If you deal regularly with the federal government, there are more candidates for the “most important government office that you’ve never heard of” than you can count.  My post tonight concerns not an office, but a federal interagency committee: the Committee on Foreign Investment in the United States, known by its acronym CFIUS, which is undeniably powerful, but sufficiently obscure that even the hardcore law nerds of the Volokh Conspiracy have mentioned it only once before.

On Wednesday, a Chinese-owned wind-farm developer sued CFIUS to seek review of recent CFIUS orders that effectively require the developer to unwind its purchase of four wind-farm projects in Oregon.  The suit is a rarity in a field that has seen virtually no efforts to obtain judicial review.  Even partial success by the plaintiff in obtaining review of CFIUS’s decision could have major implications for foreign direct investment in the United States and increase the transparency of a historically opaque government approval process.  More after the jump. Continue reading ‘Landmark Foreign-Investment Suit Filed’ »

The new phonebook’s here!  The new phonebook’s here!

As some of you know, I have sporadically done semi-humorous and often factual Supreme Court Term-end wrap-ups.  The fifth installment in this eminently deletable series is now available at the Green Bag.  This is the first I’ve done with a co-author, which may help explain why it’s being published before late September.

Because electrons are cheap, and because I know that for many, the void in your life is too big to be filled by a 5,000-word article, we are also making available online the “extended dance remix” version of the article, also known as the “unedited,” “bloated,” or “needlessly self-indulgent” version.  So here, for whatever meager enjoyment you might wring from them, are both versions: regular, and the Baconator.

Oh, and before I get tons of complaints about “Michael Phelps (2012),” that’s intended to be ironic.  His performance, like the opinion in FCC v. Fox, is safely characterized as “a big deal.”

Some conservatives are not big fans of the Chief Justice right now, since they view his opinion upholding the individual mandate “as a valid exercise of Congress’s taxing power [a]s a sell-out of constitutional principle of the first magnitude.” But if you set aside section III-C of his opinion—and I realize that’s a little like, “Other than that, Mrs. Lincoln, how was the show?”—there is much for conservatives to like about the opinion.

Indeed, at least with respect to the Spending Clause analysis (the part I know best), I suspect many litigants challenging federal programs on the ground that they exceed congressional authority will find themselves quoting the Chief’s opinion more than the joint dissent that provided votes necessary for the outcome. And I would be willing to bet that the Justice Department lawyers tasked with defending those programs will find themselves quoting the joint dissent with approval. Continue reading ‘The Spending Clause: Comparing the Chief’s Opinion and the Joint Dissent’ »

Marks v. United States, 430 U.S. 188 (1977), establishes the test for determining what the “holding” of the Court is when the votes are splintered:

When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.

Id. at 193. So what happens when votes supporting a proposition of law are supplied by dissents?

This is not simply a matter of academic concern. A majority of the Justices concluded in NFIB v. Sebelius that the Individual Mandate exceeded Congress’s Commerce Clause powers and the same group (plus Justices Breyer and Kagan) concluded that the Medicaid expansion violated Congress’s Spending Clause authority. But four of those votes, necessary to compose a majority, did not “concur[] in the judgment[]”—they dissented. (The same question arises in determining the “holding” of Williams v. Illinois, where—as Justice Kagan herself noted—five Members of the Court rejected the plurality’s reasoning at every turn, but four of them were in the dissent.)  What the Court has “held” is extremely important to lower courts seeking to apply the decision, especially because ordinarily only a “holding” can displace contrary circuit precedent.

Continue reading ‘What Did the Court “Hold” About the Commerce Clause and Medicaid?’ »

Like all of you, I am still waiting to get a copy of the actual opinion.  But from the reporting of our friends at SCOTUSBlog, it sure sounds like the Medicaid expansion just became essentially voluntary for the states because the federal government can no longer use the “stick” of cutting off pre-existing funds to persuade the states to go along with the Medicaid expansion.  If borne out by the opinion, that is pretty significant.

Update (11:55 am).  Shore ’nuff.  From page 57 of the Chief Justice’s opinion (which is borne out by the other opinions): “As a practical matter, th[e holding of the Court] means States may now choose to reject the [Medicaid] expanasion; that is the whole point.”

Seven Justices of the Supreme Court, including two Democratic appointeees  (Justices Breyer and Kagan) considered the Medicaid expansion impermissibly coercive under the Spending Clause.  They are the first Court to hold this law invalid under that line of analysis, and if memory serves, the first court in history to invalidate a law as impermissibly coercive.

Note also the joint dissent echoing a couple themes of Paul Clement’s briefing and argument, both of which I thought were very savvy: accountability (p.34) and the idea that if this law isn’t unduly coercive, there is no point to saying there is such a requirement in the law (p.38).

Continue reading ‘Whither the Medicaid Expansion?’ »

The summary of the holding from the court’s opinion:

[W]e conclude: 1) the Endangerment Finding and Tailpipe Rule are neither arbitrary nor capricious; 2) EPA’s interpretation of the governing CAA provisions is unambiguously correct; and 3) no petitioner has standing to challenge the Timing and Tailoring Rules. We thus dismiss for lack of jurisdiction all petitions for review of the Timing and Tailoring Rules, and deny the remainder of the petitions.

The opinion is available here.  The court simultaneously ordered the Clerk, consistent with D.C. Circuit Rule 41(b), to “withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing or petition for rehearing en banc.”

Charles Krauthammer has a column today taking President Obama to task for his recent decision to “lift the shadow of deportation” from otherwise law-abiding undocumented aliens who came to the U.S. as children and allow them to “request temporary relief from deportations and apply for work authorization.”  (For DHS’s page on the program, see here.)  He argues that it’s impermissible to exercise discretion categorically:  rather, he says it requires review on a “case-by-case basis on considerations of extreme and extenuating circumstances.” I’m a big fan of the good doctor, but I’m not so sure he’s right about whether the exercise of discretion has to be individualized, at least not as a general matter. I think it requires a closer look at the specific statutes at issue.

It’s a background principle of administrative law that, “[a]bsent statutory language to the contrary, agencies are free to decide whether to implement a grant of discretion by means of rules, which provide prospective standards of behavior, or by means of case-by-case decisionmaking (or adjudication).” Agency Rules as Constraints on the Exercise of an Agency’s Statutory Discretion, 7 Op. OLC 39, 44 (1983) (AAG Ted Olson); cf. NAACP v. Fed. Power Comm’n, 425 U.S. 662, 668 (1976) (“As a general proposition it is clear that the Commission has the discretion to decide whether to approach these problems through the process of rulemaking, individual adjudication, or a combination of the two procedures.”). So the question then becomes whether the specific provisions of the immigration laws allow the Secretary of Homeland Security to exercise her discretion by rule in this manner.

I’d love to take a more careful look at the immigration laws and determine for myself whether I think they authorize the President’s action, but (1) I have actual paying clients to tend to, and (2) it’s well known that prolonged exposure to the hyper-reticulated Immigration and Nationality Act can actually cause your brain to melt.  Here’s what I do know:

Continue reading ‘President Obama’s Deferred Action on Immigration (and OLC)’ »

It looks to me that there is only one case undecided from the Supreme Court’s December sitting — First American Financial Corp v. Edwards — and only one Justice without a majority opinion assignment: Justice Thomas. That suggests that the majority opinion was at least initially assigned to Justice Thomas. The case involves whether the purchaser of real estate settlement services had Article III standing to sue for an alleged violation of the Real Estate Settlement Procedures Act that the petitioner argues did not affect the services’ price or quality.

Even if I’m right  so far, it’s been long enough since argument that there’s a reasonable chance that something unusual has happened–i.e., that Justice Thomas has lost the majority and is writing only for a plurality or perhaps even writing a dissent. Mind you, my predictions have generally been no more accurate than the Magic 8-Ball‘s, and I suspect this case will be no different.

One alternative possibility I have heard is that Justice Thomas was assigned the majority opinion in yesterday’s Williams v. Illinois but lost it, and he did have a separate opinion in that case. But because Justice Thomas’s views on the Confrontation Clause have long been a bit different from his colleagues–witness his lone concurrence in the judgment/dissent in Davis v. Washington–I doubt he would have been assigned that opinion.

What do you think?

News item:

Bloomberg Backs Plan to Limit Arrests for Marijuana

ALBANY — Mayor Michael R. Bloomberg said on Monday that he would support a proposal by Gov. Andrew M. Cuomo to significantly curb the number of people who could be arrested for marijuana possession as a result of police stops.

Best reader comment:

Just don’t get caught with the weed AND A 24 OUNCE COKE!

(Hat tip: Eric White)

There is an interesting op-ed in the Wall Street Journal today by the Brookings Institution’s Clifford Winston and Robert Crandall, authors of First Thing We Do, Let’s Deregulate All the Lawyers (the op-ed length version of which Jonathan blogged about here). The piece, cheerily entitled “The Law Firm Business Model is Dying,” uses the Dewey & LeBoeuf implosion as a jumping-off point to discuss how regulatory limitations on the legal market are undermining the law firm model.

Their basic thesis is this:

The problems these firms face today are twofold: Large clients are increasingly using in-house counsel to reduce costs, and the public is increasingly taking the do-it-yourself route given the growing access to a variety of legal services and documents on the Internet. The rational response would be for new, low-cost legal firms to start up, and for incumbents to reduce costs and attract new clients by providing innovative services.

But that is happening only to a limited extent because of state licensing requirements and American Bar Association (ABA) rules. Deregulation could open the market and transform the legal industry for the better.

The authors argue that the requirement that new lawyers have graduated from an ABA-accredited school and pass a bar examination “significantly limits the flow of new legal practitioners,” and requires that new attorneys recoup the cost of their education in the form of high salaries. That, the authors say, makes it difficult to control costs, and “[e]fforts to outsource some tasks have met with only limited success.” Furthermore, the authors say, ABA regulations prohibiting financial-services companies from having an ownership stake in law firms limit firms’ financing options and raise its capital costs in a way that the authors say hurt the highly leveraged Dewey.

The authors do not (by my lights) spend enough time discussing offshoring of legal jobs, but it is a timely, thought-provoking read.

A unanimous panel of the Ninth Circuit (Fisher, Smith, Pallmeyer (dj, NDIll, by designation)) held today that former OLC Deputy Assistant Attorney General John Yoo is entitled to qualified immunity in the lawsuit brought by former detainee Jose Padilla.  If you’re just tuning in, the first two paragraphs set forth the nature of the lawsuit and the court’s reasoning in some detail:

In this lawsuit, plaintiffs Padilla and his mother, Estela Lebron, seek to hold defendant John Yoo, who was the Deputy Assistant Attorney General in the U.S. Department of Justice’s Office of Legal Counsel (OLC) from 2001 to 2003, liable for damages they allege they suffered from these unlawful actions. Under recent Supreme Court law, however, we are compelled to conclude that, regardless of the legality of Padilla’s detention and the wisdom of Yoo’s judgments, at the time he acted the law was not “sufficiently clear that every reasonable official would have understood that what he [wa]s doing violate[d]” the plaintiffs’ rights. Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011) (internal quotation marks omitted). We therefore hold that Yoo must be granted qualified immunity, and accordingly reverse the decision of the district
court.

As we explain below, we reach this conclusion for two reasons. First, although during Yoo’s tenure at OLC the constitutional rights of convicted prisoners and persons subject to ordinary criminal process were, in many respects, clearly established, it was not “beyond debate” at that time that Padilla — who was not a convicted prisoner or criminal defendant, but a suspected terrorist designated an enemy combatant and confined to military detention by order of the President — was entitled to the same constitutional protections as an ordinary convicted prisoner or accused criminal. Id. Second, although it has been clearly established for decades that torture of an American citizen violates the Constitution, and we assume without deciding that Padilla’s alleged treatment rose to the level of torture, that such treatment was torture was not clearly established in 2001-03.

In March, Ilya had this interesting post on Harmon v. Kimmel, 11-496, a case the Supreme Court is now considering that presents the question whether New York’s system of rent regulation effects a taking of private property without compensation.

The Court as a whole considered the case for the first time at last Friday’s Conference.  (It was originally on for the December 9 Conference, but on December 5, at least one of the Justices asked the respondents — who had waived their right to file a brief in opposition — to file a response.)  The Court has relisted it for this Friday’s Conference, suggesting that at least some of the Justices are taking a close look at it.  The briefs in the case are available through the link above.

For the past week there has been a fair amount of speculation that, because no opinion had yet been posted on its webpage, the Office of Legal Counsel either was not consulted about President Obama’s recess appointment on January 4 of Richard Cordray and three NLRB members, or that it had been consulted and said no recess appointment could lawfully be made while the Senate was conducting pro forma sessions.  

The problem was, as Jonathan Adler noted below, that the White House wouldn’t say publicly whether it had consulted the Justice Department. See here for more. There was understandable concern because of well publicized examples of this Administration obtaining legal opinions from other, less-traditional sources when OLC’s conclusions did not support the action it wished to take.  See here and here for columns by Prof. Bruce Ackerman, here for one by Prof. Michael McConnell, here for a post by Adam White, and here for a post by Ed Whelan.

Well, as I expected, there was indeed an opinion. The Office published it this morning, and it is available here.

Ordinarily, you’d say release of an opinion within a week of relevant executive action is pretty darned fast. After all, OLC opinions sometimes don’t make it on to its website for several months after they’re signed. But given congressional interest and public interest in this matter, this is an instance where simultaneous or near-simultaneous publication (which OLC sometimes manages, see here for an example) might have been helpful. Although Congress and the public does at least have a full explanation of the Administration’s rationale in time to be relevant to the ongoing debate.

More on the opinion later when I’ve had a chance to read it.

UPDATE on contents of the opinion: For starters, in an effort to give its analysis a bipartisan sheen (note the number of Republican Administration OLC opinions it cites), the opinion makes plain what may already have been apparent from my past detailed discussions of the subject, which is that I worked on the OLC’s research into the President’s ability to make recess appointments notwithstanding pro forma sessions back when the Office first considered the subject during the tail end of the Bush Administration. See Op. 4 (citing Memorandum to File, from John P. Elwood, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Lawfulness of Making Recess Appointment During Adjournment of the Senate Notwithstanding Periodic “Pro Forma Sessions” (Jan. 9, 2009)). The Bush Administration never made such an appointment, however, and the work was never was finalized (and thus, significantly, I wasn’t at liberty to reveal the nonpublic work I’d done).

The OLC opinion was signed January 6, two days after the recess appointments, but the opinion states (Op. 1) that OLC has already advised them about that question, the production of such a detailed opinion on January 6 suggests that the White House Counsel asked the question in advance of the appointments. The opinion formally advises on “whether the President has authority under the Recess Appointments Clause to make recess appointments during the period between January 3 and January 23 notwithstanding the convening of periodic pro forma sessions,” Op. 1 (emphasis added), thus carving out the period when Senator Reid actually did conduct business at the December 23, 2011 session (which was scheduled to be a pro forma session), as noted in my original post.

The opinion, concludes, essentially:

Although the Senate will have held pro forma sessions regularly from January 3 through January 23, in our judgment, those sessions do not interrupt the intrasession recess in a manner that would preclude the President from determining that the Senate remains unavailable throughout to “‘receive communications from the President or participate as a body in making appointments.’” Thus, the President has the authority under the Recess Appointments Clause to make appointments during this period. The Senate could remove the basis for the President’s exercise of his recess appointment authority by remaining continuously in session and being available to receive and act on nominations, but it cannot do so by providing for pro forma sessions at which no business is to be conducted.

Op. 1 (quoting Intrasession Recess Appointments, 13 Op. O.L.C. 271, 272 (1989) (quoting Executive Power–Recess Appointments, 33 Op. Att’y Gen. 20, 24 (1921)).

A more detailed recitation of the opinion’s contents after the jump.

Continue reading ‘OLC Opinion on Pro Forma Sessions and Recess Appointments Published’ »

It is being reported that President Obama intends to recess appoint Richard Cordray to be the first Director of the Consumer Financial Protection Bureau despite the fact that the Senate has been conducting pro forma sessions for the precise purpose of preventing him from making recess appointments.  Under this procedure, the Senate “gavels in” briefly every three days, calls the house to order, and ordinarily gavels right back out without conducting any business.   The procedure commonly takes less than 30 seconds.  A couple of representative pro forma sessions can be viewed here and here.  The procedure was first used for the purpose of trying to prevent the President from using his recess appointment authority late in President George W. Bush’s second term, and has been used heavily since. 

In October 2010, my former boss at DOJ’s Office of Legal Counsel, Steve Bradbury, and I wrote this op-ed arguing that such pro forma sessions at which no business is conducted do not interrupt a recess of the Senate within the meaning of the Recess Appointments Clause, and thus do not interfere with the President’s recess appointment authority.  I recognize that this is a novel and difficult question of constitutional law, with very few relevant judicial precedents, and there are arguments for both positions. Here is an outline of the basic argument why such pro forma sessions do not interrupt a recess of the Senate.

In addition to the power to make appointments with the advice and consent of the Senate, the President has an auxiliary power under the Recess Appointments Clause “to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” The few discussions during the ratification debates to broach the subject (during which people argued both for and against such a power) tended to focus on how, absent such a power, the Senate would have to be continually in session to advise the President on the appointment of officers. That was also how Joseph Story framed the issue in his Commentaries on the Constitution: either “the senate should be perpetually in session, in order to provide for the appointment of officers; or, that the president should be authorized to make temporary appointments during the recess, which should expire, when the senate should have the opportunity to act on the subject.”

Both the Senate and the Executive Branch traditionally have given the Recess Appointments Clause a practical construction that focuses on the Senate’s ability to provide advice and consent. The earliest opinion of the Attorney General on the issue (which first took the position, which also has been controversial, that the President can make appointments not only to fill vacancies that arise during the recess, but also which happen to continue to exist during such a recess) focused on the Senate’s ability to provide advice and consent. Executive Authority to Fill Vacancies, 1 Op. Att’y Gen. 631, 633 (1823) (“all vacancies which . . . happen to exist at a time when the Senate cannot be consulted as to filling them, may be temporarily filled by the President”).

One of the most important documents on the scope of the Recess Appointments Clause is the report the Senate Judiciary Committee issued on the question in the wake of President Theodore Roosevelt’s decision to make recess appointments during a truly brief gap between two sessions of Congress. That report likewise advocated a practical interpretation that focused on the ability of the Senate to perform the advise and consent function.

It was evidently intended by the framers of the Constitution that [“recess”] should mean something real, not something imaginary; something actual, not something fictitious. They used the word as the mass of mankind then understood it and now understand it. It means, in our judgment, . . . the period of time when the Senate is not sitting in regular or extraordinary session as a branch of Congress, or in extraordinary session for the discharge of executive functions; when its members owe no duty of attendance; when its Chamber is empty; when, because of its absence, it cannot receive communications from the President or participate as a body in making appointments.

S. Rep. No. 58-4389, at 2 (1905).

The argument is that the sort of pro forma sessions that are now going on don’t give the Senate the opportunity to conduct any business. Indeed, the resolution that preceded this recess specifies that no business will be conducted at these sessions.

Madam President, I ask unanimous consent that when the Senate completes its business today, it adjourn and convene for pro forma sessions only, with no business conducted on the following dates and times, and that following each pro forma session the Senate adjourn until the following pro forma session: Tuesday, December 20, at 11 a.m.; Friday, December 23, at 9:30 a.m.; Tuesday, December 27, at 12 p.m.; Friday, December 30, at 11 a.m.; and that the second session of the 112th Congress convene on Tuesday, January 3, at 12 p.m. for a pro forma session only, with no business conducted, and that following the pro forma session the Senate adjourn and convene for pro forma sessions only, with no business conducted on the following dates and times, and that following each pro forma session the Senate adjourn until the following pro forma session: Friday, January 6, at 11 a.m.; Tuesday, January 10, at 11 a.m.; Friday, January 13, at 12 p.m.; Tuesday, January 17, at 10:15 a.m.; Friday, January 20, at 2 p.m.; and that the Senate adjourn on Friday, January 20, until 2 p.m. on Monday, January 23; that following the prayer and pledge, the Journal of proceedings be approved to date, the morning hour be deemed expired, and the time for the two leaders be reserved for their use later in the day; further, that following any leader remarks the Senate be in a period of morning business until 4 p.m., with Senators permitted to speak therein for up to 10 minutes each, and that following morning business, the Senate proceed to executive session under the previous order.

Concluding that such pro forma sessions (which by design are not for conducting business) interrupt the recess of the Senate and thus prevent recess appointments would present a risk to separation of powers because it would allow the Senate unilaterally to frustrate the President’s exercise of a power granted him by the Constitution, which the Framers considered to be important to keep the government functioning by filling offices.  Cf. McAlpin v. Dana, No. 82-582, slip op. at 14 (D.D.C. Oct. 5, 1982) (“[T]here is no reason to believe that the President’s recess appointment power is less important than the Senate’s power to subject nominees to the confirmation process.”). 

Congress has its share of legitimate ways to curb the President’s use of recess appointments. For starters, the Pay Act imposes limits on the ability to pay officers who have been recess appointed; the Senate may “punish” the President by moving even slower on nominations; Congress may even reduce or eliminate funding for particular programs or agencies. I suspect that some of that will happen in the wake of this recess appointment. These are the sort of ways that the branches have traditionally wrangled over the use of recess appointments.

A caveat:  Although no business was supposed to be conducted at any of these pro forma sessions, I understand that on December 23, Harry Reid actually did some work at one of them—he asked unanimous consent that the House-passed payroll tax holiday extension be considered read three times and made arrangements for a Conference Committee. But I believe the remainder of the sessions have had no business conducted at them, supporting an argument that the recess was not interrupted during that time.

The decision to make Richard Cordray the first such appointment strikes me as a “high roller” move.  Given the role of the CFPB, it seems likely that Cordray will necessarily take many actions that will give rise to justiciable challenges–i.e., actions that will give people the opportunity to challenge in court the legality of his appointment. Given the importance of historical practice in defining the relationship between the Executive Branch and the Senate in this area, it arguably would have been a safer move to make several recess appointments of officers who would be unlikely to take actions justiciable by private parties, to establish the precedent. But for law nerds like me, the Cordray appointment means there may actually be a court ruling on this interesting (and under-explored) subject.

I expect that OLC will be releasing an opinion explaining the legal rationale supporting the appointment soon. Watch this space for more.

UPDATE: Ordinarily, when Congress goes out for recess, the two houses pass a concurrent resolution.  They have to do that because Article I, Section 5, Clause 4 says that “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days . . . .”  I hear that the House of Representatives didn’t consent to a recess, and in poking around the Congressional Record, I haven’t located any concurrent resolution for this recess.  If you have definitive information one way or the other, let me know by email. 

Note: This is the second of two book “reviews” I’ve been hoping to do since about August, but my fall got so busy with actual paying work that they were both pushed off until the delightfully slow week between Christmas and New Years.  “First Thing We Do, Let’s Deregulate All the Lawyers” was the first, but Jonathan kinda beat me to that.  This is the second.

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We’re all lawyers here, right?

If you’ve ever regretted your career choice, I have the antidote:  Paul B. Spelman’s “Even Worse Than We Had Hoped: A Journey Through The Weird Wild World Of Local TV News,” the memoir of a former local TV news reporter who is now a lawyer at the Federal Trade Commission (and until 2010 was an associate at my firm).

After leaving the truly small time as a radio reporter in Telluride, Colorado—where Christie Brinkley made a donation to his station in gratitude for Spelman’s lack of killer instinct in investigating the story of her ski accident, Spelman’s first assignment as an on-air TV reporter was in the perfectly named Whiteville, North Carolina, where he found a sign outside one of the 86 (no joke) local churches reading “Let Jesus Fix Your Achy Breaky Heart.” Spelman is “something of a curiosity” to the townsfolk as a “half-Jewish New Yorker whose only religious experiences came from attending classmates’ bar mitzvahs.” (I am confident that many Whiteville residents are, like you, puzzling over whether that should have been “B’nai Mitzvah.”) There, Spelman gains experience operating a one-man news “bureau,” or “one-man band” in industry argot, simultaneously serving as his own cameraman as he videotapes himself reporting from the scene day after day. Spelman explains how local reporters work to turn mundane events into seemingly hard-hitting stories—the book’s title comes from a statement a local anchor supposedly made to the reporter covering a story about how an accident had been worse (and thus more newsworthy) than expected.

One sample grab comes describes how Spelman, by then working in East Tennessee, was dispatched to get footage of the farm of a former judge who had been arrested for growing marijuana there. By this point, Spelman had achieved the seniority necessary to warrant having an actual cameraman, Dan, accompany him to cover his stories. Because of delays in finding the farm, the judge had posted bond by the time they got to the scene, and Spelman’s admirable efforts to explain his rights to collect footage from a public roadway came to naught when the judge pulled a rifle case from his truck. Recognizing that the judge had the better of the argument,

We drove off, but unfortunately, we drove in the wrong direction, heading farther down a windy back road that didn’t seem to lead anywhere. So with a sinking feeling, we realized we’d have to turn around and head back to the farm. We decided that if we were going to get shot, we should try to get it on video, so I drove and Dan got in the back seat with the camera. I generously allowed that if the guy started shooting Dan was permitted to duck. “But keep rolling,” I said, “if we survive it’ll be good footage.”

When a highlight of your career is deciding how to caption your response to a sur-reply brief, that is infotainment. Spelman’s book is filled with this kind of gentle, self-deprecating humor, the observations of a person who in many ways is a visitor in his own country. Spelman spares no details, even (or especially) when it is embarrassing; his account of one evening when he spent so long in a courthouse bathroom that he arrived late to cover an aviation mishap ends with the memorable phrase, “luckily for me, it’s unwieldy to remove plane wreckage.” (His account of how he got the story anyway, maybe better than his speedier competition did, is illuminating.)

Admittedly, I grew up in Peoria, Illinois. My standards for a good time may not be the same as for some of you swells who grew up where “entertainment” consisted of something more sophisticated than listening to AM radio in the back of a Plymouth Belvedere as you drove out to a strip mine to shoot beer cans with BB guns. But as I read this book, I kept thinking, “There is a movie in this.”

When I was in my second year at law school, I went to go see the movie Black Robe, about a Jesuit priest trying to make converts in 17th Century Canada. There is a scene where the priest has been captured by hostile Iroquois and he stands waiting, hand held fast to a post, as the Iroquois chief impatiently sorts through clam shells to find one suitably dull to maximize the pain when he uses it to sever his guest’s finger. I left that movie thinking that, even though I had chosen to be a lawyer, life could be worse. Reading Paul Spelman’s book, I had the same feeling. But I laughed a lot more.