An "if" too far, alas

You've probably seen around the internet where Joe McGinniss (Fatal Vision etc.) has rented the house in Wasilla next to his next book subject, Sarah Palin. Todd Palin went over and bitched McGinniss out, Palin went off on McGinniss on her Facebook page, and all the flying monkeys were unleashed.

McGinniss talks about the experience.

"I would term this hysterical," said McGinniss. "The mayor said to me, when I chatted with him in his office a couple of days ago, 'You know, if Sarah had the brains that we like to think she has, Todd would have come back and said, do you know who's living next door? This son of a bitch McGinniss who wrote that Portfolio piece. He's writing a book about you. Sarah should have baked a plate of cookies, and come around the fence, and said hi, and laughed about this.' I would have happily accepted a cookie, and then in my book I would have had a lovely scene about how gracious she had been." McGinniss sighed. "She is, in many ways, a very gracious person." * * *

"Look, this is a pain in the ass for them," he said. "I understand that. If I were her, I'd be upset. I'd be annoyed. But I'd be an adult about it, and I would figure out, okay, how can we resolve this in a way that's not going to make into something that everybody gets obsessive about? By being here I have learned things, and I've gotten an insight into her character, into her ability to incite hatred, that before I only knew about in the abstract."

More and more, this woman reminds me of the presidential candidate in The Dead Zone. Except I'm not sure even Stephen King could've dreamed her up.

A miscarriage of justice

Carefully timed for late Friday release on Memorial Day Weekend is the Fifth Circuit's unbelievable decision in Comer v. Murphy Oil, the "global warming caused Katrina" case that, rather surprisingly, obtained a panel decision reversing the district court's motion to dismiss. We had previously noted the case's going en banc, with only 9 judges hearing the case and 7 recused.

Well, since that time, another judge has found it necessary to recuse, depriving the en banc court of a quorum to hear the case. What's the result? The appeal is dismissed!

In sum, a court without a quorum cannot conduct judicial business. This court has no quorum. This court declares that because it has no quorum it cannot conduct judicial business with respect to this appeal. This court, lacking a quorum, certainly has no authority to disregard or to rewrite the established rules of this court. There is no rule that gives this court authority to reinstate the panel opinion, which has been vacated. Consequently, there is no opinion or judgment in this case upon which any mandate may issue. 5TH CIR. R. 41.3.

Because neither this en banc court, nor the panel, can conduct further judicial business in this appeal, the Clerk is directed to dismiss the appeal.

The rules provided for vacating the panel decision merely pursuant to the forthcoming en banc decision. The result, of course, is to dismiss an appeal that's been decided on the merits for appellants, through no fault of their own, not on the merits, but on a strained and suspicious hyperliteralistic application of the court's own rules.

If the SCOTUS doesn't grant cert here and reinstate the panel's decision -- which, remember, merely allows the case to proceed to discovery -- then it's going to be very difficult to avoid the conclusion that Americans can't sue Big Oil and win. And that the Fifth Circuit has some judges who are unclear on the concept of "justice."

... The ever-diplomatic Howard Bashman describes the decision as "curiouser and curiouser." Indeed.

... N.b. that the court dismissed the case on a hyperliteral interpretation of a local rule. But the five judges voting to dismiss -- Jolly, Smith, Clement, Prado, Owen -- chose to ignore another rule:

FRAP 2. SUSPENSION OF RULES
On its own or a party’s motion, a court of appeals may — to expedite its decision or for other good cause — suspend any provision of these rules in a particular case and order proceedings as it directs, except as otherwise provided in Rule 26(b).

None of the FRAP are binding on the court where good cause exists, which if it ever existed, it exists here. (Rule 26(b) merely forbids the court to extend time for filing an appeal beyond what Rule 4 allows.)

Just when you think you can't be any more appalled, you're more appalled. What a sorry stunt.

"Detainees who cannot be prosecuted"

Doubtless heartened by the D.C. Circuit's endorsement of its lawless conduct, Obama's administration has issued a "National Security Strategy":

The increased risk of terrorism necessitates a capacity to detain and interrogate suspected violent extremists, but that framework must align with our laws to be effective and sustainable. When we are able, we will prosecute terrorists in Federal courts or in reformed military commissions that are fair, legitimate, and effective. For detainees who cannot be prosecuted--but pose a danger to the American people--we must have clear, defensible, and lawful standards. We must have fair procedures and a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified. And keeping with our Constitutional system, it will be subject to checks and balances. The goal is an approach that can be sustained by future Administrations, with support from both political parties and all three branches of government.

What we really need, it seems, is a CONSTITUTIONAL SECURITY STRATEGY, because the Constitution is obviously in a helluva lot more danger than the United States is.

"Clear, defensible, and lawful standards" for holding prisoners who "cannot be prosecuted"? Sounds like the fucking Soviet Constitution.

Via Scott Horton, who observes:

This is about cases in which the United States has no meaningful evidence that would link the person held to a terrorist group. It looks like an endorsement of indefinitely detaining persons against whom the United States has no evidence of criminal conduct but whom it “suspects” may constitute a threat, usually based on the say-so of the intelligence service of some tyrannical but allied foreign power. That is the very definition of tyrannical conduct, yet here it is perversely touted as an example for emulation by others.

I wonder if I would rather have Bush in power than Obama at this point, because then maybe the Democrats would get around to standing up to this crap.

Didn't answer any questions about Kagan's sexuality, therefore

Though he declined to be interviewed, my favorite SCOTUS justice of my lifetime, David Souter, is featured in a little AP item.

For Souter, retirement from the U.S. Supreme Court last June has not meant retirement from the bench.

At the age of 70, he is unwilling to hang up his robe and is hearing cases one or two days a month for the 1st U.S. Circuit Court of Appeals in Boston, which handles federal appeals for Maine, Massachusetts, New Hampshire, Rhode Island and Puerto Rico. * * *

By retiring at age 69, he became one of the youngest judges to leave the bench. Friends say he never enjoyed Washington - he once said he had "the world's best job in the world's worst city."

So they are not surprised by his decision to return to the 1st Circuit court, where he had served just one day before his nomination.

"It's something he always told us he was going to do," said Norman Stahl, a senior judge on the court who has been friends with Souter for 40 years. "He loved the work (of the Supreme Court), but he was never a fan of living in Washington, so he's enjoying being home and sitting here."

* * * Mark Tushnet, a Harvard Law School professor who has written extensively about the Supreme Court, said Souter is working more often than most retired justices. He said Souter may enjoy the difference in the appellate work compared with the Supreme Court. * * *

Souter returned to the appellate court in January. It is close to his home in New Hampshire, where earlier in his career he served as state attorney general, Superior Court judge and associate justice of the state Supreme Court. A bachelor, he recently moved from his family's 200-year-old farmhouse in Weare to a more modern home in a suburb of Concord.

He also has been working on a New Hampshire task force formed to improve civics education in public schools. In a speech to the American Bar Association last year, Souter warned that the failure of many Americans to understand how the government works poses a threat to the ability of the nation's judges to remain free from political pressure.

"There is a danger to judicial independence when people have no understanding of how the judiciary fits into the constitutional scheme," Souter said.

Friends say Souter is spending his spare time settling into his new home and trying to organize a massive book collection.

Sounds like the ideal retirement.

Courage, lies, and David Bernstein

David Bernstein finds it useful not to enable comments to his posts on Israel, possibly because that assists him in making stuff up without being called on it.

Most recently, he joins the attack on Peter Beinart's NYRB essay on "The Failure of the American Jewish Establishment." Claiming to summarize Noah Pollak's rebuttal, DB writes:

Beinart claims that he is engaging in an act of courage by criticizing Israel and the American Jewish establishment, but nothing is more trite, and better for one’s career in left-wing circles, than to be a Jewish liberal/left intellectual publicly attacking Israel.

That this is not an incidental point is indicated by DB's post title: "Peter Beinart - Trite, Not Courageous."

Three problems here:

(1) Beinart never says that in the essay.

(2) Pollak's claim that Beinart says that is therefore indirect at best:

Beinart suggests a great burden to bear in becoming an Israel critic: "The hardest thing I've ever written," he said in announcing his essay on his Twitter feed. * * * In Beinart’s work, we are not witnessing an act of courage but rather a spectacle of conformity.

See? That's how it's done. You move from Beinart's saying it's "hard" to write the essay, to a denial that it's "an act of courage," without having quite asserted that Beinart claimed to be courageous. But of course, DB is not constrained by the facts.

(3) Beinart has expressly rejected any claim to be "courageous" in writing his essay (as relayed by Jon Chait, who's been quite critical of the essay):

We live in the U.S., not Iran or Zimbabwe. There's very little threat of physical--let alone state-sponsored--violence for anything you say politically. So in a global context, it's hard to say anyone in the U.S. is really brave no matter how unpopular their views. With that caveat, I think there is something a little brave for a member of Congress or an administration official to criticize AIPAC or criticize Israel harshly because it could end their political career. Let's just imagine that a Senator or Cabinet Member said what Barak and Olmert have said about Israel being on its way to being an apartheid state if it doesn't give back the West Bank. That would be a serious career-threatener. For a journalist/pundit, however, it's completely different. In the press, criticism--even harsh criticism--of Israel is common, and in fact, I think in the blogosphere it is almost becoming the norm.

Nor, it seems, does a law professor have to be "brave" to simply lie about what other people write.

... DB backs down after an e-mail from Beinart, though he doesn't change his post title. TBA remains unclear why DB felt impelled to manufacture something untrue that required only good-faith reading, not an e-mail from the author (Intentional e-Fallacy?), to spot as untrue.

The power of Pelosi

Matthew Green has an interesting post analyzing in what respects Pelosi's accomplishment in the healthcare bill was, and wasn't, remarkable.

That's right. Puppies. The puppies of Justice.

Monday's blogging is handed over to WWTDD:

And here’s the video of Lindsay in court this morning. All you need to know about how shitty and useless the justice system is in LA can be summed up by the fact that there’s a fucking puppy calendar on the wall of the courtroom.

It’s a calendar. With pictures of puppies.

There’s a painting called “Justice and Divine Vengeance Pursuing Crime”, and it shows two angels, one with a big fucking knife in his hand, hunting down a criminal (here).


It was commissioned to sit behind a judge's bench in his courtroom in Paris. But the puppy calendar is pretty good too. I think they send the same kind of message. Especially October, because there’s a beagle in a little police outfit.

Could "Tyler Durden" be an ... art history major? Because that would certainly explain his celebrity-blogger career.

(J/k TD. I'm a philosophy major, and I can't even get anyone to pay me to read my blog .... Title allusion here (run Find on "justice").)

The black hole of Bagram

Hoping that the fourth time is the charm -- having been reversed in Rasul, Hamdan, and Boumedienne -- the D.C. Circuit reverses the district court ruling that alleged "unlawful enemy combatants" at Bagram Airfield in Afghanistan, held without trial for 7+ years, have no right to habeas, and thus presumably can be jailed until they die with no trial.

H/t Adler at the VC, where I posted pretty much all that I can say about this:

These “unlawful enemy combatants” have been held for 7 or 8 years without being tried for whatever “unlawful” acts they supposedly committed. That’s crap, and that’s why habeas relief is proper.

And it’s flat out disgusting that Barack Obama, head of the executive branch and responsible for its acts, (1) appealed this decision, (2) holds these men without trial, and (3) hasn’t moved to repeal the MCA or the DTA. What a sad joke all his rhetoric proves to be.

... Meanwhile, in the UK, we see "Change You Can REALLY Believe In":

A judge will investigate claims that British intelligence agencies were complicit in the torture of terror suspects, William Hague, the foreign secretary, said tonight. The move was welcomed by civil liberties campaigners and may put pressure on the Labour leadership candidate and former foreign secretary David Miliband, who was accused by Hague, while in opposition, of having something to hide. Miliband has repeatedly rejected the accusation and broadly indicated that he or his officials may have been misled by foreign intelligence agencies about the degree of British complicity.

Hague’s remarks appear to have caught the Foreign Office by surprise, as no details were yet available on how the inquiry will be conducted, its terms of reference or when it will start work. Hague will come under pressure to ensure the inquiry is public and comprehensive. He first called last year for an independent judicial inquiry into claims that British officials had colluded in the torture of Binyam Mohamed, the former Guantánamo detainee and a UK resident. Mohamed claimed that he was tortured by US forces in Pakistan and Morocco, and that MI5 fed the CIA questions that were used by US forces.

Wow, it's as if Hague regarded this, not as a campaign speech, but as a genuine legal and moral imperative.

As Scott Horton notes: "The Obama Administration should watch and learn a bit about how a modern democracy approaches the question of accountability for torture." But it appears that Obama is more interested in protecting his "black hole" in Bagram, precisely the kind of habeas-free zone that Cheney and Addington sought to create at Gitmo for the precise purpose of torturing prisoners. What's Obama's motive? Time will tell.

Happy Jerusalem Day, from the brownshirts in yarmulkes

"A Palestinian woman whose house has been occupied by Jewish settlers argued with Israelis who came to celebrate Jerusalem Day in the mainly Arab neighborhood of Sheikh Jarrah, East Jerusalem, Wednesday. (Ahmad Gharabli/Agence France-Presse/Getty Images)"

WSJ photo blog, via Kleiman.

Libertarianism shows its colors?

GOP Senate candidate Rand Paul -- did Ron Paul really name his kid after Ayn Rand? -- thinks the 1964 Civil Rights Act could use a little touching-up. Like, legalizing racial discrimination by private entities.

INTERVIEWER: Would you have voted for the Civil Rights Act of 1964?

PAUL: I like the Civil Rights Act in the sense that it ended discrimination in all public domains, and I’m all in favor of that.

INTERVIEWER: But?

PAUL: You had to ask me the “but.” I don’t like the idea of telling private business owners--I abhor racism. I think it’s a bad business decision to exclude anybody from your restaurant--but, at the same time, I do believe in private ownership. But I absolutely think there should be no discrimination in anything that gets any public funding, and that’s most of what I think the Civil Rights Act was about in my mind.

Not just a one-off; see his Maddow interview.

Can I please do the next media interview with Michael Steele? Pretty please? I just have a few questions.

Rand also opposes the Americans with Disabilities Act, FYI.

(And his name is Randal, so I guess calling him Rand is just an affectionate nod to Objectivism.)

... UPDATE: Good news! "I unequivocally state that I will not support any efforts to repeal the Civil Rights Act of 1964."

Well, that's mighty white of him. I trust he won't seek to reinstate the Three-Fifths Clause either.

... Bruce Bartlett, via Kevin Drum:

The libertarian philosophy of Rand Paul and the Supreme Court of the 1880s and 1890s gave us almost 100 years of segregation, white supremacy, lynchings, chain gangs, the KKK, and discrimination of African Americans for no other reason except their skin color. The gains made by the former slaves in the years after the Civil War were completely reversed once the Supreme Court effectively prevented the federal government from protecting them. Thus we have a perfect test of the libertarian philosophy and an indisputable conclusion: it didn't work. Freedom did not lead to a decline in racism; it only got worse.

There's more.

Or how about the idea of winning WW2 with a wonder bomb?

Certain kinds of truths are convincing only in a narrative. The idea, for instance, that the ring of power should be given to two undersized amateurs to throw into a volcano at the very center of the enemy’s camp makes sound and sober sense, of a kind, in Tolkien; but you would never expect to find it as a premise at the Middle Earth Military Academy.

-- Adam Gopnik, "What Did Jesus Do?" (a review of various recent historical works).

... A good crack, but of course Boromir presents the MEMA point of view at the Council of Elrond, and Gandalf expressly argues that force of arms is doomed to fail.

Garry Wills puts it memorably indeed

Garry Wills has a fine meditation on what one hopes are the death throes of Roman Catholic authoritarianism, the concluding paragraph of which is this:

All those who honor the name of Jesus are engaged in a joint search for the Jesus who will not be found in marble halls or wearing imperial costumes. He is forever on the run. He is the one who said, “Whatever you did to any of my brothers, even the lowliest [elackistoi], you did to me” (Matthew 25:41). That means that the priests abusing the vulnerable young were doing that to Jesus, raping Jesus. Any clerical functionary who shows more sympathy for the predator priests than for their victims instantly disqualifies himself as a follower of Jesus. The cardinals said they must care for their own, going to jail if necessary to protect a priest. We say the same thing, but the “our own” we care for are the victimized, the poor, the violated. They are Jesus.

H/t Sullivan.

I refute him ... thus!

Sometimes a baseball bat is worth a thousand words:

Holmes was a regular customer of T&S Tunnel Express, a car wash in Vicksburg, Mississippi. Benjamin Brooks was employed there. On October 19, 2005, Holmes stopped by the car wash. After washing and vacuuming his vehicle, he walked up to Brooks and called him a “weak bitch.” Brooks responded by beating Holmes with a baseball bat. Holmes died from his injuries four days later.

Holmes v. Campbell Props., Inc. (Miss. Ct. App. May 18, 2010). Holmes's widow was unsuccessful in her premises-liability suit against the car wash; other than a brief mention of Brooks's criminal trial, nothing on what befell Brooks in the criminal justice system. "Asked and answered" is I believe an evidentiary objection, not an affirmative defense.

... It seems Brooks got 20 years. Also, it was an aluminum bat, which it seems really is the dangerous kind -- Brooks had only one arm!

He feels their pain (and possibly their womenfolk)

OTB reports that Haiti is now effectively governed (if not "governed effectively") by a UN Commission headed by Bill Clinton.

Seems like a fitting career move for America's first black president.

An old Onion article gives a good suggestion for the presidential uniform:



(Post entirely cribbed from TBA comment at OTB post. Had to get that picture in.)

Dumb-as-a-rock Repub pol records abstinence video with his mistress

No, really:

Rep. Mark Souder (R-IN) had an affair with a part-time staffer named Tracy Jackson, Fox is reporting. Jackson played the role of interviewer for a Souder Web video show on the issues of the day -- including one on the value of abstinence. * * *

In the November 2009 abstinence video, Jackson introduces Souder this way: "You've been a longtime advocate for abstinence education and in 2006 you had your staff conduct a report entitled 'Abstinence and its Critics' which discredits many claims purveyed by those who oppose abstinence education."

I haven't watched the video; evidently, it's not terribly persuasive.

Souder, having consulted with his family (and Ms. Jackson?), appears to be resigning, perhaps the better to practice his motivational speaking skills.

... At his soon-to-be-defunct House website, Souder's press releases include "opposition to Democrat gay-rights bill" and, yes, "Souder Defends Abstinence Education at Biased Hearing":

“The fact remains that the only fully reliable way young people can protect themselves from pregnancy or STDs is by abstaining from sex until in a committed, faithful relationship with a partner who is also free of STDs,” Souder added. “Abstinence education is a medically-accurate, age-appropriate method that promotes character, healthy relationship-building skills, and self-worth to young people.”

He could have made a stronger case by using himself as an example of what happens in the absence of said education.

... Also in the busy world of abstinence education, there's this:

Bristol Palin to charge tens of thousands for speeches on how to avoid teen pregnancy

... In case you were pitying Souder, see this:

Souder frequently meddled with CDC research into at-risk behavior, and made life difficult for medical researchers of teen pregnancy and sexually transmitted disease. For example, in March 2004, Souder hauled Dr. Jonathan Zenilman, a former C.D.C. officer and S.T.D. specialist at Hopkins who happens to be my father, before his committee and proceeded to lecture him on the sins of condoms and sex outside of wedlock and its liberal enablers. * * *

Souder ultimately responded by saying that teen sex needs to be aggressively confronted, like date rape, because out-of-wedlock sex always leads to pregnancy and ruins lives.

Batting .500 so far, I must admit.

Dumb-as-a-rock Dem hands CT Senate seat to GOP

Way to go, asshole:

At a ceremony honoring veterans and senior citizens who sent presents to soldiers overseas, Attorney General Richard Blumenthal of Connecticut rose and spoke of an earlier time in his life.

“We have learned something important since the days that I served in Vietnam,” Mr. Blumenthal said to the group gathered in Norwalk in March 2008. “And you exemplify it. Whatever we think about the war, whatever we call it — Afghanistan or Iraq — we owe our military men and women unconditional support.”

There was one problem: Mr. Blumenthal, a Democrat now running for the United States Senate, never served in Vietnam. He obtained at least five military deferments from 1965 to 1970 and took repeated steps that enabled him to avoid going to war, according to records.

Lovely.

As a commenter at OTB put it, "claim you’re better-endowed than you are, claim you have no idea who took the last cupcake, claim you scored a winning touchdown, claim all kinds of things. But don’t claim you went in harm’s way for your country when you didn’t."

Fact vs. journalism

Today's Clarion-Ledger lede:

Mississippi and 35 other states can no longer lock up juveniles for life for crimes other than murder, the U.S. Supreme Court ruled Monday.

No, it didn't, as the article itself implicitly admits later:

In a 5-4 vote, the Supreme Court said young people serving life prison terms must have "a meaningful opportunity to obtain release" if they haven't killed their victims. * * *

"The state has denied him (Graham) any chance to later demonstrate that he is fit to rejoin society based solely on a non-homicide crime that he committed while he was a child in the eyes of the law," Justice Anthony Kennedy wrote in his majority opinion. "This the Eighth Amendment does not permit."

IOW, life without parole is no longer allowed as a sentence for juvenile non-homicide offenders.

... TBA actually thought Chief Justice Roberts' concurrence in the result had the better argument: no bright-line rule that would bar such a sentence for the most heinous offenses, but clearly on the facts of Graham's case, life w/o parole for armed robbery and home invasion was unconstitutional.

The gross abuse of language

Been reading Max Hastings's Winston at War on my new Nook (of which more later), and while Hastings is usually judicious, his argument that area bombing wasn't a war crime seems a tad inconsistent:

It is a gross abuse of language to identify area bombing as a "war crime," as do some modern critics. The policy was designed to hasten the defeat of Germany by destroying its industrial base, not wantonly to slaughter innocents. Yet it remains a blot on the Allied conduct of the war that city attacks were allowed to continue into 1945, when huge forces of aircraft employed sophisticated technology against negligible defences, and German industrial output could no longer much influence outcomes. Both the operational necessity to attack cities -- because the RAF was capable of nothing else -- and the strategic purpose of such operations were gone.

It's a fairly general principle that the laws of war require that violence be necessary and proportional, and by Hastings's own account, at least the 1945 city attacks (Dresden, Potsdam) were neither.

Hastings also omits to remember that just a page or two earlier, he had written:

[Churchill] also gave a formidable hostage to history, by declaring that Bomber Command's campaign was terroristic. No one in the upper reaches of Britain's war machine had ever privately doubted that this was so, but ministers and airmen took elaborate pains to avoid acknowledging it.

So much for "designed to hasten the defeat of Germany by destroying its industrial base"; as Hastings well knows, area bombing was adopted precisely *because* bomber attacks could not focus on the "industrial base."

(Leaving aside that Britain built Bomber Command, even before the war, with the intent to conduct terror bombing, as I learned in reading Bomber Command by Max Hastings.)

I'm from your government, and I'm here to kill you.

LGM notes the euphemism "targeted killing" for the assassination of U.S. citizens deemed to be terrorists abroad:

... Anwar al-Awlaki is a US citizen allegedly engaged in inciting crimes against his fellow citizens and his government. Like any other US citizen, he is entitled to due process and a trial before the government could even consider whether he deserves the death penalty. When governments kill individuals outside such a judicial process, the terms for this are “summary execution” or “extrajudicial execution.” This is contrary to international human rights standards; international law makes no exception for states to derogate from such rules due to public emergency or internal unrest. When the US government targets its own citizens outside a judicial process it is also a violation of the US Constitution.

I think that's right, tho, even with my weak grasp of the laws of war, there seems to be some wiggle room.

If we're targeting a meeting which we believe Osama bin Laden will attend, and our intel shows that al-Awlaki is likely to be there, I don't think we have to cancel the attack because we might kill an American citizen. What seems to me prohibited is if we target the meeting because al-Awlaki is there.

Even then, however, what are the odds that al-Awlaki is not hanging on a regular basis with non-citizen terrorists, who could be "targeted" while al-Awlaki is "collateral damage"?

Gibbon on the Reformation

...the loss of one mystery was amply compensated by the stupendous
doctrines of original sin, redemption, faith, grace, and predestination, which
have been strained from the epistles of St Paul. These subtle questions had most
assuredly been prepared by the fathers and schoolmen; but the final improvement
and popular use may be attributed to the first reformers, who enforced them as
the absolute and essential terms of salvation. Hitherto the weight of
supernatural belief inclines against the Protestants; and many a sober Christian
would rather admit that a wafer is God, than that God is a cruel and capricious
tyrant.

-- Gibbon, The Decline and Fall of the Roman Empire, chapter 54 (quoted here).

... As one might expect, Gibbon has a good word for Erasmus, "the father of rational theology," whose followers "diffused a spirit of freedom and moderation." (For a practicing Lutheran, I have always had a soft spot for Erasmus.) Gibbon indeed thinks Erasmus triumphant, in practice if not in theory:

The volumes of controversy are overspread with cobwebs; the doctrine of a Protestant church is far removed from the knowledge or belief of its private members; and the forms of orthodoxy, the articles of faith, are subscribed with a sigh or a smile by the modern clergy.

Forewarned is forearmed

Apart from the egregious Akins decision (see post below), there are a couple of interesting reversals today in criminal cases -- one in a murder case where the defendant's prior domestic abuse plea was wrongfully admitted in the form of a videotaped interrogation, and another reversing a conviction where the defendant's waiver of the right to counsel was not "knowingly and intelligently made."

Both seem cogent, indeed painfully obvious, but some language in the latter may come back to haunt civil litigants. First they quote URCCC 8.05:

When the court learns that a defendant desires to act as his/her own attorney, the court shall on the record conduct an examination of the defendant to determine if the defendant knowingly and voluntarily desires to act as his/her own attorney.

The Court's bold, with footnote:

This Court has held that, “unlike the discretionary nature of ‘may,’ the word ‘shall’ is a mandatory directive. . . . no discretion is afforded the trial judge.” Ivy v. Harrington, 644 So. 2d 1218, 1221 (Miss. 1994) (emphasis in original).

"Shall" means "shall," the Court reiterates:

Were our decision today different, the ramifications would extend far beyond this case. Our trial judges and lawyers would be left to wonder whether Rule 8.05, or any other rule, means what it says. It is no small concern to us that our rules and statutes are replete with provisions of what “shall” and “shall not” be done. Were we to hold otherwise, the bench and bar would surely wonder what definition de jour this Court might apply to “shall” in future cases.

Yow.

This interests me because of another rule in the URCCC, which TBA considers likely to be the most disregarded rule of court: 4.04(A):

All discovery must be completed within ninety days from service of an answer by the applicable defendant.

(Garner's Modern Legal Usage deems "must" equally prescriptive as "shall," if not moreso.)

After today's unanimous opinion in Patton, I would not want to be arguing to this Court that Rule 4.04(A) doesn't really count. Get those agreed scheduling orders in place early, folks.

... 2d and 3d most disregarded rules: M.R.C.P. 56(h), court "shall" award expenses to prevailing party upon denial of summary judgment; M.R.C.P. 37(a)(4), "shall" award costs and attorney's fees on grant of motion to compel, unless "opposition to the motion was substantially justified" (when you figure out what that means, tell us) "or that other circumstances make an award of expenses unjust." ("Other circumstances" in our experience include "necessity of securing campaign contributions from a local attorney who practices more often in the court than does the Jackson attorney whose Rule 37 motion I've just granted.") Leave your own "most disregarded rule" candidate in comments!

"Yes, our employee stole from you, but she didn't cut us in!"

TBA and its commenters observed a while back that the Mississippi Supreme Court is egregiously coy about overruling its precedents. Another example today: Akins v. Golden Triangle Planning & Devel. Dist.. Defendant's employee embezzles funds meant for plaintiff; plaintiff sues defendant. Nope, says the MSSC, because "Tate’s misdeeds were for her own personal gain and were of no benefit to Golden Triangle." Hence, outside the scope of her employment, thus, no respondeat superior, ergo, no liability for the employer.

That holding follows upon this analysis:

Golden Triangle contends that Akins’s reliance on both Billups and Napp is misplaced, as these decisions have been eroded by more recent Mississippi Supreme Court decisions which have demonstrated a “marked shift away from expansive employer vicarious liability.” * * * Alternatively, Golden Triangle maintains that, even if the facts averred by Akins are true, Golden Triangle still is entitled to judgment as a matter of law because Tate acted outside her duties for her own gain to the detriment – not the benefit – of her employer/master, Golden Triangle.

In Billups, for instance, "a salesman was overcharging Billups for bread and keeping the difference for himself." Seems on point, eh? But the Court, apparently embracing the "alternatively" theory, affirms summary judgment for the defendant, without explaining how to distinguish Billups or whether that case remains good law.

Justice Randolph, dissenting in the 5-4 decision, points out that, under Mississippi precedent, "[a] master is subject to liability for the torts of his servant committed outside the scope of employment if the servant was aided in accomplishing the tort by the existence of the agency relation." In other words, respondeat superior is part of vicarious liability, but not all of it. And Randolph goes on to quote from Billups:

“[i]t is well settled that the principal is liable for the frauds and misrepresentations of his agent within the scope of the authority or employment of the agent, even though he had no knowledge thereof and has received no benefit therefrom. . . .” 2 Am. Jur. p. 281, Agency, § 362. “The principal is liable to third persons for injuries resulting from the fraud and deceit of his agent if such is within the scope of the agent’s authority. Acts of fraud by the agent, committed in the course or scope of his employment, are binding on the principal, even though the principal did not know of or authorize the commission of the fraudulent acts, and although he derives no benefit from the success of the fraud, and the agent committed it for his own benefit.” 3 C.J.S., Agency, § 257, p. 190.

Randolph also gives us the Fifth Circuit's analysis of the cases relied upon by Billups:

Each case involved a situation in which the principal delegated to the agent the power to perform a certain task, such as collect monies for the principal. In each case, the agent acted for his own purposes, but the fraud transpired as part of the very duty that the principal authorized the agent to perform. Because the customers had a relationship with the principal that induced the customers to rely on the principal’s agent, and the agent defrauded the customers in the performance of the duty entrusted to him by the principal, the agent was “aided in accomplishing the tort by the existence of the agency relation.”

A remarkably weak opinion by Carlson doesn't even address the dissent's arguments. How Kitchens and Graves signed on -- the dissenters were Randolph, Dickinson, Lamar, and Chandler -- is mysterious indeed. If they're going to vote against type, could they please save it for a case where they're actually in the right?

Kagan terrorized students, ergo, she's a terrorist!

Just like that Kenyan to nominate a terrorist to the Supreme Court!

... Srsly: Above the Law runs a post by a Civ Pro I student of Kagan's at Harvard, who reports that Kagan was prickly with Harvard Law students who ... ah ... didn't do their reading:

I hated the Socratic method, and while many people in my section were so terrified of Kagan that they did their Civ Pro reading before anything else, I quickly fell into the habit of not doing my Civ Pro reading. Hell, we were just going to spend half of class rehashing what people already read the night before. In my 1L mind, I was being efficient.

So it came that one Friday morning I was cold-called. I wasn’t even in the ballpark of being prepared. But I didn’t want to waste everybody’s time. So I responded: “Professor Kagan, honestly I didn’t get to all of the reading for today’s class. Sadly, I think I need to pass on this one.”

Bzzt. Wrong answer:

PROFESSOR KAGAN: Well, Mr. Mystal, did you manage to remember your casebook?
1L ELIE: Yes. But like I said, I didn’t …
PROFESSOR KAGAN: Do you think you could be bothered to OPEN your casebook?
1L ELIE: (I have a bad feeling about this.) Yes. Abso…
PROFESSOR KAGAN: Please turn to page [whatever]… Now read.
1L ELIE: (Reading silently.)
PROFESSOR KAGAN: ALOUD.
1L ELIE: (Channeling Nathan Jessup: I’m not an idiot, I don’t need to read aloud like I’m a five year old.) Umm … Okay. (Much reading aloud.)
PROFESSOR KAGAN: Now, can you explain to me what you just read?
1L ELIE: (I can’t even remember what I blathered.)
PROFESSOR KAGAN: Mr. Mystal, open to page [same page as before], and TRY AGAIN!

Well all right then. Me, if I were teaching at Harvard Law, and thus teaching incredibly privileged young people, and found that some of them had so much contempt for their good fortune in life that they weren't even doing their homework ... well, Kagan wouldn't have nothin' on Prof. TBA, lemme tell ya.

The sky probably is not falling ...

... but it never hurts to keep an eye on it.

Torture, due process, and remedies

Emptywheel notes another district court's holding that torture of a suspected terrorist does not suffice to dismiss his indictment under the Due Process Clause, though unfortunately this is blogged under the title "Judge Rules Torture Doesn’t Violate Due Process," which is a bit excitable.

It seems pretty clear that the Due Process Clause, not the Eighth Amendment, is the correct rubric for considering pretrial abuses (Ingraham v. Wright, 8th Am. attaches only upon conviction & sentencing). Bell v. Wolfish, addressing a class-action suit by double-bunked jail inmates, stated the analysis:

under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law. * * * the Government concededly may detain him to ensure his presence at trial and may subject him to the restrictions and conditions of the detention facility so long as those conditions and restrictions do not amount to punishment, or otherwise violate the Constitution.

Graham v. Connor held it to be “clear” that “the Due Process Clause protects a pretrial detainee from the use of excessive force that amounts to punishment,” citing Bell, and at least implying that the right in question is substantive due process, not procedural (see fn. 10).

For whatever reason, Judge Kaplan in Ghailani does not consider the foregoing precedents, though he does locate Ghailani's claim as being for substantive due process. However, Kaplan is concerned with the narrow question of whether alleged torture suffices to dismiss an indictment; the argument is convincing, and nothing in Emptywheel's post suggests that this was legally erroneous.

She does object, however, that the alternative remedies suggested by the court -- "money damages or criminal prosecution of the offending officers" -- do not seem to be practically available.

It's true that Obama doesn't care about prosecuting torturers, but whether Bivens liability attaches is an unresolved issue, AFAIK. It's true that various statutes seem to immunize CIA torturers et al.; whether the Congress can constitutionally deprive a torture victim of any civil remedy is unknown to me.

Another missed opportunity for Obama

Someone at that CT thread I linked had the joke that Obama should've nominated Angela Davis. Which led me to this thought:

Too old. But Obama should’ve brought her out, announced it, then said, “ha, GOTCHA FoxNews! Angela, please tell Elena to come meet the reporters.” That would be the coolest presidential trick ever.

Really, that would've been awesome.

Miranda? We can change that!

Emptywheel wonders why, when the latest failed terror attack suggests once again that providing terrorists with their civil rights does not cause the sky to crumble and fall, Eric Holder goes on TV to offer to create a War On Terror Exception to Miranda.

It's a damn good question.

I had thought that, by this point in the Obama administration, the president and his cronies would have figured out that they are not going to win over any wingnuts with concessions and compromises. Perhaps they have access to some polling data showing that independents overwhelmingly favor ditching Miranda in the case of brown-skinned Muslims who try to kill people; but that would not impress me with anything other than Obama's incompetent handling of the bully pulpit.

But perhaps it's just part of a trend:

In U.S. v. Stevens, the animal-cruelty video case, Kagan argued that the First Amendment allows for a cost-benefit analysis of speech content:

Where the First Amendment value of the speech is “clearly outweighed” by its societal costs, the speech may be prohibited on its content.

The Court’s 8-1 majority opinion against the the administration (and the law in question), written by Roberts and signed by Ginsburg, Breyer, Stevens, and Sotomayor among others, noted the following after quoting that passage from Kagan’s brief:

As a free-floating test for First Amendment coverage, that sentence is startling and dangerous.

The solicitor general of the United States, folks: no First Amendment where its "societal costs" are "clearly" greater than the value of the speech protected. God, I miss Ted Olson.

If Kagan is indeed the nominee, that will be further circumstantial evidence that Obama recognizes no principles, only opportunities for compromise.

... And Kagan it is. Quelle surprise.

"Prove it"

Jon Chait slags dKos for accusing the U.S. Chamber of Commerce of funding a "job security" group:

I didn't think anybody could make me feel sympathetic for the U.S. Chamber of Commerce. Nobody, that is, except Markos Moulitsas.

Chait quotes the Chamber's blog:

Last Friday Markos Moulitsas, the Kos in DailyKos, put up a fundraising post titled "AR-Sen: Hell to Pay: Chamber-backed group runs racist ad against Bill Halter." After displaying the ad the bulk of the post starts with "The group running this ad is funded by the U.S. Chamber of Commerce..."

Ok. Let's stop there, because the group "Americans for Job Security" is neither backed nor funded by the U.S Chamber, nor did we provide any funding for political or issue ads to them ...

To which Kos retorted:

Prove it.

Looking at the website of "Americans for Job Security," one learns that

Our members are businesses, business leaders and entrepreneurs from around the country. AJS does not disclose or discuss its membership further than this. Too often politicians or the media define an organization or message not by the merits of the argument, but rather by the perception of the people associated with it. We would rather the people decide on merits instead of name-calling.

On the one hand, the Chamber is surely right that it can't prove a negative. On the other hand, the AJS isn't telling who supports its quest for "job security," though employees seem to be notably absent from an endeavor that one would think they might find attractive.

So I'm a little less inclined than Chait simply to accept the Chamber's word here.

The Brethren

You might think that ... in a case where a chancellor ordered a child's name changed to the father's over the mother's objection, without conducting a hearing as to whether the child's best interests were served ... the male members of the Mississippi Supreme Court might pay a little attention to the fact that their sole female colleague was thoroughly miffed on the subject.

But with the honorable exception of Justice Dickinson, you would be mistaken. Lamar, J., dissenting:

If, as this Court has held for generations, the “polestar” consideration in matters dealing with children is the best interest of the child, then I must begin this dissent by asking the question: Was the name change ordered by the chancellor in the best interest of the child, Presley Annsleigh Rice? We, of course, don’t know, because the chancellor was clearly under the erroneous impression that she was statutorily required to order the name change. * * *

The majority fails to provide much-needed guidance to the bench and
the bar as to appropriate considerations when faced with these disputes. Despite the
majority’s finding that “it is reasonable to conclude that those circumstances should be examined in light of the best interest of the child” (Maj. Op. ¶8), it later contradicts itself by concluding that:

[a]n on-the-record, best-interest determination before changing a child’s surname to that of the court-determined father in paternity cases is not required pursuant to Section 93-9-9(1) and would serve only to impede the process of “legitimization” of children born out of wedlock.

This is double-speak. Clearly, a best-interest analysis should govern the chancellor’s decision in these disputes and in all matters touching on the welfare of a child. * * *

The majority also finds (without citation to any authority) that the burden of proof in this case rests with the mother (the nonmoving party) to prove that the child’s name should not be changed. * * *

Without explicitly so finding, the majority seems to accept Merkich’s argument that
Section 93-9-9(1) creates a presumption that bearing the paternal surname is in the best interest of the child. In my opinion, no presumption exists in favor of either party and any such legislatively created presumption would raise serious Equal Protection concerns. Yet without finding any presumption exists, the majority inexplicably refuses to place the burden of proof on the party seeking relief from the court. * * *

I can envision that in many of those cases there may be very legitimate reasons why it would not be in a child’s best interest to have his or her surname changed. Our bench and bar deserve some clear guidance when faced with those situations, and unfortunately they are not getting it today. For the foregoing reasons, I dissent.

She did say "respectfully" in the first paragraph of the opinion, FWIW. [Corrected from earlier misreading.]

What a cockup, as it were. Let's hope for a motion for rehearing, and some time for the majority justices' wives to have a word with them.

... The quasi-omniscient Eugene Volokh picks up on the case, and agrees with Lamar that there's likely an Equal Protection issue, albeit one apparently not preserved by the mother on appeal.

Markets in everything, post-Rapture edition

Many people in the U.S.--perhaps 20 million to 40 million--believe there will be a Second Coming in their lifetimes, followed by the Rapture . In this event, they say, the righteous will be spirited away to a better place while the godless remain on Earth. But what will become of all the pets?

Bart Centre, 61, a retired retail executive in New Hampshire, says many people are troubled by this question, and he wants to help. He started a service called Eternal Earth-Bound Pets that promises to rescue and care for animals left behind by the saved.

* * * Todd Strandberg, who founded a biblical prophecy Web site called raptureready.com that draws 250,000 unique visitors a month, agrees that Fido and Mittens are doomed. "Pets don't have souls, so they'll remain on Earth. I don't see how they can be taken with you," he says. "A lot of persons are concerned about their pets, but I don't know if they should necessarily trust atheists to take care of them."

Would the cats mind, really?

I think this suggests another children's adaptation of the Left Behind series.

More here, via here, in the spirit of here.

Continuous state of emergency

A per curiam affirmance issued today by the Fifth Circuit has an odd little detail:

In July of 2008, Lockett was driving in his vehicle to a class at the Southern University of New Orleans (SUNO). At the same time, two military police officers, Jonathan Bieber and Brandt Arceneaux, were conducting patrol in the area as members of the National Guard Task Force assisting the New Orleans Police Department (NOPD) with law enforcement duties pursuant to an order issued by Governor Jindal after Hurricane Katrina. Bieber and Arceneaux observed Lockett’s vehicle and believed it to be traveling over the speed limit. Based on this observation, the defendants effectuated a traffic stop of Lockett.

Why were military personnel conducting traffic stops three years after Katrina?

Three ways of looking at a senator

(1) Senator John McCain, on the arrest of suspected Times Square almost-bomber Faisal Shahad:

Don't give this guy his Miranda rights until we find out what it's all about. That would be a serious mistake at least until we find out as much information as we have.

(2) Dana of EOTW, on a similar statement by the chronically egregious Rep. Peter King (R-NY):

Note to Congresscritters: reading someone his rights informs him of his rights. It does not grant them, for he already has the right to remain silent, &c. You’d almost suspect we’d written this down somewhere in a kind of founding document and refined it through the courts.

All refusing to mirandize a suspect does is foul up the eventual prosecution. You should have to know this if you’re a Representative.

(3) Barack Obama, on John McCain, after the 2008 White House meeting on the breaking financial crisis:

Maybe I shouldn't be president. But he definitely shouldn't be.

Word.

Kent State

Forty years ago today.

... Rick Perlstein, Nixonland, at 488-89:

When it was established that none of the four victims were guardsmen, citizens greeted each other by flashing four fingers in the air ("The score is four / And next time more"). * * *

It was the advance guard of a national mood. A Gallup poll found 58 percent blamed the Kent students for their own deaths. Only 11 percent blamed the Naitional Guard.

* * * Townspeople picketed memorial services. "The Kent State Four!" they chanted. "Should have studied more!"

Don't spend our thousands, spend *your* billions!

William Galston at TNR, working off some good reporting in the WSJ, connects the dots on the Bush-Cheney administration's connection to the BP oil spill:

... the oil well now spewing large quantities of crude oil into the Gulf of Mexico lacked a remote-control acoustic shutoff switch used by rigs in Norway and Brazil as the last line of defense against underwater spills. There’s a story behind that. As the Journal reports, after a spill in 2000, the MMS issued a safety notice saying that such a back-up device is “an essential component of a deepwater drilling system.” The industry pushed back in 2001, citing alleged doubts about the capacity of this type of system to provide a reliable emergency backup. By 2003, government regulators decided that the matter needed more study after commissioning a report that offered another, more honest reason: “acoustic systems are not recommended because they tend to be very costly.” I guess that depends on what they’re compared to. The system costs about $500,000 per rig. BP is spending at least $5 million per day battling the spill, the well destroyed by the explosion is valued at $560 million, and estimated damages to fishing, tourism, and the environment already run into the billions.

There’s something else we know, something that suggests an explanation for this sequence of events. After the Bush administration took office, the MMS became a cesspool of corruption and conflicts of interest. In September 2008, Earl Devaney, Interior’s Inspector General, delivered a report to Secretary Dirk Kempthorne that has to be read to be believed. One section, headlined “A Culture of Ethical Failure,” documented the belief among numerous MMS staff that they were “exempt from the rules that govern all other employees of the Federal Government.” They adopted a “private sector approach to essentially everything they did.” This included “opting themselves out of the Ethics in Government Act.” On at least 135 occasions, they accepted gifts and gratuities from oil and gas companies with whom they worked. One of the employees even had a lucrative consulting arrangement with a firm doing business with the government. And in a laconic sentence that speaks volumes, the IG reported: “When confronted by our investigators, none of the employees involved displayed remorse.”

So here’s my question: what is responsible for MMS’s change of heart between 2000 and 2003 on the crucial issue of requiring a remote control switch for offshore rigs?

We don't know the answer yet, but the odds that it rhymes with "rainy" would appear to be pretty good.

The notion that half a million dollars per rig for such a system, could be rejected solely on cost (if that's what happened), is as mindboggling as Galston suggests. Moreover, given the taxpayers' ultimate liability in the event of a disaster, there is no plausible theory of democratic government under which such a consideration could've controlled.

This just in

Breaking:

The Vatican's decision to assume leadership of the scandal-plagued Legionaries of Christ won acceptance Sunday from the order itself and praise from those who abandoned the conservative movement now discredited by revelations that its founder sexually abused seminarians and fathered at least one child.

IOW, a Catholic organization revealed to have tolerated and concealed the sexual molestation of children, has now been taken over by ... a Catholic organization revealed to have tolerated and concealed the sexual molestation of children.

Nice work on that organizational chart, guys!

Questions about the Sazerac

TBA notes that Wikipedia prescribes a rather underpowered Sazerac, with only a shot of rye rather than two ounces.

However, our experiments suggest that the original cognac, and even mere brandy, are superior to the rye whiskey (which we believe was a mere cost-saving measure). Two ounces of cognac/brandy, of course.

But we have two questions:

(1) How the hell does one get a sugar cube to melt in brandy, or cognac, or whiskey? We have given up and turned to powdered sugar (and even *that* doesn't melt 100%).

(2) Why the old-fashioned glass? We prefer a chilled martini glass.

Edna Chapter 11 Millay

The namesake hospital of one of my dad's favorite poets is closing its doors:

Over the last few weeks and months, as St. Vincent’s Hospital Manhattan teetered into bankruptcy, many of its 3,500 employees were laid off. But about 1,500 of them returned to the red brick hospital building on West 12th Street on Friday for one last time, to say goodbye. * * *

The hospital officially shut its doors at 8 a.m. Friday when it stopped taking even walk-in emergency room patients. As if to make the point crystal clear, the emergency room entrance was boarded up, the bare plywood covered by a poster that looked like a tombstone printed with the hospital’s name and the years of its birth and death: 1849-2010.

The last patients left in the hospital complex, built for more than 700, were 18 people in the Pax Christi Hospice, who have been allowed to remain.

“It’s a sisterhood, it’s a family, it’s a great place to work, for many of us,” Mary McGinn, a nurse and vice president of patient flow, said after the Mass.

She broke down and cried as she described how she had come to St. Vincent’s to work as a 21-year-old and stayed there to witness the crime and drug casualties of the 1970s, the mystifying and terrifying AIDS plague of the ’80s and ’90s and the terrorist attack of 2001.

Killed by gentrification: the affluent types who can afford to live in the Village now, go elsewhere for hospital care.

... The particular St. Vincent it was named after is St. Vincent de Paul, a French priest of the 17th century who, one suspects, would have found little to appreciate in Millay's work.