof that it can afford to hire Mr. Mohamed to make donuts, and after reviewing River Street's 2001 and 2002 tax returns, BCIS tells River Street that it knows River Street's donut business better than the company does, and they can't afford a $40,000 a year donut baker. Whereupon River Street enters the mad world of administrative law litigation, proceeding up through the Administrative Appeals Office of Homeland Security and ultimately to a federal court of appeals, consuming six years of litigation that almost certainly cost them more than $40,000 and did not produce any donuts. The First Circuit ultimately upheld the BCIS' and AAO's decisions, rejecting River Street's arguments about how to allocate depreciation in determining its financial strength. The opinion is mostly about administrative procedure, and I can't really quibble with the court's legal reasoning, but I still stand in some awe of the insanity of the entire exercise. Should it really be this complicated and bureaucratic to hire a guy to bake donuts? And is this a preview of the future of the financial and health care sectors?

Now, I don't know any more about this particular case than what's in the court's opinion, so I can't tell you if River Street made a good business decision to hire Mr. Mohamed or if he'd be a good person to have in this country. And I understand that, as with many such legal rules and regulations, there are arguments for why you need this sort of regulation: to make companies think twice about hiring foreigners instead of Americans and to ensure that people don't get brought in on work visas for jobs that dry up.

But no matter how you slice it, making a company spend years and legal fees trying (in this case unsuccessfully) to justify their own business decisions to second-guessintg bureaucrats and judges is a recipe for economic paralysis (as well as an inducement to seek to do business instead on the black market). You can write this off if you will as a symptom of our screwed-up immigration laws, which are simultaneously draconian in their terms and tepid and sporadic in their enforcement, but the nature of bureaucracy is universal and not unique to BCIS. I fear that in the years to come, a lot more businesses large and small are going to be living through similar experiences.

...law firms start suing former associates who leave.

...law firms are called in to handle clients' disputes with Somali pirates.

Meanwhile, Judge Reindhardt is calling out incompetent criminal appellate lawyers (you gotta click through to the opinion), illegal aliens are suing a rancher who tried to stop them wrecking his property, and even these guys and this guy apparently got played.

Strange days, indeed.

An opinion that was handed down by a divided panel of the 11th Circuit yesterday in American Civil Liberties Union v. Miami-Dade County is bound to be controversial: the court held, among other things (the opinion plus dissent run 177 pages) that a school board in Miami was justified in removing from the bookshelves of a school library a book that painted an unduly rosy picture of life in Cuba. The interesting part of the opinion, rejecting an ACLU challenge, runs from about page 59-104 of the slip opinion in pdf form, if you want to read it yourself. The core of the court's decision was its conclusion that removing a book that was factually inaccurate in failing to depict the reality of life under Castro was not a forbidden exercise of political opinion but a legitimate exercise of a school board's power to take factually false material off the shelves.

It requires no stretch of the imagination to recognize why this holding is a flashpoint; nearly all disputes over subjects ranging from evolution to global warming to Israel and Palestine involve warring camps both of which assert that the other's position is simply factually false and should not be taught to schoolchildren. As I have long argued in the case of media bias, the biggest single issue is deciding which stories have two legitimate sides and which don't. But to state the problem doesn't answer the question of where courts can allow democratically elected school boards to draw the line, or where those boards should draw the line if left free to do so, since the alternative involves the courts tying the hands of the board in decisions about removing books, while giving free rein to political agendas in the decision to buy the books in the first place.

As the majority opinion noted:

The dissenting opinion argues that if a school board's action in removing a book from its own library shelves does not amount to banning a book, then a school board can never ban a book. See Dissenting Op. at 172. So what? Nowhere is it written that a school board must be empowered to ban books. Because a school board has no power to prohibit people from publishing, selling, distributing, or possessing a book, it has no power to ban books.

Slip op. at 93. My own preference, and I think the reading most consistent with the Constitution, would be to get the courts out of the business entirely, but even that doesn't answer the core policy question of how the school boards should decide these kinds of brouhahas.

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The nature of the Supreme Court - life tenure, the fact that most Justices tend to live long and step down only when illness or death forces the issue, and the enormous stakes in each new Justice's selection - tends unavoidably to set political commentators into full circling-buzzard mode at the first word that a Justice might be ill enough (or, in Justice Stevens' case, simply old enough) to make a vacancy imminent. Tom Goldstein argues that Justice Ginsburg's surgery for pancreatic cancer shouldn't trigger that reaction, despite her age, her prior history with cancer (which apparently makes chemotherapy impossible) and the fact that pancreatic cancer has a famously high and fast mortality rate (think of Gene Upshaw, who died days after his diagnosis). As Goldstein notes, that mortality rate is largely because the disease is rarely detected early, and Justice Ginsburg caught a break in being diagnosed early (as was the case for Steve Jobs).

Of course, as a Supreme Court practitioner, Goldstein has a vested interest in defending a sitting Justice (that's true of me as well), so take it with a grain of salt; but his point is well-taken as far as not jumping to conclusions. We should all wish Justice Ginsburg good health and the freedom to retire or not on her own terms, politics aside. And yes, I know that given the passions the Court arouses and the life-and-death issues it handles, that can be hard at times to do sincerely, but making the effort is itself good for your mental health if you spend too much time in the arena of political blood sport.

All that said, obviously the Obama Administration and Senate Republicans alike need to be thinking ahead to the possibility that her illness at least increases the odds of a vacancy this year, and political commentators being what they are, we can't help but speculate. Goldstein's own site had a list up last week of four possible names - Seventh Circuit Judge Diane Wood, Second Circuit Judge Sonia Sotomayor, Harvard Law Dean (and Solicitor General nominee) Elena Kagan, and Michigan Governor Jennifer Granholm. Three things are clear at this early stage. Number one, if Justice Ginsburg's slot ends up being the first one filled, whether this year or later, the departure of the only remaining female Justice would make it politically impossible for Obama not to pick a woman, hence the names on that list. Number two, whoever it is better have their taxes in order. (I think it's safe to say that for partisan purposes, Republicans would salivate at Granholm, a politician with no judicial experience and a disastrous economic record in Michigan; as a lawyer, I'd rather see someone with actual, proven competence/excellence as a judge and/or lawyer, a point I made repeatedly during the Harriet Miers debate). And number three, to the extent that any nominee is at all controversial, Senate Republicans are going to have to decide if their longstanding principled stand in favor of bringing judicial nominees to a vote - there was no opposition at all to Justice Ginsburg, and no effort to filibuster Justice Breyer - will end up getting discarded, given (1) the prevailing sense that Republican disarmament on this issue has been unilateral and specifically that (2) Obama himself voted against Chief Justice Roberts and voted to filibuster Justice Alito, and is therefore uniquely poorly positioned to demand Senatorial deference to his selections. It's premature as well to make that decision (my own longstanding view is that it's legitimate to use the filibuster to slow down a nomination long enough to gather information and muster political opposition, but not to wholly deny a floor vote), but if there's a vacancy during Obama's presidency, it will surely arise.

Jack Marshall at the Hardball Times, after defending in general how Scott Boras does his business, argues that he's violating legal-ethical duties to his clients:

Imagine you are a lawyer who is retained by a parent to sue a school district in a sexual molestation case. You believe you can win and are pretty sure that you have a chance to break the bank and take almost all the assets of the district. Now another client comes to you wanting to sue a school in the same district to get damages for a horrible injury sustained by her child on a defective jungle gym. You can’t take the second case. If you achieve the objective of the first client, there won’t be money left for the second one. If you achieve the goals of one, you can’t possibly achieve the goals of the other.

The remedy for conflicts of interest is often informed consent. If both clients completely understand the implications of hiring the same lawyer to sue the same client with limited resources, can’t they just decide to trust the lawyer and hire you anyway?

The answer is no. The Model Rules of Professional Conduct for lawyers, specifically Rule 1.7, declare that the waiver of all parties is sufficient to waive the conflict only if the lawyer reasonably believes that the representation of one client won’t interfere with the representation of the other. In this situation, you can’t reasonably believe that, because it is impossible. To the extent that you help one client, you hurt the other. It is an unwaivable conflict.

+++

If the Yankees were the team most likely to contest the Dodgers for Manny Ramirez, in the event that New York did not wrap up Teixeira, Boras was undermining his own client's bargaining power by helping Teixeira reach an agreement with New York. If the Angels signed Sabathia, as was a realistic possibility, it would have made the team an unlikely bidder for Teixeira or Ramirez. Sports commentators, talking heads and bloggers sensed this, speculating that Boras might "steer" Teixeira to an East Coast team to keep open a West Coast landing place for Manny. But Boras cannot ethically manipulate one client's fate to benefit another. For a lawyer, doing so is grounds for bar discipline; for a non-lawyer, it is simply disloyal and wrong.

Boras represents two fading, star veteran catchers: Ivan Rodriquez and Jason Varitek. The Red Sox, with a veteran pitching staff, would like a veteran catcher. Varitek has appeal to Boston because he has anchored the team for over a decade and has been the team captain; Rodriguez might be attractive because, based on last season at least, his skills have not declined as steeply. With two different agents, I-Rod and Tek would be competing with each other for the job in Boston or other teams seeking a veteran catcher. But with the same agent, such competition is either impossible or unethical.

Read the whole thing. I'm not sure how I come out on this - it's an interesting argument, and it passes the test of being true at a fundamental level - for example, an agent representing Varitek might reasonably have chosen to argue that he was, specifically, a better investment than Rodriguez; representing both, Boras cannot do that. On the other hand, the pond at issue here is so small that if you never represent two players with possibly competing interests, you'd hardly be able to represent more than about 10 players.

Setback for the Constitutional Right To Bear Nunchaku

The United States Court of Appeals for the Second Circuit, the federal appeals court sitting in Manhattan, rejected this morning a legal challenge by an attorney convicted on Long Island of possession of nunchaku, or chuka sticks, who argued that the Second Amendment protects his right to bear these traditional Okinawan weapons.

The court's decision, however, did not address whether the Second Amendment protects a right to have nunchaku in your home, as it instead disposed of the legal challenge on the considerably more significant grounds that the Second Amendment is not "incorporated" as a restriction on state government by the Fourteenth Amendment:

It is settled law... that the Second Amendment applies only to limitations the federal government seeks to impose on th[e individual] right [to keep and bear arms recognized in Heller]. See, e.g., Presser v. Illinois, 116 U.S. 252, 265 (1886) (stating that the Second Amendment "is a limitation only upon the power of congress and the national government, and not upon that of the state"); Bach v. Pataki, 408 F.3d 75, 84, 86 (2d Cir. 2005) (holding "that the Second Amendment's 'right to keep and bear arms' imposes a limitation on only federal, not state, legislative efforts" and noting that this outcome was compelled by Presser), cert. denied, 546 U.S. 1174 (2006). Heller, a case involving a challenge to the District of Columbia's general prohibition on handguns, does not invalidate this longstanding principle. See Heller, 128 S. Ct. at 2813 n.23 (noting that the case did not present the question of whether the Second Amendment applies to the states). And to the extent that Heller might be read to question the continuing validity of this principle, we "must follow Presser" because "[w]here, as here, a Supreme Court precedent 'has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to the Supreme Court the prerogative of overruling its own decisions.'" Bach, 408 F.3d at 86 (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989))...Thus, N.Y. Penal Law ss265.00 through 265.02 do not violate the Second Amendment.

I will leave it to the Second Amendment scholars to discuss the proper reading of Presser; suffice it to say that judicial conservatives who argued that the Fourteenth Amendment does not incorporate the whole Bill of Rights into prohibitions against the states lost that fight years ago, and it will be an ironic twist if liberal champions of incorporation (including the new Justice Department) suddenly rediscover skepticism about the doctrine to protect state-level gun controls. Conservatives as well will face the issue of how to square the weight of pro-incorporation precedent with arguments for reconsidering the doctrine and limiting its further expansion. But make no mistake: sooner or later the Supreme Court is going to have to return to the issue, and its decision will have vast impact on whether Heller becomes a limitation on state and local gun controls or remains limited to federal gun control.

It also remains to be seen, given the novelty of the weapon involved, whether the Supreme Court will be interested in taking up this question in this case, if a certiorari petition is filed, and what position Obama's Justice Department will take if one is and it is asked by the Court to weigh in. Stay tuned.

One hopes the new Administration's homeland security policy will be less porous than its inauguration invite list:

One of the religious leaders invited to address Barack Obama’s inaugural prayer service Wednesday heads an Islamic group named by federal prosecutors as a co-conspirator in a terrorism-fundraising trial in Texas.

Ingrid Mattson, president of the Islamic Society of North America, is scheduled to join Christian ministers and Jewish rabbis offering prayers for the new president and his family during a service at the National Cathedral in Washington, organizers announced Friday.

Mattson’s group calls itself “the largest Muslim umbrella organization” in North America. However, in May 2007, federal prosecutors included ISNA on a list of nearly 300 co-conspirators filed in a criminal case charging that the Holy Land Foundation of Richardson, Texas, funneled more than $12 million to Hamas.

The U.S. government designated Hamas as a terrorist group in 1995.

A trial in Dallas in 2007 for the foundation and five of its leaders ended with acquittals and mistrials. However, Holy Land and the five officials were convicted of all 108 charges in a second trial last year.

More background on Mattson herself here and here.

There are two possibilities here. One is that the Obama people simply didn't check out Ms. Mattson's background, which seems doubly implausible given that she spoke at the Convention in August. The other is that they have deliberately taken sides against DOJ's view of the Holy Land case (that's surely how the targets of that investigation will view the invitation - as a vindication that their activities are no longer frowned upon), and implicitly against the broader project of Justice's efforts to shut down the laundering of funds through Islamic charity groups inside the U.S. That's a very dangerous signal indeed.

The American Lawyer continues that hardy perennial of legal journalism, "the death of the billable hour is at hand!", with a look at some clients ditching hourly billing in the UK. But even the article admits that replacing the billable hour requires swimming against the tide in the UK:

In the United Kingdom, lawyers and clients have never had the same all-consuming obsession with hourly billing as their American peers. Still, over the last 20 years hourly rates have become the dominant currency here as well...

As I have argued before here and here, while it's true that lawyers and clients alike tend to despise hourly billing (albeit for different reasons), at the end of the day, (1) it persists because you can't replace it without alternatives that have serious potential problems of their own, and (2) no matter how creative lawyers may be in proposing alternative billing structures, they will only catch on if clients provide the impetus for change, which in turn will happen only if clients are comfortable that they are able to meaningfully evaluate the cost-effectiveness of lawyer services, which most clients can do with hourly bills from long experience. The vast amounts of ink spilled on this topic every year almost always fail to grapple with those basic dynamics.

Edmund Burke, the great conservative theorist, famously remarked that "[a] state without some means of change is without the means of its conservation," and that's as true in the law or any business as it is in government or culture - an attitude that all change is always bad is a very dangerous one. But the fact remains that in trying to change any entrenched practice, you have to start by asking why things are the way they are and how your proposed alternative is going to deal with those conditions. We'd all love to see the hoary old billable hour interred, but legal journalism that advocates change in the industry without grappling with those realities doesn't end up accomplishing very much for the profession of law.

The Ninth Circuit rejects the Unabomber's lawsuit to get his bomb-making materials and manuals back. I'm sure that was a tough call.