Turning Over A New Leaf

As I’ve done in the past, I’m creating brand-new categories for the new year. You’ll now go to Baseball 2005 for new baseball entries, Politics 2005 for new politics entries, War 2005 for new war entries, and Law 2005 for new law entries (the Law category hadn’t needed an overhaul last year). I’ll shortly be updating the link to baseball-only posts at the top of the page as well to send you to Baseball 2005.
Happy New Year!

Sorry, Harry

Prominent left-wing Yale constitutional law professor Jack Balkin gives no comfort to defenders of Harry Reid’s baseless attack on Justice Thomas’ competence, and grounds his objections to Thomas in purely results-oriented terms:

Having seen his work over the course of more than a decade, I have no reason to think that Thomas is appreciably better or worse in terms of his lawyerly skills than many other Justices who have sat on the Supreme Court. The positions he takes are often quite striking, almost to the point of being “off-the-wall,” but sometimes ideas once thought “off-the-wall” become orthodoxy later on depending on how the political winds blow. If I have an objection to him, it is that his constitutional vision is very different from mine, and so I think he interprets the Constitution in ways that lead to very unjust and uncalled for results. I think his arguments are often wrong and his assumptions misguided, but that does not make him an embarrassment. It makes him a powerful person who is using his power to move the law in what I consider to be the wrong direction. I would oppose appointing more Justices to the Supreme Court who agreed with him not because they believed in natural law, or original understanding, or disagreed with legal realism, but because they would be likely to push the practical meaning of the Constitution in very unjust and inappropriate directions.

Habeas Extended

Judge John Bates of the US District Court for the District of Columbia issued an opinion today in Omar Abu Ali v. Ashcroft (the kind of case that pretty well announces what it’s about in the caption) refusing to dismiss a habeas petition brought by a US citizen who has been detained by Saudi Arabia since June 2003. Ali, who alleges that he has been tortured by the Saudis, also alleges that he is being held at the behest of the US government. The court concluded that habeas jurisdiction was not necessarily barred either by the fact that Ali was held outside the US nor by the fact that he was in the custody of a foreign power, but ordered further discovery proceedings to develop the factual record.

If Not Bigotry, What Then?

I really meant to blog earlier in the week about Harry Reid’s bizarre comments about Clarence Thomas; as you’ve probably seen by now, in an interview with Tim Russert, Reid objected to Justice Scalia as Chief Justice but conceded that “I may not agree with some of his opinions, but I agree with the brilliance of his mind”; then, turning to Thomas, he argued that

I think that he has been an embarrassment to the Supreme Court. I think that his opinions are poorly written. I don’t–I just don’t think that he’s done a good job as a Supreme Court justice.

Taranto, Stuart Buck, and Ann Althouse have all taken this apart quite well. I hate to throw around unjustified accusations of bigotry, so I’m certainly prepared to believe that Reid wasn’t taking a potshot at Thomas’ intellect either (1) because he regards Justice Thomas as dumb because he’s black or (2) because he thinks he can convince others that Thomas is dumb because he’s black. But if Reid has something else in mind, I can’t imagine what it is. He didn’t bother to give examples, and Russert didn’t press him for any. I very much doubt that Reid has read many of Thomas’ opinions, and I suspect that he was just parroting what his staffers tell him. I have read quite a number of those opinions, ranging from opinions on intensely arcane subjects to critical issues of civil procedure to impassioned dissents on hot-button issues, and I can tell you that the charge of bad writing is ludicrously off the mark. At times, he can be quite eloquent. Thomas may not be the stylistic genius Scalia is, but Scalia is almost certainly the best writer the Court has ever seen (which is high praise, compared to people like Robert Jackson and Oliver Wendell Holmes); nobody else on the Court today compares to him either. Thomas’ opinions certainly don’t suffer from the kind of sloppiness and high-handedness that characterized, say, William O. Douglas. Buck, who’s a great admirer of Justice Thomas, has links to some sample opinions and to comments of grudging admiration for Thomas’ legal thinking by a prominent left-leaning academic, and you should go check out his links. (I should add that I’ve met Justice Thomas, and he’s quite an impressive guy in person).
If Reid has even a shred of support for the argument that Justice Thomas is unqualified to be Chief Justice by virtue of his writing abilities or any other defect of competence or intellect, let him come forward with it. Thus far, I’m hearing nothing from Reid or his defenders to suggest he can. To the contrary, Noam Scheiber of the New Republic had to conclude:

Since Reid doesn’t provide any evidence for his low opinion of Thomas, it sounds to me like he’s thoughtlessly embracing the increasingly untenable view that Thomas is an affirmative action case utterly incapable of the kind of deep (or independent) thoughts Supreme Court justices are supposed to think, which has more than a slight whiff of racism.

I’ll add a few examples of Thomas opinions of my own on a variety of subjects:

Continue reading If Not Bigotry, What Then?

There�s Always One

Reading this month�s ABA Journal, I came upon an annual rite of the holiday season as easy to predict as the Perils-Of-Trick-Or-Treating articles you see every Halloween or the Blinding-Of-Larry-Driscoll-type stories you read about fireworks every 4th of July. It could perhaps be classified as the Don�t-Get-Too-Drunk-At-Your-Law-Firm�s-Holiday-Party article. I had to laugh at this in particular anecdote:

It is fairly common knowledge in one law firm that a decade or so ago a young associate, at the urging of a partner, dropped his pants on the dance floor at a party in Washington, D.C. The associate survived and went on later to the Justice Department. But no one at the firm wants to confirm or talk about the incident.

I�m sure John Ashcroft would be proud.

Three Strikes Foolishness

Tung Yin notes the following story:

Florida voters . . . approved a three-strikes law unlike any other state’s � a measure aimed not at killers and thieves but at doctors who foul up.
The newly approved amendment to the Florida Constitution would automatically revoke the medical license of any doctor hit with three malpractice judgments. The law is backed by doctors’ foremost antagonists � lawyers � and the ramifications could be huge.

This amendment has nothing to do with patient safety and everything to do with giving additional leverage to plaintiffs’ lawyers to coerce settlement of med mal lawsuits. How can I be so sure? As Prof. Yin notes, “the amendment speaks of three judgments, not three lawsuits”. I’d bet the plaintiffs’ bar would scream bloody murder if a settlement counted as a strike, and especially if a settlement above a specified dollar amount counted as a strike, which it would if the idea was actually to punish malpractice rather than create a hammer for settlements. After all, a doctor who repeatedly commits malpractice but never goes to trial would never have a judgment against him, just a bunch of settlements. Whereas if you counted settlements against the doctors, they would have more incentive to fight claims rather than pay off the plaintiffs and their lawyers.
You can compare this to the way the NASD, which regulates stockbrokers, operates. NASD rules now make it very difficult for a broker who settles a claim to get it expunged from his record; even with the consent of the other party, you still need a specific order from an arbitration panel and court approval of that order. While this procedure is controversial and of debatable effectiveness, there’s no question that its intention is to prevent crooked brokers from settling quietly with anyone who complains. If the Florida statute had a similar rule, there would at least be the possibility that it was intended to crack down on bad doctors, rather than on doctors who insist on defending themselves before a jury. (Of course, even a three-settlements rule might work as a hammer for plaintiffs’ attorneys if it allowed you to avoid the rule by settling before a case is filed, but it would be closer to the expressed purpose of the statute).

BASEBALL/ Big Daddy Hits Back

Speaking of the media and ballplayers’ personal lives, remember the story about Cecil Fielder’s gambling problem? Well, now Fielder has sued the Detroit News for libel:

The libel suit, filed Nov. 23 in Wayne County Circuit Court, accuses the Detroit Newspaper Agency and reporter Fred Girard of defaming and slandering the three-time All Star by reporting that he was “in hiding,” “not in contact with his family,” not supporting his daughter financially, and had an “unstoppable gambling compulsion,” according to the suit.


Fielder’s lawyers said the stories exaggerated the gambling and reported incorrect information.
In a follow up story Oct. 21, Fielder told the News he planned to repay his debts, saying: “I’m going to be a man about it. I’m going to take care of all my responsibilities.”

From the story reported on ESPN, it doesn’t sound as if Fielder is disputing many of the key allegations against him – that he gambled away millions of dollars and had lost his Florida mansion as a result of inability to pay gambling debts – and is instead attacking charges that are harder to pin down, like the extent to which he was “in hiding” or in contact with his family. Those are facts as to which it will be hard to show that the News recklessly disregarded the truth if they relied on what somebody told them or on the fact that they couldn’t find him, and Fielder will have a tough time proving $25 million in damages if the thrust of the story – massive gambling debts, loss of his house – is true.

It Depends Whose Ox Is Getting Gored

The latest example of judicial overreaching on social issues comes from the United States Court of Appeals for the Third Circuit, where a panel ruled on Monday in FAIR v. Rumsfeld (link opens 100+ page PDF file) that the Solomon Amendment violated the First Amendment freedoms of speech and association of university law schools. The Mad Hibernian noted the decision here; I first blogged about the Solomon Amendment here, on the second day of this blog’s existence.
For those of you who are unfamiliar with the issue, the Solomon Amendment provides that universities may not continue to receive federal funding if they refuse to allow military recruiters on campus. Many colleges and, in particular, law schools banned military recruiters during the Vietnam War as an anti-war protest, although the bans that remain in effect today are mainly predicated, at least ostensibly, on a protest against the military’s “don’t-ask-don’t-tell” policy towards gay servicemen and women. A group of law schools sued, saying that their freedom of speech and association was violated by making them, as a condition of receiving federal funding, accept recruiters on their campuses.
There is, of course, no constitutional right to federal funding, so the case turns on the doctrine of “unconstitutional conditions,” by which the government may not impose an undue burden on the exercise of a fundamental right as a condition of receiving a benefit. In other words, the court had to balance the degree of imposition on the law schools’ rights of speech and association with the strength of the government interest involved.
This is where the court’s opinion is problematic.

Continue reading It Depends Whose Ox Is Getting Gored

Self-Evident Idiocy

One last spleen-venting legal case for the day:

A California teacher who teaches his fifth-grade students with the aid of primary source documents like the Declaration of Independence has been ordered by school administrators to stop using such artifacts of American history because the material contains references to God.

I heard about this one during the significant amount of time I spent stuck in traffic on I-95 over the holiday weekend, while flipping past Sean Hannity�s radio show. Not considering that the most reliable source and more than a little skeptical, I decided to check it out and, lo and behold, The Smoking Gun had the documentation, including the teacher�s complaint.
Politically, this is an example of Democrats needing to better police their fringes. I can�t imagine that the mainstream of that party is really opposed to the Declaration of Independence or shares such absolutist hostility to religion, but the cumulative effect of stories like this, fairly or unfairly, pushes a lot of otherwise undecided people into the Republican camp. It�s hard to get anyone to trust their children to people who think the ideas of people like Thomas Jefferson and John Adams are unfit for public schools.

Anti-Military Academics 1, Common Sense 0

Meanwhile, in a ruling I missed, the 3rd Circuit of the U.S. Court of Appeals handed down an outrageous opinion striking down the Solomon Amendment, which withholds federal funds from schools banning the military from appearing on campus. See here and here. (Academia, generally anti-military to begin with, frequently tries to ban groups like the ROTC or JAG recruiters on ideological grounds, the most fashionable recent pretext being protest of the military�s �Don�t Ask, Don�t Tell� policy.)
UPDATE: As you can probably tell, I feel very strongly about the issue of my taxpayer dollars going to institutions that ban our military from campus and have written in support of the Solomon Amendment in the past. This is a decision that politicians, from President Bush on down, need to condemn and the Supreme Court needs to reverse. It should not stand.

Mary Jane’s Last Dance?

Dahlia Lithwick has a snarky look at the Supreme Court’s oral arguments concerning California�s medical marijuana law, asking �should the court’s staunchest conservatives get away with being for states’ rights only when the state in question isn’t California?
I�m sympathetic to the medical marijuana law in question, defended in this case by Randy Barnett, and, in fact, would support a good deal of reform of American drug laws. Yet Lithwick�s accusations of hypocrisy would be a lot more convincing if the Court had not, on the very same day, (correctly) declined to hear a case challenging the Massachusetts Supreme Court�s (egregious) �gay marriage� ruling, presumably on federalism grounds.
Also, in a broader sense, this is an annoying form of argument. One gets the sense here that Lithwick doesn�t really believe in federalism, but supports using it as a justification for drug legalization at the state level. Isn�t that line of reasoning just as hypocritical as that which she prematurely accuses the Supreme Court of following?

Tragedy Strikes Estrada

A lot of conservatives were frustrated when Miguel Estrada, one of the best and brightest of Bush’s judicial nominees, withdrew his nomination to the DC Circuit. Some have speculated that he may still be nominated to the Supreme Court.
Perhaps, at some point, he will. But Andrew McCarthy noted in The Corner yesterday that Estrada’s wife died on Sunday. I don’t know if she was his age (early 40s) or if they had kids, but the man will clearly have other priorities right now than the judiciary. Apparently, her death was sudden and unexpected. (Link via Bashman). For now, our prayers should be with him and his family.

McConnell for Chief Justice

The more I think about it, the more I have to agree with Stuart Buck that, if Chief Justice Rehnquist is the first Supreme Court Justice to step down, Michael McConnell would be the best choice to replace him. As Buck pointed out in an email, this People for the American Way brief against McConnell actually summarizes pretty well why pro-life conservatives should want him on the bench. McConnell is one of the most distinguished scholars in the federal judiciary, having for many years been a leading scholar and court advocate on Establishment Clause issues. He is well-regarded as well in academia as a man of even and judicious temperment, which is one reason why his nomination for the bench in 2001 attracted the broad support of even liberal academics like Laurence Tribe and Cass Sunstein. This is one reason why Senate Democrats, having seen how badly the filibuster issue hurt them in many elections in 2002 (as it did again this year), moved swiftly to drop the filibuster against McConnell, and he was approved by the Senate by voice vote on November 15, 2002. That issue will loom again for 2006, as five Democratic Senators face re-election in states Bush carried in 2004 (although two of those, Robert Byrd and Jeff Bingaman, are likely to be immune to public pressure). Surely, recognizing that a filibuster of a Supreme Court nominee will be an unusually divisive and unpopular move – it’s only been done once, in the case of Abe Fortas’ elevation to Chief Justice, and then only on allegations of improprieties that eventually forced Fortas’ resignation from the bench – the Dems may quietly be looking for an excuse not to filibuster the replacement for the conservative Rehnquist but instead save their fire for nominations to replace the moderate Sandra Day O’Connor or liberals John Paul Stevens or Ruth Bader Ginsburg, especially if the nomination comes up right on the heels of the election. McConnell would give them a good reason not to fight, and present major obstacles to having one.
Others who agree that McConnell would be a good choice:
*Michael Rappaport
*Eugene Volokh
*Stephen Bainbridge
*John Hinderaker (although the Deacon has his own suggestions)

11/6/04 Links

*Now, They Tell Us: the lead story on the NY Times website yesterday was one that veterans of the 1992 election will find familiar: the discovery, all of a sudden, that the jobs picture is better than it was painted in the run-up to the election. I’m watching carefully for signs of economic revisionism where Democrats and Bush Administration critics who just a few days ago were comparing this economy to the Great Depression start arguing that Bush was hard to beat because economic times are good.
*Kos just topped the “screw ’em” classic, by openly hoping for America’s defeat in Iraq:

The big silver lining, and it’s significant, is that Kerry won’t be tarred for cleaning up Bush’s mess. Had Kerry gotten us out of Iraq, he would’ve been blamed for “losing the war”. Now Bush will ineptly lose it for himself.

Kos is taken firmly to task for this by Greg Djejerian:

[S]uch flippant treatment of a major national security issue is also very small; and the American people have smelled this smallness out. That’s part of the reason a somewhat embattled American president, with a less than ideal economy and with a tough war on his hands, was handily re-elected (I believe not since FDR has a President been re-elected while simultaneously gaining seats for his party in both Houses of Congress). Americans like to dream of big projects and goals–and the Democratic party is failing them in this–content instead to lazily carp from the sidelines. Worse, some of that party’s activists, it too often appears, would wish for some important, declared national objectives to be scuttled. Trust me, that wasn’t a winning strategy in the past, it isn’t one right now, and it won’t be one in the future.

Kos is undoubtedly particularly peeved at the failure of his personal ambition to become a power player in the Democratic party, as all 15 of the House and Senate candidates he backed lost. The list, here, is particularly funny now due to the misspellings and egregious cheap shots, like claiming Jim Bunning’s mental health was deteriorating. (Link via Blogs for Bush)
*Speaking of Blogs for Bush, the site will continue in a new format, although it’s unclear to me how its function will differ from that of RedState.
*Catch Mark Steyn in something close to full gloat mode here and here. I liked this one:

Michael Mooronification damages everyone who gets it.
Look at the recently resurrected Osama bin Laden. Three years ago he was Mr Jihad, demanding the restoration of the caliphate, the return of Andalucia, the conversion of every infidel to Islam, the imposition of sharia and an end to fornication, homosexuality and alcoholic beverages. In his latest video he sounds like some elderly Berkeley sociology student making lame jokes about Halliburton and Bush reading My Pet Goat.

*Speaking of gloating, while I might divide the group differently, I endorse the general sentiment of John Derbyshire as to the people who deserve to be gloated at and those who don’t.
*From November 2: Best Jimmy Breslin column ever.
*Lileks on New Yorkers who are aghast at the supposed ignorance of the red states that voted for Bush:

It’s a big country. Please take this in the spirit it’s offered: we watch the news that comes from New York, read the magazines that come from New York, see the shows that come from New York. It’s entirely possible we know you better than you know us. Nu?

*Tim Blair links to some classic inside stuff from the Bush and Kerry camps. The guy who comes off in this as the real political brains isn’t Karl Rove but Bush himself – note that Bush figured out before Rove did that Howard Dean was toast in the primaries. Of course, this is consistent with the theory that Bush’s expertise is knowing people, and he knew Dean personally.
*Stuart Buck thinks – and I agree with him – that Justices Rehnquist and O’Connor would have retired before the election if it were not for the legitimacy questions that people raised after Bush v. Gore.
*Where credit is due: Wretchard notes that “[t]he French may have performed a valuable service by admitting Arafat to a military hospital in Europe which will reduce the risk of imputing his death to Jewish poisoning, a rumor that has already made the rounds in the Middle East.”

Chutzpah Award

Stuart Buck passes along word of an Alice-in-Wonderland decision to prevent the Ohio Secretary of State from investigating what may well be a substantial number of voter registrations – on the grounds that the individuals can’t be notified of a hearing on the matter because they don’t live at the addresses they used to register! (Coincidentally, the decision is by a Clinton appointee who is the wife of one of Ohio’s leading plaintiffs’ attorneys – what are the odds of that?)

The Parallel

The folks over at Daily Kos have only just now figured out the obvious parallels between the Dred Scott decision’s reliance on non-textual substantive due process theory to elevate the rights of slaveholders to the status of a protected constitional right and Roe v. Wade‘s reliance on similar non-textual theories to elevate the rights of the mothers of unborn children to have an abortion to the status of a protected constitional right. (Link via Sullivan). Yes, anyone who pays attention to constitutional law debates understood the parallel Bush was trying to draw, however inartfully.

Lost Tribe

Wowsers. The Weekly Standard’s Joseph Bottum, fresh from his denunciations of Charles Ogletree, now charges no less a figure than Laurence Tribe with plaigarism over the incessant repetition of identical or similar phrases from Henry J. Abraham’s 1974 book Justices and Presidents in Tribe’s 1985 book God Save This Honorable Court – a popular work, with no footnotes, which Bottum suggests was rushed into print to provide intellectual ammunition to otherwise unarmed Senate Democrats bracing for attacks on Reagan appointees to the Supreme Court (an effort that bore fruit in the Bork hearings in 1987). Go read Bottum’s whole article and judge for yourself.
I actually worked for Tribe briefly my third year of law school, as part of an army of research assistants who summarized Supreme Court cases – every Supreme Court case for several recent years, between us – for a revision of Tribe’s American Constitutional Law treatise. Tribe isn’t the kind of guy to plaigarise out of a lack of ability to do independent work; as Bottum suggests, the trap for people like Tribe is more the temptation to be inhumanly prolific.

More Cracks In The Wall

Breaking news in the Valerie Plame case. DC District Judge Thomas Hogan yesterday unsealed this opinion (link opens a PDF file) requiring New York Times reporter Judith Miller to “appear before the grand jury to testify regarding alleged conversations she had with a specified Executive Branch official” and produce related documents; the court notes that Miller did not write an article but “spoke with one or more confidential sources regarding Ambassador Wilson’s article, ‘What I Didn’t Find in Africa.'” The court concluded that requiring Miller’s testimony was proper because “all available alternative means of obtaining the information have been exhausted, the testimony sought is necessary for the completion of the investigation, and the testimony sought is expected to constitute direct evidence of innocence or guilt.” (Emphasis added).
Meanwhile, the Washington Post reports that one of its own reporters, Walter Pincus, has indicated that his source has revealed his (or her) identity already:

A Washington Post reporter’s confidential source has revealed his or her identity to the special prosecutor conducting the CIA leak inquiry, a development that provides investigators with a fact they have been pursuing in the nearly year-long probe.
Post reporter Walter Pincus, who had been subpoenaed to testify to a grand jury in the case, instead gave a deposition yesterday in which he recounted his conversation with the source, whom he has previously identified as an “administration official.” Pincus said he did not name the source and agreed to be questioned only with the source’s approval.
“I understand that my source has already spoken to the special prosecutor about our conversation on July 12 [2003], and that the special prosecutor has dropped his demand that I reveal my source. Even so, I will not testify about his or her identity,” Pincus said in a prepared statement.
“The source has not discharged us from the confidentiality pledge,” said The Post’s executive editor, Leonard Downie Jr.

Shaking The Tree

Juan non-Volokh notes a slap on the wrist for plaigarism on the part of Harvard Law professor Charles Ogletree; apparently his research assistants slapped a chunk of some work from Jack Balkin into a book Ogletree was doing on the anniversary of Brown v. Board of Education. Joseph Bottum of The Weekly Standard is appalled that having your research assistants cobble together other people’s ideas on the central area of your expertise is considered scholarship.
Of course, most legal scholarship does depend to some extent on input from research assistants. But while Ogletree’s scholarship may well be subject to criticism, I would note that the man is nonetheless an asset to the Law School; he’s a well-liked and respected instructor, has run the clinical program, gets lots of media attention, and otherwise does things to improve both the Law School’s public profile and its attention to students. It may be that the problem is the expectation that all professors will be equally focused on research.
Anyway, for a walk down memory lane to September of 2001, here’s an amusing email exchange involving Ogletree’s efforts to get Jesse Jackson to speak at Harvard Law School, courtesy of his eccentric colleague Charles Nesson.

Following The Rules

Judge Richard Conway Casey of the Southern District of New York has joined judges in San Francisco and Nebraska in enjoining the partial-birth abortion ban, despite his own convictions on the issue:

While Casey concluded that such abortions are “gruesome, brutal, barbaric and uncivilized,” he said the law banning them is unconstitutional because it doesn’t contain an exception to protect the health of the mother. A previous U.S. Supreme Court ruling held that the procedure can be outlawed “only if there exists a medical consensus that there is no circumstance in which any women could potentially benefit from it,” Casey said.

Casey – an alum of both my college and my law firm, I should add – is a sort-of Clinton appointee; he was originally nominated by George H.W. Bush at the recommendation of Al D’Amato but had his nomination blocked by Senate Democrats. President Clinton renominated him in 1997, making him the first blind man appointed to the federal bench. I haven’t seen the opinion and I am, of course, disappointed with the result, but I have to respect the fact that Judge Casey went against his own expressed policy preferences in following what appears to be the Supreme Court’s lead on this issue. It’s unfortunate that that sort of judicial restraint tends to be a one-way street.


I’m a little late to this particular party (what else is new?), but you owe it to yourself to read Howard Bashman’s interview with Seventh Circuit Judge Frank Easterbrook in its entirety (and weep that this man does not sit on the Supreme Court). Don’t know how I missed this, but I actually didn’t know he was the brother of Gregg Easterbrook, the New Republic writer and Tuesday Morning Quarterback and one of the most entertaining politics/sports writers in the business. But which brother is more entertaining is debatable, as Judge Easterbrook has some great lines here. I’d emphasize that you should read the whole thing; here are some excerpts:
*How can you not be impressed by a guy who says, “I read science journals as well as economics journals and law reviews in my spare time”
*Easterbrook catches Bashman at one of his tricks in this feature: “although the interview is captioned ’20 Questions for the Appellate Judge,’ you propounded more than 40, with multiple interrogatory sentences per paragraph and compound inquiries per sentence. So a two-to-one ratio must be acceptable.”
*On judicial legitimacy:

Judges must explain not only why their views are sound but also why on debatable issues only the judges’ views count. Unless the Constitution encodes principles that can be applied using the approach of Marbury v. Madison, then the political resolution must prevail. (I expatiate on this in Abstraction and Authority, 59 U. Chi. L. Rev. 349 (1992).) Justices are fond of saying that all power must be checked, but where is the check on the Supreme Court’s? It lies in text, logic, and history.

Continue reading Easterbrook

Confidential Sources

The US District Court for the District of Columbia today released an opinion (dated July 20, 2004; link opens as PDF file) ordering Tim Russert and Time Magazine reporter Matthew Cooper to disclose information provided to them by confidential sources (presumably, the identities of individuals within the Bush Administration) in the Valerie Plame investigation. (The Washington Post has more here).
UPDATE: Here’s the bottom-line order (also a PDF) holding Cooper and Time in contempt but staying the contempt order pending an appeal to the DC Circuit.


Stuart Buck properly slams this Legal Times article for calling it a “bombshell” that a new biography reveals that Clarence Thomas doesn’t believe in stare decisis in constitutional cases, something that should have been well-known to any reader of his opinions. I rather think the author of the article overstates the case as well in calling stare decisis in constitutional cases “the key principle of our society’s rule of law.”
Interestingly, the book under discussion also sides with Thomas (at least partially) in the famous sexual harassment charge:

Near the end of the section on Thomas’ confirmation crisis, Foskett makes a bold statement: He believes Thomas.
“In the end Thomas and Hill remained the only two people who knew what transpired between them, and each told a different story,” Foskett writes, noting that the two had a social relationship of some form before they worked together. “Although it was plausible that Thomas said what Hill alleged, it seemed implausible that he said it all in the manner Hill described.
“Bullying a woman wasn’t in Thomas’s nature and ran contrary to how he conducted himself around others in a professional environment. And if the context wasn’t as Hill alleged, was it fair to turn private conduct into a political weapon to defeat his nomination?” Foskett asks.

Want Fries With That Lawsuit?

With a plaintiffs’ lawyer on the national ticket, the issue of tort reform – often promised by George W. Bush but never delivered – is back on the front burner. But, but – ask the defenders of the status quo – what’s so bad about seeking to hold corporations responsible when they cause grievous injuries?
Walter Olson has the daily grind on this; I spend more of my time beating back bogus or severely exaggerated lawsuits than I do blogging about them. But if you want an example that’s all too typical of the kind of criticism of corporate behavior that winds up getting turned into a big-money, resource-sucking lawsuit, look no further than this example:

McDonald’s Corp. was hit with a lawsuit Thursday accusing the fast-food giant of failing to reduce fat in the cooking oil used in its french fries and other foods.
Oak Brook, Ill.-based McDonald’s pledged in September 2002 to switch to a lower-fat oil by February, 2003.
The suit, filed in federal court on behalf of a California woman, says McDonald’s has not disclosed “to the public in an effective manner that it had not switched to a new, healthier cooking oil.”
The restaurant chain had announced it planned to cut the trans fat levels in its fried foods. But McDonald’s has delayed the plan, citing concerns of product quality and customer satisfaction.

You got a problem with McDonald’s french fries, which – I should add – are incredibly tasty and accordingly popular? Start a blog, issue a press release, open a competing chain. But no; somebody’s looking to strike attorney-fee gold here. And they’ll probably get paid, before this is all through.

Edmonds Gets Shut Down

Remember Sibel Dinez Edmonds, the disgruntled former FBI translator who aired sensational charges of disloyalty and deliberate incompetence at the FBI after September 11? Well, on Tuesday the US District Court for the District of Columbia dismissed her lawsuit, accepting an affidavit by John Ashcroft to the effect that resolution of her claims would require the disclosure of state secrets.
Edmonds’ charges are grave, but not tremendously credible. Here’s hoping that Congress has conducted or will conduct an adequate investigation, because her claims (probably properly) won’t get their day in court.

Fisking a Disclaimer

Jack Shafer fisks an email disclaimer. It’s not really a fair fight.
I see his point – disclaimers on email messages are hardly ironclad legal protection – but any careful lawyer will tell you that you’re better off trying. In some contexts, such as protection of the attorney-client privilege, courts will look at what steps you took to keep things confidential – and having a disclaimer, while hardly determinative, can’t hurt. Granted, it’s hard to argue that something a computer stamps on every outgoing message is an indicia of the privileged nature of the contents, but it’s at least a sign that you are notifying an inadvertent recipient that this could be sensitive stuff they should give back.

Clarett Runs Out Of Time

The United States Court of Appeals for the Second Circuit, which previously lifted the injunction ordering the NFL to permit Maurice Clarett to participate in the NFL Draft, has now rejected Clarett’s contention that the antitrust laws require the NFL to let him be eligible for the draft. The opinion is here, but it’s pretty dry reading unless you’re a labor antitrust lawyer (and believe me, that’s coming from someone who reads a lot of judicial opinions). Clarett has 90 days to file a petition with the United States Supreme Court, although unless he can convince the Court to issue an injunction providing for new emergency relief, the Court’s usual schedule won’t permit his appeal to be heard and decided until December at the earliest, and quite probably after the NFL season.

End of The Week Non-Baseball Links

An accumulation:
*Gen. Anthony Zinni has a new book out this summer, entitled “Battle Ready,” co-authored by Tom Clancy and chronicling Zinni’s career. Sure sounds like a guy auditioning for VP to me.
*Michael King has some thoughts on a recent Bill Cosby speech that didn’t go down so well with an assemblage of ‘civil rights leaders’.
*Kevin Drum gets in a huff about the Texas state controller ruling that Unitarian-Universalists aren’t a real religion. This is indeed pretty dumb, but only people on the Left could blame it on what evil cretins all Texans are. The problem here is one that’s common throughout government: idiotic decisions driven by fear of litigation, in this case fear that the absence of a clear standard will render the controller vulnerable in future litigation with genuine crackpots. Horror stories are common of government officials – especially at the public school level – overreacting to stuff, especially where religious liberties are concerned, out of misunderstanding of the applicable law coupled with fear of litigation. The fault, dear Brutus, lies not in the Texans but in our courts.
*Daniel Drezner comes down hard on education school programs.
*Dana at Note-It Posts has some thoughts on abortion (via NGD).
*The MinuteMan comes down real hard on Brad Pitt’s Troy.
*Pejman seeks to correct the common misperception that “being a law student is like being a Jew during the Inquisition.” He has and links to some good advice; I’d heartily second the idea that law school is still less work than having a job (personally, I found that the stress of job-hunting was actually the main anxiety-builder in law school) and that it’s just crucial to spend time with people who are not law students.
*Those swift boat vets just won’t let up on Kerry.
*Venomous Kate is a good place to start for strange theories about Nicholas Berg (link via An Unsealed Room). I just want to know if this Zelig of the Terror War was related to Moe Berg, catcher and spy.
*Speaking of Berg, Michele tears into his father’s fatuous editorial for the Guardian, the left-wing London rag. Read the whole thing. It’s the Guardian that should really be ashamed for printing this drivel. I love this line, which is one of the best things I think I’ve ever read: “let me tell you, Mr. Berg – if George Bush had looked into your son’s eyes, it wouldn’t be while he was slicing his head off.” A sample of the foolishness:

[S]tart honouring and respecting every human’s need to live free and autonomously, to truly respect the sovereignty of every state. To stop making up rules by which others must live and then separate rules for ourselves.

Well, we can respect other humans, or we can respect sovereign states. We can’t have both, not when other sovereign states are run with not the slightest regard for our fellow humans or for us.
Likewise, we can expect others to live up to the same rules we do – or we can accept that they don’t. Again, we’ve gotta choose between the two. It’s astounding how often the Left looks at homicidal dictatorships and assumes that this is how their subjects freely choose to live. If you start with the (rather indisputable) premise that the Saddams and the Zarqawis of the world wish to impose their will on a population that does not want to live that way, all the talk in the world about respecting how other people choose to live falls away to nonsense.
*Anything that gets William Donahue to blast the Vatican is pretty misguided. That’s like Terry McAuliffe ripping Clinton.
*The NY Daily News’ headline from Rudy Giuliani’s testimony before the increasingly farcical September 11 commission: “We did all we could” (Underlining in the print headline on the front page). But that’s not what he said; what Rudy said, which was much wiser and encompassed the failures of 9/11 and why we shouldn’t rush to place blame for them, was “we did everything we could think of … to protect the city.” Ponder that one. We, as a nation, and our governments, federal, state and city, did not do everything we could. We did do, as Rudy said, everything we could think of. The problem was a collective failure of imagination.

Prediction Holding Steady

With the news that the Attorneys General of Connecticut and Rhode Island are following Elliot Spitzer in deciding that they are obligated to recognize same-sex marriages from Massachusetts, my prediction from February looks better every day:

Gay marriage will become the law of the land without any state legislature ever having voted it into law, without a majority of either house of Congress ever having voted in favor of gay marriage, without any statewide popular referendum ever having voted in favor of gay marriage, and without any state or federal constitutional provision ever having explicitly authorized it.

As I’ve noted before, the way in which this is being done is what I find most problematic. It’s one thing for democratically elected legislatures to enter into a radical social experiment like recognizing same-sex marriage; if there are unintended consequences or things just don’t seem to be working out, you can change. But by judicially imposing a no-compromises, all-or-nothing, one-size-fits-all solution and having it enforced administratively, the proponents of same-sex marriage are giving the people no room for compromise, balance, or reflection. That’s no way to run a democracy.

Hey, I Won That Prize Already!

So, from Wonkette we learn that one of the networks is doing a “reality” show where the prize is a job at a law firm. Or, as the notice calls it, “YOUR CHANCE TO WIN A LUCRATIVE POSITION WITH A PRETIGIOUS LAW FIRM!” As one Wonkette reader (well, me, actually, but I can still quote myself) emailed her, “Presumably, if the show is anything like real law practice, you get extra points for pointing out that ‘PRETIGIOUS’ is not a word.”
The contest: “Compete in mock trials/courtroom showdowns on prime-time TV.” I’m guessing they only show the trial, not the preparation . . . my question is, what sort of “PRETIGIOUS LAW FIRM” wants to tell its clients it is handing out jobs on the basis of a TV show? I’d guess a plaintiffs’ firm that does a lot of trial work, since the show appears to be testing trial skills rather than some of the less visual lawyering skills.

Friends Like These

Around the blawgosphere and elsewhere . . .
*Eugene Volokh notes that the metamorphosis of amici curiae from friends of the court to friends of the parties can be traced to the early- to mid-19th century and the rise of written as opposed to oral advocacy.
*If you haven’t noticed yet, the indefatigable Howard Bashman has moved to a new address at https://legalaffairs.org/howappealing/; like Kevin Drum, he’s now the opening act for the online home of a magazine, in this case Legal Affairs. Speaking of which, Legal Affairs has a good writeup on New York’s Martin Act, with some useful historical detail as well as some anonymous potshots at New York Attorney General Eliot Spitzer.
*California gets tough on unfounded lawsuits, as a California Supreme Court opinion (authored by DC Circuit nominee Janice Rogers Brown) concludes that a lawyer can be sued for malicious prosecution for continuing to pursue a lawsuit that appeared to have arguable merit when filed but was later discovered to be frivolous:

“Continuing an action one discovers to be baseless harms the defendant and burdens the court system just as much as initiating an action known to be baseless from the outset,” Justice Janice Rogers Brown wrote. “As the court of appeal in this case observed, ‘It makes little sense to hold attorneys accountable for their knowledge when they file a lawsuit, but not for their knowledge the next day.'”

Ironically enough, the case involved (stay with me here) a lawyer suing his former client’s lawyer for malicious prosection in bringing an action on behalf of the former client against her former lawyer. For his actions in yet another lawsuit.

Lileks and More Lileks

Lileks has been on a ferocious roll lately. Tuesday’s Bleat looks at Claudia Rossett’s NRO piece drawing up a roadmap of the ties between the UN’s oil-for-food boondoggle for the benefit of the long-suffering Iraqi people Saddam Hussein and some secretive financial institutions that have been linked to Al Qaeda. Rossett’s piece is far from definitive, but it’s cautious and apparently well-sourced, and raises some real issues about whether Saddam’s dealings with shady Al Qaeda-linked financiers and his evident opportunity to funnel them money undetected was just coincidence. Among other things, Lileks notes the problem this could later present for the Democrats and their standard-bearer:

[W]hat does this do for John Kerry�s credibility? He stated on Sunday that Saddam had no connections to Al-Qaeda, an assertion that has now taken on the mantle of Absolute Fact.

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

Continue reading Lileks and More Lileks

You Are Being Watched

When I first noted Mark Cuban’s weblog three weeks ago, I noted that one of his entries at the time was discussing his investment in search engine company Mamma.com, and that “the fact that he’s talking here about investments about which he’s making SEC filings . . . could get him in a whole lot more trouble than an NBA fine.” Now, as day follows night, comes a CNN report that the SEC “launched an informal probe concerning recent activity in [Mamma.com] stock, which has almost quadrupled over the past month in highly volatile trading,” with CNN specifically noting that the stock

closed at $15.66 Monday on Nasdaq, up from its $4 price range at the beginning of March.
It began its spike in the two days after the company said it swung to a quarterly profit as revenue more than doubled, rising to a high of $15.80 per share March 3.
After easing back gradually to close at $7.86 on March 15 the stock again jumped more than 24 percent March 16 after Mark Cuban, who owns the Dallas Mavericks professional basketball team, said he owned a 6.3 percent stake in the company.

(Emphasis added). Now, investigations like this are often opened without there necessarily having been any wrongdoing by anyone, and I’m not saying that Cuban did or did not do anything improper here (I’m particularly hesitant to comment on the merits because my law firm does a lot of work in this area, and for all I know we may be representing somebody already in this particular probe). But my initial point remains: if you blog about your investments in a way that could even arguably be construed as encouraging others to make investment decisions, you could wind up blogging yourself into some trouble.

Appealing Advice

This Myron Moskovitz column has some good basic advice for lawyers working on an appeal, something I’ve done a lot of recently. And this nugget, from Howard Bashman’s interview with Judge Ruggero J. Aldisert of the U.S. Court of Appeals for the Third Circuit, should make a particular impression as far as the need for clarity and concision:

When I became a member of the Third Circuit in 1968 each active judge was responsible for deciding 90 appeals a year. The national average was 93. That was “Then.”
But “Now” in the Third Circuit, each active judge was responsible for deciding 381 cases in 2002, 327 in 2001, 330 in 2000; and 381 in 1997. That’s fully briefed cases on the merits. The national average in 2002 was 485 per active judge, up from 429 in 1997. Divide 485 cases by 255 working days a year and you start to get the message I have been preaching for years — to no avail. One-A-Day is a great name for vitamins, but I doubt that it’s equally great in describing the caseload for U.S. Circuit judges.
You must understand that the case you file with us moves along an assembly line of over one case every 4.9 hours. Think about it. That’s the time allotted to your case. In that time, the judge must read the briefs, research the law, perhaps hear argument, conference with colleagues, make a decision, write an opinion or order, examine draft opinions written by other judges, and at the same time study motions in other cases or petitions for rehearing. And, of course, travel to the court, check into the hotel. Answer the phone. One fully briefed case for decision every 4.9 hours.
All of this in the highest court to which a federal litigant has a right to take an appeal. Today there is no quiet library time. The circuit judge is on a treadmill, and your case comes to him or her in the midst of a gallop. No time to taste the morsels you dish up for a leisurely dinner here — a fast-food menu is all that’s available.

(Emphasis added).