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:


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.


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.


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.

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


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.

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.

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!

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.

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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I am woman, hear me whine

There’s an article in today’s New York Times exposing (again) one of the problems with affirmative action — it elevates nice, ordinary people to situations where they’re bound to fail. This time the focus is on the nation’s top law firms, where African-Americans consistently fail to last:

Thanks to vigorous recruiting and pressure from corporate clients, black lawyers are well represented now among new associates at the nation’s most prestigious law firms. But they remain far less likely to stay at the firms or to make partner than their white counterparts.

A recent study says grades help explain the gap. To ensure diversity among new associates, the study found, elite law firms hire minority lawyers with, on average, much lower grades than white ones. That may, the study says, set them up to fail.

The study, of course, is being vigorously challenged. You can read about the whole debate here.

I’m actually inclined to agree with the study’s conclusion based upon my own years at big law firms. So many of these firms hired minorities solely so that they could boast about their progressive ethnic balance. This meant that they weren’t always so picky about their new hires’ qualifications. These kids were window dressing, and the firms never really committed to having them for the long haul.

However, based on my twenty-years out-of-date information, let me throw out one more reason that minorities aren’t lasting at the big firms — their sense of entitlement prevents them from working as hard as they ought to. In this regard, I speak from personal experience. I was one of a big crew of women and minorities that a large urban law firm hired so that it could boast about its diversity, something that was becoming very important in the legal marketplace. All of us were academically qualified and could have been hired without regard to our sex or race, but we still felt very special — we were the vanguard of the new lawyer. Away with the “white boys,” and in with the women, the Hispanics and the African Americans.

Of course, because we were so special, we felt pretty sure we were entitled to special treatment. It just wasn’t fair to make us work so hard, and why in the world weren’t they holding our hands constantly? Those ugly, old, white men seemed to expect us to be self-propelled, aggressive, and to stand on our own two feet. We were women and minorities, though, and we weren’t about to do that. We wanted mentoring! As it happened, mentoring wasn’t going to be in the cards at that old-line firm, with the result that those of us who didn’t leave under our own steam were swiftly “downsized.”

At the time, I was absolutely certain that all blame for the debacle that was my incoming year of associates was the firm’s fault. I’m less and less sure now. The fact is, while the firm made no effort to accommodate the new culture of incoming lawyers they’d hired, we made no effort to fit into the firm’s culture. In our youthful arrogance, and cloaked in our victim status, we believed that it was the firm that should completely change its decades old culture in our favor. Looking back, I’m quite sure that, if I hadn’t been so caught up in my special status as a touchy-feely, sensitive, needy woman lawyer, I would have been better equipped to handle the hard work and hard knocks that come with a big firm. A big firm is a dynamo, and nothing is going to shape it into the type of small, personal firm with which I routinely work now. That’s simply not the nature of the big firm beast.

(By the way, my memory says that Asian men had no problem adjusting to big firm culture. While Asian women had bought into feeling just as needy as Caucasian women, Asian men were simply hard workers who eschewed victim status.)

In any event, I realize that my observations are outdated and that there is a small number of big firms out there that has been able to handle the new breed of non-white, non-male attorney. For the most part, though, I do wonder whether a large part of the problem doesn’t lie with the various law firms’ arrogance, but with the arrogant sense of entitlement that characterizes the new breed of female and/or minority lawyer.

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A harbinger of what will happen if the Dems take the White House again

I know that many of you are like me in that you’re disgusted with the Republican’s profligacy, as well as with other careless, pandering form’s of government in which Republicans engage. Be assured, though, that “punishing” them at election time, both in 2006 and 2008, will be worse. Why? Because the Dems will control the Supreme Court again. And when they control the Supreme Court, you end up with rulings such as this one authored by Stevens (of Kelo fame), that open the door to giving foreign combatants the right to expensive civil trials, complete with all the Constitutional rights guaranteed to Americans:

The Supreme Court ruled Thursday that President Bush overstepped his authority in ordering military war crimes trials for Guantanamo Bay detainees.

The ruling, a strong rebuke to the administration and its aggressive anti-terror policies, was written by Justice John Paul Stevens, who said the proposed trials were illegal under U.S. law and international Geneva conventions.

The case focused on Salim Ahmed Hamdan, a Yemeni who worked as a bodyguard and driver for Osama bin Laden. Hamdan, 36, has spent four years in the U.S. prison in Cuba. He faces a single count of conspiring against U.S. citizens from 1996 to November 2001.

The ruling raises major questions about the legal status of about 450 men still being held at Guantanamo and exactly how, when and where the administration might pursue the charges against them.

It also seems likely to further fuel international criticism of the administration, including by many U.S. allies, for its handling of the terror war detainees at Guantanamo in Cuba, Abu Ghraib in Iraq and elsewhere.

Two years ago, the court rejected Bush’s claim that he had authority to seize and detain terrorism suspects and indefinitely deny them access to courts or lawyers. In this follow-up case, the justices focused solely on the issue of trials for some of the men.

The vote was split 5-3, with moderate Justice Anthony M. Kennedy joining the court’s liberal members in most of the ruling against the Bush administration. Chief Justice John Roberts, named to the lead the court last September by Bush, was sidelined in the case because as an appeals court judge he had backed the government over Hamdan.

Thursday’s ruling overturned that decision.


“Trial by military commission raises separation-of-powers concerns of the highest order,” Kennedy wrote in his separate opinion. “Concentration of power (in the executive branch) puts personal liberty in peril of arbitrary action by officials, an incursion the Constitution’s three-part system is designed to avoid.”


Justice Clarence Thomas wrote a strongly worded dissent and took the unusual step of reading part of it from the bench _ something he had never done before in his 15 years. He said the court’s decision would “sorely hamper the president’s ability to confront and defeat a new and deadly enemy.”

The court’s willingness, Thomas wrote in the dissent, “to second-guess the determination of the political branches that these conspirators must be brought to justice is both unprecedented and dangerous.”

Justices Antonin Scalia and Samuel Alito also filed dissents.  [Emphasis mine.]

More on lawyers

I got some really good comments on my earlier post about the Cleveland lawyers who went after the parents who successfully represented their son in a claim against the school district. I focused on the fact that, usually, the child's interest is indistinguishable from the parents' interest, making it appropriate in most cases for the parent to do for the child what the parent would do for himself — and, in this case, it was to proceed without a lawyer. Comments to the contrary were good, and I don't necessarily disagree with them.

I guess the larger issue in my mind, which I didn't articulate, is the monopoly lawyers have given themselves over the legal system. The ostensible reason is the same one the Bar representative stated in the article I quoted from in my earlier post: namely, lawyers do it better, and poor little lay people can't be trusted in the big bad courts. This is false, at least to the first part of the statement, which assumes that lawyers are competent. In fact, that is often not the case.

In my many years kicking around the legal system, I have known lawyers (all from reputable schools, all of whom passed their respective state bars) who were obsessive compulsive, or were cokeheads, or were alcoholics, or were utterly corrupt, or were pathologically lazy, or were complete idiots — and all of whom could not compare to even the most average competent legal assistant. I mention legal assistants because lawyers have been especially vicious in going after those legal assistants who worked in practice areas where 99% of the practice is filling out forms, and who realized that they could offer customers a "form filling out service" that bypassed the lawyer. Whew! Talk about all Hell breaking loose.

The fact is, lawyers have created a monopoly based on the fiction that they are always a wonderful choice. A real marketplace would be based on information. Mr. A is a graduate of a top law school, passed the bar, and works for a huge law firm. He's very expensive. Mr. B is an English major who spent 15 years at a huge law firm and specialized in filling out forms to evict non-paying tenants. He will help you fill out the forms, and you can represent yourself in Court — if that's what you want to do. Filling out eviction forms is all Mr. B knows, but he knows it incredibly well (which is not true for most lawyers). Mr. B charges half what Mr. A charges. Now you know the facts; you, the informed consumer, get to make the decision.

By the way, my choice of profession for Mr. B is not random. Unlawful detainer (as we lawyers call the practice of evicting tenants) is, in California, a stunningly rule-based legal area. You have to fill out and serve your eviction notice perfectly. Once that phase is completed, if the tenant remains, you have to fill out your Court forms perfectly. If everything is done perfectly, the tenant pretty much has to go. However, because this is such a summary procedure, one itsy-bitsy, normally insignificant mistake can derail the whole thing. A legal assistant who has spent 15 years preparing and serving these forms is infinitely more likely to succeed than a well-educated lawyer who has never done this procedure before (but who will charge as if he did).

Another area where cheap alternatives to pricey (and sometimes incompetent lawyers) would be a good thing comes in the area of setting up business relationships. That is, two people want to create a partnership, and they get a form from the stationary store, modify it, and go into business. When the business turns sour, one often discovers that they did a horrible job creating the form, most often because people cannot write clearly, and these do it yourself forms are filled with ambiguities. Again, a paralegal who spent decades preparing these forms would be cheaper than a lawyer, and less risking than a purely do it yourself approach. Again, in a marketplace where information flows freely, the consumer should be allowed this full array of choices, rather than what is really a Hobson's choice between an unaffordable lawyer or no lawyer at all.

The flip side of my market approach is that I don't think Court's should be at all lenient towards people who opt to represent themselves — which is something most judge's currently are. The fact is that our judicial system is labyrinthine and even the worst attorney will probably have more of a sense of how it operates. However, if we have a true open market, than those who make the informed market approach to represent themselves, or to get legal advice from paralegals, should not be allowed a special benefit in the court system from having made that choice.

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This is why people think lawyers are bottom feeders

Most people who navigate through our legal system, and who must educate themselves about our laws, opt to use a lawyer in the hope that the lawyer, through his skill and knowledge, will give them both a friend in Court and an advantage over their adversary. In other words, in our judicial system, lawyers are meant to assist. They are not a necessity, nor is there any law requiring people to rely on lawyers. There are, of course, exceptions to this. Corporations, which are not people (an obvious point but one that matters at law), cannot appear in any court but small claims without a lawyer acting on their behalf. Also, if adults are incapacitated, courts will appoint lawyers to protect them.

Children occupy an interesting little legal enclave. If a child's legal interests appear to be contrary to his parents' interests or desires, the Court may appoint a lawyer to ensure that the child's needs are not made subordinate to the parents' demands. Normally, however, children cannot appear in a case on their own behalf. Instead, they can appear only through their parents. That is, the suit will be filed by John Doe, as parent and guardian of John Doe, Jr.

In Ohio, parents of a minor autistic child filed a case on his behalf against the school district. They elected to appear in propriate persona — that is, without a lawyer. They were successful. Their success apparently has the Cleveland Bar Association very worried. How else to explain the fact that the Bar is threatening to fine the parents for their successful court appearance:

The Cleveland Bar Association is threatening to fine the parents of an autistic boy $10,000 for not hiring a lawyer when they brought, and largely won, a court case on their son's behalf four years ago.

After a long court battle, Brian and Susan Woods settled their case with the Akron school district in 2002 when the district agreed to send Daniel, now 11, to a private school.

But in February, the Cleveland Bar Association took issue with the Woodses' handling parts of that case themselves and not through a lawyer.

The bar charged them with unauthorized practice of law and threatened a $10,000 fine, saying that although the Woodses were allowed to represent themselves, they could not act as lawyers for their son. The charge is normally filed against nonlawyers who provide legal services for pay, but is rare against parents.

Representatives of several advocacy groups – plus the National School Boards Association, the American Bar Association and the Ohio bar's Committee on the Unauthorized Practice of Law – could not recall any cases of parents being charged with this misdemeanor offense.

Although the Ohio Supreme Court hasn't yet decided the matter, it already shows some signs of good sense:

Last week, the Ohio Supreme Court, which will ultimately decide the case, ordered the bar to present evidence on why the case should not be dismissed, saying it appeared that "Woods has not engaged in the unauthorized practice of law."

What's really lovely is the Bar's justification for bringing this claim against parents who successfully defended their child's legal rights:

Michael Harvey, the Rocky River lawyer handling the charges for the bar association, said the goal is to protect the rights of children. Harvey said special education laws are so complex that children need experts, not untrained parents, looking out for their rights.

Call me a cynic, but I doubt the Bar's stated good intentions. This whole thing has the smell of a monopoly that is trying to use gross bullying tactics to maintain its control over the market. No wonder some people think lawyers are bottom feeders. And no wonder that my natural inclination from the time I left law school has always been corporate defense work.

Hat tip: From the Word Go