Barbarism descends; a new dark age begins

Oxford University renounces the Oxford comma.

USA! USA!

Two and a half years after assuming office, President Obama has finally gotten around to nominating a U.S. Attorney for the S.D. Miss. -- Greg Davis, of Davis Goss & Williams. I hope John Dowdy didn't have the pictures hung yet.

... Providing a valuable Google hit for GOP opposition research on Davis's confirmation, Philip Thomas blogs the nomination as "Jackson Personal Injury Attorney Greg Davis Nominated for Southern District U.S. Attorney." Whose side ya on, Philip? ;)

Sixth Circuit upholds "Obamacare"

Reports ThinkProgress, tho it sounds like it was a split op. No link to the op yet.

... How Appealing has it. The dissenter as to the individual mandate is a senior district judge ... I don't know how they assign these things, but it seems an important case for a district judge to play appellate court on.

More when I get a chance to read it, or read about it!

... A good place to read about it is the ACA Litigation Blog, whose first post on the decision is followed by a handy summary.

... One thing the ACA litigation has highlighted is that some Republican district-court judges don't understand their jobs. Judge Graham's dissent today joins the trend.

In Lopez the Supreme Court recognized that the direction of its existing Commerce Clause jurisprudence threatened the principle of a federal government of defined and limited powers, and it began the process of developing a new jurisprudence more compatible with the Constitution. That process was interrupted by Raich, where a majority of the Court was unwilling to expressly overrule a landmark Commerce Clause case in Wickard, which had been the law of the land for over sixty years.

Notwithstanding Raich, I believe the Court remains committed to the path laid down by Chief Justice Rehnquist and Justices O’Connor, Scalia, Kennedy, and Thomas to establish a framework of meaningful limitations on congressional power under the Commerce Clause. The current case is an opportunity to prove it so.

Isn't that a ... remarkable thing for a lower-court judge to write? Judge Sutton, who seems to remember his job description, may've had Graham's dissent in mind when he wrote this:

The Supreme Court can decide that the legend of Wickard has outstripped the facts of Wickard--that a farmer’s production only of more than 200 bushels of wheat a year substantially affected interstate commerce. See Wickard, 317 U.S. at 114. A court of appeals cannot. The Supreme Court can decide that Raich was a case only about the fungibility of marijuana, see Raich, 545 U.S. at 18–19, not a decision that makes broader and more extravagant assertions of legislative power more impervious to challenge. A court of appeals cannot.

Judicial humor

It occurs to TBA that the # 1 audience for lawyer jokes is probably ... judges.

The Hon. Frank Mackenzie quips at the Hon. Larry Primeaux's blog:

If you want to hide something from a lawyer, put it in their Rule Book.

... And the best part of the rulebook to hide something in, I've decided, is the forms. At least once a week, it seems, I'm hit with a group e-mail from someone wanting a form for interpleader or something like that.

To which I have to gently say, "you mean, besides the one in the back of the MRCP? The forms that are GUARANTEED to be legally adequate by operation of Rule 84?"

My favorites are the complaint forms. No recitation of parties, jurisdiction, or venue; no "count one, two, etc."; just "(1) Plaintiff did ____ unlawfully or without right to Defendant, (2) Defendant was injured, (3) Defendant prays for damages."

Playing the numbers, SCOTUS edition

SCOTUS nerds will rejoice in the SCOTUSblog StatPack for the 2010 term (via). Which justices vote together -- or don't? Who wrote the most opinions? Who asked 0.0% of the questions at oral argument? (Okay, you knew the answer to that one already.)

Stats for the various circuit courts reviewed are also included. The 9th Cir. got reversed in 79% of its cert grants, compared to 80% for the 5th Cir. That comparison however falters when you see that only 5 cases from the Fifth were reviewed ... vs. 26 from the Ninth. (D.C. and 10th had *no* cert grants, which merits a gold star or something. Meanwhile, 100% of state cases accepted were reversed.)

Much more, definitely worth a browse.

Scalia on video games

The Free Speech Clause exists principally to protect discourse on public matters, but we have long recognized that it is difficult to distinguish politics from entertainment, and dangerous to try. “Everyone is familiar with instances of propaganda through fiction. What is one man’s amusement, teaches another’s doctrine.” Winters v. New York, 333 U. S. 507, 510 (1948). Like the protected books, plays, and movies that preceded them, video games communicate ideas - and even social messages — through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world). That suffices to confer First Amendment protection.

-- Brown v. Entertainment Merchants Ass'n (Scalia, J.).

Scalia notes that minors' First Amendment rights have been recognized since 1975, and tweaks Thomas:

JUSTICE THOMAS ignores the holding of Erznoznik, and denies that persons under 18 have any constitutional right to speak or be spoken to without their parents’ consent. He cites no case, state or federal, supporting this view, and to our knowledge there is none.

And Alito is the target of a couple of footnotes:

JUSTICE ALITO accuses us of pronouncing that playing violent video games “is not different in ‘kind’ ” from reading violent literature. Post, at 2. Well of course it is different in kind, but not in a way that causes the provision and viewing of violent video games, unlike the provision and reading of books, not to be expressive activity and hence not to enjoy First Amendment protection. Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat. But these cultural and intellectual differences are not constitutional ones. Crudely violent video games, tawdry TV shows, and cheap novels and magazines are no less forms of speech than The Divine Comedy, and restrictions upon them must survive strict scrutiny ....

And not just in footnotes:

JUSTICE ALITO has done considerable independent research to identify, see post, at 14–15, nn. 13–18, video games in which “the violence is astounding,” post, at 14. “Victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces. . . . Blood gushes, splatters, and pools.” Ibid. JUSTICE ALITO recounts all these disgusting video games in order to disgust us — but disgust is not a valid basis for restricting expression. And the same is true of JUSTICE ALITO’s description, post, at 14–15, of those video games he has discovered that have a racial or ethnic motive for their violence — “‘ethnic cleansing’ [of] . . . African Americans, Latinos, or Jews.” To what end does he relate this? Does it somehow increase the “aggressiveness” that California wishes to suppress? Who knows? But it does arouse the reader’s ire, and the reader’s desire to put an end to this horrible message. Thus, ironically, JUSTICE ALITO’s argument highlights the precise danger posed by the California Act: that the ideas expressed by speech — whether it be violence, or gore, or racism — and not its objective effects, may be the real reason for governmental proscription.

Breyer (dissenting) also spent a lot of time studying video games, as Scalia notes:

JUSTICE BREYER would hold that California has satisfied strict scrutiny based upon his own research into the issue of the harmfulness of violent video games. See post, at 20–35 (Appendixes to dissenting opinion) (listing competing academic articles discussing the harmfulness vel non of violent video games). The vast preponderance of this research is outside the record — and in any event we do not see how it could lead to JUSTICE BREYER’s conclusion, since he admits he cannot say whether the studies on his side are right or wrong.

Maybe the best footnote is this:

One study, for example, found that children who had just finished playing violent video games were more likely to fill in the blank letter in “explo_e” with a “d” (so that it reads “explode”) than with an “r” (“explore”). App. 496, 506 (internal quotation marks omitted). The prevention of this phenomenon, which might have been anticipated with common sense, is not a compelling state interest.

... Via a Volokh commenter, we see that Thomas has written some of the craziest stuff ever to appear in a SCOTUS opinion: apparently, what laws a state can pass to regulate children, is a question to be decided by how the Puritans raised their kids.

Part of the father’s absolute power was the right and duty “to fill his children’s minds with knowledge and . . . make them apply their knowledge in right action.” E. Morgan, The Puritan Family 97 (rev. ed. 1966) (hereinafter Morgan). Puritans thought children were “innately sinful and that parents’ primary task was to suppress their children’s natural depravity.” S. Mintz & S. Kellogg, Domestic Revolutions 2 (1988) (hereinafter Mintz & Kellogg); see also B. Wadsworth, The Well-Ordered Family 55(1712) (“Children should not be left to themselves . . . to do as they please; . . . not being fit to govern themselves”); C. Mather, A Family Well-Ordered 38 (1699).

Yes, folks, the First Amendment is best construed by reference to Cotton Mather.

Miscarriage of justice?

Via LGM, here's the Guardian on a Mississippi prosecution that evidently has attracted some worldwide attention:

Rennie Gibbs is accused of murder, but the crime she is alleged to have committed does not sound like an ordinary killing. Yet she faces life in prison in Mississippi over the death of her unborn child.

Gibbs became pregnant aged 15, but lost the baby in December 2006 in a stillbirth when she was 36 weeks into the pregnancy. When prosecutors discovered that she had a cocaine habit – though there is no evidence that drug abuse had anything to do with the baby's death – they charged her with the "depraved-heart murder" of her child, which carries a mandatory life sentence. * * *

In Gibbs' case defence lawyers have argued before Mississippi's highest court that her prosecution makes no sense. Under Mississippi law it is a crime for any person except the mother to try to cause an abortion.

"If it's not a crime for a mother to intentionally end her pregnancy, how can it be a crime for her to do it unintentionally, whether by taking drugs or smoking or whatever it is," Robert McDuff, a civil rights lawyer asked the state supreme court.

Quelle horreur that a fifteen-year-old girl didn't have a baby. It appears from the MSSC docket that the district attorney was the perennially loathsome Forrest Allgood.

Her case was argued May 25 (on interlocutory appeal), so we're just waiting to see what the Court does. The C-L ran a short AP item at the time.

(And yeah, I totally stole that post title from the Guardian.)

"If we can make it there, we'll make it everywhere"?

Gay marriage cleared the NY state senate, 33-29, having easily passed in the state house, and having been pushed through the senate by Gov. Andrew Cuomo -- and despite loony comparisons to China and North Korea from Archbishop Timothy Dolan. Yay, gays!

Obama CIA nominee calls for use of torture

Just when you thought this administration really couldn't get any worse:

Gen. David H. Petraeus, President Obama's choice to be the next director of the Central Intelligence Agency, told senators Thursday that the U.S. should consider a policy for using special interrogation techniques when a detainee is withholding information that is immediately needed to save lives.

In the vast majority of cases, Petraeus said, the "humane" questioning standards mandated by the U.S. Army Field Manual are sufficient to persuade detainees to talk. But though he did not use the word torture, Petraeus said "there should be discussion … by policymakers and by Congress" about something "more than the normal techniques."

Petraeus, speaking at his confirmation hearing before the Senate Intelligence Committee, described an example of a detainee who knows how to disarm a nuclear device set to explode under the Empire State Building. Congress may want to give the president the option of taking extraordinary measures to extract that information, he said.

So, not only do we have a general officer of the U.S. Army, nominated to head the CIA, calling for the use of "special" techniques -- and justifying them with the single worst example in the history of torture rationalization.

Via Sullyblog, who rounds up some reaction. Conor Friedersdorf hits the nail on the head: consider, he says,

the anthrax attacks, the American scenario that has most resembled a ticking time bomb. Someone was sending a deadly biological weapon to folks around the country. People were panicky. The FBI frantically followed every lead that they could. Soon enough, law enforcement decided that they had their man: a scientist formerly employed by the army. What if they would've used enhanced interrogation techniques to ensure more letters weren't en route to kill someone? Oh yes. In that scenario, they would've wound up torturing an innocent man.

... UPDATE (7/1): Via OTB, Spence Ackerman interviews a CIA interrogator who's written a book about his work at a "black site" in the former USSR:

DR: David Petraeus, the incoming CIA director, suggested to Congress that there might be circumstances where a return to “enhanced interrogation” is appropriate. What would you say to him?

GC: That there is almost no conceivable circumstance in which the enhanced interrogation practices are acceptable or work. This belief is a red herring, wrong, and undoes us a bit. We are better than that. Enhanced interrogation does not work, and is wrong. End of story.

How many interrogations has Petraeus performed?

Our Lady of Alderaan

More.

Also: "Previous Pulitzer Winners: 'Feel So Hollow Knowing There Are Far More Deserving Institutions'"

Those who don't visit The Onion frequently should be sure not to miss their Pulitzer Prize campaign.

Hard to single out one item, but this is sort of a micro-Onion:

THE WORLD—Calling it devastating, tragic, complex, heartrending, heartwarming, catastrophic, courageous, and shameful, sources confirmed Sunday that massive wildfires, geopolitical crises, AIDS, human rights violations, deadly shootings, Africa, tourists taken hostage, ethical and moral issues, child labor, and drug wars.

While the Catholic Church, nuclear weapons, deadly Ebola outbreak, failing U.S. schools, the homeless, North Korea, and the resignation of high-level officials, reports indicate widespread corruption, a major environmental disaster, the crumbling housing market, blizzards, Indonesia's rapidly growing economy, fraud, and the plight of the elderly.

Famine, sources later confirmed.

"We are in the midst of an unprecedented crisis," an extremely high-ranking figure said in an exclusive interview, adding that tensions remain high while patience is running low. "I'm afraid the worst has yet to come. The aftermath could be even more devastating."

And there's more.

The TBA review of fine arts

... Mrs. TBA adores Woody Allen, so we went to see Midnight in Paris, perhaps the first movie I've seen people actually get up and walk out of. It was bad, but enjoyably so -- don't want to spoil it for anyone as unfamiliar with the plot as I was going in, but the actor playing a certain pugnacious writer was an absolute hoot (always talking in his narrative voice), and Adrien Brody's cameo was almost as good. That's one of the good things about being Woody Allen: your talent may have declined, but you call up great performers and ask 'em, "hey, wanna be in Woody Allen's next movie?" and you get a lot of acceptances, I suspect.

... TBA was unaware of the existence of Joss Stone until we noted the failed plot of some sword-toting men to kidnap or kill her. Yes, that's what the lack of a Second Amendment has reduced UK thugs to: swords. Anyway, on a whim, we picked up Mind, Body and Soul, and damn if that little white British girl hasn't got a voice on her. Now TBA is embarrassed that our only soul album is by a white person, and wondering who's good in contemporary soul/R&B.

... Don't you love turning out to've had a good excuse not to read a book yet? The English translation of Lem's Solaris, it turns out, was rendered from the French, not the original Polish. But now we have a direct, and one hopes improved, translation. THAT is what I was waiting for! (Via Crispin, who looks forward to buying a copy that "won't have George Clooney's face all over it.")

Driving while, ... er ... well here, you'd better read the whole thing

I'm with Chait: this is actually some pretty impressive driving, at least right up to the collision.

Paragraph 10. “At the time of the collision, Defendant was going 85 miles per hour.”

Paragraph 12. “At the time of the collision, Defendant was having sex with a female.”

Paragraph 13. “At the time of the collision, Defendant was driving admittedly drunk.”

Paragraph 14. “At the time of the accident, Defendant was partially or totally in the backseat of the car.”

And as the source asks, what about paragraph 11? Must've been something REALLY bad. But I dunno. If you've pleaded the defendant into the backseat, your claim that he was driving begins to look a bit iffy.

Whatever irks him, local merchant edition

(1) Lemuria, what Jackson MS has for an independent bookstore, answered the phone and said yes, they had a book I wanted. I came in, noted the $13.95 price, and had them ring it up. "That'll be seventeen-something." Eh? I pointed out the price printed on the book. "Oh, well, it's gone up since then."

Excuse me? (1) If you have your merchandise marked X, you sell it at X. (2) That was the practice when I worked in bookstores too, and it has a sound basis: the store pays roughly 50% of list price for the book, so in the case of this $13.95 book that had evidently been on the shelf a few years, Lemuria paid half of $14. So they're not losing anything by selling it at the cover price.

I told them I didn't want the book (hell, I'll get it online). I think this is the first time I've ever been tempted to figure out how to complain to the BBB.

(2) There is of course no excuse for going to P.F. Chang's, but if that's where the teenager wants to go, then I at least need a drink. Ordered a Manhattan, and was eventually presented with what appeared to be a tall glass of iced tea. "We were out of the short glasses." (1) So you load my drink up with ice instead? (2) ICE??? Why is there ice in my Manhattan? Wikipedia may claim that it's "often" served on the rocks, but they let anybody edit that shit. I've never been brought such a horror anywhere else I've ordered a Manhattan; the waiter at least should ask.

I'm happy to see that Wondrich scorns even to acknowledge the possibility of "on the rocks"; his Manhattan is served in a martini glass, as befits a drink which is sort of an anti-martini.

The real problem there of course is waiters, and even bartenders, who don't drink cocktails and don't know anything about them. Ultimately a management problem. I drank water rather than attempt to teach the staff.

We now return to our regularly scheduled bitching.

(Wondrich tip: at a bar without rye, have 'em use Canadian Club instead, as it's high on rye. Did not know that.)

Conan O'Brien on Nietzsche

The perfect TBA blog post? O'Brien addresses graduating Dartmouth students:

Nietzsche famously said "Whatever doesn't kill you makes you stronger." But what he failed to stress is that it almost kills you. Disappointment stings and, for driven, successful people like yourselves it is disorienting. What Nietzsche should have said is "Whatever doesn't kill you, makes you watch a lot of Cartoon Network and drink mid-price Chardonnay at 11 in the morning."

Via.

Get ready for the blowout at Runnymeade in 2015!

Happy Magna Carta Day!

The location is not, as I immediately feared after typing the post header, an urban slum:



... Party-pooper C.J. Colucci, at the Volokh thread: "Julian or Gregorian dating?"

"But his face is the face of a man who has delivered 4,000 babies and still not seen it all."

Michael Scherer's account of the first GOP debate truly is a thing of beauty:

As the audience tries to calculate whether Romney’s grandkid-to-daughter-in-law ratio trumps Bachmann’s biological-to-foster-child ratio, Texas Representative Ron Paul drops an atom bomb: “I delivered babies for a living and delivered 4,000 babies.” How can anyone compete with this? Game. Set. Match. The debate might as well end right here.

H/t.

... Romney committed a Kinsley gaffe:

It’s time for us to bring our troops home as soon as we possibly can, consistent with the word that comes to our generals that we can hand the country over to the Taliban military in a way that they’re able to defend themselves.

Indeed.

Damage caps in Mississippi

Randy Wallace watched the oral argument today in Sears v. Learmonth, a 5th Circuit case in which the constitutionality (1890-wise) of Mississipp's tort damages cap ($1M in noneconomic, "pain & suffering" damages) has been certified to the Miss. Supreme Court. No clear tell from the bench, unless anyone was uncertain as to how Justice Kitchens will rule.

Philip Thomas has followed the case, but no report yet on the argument at his blog.

I think caps are an excessively blunt instrument for reform; the $500K med-mal cap is especially hard to justify, as few people can mess you up like a doctor can. But that's a policy question; I am a bit skeptical whether the caps are *unconstitutional*.

... I have a bizarre hypo on the constitutional issue at NMC's blog.

Leaving aside the Eighth Amendment and its Miss. counterpart, would a tort *plaintiff* be denied any right if the Legislature decreed that noneconomic damages were to be compensated by public whipping, not by cash?

Really, I don't know where I get these ideas. Now, where did I put my copy of Juliette?

... Philip has a good post up on what he saw at the argument. I continue to wonder why corporations think it's a good idea to send someone from NYC or Chicago or L.A. to argue in appellate court in Mississippi. Then again, the plaintiff had some guy from D.C. carrying the bulk of her argument, so go figure. (Randy Wallace comments at Philip's post that the yankees were indeed prone to try to talk over the justices. Not how we do it in the Southland, gentlemen.)

Words have their common meanings, except when otherwise

I do not find that anyone on the internet has mocked Miss. Code Ann. 1-3-65:

All words and phrases contained in the statutes are used according to their common and ordinary acceptation and meaning; but technical words and phrases according to their technical meaning.

At which point one must wish for some touchstone for distinguishing "technical" terms from the other kind. I guess we are to take "technical" in its, er, common and ordinary acceptation?

(This inspired by a VC thread on the SCOTUS's increasing resort to dictionaries.)

The bookshelf

Somehow this hasn't been updated since last August. Here's some of what I've read or am "reading" in some sense or other:

David Kynaston, Austerity Britain: A social history of the UK from 1945-51, giving the bottom-up perspective on the postwar Labour years. Quite good, though probably richer for a British reader who knows more about some of the pop culture. I've already begun the 1951-57 volume, Family Britain. Note: neither paperback available in U.S., but affordably orderable via abebooks.com and the like.

Diarmuid MacCulloch, Christianity: The First Three Thousand Years: Despite his inability to count, MacCulloch has written what is probably now the best one-volume survey, with a bit less history-of-theology than many competitors and careful attention to the margins -- the non-Chalcedonians, the Orthodox, the mission churches. By no means impossible to put down, but charming and witty, from the POV of a respectful but unembarrassed nonbeliever.

Philip Ziegler, Melbourne: A readable biography of an interesting but not terribly important Prime Minister, whose do-nothing style of conservatism bears little resemblance to the modern variety. His son Augustus tragically had a condition that, to this biased reader at least, sounds rather like autism.

Jasper Ridley, Lord Palmerston: More entertaining than the Ziegler because, hey, it's Palmerston. The bad boy of the incipient, then newborn, Liberal Party, essential to grasping his times; we quoted Ridley on Mme de Lieven.

Dominic Lieven, Russia Against Napoleon: For years, accounts of the Eastern Front in WW2 were heavily based on German sources, partly because of Soviet restrictions, partly because so many more Western historians read German than Russian. That has changed in the past 30 years or so. Lieven gives a similar treatment to the Russian war against France, though his subtitle's claim to give the true account of the campaigns described in War and Peace is a bit misleading - Lieven gives short shrift to the 1805 campaign that ended at Austerlitz, but covers the war from 1812 to the fall of Napoleon, thus going well beyond Tolstoy. Not a gripping account, but of great interest for its perspective and its corrections of what we think we know from reading the novel.

Robert Blake, Disraeli: The classic biography. Look no further.

Winston Churchill, Marlborough: His Life and Times: Very much worth reading though I'm only halfway through. It says a great deal for Churchill's talent as a writer that he can cover the most minute details and keep the reader's interest. Still a little weirded out by Leo Strauss's eulogistic plug: "the greatest historical work written in our century," which of course the publisher, U of Chicago, puts on the cover. (Note to U of Chicago P: why do you get the year of Marlborough's birth wrong on the back cover?)

... UPDATE: Harry Jaffa:

In 1946, in a letter to the philosopher Karl Löwith, Leo Strauss mentioned how difficult it had been for him to understand Aristotle’s account of magnanimity, greatness of soul, in Book 4 of the “Ethics.” The difficulty was resolved when he came to realize that Churchill was a perfect example of that virtue.

Barnes also relates that after F.E. Birkenhead loaned Churchill a translation of the Ethics, it was returned a few weeks later with the polite comment that it was all very interesting, but Churchill had already thought most of it out for himself. (Given that Aristotle was essentially giving coherent form to the aristocratic ethos, Churchill's remark is not so arrogant as it sounds.)

Alfred Bester, The Stars My Destination: Finally got around to reading this; despite the dated references to extinct corporations, it reads well and quickly as a pure adventure story. The ending is a bit silly. Not I think as essential as it's made out to be, but entertaining.

Is your law school violating the Geneva Conventions?

Possibly so. At the very least, your country, however, by failing to promote the education of lawyers in the laws of war, probably is:

The law of war should clearly form an integral part of courses on international law. However, this is rarely the case in law faculties, although international law should be a compulsory subject for all lawyers. Otherwise, how can judges or legal advisers to states deal with disputes in due course if they have no academic knowledge of this vital subject?

Yet, it is actually a breach of international law not to teach and dispense the knowledge of the law of war. There is an obligation under all the 1949 Geneva Conventions to teach the law of war so that the “entire population” is aware of the rules. This duty applies in times of peace as well as war and is not activated, like some other provisions in the Conventions, only at the outbreak of armed conflict. States have blatantly ignored this obligation to promote the knowledge of the rules of the Geneva Conventions, for example, by not ensuring that the law of war is taught in universities and often not even to members of the armed forces.

Thus Ingrid Detter, certainly no touchy-feely advocate. Her citations to the GC texts are at page 1051, note 2.

One European lawyer, at least, says that European law faculties are doing a better job than the U.S. in this respect:

In the European collective memory, war is as much a scourge on civilians as on combatants. For Americans, war happens elsewhere to US combatants, not to US civilians, the last major war fought on US soil having been a century and a half ago. In Europe, human rights and "humanitarian law" (as the laws of armed conflict are known there) are part of a broader school curriculum, as the Geneva Conventions require. In the US, the "laws of war" (as they are known there) are more exclusively the province of the military and you are lucky to find it taught in law school, let alone high school.

Teaching the laws of war in high school -- would that decrease the percentage of Americans polled who think that torture is acceptable? Just imagine the wave of outrage from the GOP if Obama or the Dems seriously advanced that the U.S. should fulfill its treaty obligations.

Kafka R. Civ. P.

Via Emptywheel, the latest guidelines for Gitmo inmates' lawyers on the use of the Detainee Assessment Briefs already published by WikiLeaks:

While you may access such material from your non-U.S.-government-issued personal and work computers, you are not permitted to download, save, print, disseminate, or otherwise reproduce, maintain, or transport potentially classified information.

It's difficult to conclude that simply taking notes isn't prohibited. And how does one identify "potentially" classified information?

And given that all this has been published anyway, what is the point of this restriction?

Don't deport woman where she might be tortured, says torture memos' author

Via Volokh, we see Jay Bybee's voting to reverse the deportation of a Jordanian woman who feared death by "honor killing" if sent to Jordan.

No doubt the existence of the Convention Against Torture gave quite a start to Judge Bybee. Who knew?

“Acquiescence of a public official requires that the public official, prior to the
activity constituting torture, have awareness of such activity and thereafter breach
his or her legal responsibility to intervene to prevent such activity.” -- 8 C.F.R. 1208.18(a)(1).

“It is enough that public officials could have inferred the alleged torture was taking place, remained willfully blind to it, or simply stood by because
of their inability or unwillingness to oppose it." -- Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1060 (9th Cir. 2006)

"Exceeding Authorized Use of a Computer"? Hell, you're probably doing that right now.

Via Emptywheel, we learn that Thomas Drake, the ex-NSA employee persecuted by DOJ, has agreed to a misdemeanor plea bargain. (Old news, this was yesterday, but I was busier yesterday.) Very good to hear. Marcy analyzes the plea and the government's case here.

Rinderpest R.I.P.

Rinderpest joins smallpox in the elite club of eradicated diseases. (H/t.)

According to John Reader, rinderpest killed 90-95% of all the cattle in Africa over the period 1889-1905 or so: "described as the greatest natural calamity ever to befall the African continent." One observer thought 2/3 of the Masai people died as a result, and similar famine struck many other African peoples.

Polio and Guinea worm disease are the next diseases likely to be wiped out. There are still 1000 to 1600 polio cases a year, mostly in Nigeria and south-central Asia.

Whom the gods wish to destroy, they first run for President

So Herman Cain, Rick Santorum, and Michelle Bachmann each discloses that he or she is running for president at God's behest.

The relevant Scripture is 2 Chron. 18:

"I saw the LORD sitting on his throne with all the multitudes of heaven standing on his right and on his left. And the LORD said, ‘Who will entice Ahab king of Israel into attacking Ramoth Gilead and going to his death there?’

“One suggested this, and another that. Finally, a spirit came forward, stood before the LORD and said, ‘I will entice him.’

“‘By what means?’ the LORD asked.

“‘I will go and be a deceiving spirit in the mouths of all his prophets,’ he said.

“‘You will succeed in enticing him,’ said the LORD. ‘Go and do it.’"

(It occurs to me that Descartes should've recalled this passage when he was ruling out the possibility that our consciousness is the work of a deceiving spirit.)

The NY Mag reporter was unable to get direct confirmation:

God could not be reached for comment by press time, because, a spokesman says, he was helping a baseball player hit a game-winning home run, giving an old churchgoing lady the winning lottery numbers, making sure that a plane made it through the turbulence okay, helping someone survive a heart attack, and also, just for fun, creating a new animal that's like a cross between a leopard and an alligator.

"Why, no, I've never had a zero bank balance -- why do you ask?"

Part of the village-commons aspect of the internet is that you find conservative types who suddenly startle you by having no clue whatsoever how the world works for those struggling between paychecks:

It makes no sense to declare bankruptcy simply to get out of paying medical bills; just do not pay them and move along. If you have no money the medical debt is not collectible; and if you do have money a bankruptcy judge would require part of it be used to pay the debt.

Belle Waring risks her life to bring you the TRUTH

Respect her courage and her (apparent) sacrifice. Click the link. Discover what OPPEC doesn't want you to know!

Littlejohn to be publicly reprimanded, fined $100

The Mississippi judge who, back in October, jailed a lawyer for 5 hours because the lawyer wouldn't recite the Pledge of Allegiance in open court has been ordered to submit to a public reprimand in his courtroom and to pay a fine. Pretty swift work as these things go.

Just let everyone buy insurance! Problem solved!

It's unwise to rely on media accounts of legal issues, but this report on the 11th Circuit oral arguments on the PPACA does not sound promising:

Hull also seemed skeptical about the government's claim that the mandate was crucial to covering the 50 million or so uninsured Americans. She said the rolls of the uninsured could be pared significantly through other parts of the package, including expanded Medicare discounts for some seniors and a change that makes it easier for those with pre-existing medical conditions to get coverage. Dubina nodded as she spoke.

Uh, yeah, and how are you going to get people to buy insurance if they can wait until they're sick? If you don't understand how the mandate and the preexisting-condition reform are tied together, then what do you understand about the issue, really?

An example of why judges should not supersede Congress as policy-makers.

The case for Obama's incompetence

Various folks have noted Christy Romer's remarks about the White House's economic policy:

Like the Federal Reserve, the Administration and Congress should have done more in the fall of 2009 and early 2010 to aid the recovery. I remember that fall of 2009 as a very frustrating one. It was very clear to me that the economy was still struggling, but the will to do more to help it had died.

There was a definite split among the economics team about whether we should push for more fiscal stimulus, or switch our focus to the deficit.

This was "awesome folly," as Krugman correctly states.

But let's look at the politics, not the economics. What was more likely to keep Obama from re-election: high unemployment, or a high deficit? Yes, that's a rhetorical question.

We are pushing 10% unemployment ... still. This does not seem to concern very many people inside the Beltway, except to the extent it encourages the Republicans. Has Obama decided he doesn't want to keep his current job?

... Re: deficit reduction, the 10th anniversary of the Bush tax cuts merits notice.

Big debt: Between 2001 and 2010, the Bush tax cuts added $2.6 trillion to the public debt, 50 percent of the total debt accrued during that time. Over the past 10 years, the country has spent more than $400 billion just servicing the debt created by the cuts.

Supply-side failure: Far from paying for themselves with increased economic activity as promised, the tax cuts have depleted the public treasury. Tax collections have plunged to their lowest share of the economy in 60 years.

No jobs: Between 2002 and 2007, employment increased by less than 1 percent when the economy was supposed to be expanding. Employment growth barely kept pace with population growth. Between the end of 2001, when the country was in a recession, and the peak of the real estate bubble, er, economic expansion in 2007, the US economy performed worse than at any time since the end of World War II.

Rich people benefit: The best-known result of the Bush tax cuts is that virtually all the benefits were conferred upon people who didn’t need them at all and who didn’t use the money to, say, create more jobs or pay their workers better. Median weekly earnings fell more than 2 percent between 2001 and 2007. Meanwhile, people making over $3 million a year, who account for just 0.1 percent of taxpayers, got an average tax cut of $520,000, more than 450 times what the average middle-income family received.

Via. And that, remember, is what was so important to the GOP that they were willing to cut a deal with Obama on the budget.

A dry one, that Mr. Attlee

When asked whether he was an agnostic, Attlee replied "I don't know."

-- Wikipedia

Mr. Midshipman Cox's Horrible, No Good, Very Bad Day

Jim McDonald at Making Light has a serious post up on the duel of U.S.S. Chesapeake vs. H.M.S. Shannon, riffing off Heinlein's use of an example from it in Starship Troopers. Not to be missed, by those who don't like to miss such things.

The Heinlein ref, which turns out to be inaccurate in a small but important detail, is the best teaser.

“When I suggested that your platoon leader might be killed, I was by no means citing the ultimate in military disaster. Mr. Hassan! What is the largest number of command levels ever knocked out in a single battle?” * * *

"... I am thinking of a case in which four levels were wiped out in six minutes--as if a platoon leader were to blink his eyes and find himself commanding a brigade. Any of you heard of it?”

Dead silence.

“Very well. It was one of those bush wars that flared up on the edges of the Napoleonic wars. This young officer was the most junior in a naval vessel--wet navy, of course--wind-powered, in fact. This youngster was about the age of most of your class and was not commissioned. He carried the title of temporary third lieutenant’--note that this is the title you are about to carry. He had no combat experience; there were four officers in the chain of command above him. When the battle started his commanding officer was wounded. The kid picked him up and carried him out of the line of fire. That’s all--make pickup on a comrade. But he did it without being ordered to leave his post. The other officers all bought it while he was doing this and he was tried for `deserting his post of duty as commanding officer in the presence of the enemy.’ Convicted. Cashiered.”

"I think God understands, and we must as well."

If you've expended your NYT clicks for the month, try the new parody site. For instance.

Tony Perkins, head of the Washington-based “Focus on the Family” conservative lobbying organization, said today in a statement that while male homosexuality is still an affront to God and a threat to Western Civilization, female homosexuality may be acceptable in some contexts, as long as the women in question were young, physically attractive, and wearing high heeled shoes.

Of course, he finds Biblical support in Leviticus.

I'm sure he just doesn't grasp the Iranian threat

The NYT reports that Israel's ex-Mossad chief is very worried about his country's politicians in charge:

The man who ran Israel’s Mossad spy agency until January contends that Israel’s top leaders lack judgment and that the anticipated pressures of international isolation as the Palestinians campaign for statehood could lead to rash decisions — like an airstrike on Iran. * * *

This week Mr. Dagan, speaking at Tel Aviv University, said that attacking Iran “would mean regional war, and in that case you would have given Iran the best possible reason to continue the nuclear program.” He added, “The regional challenge that Israel would face would be impossible.”

Mr. Dagan went on to complain that Israel had failed to put forward a peace initiative with the Palestinians and that it had foolishly ignored the Saudi peace initiative promising full diplomatic relations in exchange for a return to the 1967 border lines. He worried that Israel would soon be pushed into a corner.

On Thursday he got more specific, naming Prime Minister Benjamin Netanyahu and Defense Minister Ehud Barak, but this time through a leaked statement to journalists. The statement had to do with his belief that his retirement and the retirement of other top security chiefs had taken away a necessary alternative voice in decision making. * * *

While in office, Mr. Dagan served three prime ministers, was reappointed twice and oversaw a number of reported operations that Israelis consider great successes — forcing delays in Iran’s nuclear program through sabotaging its computers and assassinating scientists; setting the groundwork for an attack on a nuclear reactor in Syria in 2007; and assassinating Imad Mughniyeh, a top Lebanese Hezbollah operative, in 2008.

When Ariel Sharon, the prime minister in 2002, appointed Mr. Dagan, he was reported to have told him he wanted “a Mossad with a knife between its teeth.” Mr. Dagan is widely thought to have complied and is not seen as a soft-hearted liberal.

Likud responds that such candor helps Israel's enemies. Oh yes, that's always a good one.

"Marquee Moon" reveals previously unsuspected phase

"Marquee Moon" has been one of my favorite songs since I bought the Television album. My favorite part was the ending: after the loooong guitar solo trails off, the riff from the beginning of the song comes back in, Verlaine sings the first line of the song -- "I remember how the darkness doubled" -- and the song fades out just as it comes back round to its beginning. Beautiful.

And, as I discovered last week when I finally got around to replacing my tape with the CD, entirely a figment of the record company's imagination:

The original vinyl LP faded out "Marquee Moon" to 9:58 because of space limitations. All CD issues have featured the full-length version of the song, clocking in at 10:40.

And the original version just isn't as good! Verlaine sings the first verse again, they do a little flourish, the song ends. Whee. And all these years, I thought the band had actually managed to do something cool with the conventional fade-out.

I'm thinking that was a "probably not."

Glen David Gold, novelist, explains why he doesn't ask readers what they thought of his books:

True story: the first piece of writing I published was in a local free weekly about our local suicide prevention agency, where I was a volunteer. I skulked around cafes that week, hoping to catch someone reading my article. And then I did. A woman in her sixties was slowly going through it. I ambushed her.

Me: Are you enjoying that?

Her: I’m hoping this article can explain to me why my son killed himself.

Oy.

"The icecold law, from which no friction will excite sparks"

A colleague sends us this quote, from the MSSC's 1900 op in Illinois Central R.R. Co. v. Johnson:

By the wisdom of the common law, so profound as to be quite undiscernible ....

That's 28 So. 753, 754, for those of you itching to use it in a brief.

The whole opinion, by one Calhoon, J., is charming.

We should be glad, if we had space, to follow by quoting the subsequent remarks of this very able brief, since they illustrate true eloquence,--the lightning of passion playing along the links of thought. But we must content ourselves with the icecold law, from which no friction will excite sparks. The common law must govern us, except where it is modified by statutory enactment. Accepting, as we do, the description of the status of bastards at common law furnished us by appellee's counsel, it may be noted that the basis of the rule was the discouragement of immorality in the promiscuous intercourse of the sexes, not sanctioned by the public contract of marriage. The effect of the law on the millions who were governed began, after the lapse of many centuries, to dawn on the minds of the select few who governed them. These few, at occasional intervals between the numerous avocations of the multitudinous pleasures offered by wealth, began to observe that bastardy continued to prevail; that illegitimacy of birth, notwithstanding the thunders of the law from parliament house, the right reverend clergy, and the wigs and gowns of the courts, continued to be, as it always had been before, a “condition, and not a theory.” Bastards still dotted and spotted the kingdom as before, and, while the particular kingdom was in no worse situation in this shocking regard than the other kingdoms, empires, and suzerainties of earth, still it was in no better, to say the least of it. It was seen to prevail still. So, the premises being well considered for 700 years or so, it finally dawned on the benevolent minds of a few of “my lords and gentlemen,” who we must assume were not at all interested personally in the question, that the unoffending, unconsulted, and innocent offspring of unhallowed natural appetite ought to have some sort of consideration. Thereupon a law was enacted magnanimously recognizing that bastards were in its eye, as in fact, the children of their own mothers.

... Having had the fortune to be Episcopalian, Justice Calhoon's career is epitomized here.

Appellate advice

Texas Lawyer mag talks to Edith Jones (h/t), which was of sufficient interest to me that I actually watched the 4-minute video.

(Digression: I hate internet video. I read quickly, so scanning blogs doesn't take too much time, but 4 minutes is 4 minutes -- or rather, 5 or 6, when the video keeps halting.)

Anyway, to spare you the trouble, here's the skinny. First, 5 tips for lawyers:

(1) Have a beginning, middle, and end to your argument. Get the court's attention, present your analysis, and have something to end with.

(2) Know the record cold. (Duh, but the judges keep having to tell us this.)

(3) Don't address the court as "you guys" (this is "becoming a little more frequent").

(4) Give case cites, particularly to authorities not in your brief.

(5) Update your authorities the day before argument.

Judge Jones says yes, oral argument can change the court's mind, particularly in helping it to see what the critical issues are in a case.

Finally, having a succinct narrative can help the court, but "don't start at the beginning of the world."

Rand Paul's First Amendment

But if someone is attending speeches from someone who is promoting the violent overthrow of our government, that’s really an offense that we should be going after — they should be deported or put in prison.

-- Rand Paul. (Via.)

... Another one for the "'Libertarian' just means 'don't tax me'" file.

... Eugene Volokh is on the case.