Convictions in Biloxi Bribery Scandal

A prominent lawyer and two state judges are going up the river. I'd like to know a bit more about the bribery, though. (Via Overlawyered.)

Prospects for a McCain Rebound

The Weekly Standard has an optimistic diagnosis.

Something to Consider

It's worth pausing to think about what the numbers on the dismissals in the Justice Department actually tell us. The Economist has some considerations. So what were the figures from the Clinton era?

Hail Big Brother

One step closer to the creation of a helot class.

A Question for Ahmadinejad

But what about the log in your eye?

Bush's Tax Cuts are "Social Darwinism"?

That's what Obama said. Not to be outdone on outlandish remarks, Hillary had this to add:

Clinton said she wanted to return to a time when the country and its leaders had big goals and achieved them—like improving civil rights or sending a man to the moon. She said she wished President Bush would have used the opportunity of a unified nation after the Sept. 11 terrorist attacks to make the country energy independent or provide universal health care.

Hmm. What a revealing statement. So Hillary's advice was to use the goodwill of the country in the aftermath of 9/11 to pursue legislation with, at best, a tangential connection to the source of that goodwill? She really is just naked, raw, pure reflexive political ambition, isn't she?

UPDATE Mind you, I'm not being naive here. Bush certainly did use his political capital to pursue issues that had nothing to do with the War on Terrorism. Every politician does it. But for Hillary to be so gormless and to put it so bluntly.... One wishes that her political instinct would match her political ambition.

Should LSAT Scores Be Put on Resumes?

A discussion. I'm inclined against; by the time you're looking for jobs, you have at least a few grades that provide some insight into a student's ability to grasp legal concepts. Moreover, as LSAT score is more determinative of admissions to law school than any other factor, one's school is essentially a proxy for LSAT anyway.

As imperfect as grades are, they are certainly more useful and illustrative than the LSAT, which does not test ability in an explicitly legal context.

McNonsense

I don't know what kind of person is running McDonald's PR team. First, they condescended to the old woman who burned herself with their coffee, making the jury sympathetic to her and thereby snatching defeat from the jaws of victory. Now, they rail against dictionaries for carrying an unflattering definition of the term "McJob." I suppose they had to object for appearance's sake, but they didn't have to insist that the definition be removed.

Words I Don't Know

Haboob (n.) A violent and oppressive wind blowing in summer, esp. in Sudan, bringing sand from the desert. [late 19th cent.; Arabic habūb "blowing furiously."] Oxford American Dictionary.

More Straight Talk Express

McCain is back to doing what he does best. Bloggers are such a natural target for McCain, I don't know why he's waited so long to woo them. Especially when there's a lot of ground for him to make up in the conservative blogosphere.

The Dangers of Email

The latest in a never-ending series. This woman's a nut, and that guy seems outrageous too (though to a much lower level)....

Caracas' Creeping Socialism

Not so creeping anymore. I guess McCain's concerns seem more and more justified.

Wow!

That horse can move - even its tail has rhythm!

A "Breathtakingly Mendacious Tissue of Calumnies"

Bruce Bawer has yet more evidence of Europe's ongoing crisis of confidence.

Settlement Agreement in James Joyce Copyright Case

Here's a very interesting report on a settlement agreement in a dispute between the Estate of James Joyce and a Stanford professor who wrote a biography of Joyce's daughter, Lucia. The academic won a declaratory judgment allowing her to publish on her website exerpts from works relating to James and Lucia Joyce, the copyrights to which belong to the Estate.

Here's the press release. Academic scholarship is a paradigmatic example of fair use. I strongly suspect that the Estate was aggressive just to scare people away from engaging in copying that is undeniably protected.

More on the Koran-Quoting Court in Germany

In The New York Times. This really was outrageous. And the woman was born in Germany!

One question I'd like answered, though: the judge said in her opinion that “[i]n this [Moroccan] cultural background[,] it is not unusual that the husband uses physical punishment against the wife.” Is this true? It shouldn't have had anything to do with her ruling, of course, but it would be interesting to know her basis for this assertion.

Barack O'Bama

He has Irish ancestry, RTE reports. Go an, ya bye, ya!

I wonder if he's from Kilkenny?

A Shocking Decision

For several reasons.

A Warning to Heed

The EU Commission President warns against "political correctness and moralising politicians."

I'm very glad for this. I remember being utterly disgusted with the patronizing tone of the Irish government when Irish voters rejected the initial proposal for the EU Constitution. The voters overwhelmingly rejected it. The response of the Irish ministers was to berate them for making the wrong choice and for embarrassing them in front of their Eurofriends. A few months later, they put the matter up again; now that the Irish voters had been sufficiently woodshedded by their moral leaders, they voted in favor.

Actually, I was upset with the Irish voters, too, for succumbing. They even voted for it by the same margin they had rejected it by the first time. It hardly dissuades the scolds on high when their scolding actually works.

Crazy Jurors!

There's no way this award can withstand appeal. (Let's hope not, anyway.)

"Yeah, I Played Ugly Defendant Number Three"

A new study concludes (confirms?) that jurors are more likely to acquit a defendant who is good-looking than one who is homely. But wait, there's more:

The study showed that while the jurors were swayed by attractiveness, they did not let race cloud their judgment. Black and white suspects were treated equally. When black suspects were convicted, however, they were given longer sentences.

Hmm, that's surprising, and encouraging. Less surprising:

Women jurors treat female suspects more harshly, especially when they think they might have used their looks to their advantage.

Men, on the other hand, tend to give attractive women the benefit of the doubt.

Street Scenes

One reporter's view from the ground in Baghdad. That one reporter, incidentally, is Alex Kingsbury, cousin to my friend, Joe Gabaeff.

Scalia's Ignorance Only Proves He's Right

It's a win-win. What's not to like about strict constructionism? It rocks!

McCain on Socialism in the Western Hemisphere

This obviously targets the Cuban vote in that crucial state of Florida. But I wonder if it mightn't become a theme of his campaign throughout the rest of the country as well. Until 1991, anti-communism was the glue that held together the disparate strains of the conservative coalition - social conservatives, religious conservatives, libertarians, neo-cons, etc. Perhaps McCain feels that opposing the odious left-wing regimes of Castro and Chavez can perform something of the same function. After all, none of the current contenders for the GOP nomination seems to have the edge in cross-constituency appeal; what worked in the past might work now, for him, albeit to a greatly reduced extent.

Tehran

... the Paris of the East. Here's a great quote:

An intense physical consciousness is quintessentially Persian, my friend later explained to me. It goes beyond appearances to a strong sense of pride in having what Iranians see as their superior culture and history. You could call Iranians the French of the Middle East.

In a good way, let's hope.

Why, That's a Pretty Picture

Village in Maramures, a county in far northern Transylvania, along the Ukrainian border. September 2006.

Dr. Freud, Call Your Office

I'm not sure what to make of this story. If the Iranian officers were in Iraq or Turkey to further the insurgency in Iraq, then they got what they deserve. But the most striking passage didn't involve Iran's claims or threatened retaliation - it was this:

“We’ve got the ability to capture a nice bunch of blue-eyed blond-haired officers and feed them to our fighting cocks,” he said.

Anyone know the ayatollah's take on double entendre?

Carol Burnett Sues Family Guy for Some Reason

Why would she do this? If anything, Family Guy has introduced a bunch of twentysomethings to her characters. Face it, Carol, they might not otherwise have a clue as to who you are.

More Dog-Whistle Theories

The New York Times is obnoxious. It says:

In partisan Republican circles, the pursuit of voter fraud is code for suppressing the votes of minorities and poor people. By resisting pressure to crack down on “fraud,” the fired United States attorneys actually appear to have been standing up for the integrity of the election system.

Oh really? And how did the Times, of all publications, manage to crack this "code"? Did they get a copy of our handbook? Did someone slip it to them?

In any event, we all know that this must be true, since the idea that Democrats would ever engage in voter fraud is absurd. Right?

Here's a newsflash, NYT: in "partisan Republican circles," the pursuit of voter fraud is code for... the pursuit of voter fraud.

Former Sen. Simpson on Gays in the Military

I always liked Alan Simpson, a pragmatic conservative former senator from Wyoming. He voted for Don't Ask, Don't Tell - and now he's for dropping the ban entirely. He justifies this shift in part by emphasizing our need for "every able-bodied, smart patriot to help us win this war." He emphasizes, too, the ongoing changes in society's attitude toward homosexuals in the military; for instance, the "percentage of Americans in favor [of dropping the ban] has grown from 57 percent in 1993 to a whopping 91 percent of 18- to 29-year-olds surveyed in a Gallup poll in 2003." That's an amazing figure. He even says that General Pace's recent comment that homosexuality is immoral was "completely out of the mainstream of American thinking"; I wonder how true that is, although it unquestionably describes the trends.

Plus, Andrew Sullivan has a link to some pretty surprising poll numbers on the issue, some of which Sen. Simpson mentions.

An Artist's Eye

There's more to the notion that you might suspect.

What Would Gandhi Do?

Code Pink is throwing around that bit of pablum. Here's some actual evidence, put forward by actor, former senator, and potential presidential candidate, Fred Thompson:

During World War II, Gandhi penned an open letter to the British people, urging them to surrender to the Nazis. Later, when the extent of the holocaust was known, he criticized Jews who had tried to escape or fight for their lives as they did in Warsaw and Treblinka. “The Jews should have offered themselves to the butcher’s knife,” he said. “They should have thrown themselves into the sea from cliffs.” “Collective suicide,” he told his biographer, “would have been heroism.”

Not much of a war strategy. Besides, the "collective suicide" strategy has already been taken, so no points for originality, ladies.

"Meddling ... for Political Reasons"?

Perish the thought. Key quote:

As it does peerlessly, the Times has crafted the template for mainstream-media coverage of this saga. Loyalty to Bush and Gonzales — could anything be more sinister? That’s why, we’re told in yet another breathless dispatch, “Congressional Democrats … are investigating whether the White House was meddling in Justice Department affairs for political reasons.”

The storyline makes great theater. It is also absurd. You might as well ask whether Congress is proposing legislation for political reasons, or whether loyalty to the party leaders might have had a teensy-weensy bit to do with what bills got voted.

Indeed. Democratic indignation here is a bit hard to swallow. And furthermore:

So let’s be clear. The prosecution of individual cases proceeds in accordance with constitutional and statutory protections for the individual. It is inherently a legal, not a political, process. Politics ought never intrude on it. But the same is decidedly not true of prosecution in the macro sense of setting enforcement priorities.

However, we're learning now that Karl Rove has played a big hand in deciding on these and other firings, to a level beyond what I would expect is normal. This strikes me as inappropriate, although again, there's no real evidence that anyone was fired for their political beliefs and not because of a reluctance to pursue Administration priorities. We're also learning that, in sworn testimony, the Attorney General gave inaccurate information to Congress about the White House's involvement in these firings. Gonzales' chief of staff resigned because of this, and that may be all that's needed. But maybe not.

Islamic Law and Legal Change

This is from F. Vogel's Islamic Law and Legal System, explaining why criminal penalties specifically stated in the Quran and Sunnah should be enforced to the letter, even though they may seem harsh:

[A] penalty is a "requital for what they have wrought"; the penalty has a retributive character, a righting of the wrong as ordained by God. But in conjunction with this is a reference to forgiveness of the penitent, possibly because infliction of the penalty is atonement for the crime. As one hadith states, "The hand of the repentant thief precedes him to heaven."

Amputation of the hand is the proscribed punishment for theft in Islamic law. More importantly, it can never change.

As I've been studying Islamic law this term, I've been on the lookout for signs of flexibility - of ways to adapt the law to changing societal norms. There is, in theory, an abundance of tools for adaptation, and Islamic law in its first few centuries developed a rich tradition of jurisprudence adapting Islamic law to different times and to places far beyond the Arabian peninsula. Yet that tradition has itself achieved an unassailable position, and Islamic jurists today - who seem to demonstrate both a monastic's reticence and an academic's turf-jealousy - would be at pains to update the law, if they had any inclination to do so. Complicating the issue is the jurists' skepticism of the sources of positive law, be they kings or democratic assemblies. Islamic jurists are ambiguous as to whether statutes and decrees are recognizable under sharia; at best, they are inferior companions to the jurist-deduced law, usul al-fiqh.

I feel justified in concluding from what I've read this semester that a legal tradition built squarely on religious precepts simply cannot function as a modern, comprehensive legal system. With Jewish law, canon law, etc., this is not much of a problem, since the "laws" here merely "bind" religious officials, offices, or adherents. In contrast, sharia purports to be an omnibus legal system with a divinely ordained answer for every legal question. I wouldn't want to have canon law govern my rights in a democratic society; indeed, canon law is uniquely inappropriate for this purpose. I find it increasingly difficult to see how any other conclusion can be reached with respect to Islamic law.

Hail Big Brother

This does not bode well.

"This Is a Clear Free Speech Issue"

Some further thoughts on the First Amendment rights of that pedophile pundit.

An interesting question: "given that the pervert does have the right to free speech, [what does] Obama's attempt to get the material censored says about his own commitment to First Amendment rights"? It's understandable for a parent to react this way, of course; but Obama is running for president.

The Modern Leisure Class

Redistributive policies for those with too little leisure time? Why, that's a cause to champion.

[Thanks, D!]

US Attorneys Serve "at the Will of the President"

Worth remembering:

United States Attorneys are appointed by the President with the advice and consent of the Senate for a four-year term. See 28 U.S.C. Sec. 541. Upon expiration of this term, the United States Attorney continues to perform the duties of the office until a successor is confirmed. United States Attorneys are subject to removal at the will of the President. See Parsons v. United States, 167 U.S. 314 (1897).

I Took Bribes "for the People"

A class act. Interestingly, the Kerry campaign dropped him from their ranks shortly before the 2004 election, apparently due to the stench of corruption wafting from him.

Viacom v. Google

The Journal has an interesting piece on Viacom's copyright claims against Google over its recently acquired YouTube. (There's more on the Law Blog as well.) The case implicates important questions regarding the applicability of the Digital Millenium Copyright Act's "safe harbor" provisions to a video-sharing site like YouTube. Viacom alleges that YouTube does not merely host websites that display copyrighted videos; rather, it "itself commits the infringing duplication, public performance and public display." In this way, Viacom argues, YouTube is unlike AOL and other ISP providers, which were within the contemplation of Congress when it passed the DMCA in 1998.

But surely the congressional record, if not the DMCA itself, contemplates the rise of new technologies? After all, it was the rise of new technologies that led to the DMCA in the first place. I don't see why AOL should enjoy a safe harbor even though it makes the display of copyrighted material possible, while YouTube does not. Neither AOL nor YouTube directly posts copyrighted material; they both provide ways (one through an ISP system, the other through a website) for displaying copyrighted material posted by others. Congress knew about ISPs and websites when they passed the DMCA. So why distinguish between them when it comes to the safe harbor provisions? Just because it's YouTube's business plan? But why can't a company build a business plan around a legitimate exception in copyright law, especially when YouTube is careful to avoid generating advertisement revenue from pages showing material that is not covered by a licensing agreement?

More on the Fired Prosecutors

The New York Times has an interesting article on the dustup over the DoJ's firing of seven prosecutors for allegedly political reasons. The documents show that Gonzales's chief of staff, Kyle Sampson, assessed the prosecutors by recommending retention of those who, in part, "exhibited loyalty to the president and attorney general," and recommending removal of those who, conversely, "chafed against administration initiatives." Five of the seven fired were in the latter category, which included lack of effectiveness and managerial ability as well.

I assume that the upper echelons of the Department of Justice enjoy some authority to set policy - including prosecution policy - for all of the US prosecutors. Inasmuch as that means"chafing" against administration initiatives is unwarranted, I don't see much of a problem there. I'd be interested to know what counted as "chafing," which initiatives were considered, and how far the authority of the higher-ups extends in this regard.

As for exhibiting "loyalty to the president and attorney general," well, it's unseemly to use that word in such personal terms. But if it means good faith pursuit of the legitimately established policies governing the prosecutors' offices, I don't think that's much of a scandal. Seeing more documents would show what the general tenor of the firings really was.

I do wonder why two of those who were fired fell into the "retain" category. If they "produced, managed well, and exhibited loyalty to the president and attorney general," as that category requires, what justification was there for their dismissals? Were those firings politically motivated? I'd be curious to see what happened there.

It's not encouraging that Karl Rove appears to have been involved in the process. In an email after the firings, Sampson apparently said that the appointment of the new prosecutor in Arkansas, J. Timothy Griffin, was "important to Harriet, Karl, etc." Even allowing for the AG's authority to set prosecution policy, a political advisor should not participate in what should be a professional review of job performance.

It also looks like Sampson advocated a stonewalling of Arkansas' two Democratic senators. He said in the same email:

I think we should gum this to death[....] Ask the senators to give Tim a chance, meet with him, give him some time in office to see how he performs, etc. If they ultimately say ‘no never’ (and the longer we can forestall that the better), then we can tell them we’ll look for other candidates, ask them for recommendations, interview their candidates, and otherwise run out the clock. All this should be done in ‘good faith’ of course.

Umm.... That doesn't sound very "good faith" to me.

UPDATE: The Wall Street Journal has an article saying that this evidence of involvement by the White House undercuts Gonzales' statements to Congress that there was no such involvement. Gonzales responded by saying that he was unaware of those emails.

I think the calls for Gonzales' resignation are premature. Nevertheless, this matter may give the Republicans their first real chance to rue the day the Dems got subpoena power.

Other Than Ann

I had some friends from Chicago up in Ann Arbor this weekend for a visit. One of them asked me what famous people went to Michigan Law; other than Ann Coulter and Clarence Darrow, however, I was drawing a blank. I called another friend of mine who likewise was stumped at that moment. We knew we knew more - we just couldn't recall them.

Thankfully, Wikipedia exists for this sort of situation! Other notable graduates include Larry Elder, Bob Woodruff, US Senator Ken Salazar, former US Senator Peter Fitzgerald, former Congressman Harold Ford, Jr., Judge Harry Edwards of the DC Circuit Court of Appeals, Teamsters President James Hoffa, former Congressma and current OMB Director Rob Portman, former LA Major Richard Riordan, former Supreme Court Justice George Sutherland, UPS President Lisa Hamilton, and (very regrettably) Mary Frances Berry.

"Insulting Upwards"

That's a good term for it. And Paul Campos went to Michigan Law too? What was Admissions snorting back then?

Score One (Again) for Gesture Politics

It's form above substance. I mean, doesn't it actually look like Roger Ailes was making fun of Bush? Here's what he said, in a joke-laden speech to the Radio and Television News Directors Foundation (RTNDF):

And it is true that Barack Obama is on the move. I don't know if it's true that President Bush called (Pakistani President Pervez) Musharraf and said, 'Why can't we catch this guy?

So for this, the Nevada Democratic Party has gone on a humor strike in protest. Sheesh.

I liked this joke, which came just before the one above:

A man in France was arrested today for using his car to run down a pedestrian. He said he thought it was Osama bin Laden. Ok, it was a mistake, but it still ranks as France's biggest military victory ever.

Hah!

"If I want to manufacture biological weapons with my copy of iTunes, I will, fascists."

Well, it's just one view. Not, you know, a good one, or a correct one, or an intelligent one. But it's a view.

Here's another: Macs be praised!

"I Don't Feel No Ways Tahyurd"

I just can't help it. I love listening to this. Over and over again.

She was the first lady of Arkansas, for Pete's sake - how does she manage to sound like she never left Park Ridge before today?

Words I Don't Know

(In fairness to my enormous ego, this is actually one I just forgot and looked up again. Don't know what made me think of it, though.)

Psychopomp (also psychopompos) (n.). 1) In Greek mythology, a guide of souls to the place of the dead. 2) The spiritual guide of a living person's soul. [Greek psukhopompos, from psukhē "soul" + pompos "conductor."] Oxford American Dictionary.

Wikipedia has this to add:

In Jungian psychology, the psychopomp is a mediator between the unconscious and conscious realms. It is symbolically personified in dreams as a wise man (or woman), or sometimes as a helpful animal. In some cultures acting as a psychopompos was also one of the functions of a shaman. This could include not only accompanying the soul of the dead, but also vice versa: to help at birth, to introduce the newborn's soul to the world[.]

Is an AIDS Vaccine Only 3 or 4 Years Away?

This bit of news is certainly encouraging. Key quote:

The vaccine’s success with the simian AIDS virus has been nothing short of remarkable. Not only did the vaccine prevent the infection, it kept it under control for the monkeys that already had it, putting it in a kind of remission.

Not only a vaccine, but a cure as well? That would be fantastic....

Gonzales Retreats on Attorney Firings

Not a pretty scene. On top of that, if Paul Krugman is to be believed (a fair question!), Gonzales' Department of Justice has been more than four times as likely to investigate or indict Democratic politicians or candidates than Republican ones. What's going on there?

Why, That's a Pretty Picture

I haven't posted any pictures in a while. Here's one from inside the amazing cathedral in Krakow, from September 2006. It's a pulpit - see the dove in the center of the canopy? That's the Holy Spirit, and it's meant to inspire the speaker.

I spent October through December of last year studying in London and living with my aunt and uncle above their pub in Peckham. (Yes, of course it was awesome.) While I was there, I took two side trips: one to Belgium and one to the Netherlands; some of the pictures from those trips have been posted.

In September, however, before arriving in London, I went on a five-nation Euroromp. I spent two weeks back in Ireland for my cousin's wedding, and then two weeks in Eastern Europe. We visited Prague, Krakow, and Budapest first; then we rented a car and drove all over Transylvania, ending up in Bucharest before taking a night train back to Budapest. It was awesome.

I will try to post more of my Eastern European pictures. My friends and I had originally planned to put together a website on our trip; I don't quite know what happened to that. I may recount some vignettes from the trip on this site in the future.

Florida Paper Seeks to Out Anonymous Local Blogger

This is unseemly. Why is the newspaper shilling for a local pol?

Iraq: "The greatest security threat we face."

That was Madeleine Albright in 1998. The video also has other choice quotes from prominent Democrats - back when it was convenient for them to be wary of Saddam's capabilities and intentions. Remember that?

Mr. Pot, Mr. Kettle. Mr. Kettle, Mr. Pot.

Apparently, Newt Gingrich had an extramarital affair - even as he led the impeachment of Clinton.

I don't think this should have disqualified him from playing a role; after all, Clinton was being impeached for perjury, not infidelity. But it's definitely something that should have been made public at the time. And if that would have kept him from leading the charge, so be it.

Actually, I'm reminded about how liberals viewed the crime of perjury when it was Bill Clinton in the dock. They were outraged that such piddling charges would be brought against him - especially when the main thrust of the investigation (Whitewater) turned up nothing. Sounds rather familiar, actually: Libby was prosecuted for perjury on an immaterial matter arising from an investigation (the Wilson/Plame non-story) that, likewise, turned up nothing. Do you see a difference in tone on the part of liberal commentators? I do.

In fairness, there's a disconnect on the conservative side as well. Conservatives who were indignant about Clinton's perjury (make no mistake, that's what it was) should also be indignant about Libby's perjury (that's what that was, too). Yes, Clinton was the president - but if the office matters, then shouldn't it matter that Libby was the right-hand man to the vice president?

I thought the effort to remove Clinton from office was wrong, for all the reasons I thought the prosecution of Libby was wrong. Mind you, I did at the time support Clinton's impeachment, not conviction; but pretty soon after the fact I changed my mind and decided that mere censure would have been better.

So, liberals: is it hypocritical to wax lyrical on the perfidious Libby, but to dismiss Clinton's lies as unimportant distractions? I think so. And only one of the two men is in jail for it.

Kaplan's Side of Things

Finally! I have a post on FIRE's blog about this. More and more I feel that Kaplan's comments, far from being uncouth, were perfectly ordinary (even if jokey). Which makes the three-ring circus over that email look more and more ridiculous.

The Washington Post on the Libby Prosecution

Not a flattering picture. There will be two consequences from Fitzgerald's crusade. The first is that reporters will no longer be as sure as they were of the contours of their professional privileges. The second is that, barring elimination by Congress, the institution of special prosecutor will continue down its current, cavalier, abusive path. They will continue to build elaborate webs of legal tripwire around the feet of politicians and senior officials - which is bound to catch up someone at some point.

What Is a "Teenage"?

Memo to Sonny Bono: I'm pretty sure that was supposed to be a PSA against drug use.

Shocking News

Um, this happened two blocks from the University of Michigan Law School....

More on Sanctions Reform

David Nieporent responds to my comments, and I respond to his.

Emmett, he was sanctioned, yes. On what was at least his fourth "offense." In an amount inadequate to make even these defendants whole (let alone the three prior sets of defendants). Assuming, as Judge Crotty does, that this amount is sufficient to deter Aretakis from filing future suits of a similar nature, that doesn't help all those he already sued.

Note that I am not criticizing the judge in this case so much as I am the legal regime under which he's operating, which, as David W explains, is extremely loath to restrict the use of the courts, just in case someone comes up with a brilliant idea down the road.

To the other people who commented, it isn't so much that lawyers are corruptly protecting their professional prospects -- in particular, federal judges are unlikely to be practicing law down the road -- as that for the last few decades, the courts have been seen by many as instruments of "social justice" rather than plain old justice. And they're deathly afraid of making Type II errors (rejecting legitimate cases), so they err on the side of Type I (allowing illegitimate ones).

Posted by: David Nieporent | March 6, 2007 08:11 PM

But the purpose of sanctions under Rule 11 is not to make the defendants whole; it is to deter further bad behavior. I think $8000 will do that well. To my knowledge, this is the first time this sanction has been imposed on him; it may have taken four "offenses," but only one Rule 11 motion that I know of. I doubt his practice is thriving - I suspect he'll feel the stick of that fine.

I see your point about reluctance to restrict access to courts, and I share it. But legislatures are free to restrict access prescriptively, and if they think certain claims should not be heard, they should say so forthrightly in statute. I think that's a better way to deal with such problems than tinkering with the Rule 11 regime, which may have many untoward consequences.

Posted by: Emmett Hogan | March 6, 2007 11:35 PM

Vice President Condoleezza Rice

Could it happen? This scenario seems highly unlikely.

That Pesky First Amendment

The Supreme Court has to take the Ninth Circuit to the woodshed. Again.

Good Winds Blowing in Iraq?

Let's hope. Getting such a positive report from ABC News is, well, surprising, for several reasons.

"Fails in Every Possible Way"

Here's an interesting story from David Nieporent, posting on Overlawyered, about a lawyer with too much time and not enough skill. Here's the judge's decision imposing Rule 11 sanctions on the lawyer for bringing frivolous claims (the good stuff begins on page 17). Some key quotes:

• "No reasonable attorney would have believed these claims were 'warranted under existing law' given the wholly deficient facts of the case."
  
  
• "In support of his motion to recuse the Court, Mr. Aretakis cited a particular case as controlling, without disclosing he was quoting from the dissenting opinion."
  
  
• "Mr. Aretakis seems to have simply ignored the overwhelming precedent on point."
  
  
• "At oral argument, he maintained that his client had not been terminated as alleged numerous times in the amended complaint, but rather that his job had been stolen from him. The make-believe answer is unworthy of someone claiming to be a professional."
  
  
• "[T]he amended complaint ... is littered with wholly irrelevant, inflammatory, and embarrassing facts concerning defendants and non-defendants alike that have no bearing on the actions brought."
  
  
• "The Title VII claim fails in every possible way."

Ouch! Should have gone to med school, buddy. More entertaining stuff:

As with the action before Judge Chin, this complaint is sloppy and filled with mistakes. For example, it names a dead man as a defendant. (Am. Compl. ¶ 9.) It also repeatedly refers to the “Ratzinger defendant” who is not, in fact, a named defendant (Am. Compl. ¶¶ 82, 83 & 85); This is an apparent reference to the Pope, although one cannot be sure because the complaint refers to him as “the Pop.” (Am. Compl. ¶ 82.)

And we can't forget this:

He alleges a cause of action for “tortuous” interference with Plaintiff’s employment, a mistake made not just once, but twice. (Am. Compl. ¶ 116.)

In fairness, that could just be the Spellchecker talking.... Still, as much as I am in favor of tort reform, I quibble with Nieporent's contention that this case illustrates a need to reform the rules for sanctioning lawyers who bring frivolous claims. Nieporent opens with this:

As I've previously mentioned, one of my pet peeves is the claim by the trial lawyer crowd that tort reform is unnecessary because judges already have the power to punish lawyers who file frivolous lawsuits. Technically, this claim is true. But it relies upon an extremely narrow definition of "frivolous" – the vast majority of absurd cases covered here on Overlawyered are not considered frivolous by current legal standards – and those who practice know how rare it is for judges to actually issue sanctions.

But this case does not illustrate the first point. Nieporent does not show how the definition of "frivolous" applied here was in any way inadequate; indeed, the judge found that the claims were frivolous, so it's adequate enough at least to catch this instance. I'm sure there are "absurd" claims that should be prevented but that are not, strictly speaking, "frivolous" – but this isn't one of them.

Nor does the story illustrate Nieporent's second point, that "those who practice know how rare it is for judges to actually issue sanctions." The lawyer was sanctioned here. Nieporent argues that the sanction was inadequate – okay, even assuming that's true, what does he suggest? Removing judicial discretion? That would be a very bad idea indeed, as the sanctions regime of Rule 11 is designed to be context-specific, and should not be applied by rote. How about broadening the meaning of "frivolous"? Okay, but in what way – and how then do you safeguard a lawyer's necessary ability to mount a vigorous, if inauspicious, argument? Will lawyers refrain from presenting all reasonable arguments on behalf of their clients for fear of Rule 11 sanctions?

But then again, the sanction was adequate. Nieporent argues that the lawyer here "was fined just $8,000 – far less than the defendants asked for – and told not to do it again." (The defendants were seeking reimbursement of all the lawyers' fees associated with their motions to dismiss.) He views this as inadequate.

But the purpose of sanctions under Rule 11 is to ensure that the offending lawyer does not behave badly again; it is not to compensate the other side for litigation expenses. The lawyer here has learned the hard way that doing a shoddy job could cost him quite a bit; in light of this, the sanction seems perfectly adequate. If Nieporent would change the law to make recovery of certain litigation costs possible, then we'll see lawyers urge Rule 11 sanctions a lot more often than they currently do. And Rule 11 is kind of like a scarlet letter: the mere filing of a motion for sanctions can harm a lawyer's reputation, regardless of whether the issue is fully aired. Do we really want to encourage this kind of gutter lawyering?

---

I've always viewed tort reform as a damages issue, mainly: the biggest problem is that juries (and sometimes judges) give outrageous rewards. For this reason, my preferred tort reform package would focus on restricting claims for duplicative damage types and setting caps on all damages. I also see tort reform as requiring serious overhaul of standing and jurisdiction rules in state courts that have become notorious for listening to any plaintiff that happens to wander by.

I should add, too, that tort reform is most pressingly needed not at the federal level, but at the state level. And that, of course, will require many different approaches, depending on the specific weaknesses in each state.

Despite all this, however, I have never been too concerned about the filing of silly claims. Many silly claims get much farther than they ever should, but most do not. (Indeed, in this case, the judge's ruling on sanctions came in the same opinion granting the defendant's motion to dismiss for failure to state a claim on which relief may be granted. It may have taken fourteen months from filing to dismissal, but that's not too bad in trial time.) And if the lawyer does this repeatedly (as was true here), the judge always has the tool of sanctions (as was also true here).

This story is certainly amusing; most "how not to be a lawyer" stories are. But I just don't see it as a poster child for sanctions reform.

Wow!

I mean... just, wow!

Who Said It?

Here are some quotes from the run-up to the Iraq War:

1. Saddam Hussein is a tyrant who has tortured and killed his own people, even his own family members, to maintain his iron grip on power[.] [...] He used chemical weapons on Iraqi Kurds and on Iranians, killing over 20,000 people.

2. It would be naive to the point of grave danger not to believe that, left to his own devices, Saddam Hussein will provoke, misjudge, or stumble into a future, more dangerous confrontation with the civilized world.

3. [Hussein] violated the cease-fire agreement. The reality is that we can’t allow him to continue on the track he is. And I also believe that we can’t be secure, and the region can’t be secure, as long as he’s still in power.

Bush, Cheney, and Blair, perhaps? Not quite! Try Sens. Clinton, Kerry, and Edwards. They, along with 23 other Democratic senators and 82 Democratic congressmen, supported the vote to go to war with these types of arguments.

We have not found weapons of mass destruction, and that was the main justification for war. Knowing what I know now, I would not have supported the war at the time; removing a tyrant and promoting democracy in the region simply are not worth the cost. But knowing what we knew – or thought we knew – then, it was a reasonable position, and one shared on both sides of the aisle. Could the Democrats kindly bear this in mind next time they try to act like the victims of a swindle for supporting the war?

Hat tip: Deroy Murdock.

Now the Notes Have Gone Nuclear

This is Iran's new banknote, the largest denomination that country has ever printed. According to Agence France-Press, the quote in Arabic is from Mohammed, and says: "If the science exists in this constellation, men from Persia will reach it." (Note: AFP says that hadith means "saying of the Prophet." It does not; it means one of many reports on the sayings and doings of the Prophet. The entire corpus of ahadith is the Sunnah, which explains and illuminates the Quran.)

An Open Letter on Ann Coulter

Both sides deserve some blame for the sad state of public rhetoric in politics today. But if we're going to urge liberals to tend their garden, we should tend ours as well.

UPDATE: And lest anyone think there are no weeds on the other side of the fence....

A "Final Solution"? Really?

Really?

More on that UW Committee's Statement

Is it uncouth to link to yourself? Nah.

I Heart Blogger

You know what's cool about the labels menu feature on Blogger? It's like a running tally of what I'm going on about. It lets me know if I'm harping too much on one thing. Cool!

This post will make "Admin" tied for seventh. That's less cool.

Switzerland Invades Liechtenstein!

We must respond to this illegal aggression from the Neutral Menace!

"Sich Umberelluen"

Sasha Volokh tries on for size a curious theory concerning the origins of the word "umbrella." He posits that the word reaches us from a blend of Germanic and Latin elements. Start with the Middle English compound prefix "umbe" of, for instance, the words umbeclap and umbelap, which apparently mean "to embrace" and "to surround," respectively. Add it to the Spanish/Tyrolian offspring of the Latin repluviare (meaning, apparently, "to protect against rain"). From this union of Anglo prefix and Habsburgian verb comes "umberelluen," and the rest, as the say, is linguistic history.

What a story! (If you dig this sort of thing, of course.) Yet the Online Etymology Dictionary has a different take:

umbrella
1609, first attested in Donne's letters, from It. ombrello, from L.L. umbrella, altered (by influence of umbra) from L. umbella "sunshade, parasol," dim. of umbra "shade, shadow" (see umbrage).

Spoilsports. So the roots of "umbrella" lie in the Latin word for parasol, "umbella," itself meaning "little shade."

Furthermore, if the Kernerman English Multilingual Dictionary is to be trusted, a partly Germanic origin to the term would make English a minority amongst the other Germanic languages, virtually all of which use words of distinctly latinate origin:

Danish: paraply
Dutch: paraplu
English: umbrella
German: Schirm
Norwegian: paraply
Swedish: paraply

Compare the Romance languages:

French: parapluie
Italian: ombrello
Portuguese: guarda-chuva
Romanian: umbrelă
Spanish: paraguas

Still, Sasha Volokh's ratiocination naturally invites the question: can't we find some way to bring back umbeclap and umbelap? Given recent blogger fascination with verbal prefixes of Germanic origin, I would say the time is right. My offerings:

• Observers have said Mr. Giuliani’s reception at CPAC would be an early indication of whether the party’s more conservative elements would umbeclap him as the party’s standard-bearer.



• Umbelapped by cameras and supporters, Romney also wandered past a section the American Conservative Union, the group’s sponsor, had set up for bloggers.

Hey, they're not too bad!

Note: Sasha is obviously joking. (Or not so obviously.) Anyway, sometimes it's fun to invent etymologies for stuff. Who's with me on that? Anyone?

Creepiest Guy of the Day – But Did He Break the Law?

A self-described pedophile posted on his website a picture of Sen. Barack Obama with his wife and two young daughters. According to The Smoking Gun, the man "posted photos of the Democratic politician's young daughters on a web site that purports to handicap the 2008 presidential campaign by evaluating the 'cuteness' of underage daughters and granddaughters of White House aspirants."

Wow. That is really disturbing. Obama's lawyers protested, of course, alleging defamation, invasion of privacy, and copyright infringement; the pictures have been removed, although a link to the website for Obama's presidential campaign remains.

I wonder how strong the legal claims would actually be, though?

• Defamation. In defamation, the gist is harm to reputation, and a showing of such harm is a constitutional requirement; can Obama claim that his reputation was injured by this?
  
  Furthermore, can't the pedophile simply say that he was expressing an opinion? Defamation covers assertions of fact, not mere expressions of opinion. I don't believe the pedophile maliciously made any assertions like "Obama endorses my views" or anything like that. And if the pedophile merely wished to express the opinion that "Obama's daughters are cute" – well, it's disgusting, but it also strikes me as constitutionally protected opinion.
  
  Even if the pedophile were asserting some false, identifiable "fact," Obama would have to show that the "statement" was made with "actual malice" – that is, "with knowledge that it was false or with reckless disregard of whether it was false or not." NY Times v. Sullivan, 376 US 254, 280 (1964). This is because Obama is a public figure. Thus, if the pedophile unintentionally implied that Obama supported his message, this might not rise to "actual malice" – even if it were negligent. It can be argued, furthermore, that Obama's wife and daughters are also public figures (note: figures, not officials) – an intentionally broad term. The same logic might therefore apply to any defamation suit brought by them or on their behalf.



• Invasion of Privacy. I don't know much about invasion of privacy law, but I suspect the provenance of the picture might matter somewhat. After all, if the picture had been publicly distributed by Obama's campaign, how can the pedophile be accused of invading anyone's privacy?



• Copyright. Assuming that Obama owns the copyright in the picture (a reasonable assumption), he may prevent unauthorized distribution or reproduction of the copyrighted image. The pedophile may be able to claim a fair use defense, however; I'm not sure how that works. (There may be other defenses available, as well; we haven't gotten to defense yet in my copyright class!)

---

These issues may be moot, because the pedophile did the right thing and removed the picture. But he has not removed the link to Obama's site, as Obama's lawyers had demanded. Furthermore, Obama's lawyers demanded that the pedophile "remove all references to Senator Obama, his family, and Obama for America" – regardless of the content of those references – and that he "forever refrain" from posting any references to or pictures of the same. Even if Obama could win in court, he surely would not be entitled to such a sweeping remedy. What happens if the pedophile posts a reference to or picture of "Obama, his family, and Obama for America" in the future, regardless of the content or context?

Interesting stuff, though deeply unsettling. So can a candidate for office do anything to stop online perverts from publicly drooling over their children?

UPDATE: According to the fair use provision of the 1976 Copyright Act, 10 USC § 107:

[T]he fair use of a copyrighted work[ ...] for purposes such as criticism, comment, news reporting, teaching[,] scholarship, or research, is not an infringement of copyright.

Additionally, § 107 states that, in considering fair use, courts must consider such factors as "the purpose and character of the use," "the nature of the copyrighted work," "the amount and substantiality of the portion used," and "the effect of the use upon the potential market for or value of the copyrighted work." None of this seems to rule out a fair use defense entirely; I wonder what the case law says?

Statement by UW-Law's Committee for Academic Freedom and Rights

Here.

I Was Sitting Here

Why, That's a Pretty Picture

A small square in Bruges, Belgium. November 2006.

Ann Coulter:

The new Sista Souljah.

I hope it's McCain to take the lead in denouncing her. He (along with Giuliani and Romney) has already condemned her statement. GOP, we need distance, pronto!

Words I Don't Know

This one must get an award for least illuminating etymology:

Wait-a-bit (also wait-a-bit thorn) (n., chiefly S. African). An African bush with hooked thorns that catch the clothing, in particular an acacia. [Afrikaans wag-‘n-bietjie, literally ‘wait a bit.’]

Ann Coulter Lowers the Value of My Law Degree

QED. Seriously, I wish she hadn't gone to my Law School. She repulses me. She makes conservatives look like idiots. And Mitt Romney doesn't help with his fawning.

The Federalist Society's SCOTUScast

The Federalist Society has inaugurated a terrific new feature: SCOTUScast. It features podcasts by prominent legal scholars on new decisions from the Supreme Court. The first installment is by Prof. Richard Epstein, who discusses new decisions on tobacco and antitrust litigation. Looks like it will be a great resource.

A Student Speaks Out

Here's a fascinating account of the ongoing brouhaha at the University of Wisconsin's Law School. This comes from a student who was in Prof. Kaplan's class at the time he made his controversial remarks (hat tip: Ann Althouse, who is blogging the hell out of this today):

I am in the Legal Process class that is the subject of the discussion and was there that day. No one was recording it or even taking notes, probably, because the class has such an informal quality.

It is being suggested by the quotes going around that Professor Kaplan's remarks were some comment about the essential worth of a Hmong man, as in "All Hmong men are good at is killing," meant that it is just in their inherent nature to kill and be good at it. They are uncivilized and that is all they are good for. This is a misrepresentation of the comments. I believe that the clear thrust of his comments was that all these immigrants who lived their whole life in the mountains of Laos are now transplanted here. There, all the men knew was killing. Here, the society is different. Kaplan pointed out the difficulties that Hmong men have had at integrating here because the kind of society here is different than the hunting society that existed in their homeland. He also pointed out how well Hmong women have intergrated because the skills that they came to this county with translate here. That is, they are weavers and artisans, and they can use that skill here while the Hmong men's skills are simply no good here. The context of the discussion was basically a critique of how the federal and state governments have dropped the ball in the way that they have handled the Hmong. Kaplan was very critical of the fact that the government should have easily forseen the problem and set up programs to help the immigrants integrate.

Also the suggestion that he made a conclusory statement that all young Hmong men turn to gangs is an incredible simplification. First of all he said that all second generation immigrant groups turn to crime as a way to break into an economy that is not integrating them. He illustrated with examples of other cultural groups, most notably that of Jewish immigrants.

He did not say that Hmong men rape their wives and then get upset that they have paid too much for them. During a discussion about legal formalism he illustrated how black letter law can be more open to interpretation than one might think, once cultural difference are factored in by using the example of a Hmong man who agrees with a woman's father to pay a dowry in exchange for a bride. Then he wants to be intimate with his wife. She says no, he does it anyway because in his mind this is a marriage and this is just the way things work. She claims she was raped. He asked how many of us in the class would agree, and I believe everyone raised their hand. He then suggested that the husband and the father might disagree, and he did say that the man thought he paid to much, which was a joke, and many people laughed.

I apologize that I can't put quotes around the things that he said, but it has been a while and I don't want to misquote him. Many of us in the class are upset about the way this is all happening, the way that his statements are being interpreted. I feel very bad for the students who feel offended, and I know that Kaplan does too. I decided not to attend the meeting last night when I read that some students from the class would give their opinions. When these comments first came out I wrote to Dean Davis and expressed that I did not agree with the characterization of those comments. When I was not invited to give my opinions I knew that only one kind of comment was going to be appreciated at last night's forum. I want my Hmong classmates to come back to class, and I am sorry that they are hurt, but I think that it is important to be a voice against " P.C." and a voice for real equality and critical thinking about the issue of race.

This student deserves praise for his honesty; unlike KaShia Moua, he didn't want to give the impression that the statements were exact quotes. As Althouse has observed, "the repetition of the purported quotations from the email is giving them the aura of reality."

Initial media reports did not mention if Miss Moua was even in the class at the time. The Badger Herald reported today that she was, although yesterday, said The Milwaukee Journal Sentinel she was not, and that "she compiled the remarks from others." My sources say that the MJS is right. The plot thickens.

Some Advice for Kevin Federline

"Courtesy?" "Courtesy." "Courtesy?"

"It's contagious." Catch it!

Booze Haikus – or "Boozkus"

Wish I had some wine
pinot noir, in a bottle
and not on my shirt.

Guinness extra cold
twelve tonight is too many
wait, is that vomit?

I love hefe weiss
don't you stop me, officer
I can drive just fine.

And lastly:

Only Miller Lite?
I don't want your piss water
where's my G & T?

There But for the Grace of God (and Poverty)

"I can tell you exactly how a pointless blog full of poorly written, incoherent commentary made it to the front page on Digg. I paid people to do it."

Alas, all I have is my talent. But my blog is pointless, poorly written, and incoherent – and that's gotta count for something.

Ah, that Chesterfield Taste

I actually saw a copy of this poster in the window of a cigar store in Ann Arbor not too long ago. I rushed inside and asked the proprietor if he would sell it to me – no dice. Now I have it on my blog. Take that, cigar store guy!

Wasted Lives?

Sen. John McCain has been getting flak for saying "Americans are very frustrated, and they have every right to be. We've wasted a lot of our most precious treasure, which is American lives." Two weeks ago, Sen. Barack Obama apologized for using the same word.

I really hope McCain doesn't apologize for this comment, although as with Obama, the political pressure will likely be too great to resist. I see nothing inherently wrong with using the word "wasted" in this context. It would be a bit strong if used to describe deaths arising from occasional missteps or unavoidable errors. When criticizing the broader conduct of a war, however, as McCain is doing, it can be very appropriate to say that lives were "wasted." (To say that the loss of life is wasteful is not to say that it is profligate.) It's not a slur on the sacrifice of our servicemen and women -- it's a criticism of those who lead them. Deaths that result from avoidable miscalculations in a war are, almost by definition, needless; and to say that a death is egregiously needless is to say that a life has been wasted.

All the same, McCain would be well advised to clarify this.

UPDATE: Rats. But Obama is defending McCain, to his credit.

And Now for Something Completely Different

Law library hotties – male and female!

Meehan Seeks Repeal of "Don't Ask, Don't Tell"

Rep. Marty Meehan (D-MA) will introduce a bill to repeal the ban on gays serving openly in the armed forces. According to the Washington Times, a 2005 GAO report stated that almost 9,500 members of the armed services, "including 750 service members with specialties 'critical' to the war on terror, have been discharged since the policy was implemented" in 1993. ABC News reports on 742 such dismissals in fiscal year 2005 alone, and many of them, too, had specialties critical to the War on Terrorism. 322 of them had critical language skills, most notably in Arabic, Farsi, and Korean.

I used to criticize President Clinton for introducing such a half-measure as "don't ask, don't tell"; my view was, either let them serve or don't, but don't force them to skulk around in secrecy. But I've gained some sympathy in recent years. If politics is the art of the possible, then even modest gains represent progress, and a system under which gays can serve if they'll only keep quiet about it is still better than an outright ban, under which anyone with a grudge could torpedo another person's career.

That doesn't mean it's good enough, however, and the War on Terrorism underscores how we would be better off scrapping all restrictions on gays serving in the armed services. 750 service members with specialties "critical" to the War on Terror? Why do we hamstring the war effort like this?

And the chief argument against allowing gays to serve openly doesn't even hold up anymore. That argument says that allowing gays to serve would undermine morale and the esprit de corps among straight servicemen and women. Yet according, again, to the Washington Times, a recent Zogby poll showed that 73% of current servicemen and women would have no problem serving alongside gays. And the experiences of Britain and other Western countries illustrate that our Civilization will not come crashing down just because gays get guns and dogtags. (Besides, which of the following is more likely to enlist anyway: Andrew Sullivan or Andy Dick? Sullivan could surely kick my ass.)

Even if our servicemen and women have a problem with it – so what? We ask them to face "difficulty" all the time; it's in the job description. We ask them to go through hellish training. We ask them to patrol some of the most dangerous neighborhoods in the entire world. We ask them to stare death in the face, if need be – but serving with a homosexual would break them? Why do we suddenly lose faith in them? Why do we have so little regard for their emotional maturity?

Remarkably, the first marine to be injured in the Iraq War is gay. Rep. Meehan had Staff Sergeant Eric Alva by his side yesterday to urge lawmakers to abolish the ban completely. His incredible story of heroism tells us just what we're losing by dismissing gays from the armed services.

(Sadly, Sgt. Alva will soon begin working for the Human Rights Campaign, a shrill and hopelessly partisan gay advocacy group. That's unfortunate.)

"Don't ask, don't tell" has been a major issue on America's campuses, too. Many universities, including state universities like my own, refused to allow military recruiters on campus because it would allegedly violate those institutions' policies of nondiscrimination. (It is all too common for university administrators and professors to choose airing their own hard-left political views over providing opportunities for their students. Their high virtue was bought at a cheap cost for them, but at a great cost for their students.) This is why Congress adopted the Solomon Amendment, 10 USC § 983, under which the Defense Secretary is authorized to withhold federal education funds from universities that do not allow military recruiting on campus. I supported the Solomon Amendment, and I still do, because universities receiving public funds should not limit employment opportunities just because it would offend the political sensibilities of administrators and faculty. But even more, I support making the Solomon Amendment superfluous by dropping the ban entirely.

Why, That's a Pretty Picture

Street in Amsterdam. From a trip I took there, Dec. 2006.