Monday, February 28, 2011

A question Google *doesn't* answer

I'm reading Robert Blake's life of Disraeli, and quoted is a line from an 1868 Commons debate in which Dizzy is rebuking some Tory rebels who'd moved to his right:
When the bark is heard from this side the right hon. Member for Calne (Mr. Lowe) emerges, I will not say from his cave, but, perhaps, from a more cynical habitation. He joins immediately in the chorus of reciprocal malignity— ‘And hails with horrid melody the moon.’
In quotes, right? A line from a poem, apparently. But what poem, by whom?

One would guess Scott or Byron. But online searching yields nothing except quotations of the Commons debate.

"And we don't mean look like James Franco at the Oscars."

Marauding Gay Hordes Drag Thousands Of Helpless Citizens From Marriages After Obama Drops Defense Of Marriage Act

WASHINGTON—Reports continue to pour in from around the nation today of helpless
Americans being forcibly taken from their marital unions after President Obama
dropped the Defense of Marriage Act earlier this week, leaving the institution
completely vulnerable to roving bands of homosexuals. "It was just awful—they
smashed through our living room window, one of them said 'I've had my eye on
you, Roger,' and then they dragged my husband off kicking and screaming," said
Cleveland-area homemaker Rita Ellington, one of the latest victims whose
defenseless marriage was overrun by the hordes of battle-ready gays that had
been clambering at the gates of matrimony since the DOMA went into effect in
1996. "Oh dear God, why did they remove the protection provided by this vital
piece of legislation? My children! What will I tell my children?" A video
communique was sent to the media late yesterday from what appears to be the
as-yet unidentified leader of the gay marauders, who, adorned in terrifying
warpaint, announced "Richard Dickson of Ames, Iowa. We're coming for you
next. Put on something nice

There's a reason it's not called "audio-visual argument"

Howard Bashman muses on handouts or visual aids at oral argument:
For reasons that I'd be more than happy to discuss further in the event that anyone is interested, I'm not a huge fan of using handouts or demonstrative exhibits at an appellate oral argument.

Moments before my en banc oral argument was to begin Wednesday at the U.S. Court of Appeals for the Third Circuit, opposing counsel handed me a collection of documents that he proposed to distribute to the judges to walk them through his presentation. That was, frankly, the first time that I had had that happen to me or seen that happen in more than 20 years of appellate work.

The representatives of the Third Circuit's clerk's office in the courtroom would not allow the handout to be distributed to the judges without my consent. I decided not to consent, because the best use of my time in the moments before the oral argument was not perusing opposing counsel's proposed handout, and there was nothing that had precluded opposing counsel from finding out earlier in advance of the oral argument that my consent was needed and then requesting my consent at that earlier time.
Hard to fault him there, tho I'm sure his opposing counsel has tried. No excuse for not having those documents handy a week in advance -- or for that matter, attaching them to a brief.

Via Bashman, here also is an Indiana lawyer's post about state-court practice there regarding visual aids.

I generally share Bashman's view, tho NMC posted a counterexample ... along with a couple of instances that prove the rule.

Why the Ten Commandments?

The Volokh blog notes a Virginia public high school's prohibition of students' posting the Ten Commandments (but not other, non-religious speech) on their locker doors. The ACLU quite rightly has sent the school an educational, smarten-up-before-we-sue-you letter.

This reminds me of the weirdness of American Christianity.

Posting the Ten Commandments in schoolrooms and courtrooms is a perennial legal issue. An Alabama chief justice had a giant "idol" of the Commandments erected in his supreme court. It's not just Protestants either; my kid's Catholic school has the Commandments posted beside the school office.

Why is no one posting, say, the Beatitudes? Or the Golden Rule? (You do see the latter sometimes, but it's played no role in the culture wars like the Commandments.) Why do the nation's self-proclaimed defenders of Christianity give pride of place to the Ten Commandments?

There could have been some legal basis, i.e. the Commandments are "Judeo-Christian" and thus not "just" Christian; but I don't think current Constitutional law makes much distinction there, if it ever did.

No, I think there's a political message there: society is bad and needs to get back to following the Law of God. The message that the meek and the poor are blessed, by contrast, doesn't serve many people's agendas.

Tuesday, February 22, 2011

I mean, I've never seen Qaddafi and Iron Man in the same room ...

Saw this pic at Sullyblog, and it disturbed me.

Because however clever it was to kidnap Qaddafi and insinuate Robert Downey, Jr. in his place, shouldn't Downey have stopped short of tanks and bombers to keep his cover? Enough is enough!

... This post reminded me to look up the fate of the greatest double agent ever, the secret policeman whose cover went SOOOOOO deep as to orchestrate the assassination of the head of the secret police. I'd always assumed he was executed, but he got away to Germany; died in Berlin in 1918. There oughta be a movie.

Q. How many mathematicians does it take to screw in a light bulb?

A. 0.99999...

Thursday, February 17, 2011

Well, these deck chairs are looking good now, if only the ship weren't tilting!

New York’s top court officials will bar the state’s hundreds of elected judges from hearing cases involving lawyers and others who make significant contributions to their campaigns, a move that will change the political culture of courts and transform judicial elections by removing an important incentive lawyers have for contributing.
And creating a new incentive to contribute. How many defense firms would contribute $2500 a head to Tomie Green or Winston Kidd to enforce her recusal? How many plaintiff's lawyers would've given $2500 to stay out of Swan Yerger's courtroom? And wouldn't Billy Joe Landrum make out like a bandit under this system?

From the NYT, via LGM, some of whose commenters grasped this point immediately; the NYT article did not mention it at all.

The problem with judicial elections is not going to be solved by limiting contributions. It's going to be solved by getting rid of judicial elections.

Wednesday, February 16, 2011

An armchair revolutionary (in the best possible sense)

The NYT has a fascinating little profile of a man studied intently by some of the Egyptian protesters -- Gene Sharp from Boston, MA.
Few Americans have heard of Mr. Sharp. But for decades, his practical writings on nonviolent revolution — most notably “From Dictatorship to Democracy,” a 93-page guide to toppling autocrats, available for download in 24 languages — have inspired dissidents around the world, including in Burma, Bosnia, Estonia and Zimbabwe, and now Tunisia and Egypt.

When Egypt’s April 6 Youth Movement was struggling to recover from a failed effort in 2005, its leaders tossed around “crazy ideas” about bringing down government, said Ahmed Maher, a leading strategist. They stumbled on Mr. Sharp while examining the Serbian movement Otpor, which he had influenced.

When the nonpartisan International Center on Nonviolent Conflict, which trains democracy activists, slipped into Cairo several years ago to conduct a workshop, among the papers it distributed was Mr. Sharp’s “198 Methods of Nonviolent Action,” a list of tactics that range from hunger strikes to “protest disrobing” to “disclosing identities of secret agents.”

Dalia Ziada, an Egyptian blogger and activist who attended the workshop and later organized similar sessions on her own, said trainees were active in both the Tunisia and Egypt revolts. She said that some activists translated excerpts of Mr. Sharp’s work into Arabic, and that his message of “attacking weaknesses of dictators” stuck with them. * * *

Autocrats abhor Mr. Sharp. In 2007, President Hugo Chávez of Venezuela denounced him, and officials in Myanmar, according to diplomatic cables obtained by the anti-secrecy group WikiLeaks, accused him of being part of a conspiracy to spark demonstrations intended “to bring down the government.” (A year earlier, a cable from the United States Embassy in Damascus noted that Syrian dissidents had trained in nonviolence by reading Mr. Sharp’s writings.)

In 2008, Iran featured Mr. Sharp, along with Senator John McCain of Arizona and the Democratic financier George Soros, in an animated propaganda video that accused Mr. Sharp of being the C.I.A. agent “in charge of America’s infiltration into other countries,” an assertion his fellow scholars find ludicrous.

“He is generally considered the father of the whole field of the study of strategic nonviolent action,” said Stephen Zunes, an expert in that field at the University of San Francisco. “Some of these exaggerated stories of him going around the world and starting revolutions and leading mobs, what a joke. He’s much more into doing the research and the theoretical work than he is in disseminating it.”
Presidential-Medal-of-Freedom material, one would think. Perhaps Obama's saving that for some of the CIA's torture veterans.

"Curveball" gloats at pwn'g Germans, U.S.

Via Tom Ricks, the Iraqi defector who lied about Saddam's alleged WMDs now gloats that he made all that shit up, and it worked!
As Curveball watched Powell make the US case to invade Iraq, he was hiding an admission that he has not made until now: that nearly every word he had told his interrogators from Germany's secret service, the BND, was a lie.

Everything he had said about the inner workings of Saddam Hussein's biological weapons programme was a flight of fantasy - one that, he now claims was aimed at ousting the Iraqi dictator. Janabi, a chemical engineering graduate who had worked in the Iraqi industry, says he looked on in shock as Powell's presentation revealed that the Bush administration's hawkish decisionmakers had swallowed the lot. Something else left him even more amazed; until that point he had not met a US official, let alone been interviewed by one.

"I had the chance to fabricate something to topple the regime," he told the Guardian in a series of interviews carried out in his native Arabic and German. "I and my sons are proud of that, and we are proud that we were the reason to give Iraq the margin of democracy."
Exiles lie! Who would have thought it?
As to their vain hopes and promises, such is the extreme desire in them to return home, that they naturally believe many things that are false and add many others by art, so that between those they believe and those they say they believe, they fill you with hope, so that relying on them you will incur expenses in vain, or you undertake an enterprise in which you ruin yourself.
-- Machiavelli, Discourses, 2:31. See, the problem with Bush and Cheney is they weren't Machiavellian enough.

... In comments, CharleyCarp points us to a 2008 story on Curveball:
Along with confirmation of Curveball's identity, however, have come fresh disclosures raising doubts about his honesty -- much of that new detail coming from friends, associates and past employers.

"He was corrupt," said a family friend who once employed him.

"He always lied," said a fellow Burger King worker. * * *

In early 2002, a year before the war, he told co-workers at the Burger King that he spied for Iraqi intelligence and would report any fellow Iraqi worker who criticized Hussein's regime.

They couldn't decide if he was dangerous or crazy.

"During breaks, he told stories about what a big man he was in Baghdad," said Hamza Hamad Rashid, who remembered an odd scene with the pudgy Alwan in his too-tight Burger King uniform praising Hussein in the home of der Whopper. "But he always lied. We never believed anything he said."

Another Iraqi friend, Ghazwan Adnan, remembers laughing when he applied for a job at a local Princess Garden Chinese Restaurant and discovered Alwan washing dishes in the back while claiming to be "a big deal" in Iraq. "How could America believe such a person?"
As Charley notes, the CIA evidently was not up to the smarts of some Burger King employees.

Must be that lifetime-appointment thing

The Clarion-Ledger on Justice Graves's confirmation by the Senate:
Mississippi Supreme Court Justice James Graves says he'll feel pressure to do a good job on the 5th Circuit U.S. Court of Appeals in New Orleans.

Friday, February 11, 2011

Shouting "bitch" in a crowded theater

It's not protected either by the First Amendment, apparently.

(H/t Bashman.)

Torture: it's good for your resumé

Torture: it's not only not a war crime, or a felony, it's actually a career move.
In the years since the Sept. 11, 2001, terrorist attacks, officers who committed serious mistakes that left people wrongly imprisoned or even dead have received only minor admonishments or no punishment at all, an Associated Press investigation has revealed. * * *

Though Obama has sought to put the CIA's interrogation program behind him, the result of a decade of haphazard accountability is that many officers who made significant missteps are now the senior managers fighting the president's spy wars.

The AP investigation of the CIA's actions revealed a disciplinary system that takes years to make decisions, hands down reprimands inconsistently and is viewed inside the agency as prone to favoritism and manipulation. When people are disciplined, the punishment seems to roll downhill, sparing senior managers even when they were directly involved in operations that go awry.
Two officers involved in the death of a prisoner in Afghanistan, for instance, received no discipline and have advanced into Middle East leadership positions. Other officers were punished after participating in a mock execution in Poland and playing a role in the death of a prisoner in Iraq. Those officers retired, then rejoined the intelligence community as contractors.
Obama finds the torturers useful; hence they cannot be prosecuted.

The article begins by noting that the fool who had Khalid al-Masri, a German citizen, nabbed and tortured, is now "risen to one of the premier jobs in the CIA's Counterterrorism Center, helping lead President Barack Obama's efforts to disrupt al-Qaida." The article calls her "a tireless worker who made the wrong call under intense pressure." Uh, no. Jane Mayer covered this in The Dark Side: even after Masri's passport checked out, and the agents actually dealing with him were convinced they had the wrong guy, this woman -- the head of the al-Qaeda unit in D.C. -- insisted on continuing to hold and torment him:
As Masri wasted away, being fed rotten chicken bones and suffering from chronic diarrhea, the chief of station in Kabul was saying, "I want this guy out" -- but in Washington, the head of the Al-Qaeda Unit kept insisting she had "a gut feeling he's bad. She can't admit a mistake," a former colleague said. [After his passport checked out,] The head of the Al-Qaeda Unit still wanted Masri held. "She just looked in her crystal ball and it said he was bad," said another former colleague at the CIA in disgust. "If you're going to unleash the beast," he said of the CIA's terrible powers, "you better be damn sure of your target."

After this had gone on for several months, some of those in the Agency who knew that Masri's passport was legitimate started to lobby for his release. One CIA official said he came in every morning and asked, "Is that guy still locked up in the Salt Pit?"

But the Al Qaeda Unit leader was still saying she had suspicions about him. She argued, a source said, that Masri "had phone calls to people who were bad. Or to people who knew people who were bad."
Do you, Gentle Reader, have phone calls to people who know people who are bad?
"But is he a terrorist?" the others were asked.
Two CIA officers in Europe planned a "reverse rendition" to bring Masri home, but even after months without any evidence that he was a terrorist, this CIA official would not budge: she
was still arguing that he was a terrorist. She had an unusual amount of clout in the Agency. She was smart and tough. And her trump card was that she sometimes personally briefed President Bush.
Finally the matter went up to Tenet, who could see the political downside, and Masri was released. "Seven or eight other cases like Masri" have been investigated by the CIA inspector general.

The same woman now "regularly briefs Panetta, making her an influential voice in Obama's intelligence circle." I am unaware of any report that she has ever admitted any error regarding Masri.

Of course, some wackos might carp about his birth certificate

Egypt has a problem. The GOP has a problem. Jon Chait solves both problems at a stroke:
Hosni Mubarak is hated in Egypt, but reluctant to give up power. Meanwhile, the Republican Party is desperate for a credible presidential candidate. Are you thinking what I'm thinking? Yes: Mubarak should cut a deal to step down as president of Egypt, take exile in the United States where he'll be granted citizenship, and immediately jump into the Republican primary field.

The more I think about this, the more sense it makes. The GOP field is torn between candidates with executive experience but no foreign policy experience (i.e., governors like Mitt Romney or Mitch Daniels) and candidates with foreign policy experience but no executive experience. Mubarak has both!

You want a candidate who's tough on Islamists? The other Republicans can talk all they want about doubling Gitmo, but only Mubarak has imprisoned and tortured Islamists. You can't possibly get to the right of him on this issue. And he's extremely pro-Israel.
Plus his record on taxes, the liberal media, and antipathy to Obama are all very strong indeed.

... Aaaaaaand he's available.

Thursday, February 10, 2011

T.S. Eliot -- plagiarist!

Well, he did say that good poets borrow, great poets steal.

Via DeLong, Jim Macdonald's research has uncovered the text of "The Love Song of J. Alfred Prufrock" ... by Rudyard Kipling.
You can talk o' coffee spoons
When you're sittin' in your rooms
Or wanderin' dark streets wi' bad intent
But when comin' down the stairs
You 'ad better all bewares
O' our Michelangel-wallah, Alfred 'Frock!
The arguments 'e made
Very seldom would dissuade
The colonel from decidin' what was what,
But the way 'e tied 'is tie
Made the lads shout "Harry By!"
When 'e brought the mermaids to the sentry 'ut.

An' it's 'Frock, 'Frock, 'Frock!
Why you bugger, what's that 'idden in your smock?
You go risposta fosse
Wi' your senza piu scosse!
Why's a peach stuck in your pocket, Alfred 'Frock?

The uniform 'e wore
Was 'is trousers rolled before
An' 'is hair combed down a little bit behind.
When the fog was blowin' yellow
You'd go lookin' for the fellow
An' some novels an' some teacups you would find.
We was standin' in the hall
When Prince 'Amlet came to call
An' a lord was what we needed an' right quick
So we started in to shout,
"Is there any lord about?"
When up an' came a-trottin' Alfred 'Frock

An' it's 'Frock! 'Frock! 'Frock!
Would you leave off watchin' that thrice-blessed clock?
If you don't tornass' al mondo
You can just di questo fondo
You bleedin' literary Alfred 'Frock!

'E was tellin' 'is one joke,
'Bout a showgirl an' a bloke,
When the prince 'e keeled over wi' ennui
In the midst o' some digression
'Bout the claws an' their procession
That didn't make a lick o' sense to me.
So 'e took a slice o' toast,
An' a piece o' a cold roast,
Then 'e looked for just a spot o' marmalade.
Wi' a smile a little bent
'E said, "That's not what I meant,"
An' that is 'ow 'e ended 'is tirade.

An' it's 'Frock! 'Frock! 'Frock!
You're listenin' to a string quartet by Bach!
Wi' your stream o' conscious' blather
An' an angsty long palaver
You're an influential poet, Alfred 'Frock!
Clearly, the entire history of modernism has now to be rewritten.

Wednesday, February 09, 2011

Diversity adversity

Assuming that James Graves is sooner or later confirmed as a judge on the Fifth Circuit bench, that will leave not only a vacancy on the Mississippi Supreme Court, but an all-white Court as well. Hence the likelihood of calls for Haley Barbour to appoint a black person to replace Graves.

Seems fair enough, no? But be careful:
Are Judges “Employees” Covered by State Antidiscrimination Law?

Howard v. Kansas City (Mo. Jan. 25) says “yes,” as to state antidiscrimination law, and notes the difference of opinion among different states’ courts on the subject. Judges are not covered by federal antidiscrimination law, and it’s not clear whether the Equal Protection Clause bars discrimination in the appointment of high-level officials (a category that might well include judges).

In this case, plaintiff was awarded “$633,333 in compensatory damages and $1.5 million in punitive damages” (plus attorney fees and prejudgment interest), because the jury found that she was denied a judicial appointment because she was white ....
The question then becomes, is "Mississippi antidiscrimination law" anything more than a punch line? Haven't time to look right now, but it's a good question.

... Judges are nonstate-service personnel under Miss. Code Ann. 25-9-107. Nonstate-service employees can't be *terminated* on racial grounds, but I don't see that *hiring* (or not) is actionable. Not a subject I'm really up on, however.

More on the American way of torture

Cherif Bassiouni, a law professor at DePaul University in Chicago, was one of the key authors of the Convention Against Torture and is one of the world’s preeminent experts in international criminal law, particularly from the prosecutor’s perspective. He has just published The Institutionalization of Torture by the Bush Administration: Is Anyone Responsible?, a scholarly work that documents the development of torture policy in the Bush Administration and presents a roadmap for the use of future prosecutors. I put six questions to Professor Bassiouni about his book.
-- Scott Horton, continuing to do yeoman's work to remind people about our government's unpunished crimes.

More foot-in-mouth disease

I do not think this was terribly cool of Justice Ginsburg:
Justice Ruth Bader Ginsburg, perhaps not aware that she was taking a firm position on an issue not yet before the Supreme Court, has suggested that the attempt to appeal immediately in a constitutional challenge to the new health reform law will fail. It was not the typically cautious Ginsburg who spoke out on the subject before an audience of students at George Washington University in Washington last week.

Although a story in the University’s student newspaper did not provide the full context of the Justice’s remarks, it quoted her as saying without qualification on Thursday evening that the health care issue would have to reach the Court through “the ordinary route” — that is, after decisions on it by the federal appeals courts.

She went on to say, according to the report: ”The court itself is a reactive institution. We don’t decide, ‘We better get this or that case sooner rather than later.’ ‘” Further, the story said that, while some cases like those involving disclosure of the secret Pentagon Papers do get swift review, ”Ginsburg said the court benefits from reading opinions from lower courts when it decides whether or not to hear an appeal. ‘We have a range of views before us and can make a better informed decision.’ ”
That is of course usual practice, and I don't think such a procedural comment is exactly impeachment material, but I wouldn't be happy with Scalia making such a remark, so I don't see any reason to give Ginsburg a pass either. "No comment" is often the voice of wisdom.

Vox populi

Immigration debates are causing an outbreak of foot-in-mouth disease across the South:
"I know brothers -- and I'm talking about black guys -- they are not going to do the dirty work at Boeing, to do that hauling and all that building, that dirty work... A brother is going to find ways to take a break."

-- South Carolina state Sen. Robert Ford (D), quoted by the Charleston Post & Courier, arguing against a new immigration law because "brothers" don't work as hard as "Mexicans."
Ford is himself a "black guy," though inquiries as to whether he is also a "brother" were not returned by press time.

... Meanwhile, an Alabama Republican declared an end to the post-Tucson truce on calling for the murder of political undesirables:
Alabama state Sen. Scott Beason (R) said that Alabama lawmakers "are behind in enacting tough immigration laws -- but that more Republican control throughout the state will allow immigration legislation to take precedent," the Cullman Times reports.

He ended his speech advising Republicans to "empty the clip, and do what has to be done."

After being flooded with angry phone calls over his remarks, Beason told the Birmingham News that his comment "was completely taken out of context" and in "no way was I urging anyone to do harm to Hispanics or illegal immigrants. I would never do that."
Okay, sure. Because what more common, innocuous metaphor is there than "empty the clip, and do what has to be done"? I'm sure it sounded even more innocent in the original German.

Both items from Political Wire.

Friday, February 04, 2011

Reading is fundamental(ist)

Gotchas sometimes rebound on the gotcha-caller, but we have an extra layer of "gotcha" in this from Media Matters:
Fox Nation that claims Obama "misquoted a familiar Bible verse" during his address yesterday:
President Obama misquoted a familiar Bible verse during a faith-based address at the National Prayer Breakfast.

"Those who wait on the Lord will soar on wings like eagles, and they will run and not be weary, and they will walk and not faint," the president said during a speech to several thousand people at the breakfast.

But the actual passage, from Isaiah 40:31, states: "But they that wait upon the Lord shall renew their strength; they shall mount up with wings as eagles; they shall run, and not be weary; and they shall walk, and not faint."
Somewhat ironically, while Fox Nation appears to be positioning themselves as the arbiters of authentic Christianity, they seem unfamiliar with the fact that there is more than one version of the Bible.

Obama was quoting from the New International Version, while Fox Nation was pointing to the King James Version to "debunk" him.

This would be funny if it weren't so pathetic.
The links are taken from the MM post.

However, if one follows their link to the NIV version, then -- always assuming the Fox quote of Obama is correct -- he did "botch" the verse. He omitted the part about "will renew their strength."

So, we could ask why MM can't read its own sources; but perhaps the better question is, since when is it anything unusual or newsworthy to skip a phrase when reciting from memory?

Thursday, February 03, 2011

Findings of fact, and musings of law

Judge Primeaux responded to our rant on "heightened scrutiny" of verbatim-adopted fact findings (and really, it wasn't meant to be a rant, it just kinda grew into one). We are so pleased at his addressing the topic (and adding thereto) that TBA elevates his comment into this post, with our own observations.

JP: -- I have never understood the heightened scrutiny rule as to ffcl. If the chancellor believes that one side's ffcl exactly captures what he or she heard and concludes, does it matter? The rule seems to assume that the chancellor has abandoned his own thought process and analysis if he adopts one side's ffcl, which I think is a non sequitur.

Of course chancellors are not supposed to do any such thing, and as I said earlier, if all chancellors were Primeauxs, there would be little room for concern. But except in the most simple and concise of hearings, it does seem questionable that an interested party's view of the facts would coincide 100% with that of the court. Especially given the time delay that is typical with PFFCL's. The standard to my mind simply means that, on any close questions that otherwise might tilt to affirming simply based on deference to the chancellor, the reviewing court is free to pay less deference in view of the fact that the traditional reasons for deference do not apply with equal force.

JP: -- Chancellors must make extensive written findings of fact to support their conclusions, but juries have no such requirement. There is no such requirement for the finder of fact in a jury trial. How do we know whether what a jury decides is supported by substantial evidence if they don't tell us in detail what is the basis for their decision? But, you say, appellate courts have always scrutinized jury verdicts against the evidence at trial. Fine and true. If we can make that determination for a jury verdict without specific findings, why can't we do the same for a non-jury trial?

This is true, but two things that bother me are credibility and weight determinations. Those are difficult to judge on the page, so that the appellate court defers a great deal to the fact-finder (hence the "overwhelming" weight of the evidence standard). That deference is more properly owed to the court's own fact-findings, not its adoption of a party's.

I would suggest to all judges requesting findings that they request them in electronic format, to encourage cutting, pasting, and revising. My sole concern here is the 100% verbatim "sign here" adoption of a party's PFFCL.

JP: -- Are chancellors' decisions really given deferential review, or is that concept more of an historical view that has yielded to a more interventionist appellate role? Early in my career, it was common to discourage a client who wished to appeal from chancery on the basis that it was rare for a chancellor's decision to be overturned. A lawyer told me not long ago that he routinely advises clients to "roll the dice and appeal," because you have a good chance that you get a COA judge who likes to assume the role of chancellor. That is probably an overstatement, but it captures the sense of what I'm trying to say.

I think that is exactly right about the COA, which I also note seems to me to've gotten reversed at a higher rate in the past year or two. But I think that says more about the quality of our COA judges. Some are good. Some, not so much.

JP: -- I have had more than one trial lawyer comment that what they read in the appellate court's opinion as to facts bore little resemblance to the evidence at trial. Does this mean that lawyers who write briefs are loading them up with "facts" that were never presented to the chancellor at trial? And if it does mean that, then are the appellate judges not reading the trial record? If Justice Waller is right, and there is nothing in the Williford record to support the findings of the majority opinion, what does that tell us?

Some lawyers absolutely do lie, to put it bluntly. (That occurred in the case that really soured me on the COA.) OTOH, a lot of trial lawyers have an eerie ability to remember trials the way *they* saw them, omitting to recall contrary evidence. I have experienced this as the "clean-up" appellate lawyer coming in after a jury verdict; the lawyer tells me about the trial, quite sincerely, but then I get the transcript and I'm all "uh, but what about this?" Perhaps Judge Primeaux's interlocutor was a victim of this phenomenon.

That btw is another reason to mistrust a party's PFFCL.

Then again, appellate judges are not perfect. I won an appeal, and the dissent recited a great many facts from the record as to why my client should've lost the appeal. Problem was, the jury found X, and even tho it was vs. my client, it was so much a defense verdict that we were *defending* the jury verdict on appeal. So the fact that the good justice preferred to emphasize different facts was beside the point. That was simply a political dissent by a political justice, IMHO.

JP: -- Is our body of case law, with as many COA and SC opinions as we have, getting so large that we can no longer manage it? In my experience, I read an opinion and say to myself, "wait a minute; that holding contradicts the [insert name here] decision from 1987," and yet the new decision does not overrule, explain, distinguish, or even cite the earlier decision. Is it a lack of time devoted to research by staff? Is it that there are too many cases on appeal (which could be reduced by exercising true deference to chancellors' findings)? Could it be that our body of case law is becoming so unwieldy that it is getting more difficult to distinguish what is and what is not precedent?

Good question, but I don't think the volume of case law is to blame -- not in the Westlaw era. (Nice plug for deference there btw!) Bluntly, it's got to be poor law clerks. (I say this as a former law clerk.) They are not well paid, they are rarely near the top of the class; if they were, they would have gotten other jobs. There are always exceptions, but simple economics will usually be a good predictor.

A recent MSSC opinion included this language:
Actually, the statute required “the trier of fact [to] determine the percentage of fault for each party alleged to be at fault.” Miss. Code Ann. § 85-5-7(7) (Rev. 1999) (emphasis added). The term “party” appeared nowhere else in the statute. It is susceptible to more than one interpretation. If it means a party in the sense of named parties to a lawsuit, then Harris’s fault could not be taken into account. The appellant did not raise this issue, however, and it is not before the Court at this time.
Uh, hello? Estate of Hunter? This question has been resolved for 20+ years, in a case I didn't think you could pass the bar exam without knowing. If the MSSC can write that, then someone is poorly serving the Court.

"Because It Is Wrong"

Charles Fried, who was solicitor general under Reagan and now teaches at Harvard Law, has written a book with his son, Suffolk U philosophy prof Gregory Fried: Because It Is Wrong--Torture, Privacy and Presidential Power in the Age of Terror. Scott Horton interviews them. Worth a look. Charles:
It has become increasingly clear that the political will is lacking to conduct either prosecutions or congressional hearings on torture. Outside of the United States is another matter, and it may well be the case that figures such as Donald Rumsfeld and John Yoo, and perhaps those even higher up in the chain of command, will have to think twice about traveling abroad, where they might be arrested and put on trial for war crimes.

That would be a terrible situation for the United States, not only because it would be a diplomatic disaster, but also because it would underline the fact that we as a nation have been unable, by ourselves, to come to terms with this departure from our long-standing traditions in law and in principle. At a time in our history when we are conducting military occupations to bring democracy to previously autocratic regimes, this would be a sad irony indeed.
Ain't it though.

... Papa Fried also testified yesterday on the constitutionality of the individual mandate (shorter Fried: "uh, yeah, duh"); click through for a priceless quip he made about his former student Randy Barnett, who was there to testify what the Constitution would mean if James Madison and John Marshall had only been able to read Ayn Rand.

Wednesday, February 02, 2011

Judicial amnesia?

MSSC Justice Jess Dickinson, for the Court in Joel v. Joel, July 1, 2010:
¶ 15. We recognize the following exception to the Ferrara v. Walters rule:
Where the chancellor adopts, verbatim, findings of fact and conclusions of law prepared by a party to the litigation, this Court analyzes such findings with greater care, and the evidence is subjected to heightened scrutiny. Because the chancellor erred in adopting FN3 the litigant's findings of facts and conclusions of law in the case sub judice, the deference normally afforded a chancellor's findings of fact is lessened.[FN4]
¶ 16. The FFCL proposed by the Joels and the one eventually entered by the court were essentially the same. So we must apply the Brooks v. Brooks heightened-scrutiny standard of review.

¶ 17. Heightened scrutiny requires that “the deference afforded the findings of fact is lessened ...,” and we “must view the challenged findings and the record as a whole ‘with a more critical eye to ensure that the trial court has adequately performed its judicial function.’ ”
Justice Jess Dickinson, for the Court in Bluewater Logistics, LLC v. Williford, Jan. 27, 2011:
¶ 26. When a chancellor adopts verbatim, or nearly verbatim, a party's proposed findings of fact, our precedent provides that we should apply “heightened scrutiny” FN4 to the chancellor's findings of fact. This rule is fairly well-settled and accepted. Yet our precedent provides little guidance as to how we are to comply with our duty to “heighten” our scrutiny--which could be read to require us to review a case more carefully or, perhaps, to apply a different, more stringent standard to our review of the facts.

¶ 27. But our duty already requires us carefully to scrutinize every case, so we reject the former. And as to the latter, if “heightened scrutiny” requires us to abandon the reasonable-chancellor standard and apply a different, higher standard, we find no caselaw or other authority explaining that different standard, or suggesting how it should be applied.
So the question is, I guess, what did Justice Dickinson -- and the majority -- do in Joel that they had forgotten how to do in Williford?

Whatever it was, Chief Justice Waller hadn't forgotten it, as his separate opinion in Williford shows. First, he points out that Dickinson and the Court are reaching out to decide an issue not before them:
Bluewater asserted on appeal in Issue I that this Court does not have to give deference to the chancellor's factual findings as the chancellor had adopted verbatim Williford's proposed findings of fact and conclusions of law. The discussion need go no further, as whatever Williford submitted to the trial court is not in the record. Notwithstanding the procedural bar, the majority then goes on to disregard our precedent on the “heightened-scrutiny” standard of review for certain limited decisions that are appealed to this Court. Bluewater did not provide the part of the record needed for us to determine whether a less deferential standard of review would be more appropriate. Miss. R.App. P. 28. All that we have is speculation that the chancellor did something (adopted Williford's findings verbatim) that is not supported in the appellate record before this Court. Therefore, we should find no merit in its argument without further discussion on the subtleties of standards of review.
Regardless, Waller manages to remember how this standard works:
Heightened scrutiny refers to appellate review with a heightened “sensitivity to the possibility of error....” In re Estate of Grubbs, 753 So. 2d 1043, 1048 (Miss. 2000). In other words, the Court still defers to the chancellor's findings but with a closer examination of the record. See id.

¶ 81. I agree with the majority that we must carefully review cases and remain sensitive to errors. Maj. Op. ¶ 27. No one disputes that. However, the issue is what deference chancellors should be afforded in their factual decisions when the record calls into question the independent findings our trial judges are obligated to make. Deferring to a chancellor's factual findings does not mean that we intend to neglect our judicial function. See Ralph Walker, Inc. v. Gallagher, 926 So. 2d 890, 893 (Miss. 2006).
Factual findings by a chancellor are given extremely deferential review -- the chancellor was there and the appellate court was not. But it should not be so mysterious to the Williford Court that where those findings are drafted by one party, it's reading not the chancellor's findings, but one party's view of what the chancellor should have seen. That draft may look right to the chancellor -- weeks or months after the hearing -- and it should not be dismissed out of hand, but the "jaundiced eye" referred to in some case law is appropriate.

In other words, a majority of the Court (Pierce, to his credit, joined Waller) is willing to shrug and act like Gomer Pyle when handed a bill of goods. It's not enough to say, as the Court smilingly does, that every case is special and scrutinized, because the Court loves all its cases. The fact, plain as the nose on one's face, is that the Court's basis for deference is undercut by the verbatim adoption of factual findings. In particular, credibility determinations, or the weight attributed to some evidence over other evidence, are hugely important, and the Court should not play dumb about the difference between the judge's making that determination himself and signing onto an interested party's determination.

Think of it like this. Two cases are tried to a jury. In one, the jury deliberates in a nearby room immediately after the trial, and comes back with its verdict. In the other, the jurors go home, get on with their lives, and a few weeks later they receive in the mail proposed findings from the opposing parties, which they are free to sign onto, revise, or discard in favor of their own draft. In our example, the jury signs onto one side's PFF verbatim. Are we really supposed to think that the latter verdict is due the same deference as the former? As the Windows Phone commercial has it: "Really?"

... TBA wonders what a chancellor would think of Williford. [UPDATE: I had forgotten that Pierce was a chancellor; interesting that the only chancellor on the MSSC bench concurred w/ Waller.]

... And in comments, we find out! Many thanks to the good judge, whose thoughts I will address in more detail later; for now, I observe only that if every chancery judge were as conscientious as Judge Primeaux, then I would not worry about verbatim adoption of findings.

Notwithstanding that teensy little exception

Matt Yglesias flags this latest Newt embarrassment:
VAN SUSTEREN: How is President Obama doing on Egypt?

NEWT GINGRICH: I don’t think they have a clue. I think it is very frightening to watch this administration.

VAN SUSTEREN: Would anybody?

NEWT GINGRICH: Reagan would have. Reagan would have had — Reagan would have thought about and studied radical Islam and Reagan would have had a strategy and would have pursued it. He didn’t do that in the 80s some are going to want to complain for a practical reason. Reagan had one foreign policy goal in the 1980s, defeat the Soviet Union. He didn’t divert himself because he wanted to defeat the Soviet Union.
This reminds Yglesias of "What Would Brian Boitano Do?", but Gingrich's wayside "some are going to want to complain" is hysterically awful. Our Afghanistan policy in the 1980s was not the work of someone who had "studied radical Islam" and "had a strategy." And I'm sorry, but you are not allowed to be president of the United States and have just "one foreign policy goal." It's a big world.

As it stands, "radical Islam" killed more Americans on 9/11 than the USSR ever did.

New Orleans notes

When a relative can't cancel her hotel reservation and can't use it either, you pretty much have to oblige her by going to NOLA on her behalf, as Mrs TBA and I did last weekend.

Food is never my big thang in NOLA -- I'm there for books and booze, man -- but it seemed disapointing this time. The Mrs loved the spaghetti & meatballs at Irene's; I found the rosemary chicken sitting in a pool of olive oil a bit underwhelming (and would've liked my noodles w/out tomato sauce, but the menu kept that little secret to itself).

Luke -- excuse me, Lüke, like a bad 80s heavy-metal band -- for lunch was pretty to eat in, but my wife was so unhappy with the fried chicken & waffles that I offered to switch: the chicken was very greasy AND included dark meat, a deal-breaker for her. She assured me my burger was very good however. N.b. that, IIRC, the fried chicken & waffles at Mint in Jackson is all-white and much superior. If of course you want to order "chicken & waffles."

Consulting NMC's blog, I tried to order a Papa Double, but learned that the bartender had no clue what this was. So I settled for introducing myself to Arrogant Bastard ale, which was more fitting anyway, even if I am slowly doubling in size.

Went to see The King's Speech at Canal Place, at $14/ticket plus the overwrought pricing for their "dinner cinema." May think twice about going there again unless it's a movie I can't see elsewhere. The flick was all right -- Baldwin's character neither looked nor behaved like him, but I guess the studio figured no one knows who Stanley Baldwin is so what the hey. This NYRB blog post's first paragraph pretty well captures the film.

Tuesday, February 01, 2011

The man who invented the insurance mandate

Ezra Klein chats with Mark Pauly.
Tell me about your involvement in the development of the individual mandate.

I was involved in developing a plan for the George H.W. Bush administration. I wasn't a member of the administration, but part of a team of academics who believe the administration needed good proposals to look at. We did it because we were concerned about the specter of single payer insurance, which isn't market-oriented, and we didn't think was a good idea. One feature was the individual mandate. The purpose of it was to round up the stragglers who wouldn’t be brought in by subsidies. We weren’t focused on bringing in high risks, which is what they're focused on now. We published the plan in Health Affairs in 1991. The Heritage Foundation was working on something similar at the time.

What was the reaction like after you released it?

There was some interest from Republicans. I don’t recall whether they formally wrote a bill or just floated it as an idea [It did make it into a bill -- Ezra], but Democrats in Congress said it was "dead on arrival." So that was the end of my 15 minutes.
See, and the GOP thinks David Souter was the most demoniacal spawn of the Poppa Bush administration.

The whole interview is worth a look.