The Invisible Foot In Vermont

This Fox News report notes the heavy schedule of debates, and lack of spending on TV ads, in the Vermont gubernatorial race. What seems missing, to me, is any mention of Act 64, Vermont’s stringent new campaign finance law, which was upheld by the Second Circuit in August. (This NRO analysis boldly predicted a reversal by the Supreme Court, although near as I can tell, no petition has been filed as yet). Are they not in effect yet this campaign cycle?

BREAKING NEWS

Supreme Court opens its 2002 term denying cert in scores of cases, including the New Jersey election case (click here for the link to the order list, a 94-page PDF file). But the story’s not over: there were potential standing and jurisdiction problems with the appeal from the NJ Supreme Court — but a new federal lawsuit in NJ, brought by people who voted already, may give the courts the evidentiary record to make a definitive ruling on the Uniformed and Overseas Citizens Absentee Voting Act claim — and better yet, from the Supreme Court’s perspective, to let federal courts decide those issues without the High Court’s involvement, rather than replay another showdown with a state Supreme Court.

What Choices Count In New Jersey?

The usual suspects – Instapundit, Kaus, Sullivan (links on my left) – lead the roundup on the New Jersey Supreme Court’s decision that “51 days” doesn’t mean “51 days” if it’s applied to a candidate from one of the major parties (at least the court had the decency to pretend that its ruling would apply to Republicans).
Question 1: What happens if some voter who got the original ballots (let’s say, for example, a Patterson native serving in Kabul or Qatar) sends it back and doesn’t have time to look at the new ballot? Or what if he gets confused or concerned about his vote counting, and sends back both? Does one or both votes count, if the election is really close? Does it matter who he voted for? Will a vote for the Torch be counted for Lautenberg? (What if some serviceman wanted to reward the Torch for his position – whatever it is – on the war? Are we now back to not caring what the soldiers think about that? That was fast.)
Question 2: Is it now too late for some third-party candidate (i.e., not the Republicans) to intervene to appeal this decision to the Supreme Court (or file a federal action, which would probably face collateral estoppel problems)? Professor Eugene Volokh (as well as Kaus and Sullivan) attacks the decision’s assumption that the dispositive issue is whether the candidate dropping off the ballot leaves any “voter choice,” which therefore would not apply if, say, Jesse Ventura or Ross Perot or Ralph Nader or Pat Buchanan or Bernie Sanders or Jim Jeffords dropped off the ballot (hey, do Vermont voters have choices?). A non-party generally has a real hard time intervening, but this one went straight to the Supreme Court so fast they may have had little chance to get organized. I don’t have my thinking cap on that one, but if you could get around the procedural issue, it’s a heck of an angle and the US Supreme Court (liberals included) would likely be much more intrigued than by some GOP protest.

Cert Watching

Supreme Court’s term opens less than a week from today, and I’m already watching for cert petitions likely to be granted or denied early next week. Already, the 2002-03 term looks chock full of cases likely to have a big impact on businesses and civil litigation.

McDermott

Upon hearing that Congressman James McDermott has been in Baghdad criticizing the Bush Administration and lauding the need to place our trust in our enemies, some of you may be asking, “McDermott . . . that name sounds familiar, doesn’t it?” Here’s why: you may remember McDermott as the guy who had to resign from the House Ethics committee, and was sued by Congressman John Boehner, for publishing an illegal tape recording of an internal telephone conference between House Republicans. (In a postscript, the lawsuit was ultimately rejected after the Supreme Court, in Bartnicki v. Vopper, found the provisions of the statute barring disclosures derived from illegal wiretaps to be overbroad).

Gray Davis SLAPPdown

I haven’t seen this anywhere else – a California court yesterday vacated an injunction issued by a lower court and threw out a lawsuit filed by Gray Davis’ campaign committee against the American Taxpayers’ Alliance, which had alleged that ATA violated California’s campaign finance laws by running an advertisement that “has no other purpose than to denigrate Governor Davis.” What kind of country would let just anyone denigrate the Governor, on television no less? The court found that the lawsuit ran afoul of a California statute prohibiting “SLAPP” (Strategic Lawsuits Against Public Participation”) and the First Amendment because the ad, while critical of The Governor, did not expressly advocate his defeat in an election. (Of course, campaign finance ‘reformers’ may take heart from the court’s distinction of other cases on the grounds that the ad ran in June 2001 when “no election was imminent . . . [t]he primary and general gubernatorial elections in 2002 were 8 months and 18 months away, respectively.”

Justice Douglas’ Fears

Speaking of “Bugs” Harkin, the story brings back memories of one of the more bizarre Supreme Court opinions I’ve ever read – one that speaks both to the climate of hysteria in the early 1970s and to Justice Douglas’ paranoia: his opinion dissenting from the denial of certiorari in Heutsche v. United States, which includes the following passage:
Mr. Justice Holmes in Olmstead v. United States, 277 U.S. 438, 470 (dissenting), called wire-tapping ‘dirty business.’ That decision was rendered in 1928. Since that time ‘dirty business’ has become the apt phrase describing the regime under which we now live. . . . We who live in the District of Columbia know that electronic surveillance is commonplace. I am indeed morally certain that the Conference Room of this Court has been ‘bugged’; and President Johnson during his term in the White House asserted to me that even his phone was tapped.
We deal with a disease that has permeated our society. . . . The conversation of one’s lawyer over the telephone may be as helpful to Big Brother as the conversation of the accused herself. . . . If electronic surveillance were strictly employed by the Executive Branch, we might be chary in enlarging its duties as requested here. But since we live in a regime where the ‘dirty business’ of wiretapping runs rampant, I would apply the statute liberally to check the disease which almost every newspaper tells us has poisoned out body politic.
We are told that in this case the applicant’s lawyers did discuss her case with persons other than herself over the telephone. Is Big Brother to have a ringside seat where he can listen to all the confidences of lawyers who defend an accused? If so, what happens to the valued right of counsel protected by the Sixth Amendment?
* * *
In a country where the Government overhears over 500,000 conversations a year pursuant to court authorized wiretaps alone, it is difficult to gainsay anyone’s fear of the intrusion of Big Brother’s ear. The daily news brings fresh evidence to make a reality of Chief Justice Warren’s warning that the ‘fantastic advances in the field of electronic communication constitute a great danger to the privacy of the individual. . . .’ In such circumstances the Government’s claim that it should not be put to the task of searching its files for evidence of specific surveillance cannot be treated lightly. I take cognizance of the fact that the mass of aggregate data on the citizenry yielded in this Orwellian era may indeed make the task a difficult one.
(footnotes omitted)

Campaign Finance Complexity

Speaking of campaign finance laws, Clinton-era figure Maria Hsia is asking the US Supreme Court to throw out her false statement conviction on the grounds that she didn’t know the campaign finance laws she was accused of violating. The Solicitor General’s office says that they don’t have to prove that and the Court shouldn’t take the case. The Court’s docket sheet says the petition will be reviewed (to see if the Court takes it) at the end of September. Granted that the statute at issue isn’t the only way to skin this prosecutorial cat, such a requirement, if adopted, would underline the enforcement problem with having insanely complicated laws in the first place. A simpler scheme would say, “Congress shall make no law . . . abridging the freedom of speech . . . ”

Investor Responsibility

The Second Circuit throws out a $111.5 million (plus interest) jury verdict and strikes a blow for individual responsibility, holding that a billionaire currency trader couldn’t sue his brokers for negligence over trades he authorized on the theory that he should have been given more warnings. One of the people whose advice was at issue in the case was former Bear Stearns chief economist Lawrence Kudlow, now the chief financial writer for National Review Online and co-host of CNBC’s Kudlow & Cramer.

No Claim on Harry Potter

Harry Potter has been cleared of copyright infringement! It gets better – an author who sued J.K. Rowling for copying her ideas (principally, a book using the term “muggles”) has been sanctioned (to the tune of a $50,000 fine) by a federal court in New York. “The judge noted seven instances of false evidence, including an advertisement that was modified to include a trademark symbol, altered paragraphs that allegedly refer to a book titled “Larry Potter and His Best Friend Lilly,” and forged sales invoices.”

Tobacco War Profiteers

Dave Barry is back to one of his favorite targets, the War on Tobacco:
“[L]et’s review how the War On Tobacco works. The underlying principle, of course, is: Tobacco Is Bad. It kills many people, and it causes many others to smell like ashtrays in a poorly janitored bus station.
So a while ago, politicians from a bunch of states were scratching their heads, trying to figure out what to do about the tobacco problem. One option, of course, was to say: ”Hey, if people want to be stupid, it’s none of our business.” But of course that was out of the question. Politicians believe EVERYTHING is their business, which is why — to pick one of many examples — most states have elaborate regulations governing who may, and who may not, give manicures.
Another option was to simply make selling cigarettes illegal, just like other evil activities, such as selling heroin, or giving unlicensed manicures, or operating lotteries (except, of course, for lotteries operated by states). But the politicians immediately saw a major flaw with this approach: It did not provide any way for money to be funneled to politicians.
And so they went with option three, which was to file lawsuits against the tobacco companies. The underlying moral principle of these lawsuits was: “You are knowingly selling a product that kills tens of thousands of our citizens each year. We want a piece of that action!””

Shine On You . . .

NY Daily News picks up a bizarre and explosive allegation. Justice Marylin Diamond, a New York State Supreme Court justice (in NY, that’s the primary trial court), has had 24-hour police protection for 3 years due to threatening letters. The News claims that a law enforcement source says that a ‘profiler’ has analyzed the letters and concluded that Justice Diamond wrote them herself. You should read the story yourself; as a lawyer practicing in Manhattan, I’m not going to characterize it any further myself.

Federalism’s Edge, Part II

Following up on my point about Federalism’s Edge — the tipping point at which a state’s assertion of power threatens other states’ autonomy — take a look at this Michael Barone piece on the Supreme Court’s upcoming look at punitive damage awards, as well as another case trying to swim upstream to get certiorari granted (in any individual civil case, the odds are extremely long, in the 100-to-1 neighborhood if I remember right) to prevent a West Virginia court from using what Barone describes as a coercive procedure to force settlement of nationwide asbestos claims. The main federalism aspect here, which seems like one that may intrigue the current Court if it wishes to make more explicit the extraterritoriality analysis of BMW v. Gore, is the notion that a state is overreaching if it allows punitive awards calculated on the basis of a defendant’s nationwide/worldwide operations rather than its operations in the state.
If you think about it, this was also at least a subtext in one of the Warren Court’s most famous decisions, New York Times v. Sullivan, the case that imposed a constitutional requirement that a libel suit against a public figure must show “malice” (generally, knowledge of the falsity of the libelous statement). As any First Amendment afficionado can tell you, one of the egregious things about the Sullivan case was that an Alabama jury (like the one in BMW v. Gore) imposed liability exceeding the Times’ operating revenues from sales in Alabama. It was this disproportion that presented the factual setting of Sullivan as being so threatening to free expression: the idea that a national newspaper could be silenced from speaking on the civil rights movement by a single Southern state. It was, in short, a state action that passed over Federalism’s Edge.

Federalism’s Edge, Part I

FEDERALISM is often thought of — principally by its critics on the Left, but by some fairly zealous conservatives as well — as synonymous with “States’ Rights” as against a powerful federal government. That’s a big part of the picture, of course, but it’s not the whole story. There’s also what I call “Federalism’s Edge” – the right of the states to be free of overweening influence by other state governments that seek to impose their public policies on the rest of the nation. After all, a distant and intrusive setter of national policy is no less obnoxious if it’s set in Montgomery’ Alabama than inside the Beltway. More so, since at least there are SOME mechanisms for controlling Washington.
Federalism’s Edge, as much as States’ Rights, has been one of the hottest issues of the past decade or so. Whatever you think of the merits, can one state cram gay marriage down the throats of the country? Can one state’s Supreme Court decide who gets to be President of the rest of us? Can one or a handful of State Attorneys General, or juries in a few tiny jurisdictions, prescribe codes of conduct for nationwide businesses?
Liberals have long bemoaned what they see as the opposite problem, the “race to the bottom” where states compete to LOWER regulatory burdens, although at least there there’s market forces at work rather than ironclad mandates. This is where Jonathan Chait’s assault on Delaware, after the fashion of Jonah Goldberg’s French-bashing columns, comes in. Personally, from my experience as a business and securities litigator, I think Chait doesn’t know much about Delaware’s court system if he thinks it’s apt to be lax in imposing liability on corporations and their management. But there’s an interesting point here: is it inconsistent with Our Federalism for one state to create conditions for what is effectively a national corporate governance regime? And does it say something that corporations seem to WANT the efficiency and stability provided by such a regime?
PART II of this comment to follow later.

Article V

You know, I touched on this in my 8/23 Atkins post below, but using a “consensus” of counting state laws to determine what is constitutionally acceptable strikes me as a flagrant violation of the spirit (to say nothing of the letter) of Article V of the Constitution, which sets out very rigorous requirements for state legislatures to amend the constitution. Make no mistake: if enough state legislatures (2/3 of them) demand a Convention for the purposes of changing the Eighth Amendment, and if enough state legislatures (3/4 of them) further ratify the resulting work of such a Convention (bearing in mind that, in modern practice, no such convention is called as long as you have enough ratifications), presto! The Constitution prohibits executing people whose names begin with the letter “M”, or whatever else those states may desire. To use an “emerging consensus” based on differing statutes passed in less than that number of states, and on the basis of statutes that were not debated with the gravity of a (generally permanent) constitutional amendment, is a direct attack on the Article V procedures.

First Amendment Exclusionary Rules

Apparently the California courts are looking into whether you have a First Amendment right to link to websites that facilitate the theft of intellectual property, and the business community is in an uproar. This subject fascinates me, although I haven’t dealt with it much in practice; I did my third year law school paper on “First Amendment Exclusionary Rules,” and they come up all the time. We have lots of rules (going back to common law causes of action for fraud and defamation) that impose restrictions on speech that is demonstrably false. But there are also a lot of areas of the law, nearly all of them fraught with uncertainty, that govern restrictions on truthful speech that conveys information that was obtained through some sort of illegality, from trade secret law to military intelligence to inside information about stocks. Our speech is not so free as we pretend, and in many cases there are good reasons why.

Atkins Away

It’s easy to make fun of the Supreme Court for relying on such ephemera as public opinion polls and “international opinion” in construing the Constitution – recall that when the Constitution was written, “international opinion” (which then, as now, meant “Europe”) was very, very much against democracy and the separation of powers, while barely a decade later the Continent was awash in the bloody tide of the guillotine – but what to do about it? Well, to stop this type of thing in its tracks, Congress could pass a statute simply stating that no court shall consider certain things in construing the meaning of the Constitution or federal statutes – such things to at least include public opinion polls or any “consensus” from outside our borders or that depends on, say, legislative enactments in a smaller number of the States than is required to amend the Constitution’s text in Article V. (You’d have to draw the thing more carefully than I’m doing now, but you get the idea).
Of course, the Atkins decision itself may likewise be easy to evade, since in at least some circumstances it appears to give state legislatures the wiggle room either to define who is “retarded” or easier yet to turn the question over to juries, who might yet be able to find that the nature of the crime (including what the Federal Sentencing Guidelines refer to as “more than minimal planning”) is evidence that the perp is not retarded. Since the Court has already held for some time that juries must consider retardation as a mitigating factor at sentencing, this is not a real sea change. In addition, because the sole focus is on the “mentally retarded criminal,” the decision does not appear to bar executing people like Rickey Ray Rector, the guy Clinton fried during the 1992 campaign, because Rector was not retarded at the time of the crime (he apparently lost a lot of brain when he shot himself in the head following the crime).

Right To Choose At Stake In Presidential Election

From an email I sent to friends on November 20, 2000:
The Democratic Party now says all pregnant chads must be delivered; all chad pregnancies must be carried to term. I say every chad must be a wanted chad. If a voter has exercised his or her right to control when and whether to deliver the chad, the states should have no authority to force them to be delivered. It is fundamental to the scheme of ordered liberty that the right to decisions made in the privacy of the voting booth stay there. Liberty finds no refuge in a recount of doubt.