As it's too unsingable for the Law Revue show, I inflict it here.
Load up on text, dictionary
Help Gore to lose, bye bye Kerry
Hist'ry stored, he's self-assured
Balancing's a dirty word
Hello, hello hello, Nino
Hello, hello hello, Nino
Hello, hello hello, Nino
Hello, hello, hello, hello…
In the oral, humor's dangerous
Though it's serious, entertain us
Nervous guffaws, are contagious
Hey Antonin, entertain us!
A square and dark
Don't ask about
Hello, hello hello, Nino
Hello, hello hello, Nino
Hello, hello hello, Nino
Hello, hello, hello, hello…
[sung by Scalia fan]
And I forget just why he riles
Oh yeah, I guess it makes me smile
Conservatives, get cheap thrills
In hearing others called imbeciles
Hello, hello hello, Nino
Hello, hello hello, Nino
Hello, hello hello, Nino
Hello, hello, hello, hello…
[sung by other justices]
His opinions, almost cussed us
No way he'd be, Chief Justice
Inconsistent, he'd bust us
No way he'd be, Chief Justice
A square and dark
Don't ask about
Yah, a denial [10x]
I don't know if it's just the clinic professors whom I've encountered, or something common to the breed, but they seem more inclined to iconoclasm about the legal profession than the other faculty members are.
There is something called the "Daily Buzz" that links to articles of interest that appear in the New York Law Journal each day. We thought you might enjoy the list of article about judge problems, just from today's Daily Buzz. We did not make this up.
Hello everybody, and welcome to Blawg Review #46 where we don't just review, we review de novo!
Before we start out on the trail of good posts, I'd like to take this opportunity to thank the esteemed editor Ed. for allowing me to host Blawg Review once again. I almost held this Review hostage just to find out who Ed. was, but instead I decided to take this opportunity to talk to my fellow legal geeks about something that has been bothering me for some months and that nobody seems to be discussing.
Here is the problem as I see it (and I'm sure I'm just as much at fault as anyone else): nobody is giving out permanent links anymore. As much as I love Bashman and Volokh, I haven't seen the links on their sidebars change for over a year! It seems that in an effort to become more professional, blawgs have become static, just like the websites we found before blogs came around. They have great writing, but they are all starting to talk about the same thing; rolling with the news cycle instead of creating it.
So here is your chance to show that lawyers are all about learning new things no matter who is telling them. If you read something you like, put a link to that blawg on your sidebar as a silent thank you for a job well done. I know plenty of you out there know how to tip -- you'd better if you're going to drink those $7 coffees -- and this is how tipping works in the blogosphere. Best of all, it's free! So show some link love to these blawgs that are anything but ordinary and are found below in no particular order. (Read them all, they're all good!) This isn't a flashy Blawg Review; the flash comes from the writing found in these great posts.
I figured we should just start right at the beginning. Why are lawyers such pessimists? A man down-under might have the right answer for you. Then again, I'm not sure it is the right answer.
Over at Nanotechnology Law there was a creepily interesting post on Artificial Intelligence becoming the new legal entity. I guess if McDonald's is a legal entity, why not my computer? The post is short, but check out the links, they're artificial hair raising!
Over at Minor Wisdom, Ray Ward reviews Judge Aldisert's book, Logic for Lawyers, gives us a logic puzzle from the book to solve, and in a later post, solves the puzzle while explaining his logic step by step. Why the explanation? Because, as Ray put it, "For lawyers, the proof of the solution is as important as the solution itself. Our job as lawyers is not only to figure out the solution to a legal problem, but also to convince others (clients, opponents, judges) that our solution is correct. We can't do that unless we explain our reasoning step by step, showing that each step is grounded in fact, not speculation." Tell us the truth Ray, you're a member of Mensa, right?
I received quite a few submissions for the "Top IP Cases of 2005," which is over at the Technology & Marketing Law Blog. It certainly was a good read, and best of all, I now know it is okay to have you all call me The Incredible Hulk!
This post at Tech Law Advisor gives me hope for the future of legal blogs. I would have put this at the top of my list since it so nicely melds with my introductory comments, but I promised that I would introduce all these posts in no order whatsoever. (Hey, I have to get a job from somebody one of these days!) It informs us about a new blawg dubbed Blawgr that you're all cordially invited to join. That is taking the legal discussion to a higher level!
Nudity! Ah yes, nudity. Never one to give up the opportunity to discuss this topic, I must direct you towards The Patry Copyright Blog. Not only is there a post about nudity, (yeah, that Google thingy), there are two of them! Outlaw also has some good coverage of the topic. What would we do without those thumbnails? Sivacracy points out that the district court ignored its Circuit's precedent.
Over at Jim Calloway's Law Practice Tips you can read a great post on spicing up those CLE materials or you can get scared to death that the government can get at documents in your network without a subpeona. I suggest reading them both, but I'll swear that I never sent you there.
The Trademark Blog has a great post on a relatively new development in the law. Apparently gay women want to be known as "Dykes on Bikes" and Damon Wayans is attempting to trademark "Nigga" for some of his product lines. Well maybe it isn't so new -- NOFX, a punk band, put out an album in 1993 called "White Trash, two Heebs and a Bean." I guess some people just market to those who don't mind poking a bit of fun at themselves. Must be a small market. If you want something a bit more lighthearted you can read the post on fair use and the phrase "Where's the beef?" Frankly, I think the flip-flop industry should be all over Bush.
Ted Frank over at Point of Law had the scoop on the heckler heckling Justice Scalia during his address at the American Enterprise Institute. I'll let you get the details there, but I just have to say that whether you agree with his jurisprudence or not, Justice Scalia certainly knows how to get the hecklers riled up. Ted, he's not a "glutton for punishment" -- he just loves to piss-off his opponents. That is how he made up for having a minority position on the Court. I'm not sure what he's going to do with himself now.
The Wall Street Journal Law Blog, (hold on a minute, I have to giggle just a bit about the WSJ as a blog), has two excellent posts/ articles? about Mark Lanier, "the Texas plaintiff attorney and Baptist preacher who won a $253 million verdict against Merck in the first Vioxx trial". The first discusses Mark's musical tastes, and the second gives him a few ideas to download via itunes. I'm quite partial to "Heart Attack Man" by the Beastie Boys.
Professor Maule always has fun stuff to mull over. This post about obnoxious emails from students and the benefits education actually derives from the vast majority of emails was quite fun. (Mostly I thought it was fun because I can't possibly imagine writing something like this; "the future leader of America who notified her teacher that she was late for class because she was dealing with the consequences of heavy drinking at a "wild weekend party.") It is a serious post however, and I'd suggest reading it before sending your next email. If you want to get real serious, you can read his "The Taxation of Kidney Swaps" in which he makes a good argument that people who are swapping kidneys should (legally speaking) be paying taxes on the exchange. Talk about a topic to get your blood boiling!
Oh, how could I forget the porn? Dan Filler at Concurring Opinions is looking forward to the new "Porn Report" from our Attorney General. This is a very illustrative post on how there is no such thing as bad publicity.
Ben Cowgill's On Legal Ethics informs us that lawyers had better start getting better at math. You think I'm kidding? Read this quote about the Supreme Court of Kansas; "In that way, the Court effectively held as a matter of law that it is professional misconduct for a lawyer to "round up" a time entry, and thereby charge the client for more time than the lawyer actually devoted to the particular task, regardless of whether the dollar amount of the resulting charge (or the total fee) is reasonable or unreasonable."
Professor Bainbridge backs up the conventional wisdom that the way the Sarbanes-Oxley Act was made law just, well, just plain sucks. Bainbridge stands out even when he's one of the crowd.
J. Craig Williams at May It Please the Court, (I still like making the judge clear his throat), has a great post on why it sometimes is a good idea to settle early. Sometimes it is a $940,000 difference.
AutoMuse has a great post on anti-trust and the conspiracy to keep prices artificially low. Low, you mean high right? Nope, check it out, it is a good read that should encourage some of you to go back and crack open those econ books. Of course, what's the point, we've decided to give these companies an exemption from anti-trust laws anyway.
Drugs! Yep, we haven't discussed drugs yet, so you have to check out this new way to get drugs that is just as illegal as the old way. Except this drug is good for you and comes from a goat!
If you didn't read this post at New World Man last week, read how the Italian court has either idiots or assholes for judges. No, I don't say that lightly. Italy's high court concluded that the fact that a 14-year-old girl had previously had sex and therefore wasn't a virgin gave her stepfather-rapist possible mitigating circumstances that the crime was less serious. Some stories just piss you off.
Baseball Crank had a great post on a case that is near and dear to the hearts of most bloggers; who is a journalist? "The Fourth Circuit rules in The Baltimore Sun Co. v. Erlich that the Governor of Maryland may legally refuse, and order his staff to refuse, to work with certain reporters where the paper had other means of covering the administration. Crank notes that had the court held otherwise, inevitably rules would have to be crafted regarding who could compel government officials to speak to them, which would get courts in the business of deciding who's a journalist and who isn't." Well, they ducked the issue for now.
Adam Smith Esq. as usual had some very good posts last week. (My econ background always makes me perk up and take note when I see that masthead.) First Bruce informs us that the new "in-thing" for management is collaboration rather than competition. Then Bruce pulls out the crystal ball and gives us a look at the state of law firms in 2015. Do you work in a 1,000-plus-lawyer law firm? You have to love this guy!
The Greatest American Lawyer is pushing for us to start taking digital dictation in his effort to move law firms towards a paperless existence. (Do you think this guy is invested in computers or what?) He does make some excellent points, (and frankly I'm planning on doing it myself), but I can't help but wonder what happens once private conversations between lawyers and clients are so easily leaked.
Longhorn Law and the Red State Feminist point us to a document archived at the Smoking Gun known as the "Contract of Wifely Expectations." Oh yeah, it's real, it's demented, and if my daughter brought this contract home to me... well, I'll just have to leave the rest unsaid. What a pig. I bet he would have been a big hit in Italy though!
I figured I should include this post from the Family Law Blog that dicusses some legitimate reasons for the common guy/gal to get a prenup. Seriously though, don't approach your sweetheart with a "baby, wanna get a prenup" because the experts say it isn't sexy.
Over at the Menagerie there is a great post about a kiss that is more than a kiss. In fact, this kiss sent a man to prison for the rest of his life. I feel sorry for anyone still in the dating stages of life.
At Kierkegaard Lives there are two posts of note this week. "California Postpones Execution For Lack of Doctor Participation" pretty much sums up the whole debacle that has been brewing in California lately. Everybody repeat after me... oxymoron. Speaking of morons, Kierkegaard has a great post on my favorite idiot to get mad at: Fred Phelps. First you need to know that Phelps protests at our soldiers' funerals, in nasty nasty ways. This is a happy story however, about a group of Americans that are welcome to stop by my house for a beer and a burger anytime. A group of bikers dubbed the Patriot Guard Riders shield the families of the fallen soldiers from the WBC protesters, and overshadow the hate speech of Phelps's group with "patriotic chants and a sea of red, white, and blue flags."
That is all I have for this week. In closing I'd just like to mention that the blawgmother Denise Howell is looking for some info on "blogging, the 1st Amendment, and the law" to supplement her panel discussion coming up at the forum at Santa Clara March 1st-3rd. I hope you enjoyed this week's Blawg Review. Remember, Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues. Don't forget, give some of these hard workers your link love!
I've posted summaries of about half the activity at this weekend's Federalist Society student symposium at the Columbia chapter's blog. If you want to play a game, compare my description of Ambassador John Bolton's speech to that reported in the mainstream media and see Who's More Liberally Biased?
My moot court editees might appreciate this Boondocks strip from a couple of weeks ago:
Today in History (1803): Chief Justice John Marshall announces the Supreme Court's decision in Marbury v. Madison.
I point out for the benefit of those who say, "Oh, we don't need Roe, no state would actually ban abortion nowadays" this South Dakota bill:
The proposed legislation, which states that "life begins at the time of conception," would prohibit abortion except in cases where the pregnant woman's life was at risk. Felony charges could be placed against doctors, but not against those seeking abortions, the measure says.This surprises me not at all; a similar scheme of making the physician but not the patient a criminal is in much anti-abortion legislation, including the federal ban on dilation and extraction set to be reviewed by the Supreme Court. What I am wondering is whether there are parallels in any other criminal statute dealing with transactions between consenting and knowing adults, in which the provider is charged but never the buyer. Not drugs, sex, obscene materials, materials from endangered animals... anyone know of such a law? Obviously this is part of the "We love women, just not those evil abortionists to whom the unfortunate women go" attitude among the opponents of legal abortion, which probably is sincere among most of them and good politics for the remainder. Unwillingly pregnant women, particularly survivors of rape and incest, are a little too sympathetic to advocate throwing in prison -- much better to put them in the role of minors or other people who can't be held to have known what they were doing.
I go straight from the Journal of Gender & Law's symposium on Sexuality and the Law...
Yes, I am the only person I know who's in both organizations. No, I didn't realize they were both this weekend until it was too late.
Whether I'll still want to be in law school by Sunday is an as-yet unanswered question.
Today in History (1943) - American studio executives agree to allow the Office of War Information to censor movies, and Norman Rockwell's "Freedom of Speech," which the Office of War Information had been uninterested in publishing, appeared in The Saturday Evening Post.
A law school friend was thinking of a way he could help mankind the other day, but worried that it might violate the "no ambulance-chasing" tenet of the ethics code (presumably including the rules of civil procedure, as that would be the only reason for me to know about it; a semester of Civ Pro can get across more than 12 hours of professional responsibility did). In litigation, the opposing side has reason to look for any breach of professional conduct, but I wonder if there's much reporting of one lawyer by another otherwise.
An incident in which an older attorney who was annoyed by a younger one and forwarded their e-mail exchange to others degenerated that far:
Abdala said she has no regrets about the e-mail exchange. She said she has reported Korman to the Board of Bar Overseers for ''unprofessional and unethical" conduct for forwarding her e-mail to an outside party. She also said she believes that Korman's remark about Boston's ''small legal community" was tantamount to ''threatening my legal career," and that he circulated the e-mails as a ''cheap ploy to bring more business to his firm."Neither do I. Thoughts from the more Professionally Responsible?
Threatening Abdala ''certainly wasn't my intention," Korman said. ''My goal wasn't to put her on the defensive, but simply to say there's a strong likelihood, given the small size of the criminal defense bar, that our paths would cross again." Korman acknowledges he sent the e-mail to a colleague, and said he did so because ''it was so shocking and unbelievable."
''All I did," he added, ''was forward a non-privileged, non-client communication to somebody who then chose to forward it along. I really don't see where the ethical breach is."
Perhaps it's just as well that I'm only donating to PILF directly rather than attending the auction. If ours is anything like UC-Hastings, I'd come out much the poorer.
I raised $400 for a scholarship fund.
Out. Of. My. Own. Goddamned. Wallet.
Yes there was alcohol involved, but nothing justifies what I did.
Moving from porn to prostitution, this sentence in a story about a sheriff who no longer will allow deputies to participate in law-breaking by receiving services while engaged in stings raised my eyebrows: "The two suspected operators and three women accused of working there face several charges, including prostitution and sodomy, Smith said." Scalia et al.'s alarmism notwithstanding, the place of prostitution in the criminal statute books faces little challenge from Lawrence, but there is no reason to treat paid sodomy differently or separately from paid non-sodomy.
In Virginia, prostitution is a Class 1 misdemeanor and § 18.2-361, crimes against nature, is still on the books and counted as a Class 6 felony, but any half-competent defense attorney should prevent the felony from being charged due to its unconstitutionality. Possibly Virginia could try to do the same thing with prostitution that other states have done with statutory rape, i.e. imposing a higher penalty for the crime when it involves sodomy. (The reasoning behind the Kansas Supreme Court's declaration that the state's "Romeo and Juliet" exception is unconstitutional doesn't necessarily help the Virginia prostitutes, because that was dependent on the "opposite sex" provision, not one about the acts involved in the crime.)
Incidentally, I actually did find plausible the necessity of having the suspect at least begin to perform the service, "because most professionals know not to say anything incriminating. And conversation is difficult, he said, because masseuses at the Asian-run parlors in the northern Virginia county speak little English." The aforementioned half-competent defense attorney also ought to be able to, well, get off an immigrant woman who's being charged with a crime solely on the basis of having made a rude hand gesture, unless the prosecution can prove that both she and the customer were using an official recognized sign language. The disgusting absurdity of such stings shall remain to be discussed another day.
And therefore we must reduce our pornography in order to keep it safe. Or something like that.
The Washington Post reports that last week, two "officers of the security division of Montgomery County's Homeland Security Department, an unarmed force that patrols about 300 county buildings -- but is not responsible for enforcing obscenity laws" -- walked into a Bethesda library, announced that patrons were not to view internet pornography and asserted that one patron was viewing it. There's been a lot of mockery of the officers, who according to Montgomery's chief administrative officer thought they were enforcing the county's sexual harassment policy, which forbids the "display of offensive or obscene printed or visual material" in the workplace, but in a public space such as a library is overridden by the 1st Amendment right to view offensive material.
More seriously, though, I wonder what brought the officers into the library into the first place. Had someone felt sexually harassed and went to complain to them? It either was an unusually free-speech disfavoring library employee, who would have a complaint about workplace harassment, or someone with a misconceived idea of how far sexual harassment policy extends. There also are the many questions raised by the presence of the officers. I'm willing to believe that Montgomery Co., an upscale suburb of Washington D.C., might need some Homeland Security, but unarmed men in baseball caps seem like a waste of $3.6 million.
In other porn news, Utah is muddling through a couple of bills complicated by constitutional challenges. One punishes retailers for selling violent games to children with the same penalty they'd receive for selling obscenity to minors, with an exemption for historical war games. Another is to repeal the part of a law passed last year that required any adult content hosted or created in Utah to be rated for its appropriateness for minors by the content providers, and then internet service providers to put free filters on such material at users' request. As the Utah Daily Herald noted at the time of that law's passage last year, it managed to be both nearly useless (what percentage of online pornography is hosted or created in Utah?) and probably unconstitutional (content providers might voluntarily rate themselves to avoid regulation, as other infotainment industries have done, but the legislature should not force them to do so under threat of criminal penalty).
I love many of the features of Oyez, but in their drive to have all that cool stuff that other sites don't -- oral arguments on podcast! a virtual tour of the Supreme Court building! -- they often short the one thing most legal websites do manage compentently: accurate descriptions of the facts and issues in a case. Take Arkansas Department of Human Services v. Ahlborn, which is up for argument at the end of this month. The Oyez summary begins by saying that Ahlborn "was injured and permanently disabled in a car accident" and "received Medicare payments totaling $215,645 through the Arkansas Department of Human Services (ADHS)," but later declares the question presented to be "Do federal Medicaid statutes limit the amount a state can recover in reimbursement from a third-party payment to the portion earmarked for medical treatment?" While Medicare is a program for the disabled as well as the elderly, the ADHS would be much more likely to be fighting over Medicaid, which provides health care for low-income people.
Looking for a consistent story, I had my assumption that this was only about Medicaid confirmed by Duke Law's Supreme Court Online, where the writer of the summary appears actually to have read the 8th Circuit opinion under review. This revealed another inaccuracy in Oyez: "Only $35,581 of the settlement was earmarked for her medical treatment." No such earmarking was done; the opinion states, "This was a lump-sum settlement that did not allocate Ahlborn’s recovery among her various claims." The $35,581 is the amount the state and Ahlborn have stipulated that she will pay if she wins the case going before the Court, "a fair representation of the percentage of the settlement constituting payment by the tortfeasor for past medical care."
It's a silly thing to be troubled by, but the incorrect descriptions on what purports to be a legal website bother me so much because I worry that they'll be relied upon by people who think they lack the time or expertise to read and understand the opinions or briefs filed -- i.e., journalists and others whose job is to make slightly obscure information easily digestible to the general public.
As many predicted, the "Wal-Mart law" mandating that employers with over 10,000 employees spend at least 8 percent of payroll on health care or contribute the difference to Maryland's Medicaid fund is being challenged for stepping into an area already regulated by federal statute:
The association also said the two laws are invalid because they violate the federal Employee Retirement Income Security Act.The association in question is the Retail Industry Leaders Association, which represents companies that operate more than 100,000 stores with more than $1.4 trillion in annual sales, and a lawsuit by this body signals that Wal-Mart is not the oppressed discrete minority that some have deemed it to be; it actually is in company with some of its big-box competitors, including Best Buy.
"Over the past three decades, the Supreme Court of the United State has held repeatedly that ERISA, not state and local laws, regulates employer health plans," said Steve Cannon, outside general counsel to the association.
Today in History (1879) - President Rutherford B. Hayes signs a bill allowing female attorneys to argue cases before the federal courts. The primary lobbyist for the law, Belva Ann Lockwood, became the first woman admitted to the bar of the U.S. Supreme Court on March 3.
The debate over whether Christian Legal Societies should be allowed to discriminate against homosexuals in their membership/ leadership, when such organizations are at schools that forbid discrimination on the basis of sexual orientation, is in full force at Columbia this year. Emeritus co-blogger Chris Geidner was closely engaged in the discussion at Ohio State and is much more informed on it than I, but the resolution there was driven partly by the fear of a lawsuit. Because Columbia is a private school, it is not a "constitutional actor" and thus only morally obliged to take the First Amendment into consideration. One of the arguments propounded in favor of requiring the Christian Legal Society to abide by the university's policies is that there must be places in our society where certain values will be held strongly, and Columbia should feel an obligation to be an institution that is going to hold to non-discrimination and not make exceptions for groups within the school. However, that claim prioritizes the university's expression over the ability of people to express themselves within the university.
I was reminded of this while reading the posts at Crescat Sententia and Mirror of Justice about Catholic universities' prohibition on performances of the Vagina Monologues. CS: "There is no problem with a Catholic university deciding to construct a distinct institutional identity. [...] I do think that being a great university requires a certain ideological neutrality on the important issues of the day. That means that a great university, ideas and views are to be expressed by individual scholars and students, not by the institution as a whole. That means, maybe, that universities that are avowedly and purposefully Catholic can't be 'great.'"
I disagree, of course, with the claim that Catholic universities, to the extent they try to construct and maintain a distinctively Catholic character and mission, cannot be "great." Or, more precisely, I am not drawn to any definition of 'great' that excludes the possibility of "great" distinctively and authentically Catholic universities. [...]There seems to be confusion about what "ideological neutrality on the important issues of the day" means.
I do not disagree that it is important that all universities (Catholic or otherwise) engage with positions that are contrary to their own views and beliefs, and that a university that is unwilling to so engage is not performing a crucial function of a university.
However, it is illusory to think that there exist any institutions, universities or otherwise, that take no position on the issues of the day. That the positions are not expressed in religious or moral terms does not mean they do not reflect an underlying view of the humam person and the person's relation to others. And that underlying view of the human person has an impact on how one views "the issues of the day."
Personally, I do think that a university can be great without being externally neutral. By this I mean that, for example, Columbia's institutional support for sexual orientation equality does not conflict with its potential for greatness; indeed, being "out front" on the trend our society should take, whether with regard to equality of race, gender or sexual orientation, strikes me as one aspect of a great university. Though obviously many would disagree with my metric, I would consider backwardness in these areas at schools like Bob Jones University or the military academies to be a detriment to their greatness. My own undergraduate alma mater's newspaper chided students during the civil rights movement for participating in sit-ins, calling such peaceful demonstration ungentlemanly, and I would regard this as one area in which the University of Virginia suffers in comparison to its competitors such as UC-Berkeley.
However, a school that is not internally neutral -- that stifles viewpoints that conflict with its institutional stance -- does remove itself from the category of great universities. Schools that adopt restrictive speech policies in which students are penalized for or blocked from dissenting expression are failing to be the fora of ideas that great universities seek to be. That Columbia externally considers the question of homosexuality's acceptability to be settled does not decide whether it should enforce that stance on all members within the community. That Catholic schools externally consider the question of female sexuality to be settled does not decide whether they should prohibit the Vagina Monologues.
UPDATE: Columbia Law School's Student Senate proposes revising its recognition guidelines to permit an exception:
If an organization’s purpose is to express an idea, viewpoint or belief, such an organization’s leadership, but not membership, may be limited by such narrowly-tailored criteria that the organization finds, in good faith, essential to upholding that organization’s explicit expressive purpose as defined in its constitution. Any such limitations on leadership shall be explicitly stated and ratified in the organization’s constitution.This actually adheres to the idea in the BSA v. Dale dissents that if the Boy Scouts really were an organization that made "sexual orientation the subject of any unequivocal advocacy, using the channels it customarily employs to state its message," it would be able to exclude homosexuals, but "[t]o require less, and to allow exemption from a public accommodations statute based on any individual’s difference from an alleged group ideal, however expressed and however inconsistently claimed, would convert the right of expressive association into an easy trump of any antidiscrimination law."
Today's LA Times has a story about the City of Vernon (right outside the City of Los Angeles) putting all of its municipal resources toward ousting newcomers who sought city offices. (See also Drum's post). I think there is a nice and equitable remedy for this. The State MUST revoke the city charter immediately. Municipalities are a creation of the sovereign and of course they can be destroyed by the sovereign. This is clearly an instance where such a destruction is warranted. I have a hunch that the unincorporated area of formerly Vernon can easily be monitored by the LA County Sheriff's Dept, just like many other unincorporated areas.
A. Rickey asks "Where Were You in 2000?" in criticizing the ACS -- founded in 2001 -- and its sympathizers -- who are much older -- for failing to notice that large-scale data mining by the U.S. government predates G.W. Bush's White House. But there's at least one honest man left in America: former congressman Bob Barr, who pushed for an amendment to the 1999 Foreign Intelligence Authorization bill that required the Intelligence Community to report within 60 days on the precise legal standards it uses when communications involving American citizens are intercepted. (The Village Voice also investigated, surely disreputing its status in the Liberal Media.)
Now it appears that Barr is becoming a bit less popular than one would expect a Clinton impeachment manager to be among the GOP faithful: "He says President Bush is breaking the law by eavesdropping on U.S. citizens without warrants. And fellow conservatives, for the most part, don't want to hear it."
Discussing a New Jersey state court's application of the state's constitutional free speech provision to a homeowner's association, Will Baude remarks, "[S]tates have been holding private shopping malls subject to state free speech guarantees for some time (and somehow evading the federal takings clause in the process). So this is a pretty obvious next step." Perhaps it is due to the spin that my constitutional and property law professors put on the company town and shopping mall decisions, or a difference between the federal versus state judges' reasoning in them, but the move from those to interfering with individual contract doesn't strike me as obvious at all. (I am limiting my initial comments to the paradigmatic "Why can't I put political signs in my own yard?" complaint; there's more to the New Jersey case, which really arises from a dispute about how to govern the association and secondarily about the right to speak about the dispute.)
The Supreme Court precedents didn't involve deeming "the liberty to contract ... of less importance than the liberty to break said contracts in order to put up political signs." As I recall, there was something of an insider-outsider dynamic to those cases: people from outside the company town wanted access to the people inside and were tossed out of the town as trespassers when they attempted to make speech that the company didn't particularly want; people who were not shopkeepers of the mall wanted access to the patrons and were tossed out for the same. Inasmuch as there were contracts in those cases, between the employee/ inhabitants of the town and the company, and between the vendors and the mall owners, no one was asking to violate those contracts, and the Jehovah's Witnesses and petition-signature-gatherers never contracted away their right to speech. The New Jersey plaintiffs "contend that their status as residents of a private community, rather than visitors to private property, strengthens their position."
The New Jersey court's taking the battle between the homeowners' associations versus dissenting homeowners to be a matter of property rights versus free speech doesn't appear wholly appropriate. After all, the homeowners presumably own their property, as there are condominiums but not co-ops. Instead, while the court disdained the term "quasi-municipal," it declared,
We are called upon to determine whether the standard-setting and standard-applying exercises at issue are essentially in performance of public functions or impact with sufficient directness upon public interests to call into play the constitutional limitations that classically apply to public sector actors, but which the New Jersey Constitution applies more broadly.The state of New Jersey has granted associations the power to impose fines, and the court describes the association as the property holder of communal space more often than it calls the plaintiffs to be owners in their own right. Contract is not much noticed, except to declare that it along with the business judgment rule standards did not apply to the case, and to agree with the motion judge that the $1000 in liquid damages imposed for breaching the confidentiality of a housing association membership list "was a patently unfair contract ofadhesion, which no reasonable person would voluntarily accept."
Indeed, the non-owners who dwell in the community -- the tenants who are not members of the Association -- did not have their claim to political rights within the community recognized. "But a court cannot craft a more favorable contract than the one the parties themselves have entered into, to grant tenants rights they are not otherwise entitled to and are not included in their lease."
Considering the grounds on which the New Jersey state court ruled, the chance of a federal challenge based on BSA v. Dale succeeding seems small.
Happy 25th birthday to "misguided Marin County hot-tubber" John Walker Lindh, who may be eligible for parole in 2020.
Not in the TLC sense.
Don't Go Too Fast. Houston's red light cameras have caught over 600 drivers running red lights. The current penalty when caught by photography is a warning, and it will be increased only to a $75 fine. Toward the end of the Chronicle's article are a few interesting legal concerns. Of greatest interest to me is the disparity between the $75 civil penalty for vehicle owners whose cars go through a red light on camera, and the Class C misdemeanor criminal citation with a maximum $200 fine issued by police officers.
The American Civil Liberties Union believes that violates the U.S. Constitution's Equal Protection Clause.There's also an unresolved question about whether Houston can install the cameras on roads where the municipality and the state share jurisdiction, which Grits for Breakfast covers well along with the other problems. The Federal Highway Administration has a good compilation of cases challenging red light cameras.
Scott Henson, director of the group's Texas Police Accountability Project, said: "If I run a red light and get a civil fine, and you run a red light and get a criminal charge, we are not getting equal protection under the law."
The issue has not been litigated in Texas, Henson said.
Don't Go Too Slow.
Critics have cited an increase in rear-end collisions, likely a result of motorists stopping suddenly to avoid tickets.
A 2005 study by the Federal Highway Administration showed that in seven communities where red-light cameras were being used, right-angle crashes decreased 24 percent while rear-end crashes increased 15 percent. Right-angle crashes are usually more severe, according to the Highway Administration.
You got to let your auto flow...
The indefatigable HBash pointed to this 9th Cir opinnion on the standard of review in ERISA denial of benefits cases that has now been vacated pending a rehearing en banc. ERISA cases are really common because it is one of the few areas of insurance claims where an individual can actually get a Federal court to review his/her claim de novo. Although really boring, they bring up a few issues that should be near and dear to everyone: (1) Proper role of Congress vs. the courts, (2) David vs. Goliath in a no sling-shot match, (3) I'm not a doctor, I only play one in chambers.
ERISA (Employee Retirement Income Security Act) governs a crap load of stuff, including long-term and short-term disability claims offered by most employers. This case involves a long-term disability claim and a life insurance claim, with the denial of benefits stemming from the life insurance policy, and the district judge is Judge Walter, whose chambers were adjacent to my own judge's chambers. The only reason I'm writing about this is because I had the pleasure of writing a bench memo on this precise issue during the past summer.
I know no one will do it, but if you are interested in the case law, then I suggest reading the opinion, which accurately summarizes the law. The only contention between the majority and the dissent is whether the conduct of the plan administrator/underwriter is "material, probative evidence" of a serious conflict of interest. This case, like most other ERISA cases, showcases some very serious shady dealings by the underwriter/administrator. It is no secret that the companies are putting their own financial interests far ahead of the fiduciary duty they owe to the claimants. They essentially operate these plans like they operate their other insurance plans, with minor lip service to the requirements of ERISA. (See, e.g., Unum settlement). At the same time, the law is the law, and the burden is on the plaintiff to bring forth evidence to show an actual conflict of interest (rather than an apparent one).
This creates the distasteful situation where a court has before it a plaintiff who is really sick (or dead in this case), but the court is powerless to review the case de novo because the evidence provided is insufficient. On the other hand, if Congress granted de novo review for all ERISA denial of benefits cases, then the Federal docket would be even more cluttered with these cases. At least now, most of the cases settle once the court determines the appropriate standard of review (as though the ruling is a sort of appraisal). On the other hand, it would force the insurance companies to administer the plans with more emphasis on their duty to the claimant, so that we'd see less cases like this one where life insurance benefits are denied because there is no proof of a form being filed.
My case was less disturbing. The administrator/underwriter denied benefits because it found no medical basis for her disability. While this is more of a question on the merits, the Plaintiff argued that the denial showed a serious conflict of interest because the insurance company ignored medical evidence. Thus to decide whether there was a conflict, I had to play doctor and decide the merits of the medical tests found within the administrative record. Based on my medical expertise, a decision was made on the plaintiff's claim. A bit disturbing.
Going back to the case at hand, I have a feeling the en banc will not require the circuit case law on this, but will hold that the conduct of the administrator/underwriter exhibited a serious conflict of interest or a breach of the fiduciary duty. My hunch is that they will go for the narrower, second option by holding that the plan administrator cannot articulate a new reason for denial of benefits in its final appeal because this does not allow the claimant to adequately appeal THAT ground. The net effect of the holding will probably mean some minor changes in internal procedures at the plan administrators but will not do much to address the problem of an insurance company's dual role of making profits and paying legitimate claims.
Criticism from Democrats about the NSA spying program is unlikely to have shocked Bush, but having Sen. Arlen Specter, the moderate Republican who chairs the Senate Judiciary Committee, do the same is less predictable. Only a few days after the president declared in his State of the Union,
So to prevent another attack -- based on authority given to me by the Constitution and by statute -- I have authorized a terrorist surveillance program to aggressively pursue the international communications of suspected al Qaeda operatives and affiliates to and from America. Previous Presidents have used the same constitutional authority I have, and federal courts have approved the use of that authority. Appropriate members of Congress have been kept informed. The terrorist surveillance program has helped prevent terrorist attacks. It remains essential to the security of America. If there are people inside our country who are talking with al Qaeda, we want to know about it,Specter went on "Meet the Press" and said,
[the AUMF] contention is very strained and unrealistic. The authorization for the use of force doesn't say anything about electronic surveillance, issue was never raised with the Congress. And there is a specific statute on the books, the Foreign Intelligence Surveillance Act, which says flatly that you can't undertake that kind of surveillance without a court order.
The rest of the interview follows --
MR. RUSSERT: The White House also says that they didn't go to Congress because people in Congress told them that they would compromise this surveillance plan if they requested permission to conduct it.
SEN. SPECTER: Well, the administration also has said, Attorney General Gonzalez has been questioned, reported, and I asked this in a letter I sent to him, saying that if the administration went to Congress, they were likely to be denied the authority. So, it's very hard in that kind of a context to claim that Congress intended to give the authority if the administration thought that Congress would turn it down.
Now, on the issue as to whether the program would be compromised, you don't know that until the administration goes to the Intelligence Committees, or the chairmen and the ranking, and lays the program on the line with sufficient detail so that there can be some Congressional oversight. And I think up until this time, Tim, that's never been done.
MR. RUSSERT: The President has said that there have been at least 12 briefings of senior members of Congress.
SEN. SPECTER: Well, the statute requires that the committee be informed. And the committee constitutes 15 members. And they have the so-called "gang of eight": the chairman and ranking member of the Intelligence Committees of each House, and the majority leader and the Democratic leader in each House. That really is not--is not what the statute requires. And if the administration thinks that's too broad because the Congress leaks, and regrettably that's a fact of life, we ought to change the law. They've never asked us to do that. And I think we would do that if they could have a showing that a more restrictive approach is warranted.
MR. RUSSERT: As you well know, this program began shortly after September 11, 2001. The President, when he ran for re-election in 2004 was up in the great city of Buffalo, New York, on April 20. And this is exactly what he said. Let's watch.
(Videotape, April 20, 2004)
President GEORGE W. BUSH: Now, by the way, anytime you hear the United States government talking about wire tap, it requires--a wire tap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so.
MR. RUSSERT: Was that misleading?
SEN. SPECTER: Well, it depends on what the President had in mind. I think it's a fair question for the President. If the President was talking about what goes on domestically in the United States, I think it is accurate. If he had in mind the entire program, including what goes on when one of the callers or recipients is overseas, it's incorrect.
MR. RUSSERT: He said, "A wiretap requires a court order. Nothing has changed, by the way. We're talking about getting a court order before we do so."
SEN. SPECTER: Well, it depends, as I've just said, on what he had in mind. If you're talking about a wiretap in the United States, he's accurate; if you're talking about the broader program, he's inaccurate. That'd be a good question to pose to the President, Tim, at his next news conference. Can't ask me, because I'm not the President.
MR. RUSSERT: Well, tomorrow you will see the attorney general, Mr. Gonzales. At his confirmation hearing in 2005 Senator Russ Feingold of Wisconsin asked him about doing eavesdropping, surveillance, without a search warrant, and Gonzales said, "That's a hypothetical question," while the program was in place and ongoing.
SEN. SPECTER: Well, I have reviewed that transcript, and I think the attorney general is under an obligation to face that question. They had an extended discussion about torture and about electronic surveillance, and the attorney general did talk about a hypothetical question, and I think that's fair game. And I'm sure--I'm going to defer to Senator Feingold on that, that's his issue, but let's see what the attorney general has to say. I think--I think that's a fair question.
MR. RUSSERT: You mentioned the Foreign Intelligence Surveillance Act of 1978, passed by Congress, signed by President Jimmy Carter. That law says that you can go forward with eavesdropping without a court warrant as long as you go back to the foreign--the FISA court, as it's called, within 72 hours. What have you heard from the administration as to why they did not choose to take that path?
SEN. SPECTER: Well, that was one of the questions I posed in a detailed letter I sent some time ago to the attorney general, and he wasn't entirely responsive, but the thrust of what he had to say was that it was too massive to undertake and too complicated and it would have resulted in delays. His answer wasn't very clear, and that's why we're having the--the hearing to go into it.
I think this issue, Tim, of the Foreign Intelligence Surveillance Court is really big, big, big, because the President--the administration could take this entire program and lay it on the line to that court and go through what is involved in some detail, but they don't want to deal with Congress because of leaks. That court has really an outstanding record of not leaking, out of being experts, and they would be preeminently well-qualified to evaluate this program and either say it's OK or it's not OK. And if they said it was OK, it would give the American people great reassurance; and if they said it wasn't OK, knowing all the facts, then that ought to be changed.
MR. RUSSERT: Have you asked the administration, the President, to take the program and present it to the court?
SEN. SPECTER: Yeah, I have. I did that, in effect, in the letter that I sent to the attorney general, and his answer was unresponsive, simply said something like, "Well, we'll exhaust all alternatives." But that's going to be my lead question to the attorney general tomorrow.
MR. RUSSERT: When President Carter signed the Foreign Intelligence Surveillance Act into law, he had a presidential signing statement, and in that signing statement he said this, quote, "It clarifies the executive's authority to gather foreign intelligence by electric surveillance in the United States," suggesting that any inherent powers in Article 2 of the Constitution, or other--other legislation, that this, this FISA law, was central and now would be controlling. Do you agree with that?
SEN. SPECTER: Well, I think that it's a very powerful statement when the President--Carter at the time--signed it, and said that that was the way electronic surveillance ought to be conducted, and only with a warrant. And that was a presidential concession as to who had the authority. Congress exercised it by passing the law, and the President submitted to it.
Now, there is an involved question here, Tim, which we're going to get into in some depth, as to whether the President's powers under Article 2, his inherent powers, supercede a statute. If a statute is inconsistent with the Constitution, the Constitution governs and the constitutional powers predominate. But here you have the President signing on and saying this is it, and that's why I've been so skeptical of the program because it is in flat violation of the Foreign Intelligence Surveillance Act, but that's not the end of the discussion. There's a lot more to follow, and we won't be able to cover it all here this evening--today, this morning, but we're going to have a hearing tomorrow and some more hearings after that because of the importance of this issue and because of its complexity and depth.
Some bloggers have objected to District Judge Marcia Cooke's saying that Jose Padilla should not wear handcuffs and ankle chains during court appearances unless government officials can show that he poses an immediate safety threat. These objections may arise from a misunderstanding about how criminal defendants normally are treated. It is standard in most courtrooms not to shackle defendants, particularly in sight of the jury, because of concerns that this will prejudice the jury. Of course, if the defendant has a track record of misbehaving in court -- jumping around, lunging at people, etc. -- he will be cuffed for the sake of order and safety (as approved by the Supreme Court in Estelle v. Williams, 425 U.S. 501 (1976) (noting that shackles may be necessary "to control a contumacious defendant"), but defendants have won habeas petitions based on unnecessary cuffing.
There was a great deal of discussion about whether this is a good policy in March of last year, when an unrestrained defendant who was alleged to have committed rape grabbed a deputy's gun and killed her as well as a judge and court reporter. Padilla is said to have behaved himself throughout his detainment and prosecution, and the only justification for treating him as a threat to courtroom safety might be his prior conviction for murder. Notwithstanding Padilla's fame as the "dirty bomber," the terrorism charges against him are solely for conspiracy to murder, kidnap and maim people overseas -- Chechnya, Bosnia, Somalia and Kosovo -- with no direct mention of Al Qaeda, only an accusation that Padilla trained for jihad in Afghanistan. This indictment is not indicative of present dangerousness, though it does inform one of Padilla's wonderful pseudonym "Abu Abdullah the Puerto Rican."
Perhaps if we are concerned about prejudicing juries, while simultaenously recognizing that some defendants need to be cuffed, we should just make shackles a standard policy for all defendants, even those accused of nonviolent white collar crimes. I want to see Ken Lay going into the courtroom in handcuffs and ankle chains! Not just for my personal entertainment, but also because if cuffs become wholly standard, then they will be less prejudicial. As it stands, any informed juror who sees a restrained defendant automatically assumes that this person must be really dangerous instead of merely a regular defendant. When every defendant is shackled, no defendant is shackled. Or something like that.
Even though wireless access in my Evidence class sucks, I still manage to read a few news items before the whole thing crashes. Ironic to me, was this item from AP about elementary school children's parents being up in arms because a teacher showed a video that had puppets reenacting Faust. Specifically the whole selling your soul to the Devil (but see Bart Sells his Soul, Episode 3F02) and using a sword to kill part was found offensive.
This is ironic to me, because just last night I was telling an Aussie friend of mine that in high school I took a class called Children's Drama, where the magnum opus was creating a children's version of MacBeth. (Her response: "So you got credit for turning MacBeth into a picture book?") But I'm glad the fine folks of Bennet, Colorado are not taking any guff from anybody. The more we bite from the tree of knowledge the farther away we get from God.
Today in Constitutional History (1870) - The 15th Amendment, prohibiting slavery, is passed. Forty three years later, the 16th Amendment is ratified, authorizing the Federal government to impose and collect income tax. Coincidence?
While I don't expect to be in the loop on what the White House is planning, I would have thought that signed Alito-supporters* like Will Baude would be more on top of these things ;-)
Will looks at President Bush's remark in the State of the Union that "I am pleased that members of Congress are working on earmark reform because the federal budget has too many special interest projects. And we can tackle this problem together, if you pass the line-item veto," and says, "So this is very odd, since Clinton's Line-Item Veto was struck down as unconstitutional in Clinton v. City of New York." It may be odd from a legal perspective (Sen. Robert Byrd: "It is a malformed monstrosity, born out of wedlock") but not at all from a political one. Check it:
The Hill, 2/10/04: "President Bush is seeking line-item veto power in an effort to curtail congressional spending and reduce the debt, and one senior White House adviser expressed confidence that the president can be given the authority without violating the Constitution."
Town Hall, 9/5/04: Analysis of why Kerry didn't make a proposal, in his role as senator, to make good on his campaign promise, "I'm going to resubmit a line-item veto structure that will pass constitutional muster and get the waste and the pork and the special interest deals out of the system."
White House press conference, 11/4/04: Bush stated that he "would like to see the President have a line-item veto again, one that passed constitutional muster. I think it would help the executive branch work with the legislative branch to make sure that we’re able to maintain budget discipline." Less than a month later, a Senate researcher popped out an analysis that ended with the usual conclusion that a line-item-veto, in whatever guise, shifts power to the president in a way that makes Congress more likely to behave irresponsibly.
Christian Science Monitor (OK, a stretch to call this conservative), 11/23/04: Endorses enhanced recission.
Hoover Institution (also in The New Republic, Weekly Standard and Reason magazine), 12/15/04: Suggested not only a Constitutional Amendment, but also the lesser-known possibilities of impoundment (which presidents Jefferson through Nixon had) and enhanced recission, though the author sensibly noted, "In the eighteen months that he enjoyed line-item veto authority, President Clinton targeted only eighty-two programs, thirty-eight of which were restored by Congress for an overall savings of a mere $2 billion -- a drop in the federal bucket." Nonetheless, a lewrockwell.com column responded with "Are Conservatives Naïve or Just Plain Stupid?"
The Corner, 9/26/05: "Senators Jim Talent (R., Mo.) and George Allen (R., Va.) are holding a press conference tomorrow announcing that they are going to introduce a constitutional amendment to create a line-item veto." Such an amendment supposedly would be more in line with what the Great Reagan wanted anyway.
The Corner also set the stage for the SOTU announcement this week with a stream of posts on the LIV:
Lopez quoting the Wall Street Journal;
Derbyshire How-'bout-that-line-item-veto?; and
Miller replying, "The most judicially acceptable version of the line-item veto may be something called enhanced rescission authority. Reform-minded congressman, such as Jeb Hensarling and Paul Ryan, are strong supporters of it. Maybe we can trick lefties into backing 'the new E.R.A.'"
Said lefties, focused on calling the president's signing statements a covert form of line item veto, for the most part seem to have become aware of the impending explicit LIV only with the SOTU. However, they don't appear likely to get tricked into backing anything that comes anywhere close to giving Bush more power.
* In case there was any remaining uncertainty of whether it was liberals or conservatives who did Harriet Miers in:
Though forced to stare upward at his questioners for four days, Judge Alito, like John Roberts before him, has been the largest presence in the room. This hearing makes clear that those of us who opposed Harriet Miers's nomination were right. She or anyone of her inexperience would have transformed the committee Democrats into the legal heavyweights, handing down lectures on "rights" and moral punctiliousness. They would have turned Ms. Miers inside out. Instead they got a member of the Federalist Society with more than enough mental firepower.
Since 1982, the Federalist Society's main purpose has been to create robust conservative legal theories and smart judges.