1. Top ten calamities for which global warming was blamed. (via HotAir)
2. Get your Koran on your cell phone, courtesy of . . . an Israeli company?
3. Yankees offer bleacher seats for 25 cents for exhibition openers. Scalpers begin drooling immediately.
4. The only thing better than a huge foul-smelling flower is its Latin name. (via Ace)
5. Indicted lawyer was "the Houdini of impersonation and false documents." Bonus: I met the guy back in the early 1980s but haven't seen him since then.
Showing posts with label law. Show all posts
Showing posts with label law. Show all posts
December 26, 2008
Friday linkfest
December 22, 2008
Monday linkfest
What, another linkfest? Yes, another linkfest.
1. Major scoop: Supreme Court justices might be influenced by their clerks.
2. Baltimore efficiency: "Members of Baltimore's Board of Fire Commissioners will receive their final paychecks at the end of this month, after a recent discovery by the city's Finance Department that the members have not been eligible for a city stipend since 1996."
3. New doll: "I made a stinky."
4. Try it with a photo of Wolf Blitzer.
5. Talk about pollination!
6. Rockville in the news: If you get a speed camera ticket, you might be the victim of a prank; "students duplicate the license plates by printing plate numbers on glossy photo paper, using fonts from certain websites that 'mimic' those on Maryland license plates. They tape the duplicate plate over the existing plate on the back of their car and purposefully speed through a speed camera, the parent said. The victim then receives a citation in the mail days later."
(4 and 5 via The Corner, 6 via Ace)
UPDATE: 7. The Weekly Standard's parody imitates Pillage Idiot. ("**** them!")
September 24, 2008
The high price of (passing) gas
If flatulence can make it all the way to the U.S. Court of Appeals for the Seventh Circuit, then, surely, it can make its way to the local courts in Charleston, West Virginia. (via HotAir)
When police were trying to get fingerprints, police say [Jose] Cruz moved closer to the officer and passed gas on him. The investigating officer remarked in the criminal complaint that the odor was very strong.The moral of the story seems to be: "Don't pass gas on a police officer who's booking you for DUI."
Cruz is now charged with battery on a police officer, as well as DUI and obstruction.
Take a look of the photo. It doesn't look anything like the baseball player, Jose Cruz, Jr., and I'm positive it wasn't. That is, I'm not endorsing the subversive theory that it was; as Andrew Sullivan would say, I'm just airing it. And it has a strong odor.
Now that that labored joke is finished, my lawyers advise me to repeat that it really wasn't the ballplayer.
If you follow the link to the original news story, you'll find a video. The local TV station interviewed a bunch of locals about flatulence and whether it should be a crime. The key phrase was "law and odor." That's their joke, not mine.
You'll also find a copy of the criminal complaint sworn out against Mr. Cruz. Here is the relevant allegation:
PTLM. PARSONS WAS IN A CHAIR APPROX 4-5 FEET AWAY FROM THE FINGERPRINTING STATION. THE DEFENDANT SCOOTED THE 4 FEET TO PTLM PARSONS, AWAY FROM OFFICER COOK, AND LIFTED HIS LEG AND PASSED GAS LOUDLY ON PTLM. PARSONS. THE DEFENDANT THEN FANNED THE AIR WITH HIS HAND IN FRONT OF HIS REAR ONTO PTLM. PAR[S]ONS[.] THE GAS WAS VERY ODOROUS AND CREATED A CONTACT OF AN INSULTING OR PROVOKING NATURE WITH PTLM. PARSONS.I'm not authorized to practice law in West Virginia, but I have to wonder whether contact from gas can be a battery without a physical touching. If it could, you would think Cruz could have been charged if he had stayed four feet way when he passed gas, rather than doing so next to the officer. Gas, after all, diffuses throughout its container (here, the room).
I also wonder whether this could be an illegal search and seizure, unless you accept the "plain smell" exception to the search warrant requirement. (Note for any lawyers reading this: It's a joke, son.)
Finally, according to the video I mentioned, local lawyers think this case stinks. That's my joke, not theirs. So we'll just have to see.
Or smell.
August 24, 2008
Dress code
I went to law school some years ago. When I was there, professors typically wore dark suits, or at least a shirt and tie. One prof had made waves a few years earlier by insisting on wearing jeans, because he was cool beyond words.
It seems to be different on law faculties these days. I say this based on this blog post at "The Shark" (apparently a blog at Hastings Law School) about an article that a law professor is publishing in a law review, in which he advocates a dress code among the law faculty:
Prof. Jensen (left) accuses denim-clad professors of "trying—unsuccessfully—to look as young as students" and suggests that academics are the "worst-dressed middle-class occupation group in America." Apparently, if professors send a "signal of seriousness, of civility" by wearing a tie or tweed pants or maybe even a robe of some kind "students will pick it up."Regarding student attire, The Shark's item quotes a student commenting at another law blog:
Students are a hopeless group themselves, according to Jensen. He indicates that although he can't turn back the clock to a time when students did a better job of covering themselves up, he wishes he could.
Whale-tail is no more distracting than attractive classmates in general, both of which are less distracting than web-surfing. Decorum is one thing, but one might as well take it further and get rid of laptops and attractive classmates.Like The Shark, I had no idea what whale tail meant, so I looked it up. If you don't know, please don't Google it, and if you do, please don't click on "I'm Feeling Lucky."
Anyway, the last thing I want to think about right now is student attire. What I want to think about is student freebies.
Yes, freebies. According to this article in the Business section of the New York Times, colleges are beginning to give out free iPhones or internet-connected iPods to students. I kid you not.
Taking a step that professors may view as a bit counterproductive, some universities are doling out Apple iPhones and Internet-capable iPods to students.Let me translate this for you. The money you're sending to your kid's college is being used to give the kid electronic equipment you didn't think was worth buying for him yourself.
The always-on Internet devices raise some novel possibilities, like tracking where students congregate. With far less controversy, colleges could send messages about canceled classes, delayed buses, campus crises or just the cafeteria menu.
While schools emphasize its usefulness — online research in class and instant polling of students, for example — a big part of the attraction is, undoubtedly, that the iPhone is cool and a hit with students. Basking in the aura of a cutting-edge product could just help a university foster a cutting-edge reputation.
If you read the article, you'll see various educational activities that these give-aways supposedly facilitate. But the real reason for giving the equipment away is marketing. You have to compete with other colleges to attract students -- and the tuition money that accompanies them.
I guess I'm pleased, curmudgeon that I am, that there are at least a couple of skeptics on the faculty:
The rush to distribute the devices worries some professors, who say that students are less likely to participate in class if they are multitasking. “I’m not someone who’s anti-technology, but I’m always worried that technology becomes an end in and of itself, and it replaces teaching or it replaces analysis,” said Ellen G. Millender, associate professor of classics at Reed College in Portland, Ore. (She added that she hoped to buy an iPhone for herself once prices fall.)So here's my compromise: Ban the electronic equipment but spare the attractive classmates.
Robert S. Summers, who has taught at Cornell Law School for about 40 years, announced this week — in a detailed, footnoted memorandum — that he would ban laptop computers from his class on contract law.
“I would ban that too if I knew the students were using it in class,” Professor Summers said of the iPhone, after the device and its capabilities were explained to him. “What we want to encourage in these students is active intellectual experience, in which they develop the wide range of complex reasoning abilities required of the good lawyers.”
August 14, 2008
Law and humor at Harvard Law School
You may have heard of the Law and Economics school. I gather there's now a Law and Humor school, too.
A lawyer in my office recently sent around this link to a speech given by Harvard Law School professor Daryl Levinson upon being presented with an award for teaching. The speech was given in June, so don't start complaining to me that "it's old" or whatever. I know. It's old.
Professor Levinson, who teaches constitutional law, speaks about the ten ideas that "explain virtually all of law." If you went to law school at a name-brand institution, where it's a sin of the first order to teach anything practical, you may well recognize some or all of these ideas.
When I was in law school, the professors we enjoyed were generally the performers. Levinson has a little of the performer in him, but he actually seems fairly shy. The drawback to that is that while he has a few amusing lines, he sometimes trips over himself in the delivery -- probably what I would do myself if I were trying to give the same speech.
You can click on the link at the bottom of this page to listen or try this direct link (Real Player required). I'd skip the first few minutes, with the student introduction and Levinson's thank yous, which go well beyond gratitude and modesty into full-blown barfitation.
If you don't feel like listening to the whole talk, consider the following highlight, found at about 11:40 in the video:
Idea number 6: legal institutions and what they're good for. We learn over and over again that legislatures are good at democracy; courts are good at impartial application of the rule of law; and agencies are good at technocratic expertise. As the Harvard legal process tradition teaches us, once we know what each institution is good for, our job is simply to match up the right institutional decisionmaker to the relevant decisionmaking task, which we can do using neutral and objective reasoning. In practice, this means: First we figure out which one of the possible decisionmaking institutions is run by the Democrats. [Laughter.] That's the one we want. [Laughter and applause.] Or don't want. I want to keep it as fair and balanced as your classes here no doubt were.I suppose you could read this as a subtle dig at the political monolith at Harvard, but more likely, it's just an acknowledgment of shared group values. That seems to be the interpretation favored by the audience, in any event, judging from the applause. Either way, it's amusing, and I choose to apply the former interpretation.
July 23, 2008
That man must be carded
Professor Steven Calabresi writes that Obama doesn't meet the constitutional age requirement, because 35 years of age in 1789 has to be adjusted for inflation, so to speak.
Barack Obama is too young to be president. Yes I know he is 46 and the Constitution sets the presidential age qualification at 35 or higher, but Obama has said that we ought not to interpret the Constitution woodenly and formalistically. Perhaps we should look deeper at the presidential age limit. If we do, we will find that Obama really is too young to be president.He's obviously poking fun at the judges who argue in favor of a pragmatic interpretation of the Constitution that doesn't feel bound by the original meaning of the text.
Many on the legal left these days advocate purposive, pragmatic interpretation of the Constitution. The idea is you look behind the text to see what function it played for the framers and you then translate the text so it will play that same function for us today. What does this mean for the presidential age qualification?
In 1789, the average life expectancy of a newborn was about 40 years, compared with about 78 today. A lot of this was because of infant mortality, but in 1789, even the average life expectancy of every man who reached age 18 was only about 47. This suggests that at best a 35-year-old age limit in 1789 might have functioned then about the way a 55- or 60-year-old age qualification would function today. On this account Obama may be old enough to drive and buy a glass of white wine, but he has a way to go before he can run for president.
I got this link through the Volokh Conspiracy, where commenters are ripping Calabresi for his effrontery. To be fair, some of them say they see the point but think it just isn't funny.
So I pose this question to you: (a) clever and amusing satire; (b) point noted but not funny; or (c) insulting crap from a McCain hack?
July 18, 2008
Best of Pillage Idiot - V
Mrs. Attila and I are off celebrating our upcoming 25th anniversary. Here are some blasts from the past. I hope you'll enjoy them a second time.
I certainly hope that President McCain will appoint justices like John Roberts and Samuel Alito, so I can do some more photo comics like these:
Anatomy of a nomination
Alito talks about Roe
June 29, 2008
Nino, First Blood Part II
I thought it would be amusing after Thursday's decision in the Heller case.
You can do this in one of two ways. One, make it a serious photoshop. Two, if your photoshop skills are as pathetic as mine, do it as an obvious mock-up of the original poster. I couldn't do the brown tone or the shading on his face or match the fonts precisely. So, with appropriate apologies, here's the poster for Nino, First Blood Part II.
Click to enlarge.
You can do this in one of two ways. One, make it a serious photoshop. Two, if your photoshop skills are as pathetic as mine, do it as an obvious mock-up of the original poster. I couldn't do the brown tone or the shading on his face or match the fonts precisely. So, with appropriate apologies, here's the poster for Nino, First Blood Part II.
UPDATE (7/9): In order to have a Maryland angle for this post, I'm going to link the amicus brief submitted by New York, Hawaii, Maryland, Massachusetts, New Jersey, and Puerto Rico in support of the petitioners.
June 23, 2008
Monday mini-linkfest
1. Isn't this always true about men? "Doubts Raised Over Whether Md. Inmate Will be Committed" (Well, that was the headline when I first linked the story, anyway.)
2. Next time you're lost in the Alps and need to be rescued, try attaching your bra to a logging cable line. Especially if it's a size 36 DD. [UPDATE: Regrettably, the bra size has been debunked. Via Ace.]
3. Remember the Obama campaign office with the Che flag? Turns out that the woman who mans that post has been prohibited from talking about it.
4. And speaking of Che and Obama, I realize this has been around the 'sphere, but here's the office of the Ohio judge who overturned the state's death-penalty procedures.
5. We'll soon see, perhaps as early as Wednesday, whether this prediction is right. SCOTUSblog figures out that the Supreme Court's gun-control decision soon to be released in the Heller case is going to be written by Justice Scalia. The blog has a good track record. In April, it correctly predicted that Justice Kennedy would write the opinion in Boumediene, the Guantanamo case.
June 22, 2008
Justice Kennedy runs a radio commercial
Police sirens are heard in the background. Shouts of "Freeze! Hands on top of the car! Spread your legs!"
Voiceover: Have your rights be denied to you?
Sounds of Muslim call to prayer at Guantanamo.
Voiceover: Have people tried to tell you that you have no rights at all?
Voiceover: If you think they have, call Justice Anthony Kennedy, the protector of your rights, at 1-800-KEN-NEDY.
Justice Kennedy: Hi, I'm Justice Tony Kennedy. Has something like this ever happened to you?
Father: (in an angry voice) Do you know what time it is? It's 1:30. I told you you had to be home by midnight. This is the third time this month you've missed your curfew, so I'm taking away the car keys for two weeks.
Teenaged girl: (crying) Daddy! That's so totally unfair. I hate you!
Justice Kennedy: This scene could have unfolded in a completely different way.
Teenaged girl: (crying) Daddy! That's so totally unfair. And I have Justice Kennedy on the phone to protect my rights. Here, talk to him.
Father: Justice Kennedy, you have no business interfering in this family matter. Since the time of the Magna Carta, there's never been a single precedent in which the federal courts have intervened to tell a father whether or not he can take the car keys away from his child.
Justice Kennedy: History, shmistory, it doesn't matter. We're the Supreme Court, and it is emphatically our province to say what the law is, whether that law is the Constitution . . . a federal statute . . . the law of supply and demand . . . or the second law of thermodynamics.
The strains of "My country, 'tis of thee" are heard in the background softly, gradually becoming louder as Justice Kennedy continues.
Justice Kennedy: And everywhere you go where someone's rights are being denied, I'll be there to protect them. Because if I didn't protect your daughter's rights, the rights of teenagers everywhere would be at risk. And if I couldn't protect teenagers' rights, the President would probably transfer the detainees from Guantanamo to the homes of ordinary Americans in the hope that I couldn't protect them there. And as long as my name is Justice Anthony Kennedy, THAT . . . WILL . . . NOT . . . STAND.
Voiceover: If you think your rights have been denied, call Justice Kennedy at 1-800-KEN-NEDY. That's 1-800-KEN-NEDY, to get justice. He's waiting for your call to protect your rights.
Teenaged girl: Call Justice Kennedy. He's awe-some!
June 17, 2008
Proceeding where Kucinich fears to tread?
Is there anyone besides Dennis Kucinich who's still interested in impeachment at this late date in the second Bush term? I doubt it. Besides, prosecution in the courts is the new rage.
Normally, in our country, a prosecution is conducted by the government in a criminal case. I suppose one can say that one "prosecutes" a civil action by pursuing it toward completion. There is, after all, a concept known as "failure to prosecute" as a result of which a civil case that's not being pursued is dismissed.
But somehow, I don't think that's what the criminally insane people at the Massachusetts School of Law at Andover had in mind when they announced they were holding a conference to plan the "prosecution" of the President, Vice President, and other current and former administration officials:
A conference to plan the prosecution of President Bush and other high administration officials for war crimes will be held September 13-14 at the Massachusetts School of Law at Andover.The blog Above the Law wonders: "Hangings? C'mon, Dean Velvel -- shouldn't a liberal like yourself view that as violating the Eighth Amendment?" And Legal Blog Watch says: "Three citizens of Andover -- the town where MSL is situated -- were among those hanged for witchcraft as part of the 17th century Salem witch trials. These days, however, the town is a chichi Boston bedroom community known as home to equally chichi Phillips Academy. No doubt, any proposal to erect a gallows on the MSL campus might not make it past the local planning board."
"This is not intended to be a mere discussion of violations of law that have occurred," said convener Lawrence Velvel, dean and cofounder of the school. "It is, rather, intended to be a planning conference at which plans will be laid and necessary organizational structures set up, to pursue the guilty as long as necessary and, if need be, to the ends of the Earth."
"We must try to hold Bush administration leaders accountable in courts of justice," Velvel said. "And we must insist on appropriate punishments, including, if guilt is found, the hangings visited upon top German and Japanese war-criminals in the 1940s."
But the folks at the MS of L at A are apparently dead serious.
The conference will take up such issues as the nature of domestic and international crimes committed; which high-level Bush officials, including Federal judges and Members of Congress, are chargeable with war crimes; which foreign and domestic tribunals can be used to prosecute them; and the setting up of an umbrella coordinating committee with representatives of legal groups concerned about the war crimes such as the Center for Constitutional Rights, ACLU, among others.No post on such looniness would be complete without some mockery of the institution itself. I'll leave that to Above the Law, which notes:
Since the Massachusetts School of Law isn't even ABA-accredited, one would expect its alums to have an especially tough time finding legal employment. They're immediately eligible to sit for the bar exam in just two jurisdictions. For more details, see here.I don't think so. All you need is a furlough from St. Elizabeth's.
Well, if they can't find employment elsewhere, maybe they can go prosecute President Bush. Do you need to be admitted to the bar for that?
UPDATE: Point of Law has more background on the school and its dean, Larry Velvel, while the ABA Journal has a long quotation from the man:
Velvel tears into President Bush as well, writing: “The man ultimately responsible for the torture had a unique preparation and persona for the presidency: he is a former drunk, was a serial failure in business who had to repeatedly be bailed out by daddy's friends and wanna-be-friends, was unable to speak articulately despite the finest education(s) that money and influence can buy, has a dislike of reading, so that 100-page memos have to be boiled down to one page for him, is heedless of facts and evidence, and appears not even to know the meaning of truth.”And DUmmie FUnnies has a long laugh about it.
June 11, 2008
The chip on Justice O'Connor's shoulder
What happens when you're a Maverick from Arizona and you retire from public life? Well, for one thing, no one remembers anything you've done, because it all depended entirely on you personally and very little of it was memorable.
This is pretty much what happened to Sandra Day O'Connor, who retired from the Supreme Court almost three years ago, in large part to undertake the sad and difficult task of caring for her husband, suffering from Alzheimer's, an act for which I hold her in the highest regard.
It turns out -- and you would never have suspected this, really, if were hiding in a cave somewhere -- that Justice O'Connor's judicial "legacy is fading away." (via How Appealing) But here's the thing: If your legacy is fading away in three years, you probably didn't have much of a legacy to begin with. As the article points out, "O'Connor set standards driven by the facts of particular cases." I've heard people refer to this kind of judge as "a lawyer's lawyer." But the fact is, it's just as likely that this type of judge is deciding cases based on personal whim. Here's why: If you can't articulate a rule that applies to more than one case -- or if you can, but your rule is so vague that you and only you personally can apply it -- you are simply imposing your own will. Undue burden, anyone?
So what is Justice O'Connor's latest, greatest project? According to a New York Times article (via Bench Memos), "Justice O'Connor is helping develop a Web site and interactive civics curriculum for seventh-, eighth- and ninth-grade students called Our Courts (http://www.ourcourts.org/)." O'Connor was speaking at a "Games for Change" conference in New York. That's "change" as in "social change," by the way, as you can tell from the organization's site. The site offers you the chance to play a game called "ICED! I Can End Deportation," described as "an online interactive 3D Role Playing Game that teaches the player about the current U.S. policies around immigration that destroy families and fundamental human rights." Even better, you can play "PeaceMaker," a game that "is inspired by real events in the Israeli-Palestinian conflict." The description adds: "It challenges players to succeed as a leader where others have failed: bringing peace to the Middle-East. Playing both perspectives, players could experience the joy of winning the Nobel Prize or the agony of plunging the region into disaster." Who needs a game for this? The solution is easy: all the Jews should die, right?
Getting back to Justice O'Connor's "Our Courts" civics project, her hope is "to foster a deeper understanding of American government among schoolchildren." Great, but here's the very large chip that she carries on her shoulder:
"In recent years I have become increasingly concerned about vitriolic attacks by some members of Congress and some members of state legislatures and various private interest groups on judges," she said in her speech. "We hear a great deal about judges who are activists, godless secular humanists trying to impose their will on the rest of us. I always thought an activist judge was one who got up in the morning and went to work."Allow me to translate: Judges don't want to be criticized for their decisions, certainly not by some yahoos on the political right. In their view, or in O'Connor's view at any rate, criticism threatens the independence of the judiciary.
Now, right about now, you're probably thinking: "Didn't she and Justices Kennedy and Souter say something a lot like that in their joint opinion in Planned Parenthood v. Casey back in 1992?" Well, I'm glad you asked.
But when the Court does act in this way, its decision requires an equally rare precedential force to counter the inevitable efforts to overturn it and to thwart its implementation. Some of those efforts may be mere unprincipled emotional reactions; others may proceed from principles worthy of profound respect. But whatever the premises of opposition may be, only the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure and an unjustified repudiation of the principle on which the Court staked its authority in the first instance. So to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court's legitimacy beyond any serious question.It's easy to be a cynic, but Justice O'Connor's purpose for training kids in civics seems to be to prevent the kids from growing up to criticize the judiciary.
"The overwhelming consensus coming out of that conference [in 2006 on the state of the judiciary] was that public education is the only long-term solution to preserving an independent judiciary and, more importantly, to preserving a robust constitutional democracy," she said. "The better educated our citizens are, the better equipped they will be to preserve the system of government we have. And we have to start with the education of our nation's young people. Knowledge about our government is not handed down through the gene pool. Every generation has to learn it, and we have some work to do."I guess it's no wonder Justice O'Connor receives such fawning press. The press, after all, has the same mindset: Criticize us, and you threaten the First Amendment.
I'm struggling a little to decide whether this attitude is the product of elitism or a simple desire for unchecked power. I'm leaning to the former, but I could be wrong.
But whatever the answer, I guess it's well past time for me to stop threatening the independence of the judiciary with this post.
June 10, 2008
A jury of your peers
Puzzle me this. You're standing trial for a crime, and let's work on the assumption (reasonable or unreasonable depending on who you are) that you're innocent of the charges.
Which of the following would you least object to having on your jury:
(a) Someone who sleeps through most of the trial.
(b) A member of Stormfront.
(c) Someone who's secretly made a deal to sell his story.
(d) Someone who plays Sudoku during the trial.
Call me naive, but I'd go with option (d). The way I see it is that if you're intelligent enough to handle the game, you're at least potentially able to multitask. Sleepers are obviously out of it, and neither of the other two is remotely unbiased.
This is not to say that having Sudoku players on a jury is ideal. But in the case described at the link, the jurors were playing it starting in Week 2 of a three-month trial until they were caught. How could that possibly have happened? It almost makes you wonder whether the judge, the lawyers, the witnesses, the bailiff, and the defendants themselves were all asleep.
(via How Appealing)
January 16, 2008
Wednesday linkfest
Some of this is old news, but I've been kind of busy and haven't had a chance to do anything with it. Hence, a linkfest.
1. I know that some people go into public service because they think they do some good. Others go into public service so they can be sued by their alma mater when they leave the government. Some are "fortunate" enough to do both. (via Instapundit)
John Yoo can be forgiven if he's having second thoughts about his career choice. A Yale Law School graduate, the Berkeley professor of law went on to serve his country at the Justice Department. Yet last week he was sued by convicted terrorist Jose Padilla and his mother, who are represented by none other than lawyers at Yale. Perhaps if Mr. Yoo had decided to pursue a life of terrorism, he too could be represented by his alma mater.Another reason for you alumni to donate a dollar to Yale so you can tell them you'll never contribute another dollar after this.
2. You're angry with your boyfriend. Do you (a) have a "talk" with him; (b) make him sleep in the living room; (c) set his car on fire? The correct answer is (c). And then you return to your boyfriend, "telling him that he 'might want to get some marshmallows.'" (via Fark)
3. John McCain goes to a funeral home and makes the oldest joke in the book. But he says his mother is older. (via HotAir)
4. If they tried to keep away from the guy, why are they complaining? "Lawsuit says protesters kept away from Bush during N.M. visit"
5. Fill in your own joke; the commenters at HotAir certainly did: "Kokomo police say a man accidentally shot himself in the groin as he was robbing a convenience store. * * * A short time later, police found 25-year-old Derrick Kosch at a home with a gunshot wound to his right testicle and lower left leg. He was expected to have surgery at a hospital."
January 08, 2008
Adam Liptak, your readers want to know
I think some of us need a clarification from Adam Liptak.
Yesterday, Liptak's New York Times column examined the government's frequent success in fending off challenges to searches of laptop computers at airports and the borders. The idea is that searching your laptop is like searching your luggage.
Liptak discussed three cases in which the laptop that was searched contained kiddie p*rn.
Then, he closed his column with this odd statement:
There are all sorts of lessons in these cases. One is that the border seems be a privacy-free zone. A second is that encryption programs work. A third is that you should keep your password to yourself. And the most important, as my wife keeps telling me, is that you should leave your laptop at home.And just what is on his laptop that makes his wife keep telling him to leave it at home? Your readers want to know, Mr. Liptak.
January 02, 2008
Do-it-yourself news story
Tonight, we're going to try to make a do-it-yourself news story.
1. Start out with a catchphrase for the story. Pick a short phrase that combines words that are funny and memorable together. Let's go with "flying bra." You can't get much better than that.
2. Next add a humorous premise for the story, like this: Some girl is in a car with three friends and decides to hoist her bra (we'll make it a red one, just for fun) up the car's antenna, and the wind lifts it off into the air. She claims she removed it because the family dog had chewed it earlier in the day and caused it to fray. But a witness says the girls were making gestures with their mouths and lifting their shirts at some men in the car behind.
3. Fold in an element that makes you not sure whether to laugh or feel awful: A couple of goobers in the car behind suddenly swerve to avoid hitting something that turns out to be a flying bra. They crash and are injured.
4. Bring in "the law": The girl who hoisted the bra is charged . . . with littering.
5. Tie it up with the obvious: Litigation ensues. And before long, after getting settlements from the girls in the car, the passenger in the car that crashed sues the driver, his buddy.
Voilà ! Here's your headline: "Friend sues buddy over 'flying bra' crash of '06"
And, of course, you'll need a photo showing the two unfortunate guys, with the passenger-plaintiff wearing a teeshirt that reads "The 4 Stages of Tequila."
(Via Patterico and Iowahawk)
November 13, 2007
Visitors of the day -- 11/13
Today, we have two visitors of the day.
I wonder what this person thought about the "Mr. Smith goes to Starbucks" post that turned up in the search.
And I've had many visitors looking for ways to get out of jury service, but this is the first time someone's tried a search from the courthouse. Must be one heck of a trial coming up.
November 04, 2007
What he didn't say
You may have read that in an interview with Jeffrey Rosen, published in the New York Times magazine in September, Justice Stevens explained the origins of his skepticism about the death penalty:
After graduating Phi Beta Kappa from the University of Chicago in 1941, Stevens enlisted in the Navy on Dec. 6, 1941, hours before the Japanese attacked Pearl Harbor. He later won a bronze star for his service as a cryptographer, after he helped break the code that informed American officials that Adm. Isoroku Yamamoto, the commander of the Japanese Navy and architect of the Pearl Harbor attack, was about to travel to the front. Based on the code-breaking of Stevens and others, U.S. pilots, on Roosevelt’s orders, shot down Yamamoto’s plane in April 1943.I didn't read the original article, but I read about this revelation here.
Stevens told me he was troubled by the fact that Yamamoto, a highly intelligent officer who had lived in the United States and become friends with American officers, was shot down with so little apparent deliberation or humanitarian consideration. The experience, he said, raised questions in his mind about the fairness of the death penalty. “I was on the desk, on watch, when I got word that they had shot down Yamamoto in the Solomon Islands, and I remember thinking: This is a particular individual they went out to intercept,” he said. “There is a very different notion when you’re thinking about killing an individual, as opposed to killing a soldier in the line of fire.” Stevens said that, partly as a result of his World War II experience, he has tried on the court to narrow the category of offenders who are eligible for the death penalty and to ensure that it is imposed fairly and accurately. He has been the most outspoken critic of the death penalty on the current court.
In today's New York Times Magazine, Justice Stevens has a letter about this article. (I'll have to add the link later if it becomes available, because it's not right now.)
What's interesting about the letter is that Justice Stevens feels the need to correct two matters: first, "the impression that I claim credit for helping break the Japanese naval code that enabled our forces to shoot down Admiral Yamamoto," and second, the statement that he turned down an offer to teach at Yale Law School.
He says nothing about the origins of his skepticism about the death penalty. Which is another way of confirming that the story is accurate.
October 29, 2007
Hiring by the numbers
There are very few things in the world that can make me defend the legal establishment, let alone large law firms, but I think I've found one.
According to Adam Liptak's column in the Times today, law students at Stanford have issued a grading system for firms based on what Prof. Michele Landis Dauber, who's the "adviser" for this project, delicately refers to as "diversity" -- or, in the cruder formulation of Mr. Liptak: "The students are handing out 'diversity report cards' to the big law firms, ranking them by how many female, minority and gay lawyers they have."
One firm, Herrick Feinstein, got an "F" and responded with its tail between its legs: "Herrick Feinstein said it reported that it had no openly gay lawyers 'because, at the time of the filing, we did not ask for that information.' There are, the firm said in a statement, openly gay lawyers working there, 'including one on the diversity committee.'"
Liptak quotes Vikram Amar for a sensible point:
Vikram Amar, a professor at Hastings College of the Law in San Francisco, added that law firms might well be violating employment discrimination laws in the process of trying to improve their rankings.In other words, a firm doesn't like the "C" it received, so the next year, it makes a woman partner at the expense of a better qualified man. Sex discrimination right there.
Now, to get back to my opening. It's really hard to feel sorry for any of these folks: the spoiled brats at Stanford, the large law firms, the lawyers who are (or are not) discriminated against in these firms. But this isn't what one student calls it: forcing firms "to respond to the market pressures that we’re creating." It's a form of extortion, forcing firms to engage in employment discrimination.
You'd think the students at Stanford would have a clue about that. But if the experienced lawyers at the firms don't seem to, why should the students?
October 11, 2007
Great moments in the courtroom
Everyone once in a while, you read a story that pulls the mask off -- well, a better image would be "pulls the robe off" -- a judge. And no, I'm not thinking of that story, either.
Judges serve an important function in society. They adjudicate disputes; they stand between the citizen and the state; they wear black robes. So we tend to think of judges as serious and dignified human beings, even though we all know what Ruth Bader Ginsburg does in her spare time. (She talks about the tax code with her husband.)
Then, what do we make of this story? A judge in LaGrange, New York, a town located around 80 miles north of New York City, violated the first canon of judicial ethics: "A judge may not, even jokingly, remark that a female public defender has a 'nice butt.'" (via Fark)
I mean, you really can understand this judge's behavior, can't you? A guy sitting under a black robe all day sees numerous lawyers who have fat butts, and he can't resist mentioning a nice one. Right?
Wrong. It didn't happen that way at all. According to the AP version:
After the defendant told [Justice] Caplicki that he thought his attorney was "cute and had a nice butt" -- the judge noted the comments on the arraignment sheet and repeated them to the attorney 10 days later in a sidebar conference in the courtroom.I mean, once is a compliment. Twice is creepy. Three times is stalking. And four times is a "misguided attempt at humor."
The judge later repeated them in open court, asking the defendant and three other male defendants if they agreed with them. He repeated them again when the attorney appeared before him the next day.
Actually, Pillage Idiot is a misguided attempt at humor. Asking the defendant and three other male defendants if they agreed the lawyer had a nice butt is nothing short of repulsive.
Justice Capicki "agreed that he should be censured," and the state's Commission on Judicial Conduct "decided Caplicki's behavior amounted to 'an aberration' and limited his punishment to a public censure."
Although the Commission has the power to defrock -- er, disrobe -- er, "strip judges of their robes," it apparently was concerned that the butt that the judge would then expose was not "nice."
September 23, 2007
Lazy Sunday linkfest
1. Another Ivy League triumph. As you know, Columbia has invited our dear friend, the Holocaust-denying potential genocidalist Mahmoud Ahmadinejad to speak. But I'll bet you didn't know that Columbia Dean John Coatsworth has said, "Why, we would have invited Hitler, too!" Seriously. The video is here. [UPDATE (9/24): The Columbia U. School of Terrorism? (via LGF) and perhaps Ground Zero will visit Ahmadinejad. (hat tip: fee simple)
2. This is peculiarly amusing, starting with the post title: "Jewish lesbian dKos diarist: I’ve got a crush on Mahdi even though he’d probably have me killed."
3. On a less appalling subject (unless you're one of those lefty wackjobs), here is an article about the Forbes 400 richest individuals that mere mortals can only gawk over. Tip: You need $1.3 billion in net worth to break into the club. Better save those pennies. Also, once you're in, you still can be dropped like last month's fashion: "Also dropping off the list is caffeine king Howard Schultz, whose Starbucks stock has languished over the past year." Put that in your latte and smoke it. Or something.
4. Along the same lines, here are the "priciest zip codes" in the country. Hint: They're not where you live, buddy. Well, maybe you, but not me. Most seem to be in California.
5. Almost forgot: All you need to read in David Margolick's review of Jeffrey Toobin's book on the Supreme Court is the first 5 or 6 paragraphs, which is all I've read, by the way. All of it basically elaborates on this point: "But to anyone who watches the court, or watches those who watch it, Toobin’s descriptions afford something else, arguably even more interesting: the chance to ponder which of those justices talked to him for this book, and which did not."
September 20, 2007
Those pressing Jewish issues
I'm starting to sound like a broken record -- if anyone remembers what a record is. I'm not talking about Hank Aaron's recently broken homerun record, either.
I'm sick of talking about how Jewish groups seems concerned about anything but real Jewish issues, but I'm afraid I have to talk about that once again. I'll keep it short.
You know the story: Bush has nominated a former federal judge, Michael Mukasey, to be his Attorney General. Mukasey is an orthodox Jew.
In an article about the nomination published by the Jewish Telegraphic Agency, there is considerable discussion about Mukasey's record on terrorism. Which makes sense. This is an important part of his background.
But here comes one of my old favorites, Marc Stern of the American Jewish Congress:
The focus [on terrorism] concerned Stern, who noted that the Justice Department's bailiwick is much broader than terrorism.Never mind terrorism, which is the most important issue facing this country -- and, for that matter, that country of no real interest to Jews, Israel. Never mind terrorism; what does this orthodox Jew think about "Jewish issues" like abortion?
"He's a cipher on abortion, he's a cipher on civil rights, he's a cipher on all the hot-button issues that move the administration's base," Stern said.
I suspect the JTA never actually spoke to the real Marc Stern. Some prankster called in and pretended to be Stern. And did a heck of a good job.
September 02, 2007
20 years of the potato
Twenty years ago this past Friday, Dave Bresnahan, a minor-league catcher, pulled off what's considered one of the top baseball pranks ever. He took a potato, sculpted it to look like a baseball, and deliberately threw it over the head of the third baseman in an effort to pick a runner off third. When the runner ran home, Bresnahan was waiting with the real ball. Everyone thought it was funny, but he was fined by the manager and released by the team, dropped like a (dare I say it?) hot potato.
The other day, he was back at Williamsport, Pennsylvania, to commemorate the event. An article describing this in more detail is here.
I once used this incident to illustrate the problem of statutory gaps, situations that seem to be not covered by the statute although similar situations are. I quoted Bresnahan, who said he'd checked the rule book first. It said that if a pitcher threw anything other than a baseball, it was a balk, but it said nothing about a catcher, and that's what he was.
If Dave Bresnahan happens to be checking his press in the next few days and discovers this, I hope he'll be amused.
August 29, 2007
"A serious and secret bias"
When is a secret not a secret?
In a speech, Judge Dennis Jacobs, of the U.S. Court of Appeals for the Second Circuit in New York, disclosed that judges have "a serious and secret bias" in favor of lawyers. Shhhhh! Don't tell anyone!
Adam Liptak wrote about this a couple of days ago in the Times (link goes to Times Select):
Once you start thinking about it, the examples are everywhere. The lawyer-client privilege is more closely guarded than any other. It is easier to sue for medical malpractice than for legal malpractice. People who try to make a living helping people fill out straightforward forms are punished for the unauthorized practice of law.Then, there's that matter of high-profile public-policy cases:
But Judge Jacobs’s main point is a deeper one. Judges favor complexity and legalism over efficient solutions, and they have no appreciation for what economists call transaction costs. They are aided in this by lawyers who bill by the hour and like nothing more than tasks that take a lot of time and cost their clients a lot of money.
“Judges love these kinds of cases,” said Judge Jacobs, whose speech was published in The Fordham Law Review in May. “Public interest cases afford a judge more sway over public policy, enhance the judicial role, make judges more conspicuous and keep the law clerks happy.”This is a very candid man, Judge Jacobs.
There are costs here, too, he said, including “the displacement of legislative and executive power” and “the subordination of other disciplines and professions.”
He is also a very blunt man at times. As Liptak noted, Judge Jacobs struck a nerve not long ago with a dissent in a case Liptak described as a "tangled lawsuit about something a college newspaper published in 1997," in which the majority felt "important First Amendment principles were at stake, though they acknowledged that the case involved, at most, trivial sums of money."
I remember when this decision came down, because some law professor bloggers were, absurdly, alarmed at what Judge Jacobs wrote at the beginning of his dissent (page 45 of this PDF):
I concede that this short opinion of mine does not consider or take into account the majority opinion. So I should disclose at the outset that I have not read it.Eugene Volokh, at The Volokh Conspiracy, wrote in response:
It's too bad that the dissenting judge didn't take the case more seriously: I think the majority opinion may well be wrong, and certainly sets an important precedent that would benefit from serious, skeptical scrutiny. Even if the dissenter thinks the case should be unimportant ("this silly thing," he calls it), and that the plaintiffs are suffering from a "fantasy of oppression" and engaging in a "slow-motion tantrum," the case now is indeed important. It seems to me that the matter deserved his time and attention.The writer at Appellate Law and Practice quoted various "tidbits" of the dissent (worth reading) and asked: "So, is this the kind of opinion that constitutes good legal writing? Is this what law schools teach people to write?"
On the other hand, Professor Bainbridge and Beldar both thought it was pretty cool. Michael Dorf thought Judge Jacobs had a point but complained that "the dissent contains some gratuitous red-baiting of the plaintiffs."
Well, whatever.
Justice O'Connor, both before and after she left the Supreme Court, seemed to be of the view that criticism of the judiciary was a threat to judicial independence. I rather think that a little more candor of the sort offered by Judge Jacobs, both in his speech and in his dissent -- a little self-criticism can only be a good thing.
August 17, 2007
Friday linkfest
I don't really know what to do with these stories, given my August doldrums, so I'm putting them in a linkfest.
1. Public service announcement: If you're a police officer having a tryst at the office on work time, make sure to keep your radio earpiece in. In England, an officer who claimed he was "always poised and ready to respond to an emergency because he had his earpiece in" was acquitted of misconduct in a public office. (hat tip: fee simple)
2. You've heard of gay cars. Well, none of those make this list of cars and what they supposedly say about their owners' love style. (This actually has to be one of the stupidest things I've read in a long time.)
3. Paging Harvey Mansfield: The return of manliness, now known as "retrosexuality." But since it seems to involve hair implants for one's chest, count me out. That sounds painful. On the other hand, this sounds good for me and some other MOTs: "some surgeons say that men are also asserting their manliness through rhinoplasty, or nose jobs, asking for a more pronounced proboscis."
4. The latest in technology: Kosher vending machines. More precisely, a "glatt kosher vending machine that can shoot out a hot knish," as if this were some kind of useful Jewish contribution to American culture. Cuteness component: "The vending machines are called Hot Nosh 24/6." Get it? 24/6? Although the machine is not actually shut off on Shabbat, which is more grist for Noah Feldman's next article. And from the "who cares?" department: This is being financed by "Ruby Azrak, a street clothing magnate who launched Russell Simmons's Phat Farm line," who also "runs the House of Dereon, the clothing line of the singer Beyoncé." (UPDATE: I forgot to include the link to the company's website. You can see some of their press coverage there, too.)
August 14, 2007
Here's one attorney you might like to see
"Bikini Attorney Responds to Dismissal of Lawsuit"
Headline, Yokwe Online, Aug. 10, 2007
July 26, 2007
Dealing with John Doe immunity -- UPDATED
UPDATED at bottom....
If you'll excuse me for trying to be serious for a change, I want to make a suggestion for dealing with the outcome of the provision recently agreed to for "John Doe" immunity.
If you don't know what I'm talking about, let me explain quickly. Some months back, six Muslim men alarmed passengers and crew on a Northwest Airlines flight with their behavior and were taken off the flight. The so-called "flying imams" promptly held a press conference to rail about anti-Muslim bigotry. Later, supported by CAIR, they brought suit against the airline and the "John Doe" passengers who reported the suspicious behavior. The House and Senate each passed a provision that would confer immunity on these and future "John Does" who reported suspicious activity. At the last minute, the Democrats in the House forced the provision out of the bill during a conference committee on the Homeland Security bill. And after an outcry by some House Republicans and a whole hell of a lot of bloggers, the House Democrats agreed to restore some language conferring immunity.
Via HotAir, here is the language they agreed to:
“Any person who, in good faith and based on objectively reasonable suspicion, makes or causes to be made, a voluntary report of covered activity to an authorized official shall be immune from civil liability under federal, state and local law for such report.”Ace was discussing this immunity as a qualified one, which it is. But like every other federal government lawyer, I have a passing familiarity with a specific doctrine called "qualified immunity," which is sometimes available to government officials sued for damages in their individual capacities. So I began trying to see it in those terms. I posted a comment at Ace's, which he then pulled up into the text at the link above. (Amusingly, he concluded by saying, "Thanks to the law offices of Attila the Pillage Idiot.") What I wrote was my tentative conclusion:
I'm still not sure I'm right in my reading of the new language, but I do think I'm right that it's not clear enough to give comfort to potential John Does, who still have reason to fear lawsuits against them for reporting suspicious activity.One thing I find troubling is that in REAL qualified immunity for federal and state officials, it's an immunity from SUIT, not a defense to liability. The language here says "immune from liability" -- which sounds like a defense to liability. The significance of this is that in qualified immunity, the courts decide as early as possible whether the immunity applies, so they can spare the defendant the cost and burden of litigation. Here, at least the way it appears, the defendant may have to go well into the litigation, possibly to trial, before the "immunity from liability" can be determined.
I could be wrong in my reading of this, but let's just say, this will have to be litigated for years before the meaning is clear enough for it to be helpful to John Does.
Today, I came up with what I think is the best way to handle this situation, given that the language is clearly not going to become any better than it is now.
It's time to put together an organization that will have a relationship with seasoned litigators willing to work pro bono on behalf of John Does. This organization would be like FIRE, the Center for Individual Rights, and others that I can come up with if I try.
Having an organization like this will mean that John Does can come forward without fear of having to bankrupt themselves in defending a suit brought by the likes of CAIR just to get to the point where they're entitled to immunity under what's likely to become the law. A ready supply of defense counsel will also force CAIR to watch its step in bringing these actions. The United States has a tremendous interest in encouraging citizens to come forward with information about potential terrorist acts, and it's extremely important to offset the disincentives created by the legislative compromise on immunity.
I think this is a pretty good idea, but it's not a job for me. I'm going to email a few people to see if I can stir up some interest in it. I'll let you know.
UPDATE (7/27): HotAir links to the text of the provision, section 1206 of the bill. The new section is somewhat better than I thought yesterday, based solely on the news reports available at the time, but it doesn't solve the problem. Section 1206(c) adds the following language providing for attorney's fees for successful John Doe defendants:
Any person or authorized official found to be immune from civil liability under this section shall be entitled to recover from the plaintiff all reasonable costs and attorney fees.An attorney's fee provision certainly will act as a disincentive to suits against John Does, but when suits are nevertheless brought against them, the John Doe defendants, in order to obtain attorney's fees, will have to be "found to be immune from civil liability." They won't be "found" to be immune until they reach the same stage of litigation we were discussing yesterday. So, while section 1206(c) is a help, it doesn't avoid the need for a stable of litigators ready to defend John Does pro bono.
Linkfest
1. We all know that dogs eat grass, but a Ph.D. on the subject? (via Fark)
2. Arlen Specter is a fool. But you already knew that. You also knew that there are some cool anagrams for his name. Arlen Specter = clear serpent = lepers recant = rectal preens.
3. Don't be shy, Granny! Keep a couple of 'em in your purse. Just in case you get lucky. (via HotAir)
4. Homeowner attacks mailbox vandals. The best thing about the story is the Fark tagline: "Men playing mailbox baseball find out it's not as much fun when the homeowner comes up to bat in the bottom half of the inning."
5. Paging O.J. Simpson! A geezer in an electric "mobility scooter" takes Brit police on a highway chase at 8 MPH. And they lose him. (hat tip: fee simple)
6. The new demographic of the New York Times: 20-something "men" who buy expensive (male) fragrances. "I've been in the business for 20 years, and I can't believe how many young men are spending hundreds of dollars on fragrance."
7. Someone's stalking your house. Your house, not mine.
UPDATE (7/27):
8. A late entry from fee simple. Please avert your eyes, you dignified readers, because it turns out there's something called a "gPod," not to be confused with the iPod (Apple litigation to follow): "The 'gPod', a phallic-shaped vibrator, is designed to respond automatically to sounds picked up by an accompanying handset, which can plug into anything from a telephone to a music player to a television."
July 22, 2007
Visitor of the day -- 7/22
The answer is yes, you may call the President an idiot in a public place without violating the penal law. You may even call him an idiot while he's using the presidential restroom. What a country!
July 05, 2007
The Jews and the Supreme Court
I can't possibly make as much fun of some Jewish groups as they deserve. An article entitled "Court rulings vex Jewish groups" begins:
Following a string of conservative rulings in the closing weeks of this year's Supreme Court session, some Jewish officials are suggesting that they may be forced to abandon their years-long strategy of relying on the courts to protect liberal gains on a host of issues.Amazingly, they're thinking of trying to achieve political change through the political process. Who could imagine?
Here's a quiz that my readers will ace:
Q: Which Supreme Court decision is first in the list of cases of the past year that Jewish groups found troubling?
A: Check this out:
Sinensky and others cite four decisions that have especially roiled the community in the year since Alito replaced Sandra Day O'Connor, who carefully hewed to the center as the court's swing vote on several hot-button issues:Yes, the answer is abortion -- partial-birth abortion, to be precise; not, as the article claims, late-term abortion generally. Abortion, that "Jewish issue" of fundamental importance. This is the number one case Jewish groups cared about? Are they totally insane? (Don't answer that.)
• The court ruled in April that a ban on late-term abortions did not violate a woman's right to privacy, rolling back in part the gains of the 1973 Roe v. Wade decision.
• In May, the court imposed a tough 180-day limitation on an employee's right to claim pay discrimination.
• Last month, a 5-4 majority of the justices ordered school districts in Seattle and Louisville, Ky., to end voluntary busing programs that sought to integrate schools that had become segregated through demographic trends.
• Also last month, the court ruled that taxpayers have no standing to stop the executive branch from spending federal funds on faith-based programs, a decision that would hamper efforts by Jewish groups to wage legal challenges on such matters.
It's followed by a sex discrimination case, in which the dissent basically admitted that the statute said what the majority said it did. So the Jewish groups were advocating a policy position at the expense of law.
Which is followed by a case coming close to holding that race discrimination is necessarily unconstitutional. (The Jewish grops opposed that ruling. Since when did race discrimination become a positive good among Jews?)
Finally, the fourth decision at least has something to do with religion, even if only indirectly. I guess I can see how Jewish groups would want to be able to continue bringing taxpayer-standing cases challenging government programs as an establishment of religion, but frankly, it's a strange case to turn into our Alamo. (Although, to be candid, for Jewish groups everything is an Alamo.)
And even with this taxpayer-standing case, one Jewish official admitted that the programs don't actually harm anyone (other than taxpayers):
"What you're asking for is someone who is among the least, the lost, someone with an alcohol addiction, a drug addition, someone who has no job, to come forward," [Michael Lieberman, of the Anti-Defamation League] said. "It's so unlikely that someone falling through the safety net is going to say, 'I need that methadone treatment program but I resent saying a prayer for it.'"Now, you're probably thinking to yourself: "The Anti-Defamation League? I thought that was a group dedicated to fighting anti-semitism." I think it may have been at some point. Maybe there just isn't enough anti-semitism to go around.
June 28, 2007
Compare and contrast
"In order to get beyond racism, we must first take account of race." Justice Harry Blackmun, Regents of the University of California v. Bakke (1978) (separate opinion).
"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." Chief Justice John Roberts, Parents Involved in Community Schools v. Seattle School Dist. No. 1 (2007).
June 18, 2007
Stacking the deck against Justice Thomas
A book-review editor can elicit a positive or negative review of a book (and the subject of the book) simply by choosing a reviewer with known views.
You know all you need to know about the New York Times's feelings toward Justice Clarence Thomas (as if you didn't know it already) when you see that the Times Book Review assigned the review of "Supreme Discomfort, The Divided Soul of Clarence Thomas" to Orlando Patterson. Patterson, a respected black intellectual, is a sociologist, not a lawyer. If the Times had had any interest in examining Justice Thomas's legal views, it would not have offered the review to a non-lawyer.
Why is that relevant? Justice Thomas has been a member of the Supreme Court for 15 years and, contrary to the ever-present sneers about his taking orders from Justice Scalia, he has developed a strong and individual jurisprudence over that time. You'd barely know this from reading Patterson's review.
First, Patterson assumes, without bothering to argue for his position, that affirmative action is good. Thus, he suggests that Justice Thomas is, if not a hypocrite, at least a very bad man for not recognizing that he himself was a beneficiary of affirmative action. As part of a longer bill of particulars,* Patterson writes:
It is incontestable that he has benefited from affirmative action at critical moments in his life, yet he denounces the policy and has persuaded himself that it played little part in his success.But has Patterson even read Justice Thomas's separate opinion in the Grutter case regarding the University of Michigan Law School's admissions program? For Patterson, the legal arguments seem to be irrelevant; he cannot contemplate the possibility that Justice Thomas might be correct. Had a lawyer reviewed the book, the lawyer would have had to give those arguments the respect they deserve, even if he disagreed with Justice Thomas. Patterson does admit that "recent evaluations of his opinions by scholars like Henry Mark Holzer and Scott Douglas Gerber indicate that [the arguments] should be taken seriously," but even this is a cop out, as Patterson himself recognizes when he adds, "Well, by lawyers anyway." Patterson, as I've suggested, cannot be swayed and does not even try to make a pretense of open-mindedness.
Second, when Patterson does try to weigh in on Justice Thomas's opinions, he gets it wrong. Patterson says, about Justice Thomas's 1992 dissent in Hudson v. McMillian, that "notoriously, he has held that beating a prisoner is not unconstitutional punishment because it would not have appeared cruel and unusual to the framers," but that's demonstrably wrong. What Justice Thomas actually wrote is that cruel and unusual punishment was traditionally understood as limited to sentences and that it was not concerned with prison conditions: "For generations, judges and commentators regarded the Eighth Amendment as applying only to torturous punishments meted out by statutes or sentencing judges, and not generally to any hardship that might befall a prisoner during incarceration." The same applied, he explained, to early commentators on the Constitution. This is quite different from saying that prison beatings wouldn't have appeared cruel and unusual to the framers, as Patterson claims he said. Justice Thomas also wrote that in his view, "a use of force that causes only insignificant harm to a prisoner may be immoral, it may be tortious, it may be criminal, and it may even be remediable under other provisions of the Federal Constitution, but it is not 'cruel and unusual punishment.'" That is, the fact that it wasn't cruel and unusual punishment under the Eighth Amendment didn't make it lawful.
In short, instead of giving Justice Thomas the respectful treatment that any other justice would get, with an analysis of his jurisprudence, the Times stacks the deck against him. Patterson doesn't bother with Justice Thomas's opinions at all, and barely considers his views, except in caricature.
Mission accomplished.
_______________________
* You really have to read Patterson's entire bill of particulars to believe it:
Thus, although he seriously believes that his extremely conservative legal opinions are in the best interests of African-Americans, and yearns to be respected by them, he is arguably one of the most viscerally despised people in black America. It is incontestable that he has benefited from affirmative action at critical moments in his life, yet he denounces the policy and has persuaded himself that it played little part in his success. He berates disadvantaged people who view themselves as victims of racism and preaches an austere individualism, yet harbors self-pitying feelings of resentment and anger at his own experiences of racism. His ardent defense of states’ rights would have required him to uphold Virginia’s anti-miscegenation law, not to mention segregated education, yet he lives with a white wife in Virginia. He is said to dislike light-skinned blacks, yet he is the legal guardian of a biracial child, the son of one of his numerous poor relatives. He frequently preaches the virtues of honesty and truthfulness, yet there is now little doubt that he lied repeatedly during his confirmation hearings — not only about his pornophilia and bawdy humor but, more important, about his legal views and familiarity with cases like Roe v. Wade.Most of this is grotesquery. For example, Justice Thomas's respect for state power does not mean he would ignore the Equal Protection Clause of the Fourteenth Amendment and allow an anti-miscegenation law to stand. And there may be "little doubt" at Harvard that he lied at his conformation hearings, but those outside the academic Left have great doubt indeed.
June 17, 2007
De minimis non curat lex?
(Note: Thanks, Allah, for the link at HotAir. Ace, too.)
The New York tabloids are having a field day with a settlement between an East Village artist and the City over her arrest for going out topless on the street.
- New York Post: "'Bust'ed Gal Payoff."
- New York Daily News: "Bra-vo! $29G in topless suit"
In case you think I'm making that decision up, it really exists. I found a copy of the decision at a
The majority per curiam opinion tries to avoid the constitutional issue by making an analogy to a different statute that was intended to address the problem of topless waitresses (and I know many of you don't think that's a "problem" at all). So it holds that ordinary toplessness by ordinary women is not covered by the statute. Did I just say "not covered"?
The concurring opinion proceeds to get all funky.
Appellants and the five other women who were arrested with them were prosecuted for doing something that would have been permissible, or at least not punishable under the penal laws, if they had been men--they removed their tops in a public park, exposing their breasts in a manner that all agree was neither lewd nor intended to annoy or harass. As a result of this conduct, which was apparently part of an effort to dramatize their opposition to the law, appellants were prosecuted under Penal Law § 245.01, which provides that a person is guilty of the petty offense of "exposure" when he or she "appears in a public place in such a manner that the private or intimate parts of his [or her] body are unclothed or exposed." The statute goes on to state that, for purposes of this prohibition, "the private or intimate parts of a female person shall include that portion of the breast which is below the top of the areola."1 The statute thus creates a clear gender-based classification, triggering scrutiny under equal protection principles (see, Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397).OK, now comes the fun part. The concurrence says that "the State has the burden of showing that the classification is substantially related to the achievement of an important governmental objective," which probably isn't too hard to meet if you accept the idea that women and men have different "intimate parts," but if you're a lawyer, that's way too simple. And it didn't help that the State failed to mount any defense of the statute.
So here's the concurrence:
Although protecting public sensibilities is a generally legitimate goal for legislation (see, e.g., People v. Hollman, supra), it is a tenuous basis for justifying a legislative classification that is based on gender, race or any other grouping that is associated with a history of social prejudice (see, Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 725 102 S.Ct. 3331, 3336, 73 L.Ed.2d 1090 ["(c)are must be taken in ascertaining whether the statutory objective itself reflects archaic and stereotypic notions"]). Indeed, the concept of "public sensibility" itself, when used in these contexts, may be nothing more than a reflection of commonly-held preconceptions and biases.This is totally hilarious. Treating biological differences between men and women differently is a reflection of bias? I have a friend who took an employment discrimination class with the famous Catherine MacKinnon, who was insisting that all distinctions between men and women were socially constructed. At the break, he asked her whether this applied to male voice changes after puberty. Her response was that we are acculturated (I can't remember the exact word she used) to believe that post-pubescent males have lower voices.
So according to the concurrence in the New York Court of Appeals, the fact that female breasts are significantly different from male breasts (vive la difference!) bears no relationship to whether it's permissible to require them to be covered.
Next question for the Court of Appeals: Does a law requiring that male and female genitalia be covered violate equal protection because women aren't required to cover their penises and men their pudenda?
And as long as we're raising questions, why did the New York Post, which obviously thought it was just great for Phoenix Feeley to go out topless on the streets of Manhattan, show a photo of her with her hair covering her breasts? Paging Daniel Henninger.
June 03, 2007
Playground taunt
Sometimes when you read what passes for thought at a major newspaper, you kind of wish that things could be resolved the way they were on the playground, with two guys wrestling each other to the ground and punching away. Because, let's face it, sometimes what you see on the editorial pages of the New York Times is so totally inane, so full of knee-jerk verbiage not even beginning to resemble argumentation, that any response in words would merely dignify it.
Case in point: Today's editorial by Adam Cohen about why Justice Thomas is a very bad man, because he isn't using his position on the court to enshrine liberal policies in the Constitution or federal statutes: "The Next Big Thing in Law? The Harsh Jurisprudence of Justice Thomas."
If you don't feel like reading it, read Matthew J. Franck's synopsis at Bench Memos instead.
And if you'd prefer the really short version, try the really short version by David Bernstein at The Volokh Conspiracy:
Liberals are good people. Conservatives are bad people. Clarence Thomas, who is black and grew up under modest circumstances, and once was liberal himself, should be the first one to realize this. Instead, not only is he conservative, but he hangs around with bad people like Rush Limbaugh. This is an enigma, and an especially troubling one now that the Court is moving in Thomas's direction.Now, go and consider whether a careful, intellectual response is better than an old-fashioned response to a playground taunt.
May 22, 2007
Code Pink wacks out -- again -- at the Justice Department
Another set of photos of a Code Pink protest at the Justice Department came in over the transom today from the same anonymous reader who supplied the first set.
I can't figure out whether this is a real protest or not. Look how sparsely it's attended -- by the protesters. Is this a splinter group? Does Code Pink not really take this seriously?
Why do they want Alberto Gonzales to re-sign for another term? Oh, you mean "resign"?
If impeachment is off the table, is this fellow off his rocker?
My reader says that things were surprisingly quiet on Pennsylvania Avenue.
Orange Jump Suit Lady wasn't there, but the Gonzales mask was. And I was wrong when I guessed it said "Pure Liar." It says "Fire Liar."
No protest would be complete without a couple of his-and-hers aging hippies riding a pink cart. The pony tail on him is a nice touch.
Like, groovy, man!
UPDATE (6/12): I forgot to note that the Post recently did a real puff piece on Code Pink in the Style section. A real lips-to-the-tuchis kind of piece. Mmmwwahhhh!!
May 20, 2007
Code Pink wacks out at the Justice Department
A reader wrote to tell me that on Friday he was walking by the Justice Department in Washington and was lucky to be carrying his digital camera, because Code Pink was holding an anti-Alberto Gonzales rally out in front of the building. Credit for all of the photos below goes to that reader. (He declined my offer to identify him in order to give him credit -- people in Washington are so touchy about being revealed -- and that's really too bad.)
My reader tells me that while one woman had a bullhorn and was making a racket, the rally was actually very small, and there was no press at all.
His first photo gets the general idea pretty well.
Here we have a couple of Code Pinkos.
In this next photo, Lady Justice is doing yoga or something.
But here, she's preening for the camera.
Orange Jump Suit Lady puzzles me. She appears to have a camera and to be wearing a mask on the back of her head. Yes, that's it! It's a mask of Alberto Gonzales, and it says (as far as I can tell from blowing up the photo) "Pure Liar."
Uh huh. That's a camera.
Now, Orange Jump Suit Lady is joined by a woman with a sign. My reader didn't send me any photos where the sign could be seen, but it appears to have had something to do with "Hear No Evil, See No Evil, etc."
Lady Justice, now truly camera-smitten, poses for my reader in front of a sign showing her location.
Here's another Code Pinko with a scale of justice but without the costume. She's pretty happy to have her photo taken by some guy with a camera. After all, it's the best she can do with no press around anywhere. Her shirt has Arabic and Hebrew writing on it. The Hebrew says something like, "We won't shut up." Which, I must say, is hard to disagree with.
Finally, Orange Jump Suit Lady returns, and now we can see that she has not only a camera but also handcuffs. This is all getting a little too kinky for this blog, so I'm going to have to quit.
Thanks again to my publicity-shy reader for the photos.
UPDATE (5/21): My reader emailed me that an even smaller group was back in front of the Justice Department today, including one man with a bullhorn. No more photos, unfortunately.
UPDATE (5/22): This time, my reader sent photos.
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