Tuesday, February 28, 2012

MSSC second sitting announced

Here. Ashley Ogden has arguments defending two judgments - $3.6M for a flooded apartment that destroyed prototype "Bible-based board games," and a $1.5M slip-and-fall.

The lawsuit against UMMC and the IHL Board by 3 Jackson hospitals, over whether or not the Certificate of Need laws apply to UMMC, is being submitted without oral argument.

As usual, this news predates docket entries in many of the cases, so anyone checking the docket but not the calendar will wait a week or two before finding out about his or her case's status.

What is this case about? Argument April 4.

Haley Barbour, Governor of the State of Mississippi v. William J. McCoy, Speaker of the House of Representatives, Representative Johnny W. Stringer, and Jim Hood, Attorney General for the State of Mississippi ex rel. The State of Mississippi (Arg.)
Hon. Patricia D. Wise, Ruling Judge, Hinds County Chancery Court (4 vols.)
APPELLANT - Michael Wallace, Wise Carter Child & Caraway, P.A., Jackson
APPELLEE - George W. Neville and Meredith M. Aldridge, Office of the Attorney General, Jackson
... I had forgotten this bit from the board-games case:
Defendants disputed that there was water damage and suggested plaintiffs had suffered no personal injury. Particularly, a company maintenance man went to the apartment and could find no water damage. [Plaintiffs countered that the water was 6 to 8 inches deep.]
That's, er, quite a fact issue there.

... Chris in comments says that the Barbour case has to do with the issue of partial vetos, and points us to an AG opinion in dispute.

Monday, February 27, 2012

Fashion catches up to TBA

That is the almost humorously boring watch that TBA purchased at Walmart a year or two ago, because it was just a plain damn watch.

Pic via James Fallows, who reports that it's not only a favorite of himself and some other moderately well-known people, but is now touted by Esquire as one of the "Best New Watches for Spring." (Except that, when you follow the link he gives, the mag is actually pushing something more aggressively ugly. "Aggressive ugliness" being a fair definition of "high fashion.")

... Okay, well, that's our fashion blogging for 2012! Done!

Friday, February 24, 2012

Now me, I can't even remember an 8-character password

Orin Kerr posts on what appears to be a major 11th Circuit decision on the Fifth Amendment privilege against self-incrimination as it applies to keys to encrypted hard drives. We don't do criminal law ourselves at TBA, but this looks like an important holding: at least where it's equally possible that an encrypted section of hard drive contains no data at all, the feds can't require you to potentially incriminate yourself by turning over the encryption key.
The crux of the dispute here is whether the Government sought “testimony” within the meaning of the Fifth Amendment. The Government claims that it did not, that all it wanted Doe to do was merely to hand over pre-existing and voluntarily created files, not to testify. See United States v. Hubbell, 530 U.S. 27, 35–36, 120 S. Ct. 2037, 2043, 147 L. Ed. 2d 24 (2000) (noting that it is a “settled proposition that a person may be required to produce specific documents even though they contain incriminating assertions of fact or belief because the creation of those documents was not ‘compelled’ within the meaning of the privilege”). We agree—the files, if there are any at all in the hidden portions of the hard drives, are not themselves testimonial.

Whether the drives’ contents are testimonial, however, is not the issue. What is at issue is whether the act of production may have some testimonial quality sufficient to trigger Fifth Amendment protection when the production explicitly or implicitly conveys some statement of fact. See Fisher v. United States, 425 U.S. 391, 410, 96 S. Ct. 1569, 1581, 48 L. Ed. 2d 39 (1976) (“The act of producing evidence in response to a subpoena nevertheless has communicative aspects of its own, wholly aside from the contents of the papers produced.”). Thus, we focus on whether Doe’s act of decryption and production would have been testimonial.
Yes, it would, held the court, upholding the invocation of privilege. Comments at Prof. Kerr's post credit the op with being one of the rare ones to exhibit understanding of how encryption works—TBA will defer to anonymous professions of expertise on this subject.

The op has the incidential function of being a pretty amazing advertisement for TrueCrypt, the software in question. "Endorsed by the 11th Circuit Court of Appeals"?

Thursday, February 23, 2012

The patron saint of Jackson, MS?

The Paris Review on "Miss Eudora's Garden."

Who's selling your briefs?

Lexis and Westlaw, that's who. Some lawyers are now suing them.

I am more than usually incompetent to discuss the copyright issues involved, but in the course of the thread, I pondered the case of Mississippi appellate briefs. Unlike federal briefs, MS briefs aren't available online from the courts. So how are Westlaw and Lexis getting them?

Presumably from the Miss. Supreme Court itself, whose appellate rule 28(m) requires submission of electronic copies of briefs.

I had thought of this rule as being for the Court's convenience, and perhaps it is. But it's interesting that the Court then gives them—for free?—to online content providers who then sell them to the public.

Yet another reason, IMHO, why briefs should be available online from the Court itself.

Wednesday, February 22, 2012

Ash Wednesday

Not that long ago, contemplating mortality and feeling contrition for grave failings were considered noble pursuits. They were the themes of great literature and popular music alike. In our culture we have come, more often, to view these same experiences as neuroses. Grief is edging closer to being defined as a species of depression. Anxiety over the inevitability of death has become something to be resolved through a process ending in “acceptance,” as though being sundered from everyone and everything one loves is the sort of thing one can become good at. * * *

The denial of death and guilt has become useful to us, even necessary. Ash Wednesday stands out, then, as a brutally frank reminder of things we have halfway persuaded ourselves aren’t true — that our lives are brief and that we need grace.
As an extra example of self-mortification, this little essay cites favorably David Brooks.

Via Sully.

Tuesday, February 21, 2012

Greece, the Mississippi of Europe

Kevin Drum and Felix Salmon erase any relief we might have dared to feel about the latest band-aid slapped on the Greece fiscal meltdown.

If Europe wants Greece to survive as part of the eurozone, its member countries are probably going to have to commit to a nearly open-ended flow of fiscal transfers, just as California is implicitly committed to an open-ended flow of fiscal transfers to Mississippi.
This seems likely to be correct. Europe has been playing at being half a super-nation, half a confederation of sovereign nations. But now, rubber, meet road; road, rubber.

The effect of all this fiscal tightening? Magic growth! A huge amount of heavy lifting, in terms of making the numbers work, is done by the debt sustainability analysis, and specifically the assumptions it makes. Greece is five years into a gruesome recession with the worst effects of austerity yet to hit. But somehow the Eurozone expects that Greece will bounce back to zero real GDP growth in 2013, and positive real GDP growth from 2014 onwards.
Maybe Greece's austerity will bring so much "confidence" pouring into the country that they can bottle and export it, like olive oil.

And witchcraft, don't forget witchcraft

Political Wire:
In a letter to fellow Republicans, Indiana state Rep. Bob Morris (R) called the Girl Scouts a "radicalized organization" that supports abortion and promotes "homosexual lifestyles," the Fort Wayne Journal Gazette reports.

Morris said he did some research on the Internet and found "allegations that the Girl Scouts are a tactical arm of Planned Parenthood, that they allow transgender females to join, 'just like any real girl,' and encourage sex."
He was the only member of the state House not to sign a resolution commemorating the 100th anniversary of the Girl Scouts.
Morris also said the fact that first lady Michelle Obama is honorary president "should give each of us reason to pause before our individual and collective endorsement of the organization."
Oh indeed. Of course, each First Lady has been honorary president of the GSA since Mrs. Hoover.

Monday, February 20, 2012

Ezekiel on economic housing stimulus

Ezekiel 11 (NRSV):
The spirit lifted me up and brought me to the east gate of the house of the LORD, which faces east. There, at the entrance of the gateway, were twenty-five men; among them I saw Jaazaniah son of Azzur, and Pelatiah son of Benaiah, officials of the people. 2 He said to me, "Mortal, these are the men who devise iniquity and who give wicked counsel in this city; 3 they say, 'The time is not near to build houses; this city is the pot, and we are the meat.'
Clearly an early example of the 1%.

The LORD promises to "give you over to the hands of foreigners, and execute judgments upon you." Obviously a reference to the EU debt crisis.

... This is an example of a correction to the KJV, which for verse 3 has "Which say, It is not near; let us build houses: this city is the caldron, and we be the flesh." Or the Hebrew may just be uncertain; the NIV has "They say, ‘Haven’t our houses been recently rebuilt? This city is a pot, and we are the meat in it.’" The JPS agrees with the NRSV however. A tricky guide to economic policy, the Prophet Ezekiel; Isaiah may offer a surer foundation.

"But Officer, it was two thirty-four!"


Friday, February 17, 2012

The ethics of book design

I've always been amused by the original cover to the revised edition of Heidegger's Basic Writings:

Not that he was a Nazi, right? " ;) " as they say.

But compare Peter Longerich's Himmler biography (newly translated):

Black and silver are common enough ... but given that the subject is the Reichsführer-SS, must the cover of the book reproduce the favored colors of the SS itself? Put it another way: if Himmler were authorizing his own biography, would he pick a different color scheme?

Consider Sontag's "Fascinating Fascism," which was a review not only of Leni Riefenstahl but of a book on SS Regalia:
the SS was the ideal incarnation of fascism's overt assertion of the righteousness of violence, the right to have total power over others and to treat them as absolutely inferior. It was in the SS that this assertion seemed most complete, because they acted it out in a singularly brutal and efficient manner; and because they dramatized it by linking themselves to certain aesthetic standards. The SS was designed as an elite military community that would be not only supremely violent but also supremely beautiful. (One is not likely to come across a book called "SA Regalia." The SA, whom the SS replaced, were not known for being any less brutal than their successors, but they have gone down in history as beefy, squat, beerhall types; mere brownshirts.)

* * *As the back cover of SS Regalia explains:

The uniform was black, a colour which had important overtones in Germany. On that, the SS wore a vast variety of decorations, symbols, badges to distinguish rank, from the collar runes to the death's-head. The appearance was both dramatic and menacing.
When one puts a black-and-silver cover on Himmler's biography, is one contributing to this SS aesthetic?

The subject bears consideration. Personally, I think blue and white would've made a splendid cover.

... Weird: Longerich's biography is widely praised, but I'm reading it and finding no mention of just when Himmler actually joined the Nazi Party. August 1925, says Höhne in The Order of the Death's Head; his Party number, 14303, certainly doesn't suggest an early start. But unless I've just missed it, what a weird detail for Longerich to overlook.

Dick Cheney, advocate for civil rights

Dave Weigel on the courting of a Maryland legislator as that state moves to consider gay marriage:
He also became the target of a last-minute lobby effort, and said his voice mail was full of messages from important people, including [Ken] Mehlman, [Michael] Bloomberg and an offer to talk with former Vice President Dick Cheney, whom Kach regards as a "great man." All three are recognized for their support of gay rights issues.
Of course, Cheney has a gay daughter, but I suspect there are plenty of GOP pols with gay family who nonetheless oppose gay marriage.

Credit where it's due ....

Thursday, February 16, 2012

Choose your own economic Armageddon!

Daniel Davies invites you to choose your own path to solving The Greek Problem.
Welcome to Choose Your Own Troika Program For Greece! You are a junior member of the One World Government, and you have been given the job of coming up with a proposal to resolve the Greek crisis. You have also been given an advisor who will help you talk through the consequences of decisions. Remember that you have to consider the economic consequences of the various policy choices, but that there is no point in submitting a proposal which is politically unacceptable to either the Troika or the Greek government. Good luck!
I got to "full Argentina" in four or five steps, but see where you end up.

What was this machine for?

Erik Loomis tells you.

European limits on free speech

As something of a free-speech dogmatist, I've become interested in the decision of the European Court of Human Rights in Vejdeland v. Sweden, an appeal from a Swedish judgment affirming criminal fines against some folks who stuffed anti-gay flyers into high school students' lockers, which included the following:
“Homosexual Propaganda (Homosexpropaganda)

In the course of a few decades society has swung from rejection of homosexuality and other sexual deviances (avarter) to embracing this deviant sexual proclivity (böjelse). Your anti-Swedish teachers know very well that homosexuality has a morally destructive effect on the substance of society (folkkroppen) and will willingly try to put it forward as something normal and good.
-- Tell them that HIV and AIDS appeared early with the homosexuals and that their promiscuous lifestyle was one of the main reasons for this modern-day plague gaining a foothold.
-- Tell them that homosexual lobby organisations are also trying to play down (avdramatisera) paedophilia, and ask if this sexual deviation (sexuella avart) should be legalised.
Sounds like the kind of people who should be grateful Lisbeth Salander is only a fictional character.

The Swedish case was decided under a statute outlawing dissemination of speech that "threatens or expresses contempt for a national, ethnic or other such group of persons," including homosexuals. The issue for the ECHR was squaring this conviction with Article 10 of the European human-rights convention:
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, ... for the protection of the reputation or rights of others, ....
The seven-judge court unanimously upheld the convictions and fines, agreeing with the appellants that section 1 of Article 10 had been violated, but holding that the particular facts of the case brought it within the scope of section 2.
54. The Court notes that the applicants distributed the leaflets with the aim of starting a debate about the lack of objectivity of education in Swedish schools. The Court agrees with the Supreme Court that even if this is an acceptable purpose, regard must be paid to the wording of the leaflets. The Court observes that, according to the leaflets, homosexuality was “a deviant sexual proclivity” that had “a morally destructive effect on the substance of society”. The leaflets also alleged that homosexuality was one of the main reasons why HIV and AIDS had gained a foothold and that the “homosexual lobby” tried to play down paedophilia. In the Court’s opinion, although these statements did not directly recommend individuals to commit hateful acts, they are serious and prejudicial allegations.

55. Moreover, the Court reiterates that inciting to hatred does not necessarily entail a call for an act of violence, or other criminal acts. Attacks on persons committed by insulting, holding up to ridicule or slandering specific groups of the population can be sufficient for the authorities to favour combating racist speech in the face of freedom of expression exercised in an irresponsible manner (see Féret v. Belgium, no. 15615/07, § 73, 16 July 2009). In this regard, the Court stresses that discrimination based on sexual orientation is as serious as discrimination based on “race, origin or colour” (see, inter alia, Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 97, ECHR 1999-VI).

56. The Court also takes into consideration that the leaflets were left in the lockers of young people who were at an impressionable and sensitive age and who had no possibility to decline to accept them (see, mutatis mutandis, Handyside v. the United Kingdom, 7 December 1976, § 52, Series A no. 24). Moreover, the distribution of the leaflets took place at a school which none of the applicants attended and to which they did not have free access.

57. In considering the approach of the domestic courts when deciding whether a “pressing social need” existed, and the reasons the authorities adduced to justify the interference, the Court observes the following. The Supreme Court acknowledged the applicants’ right to express their ideas while at the same time stressing that along with freedoms and rights people also have obligations; one such obligation being, as far as possible, to avoid statements that are unwarrantably offensive to others, constituting an assault on their rights. The Supreme Court thereafter found that the statements in the leaflets had been unnecessarily offensive. It also emphasised that the applicants had left the leaflets in or on the pupils’ lockers, thereby imposing them on the pupils. Having balanced the relevant considerations, the Supreme Court found no reason not to apply the relevant Article of the Penal Code.

58. Finally, an important factor to be taken into account when assessing the proportionality of an interference with freedom of expression is the nature and severity of the penalties imposed (see Ceylan v. Turkey [GC], no. 23556/94, § 37, ECHR 1999-IV; Tammer v. Estonia, no. 41205/98, § 69, ECHR 2001-I; and Skaÿka v. Poland, no. 43425/98, §§ 41-42, 27 May 2003). The Court notes that the applicants were not sentenced to imprisonment, although the crime of which they were convicted carries a penalty of up to two years’ imprisonment. Instead, three of them were given suspended sentences combined with fines ranging from approximately EUR 200 to EUR 2,000, and the fourth applicant was sentenced to probation. The Court does not find these penalties excessive in the circumstances.
This seems to me rather a hedged ruling, that almost surely would've come down differently had the statements been made in, say, a letter to a newspaper, instead of jammed into students' lockers.

The separate concurrences by 5 of the 7 judges are interesting. Two find no violation of Article 10 only "with the greatest hesitation" and then only because of the distribution at a school (not attended by the appellants) and the relatively light penalties (fines, no imprisonment), and in view of the "real problem of homophobic and transphobic bullying and discrimination in educational settings."

Another likewise had "some hesitation" and would have preferred that the holding rest entirely on para. 56 quoted above. He expressly noted that "if exactly the same words and phrases were to be used in public newspapers such as Svenska Dagbladet, they would probably not be considered as a matter for criminal prosecution and condemnation."

Finally, two judges were more robust in joining the holding of the Court, but expressed "regret that the Court missed an opportunity to 'consolidate an approach to hate speech' against homosexuals," and would have liked a stronger holding. Their conclusion:
11. Our tragic experience in the last century demonstrates that racist and extremist opinions can bring much more harm than restrictions on freedom of expression. Statistics on hate crimes show that hate propaganda always inflicts harm, be it immediate or potential. It is not necessary to wait until hate speech becomes a real and imminent danger for democratic society.

12. In the words of the prominent US constitutionalist Alexander Bickel: “... This sort of speech constitutes an assault. More, and equally important, it may create a climate, an environment in which conduct and actions that were not possible before become possible ... Where nothing is unspeakable, nothing is undoable.”
Hadn't seen that Bickel quote before. (They cite Alexander M. Bickel, Domesticated Civil Disobedience: The First Amendment, from Sullivan to the Pentagon Papers, in THE MORALITY OF CONSENT 72-73 (1975).)

Given the caution of the Court in limiting its holding, it's difficult to take this decision as prohibiting criticism of homosexuals or of civil protections for them. Yet that is just how my source for this decision, Eugene Volokh, takes it:
Are you only allowed to make such arguments to people who are already on your side, so that you are forbidden from trying to reach out to others who might be persuadable and yet who might be offended (even when offended people were free to simply throw out the leaflets once they saw what they said)? Are you only allowed to talk about it to adults, and forbidden from trying to reach out to persuade high school students, apparently of age 16 to 19 — even though, as best I can tell, statements about sexuality generally to such “impressionable and sensitive” students is quite legal, and indeed even sex with such students is quite legal (since the age of consent in Sweden is 15)? And are even discussions with willing adults safe, or could they too lead to criminal prosecutions for “agitation against a [sexual orientation] group”?

Or is it that, once the law has changed (in my view, correctly) to legalize homosexuality and to treat it as morally and legally equivalent to heterosexuality, it is now illegal to try to change social opinion in a way that would change the law back to what it once was — or even to create social condemnation of homosexuality even if there is no legal condemnation?
Read the ECHR decision and see for yourself, but I think that is a very weird takeaway from this case. It seems to me Prof. Volokh is seeing what he wants to see here.

The merits of Article 10, section 2 are certainly debatable. I don't think there's any question that the flyers in question are protected by the First Amendment, though given the restrictions schools can place on students' speech, I am curious whether the same rationales wouldn't fail to protect such speech in a like location. Does the experience of racist propaganda in 20th-century Europe justify such a law as section 2? I have my doubts, but it's provocative to read judicial opinions from a foreign jurisdiction that contemplate such questions.

Wednesday, February 15, 2012

Just as well Whitney outlived Osama, then

Surely, surely this is too odd to be true?
"Osama kept coming back to Whitney Houston," she says in the book, excerpted in the magazine Harpers' Bazaar. "He asked if I knew her personally when I lived in America. I told him I didn't. He said that he had a paramount desire for Whitney Houston, and although he claimed music was evil he spoke of someday spending vast amounts of money to go to America and try to arrange a meeting with the superstar. It didn't seem impossible to me. He said he wanted to give Whitney Houston a mansion that he owned in a suburb of Khartoum. He explained to me that to possess Whitney he would be willing to break his colour rule and make her one of his wives. Whitney Houston's name was the one that would be mention constantly. How beautiful she was, what a nice smile she has, how truly Islamic she is but is just brainwashed by American culture and by her husband Bobby Brown, whom Osama talked about having killed, as if it were normal to have women's husbands killed."
Well, when you've planned 9/11, having women's husbands killed must seem like small beer.

This from "Sudanese poet and novelist Kola Boof, who claims she was bin Laden's sex slave for four months 10 years ago." Caveat lector.


"Contraception's Con Men"

As one would expect, Garry Wills just happens to have handy a can of whup-ass to open up on the Catholic bishops regarding the contraceptive-insurance issue. A good short read, from which I will quote only this charming snark: in the eyes of the GOP base,
[Santorum] is the principled alternative to the evil Moderation of Mitt Romney and the evil Evil of Newt Gingrich.

Monday, February 13, 2012

Tho I see Romney as more the Saruman type ...

I have nothing interesting to say about Rick Santorum's resurgence in the polls, so I'll just quote a line I liked from Kevin Drum instead:
So what happens now that both the national spotlight and Romney's millions are turned on Santorum like the Eye of Sauron?
It's an apt simile.

... Meanwhile, Romney again demonstrates his amazing instinct for politics:
Mitt Romney writes in a Detroit News op-ed that President Obama should have let automakers go into a "managed bankruptcy" instead of using a federal bailout with taxpayer money.
The Michigan primary is at the end of this month, so of course it was vital for Romney to remind everyone as quickly as possible that he wanted to let Motor City become Bankruptcyville. Idk, maybe this is what the GOP base wants to hear, even in Michigan. Maybe.

Saturday, February 11, 2012

Southwick on Mississippi separation of powers

Trying to google up a biography of George Ethridge (no luck), I stumbled upon Leslie Southwick's 2003 article on separation of powers in Mississippi (72 Miss L.J. 927). He discusses the Hunt case that we noted yesterday:
Obviously, the assumption by one branch of the authority to oversee the internal operations of another branch has separation of power ramifications. Hunt limited its oversight to situations that were not solely internal. The courts would review compliance with constitutional procedural requirements such as the requirement that statutes not be reviewed by reference, or the constitutional time limits placed on appropriation bills, when those requirements affected the operation of the bill, not just its passage.

There is nothing inherently revolutionary to the placement of limits on judicial oversight of other branches. There was no initial concept under separation of powers principles that every act of every government actor had to be subject to judicial review. There are constitutional requirements on the manner in which the legislature operates. There are also requirements for the executive such as to give "from time to time" reports to the legislature on "the state of the government, and recommend for consideration such measures as may be deemed necessary and expedient."

May the judiciary issue a mandamus requiring that the governor give the report if it decides too much time had passed since the last one? * * * Hunt had held that the legislature had an unreviewable area of behavior. The Hunt view was that since the legislature was a coequal branch, correctives other than litigation would be necessary for those errors.


The Hunt opinion is consistent with the original purpose of Mississippi's separation of powers provision, which was to avoid concentrating power in any one branch.
He also gives an example regarding the judiciary:
The constitutional obligations of the judiciary include not reversing a judgment solely because the case was brought in chancery court when it should have been brought in circuit court. If the supreme court nonetheless issued an opinion that reversed solely for that reason, should there be a remedy from some other branch? The remedy would only be through the political process, both by voters and potentially by impeachment.

Brainstorming is bollocks

Oh how happy I was to read this:
In the late nineteen-forties, Alex Osborn, a partner in the advertising agency B.B.D.O., decided to write a book in which he shared his creative secrets. * * * Osborn’s most celebrated idea was the one discussed in Chapter 33, “How to Organize a Squad to Create Ideas.” When a group works together, he wrote, the members should engage in a “brainstorm,” which means “using the brain to storm a creative problem—and doing so in commando fashion, with each stormer attacking the same objective.” * * *

The book outlined the essential rules of a successful brainstorming session. The most important of these, Osborn said—the thing that distinguishes brainstorming from other types of group activity—was the absence of criticism and negative feedback. If people were worried that their ideas might be ridiculed by the group, the process would fail. “Creativity is so delicate a flower that praise tends to make it bloom while discouragement often nips it in the bud,” he wrote. “Forget quality; aim now to get a quantity of answers. When you’re through, your sheet of paper may be so full of ridiculous nonsense that you’ll be disgusted. Never mind. You’re loosening up your unfettered imagination—making your mind deliver.” Brainstorming enshrined a no-judgments approach to holding a meeting.

* * *Brainstorming seems like an ideal technique, a feel-good way to boost productivity. But there is a problem with brainstorming. It doesn’t work.
They made us do this crap in school. I hated it. "Think of as many ideas as you can, and NO CRITICISM!" What, I sulked, was the point of not being able to criticize?

Nemeth’s studies suggest that the ineffectiveness of brainstorming stems from the very thing that Osborn thought was most important. As Nemeth puts it, “While the instruction ‘Do not criticize’ is often cited as the important instruction in brainstorming, this appears to be a counterproductive strategy. Our findings show that debate and criticism do not inhibit ideas but, rather, stimulate them relative to every other condition.” Osborn thought that imagination is inhibited by the merest hint of criticism, but Nemeth’s work and a number of other studies have demonstrated that it can thrive on conflict.

According to Nemeth, dissent stimulates new ideas because it encourages us to engage more fully with the work of others and to reassess our viewpoints. “There’s this Pollyannaish notion that the most important thing to do when working together is stay positive and get along, to not hurt anyone’s feelings,” she says. “Well, that’s just wrong. Maybe debate is going to be less pleasant, but it will always be more productive. True creativity requires some trade-offs.”
This is the best social-science finding I've seen since the amazing discovery that "self-esteem" is best enhanced by actual accomplishment, instead of by praising kids equally no matter what they do.

Friday, February 10, 2012

PERS a "professional plaintiff"?

Alison Frankel's "On the Case" blog discusses litigation by PERS:
In a Feb. 9 response to the MissPERS bid, Robbins Geller argued that the Private Securities Litigation Reform Act bars investors from serving as lead plaintiff in more than five cases in any three-year period. "MPERS admits that it has been appointed as lead plaintiff in at least six cases in the last three years," the Robbins Geller brief said. "And MPERS is currently preoccupied with so many cases that it has apparently forgotten to advise the court of its involvement in at least one additional case in which MPERS was recently appointed lead plaintiff. Of equal concern is MPERS's apparent intention to continue to collect additional lead plaintiff appointments, as it recently filed yet another motion to be appointed lead plaintiff in a [securities class] action [against Green Mountain coffee]." By the New England fund's count, MissPERS has been a lead plaintiff in "as many as 16" cases in the last three years -- three times as many as the PSLRA limit.

Courts frequently make exceptions to the five-case rule for institutional investors like the Mississippi pension fund, but Robbins Geller pointed to a case called In re McKesson HBOC, in which U.S. District Judge Ronald Whyte of San Jose federal court refused to appoint MissPERS as lead plaintiff because of its commitments in other cases.

MissPERS uses a lot of different plaintiffs firms. (As lead counsel in the just-settled $315 million Merrill Lynch mortgage-backed securities class action, for instance, the fund was represented by Bernstein Litowitz Berger & Grossmann.) But one firm that doesn't work for MissPERS is Robbins Geller, which is one of the reasons this lead plaintiff (and lead counsel) fight may get ugly.
Hm, is anyone up in arms over the use of private counsel here? Or does that just apply to the AG's office?

The argument for the Barbour pardons

Yesterday's oral arguments at the MSSC left a good many lawyers expecting that the pardonees will prevail in the AG's suit to revoke the last-minute pardons issued by Haley Barbour. Some non-lawyers however are puzzled. Isn't Section 124 clear?
... in cases of felony, after conviction no pardon shall be granted until the applicant therefor shall have published for thirty days, in some newspaper in the county where the crime was committed, and in case there be no newspaper published in said county, then in an adjoining county, his petition for pardon, setting forth therein the reasons why such pardon should be granted.
Well, kind of. It's not very clear about instances where no one is applying for a pardon (Mansion trusties, dead people). And, as came out yesterday, even the AG hasn't required publication of the full petition (which an attorney for one pardonee told me would cost $4,000 to run in the relevant paper). And while no one raised it yesterday, it says "the applicant" himself must publish - so is a pardon invalid if the Governor or MDOC ran the notice instead?

But those issues aside, let's look squarely at the main issue: an applicant who's published no notice at all, but who is pardoned anyway. At least some of Barbour's pardons fall into this category, right? So what about those?

The answer urged by the pro-pardon attorneys yesterday, which it certainly seemed was attracting favorable attention from a majority of the Court, is that the publication is absolutely required, but that the courts cannot decide whether it's been done. That is a strange answer to most non-lawyers and to some lawyers, so let's take a look at how that might be the right answer.

First, let's look at the beginning of the 1890 constitution (which I'll call "1890"):
The powers of the government of the state of Mississippi shall be divided into three distinct departments, and each of them confided to a separate magistracy, to-wit: those which are legislative to one, those which are judicial to another, and those which are executive to another.

No person or collection of persons, being one or belonging to one of these departments, shall exercise any power properly belonging to either of the others. The acceptance of an office in either of said departments shall, of itself, and at once, vacate any and all offices held by the person so accepting in either of the other departments.
Unlike the federal Constitution, which implicitly separates the powers, 1890 does so expressly and up-front, which tells you something about the importance of this provision.

Just two years after 1890 was enacted, the MSSC decided a case called Hunt v. Wright, which arose out of section 68 of 1890:
Appropriation and revenue bills shall, at regular sessions of the legislature, have precedence in both houses over all other business, and no such bills shall be passed during the last five days of the session.
See that "no such bills shall be passed" language? It's very similar to the "no pardon shall be granted" language in Section 124. Both sections seem quite clear.

But in Hunt, the MSSC refused to overturn a liquor tax that was enacted in the last 5 days of the session.
the legislature, as a co-ordinate department of the state government, invested by the constitution with legislative power, is not subject to supervision and revision by the courts as to those rules of procedure prescribed by the constitution for its observance, because, while those rules are all authoritative and mandatory to legislators, who are sworn to note and observe them, they exhaust themselves upon legislators, and are not for the consideration of courts, which cannot explore legislative journals to see if all the directions of the constitution were observed, but must accept as legislative enactments, duly passed as prescribed by the constitution, all such acts as are duly authenticated as such in the mode prescribed by it. * * *

The declaration of section 68 that no appropriation or revenue bill shall be passed during the last five days of the session, has reference to being passed by the legislature, and does not refer to approval by the governor. The two houses pass bills. The governor approves, and he may approve at any time when the legislature is in session. While the provision of section 68 is obligatory on the legislature, its disregard of it is beyond the reach of courts, which are not keepers of the consciences of legislators, and deal only with what they do, and not what they should have done or omitted.
(Boldface added, here & throughout.) So the separation of powers is sufficiently strong that, even where Section 68 expressly says the Legislature shall not do such-and-such, the courts will not redress an alleged violation. This was a unanimous decision by justices who presumably were a lot more familiar with the making of 1890 than we are today (as Justice Dickinson noted in his questioning yesterday). Hunt was reaffirmed as recently as 2001 in Tuck v. Blackmon, so it's not just some quaint fossil on the jurisprudential shelf.

Okay, now, what about pardons? We turn to the decision of Montgomery v. Cleveland, 1923, written for the Court by Justice George Ethridge, the dean of Mississippi constitutional scholars. It doesn't address the publication requirement directly - no decision of the Court does - but Justice Dickinson and Chief Justice Waller yesterday appeared to suggest that this case might well be controlling. What does it say?
While a pardon is a matter of grace, it is nevertheless the grace of the state, and not the personal favor of the Governor. It is granted out of consideration of public policy, for the benefit of the public as well as of the individual, and is to be exercised as the act of the sovereign state, not of the individual caprice of the occupant of the executive office as an individual. He is supposed to act in accordance with sound principles and upon proper facts presented to him. Of course, he is the sole judge of the sufficiency of the facts and of the propriety of granting the pardon, and no other department of the government has any control over his acts or discretion in such matters.
The question for the AG yesterday was, isn't the matter of compliance with the publication requirement a question of the "sufficiency of the facts" that is left to the Governor as "sole judge" in which "no other department of the government has any control"?

Tom Fortner, arguing for the pardonees, said that under Hunt, the Court would be showing less respect to the Executive than to the Legislature if it reversed the pardons on a procedural issue. Hood's response was that Hunt was wrongly decided, and that today's Court can read 1890 a lot better than the justices could back in 1892. He also didn't seem to have much of an answer on Montgomery except to say that it too must be overruled in part; he wanted to say that only the "wisdom" of the pardons escaped judicial review, but as Justice Dickinson pointed out, it says "facts."

In 1890 the people added to their constitution a new factual requirement, that the applicant make publication; but nothing in 1890 specified that this new factual issue was any less for the Governor's sole determination. If they wanted Section 124 to make that factual determination uniquely one reviewable by the courts, contrary to the long history of unilateral executive discretion, then they probably should have said that in the text. But they didn't.

As Hood correctly noted, the publication requirement was new in 1890. But compare this from Hunt:
while the new constitution contains new provisions restrictive of legislative power, and designed to guard against evils in legislative proceedings, there is nothing to suggest that the courts are to pry into the record of the proceedings of the legislature to ascertain if it regarded rules prescribed for its observance while about its business.
Like I said: 1890 includes the requirement, but doesn't suggest any extraordinary means of enforcing it. (Note especially the contrast with pardons for treason, which must be approved by the senate.)

I'm not saying the above arguments are indefeasible; I could try to distinguish Hunt and Montgomery. But the AG, who evidently came in woefully underprepared for his argument, didn't seriously try to distinguish them.

At bottom, the perplexity felt by many about this case may have its roots in the notion that constitutional violations are always remediable by the courts. This is largely true in the sphere of civil rights, which is why Hood (with some help from an increasingly irked Justice Randolph) was trying to cast Section 124 as protecting some "right" of the public's.

But in separation of powers, where the whole point is to limit the judiciary's power, there may be some constitutional wrongs that the courts cannot redress -- which goes against our modern way of looking at things. People in 1890, I daresay, were much less attuned to the idea of everything's being something for the courts to fix. When the people elected Haley Barbour (twice), they implied they trusted him to carry out his constitutional duties. It seems that trust was misplaced. But having trusted him to obey Section 124, they may need to look not to the courts, but to the old maxim of caveat emptor.

Tuesday, February 07, 2012

I had nothing to do with the flap I've resigned over

Karen Handel, the anti-choice Republican said to've played a major role in the Komen Foundation's decision to cut funding for cancer screening at Planned Parenthood, has resigned from Komen.

The anodyne ABC News story I've linked should be compared with what the AP got from an anonymous source at Komen:
A person with direct knowledge of decision-making at Komen's headquarters in Dallas said the grant-making criteria were adopted with the deliberate intention of targeting Planned Parenthood. The criteria's impact on Planned Parenthood and its status as the focus of government investigations were highlighted in a memo distributed to Komen affiliates in December.

According to the person, who spoke on condition of anonymity for fear of repercussions, a driving force behind the move was Handel, who was hired by Komen last year as vice president for public policy after losing a campaign for governor in Georgia in which she stressed her anti-abortion views and frequently denounced Planned Parenthood.
I saw that on the NYT phone app under "top stories," but now the paper is running its own item without the anon source or anything comparable.

Why we have illegal immigration

The WaPo for once is not merely a waste of newsprint and pixels:
A large majority of the 11 million illegal immigrants are unskilled or low-skilled Mexicans. Many of them have no relatives over age 18 who are either U.S. citizens or permanent residents in possession of green cards.

That makes them ineligible for any realistic visa category. They are barred in most cases from employment-based visas, which favor skilled and well-educated applicants, and from family-based visas, which require applicants to have spouses, parents or siblings who are U.S. citizens or hold green cards. (Even the “line” for those visas often takes 15 to 20 years or more.) There is simply no immigrant visa category for which most unskilled Mexicans qualify and no realistic prospect they could be legally admitted to the United States. About half of the unauthorized adults in the country are Mexicans who probably have no category for admission, according to Pew Hispanic Center senior demographer Jeffrey S. Passel.
The market says that unskilled/low-skilled Mexicans are needed. Federal regulations say otherwise. As so often, you can't regulate around the market.

So why isn't "market-based immigration" a Republican war cry? Doesn't it fit their ideology to a T? What could there be about these workers that motivates the GOP to contradict its principles?

I leave the explanation as an exercise for the reader.


... In the interests of fair-mindedness, however, America may have an obstacle to a guest-worker program that other countries don't: the Fourteenth Amendment and birthright citizenship. Is it reasonable to admit unskilled workers if their children born here will become citizens?

I don't know the relevant data: are we better off overall if such immigrants do come here, settle, and raise families? How much upward mobility is there for immigrants' children? How many illegal "guest workers" in fact settle here, as opposed to working in America for a while and then returning home? It's probably a lot harder to gather accurate data on illicit behavior.

Monday, February 06, 2012

Oral argument letters for second sitting

Got one in the mail this weekend from the MSSC, following the pattern of letters being sent to counsel before they are acknowledged on the Court's online docket.

Last sitting, it took 11 days for the Court to post "letter sent" on the website (and you have to have some experience with this stuff to infer what "letter sent" probably means).

We continue to be curious about the IOPs at the MSSC, though not as curious as we are about the annual report for 2010, which still isn't posted.

Friday, February 03, 2012

Their Satanic majesties

Judge Primeaux posts a challenging exegesis from Ivan Illich:
“Lifting him up, then, he showed him, in a single glance, every realm in the world. And the devil said: ‘All their power and all their glory I will bestow on you, since they are entrusted to me and to those I bestow them on. Bow to me and it is all yours.” – Luke 4:5-7 [Emphasis added]

It is astonishing what the devil says: I have all power, it has been given to me, and I am the one to hand it on — submit, and it is yours. Jesus of course does not submit, and sends the devilcumpower to Hell.[*] Not for a moment, however, does Jesus contradict the devil. He does not question that the devil holds all power, nor that this power has been given to him, nor that he, the devil, gives it to whom he pleases. This is a point which is easily overlooked. By his silence Jesus recognizes power that is established as “devil” and defines Himself as The Powerless. He who cannot accept this view on power cannot look at establishments through the spectacle of the Gospel.
It is of course possible that the devil, the Father of Lies, is simply lying here. But as Illich notes, that's not what Jesus tells him; Jesus's response is simply to cite that one is to serve only God. Not "you can't really give me that," but "no matter what you offer, worshipping anyone but God is not acceptable."

If the early Church were half as conspiratorial as some make it out to be, those verses would never have stayed in the Bible. Even today, anyone who expressed that idea in his own words would be labeled as a nut. I'm not even sure what it would mean to live each day on the principle that all earthly power is Satan's. (Building a compound in the woods would hardly suffice, indeed would be a false assertion of one's own power.) I suppose I would blog a lot less about politics.

*Not in Luke he doesn't; the devil "departed from him until an opportune time." Which is more insidious than Matthew's version, where the devil simply leaves and then angels minister to Jesus. No angels in Luke's story; the next event is that Jesus "returned in the power of the Spirit into Galilee."

... RSV has "authority" in the devil's temptation, not "power." The word at Luke 4:6 is exousia, which includes "the power of judicial decisions" (them who have an ear to hear ...). The "power of the Spirit" is dunamis (cf. "dynamic"), power more in the sense of a force that moves things; the same word is translated "potentiality" or "potency" in Aristotelian metaphysics. Note of course that Jesus is frequently seen to have exousia - he "teaches as one with authority, not as the scribes and Pharisees," etc.

Thursday, February 02, 2012

Komen chameleon

I'd noticed the general uproar over the Susan G. Komen foundation - those pink-ribbon people, yes, them - and their yanking funding from Planned Parenthood for breast-cancer screening. Jeffrey Goldberg has a good report: the supposedly neutral rule is to exclude any organization under gov't investigation (which, with a GOP House, will always include Planned Parenthood).
But three sources with direct knowledge of the Komen decision-making process told me that the rule was adopted in order to create an excuse to cut-off Planned Parenthood. (Komen gives out grants to roughly 2,000 organizations, and the new "no-investigations" rule applies to only one so far.) The decision to create a rule that would cut funding to Planned Parenthood, according to these sources, was driven by the organization's new senior vice-president for public policy, Karen Handel, a former gubernatorial candidate from Georgia who is staunchly anti-abortion and who has said that since she is "pro-life, I do not support the mission of Planned Parenthood." (The Komen grants to Planned Parenthood did not pay for abortion or contraception services, only cancer detection, according to all parties involved.) I've tried to reach Handel for comment, and will update this post if I speak with her.
Komen's "top public health official, Mollie Williams," resigned over the decision. Good for her.

(Sorry for the post headline, but I woke up with that damn song stuck in my head; thankfully I've forgotten any dreams which may have been the cause.)

... Goldberg's co-blogger, the notoriously stupid Megan McArdle, says the Komen decision is no big deal:
Though I'm pro-choice, I don't share the outrage that was roiling my Twitter feed this morning. It is, as Josh Barro noted, absurd to pretend that abortion is somehow incidental to Planned Parenthood's services, and since money is fungible, giving them money is probably helping to fund abortion provision.
Never mind the possibility that, on McArdle's own theory of PP's central mission, cutting funds for their cancer screenings would likely make them cease to offer cancer screenings. And then, the inane conclusion:
Unfortunately, while they easily could have declined to fund PP without much backlash, de-funding them sends an extremely explicit message that is probably going to cost them significant public support. Which is a pity, because early detection and treatment of breast cancer is a mission that we should all be able to agree on.
Uh, no, evidently not.

McArdle is the main reason that, despite reading some of its blogs, I will not subscribe to the Atlantic.

... Aaaand Komen folds. For now. I would guess PP will be in for disappointment if/when it reapplies for a new grant.

But if you adopt your girlfriend, is it then illegal to sleep with her? - UPDATED

This story totally misses the really important question.
A wealthy Florida polo club founder has adopted his longtime adult girlfriend in what attorneys believe may be a legal maneuver to protect his financial assets as he faces a trial for a drunk driving incident that killed a 23-year-old.

John Goodman, 48, formally adopted Heather Laruso Hutchins, 42, in October 2011. The couple started dating in 2009. Goodman is the founder of the International Polo Club Palm Beach in Wellington, Fla.

West Palm Beach Judge Glenn Kelley wrote in a court order that the twists in the case "border on the surreal and take the Court into a legal twilight zone."

"The Defendant has effectively diverted a significant portion of the assets of the children's trust to a person with whom he is intimately involved at a time when his personal assets are largely at risk in this case," the judge wrote.
Okay, but is it incest?

... Ah, leave it to Slate to catch this issue. Plus bonus lesbian action!

Wednesday, February 01, 2012

Dungeons & Duress

So, according to a Dutch court, if someone in the real world forces you to surrender your "goods" in a virtual, online role-playing environment, that can be prosecuted as theft.

I don't see what confines this to computer gaming and not tabletop D&D. If Dave threatens to beat up Gary unless Gary's character hands over his staff of the magi to Dave's character, is that any different? Does the answer change if Gary is the DM and the staff belongs to an NPC?