A stir recently erupted in the securities class action bar after Baer issued an order in a case against Gildan Activewear Inc., directing two of the largest firms in the field, Labaton Sucharow and Robbins Geller Rudman & Dowd, to “make every effort” to put at least one woman and one minority lawyer on the case.
It’s not the first time Judge Baer has required “diversity” in class counsel, according to the story.
I’m pleased to read from FIRE that my law school alma mater UVA has repealed its speech code and now has a Green rating from FIRE. UVA joins William & Mary, which already had a Green rating.
I’m disappointed that I cannot say the same about George Mason, which still has a Red rating. But I hope that this will shame us into revoking our speech code here.
Today’s NYT reports on how New York City’s health commissioner pressured his staff to create a scary anti-obesity ad campaign, featuring this ad, even if it meant stretching the available scientific evidence on the potential health consequences of drinking a can of soda per day. In the end, they produced an ad that was “defensible” because, as one participant in the discussions put it, the ad’s language was “broad enough to get away with.”
UPDATE: Althouse: “The government can’t get the science right. It can’t even get the English usage right.”
The story is here, the indictment is here, and the search warrant executed at the suspect’s home is here. The AP summarizes:
A Pakistani-born suburban father was trying to enlist in a terrorist organization in January and was eager to become a martyr when he unknowingly walked into an FBI sting and began helping plan a purported attack on the Washington subway system, according to court documents.What followed was an elaborate ruse in which Farooque Ahmed was given intelligence-gathering duties and coded information in a Quran by two individuals posing as al-Qaida operatives as part of the supposed plot to kill commuters on the nation’s second-busiest subway system.
If I understand the story correctly, it sounds like the defendant, Farooque Ahmed, a naturalized U.S. citizen, came to the attention of the feds when he sent e-mails trying to contact terrorist groups to offer his support. The feds took a closer look and found lots of suspicious activity indicating that he was serious, so they set up a sting, with Ahmed thinking he was working with co-conspirators in plotting terrorist attacks when he was really working with undercover agents or informants.
We may never know the precise details of how Ahmed came to the attention of the authorities, but it would be pretty interesting to know that — and from a standpoint of surveillance law and practice, potentially quite important to know that.
UPDATE: I would think the most likely way we’ll find out about the details would be if Ahmed’s lawyer files a motion to suppress the evidence against him on the grounds that it was the fruit of unlawful surveillance — that is, the initial obtaining of his e-mails. If that happens, I suspect DOJ will counter that even if the initial surveillance was unlawful, the evidence is admissible because Ahmed’s involvement in the sting is not a “fruit of the poisonous tree” given Ahmed’s involvement in the sting. To be clear, DOJ won’t be conceding the surveillance was unlawful: Rather, they’ll argue the evidence should come in even if the surveillance was unlawful so they don’t have to disclose any evidence about the initial surveillance. That’s my guess, at least. We’ll have to wait and see.
All the incomplete quotations of Justice Holmes’ “falsely shouting fire” line make me pleased to see today’s decision in People v. Hanifin (N.Y. Sup. Ct. App. Div.):
Defendant parked his car in the middle of Main Street in the Town of Union, Broome County in front of a business that, among other things, manufactures engine control systems for military purposes. He climbed on top of his car, poured a substance from a gasoline can onto his head, called 911 and threatened to light himself on fire if the war in Iraq did not end by a certain time that day. Emergency personnel from numerous agencies responded. Eventually, the responders doused defendant with a fire hose, took him into custody and determined that the gasoline cans contained water. Following a trial, defendant was convicted of falsely reporting an incident in the second degree and County Court sentenced him to five years of probation. He now appeals....Defendant contends that he was conducting a protest, but his 1st Amendment rights do not permit him to falsely report an impending fire (see Schenck v United States, 249 US 47, 52 [1919])....
This past summer, I was elected to serve on the Steering Committee of the Criminal Law and Individual Rights Section of the District of Columbia Bar. As part of my ‘steering’ duties, I wanted to steer readers to an interesting brown bag lunch we’re putting on next Monday, Representing Cooperators in Criminal Cases. Details, with a link to the registration page, are here.
In May 2009, in the wake of news that Justice David Souter would retire from the Supreme Court, Jeffrey Rosen penned “The Case Against Sotomayor” for The New Republic, in which he argued thatthen-Judge Sonia Sotmayor was not the best available nominee. Rosen reported that he was hearing from others on the Left who were concerned that she would not be “a judicial star of the highest intellectual caliber who has the potential to change the direction of the court” and that her temperament might limit her influence with other justices. Rosen’s article was controversial, and prompted many negative responses from other liberals (some of which I chronicled in this string of posts).
Now it is revealed that at least one prominent liberal academic shared the concerns raised in Rosen’s article, and expressed them to the White House. As just reported by Ed Whelan on NRO, on May 4, 2009, noted Harvard Law School professor Laurence Tribe wrote President Obama urging him not to nominate Sotomayor to the High Court. Tribe wrote:
If you were to appoint someone like Sonia Sotomayor, whose personal history and demographic appeal you don’t need me to underscore, I am concerned that the impact within the Court would be negative in these respects. Bluntly put, she’s not nearly as smart as she seems to think she is, and her reputation for being something of a bully could well make her liberal impulses backfire and simply add to the fire power of the Roberts/Alito/Scalia/Thomas wing of the Court on issues like those involved in the voting rights case argued last week and the Title VII case of the New Haven firefighters argued earlier, issues on which Kennedy will probably vote with Roberts despite Souter’s influence but on which I don’t regard Kennedy as a lost cause for the decade or so that he is likely to remain on the Court.
It’s unclear whether Tribe was one of Rosen’s sources, but Tribe’s concerns are similar to those Rosen identified in his reports. Only time will tell whether these concerns were justified.
As Whelan notes in a series of posts on Bench Memos, there’s more in the letter — much more — including praise for Elena Kagan, comments on Judge Diane Wood, unflattering comments about Justices Breyer and Kennedy, and an appeal for a job at DoJ. Charlie Savage of the NYT also reports Professor Tribe has revised his opinion of Sotomayor. He provided the following comment to Savage via e-mail:
I don’t comment on my confidential advice to the president, and I regarded the letter I wrote in May 2009 as confidential. The fact that it was leaked doesn’t change my policy. I can say this much: I’ve long held Justices Breyer and Kennedy in the highest regard, both as friends and as jurists, and I regret any contrary implication some may try to draw from my letter, taken out of context. I would also stress that the reservations I expressed about Justice Sotomayor prior to her nomination were amply refuted by the closer study I was able to give her record before the president made his decision and were happily negated by her performance as a justice thus far.
UPDATE: More from WSJ Law Blog.
I got a mass e-mail about this, and it seems to be making the rounds, so it struck me as worth blogging about. Telegraph (UK) reports:
Sheikh Maulana Abu Sayeed[, president of the Islamic Sharia Council,] said that sex without a wife’s consent was “not good” but could not be called rape....In an interview with the website The Samosa, he said: “Clearly there cannot be any ‘rape’ within the marriage. Maybe ‘aggression’, maybe ‘indecent activity’.
“It is not an aggression, it is not an assault, it is not some kind of jumping on somebody’s individual right. Because when they got married, the understanding was that sexual intercourse was part of the marriage, so there cannot be anything against sex in marriage. Of course, if it happened without her desire, that is no good, that is not desirable. But that man can be disciplined and can be reprimanded.”
An Assembly of Muslim Jurists of America fatwa seems to take a similar view, though it is not as clear:
[Q:] My questions are these: Is there a such thing as marital rape in the shari‘ah?On another note, is a man permitted to FORCE his wife to have sexual intercourse with him? this is obviously when she is naashiz and unwilling to have coitus....
[A:] Fatwa ...
For a wife to abandon the bed of her husband without excuse is haram. It is one of the major sins and the angels curse her until the morning as we have been informed by the Prophet (may Allah bless him and grant him peace). She is considered nashiz (rebellious) under these circumstances. As for the issue of forcing a wife to have sex, if she refuses, this would not be called rape, even though it goes against natural instincts and destroys love and mercy, and there is a great sin upon the wife who refuses; and Allah Almighty is more exalted and more knowledgeable.
Now this view strikes me as entirely wrong; forcing someone to have sex should be seen as rape whether the person is one’s wife or anyone else. Marriage is not tantamount to selling oneself into sexual slavery, which is what the “understanding when they got married” line seems to suggest. I think we ought to condemn those people and doctrines that teach that such behavior is anything less than a very grave crime (one of the gravest of crimes).
This having been said, we also ought to recognize that our own legal system took a very similar view until very recently. As the Telegraph article points out, “Rape within marriage has been illegal in Britain since 1991.” According to LaFave’s Substantive Criminal Law treatise, “as recently as 1985 it could still be said that the [marital exemption to rape laws] existed in about thirty states.”
My sense is that virtually all states now do treat forcing one’s wife to have sex as a very serious crime, though there might be some exceptions even as to that. South Carolina law, in particular, generally defines rape to exclude sex with one’s spouse if the spouses are living together (see § 16–3-658), and then defines a separate offense for sex with one’s spouse “when accomplished through use of aggravated force, defined as the use or the threat of use of a weapon or the use or threat of use of physical force or physical violence of a high and aggravated nature” (see § 16–3-615). This latter offense seems to exclude forcing one’s wife to have sex without a weapon and without force that is less than that “of a high and aggravated nature” (and seems to implicitly reject the theory that all such force is by definition “of a high and aggravated nature”). And it provides for a lesser punishment for marital rape, though still a quite substantial punishment (10 years rather than 30 years, if I read it right). Please let me know if I’m misreading this, or if you know of other state laws that exclude some forcible rape of one’s spouse.
But in any event, whether I’m reading South Carolina correctly or not, we ought to remember that the sins of these interpretations of Islamic law today were shared by our own legal system within the past three decades. That shouldn’t keep us from condemning Islamic law on this, of course. But it should put this failing of Islamic law (again, as understood by those interpreters) in perspective. Among other things, this particular aspect of Islamic law is not much of a mark of the law’s supposed vast backwardness or inferiority (though that leaves the possibility that other aspects might be such marks). UPDATE: Saying “This legal system outrageously endorses this evil view that our own legal system outrageously endorsed until the 1980s or later” — rather than just “This legal system outrageously endorses this evil view” — helps us recognize that the system is, in this respect, mere decades rather than centuries behind us.
I should note that in certain borderline cases the law might well view consent as presumed from a preexisting relationship, especially a marriage. Sexually fondling a sleeping spouse (or lover), for instance, should be quite different from sexually fondling someone with whom one does not currently have an established sexual relationship. Likewise, whether sex with someone who is mentally incompetent — for instance, someone who is suffering from dementia — should be criminal might reasonably turn on whether there was a preexisting sexual relationship from which continuing consent could be plausibly inferred (though there might be other lines drawn as well). But that has to do with situations where consent is inferred from silence (or inferred in the absence of ability to either consent or say no), not where the other person clearly refuses to consent.
I don’t have any personal interest one way or the other in the whole so-called “head stomping” incident with the Rand Paul supporter. And it seems obvious that there are overly-zealous political supporters of all stripes who can commit acts of violence, especially spontaneous violence when they are in a large group. One can, and many have, recited instances on both sides of the political spectrum. And none of it should be tolerated and none of it is acceptable or defensible. Nor do I think it makes the slightest bit of difference to most people in deciding how to vote that there are some loonies out there in the world.
Having said that, this new video of the Rand Paul supporter incident makes the whole context of the incident look much, much different from other things I’ve seen and read. When I watch that video, I have to say that in that context Valle’s actions could have been perceived as really quite threatening by those around the scene. She races to the side of the car and thrusts the sign into the car window very aggressively and in what could be reasonably interpreted as a highly-threatening manner. The members of the crowd then aggressively pull her away from the crowd and wrestle her to the ground. This Profitt fellow then presses down on her shoulder/back with his foot, seemingly telling her (in a highly threatening way) not to move and pushing with his foot to add emphasis. He didn’t “stomp her head” or try to injure her. My impression is that he is trying to tell her not to move, not to injure her. Paul supporters then run to get police to intervene. Profitt stated after the fact that he felt like Paul may have been in danger from her actions.
Imagine that it had been a police officer or a licensed security officer who was standing where Profitt was–would he have behaved differently? Perhaps, but I suspect more in degree than kind. Given the aggressiveness of her approach to the car window I think a security officer might reasonably suspect she was a threat (Profitt says she lunged at the car several times before approaching it). Would he wrestle her to the ground and try to incapacitate her? It certainly seems within the realm of possibility. Footage I’ve seen of police officers and other trained officials acting a similar situation seem quite similar to me in the way they wrestle a threat to the ground and try to incapacitate the person.
All this depends, of course, on the belief that (1) Profitt reasonably thought that Valle was a threat to Paul and (2) that he did not use unreasonable force in trying to keep her restrained until a police officer arrived. On both counts there is room for interpretation. But I have to say that on my viewing, Profitt’s explanation for his actions do not strike me as inherently unreasonable under the circumstances nor that much different from what I would have expected a trained security agent to do under the circumstances.
I don’t think this will have any effect one way or the other on that election. But apparently Profitt has been charged with a crime. He has been charged with a misdemeanor, not a felony. I guess we’ll find out in the end whether he actually committed a crime, but this seems like a case where we should be careful about rushing to judgment.
Nice catch by James Taranto (Wall Street Journal’s Best of the Web):
[T]he New York Times’s Robert Wright offers Williams a lecture:
(Note to Juan Williams: Over the past nine years about 90 million flights have taken off from American airports, and not one has been brought down by a Muslim terrorist. Even in 2001, no flights were brought down by people in “Muslim garb.”)
Still, however “natural” this irrational fear, it’s dangerous. As Islamophobia grows, it alienates Muslims, raising the risk of homegrown terrorism.
To sum up Wright’s argument: You better overcome your irrational fear of Muslims, or the Muslims are gonna gitcha.
(I do agree, by the way, that those Muslims — fortunately very few, but unfortunately enough to potentially cause great damage — who are likely to commit terrorism in America are indeed unlikely to do it in “Muslim garb.”)
Check out this Ninth Circuit petition for rehearing. A tip: The phrase “slime ball, piece of shit, ass clown judges ([names deleted by EV] — this means you)” could use some editing. And it only gets better. Thanks to Paul Milligan and Lowering the Bar for the pointer.
Prof. Doug Laycock — one of the leading Religion Clauses scholars in the nation — and the Becket Fund have just filed an excellent petition for certiorari asking the Court to review EEOC v. Hosanna-Tabor (6th Cir. 2010). The issue is well described in the petition itself:
This Court has long recognized the right of religious organizations to control their internal affairs. Watson v. Jones, 80 U.S. 679, 728–29 (1871). This right includes the freedom of religious organizations “to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 116 (1952). Most importantly, it includes the right of religious organizations to select their own religious leaders. Ibid.; Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 724–25 (1976); Gonzalez v. Roman Catholic Archbishop, 280 U.S. 1, 16 (1929).Based on this right, twelve federal circuits have recognized the “ministerial exception.” (The Federal Circuit has no jurisdiction over cases that could present the issue.) The ministerial exception bars lawsuits that interfere in the relationship between a religious organization and employees who perform religious functions — most obviously, lawsuits seeking to compel a religious organization to reinstate such an employee or seeking to impose monetary liability for the selection of such employees. As the first court adopting the ministerial exception explained: “The relationship between an organized church and its ministers is its lifeblood”; allowing the state to interfere in that relationship — effectively allowing judges and juries to pick ministers — would produce “the very opposite of that separation of church and State contemplated by the First Amendment.” McClure v. Salvation Army, 460 F.2d 553, 558, 560 (5th Cir. 1972).
Based on this principle, every circuit has agreed that the ministerial exception bars most lawsuits between a religious organization and its leaders. Every circuit has also agreed that the ministerial exception extends beyond formally designated “ministers” to include other employees who play an important religious role in the organization. And all eleven circuits to consider the question have agreed that the ministerial exception survives this Court’s decision in Employment Division v. Smith, which reaffirmed the cases underlying the ministerial exception — namely, cases forbidding the government from “lend[ing] its power to one or the other side in controversies over religious authority or dogma.” 494 U.S. 872, 877 (1990).
But the agreement ends there. Federal circuits are in sharp and acknowledged conflict over what legal standard controls the boundaries of the ministerial exception, and specifically over the “primary duties” test used by the Sixth Circuit here. The conflict has produced directly conflicting results in factually indistinguishable cases, and is widely recognized and firmly entrenched. This case presents an ideal vehicle for resolving the split and providing guidance on an important constitutional question.
Have a look at the petition if you’re at all interested in the subject, or if you’re just interested in seeing what a first-rate certiorari petition looks like.
Just published at The New Ledger, an article describing the Democratic effort to label Ronald Reagan as an “extremist,” during his 1966 campaign for Governor of California. Thanks to all the VC folks who responded to my bleg a few days ago, and provided good research leads.
I recently wrote an amicus brief urging the Supreme Court to hear the Columbia University blight takings case, on behalf of the Institute for Justice (the public interest law firm that litigated Kelo v. City of New London, among many other important property rights cases), The Becket Fund for Religious Liberty, and the Cato Institute. The brief is available here. As I explained in this post, the New York Court of Appeals’ decision in the Columbia case is an extreme example of a very common problem: the use of dubious “blight” condemnations to transfer property from the politically weak to the locally powerful interest groups — in this case a major university.
The case also represents an important opportunity for the Court to address a major unresolved issue in eminent domain law. In Kelo, the majority ruled that “economic development” counts as a public use that justifies the use of eminent domain to transfer property to private parties. But the Court also noted that “pretextual” takings — condemnations where the official rationale is “a mere pretext.... when [the] actual purpose was to bestow a private benefit” — are unconstitutional. Unfortunately, the Court was extremely unclear about what qualifies as a pretextual taking. As we explain in Part I of the brief, lower federal courts and state supreme courts have been all over the map in trying to develop rules for what counts as a pretext. The New York Court of Appeals decision in the Columbia case is at an extreme end of a continuum, defining pretext so narrowly that it is almost impossible to imagine a successful pretext case. Other courts — including the supreme courts of Pennsylvania, Hawaii, Rhode Island, and the District of Columbia, and the federal Ninth Circuit — have defined pretext more broadly. But they disagree among themselves about what kind of evidence matters.
The Columbia case is particularly notable because it features all four of the factors that the Supreme Court and various lower courts have said might prove the presence of a pretextual taking: evidence of pretextual motive, benefits that flow primarily to a private party, an identifiable private interest that benefited from the taking whose identity was clear in advance, and the absence of a thorough and unbiased planning process. For details, see pp. 12–18 of the brief. For this reason, it’s a great opportunity for the Supreme Court to determine how important each factor is, and establish a clear rule for lower courts to follow.
Legal journalist Damon Root, who has written several articles about the case, has a good discussion of its connection to the pretext issue here (though he errs slightly in regarding Justice Kennedy’s concurring opinion in Kelo as binding, since Kennedy also joined the majority opinion; regardless Kennedy is certainly a key swing voter on property rights issues).
Ilya Shapiro (no relation), who helped out with the brief on behalf of Cato, has a post about it here.
UPDATE: The Pacific Legal Foundation has also filed a brief urging the Supreme Court to hear this case. It is available here.
In many states, convicted felons lose the right to vote, at least temporarily. In Tennessee, restoration of a felon’s voting rights is conditioned upon payment of court-ordered victim restitution and child support obligations. Is this unconstitutional? A divided panel of the U.S. Court of Appeals for the Sixth Circuit thinks not. In Johnson v. Bredesen, Judge Cook, joined by district judge Ludington (sitting by designation) rejected claims that the Tennessee requirement violates the 14 Amendment’s Equal Protection Clause, the 24th Amendment, and the Ex Post Facto and Privileges or Immunities Clauses of the United States and Tennessee Constitutions. Judge Moore penned a 39-page dissent which begins:
A state under current law may curtail a felon’s right to vote, or even forever deny it, but once a state enacts a process by which a felon may regain suffrage, that process must comport with the demands of the Constitution. Contrary to the majority’s conclusion, I would hold that Tennessee Code § 40–29-202(b) and (c) violate the Equal Protection Clause of the U.S. Constitution and the Ex Post Facto Clause of the Tennessee Constitution. I further believe that the Plaintiffs have alleged sufficient factual matter to state a claim for relief under the Twenty-Fourth Amendment to the U.S. Constitution such that dismissal on the pleadings was improper. For the following reasons, I must respectfully dissent.
Tennessee Code § 2–19-143 and § 40–20-112 disenfranchise all persons who have been convicted of “infamous” crimes, i.e., felonies. Those felons denied the right to vote are “eligible to apply for a voter registration card and have the right of suffrage restored” if they receive a pardon, are discharged from custody after serving the maximum sentence imposed, or are granted a final discharge from supervision by the relevant county, state, or federal authority. Tenn. Code Ann. § 40–29-202(a)(1)–(3) (2006). Notwithstanding this provision, however, there are two pecuniary preconditions to reenfranchisement: “[A] person shall not be eligible to apply for a voter registration card and have the right of suffrage restored, unless the person has paid all restitution to the victim or victims of the offense ordered by the court as part of the sentence,” id. § 40–29- 202(b), and “unless the person is current in all child support obligations,” id. § 40–29- 202(c). Prior to 2006, felons adjudged to have committed infamous crimes were eligible to vote upon the completion of their sentences despite any outstanding financial obligations.
In the instant case, the Plaintiffs are individuals who have completed the imprisonment associated with the felonies for which the State was authorized to abridge their right to vote. Yet because of their inability to pay outstanding restitution and/or child-support arrears, the State continues to deny them the right of suffrage to which they otherwise would be entitled automatically were the law the same now as it was at the time of their convictions and initial disenfranchisement. It is indisputable that the Plaintiffs are now unable to access the ballot box simply because they are too poor to pay.
How many House and Senate seats will the GOP pick up? I’m going with 68 House seats, and 9 Senate seats. Tiebreaker: To the nearest decimal point, and excluding minor party candidates, what percentage of the House vote will the GOP get? I’ll say 54.8%. Winner gets bragging rights, and will be announced in this space next week.
An article in Slate today discusses a recent lawsuit against the website tripadvisor.com for not removing a customer comment that alleged a restaurant was patronized by prostitutes. The author argues, probably correctly, that most consumers will ignore a single outlier comment and look for patterns, and that businesses should be more concerned with trends, such as a half-dozen complaints about slow service, than a single extreme allegation. The author also suggests that businesses should take advantage of the fact that many web sites allow a criticized business to provide a response and dispute false charges.
Here’s a better idea: if the criticisms are either completely false or potentially true but unrepresentative of the usual customer experience (i.e., I had to wait an hour for my food, all the lights were burnt out in my hotel room, etc.), the business should provide a warranty for good service. For example, the restaurant accused of slow service could respond with: “Any customer who is not served within 30 minutes of being seated can obtain a 50% discount on their check by mentioning the date of this post to the manager. Offer good until December 31.” This approach would not work in cases where it would be difficult to verify the quality of the service in question. It might be hard, for example, to definitively resolve whether a table of scantily clad diners are or are not prostitutes. But the majority of quality claims businesses would want to make, or at least proxies for such claims, are subject to simple verification methods. Such offers would be legally enforceable and, far more importantly, would be credible because a merchant’s failure to honor them would lead to an avalanche of really negative posts.
I have avoided quite a few businesses after reading a string of negative comments on web sites. Had those businesses cared enough to guarantee that I wouldn’t receive the same bad service that others complained about, I likely would have given them a chance.
I blogged last month about my certiorari petition in Herrera v. Oregon. My argument is that the Jury Trial Clause — as historically understood, and as accepted by the Court in federal cases — requires jury unanimity for a conviction, and that following McDonald v. City of Chicago the same rule should be applied to the states. Since a lot of readers expressed an interest in the case, I thought I’d update them on what’s happening.
A. I’m delighted to say that four amicus briefs have been filed in support of our petition:
Many thanks to the lawyers who drafted the briefs: Prof. Ken Klein; Douglas Hallward-Driemeier, Aaron Katz, and Eugene Morgulis; Prof. Carrie Leonetti; and C. Renée Manes.
My original brief deliberately focused on the historical and doctrinal case for reading the Jury Trial Clause, as incorporated against the states through the Fourteenth Amendment, as requiring jury unanimity for conviction. The amicus briefs focus chiefly on the social science evidence that favors jury unanimity, and more broadly the pragmatic arguments in favor of a jury unanimity requirement: The jury unanimity requirement protects the proof beyond a reasonable doubt requirement, prevents convictions of the innocent, promotes jury deliberation, protects members of racial and other minorities, and makes the criminal justice system more credible to the public; and it does this with only a fairly low rate of hung juries (about 5.6% nationwide). I hope the amicus briefs will persuade those who are primarily interested by the pragmatic arguments, or who are primarily interested in my historical and doctrinal arguments but worried about the pragmatic objections to those arguments.
B. The state is not filing a Brief in Opposition right now, which is generally a pretty sensible measure for respondents (the parties that won in the court below). The Court won’t agree to hear the case (by granting certiorari, often known as “granting cert”) unless it first calls for a response (such a call is often known as a “CFR”). A respondent might well wait to see whether at least one Justice will CFR, or whether the Court will just deny cert without any need for a response.
C. My hope, then, is that a Justice will indeed CFR; either a CFR or a denial of cert should happen by November 15 — naturally, I’ll keep you folks posted about that.
Congratulations to the Mercatus Center for its recent recognition with a Templeton Freedom Award for its Financial Markets Working Group (of which I am one of many affiliated scholars). Mercatus won for “Special Achievement by a University-based Center.” From the award announcement:
The Financial Markets Working Group of the Mercatus Center at George Mason University in Virginia is a collection of 17 university-based scholars with expertise across a wide range of economic issues relevant to the recent economic crisis. Members of the group conduct research and communicate their findings, addressing the causes of and potential solutions to the economic downturn. The goals of the group are to challenge the narrative that free markets are responsible for the crisis, advance an alternative evidence-based explanation and improve public policy outcomes regarding regulations, government spending and political ownership. Mercatus Center scholars have published 115 academic and policy studies and have appeared in almost 8,000 media stories.
Interesting essay by Steven Boyer on some of the differences between the first two Narnia books and movies. Even if one isn’t keen on his overall point, there are some real nuggets here. This observation struck me as particularly interesting:
Then follow some remarkable lines. Says Peter, “Don’t you ever get tired of being treated like a kid?” “We are kids,” Edmund wryly observes. “Well, I wasn’t always,” Peter retorts. He is obviously remembering that he used to be a king in Narnia—and he wants the kingship back.
Director Andrew Adamson helps us understand just what is going on in this scene in a commentary that is one of the bonus features on the Prince Caspian DVD. Adamson explains,
I always felt . . . how hard it must have been, particularly for Peter, to have gone from being high king to going back to high school, and what that would do to him, do to his ego. . . . I always thought that would be a really hard thing for a kid to go through.
Adamson acknowledges that this emotional turmoil was “not something that C. S. Lewis really got into,” but as director he wanted “to create more depth for the characters, more reality to the situation.” He wanted “to deal with what all the kids would go through having left behind that incredible experience and wanting to relive it.”
This emotional realism was Adamson’s explicit aim, and as a result, the screenwriters who put this scene together were actively encouraged to think about what it would be like to go from “king” to “schoolboy”—not a pleasant prospect, of course, and one to which any of us might react with bitterness and resentment, just as Peter does.
Right, any of us might react that way—but that is because we have not breathed the air of Narnia. We are thinking like ordinary persons (and worse, like self-sufficient, twenty-first-century, Western intellectuals) instead of like knights or kings. In Lewis’s telling of all of the Narnia tales, the children’s experiences as kings and queens in Narnia consistently transform them into nobler, more virtuous people in their own world. They are not spoiled children wanting to be kings again; they are noble kings who carry that very nobility back into their non-royal roles as schoolchildren.
But not so in Hollywood. To be a king at all is to hunger for power forevermore, like a tiger that has tasted human blood and ever afterwards is a “man-eater.” To lose imperial power by being transported back to England is to become a bitter, sullen, acrimonious brat. That is just what Peter has become, and his folly is the driving force behind most of the action in the movie.
Over at Scotusblog, Lyle Denniston provides the context:
Landrigan was sentenced to death for a 1989 murder in Phoenix after he had escaped from an Oklahoma prison, where he was serving a sentence for second-degree murder. As the scheduled execution date of October 26 approached, Landrigan (after losing in a challenge in state court) filed a federal civil rights lawsuit, contending that the method of his execution would violate his Eighth Amendment right to be free from cruel and unusual punishment and his Fourteenth Amendment right to due process. The Eighth Amendment claim was based on an argument that the state would be using sodium thiopental — one of the drugs in the execution protocol — that had not been shown to be safe in terms of avoiding needless pain. The due process claim was based on the argument that the state had refused to disclose to him where it got that drug and whether it had been approved by the Food and Drug Administration as safe.U.S. District Judge Roslyn Silver of Phoenix, after several preliminary disputes over the drug’s source, on Monday temporarily delayed Landrigan’s execution scheduled for the following morning, in order to inquire further into the dispute. A panel of the Ninth Circuit Court on Tuesday turned down the state’s request to lift Silver’s order. Because the state had not provided the information that Judge Silver had sought, the Circuit Court panel said, it could not make an informed decision on the dispute. The state then asked Justice Kennedy to lift Silver’s order, and Kennedy referred the plea to the full Court.
The Supreme Court vacated the District Judge’s order enjoining the execution in a short order available here. The vote was 5–4, with Ginsburg, Breyer, Sotomayor, and Kagan dissenting. From the order, which would have been likely authored by Justice Kennedy (as the Circuit Justice):
There is no evidence in the record to suggest that the drug obtained from a foreign source is unsafe. The district court granted the restraining order because it was left to speculate as to the risk of harm. See Order Granting Motion for a Temporary Restraining Order in Landrigan v. Brewer, No. CV–10–02246–PHX–ROS (D Ariz.), Doc. 21, p. 15 (“[T]he Court is left to speculate. . .whether the non-FDA approved drug will cause pain and suffering.”). But speculation cannot substitute for evidence that the use of the drug is “‘sure or very likely to cause serious illness and needless suffering.’” Baze v. Rees, 553 U. S. 35, 50 (2008) (quoting Helling v. McKinney, 509 U. S. 25, 33 (1993)).
Tomorrow evening, Thursday, October 28, I will be delivering the seventh annual free Brandt Foundation Lecture on my book, “Restoring the Lost Constitution” (now available on Kindle!) at Boise State University. The lecture will begin at 7pm in the Student Union Jordan Ballroom and is made possible by Boise State’s College of Business and Economics and the John and Orah Brandt Foundation.
Doors open at 6 p.m.; no tickets are required. Free designated parking will be provided near the Student Union Building in the parking garage at Lincoln Avenue and University Drive.
Say Hi if you read the VC.
Kosmos Online, a project of the Institute for Humane Studies, interviewed me about my forthcoming Rehabilitating Lochner. If you’d like a preview of the book, or are just curious what I sound like, you can find the interview here.
And speaking of Rehabilitating Lochner, Amazon has reduced the preorder price from $40 to $30.
The Miami Heat’s power trio of Dwayne Wade, Chris Bosh, and LeBron James lost their NBA regular season debut to the Boston Celtics. It’s not often I root for the guys in green, but I did tonight. Now back to your regularly scheduled programming.
Over at National Review Online, Ramesh Ponnuru notes a mailer from a group called “Americans United for Safe Streets.” The mailer slams Republican House candidate Keith Fimian over the so-called “gun show loophole.” Americans United for Safe Streets has a website, but other than providing an e-mail contact for a press spokeman, the site is quite opaque about what the organization really is, or who works there.
The explanation is simple. “Americans United for Safe Streets” is not a grassroots organization of united Americans. According to the Center for Responsive Politics, of the $502,000 which the group raised in 2008, $500,000 came from Michael Bloomberg.
By the way, there is no such thing as a “gun show loophole.” The laws for selling guns at gun shows are exactly the same as for selling guns anywhere else. The gun show bill which Bloomberg has been pushing in the current Congress is loaded with provisions unrelated to background checks at gun shows–such as authorizing the federal government to create a central registry of sales by federally licensed dealers from those dealers’ retail storefronts.
From Rodriguez v. Glock, Inc., 28 F. Supp. 2d 1064 (N.D. Ill. 1998): “According to the testimony Plaintiff submits, including Bedoya’s testimony from his criminal trial, Rodriguez grabbed Bedoya from behind, held his arm and attempted to remove Bedoya’s service revolver, a .40 caliber Glock Model 22 semi-automatic pistol, from its holster.” The Glock 22 is a semi-automatic pistol, not a revolver, but more to the point nothing can be both a semi-automatic pistol and a revolver (except perhaps under very odd and to my knowledge entirely hypothetical circumstances [UPDATE: some commenters pointed out that there were indeed some very rare guns that were both]).
Incidentally, a quick Google Books search for Glock revolver yielded an alarming number of hits. (To my knowledge, Glock doesn’t make revolvers.)
So holds Amazon.com v. Lay (W.D. Wash., decided yesterday):
Amazon pursues summary judgment as to its First Amendment claim that the DOR’s request for all information related to Amazon’s sales to North Carolina residents violates the First Amendment. The Court agrees and GRANTS the motion.The First Amendment protects a buyer from having the expressive content of her purchase of books, music, and audiovisual materials disclosed to the government. Citizens are entitled to receive information and ideas through books, films, and other expressive materials anonymously. In the context of distribution of handbills, the Supreme Court held that anonymity “exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 357 (1995); Talley v. California, 362 U.S. 60, 64 (1960) (protecting anonymity in handing out campaign literature). The fear of government tracking and censoring one’s reading, listening, and viewing choices chills the exercise of First Amendment rights. In a concurring opinion, Justice Douglas highlighted the deleterious effect of governmental meddling in the reading habits of its citizens: “Some will fear to read what is unpopular what the powers-that-be dislike. When the light of publicity may reach any student, any teacher, inquiry will be discouraged.” United States v. Rumely, 345 U.S. 41, 57–58 (1953) (Douglas, J., concurring).
From Judge Kleinfeld’s opinion dissenting from the Ninth Circuit’s referral of an Alien Tort Statute case to mediation:
It is risible to think that the first Congress wrote the Alien Tort Statute intending to enable federal courts to adjudicate claims of war crimes committed abroad. Were it otherwise, a French aristocrat who had escaped the guillotine and fled to Philadelphia could have sued French defendants in our newly organized federal courts, perhaps even Robespierre himself, and obtained an injunction commanding the bloody French revolutionaries to stop immediately. Perhaps we should have mediated the French Revolution, or issued a preliminary injunction to maintain the status quo while we decided whether we had jurisdiction? This silly hypothetical would be analogous to our adjudicating or mediating the class action claims in this case. The point of the Alien Tort Statute was to keep us out of international disputes, not to inject us into them.
I don’t know much about the Alien Tort Statute, so I don’t know whether Judge Kleinfeld is correct, or whether Judge Reinhardt’s response (joined by several other judges) is correct. But the Kleinfeld opinion struck me as quite worth reading. Thanks to How Appealing for the pointer.
So the Kentucky Supreme Court held last week in Hill v. Petrotech Resources Corp., following a modern trend (though one from which some state courts have dissented). The premise is that the ban on “prior restraints” means that speech may not be restricted prior to a decision on the merits that it falls within an unprotected category, such as libel. So a preliminary injunction based on a mere likelihood that the speech will be found libelous — and preliminary injunctions generally rest on such likelihood-of-success-on-the-merits decisions — violates the First Amendment, but a permanent injunction against certain statements based on a finding on the merits that those particular statements are libelous would be constitutional.
I’ve argued here that this is generally correct as a matter of First Amendment law, both as a matter of First Amendment logic and given the Court’s decisions in Kingsley Books, Inc. v. Brown or Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations. But some state courts have read their state constitutions as barring even permanent injunctions in libel cases, and there is considerable 19th century authority supporting that view.
The Kentucky Supreme Court held that both the First Amendment and the Kentucky Constitution allows permanent injunctions. Query whether that’s correct given the text and original meaning of the Kentucky provision (“Every person may freely and fully speak, write and print on any subject, being responsible for the abuse of that liberty.”), though if you want to opine on that you might want to read the court’s explanation of how it is interpreting the Kentucky provision.
Here’s what the proposed rules say, in relevant part:
§ 3–03 Grounds for Denial of Permit. An application for a rifle/shotgun permit may be denied [if] for lack of good moral character or other good cause, pursuant to section 10–303 of the Administrative Code, based on the following reasons:(a) The applicant has been arrested, indicted or convicted for [any] a crime or violation except minor traffic violations, in any [jurisdiction,] federal, state or local jurisdiction....
(g) The applicant has a history of one or more incidents of domestic violence [note that this doesn’t require a conviction or even a finding by a court by a preponderance of the evidence, just presumably the administrative officials’ own evaluation –EV].
(h) The applicant has a poor driving history, has multiple driver license suspensions or has been declared a scofflaw by the New York State Department of Motor Vehicles....
(j) The applicant has been terminated from employment under circumstances that demonstrate lack of good judgment or lack of good moral character.
(k) The applicant has demonstrated an inability to safely store firearms, such as through a history of lost/stolen firearms.
(l) The applicant has failed to pay legally required debts such as child support, taxes, fines or penalties imposed by governmental authorities....
(n) Other information demonstrates an unwillingness to abide by the law, a lack of candor towards lawful authorities, a lack of concern for the safety of oneself and/or other persons and/or for public safety, and/or other good cause for the denial of the permit.
In evaluating incidents or circumstances pursuant to this section, the License Division shall consider all relevant factors, including but not limited to the number, recency and severity of incidents and the outcome of any judicial or administrative proceedings.
Whatever power the government might have to ban gun possession by felons, violent misdemeanants, people subject to restraining orders, and so on (see this article, PDF pp. 51–73 for some thoughts on that), surely some of these categories go way too far.
Thanks to James Gibson, who pointed me to the Fox News story that reported on this. Incidentally, the story quotes Paul Helmke of the Brady Campaign saying,
Child support, taxes, fines and governmental penalties I think are legitimate things. Basically, if someone’s not complying with what the government requires of somebody, that’s usually a sign that you can’t trust them to follow the rules with something like a gun.
Whatever arguments there might be for denying a person the right to keep and bear arms in some situations — and I have to acknowledge that the Supreme Court and other courts have allowed some such denials — I think a connection as weak and indirect as Mr. Helmke’s can’t suffice where a constitutional right is at stake.
Interest in targeted killing and drone warfare is not letting up in intensity — at least to judge by the pace of events on the topic. Right on top of my debate with Notre Dame’s Mary Ellen O’Connell on this at Washington University two weeks ago, Professor O’Connell and the Brookings Institution’s (and Hoover Institution’s) Benjamin Wittes undertook another one, this past Saturday at International Law Weekend in New York. It was considerably more testy than the Washington University debate. Some in the audience were unhappy with the confrontational nature of the exchange; some thought it refreshingly direct; my view is the latter and congratulations to Vincent Vitkowsky for an excellent job of moderating the debate. I’m sure it will generate a lot of interest and a lot of pushback in several directions. Ben (I’m going to use first names in this post for both of them and hope they don’t mind) has posted up video of the event at Lawfare.
Ben has also added a second post with some transcription, specifically on the question of whether, if one takes Mary Ellen’s statements at what they say, Barack Obama is not therefore a “serial killer” for having directly ordered the CIA to carry out what Mary Ellen characterizes as “crimes” and Harold Koh at the least an aider and abetter. Ben has in mind, for example, statements in Mary Ellen’s widely noticed article, “Unlawful Killing with Combat Drones,” which among other things declares that “members of the CIA are not lawful combatants and their participation in killing—even in an armed conflict—is a crime.”
One might argue Ben’s choice of provocative words in the debate — serial killing — or one might argue various technical points over whether it is murder or not murder, whether or not there can be the proper intent given the presumed opinions of many lawyers advising inside the government (many of those questions came up, of course, in the detention-interrogation-rendition arguments as well). His fundamental point is to say, as far as I understand it (and if I do, I agree), if you declare that CIA participation is a crime, then it follows that somewhere there is a perpetrator. Not to go after him or her is to permit impunity; it is not a matter of saying, well, you are committing crimes, but all we want to do is persuade you to change your policies going forward to bring you into compliance with international law. Crime is a charge of more than mere non-compliance. If there is a crime, someone must be responsible for doing it, whether you call it murder, criminal extrajudicial execution, what have you.
And whether one calls these crimes serial killing, murder, extrajudicial execution, etc., they are still a large number of killings. It’s not the kind of crime that just happens to be a tort or civil infraction criminalized, but for which as a regulatory matter one can simply agree not to do it any more, like various of the lesser environmental “crimes” for which corporations routinely pay criminal fines in the domestic United States. Killing is not like that, presumably, at least not when it’s systematic, systemic, large-scale, and under direct orders.
The article by Mary Ellen specifically says who commits a crime — members of the CIA. Yet they are not acting as rogues in this, but rather under direct orders of the President. If it is correct to call the acts a crime, then it is correct to identify the criminals, and those criminals will have to include those who ordered them to do the crimes. So what is it to be? I think it a salutary reminder that one ought to be careful in cranking up the machinery of international criminal law over contested interpretations of international law. One risks either over-invoking it or trivializing it or both. I take it that was Ben’s larger point in seeking to force the question onto the table by insisting on using an ordinary, non-legal term like serial killing.
I have another concern beyond this, however. It goes to one of the responses in the debate from Mary Ellen when Ben insisted in pressing the point. It is that it would be politically unrealistic to consider going after Barack Obama or Harold Koh, so there is no point to raising the issue of criminality and, I took by implication, Ben was engaging in a strawman argument to do so. But why should it be seen that way? Ben did not assert the question of criminality in the first place, and then suddenly or unreasonably put it on the table, after all; it is not a proposition tossed up by Ben. “Crimes” as an issue were raised in the first place by Mary Ellen against CIA officers. Ben has pointed out that they are acting under perhaps the clearest, deliberately and (admirably, in my view) least deniable set of orders from the President of the United States in a long time on contentious national security matters. If there is a crime, there must somewhere be a criminal or else it is merely a series of unfortunate events; if there is a criminal, he or she did not act alone, because these agents acted under instructions from a principal.
So this is my concern: If it is politically unrealistic to consider going after Barack Obama and Harold Koh and Leon Panetta and Joe Biden, et al., and that is the reason (or a big part of it) for not pursuing criminal sanctions that follow upon criminality, well, one has to wonder when it will be politically realistic. Continue reading ‘Targeted Killing and Drone Warfare Debate between Mary Ellen O’Connell and Benjamin Wittes’ »
DCist has the scoop.
My short essay for the Encyclopedia Britannica blog looks at the racist origins of marijuana prohibition. The essay is part of a two-day series of pro/con articles related to California’s proposition 19.
This is a few days old but I just came across it. I think it pretty much captures the electorate’s view of the upcoming election better than anything else I’ve read: “[I]n the land of epic, mega, ultra, apocalyptic levels of sucking, those who kinda suck are king. Or at least are going to win in a landslide.” With apologies for any redundancy if you’ve already seen it.
In my Academic Legal Writing book, I caution students who are writing law review articles against relying on court opinions’ factual assertions about social science evidence, or even about past cases. Always read, quote, and cite the original source, I tell them (though I realize, of course, that many lawyers don’t have the luxury of taking the research time to do that). Don’t let the intermediate source’s errors become your errors.
I just came across another interesting example, from the recent Florida same-sex adoption decision, In re Matter of Adoption of X.X.G. and N.R.G (emphasis added):
The Department says that there are disturbingly high domestic violence rates among same-sex couples. However, the Department selectively quotes the testimony by Dr. Peplau. In reality, Dr. Peplau testified that gay people or gay couples do not have higher rates of domestic violence than heterosexual couples. R. 811. In the population-based study cited by Dr. Peplau, “the highest rate of domestic violence, defined as physical assault or rape ... was 20 percent, and that was for women in heterosexual relationships being attacked by their male partner.” R. 812. The rates for all other groups was lower. This was consistent with a study by the Centers for Disease Control, which found that over an eighteen-year period, ninety-five percent of female homicide victims were women killed by a male domestic partner. R. 814.
Ninety-five percent of female homicide victims were women killed by a male domestic partner — that struck me as suspiciously high. Unfortunately, I couldn’t track down the actual court record (“R. 814″ is a cite to the record), even by contacting the court. But I e-mailed Dr. Peplau, who reported that she had testified about this CDC report, and in particular about this passage:
During 1981–1998, a total of 346,258 homicides were recorded in the SHR [Supplemental Homicide Reports] database, and a total of 381,408 homicides (excluding those involving legal intervention) were recorded in the vital records database. Among the SHR homicides, 16,809 were dropped from the analysis because they were classified as negligent manslaughter or justifiable homicide or were associated with legal intervention (i.e., homicide associated with police intervention). An additional 28,927 homicides were dropped from the analysis because they involved multiple victims aged >10 years or because the age, race, or sex of the victim was missing. Consequently, 300,522 SHR homicides were available for analysis. The average weight applied to the IPH [Intimiate Partner Homicide] counts to generate the estimated number of IPHs was the ratio of vital records homicides (381,408) to 300,522 or 1.28.Of 300,522 records, SHRs recorded 35,601 (11.8%) IPHs (i.e., one victim aged >10 years) with complete information on age, race, and sex. After weighting, an estimated 45,513 (11.9%) IPHs occurred during 1981–1998. Of these 45,513, approximately 28,991 (63.7%) of homicides were perpetrated against females, 93.8% of males were victimized by females, and 99.5% of females were victimized by males.
So the report was that 99.5% (not 95%) of those women who were killed by intimate partners (setting aside negligent homicides and justifiable homicides, such as defensive homicides) were women killed by male intimate partners, and only 0.5% were women killed by female intimate partners. Very different, I think, from “ninety-five percent of female homicide victims were women killed by a male domestic partner” (even setting aside the 95% vs. 99.5% discrepancy).
Now it may well be that the judges read the report or Prof. Peplau’s testimony correctly. The paragraph I quote from the court decision is indeed about the relative crime rates within lesbian couples as opposed to heterosexual couples, and the report is relevant to that (though if it’s used for that purpose, the 95% vs. 99.5% difference is very substantial, and one would also want to know how many female-female couples were around at the time in the first place, compared to male-female couples). But the court’s sentence summarizing the report is incorrect. If you rely on the court’s assertion in a future article about the fraction of female homicide victims were women killed by a male domestic partner, you’ll be badly wrong.
So, as I said, in your own scholarship you should read, quote, and cite the original source for the assertion, not an intermediate source (including a court opinion). Here’s another example, by the way, that I give in the book, from a U.S. Supreme Court opinion.
Continue reading ‘Broken Telephone in Court Opinions’ »
