Tuesday, December 31, 2002

The last post of the year

I thought about ending the year with a final wrap-up as to how somebody of my political bent can still find something to love in Southern culture. But my writing skills aren't up to it right now (ever?). Instead, I recommend that you find yourself a copy of James Alan McPherson's short story collection "Elbow Room", and read the story "Why I Like Country Music." (Amazon's got it; just be sure to click to Amazon through Atrios, please).

And just as I was admitting to myself my utter inability to write something suitable along these lines, and to write anything useful about New Year's, I find that the greatest living Southern traditional fiddler -- who is from New York, such being the nature of these funny times -- has written something to which I can just link instead. Please go check it out (scrolling down to the bottom half of the page for the "Opinion and Resolutions") and then buy his records, which will improve your life more than this blog ever could.

posted by sam 4:08 PM 0 comments

The Confederate flag, Dolly Parton, and William James

Several years ago I spent some days trying a case in a county courthouse in Tennessee. In front of the courthouse, where one often finds a statute of a Confederate soldier (e.g., here, here, here), was a statute of a young Dolly Parton. (How 'bout that world wide web, huh?).

Therein lies the key to something.

A few weeks ago, rummaging around on Joseph Duemer's site, I came across a link to an essay by William James that I hadn't read in many years. It was one of James's "Talks to Students on Some of Life's Ideals": this talk was "On a Certain Blindness in Human Beings.". It begins like this:

Our judgments concerning the worth of things, big or little, depend on the feelings the things arouse in us. Where we judge a thing to be precious in consequence of the idea we frame of it, this is only because the idea is itself associated already with a feeling. If we were radically feelingless, and if ideas were the only things our mind could entertain, we should lose all our likes and dislikes at a stroke, and be unable to point to any one situation or experience in life more valuable or significant than any other.

Now the blindness in human beings, of which this discourse will treat, is the blindness with which we all are afflicted in regard to the feelings of creatures and people different from ourselves.

We are practical beings, each of us with limited functions and duties to perform. Each is bound to feel intensely the importance of his own duties and the significance of the situations that call these forth. But this feeling is in each of us a vital secret, for sympathy with which we vainly look to others. The others are too much absorbed in their own vital secrets to take an interest in ours. Hence the stupidity and injustice of our opinions, so far as they deal with the significance of alien lives. Hence the falsity of our judgments, so far as they presume to decide in an absolute way on the value of other persons' conditions or ideals.

So now think of the Confederate "heritage" movement – the flag, the statute of the soldiers, the kids defiantly wearing rebel flag t-shirts to school. Some of the people who support this sort of thing are vicious white-supremacists. Others, I believe, are not. So why would they engage in this behavior?

The answer, I think, has to do with feelings. Everyone, everywhere, yearns for a sense of being part of something important. In most people, this is wrapped up in geography – and in many people is wrapped up in ancestry as well. What the Confederate nostalgia does, for some people, is to provide that feeling of being rooted in something worth celebrating. You will make no headway if your program is to convince white Southerners that their ancestors were bad, and that there is nothing worth celebrating in their past. You will gain no ground if you tell those whose ancestors were poor, that those ancestors were gullible and were duped by the elites into fighting a war to protect the evil institution of slavery. Nobody wants to feel that he or she came from bad or stupid folks who aren't worth celebrating; everybody wants to feel good.

Unfortunately, in order to obtain that good feeling, the non-white-supremacist romanticizers of the Civil War and Reconstruction-era South have latched upon things that also provoke feelings in others – and like all of us, as William James reminded us, the romanticizers are (surprising at it may seem, because our own feelings seem obvious to ourselves) oblivious to the depth of very bad feelings that these symbols and practices evoke in others.

The best way out, if there is one, is for white southern romanticizers to find those same feelings of pride and belonging in other symbols and things, ones that don't evoke such bad feelings in us non-romanticizers. And this is where Dolly comes in. White Southerners do in fact have some things to be proud of. And Dolly – as the folks in Sevierville know – represents many of them. If every county courthouse in the South had a statute of some local person or people who represented some of those things that the locals could claim as a particular source of regional pride, rather than the divisive Confederate soldier, that would be a great step forward. Maybe Bill Gates can come forward with a grant for this purpose.

posted by sam 12:44 PM 0 comments

Why should the Federalist Society be the only one to have all the fun and other benefits of collective action? If you are a lawyer, please think of joining the American Constitution Society if you haven't already.

posted by sam 8:42 AM 0 comments

Boy, I wish that I could time-travel back to fifth grade with a printout of Patrick Nielsen Hayden's post here, and give it to my history teacher when she told us: "One of the questions on tomorrow's test will be 'What was the cause of the civil war?' And if you answer 'Slavery,' that is wrong and you will get no points."

posted by sam 7:47 AM 0 comments

Monday, December 30, 2002

Kos has got a hornets' nest stirred up in the comments over at Daily Kos here about the Confederate Flag. (Thanks to Ed Still for telling me to be sure to check it out).

It is a fitting occasion for me to begin to explain one of the things I realized about the Deep South, on my drive back yesterday and this morning (12 hours in the car with just me, my doggie Dot, Tom Waits, Bob Dylan, Howlin Wolf, and Fugazi -- plenty of time to think). That is this:

There are many people down there -- a huge number, I would say, based on my experience -- who don't know when they're saying something that constitutes a position on a disputed issue of politics or morality. And when it is pointed out to them that they are in fact doing so, they get very uncomfortable and often get defensive. I think that it is attributable to the fact that they so rarely hear dissenting opinions. At otherwise perfectly lovely parties, even when everyone is on his or her best behavior, you will hear off-hand comments (for instance) about how the trial lawyers are ruining this or that aspect of society; and when I or someone like me will disagree, as affably as I know how, the response is as though I had (as the old saying goes) farted in church -- the dissenter has done the wholly inappropriate thing of bringing up politics in such a nice gathering, when those who merely voice the majority political view didn't even realize that they were bringing up politics at all. You see this sort of thing at Instapundit sometimes -- he acts shocked, from time to time, when people accuse him of making a political statement, when from his point of view he was just having a pleasant conversation about obvious truths. This is not a universal trait among Southerners, of course. Some people know full well that, by being in favor of the honoring of the Confederate cause, they are working to further an extreme political position. But others are simply unaware that, by joining in the "honoring", they are taking a position with which a reasonable person could disagree.

When I figure out what to do about this, I'll tell you in a further post.

posted by sam 6:05 PM 0 comments

I have returned happily home and will re-commence blogging in earnest as soon as I make sure that there are no disasters in the mail, have a conference call, take the dog to the vet for this funny skin condition, and a few such things.

posted by sam 9:54 AM 0 comments

Friday, December 27, 2002

I know that I am late to the discussion on Senator Frist's 1994 invocation of Marion Barry, and whether this was a racial appeal to racist voters. But the talk is still bouncing around the blogworld, and my holiday journey has reminded me that I really do know something about this that is different from what many people know. This is one of those rare posts -- I try to keep them to a minimum -- that is based on a declaration that you're really going to have to trust me because I'm something of an expert here.

Those days -- the early to mid 1990s -- were part of the period of my career in which (in addition to being a union lawyer and some other odds and ends) I was part of a great team of lawyers representing the City of Birmingham and (in some matters) its Mayor, in a variety of things growing out of a long-running attempt by the FBI and the U.S Attorney's Office to find something on the Mayor. The Mayor was Black. He was also honest and law-abiding, so the years of FBI/US Atty attempts to find dirt on him were completely unsuccessful.

But what I'm here to tell you about is that many of my white acquaintances, when I would run into them at bars and restaurants and parties etc., were eager to believe that he simply must have done something criminal and that it would be found eventually -- even long after all the probes had been closed with no charges having been brought. These were not merely the oldsters of my parents' and grandparents' generation; it also included people of my own age, then closing in on 30. It was rampant among white people, the desire to know that Black people were "incapable of self-government" as the saying went. And in a vast number of these conversations, in which I would sorely disappoint them with my honest belief that the Mayor was clean and that we had proven it, time and time again, the name of Marion Barry would be invoked -- at least there was Marion Barry, who gave temporary comfort to those looking for proof of the "incapable of self-government" theory. In those days in Alabama, and I would infer that the same was true in the state of Tennessee next door, Marion Barry was not a bad Mayor; he was a bad Black Mayor. There was a glee in white discussions of him that you simply won't find today in Alabama in a discussion of the white Mayor of Providence or the white Jim Traficant even if you can stir up a conversation about those guys. In the South in 1994 -- and to a large extent in the South today -- Marion Barry was joyfully exuberant code for "I told you so! Can't trust 'em! Whatchoo gonna say now, Mr. Liberal?" Anyone who tells you otherwise is either unfamiliar with the local dialect, or is trying to make excuses.

posted by sam 8:42 AM 0 comments

Thursday, December 26, 2002

I am irritated that Max beat me to it -- "it" being the glory of being the one to bring to your attention the controversy in the heartland over a pregnant Barbie doll. Actually, it's not Barbie; it's Barbie's friend Midge. You will be glad to know that Midge wears (or has painted on -- I can't say myself) a wedding ring. Still, this is not enough to quell the controversy, which has (really truly) resulted in Midge's banishment from the shelves in some stores, including (according to the article that Max linked) all Wal-Mart stores. Really. Some people complained about a pregnant doll, on the grounds that it was inappropriate, and so the dolls were yanked. Here's another article, the one that originally caught my eye (though in a different paper), that includes a wonderful quote from a minister: ""It concerns me that here is one more thing that exploits sexual themes around young, impressionable children." Yes, and what's worse is that many toddlers are confronted EVERY DAY by the sight of THEIR OWN MOTHERS' swollen bellies gestating away with siblings-to-be. An outrage.

In all seriousness, this article is a good -- but by no mean the only, and certainly not the most important -- example of the first thing I wanted to post about, in connection with my holiday journey out of the liberal metropolis. That is this: that if anyone tells you that the Republican-leaning areas of the nation, and the Republican-leaning parts of the population, are more live-and-let-live than us progressives, that it is only the leftists who are humorless busybodies who have lost the art of minding their own business when appropriate -- if anyone tells you that, the wise response is "ha ha ha ha ha."

posted by sam 8:01 AM 0 comments

Tuesday, December 24, 2002

As of today, and for the next couple of days, I am focusing more on information-intake, research and close observation (and also on having fun with family) -- and less on writing. Then, I hope, something worth saying will emerge.

But I can quote Paul Krugman: "If truth be told, 2002 was a very good year for cynics. But it's the day before Christmas, so let's be thankful for our gifts: the good guys who made a difference" And I will add "... and also (more numerous and in some ways more admirable) the folks who keep trying even though they aren't sure that they've made a difference yet."

I wish everybody a Happy Movie-and-Chinese-Food Day, or Merry Christmas, or whatever it is that each of you will be doing tomorrow.

posted by sam 8:27 AM 0 comments

Here is a moving reminiscence about Joe Strummer.

posted by sam 7:51 AM 0 comments

Sunday, December 22, 2002

I will be doing things other than blogging for the next couple of days. Please stay tuned. We have much to talk about, if I can find time to put useful thoughts together, including more on affirmative action (the new racism! I'm a traitor to my race!) and cash-balance retirement plans. In the meantime, I recommend this post by Seth Edenbaum to stimulate complex thought.

posted by sam 10:05 AM 0 comments

Saturday, December 21, 2002

More on Alabama. I am probably the only person you know who has his own dog-eared copy of the Government Printing Office's "Nomination of Jefferson B. Sessions III, to be U.S. District Judge for the Southern District of Alabama: Hearings before the Committee on the Judiciary". (What in the world am I talking about? Read the link above to TPM, and click onward).

posted by sam 8:02 AM 0 comments

Fritz Schranck wonders if maybe Sen. Lott got the hint that it was time to step down, from a source even higher than the President.

posted by sam 6:07 AM 0 comments

Mark Kleiman was on a roll last night, with several great insights and explanations in a row -- and not one but two quotations from William Blake.

posted by sam 5:55 AM 0 comments

Friday, December 20, 2002

I am glad that Prof. Instapundit is not even pretending to be anything other than a rabidly partisan Republican anymore; but unfortunately, in order to score rhetorical points for his side, he's had to pretend that the 20th century ended sometime in the mid-1960s. [Yes, I know, I should have better things to do than to poke at some dude in Tennessee whom I've never met. But his calling me (and everybody who agrees with me about affirmative action) a racist, in various posts these days, makes me peevish.]

posted by sam 5:41 PM 0 comments

Now that's funny.

(Ok, it requires a little background, but I'm assuming you have it. The WSJ had an editorial not long ago about those "lucky duckies" who don't pay much in taxes (at least if you ignore sales tax, FICA, etc., ...) because their income is so low. Just nutty WSJ stuff, right? Right. Except that a few days later the White House is floating policy proposals that echo that editorial. Go read MaxSpeak for education in economics and tax policy; I'm just a lawyer).

posted by sam 2:45 PM 0 comments

By following a link from CalPundit (to here and then onward), I have just learned that Dr. Julius Hibbert on the Simpsons is an ex-Alabamian. This is fine news for us ex-Alabamians. For other Alabama news, go here.

posted by sam 6:36 AM 0 comments

Thursday, December 19, 2002

My little hit counter has been spinning out of control the last couple of days, because of gracious links from three outstanding bloggers, Atrios, Ted Barlow, and Howard Bashman. Thanks -- and thanks also to the many others who have been nice to me lately in various ways.

posted by sam 3:03 PM 0 comments

A suggestion on the Ten Commandments

It appears that Chief Justice Moore of the Alabama Supreme Court has declined to remove the Ten Commandments monument within the 30-day grace period that Judge Thompson allowed him; Chief Justice Moore has left Judge Thompson no choice but to issue an injunction requiring him to do so, on pain of contempt.

So here is my suggestion. In this case, it seems to me, the public good will be served by making sure that the removal of the monument is accomplished peacefully and in a way that gives as little opportunity as possible for public grandstanding by those who want to defy Judge Thompson's order. I think that imposing the traditional contempt remedies -- fines and imprisonment -- on Chief Justice Moore would not serve those ends, even though such remedies would be quite proper from a legal perspective if Chief Justice Moore does not comply with an injunction. I also think that having the U.S. Marshalls remove the monument would play into bad old Southern stories about the evil federal government. So what to do? Brush off Fed. R. Civ. P. 70, which says "If a judgment directs a party ... to perform any other specific act and the party fails to comply within the time specified, the court may direct the act to be done at the cost of the disobedient party by some other person appointed by the court ..."

So, with little fanfare, Judge Thompson could simply appoint some sturdy, courageous, and otherwise anonymous person with a little forklift to go remove the monument if Chief Justice Moore refuses to do so. I would imagine that volunteers could be found. It would be such a disappointment to the folks who, for fundraising purposes, want a film of uniformed government officials doing the work.

posted by sam 7:35 AM 0 comments

Wednesday, December 18, 2002

Atrios points out Pres. Clinton's remarks on Senator Lott and on the hypocrisy of much of the right-wing response to Lott's behavior. One bad side-effect, though, is that we will now hear and read the phrase "played the race card" about a zillion times tomorrow, and that phrase grates on my ears. People who use that phrase pretend that it means something clever, but really it means nothing more than "said something about race and racism, from a pro-minority stance, that I don't agree with and that I therefore think nobody should ever ever say."

posted by sam 8:21 PM 0 comments

In my day we never would have done such a thing even if it had been invented yet. O tempora, o mores.

posted by sam 2:24 PM 0 comments

This is in response to the guy who keeps sending me very unfriendly emails -- most recently about Ring v. AZ and its impact in Alabama, with lots of ad hominem stuff directed my way -- and then blocking my email replies.

I assure you that your emails don't do me any good, and my guess is that they don't do you much good either.

My thinking on Ring is quite simple: at the very least, that Ring requires that a jury decide the existence vel non of certain aggravating circumstances (e.g., "especially heinous", or whatever the precise wording is) and because AL law does not provide for such jury findings, no death sentence based on that aggravator or others that similarly require a jury-finding can be valid in Alabama. The recent AL S.Ct. decision was distinguishable, if I remember correctly, because it was not based on that aggravator but was instead based on the view that the jury had already found the relevant aggravator in the guilt phase.

Now, please, do either of these two things: (a) don't write me any more, or (b) if you do write me, then sign your name and tell me the city in which you live, so that we will be on an equal footing here.

Thanks. Sam Heldman

posted by sam 12:15 PM 0 comments

[There was, here, a further post about Andrew Sullivan. It was here for about half an hour. Now I took it down, because I don't want my website, or my life, to be clogged up with arguing with people who aren't within earshot and wouldn't listen even if they were. If there is anyone, anywhere out there, who is doing a sort of Ignatz-watch and is compiling a database of everything I've said so that I can't weasel out of it later -- or anyone who for any other odd reason is very interested in what I wrote -- please email me and I'll send it to you]

posted by sam 11:11 AM 0 comments

Labor Law

This is odd. This press release indicates only that Robert Battista was sworn in as chair of the NLRB yesterday -- not that the entire panel of 5 was sworn in, as I had been advised by a guy-in-the-know that they would be. Hmmm. More later.

UPDATE: In the last couple of hours, the NLRB's site has been updated to show all 5 as Members; Member Liebman's the only one with a picture, as she's the only one who's not brand-new.

posted by sam 7:13 AM 0 comments

Tuesday, December 17, 2002

I try not to pay much attention to Andrew Sullivan, or to engage in much intra-blogworld nyah-nyah. But occasionally something comes along that makes me unable to stop myself. Here's the latest. The following passages appeared within three inches of each other on Sullivan's site today:

The equation of opposition to affirmative action or hate-crime laws or any other number of leftist policies with racism strikes me as a massively cheap shot

and

MR. LOTT, HE GONE: And the critical sign is, as Josh Marshall notes, he just "absolutely" endorsed affirmative action. He is the worst of all possible worlds: once a devotee of the old racism; now an enthusiast for the new racism.

So now I'm a racist because I believe in good faith that many of the varied policies that someone decided some decades ago to call "affirmative action" are a good idea? But it would be a massively cheap shot for me to call someone who opposes those policies a racist, even when I believe that most (not all) of the people who oppose them, do so because in their heart of hearts they want white people to have more of the good stuff? This makes sense? I'm willing to save the word "racist" for those who believe in the superiority of one race over another, if you are. If Sullivan et al. want to use the word in a looser sense, then I'm prepared to play that way too, and to toss the word around more freely. But somebody who's aggressive about policing other people's use of the word "racism", as Sullivan is, shouldn't be using the word in an idiosyncratic sense himself in order to score political points.

Seems to me like this would be a great instance for Sullivan to write the 2 most rarely-written sentences in all of blogdom: "I'm sorry. I was wrong."

posted by sam 2:21 PM 0 comments

At least one guy who claims to know what he's talking about, says that as a result of Senator Lott's behavior, Judge Pickering will now not be renominated for the Fifth Circuit. Also notable at least in passing is that this putatively-well-informed right winger is not at all on board with the view that principled non-racist conservatives were substantially involved in driving the outrage at Lott's behavior: this dude blames it all on the vast Carville conspiracy. (Link via Howard Bashman).

posted by sam 11:51 AM 0 comments

There is an interesting article this morning in law.com about an effort to revise the regulations under the Fair Labor Standards Act regarding the categories of employees who are exempt from the Act's requirement of overtime compensation.

Hold on -- that sounds boring, when you write it like that. But it's very important. I will try again:

If you are, or if you have friends or family members who are, "management" at a big chain store or restaurant, then you know what's going on. In exchange for the title and a little bit of authority, and the glory of being able to say that you are such a bigwig that you are paid a salary rather than an hourly wage, you get hosed: you are made to work so many hours that if you sat down and tried to calculate what your effective hourly rate would be (if you were paid x for the first 40 hours and 1.5 times x for the remainder) you'd find that you're making an "x" that doesn't seem worth it at all. This happens, of course, not just in retail and food service, but in just about all industries as to some job classification or another.

There are regulations defining what sort of job you have to have -- what kind of duties, and level of pay -- before a company can pull that trick on you (if you don't agree with my politics, delete "pull that trick on you" and insert "freely negotiate such an arrangement with you"). Employers hate the complexity and perceived ambiguity of those regulations, and somehow can't bring themselves to what seems to me to be the obvious solution: when in doubt as to whether you can lawfully pull this trick on an employee, don't. Employee representatives, on the other hand, hate the fact that the minimum-salary part of the test -- the amount of salary you have to be paid, at least, in order to allow this trick -- hasn't risen for decades.

The outcome of this battle, if there is an outcome, will be important.

posted by sam 7:15 AM 0 comments

Monday, December 16, 2002

Every time I get a bill from some big company that includes an insert explaining "changes" to my "agreement" with them -- and, wouldn't you know it, those changes are always to the benefit of the company, and no company representative ever called to negotiate those new terms with me or to see what my thoughts might be -- I muse to myself "I really ought to do the same: send them a darn piece of paper making the changes that I want, and telling them that these changes will be part of our agreement unless they notify me immediately in writing to the contrary."

Well, somebody went and did just that, and lo and behold prevailed in the Alabama Supreme Court. The consumer did away with a prior "agreement" to arbitrate all claims, by including a notice with her payment that said "we're not going to arbitrate any more, and you can't make any further changes in our agreement unless I specifically ok them." And the Alabama Supreme Court, in this decision issued last week, gave effect to this modification of the parties' arrangement. As Nelson on the Simpsons says, "ha ha."

You can probably expect to receive an insert in all of your bills in the next few months, declaring an amendment to your "agreement" by which you "agree" that you can't do this. But what happens if you "X" that out and send it back noting that you don't agree? Fun fun fun, until all the companies gang up and deny you all services because you're a troublemaker, and you end up living in a shack in the woods as an outcast from the consumerist society.

posted by sam 2:23 PM 0 comments

Sunday, December 15, 2002

Even from people who are otherwise apparently astute, we still see the assertion that Senator Lott is not a racist. (Take, for instance, the assertion by one of the co-conspirators at Volokh that Lott "probably isn't a racist" and that Democrats should merely accept his apology and move on).

But let's try to take this logically, given what we know about human thinking and behavior, and about history.

First, I take it that we can all agree that – at least through young adulthood – Trent Lott was a racist. He thought that white people were better than Black people, and that governmental and private institutions should be arranged so as to recognize this "fact" and to distribute benefits accordingly. If you are still one of those who takes the position that mid-20th-century Southern white opposition to integration, and to statutory and judicially-enforced rights for Blacks, was not racism in this sense – well, then, you're not going to be open to the rest of what I have to say, so don't bother reading further.

But it is possible for people to change their beliefs, even on major issues. There are some people who were supporters of segregation and opponents of the civil rights movement 30 or 40 years ago, who are not racists now. But there are some people – I think in fact a majority, but you don't have to agree with me on that of course – whose beliefs on this major issue have not changed. Their vocabulary may have changed, the particular policies they support may have changed, they are more willing to make exceptions for Colin Powell and Condi Rice, but there are still many racists in this nation. It would not be impossible, or even ipso facto improbable, that a U.S. Senator (or several) would be among them.

So how can we begin to tell the difference between those who changed their beliefs on this issue of great importance, and those who did not? Let's even leave aside Senator Lott's voting behavior for purposes of this discussion. Here is one way you can tell: people who make major transformations on important moral beliefs tend, if they have actually made an honest change, not to whitewash their past. Let me be more plain: if you've really changed, you don't lie about where you changed from. True change is accompanied by honesty.

So now let's get back to Senator Lott specifically. Here's what he told the Anti-Defamation League, on a previous occasion in which he got some heat for cozying up to overt racists (from an article this morning in the NYT):

In 1999, Mr. Lott wrote to the Anti-Defamation League that he "could never support — or seek support from — a group that disdained or demeaned" people because of their race. "I grew up in a home where you didn't treat people that way, and you didn't stand with anyone foolish or cruel enough to do so," he said.

Compare this assertion with what the Times reports, in the same article, about the actual beliefs in the home where Senator Lott grew up:

Back at home, the turmoil at Ole Miss was roiling Pascagoula and even Mr. Lott's family. Ira Harkey Jr., editor of The Pascagoula Chronicle, was writing editorials denouncing racial violence and criticizing Barnett for fighting the integration of Ole Miss. In response, a group of local people — many of them shipyard workers, Mr. Harkey says — harassed him for months, threatening violence and even shooting out his office windows.

Some time later, Mr. Harkey said, he received a letter from a woman who told him that if he did not publish her letter it would prove "you are truly an integrationist and I hope you not only get a hole through your office door but through your stupid head." It was signed Iona W. Lott — Mr. Lott's mother.

"I called her, asked if she'd sent it to me, and she said she certainly had sent it to me and she meant every word," said Mr. Harkey, now 84.

So what we have here is Senator Lott recently lying, in writing, about the belief system in which he was raised.

I know it would be hard to say, "my dear old mother, whom I love, was a vicious racist." And I'm not urging that anyone who wants to prove the bona fides of his change of heart would necessarily have to say that particular thing. But what I am saying is that somebody who goes out of his way to volunteer a lie about the nature of the change of his views on race – in order to make his starting-point seem nicer than it actually was – is probably lying about the nature of the change of his views on race in order to make his current landing-point seem nicer than it is, too.

Am I naïve enough to expect this level of honesty from politicians? Of course not. Nor am I naïve enough to think that someone has changed his core belief on a crucial set of issues, if he is still intentionally dissembling about it.

posted by sam 9:57 AM 0 comments

Suggested reading: TalkLeft on the President's plan to stack the U.S. Court of Appeals for the D.C. Circuit with right-wing judges, after the right-wing Senators successfully kept President Clinton from filling vacancies on that court by asserting that the court had more judgeships than it really needed.

posted by sam 7:35 AM 0 comments

Saturday, December 14, 2002

Here is a tip for those who send snotty attack-emails: if you ask a substantive question, I might answer it, even if you wrote your question in a very snotty way. But when you've set your AOL mail account not to accept mail from me, you won't get my answer. And then you won't even be able to write back a snotty response pointing out the ways in which you think my answer is lacking.

posted by sam 7:07 AM 0 comments

Friday, December 13, 2002

Is it really possible that I saw a clip of Pat Buchanan on CNN last night saying that Senator Lott was being treated unfairly, that this was a "lynching" of him? I am 99 percent sure that I saw that with my own eyes and heard it with my own ears. When one of the roots of this whole episode was the Dixiecrats' opposition to an anti-lynching bill -- that's literal lynching -- it takes a vast amount of gall to throw that term around so lightly. But really, that's the point: it's hard to imagine that Buchanan was throwing the term around lightly. He must have meant to be drawing the comparison that the word evokes: to say that many people seriously disapproving of racism by a high public official, is about as bad as a white supremacist vigilante killing.

UPDATE: Well, I didn't imagine it. Buchanan is so proud of this turn of phrase, that he's put it in writing. Think of it. Even if you think (absurdly in my view, but let's place that aside for one second) that Lott has been unfairly criticized, to call this a "lynching" -- in a conversation that is in substantial part about actual Southern racist lynching -- is so astounding I don't know where to begin.

So Pat Buchanan is a white supremacist, duh. Who didn't know that? Correct, of course. So why is he offered up in the news/entertainment media, constantly, as one of the voices that constitute the reasonable spectrum of debate? BECAUSE, AS A SOCIETY, WE'RE NOT BEYOND RACISM YET, that's why. It is alive and well, and not just on the fringe of the fringe. Someone should clue in the Supreme Court, as it hears the U.Mich. higher-ed admissions cases.

UPDATE UPDATE: Atrios -- who, along with Talking Points Memo, has received some well-deserved recognition in the big media for helping make sure that the news of Lott's statements did not get swept under the rug -- also notes Buchanan's choice of words.

posted by sam 7:19 AM 0 comments

Thursday, December 12, 2002

Among the things I learned today at my CLE seminar on various aspects of employment law:

that the five newly appointed (or reappointed) Members of the National Labor Relations Board will be sworn in next week;

that there are many management lawyers, whose arguments depend in large part on the constant assertion that racism is an extremely rare motivation in employment decisonmaking these days, who ought to read this (and Nathan Newman's comments about it); and

that a room full of mostly-management side lawyers in a swanky hotel ballroom think that it is alternately hilarious and appalling that a bunch of people who work at a retail store would have the temerity to assert -- GET THIS -- that they ought to be PAID for the time they spent being locked in the store at the end of the day while the employer counts the receipts. Can you BELIEVE it? Ho ho ho ha ha ha. This confirmed to me that there multiple universes, barely overlapping; I would have alternated between angry laughter and just anger at the thought that anyone could assert that the employees were not so entitled..

posted by sam 5:47 PM 0 comments

Check out this report (courtesy of Howard Bashman) on today's scheduled execution of a man who got a death sentence after the prosecution argued to the jury, among other things:

I want you to think briefly about the man you're setting [sic] in judgment on and determining what the appropriate punishment should be . . . . [J]ust put in the back of your mind what if I was sitting in judgment on this person without relating it to Jay Neill, and I'd like to go through some things that to me depict the true person, what kind of person he is. He is a homosexual. The person you're sitting in judgment on--disregard Jay Neill. You're deciding life or death on a person that's a vowed [sic] homosexual.

posted by sam 7:03 AM 0 comments

If any lawyer- or law-related reader out there has any tips for how I can get CLE ("continuing legal education") credit for writing this darn law blog (believe me -- it takes lots more than the 12 hours per year I am required by the Alabama Bar to devote to keeping current with the law), please let me know. As it stands, little blogging will get accomplished today because I will be in a CLE seminar all day.

An even better idea: a waiver of CLE requirements for all lawyers who attest that they read Howard Bashman's site obsessively, as I do.

posted by sam 7:00 AM 0 comments

Wednesday, December 11, 2002

An email conversation that I had with Seth Edenbaum, triggered by his posts lately about sincerity and other values in artistic communication, has stirred up thoughts in my head about the aesthetics and artistic content of legal writing. In particular, there is this quote from Seth's site:

"Something can be judged a work of it art if its arguments are rendered with an idiosyncratic subtlety beyond what is necessary to communicate its ideas, and which may even oppose them, but which so colors our perceptions that we can not separate the sensibility from the idea without feeling a loss.
Subtlety beyond necessity but not without purpose."

Thinking of legal communication as being artistic in this sense may seem like an oxymoron, or at least a very very bad idea, if you think that legal writing must always strive to be as un-idiosyncratic and as crystal-clear as possible. Some legal writing does strive for that – an aesthetic that purports to be a rejection of all aesthetic considerations – including, for instance, most of the very good briefs put out by the Solicitor General's office.

But I don't think that we all have to strive for that same style. I think that, for those of us who do not represent the Government in all of its bland grandness, a little idiosyncrasy and artistic flair is a good thing in a brief. It keeps the brains of the writer and the reader alive. And it does not have to amount to a sacrifice of clarity, but can instead be something in addition to, and enhancing, the clear communication of ideas.

But I fantasize that maybe it would be possible to crank this up by several notches, to persuade not through clear argument but through intentionally artistic lack of clarity – that the question that I would ask myself, in preparing an oral argument or writing a brief is, "should I be going for a sort of Astral Weeks feeling here? Or more of a Gus Viseur thing?" My colleagues, however, can rest assured that I won't be trying out this tactic at my next oral argument in the Eleventh Circuit in a few weeks.

UPDATE: Seth explains, in a very kind way, that I still don't quite know what I'm talking about. I think he's right (and, as a first step before that, I think that I now understand); but I'd still like a chance to write a Gus Viseur brief.

posted by sam 9:04 AM 0 comments

Supreme Court

The final case for this week is a punitive damages case, State Farm v. Campbell. The Utah Supreme Court affirmed a $25 million jury award against State Farm. To make a long story short, State Farm unreasonably and in bad faith refused to settle a car-wreck case against its insured, Campbell; so the case against Cambell went to trial and he lost. (The law in most states, if not all, is that a liability insurance company must act in good faith, in settling claims against the insured – rather than taking an unreasonably hard line against settlement and therefore risking the entry of a judgment against the insured in excess of what is covered by the policy.). The Utah courts concluded that State Farm had a widespread and very very bad policy of encouraging its claims people not to pay claims, in ways that ended up screwing insureds. This is bad. Hence the $25 million. [UPDATE: a knowledgeable source correctly points out that I am wrong. The trial court had reduced the jury's $145 million to $25 million. The Utah S.Ct. not only rejected State Farm's appeal, but also reversed the remittitur -- which is to say, the pop was back to $145, not $25, million. Oops.]

State Farm is making various attacks on the constitutionality of this big punitive damage pop. State Farm says that the punitive award is too big in comparison to the amount of compensatory damages; that it unlawfully punishes State Farm in one state for conduct done in other states; that the state courts placed too much emphasis on State Farm's wealth in order to justify this big pop; and that it's based on business practices that are unrelated to the conduct that gave rise to this case. See State Farm's brief (pdf) here if you're interested. Professor Tribe, who had great success in beating back a similar set of challenges in another case (TXO) several years ago, has (along with others) written a good brief in response (pdf) here.

Can Professor Tribe pull it off again? His win in TXO was considered masterful and rather surprising. A win here, again, would go against the conventional wisdom, I think. But I'm predicting it. Here are the reasons, in a nutshell. First and most importantly, the Court is (I bet) going to say in the California 3-strikes cases that there's no judicial authority to do a very searching "proportionality" review that compares a criminal punishment, on the one hand, with the value of the thing stolen, on the other. (Remember the guy serving 50 years for stealing some video tapes). And, if they're going to do that, then it's quite hard – both as a matter of creating a coherent legal doctrine, and as a matter of public palatability – for a majority to say, within a few months of that, that Corporations unlike People do have a right to that sort of searching proportionality review. This leaves, then, only the other, less interesting, pieces of the patchwork that State Farm is trying to piece together; and Prof. Tribe has done a good job of explaining that the case doesn't really present Grand Constitutional Issues in that regard but is simply a plain old matter of state-law rules of evidence and such, and is really sort of a unique case that doesn't call for the announcement of any grand principles. So, with the understanding as always that I could be wrong (and in fact was as wrong as wrong could be on one of the cases issued yesterday – the Court unanimously said exactly the opposite of what I had predicted it would say), I'm saying AFFIRM.

posted by sam 7:25 AM 0 comments

For those of you interested in the case argued yesterday in the U.S. Supreme Court about Mississippi's tangle over Congressional redistricting (see my earlier post here), Ed Still has posted part one of a great description of what's involved in the case.

posted by sam 6:17 AM 0 comments

Tuesday, December 10, 2002

Today the Justices of the Supreme Court proved once again that they have perhaps the best job in the world. Not only -- as the old British comedy routine said about the cushiness of a judge's worklife -- that there is a complete absence of falling coal. More than that, it's that they have just about the only job I can think of where one can say, without any adverse consequences whatsoever, "you know how I said I was going to do the such-and-such task? well, it turns out that it's more complicated than I thought, and not nearly so interesting. so I'm not going to do it." That's what they did today in Abdur-Rahman v. Bell, just as they did it a few weeks ago in Ford Motor Co. v. McCauley. In both cases, there was a belatedly-recognized question as to whether the Supreme Court and the Court of Appeals had jurisdiction, under the complicated procedural rules governing such things; and so rather than decide whether they had jurisdiction or not (and then, if appropriate, reach the "merits" question they had meant to consider), they said "dismiss as improvidently granted." I wish that I had that option, sometimes: "this brief is going off on a tangent, and a boring one. forget it -- I'm not going to write it after all." But then again, there's a complete absence of falling coal in my office, too, so I can't really complain.

posted by sam 11:14 AM 0 comments

Senator Lott is more concerned about not offending hard-core racists, than he is about offending those of us who are not hard-core racists. How else to explain the terms on which he "apologized" ("A poor choice of words conveyed to some that I embraced the discarded policies of the past," Mr. Lott said in a statement. "Nothing could be further from the truth, and I apologize to anyone who was offended.")? His words -- obviously, quite carefully chosen words -- do not contain any recognition of what seems obvious to all but the hard-core racists: that segregation and the rest of the Dixiecrat race platform is not only a "discarded" policy but was WRONG, WRONG, WRONG. To call it "discarded" and say he doesn't support it -- which is all that Senator Lott did -- could just as easily have been said of hundreds of other failed legislative initiatives on mundane topics. Maybe it's just that he has a complete personal inability to admit fault -- after all, a google search for the phrase "Lott apologized" yesterday morning turned up only two entries in the whole universe, and one of them wasn't about him. But it seems more likely that he is carefully ensuring that the hard-core racists don't think he's caving in too completely to that darn political correctness.

posted by sam 7:11 AM 0 comments

Supreme Court

Wednesday's first case in the Supreme Court is about cross-burning: Virginia v. Black. A few years ago they struck down, on First Amendment grounds, a Minnesota cross-burning ordinance:RAV v. City of St. Paul. This law is written differently and more narrowly, though. It provides

It shall be unlawful for any person or persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place. Any person who shall violate any provision of this section shall be guilty of a Class 6 felony.
Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons.

The theory of the supporters of this statute is that it doesn't violate the First Amendment, unlike the St. Paul ordinance, because it is limited to those acts of cross-burning that have an intent to intimidate. A divided Virginia Supreme Court struck down the law. Virginia, supported by the U.S. as amicus, wants the Supreme Court to uphold the law.

Blogger Kyle Still wrote, a few months ago, a thoughtful prediction that the Supreme Court would reverse in this case and uphold the law. I think I'm going to disagree. The reason goes back to Justice Scalia's opinion for the Court in RAV v. St. Paul. My guess is that the majority will hold the law violative of the First Amendment (and thus affirm) based on one or both of two theories: that the bare word "intimidation" is too broad and loose a concept to justify criminalization of expressive conduct; or (more likely, I'm guessing) that the state cannot validly choose to prohibit only one scumbag group's intimidating conduct while leaving other potential sorts of intimidating expressive conduct, based on other ideologies, unregulated. As Justice Scalia said in RAV, even if a state can regulate certain kinds of expressive conduct based on its secondary effects (e.g. intimidation), it can't draw sub-distinctions based on the ideological content of that speech; thus you can forbid obscenity, but couldn't allow all obscenity except for that which also contains certain ideological or political messages. My guess is that this principle will lead to the affirmance of the VA S.Ct. Could be wrong, of course, but I say "AFFIRM".

posted by sam 6:55 AM 0 comments

Sunday, December 08, 2002

Supreme Court

The second case for Tuesday is an environmental case, Borden Ranch v. Army Corps of Engineers. It's yet another case from the Ninth Circuit; this makes three this week. Say "Ninth Circuit ruled in favor of wetlands and imposed a big fine on a farmer for plowing", and what does this make you think? "Wetlands, shmetlands – won't somebody think of the farmers – those darn meddling tree-hugging bureaucrats interfering with my property -- reverse," right? Well, it's a lot more complicated than that.

Here’s something interesting about the case: Justice Kennedy has apparently recused himself. I would never have noticed it except that one of the anonymous expert predictors at the Washington University site mentioned it. (They're running a great predicting competition between a computer and human experts. My fondest hope is that I don't end up getting trounced by the machine). And of course even if they hadn't mentioned it, Howard Bashman did this morning. (Howard notices everything.) So, in order to win, Borden Ranch has to win 5 out of 8 Justices.

Borden Ranch got fined for doing some "deep ripping" in wetlands. Deep ripping seems to be really really bad-ass plowing – we're not talking about mules, but bulldozers with long metal plows that dig several feet down, to turn grazing lands into land suitable for planting deep-rooted crops. This is generally fine, except (says the U.S.) you can't do it in wetlands. The Ninth Circuit upheld (pdf) the fines. Mostly, the case has to do with interpretation of section 404 of the Clean Water Act, 33 U.S.C. § 1344. Borden Ranch says that (a) plowing (the term it prefers over the nastier-sounding "deep ripping") can't constitute a point-source discharge for which a permit is required under section 404; (b) furthermore, "normal" farming activity of certain sorts is specifically exempted from permitting under section 404(f), and Borden says its activities fall within that exemption; and (c) anyway, even if it's wrong about the foregoing, the maximum fine should have been $25,000 because the whole episode of plowing should have been treated as one violation rather than many separate discharges under 33 U.S.C. § 1319(d). The Ninth Circuit's answers to these arguments are pretty good, I think – good enough to convince many people, and not far-out at all. And the Solicitor General has filed a pretty strong brief in favor of affirmance.

All in all, I say "AFFIRM" (including the possibility of "by an equally divided court") because I don't think that any of Borden's arguments are strong enough to get 5 out of 8 of the non-recused Justices. In general, the case should stand for the proposition that anti-environmentalists' rhetorical questions – like "how in the world could plowing constitute pollution????" – are not a good guide to interpretation of the precise and complicated provisions that the Congress enacted in the Clean Water Act.

posted by sam 3:53 PM 0 comments

Supreme Court

The first case for next Tuesday is a very complicated one about Congressional redistricting in Mississippi: Branch v. Smith. I can't find links on the free internet to the lower-court opinions; if you've got LEXIS or a law library, you can find relevant lower-court opinions at 189 F.Supp.2d 529 and 189 F.Supp.2d 548. The case raises a host of issues: some under Section 5 of the Voting Rights Act of 1965 (which forbids certain states and localities with a history of voting discrimination from implementing any change in voting procedures, until and unless that change has been "precleared" by the Justice Department), one under the Constitution, and another under a rather obscure federal statute about Congressional redistricting.

I am loathe to pretend to too much knowledge on these topics, when I know that Ed Still is probably reading; he knows more about this area of law than just about anybody. So if you see that he's disagreeing with me, you should probably believe him.

Long story short, in Southern states, redistricting after a census always involves (a) seeing whether the legislature will get its act together and enact a districting plan; and (b) seeing whether the Justice Department will "preclear" that plan; and (c) if either a or b goes awry, then there's a battle between those who want state courts to do the redistricting (in the current politics of the South in my experience, that tends to be Democrats) and those who want the federal courts to do it (currently, usually, Republicans) and (d) still the Justice Department's "preclearance" authority is a possible stumbling block for a plan adopted by a state judiciary.

Ok, now back to the case at hand. In Mississippi, the legislature didn't redistrict. A state court took jurisdiction and issued a plan, but the Justice Department refused to preclear it (actually, more precisely, sought more information about the issue and held off on announcing whether it would interpose an objection within the time period allotted by statute for DOJ review); and so the federal court, saying that the election was coming up soon and time was of the essence, imposed a different plan. Voters who preferred the state-court plan (call them, for ease of reference, "the voters", although there are voters on the other side of the case too) have appealed to the Supreme Court; and, as best I can piece it together, the folks who prefer the federal court plan have cross-appealed with a fall-back argument.

The voters, in order to overturn the federal injunction against the use of the state-court plan, seemingly have to convince the Court of BOTH of two things: that a state court can act on a matter of congressional redistricting, even though Art I. § 4 of the Constitution says that the state "legislature" should set the method of congressional elections; and that the DOJ's actions do not amount to a "failure to preclear" that would bar use of the state court plan. The first part of this has somewhat interesting echoes of Bush v. Palm Beach and Bush v. Gore, but I doubt that the Court will bar state courts from getting involved when the legislature defaults; thus the voters should clear this hurdle. As to the second part, the issues get somewhat complicated by the fact that the State has not appealed the injunction, and isn't trying to get the state-court plan precleared (the folks in power prefer the federal court plan). Does this mean that the federal court's plan will remain in force for the next ten years (barring action by the Miss. legislature)? Or should the DOJ be taken as having now having precleared the state court plan by failing to object to it within the time allotted to the DOJ by statute, such that the state court plan can and should be used in the next election cycle, even though the state officials apparently don't want that result? Complicated. My hunch is that the "right" answer is that the current election results will stand – and the decision below will be affirmed to that extent -- but that future elections will be done under the state-court plan rather than the federal court plan, meaning that reversal or vacatur of the injunction (in part) is the right answer. After all, the bottom line is that DOJ didn't object to it within the time allowed the DOJ by law. But will a majority of the Justices agree? Without any better clues, I make the hopeful assumption that they will do what I think is right without regard to whose political ox is being gored, and that they will therefore REVERSE in part, as to future elections. Maybe they will even say that the DOJ should get another chance to review and possibly object to the state court plan before it goes into effect for future elections? Complicated, complicated.

Maybe Ed Still will now post something informative about the case? If so, I hope that it doesn’t show that I am stunningly misinformed.

UPDATE: On thinking about this further, I think that there's a substantial chance that in fact the Court will dismiss the voters' appeal, saying that the voters have no standing to appeal the injunction, where the state itself did not appeal. See Diamond v. Charles. Oh, I don't know. Here's my revised prediction, written in pencil: dismiss the appeal, affirm on the cross-appeal.

posted by sam 7:24 AM 0 comments

Saturday, December 07, 2002

So Senator Lott's office was given a chance yesterday to explain what he might have meant by his comments yesterday (see below) other than vicious racism of the virulent 1948 variety -- and that office was unable or unwilling to give any substantive explanation. If the Senator has any capacity for shame, he should resign. See Atrios for some historical explanation. And by the way, Prof. Reynolds (Instapundit) is way too generous in suggesting that Senator Lott has apparently forgotten what Thurmond stood for in 1948; no one who pays attention to politics in the Deep South and is over 30 years old could possibly not know. Just call Senator Lott's comment what it is: the most unchanging, severe, extreme, overt, intentional racism.

posted by sam 7:18 AM 0 comments

Supreme Court

The second case to be argued Monday 12/9 is Washington Legal Foundation v. Legal Foundation of Washington (make your own joke about the parties' names). On the surface, this case is about the Fifth Amendment's "takings" clause, and property rights, and some narrow questions in that field. Just below the surface is that this is an ideologically- and politically-driven attack on funding for poor peoples' access to legal services, as well as being more generally a part of the ideologically- and politically-driven "property rights movement", which is a right-wing effort to have judges override the decisions of elected officials based on one part of the Constitution (its protection of "property") even when they decry the exercise of judicial power based on other parts of the Constitution. Read more from law.com if you're interested in the politics behind the case.

It has to do with IOLTA: in many states, the Interest on Lawyers' Trust Accounts (the accounts in which lawyers briefly put the money that is going to their clients) is sent to the Bar Association or similar entity and then used for designated purposes, often for legal services for poor people. Some people think that this amounts to an unconstitutional "taking" of that interest that would violate the Fifth Amendment. The Supreme Court heard a case in this field a few years ago, deciding that the interest did indeed constitute "property"; but it did not decide, then, whether this meant that funneling the interest to the state constituted a "taking" or whether there could be a remedy for it. Now these remaining questions are presented for the Court's decision.

The Ninth Circuit rejected the attack (i.e., ruled in favor of the program) in this opinion (pdf). What will the Court do? You can't predict this one, I think, based on a hunch as to who's right and who's wrong; there are plausible arguments on both sides so it comes down to those darn intangibles and could very well be a close decision. Here's the pro's and con's:

* In favor of reversal is the fact that this was a decision of the Ninth Circuit, and one that is generally categorizable as "liberal." Such decisions don't tend to be affirmed by this Court. (But see counter-example in next para. below). Also in favor of reversal is the fact that the Court (these same 9 Justices) ruled in favor of the IOLTA-haters last time, and (remember the quote I mentioned a few weeks ago from Chief Justice Hughes about predilections) this tends to suggest, other things being equal (which they never are), that they'd do the same again this time.

* But in favor of affirmance is this crucial fact: when push comes to shove, this Court is sometimes reluctant to accept the arguments of the "property rights movement" folks. Here's an example, and sort of a funny one, I think: In his dissent in this case, the very smart pro-"property" Judge Kozinski accused the Ninth Circuit majority of once again "ignoring" Supreme Court property-rights precedent; the other example of such "ignoring", he claimed, was a then-recent case about development at Lake Tahoe, which he described as also quite obviously contrary to the Supreme Court majority's view. But shortly after Judge Kozinksi made that rather harsh accusation, the Supreme Court agreed with the Ninth Circuit in the Tahoe Case, and rejected Judge Kozinski's reading of precedent. Maybe they’ll do the same in this case.

* Finally – and here I'm either saying something clever or something stupid, I don't know which – I can't figure out a reliable limiting principle by which the Court could rule for the IOLTA-haters in this case yet allow such things as sales taxes (which amount to a taking of my property!) and income taxes (which amount to a taking of my property!). Sure, one could argue that IOLTA interest is in some metaphysical sense "identifiable" money while taxes are "undifferentiated" money – but money is money is money, I think, and so a "takings" jurisprudence that forbids the government from taking private money for public purposes would be a monster hard to contain. Maybe that's the IOLTA-haters' real goal – to unleash that monster?

How does this come out? It's close. I'm saying "AFFIRM."

posted by sam 7:07 AM 0 comments

Friday, December 06, 2002

It seems highly unlikely to me that there is anyone in the universe who reads this blog, and is interested in law, yet does not read Jeff Cooper regularly. If there is such a person, please be advised that you should go read his post about "judicial activism" and the conversation that Nathan Newman started re same.

posted by sam 6:49 PM 0 comments

I do understand the virtue in saying nice things about people who reach the age of 100 yrs old, even if you don't agree with their politics -- particularly if you can find something that you like about the person, leaving aside the politics. But that virtue does not explain Trent Lott's praise of Strom Thurmond yesterday, as reported by ABC News (via Atrios), which -- if his words are taken to mean what they say, which is the way I approach people's words unless proven otherwise -- means that Trent Lott thinks that the country would have been better off if the overtly racist Dixiecrats had prevailed in 1948 rather than Truman. Then, says Lott, we wouldn't have had "all these problems over all these years".

UPDATE: I keep thinking about this and wondering what Senator Lott would say he meant, if pressed about this. Even if you take his statement at its most minimal -- as a regret that Truman was President during 1948-1952 rather than Thurmond -- what does Senator Lott think that the executive branch did during those years, or didn't do, that is responsible for "all these [what?] problems over all these years"? Is there any plausible answer, other than that Senator Lott wishes that the Dixiecrats' stance on race had prevailed?

posted by sam 1:55 PM 0 comments

Supreme Court

First case on the docket next week is Boeing Co. v. U.S.. It's a tax case. The case is apparently worth more than $400 million to Boeing, in a tax refund that it will get if successful. Cynical note: Maybe the government should invoke the "war on terrorism" defense – after all, if invoking the "war" is good enough reason to deny a total of billion dollars or so in expected raises to thousands upon thousands of government employees (as the President decided, the other day), maybe the "war" is likewise a good enough reason to deny about 2/5 of that amount to a single corporation. Yes, I recognize that tax law doesn't work that way. Neither should the federal government's employment policies, especially in light of the Administration's tax policies, which are costing lots lots more than that now-denied raise. But I digress.

I will now let you in on a secret about myself: I know absolutely nothing about corporate taxation. And another secret: I don't really care very much. So, for the first time all Term, I am not even going to spend the time necessary to figure out what the issue is, much less how it will probably come out. If you want to read up on it yourself – a course of action that I don't recommend unless you’re a tax lawyer or a law student taking Tax – here's (pdf) the Ninth Circuit's decision, and here's the government's brief.

How do you predict an outcome when you don't understand the issues? Easy: you say "pro- reversal is the fact that it's the Ninth Circuit, plus the Supreme Court reverses most cases on which it grants cert. Pro-affirmance on the other hand, is that the federal government won below, and the federal government wins more often than not." Add them up, and I come out weakly saying "REVERSE". My apologies to all of those who are interested in the minutiae of the law of corporate taxation.

posted by sam 11:43 AM 0 comments

Thursday, December 05, 2002

Not much blogging today. (Though I did post another comment over at Nathan Newman's ongoing discussion about progressive politics and judicial review).

Mostly playing in the nice snow.

And writing a brief, on a topic that is worth a little post here for those interested in law. First, if you're interested, read the Supreme Court's decision in Village of Willowbrook v. Olech (2000), which -- to my eye, and I think to the eye of nearly every reasonable observer -- holds that you can have a successful equal protection claim even without proof that the government actor who treated you arbitrarily, was doing so for identifiable subjective bad reasons. Then read cases from the Seventh Circuit, which seem to me to be overtly violating this holding, continuing (by what I consider to be a very strained reading of Olech) to require the proof of impermissible motive that the Supreme Court clearly (at least to my eye, and the eyes of scholarly commentators) said wasn't required. (E.g., Hilton v. Wheeling). Maybe Howard Bashman can explain how this fits into his theory that nearly every case at the appellate level has a rather clear answer that doesn't depend on the politics and leanings of the appellate judge? Even if you don't think, as I do, that the Seventh Circuit is quite obviously violating the holding of the U.S. Supreme Court, at the very least you've got a question where many many reasonable people could disagree with the Seventh Circuit, on an important question as to the nature of our relationship to our government -- and a question on which judges of some "leanings" would be more likely to agree with me, and some less so.

posted by sam 11:26 AM 0 comments

Wednesday, December 04, 2002

Constitutional Law

Nathan Newman's got a provocative post arguing that progressives -- and gay rights advocates in particular -- would be better off if the Supreme Court doesn't overturn Bowers v. Hardwick in a few months, because (in paraphrase, long story short) a constitutional-law victory in the Supreme Court merely encourages political mobilization by the opposition while detracting from the political mobilization of the supporters of the right in question. It's a tenable position, that others have taken before and I've said then that there's something to it; but in the end I think it's probably not right. Here's some reasons why.

First of all, I see the folks on the Right having no such troubles -- no boomerang effect, to speak of, from their adventures in pushing the envelope of developing new affirmative rights in constitutional law. Their "property rights movement", their "reverse discrimination/anti-affirmative action" claims, their McConnell-led "equal protection for the religious" strategy, their race-and-voting-rights theories, all have had some substantial success without any boomerang effect that I can discern. So if progressive court victories are sometimes followed by stronger regressive-politics, the fault lies in our political leaders and ourselves rather than in the courts or the litigators.

Second, there are plenty of counterexamples of progressive-led constitutional rights that have not generated backlash, at least not in proportion to the good the decisions have done. Some of the early race decisions of the 1940s and 50s are classic examples, but there are more. For instance, the decisions regarding First Amendment rights of public employees, to speak their minds (at least a little) without being fired. So the task -- beyond me, right now -- is to figure out how to make further victories fall into the "no backlash" category, politically.

Third, Nathan does not live in Alabama, or Texas, or similar states, I think. It will be a long long time before gay rights take hold, legislatively, in a place like Alabama. And telling a potential litigant there that he should forego filing a cert petition to establish a simple and basic right because it might, if successful, have an indirect negative impact on the ability of other folks in other states to get even further rights -- that's a hard sell to the guy in Alabama.

Still, there may, just maybe, be something to what Nathan's saying ...

posted by sam 7:44 AM 0 comments

Tuesday, December 03, 2002

I had tried to formulate a post, the other day, that tied together Harry Potter and John Rawls. It turned out lame, and I deleted it. Fortunately, the blogger whom I'd never read before (but found courtesy of Ampersand & Sisyphus) at Long Story, Short Pier did a tour de force along those lines. And in the comments on that site, you can see my own crackpot theory, which is not nearly so erudite as others' recent musings about the philosophy of Harry but does have the virtue of being kind of neat, I think.

posted by sam 3:51 PM 0 comments

Monday, December 02, 2002

Supreme Court

Expect some decisions in some relatively boring little cases tomorrow -- what some Justice or another used to call "peewee" cases, if I'm remembering correctly.

As you certainly know by now, the Term got a lot less peewee today with the grant of cert in the U. Mich affirmative action cases, as well as the sodomy case that might result in the effective overruling of Bowers v. Hardwick. (I say "effective overruling" rather than "flat-out overruling" because the arguments in this case are somewhat different to my understanding). The cert. grant in the sodomy case is either (a) great news, given the Sam Heldman theory that the quasi-liberal Justices are smart enough to vote for cert only if they're pretty sure they can put together a majority on the merits; or (b) a risky departure from this practice. (What's the risk, you ask? How could it be worse than it is now, from the point of view of those like myself who think that Bowers was an outrage? The answer is that a decision this year reaffirming Bowers could mean that it will be decades before this set of issues is revisited again, and Bowers will be harder then to overturn having been "repeatedly reaffirmed" -- and a strategic lets-wait-a-few-years-before-trying-to-overrule-it would then seem in hindsight to have been wiser litigation strategy.). You know what they say about hindsight, though; and I hope it's clear that I am not second-guessing the litigation strategy here, and have high hopes for the outcome in this case.

On the U. Mich. cases, you will in due course be treated to an expanded explanation of my theory of affirmative action in higher education, which is based on one core principle: if you've got a test or series of tests that tends to suggest that white folks are disproportionately "deserving of" or "suited to" a college education, then the test clearly isn't measuring what it ought to be measuring, because I take it as a basic truth that white folks in fact do not disproportionately deserve the good stuff that society has to offer; and correcting for that flaw in the testing system is commendable rather than invidious.

posted by sam 6:56 PM 0 comments

Supreme Court

The final case for the upcoming week is Chavez v. Martinez. This is the case that has been much-discussed in the blog world, as to whether it will result in an "overruling" of Miranda, whether it will allow the authorities to torture suspects, etc. It's going to be pretty bad, but not quite that bad.

Here's the deal: Martinez was shot by the police several times. So what did Sergeant Chavez do, as Martinez lay in the hospital receiving emergency treatment? Something helpful, you might hope? Think again: he coercively interrogated Martinez. Not only did Chavez omit any Miranda warning; as the court below described the scene,

As emergency room personnel treated Martinez, Sergeant Chavez began a taped interview. Chavez did not preface his questions by reciting Miranda warnings. The interview lasted 45 minutes. The medical staff asked Chavez to leave the trauma room several times, but the tape shows that he returned and resumed questioning. Chavez turned off the tape recorder each time medical personnel removed him from the room. The transcript of the recorded conversation totals about ten minutes and provides an incontrovertible account of the interview.

Sergeant Chavez pressed Martinez with persistent, directed questions regarding the events leading up to the shooting. Most of Martinez's answers were non-responsive. He complained that he was in pain, was choking, could not move his legs, and was dying. He drifted in and out of consciousness. By the district court's tally, "[d]uring the questioning at the hospital, [Martinez] repeatedly begged for treatment; he told [Sergeant Chavez] he believed he was dying eight times; complained that he was in extreme pain on fourteen separate occasions; and twice said he did not want to talk any more." Chavez stopped only when medical personnel moved Martinez out of the emergency room to perform a C.A.T. scan.

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And there's a Supreme Court precedent, almost precisely on point, holding that a hospital-bed statement couldn't be used against the defendant, not even in impeachment of his testimony, under the Constitution.

So you'd think that the Supreme Court would readily affirm the Ninth Circuit's decision (pdf) holding that Martinez had a viable claim against Chavez for violating his constitutional rights, right?

Wrong. Because although it's clear that the government couldn't use at trial a statement that was obtained in this way, it's somewhat less clear whether the Constitution simply forbids the Government from obtaining a statement in this way.

The Ninth Circuit held (in this case, and in prior cases that the judges in this case followed) that under these circumstances there is a constitutional violation in the questioning itself. In order to get affirmed, Martinez has to convince the Court of two things: (1) that the Ninth Circuit was right about that – that there's a constitutional deprivation in the questioning itself, not just in the use of statements at trial; and (2) that the existence of that constitutional right not to be questioned under these circumstances -- as distinct from the right not to have statements used at trial – was "clearly established" so as to overcome Chavez's "qualified immunity."

Here, let me disagree a little bit with Howard Bashman, who says that this is "simply" a qualified immunity case and can't really result in doing away with Miranda. I think that the possibilities are worse than Howard suggests, because in a qualified immunity case this Court has said that you must first decide whether the constitutional right exists, and can't skip over that step and just say "if it exists or not, it's not clearly established right now." So there is a substantial possibility, I think, that the Court will say, in effect, "no, Martinez's rights weren't violated at all, because the statement was not used at trial." This would mean, in simple terms, that you DON'T have a "right to remain silent" – the police CAN coerce you into talking, at least if the State is willing to forego using the statement and any resulting evidence at trial. This wouldn't really directly overrule Miranda, but would make "you have the right to remain silent" a pleasant lie or at least gross oversimplification.

Even if there aren't five Justices to go that far, I doubt seriously that Martinez can win on the "qualified immunity"/"clearly established" part of the case. Qualified immunity is a judge-made doctrine that shields government officials from being sued for violating your constitutional rights unless the constitutional right they violated was so clear that any fool could have seen it. It's based on a silly fiction that police officers, mid-level managers in government offices, and all other public employees, are reading and understanding all the legal decisions as they are issued. It needs to be abolished. But it won't, and for now it's a very strong protection. Strong enough, at least, that if (as here) a Sergeant's lawyers can piece together just a plausible argument that he wasn't violating the suspect's rights, based on Supreme Court musings in other cases, he can probably win based on qualified immunity. So I'm saying REVERSE.

This means I've predicted reversal in all 6 of this week's cases, for whatever that's worth.

posted by sam 7:36 AM 0 comments

Sunday, December 01, 2002

Supreme Court

Wed 12/4's first case is Operation Rescue v. NOW. The 7th Circuit's decision – affirming a judgment (including an injunction) against Operation Rescue's attempts to shut down clinics – is here. This is a good case to train your legal mind to ignore the fact that it's Operation Rescue we're talking about – if you love O.R., imagine that the group is one that you hate, and vice versa. It may help, in this, to know that PETA is on Operation Rescue's side as an amicus.

The case has been to the Supreme Court before on another set of questions, and now it's back with two questions (in my paraphrase): (1) Can a private plaintiff get an injunction under the RICO Act, or does the right to seek an injunction under that statute belong only to the Attorney General? (2) Does "extortion" of "property" under the Hobbs Act include an attempt (by force, violence, or fear) to shut down someone's business for political reasons – or is it limited to attempts to "obtain" property in a more traditional sense of "gimme that property, I want it"? The Seventh Circuit said "yes, private plaintiffs can get an injunction; and yes, this stuff constitutes extortion."

The Government, as amicus, agrees with Operation Rescue that private plaintiffs can't get an injunction under RICO, but can only get an award of monetary damages. This position strikes me as clearly wrong, based on the reasons that the Seventh Circuit gave. The government and Operation Rescue do have one pretty good argument on this point, though, based on an analogy to the antitrust laws. A rather boring argument, but a pretty good one – not good enough to convince me, but maybe good enough to convince others.

The Government is against Operation Rescue on the other question, saying that these acts do constitute extortion within the meaning of the Hobbs Act. I've got serious qualms about that, both as a matter of statutory language (long story short, extortion is the "obtaining" of property by wrongful means, and I think that even if the right to run a business is "property," if your goal is to destroy rather than to take over the business, that doesn't constitute "obtaining" under any definition of the word that I'm familiar with) and as a matter of policy (remember: what can be done to Operation Rescue this time can be done to an organization I agree with next time, if a prosecutor comes to believe that the organization authorized acts of violence to shut down a business).

I'm going to say REVERSE without saying on which question the Court will reverse; in my Supreme Court prediction game, "reverse in part" constitutes a reversal so I can win without calling my shots. Both the U.S. and I think that the Court should reverse on one of the questions, though we differ as to which one. We can't both be wrong, can we?

posted by sam 3:04 PM 0 comments

Saturday, November 30, 2002

Supreme Court (II)

Tues 12/3 brings a case arising under the Fair Housing Act, 42 U.S.C. § 3601 et seq. The case is Meyer v. Holley, and the Ninth Circuit's decision (pdf) is here. The question is, who is liable for race discrimination in real estate sales? Just the racist agent who directly committed the discriminatory act? The Ninth Circuit, relying on a HUD regulation, said that liability goes beyond that agent, and attaches not only to the corporation that employed the agent but also to the agent's boss, because he owned the corporation and had the authority to control the agent's actions. The boss as Petitioner – along with the United States as amicus – says that allowing the imposition of liability on an individual corporate officer/supervisor goes beyond the intent and language of the statute, beyond the intent and language of the regulations, and beyond the normal boundaries of what the law usually allows. I'm predicting that the Court will agree and REVERSE for one simple reason: they wouldn't have taken the case unless they wanted to reverse. There's no split in the Circuits as far as I can tell – quite the contrary, in fact, it seems from reading the Ninth Circuit's opinion and the government's amicus brief – and no real burning need throughout the nation to have this issue addressed by the Supreme Court, so there's no reason why the Court should have taken the case except that it has "liberal Ninth Circuit, let's reverse 'em again!" written all over it. You could say, I suppose, that it only takes four to grant cert so this only proves that there are four who wanted to reverse (or maybe three and one who went along for the ride) and that Justice O'Connor might provide a fifth vote for affirmance; but I think that these Justices have been working together long enough and are good enough at counting each other's noses that they don't tend to grant cases without a Circuit split unless the Justices who want to reverse are sure that they can get the votes to do so. This is the same dynamic I've talked about before as to the juvenile death penalty issue; you don't provide the fourth vote for cert unless you're pretty confident that your view will prevail on the merits, because (at least where there's no split in the Circuits) a Supreme Court decision with which you disagree is usually worse than no Supreme Court decision at all.

By the way, for those millions of you following this case closely, the U.S. does say – even though it disagrees with the Ninth Circuit's theory – that a remand would be appropriate to allow plaintiffs to pursue a theory of "piercing the corporate veil". Thus the U.S. styles itself as being on Respondents' side and asks for "affirmance" of the Ninth Circuit decision to remand the case. I doubt that the Court will address the "piercing" point, and certainly guess that – even if the Court wants to allow further proceedings on that – it will call itself "vacating" or "reversing" the Ninth Circuit's decision rather than "affirming" as the U.S. would have it.

* * * * * * *

The second case for Tues 12/3, Wash. State Dep't of Soc. & Health Svcs. v. Guardianship of Keffeler comes from the Supreme Court of the State of Washington. The case involves kids who are receiving Social Security benefits who are in foster care. More precisely, the state agency sometimes gets itself appointed as "representative payee" for those benefits – i.e., it receives the check on behalf of the kid when no one else has gotten appointed to do so – and then the agency pays itself back, out of the kid's benefits, for the payments it gives the kid's foster parents. The Wash. S.Ct. said that this violates the federal Social Security law, which says (in paraphrase) that a kid's creditors can't take his benefit payments. The State (supported by the U.S. as amicus), on the other hand, says "That doesn't make any sense. If a kid's natural and custodial parent was the representative payee, the parent could use the kid's benefits to pay for her food, clothes, and whatnot. We're just doing the exact same thing!"

This is a hard case, I think – hard mostly because the state agency isn't really using each kid's benefits to pay for that kid's favorite cereal, or shoes with pictures of Bob the Builder on them; instead, it's reimbursing itself according to an across-the-board schedule. So the State's analogy of itself to a parent is far from perfect, even leaving aside the emotional factors. And whichever way the case comes out, it seems like there will be some inequality in how various kids are treated; some foster kids' benefits will be gobbled up to pay for necessities, and other foster kids' won't, depending on who their "representative payee" is. A mess.

A total shot in the dark: the Court will REVERSE.

posted by sam 6:09 AM 0 comments

Supreme Court (I) Courtesy of the Goldstein Howe ScotusBlog, this ABC News/AP report on the White Mtn. Apache Tribe and Navajo Nation cases discussed below. The report says that a win for the Navajo Nation would be a $600 million "windfall". I had always thought that the word "windfall" had the connotation of something undeserved; if I'm right about this, then that implicit assertion of undeservedness, without any facts or legal argument to back up the assertion, is awfully lame news reporting. But the dictionaries around here say that "windfall" denotes merely unexpectedness; and so to call a win for the Navajo Nation a "windfall" would mean that ABC/AP is glibly betting heavily that the Supreme Court will reverse the Nation's victory in the lower court. Mostly, though, this probably just means that the writer was using the word "windfall" to mean only "wow, that's a lot of money!"; and the lesson here, a good one for all of us who write for public consumption, is "don't use a word unless you know what it means."

posted by sam 6:02 AM 0 comments

Friday, November 29, 2002

A musician friend told me, just before dinner yesterday afternoon, about CD Baby, an online music store for independent (i.e., artist-produced, not label-owned) music. He reports that, from the artist's point of view, this is a reliable and helpful company. Its website is well designed, and its selection is broad. This sort of thing, not napster-limewire-whatever, is (in my opinion) the real artist-friendly future of music on the internet. Yes, it requires you to pay money for the cd, and a great deal of that money goes to the artist. I'm for it.

And -- on the other topic of discussion before dinner -- Henry Kissinger's appointment to the 9/11 commission is the equivalent of an "in your face, you impotent little nothings, we can do whatever we want and get away with it!" to those who pay attention to the news and to history. It's a grotesque triumphant dance of the currently-powerful, designed largely to make the opposition feel marginalized and disheartened. It's almost working on me.

posted by sam 8:40 AM 0 comments

Supreme Court

Arguments start back up the week of December 2 – 12 cases to be argued over the next two weeks – and there are many that will be (for me at least) hard to predict.

December 2 brings two "Indian law" cases. If you want to skip over the nuts and bolts of the legal stuff, and go straight to my little rant, skip to the last paragraph.

Both of these cases present variants on the question whether a tribe can sue the United States for monetary relief, when the U.S. was allegedly supposed to be acting as a trustee for members of the tribe but ended up (imagine that!) screwing them. In both cases, the U.S. Court of Appeals for the Federal Circuit – a specialized appellate court that hears an odd variety of cases including certain claims against the government – said that the tribe could sue the U.S. for monetary relief.

In the first case, U.S. v. White Mtn. Apache Tribe, the U.S. was supposed (by statute) to be holding some real property (Fort Apache) in trust for the Tribe. But the U.S. let the buildings on that property fall into disrepair; some were condemned and demolished. The Tribe says it would cost $14 million to repair the place, and sued for that money. This case requires the Court to look back to its own opinions in U.S. v. Mitchell I and II. Under those opinions, the fact that the government holds property in trust for Indians does not mean, ipso facto, that the government is required to manage the property, or that the government can be held monetarily liable for failure to manage the property properly. Beyond the establishment of the trust, there has to be something else in order to allow a monetary claim like the ones brought in these cases. What that 'something else" is, is the millions-of-dollars question.

My guess is that the Court will hold that the "something else" that is needed to justify a monetary award in a case like this is not just the governmental right to control the use of the property (which is essentially what the Federal Circuit held), but, beyond that, a clear statutory directive that the government must manage the property for the monetary benefit of the beneficiary Indians. That sort of clear statement is lacking in White Mtn. Apache and so I say "REVERSE."

In U.S. v. Navajo Nation, what's at stake is bigger: hundreds of millions of dollars in royalty payments for mineral extraction from Indian lands. The allegation is that the government was required to act in a fiduciary capacity towards the Indians in setting the royalty rate, but that the government was in fact acting more in the interest of Peabody Coal and royally screwed the Indians whom it was supposed to be protecting. Here again, what we're looking at for guidance is Mitchell I and II. The plaintiffs' arguments have a great appeal: if the government is supposed to be acting in the best interests of the Tribe in this context, and it instead intentionally screwed them, that's an outrage. But I think it's more likely that this Court will take hard-nosed approach: "Don't give us that touchy-feely generalized abstract stuff about 'supposed to act in the best interests of the Tribe'; If you want $600 million from the U.S., you'd better show us a statute that clearly imposes on the U.S. the duty to do what you say it should have done. And we don't see any such clearly-applicable clearly-worded statute, so you're out of luck." So I'm saying "REVERSE" here too.

My little rant is not just that – if things go the way I expect – this will once again be a triumph of the more powerful over the less powerful. It is that, even while the Court portrays itself as doing the least "activist" part of its job – "we're just meekly doing our best to interpret the statutes that Congress drafted!" – there is much room for the Court to "actively" create the governing law, by (for example) saying "it's not clear that Congress meant 'x', and we would need a very clear statement to that effect before we would interpret the statute as meaning 'x'." As you can see above, I expect that sort of argument to carry the day in these cases. And so the lesson today is, don't think of such rules as being neutral, mild-mannered, self-effacing ones on the judiciary's part. Those rules can be – not that they always are, but that they can be – the vehicle by which judges make sure that statute-based cases come out the way they think the law "ought" to be.

posted by sam 7:53 AM 0 comments

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