Friday, March 30, 2012

Why the Court will strike down the healthcare law

Some desperate liberals are trying to make themselves believe that fear for its "legitimacy" will prevent the Court (by which I mean, the five Republican justices in the majority) from striking down Obama's signature legislative accomplishment a few months before a presidential election.

Nonsense, says TBA. Look at the nine justices and their 5-4 split. It's like a pencil balanced on its point: it can't last forever. Which way will it fall?

If Roberts et al. can throw this decision and help get Obama out of office, Romney will likely get to replace Ginsburg and perhaps even Breyer, as well as assure right-wing replacements for Scalia and Kennedy if they step down. They have the chance to keep the Court on the Republicans’ side for at least another generation.

Versus the likelihood that Obama would get to appoint at least one replacement for a Republican justice in a second term, and tilt the Court’s balance with incalculable effects.

With the stakes so high, do you think Roberts et al. care about "legitimacy"? Of course they don't.

Your powers are weak, [liberal] man

Jon Chait is not buying that there's a silver lining to the Court's striking down Obamacare:
In any case, the political ramifications of an adverse ruling seem more harmful than helpful. Yes, liberals will be charged up against the Court, though also more despondent that winning an election matters. Meanwhile, the ruling would be a powerful confirmation to swing voters of the central Republican indictment of Obama. See how far his big government plans went? So far that the Supreme Court said they violated the Constitution! The prospect of handing Mitt Romney the chance to attach the epithet “unconstitutional!” to his opponent would seem to overwhelm any potential benefit.

A somewhat more plausible source of comfort is the prospect that, with the moderate, Republican-designed plan now off the table, Democrats can focus on the one remaining legal avenue to solve the health-care crisis: a single-payer system, like Medicare. This is sort of the liberal Obi-Wan Kenobi option...

In assessing this option, it’s worth bearing in mind that the dead Obi-Wan did not, in fact, become more powerful than Darth Vader could possibly imagine. His new powers seemed limited to appearing as an apparition offering inscrutable advice to Luke Skywalker, whereas the previous, alive version featured the power to slice people’s arms off with a lightsaber.
He does however notice something I hadn't:
The hurdles to passing Obamacare were that Democrats needed to have a majority in the House, the presidency, and 60 senators. The good news to passing single payer is that they probably would only need 50 senators. (Single-payers could be done simply by expanding Medicare, a pure fiscal change that could be accomplished through a budget bill that can pass the Senate with a majority vote.)
Obstacles include a Supreme Court that might strike that down, too (because, hey, the LAW has nothing to do with anything) and the difficulty of getting 50 Dem senators to blow up the insurance industry.

Thursday, March 29, 2012


The complexity of this legal system [in the later Roman Empire] was such that experts (iuriconsulti) were needed in every court, and sometimes just to draw up documents, but they may not always have been available or been fully reliable if they were. Even if legal help was accessible, courts did not necessarily judge justly, and the rich often benefited from judicial corruption and patronage .... In Egypt, papyrus documents recording the settlement of civil disputes in the fourth to sixth centuries show a strong tendency to avoid courts altogether, given their huge expense and danger, and to go directly to private arbitration.
—Chris Wickham, The Inheritance of Rome: A History of Europe from 400 to 1000, 31-32. Sounds, uh, completely unfamiliar.

... But does Wickham do more there than rewrite the famous passage from Gibbon?
The expense of the pursuit sometimes exceeded the value of the prize, and the fairest rights were abandoned by the poverty or prudence of the claimants. Such costly justice might tend to abate the spirit of litigation, but the unequal pressure serves only to increase the influence of the rich, and to aggravate the misery of the poor. By these dilatory and expensive proceedings, the wealthy pleader obtains a more certain advantage than he could hope from the accidental corruption of his judge.

Topsy-turvy justices?

This week's appalling oral arguments on the ACA in the Supreme Court are all over the internet, so they don't require much comment from me; see the How Appealing link in the sidebar if you want a roundup, and Balkinization is also doing good work.

But this from Jonathan Zasloff is too good not to mention. N.b. emphases his:
To grasp just how mendacious and incoherent the constitutional argument against the Affordable Care Act is, consider the plaintiffs’ argument today concerning “severability,” that is, whether, if the insurance mandate is struck down, whether the whole Act must be struck down.

The mandate is so intimately tied up in the whole scheme, argued lawyer Paul Clement, that all of the other provisions — community rating, guaranteed issue, the insurance exchanges, risk adjustment, the works — will also have to go.

Now also recall that the supposed argument here is that the mandate exceeds the federal government’s power to regulate “interstate commerce.” It is not an argument about personal liberty at all: that would be a substantive due process argument, in which the legislature receives enormous deference from the courts.

No one could possibly deny that if the federal government decided to write rules for all insurance companies concerning, say, community rating, guaranteed issue, insurance exchanges, and risk adjustment, that that would constitute regulation of interstate commerce. That is the quintessential form of regulation of interstate commerce. And the plaintiffs today have argued that the individual mandate is necessarily bound up with all of these forms of regulations, which is why it cannot be severed.

So here is the conservative argument: something that is necessary for the regulation of interstate commerce is not part of the power to regulate interstate commerce.

This, in short, is a revolution from above.

If the Act falls, it will not be because the Obama Administration did something wrong. It will not represent a “crisis of liberalism.” It will not be because the Democratic Party cannot govern. It will not be cause for any recriminations or hand-wringing.

It will be because five old men have decided that the Constitution does indeed “enact Mr. Herbert Spencer’s Social Statics,” and have decided to force their reactionary views on the rest of the country.

Wednesday, March 28, 2012

Death of a poet

Adrienne Rich, 1929-2012. Never personally cared for her anthology pieces, but a great feminist and poet. Plath, a few years younger, saw her as the (female) poet to beat, and jealously diarized Rich's prizes etc.

NMC notes the parallel death of Earl Scruggs, causing one to ponder the aesthetic juxtaposition as well as to wonder whether the angel of death took the wrong Scruggs.

... 3QD posts a 1968 poem by Rich:
I Dream I'm the Death of Orpheus

I am walking rapidly through striations of light and dark thrown
under an arcade.

I am a woman in the prime of life, with certain powers
and those powers severly limited
by authorities whose faces I rarely see.
I am a woman in the prime of life
driving her dead poet in a black Rolls-Royce
through a landscape of twilight and thorns.
A woman with a certain mission
which if obeyed to the letter will leave her intact.
A woman with nerves of a panther
a woman with contacts among Hell's Angels
a woman feeling the fullness of her powers
at the precise moment when she must not use them
a woman sworn to lucidity
who sees through the mayhem, the smoky fires
of these underground streets
her dead poet learning to walk backward against the wind
on the wrong side of the mirror.

Great minds think alike - UPDATED

Or is it fools? I forget.

Anyway, y.t. in a comment thread at LGM yesterday:
That to me is why this case is about the N&P Clause, not the Commerce Clause. (NOTE: I am an expert in neither.)

It’s difficult for me to accept that any problem of interstate commerce could justify a Broccoli Mandate.

But we *know* that the ban on excluding preexisting conditions is within the Commerce Clause. It’s a no-brainer.

To make the ban feasible, however, Congress has to make everyone opt into the insurance market. Straight N&P stuff – you just stand there and quote McCulloch v. Maryland until the other side starts to cry.
And well-known constitutional scholar Akhil Reed Amar, today:
The most important limit, the one we fought the Revolutionary War for, is that the people doing this to you are the people you elect. That’s the main check. The broccoli argument is like something they said when we were debating the income tax: If they can tax me, they can tax me at 100 percent! And yes, they can. But they won’t. Because you could vote them out of office. They have the power to do all sorts of ridiculous things that they won’t do because you’d vote them out of office. If they can prevent me from growing pot, can they prevent me from buying broccoli? Perhaps, but why would they if they want to be reelected? So if you ask me what the limits are, I’d say read McCulloch vs. Maryland. And reread it. And keep reading it till you understand it.
Alas, neither of us was called upon to argue the feds' case this week.

... Charles Fried is worth a look. He ends on a disheartening note about the apparent views of the conservative justices this week:
Politics, politics, politics. You look at the wonderful decision by Jeff Sutton, who is as much of a 24-karat gold conservative as anyone could be. He is a godfather to the Federalist Society. Look at his opinion. Or look at Larry Silberman’s opinion. I don’t understand what’s gotten into people. Well, I do I’m afraid, but it’s politics, not anything else.
... In comments, Just Thinking suggests that the democratic check on abuse of the N&P Clause, throwing the bums out, doesn't work. I think maybe that means "doesn't work well enough to suit some people." Regardless, Amar has good support for his position, as both Hamilton and Madison identified the same check in the Federalist. Hamilton in No. 33:
But it may be again asked, Who is to judge of the NECESSITY and PROPRIETY of the laws to be passed for executing the powers of the Union? I answer, first, that this question arises as well and as fully upon the simple grant of those powers as upon the declaratory clause; and I answer, in the second place, that the national government, like every other, must judge, in the first instance, of the proper exercise of its powers, and its constituents in the last. If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.
Madison in No. 44:
If it be asked what is to be the consequence, in case the Congress shall misconstrue this part of the Constitution, and exercise powers not warranted by its true meaning, I answer, the same as if they should misconstrue or enlarge any other power vested in them; as if the general power had been reduced to particulars, and any one of these were to be violated; the same, in short, as if the State legislatures should violate the irrespective constitutional authorities. In the first instance, the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts; and in the last resort a remedy must be obtained from the people who can, by the election of more faithful representatives, annul the acts of the usurpers.
The "limiting principle" as Amar notes is not a requirement imposed on other powers, like taxation ("but what if you tax at 100%?"). Some checks are political, not judicial (as we observed re: the pardon power under the Mississippi Constitution).

The ACA case, we had thought, was resolved 200 years ago in McCulloch:
Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the Government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land. But where the law is not prohibited, and is really calculated to effect any of the objects intrusted to the Government, to undertake here to inquire into the degree of its necessity would be to pass the line which circumscribes the judicial department and to tread on legislative ground. This Court disclaims all pretensions to such a power.
It appears that the Roberts Court, unlike the Marshall Court, may indeed pretend to that power. That will be John Roberts' legacy.

Parents, do not ask Mitt Romney to be your child's godfather

"I can tell you one thing. If I'm the godfather of this thing, then it gives me the right to kill it."

-- Mitt Romney, in an interview with Hugh Hewitt, on President Obama's health care law.
Political Wire. Perhaps Mormon practices regarding godchildren are different than those I'm familiar with.

Student expelled for tweeting F-word(s)

Really, America, should a student be expelled for dropping the F-bomb online?
Police were called to Garrett High School Friday after students there threatened to protest. This all comes after a senior was expelled for what he tweeted on his personal Twitter account.

"One of my tweets was, fuck is one of those fucking words you can fucking put anywhere in a fucking sentence and it still fucking make sense,” said Austin Carroll, student. [Expletives restored.]

Austin was expelled from Garrett High School after tweeting the F-word under his account. The school claims it was done from a school computer. Austin says he did it from home.
Sorry, but any principal who *expels* a student for such conduct needs to be corrected, pronto. Good for the protesting students.

(Via Language Log, which praises Austin's syntactic analysis.)

Date night with Jesus?

I don't like the word "evangelical" in this sense, tho "fundamentalist" and my own mental shorthand, "Southern Baptist," are also inadequate. Anyway, "those people we're talking about when we talk about 'evangelicals.'" The New Yorker reviews an anthropologist's field observations in the Vineyard Christian Fellowship:
This casualness carries over to conversations with God. The Vineyarders asked him “for admission to specific colleges, for the healing of specific illness—even, it is true, for specific red convertible cars.” Some Vineyard women had a regular “date night” with Jesus. They would serve a special dinner, set a place for him at the table, chat with him. He guided the Vineyarders every minute of the day. Sarah told Luhrmann how, one day, after a lunch at a restaurant with fellow-parishioners, she was feeling good about herself, whereupon, as she was crossing the parking lot, a bird shat on her blouse. God, she explained to Luhrmann, was giving her a little slap on the wrist for her self-satisfaction. Sarah accepted the chastisement, but others don’t. They may get furious with God. And, according to some evangelicals, he feels bad when this happens. In “Disappointment with God” (1988), the religious writer Philip Yancey claims that God can’t bear for us to turn away from him. He longs for us to like him. It is hard to understand how evangelicals, most of whom are regular Bible readers, could come to this conclusion about the God of Abraham and Job.

Worth a read; this part struck me as significant:
Elaine, her “prayer partner” (the woman who brought the news of the cricket that sang Handel), had terrible problems: she couldn’t pay her rent, but neither could she get a job. She had interview after interview. Before each of them, she and Luhrmann prayed together vigorously, but she received no offer. Elaine said that she understood why: by refusing to grant her a job, Jesus was showing her that he wanted her to depend on him alone. About this, Luhrmann makes only a bland comment: reasoning such as Elaine’s, she says, “allows people to reinterpret a disappointment as, in effect, a promotion.” In the end, Elaine decided that she was a prophet. (Some members of the church agreed with her.)
Reinterpretation of one's experience is a key reason for religion. And interpreting God as "a stuffed Snoopy" (the author's metaphor) who unconditionally loves and consoles, certainly gives one a powerful interpretive tool. It also, arguably, allows people like Elaine to postpone growing up, since life becomes a spiritual quest for eternal childhood.

When Jesus said to be like a little child, I don't think this was what he had in mind. Or maybe it was?

Posner don't play

We order the defendants to show cause within 14 days of the date of this order why they should not be sanctioned for contumacious conduct in this court. If they ignore this order to show cause like the last one, they will find themselves in deep trouble.
This in yet another appellate victory by a prisoner, a fellow in Wisconsin who claimed that "Nutriloaf," a deliberately foul food used to punish prisoners, made him vomit and caused an anal fissure.

The defendants' offensive conduct in the court was failure to file a brief or respond to a show-cause order about the nonfiling: "They seem to think that the federal courts have no jurisdiction over a county jail." They also blew off the district court (which ruled for them anyway), and the 7th Circuit all but told the district court to impose sanctions there as well.

The conservative mind

Looking over at the New Criterion website, we find a review of Robin Harris's book The Conservatives: A History, featuring a telling quote from the Marquess of Salisbury:
One element of his fame results from a remark reported by his wife when, casually coming into the family drawing room after a morning at his desk, he said he did not understand what people meant by the “burden of responsibility.” One makes one’s decision in terms of the materials available, he said, “and not in the least upon the magnitude of the results which may follow. With the results I have nothing to do.
Liberalism, indeed, is all about the results. Conservatives, pace Salisbury, care intensely about the results—lower taxes for the rich, for instance—but can't get away with saying so, hence they have to pretend their decisions are based on principles ("no new taxes!").

Hilton Kramer, R.I.P.

Hilton Kramer, editor of The New Criterion, has died, age 84.

His reactionary politics were too ill-thought-out to merit discussion, but his magazine was always worth picking up for its arts and literature coverage.
A resolute high Modernist, he was out of sympathy with many of the aesthetic waves that came after the great achievements of the New York School, notably Pop (“a very great disaster”), Conceptual art (“scrapbook art”) and postmodernism (“modernism with a sneer, a giggle, modernism without any animating faith in the nobility and pertinence of its cultural mandate”).

At the same time, he made it his mission to bring underappreciated artists to public attention and open up the history of 20th-century American art to include figures like David Smith, Milton Avery and Arthur Dove, about whom he wrote with insight and affection. Some of his best criticism was devoted to artists who had up until then been regarded as footnotes.
I suspect that as time wears on, Kramer's general lack of respect for the fads that followed modernism will seem increasingly correct.

Tuesday, March 27, 2012


On this book title: Epicurus: The Atheist Savior.

Litigation as mug's game

Zach Johnson was not a happy prisoner. Oh sure, there was the life sentence he was serving, with 50 years to serve thereafter, but never mind about that. No: Zach was unhappy that the State of Mississippi took his mug. His 16-ounce opaque plastic mug, which was confiscated along with the like mugs of every other prisoner in the South Mississippi Correctional Institution, because some inmates (tho not, on the record facts, Johnson) were hiding contraband in their mugs.

So he filed a grievance. And lost. And sued. And lost. And appealed. And ...

Won. 9-0 in the court of appeals.
The SMCI canteen sold Johnson his drinking mug. Johnson bought his drinking mug, using his own money from his inmate account, and at the time of purchase, the drinking mug was an authorized piece of personal property for an inmate to possess. Further, and important to note, the record does not contain any allegation that Johnson was using his drinking mug for any prohibited purpose. * * * Johnson is entitled to just compensation based on the MDOC and SMCI’s deprivation of his possessory right to his drinking mug.
I find the constitutional argument a bit off, inasmuch as it seems to rely on a concurring opinion by Justice O'Connor. I would not bet heavily on MDOC's losing this case on cert to the MSSC.

But let's take a step back. What relief did ole Zach seek?
Johnson requested he be reimbursed for the cost of his confiscated drinking mug or be provided a comparable clear drinking mug. His request was twice denied.
Would it not have been prudent to give the man back his $5 or whatever, rather than litigate this silly case—let alone place an adverse precedent in the books?

Congrats, pro se litigant Zach Johnson; boo hiss, Ronald King, SMCI superintendent.

... The COA btw was not impressed with SMCI's proffered remedy, which was to mail the mug to Johnson's home address: much good that would do to a man with a life + 50 sentence.

... Johnson's constitutional argument may be better than I suspected. Leaving aside O'Connor's solo concurrence in Hudson v. Palmer, the Court implied that where, as here, the State acted as a matter of deliberate policy, a remedy may lie:
Two Terms ago, we reaffirmed our holding in Parratt in Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982), in the course of holding that postdeprivation remedies do not satisfy due process where a deprivation of property is caused by conduct pursuant to established state procedure, rather than random and unauthorized action.
Might work.

When is a girl not a girl?

Here's Jenna Talackova, who used to be a contestant in Canada's Miss Universe pageant:

I say "used to" because Ms. Talackova also used to be something else: a guy. Until 4 years ago at age 19, when she had a sex-change operation. Which apparently supposedly is against the rules of the pageant. Which, quite frankly, sounds like the kind of rule that won't fly with the Canadian Supreme Court, but time will tell.
Asked in 2010 whether she regarded herself as a transgender or as a woman, a winking Talackova replied, "I regard myself as a woman -- with a history."
The photograph suggests that she has sufficient femininity for the pageant. In fact, pardon us for suspecting the real reason for her exclusion is that models nowadays are supposed to look like slim boys with large breasts tacked on, so the other contestants may think starting off as a boy gives Talackova an unfair advantage.

("Lack ova"? You can't make this stuff up.)

One way banks try to trick their customers

It's the little things in life, isn't it? I'm always amused by this little gimmick that BankPlus (like doubtless other banks) uses in its online-banking site. Pull up your account, and you see this:

Balance: $601.94

Available** $2,901.18

Of course, the double-asterisks are significant:
**This balance may include overdraft transfer protection, line of credit funds and/or discretionary overdraft coverage. Additional amounts included in the available balance may not be available for all transactions.
IOW, more funds are "available" but it's not actually your money.

But that's not the tricky part. What's missing here (I've modified the numbers from my own balance today) is a number readily available to the bank: the balance minus pending transactions. The bank knows that (in the present example) $50.76 is pending, but it shows the official ledger balance, not the real-time balance, which should be $50.76 lower.

The goal here is to make the customer think "oh, I have $600 in the bank" when it's actually less, because that increases the chance that the customer will incur the "discretionary overdraft coverage" that makes $36 for the bank every time it happens.

There is no technical reason the bank can't show ledger balance, real-time balance, and "available" balance. And it's not hard to do the math, if you understand how the account works. But quite obviously, BankPlus figures there is money to be made by relying on ignorance. "Balance" to many people means "how much money I have in the bank," and the niceties of pending transactions (themselves a holdover from pre-electronic days - I mean, really, what is "pending" about them?) are likely not stopping to think, "hey, my bank is actually trying to confuse me here."

Sunday, March 25, 2012

Dep't of And What Rough Beast, Etc.

Just when the gods had ceased to be and the Christ had not yet come, there was a unique moment in history, between Cicero and Marcus Aurelius, when man stood alone.

—Flaubert, letter to Madame Roger des Genettes

... quoted by Stephen Greenblatt in The Swerve: How the World Became Modern, a little book about the Epicurean poet-philosopher Lucretius and how the sole surviving manuscript of his work was recovered during the Renaissance by a humanist book-hunter. Rather an odd thing to win the Pulitzer, I thought, so I picked it up from the library. Yep, it's odd: they've somehow made a bestseller of a book about manuscript-copying and Italian classics-worshippers. (Greenblatt wrote a short take on his book in the New Yorker.)

To Petrarch and his admirers, the period after the fall of Rome was a period of miserable barbarism. Recently it became fashionable to rehabilitate "the Dark Ages" as not dark, just differently lighted. Now, I think, the pendulum is, correctly, swinging back, and we are starting to realize what a disaster for the West the fall of Rome was: we lost a millenium.

As Nietzsche put it: "The whole labor of the ancient world in vain: I have no words to express my feelings about something so tremendous." Can it happen again? Can it not happen again?

Saturday, March 24, 2012

Phineas & Ferb mocks me

"It's going to work, I'm using a very convincing font."

—Dr. Heinz Doofenshmirtz, discussing his propaganda leaflets.


To what purpose, April, do you return again?
Beauty is not enough.
You can no longer quiet me with the redness
Of little leaves opening stickily.
I know what I know.
The sun is hot on my neck as I observe
The spikes of the crocus.
The smell of the earth is good.
It is apparent that there is no death.
But what does that signify?
Not only under ground are the brains of men
Eaten by maggots.
Life in itself
Is nothing,
An empty cup, a flight of uncarpeted stairs.
It is not enough that yearly, down this hill,
Comes like an idiot, babbling and strewing flowers.


Friday, March 23, 2012

Something out of the ordinary

As the only Republican Congressman at a rally for the Equal Rights Amendment on Thursday, Rep. Richard Hanna (R-N.Y.) gave women an unexpected piece of advice: Give your money to Democrats.

"I think these are very precarious times for women, it seems. So many of your rights are under assault," he told the crowd of mostly women. "I'll tell you this: Contribute your money to people who speak out on your behalf, because the other side -- my side -- has a lot of it. And you need to send your own message. You need to remind people that you vote, you matter, and that they can't succeed without your help."
Huffington Post. (Via.)

Mr. Hanna is a millionaire first elected in 2010. We don't know whether he has a primary challenger.

The man who may please the Court

Yesterday I heard the tail-end of an NPR piece on the Solicitor General, Donald Verrilli, who'll be arguing for the feds in the Supreme Court healthcare-law suit next week. The link takes you to a transcript of the story, if you don't have time to listen to it—a rare look at someone who rarely gets much press coverage.

Hood to MSSC: Think again! - UPDATED

Hood files a motion for rehearing in the pardons case. (Even if the cover pages call it a "motion for reconsideration.")

It's better-argued than the state's merits briefs, but I'm not sure there is much here that Justice Randolph didn't say at least as well in his dissent.

(Nor do I buy the notion that the Legislature's statutory interpretation of a constitutional "victims' rights" provision can prove that the constitutional provision applies to pardons. I don't think gubernatorial pardons are part of the "criminal justice process.")

Is there anything here that will flip 6-3 into 5-4 the other way? Hard to believe.

... NMC finds the "victims' rights" bit more interesting than I do, so I've pasted below my comment at the linked post:

Here's my problem with their newly-discovered right. They rely on 26(A)(1):

Victims of crime, as defined by law, shall have the right to be treated with fairness, dignity and respect throughout the criminal justice process.

First, I am not buying that "fairness, dignity and respect" equal a requirement that the Gov comply with the Section 124 notice requirement. I don't see that the MSSC has interpreted it to mean anything, and those sound awfully non-substantive.

Second, the AG argues that MCA 99-43-43, which provides for notice "when parole or pardon is considered," shows that pardon is part of what 26(A)(1) includes. That is backwards thinking. I do not buy that the meaning of the constitution is ascertained from Legislative statutes.

Further, the stated purpose of the statutory chapter in question is "is to ensure the fair and compassionate treatment of victims of crime, to increase the effectiveness of the criminal justice system by affording rights and considerations to the victims of crime, and to preserve and protect victims' rights to justice and fairness in the criminal justice system." 99-43-1.

I am not buying that Section 124 pardons are part of "the criminal justice system." They are, pretty much by definition, foreign to the criminal justice system and issued in disregard thereof.

Similarly, 26A itself refers to "the criminal justice process":

Victims of crime, as defined by law, shall have the right to be treated with fairness, dignity and respect throughout the criminal justice process; and to be informed, to be present and to be heard, when authorized by law, during public hearings.

I don't believe that gubernatorial pardons are part of any "criminal justice process."

Section 99-43-43 can be taken to bind the Parole Board in its formulation of pardon recommendations, but I can't buy that it binds the Governor. "Parole or pardon" as formulated gives me the strong impression that it's aimed at the Parole Board, as paroles and pardons otherwise have nothing to do with each other.

Thursday, March 22, 2012

Taxation —> innovation

Yglesias makes a good point, apropos of why Apple's not using its billions to create Bell Labs 2.0:
Something else to note is that in Bell Labs' postwar heyday the marginal income tax rate was extremely high. If you're a corporate executive and you know that 90% of any additional income that you pay yourself is going to go to the federal government, suddenly using the corporate account to buy yourself fun new toys instead looks like an appealing alternative. And what could be more fun than a giant wacky research lab!
So instead you sit on your loot and wait for a Republican Congress to cut the tax rate.

Browne and the witches of Suffolk (and Denmark)

A comment on yesterday's quotation from Sir Thomas Browne, the English antiquarian and doctor, tipped me off on something I hadn't known about: Browne's participation in a notorious witch trial in 1662.
two elderly widows, Rose Cullender and Amy Denny (Deny / Duny), living in Lowestoft, were accused of witchcraft by their neighbours and faced 13 charges of the bewitching of several young children between the ages of a few months to 18 years old, resulting in one death. * * *

Thomas Browne, the philosopher, physician and author, attended the trial. The reporting of similar events that had occurred in Denmark by someone as eminent as Browne seemed to confirm the guilt of the accused. He also testified that "the young girls accusing Denny and Cullander were afflicted with organic problems, but that they undoubtedly also had been bewitched". He had expressed his belief in the existence of witches twenty years earlier, and that only: "they that doubt of these, do not only deny them, but spirits; and are obliquely, and upon consequence a sort not of infidels, but atheists" in his work Religio Medici, published in 1643:

... how so many learned heads should so farre forget their Metaphysicks, and destroy the ladder and scale of creatures, as to question the existence of Spirits: for my part, I have ever beleeved,and doe now know, that there are Witches ....
The two women were convicted and hanged, and the trial became an important precedent for the Salem witch trials 30 years later. Unfortunately Browne's skepticism failed him in this important instance.

The pamphlet describing the trial gives a bit more detail:
There was also Dr. Brown of Norwich, a Person of great knowledge; who after this Evidence given, and upon view of the three persons in Court, was desired to give his Opinion, what he did conceive of them: and he was clearly of Opinion, that the persons were Bewitched; and said, That in Denmark there had been lately a great Discovery of Witches, who used the very same way of Afflicting Persons, by conveying Pins into them, and crooked as these Pins were, with Needles and Nails. And his Opinion was, That the Devil in such cases did work upon the Bodies of Men and Women, upon a Natural Foundation, (that is) to stir up, and excite such humours super-abounding in their Bodies to a great excess, whereby he did in an extraordinary manner Afflict them with such Distempers as their Bodies were most subject to, as particularly appeared in these Children; for he conceived, that these swounding Fits were Natural, and nothing else but that they call the Mother, but only heightned to a great excess by the subtilty of the Devil, co-operating with the Malice of these which we term Witches, at whose Instance he doth these Villanies.
Taken from a website devoted to the Lowestoft trial, well worth perusing.

Lederman on the minimum-coverage law

Marty Lederman posts what is probably the best explanation, outside the briefs themselves, of why the minimum-coverage (or "individual mandate") provision of the PPACA should be upheld.

Anyone sincerely interested in the issue should take a look at his long post. UPDATE: I missed this March 17 post by Andrew Koppelman, which I also recommend. He's read Paul Clement's brief on the merits for the challengers: "It is astoundingly thin and weak," and he explains why.

... Linda Greenhouse, having read the main briefs in the case, has a GMAFB moment.
... Journalistic accounts of court cases, at least in advance of a definitive ruling, understandably tend to take the safe course and treat the arguments on both sides with equal dignity. So it’s perhaps not surprising that just about half the public apparently believes that the Affordable Care Act’s individual mandate is unconstitutional.

Free of convention, and fresh from reading the main briefs in the case to be argued before the Supreme Court next week, I’m here to tell you: that belief is simply wrong. The constitutional challenge to the law’s requirement for people to buy health insurance — specifically, the argument that the mandate exceeds Congress’s power under the Commerce Clause — is rhetorically powerful but analytically so weak that it dissolves on close inspection. There’s just no there there.

Wednesday, March 21, 2012

Sir Thomas Browne on blogging

I could never divide my selfe from any man upon the difference of an opinion, or be angry with his judgement for not agreeing with mee in that, from which perhaps within a few dayes I should dissent my selfe.
Religio Medici, I.6. (Via.)

Tuesday, March 20, 2012

"GOP Releases Plan to Save America from the Poor"

That damn Jonathan Chait. You can't find a funnier way to sum him up or title your damn blog post linking to him. You just have to quote him.
The House Republicans unveiled their new budget today, complete with a spooky video pressing home the point that only the House Republicans and their leader Paul Ryan stand between us and CIVILIZATIONAL COLLAPSE. Yes, the peril of rising debt is that bad. No, it’s not so bad that it’s worth restoring Clinton-era tax rates to prevent. But so bad that it’s worth throwing tens of millions of people off health insurance? Oh, yeah.
Can't improve on that snark. But you know who could kick Chait's ass? Meryl Streep, that's who.

Volokh blog reaches tipping point?

Oh noes ... some news outlets ran a story about Malia Obama's spring-trip abroad, then pulled the stories at the White House's request (for obvious security/privacy reasons)! Eugene Volokh is on the case!

"Now the removal might well have been voluntary." Gee, ya think?

On top of the obnoxious new commenting software, it seems the value-to-wingnuttery ratio at the VC has dropped to where I increasingly wonder why I'm even looking at the blog. YMMV.

... Someone with a stronger stomach than mine collects some of the ideologically related, but even more repugnant, b.s. on the subject. (H/t.) Volokh differs from these bottom-feeders only in degree, not in kind.

Employer of the month

More news from Florida: a law firm fires 14 employees (non-lawyer service staff, apparently) for wearing orange shirts to work.
They weren't wearing sagging pants or revealing clothing. But dressing in an orange shirt is apparently enough to get fired at one Florida law firm, where 14 workers were unceremoniously let go last Friday.

In an interview with the Ft. Lauderdale Sun-Sentinel, several of the fired workers say they wore the matching colors so they would be identified as a group when heading out for a happy hour event after work. They say the executive who fired them initially accused them of wearing the matching color as a form of protest against management.
Luckily for the workers, the "executive" didn't feel threatened and start shooting at them in self-defense. Because apparently that shit would be legal too, in Florida.

The article identifies the employer as "the law offices of Elizabeth R. Wellborn, P.A.," so let's hope plenty of folks let 'em know what they think of their practice.

Feds to take a look at Trayvon Martin killing

Thus TPM. It needs doing. And if Florida's "self-defense" law turns out to bar a prosecution, that is a great argument against any statute worded like Florida's.

Monday, March 19, 2012

It was better than the transvaginal-sonogram float in Virginia, trust me

Haley Barbour provided the theme for one float at Jackson's St. Paddy's Day parade this year:

The social construction of insomnia

So if you tend to wake up in the middle of the night and can't go back to sleep for an hour or two, maybe you're just a rebel against modernity. Where's Foucault when you need him? Oh, right, dead.

... JL points out that Southerners are particularly sleep-deprived. Maybe we haven't bought into this whole "modernity" thing yet.

Dolphins: beached?

So, having failed to net Peyton Manning and not having really tried, it seems, to sign Matt Flynn, the Dolphins may be just as well off keeping Matt Moore.

But no sooner does that start to look like a good idea, then one realizes that the Dolphins' manager is opposed on principle to good personnel decisions. So maybe TBA will be faced with the possibility of cheering for Tebow in 2012. [Shudder.]

... Tho as Brian Miller points out, Tebow could actually be an asset ... in some position other than QB.

Friday, March 16, 2012

PA gov to women: Just close your eyes (and enjoy it?)

Political Wire:
Pennsylvania Gov. Tom Corbett (R) said at a press conference that a bill that would force women seeking an abortion to undergo fetal ultrasounds was not "obtrusive" because women could simply close their eyes during the procedure.

Said Corbett: "I'm not making anybody watch, OK. Because you just have to close your eyes. As long as it's on the exterior and not the interior."
Not quite in Clayton Williams territory, but also not a remark anyone is likely to allow Corbett to forget any time soon.

Grant's greatest blunder

An interesting article (by the author of a forthcoming book on the subject) about General Grant's short-lived expulsion of Jews from his domain, and the consequences of his repentance.
the memory of what his wife, Julia, called “that obnoxious order” continued to haunt Grant to his death in 1885. Especially when he was in the company of Jews, the sense that in expelling them he had failed to live up to his own high standards of behavior, and to the Constitution that he had sworn to uphold, gnawed at him. He apologized for the order publicly and repented of it privately. He consciously excluded any mention of it from his acclaimed Memoirs. He gloried in the fact that, on his deathbed, Jews numbered among those who visited with him and prayed for his recovery. Jews also participated wholeheartedly in the national mourning that followed his death in 1885, and later in the dedication of his tomb. They did so in spite of General Orders No. 11, recognizing, as the Reform Jewish leader Rabbi Isaac Mayer Wise noted at the time, that Grant had “often repented” of his order, and “that the wise also fail.”

Thursday, March 15, 2012

Damage caps: how low is too low?

I don't know any non-subjective way of answering that question, but I had my own Potter Stewart moment in reading about the civil case against Virginia Tech by parents of two of the victims in the 2007 shooting:
The jury determined the Prydes and Petersons each deserved $4 million, but the award is likely to be sharply reduced. State law requires it to be capped at $100,000.
A wrongful-death cap of $100K? Irrespective of actual economic damages? Limiting the noneconomic ("pain and suffering") damages of losing one's child at age 20 or so to $100K, 40% + expenses of which is likely to go to the lawyers?

Hell, at that rate, I'm amazed any lawyer was willing to take the case. (Note that the linked article says Va. Tech may appeal, and it's still possible the lawyers will take a loss.)

Mississippi's own cap for a state defendant is $250K. I'm not sure that's particularly fair either, but $100K is too damn low. Might as well not waive sovereign immunity at all. [CORRECTION: Since 2002, $500K, a more reasonable sum.]

... 24 other families split a $11M settlement. Leaving aside the merits of the plaintiffs' trying the case rather than opting in, if the most those families could've recovered was $100K each, $2.4M total, then I wonder how $11M was arrived at.

Wednesday, March 14, 2012


It's almost as if we're watching Mitt Romney on safari in his own country.
MSNBC on the candidate's campaigning in the Deep South.

The most famous Chinese you've never heard of?

Zeng Guofan is, according to Stephen Platt, "one of the most popular figures in China today, with dozens of books on his life and letters readily available in any airport bookstore."

Zeng was a "scholar-general" instrumental in quashing the Taiping Rebellion, which is the subject of Platt's book, and possibly the worst thing anyone did in the 19th century.

Making Mississippi look good

Florida, where you can murder a black guy and, if no one saw you, get away with it by claiming "self-defense."

If there's no state prosecution, the feds need to get all over this.

Monday, March 12, 2012

The lost volume of the Mississippi Reports

NMC and others commenting on an earlier post brought our attention to a hazily-remembered Mississippi case that anathematized an entire volume of the Mississippi Reports.

Judge Southwick, in an article on separation of powers in Mississippi, identifies the case and gives some background (74 Miss. L.J. 47, 134 n. 203):
... In the upheavals after the Civil War, a justice of Mississippi's highest court declared in a habeas corpus ruling that the federal Civil Rights Act of 1866 violated the federal constitution because the Thirteenth Amendment was inadequate authorization for that Act. Ex parte Lewis, WEEKLY CLARION (Jackson, Miss.), Oct. 4, 1866, at 2 (Miss. Oct. 4, 1866); see also Decision of Chief Justice Hardy, Declaring the Civil Rights Bill Unconstitutional, N.Y. TIMES, Oct. 26, 1866, at 2 (excerpting about two-thirds of the lengthy opinion). This single-justice opinion was not officially published. A black former Union soldier named James Lewis had been convicted in Madison County under an 1865 state statute that prohibited only freedmen, free Negroes and mulattoes from possessing firearms; the 1866 Civil Rights Act gave to such individuals the full and equal benefit of all laws of a state. Ex parte Lewis, WEEKLY CLARION (Jackson, Miss.), Oct. 4, 1866, at 2 (Miss. Oct. 4, 1866). The Lewis opinion found that the Thirteenth Amendment freed slaves but did not create a basis for granting full rights as citizens; adoption of the Fourteenth Amendment two years later mooted that argument. Id. Apparently and unsurprisingly, the Lewis decision had no impact on the federal military leadership then in control of the state. The audacity of the decision troubled some who agreed with it: "The truth well spoken is proper, but even the truth can be officiously spoken out of place and do great harm." HINDS COUNTY GAZETTE (Raymond, Miss.), Oct. 19, 1866, at 1.

The judge who heard the petition for the writ, Alexander Handy, resigned in frustration a year later and said that the judiciary's powers were held and exercised in subordination to the behests of a military commander. A.H. Handy, Resignation of Judge Handy, AMERICAN CITIZEN (Canton, Miss.), Oct. 19, 1867, at 1. Handy's two judicial colleagues also resigned. The federal military commander appointed three replacements and also filled subsequent high court vacancies until Mississippi was readmitted to the union in 1870. JOHN RAY SKATES, JR., HISTORY OF THE MISSISSIPPI SUPREME COURT, 1817-1948, at 27-28 (1973). The lingering bitterness from those years of conflicts between some state leaders and the federal military led to rhetorical venting even thirty years later. The judicial successors to Justice Handy, once the Democratic Party was again firmly in control of all levels of state government, declared that all opinions of the state's highest court during the period of military-appointed judges were void. Lusby v. Kansas City, Memphis & Birmingham R.R. Co., 19 So. 239, 242 (Miss. 1895) ("The opinions found in that volume [42 Miss.] are the utterances of a tribunal appointed by the military satrap, who then ruled in a prostrate commonwealth, and have no other binding authority upon us than that each case therein must be regarded as res adjudicata".).
Lest that seem like so much ancient history, the Court cited the holding of Lusby as (apparently) good law as recently as 1991: In re Estate of Childress, 588 So. 2d 192, 195 n.4 (Miss. 1991).

... I have a sneaking suspicion that "satrap" was not an unusual term of abuse in the unReconstructed South, tho I'm not at all read-up on the relevant literature. Satraps were governors of provinces in the Persian Empire, whose defeats by liberty-loving Greeks were part and parcel of history education at the time (Marathon, Salamis). And of course that empire eventually fell to a tough crew of Macedonian rednecks (all too easily reinterpreted as culture-bearers), so the term implicitly carried with it a happy ending, from the p.o.v. of the expostulating Southerners.

... Justice Handy was not the worst of his kind, at least; he ruled against whites using fraudulent means to expropriate freed slaves. Tho as the author nicely puts it, the judge "did not lean to the side of liberty." Indeed. Daily Kos found a book on secession commissioners that quotes the good judge: "Slavery was ordained by God and sanctioned by humanity." Here are some admiring bios of Handy - the source, an 1881 collection on "The Bench & Bar of Mississippi," is worth a bookmark, tho the bias of the author is only too evident.

Now this is a politicized judiciary

Our squabbles over nominating & confirming federal judges are pretty bad, but the constitutional revolution in Hungary is several orders of magnitude worse.

I'm not quite sure whether being kicked out of the EU is a plus or a minus these days, but whichever, Hungary appears headed in that direction.

... Lest we seem smug, a Hungarian commenter at the linked post writes:
Democracy only works in countries where people have the education to be able to make decisions in national issues when they vote, where people had been taught to trust themselves to make their own individual assessments and decisions. One of the many problems in Hungary is that the education system focuses on the grand days of medieval Hungary, on chemistry and biology, but people are never taught any economics, sociology or law, they are not taught how to address and deal with contemporary political or social issues. And one can see the results: when having to deal with issues Hungarians are intoxicated with their great national history, which probably looks very ridiculous from outside, but I would say 95% of the voting population has no idea of what you are talking about as they are totally unaware of how the legal system works or should work. Hungary is doomed on the short run, because people have no understanding of what the government is doing. They get what they want from Orban: patriotism, God, national heroism, and all that bullshit, and the important legal, economic and social issues are not considered or debated.
Sounds familiar, even without reading our last post.

Republican opinions

Sigh. Another national primary election. Which means polls. Which means I get to be reminded of my neighbors' opinions.

Surveying likely Republican voters in Mississippi, PPP found 22% believe in evolution, vs. 66% who don't; 52% think Obama's a Muslim, vs. 12% who think he's Christian (and 36% "not sure"); and 54% who think interracial marriage should be legal, vs. 29% for illegal and 17% "not sure." (That last number is dragged down heavily by 65+ voters, only 35% of whom think it should be legal.)

More sensibly, only 24% favor Barbour's last-minute pardons (62% against). But his favorability numbers remain high, +64/-27. (Women respondents: only 17% favor pardons. They've noticed what sins Barbour considers venial.)

... Via Weigel. Interestingly, Santorum isn't polling well here, 3d place behind a Romney-Gingrich dust-up. For a 70% self-described Evangelical Christian body of voters, that's curious - tho I guess if you're fundamentalist enough, Roman Catholics aren't much better than Mormons. (How many voters know Gingrich is Catholic? that would've been a good one to ask, besides the Obama question.) Gingrich is really hurting Santorum by staying in.

... I should add that I'm not at all convinced that a poll of Democratic voters would've been significantly better on some of these, such as evolution.

... Is it unfair to single out Southern states for questions about interracial marriage? The Economist thinks not.

Lamest constitutional argument ever?

Like many folks, Philip Thomas did not care for the pardons ruling last week. But he has come up with a creative reason why the Court was mistaken:
I particularly dislike the majority's heavy reliance on an 1886 Mississippi Supreme Court decision(Ex Parte Wren). Wren was a traveling salesman from Louisiana who was arrested in Jackson for showing goods and taking orders on behalf of a New Orleans company (Philip Laal) without paying a newly enacted State tax of $25 "on each person traveling and selling goods or merchandise by sample or otherwise in this State". Wren argued that the law was not passed by both houses of the Mississippi Legislature. The Mississippi Supreme Court ruled that it didn't matter. The law was presumptively good.

The problem I have with the majority's reliance on Wren is the historical context of Mississippi in 1886. This falls squarely into the period when whites were passing laws to disenfranchise blacks following the end of Reconstruction. In addition to disenfranchisement laws, the whites in power were murdering scores of black citizens in order to restore white supremacy. It was a corrupt and lawless time in the State of Mississippi. The Mississippi Supreme Court did not equally enforce the law. Nobody did until the federal government stepped in in the 1960's. Of course the Mississippi Attorney General argued in favor of the arrest in Wren, he would have been in on what was going on in the State.

With all due respect for the Court, this 1886 opinion by the Mississippi Supreme Court should be given little, if any, precedent authority. The case upheld a bogus-sounding tax (approx. $600 in today's dollars) on an out-of-state salesman. The effect of the tax and the Court's ruling was probably going to be to run the New Orleans grocer out of Mississippi. And the law wasn't even passed by the Legislature? In 1886? The very year that Mississippi disenfranchised blacks? Is that just a big coincidence? How can we trust that Wren was an honest legitimate decision?

In 1886 white power brokers inside Mississippi were consolidating their power and running off (or worse) anyone who got in their way. People like Wren were viewed as carpetbaggers who were taking money out of the pockets of local businessmen. I'm guessing that the Wren tax was not enforced on local Mississippi salesmen. I'm guessing it was a corrupt tax that was selectively enforced.

Bottom line is that Wren sounds real fishy. Given the year that Wren was decided and Mississippi's political climate at the time, it can't be trusted as an honest decision. It has no place in a 2012 opinion. Ironically, the Court uses Wren to support upholding pardons that many people feel were suspect.
In comments at his post, I've asked Philip to provide the cut-off year after which precedents of the Mississippi Supreme Court may be followed. Other questions may arise. Can the presumption that any Miss. Supreme Court decision was racist be rebutted? Are there other character flaws or historical facts that will also serve to invalidate precedents?

Friday, March 09, 2012

The New Republic gets a new owner

Jon Chait informs us that his previous employer has been bought by a co-founder of Facebook, Chris Hughes, whom maybe I would recognize if I'd seen that movie.

I have something of a love-hate thing for TNR, which is like the little girl in the Longfellow doggerel—when it's good, it's very very good, and when it's bad, it's horrid. So cautiously hoping for the best here. Showing Marty "Palestinians Are Savages" Peretz the door would be a good sign.

Thursday, March 08, 2012

How to amend Section 124?

Now that Barbour's pardons have been upheld, the issue now becomes, how can Section 124 be amended to put a curb on the Governor?

Perhaps a clause could be added: "and any pardon issued without prior satisfaction of this notice requirement shall be void and of no effect."

Or you might provide more expressly for judicial review: "the attorney general, or the district attorney of the county wherein the offense to be pardoned was committed, shall be empowered to bring a cause of action for any void pardon to be declared as such in such-and-such court."

Really, though, for reasons noted elsewhere, the notice requirement is a bit of a jumble. TBA thinks it makes more sense to put the burden of the publication on the Governor, and to require a short and plain statement of the person who's proposed to be be pardoned, the offense in question, and an address for people to submit comments.

That, in tandem with the changes suggested above, might put some teeth in the notice requirement, and make it impossible for an outgoing Governor to issue surprise pardons.

... So here is a first draft:
In all criminal and penal cases, excepting those of treason and impeachment, the governor shall have power to grant reprieves and pardons, to remit fines, and in cases of forfeiture, to stay the collection until the end of the next session of the legislature, and by and with the consent of the senate to remit forfeitures. In cases of treason he shall have power to grant reprieves, and by and with consent of the senate, but may respite the sentence until the end of the next session of the legislature; but. no Any pardon shall be granted before conviction shall be void and of no effect;. and iIn cases of felony, after conviction no pardon shall be granted until thirty days after the applicant therefor Governor 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, notice of his petition for intention to pardon, setting forth therein the name of the person to be pardoned, the nature and date of the person's conviction, and an address to which members of the public may send their comments; and any pardon granted without such prior notice having been so published shall be void and of no effect. Where a pardon is granted which under this section is void and of no effect, the attorney general, or the district attorney of the county in which the felon was convicted, shall have authority to file suit to have said pardon declared void and of no effect, in the court wherein the conviction was rendered, and naming the Governor who issued the pardon and the person pardoned as defendants. The court shall rule on said suit within 30 days, and appeal from its judgment may be had in accordance with law; but the appellate court shall give expedited treatment to said appeal.
(1) Giving both the AG and the DA power to file suit helps avoid situations where the AG is a crony of the Governor; in any event, local interests dictate letting the DA have this authority.

(2) I've tried to iron out the 30-day bit to make clear that publication once, 30 days prior, suffices.

(3) Local interests again dictate that suit be brought in the relevant county. This avoids judge-shopping, and there is no good reason why Hinds County judges should have any special authority here.

(4) Since a void pardon may result in someone's going back to jail, it makes sense that the court should have to rule quickly, and that any appeal should be expedited.

Barbour pardons upheld

Opinion here.

6-3. Waller, Randolph, & Pierce dissent. Six separate ops.

... Essentially, the holding is as predicted. Yes, the Governor is constitutionally required to obey the notice requirement of section 124; no, the judiciary cannot sit in judgment of whether or not the Governor complied with that requirement.

... Dickinson writes for the Court, in a holding that seems a bit broader than had even been requested at oral argument:
The attorney general and the justices in dissent correctly argue that Section 124 places three limitations on the pardon power: (1) the Senate must consent to a pardon for treason; (2) no pardon shall be granted before conviction; and (3) a felon requesting a pardon must publish a petition for thirty days before the pardon shall be granted. While we agree that Section 124 places these limitations on the governor’s pardon power, we find these requirements no more compelling than the requirement in Wren: Legislative acts presented to the governor for signature must be passed by both legislative houses first.
So even a pardon for treason that wasn't approved by the Senate, or a pardon granted before conviction, would be valid, as opposed to Tom Fortner's argument (IIRC) that those would be "substantive" and not merely "procedural" like the notice requirement?

... The other ops, in nuce:

Carlson: Look, y'all, this should be unanimous, and get your story straight on whether governors "interpret" the constitution or not.

Chandler: Ruling for the AG would subject every pardon ever to judicial review.

Waller: All constitutional violations reviewable. No explanation of whether he would overrule the cases to the contrary.

Randolph: "Today’s decision is a stunning victory for some lawless convicted felons, and an immeasurable loss for the law-abiding citizens of our State."

Pierce: Cites a Kansas case the Court had distinguished decades ago, and urges a Southwick reading of Tuck v. Blackmon as overruling the prior case law.

... Kingfish posts today's order vacating Judge Green's TRO.

Wishfully-thinking Democrats

The spot on NPR that I heard this morning echoes coverage for the past few months: supposedly, Romney's inability to garner votes from blue-collar and socially conservative GOP voters is a weakness that will hinder him in November. E.g., Erik Loomis:
Of course, Romney has another problem that is clear from Republican primaries: working-class voters don’t like him. Santorum is killing Romney among non-college educated whites, an absolutely crucial demographic for Republicans this fall. I’m certainly not saying Santorum voters are going to choose Obama over Romney, but they could very well stay home.
Uh-huh. This requires us to believe that the voters most antipathetic to Obama are going to stay home rather than pull a lever (or, increasingly, tap a touch-screen) against the Kenyan socialist enemy of America's very existence.

Santorum's Super-Tuesday speech to his supporters made scarcely-veiled references to Obama's being (1) black and (2) raised in part overseas, as an argument that only someone raised in a "real" American community can understand that community's problems. Anyone not immediately offended by that speech is not somebody who's going to miss a chance to vote against Obama, even if he has to vote for Romney to do it.

... Jon Chait agrees: "the best group of voters not to be getting are voters who are certain to support you in the fall."

Wednesday, March 07, 2012

I can keep this blog running with the proceeds

TBA wins latest OTB caption contest.

Tuesday, March 06, 2012

Can't possibly be true

Really, people? No one looked at this at any point in the production process and thought there might be a problem?

Much like my theory of how Chevy came to name a huge, bulky SUV the "Armada," I have to think some bored humanities majors who ended up in product design were the ones who came up with this idea strictly as a joke, certain that no one would actually fall for it.

Via. H/t.

It's just so much harder to be a lying opportunist in these internet days

That Romney op-ed from 2009:
Health care cannot be handled the same way as the stimulus and cap-and-trade bills. With those, the president stuck to the old style of lawmaking: He threw in every special favor imaginable, ground it up and crammed it through a partisan Democratic Congress. Health care is simply too important to the economy, to employment and to America's families to be larded up and rushed through on an artificial deadline. There's a better way. And the lessons we learned in Massachusetts could help Washington find it.


Our experience also demonstrates that getting every citizen insured doesn't have to break the bank. First, we established incentives for those who were uninsured to buy insurance. Using tax penalties, as we did, or tax credits, as others have proposed, encourages "free riders" to take responsibility for themselves rather than pass their medical costs on to others. This doesn't cost the government a single dollar. * * *
Brad DeLong suggests that the only worse thing Romney could've advocated was making Kenya the 51st state.

Monday, March 05, 2012

Si monumentum requiris, circumspice

It has belatedly come to our attention that Ralph McQuarrie died over the weekend.

(If you don't already know who Ralph McQuarrie was, you are unlikely to care.)

Some of his concept illustrations here. Man, I wish I still had the original Star Wars Portfolio that I wheedled out of my mother when I was a kid.

Baby got ... bark?

You see things when walking that you miss when driving. Such as this tree that I've driven past at least a thousand times.

"Anthropomorphic" seems not exactly the correct word.

Friday, March 02, 2012

Wow, the N.O. Saints kinda suck

At least, if this is true:
NEW YORK — The NFL says that New Orleans Saints players maintained a bounty program over the last three seasons that targeted opponents with the intent to injure them.

The league disclosed the findings of an investigation Friday, saying between 22 and 27 defensive players and at least one assistant coach were involved. No punishments have been handed out yet, but they could include suspensions and fines.

Commissioner Roger Goodell says he is troubled because the system "involved not just payments for `performance,' but also for injuring opposing players. The bounty rule promotes two key elements of NFL football: player safety and competitive integrity."

The league's investigation shows the pool for the bounty program may have surpassed $50,000 at its height during the 2009 playoffs. New Orleans won the Super Bowl that season.
If this is true, that assistant coach should not work in the NFL ever again. How hideous.

... More despicable details:
the investigation showed that Saints players received $1,500 for a “knockout” hit and $1,000 for a “cart-off” hit with payouts doubling or tripling during the team's three playoff appearances. * * *

Sports Illustrated’s Peter King has more details on the Saints’ bounty program, including that “linebacker Jonathan Vilma offered any defensive teammate $10,000 in cash to knock then-Vikings quarterback Brett Favre out of the [NFC title] game.” As Favre finished the game, that bounty presumably went uncollected by Bobby McCray or anyone else.

Thursday, March 01, 2012

Pet peeve

Why do appellants in the MSSC put "Oral Argument [Not] Requested" on the covers of their initial briefs?

MRAP 34(b): "The appellee shall make this notation on his principal brief; the appellant shall make this notation on his reply brief," or by letter if no reply is filed.

Putting that on your principal appellate brief's cover is just your special way of telling the Court, I do not trouble myself to learn the Mississippi Rules of Appellate Procedure. Good lord, at least make them open the brief to find that out.

... Now with boldfacing, in view of the comments thread.

The quintessential headline

"Empirical Evidence Is Overrated."

The psychopathology of everyday life, Hellenistic edition

Political-cum-social alienation always leads to various private preoccupations, of which by no means the least important, or demanding, is the erotic, since it offers an (often deceptive) sense of being in charge of one's own life.
—Peter Green, Alexander to Actium: The Historical Evolution of the Hellenistic Age, at 208.

... As in so many other respects, the modern era recapitulates Hellenistic sensibilities. Callimachus and Polybius could well have thought of themselves as "post-modern."

Get on home, Loretta ...

The MSSC directed the Hon. Tomie Green to craft some sanctions in the Case of the Un-Dead Circuit Clerk, and I can't say Judge Green did a bad job:
Longtime Hinds County Circuit Clerk Barbara Dunn must pay $9,535 in sanctions for her office's failure to timely file appeal papers to the state Supreme Court.

Also, Hinds County Circuit Judge Tomie Green ordered that the deputy clerk who handled appeals in Dunn's office be suspended for 30 days, effective today. Deputy Clerk Loretta Wells also will have different duties once she returns from suspension.
Hint to whoever takes on the appeals-clerk duties: read MRAP 10 and 11.
Lee Howell, attorney for T. Jackson Lyons & Associates, said he just wanted to have the appeal filed.

"We were just trying to get records," Howell said.

The amount of the sanctions is what the fees were in trying to get the appeal filed, Howell said.
Lee Howell, YOU DA MAN!

And what about that mandated training for deputy clerks?
This time, the Supreme Court is mandating that Dunn provide adequate training for her staff. Green ordered Dunn to provide at her own expense mandatory in-service training for her employees, including cross training.

But Dunn said she is having a difficult time finding someone to provide training for her staff.

Dunn said most of her staffers have been on the job for a long time and know what their duties are even if they don't always do them.
TBA is tempted to volunteer, at least as regards the appellate duties.

... H/t JL, who notes that compared to the prior photographic evidence of Dunn's vampiric nature, this one looks positively Photoshopped:

Could be ... or it could be that she's fed recently on the blood of the living. But who was her victim?
Wells could not be reached for comment.
Uh-oh. "You have failed me for the last time!..."