Saturday, December 30, 2006

NYT on Judicial Amicus Brief Rejection:

The N.Y. Times reports on the D.C. Circuit's rejection of an amicus brief filed by retired judges. The article suggests politics played a role in the rejection.

David B. Rivkin, who was an official in the administrations of Ronald Reagan and the first President George Bush, said he detected a political undertone.

“It certainly tells you,” Mr. Rivkin said, “how at least some of the D.C. Circuit judges feel about the anti-Bush-administration judicial activism by their former colleagues.”

The two judges who rejected the brief, Sentelle and Randolph, were Republican appointees, while the dissenting judge, Rogers, and some of those on the amicus brief were Democratics appointees. One of the brief's signatories suggested personal animus explained the decision.

[Former Judge Abner J.] Mikva said the rejection of his brief was motivated by personal animus, not politics. “It’s not political at all,” he said in an interview. “This was clearly aimed at me.”

The judges in the majority, Mr. Mikva said, were furious with him because he opposed allowing judges to accept free trips to resorts for seminars sponsored by private groups.

There's no question that many federal judges object to Mikva's support of a campaign against privately funded judicial education seminars, particularly given some of the inaccurate and outrageous claims made in the course of that campaign. That said, I find the idea that either Judge Sentelle (for whome I clerked) or Judge Randolph (who was a professor of mine) would base their decision on such sentiment [to be ridiculous]. Correctly or not, I think it clear that Judges Sentelle and Randolph [sincerely] believed that Mikva and the other judges on the brief were inappropriately using their status as former judges in an effort to influence the case [or public perception thereof].

Experts in legal ethics were divided over yesterday’s ruling. Ronald D. Rotunda, a law professor at George Mason University, said it was an unexceptional application of a sensible policy.

“There is no particular reason why former judges should be able to leverage their titles in litigation,” Professor Rotunda said.

Stephen Gillers, a law professor at New York University, disagreed. “It’s more than petty,” Professor Gillers said of the brief’s rejection. “It’s unnecessary and insulting.”

He added that the objection was an empty formality, as former judges remain free to submit briefs if they omit references to their prior judicial service.

Whatever its basis and wisdom, yesterday’s order probably indicates that a ruling in the underlying case is near. In a 1994 libel case, a panel including Judges Mikva and Wald rejected a supporting brief that Kenneth W. Starr, a former judge on the court, had tried to submit on behalf of several news organizations. The panel decided the libel case the next day.

UPDATE: I edited the post above to fix an incomplete sentence and make my point more clear. The added portions are in brackets.

As for my accusation against Judge Mikva, he endorsed a report attacking privately funded seminars for judges that included ridiculous charges against sitting judges, including judges with whom he served. One of the charges was that a judge's vote in a case was influenced by having attended a seminar — even though the case was decided before the judge attended the seminar where his mind was allegedly poisoned with "anti-environmental" views. I've written about this issue quite a few times, most recently in this article for NRO.

Let me make clear that I am not endorsing the panel's decision to reject the brief. While I understand why a court might be wary of briefs that are submitted for political reasons, I am unsure whether Judges Sentelle and Randolph were correct on the merits. I am concerned about whether this decision has sufficient precedent. I also find Steve Lubet's suggestion in the comments that any rejection of the brief should have been without comment to be reasonable as well. My point is that I believe both judges made a sincere and principled judgment on the merits, and were not motivated by a desire to get back at Judge Mikva.

FURTHER UPDATE: Stephen Gillers fleshes out his position in a comment below. It is much more informative than the NYT soundbite. Beldar has some thoughts as well.


Friday, December 29, 2006

No Workers' Comp in Ohio for Violator of Safety Rules:

The Ohio Supreme Court issued a particularly interesting, and potentially significant, workers’ compensation decision yesterday in State ex rel. Gross v. Industrial Commission of Ohio. By a vote of 5-2, the Court upheld the decision of the Industrial Commission of Ohio (ICO) to deny workers’ compensation benefits to an injured worker because he voluntarily terminated his employment. Specifically, the ICO concluded that because the worker’s injury resulted from actions in direct contravention of written company policy and repeated warnings, the worker was not eligible for benefits when the company fired him.

The employee, David Gross, worked for Food, Folks and Fun, the operator of a local KFC franchise. Among the written safety guidelines in the employee handbook was a warning never to clean a pressure cooker by boiling water in it. The employee handbook further declared that violations of safety policies were “critical violations” that could result in immediate termination of employment. There was also a written warning on the pressure cooker itself, and Gross had been repeatedly told not to boil water in the pressure cooker.

In November 2003, Gross nonetheless sought to clean the pressure cooker by boiling water in it. A co-worker warned Gross not to open the lid, because the water was under pressure. Gross did so anyway injuring himself and two other workers.

Gross and the others suffered severe burns. Initially he received workers’ compensation benefits. In February 2004, however, the company informed Gross that after investigating the accident, it concluded that Gross caused his own injury by violating company safety policies, despite repeated warnings from co-workers. The company informed him in writing that it “cannot and will not tolerate employees who pose a danger to themselves and others based upon their refusal or failure to follow instructions and recognized safety procedures,” and fired him. At this point, the company requested that ICO terminate Gross’s workers’ compensation benefits, which the ICO did.

The Ohio Supreme Court’s majority concurred with the ICO that gross had effectively abandoned his employment when he repeatedly violated the company’s safety policies, and was therefore not eligible for benefits; Gross “was fired because he directly and deliberately disobeyed repeated written and verbal instructions not to boil water in the pressurized deep fryer and injuries followed.” This was so even though he had received them for a few months.

In this case, Gross’s disability and the misconduct that precipitated a finding of voluntary abandonment occurred simultaneously, not sequentially. The date of disability onset preceded the date of termination only because F.F.F. conducted an investigation first rather than firing him on the spot, which, given the gravity of the misconduct, may not have been unwarranted.
Justice Lundberg Stratton, joined by Justice Pfeiffer, dissented, writing that she was
concerned that the majority is tacitly injecting fault into a no-fault system of compensation and reintroducing contributory negligence as a basis for defeating the right to recover compensation. Our workers’ compensation laws are intended to compensate a worker who suffers an industrial injury without a determination of fault or wrongdoing. Yet KFC assessed fault for the accident and acted according to its conclusion. This is contrary to worker’s compensation principles, and we should not condone such actions.

If we conclude that this was a voluntary departure that precludes payment of [benefits], I believe that this will place us on a slippery slope toward assessing fault in industrial accidents. The employer will examine the employee’s conduct following an industrial accident and use any infraction discovered to terminate the employee. When this occurs, where do we draw the line? What about the employee who fails to properly shut down a machine, tries to stop it manually, and, as a result, causes a machine malfunction that results in injury? The employer may decide to terminate the employee for improperly operating the machine in violation of a work rule. Should the employee’s fault preclude his receiving [workers’ compensation] benefits? The answer to this question is no. Our workers’ compensation laws do not permit the introduction of fault — regardless of whether the employee’s act that caused injury was intentional or negligent. Therefore, if the employee is terminated and the termination was related to the employee’s conduct that resulted in injury, I believe it should be deemed an involuntary termination.

The local Cleveland coverage is here. Howard Bashman rounds up additional news coverage here.

Retired Judges Filing Amicus Briefs:

I appreciate Orin's point; and perhaps judges indeed ought to take retired judges' briefs with a grain of salt. But I just don't see this as a justification for a rule rejecting any briefs signed by retired judges who say they are retired judges (and I think Orin doesn't, either). Even if, at worst, retired judges' briefs are unlikely to be any more useful than briefs filed by advocacy groups or law professors or anyone else, those other groups remain free to file briefs (though subject to the risk that the briefs will be taken with a grain of salt). Why not let retired judges do the same?

One possible reason would be if we thought that retired judges' opinions would improperly carry more weight than the others' opinions. But surely the D.C. Circuit panel wouldn't be duped into somehow overestimating the brief's merits. (As I noted in the earlier post, perhaps a jury would wrongly give more credit than is due to arguments made by a lawyer who's address as "Judge Jones" as opposed to his adversary "Mr. Smith"; yet that's hardly a concern for an amicus brief like this one.) They can evaluate perfectly well briefs filed in the name of Professors Tribe, Dershowitz, and Sullivan. They can presumably equally evaluable a brief filed in the name of Dean Ken Starr, though it doubtless won't be lost on them that he was once a D.C. Circuit Judge himself. What's the problem with letting Judges Hofstetler, Mikva, Wald, and the others note their past professions, and leaving it up to the panel to read the brief and decide what weight to give it, just as it does with any other amicus brief?

A Legitimate Concern With Allowing Amicus Briefs on Behalf of Retired Judges: I tend to agree with Eugene that it was ill-advised for Judges Sentelle and Randolph to reject the amicus brief filed on behalf of the retired judges in one of the pending Guantanamo cases. At the same time, I think there's a significant institutional reason a court might want want to limit such briefs that may explain the court's action.

  The key, it seems to me, is that most retired judges who put their names on amicus briefs probably have little or no involvement in the writing of the briefs. In this case, for example, the cover page of the brief suggests that it was written by lawyers at two private law firms. I don't know if the retired judges who were the clients in this particular case were actively involved in discussions about what the brief said. But I would imagine that in most cases, the judges won't have much involvement at all. This is certainly how it works with law professor amicus briefs. In my experience, most professors who put their names on amicus briefs have at best a passing familiarity with the arguments filed in their names.

  If I'm right about that, briefs filed on behalf of former judges normally won't be filed to give the court the benefit of "many years of high-level experience with the judicial system" that the judges have. Rather, the briefs will be authored by some law firm attorneys with no particular experience, filed with the retired judges' names on the cover simply to get some extra attention to the lawyers' views. I personally don't have a particular problem with that practice. But I can imagine that if you're a sitting judge, you might not think it appropriate for retired judges to try to use their former positions in that way. It's a bit artificial, given that they didn't actually write the briefs, and at worst it can encourage lawyers to see who can find the most prestigious retired judges for their side. ("Wait, they have Wald and Mikva? Quick, someone call up Starr and Bork!!!") It may be better to discourage this sort of practice and have the lawyers file their amicus briefs without the attention-getter of retired judges on the cover.

  Of course, this is only one institutional interest competing with others, which is why I ultimately think it was probably ill-advised to reject this brief. But I think there is a substantial concern there that may help explain the panel's decision.
What's Wrong With Retired Federal Judges Filing a Friend-of-the-Court Brief?

Maybe I'm missing something, but I just don't get the thinking behind the D.C. Circuit decision rejecting the retired federal judges' friend-of-the-court brief in one of the Guantanamo cases. Here's the panel's reasoning:

Upon consideration of the unopposed motion of retired federal jurists for leave to file brief amici curiae in support of petitioners regarding the Military Commissions Act of 2006, and the lodged brief, it is ORDERED that the motion for leave to file be denied. See Advisory Opinion No. 72, Committee on Codes of Conduct, Judicial Conference of the United States ("Judges should insure that the title 'judge' is not used in the courtroom or in papers involved in litigation before them to designate a former judge, unless the designation is necessary to describe accurately a person's status at a time pertinent to the lawsuit."). The Clerk is directed to return to movant-amici curiae the lodged brief.
Well, here's the full text of the Advisory Opinion:
Use of Title "Judge" by Former Judges.

A judge has inquired respecting use of the title "judge" by former judges who have returned to the practice of law and whether sitting judges have any ethical responsibilities relating to such use.

Historically, former judges have been addressed as "judge" as a matter of courtesy. Until recently there have been very few former federal judges. With federal judges returning to the practice of law in increasing numbers, ethical considerations are implicated. The prospect of former federal judges actively practicing in federal courts raises what otherwise might be an academic question into a matter of practical significance.

A litigant whose lawyer is called "Mr.," and whose adversary's lawyer is called "Judge," may reasonably lose a degree of confidence in the integrity and impartiality of the judiciary. Moreover, application of the same title to advocates and to the presiding judicial officer can tend to demean the court as an institution. Judges should insure that the title "judge" is not used in the courtroom or in papers involved in litigation before them to designate a former judge, unless the designation is necessary to describe accurately a person's status at a time pertinent to the lawsuit.

February 2, 1982
Reviewed January 16, 1998

The opinion seems right so far as it goes, but its reasoning just doesn't apply here. The judges aren't acting as lawyers. They're not being called "Judge" instead of "Mr." in the hearing of a jury. No-one will be confused about whether they are current judges and thus equivalent to the presiding judicial officer, or whether they are retired judges. The brief makes clear they're retired judges, and the panel most certainly knows that they're retired judges. It's not even clear whether the judges are using the title "judge," given that the briefs make clear that they're retired judges. But if one does count this as using the title, there seems to be nothing unethical or harmful to the judiciary for them to use the title this way.

Of course, the reason that they are filing the brief is that they are hoping that their experience and past accomplishments will impress the judges and Justices who may consider the case, and will move those active judges to pay special attention to the arguments in the brief. (They may also hope that the public and the bar will pay such special attention as well.) But there seems to be nothing nefarious in that -- the whole point of having amicus briefs be signed rather than anonymous is so that the court may consider, for whatever it's worth, the identity of those making the argument as well as the contents of the argument.

The views of respected former judges such as Shirley Hufstedler, Abner Mikva, and Patricia Wald about how the judicial system should handle certain kinds of cases should indeed attract special attention because they come from people with many years of high-level experience with the judicial system. Perhaps the panel will ultimately conclude that the views are unpersuasive, and that the former judges' past experience isn't that relevant here; but that's a reason to decline adopting the brief's reasoning, not a reason to reject the brief outright. There's nothing wrong with the former judges' filing an amicus brief that seeks to take advantage of their past experience as judges, and no reason for them to hide their previous judicial status.

In this respect, the identification of the brief's signers as former judges may fit within the text of the Advisory Opinion itself, because "the designation is necessary to describe accurately a person's status" -- here, status as a former federal judge who therefore has a special and potentially especially valuable perspective on the judiciary, judicial review, and due process -- at "a time pertinent to the lawsuit." But even if the designation doesn't fit within this proviso, the Advisory Opinion seems to have been written with an eye towards a very different sort of conduct by former federal judges, and there's no reason to apply it literally to this conduct. The Opinion is an expression of the Committee's reasoning, to be followed in situations where the reasoning is relevant (such as participation by federal judges as lawyers in litigation, especially in front of juries), not a statute to be followed according to its letter in all contexts to which it literally applies.

So I just don't see the logic behind the panel's decision, and Judge Rogers' dissent strikes me as much more persuasive. Am I missing some important argument here?

The Unnoticed Mass Murder in Ethiopia

In a new article on Tech Central Station, Paul Gallant, Joanne Eisen and I detail the Ethiopian government's efforts to destroy the Anuak people, who live in southwestern Ethiopia. As is typical of past and present mass murders in East Africa (including Sudan, Rwanda, and Uganda), the government has done its best to ensure that the victims are disarmed.

D.C. Circuit Rejects Retired Judges' Amicus Brief:

Today the U.S. Court of Appeals for the D.C. Circuit denied "the unopposed motion of retired federal jurists for leave to file brief amici curiae in support of petitioners regarding the Military Commissions Act of 2006" in the consolidated cases of Bouemediene v. Bush and Al Odah v. United States. The three judge panel's order was issued without opinion, providing only a parenthetical citation to Advisory Opinion 72 from the Judicial Conference's Committee on Codes of Conduct, which reads in relevatn part:

Judges should insure that the title ‘judge’ is not used in the courtroom or in papers involved in litigation before them to designate a former judge, unless the designation is necessary to describe accurately a person’s status at a time pertinent to the lawsuit.
Judges Sentelle and Randolph supported the order. The third judge on the panel, Judge Rogers, wrote a brief dissent, arguing that the Court traditionally allows the submission of amicus briefs when not opposed by the parties and supported by a sufficient statement of the amici's interest. Advisory Opinion 72 was not controllng, Rogers argued, adding that rejecting the brief could create the appearance of partiality on the part of the court.

A copy of the brief in question is available here.

Is Bush Admin Flipping on Gun Rights?

Early in President Bush's first term, the Justice Department adopted the "individual rights" interpretation of the Second Amendment. According to administration attorneys, the weight of historical evidence and academic scholarship supported this view. Now, however, it appears that at least one federal agency (the Federal Aviation Administration) is endorsing the "collective rights" view in a rulemaking concerning whether firearms should be allowed during space travel. Given that proposed rules are supposed to be subject to White House review in the Office of Management and Budget, the question is whether this one just slipped by, whether it represents a sign that the Administration is backing off the "individual rights" interpretation favored by most supporters of gun rights, or whether this is something that only those of us who with scheduled space travel need worry about. (Link via Instapundit)

UPDATE: It is important to note that, according to David Codrea, the FAA maintains that the rule's language was approved by the Executive Office of the President. This would suggest that the White House, perhaps inadvertently, let through a statement that the Second Amemdment only protects a "collective right" to arms. If this represents an official change in policy, it is significant (and far more significant than the FAA's regulation, which could easily have met the more exacting scrutiny required by an "individual rights" interpretation of the Second Amendment).


Thursday, December 28, 2006

NASA Considers Ad Campaign To Persuade People to Care About NASA: From the Associated Press:
  Young Americans have high levels of apathy about NASA's new vision of sending astronauts back to the moon by 2017 and eventually on to Mars, recent surveys show.
  Concerned about this lack of interest, NASA's image-makers are taking a hard look at how to win over the young generation -- media-saturated teens and 20-somethings growing up on YouTube and Google and largely indifferent to manned space flight.
  "If you're going to do a space exploration program that lasts 40 years, if you just do the math, those are the guys that are going to carry the tax burden," said Mary Lynne Dittmar, president of a Houston company that surveyed young people about the space program.
  . . .
  At an October workshop attended by 80 NASA message spinners, young adults were right up there with Congress as the top two priorities for NASA's strategic communications efforts.
  Tactics encouraged by the workshop included new forms of communication, such as podcasts and YouTube; enlisting support from celebrities, like actors David Duchovny ("X-Files") and Patrick Stewart ("Star Trek: The Next Generation"); forming partnerships with youth-oriented media such as MTV or sports events such as the Olympics and NASCAR; and developing brand placement in the movie industry.
  Nothing like a government program to try to persuade people to support a government program.
Clone Meat and Milk "OK"; No Need to Label:

As anticipated, a draft ruling from the Food and Drug Administration concludes the meat and dairy products from cloned animals are safe for human consumption. As the Associated Press reports

The government believes "meat and milk from cattle, swine and goat clones is as safe to eat as the food we eat every day," said Stephen F. Sundlof, director of the FDA Center for Veterinary Medicine. Meat and milk from the offspring of clones is also safe, the agency concluded.
Given the FDA's conclusion, there is no legal basis to require the labeling of products from cloned animals, but this does not mean we won't soon see "clone-free" labels.

If consumers truly care about whether the milk or meat they consume was produced, producers will have an incentive to respond by offering "clone-free" meat and dairy products, and labeling them accordingly. At least one producer, Ben & Jerry's, plans to do just that. The Vermont ice-cream makers already advertise that they do not use milk from cows treated with recombinant bovine growth hormone (rBGH). Even though the use of rBGH has no effect on the milk cows produce, this may influence some consumers (though I suspect the high-milk-fat content is the real basis for Ben & Jerry's' popularity).

The legal standard the FDA uses in determining whether it has the authority to mandate labels is the right one, in my view. If the use of a biotech production method, whether the application of an engineered hormone or the cloning of animal stock, does not result in a difference in the product itself, there is no reasonable basis for mandating that the product be labeled, irrespective of consumer preferences. The range of production methods that are of potential interest to consumers is limitless. In these contexts, what information consumers want should be revealed through the interplay of consumer and producer behavior in the marketplace. In the end, perhaps most clone-derived products will be labeled. If so, it should be due to consumer demand, not government mandate.

Related Posts (on one page):

  1. Cloned Bull:
  2. Clone Meat and Milk "OK"; No Need to Label:
  3. "Clone on the Range":
Universal Cuts the Trans-Fats:

Universal Parks and Resorts has jumped on the anti-trans-fats bandwagon. Early reports seem to be positive, but a self-confessed "junk food addict" can taste the difference: "It tastes drier and not too salty," but is still tasty.

Related Posts (on one page):

  1. Universal Cuts the Trans-Fats:
  2. Crisco Cops in Cleveland:
  3. No Trans-Fats in NYC:
Gerald Ford and Edward Levi: Over at the WSJ Law Blog, Peter Lattman has an excellent post recalling another important connection between Gerald Ford and the law; the appointment of the universally-respected Edward Levi as Attorney General. I was particularly interested to see this speech Ford gave about Levi, which recounts two interesting tidbits: first, that Levi initially didn't want the job, and second, that the person who first recommended Levi for the AG position was Donald Rumsfeld.
The Washingtonienne Lawsuit, Invasion of Privacy, and Restoring One's Good Name:

This AP account (noted below by Jonathan) reports:

When Robert Steinbuch discovered his girlfriend had discussed intimate details about their sex life in her online diary, the Capitol Hill staffer didn't just get mad. He got a lawyer....

Neither Steinbuch nor his attorney returned phone calls seeking comment. In court, attorney Jonathan Rosen said Steinbuch wants to restore his good name....

It seems to me that Steinbuch can't be trying to restore his good name here. Unless some new claim has been added to the complaint, this is simply a "civil action for invasion of privacy for public revelation of private facts," not a defamation claim. Nothing in this lawsuit will "restore [Steinbuch's] good name." In fact, to the extent that the original blog besmirched Steinbuch's good name, the extra publicity created by the lawsuit will only besmirch that name further.

A libel lawsuit will often have a similar effect, but at least the plaintiff could hope that a favorable verdict will announce to the world that defendant's allegations against the plantiff were false, and that the world should see the plaintiff in a better light. A disclosure of private facts lawsuit can at most transfer money to the plaintiff, and compensate him for the emotional distress that he has assertedly suffered because of the defendant's statements. It can't restore the plaintiff's good name — or, to be precise, the reputation that plaintiff had before these "private intimate facts" (not lies but facts) were revealed.

UPDATE: Though the complaint that I linked to refers only to the disclosure of private facts tort, and the press account seems to echo that, it appears that the complaint was indeed amended to add a false light invasion of privacy claim. This claim is like a libel claim, in that alleges that defendant said false things, but it focuses on the emotional distress caused by false allegations about private matters, rather than reputational damage (which is what libel cases are all about).

So it still doesn't seem like plaintiff's lawsuit is about "restoring his good name"; such attempts to unblemish one's reputation are usually the province of defamation lawsuits. It's possible that a verdict in plaintiff's favor on the false light theory will establish that some of the allegations were false and offensively so, so perhaps some clearing of the plaintiff's name might take place. But on balance, given that the lawsuit in large measure alleges the disclosure of facts (albeit private ones), and given that it further publicizes all of defendant's allegations, both the assertedly false and the true, it's still hard to see how the lawsuit is likely to restore the plaintiff's good name.

Related Posts (on one page):

  1. The Washingtonienne Lawsuit, Invasion of Privacy, and Restoring One's Good Name:
  2. Washingtonienne Suit to Go to Trial:
People v. Zackery: During a proceeding about a guilty plea in state trial court, a trial judge made a dismissive comment to the prosecutor about needing to follow a particular procedure to avoid reversal by appellate courts. "Oh, that’s right," the Judge remarked, "You can’t offend the kangaroos up there in kangaroo court." On appeal following a guilty plea, the intermediate appellate court went out of its way to scold the trial judge for making the comment. Here is the passage from the appellate court's opinion in People v. Zackery, which was selected for publication in relevant part:
  In making his "kangaroo court" remark, on the record in open court, Judge Saiers violated Canon 1 of the Code of Judicial Ethics, which provides as pertinent: "A JUDGE SHALL UPHOLD THE INTEGRITY AND INDEPENDENCE OF THE JUDICIARY. [¶] An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved. The provisions of this Code are to be construed and applied to further that objective." (Cal. Code Jud. Ethics, canon 1.)
  . . .
  Reading a little between the lines, it appears that Judge Saiers’s "kangaroo court" remark was provoked by his frustration not being able to dispose of a pending case in a way he thought sensible. It would appear that, in his eyes, this court was a naive, ivory-tower, obstructionist, oblivious to the real-world problems of trial courts faced with staggering caseloads.
  This view is not accurate.
  As former trial judges, we have all experienced the stressful crush of pending cases. We are also aware of the desperate plight of the San Joaquin County Superior Court, which, until recently, had not been allocated a new judicial position in two decades, despite significant population increases and rising caseloads. (Meath, New Judges for San Joaquin County? XXI Across the Bar (Sept. 2006) p. 9.) But trial judges must understand this overarching fact about the Court of Appeal: despite our awareness of and sympathy for your plight, we have no warrant to disregard the law. Rather, we have all taken an oath to enforce it.
  And so, if a trial judge violates the law, even in the name of short-term efficiency, matters are simply made worse. Things have to be done again. More lawyers must be hired, more judges involved, more transportation of prisoners, etc. All at taxpayer expense. It is more expensive to do things twice than to do them once correctly. The truth of the matter is that Judge K. Peter Saiers has wasted taxpayers' dollars.
(emphasis added)

  It goes without saying that the trial judge's comment was completely inappropriate. At the same time, doesn't it seem somewhat unwise for the appellate court to take offense in such a public way? My own impression, at least on a first read, is that the passage reads like a judicial tit-for-tat. As Shaun Martin points out, the latter bolded portion "appears almost purposefully amenable for use by a challenger the next time Judge Saiers has to run for reelection." Now, maybe that was deserved; I don't know anything about the trial judge, or the appellate panel, or the history between them. But if the appellate court was concerned with maintaining the integrity of the judiciary, I'm not entirely sure this opinion was the best way to do it.

  Do you disagree? I would be particularly interested to know if you think I'm missing the boat here.

  Hat tip: Howard.

Wednesday, December 27, 2006

Ford and the Court:

Lyle Denniston has an interesting post on Ford's impact on the Supreme Court on SCOTUSBlog.

Dear Microsoft . . .

I promise to blog about what I think of Vista if you add me to your laptop list. (Of course, I can't promise that I'll like it.)

Washingtonienne Suit to Go to Trial:

Via Paul Caron comes news that Robert Steinbuch's $20 million lawsuit against Jessica "Washingtonienne" Cutler is headed to trial. Steinbuch is now a law professor at the University of Arkansas-Little Rock, and claims public humiliation due to the claims Cutler made about him, and their sex life, on her salacious blog. Apparently the two sides are wrangling over discovery requests and other pre-trial matters. Among other things, Cutler's attorney is seeking copies of Steinbuch's student evaluations.

"Clone on the Range":

The Food & Drug Administration is expected to give the green light to meat and dairy products produced from cloned animals. It is no surprise that biotech boosters like my friend Ronald Bailey cheer this development. Perhaps a bit more surprising is today's endorsement of cloned meat from the Washington Post. Even though polls suggest public unease with the idea of cloned meat, the Post applauds the FDA's focus on the scientific evidence showing the safety meat and dairy products from cloned animals.

Cloning animals with superior genetics will make animal products better and less expensive. Breeders aim to grow genetic twins of animals with desirable traits -- such as leaner, tastier meat -- in order to breed them and improve herds over generations. The only difference between this technique and traditional animal husbandry is the production of a genetic copy at the outset. As more high-quality breeding stock becomes available, the value of such animals will decrease, lowering production costs. Americans who don't want to eat animal products made this way will undoubtedly have the opportunity to do so through niche producers.

Ohio Governor Taft Reprimanded:

The Supreme Court of Ohio has formally reprimanded outgoing Ohio governor Robert A. Taft II today for violations of the Code of Professional Responsibility. As outlined in the Court's unanimous per curiam opinion (one judge not participating), Governor Taft repeatedly violated financial disclosure requirements. Because an investigation concluded that the violations were not deliberate, the only sanction recommended was a public reprimand, a recommendation the Court accepted.

The AP covers the story here. (Link via How Appealing)

Duke Rape Case:

Stuart Taylor and KC Johnson discuss the Duke Rape Case in today's Wall Street Journal, available on

No Discovery for Selective Prosecution Claim:

After a federal grand jury indicted James Thorpe for being a felon in possession of a firearm in violation of federal law, Thorpe sought to dismiss the indictment on grounds of selective prosecution on account of race. Lacking much evidence to support his claim, Thorpe sought "discovery of all of the government’s files regarding the Project Safe Neighborhoods (PSN) program under which Thorpe was being prosecuted." The district court granted the request, but the federal government failed to comply fully with the discovery order, and the court dismissed the indictment.

On appeal, the U.S. Court of Appeals for the Sixth Circuit reinstated the indictment, holding the district court's discovery order was improper. Before he could be entitled to discovery, the Sixth Circuit held, Thorpe was required to show "some evidence" that "similarly situated persons were treated differently" under United States v. Bass 536 U.S. 862 (2002). That most PSN prosecutions in the Eastern Distrcit of Michigan arose from those counties with the greatest African-American populations did not suffice to meet this test.

Another Mass v. EPA Op-Ed:

I wrote another op-ed on the Massachusetts v. EPA case. This one was for a pro/con feature distributed by the McClatchy-Tribune news service. It ran in yesterday's Columbus Dispatch. Here's an excerpt:

A basic principle of our governmental structure is that all legislative powers of the federal government are vested in the legislature. As a consequence, federal agencies, including the EPA, possess only those powers given to them by Congress. Controlling greenhouse gases would be the greatest regulatory undertaking ever contemplated in environmental law. As such, it is simply implausible that Congress would have delegated such authority to the EPA without saying so, yet nowhere does the Clean Air Act explicitly delegate authority to adopt such rules. . . .

The clear intent of the act as amended in 1967 and as subsequently amended in 1970, 1977 and 1990 is to control local and regional air pollution, such as soot and smog. Every time Congress has sought to address a broader environmental concern, such as ozone depletion or acid rain, it has explicitly authorized the EPA to act. Moreover, if carbon dioxide and other greenhouse gases are pollutants for the purposes of Section 202, they are almost certainly air pollutants for the Clean Air Act’s "nonattainment" provisions as well, as the language is virtually identical. Yet the regulatory measures that are required by these provisions — the creation and enforcement of national ambient air-quality standards — are fundamentally incompatible with the regulation of greenhouse gases as such.

Arizona State University's Joseph Feller wrote the opposing article. Here's an excerpt from his piece:

t is not up to the EPA, or the courts, to decide whether automobile emission standards are a wise, reasonable or economical way to control air pollution. Congress decided that automobile-emission standards are a good idea, and instructed EPA to issue them for any air pollutant that endangers the public’s health or welfare.

If Bush’s EPA doesn’t agree with the Clean Air Act, it can ask Congress to change it. Until then, to paraphrase Donald H. Rumsfeld, the EPA should implement the law that Congress wrote, not the one that it wishes Congress had written. And if the EPA refuses to follow the law, then the courts should order it to do so. After all, that’s their job.

Horace Silver Quintet Playing Senor Blues: There's lots of very good jazz up on YouTube these days, although it's actually pretty hard to find a strong musical performance that is complete, acoustically clean, visually compelling, and yet not already widely known.

  I recently across one gem that is worth flagging: the Horace Silver Quintet playing Silver's composition Senor Blues at a concert in Holland in 1959. Horace Silver is unusual for the consistently high quality of the groups he has led in his long career; I think I have all of his albums recorded from around '55 to the early '70s, and it's hard to think of a misfire on any of them. Still, the video captures Silver during a particularly fruitful period with his quintet that included Junior Cook on tenor and Blue Mitchell on trumpet. Louis Hayes, who is still playing regularly, is on drums. It's a terrific performance and an excellent example of Silver's style. (The band is playing with their backs to the audience, which must have been a bit weird live but works well for the TV cameras.) I particularly enjoyed Junior Cook's solo, although it's much too short:
  One of the reasons I chose to blog about this clip in particular is that it's very accessible to folks who know nothing about jazz. If you have a vague sense that you might like jazz but don't quite know where to start, give this clip a listen. If you like it and want to hear some more, start by buying Song for My Father, recorded a few years later with the great Joe Henderson on tenor. It's a classic. Picking the next one to buy after that is a little arbitrary, but you can't go wrong with The Tokyo Blues from 1962. And if you like the song Senor Blues in particular, you'll want to get Six Pieces of Silver, the 1956 album on which it first appeared.

  Thanks to Bob Erwig for posting the clip, and to Blue Note for putting lots of Silver's work back in circulation in the last few years. Finally, if you liked this clip and want to see another from the same group, check out this performance of Cool Eyes.
OT 2006: An Environmental Term?

The Supreme Court's current term is already sure to be an big one for environmental law. Two major Clean Air Act cases, Massachusetts v. EPA and Environmental Defense v. Duke Energy, should yield important environmental decisions and more may be on the way. As Marty Lederman details on SCOTUSBlog, the Solicitor General has recently filed petitions for certiorari in four environmental cases, including another Clean Air Act case, and has acquiesced to certiorari in two others. Adding just a few of these cases to the Court's dockets would make this a truly major environmental term.

Related Posts (on one page):

  1. Big Environmental Grant:
  2. OT 2006: An Environmental Term?
President Gerald Ford Has Died: May he rest in peace. The New York Times obituary is available here.

Tuesday, December 26, 2006

Is Federalism Tainted by Slavery and Jim Crow?

I agree with most of the points Eugene made on this subject in his posts below. In particular, it's important to remember 1) that many other valuable institutions also have important downsides, and 2) that even if we need a strong federal role for the protection of certain kinds of minority rights, that does not mean we should have unlimited federal power over all or most other policies.

I would like to add three points to Eugene's analysis:

I. The Feds are Tainted Too.

There is no question that state governments have often oppressed minorities, particularly African-Americans. On the other hand, the federal government also has a far from perfect record in this area. Consider, for example, the federal internment of Japanese-Americans during World War II, and the feds' decades-long persecution of the Mormons during the nineteenth century. The states are "tainted" by their history, but so too is the federal government. Perhaps one can argue that the states are "more" tainted because they supported slavery, the single biggest human rights violation in American history. However, the federal government also played an important role in promoting slavery, for example through its enforcement of the Fugitive Slave Acts. If the history of state repression of minorities taints the argument for federalism, then the history of federal government repression taints the case for unlimited federal power.

II. Federalism vs. States' Rights.

There are important differences between the system of federalism advocated by modern scholars sympathetic to limits on federal power and the system of "states' rights" associated with the southern states' defense of slavery and later Jim Crow. The differences in are covered in some detail in my 2004 article "Federalism vs. States' Rights," (with John McGinnis). Perhaps the most important is the fact that an effective system of federalism requires citizen mobility between states, so that people can "vote with their feet" against jurisdictions that adopt harmful or oppressive policies toward them. This implies the need to prevent states from adopting policies that restrict interstate mobility and in effect hold people hostage. Obviously, slavery is a clear example of such a policy and Jim Crow also included efforts (such as peonage laws) to restrict black mobility. In addition, a well-functioning system of decentralized federalism requires limits on the power of states to assert an extraterritorial reach for their laws; otherwise, it would never be possible to vote with your feet against a particular state's legal regime. This point, too, has important implications for the history of slavery and Jim Crow, as southern states sought to assert an extraterritorial reach for their laws restricting the rights of blacks (e.g. - the Fugitive Slave Clause).

To the extent that modern defenders of federalism agree (as most do) that states must be prevented from restricting their citizens' mobility and from (in many cases) applying their laws extraterritorially, they are arguing for a very different system than that defended by the southern states in the eras of slavery and Jim Crow.

III. Reassessing the History of Minority Rights in America.

The claim that the history of slavery and Jim Crow "proves" that federalism is bad for minorities greatly oversimplifies the actually history of minority rights in the United States. It is certainly true that there were two periods in our history (roughly 1860-80, and 1940-70) when states' rights claims were used to counter federal efforts to protect the rights of African-Americans against abuse by state governments. To the extent that such efforts were successful, they certainly represent an important cost of federalism.

However, the conventional story that federalism is bad for minority rights overlooks other, at least equally lengthy, periods in American history when a unitary federal policy would have been worse for minority rights than federalism. At the time of the Founding, a unitary policy on slavery would probably have meant a requirement that slavery be legal all around the nation, since all thirteen original states had legal slavery. During most of the antebellum period (roughly 1790-1860) proslavery forces had much more power in Congress and the executive branch than antislavery ones, and a unitary policy on slavery and/or the rights of free blacks at that time would probably meant a compromise far closer to the slave state laws of the day than the free state ones. In those areas where the federal government did have authority, it tended to use it to promote slavery more than to restrict it. For example, the federal government facilitated the recovery of escaped slaves through a series of Fugitive Slave Acts (which some northern states resisted on "states' rights" grounds), and slavery was legal in the federally ruled District of Columbia until 1862. Indeed, the election of Lincoln in 1860 was important precisely because it represented the first time in decades that the presidency and Congress were both largely controlled by a (relatively) antislavery party.

During the post-Reconstruction Jim Crow era (roughly 1880-1940), a unitary policy on black rights would also probably have left blacks worse off than they were under federalism. At that time, southern whites cared far more about keeping blacks down than most northern whites cared about protecting their rights (and a significant minority of northern whites actually endorsed the southern position). Therefore, a unitary federal policy on black rights during this time would likely have led to a system slightly less restrictive than that which existed in the South, but far more oppressive than that which existed in northern and western states. At the very least, northern blacks, like southern ones, would probably have been denied the right to vote. The absence of relatively more favorable policies in northern states would have prevented blacks from "voting with their feet" against the South, an option that millions took advantage of from about 1900 to 1960; moreover, if blacks could not vote in the North, the incentive of northern white politicians to support federal intervention against Jim Crow would have been greatly diminished, and the landmark federal civil rights legislation of the 1960s might not have come as soon as it did.

Today, it is far from clear whether African-Americans are better off with more federal power or less. Arguably, black voters have greater power over many state and local governments where they form a large proportion of the population than they do over Congress. But even if African-Americans are, on net, better off with a more powerful federal government, that is not necessarily true of other minorities. Gays and lesbians, for example, benefit greatly from federalism and decentralization, as Albany Law School Professor Stephen Clark shows in this article (see also my own analysis here).

Ultimately, both state and federal governments can threaten the rights of minorities. Therefore, neither should be allowed unlimited power. The history of slavery and Jim Crow does not provide a clear case for either state or federal power. Both levels of government can repress minorities, and both need to be constrained.

UPDATE: Some commenters question my argument that a unitary federal policy on race in the post-Reconstruction era (roughly 1880-1940) would have been worse for African-Americans than federalism. Some of the historical issues involved are too complex to fully address here (though I make brief comments of my own in the notes). But the best window we have on what a unitary national policy on race would have been during this era is the way that federal government of that period addressed racial issues in those policy areas that were incontestably under its control. For example, the District of Columbia was under complete congressional control, and it had the same kinds of Jim Crow policies as the South (with congressional approval). The federal civil service was officially segregated under the Wilson Administration in the 1910s, and remained so under later Republican administrations. Federal immigration policy barred most nonwhite immigrants from entering the country under the Chinese Exclusion Act, the "Gentlemen's Agreement" barring Japanese immigration, and other related legislation. Finally, federal control in overseas territories such as Puerto Rico, the Virgin Islands, and others, did not exactly result in enlightened racial policies there (though full-blown Jim Crow could not be imposed because of the small size of the white population in those areas). We cannot know with certainty what the feds would have done had they had more power over racial issues during that era. But, based on their record, it seems likely that they would have done more to promote Jim Crow than undermine it.

UPDATE #2: I should note that I was slightly off in my statement that every state in the Union was a slave state at the time of the Founding (1787). The state of Massachusetts had abolished slavery by judicial fiat in 1783. Several other northern states had enacted laws mandating gradual emancipation of slaves, though most of them still had substantial slave populations as of 1787 and for years thereafter. On the other hand, two of the largest and politically most powerful northern states - New York and New Jersey - did not enact emancipation laws until 1799 (NY) and 1804 (NJ) respectively. In many of the other northern states, emancipation was deliberately made gradual so that slaveowners had a window of opportunity to sell their slaves "down the river" to the South, and thereby avoid the creation of a substantial free black population. Thus, my key point that, in 1787, a unitary national rule on slavery would have probably resulted in nationwide slavery is correct. All but one state was still a slave state; the majority had not enacted any emancipation laws; and many of those that had enacted gradual emancipation laws might not have done so absent the option of selling their slaves down South. Nonetheless, the facts are more complex than I indicated in the initial post, so I want to make sure to correct the mistake. For detailed information on the timing and structure of emancipation in the North (including the facts cited above) see this website.

Federalism and States' Rights:

I posted below some general thoughts about the limits of "institution X brought bad result Y, so X is bad" reasoning. Let me mention a few more general things about the claim that federalism / states' rights is tainted by its use as a means of advancing segregation.

The terms "federalism" (at least in its the sense it's used in political debates) and "states' rights" are generally relative terms, not absolute ones. When someone says he's in favor of "states' rights" or "federalism," that usually means that he supports more state authority about the topic at hand than his rivals do, or than the status quo provides. It almost never means absolute, unlimited rights for states, whether in general or even in a particular area. For instance, even those who speak of traditional areas of state supremacy, such as family law or education, very rarely oppose some degree of federal regulation, for instance the federal tax code's treatment of marital relations (which surely has vast indirect effects on state-recognized marriage) or the parental rights decisions that bar states from mandating that all children go to public schools.

This is surely true in current debates about the U.S. Constitution. The debate on the Court isn't whether — as a constitutional matter — we'd have 100% federal authority with no limits vis-a-vis the states (but only with limits created by intra-federal separation of powers principles, or by individual rights against federal authority) or 0% federal authority. It's whether we'd have 99.9% federal authority (perhaps with a very few highly uncontroversial examples, such as the federal government's being barred from creating states within an existing state's boundaries without the state's consent) or 95%. Justice Thomas, the one Justice on the Court who takes the broadest view of states' rights, might go for 90% or maybe 80% federal authority. [WARNING: Numbers used figuratively, not as concrete estimates.]

Likewise, the debate in Congress or in other mainstream institutions isn't whether — as a policy matter — we'd have 100% federal authority with no authority for the states, or 0% federal authority. It's whether we'd have, say, 70% federal authority or 30%. Everyone agrees that some things are best done at the state level, though often with some federal input. Everyone agrees that other things are best done at the federal level, though often with some state input.

Let's focus now specifically on segregation: The original Constitution clearly left states with a great deal of authority over how to govern conduct within their boundaries. On the other hand, the Fourteenth Amendment clearly constrained that authority in some significant measure. Likewise, the original Constitution clearly left states with a great deal of authority over who could vote, but the Fifteenth Amendment clearly limited their legal power to discriminate based on race; segregation persisted in many places largely because the Fifteenth Amendment wasn't complied with. One could support state autonomy in many ways but conclude (as a Congressman or as a Justice) that segregation and the right to vote without regard to race is an area where the federal government (acting both through the Court and through Congress) should have broad authority. Conversely, one could support federal power in many ways but conclude that for various practical reasons the federal government ought to have left this matter to the states. (That's not my view, but it's a view that some could and did take.)

So it's not clear that the civil rights era experience even tells us that much about the value of federalism and states' rights. It might illustrate that some calls for state authority rather than federal authority might sometimes support immoral and unconstitutional programs. (There's debate about whether separate-but-equal segregation should have been understood as unconstitutional under an original meaning approach to constitutional interpretation, but separate-but-unequal segregation — which is what segregation usually was — surely was unconstitutional, as was the massive racially discriminatory denial of the right to vote was unconstitutional.) But that just means that the segregationists' proposed state-federal balance as to race discrimination and voting was improper. It tells us very little about others' proposed state-federal balances as to other topics.

In this respect, federalism is rather like individual freedom from government restraint, or government power, or many other concepts. That a particular proposed individual freedom from government restraint (e.g., freedom from government restraint of parents' abusing their children) is improper doesn't by itself tell us much about the propriety or not of other freedoms, or even other parental rights. Likewise, that a particular proposal for state freedom from federal government restraint is improper doesn't by itself tell us much about the propriety or not of other proposals for state autonomy.

'Taint Necessarily So:

Orin reports on the debate about whether federalism is tainted by its association with Jim Crow, and segregations' invocation of states' rights:

Over at, Ann Althouse and Jonah Goldberg have a very interesting video discussion of a question raised by a recent Liberty Fund conference about Frank Meyer: Can you detach constitutional doctrines and principles from the history of the political environment in which such doctrines and principles were used? They focus on federalism and states' rights, which 50 years ago often were used by racists in the South to defend Jim Crow. Does that history mean that federalism is now tainted? Should proponents of federalism atone for the past associations of their ideas? Or should ideas stand on their own merits, without regard for who has used them in the past?

Let me begin with a general thought, and follow up in a separate post with a more specific one.

Federalism, democracy, judicial enforcement of unenumerated rights, bicameralism, the filibuster, and the like are institutions that can be used for good as well as ill. They were instituted by people who thought that on balance they did more good than the alternatives did. We keep them today for much the same reason, or at least because we don't think the contrary strongly and broadly enough to overcome the barriers to changing the institutions.

Yet of course we should expect that the institutions will sometimes be misused. Each of them, for instance, helped play a role in preserving slavery or segregation. The Supreme Court's first use of the substantive due process doctrine, for instance, was in Dred Scott v. Sandford, the 1857 case in which the Court struck down the Missouri Compromise by holding that Congress had no power to automatically free all slaves who went into certain federal territories. Each of them has been misused many other times as well, though we may disagree about which times they were.

So a particular incident in which an institution has yielded bad results -- or, to be precise, yielded results that we think were worse than they would have been in the institution's absence -- is some evidence against the institution's quality. In that respect, it does taint the institution. But by itself each such incident taints the institution only slightly, because the question isn't whether the institution will ever help bring about bad results, but whether on balance it's better than the alternatives.

U.S. Military Deaths in Iraq Now Exceed Loss of Life on 9/11: Today the war in Iraq passed a very sad milestone: the number of U.S. troops killed in Iraq has now exceeded the number of persons killed in the 9/11 attacks. The number believed to have been killed in the 9/11 attacks is 2,973 (not including the 19 hijackers). The deaths of seven Americans announced today brings the U.S. military deaths in Iraq since 2003 to 2,978, five more than the number killed in the 9/11 attacks.

  Of course, the raw numbers are only a part of the picture. Different people will draw very different lessons about what these numbers mean. To some, they reinforce how wasteful the war has been. To others, they show how costly the fight for freedom must be. Either way, I thought this sad moment seemed worth pointing out.
Murphy Rehearing:

The U.S. Court of Appeals for the D.C. Circuit has granted the petition for rehearing in Murphy v. IRS. In Murphy, a unanimous three-judge panel held unconstitutional a provision of the Internal Revenue Code that taxed as income, compensation for personal injuries unrelated to lost wages or earnings. Note, this is not an En banc rehearing. Rather, the original three-judge panel will rehear the case. Paul Caron has details here. (LvHB)

UPDATE: In my initial post I neglected to note that Orin blogged on the Murphy case here and here.

Science Fiction As Literature:

A well-crafted sci-fi book can be a fun read, but are there many modern science fiction works that would qualify as "literature"? Any science fiction books that would qualify as literary masterpieces?

Does Pork Still Buy Protection?

One benefit of political incumbency has been the ability to dispense goodies to one's constituents. For years, members of Congress larded up appropriations bills with pork barrel projects to curry favor back home. This was the rule during decades of Democratic control of Congress, and when Republicans took over, they did the Dems one better. Republican appropriators piled the pork to new heights. Yet, as the New York Times reports, it is not clear pork barrel politics protected Republican incumbents at the polls.

A timeworn bit of political wisdom has been that larding one’s district with pork projects can act as an incumbency protection program. And the Republican leaders in Congress ardently followed that principle.

“The leadership talked all the time about how we’ve got to use earmarks to help these vulnerable members,” said Representative Jeff Flake, Republican of Arizona, who has become one of Washington’s loudest opponents of earmarking. “But what this election showed was that earmarks just aren’t that important to voters.”

The powers of incumbency could not outweigh far more pressing issues, this year, like the war in Iraq — which became the central point of most of the Democratic campaigns — or the scandals that tarnished the Republican Party as a whole. The abuse of earmarks itself became an issue in several races with some of their biggest users, including two senators and four House members who served on the appropriations committees that oversee federal spending, losing their seats.

The story stresses that it is too early to put a fork in pork, but the tide may be changing. It is also possible that Republicans may be less potent protection for Republicans, particularly insofar as some Republican constituencies are offended by what they perceive as wasteful government spending.

Uncertainty in the "Law of Virtual Worlds"?: Today's Washington Post has a front-page article by Alan Sipress arguing that the legal rights held by users of online games are very uncertain right now. Is it just me, or is this uncertainty, um, virtual? As best I can tell, the law here is actually quite clear: property rights are set by the user's contract with the game. The article mentions an apparent conflict with a single court decision somewhere in China. The conflict is unclear to me, however, and differences between Chinese law and U.S. law presumably are very common. What am I missing?
Sixth finds Standing to Challenge Recusal Rule:

This morning the U.S. Court of Appeals for the Sixth Circuit held in Fieger v. Ferry that infamous Michigan trial lawyer Geoffrey Fieger has standing to challenge the constitutionality of the Michigan Supreme Court's recusal rule, and that his challenge is not barred by the Rooker-Feldman doctrine.

To the extent that Fieger challenges the constitutionality of Michigan's recusal rules by alleging that "[t]he threat that the Plaintiff cannot, and will not, receive a fair hearing before an impartial and independent tribunal is real, immediate, and continuing," Rooker-Feldman does not bar his action. To that extent, the source of Fieger's alleged injury is not the past state court judgments; it is the purported unconstitutionality of Michigan's recusal rule as applied in future cases. Such a claim is independent of the past state court judgments. Thus, insofar as the district court dismissed Fieger's challenge to the constitutionality of Michigan's recusal rule pursuant to the Rooker-Feldman doctrine, the court's judgment must be reversed.
At the same time, the court upheld the district court's dismissal of Fieger's attempt to challenge prior failures of Michigan justices to recuse themselves. Fieger claimed the justices' failure to recuse under section 1983

As background, Fieger hasbeen quite critical of several justices on Michigan's high court, and some of the justices returned fire. Fieger claimed that some of the justices' public comments about him demonstrated their animus against him, and that they should recuse themselves in cases involving him or his clients due to potential bias. In all, Fieger sought the recusal of four Michigan justices.

This is not the only legal development involving Fieger's feuds with the Michigan Supreme Court. Howard Bashman rounds up additional developments here and here.

"Able Danger" Put to Bed:

The Senate Intelligence Committee's investigation concluded that the "Able Danger" allegations that military anlysts identified the 9-11 hijackers before September 11, the LA Times reports.

"Able Danger did not identify Mohammed Atta or any other 9/11 hijacker at any time prior to Sept. 11, 2001," the committee determined, according to an eight-page letter sent last week to panel members by the top Republican and Democrat on the committee.

The Able Danger allegations were championed by Represenative Curt Weldon (R-PA), who lost his bid for reelection in November.

State Police Access to Federal Criminal Case Files: Imagine you're a state or local police officer, and you're investigating someone for a crime. You want to know if the feds might have something on your suspect. Maybe the FBI or the DEA is looking at him, too, or has some dirt on him from the past. Should you as a state officer have access to the federal government's files? And if so, how easy should that access be and under what conditions should access be allowed? A story in the Tuesday Washington Post touches on some of these questions in the context of a new DOJ program to expand state access to federal criminal case files.

Monday, December 25, 2006

Merry Christmas!

I tried posting this twice before today, but the Grinch must have stolen it (or, more likely, posts with just a title and just a single space for a text aren't going up properly). In any case, Merry Christmas!

Is Federalism Tainted?: Over at, Ann Althouse and Jonah Goldberg have a very interesting video discussion of a question raised by a recent Liberty Fund conference about Frank Meyer: Can you detach constitutional doctrines and principles from the history of the political environment in which such doctrines and principles were used? They focus on federalism and states' rights, which 50 years ago often were used by racists in the South to defend Jim Crow. Does that history mean that federalism is now tainted? Should proponents of federalism atone for the past associations of their ideas? Or should ideas stand on their own merits, without regard for who has used them in the past?
Datamining for Donors: The New York Times has this interesting story on fundraising at NYU.
My Post on Blogs -- Bad or Good? -- Now in Hebrew,

here, in the Israel magazine NRG Maariv; the English version is here.

Related Posts (on one page):

  1. My Post on Blogs -- Bad or Good? -- Now in Hebrew,
  2. Blogs:

Sunday, December 24, 2006

Sunday Song Lyric: Somehow, I'd managed to go 37 years without ever hearing the holiday classic, "I Want a Hippopotamus for Christmas." Written by John Rox, and first recorded by Gayla Peevey in 1953. It is clever and cute, especially when sung by young children (or Redheadlaw7). Here's a taste of the lyrics:
I want a hippopotamus for Christmas
Only a hippopotamus will do
Don't want a doll, no dinky Tinker Toy
I want a hippopotamus to play with and enjoy.

I want a hippopotamus for Christmas
I don't think Santa Claus will mind, do you?
He won't have to use our dirty chimney flue
Just bring him through the front door,
that's the easy thing to do.
I want a hippopotamus for Christmas
Only a hippopotamus will do
No crocodiles, no rhinoceroses
I only like hippopotamuses
And hippopotamuses like me too.

Mom says the hippo would eat me up, but then
Teacher says a hippo is a vegeterian.
Youtube has quite a few versions of the song (e.g. here and here), and there's even a "Hippo Song" FAQ.

Merry Christmas!

Ken Lammers Closes Up Shop: Ken Lammers, the proprietor of the excellent CrimLaw, has decided to end his blog. It will be missed; I've always enjoyed it.
The Duke Lacrosse Case and the Problem of Fading Memory: Over at Dorf on Law, Michael Dorf has this very interesting post on eyewitness testimony and the passing of time.