Date based archive De Novo: August 2004 Archives

August 30, 2004

Topsy Turvy

American politics get stranger by the day. Today, a Republican congressman from Virginia withdrew from his re-election race because of claims that he is gay; and a state appeals court closed the race of Lousiana congressman, who switched from Democrat to Republican 15 minutes before the deadline, to any new entrants.

Frankly, Rep. Ed Schrock's decision to drop his candidacy comes across as an admission that the allegations, pushed by, are true. Otherwise, wouldn't he stick around and fight it out?

On the other hand, I also see why any breath of "scandal" about Schrock's sexual orientation would be detrimental regardless of its truthfulness. Andrew Sullivan notes that the 2nd District includes Regents University, but perhaps more to the point in terms of voting strength, it includes the Norfolk naval base -- the largest in the world (and as many UVa friends from the area told me, the second target on the USSR's list in case of war). Shrock himself is a retired career Navy officer and Vietnam veteran, and as a freshman congressman landed a seat on the House Armed Services Committee.

Like Milbarge, I'm opposed to "outing," particularly for political purposes. While there is nothing shameful about being queer (i.e. of an identification other than strictly heterosexual), this does not mean that people's personal feelings are aligned with this objective truth. Perhaps Schrock's parents, siblings, wife, son and Baptist church would think less of him if they knew that he was gay, so he has a right not to disclose that information.

And of course, Schrock may not be gay at all, in which case has succeeded in causing him and his loved ones enormous emotional distress. People have committed suicide over less, and if Schrock makes such an attempt, putting the blame on Michael Rogers seems unavoidable.

U.S. Rep. Rodney Alexander of Lousiana's 5th District, however, should feel ashamed of himself. A longtime Democrat, Alexander filed to run for re-election as a Democrat on August 4, then two days later, just before the deadline, refiled as a Republican. Two days! There's a longer waiting period to purchase a firearm.

Alexander's campaign website hasn't even been updated to reflect his abrupt change in partisan allegiance. True, the signs probably were there in his biography: "Rodney, a pro-life, pro-2nd Amendment Democrat, is an active member of the Blue Dog Coalition, and serves as a conservative voice in the Democratic Party in Congress."

But local Democrats still seem shocked, and the Republican candidate isn't too happy either. Former state Rep. Jock Scott now faces GOP pressure to drop out of the race, and he joined with the underdog Democratic candidate to have Alexander thrown off the ballot. Ah, bipartisanship! So rare in this election season, and as it turns out, so futile.

But the [1st Circuit] appeals court judges expressed some skepticism over that argument, and about the case itself, with one judge suggesting it had more to do with politics than with the law. Another wondered why Alexander shouldn't appear as both a Republican and a Democrat on the Nov. 2 ballot, and a third asked whether the Secretary of State couldn't simply put him on the ballot with no party affiliation.
To be clear, there were two issues in this case: whether the ballot should be reopened to permit other candidates to run (which the Democratic Party wanted to do, presumably to field a stronger candidate than unknown Zelma Blakes); and whether Alexander should be permitted to stay in the race at all. The lower court had ruled to allow new candidates, but the appeals court overturned that decision to freeze the current slate of candidates. No one else can join the ballot, and Alexander can stay on it.

All in all, a scurvy business. Alexander was fundraising earlier in the year as a Democrat, and his abrupt switch appears almost calculated to disable them -- particularly with his prodigal son-like appearance at the Republican National Convention this morning, and his absence last month from the Democratic National Convention. Indeed, one of the parties to the suit to have Alexander erased from the ballot was Democratic voter Jeremy Lacombe. Lacombe's lawyer said he would not appeal, but Blakes and Scott may choose to go all the way to the Louisiana Supreme Court. Because the dispute centers on state election codes, an appeal to the U.S. Supreme Court is unlikely; I can't think of a federal violation that can be claimed.

Posted by PG at 09:46 PM | Comments (2) | TrackBack

Dahlia Deja-Vu

In her latest NYTimes op-ed, Dahlia Lithwick reiterates themes familiar to her Slate readers: the secrecy of the Supreme Court, its lack of democratic accountability and Justice Souter's media-frustrating refusal to permit cameras in the Court. She also makes a couple of controversial statements, such as her assertion that the judiciary is "[t]he most powerful branch."

The one that made me both groan and feel sympathy, however, was the conclusion:

That's why it's not in their interest to remind you that you'll be picking the next Supreme Court with your vote come November. We forget that appointing judges may be the single most important thing a president does - it's easy to forget it when they've fixed it so you can't even pick Anthony Kennedy out of a lineup. [...] Because after November, that president whose soul you've come to know so well is going to start naming a whole lot of their successors.
The problem with this declaration is that it's a retread, so Campaign 2000. I remember making it myself back then, as did many organizations, particularly of the pro-choice variety. And yet here we are, four years later, and all nine of 'em hanging gamely on. I think Chief Justice Rehnquist's back may even be getting better. All in all, best not to base one's election-year persuasions on Supreme Court appointments. They'll probably outlast the next four years too.

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Today / August 30

Today in History (1967) - The Senate confirmed the appointment of Thurgood Marshall as the first African American justice on the Supreme Court.

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August 27, 2004

Gender Imbalances & the Class of 2007

This is important.

For the past four months, I've heard grumblings about the fact that the incoming 1L class at UT Law is 60/40, guys to girls. The usual split is 50/50, but some quirk of the admissions process has produced a class with 100 guys that can't get a date. I thought this was hilarious, and have been making comparisons to the millions of unmarriageable males in certain large Asian countries, but apparently this is not an isolated phenomenon. Today, I got this mail from a dear friend who's starting his 1L year at UVA:

Re: your suggestion to only study with girls -- apparently there are no girls. Our class of 360 people is like 60/40 men to women, which is a fluke but a damned inconvenient one. Also, you owe me like three hundred bucks for losing my My Little Pony collection.

So, what gives? My guess is that these schools made offers to an even number of men and women, but that a disproportionate number of women decided to move up the rankings ladder when they got better offers. Does this mean that there is, in fact, a higher ratio of women to men at, say, NYU or Harvard? Or did all of these missing women decide against law school at the last minute? Perhaps they were abducted? Or maybe I’m completely wrong and these schools actively sought male-heavy classes.

I’m in the dark here. If anyone from any other schools can report on a gender imbalance that would either explain this phenomenon or deepen the mystery, please speak up.

Posted by Wings&Vodka at 02:45 PM | Comments (6) | TrackBack

The Art of the (Illusion of a) Deal

Reuters reports that a Nissan dealership over in Jersey is running an Extra Special deal -- buy any new model, get a 2003 Sentra free. This is a new spin on the seemingly extravagant sales and discounts automakers have been advertising since the recession was exacerbated by 9/11.

However, an anecdote from one professor made me wonder whether we really are getting such great deals. He recounted a time when he was in practice, and a senior member of his firm was giving an ultimatum to a client. The client had gotten into trouble for advertising women's pantyhose as being on sale. A sale, in usual parlance, means that there has been a reduction from the "normal" price. In this case, though, the "normal" price applied only on one day of the year. The FTC called foul, and the client immediately set his mind to devising an alternative scheme with similar chicanery. His lawyer firmly told him that if he pulled a stunt like that again, the firm would resign as counsel.

The professor didn't mention whether the client was sufficiently impressed by this to start behaving properly, but that wasn't the moral of the story; the moral was, Be an ethical lawyer who does not stand by while your client engages in more crooked and criminal actions.

But this news story inspires a different query: what makes us perceive something to be a bargain, and is it affected more by the item's past prices and the prices of competitors, or by our own sense of what something is worth?

For example, when I started shopping for a car a few years ago, I knew that I wanted a Civic hybrid. (I really wanted a Mini, but it was too cool for me to be driving.) I test-drove the Civic at a dealership in a small Texas town, where it was in my preferred color and the saleswoman practically begged me to take it off her hands, offering an out-the-door price of $19,000 (and all hybrids have a $2000 federal tax deduction) before we could even bargain with her. Unfortunately, I was moving to Northern Virginia, so I called around to dealers in that area. All had lengthy waiting lists, and the car -- in white, pah! -- eventually came from a dealership a hundred miles from where I would live, at $21,000.

Ever since, I've been convinced that I got a bad deal on the car. But maybe I didn't. The actual price wasn't more than I could afford, and so far it's been a good little hybrid, if not quite as fuel efficient as the EPA may think. On the flipside, maybe the Nissan deal isn't that great. If they can afford to have 2-for-1 sales without going bankrupt or firing employees, why haven't they done so until now?

I don't have a substantive conclusion to this line of thought. But in some ways, our system's reliance on competition to keep prices at some ideal level has distorted or disabled our capacity to understand what really makes for a good deal. Car being sold for $2000 more in one place than in another? Must have been cheated. Cars sold 2-for-1? Must be getting a steal.

This may even tie into the consumer culture; if you buy things based on their relative-to-competitors price, rather than relative to your own sense of their worth, you're likely to be consuming more than you genuinely need or enjoy. I know that I've been sufficiently brainwashed that I feel guilty when I don't check on a sale, even if I don't need anything at the time. Sure, I'm getting great deals, but there's a good chance that I don't really want them.

Posted by PG at 01:50 PM | Comments (2) | TrackBack

August 25, 2004

Today / August 26

Today in History (1968) - Democratic National Convention opens in Chicago. For a bit of perspective on the NYC RNC protests: "police arrested over 500 people in clashes that injured more than 100 police and 100 demonstrators."

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Don't Mess with Curmudgeon

The Curmudgeonly Clerk, having departed chambers of an anonymous federal district judge in the Southern District of Texas "for another part of the state, where [he] will enter private practice (viz., products liability defense for a medium-sized firm)," has shut down his current blog. While we hope for his return -- perhaps even at a certain group blawg? -- we at least can rejoice in the archives he left up. Few if any other blawgers have the attention to detail that the Curmudgeon has shown.

Consider his last substantive post, on the recent law review/ Wall Street Journal article that proposes Texas's splitting itself into five states, in order to increase Republican presence in the Senate. While other bloggers merely assumed that this would happen, the Curmudgeon acerbically noted, "Even if Texas were to divide itself up, I doubt very much that the GOP would net eight new senators. Absent from any of Kesavan's and Paulsen's analysis is a consideration of demographic data. In the 2000 elections, there were 3,799,639 Texan votes for Bush and 2,433,746 Texan votes for Gore."

However, there's an easy response to his conclusion, "It would take some pretty fancy slicing to carve out five Republican sovereignties": Tom DeLay's proven that he can dice Texas quite finely for partisan purposes.

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August 24, 2004

Today / August 25

Today in History (1944) - Allied forces liberate Paris from the Nazis. A year later, Chinese Communists kill American intelligence officer John Birch.

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More Things Change

From Lawrence M. Friedman's A History of American Law:

These accidents were the raw material of possible lawsuits. Litigation was costly, but lawyers took cases on contingent fees. If the case was lost, the lawyer charged nothing; if he won, he took a huge slice of the gain. The upper part of the bar looked with beady eyes at this practice, "most often met with in suits for alleged negligent injuries." Thomas Cooley thought they were beneath contempt: "mere ventures," no better than "a lottery ticket." They debased the bar, brought "the jury system into contempt," and horror of horrors, helped create "a feeling of antagonism between aggregated capital on the one side and the community in general on the other." But the contingent fee had its merits. A poor man could sue a rich corporation. By 1881, the contingent fee was said to be an "all but universal custom of the profession."

Neither the number of accidents nor the contingent fee system, in itself, can completely explain the rise in litigation. To justify taking risks, and to make a living, the lawyer had to win at least some of the cases. [...]

Small wonder, then, that the law of industrial accidents grew monstrously large. In 1894, William F. Bailey published a treatise on "The Law of the Master's Liability for Injuries to Servants"; the text ran to 543 pages. "No Branch of the law," Bailey wrote in the preface, was "so fraught with perplexities to the practitioner." The law was wildly nonuniform, full of "unpardonable differences and distinctions." This meant that, by 1900, the rule had lost some of its reason for being. It was no longer an efficient device for disposing of accident claims. It did not have the courage of its cruelty, nor the strength to be humane. It satisfied neither capital nor labor. It siphoned millions of dollars into the hands of lawyers, court systems, administrators, insurers, claims adjusters. Companies spent and spent, yet did not buy industrial harmony -- and not enough of the dollars flowed to the injured workmen.

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Today / August 24

Today in History (1994) - Initial accord between Israel and the PLO about partial self-rule of the Palestinians on the West Bank. And happy 75th birthday (again?) to Yasser Arafat.

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August 23, 2004

Today / August 23

Today in History (1948) - World Council of Churches is formed. Four years later, the Arab League goes into effect.

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August 21, 2004

Today / August 22

Today in History (1864) - Twelve nations sign the First Geneva Convention, as part of the founding of the Red Cross. Also, happy 70th birthday to General "Stormin' Norman" Schwarzkopf.

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August 19, 2004

Today / August 21

Today is the centennial of Count Basie's birth.

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Solomon in All His Foolishness

Phil Carter has a Jurisprudence piece in Slate on the subject of law schools that wish to prevent the military from recruiting on campus. Actually, this attempt goes beyond law schools; entire universities, including undergraduate programs, are engaged in the same effort. (The Fray selections at the bottom of the page actually are worth reading for substantive responses to Carter's argument.)

Carter's concluding remarks, about how obstructing the movement of students from top universities (who are usually more socially liberal than the general population) into the military would "impede institutional change within the military on this issue by at least a decade, if not a generation," reminded me of an email discussion I had with U-Hand/Gabriel Mendel last year when he first started his blog. I asked him how he, a person supporting equality for gays, could participate in the military, and he gave an answer similar to Carter: change can come from within an institution, and his presence as a pro-equality JAG may facilitate that change.

This is an excellent response to an presumptuous question, and explains why individuals who choose to work for the military are not somehow betraying their political beliefs. However, I don't see how it overcomes the schools' objection to having military recruiters.

Why should such recruiters be treated differently than any other employer with a discriminatory policy? If Jerry Falwell's ministries have an explicit ban on hiring gays, presumably we wouldn't think that schools ought to permit the organization to recruit on campus, in the hopes that pro-gay-rights straight students will join and change the policy.

One could say that Falwell doesn't give money to various liberal universities, while the government (of which the military is an arm) does. Such is Gabriel's annoyance:

I would, however, like to register my continued discontent with the hypocritical policy of these schools that desire to take the federal government's money but refuse to allow its military recruiters on campus. If a university wants to take a principled stand and refuse these recruiters, let them bear the consequences of the action. But to want it both ways, to be able to exclude the recruiters, put up roadblocks preventing students from seeking military service, all while taking money from the same Congress responsible for "Don't Ask, Don't Tell"? That I cannot accept.
It seems that the only distinguishing factor between Falwell and the military, when it comes to discrimination on the basis of sexual orientation, is that the government will pay off universities to accept this discrimination, while Falwell won't. And certainly Falwell would be well within his rights to condition any aid he gave to a school on its accepting his recruiters -- which is what the Solomon Amendment does.

Nor is there a great historical precedent for Carter's hope that "future movement on this issue [...] will likely occur with the election of another politician willing to change this policy—not by judicial fiat." While one might point to Truman's -- not the Supreme Court's -- bringing about the desegregation of the military, Gabriel himself has pointed out that a) "don't ask, don't tell" is statutory law, so Congress would have to agree to changing it; and b) the military exhibited institutional resistance to Truman's order.

The first thought that came to my mind when I read about the First Amendment objection (on grounds of expressive association) that the law professors are bringing against the Solomon Amendment was, "Hey, weren't the Boy Scouts arguing that they should be able to ban gays on the grounds of expressive association?" Fortunately, David Bernstein already has mined that ground.

Justice Stevens's dissent to Dale said that if the Scouts were more clearly an organization that existed to exclude gays, or to fight against gay equality, their expressive association claim would be better. For example, one wouldn't require the KKK to accept black members (Clayton Bigsby notwithstanding), but the BSA's purpose does not seem nearly as anti-gay as the KKK's is anti-black. At the time Dale was expelled, nothing in BSA's mission statement or Scout Handbook articulated a problem with homosexuality; indeed, discussion of sexuality was to be kept strictly out of scouting.

By that reasoning, law schools would have to have fighting discrimination against gays as a fairly major goal to be able to use "expressive association" to overturn the Solomon Amendment. I really don't know how big a priority the pursuit of equality is for the average university. At the University of Virginia, it didn't seem to be a big deal; indeed, the University itself discriminates in providing benefits to married couples, but not to same-sex partners (who by definition currently cannot get married). At Columbia, on the other hand, issues of sexual orientation equality seem to have a higher priority; the partners of law students are specifically invited to events, and benefits are provided to the same-sex partners of employees.

In a parallel universe in which Stevens's dissent had been the majority opinion, therefore, Columbia University might be able to triumph over the Solomon Amendment, while schools like Georgetown (also failing to provide partner benefits) would have to permit military recruiters or lose federal funding. This isn't a particularly useful line of inquiry in the universe in which Dale lost and the BSA may constitutionally discriminate against gays, but I thought it might provide some cover to the law professors whom Bernstein charges with hypocrisy. "The BSA wasn't really anti-gay. But us, we're really anti-discrimination!"

Posted by PG at 09:50 PM | Comments (1) | TrackBack

Play By Play

Blogging has so habituated me to writing down every dumb thought that crosses my mind, I found myself doing it last night while I was supposed to be doing homework. Presented without further comment:

A good name for a blog about NY appeals: New York Court of Errors.

Page 3 of my Legal Methods book claims that legislators always have a purpose. Does anyone know what exactly is the purpose of the laws against commerce in sexual aids? The Curmudgeonly Clerk scorns the idea that male legislators are threatened by them; what are the other possibilities?

In a whole article on such bans, Professor Michael Dorf never gets to that issue, being more occupied with the questions of whether a law should stand if it achieves its purpose very imperfectly, and whether sex toys are part of a fundamental right to sexual privacy. But even on a basis of minimal rationality, there doesn't appear to be a reason to ban sex toys.

This reminds me of the various states' proposals to tax lapdances. I don't have anything against such taxes per se -- if there's a commercial activity that's getting past the tax man, by all means bring it back into the government revenue stream -- but I dislike having them lumped with alcohol and cigarette taxes. Alcohol and cigarettes impose costs on our society due to the ills of drunk driving and other dangerous behavior fueled by booze, as well as the health costs of liver disease and lung cancer. Lap dances, on the other hand, seem like a relatively society-friendly enjoyment. Unlike actual prostitution, they do not spread STDs, so what's the harm?

Page 4: "throughout our encounters with statutory materials, your objective should be to create for yourself workable approaches to identifying and resolving issues of statutory interpretation."

Does that mean that we must find ourselves as textualists (the statute means whatever its plain surface dictionary meaning is, with disagreements about the proper dictionary to use); original intenters (the statute means what the legislators meant for it to mean); living constitutionalists (the statute means what it ought to mean in the context of our contemporary society)… ? I know I'm caricaturing the actual legal philosophies of these movements, but I'm a little staggered by the thought of having to have a consistent approach to resolving issues of statutory interpretation.

I am living the truth of the cliché "a little knowledge is a dangerous thing." It is not so much dangerous, precisely, as it is annoying. My educated layperson’s knowledge about law slows down my reading to a ridiculous extent, as I find myself thinking, "Ohhh, so that’s why…" or "Hmm, I wonder if that’s because…"

For the first time, I profoundly envy people who go to law school not because they’re already interested in law, but because it seems potentially useful, profitable or at least respectable. I imagine them digesting this material with the same Metamucil-esque ease as I enjoy in reading science fiction novels. Where an engineer might be constantly halted by thinking about whether a proposed innovation could be possible, I cheerfully breeze through books untroubled by such considerations, because I have no previous knowledge for my brain to attempt to link to this new information.

Could people be restructured with nano-technology to improve our physical capabilities? Hell if I know, or even care very much. If I had to take a quiz on whether the book said that people could be, I could answer the questions correctly, but really, that stuff’s for nerds.

Did the pre- Civil War state jurisdiction over the trials of civil cases involving federal law have results similar to that which the federal courts would have produced? And could we make a comparison based on the percentage of cases that were successfully appealed to the federal courts after state trial (i.e. pre Civil War) compared to the percentage successfully appealed to the feds after federal trial (i.e. post Civil War)? Now that’s interesting.

Posted by PG at 08:56 PM | Comments (4) | TrackBack

Enjoy the Silence

... but apologies to those who have been looking for new content here. Summer associate jobs have occupied Nick, Chris and Jeremy. We've had good news as well: W&V made Texas Law Review, and I was abruptly pulled from Columbia Law School's waiting list. (Thus mooting this discussion. And this one. Sorry if I wasted anyone's time.)

Fortunately for productivity, I don't have an internet-enabled laptop now, so the blogging-from-class will have to wait for a couple of weeks. But expect a lot of 1L reactions, coming soon.

Posted by PG at 08:33 PM | Comments (2) | TrackBack

Today / August 20

Happy 73rd birthday to Don King, and 63rd to Slobodan Milosevic, who may pass away before his war crimes trial concludes.

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August 17, 2004

Today / August 18

Today in History (1920) - 19th Amendment to the Constitution is passed, guaranteeing women's suffrage.

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Today / August 17

Today in History (1998) - President Bill Clinton admits in taped testimony that he had an "improper physical relationship" with White House intern Monica Lewinsky. On the same day he admits before the nation that he "misled people" about his relationship. And happy 72nd birthday to V. S. Naipaul.

Posted by PG at 12:19 PM | Comments (0) | TrackBack

August 13, 2004

Today / August 13

Happy birthday to Fidel Castro, still communistin' at 78, who has outlasted Eisenhower, Johnson, Nixon, Reagan and the Soviet Union. (UPDATE: And Julia Child.) But he's gotta die someday, right?

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August 12, 2004

You Know You're a 1L To Be...

... when pretty much any situation makes you wonder about the possibilities for civil litigation and criminal prosecution. When I had elective surgery, I thought about the former -- only in jest, I promise! The latter came up as well when I got this e-mail from blogger J.T.:

Lately, I've been thinking of writing a few posts demonstrating how much of a joke anti-terrorist security is. Do you guys think it's appropriate for me to give detailed instructions about how to get a gun onto a plane, how to build a car bomb, and so on?

Two different lines of precedent came to mind. The first was civil: what if someone used these instructions on how to build a car bomb, successfully killed someone, was criminally prosecuted (at which point her getting the instructions from J.T. would become known) and thus led to J.T.'s being sued for his part in the crime?

Such a case was extensively described in Rodney Smolla's Deliberate Intent: A Lawyer Tells the True Story of Murder by the Book. The book in question is Hit Man: A Technical Manual for Independent Contractors, which begins with the warning "Neither the author nor the publisher assumes responsibility for the use or misuse of information contained in the book. For informational purposes only!"

Nonetheless, the families of people killed by an independent contractor schooled in Hit Man's methods successfully overcame the First Amendment objection, and eventually settled out of court. As part of the settlement, Paladin Press stopped publishing Hit Man and destroyed its copies. This had the unintended consequence of putting Hit Man into the public domain, and it is now available on several websites.

Smolla's book is titled "Deliberate Intent" because it is on the basis of Paladin's having deliberately intended to assist and encourage people in committing murder that the plaintiffs won. At the end, Smolla (who at one point refers to the Fourth Circuit's Michael Luttig as "the Judge from Hell") admits that his side's victory may lead to cases that he deems frivolous, but distinguishes Hit Man from Natural Born Killers on the grounds that Oliver Stone did not intend for anyone to mimic the characters in his movie.

J.T. likely would win on the same argument, particularly if his posts were couched in language that made it clear that he was writing to point out the holes in our security, not to encourage people to exploit those holes. Instead of Hit Man's exhortations on how a successful killer will feel like more of a man, J.T. could talk about the freedom-hating evil-doers.

One person pointed out that perhaps a better alternative would be to write those posts and then send them to Tom Ridge, instead of publishing them on the internet. However, this would miss the purpose of drawing widespread attention to our security problems. The Department of Homeland Security presumably already knows about these holes, and hasn't figured out a way to plug them up yet. Public pressure might force the government to try harder, or at least garner ideas from the general population about how to solve the problems.

Talking about DHS brings me to the potential for criminal prosecution. I think that it is fairly small -- the past prosecutions for revealing security holes have involved people who actually breached security, and even then they haven't always been arrested. For example, ABC has twice shipped depleted uranium from overseas to test security at American ports, and both times DHS became annoyed and investigated the news organization, but didn't put anyone in prison. J.T. would not be publishing classified information, so he wouldn't even need the Pentagon Papers precedent.

Posted by PG at 06:06 PM | Comments (5) | TrackBack

Today / August 12

Today in History (1994) - Major League Baseball players go on strike. The work stoppage will force the cancellation of the World Series. Also, happy 31st birthday to shoe bomber Richard Reid, imprisoned for life.

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August 11, 2004

I'm Agnostic, Don't Pass It On

When I read Orin Kerr's post about the NYTimes' alarmist reporting on the Department of Homeland Security's request for Census data about Arab Americans, I initially thought that from a "let's put 'em in internment camps" perspective, data about Muslims would be more useful than data about Arabs. After all, a couple of the most publicized terror cases, such as that of Jose Padilla, have involved people of non-Arab ancestry. Without casting aspersions on Islam, it seems fair to say that there are no non-Muslims in Al Qaeda, while there are plenty of non-Arabs (converts, South and Southeast Asians, etc.). Bin Laden is no racist -- any man who rejects degenerate Western culture and rejoices in sharia law can join the jihad!

However, the Census Bureau couldn't provide information about Muslims even if it wanted to do so:

Limitation of the Data--Although some experts consider religious affiliation a component of ethnic identity, the ancestry question was not designed to collect any information concerning religion. The Bureau of the Census is prohibited from collecting information on religion. Thus, if a religion was given as an answer to the ancestry question, it was coded as an "Other" response.

The prohibition originates in Public Law 94-521, a bit of legislation passed in 1976, which provided for a mid-decade census of population. The law "[e]liminates the penalty of imprisonment for refusing or willfully neglecting to answer questions asked on a census questionaire [and p]rovides that a person may not be compelled to disclose information regarding his religious beliefs or membership in a religious body."

When one cannot discriminate on the basis of race, generally one is also legally prohibited from discriminating on the basis of religion, but not of, say, politics. Thus religion's status is more similar to race -- an immutable characteristic -- than to political and other chosen preferences. This holds true socially as well; the average American feels much freer to mock and disparage people of different political viewpoints than he does to mock and disparage people of different religions.

So the Congressional ban on the Census's gathering information on religion in the same way it can gather racial data is surprising. Why should disclosing my ancestry be mandatory, but disclosing my religion be categorized as an "Other" response?

Posted by PG at 07:34 PM | Comments (2) | TrackBack

August 10, 2004

Legal and Christian Ethics

University of Houston grad Amanda Strasser describes what she wants from her law school education:

I am leaving in August for a school that starts every class with ten minutes of Bible Study or worship. They teach in the classroom that Christian lawyers need to try to keep our Christian brothers from suing each other in court (1 Corinthians 6:1-8). The classes seriously explore in what manner and to what extent principles of Biblican Dispute Resolution (Matthew 18:15-17) can be applied to lawsuits brought by non-christians. None of that ever crossed my mind until I was reading through materials Regent sent me with my acceptance letter.

I want to be challenged intellectually and spiritually. I want to study law in a vibrant, but encouraging, atmosphere - rather than being surrounded by cutthroats. God gave me these desires, and He has shown me the way to go.

While I would find the Christianity-specific aspects of Regent discomforting, the idea of infusing ethics into legal education is highly appealing. Law schools, like business and medical schools, divide ethics from the rest of the curriculum, into the ghetto of a single "Professional Responsibility" course that most students regard as a joke. This isn't even peculiar to graduate study; a friend in Michigan's undergraduate business school frequently complained that she was taught how to manipulate numbers and consumers, but not whether such manipulation was desirable.

However, apparently the only way to get an ethically-integrated legal education is to attend sectarian law schools. Unfortunately, I don't see the Bible -- or Torah, or Koran -- as a persuasive authority, so such schools will have little place for me.

Even the specifics cited by Strasser look implausible and unrealistic to me. I am strongly in favor of alternatives to litigation, so much so that I may specialize in mediation, and agree that lawsuits themselves represent a failure in defendant and/or plaintiff to come to an agreement. Yet even people who call themselves Christians wrong and defraud one another, and when they do and refuse to admit guilt or pay restitution, the victims must be able to seek justice in the courts. Lawyers ought to be trained to prefer resolving disputes outside courts, not because St. Paul demands it, but because doing so minimizes costs to society and to the parties involved. But they also have to know how to win a case in court if that becomes necessary.

Biblican Dispute Resolution strikes me as more likely to induce further ill-will than to resolve actual disputes, depending as it does upon a small community in which shaming might be an effective tactic. It seems well-nigh useless for the impersonal litigation between individuals and large institutions, or among the large institutions themselves, that constitutes the majority of civil cases. If shame were effective, Jeffrey Skilling would not be in court; he would have admitted his wrongdoing and tried to help those hurt in Enron's crash.

There are some cases, such as divorce suits, in which the parties just need to be nudged into a more amicable frame of mind and reminded of their duties to one another. In such situations, people have gone to law more out of anger and spite than out of real need. In many others, however, a real disagreement exists.

For example, how would one settle the argument between thousands of same-sex couples who wish to get married, and the states that refuse to recognize their unions, without resorting to the courts? (I realize that Regent University probably wouldn't see this as worthy of being a case, but that's another reason why I wouldn't fit in there.) Same-sex couples believe that they should be granted the same rights and privileges accorded opposite-sex couples. States disagree. How to resolve this dispute?

Paul asks, "Is it so, that there is not a wise man among you? no, not one that shall be able to judge between his brethren?" Yet judges, our secular equivalent of the church elder, are scorned as undemocratic and out of touch. We resign our fates to twelve of our peers in the idealistic hope that these "least esteemed in the church," or in society (is there a Christian duty not to wiggle out of jury service?), will decide in accordance with our community's beliefs about justice.

No, a sectarian law school is not for me. At the same time, I envy Amanda's eagerness for law school. I look forward to it as well, but I don't assume, as she seems to do, that it will make me a better person. A more educated, knowledgeable, skilled person, certainly, but not necessarily improved in my ability to decide whether I ought to take a client's case or not.

Posted by PG at 09:11 PM | Comments (16) | TrackBack

August 09, 2004

Take That, EU!

Against the urgings of the European Union's foreign ministers, and disapproval of human rights groups, Iraq reinstated capital punishment on Sunday. The penalty had been suspended during the formal occupation, but was brought back as "part of a carrot-and-stick approach by the government to try to put down the 15-month-old insurgency." The carrot, offered on Saturday, was amnesty for minor crimes and did not lead to much repentance. The list of capital crimes is somewhat vaguely worded, but appears to be a fraction of the tally under Saddam Hussein, who frequently killed nonviolent dissidents.

While I don't approve of the death penalty, I can see why some people would consider it appropriate for murderers, rapists, kidnappers and those who endanger national security. But I am puzzled that drug dealers are also subject to execution. Is illegal narcotics trafficking that much of a threat to the new Iraq, as a government or as a society? Or is this simply a bow to the U.S. war on drugs and the Islamic prohibition on them?

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Today / August 9

Today in History (2001) - President George W. Bush announces his support for federal funding of limited research on embryonic stem cells. Happy 28th birthdays to Practice actresses Jessica Capshaw and Rhona Mitra.

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Let Me Hear Ya Say Article III

One of my friends just finished his clerkship for a federal appellate judge, and is, even as I post, packing up his apartment and heading back to the East Coast, where he will make enough money to pay back his law school loans.

At the other end of the clerking tunnel is blogcrush Milbarge, who is "going to be starting a clerkship for a federal appellate judge in less than a month" and looking for advice:

So I'll ask any readers who have worked as a clerk, at any level, what they wish they had known when they started the job. What would you do differently? What mistakes did you make? What were your favorite parts of the job, and how would you recommend I ensure I have those experiences as well? If there are any prompts I have not entered, feel free to substitute your own. I crave general advice. I understand that some of this will be judge-dependent, or job-dependent if you're work is for a different court. But I appreciate any help you can offer. Thanks.

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August 08, 2004

Weapons of War

Having just sold my entire collection of hornbooks, commercial outlines, and other study paraphernalia to one of my former LSAT students, I thought it might be worthwhile for those in the know to dispense some advice regarding the feast of materials available at your law school bookstore. Though there is no replacement for regular class attendance, dedicated study time, and frequent ingestion of Adderall, I would recommend the following for anyone who gets stuck:

Aspen's Examples & Explanations Series. These are about as close to Law for Dummies as you're going to get. They aren't completely stripped down and useless like the majority of commercial outlines. Instead, they leave out cases (for the most part) and focus on giving you a step-by-step explanation of the law. The Glannon volumes on Torts and CivPro are particularly badass.

For Contracts: Farnsworth on Contracts. Don't buy it, because it's huge and you'll never read the whole thing. But when a particular phrase like 'promissory estoppel' or 'inflatable twinkie' makes you cringe, find Farnsworth in the library and he'll ease your pain.

For ConLaw: Erwin Chemerinsky's Constitutional Law: Principles and Policies is voonderful. I have several close friends whose lockers had Chemerinsky's face plastered on the inside. If ConLaw makes you cry, Erwin will make you cry less.

For Property: Quick! Your great-great grandmother just died, leaving her entire PEZ collection to your third male grandchild, but only if he agrees to become a radish farmer. Can she do that? I don't know, but you probably will after checking out this book from John Makdisi. It's got a ton of problems to help you review estates and future interests, and is solely responsible for me getting a D+ instead of a D in Property.

Everything Else: Is crap, in my opinion. But I'm sure that plenty of other folks with much higher GPA's have much better opinions. So feel free to add your thoughts. This is for posterity.

Posted by Wings&Vodka at 06:36 PM | Comments (3) | TrackBack

August 07, 2004

Filling In for Chris

On my way to Savage Love, I noticed this article:

Just a week after attorneys for eight same-sex couples argued that their clients should be allowed to legally wed, King County Superior Court Judge William Downing agreed. In an opinion released today, Wednesday, August 4, Downing ruled that Washington State’s 1998 “Defense of Marriage” law violates the Washington Constitution.
The rationale was that the state DOMA went against the state constitution's guarantee of equal provision of all privileges under the law to all citizens. The crux of the argument between the plaintiffs and defendants was whether or not marriage was a fundamental right; the former said it was, and the latter, defining the issue as being about same-sex unions and those being against tradition, said that same-sex marriage was not a fundamental right.

The author of the article, incidentally, had a short-lived "gay marriage" with Dan Savage.

Posted by PG at 05:08 AM | Comments (2) | TrackBack

Now Get 50 Big Donors to Do This

Prof. Orin Kerr points to a rather trite scheme from John Perry Barlow, in which he will have a few dozen people start randomly dancing in "Republican-rich zones" [1] during the convention, in order to "make the Republicans uncomfortable."

What Barlow is missing is that GOP convention-goers actually expect New Yorkers to do stuff like this. [...] To be really subversive, Barlow should get 20 to 50 people together, dressed in pedestrian attire, and then have them act perfectly normal. That's right; don't do anything weird at all. The Republicans will have no idea what to make of it. I'm sure that will really throw them off their game.
Actually, I've been doing my bit to mess with the Republican Borg (Bork?), although my method probably violates a couple of statutes.

Last week, I noticed that my father had gotten a letter from Senate Majority Leader Sen. Bill Frist, M.D. Dad has gotten so much mail from the national GOP lately that he ignores half of it and only troubles himself with the local races. Besides, he takes a more active interest in his homeland's battles, and his party's recent defeat seems to have discouraged him about politics generally.

This envelope included an official SURVEY DOCUMENT, assigned to Dad as a REPRESENTATIVE of ALL REPUBLICANS living in his voting district. Sen. Frist's letter asked his Friend (Quakerish address a Nixon throwback?) to fill out the survey, or if the Friend did not wish to do so, to return it unanswered, at which point presumably someone else would become REPRESENTATIVE of ALL REPUBLICANS living in his voting district. Quite incidentally, it also asked for Dad's "most generous contribution to the NRSC of $500."

Since I knew that Dad never would take the time to fill out such a thing, much less stuff it in an envelope and put it in the mail, I thought I'd do the NRSC a favor and fill out the survey. Admittedly, the results probably don't represent the Republicans in our district very well, but I figure that with Republicans in most state-wide offices, a majority in House, Senate and Supreme Court, and controlling the White House, they were represented much better than I in all important respects. Thus I rationalize having my views represented in the Republican Party and breaking laws against mail interference and misrepresentation.

Whoever reads it likely will be puzzled by what a person who agrees with more taxes, no additional tax cuts, and more humanitarian aid to foreign countries -- and disagrees with the ban on partial birth abortion, a ban on therapeutic (non-reproductive) cloning and the GOP's interpretation of Second Amendment rights -- is doing in the Republican Party.

If enough impudent liberals get their hands on these surveys [2], the GOP would have to recognize another kamikaze constituency along with the Log Cabin folks: the Democratic Republicans. Such a state of affairs seems far more likely to "throw them off their game," or at least make them worry about the loss of some $500-level donors if they continue down their current road, than some weirdos dancing in the street [3].

[1] Out of curiosity, what are the Republican-rich zones of Manhattan? My first reaction was to assume that it would be Tiffany's and other places where wealthy people might congregate, but that doesn't necessarily seem true, as NYC liberals are about as likely to be rich as NYC conservatives. Of course, what Barlow assumes is that there are sufficiently significant differences in the lifestyle and tourist preferences of Republicans and Democrats that people from one party would congregate in places where people from the other party would not.

Though the majority of my friends trend liberal, particularly on social issues, one could not distinguish between the Democrats and Republicans based on their preferred hangouts. Did Barlow get his idea of Republican zones from having to change his venues after switching parties? and doesn't this sound like something from Sex and the City? ("I had to ask myself: was Manhattan politically segregated territory?")

[2] If you lack access to a Republican donor's mail, but would have been able to participate in Barlow's plan, might I suggest an alternative that likely would have a more useful and effective influence on conservatives? Find a person of the same sex and roughly the same age. Take your child, or borrow a friend's, and go to these Republican rich zones. Stroll around presenting yourselves as a family: discussing the child's education, friends or extracurricular activities, making plans for y'all's next vacation, etc., while being affectionate but not demonstrative with your "partner."

If the Republicans in town take notice, perhaps it will assuage some lingering belief that same-sex unions are actually intended to legalize child molestation, or that gay couples are incapable of the parental impulses that straight people harbor. These ideas -- phobias, in their ignorant remove from reality -- are a far more problematic aspect of Republican puritanism than is any dislike of random dancing.

[3] What bothers me most about Barlow's idea is that it purports to return joy to revolution, yet the whole goal of it is not to encourage community and creativity in Our Side, but to spread discomfort and fear among the Other Side. Everyone in this country is sufficiently paranoid, about dark-skinned passengers and politicized announcements and media biases, without being troubled by each others' terpsichorean outbreaks.

Posted by PG at 04:27 AM | Comments (3) | TrackBack

Today / August 7

Today in History (1789) - The United States War Department is established; it retained that name until 1949. One hundred seventy five years later, Congress passes the Gulf of Tonkin Resolution, which gave President Lyndon B. Johnson broad war powers to deal with North Vietnamese attacks on American forces.

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August 06, 2004


Just wanted to celebrate what may be the best blog comment I've ever read:

    Atrios' comments section is like a digital Lord of the Flies.

Ha! It comes from comments to this post by Matt Yglesias, who has quite impressively been mentioned by Paul Krugman in the New York Times. Shouldn't be too long before Mr. Yglesias himself writes for that little publication.

Posted by Nick Morgan at 10:56 PM | Comments (0) | TrackBack

August 05, 2004

Today / August 6

Today in History (1945) - The Enola Gay drops an atomic bomb on Hiroshima, Japan, killing 80,000 immediately and another 60,000 by the end of the year.

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Today / August 5

Today in History (1981) - Ronald Reagan fires 11,359 striking air-traffic controllers who ignored his order for them to return to work. He also declares a lifetime ban on the rehiring of the strikers by the FAA.

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August 04, 2004

Today / August 4

Today in History (1735) - John Peter Zenger is acquitted of seditious libel against the royal governor of New York, on the basis that what he published was true. Two hundred fifty two years later, the FCC rescinds the Fairness Doctrine, which had required radio and television stations to "fairly" present controversial issues. Also, happy 75th birthday to Yasser Arafat!

Posted by PG at 02:29 PM | Comments (1) | TrackBack

Bad Analogies

To Wings & Vodka's dread, I suspect, I haven't quite finished with the McDonald's coffee case, which probably has the same Godwin's Rule-like properties on a blawg that abortion does on political blogs. While reading the otherwise useful comments to my first post, I noticed the shortage of good comparisons to this case.

Most of the attempted analogies fail because they ignore a distinctive aspect of Liebeck, which may be peculiar to the food and beverage industry: that it was necessary for the product to be at a third-degree-burn causing temperature while being manufactured, but it had to cool down considerably before being fit for consumption.

Ted tries to draw a parallel to his having gouged himself with a knife while cutting a bagel. The problem here is that household knives are never meant to be applied to skin. McDonald's coffee, on the other hand, is intended to be put into contact with one's most delicate skin, at the mouth's lips and interior. Similarly, Deoxy's examples of automobiles and airplanes also lack this feature of Liebeck. Automobiles are never meant to hit other large objects; airplanes are never meant to crash.

Guns, hot car engines and running lawnmowers pose a better comparison. When a homeowner buys a gun, she intends for it to cause injury when she fires it at someone. However, when guns have fired because the safety must be off to remove the bullets (as in this case), the gun has caused an injury that is not compatible with its purpose, and the manufacturer may be sued for the defective design.

Car engines and lawnmower blades also are situational hazards. One can safely touch a car engine as long as it isn't hot, and one can (more or less) safely touch lawnmower blades as long as they aren't in motion. Engines must heat in order for the car to move, and blades must whir in order to cut grass, but these are dangerous when in operation and shortly thereafter. The coffee, on the other hand, should not be dangerous during its consumption.

The facts of Liebeck are: The plaintiff was a passenger (not the driver) in a car. She purchased the coffee and carried it with the lid on until the car stopped. When the car was no longer in motion, she presumably deemed it safe to remove the lid and drink the coffee. However, at that time the coffee was still at a high temperature that certainly would have burned her mouth, as it did cause third degree burns to the skin of her pelvis and thighs.

To summarize this incredibly long-winded argument, the difficulty with the McDonald's coffee is that it is dangerous upon being served to customers. Coffee must be at high temperatures -- minimum 170 degrees F -- in order to be brewed properly, but the temperature must go down by at least 30 degrees in order to be drunk without scalding one's own mouth. If coffee manufacturers are in a dilemma -- the coffee must be burning hot during production, yet not upon purchase -- the obvious solution seems to be to make the coffee with the necessary heat, then wait for it to cool down enough not to cause serious burns before giving it to customers.

Ted makes a separate PointofLaw:

So, yes, let's criticize the jurors who let emotion prevail over reason and common sense, let's criticize the plaintiff who sought to take money from McDonald's to compensate her for her own carelessness, and let's criticize the judge who didn't put a stop to this nonsense before it got to trial. But let's not forget that the most powerful lobby in America wants to make cases like Liebeck a regular state of affairs--and that that problem is a far bigger problem than the aberrant plaintiff, jurors, or judge.
In other words, vilifying trial lawyers as a class is OK because they have an organization (American Trial Lawyers Association) and because unlike the "aberrant" plaintiffs who bring the cases, judges who permit them to go forward and juries who agree with the plaintiffs, they deal in such cases as a career.

This is an interesting argument, and might be compared to the reasoning commonly used in torts. Multiple parties contribute to the harm of excessive litigation, but in Ted's view, trial lawyers are the most proximate cause and therefore ought to bear the greatest responsibility. Or to use the Learned Hand formulation, trial lawyers are the ones who can most easily prevent frivolous lawsuits and bad verdicts, so the onus should be on them to do so.

Posted by PG at 02:10 PM | Comments (11) | TrackBack

August 03, 2004

Pet Peeve

The Curmudgeonly Clerk returns to that hoary old stick of the tort reform movement: the McDonald's hot coffee case. He does so in order to refute arguments from bloggers who have latched on to a couple of new-to-me ideas: 1) the woman's sweatpants were really the cause of the third degree burns on her thighs and pelvis; and 2) if hot coffee may cause burns, and those burns may cause lawsuits, then legislatures surely would ban the product. If there is no such ban, then the product must not be dangerous.

Part of the public mystique of this case is that the plaintiff received so much money for what seems like a trivial incident. However, originally she just asked McD's to pay for her medical costs, which doesn't strike me as unreasonable. McD's refused, the case went to trial, the jurors saw the company as monstrously uncaring and irresponsible ("negligent," in other words) and penalized McD's.

What always amazes me in any discussion of the plaintiffs' bar is the complete, yet covert, contempt that the typical tort reformer has for juries, which contempt he shifts onto an easier target (trial lawyers). Why question the good sense of the 12 average men and women who served on the coffee jury -- or even the integrity of the elderly woman who brought the case -- when you can vilify the lawyer instead? After all, the line doesn't go "let's kill all the jurors/ plaintiffs." Yet it is the jurors who chose to find McDonald's guilty and to impose the $2.9 million penalty; it is the plaintiff who chose to sue.

Even assuming stereotypes about ambulance-chasing attornies, no lawyer can force a plaintiff to bring a case, any more than she can force a jury to render a favorable verdict. But from the rhetoric of the tort reformers who hate the plaintiffs' bar, and who consider John Edwards dismissed with the epithet "trial lawyer," an intelligent Martian would think that attornies are the whole system, instead of the cogs in the machine that enable plaintiffs to bring suits and juries to understand them.

Posted by PG at 08:16 PM | Comments (28) | TrackBack

Electoral Hoo-Ha

A lot of chatter about electoral math going on here and here based on numbers that have been nicely compiled here. Though it's fun to talk about the issues, with so many states still polling within the margin of error, isn't it silly to pretend that this is going to be determined by anything but a turnout contest? If the Dems can get some of the Unregistered or Unvoting Millions to get off of the couch on election day, they'll win. If they bore those people into staying home, they'll lose. I'm inclined to think that the Democrats would be better served by cutting a few of their crappy ads ("I'm John Kerry. This is my big face on your screen.") and pouring some cash into some registration drives. Not that they'd actually need to use hard money for those activities, but post-convention ads seem so surreal--what with the massive amount of free media coverage that the candidates are already getting--that I'd rather see them use their federal funds to buy 150,000 IPod Minis to be handed out to unregistered voters in Florida or Ohio. And maybe to one registered voter in Texas.

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Symposium: What I Did Over Summer Vacation

Law students do all sorts of things over the summer, ranging from positions at top-ranked law firms to... positions at slightly lower-ranked law firms. Oh, and some other stuff too. We want to hear about your summer experiences, wherever you were -- the DA's office, clerking for a judge, public interest organizations, researching for a professor, and firms of all shapes and sizes, as well as people who took the roads less traveled. Tell us about the good, the bad, and the ugly of all the opportunities with which law students are confronted with each year, but about which they are never quite informed enough to know if they're making the right choice.

De Novo encourages all rising 2Ls and 3Ls to contribute posts about their experiences for our next action-packed symposium, scheduled to begin on August 30th. Send your stories to Pass on the word to non-bloggers, and non-blog-readers. Also note: anonymity is cool with us.

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Today / August 3

Today in History (1983) - New York Yankee outfielder Dave Winfield accidentally killed a seagull during a baseball game and was charged by police for his "act of cruelty to animals." And happy 63rd birthday to Martha Stewart!

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August 02, 2004

Catching Up with Crises

It seems like just yesterday that the biggest concern in collapsing the judicial system's capacity was the possibility that 50,000 detainees would file habeas corpus petitions to undermine America's ability to fight the War on Terrorists. Now the Big Story is Blakely v. Washington's disruptive effect on sentencing guidelines, through which the Supreme Court apparently has undermined America's ability to fight the War on Regular Criminals.

The latter doesn't seem to worry Prof. Eugene Volokh as much as the former did, though the difference may be simply that, like Justice Scalia, he agrees with the majority's reasoning in Blakely while disagreeing with it in Rasul. For most other observers, however, the immediate problem of hundreds of thousands of actual criminal cases far outweighs the hypothetical difficulty that granting habeas corpus to detainees may create.

Even among the lawyerly populace, the concern is more with the practical consequences of Blakely than with its constitutionality. When the Ninth Circuit decided that the "under God" portion of the Pledge of Allegiance rendered it a First Amendment violation, Congress trooped out en masse to chant it defiantly and passed legislation to contradict the ruling. In contrast, the Senate resolution regarding Blakely does not overtly question the Court's judgment, but only asks "that the Supreme Court of the United States should act expeditiously to resolve the confusion and inconsistency in the Federal criminal justice system caused by its decision in Blakely." Part of the resolution does poke at the decision a bit

Whereas in Mistretta v. United States, 488 U.S. 361 (1989), the Supreme Court of the United States upheld the constitutionality of the Sentencing Reform Act and the Federal Sentencing Guidelines against separation-of-powers and non-delegation challenges;
Whereas in Blakely v. Washington, 124 S. Ct. 2531 (2004), the Supreme Court held that the sentencing guidelines of the State of Washington violated a defendant’s Sixth Amendment right to trial by jury;
Whereas despite Mistretta and numerous other Supreme Court opinions over the past 15 years affirming the constitutionality of various aspects of the Guidelines, the Blakely decision has raised concern about the continued constitutionality of the Federal Sentencing Guidelines
but overall the tone matches that of a recent Washington Post editorial -- more "Clean Up This Mess" than "Reverse Your Decision."

With Blakely, the onus of clarification is on the judiciary. If facts that can amplify a defendant's sentence must be determined by a jury, then the Court must explain if this is true of all such facts or only those that in isolation would be the catalyst for increased sentences (see footnote 7 of Scalia's opinion for the distinction); if this rule will applies to the Federal Sentencing Guidelines or only the states'; if it will be retroactive to all sentences (a course likely to be far more crippling to the system than even a hundred thousand habeas petitions by detainees); etc. etc.

Personally I don't think that the federal sentencing guidelines have been made utterly unconstitutional. The chart is still good for use, but it must be used in conjunction with a jury's findings on the relevant facts. If the jury decides that a defendant has committed an offense at level 3 with no proven aggravating factors and has 10 criminal history points (doesn't this sound like a bizarre sequel to Grand Theft Auto?), then the judge can still run her finger along the axes and find that 2-8 years is the appropriate sentence, and presumably use her discretion within that wide span. This involves more work for juries, but that's not necessarily a bad thing.

However, with Rasul and Hamdi, I am inclined to agree with the hawkish Economist that Congress should take up the burden of assigning a legal status to the enemy combatants who heretofore lived in a vague limbo, neither Geneva Convention-governed POW nor Constitutionally-protected criminal.

"This week, the American judicial system began the long task of righting this huge wrong. The Supreme Court said that Mr Bush had the right to hold combatants without trial but, crucially, it decided that the detainees at Guantánamo could have recourse to the United States courts—something Mr Bush has (disgracefully) fought hammer and tongs. [...]
So progress has been made. But it is plainly not fast enough, and it is also clumsy: the judges are making America's terrorist laws because the politicians have not done so.
The Court's main determination made regarding the Bay's detainees is that they ought to have some sort of legal status, some way of getting off the island, and that the executive branch does not have a free hand in its treatment of them. However, Kennedy's concurrence in Rasul cites "the joint role of the President and the Congress in the conduct of military affairs," and Scalia says he dissents because he "would leave it to Congress to change [habeas statute] §2241" instead of getting the judiciary involved in overseeing the executive's military decisions.

Surely no body could give more guidance than Congress gave through the federal sentencing guidelines; their work there is done. Regarding enemy combatants, however, Congress has done absolutely nothing. Since September 11, it has resigned its powers:

To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water
Congress hasn't even had the guts to declare that the public Safety requires suspending the privilege of the Writ of Habeas Corpus. So while the courts figure out the consequences of Blakely, the legislature should be working out what to do with Rasul.

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Today / August 2

Today in History (1990) - Iraq invades Kuwait, causing to Saddam Hussein to lose American favor.

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August 01, 2004

Today / August 1

Today in History (1966) - Ex-Marine and architecture major Charles Joseph Whitman embarked on a shooting spree from a University of Texas tower that left sixteen residents of Austin dead and thirty-one others wounded.

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