Friday, February 26, 2010

Oral argument FAIL

Prepping for next week's oral argument in the Fifth Circuit, I'm blogging researching on the internet, and this instance from a couple of years ago is a good example of how not to do it:
Phipps: . . . so that’s about all I have to say, Your Honor. I don’t have anything other than that. You know, my client lives in Chicago. ... She continues to earn a living, and she’s generally unavailable if you call her because she, she’s sort of a traveling doctor.
Judge: That’s not much of thing you come in here and tell us, I guess.
Phipps: Well, my attitude is, the [district court] judge got it right . . . . And as far as whether even Ricks should apply, I don’t think it should.
Judge: What do you do about Morgan?
Phipps: I don’t, I don’t, I don’t know Morgan, Your Honor.
Judge: You don’t know Morgan?
Phipps: Nope.
Judge: You haven’t read it?
Phipps: I try not to read that many cases, your Honor. Ricks is the only one I read. Oh, Ledbetter, I read Ledbetter, and I read that one that they brought up last night. I don’t know if that’s not Ledbetter, I can’t remember the name of it. Ricks is the one that I go by; it’s my North star. Either it applies or it doesn’t apply. I don’t
think it applies.
Judge: I must say, Morgan is a case that is directly relevant to this case. And for you representing the Plaintiff to get up here—it’s a Supreme Court case—and say you haven’t read it. Where did they teach you that?
Phipps: They didn’t teach me much, Your Honor.
Judge: At Tulane, is it?
Phipps: Loyola.
Judge: Okay. Well, I must say, that may be an all time first.
Phipps: That’s why I wore a suit today, Your Honor.
Judge: Alright. We’ve got your attitude, anyway.
For all his hard work, Mr. Phipps not only lost the case, but was ordered to deliver a copy of the court's opinion (including the foregoing) to his client. Ouch. (Via Legal Profession Blog.)

I don't think I can screw up that badly, but who knows? Perhaps you will be reading a transcript of my argument FAIL somewhere on the internet soon.

Obstruction of justice - not a crime any more?

Attention is focusing, as it should, on the apparent fact that hundreds of John Yoo's e-mails from crucial periods in the drafting of the Torture Memos have vanished. Patrick Leahy focused on this at a Senate hearing today; a subpoena is long overdue. As Scott Horton notes, "Emails at an institution like the Justice Department don’t just “disappear.” Someone deleted them. Moreover, for a deletion to be effective enough to avoid an investigation, extraordinary steps have to be taken." Indeed. John Yoo couldn't have wiped servers from his own computer; he needed help. Or else they weren't wiped and are still retrievable but DOJ has not really tried. Frankly, I suspect the latter is more plausible.

Horton also discusses how the OPR reports missed the mark:
Georgetown professor Michael Frisch, one of the District of Columbia’s leading legal ethics experts and a long-time enforcer for the D.C. Bar Council, *** eviscerated both the OPR report and the David Margolis memo. The key ethics inquiry, he argued, was under Rule 1.2(d)—whether Yoo, Bybee, and Bradbury were actually counseling a crime. In this case, the evidence that their advice was designed to facilitate torture is clear-cut, torture is a felony, and multiple players putting a scheme in place to torture is a conspiracy to torture. Yet neither the OPR report nor David Margolis even considered this question, focusing all their energy instead on two weak and rarely enforced provisions of the ethics code dealing with the duty of candor and the duty to exercise independent professional judgment.

Frisch also reviewed Margolis’s disingenuous use of D.C. case law in some detail, noting that in one key passage Margolis distorted a case that Frisch managed for the D.C. Bar. Finally, he said that the Justice Department, when presented with evidence of a serious ethics lapse by its officers, had a duty under Rule 8.3 to turn the matter over to the D.C. Bar for action. Not only did it fail to do this, its memos suggest it wasn’t even aware of the obligation. The lesson to draw from this, Frisch suggested, is that the Justice Department has failed to show it is capable of self-regulation.
I think we already knew that, but it's good to hear it from an expert.

Who's so vain?

David Geffen, that's who.
Now that we've learned the identity of Deep Throat, the one remaining thing we needed to know before we can close the books on the 1970s is, who was Carly Simon singing about in that annoying but catchy tune "You're So Vain"? Numerous romantic figures have been named, including Mick Jagger and Warren Beatty. And now... we know:

the target has been revealed as gay producer DAVID GEFFEN, at the time head of Carly's Elektra record label.

And rather than being angry about a failed relationship, Carly is thought to have resented the effort he put into promoting rival JONI MITCHELL.

No wonder everybody got it wrong. We were searching in the wrong sexual orientation.
Jonathan Chait, citing The Sun(UK).

Orly Taitz, however, has issued a press release, attacking The Sun's coverup of the fact that the song was actually about Obama's father.

"Latest Sarah Palin Speech Opens Sixth Seal"

You won't hear about it on Fox, trust me:
IDAHO FALLS, ID—Speaking unto an audience of anti-immigration advocates, global-warming deniers, and members of the Tea Party Nation, former Alaska governor and vice presidential candidate Sarah Palin gave forth utterances Monday that reportedly opened the sixth seal of the Book of the Apocalypse.

"Wow, it's good to be here, just shootin' the breeze with a bunch of real, hardworking Americans who love their freedom," said Palin, her words echoing across the Idaho Falls Civic Auditorium as mighty tremors caused great unrest beneath the land and the sea. "So are the little guys like you and me gonna fight these Washington insiders with their big government agenda? You betcha we are!"

And lo, there was then a great earthquake; and the sun became black as sackcloth of hair; and the moon became as blood; and "gosh" was spoken repeatedly; and the stars of heaven fell upon the earth, even as a fig tree casteth her untimely figs, when she is shaken by a mighty wind. * * *

"Admittedly, this is not what we were expecting," said Robert Harwood, a doctor of divinity at the University of Cambridge. "The Bible speaks of a beast with seven horns and seven eyes, not a raven-haired woman from the north who knows not what foolishness she speaks of."

"Still, there's no denying it," Harwood added. "The End of Days is upon us."

One member of the crowd not torn apart by swarming harpies told reporters he feared living in a country where his daughters would grow up speaking Spanish and not be allowed to carry handguns.
No, you have to go to America's only unbiased news source for the real Palin scoops. See also: "Palin Unveils 9/11 Firefighter Cousin, Reformed Lesbian Niece, Naturalized Mexican Half Brother," and of course the scoop that started it all, "Area Woman Becomes Republican Vice Presidential Candidate."

Wednesday, February 24, 2010

Legal trivia of the day

When a court refers to doing something on its own motion, it's not sua sponte, it's nostra sponte -- so writes Judge Pooler of the Second Circuit:
The nostra sponte en banc poll, predicated on the rationale set forth in the dissent, did not succeed. The majority opinion therefore stands.
I was led to Judge Pooler's concurrence in denial of en banc rehearing by a link at How Appealing, where Mr. Bashman was struck by these remarks:
Opinions dissenting from denial of rehearing en banc2 are not uncommon in this Circuit. They are nonetheless oddities. When such an opinion is filed, there is an extant panel decision resolving the appeal. The active judges declined to revisit that decision en banc. The panel decision is therefore the Court's decision. Other judges may have views on the matter, but the case is not before them, and what they may say about it has as much force of law as if those views were published in a letter to the editor of their favorite local newspaper.

Yet the unsuccessful request for an en banc rehearing becomes an occasion for any active judge who disagrees with the panel to express a view on the case even though not called upon to decide it. By employing the simple tactic of calling for an en banc poll, active judges provide themselves with an opportunity to opine on a case that was never before them. This amounts to an exercise in free speech rather than an exercise of any judicial function.
No, tell us what you really think, Judge Pooler -- don't pull your punches!

... So in oral argument, do I venture "vostre sponte," or stick with "on your own motion"? That's an easy call.

The trouble with free will

Lucidly illustrated by xkcd:

"Hell is ... free will for other people!"

Tuesday, February 23, 2010

Play nice, y'all

An unpublished opinion in Fly v. Yalobusha County, Miss. sounds like there's quite a backstory, judging by this footnote:
Appellants’ motion to strike the name of Honorable Thomas U. Reynolds from the response brief of Yalobusha County as an interested person is DENIED. Appellants’ motions for sanctions against attorney John J. Crow, Jr., and for award of attorney fees are DENIED. Appellee Yalobusha County’s motion for attorney fees and the motion for disciplinary action against R. Stewart Guernsey are also DENIED.
Goodness gracious. Can't we all just get along?

Worst cross-examination ever?

I had the privilege tonight of seeing Jerry Mitchell, the Clarion-Ledger reporter whose investigations inspired and assisted the trials and convictions of Byron de la Beckwith, Sam Bowers, and others who spent 40 years thinking they would get away with their crimes in the 1960s.

Mitchell was speaking at the annual meeting of the Mississippi Religious Leadership Conference, an interfaith organization that itself grew out of those years, and recounting his stories of those investigations.

I particularly liked Mitchell's description of a moment in Bowers's trial when Billy Roy Pitts, a repentant accomplice of Bowers's, was telling about a meeting that led to the firebombing and murder of Vernon Dahmer (who'd had the effrontery to register black Mississippians to vote). It's a story Mitchell has told before, so I can quote this version:
Well, Bowers was represented by Travis Buckley, who is kind of the lawyer for the Klan. I guess one of the perks, if you want to call it that, of being lawyer for the Klan, is you get free membership ....

So Buckley is cross examining Billy Roy Pitts who is involved in the killing of Vernon Dahmer, one of the Klanmen who is involved in the killing of Vernon Dahmer, and he's testifying for the state. Buckley is cross examining him about this planning meeting which took place about a month before Vernon Dahmer was killed by the Klan. He was asking who all was at this planning meeting. Buckley was asking and Pitts is like, "Well, let's see. I was there. Sam Bowers was there. This other Klansman was there. Well, you were there." And so Travis Buckley is like, "Oooh, oooh, objection, Your Honor." I always tell people I've covered a lot of trials in my life, but this is the first one I've ever covered where the witness implicated the defense lawyer in the case.
That belongs on some list or other.

Back when torture was wrong

A reader reminds Andrew Sullivan about Cardinal Mindszenty, not a household name, alas:
please revisit the case of Cardinal Mindszenty in Hungary. Mindszenty's treatment was in many respects identical to American enhanced interrogation techniques: hooding, humiliation (he was forced to wear a clown suit), drugging, sleep deprivation, etc. Pius XII was so appalled by Mindszenty's torture that he wrote an apostolic letter - Acerrimo Moerore - condemning it. Pius went on to excommunicate those involved in the torture. Mindszenty was beatified by John Paul and is being considered for canonization by Benedict.

It is moral relativism for National Review to condemn torture in one case (as they did with Mindszenty) and not with our current torture regime. Where are the Catholics?
If I recall correctly, Mindszenty's show trial, where he confessed to patently ridiculous charges, caught CIA's attention and made them worry about "brainwashing," which turned out to be nothing more than the effects of NKVD-style torture -- the "conveyor," they called it.

Sullivan comments:
I notice that the current Pope, in close league with American theocons like the late Neuhaus and George and Weigel, never uttered a word about torture in his meeting with President Bush. He has never specifically singled out the torture endorsed by his American political allies. He has found time to denounce airport body scans, however, because they invade and violate "the primacy of the human person.”
Doubtless 50 years from now, we will be reading books about how Benedict thought it was more effective to raise his concerns privately, or something like that. But I'm certainly not singling out the Catholics; if any Christian body has been vociferous in condemning American torture, I've missed it, and I tend to have an ear for such things.

I don't read, I link posts instead

STILL haven't read the OPR documents -- hey, I've got my first-ever oral argument in the Fifth Circuit next week -- but NMC has decided to risk the inevitable food-fight in the comment thread and put up a fine post on the subject, with some good links. Check it out -- you know who you are.

... Anyone interested in the OPR memos should be checking Emptywheel's blog. This is particularly notable:
The most important ethical failure described in the OPR report pertains to how the Bybee One memo became a “Get Out of Jail Free” card.

On July 16, 2002, John Yoo went into a meeting at the White House having been told by Michael Chertoff that he couldn’t write a “Get Out of Jail Free” card. And Yoo had told his sidekick, Jennifer Koester, that they would not include sections on Commander-in-Chief power and potential defenses in torture prosecutions. Alberto Gonzales and (the OPR Report says) “possibly” David Addington and Tim Flanigan (who was then Associate White House Counsel) were at the meeting. Yoo left that meeting and--saying he had “a good idea about how we are going to do it now”--promptly started working on sections on Commander-in-Chief power and potential defenses in torture prosecutions--the sections that basically functioned as the “Get Out of Jail Free” card. When Patrick Philbin asked why he was putting those sections in the memo, Yoo explained, “They want it in there.”

All the evidence shows that someone at that meeting told Yoo not only how he could put the “Get Out of Jail Free” card back into the memo by including Commander-in-Chief ande defense sections, but that he should do so. And that shows that Yoo’s memo was not “advice,” but precisely what it appears to be: a “Get Out of Jail Free” card ordered up by the same guys who were ordering up the torture.

The trouble, however, is that OPR doesn’t know precisely what happened at that meeting.
Given the close matchup between what Yoo added, and what we know of David Addington's beliefs, I think the circumstantial evidence is highly persuasive. But that's just me.

Monday, February 22, 2010

"The last man they thought wouldn't keep his word"

Writing on the health care bill, Elizabeth Drew illustrates GOP party discipline with a Mississippian example:
In mid-December 2009, Republicans were threatening to filibuster the defense appropriations bill for the acknowledged purpose of delaying consideration of the health care bill, which was to follow. (They were thus holding up pay and supplies for the troops fighting in Iraq and Afghanistan; if the Democrats did that, they would be charged by the Republicans with treason.)

The Democrats believed that they had a deal with Thad Cochran of Mississippi, the senior Republican on the Defense Appropriations Committee and widely admired as a courtly and honorable man, to adopt some amendments he wanted to the defense bill; in return he would provide the sixtieth vote to shut off the filibuster on defense appropriations. (One Democrat was holding out on this vote.) But then the Senate Republican leaders, in particular the dour whip John Kyl of Arizona, leaned heavily on Cochran, telling him that the Republicans had to stick together and make the Democrats come up with their own sixty votes. "It was kind of an agonizing ordeal for me," Cochran told me later.

In some instances, Republicans who might shun the leaders' demands are given indications that their future committee assignments might be affected; and they can be made to feel very lonely in conference meetings. Cochran's Democratic colleagues watched in amazement as the last man they thought wouldn't keep his word quietly raised his hand to cast his vote (he couldn't even say it) against shutting off the filibuster on the defense bill, and quickly left the Senate floor. If the Republican leadership is willing to treat Cochran--who is third in seniority among Senate Republicans and would be chairman of the Appropriations Committee if the Republicans were in the majority--in this way, it's not hard to imagine how more junior members are treated.
But it's not clear "in what way" Cochran was treated. What were they going to do to him? What could they have done? Why did Cochran think kowtowing to his masters was necessary? What "future assignments" or lonely conference meetings matter to Cochran at this point in his career?

More on the OPR report

Haven't had time to read it myself yet, but wanted to flag David Luban's critique of Margolis's memo rejecting the report's recommendations:
To be sure, one problem for OPR is that very little case law exists interpreting the rule requiring lawyers to give candid, independent advice, and none of it deals with facts remotely like this case. In its early drafts, OPR spelled out standards for when an opinion clearly violates candor and independence:

1. Exaggerating or misstating the significance of the authority that supported the desired result; 2. Ignoring adverse authority or failing to discuss it accurately and fairly; 3. Using convoluted and counterintuitive arguments to support the desired result, while ignoring more straightforward and reasonable arguments contrary to the desired result; 4. Adopting inconsistent reasoning or arguments to favor the desired result; 5. Advancing frivolous or erroneous arguments to support the desired result.

If this sounds perfectly obvious, that's because it is. Bybee and Yoo objected that these standards do not come from the case law on Rule 2.1. That is true, because the case law simply has never dealt with lawyers tailoring their advice to yield the client's desired result: the lawyer as absolver or indulgence-seller. Margolis concludes that the absence of case law on standards of candor means that the standard is ambiguous. But that certainly does not follow. Otherwise, any law that has never been interpreted by a court would automatically be ambiguous.
Moreover, remember the issue here: not whether Bybee and Yoo should be disciplined, but whether they should be referred for disciplinary proceedings. Assuming the referrals were acted upon, the Bar organizations in question would conduct, in effect, trials of their own. If it's not clear whether discipline is appropriate, then why not allow OPR to make its recommendation and let the Bar organizations sort it out?

Which just highlights the folly of giving one man, who belongs to the federal department under review, make such a decision. Bmaz at Emptywheel has more on that.

... Luban also notes that we now know the name of another author of part of the torture memos: Jennifer Koester Hardy:
Koester, who was two years out of law school and around 28 years old at the time, was clearly a junior level attorney in the process. She appears to have had no authority to approve the final versions of the memos that went out from the department, and was tasked with working with Yoo on them in part because having just joined OLC, she "had some time available," according to the report. But she did take the lead in developing the first drafts of the memos, and briefed the White House on their contents.
Quite a little project to stumble into.
The final OPR report appears not to draw any conclusions about Koester's performance. But a draft version of the report, released last week along with the final report, finds that "Koester, because of relative inexperience and subordinate position, did not commit misconduct," but that "she appears to bear initial responsibility for a number of significant errors of scholarship and judgment (p. 188)."
Of course, Bybee and Yoo had a duty to check her work, particularly anything that seemed way off, as so much did in the memos. But that was a feature, not a bug.
The report describes a process in which Koester produced numerous drafts for Yoo, then, updated them based on his and other's feedback. Koester appears to have accepted and agreed with Yoo's notoriously aggressive general approach to the torture question. Indeed, according to the report, it was Koester who drafted perhaps the most controversial section of the memos: the discussion of the "commander in chief" power, in which OLC essentially advises the government that the president, as commander in chief, can disregard any law he wants during wartime. "Koester also told us that she thinks she ended up writing the Commander-in-Chief section, with 'a lot of input' from Yoo and Philbin," writes OPR (p. 50).
Well yes, if you're going to completely make up stuff about Article II powers, give it to the 28-year-old.

After OLC, she clerked for Clarence Thomas and is now at Kirkland & Ellis. "Truly, I say unto you, you already have your reward."

... Anyone offended by the "outing" of Hardy should read this reader comment at Sullyblog.

Saturday, February 20, 2010

OPR Bybee-Yoo report released

In a classic late-Friday document dump, some version of the OPR's evaluation of the torture memos' principal authors, Judge Jay S. Bybee and Professor John Yoo, has been released. Marcy at Emptywheel is liveblogging her reading of it, and as always is the first place to look besides the docs themselves (all of which she has linked).

Near as I can tell from the NYT story, the OPR lawyers themselves found professional misconduct, but DOJ has rejected that finding and had David Margolis write a whitewash, saying that, gosh, you just had to be there:
He said the ethics lawyers, in condemning the lawyers’ actions, had given short shrift to the national climate of urgency in which Mr. Bybee and Mr. Yoo acted after the attacks of Sept. 11, 2001. “Among the difficulties in assessing these memos now over seven years after their issuance is that the context is lost,” Mr. Margolis said.
I don't remember the "context defense" at Nuremberg, but perhaps I've forgotten. What is "national climate of urgency" in the original German?

... Ambinder predicts calls to impeach Bybee and disbar Yoo (fat chance); more interesting will be how each side uses the report in the Padilla case.

... Jack Balkin is scathing:
In deciding not to refer charges to state bar committees, Margolis does not tell us that Yoo and Bybee behaved admirably or according to the high standards that we should expect from Justice Department lawyers. Indeed, he says the opposite. Yoo and Bybee exercised poor judgment and let the Justice Department down. But Margolis argues that the Office of Professional Responsibility chose too high a standard to judge the professional responsibility of Yoo and Bybee. The OPR argued that Yoo and Bybee had "a duty to exercise independent legal judgment and to render thorough, objective, and candid legal advice." This standard, Margolis explained, is much too high a requirement and not one that Yoo and Bybee were previously warned was the standard to which they would be held.

I know what you are probably saying: shouldn't every government lawyer have to live up to this standard? Of course, they should, but the point is that this is a disciplinary proceeding. It's not about what people should do, but about how badly they have to screw things up before they are subject to professional sanctions.
Interesting. If Yoo had a *duty* and violated it, that would seem to be at least negligence ....
Instead, Margolis argues that, judging by (among other things) a review of D.C. bar rules, the standard for attorney misconduct is set pretty damn low, and is only violated by lawyers who (here I put it colloquially) are the scum of the earth. Lawyers barely above the scum of the earth are therefore excused.

Margolis concludes that Yoo and Bybee exercised poor judgment and made bad legal arguments. But lawyers often make arguments that are bad or even laughably bad, and this by itself does not violate the very low standard set by rules of professional responsibility.
Are we distinguishing here between advocacy and counsel? There is a world of difference between making a bad argument in court as an advocate, because it's all your client's got, and making a bad argument in a client memo, where you are supposed to be telling your client the unvarnished truth. Any professional code that ignores this distinction is worthless.
To show misconduct, according to the standard that Margolis finds most relevant, one would have to show that Yoo or Bybee intentionally made arguments that they knew were wrong and false or did so not caring whether they were wrong or false. That standard could not be met for Jay Bybee, because Bybee was, to put it bluntly, an empty suit who relied on the advice of others and didn't analyze the memos all that closely. He just signed the papers. This makes him pathetic, but not, in Margolis's view, someone who unambiguously violated existing rules of professional responsibility.

As for John Yoo, Margolis explains (although he puts it far more diplomatically) that Yoo was an ideologue who entered government service with a warped vision of the world in which he sincerely believed. Yoo had crazy ideas even before he entered government; which strongly suggests that he probably shouldn't have been hired in the first place. Therefore it is hard to conclude that Yoo deliberately gave advice that he knew was wrong to the CIA. Yoo isn't putting people on when he says the absurd things he says in these memos and elsewhere. He actually believes that the President is a dictator and that the President doesn't have to obey statutes that make torture a crime. He actually believes that you should read the torture statute so narrowly that it lets the CIA torture people. John Yoo used every trick in the book to twist the law because he actually believes in a law that is twisted.
Even on Margolis's standard, that doesn't wash. The issue is not and cannot be whether Yoo personally believed the law *should* agree with his ideology; the issue is whether Yoo knew, or did not care to know, that his analysis was false as a description of the law.

I can just see a tax lawyer arguing that he shouldn't be sanctioned because, in his sincerely held opinion, income tax is unconstitutional, and he advised his client accordingly. That wouldn't fly; why should such an argument fly re: torture?

Thursday, February 18, 2010

Unpresentable patriarchs

In January 1896, the very religious Lady Erroll had commiserated with Queen Victoria on the death of Prince Henry of Battenberg: "Oh Ma'am, we shall see him soon, just think, Ma'am, you will see all those who have gone before, you will meet Abraham." "I will not meet Abraham. Certainly not," the Queen answered firmly, without any further explanation.
-- Andrew Roberts, Salisbury: Victorian Titan, at 795.

Wednesday, February 17, 2010

Love poetry by the Ayatollah Khomeini

Sorry not to've had this up by Valentine's Day, but I like to think no one's holiday was the worse for it: Daniel Kalder (via 3QD) draws our attention to William Chittick's translation of a surprising poem by the Ayatollah:
I have become imprisoned, O beloved, by the mole on your lip!
I saw your ailing eyes and became ill through love.
Delivered from self, I beat the drum of "I am the Real!"
Like Hallaj, I became a customer for the top of the gallows.
Heartache for the beloved has thrown so many sparks into my soul
That I have been driven to despair and become the talk of the bazaar!
Open the door of the tavern and let us go there day and night,
For I am sick and tired of the mosque and seminary.
I have torn off the garb of asceticism and hypocrisy,
Putting on the cloak of the tavern-haunting shaykh and becoming aware.
The city preacher has so tormented me with his advice
That I have sought aid from the breath of the wine-drenched profligate.
Leave me alone to remember the idol-temple,
I who have been awakened by the hand of the tavern's idol.
Presumably allegorical, but probably better than any of Stalin's verse.

Sarah Palin's liberalism

TNR reposts Reinhold Niebuhr's discussion of liberalism vs. conservatism, ostensibly a review of Kirk's The Conservative Mind. Worth a look. Here's a snippet:
"Liberalism" [in the Enlightenment sense] acquired a special connotation as a philosophy of life which did not take the factors of interest and power seriously, which expected all parochial loyalties to be dissolved in more universal loyalties; and which was indifferent to organically or historically established loyalties and rights under the illusion that it would be simple for rational man to devise more ideal communities and rights. The liberalism of the French Enlightenment was thus based upon illusions as to the nature of man and of history. It was quasi-anarchistic and pacifistic in its attitude toward the coercions which are a necessary part of communal cohesion and toward the conflicts of interest which always take place between communities. These were the illusions which Burke challenged in Reflections on the Revolution in France.

The philosophy of the Enlightenment was not shared by such conservatives as John Adams or such Jeffersonians as James Madison. Our Constitution was, in fact, informed by a realism which contradicted all the illusions of the Enlightenment. Nevertheless it became the primary source of inspiration for the democratic movement in America. When sectarian Christian perfectionism merged with the thought of the Enlightenment on our frontier, perfectionist illusions in regard to man became the staples of the American liberal movement.

It must be apparent to anyone that it adds to the semantic confusion if those who do not share the illusions of Diderot and Condorcet are termed "conservatives."
Spotting the "Christian perfectionism" strain in liberalism is good; what's weird is how this strain is now part of the "conservative" movement. Society is good, if only government keeps out. Gay marriage must be prohibited lest it contaminate our children, whose sexual morality presumably would be otherwise impeccable. You can think of more examples.

Tuesday, February 16, 2010

A little-known explanation for the Dreyfus Affair

Lord Salisbury, on the Dreyfus Affair:
I am afraid matters will go badly in France ... it is inconceivable that an army, with such traditions, can have reached such a pitch of degradation that forgery is the ordinary recourse of the Intelligence Department. It is a fearful result of competitive examination.
-- quoted in Andrew Roberts, Salisbury: Victorian Titan, at 705.

... Evidently, la carrière ouverte aux talents was still a dangerously Revolutionary-sounding notion to Salisbury in 1898.

Monday, February 15, 2010

Cheney to rule of law: Bite me

Perhaps observing Obama's complete lack of interest in justice or the rule of law, Cheney has decided to come out and declare his likely guilt for committing war crimes:
KARL: Did you more often win or lose those battles, especially as you got to the second term?

CHENEY: Well, I suppose it depends on which battle you're talking about. I won some; I lost some. I can't...


KARL: ... waterboarding, clearly, what was your...

CHENEY: I was a big supporter of waterboarding. I was a big supporter of the enhanced interrogation techniques that...

KARL: And you opposed the administration's actions of doing away with waterboarding?

Via Sullivan, who of course is all over this:
Nations who are party to these treaties must enact and enforce legislation penalizing any of these crimes. Nations are also obligated to search for persons alleged to commit these crimes, or ordered them to be committed, and to bring them to trial regardless of their nationality and regardless of the place where the crimes took place. The principle of universal jurisdiction also applies to the enforcement of grave breaches.
I could see Cheney aiming for martyrdom -- next up, his bestseller from Regency, Waterboarding: It's Torture, and I Ordered It! -- but I think it's really just contempt. Well-deserved contempt.

Friday, February 12, 2010

Divine intervention

Naturally the weekend selected to go visit the 14yo's great-grandmother in Fort Worth, turns out to be the biggest snowfall recorded there.

Maybe we will stay home and play in our own snow. Had a Rule 56 reply memo I wanted to work on anyway ....

Wednesday, February 10, 2010

Personal observation

Just got my first-ever laptop, and damn, these things are fun.

That is all.

Binyam Mohammed "details" released

Under compulsion from their courts, the Brits have disclosed what we revealed to them about the interrogation of Binyam Mohammed:
[It was reported that a new series of interviews was conducted by the United States authorities prior to 17 May 2001 [sic] as part of a new strategy designed by an expert interviewer.

v) It was reported that at some stage during that further interview process by the United States authorities, BM had been intentionally subjected to continuous sleep deprivation. The effects of the sleep deprivation were carefully observed.

vi) It was reported that combined with the sleep deprivation, threats and inducements were made to him. His fears of being removed from United States custody and “disappearing” were played upon.

vii) It was reported that the stress brought about by these deliberate tactics was increased by him being shackled in his interviews

viii) It was clear not only from the reports of the content of the interviews but also from the report that he was being kept under self-harm observation, that the inter views were having a marked effect upon him and causing him significant mental stress and suffering.

ix) We regret to have to conclude that the reports provide to the SyS made clear to anyone reading them that BM was being subjected to the treatment that we have described and the effect upon him of that intentional treatment.

x) The treatment reported, if had been administered on behalf of the United Kingdom, would clearly have been in breach of the undertakings given by the United Kingdom in 1972. Although it is not necessary for us to categorise the treatment reported, it could readily be contended to be at the very least cruel, inhuman and degrading treatment by the United States authorities."
Sleep deprivation was of course a favorite of the Inquisition and the NKVD for obtaining confessions, true or otherwise. And death threats are clear violations of the Torture Act and/or the War Crimes Act.

The date is interesting, as Sully notes: the Bybee-Yoo torture memos were dated August 2002, and here we were using torture before then. Is that the real reason the U.S. pitched a fit about this disclosure?

... N.b. that the Brits' link says "we have alerted the court to a typographical error," which Emptywheel, correctly I think, pegs as "2001" for "2002." Post corrected. Emptywheel:
That “expert interviewer” and that “new strategy” almost certainly were associated with Mitchell and Jessen, who were at that moment pitching using their “new strategy” with Abu Zubaydah.

So this is not just proof that the US was engaging in torture before they got their CYA memo authorizing such torture. But it was proof that they were using Mohamed, in addition to Abu Zubaydah, as guinea pigs to test out that torture.

This proves the entire myth told to explain the torture memos (and Abu Zubaydah’s treatment) to be a lie.
Hopefully we'll learn more soon.

... Jim White, linked at Emptywheel's post, notes that these paragraphs had been redacted from a High Court opinion (sorry, I've never been real up on the Binyan Mohammed case). He infers that under the Convention Against Torture, the U.S. now has a duty to investigate. But (1) the treaty would probably be held not self-enforcing, and (2) an "investigation" would merely be a cover-up.

Reality's well-known liberal bias

A couple of good examples. One, Newt Gingrich on Jon Stewart's show:
Gingrich: The American public doesn't understand reading Miranda rights to terrorists in Detroit when it's fairly obvious they're terrorists.

Stewart: The only thing I would say to that is, didn't they do the same with Richard Reid, who was the shoe bomber?

Gingrich: Richard Reid was an American citizen.
Actually, as Kevin Drum points out, "Reid was a British citizen, born in London, and radicalized at the Finsbury mosque." Maybe Gingrich really meant to say "Richard Reid had a white-sounding name"?

Two, Jonathan Zasloff observes:
A majority of the Senate today voted to confirm Craig Becker, President Obama’s nominee to chair the NLRB, but they only won 52 to 33, so the motion was tabled.

Senator Orrin Hatch called on Obama not to use a recess appointment, saying that in light of the vote, such a move would “circumvent the will of the Senate.”
Zasloff quoted from Hatch's own website, where the senator also said, "“The Senate spoke with a loud, clear and bipartisan voice that Craig Becker’s views are outside of the mainstream and that he would not be able to serve as an impartial member of National Labor Relations Board."

The habit of being able to lie with impunity -- knowing that the stenographic media will not call you on it -- seems deeply ingrained.

Tuesday, February 09, 2010

Second Second Sex second-rate

Alas, the wait is over for the new English translation of Beauvoir's masterpiece -- but Toril Moi finds that it kinda sucks:
However intensely Anglophone feminists debated The Second Sex, the English translation, by H.M. Parshley, did not become an issue until 1983, when Margaret Simons, a professor of philosophy at Southern Illinois University at Edwardsville, drew attention to it in her essay, ‘The Silencing of Simone de Beauvoir’. Beauvoir had offered Parshley no help; she was already hard at work on The Mandarins before he was half-way through his translation. Now Simons estimated that Parshley had cut at least 10 per cent of the original text, and showed that the most savage cuts affected Beauvoir’s account of exceptional women in history. She also demonstrated that Parshley had made a hash of Beauvoir’s philosophical vocabulary. After reading Simons’s essay, Beauvoir replied: ‘I was dismayed to learn the extent to which Mr Parshley misrepresented me. I wish with all my heart that you will be able to publish a new translation of it.’

* * * Parshley should not be seen as the villain of the piece. A professor of zoology at Smith College, he was genuinely enthusiastic about Beauvoir’s book. It was the publisher, not Parshley, who insisted on cutting the text; in the end he cut 145 of the original 972 pages, or almost 15 per cent of the original.

The strength of Parshley’s 57-year-old translation is that it is lively and readable. Parshley was, on all evidence, an excellent writer of English. When he understood the French, he usually found the right phrase and managed to convey nuances of irony and poetry. The most serious weaknesses are the unannounced cuts; but his complete lack of familiarity with Beauvoir’s philosophical vocabulary and the deficiencies in his knowledge of French also undermine his version of the book.

Demand for a new translation gathered force, but the publishers resisted. In 1988, Ashbel Green, then Knopf’s vice president and senior editor, summarised their view: ‘Our feeling is that the impact of de Beauvoir’s thesis is in no way diluted by the abridgment.’ After all, the book was making money: ‘It’s a very successful book that we want to continue publishing.’

In August 2004, Sarah Glazer published an article about the situation in the New York Times. Whether her article was the deciding factor is hard to say. In any case, at the end of 2005 Ellah Allfrey, then an editor at Cape, the British publisher of The Second Sex, persuaded Knopf to split the cost of a new translation. According to Le Monde the final cost was €35,000 (£30,000 or $50,000), one third of which was paid by grants from the French state.

Given the profile of the book, Beauvoir specialists hoped that the publishers would turn to a first-rate translator with a track record in the relevant field * * * Instead, the publishers chose Constance Borde and Sheila Malovany-Chevallier, two Americans who have lived in Paris since the 1960s and worked as English teachers at the Institut d’Etudes Politiques. They have published numerous textbooks in English for French students (My English Is French: la syntaxe anglaise), and many cookery books (Cookies et cakes and Sandwichs, tartines et canapés among others). Their track record in translation from French to English, however, appears to be slim (I have found only two catalogue essays for art exhibitions in Paris, both translated by Malovany-Chevallier).
At this point, it seems proper to interject, "you have to be fucking kidding me."
In a 2007 interview with Sarah Glazer, published in Bookforum, Borde and Malovany-Chevallier dismissed doubts about their competence. They explained that they first heard about the problems with the English translation at the 50th anniversary conference on The Second Sex in Paris. After the conference, they contacted a former student, Anne-Solange Noble, the director of foreign rights at Gallimard, to propose themselves for the job, and in due course Noble told Allfrey that she ‘already knew the perfect translators’.

Now we have the new translation. Many will turn to it with high hopes. Is it the definitive translation? Does it convey Beauvoir’s voice and style? Unfortunately not. Here is a sentence, chosen almost at random:

Ordinarily she can be taken at any time by man, while he can take her only when he is in the state of erection; feminine refusal can be overcome except in the case of a rejection as profound as vaginismus, sealing woman more securely than the hymen; still vaginismus leaves the male the means to relieve himself on a body that his muscular force permits him to reduce to his mercy.

The sentence doesn’t stand out as immediately ‘wrong’. On my first reading, I felt that I got Beauvoir’s point, but only after a struggle, for the sentence is cumbersome, and several expressions, above all ‘the state of erection’, and ‘relieve himself’ struck me as strange. I checked the French:

Normalement, elle peut toujours être prise par l’homme, tandis que lui ne peut la prendre que s’il est en état d’érection; sauf en cas d’une révolte aussi profonde que le vaginisme qui scelle la femme plus sûrement que l’hymen, le refus féminin peut être surmonté; encore le vaginisme laisse-t-il au mâle des moyens de s’assouvir sur un corps que sa force musculaire lui permet de réduire à merci.

The translation turns out to have a number of problems. ‘Man’ and ‘woman’ should be ‘the man’ and ‘the woman’, since we are dealing with generic examples (as in ‘the woman leads, the man follows’), not with universals (‘woman is night; man is day’). ‘Feminine refusal’ is also wrong: we are not dealing with a specific kind of refusal (the feminine as opposed to the masculine kind), but with the woman’s refusal or resistance. (Beauvoir is not trying to tell us how the woman resists, just that she does.) The sentence structure and the punctuation are awkward. There are several translation errors: s’assouvir doesn’t mean to ‘relieve oneself’ but to ‘satisfy’ or ‘gratify’; in this context profonde means ‘underlying’ or ‘deep-seated,’ not ‘profound’. The phrase ‘reduce to his mercy’ piles up errors: à merci is not the same thing as à sa merci; réduire in this context doesn’t mean ‘reduce’ but rather ‘dominate’ or ‘subdue’; thus réduire à merci actually means ‘subdue at will’. And force musculaire means ‘muscular strength’ not ‘muscular force’, which is a phrase mostly used by scientists trying to explain the physics of muscle contractions; permettre here means ‘enable’ or ‘allow’, not ‘permit’.

This isn’t an isolated example. After taking a close look at the whole book, I found three fundamental and pervasive problems: a mishandling of key terms for gender and sexuality, an inconsistent use of tenses, and the mangling of syntax, sentence structure and punctuation.
More examples at the link, if you have the stomach for 'em. Jessa Crispin is not going to be happy about this.

Where are the feminist millionaires to hire a couple of smart translators and set them up at Yaddo or wherever to produce a competent translation? Or, more easily, a revision of Parshley that restores the cuts and cleans him up?

Same as the old boss

It's becoming more and more clear that Obama really never had much of an issue with Bush and Cheney's torture regime. Scott Horton notes the announced replacement for Phil Carter at Detainee Affairs:
Few Washington developments in recent weeks establish the parameters of “change you can believe in” better than this: following the resignation of Phil Carter, the White House is reportedly prepared to tap William Lietzau as the new deputy assistant secretary of defense for detainee affairs. Lietzau served as an aide to William J. Haynes II, the David Addington protégé who was Donald Rumsfeld’s lawyer at the Pentagon. In this role, he played a central role in creating a harsh new environment for prisoners taken in the war on terror, including the crafting of rules for a military commission that were subsequently overturned by the Supreme Court.
Haynes probably belongs in prison, and his aides would be the last place any decent administration would look for such an appointee.

Horton links to a Spencer Ackerman article on the appointment, quoting some favorable opinions on Lietzau, but not doing anything to disturb the inference that Obama's administration prefers continuity to change when it comes to such issues.

Inmate finds Jesus law in prison

Via Orin Kerr, this really cool story of Shon Hopwood, who wrote two successful cert petitions for fellow inmates while in prison for bank robbery, and who upon release was able to cite Seth Waxman as a job reference.
No one was hurt in Mr. Hopwood’s bank robberies, but he and his accomplices “scared the hell out of the poor bank tellers,” Judge Richard G. Kopf of Federal District Court in Lincoln, Neb., said in sentencing him to prison in 1999.

The judge was skeptical about Mr. Hopwood’s vow that he would change. “We’ll know in about 13 years if you mean what you say,” Judge Kopf said.

The law library changed Mr. Hopwood’s life.

“I kind of flourished there,” he said. “I didn’t want prison to be my destiny. When your life gets tipped over and spilled out, you have to make some changes.”

Monday, February 08, 2010

Dat Who

TBA was bemused that today's NFL, when it wants a safe halftime performance by people who won't flash their tits or use words like "tits," turns to yesterday's bad-boy rockers grown geriatric, exactly the kind of people that no sane exec would've dreamed of putting on live TV back in their prime, and for good reason too.

Even Townshend's taking his guitar to the surrounding light-up thingies would've been welcome. It was a bit like watching gray-muzzled dancing bears for which only a light chain was needed at most.

Friday, February 05, 2010

Judiciary violates separation of powers to defend separation of powers?

Having had time to think about last week's MSSC order, TBA sees some problems with it.

Some have criticized it as an "advisory opinion" decided without a case or controversy before the court.

However, the MSSC wears two hats: it's the high court of the state, *and* it's the highest authority over the judicial branch, in an "administrative" sense.

That I take it is why it issued an "administrative order," not an opinion.

The problem however is that its order purported to command the State Fiscal Officer not to impose certain cuts. I don't see how the court had that authority in its administrative capacity, any more than the Governor has the authority to order a circuit court judge to rule on a motion.

Better would have been to make the court's position crystal-clear without that part of the order, and then let the normal judicial process roll if the SFO decided to implement the cuts anyway. The lower courts would know exactly what the MSSC thought about the issue and would either rule accordingly (98% chance) or sass the court and get reversed (2%).

But it would be interesting to see whether and how an executive-branch officer can be held in contempt of an *administrative* order issued by the MSSC, which in that capacity has, I would think, zero authority over the SFO. In other words, for all its trumpeting about "separation of powers," the court's order itself violates that separation.

Since however he's stated that he's not going to take a chance and find out, guess we won't find out, this time.

... Stolen from our comment over at Bardwell's.

The spirit of the common law

Sir, the law is as I say it is, and so it has been laid down ever since the law began; and we have several set forms which are held as law, and so held and used for good reason, though we cannot at present remember that reason.
-- Chief Justice Fortescue, in Y.B. 36 Hen. VI, ff. 25b-26 (1458), quoted in Bryan A. Garner, A Dictionary of Modern Legal Usage (2d ed.) at 387.

... Garner adds that "in Texas, for example, where most defensive pleadings contain the phrase, not one lawyer in fifty can explain what the phrase means."

In their defense, it's true that one of a lawyer's fears is omitting some "magic words" which he doesn't understand, but which it turns out the court both understands and rules against his client due to the omission thereof.

They're discussing Schopenhauer at their next meeting

TBA happened upon this self-description:
The Junior League of Jackson is an organization of women committed to promoting voluntarism ...
I'm guessing that's "the principle of relying on voluntary action rather than compulsion," as opposed to "a theory or doctrine which regards will as the fundmental principle or dominant factor in the individual or in the universe."

Still, even on the former definition, it seems the JL is more about practicing voluntary social action than about abstractly favoring it over compulsory action. "Volunteerism" would've worked just fine.

With Mom and Dad in jail, Junior is SURE not to drink!

My 14yo's school sent me an e-mail yesterday, urging me to support passage of Mississippi House Bill 722, the "Social Host" bill as they call it:
Summary of the Bill - The “Social Host Bill is designed to prohibit adults from allowing a party to take place at a private residence/premises where alcohol is being consumed. This applies to any adult who knows or who should reasonably know that alcohol is being consumed. Violators of this act are punished with a misdemeanor and would receive criminal penalties in the form of a $1,000 fine and/or county jail imprisonment up to 90 days.”
I wrote back that I wasn't quite sure which of my son's friends' parents I would want to see jailed under such a law, but I appreciated learning the school's attitude towards the parents.

Call me an unreconstructed Democrat bleeding-heart, but I do not think that criminal penalties for parents are a particularly appropriate tactic here. And while there are doubtless crimes where one "reasonably should have known" this or that, the standard still makes me uneasy. My kid has a sleepover and they creep out of bed at 2 a.m. to sneak some bourbon out of the cabinet. Should I reasonably have known they would do that? Why didn't I have the cabinet locked? Why did I even have alcohol in my house? Do I want a jury to make these decisions?

Anyway, here's a list of the Judiciary A committee members whom I've been urged to write to and encourage to make parental negligence a crime. I may work up a letter, but not one the school had in mind. (Bonus question: why does a House committed have 30-odd members?)
Judiciary A committee-

Edward Blackmon-chairman

Angela Cockerham-vice-chairman

Mark Baker

Earle Banks

Jim Beckett

Cecil Brown

Kimberly Campbell Buck

Credell Calhoun

Gary Chism

Bryant Clark

Alyce Griffin Clarke

Linda Coleman

Mary Coleman

J. P. Compretta

William Denny, Jr.

Jim Ellington

Tyrone Ellis

James “Jim” Evans

Andy Gipson

Philip Gunn

Steve Holland

Greg Holloway, Sr.

Robert Johnson, III

Bennett Malone

Rita Martinson

Kevin McGee

America “Chuck” Middleton

Bobby Moak

John L. Moore

Harvey Moss

David Norquist

Jimmy Puckett

Tommy Reynolds

Walter Robinson

Ray Rogers

Ferr Smith

Greg Snowden

Jessica Upshaw

Percy Watson

Tom Weathersby

Adrienne Wooten

Assassination is the continuation of law enforcement by other means?

This blog would become even more tedious if we cataloged our disappointments with Obama, but even in such times as these, president-ordered assassinations of Americans abroad ought to merit a word.
The director of national intelligence said the factors that "primarily" weigh on the decision to target an American include "whether that American is involved in a group that is trying to attack us, whether that American is a threat to other Americans."
So, not a matter of killing an American who's on the battlefield in the enemy's ranks - no one would question that - but rather, an American "involved in a group." If you're an American suspected of being tied to al-Qaeda, then you may get a Hellfire missile in your bedroom.

Glenn Greenwald:
... wouldn't it be preferable to at least require the President to demonstrate to a court that probable cause exists to warrant the assassination of an American citizen before the President should be allowed to order it? That would basically mean that courts would issue "assassination warrants" or "murder warrants"--a repugnant idea given that they're tantamount to imposing the death sentence without a trial--but isn't that minimal safeguard preferable to allowing the President unchecked authority to do it on his own, the very power he has now claimed for himself? And if the Fifth Amendment's explicit guarantee--that one shall not be deprived of life without due process--does not prohibit the U.S. Government from assassinating you without any process, what exactly does it prohibit?
I wonder how the Republicans feel about Obama's power to order such assassinations? Travel plans, Ms. Palin?

(H/t Baumann, in for Kevin Drum. If the post title's allusion has to be explained, it probably wasn't all that great to start with.)

Thursday, February 04, 2010

A modest legislative proposal

Via Will Bardwell, Emily Wagster Pettus -- fast becoming the dean (diva?) of the Mississippi journalism community -- makes a good catch:
Unfortunate title of a bill pending in the Mississippi Legislature: "Hunting; provide for a hunting season for terminally ill children." ... Sounds like one of those bad headlines on Leno.
I dunno -- is Barbour behind this? Because it might just be another way to reduce Medicaid costs.

Wednesday, February 03, 2010

Cancel your Amazon account! - UPDATED

Search "delete account" at their Help site and you'll find out how.

Via Making Light, I learned of Amazon's pulling every "Buy" link for any book published by Macmillan, due to an argument between the two companies over e-book pricing. No, really, this happened:
As Venture Beat and other blogs have noticed Friday evening, books from Macmillan, one of the largest publishers in the United States, have vanished from

The question is why.

I’ve talked to a person in the industry with knowledge of the dispute who says the disappearance is the result of a disagreement between and book publishers that has been brewing for the last year. Macmillan, like other publishers, has asked Amazon to raise the price of electronic books from $9.99 to around $15. Amazon is expressing its strong disagreement by temporarily removing Macmillan books, said this person, who did not want to be quoted by name because of the sensitivity of the matter.
First the 1984 debacle, and now this. Which is just crazy. Egomaniacally crazy.

N.b. that Amazon pretty quickly changed its mind. Whatever. That they even thought that screwing their customers and the authors whose books their customers buy was acceptable ... that was waaaaaayy too much. As I just e-mailed them when cancelling my account, they're supposed to be making money by serving their customers, and they obviously have forgotten what that means.

There are just too many places on the internet to buy books etc. without having to buy them from a company like Amazon. I will spend a little more for my books and stuff, probably. And I will be happy to do so.

... Amazon's spin: We were being bullied!
Macmillan, one of the "big six" publishers, has clearly communicated to us that, regardless of our viewpoint, they are committed to switching to an agency model and charging $12.99 to $14.99 for e-book versions of bestsellers and most hardcover releases.

We have expressed our strong disagreement and the seriousness of our disagreement by temporarily ceasing the sale of all Macmillan titles. We want you to know that ultimately, however, we will have to capitulate and accept Macmillan's terms because Macmillan has a monopoly over their own titles, and we will want to offer them to you even at prices we believe are needlessly high for e-books. Amazon customers will at that point decide for themselves whether they believe it's reasonable to pay $14.99 for a bestselling e-book. We don't believe that all of the major publishers will take the same route as Macmillan. And we know for sure that many independent presses and self-published authors will see this as an opportunity to provide attractively priced e-books as an alternative.
If Amazon didn't want to sell Macmillan's e-books for $15 a pop, that was fine, though I would think the market could decide whether the e-books were worth that.

But pulling ALL Macmillan titles? That's gangsta.

UPDATED with link to real legal analysis! (via Stross).

... and forsaking all others, subject to paragraph 7, clause 3 ...

Jonathan Chait notes that Jenny Sanford, soon-to-be-ex-wife of Gov. Mark "Brazilian" Sanford, admits that Sanford didn't break his wedding vows:
South Carolina first lady Jenny Sanford recalls how she made the "leap of faith" to marry husband Gov. Mark Sanford even though the groom refused to promise to be faithful, insisting that the clause be removed from their wedding vows. ...

"It bothered me to some extent, but ... we were very young, we were in love," she said in an exclusive interview with Barbara Walters to air on "20/20" Friday. "I questioned it, but I got past it ... along with other doubts that I had."
Chait's snark cannot be excelled by TBA:
This revelation does open up a few questions. Such as, hey Jenny Sanford, interested in a friendly game of no-limit poker? Or how about a business proposition? Send me all your alimony money and I'll tell you what it is. I'm not going to fleece you. Wait, I can't promise that. Just send me the money.

Also, given that news reports have long described Jenny Sanford as "the real brains behind the operation," one must wonder just how dumb Mark Sanford must be. What exactly does it mean to be the brains of this particular operation? Does she have to feed him?
As TBA always says, only two people know what goes on inside any given marriage.

The bookshelf (and a reckoning)

Joe Haldeman, The Forever War: One of those books I really should have read 20 years ago. Haldeman's account of interstellar war at relativistic speeds is the metaphor of all metaphors for a soldier's alienation from the home front, and from "his" own war. And his treatment of homosexuality would be remarkable today, let alone in 1974. God knows what the Ridley Scott adaptation will make of it.

Jean Edward Smith, Grant: Better thus far than Smith's bio of FDR. I'm into the beginnings of Congressional Reconstruction, and a little amazed at how much my previous reading was treading the track of the Lost Cause school of historians. (Tho for a biographer of John Marshall, Smith is thus far proving reticent about such issues as the constitutionality of the Tenure of Office Act.) Smith admires Grant's character, and rightly so, but I would like to see a bit more psychology -- for a man as simple and unassuming as Grant, he had a waspish pen in his Memoirs, hinting at something more complex under the surface.

Kurt W. Beyer, Grace Hopper and the Invention of the Information Age: As I'd hoped, this little book goes beyond biography of Hopper to an account of the early days of computing, and the institutional/economic/governmental forces that shaped its development. A topic I knew nothing about, so Beyer is very informative, to me.

Daniel Farber, Lincoln's Constitution: Another little book, usefully and cogently recounting the debates, then and now, over the constitutionality of secession and of Lincoln's actions. Generally supportive of Lincoln while conceding that he overstepped sometimes, Farber concludes with a neat distinction that while Lincoln probably went beyond the law on occasion, but never held himself above the law -- he always was vulnerable to Congress's refusal to ratify his actions, which however never came up. Comparison and contrast with George W. Bush's violations of law, and Congress's effective ratification of them, would make another good book.

Stephen W. Sears, Gettysburg: Reread this in anticipation of visiting the battlefield. It's a straightforward account, more accessible than Coddington's Gettysburg Campaign or Trudeau's Gettysburg: A Testing of Courage. Why Lee would not listen to Longstreet and either flank the Federals or dare them to come on, remains a mystery I suppose.

... And a reckoning: how many of these damn "Bookshelf" books have I actually finished? Not counting the present post, 31 of 37. Better than I feared. All too easy to flit from book to book. That biography of Lord Salisbury in particular, while interesting whenever I read it, is quite the incubus.

Tuesday, February 02, 2010

To live judge is to err

Passed along to us via e-mail from someone who heard a couple of justices on the Mississippi Supreme Court speaking at some engagement:
I heard Dickinson and Randolph speak last week. They said that there is error in every case and that the standard they apply in deciding whether to affirm or reverse is this: Judgment Fairly Obtained - Affirmed vs. Unfairly Obtained - Reversed.
This appears to be nothing more than a restatement of the familiar distinction between "error" and "reversible error":
No trial is free of error; however, to require reversal the error must be of such magnitude as to leave no doubt that the appellant was unduly prejudiced. The record before us reveals no reversible error. No trial is perfect, all that is guaranteed is a fair trial.
Davis v. Singing River Elec. Power Ass'n, 501 So. 2d 1128, 1131 (Miss. 1987).

Appellate attorneys sometimes err by resting satisfied with showing that the trial court erred. That is necessary but not always sufficient. The appeals court does not want to think it is reaching the legally correct but unfair result (it happens, but they don't like it). Don't just argue that the trial court erred; argue that the error caused an unfair result -- or, per contra, argue that no unfairness resulted, if you're defending the judgment.