Barbarism descends; a new dark age begins

Oxford University renounces the Oxford comma.

USA! USA!

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

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

Sixth Circuit upholds "Obamacare"

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

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

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

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

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

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

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

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

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

Judicial humor

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

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

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

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

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

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

Playing the numbers, SCOTUS edition

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

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

Much more, definitely worth a browse.

Scalia on video games

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

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

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

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

And Alito is the target of a couple of footnotes:

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

And not just in footnotes:

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

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

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

Maybe the best footnote is this:

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

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

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

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

Miscarriage of justice?

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

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

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

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

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

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

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

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

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

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

Obama CIA nominee calls for use of torture

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

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

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

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

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

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

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

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

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

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

How many interrogations has Petraeus performed?

Our Lady of Alderaan

More.

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

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

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

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

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

Famine, sources later confirmed.

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

And there's more.

The TBA review of fine arts

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

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

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

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

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

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

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

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

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

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

Whatever irks him, local merchant edition

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

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

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

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

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

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

We now return to our regularly scheduled bitching.

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

Conan O'Brien on Nietzsche

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

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

Via.