Showing posts from February, 2007

Fighting the New Cold War and the Old One

No, the new Cold War is not a reference to chilly relations between Putin's Russia and the U.S., although some have warned of a new cold war on that front. The new Cold War I have in mind is the one to which Seymour Hersh refers in a scary article in the current New Yorker . Hersh explains that the saber-rattling at Iran is part of a larger Bush administration policy to side with the Sunnis against an emerging "Shiite crescent" in Iran, Iraq and Lebanon in a Middle Eastern cold war. Working behind the scenes with the Saudis, Hersh's sources say, the administration has been seeking to counter the spread of Iranian influence. The article is scary because it notes that many of the foot soldiers in the confrontation with the Shiites are al Qaeda or members of similar groups, such as the Muslim Brotherhood, and that these people hate Americans (whom they regard as crusading infidels) even more than they hate Shiites (whom they regard as apostates). With friends like t

Would Congress Confirm A New Vice President?

Today's assassination attempt on Dick Cheney raises the intriguing question of whether the 110th Congress would confirm a Republican as Vice President under the 25th Amendment. With South Dakota Democratic Senator Tim Johnson still unable to report for duty, the Democrats hold a razor-thin 50-49 advantage on the days when Joe Lieberman decides that he feels like being a Democrat. And with so many of the senators, both R and D, running for president, the outcome of actual votes in the Senate on any given day is a true toss-up. This is, therefore, one of those times when the Vice President's only constitutional duties -- presiding over the Senate and breaking ties -- actually makes a difference. The last time that the 25th Amendment was called into play, the Vice Presidency was vastly different from what it is today. Nelson Rockefeller was the last Vice President who was really a seat-warmer. (Dan Quayle might have been a lightweight, but he had a West Wing office and Poppy Bush

Eleven Angry Men and Women

In permitting the Libby jury deliberations to proceed with 11 jurors rather than seating an alternate, the judge is gambling that there will be no further need to excuse jurors. An alternate could have been seated but that would have required the jury to start its deliberations from scratch. The operative rule is Federal Rule of Criminal Procedure 23(b), which states: Jury Size. (1) In General. A jury consists of 12 persons unless this rule provides otherwise. (2) Stipulation for a Smaller Jury. At any time before the verdict, the parties may, with the court's approval, stipulate in writing that: (A) the jury may consist of fewer than 12 persons; or (B) a jury of fewer than 12 persons may return a verdict if the court finds it necessary to excuse a juror for good cause after the trial begins. (3) Court Order for a Jury of 11. After the jury has retired to deliberate, the court may permit a jury of 11 persons to return a verdict, even without a stipulation b

The DePauw Sorority Purge and Truth in Advertising

It was widely reported over the weekend that the national organization of the Delta Zeta sorority "evicted" 23 members of the DePauw University chapter because they were less attractive than the unpurged members. The national organization denies that appearance was the basis for the purge but the incident drew fire from both within and outside DePauw. A few reactions: 1) To my knowledge, neither Indiana law nor DePauw's internal non-discrimination policy specifically forbids appearance discrimination, although the university may have rules requiring sororities and other student organizations to be open to all students. (Searches of the DePauw website yielded a large number of pages no longer available.) Certainly, federal law doesn't forbid appearance discrimination. The stories (including one in the NY Times) indicate that the purge also targeted minority students, which undoubtedly would violate various prohibitions. For my purposes, however, I'll focus on

The Pace of Litigation

My FindLaw column later this week recaps the DC Circuit opinion upholding the Military Commissions Act insofar as it eliminates habeas jurisdiction for enemy aliens outside the U.S. As I'll explain there, it is difficult to justify the assumpton in Judge Randolph's opinion that the constitutionally required scope of habeas is no greater than what it was in 1789. Here I'll just make one quick observation about pace. The Bush administration first began detaining enemy combatants from the Afghanistan war in late 2001. Unless the latest case is expedited, it won't be heard by the Supreme Court until next Term, meaning a decision as late as June 2008. That will be the third time the U.S. Supreme Court will have heard a case challenging procedures for detaining alleged alien enemy combatants. And if the Court reverses the DC Circuit, that will undoubtedly give rise to further wrangling among Congress, the administration and the courts over what procedures are permissible

Tom Vilsack, We Hardly Knew Ye

The departure of Tom Vilsack from the Presidential field means that we now have a Presidential trivia question to rival "who was Ross Perot's running mate in 1992?" (Answer: James "Who am I? Why am I here?" Stockdale). The new question, of course: Who was first to announce his candidacy for the 2008 Democratic nomination for President? What else can we take away from Vilsack's ill-fated campaign that barely was? Herewith, three small lessons: 1) If your name is "Vilsack," you start in electoral politics with a large disadvantage. Kudos to the former Governor for advancing as far as he did. (No, I don't have a good explanation for why "Obama" is less of a handicap. It just is, somehow.) 2) The favorite son phenomenon is basically a thing of the past. Remember 1992, when Iowa Senator Tom Harkin won the Iowa caucuses because the other candidates didn't bother to campaign there? Remember how Harkin's campaign completely

The Charter at 25, and Scalia and Binnie on Constitutional Interpretation

The Canadian Charter of Rights and Freedoms turns 25 this year, and the anniversary is being marked by a variety of conferences. This story reports on a dialogue between Canadian Supreme Court Justice Ian Binnie and U.S. Justice Antonin Scalia recently at one such conference. Both Justices made what I think are interesting and newsworthy comments. Binnie, says the story, "extolled the virtues of measured judicial activism over an archaic notion of 'frozen rights' that do not evolve with the times." He added: "'The ability of the courts to move with the times has served this country very well. . . . I say that if you erect a silo over our court system based on a theory of originalism, it is a very good reason to throw it out.'" Finally, he said, "'[J]udges are as much a part of society as anyone else, and they can recognize a dead letter when they see one.'" Scalia, for his part, derided the notion of living constitutionalism, sayin

A Muskie Moment

Do you remember your President Nixon? Yes? How about Ed Muskie, the onetime Democratic frontrunner, whose teary-eyed speech in response to attacks on his wife lost him the 1972 nomination? Muskie claimed that the supposed tears were merely melted snowflakes but it was too late; the damage was done. Readers too young to recall this bit of ancient history might usefully compare Muskie's undoing to the Howard Dean "scream" that may have had something to do with the room's acoustics. But I digress. I bring up Muskie because of the news reports that in awarding custody of the remains of Anna Nicole Smith to the guardian ad litem of her orphaned daughter, Florida judge Larry Seidlin broke down in tears. Seidlin was moved by the realization that the media circus that his courtroom had become had been par for the course for Ms. Smith. "She had to live all her years under this kind of exposure,” Seidlin reportedly said. “I just get a week and half and this thing w

Gerhardt on the Catholic-Majority Court

Courtesy of Mirror of Justice comes a link to a paper by Michael Gerhardt of Duke, titled Why the Catholic Majority on the Supreme Court May Be Unconstitutional . Here are some relevant snippets from the introduction: * * * * * In this Essay, I examine two ways in which our national leaders may have damaged the rule of law in the ways in which they appointed the current Catholic majority on the Roberts Court. First, [in] their zeal to control the Court through their appointments to the Court our national political leaders demonstrated (perhaps unintentionally) a regrettable faith in the rule of law. . . . The problem with insisting that the maintenance of a government of laws depends on appointing people with the right kinds of ideological commitments is that it sacrifices another principle on which our faith in our system of government of laws in turn depends. I call this other principle the golden rule of constitutional law: On the Supreme Court, justices recognize that they must

Is the Supreme Court Final?

Last year, in Sanchez-Llamas v. Oregon , the U.S. Supreme Court held that a suspect's failure to raise his rights under the Vienna Convention on Consular Relations in a timely fashion under state law barred him from later arguing, in a habeas corpus petition, that the arresting officers' failure to inform him of his Convention rights rendered his conviction invalid. Although the ruling rested in part on the Court's conclusion that a Vienna Convention violation does not give rise to an exclusionary remedy, in the course of upholding the procedural bar, the Court rejected the argument that it was bound to accept as authoritative the interpretion given the Convention by the International Court of Justice in prior cases involving the United States. The ICJ had held that a state procedural bar would be ineffective under such circumstances. In rejecting the notion that the ICJ interpretation is binding, the Supreme Court (per CJ Roberts) appeared to invoke a principle of const

Indian "Apartheid," Hidden in Plain View

Ten years ago this month, South Africa’s post-apartheid constitution went into effect, laying the foundation for the establishment of a non-racial democracy with a mandate to overcome the effects of decades of institutionalized inequality. The new South African charter has been widely heralded as among the world’s most progressive, entrenching a broad range of civil, political, economic, social, and cultural rights as foundational guarantees and explicitly mandating courts to consider international human rights norms when interpreting its fundamental rights provisions. With formal South African apartheid receding into the past, however slowly, as South Africans work arduously to overcome its legacy, what does it mean to invoke the concept of “apartheid” in the world today more generally? Comparisons to South African apartheid have abounded for years, and have invariably been controversial. In recent months, for example, former President Jimmy Carter has argued to some controversy

It's Google. This Must Be Belgium.

As cyber-geeks the world over know, last week a Belgian appeals court upheld the order of a Belgian trial court forbidding Google News from including Belgian newspaper content on its website. (I have been unable to locate an English-language version of the most recent decision. The link above includes an English version of last year's trial court ruling.) The latest decision includes fines of a few million dollars for the time during which Google was unlawfully linking to the Belgian news sites, which is real money to normal people but not to Google. I admit to not following this story quite as closely as some of my more teched-up friends, and thus I could be getting this all wrong, but with that disclaimer, I must say I don't have much sympathy for Google's argument in this dispute. Google News aggregates news stories from newspapers around the world and displays them on a single web page. Clicking on a given story directs you to the website of the newspaper from whi

The Newly Constitutionalized Code of Civil Punishments

Philip Morris is remarkable on a number of levels it seems to me, the most immediate of which is how the Court divided: what issue would you have predicted that Breyer, Roberts, Kennedy, Souter and Alito would line up against Stevens, Thomas, Ginsburg and Scalia? On a somewhat more substantive level, it seems remarkable for how quickly the Court is stealing the "tort reform" thunder from the Republican Party. On a clearly more substantive level, this decision continues the growing "jurisprudence" that has accreted, in about a decade (since BMW v. Gore (1996)), establishing firm constitutional limits on the "jury system" across the states. That jurisprudence is now quite substantial: TXO Production v. Alliance Resources (1993) (awards that are "grossly excessive" can violate fundamental fairness and therefore DP); Honda Motor v. Oberg (1994) (punitive damages awards by juries must be subject to judicial review); BMW v. Gore (awards can be gros

Punitive Damages Decision

I don't usually use this space just to post news but I thought it worth pointing out that the Supreme Court today issued a remarkable ruling on punitive damages. In Philip Morris USA v. Williams the Court held that the due process clause forbids a state from including in the measure of punitive damages harm done to persons other than plaintiffs. Among other things, the case produced an interesting alignment. Breyer wrote the majority opinion, which was joined by Roberts, Kennedy, Souter, and Alito. The dissenters were Stevens, Scalia, Thomas, and Ginsburg. Discuss amongst yourselves.

Student Happiness

In her column in this morning's New York Times, Ann Althouse criticizes John Jay Osborn Jr.'s call to law professors to stop "making our students so unhappy; stop calling on them; listen only to volunteers; don't dictate how they should think; let them tell their own stories." (Althouse and Osborn are both law professors. Osborn is also the author of the Paper Chase.) Althouse thinks that the best way to respect students' "individual autonomy" is not to try to make them happy but to "teach them what they came to learn: how to think like lawyers." She believes that's best done by teaching from cases rather than devoting class time "to the personal expression of law students." I'm doubtful of the conventional wisdom that law school is mostly about "learning to think like a lawyer." Certainly there are ways of thinking that are especially important to lawyers. A reasonably well educated young adult has alrea

Marriage and Procreation

A Washington State gay-rights group calling itself the Washington Defense of Marriage Alliance has taken an innovative approach to protesting that state's refusal to recognize same-sex marriage. Late last month, the organization successfully filed a petition for a ballot initiative that, if passed, would make procreation a requirement for legal marriage. As stated in the organization's press release, the measure would: add the phrase, “who are capable of having children with one another” to the legal definition of marriage; require that couples married in Washington file proof of procreation within three years of the date of marriage or have their marriage automatically annulled; require that couples married out of state file proof of procreation within three years of the date of marriage or have their marriage classed as “unrecognized;” establish a process for filing proof of procreation; and make it a criminal act for people in an unrecognized marriage to receive marriage

Sports and the Rule of Law

Yesterday's New York Times Sports section carried a front-page article describing a rules crackdown by NASCAR. I confess up front that I know virtually nothing about NASCAR or the particular rules that are at issue. The article noted, though, that NASCAR officials had decided to try to distance their sport from its outlaw past (apparently, the sport started with moonshiners outrunning "revenooers" on country roads in the states of the old Confederacy) in order to broaden its already considerable appeal to suburbanites both inside and outside the South. The theory, evidently, is that a sport cannot be taken seriously by modern Americans if it is well known that the rules are winked at and that cheating is even expected. I do know something about professional basketball. One of the accepted truths among NBA types is that the league's explosive growth from the 1980's onward has been based on emphasizing the superstars. Magic, Bird, Jordan, Shaq, and their heirs

Equal Time for the Flat Earth Theory?

If you have ever wondered why American religious fundamentalists object to the teaching of evolution in public school but not to the teaching of geology, cosmology and other sciences that make findings contrary to the Biblical account of creation, wonder no more. Some such fundamentalists, it turns out, do object to the whole shebang, especially the big shebang that started it all off. Texas legislator Warren Chisum recently made headlines when he circulated to his colleagues a memo from Georgia legislator Ben Bridges that claimed, among other things, that evolution cannot be taught in public schools because it is a religious viewpoint. And not just any religious viewpoint, but specifically a Jewish viewpoint. According to this fact sheet from a group affiliated with Representative Bridges, hundreds of years before Charles Darwin set foot on The Beagle, Kabbalist rabbis had formulated the modern tenets of science, including the Copernican theory, the age of the universe, the Big B

"Academic" Freedom for All

In response to Paul's interesting post on the distinctive characteristics of universities, I'd like to register a vote for their non-distinctiveness. My point has both a constitutional dimension and a policy dimension. As a matter of constitutional law, I think it would be very difficult to make an argument that an institution denominated a university, or the faculty thereof, is entitled to First Amendment protection for academic freedom beyond the freedom from government censorship enjoyed by all speakers. In general, First Amendment doctrine rejects such institution-specific protection. Thus, the Supreme Court has (essentially) rejected any constitutionally obligatory privilege of reporters to protect sources, and while the decision so holding, Branzburg v. Hayes , may have been subject to legitimate criticism when it was handed down in 1972, it seems more correct today, when millions of people can call themselves journalists in virtue of blogging. Any attempt to provide

What is the "University?" What is a FAIR University?

At Prawfsblawg, my co-blogger Rick Garnett has a wonderful post discussing Prof. Geoff Stone's discussion of the Kalven Report and the role of the university. Let me add some unduly lengthy thoughts. First, Prof. Stone's argument ultimately sets much store in defining "the university." A university, in his view, has a broad but ultimately static function: to create a forum for fearless speech and inquiry, and not "to proclaim the truth." Thus, "once a university takes sides, it is no longer a university." I have been thinking a good deal about universities and the First Amendment these days, and it seems to me that there is a tension between basing First Amendment rights inhering in and around the university on academic freedom, and the non-legal concept of academic freedom itself, which is hardly as fixed and uncontested as the courts' depiction of it might suggest. One way to resolve this is to just come up with a definition of what "t

Deans' Letter on Judicial Pay

Echoing calls for higher pay for federal judges by Chief Justice Roberts, Justice Kennedy and others, 140 law school deans sent a letter to the Congressional leadership essentially piling on. The letter, which was the idea of and authored by my own beloved dean, David Schizer, does not make any new arguments, and, from a public relations perspective, seems like a no-brainer for any particular dean--an essentially cost-free way to ingratiate his or her school with the federal judiciary. I don't mean to be cynical. Despite my own observations about income inequality , I don't disagree with the letter. Were I a law school dean (heaven forbid), I would sign it. All I'm saying is that it's not surprising that so many deans signed on. The mystery is why some deans didn't sign. And some didn't. Most of deans of the top law schools signed, but there are a few notable absences. For example, the deans of 3 of the 4 elite California law schools (Berkeley, Stanfor

What Public Servants Earn

The recent attention paid to judicial salaries on this blog ( here , here and here ) raises a baseline question. Granted, Supreme Court Justices are underpaid relative to law firm associates and even faculty at leading law schools, but then why are those the relevant comparisons? Consider the following take-home pay numbers: Chief Justice of the United States: $212,000 Active duty Army sergeant with 4 years of experience: $25,495 (Source here .) Richard Grasso's 2003 take-home pay as CEO of the NY Stock Exchange: $139,500,000 Grasso was not a government employee as head of the NYSE, but NYSE is a non-profit organization, and thus under New York law, can only pay compensation that is "reasonable" and "commensurate with services provided." Accordingly, Grasso and NYSE are defendants in a civil suit brought by the New York Attorney General to rescind much of his pay. Grasso will certainly argue that these terms must be defined by reference to industry standard

Choose Your Poison

Regarding Jamison Colburn’s post on Thursday regarding nuclear power ( 'Who Can We Blame?' Is Always A Game Played Best From Afar ), I think the lesser-of-evils question in energy production is one of the most difficult questions we face. Nuclear power is undeniably a very dangerous way to produce energy. Yet it is also true that not using nukes means we use more fossil fuels, which without question causes death and disease (as well as economic damage) on a tragic scale. Still, I have always been convinced that even the less-than-certain catastrophes that can only be associated with nukes (meltdowns, theft of deadly materials, unsafe disposal of waste) are simply too horrible to risk. An article in Harper's many years ago made the further point that nuclear power plants themselves have finite lives, meaning that we ultimately have to worry about how to mothball what amounts to a huge chunk of radioactive concrete. Too dangerous to disassemble and move, they pres

A Blue-Collar Reaction to a White-Collar Defense

Further to the issue of the Libby defense, I'd like to point out that this is another tried and true example of how blue collar criminal defendants are treated differently from white collar criminal defendants. Consider the typical blue collar criminal case where evidence is circumstantial. When have you ever heard of a blue-collar case in which the defense has been permitted wide latitude to rebut evidence of intent with third-party testimony of what a busy man the defendant is? When have you ever heard of a blue-collar case in which the defense is allowed to rebut evidence of intent with the argument that what the defendant is alleged to have done is stupid and no one would be stupid enough to do what the defendant is alleged to have done? The prosecutor's rejoinder to those arguments on closing is that the criminals we tend to catch are the stupid ones; the really smart ones get away. Here, Libby's lawyers argue that a busy man like Scooter, who holds down "the equ

No Valentine's Day Sex Toys in Birmingham

Yesterday---in honor of Valentine's Day?---the Eleventh Circuit upheld an Alabama law banning the commercial distribution of sex toys, or as the statute describes them, devices "primarily for the stimulation of human genital organs." (Read the opinion here .) This was the third time this case was before the 11th Circuit, with the same result each time. First, the court said the law survived rational basis review; then it said that despite Lawrence v. Texas , there is no fundamental right to sexual privacy; and then yesterday the court said that Lawrence also didn't undermine the conclusion that the law serves no rational basis. The 11th Circuit distinguished Lawrence on the ground that "while the statute at issue in Lawrence criminalized private sexual conduct," the Alabama law "forbids public, commercial activity." There's certainly something to that. Lawrence doesn't, for example, call into question laws that forbid prostitution (c

'Who Can We Blame?' Is Always A Game Played Best From Afar

In watching and reading the coverage of the deal with North Korea, I've been struck by the degree of caution with atomic technology everyone agrees is appropriate where someone like Kim is concerned. This crazy cannot be trusted and we don't have the resources to verify proper handling and disposal of fissile material as a mere outside monitor. There seems to be no question whatever that preventing the entire country of North Korea (or others) from making use of one of humanity's most advanced sources of energy is a necessary price for the increment of global security that will come from a non-nuclear North Korea. If North Koreans wish to curse someone for the degree of their poverty attributable to their lack of cheap, reliable electricity, they should curse Kim, of course. Debate here ends before it might lead to a wider accounting of how North Korea came to be the regional (and perhaps global) problem it is. The script seems to be in reverse when it comes to the deg

Document Review for the Chief Justice

Justice Kennedy testified before the Senate today that federal judicial salaries are too low and are hurting judicial morale and independence. This is an old issue, and Kennedy didn’t say anything that he and others haven’t said many times before. But with law firm salaries on the rise again, I began to wonder: Is it possible that first-year associates might soon make more than Supreme Court justices? And sure enough, the answer is yes. Simpson Thatcher recently raised starting salaries to $160,000, and the expectation is that other major firms will match, if not beat, that number. A typical bonus is about $25,000, but with a little effort and luck a first-year associate could receive $50,000 to $60,000. Add it up, and that 25-year-old who still doesn’t understand the hearsay rule is making $210,000 to $220,000. The salary of Supreme Court justices? $203,000. And the Chief’s salary? $212,000. Can you say document review, John Roberts?

Scooter Libby & George Costanza

Scooter Libby's defense goes something like this: Okay, mabye I did tell the FBI that I learned Valerie Plame was a CIA agent from Tim Russert, but that's because: a) In general I'm a really really busy guy who can't remember details from hour to hour; and b) I spoke to lots of journalists about the Joe Wilson business and didn't tell them anything about Plame, so I can't be expected to remember that my conversation with Russert went differently. As Richard Nixon famously observed, it's not the crime that does you in; it's the cover-up. For reasons that have not yet been made clear to the public, Fitzgerald decided not to charge Richard Armitage, Ari Fleischer or Karl Rove with leaking Valerie Plame's name to the press, even though they have all now admitted doing so. Perhaps Fitzgerald concluded that they did not thereby break the law. In any event, in keeping with the pattern in cases of this sort (think Martha Stewart, Bill Clinton's imp

Violinists For Choice

In response to Adam S.’s comment criticizing my analogy between forced intimate altruism and forced pregnancy: I too find the violinist hypothetical case unhelpful, primarily because it is so strange and improbable that it fails to trigger powerful intuitions on my part that would help illuminate the issue of abortion. On the other hand, I do want to clarify that there is a world of difference between leaving a baby in a dumpster, on the one hand, and terminating a pregnancy, on the other. What I propose distinguishes pregnancy is not, as Adam S. implies, the fact that the fetus is dependent on the pregnant woman for its continuing survival (in the way that a baby is dependent on a caretaker). It is instead the fact that a fetus’s dependency consists of occupying a woman’s body in a highly intrusive, risky, often painful, and intimate way for an extended period of time. Perhaps it is difficult for some men to imagine the degree to which an unwanted pregnancy imposes on a

Faith, Abortion, and Mike Huckabee

Sunday, on "This Week" with George Stephanopoulos, former Arkansas Governor Mike Huckabee presented himself as the "paradoxical Republican" candidate for the 2008 Presidential nomination. (Watch the video here .) He enjoys music (even plays in a rock band) and believes in taxes to support social services (such as building roads). Yet he is also pro-life and otherwise a social conservative. He comes across very well -- sounds moderate, reasonable and pleasant, but -- for those of us who believe in a secular system of government -- he is dangerous. He said two things that, alone and together, might be cause for alarm. The first comment was about Mitt Romney, a rival Republican presidential candidate and a Mormon. Stephanopoulos pointed out that as a Baptist minister, Huckabee might view a Mormon as belonging to a "cult." Huckabee did not dispute this suggestion but responded that he is far less disturbed by a candidate of a different fait

Textualism Shmextualism: It's About the Merits

Thomas offers a plausible account of why the public would be receptive to slogans like "judges should interpret the law, not make it," but I'm not persuaded that the vast majority of voters pay enough attention to questions of jurisprudence even to distinguish between the bumper sticker versions of originalism/textualism on the one hand and living constitutionalism on the other hand. What people care about is results. That's why, as Barry Friedman has argued, criticism aimed at the countermajoritarian character of the Supreme Court has tended to erupt at just those moments when the Court's decisions have been especially unpopular on substantive grounds. This explains why news coverage of the use of terms like "strict constructionist" tends to emphasize that this is a code phrase for "overturn Roe v. Wade ." It is intended as such code , even though one could actually be a strict constructionist or textualist or whateverist on a whole range