A society needs minimum standards

A lot of people look at laws that are hard to enforce and say, “let’s get rid of those laws.”  The three major recipients of this line of reasoning are drugs, prostitution and illegal immigration.  People ask, “Why criminalize these inevitable behaviors, especially since criminalizing them draws into the law enforcement net people who seem more like victims than bad actors?”

I happen to think that some behavior needs to be criminalized, because a society has to draw lines defining what its values are.  I won’t touch the drug question in this post, since I think it was well hashed out here in Don Quixote’s earlier post.  However, I would like to talk about prostitution and illegal immigration.  The first issue — whether we’re right to make prostitution illegal — seems to me to reflect two core values.  The first is respect for women.  We as a society refuse to allow women to be treated as pure sexual commodities.

Of course, in reality that principle teeters on the edge of a very slippery slope.  We allow pornography and Vogue Magazine, and sleazy TV shows and sex in movies, all of which arguably fall into the same category of female exploitation.  It’s hard to draw bright lines, because the relationship between men and women is always going to be sexualized.  More than that, women tend to do a lot of parading for each other, not in a sexual way, but in a boastful way.

As a perfect example of this last point, I urge you, if you can, to watch Chris Rock’s Good Hair, which examines the obsession so many black women have with avoiding the genetic legacy of “nappy” hair, opting instead to try to replicate straight, long, Anglo hair.  The link I included above advertises the video as “funny” and, in a way, it is.  Mostly, though, it’s tragic.  It turns out that black women who want Anglo hair have two choices:  dangerous chemicals or staggeringly expensive human hair weaves.  The irony with this Hobson’s choice is that the women’s real audience isn’t men or white people, it’s other black women.  I doubt white people notice black hair much.  (The last time I noticed was in the early 70s, when ‘fros were a political, not a fashion, statement.)  Even worse, the black men to whom Rock spoke hated the weaves:  they hated the time and money spent, and they hated the fact that weaves mean that black women will not allow anyone to touch their hair, nor will they engage in any activities that mess that precious hair.

My point about the black women’s hair is that, as is true with so many sexualized activities, those activities are actually aimed at women.  (Think:  fashion magazines.)  Prostitution, however, creates a direct dynamic between male and female that we, as a moral, Judeo-Christian culture, wish to avoid.  That we are frequently unsuccessful in that effort doesn’t mean we should give up trying.  This is a line — a moral, ethical and social line — that we draw to define who we are and what we value.  It sends a message to the people within our culture.  Those who argue that legalizing prostitution actually protects the prostitutes miss the point:  the whole institution is corrupt.  Legalizing it is a band-aid over a festering wound.  Certainly the British Muslims who turn British women into their sex slaves understand the real dynamic at work.  (Porn, by the way, isn’t much better.)

I can make much the same argument for doing away with the laws governing illegal immigration, all of which focus on the ills resulting from the immigration laws themselves:  (1) Mexicans are nice people; (2) children are the innocent victims of their parents’ illegal acts; (3) we need the labor and its wrong to turn workers into criminals; etc.  Those are all the details.  The bigger principle, however, is that a nation needs to protect its sovereignty, and that includes making decisions about who crosses its borders.  Defending borders is a use-it-or-lose it proposition.  Either you are a nation, or you are a patch of land over which people fight.  I’d prefer the former, as opposed to the anarchy of the latter.  With that overarching principle in mind, I’m willing to accept the challenges of enforcement, and the tragedy of divided families (a tragedy that wouldn’t happen, of course, if the parents hadn’t decided to gamble with their children’s lives).

I’m sorry if this is a bit of a wondering post, but my chaotic day has meant that I’ve been writing these six paragraphs over the last six hours.  I admit that I’m weaving in some random thoughts as they come along, but I’m hoping that y’all get my point — one with which you can agree or disagree.  I just feel relieved that I finally was able to sit down and wrap this thing up!

It’s no fun, being an illegal alien *UPDATED*

Life can be tough when you break the law.  The people who murdered Annie Mae Aquash discovered this fact when they were arrested and tried for murder 35 years after killing Aquash.  Sara Jane Olson, an SLA terrorist during the 1970s, discovered that when her quiet, suburban life in Minnesota was revealed and she spent several years in jail, despite the fact that she had three children.  My sister’s friend discovered this tough rule when he was hauled off to jail after unwittingly having had sex with an underage girl.  (That is, he wasn’t a predator.  Except for the absence of gray hair, the girl looked older than I do.)

Open today’s paper (I don’t care which paper; any paper), and you will read about someone who committed a crime and got hauled off to jail — and that is true whether the crime was old or new, whether the person acted knowingly or unknowingly, and whether the person had children or not.  As to that last, it’s worth noting that our American prisons are crawling with people who have left children outside.

How different is the story when the lawbreaker comes from Latin America, illegally, and drives around the streets of America, illegally.  That person, we are assured, is a law abiding citizen, other than all that illegal activity, and it’s just so unfair that such a person, not to mention his or her children, has to pay the for this illegal activity.  I’m not making up this maudlin outrage.  It comes courtesy of a front page story in today’s New York Times online (complete with illustration of one illegal lady hugging her daughter and, to amp up the emotions, her grown niece too):

It was just another suburban fender-bender. A car zoomed into an intersection and braked too late to stop at a red light. The Georgia woman driving it, an American citizen, left with a wrecked auto, a sore neck and a traffic fine.

But for Felipa Leonor Valencia, the Mexican woman who was driving the Jeep that was hit that day in March, the damage went far beyond a battered bumper. The crash led Ms. Valencia, an illegal immigrant who did not have a valid driver’s license, to 12 days in detention and the start of deportation proceedings — after 17 years of living in Georgia.

Read the rest here.  Depending on your political orientation, come prepared with either a handkerchief or a barf bucket.  The article’s push is to get driver’s licenses for illegal immigrants, because it’s so unfair that they’re currently out on the road, unlicensed, and running the risk that their illegal driving might reveal their illegal status.

This post, obviously, ties in with my earlier post about the DREAM Act which, while it takes into consideration the needs of children raised in this country, totally ignores the fact that it is an open incitement to illegal behavior.

Honestly, if one gets to pick and choose with impunity the laws with which one wishes to comply, why have laws at all?  This, by the way, is a familiar plaint on my part, since I routinely see judges, when ruling on a given case, decide who the underdog is and then proceed to rule in that party’s favor, regardless of the controlling law.

I’ve worked on a lot of those cases, and I’ll concede that my clients aren’t always nice or good, and the person on the other end is sometimes suffering a real hardship.  Having said that, though, on such cases, my client is totally within his rights under the law, and the other person doesn’t have a legal leg to stand on.  I’ll also concede that our common law has always had an “equitable” side that leans towards abstract fairness, but this ancient principle was always meant to flex the letter of the law, not ignore it entirely.

The problem with our modern approach, which views the law as an impediment to justice, is that it leaves us as a society in which there is no rule of law.  Our whole system of statutes and cases is just a pretense, since any given judge does what he or she wants at any given time.

Of course, without a system of laws, one inevitably descends into anarchy.  Laws may sometimes have harsh outcomes, but if they’re reliably enforced, people can actually plan to avoid those outcomes.  In a “legal” system in which the most pathetic person always wins, the only thing people need to do with their lives, whether in the world of contracts or the world of crime, is to plan on being pathetic losers.  You lose — you win!  This is no way to run a functioning, predictable, reliable, successful society.

Cross-posted at Right Wing News

UPDATE: Sadie sent me a link that’s perfectly apropos.

Maybe liberals need a linguist’s help to hide what they’re saying, not to promote it

Ginsburg on the US ConstitutionI found the following paragraph, culled from the San Francisco Chronicle, fascinating (emphasis mine):

From top congressional leaders to online activists, liberals have sought the wisdom of UC Berkeley linguistics Professor George Lakoff for years. They ask him to teach them to do something that conservatives traditionally have done better — frame complex policy into simple, digestible morsels that voters will swallow.

(The rest of the article is about Lakoff’s own contribution to the California ballot, which is interesting, but does not interest me right now.)

There are two thoughts underlying that emphasized language.  The first is that voters can only understand the most simple ideas; and the second is that Machiavellian conservatives (probably because they are themselves simple-minded morons) have figured out how to tap into that vast, stupid national psyche.  The one thing that doesn’t seem to occur to the Chron writer, or to the Democrats themselves, is that conservative ideas might succeed because there is an elegant purity to them, that all can easily grasp without sophisticated salesmanship and translation.

Not all good things need to be complex, at least in their ultimate expression.  The Ten Commandments (although there are actually more than the core ten) are a lovely example of moral clarity in few words.  The ideas are remarkably sophisticated, and were groundbreaking when Moses first announced them in a pagan world, but they are simply written and require little in the way of clarification to appreciate them:

I am the Lord your God, who brought you out of the land of Egypt, out of the house of slavery;

Do not have any other gods before me.

You shall not make for yourself an idol, whether in the form of anything that is in heaven above, or that is on the earth beneath, or that is in the water under the earth.

You shall not bow down to them or worship them; for I the Lord your God am a jealous God, punishing children for the iniquity of parents, to the third and the fourth generation of those who reject me,

but showing steadfast love to the thousandth generation of those who love me and keep my commandments.

You shall not make wrongful use of the name of the Lord your God, for the Lord will not acquit anyone who misuses his name.

Remember the Sabbath day and keep it holy.

For six days you shall labour and do all your work.

But the seventh day is a Sabbath to the Lord your God; you shall not do any work—you, your son or your daughter, your male or female slave, your livestock, or the alien resident in your towns.

For in six days the Lord made heaven and earth, the sea, and all that is in them, but rested the seventh day; therefore the Lord blessed the Sabbath day and consecrated it.

Honor your father and your mother, so that your days may be long in the land that the Lord your God is giving you.

You shall not murder.

You shall not commit adultery.

You shall not steal.

You shall not bear false witness against your neighbor.

You shall not covet your neighbor’s house; you shall not covet your neighbor’s wife, or male or female slave, or ox, or donkey, or anything that belongs to your neighbor.

It’s certainly true that one can refine on those core principles.  Murder can be situational.  Is it murder when one is engaged in war?  Is it murder when one is acting in self-defense?  Is it murder when one is in the grip of a delusion?  Stealing also might yield to situations:  Is it stealing if you’ve been imprisoned by the Nazis and are able to “obtain” food from one of those same Nazis?  While the nuances are pretty much endless, the core principles remain easy to follow.

The same is true for a lot of conservative core principles.  “The more power that vests in government, the less power there is for individuals.”  Again, you can debate situations in which it is appropriate to cede power to the government, but the underlying truism is easily expressed and helps guide conservative thinking without any fancy linguistic tricks.  “Government is a poor manager.”  Well, our own life experience shows us that.  We acknowledge that there are some things that government must manage (the military, national transportation, etc.), so the application of that principle is open to debate, but the principle itself is straightforward, and easy for the man on the street to understand.

One thing life in law has taught me is that the best arguments are invariably the ones that can be expressed in the simplest terms.  If I have to mass hundreds of little factual points and conclusions, and delicately weave them into some airy, gossamer fabric, I’m going to lose.  I’m adept at doing that, since I have a flexible mind and good writing skills, but even the best lawyer is going to have a hard time forcing a judge to bet on that tangled intellectual fabric.  If my argument, however, is a short, sweet, easy-to-understand amalgam of fact and law, I’ve won.

And here’s something for you to think about:  it’s no coincidence that the best writers on the Supreme Court are conservatives (Roberts and Scalia), while the worst writers are, and have been, liberals (Ginsburg, Stevens, Souter).  Liberals spend an inordinate amount of time trying to pretend that disparate ideas, false logic, unworkable syllogisms, bad law, and twisted facts can come together in a smooth, constitutionally whole fabric.

The conservative justices, however, since they begin each decision with the Constitution (itself a simply written document) as their guide, are easily able to bring facts and law together under that already logical umbrella.  They therefore repeatedly publish decisions that are well-written, comprehensible, and easy to sell to ordinary Americans, without translation through the Berkeley linguistic filter.

In other words, the problem doesn’t lie with liberal language, it lies with liberal ideas.  And if you don’t believe me look at Obama.  Liberals consider him to be the oratorical Second Coming of John F. Kennedy.  He has promoted his health care plan in 35 speeches, but has only succeeded in hardening voters’ dislike of government run health care.  It’s not how he says it, it’s what he says.

Defending against legal jihad

One of the lesser known, but very dangerous fronts, in the jihad war against the west is the Islamists’ habit of using our own Western laws against us.  Right now, a front in that particular battle is being waged in Canada, where McMaster University is suing Dr. Paul Williams after he wrote about the peculiar nexus between that institution, Islam, and terrorists.  You can read Dr. Williams’ side of the story here, at Right Truth.

Maybe I’m not quite as cowardly as I thought I was

One of the main reasons I’ve kept my politics under wraps (stating my views if confronted directly, but not engaging in heated political debate otherwise), is because I’ve been worried that it would affect me professionally.  In my neck of the woods, most of my potential clients had Obama bumper stickers on their cars and sang hosannas upon his election.  All of them are very nice people  (I wouldn’t work for them otherwise), but I’ve never trusted any of them enough to risk letting them know that I disagree with their political outlook.  I kept telling myself I was cowardly or paranoid, but then I’d look at the money they paid me, money that helps pay our expenses and fill our retirement accounts, and I’d figure a little paranoia and cowardice wasn’t so bad.

It turns out that my instincts might have been right.  Although I’m sure it wasn’t my clients who wrote to the New York Times‘ ethicist, it could have been.  It turns out that some lawyers are thinking that it’s okay to discriminate against conservatives, just as one might once have discriminated against blacks or Irish or Jews (h/t Above the Law):

While interviewing law students for jobs as paid summer interns and full-time associates for my firm, I noticed several had résumés listing their activities in the Federalist Society. Some of my partners have conservative views similar to those of the society, but I do not. These students’ politics would not affect their professional function, but my review is meant to consider their judgment and personality (though I don’t need to give reasons for the assessments given). May I recommend not hiring someone solely because of his or her politics? NAME WITHHELD, GREENWICH, CONN.

The Federalist Society incidentally, the one that gets this lawyer’s knickers in a twist, is not made up of rabid, Bible-spouting, gun-toting, racist, homophobics.  Instead, it is a highly intellectual legal organization dedicated to preserving the Constitution within the context of the legal profession.

To his credit, Randy Cohen, the Times’ resident ethicist, was horrified by the idea (although he still manages to take a swipe at the Bush administration):

You may not. If candidates can do the job, bathe regularly and work well with others, you should hire them. As you note, their “politics do not affect their function.” Is it your position that only people who share your politics should be allowed to make a living? It was odious when membership in the Federalist Society was all but required for some jobs in the Justice Department; it is no more appealing to make that affiliation a bar to employment at your firm.

What’s fascinating about the above interchange is that the lawyer, having written to the ethicist to seek his guidance, promptly ignored the guidance sought:

Believing that all the applicants were qualified, but able to hire only a few, this person recommended rejecting each member of the Federalist Society.

It’s exchanges such as the one above that confirm with me that I haven’t been paranoid.  Liberal lawyers are just as prone to discriminatory practices as are universities.  Speaking of which, I heard from a parent that his child had to go through a more rigorous admissions process at a major university because of his conservative politics — and, unsurprisingly, that same university couldn’t bring itself to say yes.  What was amazing was that there was nothing subtle about this.  They viewed this sterling young person with the same suspicion that you or I might give to a child raised in a terrorist enclave.

I was raised as a liberal.  I know liberal thinking:  conservatives are evil.  And really, if you had a law firm to run, would you want evil people working for you?  It’s hard enough to be lawyer without worrying about the devil in the office next to yours.

Incidentally, I don’t have a problem with firms making such decisions.  If they want to shut out the best and brightest legal minds, the market will eventually turn on these firms.  I do have a problem, however, when publicly funded universities and colleges, or publicly funded radio and TV stations, engage in the same discriminatory practices.  If you’re going to relieve me of my money through the brute force of government, you better pay lip service to my views.

A decent, and prescient, courtroom thriller *UPDATED*

For my birthday, my husband gave me an Amazon Kindle.  It’s a sensible gift for me, since I read voraciously and often find myself waiting around in various places because of carpools.  Since the Kindle fits in my purse, I always have something to read.

The only problem with the Kindle is the expense.  Hardback books are 50% off, but I would never pay $10.00 for a book.  Paperback books are barely discounted at all, and I would never pay $8.00 for a book.  So, I do three things:  I still haunt my library; I buy “disposabooks” at Goodwill (novels for about $1.39 each); and I download the free books that publishers put up at the Kindle site in hopes of sparking interesting in a writer.  (You can see what I mean at the Kindle bestseller page.)  A couple of weeks ago, I lucked out when I found a series of JAG Corp legal thrillers by a guy named Don Brown.

I’d never heard of Don Brown before finding his books, and quickly discovered why:  The books are Christian themed and are from a Christian publisher.  In other words, this is not a genre that would normally cross my radar.  Not being a Christian myself, I don’t seek out Christian literature.  The lure of free thrillers, however, was too much for me.

I just finished Brown’s first book, Treason, and am now reading his second, Hostage. Treason was an interesting book.  Brown’s writing is a little wooden, but no more than you’d expect from a first time novelist.  Despite the writing, though, there’s a lot to like about the books.  First, as a lawyer, I found the courtroom scenes and the description of trial proceedings interesting.  The twist of a military setting just added a bit of spice.  Second, I liked his lead characters, who are moral people (in large part due to the Christian element), and who grapple with legal situations familiar to all lawyers.  Third, I really enjoyed his abiding love for the Navy, which comes through in every word.  Even the uniforms delight Brown.

Mostly, though, I liked the book because of Brown’s honesty about Islamic terrorism.  Brown has no interesting in politically correct tropes about peace.  He recognizes that we are at war with a fanatical element in Islam, which in turn is supported by passivity and political correctness. In Treason, published in 2005, Brown showed himself to be especially prescient.  The plot involves Islamic members of the military who use their special access to commit acts of terrorism directly against the military — shades of Nidal Hassan.  Brown also grapples with whether Islamic terrorists who are engaged in guerrilla activities against the United States should be tried in regular criminal courts or in military courts.  That, too, could have been ripped out of today’s headlines.  It’s no surprise, given that his protagonist is a JAG officer that Brown sides with a military tribunal, but he also makes cogent arguments for doing so — arguments that could be made, and have been made, with respect to Holder’s/Obama’s insane decision to try KSM in New York’s federal courts.

So, if you’re looking for an easy read, military thriller, with strong Christian themes, I can definitely recommend Don Brown’s books.  They are fun, and they have a crystal ball element of prescience that I always appreciate.

UPDATE:  Just finished Hostage.  As I suspected it would be, it’s better than Treason.  From one book to the next, Brown’s writing became more polished and smoother.  The first book was a good debut effort, but Brown is now getting his writing chops.

Obama is now citable legal authority

Traditionally, in arguing cases to the court, there have been a very limited number of available types of legal authority:  cases, statutes, administrative rules, and law review articles (with the last being advisory only) have pretty much made up the universe of things the court needs to consider.  In this Age of Obama, though, there’s a new authority:  Obama himself.  Yup.  In an anti-Prop 8 lawsuit, the plaintiffs are citing an Obama speech as legal authority (emphasis mine):

An attorney for the couple said he will argue that the administration is on the wrong side of the case, in light of Obama’s latest comments.

“I’m not sure who the attorneys for the United States are representing,” attorney Richard Gilbert said.

Pressed by gay-rights groups to live up to his campaign promise to be a “fierce advocate” of equality for gays and lesbians, Obama denounced the 1996 law Wednesday while announcing limited benefits to the same-sex partners of federal employees.

“Unfortunately, my administration is not authorized by existing federal law to provide same-sex couples with the full range of benefits enjoyed by heterosexual married couples,” the president said. “That’s why I stand by my long-standing commitment to work with Congress to repeal the so-called Defense of Marriage Act.

“It’s discriminatory, it interferes with states’ rights, and it’s time we overturned it,” Obama said.

Obama also criticized the law as a presidential candidate. But as president, he was speaking with more authority – and his statement that the law was discriminatory appeared to contradict what his Justice Department argued only six days earlier in Smelt and Hammer’s case.

Now, one can certainly quote Obama’s statement as part of the argument section in a legal brief, but it’s apparent that the suing couple want to cite him as law.  Even the Chron, though, is not so sure, as it cites two law professors who point out that, as far as the workings of the court go, Obama just doesn’t rank with a statute or case precedent:

Two law professors had a different view, saying Obama’s statements were noteworthy but probably had no legal effect.

“I would say Obama was speaking in a nonlegal manner … more policy oriented,” said Vikram Amar of UC Davis. He said the president may have used “discriminatory” as a term of moral condemnation, while the Justice Department used a narrower legal definition to argue that the law did not violate anyone’s rights.

In a way, though, this lawsuit illustrates something kind of sad, which is the way in which supporters of gay marriage are trying to dig their idol’s feet out of the clay.

What I see when I read my “real me” facebook page (where a lot of my old friends are either gay or gay-friendly), is that many gays feel betrayed by Obama’s stance on gay marriage.  They’re unimpressed by his speeches about his own feelings on gay marriage, since his own government is actively continuing the Bush era policies.  Now that he’s president, Obama, despite setting up straw men left and right to maintain himself in the magisterial middle, is finding it hard to be all things to all people.

Supreme Court: officials cannot be sued for 9/11 reactions *UPDATED*

This just in, over BNO news:

BULLETIN — U.S. SUPREME COURT: SENIOR OFFICIALS CANNOT BE SUED FOR ALLEGED POST 9/11 ABUSE.

This is good news, because current administration figures should not be suing past administration figures for the latter’s conduct in a crisis.  I mean, can you imagine if Eisenhower’s administration had gone gunning for the Roosevelt/Truman crew for their conduct following Pearl Harbor or for the Korean War?

UPDATEHere’s the Supreme Court opinion, written in Kennedy’s usual turgid prose.  Much of the opinion is taken up with procedural stuff.  The main takeaway from my point of view is that, God forbid the US is ever attacked again, government officials are not barred from using reasonable racial profiling in the wake of the attack.

The changing face of the law

I went to law school in the days when students still took notes by hand. When I started practicing law, secretaries had computers at their desks, but no lawyers did. My first law firm used a “Wang” word processing system, which was really nothing more than a typewriter on the screen. The word processing department had to place the footnotes manually when the document was in its final draft. Woe unto the lawyer who waited to long to finalize a document and then tried to jump the line in word processing.

Legal research was still primarily a matter of books — lots of them. If you found a case from 1955 that was really good, and you wanted to see whether it had been followed in the intervening years, you had to plow through volume after volume of “Shepards,” the series of books that tracked every single subsequent reference to any case every written. Computer research was coming into being, but you could only get to online databases through dedicated computers in the law library. Because it was so expensive, only the big firms had access — and even then it gave them an advantage.

A mere four years after I started practicing law, there’d been a sea change. Every lawyer in my firm had a computer on his or her desk, and secretaries, instead of typing documents from scratch based on handwritten notes or dictation, were used merely for finishing and copying documents. Cases and statutes were available on line — by modem! at your own computer! — and also could be had on disks that you just popped into your computer. Things have been moving forward wildly since then.

I work out of my home now, but I still have access to complete legal databases via computer. I just get on the internet, go to Westlaw or Lexis and voila! I have easy access to precisely the same material that used to require a long shlep to the library, a photocopy card, and a lot of time spent standing in front of that copy machine. Finding cases is a matter of playing around with words and concepts until the computer coughs up something useful. If you like what you find, creative research allows you to spin it out endlessly, through subsequent decisions, varying jurisdictions, source books, and time frames.  At the end of the day, you print the results or download them or save them as a pdf file, whichever works best for you at a given moment in time.

The internet has also changed the ancillary aids to law. For one thing, a Google search often yields surprising results. More and more firms and lawyers have law blogs (or blawgs) where they post memos they’re proud of, tout their legal expertise, or provide helpful links to other legal sources. There’s even a blawg about law blogs.

Lawyers aren’t the only ones who are using the internet to market themselves. There’s a lot of legal support out there too. When I had to serve a subpoena across the country, I hopped on the internet and quickly found a process serving company — there are dozens referenced on line now. When I had a US Supreme Court writ of certiorari I had to file, I found a company that walked me through the complex procedure for preparing a brief and then got the filing done for me. I can’t remember which company it was, but it easily could have been this one, which I just found through a Google search.

Nowadays, you don’t even need a secretary anymore. Even if you’re not adept at typing or finalizing documents yourself, with modems and scanning, you can do it all from a distance. Here’s a gal who notes (correctly, I’m sure) that she’ll save money for the lawyers who hire her, since they only pay her for work actually done. No more salary, no more unemployment payments, no more health insurance. Simply send her a half-done file, or a pdf of a handwritten draft, and she’ll do all the secretarial work for you — and that’s true no matter where you are relative to where she is.

What’s also fun is all the information about judges that’s out there now. There’s a cool website called “The Robing Room” where lawyers get to say what they really think about judges — and much of it is not pretty. I discovered it when someone sent me a link to a judge who got the following types of reviews:

This judge is the an absolute embarrassment to the bench. While personal epithets are not always appropriate when rating someone on a site like this, a federal judge should be bright enough to do his job, and this one is simply stupid. He tries to cover up his stupidity by being pompous, but he simply does not get the issues. His pompous, obstructionist attitude carries over to his miserable clerk, Kevin. Percy Anderson is a strong indication as to why the federal courts need an analogous statute to California

***

The worst judge: stupid, arrogant, rude, and unfair. Seems to be mentally unbalanced.

***

This is a very bad man. He is arrogant, aloof, lazy, unable to grasp difficult concepts, completely pro-government and business, and totally against the little guy. The Ninth Circuit sua sponte has removed him from cases and is believed to have put an asterisk next to his name so that when appeals from him come before the court the staff attorneys give it special scrutiny.

***

This judge is ruthless, mean, and demeaning, for no apparent reasons other than just being like that. He is one of the worst judges in the Central District of California. He’s not very smart, but thinks he knows everything. This combination of ignorance and arrogance is awful for lawyers and litigants.

Wow! What’s even more of a wow is that Judge Anderson hasn’t cracked the “worst judges” list at the Robing Room. It’s hard to believe that there are less competent judges out there, but there are.  Indeed, there seems to be a problem with Anderson’s district (the Central District of California), since three of the ten bottom rated judges come from there.  Thanks to Robing Room, you’re armed when you go into Judge Real’s court having already read these reviews:

He is a tyrant and undiagnosed bipolar jurist who needs to have his mediciation checked by the 9th Circuit. He is a poster boy for the mandatory retirement of U.S. District Judges. Mel Brooks was right when he said “it’s good to be the king,” but it’s better to be a federal judge.

***

This guy is the worst federal judge. Yet again, the Ninth Circuit reversed him for arbitrary and capricious conduct, this time for doing something good — giving a lenient sentence — but refusing to give any reasons. He screws up everything. U.S.A. v. Medawar, 07-50180 (9th Cir. 03-12-08).

***

This lazy, vicious monarch has terrorized litigants and lawyers for 42 years and has the highest reversal rate in the Ninth Circuit, which virtually automatically and sua sponte re-assigns his cases to other judges when it remands them. Soon, hopefully, the Ninth Circuit will take all his cases away from him, but 42 years too late. Just an awful judge.

In the old days, unless you had a friend who had been in the Court first, you’d just get blind-sided.  At least now you can take your Valium first and see your therapist after.

Having practiced law for a long time now, I’m pretty sure that law is one area that has benefited substantially from the computer revolution.  Access to information and services is easier, and practice flexibility is hugely increased.  Has your industry benefited as well?

Well, that’s an interesting point

When I was a young lawyer and an avid Democrat, I was just thrilled that Bill Clinton and his wife were both lawyers. It seemed to vindicate my career decision. As I’ve become less enthralled with being a lawyer, and as the lawyer politicians have proven adept at parsing the truth (“it depends what ‘is’ means”), I’m a little less excited about the professional affinity I share with the Clintons and the Obamas.

One thing I never realized, though, is that I share a professional affinity, not just with those two power pairs, but with just about every major Democratic politician there is:

The Democratic Party has become the Lawyers’ Party. Barack Obama and Hillary Clinton are lawyers. Bill Clinton and Michelle Obama are lawyers. John Edwards, the other former Democrat candidate for president, is a lawyer and so is his wife Elizabeth. Every Democrat nominee since 1984 went to law school (although Gore did not graduate.) Every Democrat vice presidential nominee since 1976, except for Lloyd Benson, went to law school. Look at the Democrat Party in Congress: the Majority Leader in each house is a lawyer.

The Republican Party is different. President Bush and Vice President Cheney were not lawyers, but businessmen. The leaders of the Republican Revolution were not lawyers. Newt Gingrich was a history professor; Tom Delay was an exterminator; and Dick Armey was an economist. House Minority Leader Boehner was a plastic manufacturer, not a lawyer. The former Senate Majority Leader Bill Frist is a heart surgeon.

This is not just an interesting coincidence. It tells one something about the abilities and belief systems that animate these office-seekers:

Who was the last Republican president who was a lawyer? Gerald Ford, who left office thirty-one years ago and who barely won the Republican nomination as a sitting president, running against Ronald Reagan in 1976. The Republican Party is made up of real people doing real work. The Democratic Party is made up of lawyers. Democrats mock and scorn men who create wealth, like Bush and Cheney, or who heal the sick like Frist, or who immerse themselves in history like Gingrich.

The Lawyers’ Party sees these sorts of people, who provide goods and services that people want, as the enemies of America. And so we have seen the procession of official enemies in the eyes of the Lawyers’ Party grow. Against whom do Hillary and Obama rail? Pharmaceutical companies, oil companies, hospitals, manufacturers, fast food restaurant chains, large retail businesses, bankers and anyone producing anything of value in our nation.

This is the natural consequence of viewing everything through the eyes of lawyers. Lawyers solve problems by successfully representing their clients, in this case the American people. Lawyers seek to have new laws passed, they seek to win lawsuits, they press appellate courts to overturn precedent, and lawyers always parse language to favor their side.

Confined to the narrow practice of law, that is fine. But it is an awful way to govern a great nation. When politicians as lawyers begin to view some Americans as clients and other Americans as opposing parties, then the role of the legal system in our life becomes all consuming. Some Americans become “adverse parties” of our very government. We are not all litigants in some vast social class action suit. We are citizens of a republic which promises us a great deal of freedom from laws, from courts, and from lawyers.  (Emphasis mine.)

Read the rest here.

NY Times shills for sharia law *UPDATED*

From the every first paragraph of a lengthy New York Times Magazine article about Sharia law, you know you’re in for an intellectually dishonest voyage through the multi-culti mindset of the New York Times, this time as put forward by Noah Feldman who is, unsurprisingly, a law professor at that bastion of liberal think, Harvard. It’s a long article, so I won’t Fisk the whole thing, but I can’t resist tackling at least the first few paragraphs:

Last month, Rowan Williams, the archbishop of Canterbury, gave a nuanced, scholarly lecture in London about whether the British legal system should allow non-Christian courts to decide certain matters of family law. [Well, not really. He gave a muddled, incomprehensible lecture that vaguely waffled about Sharia, without actually giving anyone a clear sense of what he was talking about — although, maybe, at Harvard, that passes for nuance. It was in a contemporaneous TV interview, though, that Williams let the cat out of the bag, and admitted that he wasn’t talking about private judicial systems with voluntary participation — assuming the beleaguered Pakistani women, forced into marriages and killed for “honor,” can voluntarily participate in anything. Instead, he admitted that he thought Britain would actually have to accept Sharia law.] Britain has no constitutional separation of church and state. The archbishop noted that “the law of the Church of England is the law of the land” there; indeed, ecclesiastical courts that once handled marriage and divorce are still integrated into the British legal system, deciding matters of church property and doctrine. His tentative suggestion was that, subject to the agreement of all parties and the strict requirement of protecting equal rights for women, it might be a good idea to consider allowing Islamic and Orthodox Jewish courts to handle marriage and divorce. [As I noted in an earlier post on the subject, that’s not what he was proposing in his “nuanced” speech. While it’s absolutely true that we in America allow people to resolve disputes privately, whether through arbitration, mediation, rabbinical courts, working with their minister, or confiding to the bartender, these are optional systems. People can avoid these systems, however, and instead choose to go use the ordinary civil and criminal laws of America. These American courts will not apply rabbi-made law, or sharia-law, or bartender’s wisdom. Williams, however, stated that sharia law should be, and I quote, “incorporated into the British legal system” — in other words, there’s no escape. And even worse, while it may first be applied only to Muslims, one can well imagine some PC judge thinking it would be useful to apply it to other Brits, as well.]

Then all hell broke loose. [No surprise there since people seem to have understood what Williams actually said rather than having listened to some PC channel, as Feldman did, where he heard what he wishes Williams had said, rather than what Williams actually said.] From politicians across the spectrum to senior church figures and the ubiquitous British tabloids came calls for the leader of the world’s second largest Christian denomination to issue a retraction or even resign. [Yeah, ’cause he showed himself to be a dupe, a dhimmi and an idiot.] Williams has spent the last couple of years trying to hold together the global Anglican Communion in the face of continuing controversies about ordaining gay priests and recognizing same-sex marriages. [One wonders, in this regard if Feldman or Williams have given any consideration to the fact that, under sharia law, homosexuality is a hanging offense, or at least one deserving of torture (and we know that the torture the sharia clerics contemplate goes beyond have rock music blasted at you or even waterboarding).] Yet little in that contentious battle subjected him to the kind of outcry that his reference to religious courts unleashed. Needless to say, the outrage was not occasioned by Williams’s mention of Orthodox Jewish law. For the purposes of public discussion, it was the word “Shariah” that was radioactive. [Yeah, it was radioactive, because Williams didn’t mention incorporating Orthodox Jewish law into the British system, but he did say, and I quote, that sharia law should be “incorporated into the British legal system.” Does Feldman really think everybody is either as credulous or dishonest about this as he is?]

In some sense, the outrage about according a degree of official status to Shariah in a Western country should come as no surprise. No legal system has ever had worse press. To many, the word “Shariah” conjures horrors of hands cut off, adulterers stoned and women oppressed. [Surprise! Surprise! as Gomer Pyle would say. It’s funny how that happens, although it might be tied to all those silly little news stories about homosexuality being illegal in Muslim countries, with homosexuals routinely tortured and hanged; women killed because they were prevented from leaving burning buildings wrongly clad; women stoned to death for adultery; rape victims executed; women prevented from driving or being seen with men; school teachers arrested and threatened with whipping for naming teddy bears after toddlers; forced marriages; thieves’ hands cut off; slavery; etc. I could fill dozens of lines in this post describing the horrors of life under sharia law, but I think you get the idea.] By contrast, who today remembers that the much-loved English common law called for execution as punishment for hundreds of crimes, including theft of any object worth five shillings or more? How many know that until the 18th century, the laws of most European countries authorized torture as an official component of the criminal-justice system? As for sexism, the common law long denied married women any property rights or indeed legal personality apart from their husbands. When the British applied their law to Muslims in place of Shariah, as they did in some colonies, the result was to strip married women of the property that Islamic law had always granted them — hardly progress toward equality of the sexes. [Is this a stupid argument or what? What he’s saying is that, because in pre-modern times we in the West were just as bad as Islam is today, we are not allowed to judge Islam by modern standards. This is what happens when multi-culturalism takes over. When your country’s current legal system is manifestly superior to another country’s current legal, you’re flogged with your country’s far distant past as a way to shut you up. Last I looked, we in the West don’t have slavery, women have property rights, thieves aren’t hanged, torture isn’t routine, etc. Indeed, I think we can comfortably separate ourselves by more than 150 years from these types of punishments. In strict Muslim countries, they can only separate themselves by a few minutes under the next horror comes along.]

In fact, for most of its history, Islamic law offered the most liberal and humane legal principles available anywhere in the world. [Again, the same stupid argument. That Islam looked good compared to the law in the Middle Ages is a straw man argument. I’m not comparing Islamic law to medieval or even pre-Enlightenment law. I’m comparing it to 21st Century America or Europe.] Today, when we invoke the harsh punishments prescribed by Shariah for a handful of offenses [handful!? Homosexuality; driving; consorting with men; wearing anything but a tent; leaving the house alone; stealing; adultery. In what parallel universe is Feldman living?], we rarely acknowledge the high standards of proof necessary for their implementation. Before an adultery conviction can typically be obtained, for example, the accused must confess four times or four adult male witnesses of good character must testify that they directly observed the sex act. [Somehow this high level of proof hasn’t worked too well for the women standing accused, has it?] The extremes of our own legal system — like life sentences for relatively minor drug crimes, in some cases — are routinely ignored. [Again, a straw man. That our system is not perfect does not relieve the sharia system of its manifest awfulness and abuse.] We neglect to mention the recent vintage of our tentative improvements in family law. [Yeah, but Prof. Feldman — we have improved them. Sharia hasn’t.] It sometimes seems as if we need Shariah as Westerners have long needed Islam: as a canvas on which to project our ideas of the horrible, and as a foil to make us look good. [Don’t you love being psychoanalyzed by an ignorant buffoon?]

I’m exhausted. How many stupid statements and dishonest rhetoric can you pack into just four paragraphs? Feldman does go on to ask an interesting question which is why is sharia law growing in popularity. However, given his rhetorical stance in the first four paragraphs, who can trust his analysis in the rest of the article? I know I can’t. He’s established himself as a confabulator, a trickster, a con artist and an ignoramus. Why would I believe anything he says?

I do know that Islam does tend to be attractive in anarchic places, because it promises stability and tight control. (Witness the rise of the Taliban after the chaos left in the wake of the Soviet occupation of Afghanistan.) It’s the “strong man” syndrome, except it plays out as the “strong religion” syndrome. That sharia doesn’t deliver on its promises, that it provides a theocratic totalitarianism, coupled with hate-filled rhetoric (aimed at Jews, Israel, America, homosexuals, women, etc.), will never stop the masses from seeking something that they believe will provide them with greater safety with and control over their day to day lives. Also, sharia, unlike our Western legal system, is inextricably intertwined with salvation. If you tell people that their eternal salvation is dependent on following a certain system, no matter how dreadful, and how medieval, that system is, many will do that — as was certainly the case in the ancient world for many thousands of years.

As for Feldman’s basic argument, which is that, if everyone is doing it, it must be okay, it’s manifest that his mother, when he was a child, never asked him that most basic of parenting questions: “If everybody jumped of a cliff, would you jump too?”

Hat tip: JL

UPDATE:  My friend Patrick has written a very interesting post that dovetails nicely with my attack on Feldman’s spurious comparison between pre-modern Western law and current Islamic law.  In it, he both agrees with a Sister Toldjah post and disagrees with it:

My friend Sister Toldjah has a long post up arguing that it is muddle-headed for the political Left to defend Barack Obama’s cozy relationship with an anti-Semitic racialist conspiracy theorist on the grounds that there are kooky pastors on the Right as well. In that thesis, I agree with her completely. From a logical and rhetorical point of view “So’s your mother” and “everybody does it” are bankrupt defenses.

I take issue with other parts of her post, however, because I think she’s too fine a person to carry water for the ignorant likes of megachurch pastor John Hagee. Any man who believes as Hagee does that “the Roman Catholic Church…plunged the world into the Dark Ages,” and thinks Pope Piux XII “never, ever slightly criticized” Adolph Hitler is a bigoted maroon of the first order.

The rest of his post is a spirited defense of the Catholic church in times past.

I think Patrick makes an excellent point, one of which is that information needs to be examined in context.  Looking back from modern times, there are things that we can’t like about the Dark Ages and Medieval church (the burnings, for one thing).  However, we in the modern era stupidly forget that you cannot measure past institutions — especially institutions that flourished in the distant past — against our own times. Instead, you have to measure them against their own times. For example, much as it’s trendy now to praise Druids and other pagan religions, Christianity was light years ahead of the competition if only one for one reason: it stopped human sacrifice. To me, that’s a biggie.

In the same way, it’s utterly ludicrous for Feldman to defend the horrors of certain aspects of sharia law by saying that, once upon a time, we were just as bad.  We aren’t as bad now, but sharia still is.

Obama and the judges

Edward Whelan, after pointing out that a President Obama would have the potential to appoint up to six new Supreme Court justices, looks at Obama’s rhetoric about the Constitution and the law, and uses that information to explain clearly what type of justices Obama would appoint:

[I]n setting forth the sort of judges he would appoint, Obama has explicitly declared: “We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African-American or gay or disabled or old–and that’s the criterion by which I’ll be selecting my judges.” So much for the judicial virtue of dispassion. So much for a craft of judging that is distinct from politics.

[snip]

Obama often cloaks such extreme positions in sweet-sounding rhetoric. His chapter on “Our Constitution” in his campaign manifesto, The Audacity of Hope, provides a useful case study. There, Obama characterizes his own understanding of the Constitution in positively unctuous terms: “I confess that there is a fundamental humility to this reading of the Constitution and our democratic process.” But there is nothing humble about the judicial role that Obama embraces.

Obama purports to be “not unsympathetic to Justice Antonin Scalia’s position” that the “original understanding [of the Constitution] must be followed,” but he won’t even present Scalia’s views accurately. Let’s set aside the fact, all too common among liberal critics, that Obama doesn’t keep straight the distinction between Scalia’s original-meaning species of originalism, which looks to the public meaning of a constitutional provision at the time that it was adopted, and the original-understanding species, which looks to the contemporaneous understanding of the ratifiers.

[snip]

Obama finds himself compelled “to side with Justice Breyer’s view of the Constitution–that it is not a static but rather a living document, and must be read in the context of an ever-changing world.” But no one disputes that the Constitution “must be read,” and applied, “in the context of an ever-changing world.” The central question of the last several decades is, rather, whether it is legitimate for judges to alter the Constitution’s meaning willy-nilly–in particular, whether judges have unconstrained authority to invent new constitutional rights to suit their views of what changing times require. The cliché invoked by Obama of a “living” Constitution disguises the fact that the entrenchment of leftist policy preferences as constitutional rights deprives the political processes of the very adaptability that Breyer and company pretend to favor. As Scalia has put it, “the reality of the matter is that, generally speaking, devotees of The Living Constitution do not seek to facilitate social change but to prevent it.”

And so on for all of Obama’s other deceptive rhetoric in his chapter on “Our Constitution” in The Audacity of Hope, including his galling claim to be “left then with Lincoln” in their supposed common understanding of the Constitution. On judicial nominations, Obama brazenly contends that “Democrats used the filibuster sparingly in George Bush’s first term: Of the President’s two-hundred-plus judicial nominees, only ten were prevented from getting to the floor for an up-or-down vote.” What Obama’s casting conveniently obscures from the trusting reader is that these filibusters were unprecedented in the history of the Senate. Obama even pretends that it’s obvious that Republicans would resort to the filibuster “if the situations were reversed.” But the best evidence refutes Obama: There were only four votes on cloture–on proceeding to a final vote on confirmation–on judicial nominations during the Clinton administration. All four were supported by Republican leadership, and none received more than 14 negative votes from Republican senators.

Given judges’ traditional longevity on the Court, it’s important to understand that his presidency could affect every aspect of American life — criminal law, civil law, trade agreements, college admissions, abortions, managed care, anything you can think of — for a good thirty or forty years. If that doesn’t scare you to make sure you vote, nothing will.

More on the Archbishop’s foolish idea

Two excellent articles out of England about the folly behind the Archbishop’s idea:

Our British laws are there to protect Muslim women

What parallel sharia means in practice

Yeah, what she said (plus a little of what I have to say)

I was trying to set up a post that selectively quotes from Melanie Phillips’ articles explaining the utter insanity behind the Archbishop of Canterbury’s muddled remarks about bringing sharia law into the British legal system — but I couldn’t. Each paragraph is so information-packed and important that (a) I couldn’t pick what to quote and (b) I couldn’t bear to dilute the impact of the articles in their entirety. I therefore urge you to read the articles yourself, which you will find here and here.

I do have a few words to add, though, about parallel private legal systems. We have them here too. Religious Jews have often resolved disputes through rabbis, not civil courts, and more and more people opt for private mediation or arbitration in the hope that those methods will be cheaper than litigation. With the Jewish disputes, it goes without saying that the law applied is Jewish law. (Phillips has a good description of these tribunals in Britain, and they’re much the same here.) As for the mediations or arbitrations, people can choose their law: they can pick the law of the state in which they live, or the state most favorable to the party in the stronger bargaining position. Heck, they could even choose the law of another nation entirely, assuming all parties agree. If the ultimate outcome of the religious tribunal, arbitration or mediation pleases the participants, that’s the end of the matter, and they go away happily, without the American civil litigation system ever being the wiser.

However, if they’re not happy, they do have recourse to the American litigation system. Sometimes the judge will simply tell the disgruntled party that he agreed in advance to the arbitration, the arbitration was conducted appropriately, and that’s the end of the story. Sometimes, though, the complainant will get to have his case heard and, in that case, American law, whether it be federal or state law, applies, as it would to any other similarly situated claimant. Additionally, if someone comes in complaining that the mediation, arbitration or religious tribunal resulted in an outcome that is antithetical to American law (for example, requiring him to sell his daughter into prostitution or to place himself into slavery), the American system will bring the alternative proceedings to a screeching halt. For all that I’m no fan of judges, only those who are mentally disturbed would allow their courts to be used for those purposes.

Rowan Williams muddled proposal, however, does not contemplate a system such as the American one, in which people can circumvent Civil Courts if they so desire (opting, say, for sharia courts), but if they don’t desire, they are bound by British law in British courts. Instead, he truly states a belief that the British courts should apply sharia law. As Melanie Phillips explains:

Dr Williams for some reason abandoned nuance altogether and left no room for doubt about what he was saying. Which was, in short, that although the

sensational reporting of opinion polls

recording large numbers of British Muslims who want to live in the UK under Islamic sharia law

clouds the issue,

the adoption of sharia law in the UK seems

unavoidable

and indeed desirable, since Muslims should not have to choose between

the stark alternatives of cultural loyalty or state loyalty.

So although

nobody in their right mind would want to see in this country the kind of inhumanity that’s sometimes been associated with the practice of the law in some Islamic states,

Muslims should be able to choose to have marital disputes or financial matters dealt with in a sharia court. Such courts should therefore be

incorporated into the British legal system

as a

constructive accommodation

with Islam.

There is no parallel for this in the American system or even in the British system. Both will enforce as judgments private agreements but, as I noted above, they will not do so if the outcome is inconsistent with fundamental principles of American or British jurisprudence. Woe to England if it backs down from its near universal outrage at Williams’ proposal and allows his ideas to become reality, whether actively or by default.

So, go read Melanie Phillips’ article and then say a prayer for England, for she sorely needs it. And if you’re in a reading mood about Williams, read this one too, at American Thinker.

UPDATE: I’ve switched to a new server, so you can feel free to look around here or check out my new site, which not only has the old stuff, but also will move forward into the future with all my new material.

The scam what am

If you want to witness the interesting spectacle of my going from a fairly mild mannered, motherly lawyer type, to a screaming, foaming-at-the-mouth harridan, mention one acronym:  MCLE.  This stands for Minimum Continuing Legal Education, which I found an inconvenience when I was a big firm attorney and that I find an economic and time burden now that I’m a solo.

Continuing legal education did not used to be a mandatory requirement for practicing law in California.  When I started out as a lawyer, legal organizations and legal publishers would put together seminars and send out fliers in the hopes that lawyers would attend.  Often lawyers did attend because the seminars involved the lawyer’s practice area, and they promised to be interesting or to give the lawyer an edge professionally.  Lawyers took the classes on a strictly as needed basis, so that a lawyer who was just plodding along in a single area, reading the cases as they came out and churning through relatively uninteresting legal cases, might attend one seminar a year.  For example, a litigator might attend an annual half day seminar on new pretrial procedures.  (Or he might just read the new legislation emanating from Sacramento every year, or check the update to his favorite legal treatise, which would spell out all of the new procedural requirements.)

Then, in the late 1980s, the California State Bar suddenly announced that, if lawyers want to keep their licenses, they were required to take 36  hours worth of seminars over a three year period (a requirement since lowered to 25 hours over the same three years).  Not only that, but lawyers couldn’t just take classes in areas that might benefit them as practitioners.  Instead, they also were (and are) required to take several hours of classes in law practice management, legal ethics (which could theoretically help some lawyers out there), substance abuse, and identity politics — oh, sorry, that last should be “Elimination of Bias.”

I had a problem with this whole thing from the get-go, because I like the idea of self motivated self-improvement, not coercive, government mandated improvement (proving that I was a nascent conservative long before I knew it).  I also recognized immediately that the whole thing was a scam.  How?  Because it was set up so that the big firms didn’t have to dig into their pockets to fund their associates and partners for these seminars.  Instead, the big firms could create their own in-house seminars, something that often boils down to some long-winded partner bloviating for an hour about a case, while a captive audience of fellow firm attorneys sucks down caffeine in an often vain effort to stay awake.  Of course, for attorneys without big firm backing, the self-help route was (and is) unavailable.  The only option was (and is) to put your own money on the line for outside MCLE sources.

Now, there are some superb seminars out there.  One wonderful day, I attended Bryan Garner’s incredible legal writing seminar.  But you know what?  I would have been desperate to take that seminar anyway, without the necessity of government coercion.  I learned more in six hours with Bryan Garner than I had in the previous 15 years of practice — including attending other, much cheaper writing seminars.

And oh!, have I attended lots and lots of cheap seminars.  You see, if you don’t have a lot of money to play with, you don’t go to quality seminars of the type that were always offered, even before the mandatory MCLE program — seminars that could actually be useful or, at least, interesting (such as the aforementioned Garner seminar).  Instead, you hunt around for el cheapo seminars, regardless of whether the subject matter is relevant to your practice area.

There was a boom of these el cheapo seminars immediately after MCLE became mandatory, although prices only dropped with the internet.  In pre-internet days, a small firm attorney had to pay $200 to go waste some time listening to someone waffle on for a few hours about the fact that women and minorities are inevitably victims of large firm practice — unless those firms are women or minority owned.  Now, through the miracle of the internet, a lawyer can spend a mere $129 to get all required hours.  But if you think there’s any learning involved, you don’t know how to work the system.  You can read the material, of course, but it’s banal and self-evident.  So, you might be tempted to try a shortcut (not that I ever would, of course).  For example, if you have a large monitor you might, in one screen, open the essay about corporations or substance abuse or some other subject that doesn’t mesh with your practice needs.  In the other window, you could open the 4 question on-line questionnaire.  Then, using word search in the essay, you match the sentence in the essay with the question, and there’s the answer.  It’s theoretically possible to do 5 hours of MCLE in under 20 minutes.

What motivated me to blog about this scam — which has been a burr in my butt for almost two decades — is a segment in Jonah Goldberg’s Liberal Fascism: The Secret History of the American Left, From Mussolini to the Politics of Meaning, about the anti-competitive effects of government regulation of business — and about the fact that businesses, that is, big businesses, are often happily complicit in this regulation since  it benefits them so much:

Consider, for example, the largely bipartisan and entirely well-intentioned Americans with Disabilities Act, or ADA, celebrated everywhere as a triumph of “nice” government.  The law mandated that businesses take a number of measures, large and small, to accommodate customers and employees with various handicaps.  Offices had to be retrofitted to be wheelchair compliant.  Various public signs had to be written in Braille.  Devices to aid the hearing impaired had to be made available.  And so on.  [And on and on as enterprising customers, employees, students and lawyers providing an ever expanding and often quite imaginative list of what constitutes a “handicap.”  They’re rational to do so, too.  If there’s a trough, you’d be a fool not to feed at it.  –Ed.]

Now imagine that you are the CEO of Coca-Cola.  Your chief objection to this law is that it will cost you a lot of money, right?  Well, not really.  If you know that the CEO of Pepsi is going to have to make the same adjustments, there’s really no problem for you.  All you have to do is add a penny — or really a fraction of a penny — to the cost of a can of Coke.  Your customers will carry the freight, just as Pepsi’s customers will.  The increase won’t cost you market share, because your price compared with the competitor’s has stayed pretty much the same.  Your customers probably won’t even notice the price hike.

Now imagine that you own a small, regional soft drink company.  You’ve worked tirelessly toward your dream of one day going eyeball-to-eyeball with Coke or Pepsi.  Proportionally speaking, making your factories and offices handicapped-friendly will cost you vastly more money, not just in terms of infrastructure, but in terms of the bureaucratic legal compliance costs (Coke and Pepsi have enormous legal departments; you don’t).  [And I have several lawyer friends who have made a good living providing ADA advice to innocuous small businesses that suddenly discovered that they needed to make a lawyer part of their budget so as not to run afoul of the feds. -Ed.]   Plans to expand or innovate will have to be delayed because there’s no way you can pass on the costs to your customers.  Or imagine you’re the owner of an even smaller firm hoping to make a play at your regional competitors.  But you have 499 employees, and for the sake of argument, the ADA fully kicks in at 500 employees.  If you hire just one more, you will fall under the ADA.  In other words, hiring just one thirty-thousand-dollar-a-year employee will cost you millions.

The ADA surely has admirable intent and legitimate merits [and maybe MCLE does too, although I always assumed it was due to lobbying by MCLE providers.  –Ed.].   But the very nature of such do-gooding legislation empowers large firms, entwines them with political elites, and serves as a barrier to entry for smaller firms.  Indeed, the penalties and bureaucracy involved in even trying to fire someone can amount to guaranteed lifetime employment.  Smaller firms can’t take the risk of being forced to provide a salary in perpetuity, while big companies understand that they’ve in effect become “too big to fail” because they are de facto arms of the state itself.  (pp. 306-307.)

You can understand why the above language resonated so strongly with me.  I guess the last word on this subject, both vis a vis MCLE and ADA should go to an old saying:  The road to Hell is paved with good intentions.

Another Clinton appointee chisels away at the Patriot Act

I am not conversant with the details of the Patriot Act, nor am I a Constitutional lawyer. I simply find it interesting that, more often than not, when a Federal District Court judge rules something about the Patriot Act unlawful, that judge is a Clinton appointee. The most recent case in point is a decision out of Portland, Oregon, where Ann Aiken, a Clinton appointee, struck down part of the act:

Two provisions of the USA Patriot Act are unconstitutional because they allow search warrants to be issued without a showing of probable cause, a federal judge ruled Wednesday.

U.S. District Judge Ann Aiken ruled that the Foreign Intelligence Surveillance Act, as amended by the Patriot Act, “now permits the executive branch of government to conduct surveillance and searches of American citizens without satisfying the probable cause requirements of the Fourth Amendment.”

Portland attorney Brandon Mayfield sought the ruling in a lawsuit against the federal government after he was mistakenly linked by the FBI to the Madrid train bombings that killed 191 people in 2004.

The federal government apologized and settled part of the lawsuit for $2 million after admitting a fingerprint was misread. But as part of the settlement, Mayfield retained the right to challenge parts of the Patriot Act.

Mayfield claimed that secret searches of his house and office under the Foreign Intelligence Surveillance Act violated the Fourth Amendment’s guarantee against unreasonable search and seizure. Aiken agreed with Mayfield, repeatedly criticizing the government.

“For over 200 years, this Nation has adhered to the rule of law — with unparalleled success. A shift to a Nation based on extra-constitutional authority is prohibited, as well as ill-advised,” she wrote.

Aiken’s ruling may be absolutely correct.  I’m not quarreling with the ruling.  I’m just noticing a pattern.  (See here for another recent example in that same pattern.)

It’s a very small world (if you’re a conservative in the Bay Area)

I just read that a federal judge has temporarily canceled the Patriot Act’s wire tapping provisions. I’m very much not a Constitutional lawyer, so I can’t comment on the validity of this decision at a legal level. Immediately upon reading that story, though, I was pretty willing to bet that Judge Victor Marrero, who operates in the U.S. District Court for the Southern District of New York was a Clinton appointee. I therefore googled “Victory Marrero appointee,” which I thought was a sufficiently broad search to pull up that info.

Guess what I found with the search. Aside from the obvious fact that Marrero is indeed a Clinton appointee, I found another Marin conservative blogger! You see, when Google returned the search results, the very first item on the list was for a website called Marooned in Marin, which comments on the same thing that struck me: it’s somehow not surprising that a Clinton appointee would fairly effortlessly jettison a useful weapon in the war against international terrorism, a war increasingly being strategized without the need for physical locations because of cell phones and the internet.

At least the two of us conservatives in Marin are thinking along the same lines. I feel much less lonely now.  And I’m very flattered because, while I just found Marooned in Marin, s/he had already found and blogrolled me!  Thanks.

It’s a very small world (if you’re a conservative in the Bay Area)

I just read that a federal judge has temporarily canceled the Patriot Act’s wire tapping provisions. I’m very much not a Constitutional lawyer, so I can’t comment on the validity of this decision at a legal level. Immediately upon reading that story, though, I was pretty willing to bet that Judge Victor Marrero, who operates in the U.S. District Court for the Southern District of New York was a Clinton appointee. I therefore googled “Victory Marrero appointee,” which I thought was a sufficiently broad search to pull up that info.

Guess what I found with the search. Aside from the obvious fact that Marrero is indeed a Clinton appointee, I found another Marin conservative blogger! You see, when Google returned the search results, the very first item on the list was for a website called Marooned in Marin, which comments on the same thing that struck me: it’s somehow not surprising that a Clinton appointee would fairly effortlessly jettison a useful weapon in the war against international terrorism, a war increasingly being strategized without the need for physical locations because of cell phones and the internet.

At least the two of us conservatives in Marin are thinking along the same lines. I feel much less lonely now.  And I’m very flattered because, while I just found Marooned in Marin, s/he had already found and blogrolled me!  Thanks.

Using a regulatory howitzer to kill a fly — and destroying freedom in the process

Don Quixote will correct me if I’m wrong, but I think one of the core things about being a libertarian is that you don’t try to control people’s conduct, but you do step in if they break certain clearly stated rules. Indeed, you don’t need to be a libertarian to have that view. As a capitalist, I don’t want the government controlling the marketplace. I just want it to step in and stop cheats. Heck, forget capitalism. Let’s look at the Bible. I doubt many have missed the fact that, subject to a couple of exceptions (identifying the Lord as your Lord, and requiring believers to honor their parents), the Ten Commandments prohibit several categories of immoral acts, but otherwise give people the great gift of free will when it comes to navigating the moral universe.

That’s the sublime. Here comes the ridiculous. To crack down on illegal recruiting in high school athletics, California has imposed a blanket ban holding that kids who transfer from one school to another are barred for a year from participating in competitive sports:

Morgan Farrer knew she wanted to leave Marin Catholic High School last spring. She says all her friends attend Terra Linda High School and she made the decision to transfer, no matter the consequence.

This summer, Farrer learned what it cost her: no interscholastic athletics for one full school year.

“I wanted to play (softball) there,” Farrer said of Terra Linda. “All my friends are on the team, and they want me to play with them, too.”

Farrer, a junior, is among the casualties of tough new regulations for athletic eligibility of transfer students. The new rules, instituted for every high school in the state by the California Interscholastic Federation, make it harder for high school transfer students to retain varsity eligibility at their new schools.

The federation is attempting to curb transfers in which students move to new schools purely for athletic purposes or because of illegal recruitment from coaches. The federation has jurisdiction only over athletics and no other extracurricular activities – which is why a student would not be punished for transferring to a better art department or theater program, but they would lose a year of athletic eligibility even if the transfer is not athletics-related.

The changes come on the heels of a number of violations by members of the Marin County Athletic League. In May, the Redwood High boys lacrosse team was stripped of its league championship and forced to forfeit all its wins for using two ineligible transfer students. Earlier in the spring, the Tam High boys tennis team forfeited the individual matches of an ineligible player who transferred in.

This is the same insanity that plays out in the zero tolerance world that most recently saw a boy suspended from school for drawing what was either a science fiction style weapon or a wacky house.

These kinds of legislative activities, especially when they concern children, could not be better examples of the dangers of government micro management, the type of management that, in the laziest way possible, eases policing duties for government employees. After all, it’s easier just to bar everyone from an activity than to pay attention to whether the activity is being carried out honestly. Worse, this bureaucratic management approach assumes that all employees are too stupid to make judgment calls, and that all students (and employees) are potential cheats.

This post gives me the opportunity to flog a book written more than a decade ago, but one that is as clearly relevant today as it was when written. It’s called The Death of Common Sense : How Law is Suffocating America and its author, Philip K. Howard, fills its pages with examples of rules, regulations and legislation that regularly aim punitive, mind-numbing sanctions at ordinary citizens, and that stifle innovation. Buy it or get it from the library. You’ll find it opens your eyes tro the world around you.

The post also gives me the opportunity to answer publicly a question that DQ asked me privately: How could I tolerate or find even slightly believable the Dolores Umbridge character in Harry Potter and the Order of the Phoenix? My reply was three tiered, with the last tier tying into this post’s subject. First, I’ve actually known people like Umbridge, who are sugary sweet in their presentation and utterly evil and amoral in their acts. Second, I think Umbridge is the extreme representation of girls generally, since girls are often quite mean but cover it with pinky sweetness.

Third — and here’s the tie-in to this post — I think Umbridge is not merely meant to be a character. I think she is a symbol of the type of overreaching bureaucracy that, by paying lip service to the public good, stifles initiative, imagination, free speech, ordinary morality, and individual judgment. And if you think I’m finding symbolism where there is none, keep in mind that J.K. Rowling is a citizen of Europe, where the “beneficent” EU keeps legislating freedom away, one petty regulation after another.

Using a regulatory howitzer to kill a fly — and destroying freedom in the process

Don Quixote will correct me if I’m wrong, but I think one of the core things about being a libertarian is that you don’t try to control people’s conduct, but you do step in if they break certain clearly stated rules. Indeed, you don’t need to be a libertarian to have that view. As a capitalist, I don’t want the government controlling the marketplace. I just want it to step in and stop cheats. Heck, forget capitalism. Let’s look at the Bible. I doubt many have missed the fact that, subject to a couple of exceptions (identifying the Lord as your Lord, and requiring believers to honor their parents), the Ten Commandments prohibit several categories of immoral acts, but otherwise give people the great gift of free will when it comes to navigating the moral universe.

That’s the sublime. Here comes the ridiculous. To crack down on illegal recruiting in high school athletics, California has imposed a blanket ban holding that kids who transfer from one school to another are barred for a year from participating in competitive sports:

Morgan Farrer knew she wanted to leave Marin Catholic High School last spring. She says all her friends attend Terra Linda High School and she made the decision to transfer, no matter the consequence.

This summer, Farrer learned what it cost her: no interscholastic athletics for one full school year.

“I wanted to play (softball) there,” Farrer said of Terra Linda. “All my friends are on the team, and they want me to play with them, too.”

Farrer, a junior, is among the casualties of tough new regulations for athletic eligibility of transfer students. The new rules, instituted for every high school in the state by the California Interscholastic Federation, make it harder for high school transfer students to retain varsity eligibility at their new schools.

The federation is attempting to curb transfers in which students move to new schools purely for athletic purposes or because of illegal recruitment from coaches. The federation has jurisdiction only over athletics and no other extracurricular activities – which is why a student would not be punished for transferring to a better art department or theater program, but they would lose a year of athletic eligibility even if the transfer is not athletics-related.

The changes come on the heels of a number of violations by members of the Marin County Athletic League. In May, the Redwood High boys lacrosse team was stripped of its league championship and forced to forfeit all its wins for using two ineligible transfer students. Earlier in the spring, the Tam High boys tennis team forfeited the individual matches of an ineligible player who transferred in.

This is the same insanity that plays out in the zero tolerance world that most recently saw a boy suspended from school for drawing what was either a science fiction style weapon or a wacky house.

These kinds of legislative activities, especially when they concern children, could not be better examples of the dangers of government micro management, the type of management that, in the laziest way possible, eases policing duties for government employees. After all, it’s easier just to bar everyone from an activity than to pay attention to whether the activity is being carried out honestly. Worse, this bureaucratic management approach assumes that all employees are too stupid to make judgment calls, and that all students (and employees) are potential cheats.

This post gives me the opportunity to flog a book written more than a decade ago, but one that is as clearly relevant today as it was when written. It’s called The Death of Common Sense : How Law is Suffocating America and its author, Philip K. Howard, fills its pages with examples of rules, regulations and legislation that regularly aim punitive, mind-numbing sanctions at ordinary citizens, and that stifle innovation. Buy it or get it from the library. You’ll find it opens your eyes tro the world around you.

The post also gives me the opportunity to answer publicly a question that DQ asked me privately: How could I tolerate or find even slightly believable the Dolores Umbridge character in Harry Potter and the Order of the Phoenix? My reply was three tiered, with the last tier tying into this post’s subject. First, I’ve actually known people like Umbridge, who are sugary sweet in their presentation and utterly evil and amoral in their acts. Second, I think Umbridge is the extreme representation of girls generally, since girls are often quite mean but cover it with pinky sweetness.

Third — and here’s the tie-in to this post — I think Umbridge is not merely meant to be a character. I think she is a symbol of the type of overreaching bureaucracy that, by paying lip service to the public good, stifles initiative, imagination, free speech, ordinary morality, and individual judgment. And if you think I’m finding symbolism where there is none, keep in mind that J.K. Rowling is a citizen of Europe, where the “beneficent” EU keeps legislating freedom away, one petty regulation after another.

I’ve created a monster

My son’s Nintendo DS crashed and, as it turned out, he hadn’t saved for quite a while.  He lost several special moves and weapons that he’d gathered since the last save.  I suggested (sympathetically) that he might want to save more often.  His response:  “I’m going to sue Nintendo.”  I may be a lawyer, but I really don’t think he got it from me.  I’m defense to the bone, and hate the idea of suing!

I’ve created a monster

My son’s Nintendo DS crashed and, as it turned out, he hadn’t saved for quite a while.  He lost several special moves and weapons that he’d gathered since the last save.  I suggested (sympathetically) that he might want to save more often.  His response:  “I’m going to sue Nintendo.”  I may be a lawyer, but I really don’t think he got it from me.  I’m defense to the bone, and hate the idea of suing!

Legalize drugs?

DQ here.  I’ll be dropping in while Bookworm is on vacation.  Danny L. picked up on one of my earlier comments and suggested I make a topic out of my belief that we should legalize drugs.  Good idea.  I’d also legalize gambling, prostitution, and other “victimless” crimes.  I take this stand on principle — what I do in the privacy of my own home, what I put in my body, what two consenting adults do in private (and whether money changes hands), whether I gamble my money away, etc., is none of the government’s (or anybody else’s) business. 

But there are many practical advantages as well.  The prison population would be cut in half, making prisons much more manageable.  A whole drug underculture would be eliminated, since the profits would be drastically reduced and drugs would be available through legitimate sources.  Police resources could be redirected to stopping real crimes.  The government could tax drugs as it does cigarettes, and tax gambling in a way that would make the lottery revenues look like chump change.  Addicts could seek treatment freely, without fear of arrest.  

Best of all, people would be forced to take responsibility for their own actions.  Rather than relying on the government telling them what they can and can’t do, people would have to make their own decisions.  Many will make the wrong decisions, and they will learn from those mistakes.  But all of us will grow up stronger from having to make our own decisions.

So, what do the Bookwormroom readers think?  What would you legalize and why?  What would you continue to prohibit people from doing and why?  How far should government go in regulating our behavior?  Why are conservatives not all libertarians on all social issues?  I look forward to your thoughts and suggestions.

Looking at things like a good lawyer

Sean Hannity isn’t one of my favorite conservative talking heads. He has some good points, but he functions off of an anger and emotionalism that stops just short of (or maybe drifts over into) demagoguery. I thought this was very clearly displayed in his attack last night on Johnny Sutton, the U.S. Attorney out of Houston who obtained the conviction of two federal border guards who illegally shot a drug smuggler and then tried to cover up what they did:

As it is, I think Johnny handled himself very well in response to the attacks. He kept to a few important points, although I think he could have touched more upon a larger issue. His factual points were that Congress (not the federal prosecutors) makes the laws. The evidence showed that the border guards violated these laws. The evidence also showed that these same guards, knowing that they violated the laws, made every effort to cover up their wrongdoing.

The evidence also showed that these were not picayune little procedural laws, where either their violation or a subsequent cover-up might have been sloughed off with a hand-slap. Instead, these border guys went into Wild West vigilante mode and attempted to kill someone. I can certainly understand the guards’ frustration with the limitations Congress has placed upon them, but if they’re going to commit what they’re now trying to style as an act of civil disobedience, the principles of civil disobedience demand that they take the consequences and become martyrs to a larger cause. Johnny’s role is unchanged — assemble the evidence, see if it stands up to legal scrutiny and, if it doesn’t, prosecute. Those were all points Johnny made, and made well.

The larger issue is the fact that we, as a civilized society, need to ensure that, just as we give our police forces great power (and anyone who has been stopped for a traffic violation understands just how great that power is), we also need to ensure that our police forces never overstep that power. If they do so, we veer from a Constitutional democracy into a very scary police state. We also impair the integrity of all of our police forces if the public perceives a large segment of those forces as running amok with corrupt, vigilante justice. (Think of the L.A. Police Department, and how the public perception about its corruption helped shape the OJ trial.)

Lest you think I’m just talking technical lawyer talk here, I’m not. Over at Hot Air, you can also read a pretty good review of Johnny’s reasoning:

Whether you like it or not, Sutton is right that Agents Ramos and Compean were tried and convicted on the issues. The verdict shows that the jury did not believe the drug smuggler had a gun, or did anything threatening enough to justify the shooting.

Contrary to the belief of some, Johnny Sutton is not just out to nail any Border Patrol Agent who fires a gun. Border Patrol Agents in his district frequently engage in shootings, yet prosecutions like this are very rare. Ramos and Compean were prosecuted because their subsequent behavior showed that they didn’t think their shooting was justified.

If Ramos and Compean were the model Border Patrol agents their supporters make them out to be, there is no reason for them to have covered up this shooting. They picked up their casings and didn’t tell supervisors about the shooting. They had a chance to provide an innocent explanation for this damning behavior at trial — and they failed. A jury of twelve people concluded beyond a reasonable doubt that they were guilty.

Some say that any drug smuggler must be armed. But Sutton noted in his testimony yesterday:

From January 2004 through March 2005, there were 155 drug seizures at the Fabens Border Patrol Station, totaling over 43,000 pounds of marijuana. In none of those seizures was a gun found. Over the longer period between October 1, 2001, and February 15, 2006, the Fabens Border Patrol Station reported the seizure of only one firearm from a total of 496 drug seizures, totaling more than 131,000 pounds of marijuana. . . . The fact is that drug mules in El Paso almost never carry guns.

I’ll twist the knife further. You’re upset that the drug smuggler wasn’t prosecuted? Blame Ramos and Compean. As Sutton makes clear, if they’d done their jobs properly, perhaps the smuggler could have been prosecuted after all.

Hot Air has some bones to pick with Johnny, and ends up rhetorically throwing him to the wolves anyway, but I continue to believe that Johnny is right: the rule of law, which is the unpinning of our society, is nothing if we let our police be at the forefront of abandoning that rule.

The one other thing I can throw in is that Johnny is an all around good guy, completely decent, and conservative to the bone. Based on his personality and values alone, if he thought this was a case worthy of prosecution, I’m going to trust his instincts.

British poison is here too

I did a short post recently about a British television program that focused on rising, and active, anti-Semitism in England.  Certainly, some British politicians haven’t been shy about expressing their anti-Semitic feelings.  Sadly, it seems that this type of anti-Semitic poison is also alive and well in the United States and, what’s worse, it infects our Justice Department and the FBI.

I say this because, in a letter to a federal sentencing magistrate, Debbie Schlussel writes convincingly about having been victimized by this type of institutional anti-Semitism.  Her problem started when Robert Mustaq John, a Muslim immigrant to the United States, sent her a horrible email that contained pictures of Daniel Pearl in mid-decapitation, along with an explicit threat to kill her.  It was a clearly criminal act, and one that terrified her — and continues to terrify her.  If that wasn’t bad enough, though, Schlussel describes actively anti-Semitic FBI agents.  And if that wasn’t enough to make a good American’s hair stand on end, when she finally got through the FBI, she faced a Justice Department so worried about the political ramifications of a case that might show that Islam is not a religion of peace but, rather, a religion of pieces (they cut Pearl’s body into 10), that they initially refused to prosecute:

My experience with this whole disturbing episode that never ends has been extremely negative on the so-called “Justice” side, as well.

It is bad enough that I was a victim of Mr. John, but I was also victimized by the Justice Department. After I received Mr. John’s death threat, I immediately called the Detroit office of the FBI. Instead of a swift investigation, I was stonewalled and mocked by two FBI agents–Robert Ouellet, the Special Agent originally assigned to the case, and his supervisor, Bill Edwards. Both of them belittled the threat and threatened me. Agent Ouellet–on his initial phone call to me–told me that his daughter didn’t like the women at a Jewish sorority and that the Jewish sorority girls at the University of Michigan, where his daughter was a student, are spoiled, haughty, and obnoxious. I was not sure why his anti-Semitism–on top of Mr. John’s threat–was expressed when he was supposed to be investigating an anti-Semitic death threat against me. In the months thereafter, he was too busy writing a book on our tax dime to investigate Mr. John. He told me that he, as an FBI agent, gets death threat every day and hung up on me. His supervisor, Agent Edwards threatened me not to write about my mistreatment on my website. He told me that Mr. John didn’t really mean it, and that I should just forget about it and not pursue it. Gee, why didn’t that excuse work for John Dillinger? Mr. John only “didn’t really mean it” when he got caught and interviewed by federal agents. Agent Edwards told me it would be too difficult to indict Mr. John because then he’d [sic] have to pay to fly from New York to Detroit to be arraigned and Federal Marshals would have to accompany him. Not only was that a lie, but I—the victim—have been victimized again [sic], as I am not a wealthy person, but paid to come here to pay tribute to this criminal with my presence to speak to you, Your Honor, at his sentencing.

Then, the U.S. Attorney’s office for the Eastern District of Michigan, decided not to pursue the case because politically correct U.S. Attorneys Jeffrey Collins ad, later, Stephen Murphy–a current Bush nominee to the Federal Court of Appeals did not want to upset the Islamic community. Is this what our “Justice” Department has become–an instrument of political correctness at the hands of the religion of the hijackers, the religion of the murderous beheaders of Daniel Pearl? My case would have died in the great American abyss, but for the fact that I spoke out about it on my website and in media forums. If I did not have a voice, Mr. John would remain without a criminal indictment, without a criminal record. During the almost four years that I have waited for justice against Mr. John, I’ve watched an extremist imam, Hassan Qazwini, who is an open supporter of terrorism and proud friend of Hezbollah spiritual leader Sheikh Mohammed Hussein Fadlallah, get swift justice against two non-Muslim e-mailers who sent far more benign e-mails to him than that which Mr. John sent me. I read articles about how Mr. Qazwini’s e-mailers had their homes raided by the FBI–one of them was a quadriplegic veteran–while Mr. John has been treated with kid gloves.

I watched and waited in 2004 as the men were swiftly indicted and pled guilty, while I had to whine and cajole and complain to deaf ears, finally getting justice years later because I had the fortune of getting a new FBI agent and dedicated Justice Department attorney finally working on the case and pursuing it. But even then, I first had to endure 9 months of rude questioning from an incompetent Justice Department attorney, Lisa Krigsten, who did nothing on the case and harassed me along with Detroit’s U.S. Attorney’s Office, asking me about my writings and questions at public events, critical of the U.S. Attorney’s softness for extremist Muslims. Ms. Krigsten had an FBI agent call and repeatedly question and harass me about these things, which are completely unrelated to Mr. John’s death threats against me. When a new Justice Department civil rights attorney–a competent one–finally picked up the slack, he told me that the U.S. Attorney’s Office in Detroit was using up all of the Grand Jury time to prevent this case from moving forward. It is bad enough that lawyers had to fly in from Washington to pursue this case that a politically-motivated U.S. Attorney’s Office in Detroit would not.

Schlussel’s story, which I have no reason right now to believe is false, should shock the conscience of every American who believes that our American law enforcement exists to investigate crimes, not categorize or castigate victims, and that justice is blind, and does not lollygag over cases that might have embarrassing political implications.  And yes, I know it’s naive to believe all that to be true, at least in every instance, but it really is shocking to read about Schlussel’s travails, travails that read more like a Jew trying to find justice in 1934 Berlin, than an American trying to find justice in the 21st Century.

Hat tip:  WHS

Nasty, nasty, mean old court

The New York Times has written one of the most intemperate editorials it’s been my pleasure to see in a long time, attacking the decisions emanating from the more conservative Supreme Court.  The opening will give you an idea:

In the 1960s, Chief Justice Earl Warren presided over a Supreme Court that interpreted the Constitution in ways that protected the powerless — racial and religious minorities, consumers, students and criminal defendants. At the end of its first full term, Chief Justice John Roberts’s court is emerging as the Warren court’s mirror image. Time and again the court has ruled, almost always 5-4, in favor of corporations and powerful interests while slamming the courthouse door on individuals and ideals that truly need the court’s shelter.

President Bush created this radical new court with two appointments in quick succession: Mr. Roberts to replace Chief Justice William Rehnquist and Samuel Alito to replace the far less conservative Sandra Day O’Connor.

The editorial then goes on a mad dash through some of the more famous rulings of the last judicial term, describing them in terms, not of the actual ruling, but of the ruling’s effect.  For example:

The Roberts court’s resulting sharp shift to the right began to be strongly felt in this term. It was on display, most prominently, in the school desegregation ruling last week. The Warren court, and even the Rehnquist court of two years ago, would have upheld the integration plans that Seattle and Louisville, Ky., voluntarily adopted. But the Roberts court, on a 5-4 vote, struck them down, choosing to see the 14th Amendment’s equal-protection clause — which was adopted for the express purpose of integrating blacks more fully into society — as a tool for protecting white students from integration.

On campaign finance, the court handed a major victory to corporations and wealthy individuals — again by a 5-4 vote — striking down portions of the law that reined in the use of phony issue ads. The ruling will make it easier for corporations and lobbyists to buy the policies they want from Congress.

Corporations also won repeatedly over consumers and small stockholders. The court overturned a jury’s award of $79.5 million in punitive damages against Philip Morris. The Oregon Supreme Court had upheld the award, calling Philip Morris’s 40 years of denying the connection between smoking and cancer “extraordinarily reprehensible.”

In a ruling that will enrich companies at the expense of consumers, the court overturned — again by a 5-4 vote — a 96-year-old rule that manufacturers cannot impose minimum prices on retailers.

The Times‘ horror is interesting, because it so clearly demonstrates what its editors think the Supreme Court should do:  put it’s imprimatur on liberal policies.  There’s really no other way to read the editorial, because there’s nothing in it that challenges the Court’s opinions on Constitutional or other legal grounds.  They’re savaged only on possible practical effect.

This editorial silence may be because, as I pointed out a couple of weeks ago, the opinions are in fact entirely consistent with existing law and existing Constitutional interpretations.  What’s wrong with them, then, at least if you’re on the Times editorial board, is not that they were decided wrongly on legal grounds — which they weren’t — but that they were decided wrongly at a social and political level.

The Times’ position stands up to scrutiny only if you’re a judicial activist who believes that it is the Supreme Court’s job to legislate away social ills when a stubborn or foolish Legislature refuses to do so.  Those of us who are not judicial activists believe it is the Court’s responsibility to interpret the Constitution, and the legislation flowing from that Constitution, and to let the chips fall with they may.  If Americans dislike the chip falls, it is up to them nudge the existing federal representatives in Congress, or to elect an entirely new batch of federal legislators, so that Congress either changes the laws or amends the Constitution, whichever is necessary.  That is the essence of the separation of powers doctrine.

The Supreme Court’s decision about race based school policies

I don’t have a lot to say about the Supreme Court’s recent decision about racial shell games in public schools beyond this: I agree with the decision. However, to the extend I do agree, I found very graceful the way the National Review Online summed up the decision’s meaning and impact:

Over the last 40 years, liberal civil-rights groups have gone from advocating colorblind policies to rejecting them. They may try to describe the new ruling, perversely, as a partial repeal of Brown v. Board of Education. Justice Stephen Breyer says as much in his dissent. Yet the decision resembles Brown in a crucial respect: Starting now in Louisville and Seattle, students won’t be blocked from certain schools simply because they lack the proper melanin content.

We are sure to hear that the Court has just encouraged the “resegregation” of the schools, but that is mostly left-wing bluster. Brown and other legislative and judicial measures — to say nothing of evolving social attitudes — put an end to Jim Crow-style de jure segregation long ago. What we have today is de facto segregation, which is better described as racial imbalance. Such imbalance need not be worrisome. As Justice Clarence Thomas noted in Missouri v. Jenkins more than a decade ago, “It never ceases to amaze me that the courts are so willing to assume that anything that is predominantly black must be inferior.”

A stunningly dishonest piece of advocacy writing about the Supreme Court

In an earlier post, I pointed out how much more informative talk radio is than its MSM counterparts (including NPR), because the former has a discursive, adversarial style that allows ideas to be developed and aired, while the latter works within a tight format aimed at pushing a specific (usually political) viewpoint. Occasionally, though, even the narrow MSM format is insufficient to repel an opposing viewpoint, and those situations see the media plunge into outright dishonesty.

The list of media propagated canards is a long one, but I’ll confine myself to Rathergate and the Fauxtography scam, and stop there. Today’s entry on the long list of media dishonesty is Jeffrey Toobin’s article about the current United States Supreme Court, an article given pride of place as the first entry in the New Yorker‘s “The Talk of the Town.”

The article, which ends with a reminder to New Yorker readers to keep in mind the Supreme Court when they cast their votes in November 2008, manifestly intends to scare people into believing that a new Dark Age, led by Catholic men in dark robes, is dawning. Sadly for Toobin’s authorial honor, and unfortunately for his credulous liberal readers, the only way he can do this is to lie, both by implication and, I’m sorry to say, by an outright falsehood.

Toobin confines his little attack on the Court to three decisions that came out under Chief Justice Roberts aegis. As to one of those cases, involving a death sentence, I have no information and, since it’s in criminal law, I have no desire to educate myself about the case’s ins and outs. As to the other two, however, because I’m familiar both with the cases and with the type of jurisprudence at issue, I do feel capable to comment.

The first case Toobin goes after is Ledbetter v. Goodyear Tire & Rubber Co., Inc., 127 S.Ct. 2162 (2007). This following paragraph constitutes Toobin’s entire discussion of the case and its outcome:

Moving with great swiftness, by the stately standards of the Court, Roberts, Alito, and their allies have already made progress on that agenda. In Alito’s first major opinion as a justice, earlier this year, he sharply restricted the ability of victims of employment discrimination to file lawsuits. The Court said that plaintiffs in such cases must bring their suits within a hundred and eighty days of, say, an unfair raise. But, because it generally takes employees longer than that to establish that they have been cheated, the effect of the ruling will be to foreclose many lawsuits.

What any sensible reader will understand from this terse summary of the case is that the reactionary Supreme Court, lusting after a return to the 19th Century’s golden era of unfettered employer rights, has foreclosed forever the possibility that employees can claim wage discrimination more than 180 days after that discrimination occurs. In the minds of Toobin’s readers, the justices have placed a permanent wall between these hapless employees and legal redress. Except that this understanding, which is really the only reasonable understanding possible based on the limited information Toobin provides, is entirely untrue.

What the Supreme Court said was that a Federal law imposing a 180 day deadline within which to file a wage discrimination runs from the date the employer makes the decision to discriminate, not from the last paycheck written as a result of that discriminatory decision. That’s all.

Here’s the applicable law as summarized in Ledbetter:

Title VII of the Civil Rights Act of 1964 makes it an “unlawful employment practice” to discriminate “against any individual with respect to his compensation … because of such individual’s … sex.” 42 U.S.C. § 2000e-2(a)(1). An individual wishing to challenge an employment practice under this provision must first file a charge with the EEOC. § 2000e-5(e)(1). Such a charge must be filed within a specified period (either 180 or 300 days, depending on the State) “after the alleged unlawful employment practice occurred,” ibid., and if the employee does not submit a timely EEOC charge, the employee may not challenge that practice in court, § 2000e-5(f)(1).

Ledbetter, 127 S.Ct. at 2166 -2167. In other words, Congress has mandated that if a person claims that her (or his) gender led her (or his) employer to pay her (or him) a discriminatory salary, then that person has either 180 or 300 days from the discriminatory act to file a claim with the EEOC.

Ms. Ledbetter argued that the legislatively vague phrase “alleged unlawful employment practice” should be understood to refer to her paycheck.  Her interpretation would mean that every single paycheck starts a new cause of action (and, presumably, reaches back to encompass prior paychecks). Her employer contended that the “alleged unlawful employment practice,” if any such act existed, would be the employer’s decision to pay its employee a discriminatory amount, as opposed to the fruit of that decision (i.e., the paycheck). The Supreme Court carefully analyzed myriad prior decisions and concluded that the employer had the better argument.

Speaking personally, I find Alito’s analysis clear and compelling.  As is always the case in the law (or at least mostly the case in the law), one can examine the precedential cases and draw different conclusions or find entirely different cases to act as precedent. The dissent contends that it’s unreasonable to ask people to investigate how their pay ranks against their peers’ pay, and that they should be allowed to wait years, perhaps, before they figure out that they’re getting the short end of the salary stick. By advocating a different standard of responsibility for the employee, the dissent can look to different cases so as to reach a different outcome. And that, from beginning to end, is what Ledbetter is all about.

Knowing what the case is about helps one appreciate what the case is not about: It is not a ruling holding that, henceforth, employees must forever be barred from bringing wage discrimination claims if they don’t figure the problem out within 180 days of their most recent pay raise (or pay raise refusal). The Supreme Court is not making law. It is simply interpreting the law as written in light of case precedent. If the Legislature feels there’s a problem, it can change the law. That last is a singularly important point, since it goes to the heart of the difference between strict constructionists, who limit themselves to interpreting law, and judicial activists, who feel impelled to correct perceived Legislative errors, omissions, and ambiguities.

As I pointed out initially, Toobin’s short, elliptical analysis of the case utterly fails to explain to his readers that the majority was not making a law barring employees forever from complaining about wage discrimination more than 180 days after the fact, but was instead merely interpreting the law as written, leaving the matter open for Legislative change. This serious omission about the impact of a Supreme Court decision forces Toobin’s less informed readers to believe that the Supreme Court has dealt a permanent policy blow to the rights of American workers.

Toobin goes from misleading by omission to out-and-out misrepresentation when he discusses Gonzales v. Carhart, 127 S.Ct. 1610 (2007), the decision upholding Congress’ 2003 Partial Birth Abortion Ban. Here is Toobin’s summary. I’ve highlighted the language that is out-and-out false:

Most notoriously, the Court, for the first time in its history, upheld a categorical ban on an abortion procedure. The case dealt with so-called partial-birth abortion—a procedure performed rarely, often when there are extraordinary risks to the mother, the fetus, or both. But more important than the ruling were the implications of Justice Anthony M. Kennedy’s opinion. The Court all but abandoned the reasoning of Roe v. Wade (and its reaffirmation in the 1992 Casey decision) and adopted instead the assumptions and the rhetoric of the anti-abortion movement. To the Court, it was the partial-birth-abortion procedure, not the risks posed to the women who seek it, that was “laden with the power to devalue human life.” In the most startling passage in the opinion, Kennedy wrote, “While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.” Small wonder that Kennedy’s search for such data was unavailing; notwithstanding the claims of the anti-abortion movement, no intellectually respectable support exists for this patronizing notion. The decision to have an abortion is never a simple one, but until this year the Court has said that the women affected, not the state, had the last word.

That last statement is just plain, absolutely, completely wrong.

Contrary to most people’s assumptions about Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), that case does not create an unfettered right to abortion. Instead, it established a delicate balancing act over the entire length of the pregnancy between the State’s interests and the woman’s interest in the fetus.  In the first trimester, when the fetus is not viable outside the womb, the balancing favors the woman’s right to choose how she wants to handle her pregnancy. In the second trimester, as the fetus nears viability, the balance begins tipping in the State’s favor. And, in the third trimester, when the fetus is viable, the State’s interests may triumph:

With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.

Roe v. Wade, 410 U.S. at 163, 93 S.Ct. at 732.

Because it has never been the law of the land that the woman affected “had the last word,” it is dead wrong when Toobin says that Gonzales marks a stunning reversal of American abortion law. Instead, Gonzales is nothing more than a recycling of principles already articulated in Roe v. Wade. No matter how people may fulminate about Justice Kennedy’s touchy-feely analysis of abortion (a bad writing habit he no doubt picked up from his years in a liberal dominated court), the fact remains that the decision he authored in Gonzales did not take away any rights already granted in Roe v. Wade — a case which more than 30 years ago ensured that, near the end of the pregnancy, the State’s interests, not the woman’s, can be given primacy.

Toobin, of course, is not the only liberal to try to make political capital out of what must be a deliberate mis-reading of Roe v. Wade’s clear language. Immediately after the Supreme Court handed down its decision in Gonzales, Hillary Clinton issued a press release that also positioned the case as something entirely new and horrible:

Washington, DC — “This decision marks a dramatic departure from four decades of Supreme Court rulings that upheld a woman’s right to choose and recognized the importance of women’s health. Today’s decision blatantly defies the Court’s recent decision in 2000 striking down a state partial-birth abortion law because of its failure to provide an exception for the health of the mother. As the Supreme Court recognized in Roe v. Wade in 1973, this issue is complex and highly personal; the rights and lives of women must be taken into account. It is precisely this erosion of our constitutional rights that I warned against when I opposed the nominations of Chief Justice Roberts and Justice Alito.”

That Hillary created rights under Roe v. Wade that never existed in the first place isn’t too surprising. While she may be trained as a lawyer, she is first and foremost a politician, and one who has shown a willingness to do and say whatever it takes to obtain a political advantage.

That Toobin did the same thing is more disturbing. Toobin is not only a lawyer, he is a journalist who specializes in legal matters. His readers believe that he is using his legal knowledge and narrative fluidity to explain to them accurately legal matters that, while they may not be intelligible to the average person, nevertheless have immediate and significant impact on ordinary peoples’ lives. Toobin has taken this trust and used it to perpetuate lies. I’d cry “shame” but I suspect that, as to Toobin, that concept, whatever role it may once have had in his life, no longer exists.

Presidential power and criminal terrorists

One of the fun things I did this past weekend was listen to some very distinguished legal academics discuss civil rights during times of terror. One of the speakers reminded us that, throughout American history, Presidents have flexibly interpreted the Constitution to expand their powers during perceived times of need.

As early as the beginning of the 19th Century, Thomas Jefferson, turning his back on everything he stood for, neatly bypassed the Constitution in order to make the Louisiana Purchase — and we’re all very grateful to him for having done so. Lincoln, of course, is famous for having suspended habeas corpus during the Civil War which, while not directly violative of the letter of the Constitution, certainly violated its spirit. (Not to mention the fact that many questioned the Constitutionality of the entire war itself.) Uber-Democrat Franklin D. Roosevelt is also remembered for having imprisoned thousands of Japanese Americans merely because they were of Japanese ancestry. And what many don’t know is that Woodrow Wilson, a progressive Democrat (and a segregationist, of course), pretty much blew the Constitution to pieces during WWI, stamping out manifestly free speech that he characterized as seditious (not to mention the number of socialists arrested during his administration for their party affiliation, despite the fact that it was a legal American party).

The bottom line is that, during times of stress, Presidents get the power. Or, as the little mnemonic in my notes says, Peril = President; Calm = Congress. That’s a good way to remember that external stressors will affect the ebb and flow of power between the President and Congress.

The above was an observable historical fact. Where a little polite tension developed amongst the panelists was whether captured terrorists should be given the full panoply of civil rights or whether they should be limited to military tribunals. This is obviously not a new issue. As you may recall, John Kerry caught a lot of flack for yearning for the days when we could just read those terrorists their rights, toss them in jail, give them a free attorney, make sure they have a speedy trial, etc.

One of the panelists, who is, I gather, some sort of Constitutional Law wunderkind, expressed that same Kerry-esque yearning that terrorists should be accorded full civil rights. He never came out and said it, but he seemed to feel that the Geneva Convention was just a starting point for the rights we ought to extend to captured foot soldiers fighting with, or on the same side as, Al Qaeda, and implied that civilian criminal trials are the way to go.

As for me, Hamdan notwithstanding, I don’t believe that America should have the obligation to extend to Al Qaeda terrorists (and fellow travelers) rights under the Geneva Code. Terrorists don’t fight for a signatory nation, nor do they obey the Geneva conventions in the way they fight.

Having said that, though, I believe that we, as Americans, maintain our own moral integrity if we treat prisoners (whether ordinary prisoners or prisoners of war) with certain minimal standards of decency — and the Geneva Convention provides just such a standard.  After all, without a floor, when a society goes to war one may find that POWs are treated with increasing degrees of cruelty. And by that, although Abu Ghraib was gross (and, I hope, aberrant), I’m not talking about “mere” sexual humiliation and fear. I’m talking about the kind of treatment the Japanese meted out to Marines or that the Germans did to Americans. War, already horrible, would become bestial.

The big question is, if I’m willing to admit that our society needs to extend rights to prisoners, not for their benefit, but for ours, why am I not willing to extend to them all of the rights available under the Constitution?  The most obvious reason, of course, is that enemy combatants, by definition, are not citizens engaged in statutory criminal acts.  The latter, no matter how bad their behavior, are the ones the Constitution is intended to protect, to ensure that our government doesn’t use it’s massive weight to crush its own people.  Fighters caught on foreign battlefields, or having entered this country to engage in violent acts, cannot be the intended beneficiaries of that special protection.

There’s actually an easier answer, though, than trying to figure out who is entitled to what protections.  Instead, look at the goals behind the criminal justice system and the military prisoner of war system.  America’s criminal justice system is actually intended to give each citizen the maximum opportunity to fight the government and return to the streets.  That’s why we have Miranda warnings, bail, the right to a speedy trial, the right to counsel, evidentiary exclusion, the rules of evidence, etc.  Everything is meant to give a citizen a fighting chance against the government.  Sentencing for all but the most heinous crimes is limited and specific.  And, of course, there is our generous appeals process, which ensures those convicted repeated bites at the apple.  Lastly, after people have served their time, they are then, at least in theory, invited to rejoin society as fully functioning members.

All of the above is the exact opposite of our goals with a captured fighter.   It’s entirely irrelevant whether he was a lowly foot soldier,  a crack sniper, or a bomb maker, just as it’s irrelevant whether he actually succeeded in killing or wounding Americans as he carried out those tasks.  When considering prisoners of war, what really matters is that, for the duration of the war, they cannot return to the battlefield.  After all, even if a POW’s IEDs didn’t work before, they may work in the future.  Civil rights cannot apply when your sole purpose is to decrease your enemy’s strength.  And before you get all bent out of shape about how it is so not fair to imprison someone indefinitely just because he had the misfortune to be caught fighting for his beliefs, keep in mind that this is vastly more civilized than the old system of dealing with captured enemy combatants — summary execution.

I do realize that we still have to grapple with the implications of what is shaping up to be a long, ideologically driven war.  Again, with an eye to America’s own mental and moral health, we cannot keep enemy combatants imprisoned for what may turn out to be decades.  This is especially true if, as some say, many of these prisoners have nothing to do with the war, but were turned in by neighbors for reward money or to resolve long-standing feuds.  Certainly, as a result of Hamdan and related cases, the military is required to investigate such claims, and that process alone may be sufficient.  I don’t pretend to have an answer to that question.  I just know that the criminal justice system is not the answer.

As you’ve probably noticed, the above discussion has to do with lowly fighters, and hasn’t touched upon the big fish caught after intensive, and high-level, operations.  With these people, we don’t just want to keep them out of the fight for the duration, we actively want them punished.  Why then do we not accord them civil rights in a civilian justice court?  One phrase holds the answer:  National Security.  If we assume that these big guys were caught because of a successful intelligence operation, a trial in a regular criminal court would mean exposing that operation to public view.  Even holding a secret trial would be pointless, because no one in the courtroom would have the type of security clearance necessary to hear the case without the government then being forced to disband the specific intelligence program.  That would be an enormous price to pay to convict even a criminal mastermind.  The military justice system, however, which does accord rights to prisoners, does come with a built-in national security component, and that makes it a very good choice for dealing with such a trial.

The fact is, when a country is at war, rights contract.  They have to, because a completely free society is too porous to protect itself against massed opposing forces.  The best you can do is to strike a balancing act intended to maximize national security and military imperatives (such as getting enemy troops off the battlefield), while simultaneously maintaining as many Constitutional rights as possible, and those in their strongest available form.  It’s a tough act, and has always resulted in mistakes and civil rights errors.  Fortunately, America has shown itself to be resilient, and every assault on civil rights throughout the history of our nation has not only been remedied, but has usually seen the civil rights emerge in expanded form.

The John Doe Manifesto

You’ve no doubt heard that the Six Imams, as part of their legal strategy, have named as “John Doe” defendants in their lawsuit some of the people who alerted the authorities about the fact that the Imam’s were behaving in a peculiar and threatening way. That threat, to drag citizens into litigation, might have been a straw, breaking the back of the forbearing American public. People are not happy. Lawyers are promising free representation. And Michelle Malkin has created the John Doe Manifesto, which is not a bad thing to read, remember and pass along:

Dear Muslim Terrorist Plotter/Planner/Funder/Enabler/Apologist,

You do not know me. But I am on the lookout for you. You are my enemy. And I am yours.

I am John Doe.

I am traveling on your plane. I am riding on your train. I am at your bus stop. I am on your street. I am in your subway car. I am on your lift.

I am your neighbor. I am your customer. I am your classmate. I am your boss.

I am John Doe.

I will never forget the example of the passengers of American Airlines Flight 93 who refused to sit back on 9/11 and let themselves be murdered in the name of Islam without a fight.

I will never forget the passengers and crew members who tackled al Qaeda shoe-bomber Richard Reid on American Airlines Flight 63 before he had a chance to blow up the plane over the Atlantic Ocean.

I will never forget the alertness of actor James Woods, who notified a stewardess that several Arab men sitting in his first-class cabin on an August 2001 flight were behaving strangely. The men turned out to be 9/11 hijackers on a test run.

I will act when homeland security officials ask me to “report suspicious activity.”

I will embrace my local police department’s admonition: “If you see something, say something.”

I am John Doe.

I will protest your Jew-hating, America-bashing “scholars.”

I will petition against your hate-mongering mosque leaders.

I will raise my voice against your subjugation of women and religious minorities.

I will challenge your attempts to indoctrinate my children in our schools.

I will combat your violent propaganda on the Internet.

I am John Doe.

I will support law enforcement initiatives to spy on your operatives, cut off your funding, and disrupt your murderous conspiracies.

I will oppose all attempts to undermine our borders and immigration laws.

I will resist the imposition of sharia principles and sharia law in my taxi cab, my restaurant, my community pool, the halls of Congress, our national monuments, the radio and television airwaves, and all public spaces.

I will not be censored in the name of tolerance.

I will not be cowed by your Beltway lobbying groups in moderate clothing. I will not cringe when you shriek about “profiling” or “Islamophobia.”

I will put my family’s safety above sensitivity. I will put my country above multiculturalism.

I will not submit to your will. I will not be intimidated.

I am John Doe.

Pass it on.

For more on the John Doe revolution, check out Michelle’s website.

Poor Scooter, Part II

One of the things that T.S. raised in my original Scooter post was that Fitzgerald said that it was wrong to disclose Plame’s identity. Now, as a lawyer, I can tell you that the fact that Fitzgerald said something doesn’t make it so. In fact, nothing a lawyer says is evidence, unless a lawyer’s actually testifying under oath. Until then, special prosecutor or not, it’s still his opinion. As to Plame and the Libby trial, my understanding has been and remains as a described by J. Peter Mulhern:

Diverging recollections about who said what when to whom about Joe Wilson’s wife are particularly useless as evidence of perjury because nobody had any motive to lie on the subject, least of all Scooter Libby. There was nothing criminal or dishonorable about discussing Valerie Plame’s identity or her job at the CIA with reporters or anyone else. There is no statute imposing criminal liability for such conversations. Patrick Fitzgerald’s unsupported assertions notwithstanding, there is no information in the public domain which even establishes that Valerie Plame’s employment at the CIA was classified.

It is a federal crime to transmit “information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation” to any unauthorized person. 18 U.S.C. Section 793 (d). Valerie Plame’s identity might have been remotely related to our national defense but nobody has ever had any reason to believe that the information that she was a desk jockey at the CIA “could be used to the injury of the United States or to the advantage of any foreign nation.”

It is a federal crime intentionally to reveal the identity of a covert intelligence agent when the government is taking affirmative steps to protect her identity. 50 U.S.C. Section 421. But Valerie Plame wasn’t a covert agent and the government wasn’t trying to protect her identity. There was never any prospect of a prosecution under Section 421.

Patrick Fitzgerald fulminated in court about a cloud over the Vice President in an effort to suggest that there was something dark and sinister about administration officials discussing Valerie Plame with reporters after her husband injected her into a national controversy. That suggestion is pure left-wing fantasy.

In sum, the evidence against Libby was that his memory of the sequence and details of perfectly innocent events of no great importance differed from that of other witnesses. The judge who let this case go to the jury is one or more of the following: a nitwit, a coward, and/or a partisan hack. The jury that convicted was prejudiced, stupid or both.

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A good forum for a law and public policy debate

Do you enjoy debating law and public policy? If so, I’ve got both an opportunity and a challenge for you:

As I have mentioned before on this blog, I am enrolled in a National Security Law class this semester. This class is outstanding; I’m so glad I elected to take it. Currently, we are looking at the War Powers Resolution as a result of the struggles of the Separation of Powers issues during Vietnam. One of the assignments we have for Monday is to re-reread the War Powers Resolution of 1973 and consider its strengths and weaknesses. We are to figure out how to “fix” the War Powers Resolution to make it better than what we currently have – what would you add, what would you rewrite, what would you strike altogether?

While I will be doing this over the course of the week, I thought I would take this opportunity to ask those of you who are interested in manners such as this to put your thoughts on this subject in a reply to this post. I am interested not only in forming my own opinion, but seeing how my opinion matches and diverges from other opinions, and I see this as an opportunity to get input from a variety of sources while developing my opinion – which can be of great help. You can get to a link of the War Powers Resolution by clicking here, and then clicking on the section numbers at the Cornell law website that comes up.

If this question piques your interest, don’t comment here. Instead, go to Out of the Binjo Ditch and let Steve know what you think. Aside from the fact that the question is inherently interesting, I think it’s a fascinating use of the collective intelligence of the internet to flesh out a challenging intellectual assignment.

By the way, if you’ve never read a statute before, this will give you a good chance to see why we need lawyers.  This is so gibberishy nobody but someone paid to do so would want to read with it and struggle with its terms — something that applies to a disproportionate number of laws, both state and federal.  There’s a statutory style of writing that itself should be illegal.

Should there be a remedy for all wrongs?

One of the catch phrases you learn in law school is that “for every wrong there is a remedy.” This means that anyone with a legitimate grievance can show up in court and get some redress, even if it’s only the symbolic peppercorn. The problem is that, something that redresses the wronged person’s finances, may nevertheless be so small in value that it doesn’t serve as a disincentive to the actor.

Where one really sees the disincentive problem play out is in cases against deep-pocket corporations accused of placing dangerous products on the market or committing bad acts against society. Often, the damages associated with each bad product or bad act are limited. A toaster that gives people shocks can be replaced for $35.00. This low cost remedy may mean that it’s cheaper for the manufacturer to keep making cheap, dangerous toasters, because it will only occasionally be called to account to fix them — and then the dollar cost of a fix is low. The law has two remedies for this situation: (1) class actions, where lawyers find one real toaster customer and hypothesize all the others, which creates aggregate damages far beyond the actual $35.00 breakdown; and, if a class action isn’t feasible, (2) really, really big punitive or special damages. If making a bad toaster will cost you $35.00 in actual damages, but $500,000 in punitive damages, business sense dictates a rejiggering of your toaster assembly line.

In theory, the above approach to renegade manufacturers and corporations isn’t such a bad thing. It allows the legal system to redress marketplace asymmetries so that a large business cannot place dangerous products in the market or engage in wrongful practices simply because it’s economically cost efficient to do so. With legal amplification from class actions, or from special or punitive damages, that economic incentive to behave badly goes away.

As with so many things that are good in theory, though, real life facts have a way of interfering. Class actions have often devolved into lawyer “get rich quick schemes,” where lawyers cobble together bogus cases and then quickly settle them, with pennies going to the consumers and millions going to the lawyers. Whole industries can be destroyed when lawyers get the bit in their teeth, and judges do not or cannot restrain them.

All of this ruminating leads me to one case in today’s headlines — the story of the man who successfully won a $400,000 award from a jury based on his claim that American Airlines shouldn’t have taken him off a plane:

A jury in Massachusetts ruled on Friday that American Airlines should pay a South Florida man $400,000 in a discrimination case.

John Cerqueira and his attorneys accused American Airlines of racial profiling after he was removed from a plane in Boston in December 2003.Cerqueira said he had visited family in the Boston area and was trying to fly back to Fort Lauderdale-Hollywood International Airport when American Airlines officials ordered him and two other men off the plane.

“I have a feeling these kinds of incidents of racial profiling happen to people more often than we’re aware of,” said Cerqueira.

Cerqueira said three Massachusetts state police officers escorted him and two Israeli men off of the plane. They were all questioned and later released.”We went to the American Airlines ticket counter and they refunded our fares for all three of us and told me I was being denied service,” Cerqueira said. “They didn’t tell me for how long and I had to figure out a way to get home.”In his suit against the airline, Cerqueira, who is an American citizen of Portuguese descent, claimed he was denied service because the airline mistakenly believed he was of Arab, Middle Eastern or South Asian decent.The complaint included an e-mail message, which Cerqueira said is from an airline official, stating, “Our investigation has revealed that our personnel perceived certain aspects of your behavior, which could have made other customers uncomfortable on board the aircraft.”

Consider the facts: Mr. Cerqueira was taken off a plane and given a refund. He then had to find another flight home. It was maddening and inconvenient, but was it really a $400,000 injury to Mr. Cerqueira? No, it wasn’t. What it was was a situation in which the jury was sending a message to American Airlines that, while one man’s injuries weren’t too much of a problem (a few hundred dollars), what American Airlines did was really, really bad. That juror conclusion, though, leads me to ask whether what American Airlines did was really so bad. I don’t think so.

We’re living in a day and age when bad guys get onto planes with box cutters, and shoe bombs, and liquid bombs, and visions of murder and mayhem in their head. We’re living in a day and age when these bad guys kill, not one or two people, but hundreds and thousands. And we’re living in a day and age when airlines, which have lost their own people in these attacks, are the first line of defense for all of us against these crazies. Airlines have to do the best they can and they are not always going to get it right. With a verdict like Cerqueira’s, however, Airlines are going to be caught between Scylla and Charybdis. They’re damned economically if they inadvertently pull the wrong person off the plane, because verdicts are hugely disproportionate to the cost and inconvenience of any given individual tagged this way, and they’re damned to all eternity if their fear of litigation causes them to relax their vigilance.

Perhaps there can be some type of oversight board to make sure airlines don’t become overly aggressive or paranoid about policing their own flights. But the current system, where every jury with a blank check can cause airlines to second guess their own necessary vigilance, is definitely a wrong path in assuring the safest flights possible.

What’s your take on this situation, and what would you do to ensure that airlines maintain their vigilance without becoming vigilante organizations?

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