“But The Internet Said She Was 18!”

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

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

Trampled Under Foot

Two thoughts on the Valley Stream Wal-Mart trampling story.
1. You need one seriously unruly crowd – at 5am! – to trample to death a man who is 6’5″ and weighs 270 pounds.
2. Somehow, it seems there’s a rush here – obviously by lawyers looking for deep pockets – to blame absolutely everybody except the people who trampled a guy to death to go shopping, and apparently did so only because he was in the way of a pregnant woman they were in the process of trampling. I mean, Wal-Mart is a store, not a zoo. It shouldn’t have to anticipate people acting like this.

This Week In Weed

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

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

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

HOLLAND is pioneering cannabis plantations to supply the drug to coffee shops in a bid to cut out criminal gangs.
Dozens of Dutch mayors voted for the scheme at a “weed summit” to discuss how to enforce their relaxed drug laws.
Cannabis can be legally sold at licensed shops and people can carry up to five grams without prosecution. But cultivation and dealing is outlawed, which has created an illicit two billion Euro …annual trade. The plantations would supply cannabis legally.

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

Gov. Sarah Palin Cleared In “Tasergate”

Ah, the death of a talking point…we have news from Alaska that the investigator for the State Personnel Board has issued a report – contrary to the findings of the Legislature’s independent investigator – and concluded that Gov. Palin did not abuse her authority in the case of State Trooper Michael Wooten, the controversy over “Tasergate” or, if you prefer, “Troopergate.”
Let’s do a Q&A on the 263-page Branchflower report, which I read from cover to cover, and on the 125-page Petumenos report, which I have only yet had the chance to skim. I may return to this after the election when we have more time to walk through the evidence (win or lose tomorrow, Gov. Palin will continue to be an important figure in national politics).
First, the Branchflower report:
(1) A report was issued by one man, Stephen Branchflower.
(2) Branchflower was handpicked, and his investigation directed, by Hollis French – an Obama supporter who has a personal axe to grind in the facts under investigation. Branchflower, French and Walt Monegan, the chief witness in the case, all appear to go way back together in Alaska law enforcement circles.
(3) The only wrongdoing Branchflower could find was under a general statute that says public officials may not engage in an “effort to benefit a personal … interest through official action” – he did not find a violation of any specific statute, rule or regulation. To conclude that Gov. Palin’s actions were in her personal interest rather than the best interests of the Alaskan people and their government, you must believe that her actions were actually wrong.
(4) In order to find that Gov. Palin’s actions were actually wrong, Democrats must be willing to argue that an irresponsible and abusive state trooper who made death threats against Gov. Palin’s father and menaced her sister in her hearing and used a Taser on a 10-year-old is a good person to have wielding armed authority on behalf of the State of Alaska. Because otherwise they are making a technical legal argument that she did the right thing in the wrong way – yet they don’t have any technical violation to hang their hats on.
By contrast, the Personnel Board investigator, Timothy Petumenos, found no impropriety and concluded, regarding Branchflower’s report:

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

Read on.

Continue reading Gov. Sarah Palin Cleared In “Tasergate”

BUSINESS: Unmarked To Market

An SEC Press Release issued today offers a clarification that may relieve institutions that feel compelled to use “mark to market” or “fair value” accounting for debt securities as to which there is no liquid market (I’ll try to just offer a neutral description here; other people at my law firm will no doubt be offering our clients more detailed advice on this topic). This is just one aspect of the credit crisis, but MTM has acted as something of an accelerant for the financial troubles of institutions holding mortgage-backed securities for which there is no active market. Some people, mainly on the Right, have argued that suspending MTM would give needed breathing space and eliminate the need for Treasury to step in as market maker and buy up MBS, while others have argued that loosening the accounting rules just conceals the problem and delays the day of reckoning.
Anyway, today’s statement offers at least some clarification that companies need not be rigidly tied in to market prices where there’s no market:

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

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

SOX Survives

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

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

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

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

Presumably, the plaintiffs will petition the Supreme Court for cert; it remains to be seen if the Court takes the case.
UPDATE: The plaintiffs say they will either petition for cert or for rehearing en banc by the full DC Circuit.

Full Disclosure

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

Continue reading Full Disclosure

News Flash: Liberal Judging Not Popular

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

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

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

Continue reading News Flash: Liberal Judging Not Popular

A Good Day For The First Amendment, Too

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

Continue reading A Good Day For The First Amendment, Too

Waiting For Heller

The Supreme Court will hand down the DC gun control/Second Amendment case, DC v. Heller, this morning around 10am. I won’t be covering the opinion when it comes down, but SCOTUSBlog will have the first breaking reports, and my RedState colleagues will be looking at the opinion and its political ramifications. (I had looked at the tea-leaf-reading predictions here and here).
UPDATE: Note that Barack Obama is now rendering his prior position on the case inoperative, although it remains to be seen if he will similarly flee from his long record of support for drastic gun-control measures, and of course, as with yesterday’s death penalty decision, don’t listen to what Obama says, watch what the kind of judges he would appoint actually do.

5-4 Supreme Court: Raping A Child Not Really As Bad As Democracy

The Supreme Court today, in Kennedy v. Louisiana, found that the Eighth Amendment bars the death sentence of a man who brutally raped his 8-year-old stepdaughter, causing traumatic physical injury (decency doesn’t permit quoting here the Court’s discussion of the facts on p. 2 of its opinion), to say nothing of the emotional trauma. The decision was 5-4, with Justice Kennedy writing the opinion joined by the Court’s liberal bloc. The decision is significant in three major main ways:
1. It essentially bars the death penalty in all cases that do not result in the death of the victim, with the exception of “offenses against the State.”
2. It explicitly confirms that the Court’s reliance on an ‘evolving national consensus’ against the death penalty in specified circumstances is truly a one-way street; the Court frankly admits that unless there is strong evidence of a national consensus favoring the death penalty for a particular crime at a particular time, the Court will permanently bar every state from using the democratic process to impose such a penalty at any time in the future.
3. It rejects the notion that state legislatures are competent to come up with any sort of safeguards, a conclusion much in line with the Court’s recent view that Congress is incapable of determining procedures for the handling of alleged enemy combatants. The assertion of judicial supremacy inherent in this conclusion is staggering.

Continue reading 5-4 Supreme Court: Raping A Child Not Really As Bad As Democracy

Guantanamo and A Tale of Two Campaigns

As Chief Justice Roberts pointed out, the core issue in today’s detainee decision is the struggle between the power of Congress and the power of the courts: it’s not whether the U.S. has the right to detain enemy combatants, and not whether non-U.S. citizen detainees have access to legal process to challenge their detention, but simply whether Congress has a right to define and limit those procedures (as it did by statute in 2005 and 2006), or whether the Supreme Court has absolute authority to require that all procedural rules be determined by the district courts and reviewed by the Supreme Court. For this President and his successor, however, the bottom-line question remains what to do with enemy combatants: continue to hold them at Guantanamo or some similar facility subject to the new procedures, go back to Congress for yet another set of rules, or perhaps ship more detainees off to other countries to handle in their own way.
In a serious world, we’d expect presidential candidates to present competing visions of how to answer both sets of questions. But the responses of the McCain and Obama campaigns to today’s decision shows that each is too busy struggling in their own ways with the politics of this issue to address it meaningfully.
Let’s start by noting the fact that the two statutes struck down by the Court today were passed by the U.S. Senate, in which both candidates sit. The Detainee Treatment Act of 2005, a rider to military appropriations, among other things provided a set of procedures, and limited judicial review, for detainees challenging their enemy combatant status. It passed 90-9, with both McCain and Obama voting in favor. The Court today held “those procedures are not an adequate and effective substitute for habeas corpus.” The Military Commissions Act of 2006 specifically precluded the DTA’s procedures from being evaded by recourse to habeas corpus review, and eliminated the Supreme Court’s jurisdiction over such cases; it passed 65-34, with McCain voting in favor and Obama voting against. The Court held today that the MCA “operates as an unconstitutional suspension of the writ.”
How did the candidates respond to the decision? First, the McCain response, as related by Michael Goldfarb at the McCain Report (the excellent official campaign blog):

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

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

The rest of Goldfarb’s post smacks Obama for voting against Roberts. You can tell that Goldfarb would like to go harder after the Court’s decision, but the campaign and the candidate are constrained by McCain’s own Gitmo-bashing, and so while McCain’s response sides with Roberts and the statutes McCain voted for, it has to be somewhat muted on the pragmatic consequences of the decision because McCain isn’t really clear on what he himself would do with those detainees.
Obama, meanwhile, is off in his own little world, unconstrained by the facts but therefore unwilling or unable to confront McCain over McCain’s actual position:

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

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

Unintended Consequences

I don’t have nearly the time and space here to do justice to today’s opinions on enemy combatants, starting with the decision in Boumediene v. Bush, extending habeas corpus to foreign nationals detained at Guantanamo (which I partially summarized over at RedState as it broke, before I had to stop to deal with a decision of the Court in which I was directly involved). I’d highly recommend the scathing dissents of Chief Justice Roberts, who explains why the Court should not have decided that the Congressionally enacted procedures provided to detainees were inadequate without either (1) seeing how those procedures worked in practice or (2) explaining in any detail how the procedures required by the Court would be different, and Justice Scalia, who explains why the Court got the basic question of the historical scope of habeas wrong and illustrates the lethal consequences of today’s decision.
But I’d like to highlight two points from today’s opinions that illustrate some unintended consequences, and why in the end they may not accomplish the results claimed for them. Specifically, today’s decisions will hasten the process of handing off detainees to foreign governments while protracting rather than accelerating the legal process for determining the status of detainees.
The first comes from the Court’s less-publicized unanimous decision today in Munaf v. Geren, which held that while habeas extends to U.S. citizens detained by the Multinational Force-Iraq, the writ cannot be used to prevent the U.S. from transferring U.S. citizen detainees to the Iraqi government if it has warrants for their arrest for, essentially, being enemy combatants:

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

(Presumably, the same rule would apply to non-citizens). This, despite the fact that the Iraqi justice system is obviously not precisely equivalent to our own in terms of procedural protections. The Court also rejected the idea that a U.S. court could prevent transfer of the prisoners based on their claim that they might be tortured by the Iraqis, although the Court did note that there was not a record of a likelihood of torture, and three Justices would have left the door open for courts to review “whether substantive due process bars the Government from consigning its own people to torture.”
What does this mean? Well, it means that detainees at Guantanamo could be transferred out of the reach of the new habeas process if the governments of Afghanistan, Iraq or other allies (some of whom have been known to swiftly behead such people upon their transfer) request that we do so. In other words, if the new procedures prove onerous in practice or run the risk of revealing classified information to our enemies, the unintended consequence of the decision to strike down procedures enacted by the U.S. Congress may be instead to substitute procedures provided by the Afghan or Iraqi governments. (Can you say, “rendition,” boys and girls? I knew you could!) Even five Justices of the U.S. Supreme Court cannot repeal the law of unintended consequences.
The second point, on the question of swift justice, is explained by the Chief Justice in Boumediene:

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

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

Commerce? We’re Students!

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

In order to state a claim under the Sherman Act there must be a commercial activity implicated….the appropriate inquiry is whether the rule itself is commercial, not whether the entity promulgating the rule is commercial…. Although the question before us is whether the
enforcement activities of NCAA violate the Sherman Act and not a particular rule, the analysis must focus on the enforcement action itself and not NCAA as a commercial entity….Bassett’s Complaint contains considerable information on the size and scope of college football and the revenues generated by it. The Complaint is wholly devoid of any allegation on the commercial nature of NCAA’s enforcement of the rules it determined Bassett had violated. Bassett’s Complaint contends NCAA’s enforcement process violated its own due process requirements and, as a result, constitutes a Sherman Act violation. We find Bassett’s Complaint lacks the critical commercial activity component required to permit application of the Sherman Act.
…NCAA’s rules on recruiting student athletes, specifically those rules prohibiting improper inducements and academic fraud, are all explicitly noncommercial. In fact, those rules are anti-commercial and designed to promote and ensure competitiveness amongst NCAA member schools. Violation of the applicable NCAA rules gives the violator a decided competitive advantage in recruiting and retaining highly prized student athletes. It also violates the spirit of amateur athletics by providing remuneration to athletes in exchange for their commitments to play for the violator’s football program. Finally, violators of these rules harm the student-athlete academically when coaches and assistants complete coursework on behalf of the student-athlete.
If the rules themselves and the corresponding sanctions are not commercial, as the reasoning
in Smith supports, then the enforcement of those rules cannot be commercial. As long as the
enforcement of non-commercial rules is reasonably and rationally related to the rules themselves, we find enforcement is a non-commercial activity.

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

BASEBALL/ Watch For Bats

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

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

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

BASEBALL/A Win For Fantasy Sports

Supreme Court refuses to step in:

The U.S. Supreme Court on Monday declined to hear an appeal by Major League Baseball Advanced Media and the players association in their case against CDM Fantasy Sports. The justices’ decision ends a bitter legal fight that lasted more than three years.
St. Louis-based CDM in 2006 won the right in federal district court to use major league players’ names and statistics in commercial fantasy games without a license. That set off a lengthy series of appeals from MLBAM and the union that mushroomed into a case with significant implications for all of celebrity licensing.

Read the whole thing for the implications.

Second Circuit Dismisses Bloomberg Gun Lawsuit

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

Supreme Court Rejects Challenge To Indiana Voter ID Law

The Supreme Court this morning, by a 6-3 vote in Crawford v. Marion County Elec. Bd., upheld Indiana’s voter ID law. This is a major defeat for the Democrats’ efforts to prevent states from requiring valid identification to vote. The lawsuit was brought by the Indiana Democratic Party.
The Court took a fractured approach. Justice Stevens, joined by Chief Justice Roberts and Justice Kennedy, found no showing of an undue burden on various voters who challenged the voter ID law on its face. Justices Scalia, Thomas and Alito would have upheld the law on the broader ground that it imposed the same requirements equally on all voters. Both opinions give great weight to the state interest in ensuring that only eligible voters cast ballots. Justice Souter, joined by Justices Breyer and Ginsburg, dissented on the grounds that they felt the statute did, in fact, unduly burden some voters. Justice Breyer wrote separately.
Justice Scalia’s separate opinion is redolent of the judicial hangover from Bush v. Gore in its emphasis on the hazards of permitting case-by-case judicial review of neutral rules established by state legislatures before an election takes place. This is a point I’ve been making since the Bush v. Gore decision came down: the most important thing about that case is the fact that the SCOTUS was reviewing a non-statutory judicial remedy crafted by an appellate court after the election had taken place, when all the participants knew – or at least thought they knew – what remedies would benefit which candidates, as opposed to a statute of general applicability enacted before the election, setting out rules and procedures that all participants knew from Day One they would have to comply with.
Extended excerpts from the Stevens and Scalia opinions, and commentary, below the fold. Note that this is the third election-law case this Term (I discussed the first two here and here), and the democratically-enacted statute won in each case.
(UPDATES also below the fold).

Continue reading Supreme Court Rejects Challenge To Indiana Voter ID Law

Heads I Win, Tails The Coin Was Loaded

Sound the alarms!

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

See, here’s the thing: if the statistics were the opposite, these same people would be arguing (as they do in with other types of arbitration) that the arbitration panels are biased against them, and they’d cite the reversal rates by the courts as evidence that the arbitrators were less fair than a court would be.
In fact, overall statistics of this nature are famously uninformative because they assume a static universe in which the cases decided by arbitrators or the courts are a representative, evenly divided sample. But there are numerous ways in which data can be biased – just for example:
*If a forum is more favorable to plaintiffs, it may attract more weak or frivolous cases, and thus end up with a higher rate of defense victories – sort of the way outfielders with weak arms get a lot of assists because a lot of people run on them (between 1993 and 2003, Mike Piazza threw out 384 base thieves, Pudge Rodriguez threw out 387 – if you looked just at the total number thrown out, you might draw a very bad conclusion).
*Highly meritorious cases are much more likely to settle, especially in arbitration where plaintiffs are less likely to hold out for massive punitive damages. But the prevalance of nuisance-value settlements means it’s also impossible to use settlement data as a reliable proxy for the merits, especially if you lack the means to assess the value of the settlement.
*Defendants who are repeat players (in employment litigation, that’s pretty much every business) may be more likely to go to court to challenge awards they are dissatisfied with than employees represented by attorneys working on commission.
*Cases can settle at any stage of the process, so these numbers also don’t include cases where a settlement is reached somewhere between the arbitration award and the court decision reviewing it. A defendant who wins in arbitration but faces a likelihood of reversal in court may very well decide to settle the case while the getting is good.
That’s even before you get into the asymmetries here – in most employment cases the employee is the plaintiff, who has the burden of proof, a fact that will impact review of the award. The fact is, there are many points in litigation at which decisions can be made by one or both sides about what avenue to pursue next, and each of those decision-points can skew the sample.

One Justice, One Vote

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

As Justice Stevens explains, “‘objective evidence, though of great importance, [does] not wholly determine the controversy, for the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.'” …. “I have relied on my own experience in reaching the conclusion that the imposition of the death penalty” is unconstitutional.
Purer expression cannot be found of the principle of rule by judicial fiat. In the face of Justice Stevens’ experience, the experience of all others is, it appears, of little consequence. The experience of the state legislatures and the Congress – who retain the death penalty as a form of punishment – is dismissed as “the product of habit and inattention rather than an acceptable deliberative process.” Ante, at 8. The experience of social scientists whose studies indicate that the death penalty deters crime is relegated to a footnote. Ante, at 10, n. 13. The experience of fellow citizens who support the death penalty is described, with only the most thinly veiled condemnation, as stemming from a “thirst for vengeance.” Ante, at 11. It is Justice Stevens’ experience that reigns over all.

(Bold added; italics in original). Read the whole thing; as I said, it’s pretty short, as Justice Thomas’ separate concurrence (there were seven separate opinions) does the heavy historical lifting.
Now, take note here; it’s not Justice Scalia in this debate who wants to take the issue of the death penalty away from the people of Kentucky and make it a matter to be determined by presidential appointees; it’s Justice Stevens. I think a lot of Americans wish that we had presidential politics free of hot-button cultural issues, but it’s not conservatives who are the main obstacle to doing that. Yet if you listened to Senator Obama last night, he would still have you believe that there’s something wrong with voters who care about the rights and democratic privileges that people like Senator Obama want to bring under federal control:

[P]eople are going through very difficult times right now. And we are seeing it all across the country. And that was true even before the current economic hardships …And so the point I was making was that when people feel like Washington’s not listening to them, when they’re promised year after year, decade after decade, that their economic situation is going to change and it doesn’t, then, politically, they end up focusing on those things that are constant like religion.
They end up feeling this is a place where I can find some refuge. This is something I can count on. They end up being much more concerned about votes around things like guns, where traditions have been passed on from generation to generation. And those are incredibly important to them. And, yes, what is also true is that wedge issues, hot-button issues, end up taking prominence in our politics.
And part of the problem is that when those issues are exploited, we never get to solve the issues that people really have to get some relief on, whether it’s health care or education or jobs.

In other words, you’re only supposed to vote about what Obama says you should vote about – even when Washington is busy meddling in other areas of life. On the “wedge issues,” people who agree with Obama should just be given a free hand. (It’s also rather rich for Obama to suggest that guns should not be a political issue given his own record of voting to restrict gun ownership – I guess he cast those votes because he was too bitter to stick to economic issues, eh?).
Cases like Baze vividly illustrate that, for the foreseeable future, the Presidential power to appoint federal judges will have an outsized impact on the resolution of “hot-button” or “wedge” issues. I understand full well why, given the unpopularity of “rule by judicial fiat” for liberal ends, Senator Obama doesn’t want voters to consider those aspects of the president’s powers in voting for who the president should be. But I very much doubt that most voters are such ignorant rubes that they don’t realize that a President Obama would be quite happy to use his powers to advance his own values, not theirs.

Mumia Abu-Jamal Is Still Guilty of Murder. Police Officer Daniel Faulkner Is Still Dead.

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

Continue reading Mumia Abu-Jamal Is Still Guilty of Murder. Police Officer Daniel Faulkner Is Still Dead.


Yesterday’s Supreme Court decision in Washington State Grange v. Washington State Republican Party is interesting on a couple of levels. Coupled with the Court’s January decision in the case involving New York’s system for nominating candidates to run for judicial elections, the Court seems to be signalling pretty clearly that it’s not eager to get into overturning state primary election procedures – a signal the national Democrats are hopefully receiving, not that there’s been any move just yet for the loser to follow the Al Gore plan.
Anyway, the short summary is that the Court ruled 7-2 to uphold a state open election system that allowed candidates from all parties to run in an initial election with their chosen party listed, without having been nominated by the party, followed by a runoff for the top two candidates; the major parties challenged the constitutionality of this procedure under a 2000 decision invalidating California’s “blanket primary” under the First Amendment’s right to freedom of association. The crux of the Washington case was whether the parties have a right to prevent candidates who have not been nominated by the party from using the party label on a ballot open to the general public.
Justice Thomas, writing for the Court, said no:

Continue reading Disassociation

Supreme Court Leaves Politics To The Politicians

Nyc-supremecourt-60centerst.jpgThe U.S. Supreme Court today, in a unanimous opinion by Justice Scalia in NY State Bd of Elections v. Lopez Torres, reversed a Second Circuit decision that had overturned New York’s system for selecting party nominees for trial judges. The appeals court had held that the First Amendment right to political association of prospective candidates for New York Supreme Court judgeships* were violated by the system of choosing nominees through party conventions dominated by party bosses, rather than through a more directly democratic system such as a primary.
Justice Scalia’s opinion starts out with a concise summary of familiar and settled (if theoretically debatable) ground: the Constitution gives a political party some First Amendment associational rights to control its own processes for choosing its nominees, but imposes some restrictions (including Fourteenth and Fifteenth Amendment restrictions against discrimination) on a party’s candidate-selection process when the state grants the party the right to a line on the ballot. But as he explains, the problem with the conventions is not any legal restriction on who can throw their hat in the ring but rather a practical, political limit to who can win those contests – a problem for which the solution is necessarily political, not legal:

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

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

The reason one-party rule is entrenched may be (and usually is) that voters approve of the positions and candidates that the party regularly puts forward. It is no function of the First Amendment to require revision of those positions or candidates. The States can, within limits (that is, short of violating the parties’ freedom of association), discourage party monopoly – for example, by refusing to show party endorsement on the election ballot. But the Constitution provides no authority for federal courts to prescribe such a course. The First Amendment creates an open marketplace where ideas, most especially political ideas, may compete without government interference. . . . It does not call on the federal courts to manage the market by preventing too many buyers from settling upon a single product.
Limiting respondents’ court-mandated “fair shot at party endorsement” to situations of one-party entrenchment merely multiplies the impracticable lines courts would be called upon to draw. It would add to those alluded to earlier the line at which mere party popularity turns into “one-party dominance.” In the case of New York’s election system for Supreme Court Justices, that line would have to be drawn separately for each of the 12 judicial districts – and in those districts that are “competitive” the current system would presumably remain valid. But why limit the remedy to one-party dominance? Does not the dominance of two parties similarly stifle competing opinions? Once again, we decline to enter the morass.

Continue reading Supreme Court Leaves Politics To The Politicians

Quick Links 1/12/08

*Tom Maguire on Paul Krugman’s efforts to put lipstick on the pig of the European welfare state. Of course, deceit is to Krugman what the fedora and the bullwhip are to Indiana Jones.
*And here I thought Daniel Webster had driven him out of New Hampshire permanently.
*Megan McArdle has the, er, skinny on people who are waaaaaaaay too sensitive.
*Excellent GOP primary roadmap from David Freddoso.
*Don’t mess with Vladimir Putin, Part XXVIII
*Two war-related decisions yesterday from the DC Circuit; one that rejects First Amendment challenges by Cindy Sheehan to her arrest at a protest but reverses her conviction for failure to prove her state of mind, the other of which rejects a variety of civil claims against Donald Rumsfeld and a variety of other DoD personnel, brought by Guantanamo detainees claiming that they were tortured or otherwise mistreated in violation of the Geneva Conventions.
*The All-Messed Mets Team.
*Slate has a really silly article about the demise of the billable hour, while admitting that the big law firms that handle high-end cases (i.e., lawyers like me) are not likely to abandon hourly billing any time soon. Yes, it’s true that basically every lawyer in private practice hates the billable hour; that’s been true as long as anyone could remember. And it’s true that clients don’t love it either, and that if change comes to billing methods, it will come from client demand. But like Churchill’s dictum about democracy being the worst form of government except every alternative that has been tried, hourly billing endures because lawyers and clients alike are familiar with it, and for potentially major litigation, it’s hard to come up with alternatives that don’t have larger problems. The flaw in the Slate piece is not suggesting any feasible alternative – that works at least minimally for both lawyer and client – for how to bill a case that walks in the door with potentially huge damages liability, yet even the most experienced litigator can’t tell you up front whether it will be quickly dismissed or settled, or end up in years of labor-intensive discovery and trial, or somewhere in between. Without a workable alternative, large organizations will always prefer the tried and tested, and work within that framework to make the process work for both parties.

Supreme Court To Decide Eighth Amendment Issue

Some of you may remember my post about the cert petition in Kennedy v. Louisiana, and the question of whether the “evolving national consensus” theory of the Eighth Amendment only goes in one direction – that is, if it’s true that the action of some states to ban a punishment in a particular context (here, the death penalty for child rape) transmutes that punishment into a “cruel and unusual” one for constitutional purposes where it was not before, is it also true that more states adding that punishment can make it not cruel and unusual?
Well, today the Court granted cert in Kennedy, so the Court will be faced with that question, among others.

Mr. Justice Clinton

Prof. Douglas Kmiec suggests that Hillary Clinton, if elected, could have her husband follow the footsteps of former President Taft by appointing him to the Supreme Court. Taft was, in fact, a very good Chief Justice after being a failure as President, a job for which he never had the talent or desire.
Prof. Kmiec gets right some of the obvious problems with this parallel: Clinton, unlike Taft, has no prior judicial experience and loves politics much more than the law; Clinton, unlike Taft, would presumably not be taking the Chief Justice job; and Taft, unlike Clinton, never had his law license suspended for perjury in a judicial proceeding.
What Prof. Kmiec misses is the showstopper* – even beyond losing him as a campaigner – that would prevent Hillary Clinton, especially, from considering this: confirmation hearings. Nobody in her right mind who was at all sympathetic to Bill Clinton would ever want to see the man testify under oath again. And given the tendency of modern confirmation hearings to delve into any and all scandals in the nominee’s past, hearings with Bill Clinton as the nominee would be both exhaustively lengthy and acrimonious and potentially uniquely damaging to Hillary personally. Assuming the Democrats hold control of the Senate they could potentially try to quash much questioning at the hearings, but even Republicans who hold principled objections to filibustering judges would be on firm ground blocking a floor vote until the Judiciary Committee was willing to hold a full hearing on the nominee.
I suppose in theory, I could imagine Hillary pulling such a stunt as a deliberate provocation and/or for the express purpose of breaking the tradition of such hearings. But I think it far more likely that she would avoid at any cost the spectacle of William Jefferson Clinton being sworn in to testify anywhere ever again.

Continue reading Mr. Justice Clinton

Swift Justice and the Immigration System

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

CINCINNATI – A lawyer for a former autoworker accused of being a Nazi death camp guard on Thursday challenged the right of the nation’s chief immigration judge to order his deportation.
The 6th U.S. Circuit Court of Appeals heard arguments on the accused guard John Demjanjuk’s challenge to a final removal, or deportation, order issued in 2005. The federal government has been trying to deport him for three decades.
The three-judge panel didn’t say when it would rule, but it’s usually several months after arguments before the court issues a decision.
The arguments revolved around whether an immigration judge had the authority to order the removal of Demjanjuk, 87.

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

9th Circuit: Responding to NY Times Waives State Secrets Privilege

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

Continue reading 9th Circuit: Responding to NY Times Waives State Secrets Privilege

“A bout of gas or indigestion does not justify a race to the courthouse.”

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

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

Take This Evolving National Consensus And Shove It

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

The state said that the Court, if it agrees to hear the case, should focus not only on how many states treat rape of a child as a capital crime, but also on a trend toward applying the death sentence to more crimes where the victim is not killed. Five states, like Louisiana, now have capital punishment for child rape, all enacted since 1997 with the most recent, in Texas, in 2007.
Moving beyond that specific crime, the state’s brief said, 15 out of the 38 states and the federal government – 41 percent of the jurisdictions, it notes — “authorize some form of non-homicide capital punishment.” That includes treason, espionage, aircraft piracy, aggravated kidnapping, and some drug trafficking crimes.
“The trend toward capitalization of non-homicide crimes, child rape in particular, is significant,” the state asserted. “Six states have now enacted the death penalty for child rape after this Court [in Coker v. Georgia, 1977] held that the death penalty for rape of an adult woman was unconstitutional.”

This argument puts the Court’s liberals and swing vote Justice Kennedy to the test to see if they actually mean what they say.
If you recall, the Court in cases such as Atkins v Virginia, involving the execution of the mentally retarded, and Roper v. Simmons, involving the execution of defendants who were under 18 at the time of the crime, has pointed to some variant of an “evolving national consensus” drawn from a trend in state statutes dealing with the death penalty as a basis for finding that the meaning of the Eighth Amendment has been changed sufficiently to extend the constitutional rule to force the dissenting states into line. In Roper, that “evolving consensus” consisted of four state legislatures and one state court changing positions between 1989 and 2005. As I have argued previously, because Article V of the Constitution provides a specific mechanism for the meaning of the document to be altered by action of three-fourths of the states voting in a specified way on a specific written amendment proposed either by two-thirds of the states or two-thirds of both Houses of Congress, this line of reasoning is hopelessly irreconcilable with the text of the Constitution.
But for now, we are stuck with the doctrine; the issue is its application. Is it possible for the “national consensus” to “evolve” in a direction that Justices who oppose the death penalty* don’t like or agree with? Or is this, like so many liberal Constitutional doctrines, a one-way ticket?

Continue reading Take This Evolving National Consensus And Shove It

It’s Official: Lawyers Are Incapable Of Understanding Civility

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

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

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

Three days later, on August 23, 1999, Mr. Fieger, in a tone similar to that which he had exhibited during the Badalamenti trial and on his then-daily radio program in Southeast Michigan, continued by addressing the three appellate judges in that case in the following manner, “Hey Michael Talbot, and Bandstra, and Markey, I declare war on you. You declare it on me, I declare it on you. Kiss my a**, too.” Mr. Fieger, referring to his client, then said, “He lost both his hands and both his legs, but according to the Court of Appeals, he lost a finger. Well, the finger he should keep is the one where he should shove it up their a**es.”
Two days later, on the same radio show, Mr. Fieger called these same judges “three jackass Court of Appeals judges.” When another person involved in the broadcast used the word “innuendo,” Mr. Fieger stated, “I know the only thing that’s in their endo should be a large, you know, plunger about the size of, you know, my fist.” Finally, Mr. Fieger said, “They say under their name, ‘Court of Appeals Judge,’ so anybody that votes for them, they’ve changed their name from, you know, Adolf Hitler and Goebbels, and I think – what was Hitler’s – Eva Braun, I think it was, is now Judge Markey, she’s on the Court of Appeals.”

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

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

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

Justice Stevens: “Pretty Darn Conservative”?

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

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

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


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

Up to a point, Justice Stevens is framing his view of the Court’s job in terms similar to those commonly used by Justice Scalia or by Chief Justice Roberts to describe their judicial philosophies, and he’s self-identifying as a “judicial conservative.” Now, you can take this, if you like, as so much disingenuousness in light of his record, but I think it’s also a powerful tribute to how far conservatives in general and Justice Scalia in particular have shifted the landscape in how people within and outside of the Court perceive its role and mission that even Justice Stevens finds it desirable that he be perceived as engaging in the same sort of project, and disagreeing mainly at the margins of what constitutes “judicial conservatism.” Just as was true when Bill Clinton declared that “the era of big government is over,” the moment your opponents start cloaking themselves in your philosophical garb, you know you are winning the battle of ideas. It also means that nostalgia for the old order (H/T) is simply the lament of the losing side in that battle.
Relatedly, Tom Goldstein, who is certainly no conservative himself but is a careful observer of the Supreme Court, has a thought-provoking post on the political implications of the upcoming Term. Among other things, he predicts a victory for Guantanamo detainees in their pursuit of access to federal courts, and notes that whichever way the DC gun ban case comes out, it’s likely to mobilize the Right more than the Left. His analysis is worth considering:

Continue reading Justice Stevens: “Pretty Darn Conservative”?

The Ninth Circuit Rejects Foreign Policy By Civil Lawsuit

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

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


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


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


In this regard, we are mindful of the potential for causing international embarrassment were a federal court to undermine foreign policy decisions in the sensitive context of the Israeli-Palestinian conflict. Plaintiffs argue that the United States government has already criticized Israel’s home demolitions in the Palestinian Territories. They point, for example, to former Secretary of State Powell’s statement that “[w]e oppose the destruction of [Palestinian] homes – we don’t think that is productive.” But that language is different in kind from a declaration that the IDF has systematically committed grave violations of international law, none of which the United States has ever accused Israel of, so far as the record reveals. Diplomats choose their words carefully, and we cannot subvert United States foreign policy by latching onto such mildly critical language by the Secretary of State. Cf. Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 386 (2000) (“[T]he nuances of the foreign policy of the United States . . . are much more the province of the Executive Branch and Congress than of this Court.”) (internal quotations omitted).
It is not the role of the courts to indirectly indict Israel for violating international law with military equipment the United States government provided and continues to provide. . . . Plaintiffs may purport to look no further than Caterpillar itself, but resolving their suit will necessarily require us to look beyond the lone defendant in this case and toward the foreign policy interests and judgments of the United States government itself.

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

Quick Links 9/13/07

*Michael Lewis is a wonderful writer and a guy who understands and loves markets. You have to read (here and here) his take on the subprime lending crisis. (Not everyone is amused). Lewis himself was a bond trader for a few years in the 1980s, leading to his smash hit book “Liar’s Poker,” and he poses here as a Gordon Gekko-type hedge-fund manager who blames poor people for evertything. The great thing about these pieces is that they are double-edged satire, containing enough cold-hearted economic truth to effectively skewer subprime borrowers and Capitol Hill demagogues, but at the same time mocking the misanthropic (at best) attitudes he parrots.
*Speaking of which, Gekko himself is apparently coming back as a hedge-fund manager (improbable given his insider-trading conviction, but that’s Hollywood – it wouldn’t be as much fun if he was running a car insurance company). I wonder how he reacts when he finds out Martin Sheen ended up President.
*Medieval scholastics would have been awed by the effort exerted by the Third Circuit to determine that putting on a hair net is “work”. Of course, I am thankful not to work in a place of employment that has an “evisceration” department.
*The Constitution stops at the frat house door, as the Second Circuit upholds a college’s right to use anti-discrimination policies to deny recognition to a fraternity on grounds of not admitting women. There’s a case to be made for greater autonomy of educational institutions and a case to be made for the fundamental ambiguity of right-to-association law, but the reasoning used in this opinion is almost as flimsy as the public policy at issue is blinkered.
*An ex-parrot who was impressively intelligent.
*Of course, Michael Moore’s new movie is loaded with untruths. (H/T). That’s like going to a Jackie Chan movie and seeing a lot of kicking.
*Seems like a whole lot of nothing to me.