(The Return of) Ignatz, by Sam Heldman

Monday, March 31, 2003

music and politics
In case you like your anti-Bush, anti-war, sentiments mixed with hip downtown rock music (as I do), there are free mp3s from many good artists (and apparently more to come every day) at Protest Records. (UPDATE: The site seems to be down now, as of about noon Eastern on Tuesday. Probably overloaded with people clicking from Atrios or something. Anyway, it's well worth checking back later.)

posted by sam 9:13 PM 0 comments

Supreme Court predictions

Time to go public with my prediction on the U. Mich. admissions cases, to be argued on Tuesday: Grutter (law school) and Gratz (college). The U. won both cases below; its admissions policies were upheld. I won't take the time to give you all the links to lower court decisions, etc.; you can get that, and much more useful information, from Goldstein Howe, and you can get all the links to news reports and op-eds that you can stand at How Appealing.

Call me crazy if you wish -- and I do recognize that my relative success in these predictions could come crashing down around me in late June if not sooner -- but I'm betting on a split outcome, AFFIRM in Grutter (i.e., uphold the law school plan) and REVERSE in Gratz (i.e., strike down the college plan). The difference is in the facts as to what the policies are. To oversimplify, the college plan is more like a mathematical formula with a "plus" for minority, and the law school plan is more nebulous. (You can find the policies, linked in the first paragraph of a previous post of mine here).

Here's my reasoning -- and I swear that I had formulated it even before Howard Bashman mused in the direction of the first step of the reasoning here late last night. The key is that Justice O'Connor -- who is, everybody knows, the deciding vote here -- needs to get a majority that she can write for, rather than just providing the fifth vote for a bottom-line result and an idiosyncratic concurring opinion for herself alone. Why does she need that? So that her vote in these cases will actually mean something, rather than just being a placeholder that will last only as long as it takes for the issue to reach the Court again in two years after she has retired. Being human, she won't want to be irrelevant on this issue; so she won't want law students to say, twenty years from now, "did you know that there was actually a case between Bakke and the decision in 2005 that outlawed race-conscious acts forever, but the case was such a muddle that nobody knew what its holding was?"

The next step is my belief that Justice O'Connor doesn't think that all consciousness of race in university admissions is unconstitutional. I cannot be certain, but that's my bet.

The next step is my belief that there's no way that C.J. Rehnquist, and Scalia and Thomas, JJ., along with Kennedy, J., are all going to sign on to a namby-pamby opinion that allows some use of race-conscious admissions policies but strikes down these particular ones. At least some of those Justices won't go along; so Justice O'Connor can't write for a majority in that direction, at least not if she wants to actually settle these questions somewhat broadly. (Maybe she could write for a conservative majority, if she was willing to say "maybe some race-conscious policy would be ok, but we don't decide that broad question today"; but that, too, would simply provide the opening for Scalia et al. to take a case again in a couple of years, when Justice O'Connor has been replaced by a Bush appointee, and say "the answer to that question left open in Grutter is, NO. NEVER." Again, O'Connor's play here is to fight irrelevance of that sort.)

So Justice O'Connor has to go with the "liberals" in at least one of the cases in order to write an opinion that settles anything (if, as I presume, her way of settling things is not to say "NO AFFIRMATIVE ACTION IN ADMISSIONS"). And I think that the more likely candidate is the law school case, because it's more like the somewhat nebulous "Harvard Plan" that was more or less approved in Bakke. The college plan, though, will be struck down. I think it possible even that the quasi-liberals and Justice O'Connor will avoid the constitutional issue in the College case by saying that the college plan violates Title VI as written but could be made ok with a little tweaking. In any event, AFFIRM Grutter and REVERSE Gratz.

posted by sam 6:23 AM 0 comments

Saturday, March 29, 2003

S.Ct. predictions
The U. Mich. cases are to be argued on Tuesday, but I can't bring myself to predict the outcomes on those cases yet. So I skip over to Wednesday, which brings Breuer v. Jim's Concrete, a relatively simple case asking whether a defendant, sued in state court under the federal Fair Labor Standards Act, can remove the case to federal court. Why does this matter, you ask? Because every lawyer and every litigant is a cynic, just like me: they know that their chances for success will likely depend in substantial part on what courtroom they're in, and what judge they are likely to get, and where the jury pool is drawn from, and who's sitting on the appellate court that will hear an appeal, and so they fight fight fight over the issue of where they will fight. (And also there are sometimes procedural differences between state and federal court that make a party prefer one or the other).

The basic rule for nearly all federal statutes (more precisely, for those that allow private lawsuits to enforce them) is that if the plaintiff files suit in the state court, the defendant(s) can remove the case to federal court. This is a matter of 28 U.S.C. § 1441(b), and § 1331, if you're really interested. But rarely, the Congress enacts a federal statute that provides for a type of lawsuit, but provides that such suits can't be removed to federal court. The FELA – a workers' injury statute for railroad workers – is an example of this rare phenomenon. The question here is whether the FLSA is, too. The argument from the plaintiffs who want to avoid removal (that is, who want to stay in state court) is that the FLSA says that suit can be "maintained" in state court; and that word "maintain", they say, means "keep it there even if the defendant doesn't want it there." This argument convinced one circuit some decades ago, once, but doesn't convince most other courts. So there's a conflict among the lower courts, and the Supreme Court has finally decided to resolve it. The Eleventh Circuit held that FLSA cases are removable just as most federal-law suits are. All I can tell you is that the Supreme Court will AFFIRM, saying that if the Congress meant to make an extraordinary departure from the ordinary rule of removability it would have been a lot more direct and clear about it (as it has been in other instances), rather than just using an ambiguous word like "maintained". I'll be quite surprised if I get this one wrong.

posted by sam 6:40 AM 0 comments

Owen, Estrada, and precedent

Just in time to let me beat a dead horse a little bit more, comes Byron York in the National Review, offering a perfect example of the hypocrisy that I discussed in the post immediately below. York says disapprovingly that the filibuster of Estrada is "unprecedented", and then says in the same post that Democrats are wrong to object to the renomination Owen on procedural grounds, because (he says) "that argument has no actual merit — measures that die in one Congress have often found life in a later Congress after a change in party control." (Link to the irksome York thanks to Hasen and Bashman).

Come now. If the filibuster of Estrada can be called "unprecedented" in any sense, it is a sense in which the universe of relevant precedent is limited to the prior nominations of appellate court nominees, and nothing else -- a universe not including prior Supreme Court nominations (see filibuster of Fortas) and not including other sorts of Senatorial business (see countless filibusters of legislative matters in the last 200 years). So, that must the universe of precedent to which York is appealing. But then, fooling only those who aren't paying attention, he swiftly and silently shifts to a different universe of precedent in order to justify the renomination of Owen: to a much larger universe that includes not only judicial nominations (his old narrow universe, that includes no precedent for this renomination) but every sort of "measure" that the Senate considers. Irksome. Beyond irksome: BAD. Bad York. You're in time out, until you can say that you're sorry. (See also Prof. Hasen's post pointing out that York is further ridiculous in suggesting that Democrats should cave on judicial nominations because of war in Iraq.)

posted by sam 6:14 AM 0 comments

Friday, March 28, 2003

A little more on Owen
Prof. Hasen, at "Election Law," has a post about a potential filibuster of the Owen nomination, picking up on my post earlier in which I had connected the Estrada filibuster and the Owen re-nomination. In case I wasn't clear enough before, I will say the following things directly:
(1) My opposition to Owen is not rooted in the procedural point that this is a re-nomination. I have been strongly against her nomination since I first learned about her record, many months ago.
(2) I agree with Prof. Hasen (at least with what I understand him to be saying) that ideological opposition is sufficient grounds for a filibuster, without the necessity of any further justification in procedural points (such as "her nomination was already voted down once" or "he (Estrada) didn't answer enough questions".) In fact, my opposition to both of those nominees is rooted in ideology, and in my beliefs and expectations as to how their ideology (as I infer it to be) is likely to be manifested on the bench. I think that this is perfectly legitimate. I think that much Republican opposition to Clinton judicial nominees was procedurally legitimate, too; I just think that the Republicans' ideology was wrong then, and is wrong now. "Wrong", in this sense, means a lot of things, and I recognize that it is a matter of belief, value, and opinion rather than fact.
(3) I recognize, but do not like, the fact that many Senators feel that the institutional traditions of the Senate, and their own relationships with their constituents, make it easier for them to justify opposition to a nominee if they can portray it as being based on something other than ideology. I wish that the dominant style of political discourse was one that allowed, and even rewarded, the no-nonsense invocation of explicitly ideological factors as the main reason for opposing judicial nominations that deserve opposition. But we're not there yet.
(4) I also recognize that some Senators have so internalized this institutional pressure to base their positions on procedural factors, rather than pure ideology, that those Senators actually believe that their opposition is based on procedural factors. So, I don't lambaste Senators who adopt those rationales; and so (for instance) I won't spend any energy telling any Democratic Senator that it is illegitimate to oppose Owen on the grounds that she's already been rejected once. This "second bite at the apple" factor may seem like a big deal to some Democratic Senators, and may even be enough to sway some moderate Republican Senators -- and if that's what floats their boats given their knowledge of the Senate's history and traditions, I have no factual or legal basis to tell them they're wrong for feeling that way.
(5) My own feeling is that whatever the Rules allow Senators to do in supporting or opposing judicial nominees, is fair; and when I say "Rules" with a capital "R", I mean the Senate Rules and Committee Rules, not just the arcane unwritten and unclear and malleable protocols of Senatorial dancing. So, if there's nothing that says that the Senate won't consider a nominee that it's already rejected once, then I myself have no procedural objection to it. Similarly, there's nothing that says a filibuster is illegitimate; so it's legitimate. What's not fair game is Senator Hatch's proclivity for literally breaking or changing the Rules when it suits his purposes. See my earlier post today, linking to a statement by Senator Leahy pointing out another exercise of this proclivity.
(6) I've said it before, and I'll say it again: judging is not all politics, not even mostly politics. But judicial selection is all politics, pure and simple.

It occurs to me now that nobody was wondering what I thought about these points. But one good thing about having a blog is that writing these things down can clarify in my own mind what I think. So now we know.

UPDATE: (7) So why did I make the connection, in the first place, between the unprecedented nature of the renomination on the one hand, and the Estrada filibuster on the other? Because it irks me greatly when my opponents say "the thing you're doing is unprecedented and therefore bad" while trying to do unprecedented things themselves. It would irk me greatly even if they were correct that my thing -- the Estrada filibuster -- was unprecedented; then we would have hypocrisy on their part as to the importance of whether something is unprecedented. It irks me even more when they are factually wrong in their charge that my thing is unprecedented. I am, by the way, not thinking of any blogger on my list as my opponent in this; as far as I can tell, the bloggers on my list don't use lame arguments like the ones I'm criticizing.

posted by sam 8:27 PM 0 comments

S.Ct. predictions

The second case for next Monday is Stogner v. California. Stogner was charged in 1998 with child molestation, occurring between 1955 and 1973. During that '55-'73 time frame, and for many years after, California's statute of limitations applicable to such charges was three years. However, well after three years had passed since these (alleged) crimes, the State changed the statute of limitations, and provided that charges could be brought at any time within a year after the complainant came forward to police, even if (as in this case) that took place a long time after the molestation. The question is whether this after-the-fact extension of the limitations period – coming after Stogner could have (if he had thought about it) rested comfortable in the assurance that the limitations period had already run – violates the U.S. Constitution, either the ex post facto clause or the due process clause. Here is the California appellate court's decision, ruling against Stogner. Here is an old post from the Volokh Conspiracy, quoting something written by Marty Lederman about the ex post facto issue, which helped me greatly in figuring out this case. (Marty is now part of the SCOTUSblog crew.)

First, let's take the Ex Post Facto issue. Our guidepost here is the decision a couple of years ago in Carmell v. Texas, in which the Supreme Court – by a very unusual 5-4 lineup – held that a Texas statute violated the Ex Post Facto clause. As you can see from the Carmell opinion, the Court's analysis of the Ex Post Facto clause treats a passage in the 1798 opinion of Justice Chase in Calder v. Bull as the definitive and dispositive text on Ex Post Facto. Under this formulation, a law violates the Ex Post Facto clause only if it does one of these four things:
1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime , or makes it greater than it was, when committed. 3d. Every law that changes the punishment , and inflicts a greater punishment , than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence , and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.
My hunch is that the majority of the Court won't think that any of these four categories includes a law reviving the right of prosecution, after the limitations period has passed. The words of those four categories just don't quite fit this situation; and that will, I think, be the end of the matter for at least five Justices.

How about the Due Process issue, then? Although I personally see this as a more fertile ground for Stogner – because I think that yanking the limitations rug out from under somebody in the criminal context, after the limitations period has already run, is fundamentally unfair – I don't foresee Stogner faring any better with that. My hunch is that the majority will say that the Ex Post Facto clause is where the Framers put all their thoughts about when criminal laws can be changed retroactively; and so, if this law doesn't violate the specific EPF clause, it doesn't violate the more general Due Process clause either. So, I say "AFFIRM."

posted by sam 3:14 PM 0 comments

National Labor Relations Board

Well, it looks like the Labor Board is finally up and running again, having put out the first substantive opinions in many months (having been without a quorum for some time, and then with several new members who had to get up to speed). Here is the weekly update, summarizing the cases decided recently. One of them holds that it was ok for the employer to station guards (and a guard dog!) at the facility on the day of the union election. Companies often do that, for no purpose other than to scare the employees right before they vote. It stinks. Fortunately, the Board's opinion in this case is a pretty narrow one, focusing on how mild the security presence was in this particular case; there is still plenty of room to challenge companies that hire bigger, more visible, and more aggressive squads of thugs for this purpose.

posted by sam 3:09 PM 0 comments


I've been locked out of this silly blog for about 8 hours now ... (UPDATE: hey wait a minute. now I'm not locked out anymore.)

posted by sam 2:20 PM 0 comments

Rittenhouse for Senate

I have often fantasized about running for Congress on a platform of complete honesty and liberalism. Mostly, I wished that somebody like me would run, so that I wouldn't have to. What would happen if there was actually a candidate who spoke like a human being rather than a teleprompter, who said "I don't know" when that was the correct answer, and who shared my basic beliefs and values? I think that he really is serious, and so I note with admiration that fantastic blogger Jim Capozzola is considering running against Arlen Specter. No fooling -- I think that such a candidacy, by a guy with a great mind and a big heart and nothing to hide and nothing to prove would be fantastic for the political discourse even if he didn't win. And I think that there is a not-insubstantial chance that he could create a wave and actually win. I'm in, all the way: Capozzola for Senate.

posted by sam 7:01 AM 0 comments

tradition, and judicial nominations

I've got a fun challenge for everybody who has been complaining that Senate Democrats, in filibustering the Estrada nomination, are violating a long-standing traditional understanding as to how judicial nominations battles are supposed to be fought:

Can you point to any instance during our history as a nation -- prior to President Bush's dogged efforts to put Owen and Pickering on the appellate bench -- in which a Circuit Court nominee who was rejected by the Senate's duly constituted Judiciary Committee, has been re-nominated and given a second bite at the apple after the Senate's composition changed? Senator Leahy says he doesn't think there's any precedent for it. I asked the Senate's historical office, by email, and they said they didn't know of any precedent for such a play. Do any of you? Do you therefore withdraw your support for Owen and Pickering, if you were supporting them?

Thanks to Howard Bashman for the link to Senator Leahy's statement, and also to his other statement about Senator Hatch's flagrant breach of Senate rules as to some other nominations. (Oh, and by the way -- don't try to justify the unprecedented renomination of Owen and Pickering by saying that it was retaliation for the (not really) "unprecedented" filibuster. The calendar won't let you win that argument.)

posted by sam 6:49 AM 0 comments

Thursday, March 27, 2003

S.Ct. predictions
Time to return to the Supreme Court predictions, for next week's arguments. The first case to be argued next week is Inyo County v. Paiute-Shoshone Indians, about the relationship among states, Indian tribes, and federal law. Here's the setup: law enforcement agents of a California county executed a search warrant, to search records of a casino that was owned by, operated by, and on the territory of, an Indian tribe. The warrant was in furtherance of an investigation into alleged welfare fraud; the records were employment files. The Tribe says that, since it is an independent sovereign, state officials have no jurisdiction or authority to execute a search warrant on its territory to search its stuff.

If this case simply called for an answer to that question – whether state law enforcement officials can obtain and execute a warrant allowing the search of a Tribe's facilities – it would be an interesting case. But it's a lot messier than that; it presents three questions (I'm paraphrasing them), all of which have to be answered in the Tribe's favor in order to affirm the Ninth Circuit's decision (pdf file: here, modified somewhat here). These questions are:

(1) Does a Tribe have a right as an independent sovereign not to have its own stuff, on its own territory, searched by state/local officials?

(2) Even if so, is a Tribe a "person" within the meaning of 42 U.S.C. § 1983, such that it can bring suit for violation of its rights?

(3) Even if so, does a search by state officials of a Tribe's stuff really amount not only to something that the state officials must not do, but to an actual violation of the Tribe's constitutional rights under the Fourth Amendment? And if so, was that Constitutional right "clearly established" at the time in question, so obviously well-settled in the law that law enforcement officials can be sued for money damages out of their own pockets for violating the right? (yes, that's two questions, I know).

If the case doesn't get dismissed as improvidently granted on account of its being so messy – a result that wouldn't surprise me – I'm betting that the Supreme Court will find something not to like at some step of the analysis. They'll probably say that the Tribe (and its casino) aren't persons within the meaning of § 1983, if they get to that issue; but there's some doubt as to whether the question is properly before the Court, because it apparently wasn't argued in the lower courts. And they'll probably say, at the very least, that the right in question was not "clearly established", so that the officials can't be sued for money damages out of their own pockets. There isn't much that's "clearly established" these days, it seems, but don't get me started on qualified immunity (a bit of anti-constitutional judicial activism, designed to make it harder to vindicate your constitutional rights) again … Anyway, I say "REVERSE".

posted by sam 10:51 AM 0 comments

random pop-culture advice

Even if you like trashy books from time to time (as I do, on book-on-tape while driving), avoid Michael Crichton's Prey as if your life depended on it. It is a perfectly horrible book, mostly because Crichton seems to have no sense of how human beings think, or feel, or talk, or act.

posted by sam 7:04 AM 0 comments

Lawrence v. Texas argument

By all reports (see SCOTUSblog (which rocks), NYT, Tony Mauro at law.com, and Dahlia Lithwick at Slate), the argument in the Texas gay rights/sex case went very well for the side challenging the Texas law -- and went very poorly for Texas.

posted by sam 6:32 AM 0 comments

get your law news

Somebody has created a clever web site that, in customizable fashion, lets you see the headlines from various law news-and-comment sites (including this one). Click here; it's called "daily whirl."

posted by sam 6:24 AM 0 comments

tax law comix

It takes a certain kind of genius to make a funny comic about tax law.

posted by sam 6:19 AM 0 comments

Wednesday, March 26, 2003

Balkinization rocks. In a law-nerd way, of course. (I use the term "law-nerd" lovingly, because I am one). But still, it rocks, especially today's further post from Prof. Balkin about "originalism" in constitutional interpretation.

The U.S. Sentencing Guidelines, on the other hand, make my head hurt.

posted by sam 1:02 PM 0 comments


This morning the Supreme Court decided the very important case about "IOLTA" programs, which fund legal services for poor people. (Decision here, AP report here). On its surface the case was about the "takings" clause of the Constitution; below the surface it was ideological warfare about the purposes for which the funds are used. Read my earlier prediction here. Dwight at P.L.A. had a series of great posts about it [UPDATE: here and here, from January) The decision makes me happy in various ways: (1) I think it's right as a matter of constitutional law; (2) I like the consequences of the result (that a right-wing group was thwarted in its attempt to destroy the funding for legal services for poor people); (3) my prediction of affirmance was correct; (4) it might make smartalecky Judge Kozinski, of the Ninth Circuit, more cautious in the future about claiming that everyone who disagrees with him is "ignoring" Supreme Court precedent. (see my prediction linked above for more on #4, in the unlikely event you're interested)

posted by sam 11:12 AM 0 comments

Tuesday, March 25, 2003

need some positive feedback?

posted by sam 4:22 PM 0 comments


Sorry, no blogging here today. I am busy writing a brief in a criminal appeal. You might find it disturbing if you read the transcript. But I hope that we're in agreement that people should be punished only for those crimes that they are proven beyond a reasonable doubt to have committed, and that the punishments should be no greater than the governing law provides.

posted by sam 2:15 PM 0 comments

Monday, March 24, 2003

As I had hoped, Professor Hasen -- one of those people who actually seems to know what he's talking about -- has posted about the upcoming Supreme Court argument in Federal Election Comm'n v. Beaumont. (See my prediction and discussion here).

posted by sam 3:12 PM 0 comments

Thank you, Volokh Conspiracy, for returning Clayton Cramer to his own blog.

posted by sam 7:21 AM 0 comments


The last case to be argued this week is one of the Term's high-profile cases, Lawrence v. Texas, about Texas's statute prohibiting gay oral and anal sex. Some states (e.g., Alabama) prohibit oral and anal sex between any people who aren't married to each other. Not those broad-minded and worldly Texans, no sir; they think that those things are just fine as long as they involve one Texan man and one Texan woman. But the same acts are crimes in Texas, if they involve people of the same sex. And this is no mere hypothetical, or cobweb-covered and never-enforced legislative relic; this case involves two guys who were prosecuted and convicted for violating this law.

As you know, the Supreme Court in 1986 upheld Georgia's anti-sodomy law in Bowers v. Hardwick. There are essentially two ways that Lawrence could win in this case: (a) by overruling Bowers, holding (as a matter of due process or the "right to privacy") that the government has no right to prohibit this behavior; or (b) by an equal protection theory, based on the fact that this law (unlike the law upheld in Bowers) applies only to same-sex conduct.

You can write off (or, if your view is different from mine, "count on") C.J. Rehnquist and Justices Scalia and Thomas; you can pretty well tell from their dissent in the Romer case that they firmly believe that governmental discrimination on the basis of sexual orientation is perfectly ok under the Constitution. And I trust that the four quasi-liberal Justices will be willing to vote for Lawrence. (We can guess, from his dissenting vote in Bowers, that Justice Stevens will; and my guess is that Justices Ginsburg, Souter, and Breyer will as well).

So, as so often happens, we are left wondering whether the "liberal" side can pick up either Justice Kennedy or Justice O'Connor. Both of them ruled for the "gay rights" position in Romer (and Kennedy even wrote the opinion), based on an equal protection theory; but that case was different enough that the majority didn't even cite or distinguish Bowers. And you also have to remember that Justice O'Connor voted with the majority – i.e., against the gay-rights position – in Bowers.

Where does this leave us? This is a very hard one. When the Court granted certiorari not long ago, I suggested an optimism about reversal, on the theory that four liberal justices wouldn't have voted for certiorari (and I assumed that they were the ones who did so) unless they were pretty sure they could pick up a fifth vote for reversal. So, based on my trust that the Justices can count votes better than I can – and that the cert grant wasn't driven by Justices Scalia, et al., looking merely for an occasion to reaffirm Bowers -- I say "REVERSE."

posted by sam 7:18 AM 0 comments

Sunday, March 23, 2003

The first case to be argued Wednesday, Overton v. Bazzetta, is about prison visitation. The Sixth Circuit, in this opinion, struck down some Michigan prison regulations that pretty severely curtailed visitation. We are talking, here, about non-contact visitation, where the visitor and the prisoner are sitting on opposite sides of glass talking on telephones; the Sixth Circuit had earlier upheld the rules as they related to "contact" visits. And the regulations in question do the following, as the Sixth Circuit describes them:
(1) banned visits from prisoners' minor brothers, sisters, nieces and nephews; (2) banned all visits by prisoners' children when parental rights had been terminated; (3) banned all visits by former prisoners who are not immediate family; (4) required that visiting children be accompanied by a parent or legal guardian, and (5) permanently banned visitors, apart from attorneys and clergy, for prisoners who twice violated the department's drug abuse policies.
. The Sixth Circuit held that these rules were not reasonably related to legitimate penological interests, and that (for this and related reasons) they violated the prisoners' rights under the First Amendment (which includes a right of association), the Eighth Amendment (prohibition on cruel and unusual punishment) and due process under the Fourteenth Amendment.

It's possible that some of the Justices will say, or come close to saying, that none of this is any business of the judicial branch whatsoever, that there is practically no room for constitutional review of prison regulations such as these. (Look for Justice Thomas to take such an approach). More likely, though, is that a majority will hold that there is some room for constitutional review of such regulations, but that such review must be highly deferential towards prison officials. This is related to – not exactly the same as, but related to – the high level of deference to state decisions on criminal punishments shown in the recent three-strikes cases. And I think it most likely that at least part of the regulations will get an "OK" from 5 or more justices – most likely, perhaps, the ban on visits by former prisoners or the ban on visits for prisoners who repeatedly violate drug abuse policies. So, because I think that reversal at least in part is probably the outcome, I say "REVERSE."

posted by sam 6:43 AM 0 comments

Saturday, March 22, 2003

Justice Scalia as a strict textualist -- yeah, right
This is why some people are respected law professors, and others are opinionated lawyer-bloggers. Professor Balkin has done a masterful job (1, 2, 3) of explaining that Justice Scalia's self-portrayal as a strict textualist-originalist is not in sync with his votes on affirmative action cases. I, on the other hand, have the urge merely to say:
Justice Scalia strikes down laws only when the actual text of the Constitution, with the words understood as they would have been at the time of adoption, requires it? Yeah, right. And I can flap my arms and fly to the moon. See cases like Alden v. Maine (Justice Scalia joins the Court's slim majority in holding that the Constitution gives States a right not to be sued in state court for violations of most federal laws, when the text of the Constitution says nothing remotely like that) and Adarand (Justice Scalia stakes out an extreme position against federal affirmative action, without textual support or any indication that anyone in the 18th century would have understood the text of the Constitution to impose such prohibitions on the federal government).
Justice Scalia's constitutional interpretations are just like everybody else's: a mixture of textual interpretation of the Constitution, analysis of precedents, beliefs about what is central to the American vision of government and what is not, and preference. These things lead different people to different results; there's no point in pretending otherwise.

posted by sam 7:22 AM 0 comments

S.Ct. prediction

The only case to be argued Tuesday is Federal Election Comm'n v. Beaumont, about the First Amendment and campaign finance. This is not the big test of campaign finance reform; it's a discrete smaller case about the federal statute prohibiting all corporations from making direct campaign contributions. The plaintiffs (an anti-abortion advocacy entity that is a corporation, and some of its supporters) claim that this is unconstitutional as applied to corporations that exist for the very purpose of political advocacy. The Fourth Circuit agreed. (The Fourth Circuit also held that this corporation has the First Amendment right to engage in direct political expenditures, because it is primarily a political advocacy group, and the government has not sought Supreme Court review of that part of the case).

If you want real erudite analysis, ask somebody like Ed Still or Rick Hasen. I'll just give you the short version. There is a unanimous decision from 1982 that wasn't really about this precise same question, but that includes some strong language saying (maybe even definitively holding, depending on how you look at it) that this across-the-board ban on corporate campaign contributions is perfectly consistent with the First Amendment. That's National Right to Work Committee. The only Justices still remaining from that Court are Rehnquist, Stevens, and O'Connor. Then, in 1986, a fractured court – over the dissent of four Justices, including Rehnquist and Stevens – held that a political-advocacy corporation did have the First Amendment right to make direct expenditures, as distinct from campaign contributions. That's Mass Citizens for Life.

So my bet is that, based if nothing else on the value of adhering to precedent (in this case, the precedent being Right to Work Committee), the Court will REVERSE the Fourth Circuit. I count on Justices Rehnquist, Stevens and O'Connor, based on their previous votes. I bet dollars to donuts that Justice Breyer will join them. And I feel pretty comfortable that either Justice Kennedy or Justice Souter, or both, will do so as well.

posted by sam 7:11 AM 0 comments

Friday, March 21, 2003

The Bush Administration has proposed onerous new regulations that would require unions to do massive paperwork and publicly disclose lots of financial information. I had thought that Republicans were supposed to be against ridiculous burdensome regulations, but apparently that is not the case. You can read about these requirements from the AFL-CIO (yes, obviously not a neutral source, but I don't expect you'll find any factual error in what they say). And you can read the proposed reg itself -- and send the government a comment about it -- here.

posted by sam 6:00 PM 0 comments

law nerd note

Following up on the Eleventh Circuit's distribution of opinions in pdf format: they now have a handy-dandy page listing new opinions as they are issued, that contains a link to each opinion's pdf file. Excellent.

posted by sam 6:46 AM 0 comments

S.Ct. prediction

The second case to be argued Monday is a death penalty case, about the constitutional right to effective assistance of competent counsel. The case is Wiggins v. Smith. The U.S. Court of Appeals for the Fourth Circuit upheld the conviction and death sentence. The Supreme Court agreed to hear the case, but only as to the sentence (and not the conviction itself).

Here's the deal in a nutshell (which is a nice way of saying "somewhat oversimplified"). As you probably know, in a case involving a potential death sentence, the trial unfolds in two phases: guilt and penalty. If the defendant is convicted, then in the penalty phase there is additional evidence on the existence (or not) of "aggravating" or "mitigating" circumstances, leading to a decision on whether to impose a death sentence. Mitigating circumstances often include such things as the defendant's personal history, including abuse suffered during childhood. And as you also probably know, you have a constitutional right to the effective assistance of counsel, a constitutional entitlement to some level of competence in your defense.

Wiggins claims – and the federal trial court, reviewing his state-imposed death sentence, agreed – that his right to effective assistance of counsel was denied, when his lawyer not only failed to offer any "mitigation" evidence in the penalty phase, but furthermore did so without having made any investigation into what mitigation-type evidence might exist. But the Fourth Circuit – with a panel including possible Supreme Court nominee Judge Wilkinson – reversed, upholding the death sentence. They described the lawyer's failure even to investigate possible mitigation evidence as a "reasonable strategic decision".

Weighing in Wiggins's favor, here, are two main things: (1) the Supreme Court's decision in Williams v. Taylor (2000), which granted habeas corpus relief to a death row prisoner on the grounds that his lawyer had been ineffective in failing to obtain mitigation evidence; and (2) amicus briefs filed by the American Bar Ass'n and various former prosecutors including Janet Reno. If Wiggins can keep either Justice O'Connor or Justice Kennedy – both of whom voted for Williams in the earlier case – then he wins.

The Fourth Circuit, though, said that this case was different from Williams in that (they said) Wiggins's lawyer made a sensible strategic decision not to investigate possible mitigation evidence, whereas Williams's lawyer, in the earlier case, failed to investigate such evidence because he didn't realize he could. Does that distinction hold up? Certainly not in my mind; unless there is some special reason to believe that Wiggins's lawyer could not have done at least an initial investigation of possible mitigation evidence and done whatever else he thought was important too, the idea of "a reasonable strategic decision not to investigate the sort of thing that often makes the difference in death penalty cases" sounds nonsensical to me. Mitigation evidence is absolutely critical in many capital cases; it simply makes no sense to decide not to investigate for such evidence. Reversal seems to me the obviously correct outcome.

What's weighing, though, in favor of affirmance? Two things: (a) the very difficult-to-meet legal standard applicable to federal habeas corpus claims, in which it must be shown not only that the state court's decision was wrong but that it was, beyond just being wrong, unreasonable. (This is an oversimplification, but it gets the gist about right; see this recent case); and (b) the Supreme Court's general high regard for the judges on the Fourth Circuit. Why does (b) matter? Because the panel in this case didn't just rule for the State by saying that the state court's decision was reasonable (even if perhaps wrong); they at least implied, and as I read it they in fact said pretty much, "We think that the state court was right; the lawyer made a reasonable strategic decision to forego investigation." So, in order to rule for Wiggins, five Justices would have to say, more or less, "The panel's understanding of this aspect of the Constitution is beyond wrong; it's not even reasonable." And some Justices might be less likely to do that, because they don't think of the conservative Fourth Circuit judges as unreasonable people.

How does this come out? A very hard call, but I'm betting on a reversal here. After all, Justice O'Connor is on record as being concerned with the fairness of death penalty proceedings; and you can't have fairness unless you have lawyers who do reasonable investigation into the facts before making absolutely crucial strategic decisions. So I say, with much trepidation, REVERSE.

posted by sam 6:40 AM 0 comments

Thursday, March 20, 2003

I just found out that one of my oldest friends, Olsen Ross, who is a great painter living in Alabama, has a blog. It's a beautiful one, with art and politics and fun and stuff. He writes (and paints) great stuff, even if he doesn't understand how substantially the White Stripes stink. This is, I think, the first time that we have disagreed about music in more than 20 years; up til now, he was always right (and indeed usually was teaching me things), but this time he is wrong wrong wrong, wrong as wrong could be. I can say that because I love him.

posted by sam 12:38 PM 0 comments


You will see, immediately below, that the commencement of war does not mean the end of all attempts at cuteness, and all discussion of relatively minor stuff, here at Ignatz. This will not become an all-war, or even a mostly-war, channel. This does not mean, however, that I don't have strong opinions about war and post-war. If you feel the need to know what they are, we can talk sometime. Mostly, I agree with Patrick Nielsen Hayden that it is important to do the actual serious work of political change, rather than demonstrating one's hip virtuousness. (See here and here).

posted by sam 6:48 AM 0 comments

S.Ct. predictions again

The first case to be argued next week is Nguyen v. US, along with another case presenting the same issue. Nguyen and her co-defendant were convicted, in the U.S. District Court in Guam, of drug offenses. They appealed to the U.S. Court of Appeals for the Ninth Circuit (whose territory covers Guam). Now, many appellate court panels include not only federal appellate judges, but also district judges "sitting by designation" to help out with the appellate court's caseload; and this panel included a U.S. District Judge from the Northern Mariana Islands. The panel affirmed the convictions.

The problem is that U.S. District Judges in territories aren't "Article III" judges (after Article III of the Constitution, governing the judicial branch). They don't have life tenure, etc. The federal bench also includes Article I judges (such as bankruptcy judges); but, in a bit of legal arcana, these folks apparently aren't Article I judges either. They're Article IV judges. And Nguyen's argument is that she was entitled to a panel made up of all Article III judges.

If the convictions had occurred (say) in the U.S. District Court for the District of Hawaii, Nguyen's argument would be a pretty compelling one, I think. We would then talk all about the importance of an independent judiciary, and how Article III's grant of life tenure to Article III judges is what allows that independence, and so on. But it seems very unlikely to me that the Supreme Court would hold that a person convicted in the District Court of a territory has a constitutional right to an all-Article-III appellate panel, when she apparently doesn't even have a right to an Article III District Judge in the first place.

But Nguyen has something besides a constitutional argument; she has a statutory argument, to the effect that the Ninth Circuit had no statutory authority to let a non-Article-III judge sit by designation. And you know what? The government agrees with her, and says that this was a real mistake on the Ninth Circuit's part. If you're interested in the statutory minutiae, read the government's brief at that link.

So why do I predict that the Supreme Court will nevertheless AFFIRM the convictions? Because they will think that Nguyen and her co-defendant did not raise this argument in a timely fashion, and that they were waiting to see whether the panel ruled against them before raising (or waiving) it. And you can't play that sort of wait and see game. They knew at oral argument, before the decision was rendered, that the panel had this non-Article-III judge on it; and they didn't file any motion protesting that, before the panel decision (nor, according to the government, did they seek rehearing in the appellate court). Or maybe (less likely, I think) the Court will say "there's no reason to conclude that the technically-ineligible judge swayed the votes of the two eligible judges, so no harm no foul." Either way, the Supreme Court will have the chance to say, "hey, don't do that again, Ninth Circuit; but you folks go directly to jail."

posted by sam 6:43 AM 0 comments


Despite (or because of) war, please allow me a moment of entirely self-centered amusement: if only I hadn't been a teaching assistant for Gen Ed 105 about ten years too soon, I could have hung out with the Boss. The article (about the friendship between Springsteen and Robert Coles) is worth reading, even if you're not interested in my self-centered amusement.

posted by sam 6:16 AM 0 comments

Wednesday, March 19, 2003

A few weeks ago, I learned from somebody's blog -- probably Matthew Yglesias's -- that the Harvard Crimson's archive is online going back several decades. (This is one of the nice side benefits of Harvard's having been hooked up to the then-secret internet since the 19th century). This morning I searched on the name of my colleague and friend Buddy Cooper, the dean of Southern labor lawyers, and found this article, which is worth a glance for a sense of history.

posted by sam 8:03 AM 0 comments

Tuesday, March 18, 2003

Unlike Mark Kleiman perhaps, I prefer my traditional and neo-traditional music with lots of dirt still on it, not cleaned up with classical-style performance values. (I like the notes that you can't find on a piano, and a heart-to-head ratio higher than 1:1). I was reminded of this last night while watching tv, a documentary about Shane MacGowan and the Pogues. (look on this page to see when it's coming on next, if you get the Sundance Channel). Their 1988 album "If I Should Fall from Grace with God" (snippets available here) is brilliantly messy neo-traditional Irish punk. The movie is very disturbing, though, because (at least at the time it was filmed) Shane MacGowan is a gruesome mix of genius and stunning amounts of alcohol. Like Jim at Rittenhouse, I don't like the stereotype of the Irish drunk, and don't mean to invoke it as a stereotype. Anyway, go get "If I Should Fall from Grace with God" if you don't have it, and if you like dirt.

posted by sam 12:08 PM 0 comments

that slippery slope from rent control to genocide

Here's an important lesson for those trying to put together a successful conspiracy: things can get out of hand if your group of conspirators gets too large. (When your numbers get big, you want to put together a movement as distinct from a conspiracy). That's the lesson this week from the Volokh Conspiracy, I'm afraid: what has heretofore been a reliably thoughtful, even if too right-libertarian for my taste, blog has just seen (so far as I can recall) its first truly nutty post. It's courtesy of new conspirator Cramer, for whom some Santa Monica rent control debates seemed so reminiscent of Nazi totalitarianism and genocide, that he became a gun advocate and right-libertarian. Read it for yourself. Now, you might think that somebody who feared creeping totalitarianism in this country -- and was especially sensitive to its first little sproutings -- would be opposed to anything that tended towards the establishment of a state religion. Not so. You might think that somebody who feared creeping totalitarianism in this country would be in favor of universal suffrage. Not so: stupid people should not have the vote, he jokes(?). Rent control: the sign of creeping totalitarianism, and the reason for all good men and women to take up arms to defend themselves against the state. Rent control: it reminds him of the slaughter of millions in service of Aryan ideology. Rent control: even just the most striking governmental misconduct of his formative years? I am stunned.

posted by sam 8:03 AM 0 comments

Monday, March 17, 2003

I was excited to see that the Eleventh Circuit is, as of today, issuing its decisions in pdf format! But I cannot find where to click to actually get the opinions, through any means other than a time-consuming work-around of first looking at the daily text list of recent opinions and then searching the entire database for the name or docket number of a listed case. Am I missing something obvious?

posted by sam 6:14 PM 0 comments


For the first time today, my partner and I made a plan as to what we would do -- how we would get our kid, and where we would go from there -- in case of an attack on Washington. We are generally not anxious about this sort of thing; we are anxious about plenty of other smaller and more personal things, but have not been worried about catastrophe. But we, like many of our friends, believe that the Administration's plan for war -- and the foolish un-diplomatic course that the Administration took in pursuit of that plan -- have made us all less safe in the short run, the medium run, and the long run. Now, if there were some reason to believe that wonderful things would happen half a world away as a result of this military action, then we could grit our teeth and remind ourself that our own personal safety is not the measure of a plan's merit; but we have heard no plausible chain of consequences by which military action against Iraq will bring peace, stability, moderation, and progress to any part of the world. My guess is that it will bring just the opposite. Add to this the fact that -- as Professor Balkin discusses today -- this Administration owes its very existence (after the 2000 election) to a series of accidents at best and a series of scams at worst. And add also the fact that there is a concerted effort by many right-wing voices to characterize dissent as treason, literally. These are bad times, in which it is hard to focus on anything else. Yet reading the paper, we see that the people with whom I disagree on all sorts of "mundane" non-military issues of domestic law and politics have not stopped their pushes on various fronts, as war gets closer; if anything, they are pushing harder as the war distracts attention from other issues. So let's keep on pushing back.

posted by sam 4:27 PM 0 comments

Sunday, March 16, 2003

Ah, Spring -- when thoughts turn to things other than blogging. I had planned to work up some thoughts in response to Fritz Schranck's post on the legal/practical issues involved in the siting of the Augusta golf club protests, in light of my experience in labor picketing cases. But instead it was a lovely weekend, not focused on the computer. We had a good friend in town, spent some time at the National Zoo (which, like other parts of the Smithsonian conglomerate, needs better direction but is still a treasure anyway); the time indoors was eating, sleeping, and watching George and Martha (the latest sign that the right-wingers have lost the culture wars and are merely making a great deal of noise in defeat: George and Martha are two hippos, with George's voice done by Nathan Lane, and their best friends are two cohabitating male alligators (crocodiles?) named Oscar and Wilde). So, no post about picketing country clubs here. In fact, it may be time to shut down this silly blog altogether as the weather gets nice; after all, the fad is finished, now that Barbie and her friends have blogs. I suppose I have to keep going, in order to maintain self-respect, long enough to finish the Supreme Court prediction thingy, and then might as well pontificate through Supreme Court vacancy(ies) this summer. Oh, the burdens of public life.

posted by sam 8:13 PM 0 comments

Saturday, March 15, 2003

filibuster Owen
From this article on law.com, regarding the President's re-nomination of Texas Supreme Court Justice Owen to the U.S. Court of Appeals to the Fifth Circuit, we see commentators giving two extraordinarily lame arguments in her favor:

(1) that the Fifth Circuit is already very conservative, so (being very conservative) she would fit perfectly. I agree with the first clause wholeheartedly; the Fifth Circuit is a very very "conservative" court, in the current political meaning of the word "conservative". See here, and also note yesterday's en banc decision of the Fifth Circuit, described by Howard Bashman here. The Fifth Circuit needs a more moderate balance, not a further entrenchment of its current position.

(2) that she is "a nice girl from Baylor."

Nice girl from Baylor or not, her pattern of rulings is so predictably "conservative" (right-wing, that is) -- finding her often dissenting even from decisions of the Republican-dominated Texas Supreme Court, and staking out a more far-out position than her Republican colleagues -- that Senate Democrats should do everything allowed by Senate procedures to stop her from gaining life tenure on the federal bench. See TalkLeft for further information.

posted by sam 6:55 AM 0 comments

Friday, March 14, 2003

Courtesy of Howard Bashman and Atrios, a well written op-ed explaining the basis for opposition to Sixth Circuit nominee Jeff Sutton (and, as an added bonus, mentioning possible Eleventh Circuit nominee Bill Pryor, previously discussed here at Ignatz).

And, because I like to repeat myself, let me state again my belief: judging is not all politics (isn't even very much politics at all, usually), but picking judges is politics. That's why it's completely irrelevant that Fifth Circuit re-nominee Owen said yesterday at a hearing that she tries to be fair and doesn't consciously try to tilt her rulings towards one side or another. No judge that I've ever heard of would say "I don't try to be fair." No judge that I've ever heard of would say "I don't try to follow the law." All judges think of themselves as doing their best to be fair and to follow the law. But the plain fact is that judges disagree about what this means in many cases; and for many judges and prospective judges, these disagreements fall into rather predictable patterns. Those predictable patterns are important considerations as we decide which lawyers should become judges.

posted by sam 7:48 AM 0 comments

Thursday, March 13, 2003

it's really not that I have anything against the Associated Press ...
even though this is the second night in a row that I've wound up the evening by grousing about their coverage of something. But why did their writer choose to point out the race of certain Alabama legislators who were expressing qualms about President Bush's plans for war in Iraq? See this article:
An emotional debate over a possible invasion of Iraq broke out in the Alabama House Thursday as black lawmakers balked at language calling for support of President Bush and a compromise version was drawn backing U.S. troops.

The resolution by freshman Rep. Mickey Hammon, R-Decatur, is the kind of routine measure that usually passes without debate. But black legislators spoke out against a measure supporting Bush in the fight "against the Iraqi regime and its weapons of mass destruction."

posted by sam 9:55 PM 0 comments


Did you know that for most of the Senate's history, there was no such thing as cloture against a filibuster -- that the ability to shut off debate and proceed to an "up or down vote" despite the strong wishes of a minority, as the President urges on Estrada, didn't exist? Don't take my word for it; read it at the Senate's own site. Did you know that, in the prior instance of the failure of the Senate to achieve cloture against a judicial nomination filibuster, the President admitted defeat under Senate rules and withdrew the nomination? Again, the Senate's site. So let's have no more unctuous speeches about how Democrats are destroying some settled American tradition, ok?

posted by sam 4:34 PM 0 comments


The Republicans just failed, once again, to invoke cloture on the Estrada debate. It is now -- after two failed attempts -- time for the Republicans to admit defeat on this one. I know that defeat is no fun. But it is time for Republicans to accept it, and move on to other business: to have the Estrada nomination withdrawn by the White House, and then to seek an agreement acceptable to both parties that would result in moderate judicial nominees.

posted by sam 2:44 PM 0 comments

just slipped my mind

I had so many fascinating and uplifting things to say this morning, but blogger was on the fritz so I couldn't, and now I forgot what they were.

posted by sam 11:25 AM 0 comments

Wednesday, March 12, 2003

stay of execution
As you have probably read elsewhere, the Supreme Court at the last minute (actually, the last 10 minutes) stayed the execution of Delma Banks in Texas. According to the AP story, Banks says that he was wrongly convicted; but the story also purports to quote his trial testimony as having been that he killed the victim "for the hell of it." This sounds very odd to me. It is, first of all, nearly impossible to believe that any defendant would take the stand in order to give such testimony. It is, furthermore, hard to understand how someone could say that he was wrongly convicted if he had so testified. And other things you can find by googling around on the phrases "Delma Banks" and "for the hell of it" suggest that this did not come from Banks's trial testimony. One would think that the AP could be more clear about such things.

posted by sam 9:21 PM 0 comments

that elusive question of motive

One of the deeply perplexing questions that comes up in constitutional law from time to time is the question of motive: what was the subjective reason why a certain law was adopted? The question is relevant in many religious rights cases, such as the case a few years ago about a municipal ordinance forbidding animal sacrifice (in which the Supreme Court struck down the law because the law's very purpose was to suppress a certain religious activity, despite the city's argument that the law was neutral on its face). So what can we discern about the bill passed yesterday by the Alabama House of Representatives, which would hold a referendum on a proposed amendment to the State Constitution providing that the state, and local governments and school boards, may post the Ten Commandments? One argument is that the motive for that -- as a matter of law, a conclusive presumption so to speak -- is religious rather than secular. See Stone v. Graham (striking down Kentucky law requiring the posting of the Ten Commandments in schools, despite the State's contention that the motive was a secular one). And that argument rings true to me -- though I do have to wonder whether there might actually have been an arguably secular purpose to this particular bill. What's so special about this bill that causes me to say that? It's Section 4, which provides in its entirety "Following the ratification of this amendment to the Constitution of the State of Alabama, this amendment shall be known and cited as the 'DuWayne Bridges Amendment.'" Does blowing one's own horn, and seeking publicity, count as a permissible secular legislative purpose?

[FURTHER THOUGHT: To be serious for a moment, I actually don't think that this amendment to the Alabama Constitution, if adopted, would violate the U.S. Constitution; the reason is that, as I read it, this amendment does not actually call for the posting of the Ten Commandments, but instead simply provides that the Alabama Constitution itself would not forbid such posting. That's all academic for now, I think, under Stone v. Graham, supra, because the U.S. Constitution would forbid it. But I do think that Section 4 of the bill, as quoted above, is remarkably transparent political grandstanding through religion.

posted by sam 12:28 PM 0 comments

Tuesday, March 11, 2003

There is one thing I've been meaning to say but I keep forgetting:

The White Stripes are awful. In fact, any band that consists of more than 1% Led Zeppelin influence is almost certainly awful.

It's my blog, and this is what I wanted to say this evening. Thank you for your time.

posted by sam 9:01 PM 0 comments

too stupid to be true, yet perhaps true nonetheless.

One of my rules of thumb is, if it sounds too stupid to be true, it's almost certainly not true. This rule of thumb is, for instance, a good guide to skepticism about tort-reform urban legends. But I am afraid that this, courtesy of Atrios and Matthew Yglesias, might actually be true.

posted by sam 1:39 PM 0 comments

judicial nominations

As the Post is reporting, the Senate's attention will soon be turning from Estrada to other appellate court nominees, including two to the Fifth Circuit (Pickering and Owen, both of whom have already been rejected once). Thus we will see whether the filibuster of Estrada is merely a high profile one-shot thing, or whether it is the seed of a strong Democratic push for more moderate nominees overall. Given the Supreme Court's unanimous and nearly-unanimous reversals this Term of various "conservative" positions taken by the Fifth Circuit*, it will be relatively easy for Democratic Senators to make the case that that court needs a more moderate-leaning "balance". We will see if Republicans do want to change the longrunning problems in the nominations and confirmations process, and to reach some agreement to achieve that balance.

* See, e.g., Sprietsma, unanimously rejecting the position of the Fifth Circuit; Cook County, unanimously rejecting the position of the Fifth Circuit; Miller-El, reversing Fifth Circuit by 8-1 vote.

posted by sam 10:15 AM 0 comments

Monday, March 10, 2003

So the Supreme Court has put out some more cases today:

(1) Cook County v. US ex rel Chandler, asking whether cities and counties can be sued under the Qui Tam statute when they defraud the federal government. As I predicted here, the answer was "affirm": yes, they can be sued. As I hoped, the decision was unanimous. In response to my snotty query as to why the Court even bothered to take the case when the answer was so obvious, the opinion provides the answer: two other federal appellate courts had gotten the answer wrong. [UPDATE: And here's an interesting tidbit. One of the Courts that got the answer wrong -- so wrong that not a single Justice of the Supreme Court agreed -- was the Fifth Circuit; and one of the judges who joined that Fifth Circuit opinion was Judge Garza, who is considered to be on President Bush's short-list for any Supreme Court vacancy. I don't mention this simply in order to take a potshot at Judge Garza; I mention it because I think that judicial activism towards limiting the federal-law liability of cities and counties is the next frontier of Federalist Society jurisprudence, and I think that nominees' attitudes towards this issue are an important facet of the confirmation battles ahead of us.]

(2) In Norfolk & Western v. Ayers, the Court surprised cynical me (see my wrong prediction here) and ruled against the railroad in an FELA case presenting two questions about asbestos liability: yes, you can recover damages for fear of cancer if you already have another asbestos-related condition, and no you don't have to apportion damages among tortfeasors.

posted by sam 10:46 AM 0 comments

Sunday, March 09, 2003

As always, read TalkLeft.
It's a nearly non-blogging weekend for me; but here are two articles from TalkLeft that are especially worth noting: (1) on the U.S. Court of Appeals for the Fourth Circuit (the center of the right-wing judicial revolution, and the home of two judges who are regularly mentioned as potential Supreme Court nominees), and (2) on a new study delving into whether kids have the level of understanding and competence that would justify trying them as adults in criminal courts.

posted by sam 8:06 AM 0 comments

Friday, March 07, 2003

agreeance (reprise)
Turns out that Fred Durst and I -- and various people at union meetings throughout the South -- have been speaking Australian, or 17th-century English. I will now use the word without even a wink, and will teach my child to do the same. (Note also that Matthew Yglesias is mentioned in the newspaper article linked at the beginning of this paragraph).

posted by sam 8:18 AM 0 comments

watch your tongue

Courtesy of Ernie the Attorney, this thought-provoking article suggesting that lawyers should be careful what they blog, lest it come back to haunt them in (for instance) a judicial confirmation hearing. I am blissfully free of that particular concern. Though I would have loved to be a federal appellate judge, the chances of that were precisely zero even before I started this silly blog.

posted by sam 8:11 AM 0 comments

tort reform

Dwight Meredith of P.L.A. has a must-read post about medical malpractice, insurance rates, and "tort reform". Be sure to check it out. (If the permalink's not working, it's the "tort reform quiz" c. 9 pm yesterday.)

posted by sam 7:43 AM 0 comments

short items

(1) Charles Pierce is funny. I wish I was funny.

(2) If you're still interested in the Pledge of Allegiance case, here's a good piece written last summer when the decision first came out.

posted by sam 7:25 AM 0 comments

Thursday, March 06, 2003

Jurist's great legal news, scholarship, etc., blog The Paper Chase has moved to a new url.

posted by sam 11:33 AM 0 comments

the cb radio of the 2000s

I must say, the internet and (especially) the blog have vastly improved life for those of us who follow the Supreme Court's doings. The Goldstein Howe site is chock full of stuff, including (for instance) great contributions lately by Marty Lederman. Howard Bashman continues to give understandable and funny synopses of the decided cases, e.g., here. And, though she is not a blogger, Dahlia Lithwick does give great accounts of high-profile oral arguments. These are good days for those of us who gobble up information obsessively.

posted by sam 10:07 AM 0 comments

George Will is a(n) _______.

Edward Lazarus has an article at Findlaw, about George Will's b.s. on the constitutional status of Senate filibusters, as an example of a broader trend towards complete b.s. in public discourse. To his credit, Lazarus credits Atrios with having first publicized Will's flipflop. See below.

posted by sam 8:27 AM 0 comments


Here is Move On's petition to the UN, against war in Iraq.

posted by sam 7:08 AM 0 comments

Senator Harkin on the Sutton nomination

Here, in case you haven't seen it, is Senator Harkin's statement regarding his opposition to the nomination of Jeffrey Sutton to the Sixth Circuit.

posted by sam 7:06 AM 0 comments

Wednesday, March 05, 2003

If you disagree with (or know somebody who disagrees with) the Ninth Circuit's decision on the Pledge, ask yourself or your friend these questions. I think that they help to either draw you to the conclusion that the Ninth Circuit is right, or at least to clarify where you think that the Supreme Court ought to make a significant departure from existing caselaw in order to uphold the Pledge. (I am pretty much assuming that the Supreme Court will take the case on certiorari).

What is your position about the constitutionality of the following hypotheticals:

(1) A law requiring that, at the beginning of every school day, each homeroom teacher must stand before the class and say "The official position of our State is that Southern Baptist religious teachings are correct in all respects."

(2) As before, but the homeroom teacher says "The official position of our State is that Christianity is the correct religion, and all others are incorrect."

(3) As before, but the homeroom teacher says "The official position of our State is that there is one God, who created the universe and who will judge us for our actions."

I find it very hard to believe that the Supreme Court would uphold either (1), (2), or (3). And this is why I say that to uphold the official use of the Pledge, including "under God", would require that it be distinguished from (3) by averring that this aspect of the Pledge doesn't really amount to a theological statement. As I said below, I don't find that attempted distinction to be plausible; and reactions to the Ninth Circuit's decision have confirmed my belief in this regard.

What the Supreme Court will do if it does take the case, however, is a different matter; they could make distinctions that seem to me to be implausible. I doubt very much that I'll be in the Supreme Court predicting game next year, when the lineup will likely be somewhat different.

posted by sam 4:39 PM 0 comments

short items

(1) Read DeLong on obvious things.

(2) My old friend Richie Stearns, who is the Picasso of old-time banjo (in that he can play beautifully in the traditional ways, and can also break the traditional patterns brilliantly), has a nice solo album out; it consists of some great banjo playing, and some guitar-accompanied songs that he has written. Check out streaming audio of the songs and tunes at this site.

(3) If anyone is interested in how the Supreme Court prediction thingy is going, here's an update. The Court has disposed of a little more than a third of the Term's argued (or to-be-argued) cases, 27 in all. Two have been dismissed without a decision. Of the remaining 25, I've gotten 20 correct according to my calculations, which is a bit better than both the computer (18 correct) and the human expert panels (17 correct) at Washington University's fascinating project. I fully recognize the element of luck in this, and also recognize that I'm not playing exactly the same game as they are (they're trying to predict Justices' votes, while I'm not). Ted at Supreme Court Blog is a bit behind, but definitely still in the game.

(4) The Supreme Court's decisions this morning in the 3 strikes cases are not exactly the end of the line on this issue. In the Ewing case, the Court did decide on the merits that a sentence of 25 to life for a $1200 theft was constitutionally allowable. But in the Andrade case, the Court did not really uphold the constitutionality of a 50-to-life sentence for a more piddly crime; the Court instead held only that it was not so obviously unconstitutional as to allow federal habeas corpus relief under the stringent rules applicable to such cases. This practically begs litigants to keep pressing the question, on direct review, when their sentences are stricter than Ewing's.

posted by sam 1:56 PM 0 comments

Supreme Court

looks like a very bad day in the Supreme Court for sex offenders, and for three-strikers; I haven't seen the opinions yet, but will post more later.

FURTHER: the opinions are now up, in all four cases, at Cornell Law School's great site. I predicted all four correctly, which is no great achievement I recognize; see here for my discussion of the 3-strikes cases, and here for the sex offender cases. To my way of thinking, the 3-strikes decisions are particularly awful; and note that Justices Scalia and Thomas, whom the President avowedly wants to replicate in his judicial nominations, took the extreme position that the Constitution does not include any requirement that a punishment be proportionate to the crime. Not even the other conservative Justices would go that far. This is just one example of the sort of thing that is at stake, in the current battles over judicial nominations.

posted by sam 10:29 AM 0 comments


So there is going to be a cloture vote on Estrada's nomination this week. The Republicans think that this will help them, strategically. I think that it's a horrible move on their part. After a cloture vote, the natural public understanding will be that the Republicans lost, and they should get over it and move on. It will be the Republicans who are perceived, then, as keeping the Senate from going on to other important business. Now perhaps the Republican plan is to have the Senate do other business too, rather than constant Estrada debate, so that they can avoid that charge. But if they do that, then there will be very little pressure on any Democratic Senator to abandon the filibuster; without having to have actual constant debate, it will be easy for this filibuster to last til summer at least (and then the landscape changes dramatically, if as everyone expects there is one or more retirements on the Supreme Court; opposition to extreme judicial nominees will be even more strongly set in the Democratic thinking). All in all, this looks to me like the end of Estrada's candidacy; he has now become a tool for future campaigning by Republicans, rather than a potential judge.

posted by sam 5:45 AM 0 comments

Tuesday, March 04, 2003

short items
(1) Regarding tomorrow's Supreme Court argument in US v. American Library Ass'n, and its provision cajoling libraries into blocking kids from seeing websites that are "harmful to minors", Julia at Sisyphus Shrugged writes to say "if I can't take down barbie.com, 'harmful to minors' means nothing." At the risk of starting a war with barbie-philic bloggers, I concur.

(2) Kip at Long Story Short Pier points out not only that the Congress needs to quit dicking around with silly acronyms for laws, but also that there has been introduced a bill that would make it a crime to promote an entertainment event if you reasonably ought to know that a controlled substance will be used there. It's easy -- and appropriate -- to make fun of bills like this, and perhaps no member of Congress actually intends for such a ludicrous thing to become law. But it is worth noting that there could, under this law, be no more Phish concerts (now wait a minute, on second thought I could maybe support that ...) or music at truckers' hangouts, to name only a couple of ramifications. Really, there could never be a stadium show ever again; having been to a few, I can testify as an expert that some controlled substance is almost certainly used at every one, including the Three Tenors.

(3) The Ninth Circuit is plainly correct about the Pledge of Allegiance ruling. The only intellectually plausible argument against the decision (aside from some out-of-the-mainstream stuff, such as the argument that the First Amendment only requires governmental neutrality as between Christian denominations) is that the inclusion of "under God" is mere "ceremonial deism," a pleasantly secularized tradition that doesn't really amount to a theological assertion. The Senate that just voted 94-0 to decry the ruling, however, just destroyed that argument, if indeed there was anyone left who could make the argument with a straight face. This may be one of those Supreme Court cases in which a flood of amicus briefs actually turns the tide against the side that those amicus briefs are supporting; if the Court is inundated with briefs urging that "under God" is central to our nation's future, then it will be that much harder for the Court to say that this is mere ceremonial non-theocratic mumbling. (Others, e.g. Balkin, Kleiman, Volokh conspirators, etc., have discussed this already, as you probably know. Their posts are much more erudite (they are educators, and I'm just a tired lawyer drinking beer after dinner), but I just had to say something about this in order to maintain my self-respect as a legal blogger).

posted by sam 8:03 PM 0 comments

sorry, not much blog-energy here today. The Supreme Court did put out 5 decisions today, of which I predicted 3 correctly. Maybe tomorrow, after they put out more decision(s), I'll post some thoughts. If you're interested in the substance of today's rulings -- on trademark dilution (Victoria's Secret), Indian law, corporate tax, and the timely filing of habeas corpus petitions -- I'd suggest the sites of Goldstein Howe or Howard Bashman. By the way, the Goldstein Howe site is also starting a series of profiles of likely Supreme Court nominees, which should help you gear up for the summer.

posted by sam 12:44 PM 0 comments

Monday, March 03, 2003

S.Ct. prediction
On Wednesday, the Supreme Court will hear arguments in US v. American Library Ass'n. The case is about the Children's Internet Protection Act (who could possibly oppose protecting children??), by which the Congress decreed that local libraries would be eligible for certain federal benefits (lower telecom rates on internet access, and certain grants) only if they installed internet-filtering mechanisms to keep people from looking at pictures that are "obscene", are "child pornography," or are (if the internet-user is a minor) "harmful to minors". See subsection (f) of this section of the U.S. Code.

This is not the Supreme Court's first foray into Congressional efforts to combat internet porn. For earlier decisions, see Reno v. ACLU (1997) (holding unconstitutional two provisions of the Communications Decency Act of 1996); Ashcroft v. ACLU (2002) (not deciding the constitutionality of the Child Online Protection Act, but keeping in place the injunction against enforcement of the law until the matter is finally decided).

Sometimes, when the Congress knows that it's pushing the constitutional envelope on a hot-button issue, it provides for a special procedure to test the constitutionality of the statute: a three-judge panel at the trial-court level, followed immediately by review in the Supreme Court. That's what they did here. The three-judge District Court held the law unconstitutional under the First Amendment (see opinion here), essentially on the theory that it forced (or, rather, cajoled by monetary pressure) local libraries to violate the First Amendment rights of their patrons. After all, we all know that internet filters are lousy technologically, in that they block lots of stuff that's not obscene (not only very useful non-obscene information that has to do with sex, but also various popular and definitely non-obscene blogs).

You can read the Government's brief to the Supreme Court here. The Government argues, first, that the use of an internet filter by a library isn't really materially different from a library's decision as to what books to buy and put on the shelves – just a "collection acquisition" decision that's not subject to any real searching First Amendment scrutiny. And the Government argues, second, that even if this is subject to any searching level of First Amendment scrutiny, it passes --- given (the Government says) the important interests served by the law, and the fact that it allows library officials to override the filters if a library patron's got a legitimate non-prurient reason to look at the blocked stuff. I am, of course, severely summarizing and paraphrasing; read the brief if you want the detail.

What will the Supreme Court do? I start with the hunch that if there were an affirmance, it would probably only be 5-4, with a combination that's not quite like the "usual" (e.g. Bush v. Gore) 5-4. In other words, the libraries win only if they keep Justices Ginsburg, Kennedy, Souter, Stevens & Thomas, who have on occasion banded together in First Amendment cases. But I don't think that group can hold together on this one; at least one of them (and perhaps many more) will say either that internet filtering by libraries is not much different from deciding what books to buy (an argument that is unconvincing to me) or that the law gives libraries and their patrons enough wiggle room so as to avoid running afoul of the First Amendment.

So, bottom line, REVERSE: no more dirty pictures at the public library for you! Thanks very much to the for-now-anonymous reader who talked with me about this by email so that I would at least have some idea what I was talking about.

posted by sam 1:56 PM 0 comments

Saturday, March 01, 2003

S.Ct. prediction
I'm jumping over a case, the latest in a series of cases before the Supreme Court about Congressional attempts to block internet porn; I'll get to that before it's argued on Wednesday, really. But moving ahead, the second case for Wednesday – and the last case for a couple of weeks – is Jinks v. Richland County, SC. The question presented is whether there is ANY limit to what the Rehnquist Court will do in the name of "state's rights". That's not really the question, but it's close.

Under 28 U.S.C. 1367, if you bring a lawsuit in federal court based on alleged violations of federal law, you can also add claims that are based on state law, too. Then, if the federal court issues a decision on the federal law claims and doesn't feel like messing with the state law claim, it can dismiss the state law claim "without prejudice", meaning that you're free to refile the state law claim in state court. But what if the state law "statute of limitations" – the legally-provided period of time within which you have to bring a lawsuit – has run in the meantime, while you were litigating in federal court? Should you be out of luck, and unable to pursue your state law claims based on the passage of time, simply because the federal court didn’t want to bother? The federal statute (1367(d)) answers this problem by saying "the state law limitations period is tolled while you were litigating in federal court, and for 30 days thereafter" – which is to say, in effect, you won't be out of luck in state court if the federal court declines to hear your state law claim.

But the South Carolina Supreme Court. in a suit against a county, held, "State's rights! state's rights! That darn Congress has got no business telling us how to do our own darn statute of limitations in our own darn courts in a suit against our own darn county! State's rights! Tenth Amendment! The state-court lawsuit that Jinks filed, after the federal court declined to decide her state-law claim, was untimely under our statute of limitations. We hold the statute unconstitutional! No lawsuit for you!"

This argument sounds absurd to me. But it also sounded absurd to me when the State of Minnesota said something close to the same thing last year, as to a suit against the State itself (not a county), in a case called Raygor; and it sounded positively wacky when the Supreme Court ruled for Minnesota! So my sense of what's absurd is different from the Supreme Court's. (The Supreme Court, it may be noted, decided the Minnesota case not by concluding that the statute was unconstitutional, but by interpreting the statute in a rather strained way, as not applying to state-law claims against states, so as to avoid the constitutional question).

Nonetheless, to agree with the South Carolina Supreme Court would be even MORE absurd, because here we're talking not about a state but about a county; and as I've mentioned before, cities and counties generally don't have the sort of "sovereignty" that states so happily enjoy in the Supreme Court these days. The interpretive route that the Supreme Court took in Raygor shouldn't help the County here, because of the difference between "county" and "state". We can infer pretty easily from the concurrence and dissent in Raygor that the four quasi-liberal Justices will vote to reverse. Will all five of the others vote to affirm? I can't bring myself to believe that they will be that extreme. The reversal, indeed, ought to be unanimous; in any event, REVERSE it is.

(There are now only 25 more cases to predict, for this Term. There is light at the end of the tunnel).

posted by sam 3:01 PM 0 comments

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