David's Law Blog

Magnificent Judicial Snark

noreply@blogger.com (Grumpy Old Man) — Mon, 11 Jun 2007 04:05:00 +0000

A footnote from Judge Reggie Walton's order granting the application of several law professors to file a friend of the court (amicus curiae) brief on Scooter Libby's motion to stay out of prison pending appeal:

It is an impressive show of public service when twelve prominent and distinguished current and former law professors of well-respected schools are able to amass their collective wisdom in the course of only several days to provide their legal expertise to the Court on behalf of a criminal defendant. The Court trusts that this is a reflection of these eminent academics' willingness in the future to step to the plate and provide like assistance in cases involving any of the numerous litigants, both in this Court and throughout the courts of our nation, who lack the financial means to fully and properly articulate the merits of their legal positions even in instances where failure to do so could result in monetary penalties, incarceration, or worse. The Court will certainly not hesitate to call for such assistance from these luminaries, as necessary in the interests of justice and equity, whenever similar questions arise in the cases that come before it.

HT: Daniel Larison

Lewis "Scooter" Libby, of course, is the aide to Vice-President Cheney who was convicted of lying to the grand jury investigating the leaking of the identity of Valerie Plame, wife of a critic of the intelligence used to justify the Iraq War. It's pretty clear that there was no underlying crime, and Libby, although he may have not told the truth (and if so, committed a crime), is the chosen victim in a political-legal drama.

The issue is whether there is enough chance for Libby to prevail on appeal to justify postponing his starting his 30-month prison term. The professors argue that there is enough of a legal question as to whether the appointment of the Special Prosecutor, Patrick Fitzgerald, was constitutional, to create a real possibility of reversal.

What's really going on is that there's a likelihood that President Bush will pardon Libby, but he's more likely to do so in the closing days of his administration than now. Thus Libby's supporters want a delay in the start of his prison term.

The judge's snark, in any case, is both unusual and powerful.

Facial Cruelty vs. Facial Constitutionality

noreply@blogger.com (Grumpy Old Man) — Mon, 23 Apr 2007 12:51:00 +0000

The Supreme Court recently upheld Congress's passage of a ban on "partial birth abortion."

The heart of the opinion is description of the surgical procedure called "dilation and extraction" or ("D & E") by doctors. What the pro-life movement has succeeded in calling "partial birth abortion" is a procedure by which the intact fetus is extracted from the womb and then intentionally killed. The alternate, and still lawful procedure, is to dismember the fetus in the womb and extract the pieces--or to perform a mini-Cesarean.

After the Supreme Court overturned state laws banning the procedure, Congress passed a law prohibiting it. (As the opinion points out, no one has litigated the question of whether Congress even has the power to regulate the practice of medicine). The present opinion (Gonzalez v. Carhart) rejects lower court decisions that upheld a challenge to the federal law. The challengers claimed that the statute was "unconstitutional on its face," in other words, the text of the law itself violates the constitution. For example, a law that required all Texans to attend Baptist churches or pay a fine would be facially unconstitutional; a court would not need to examine how the law was enforced to find it was unconstitutional. In "unconstitutional as applied" cases, the court has to look at actual instances of enforcement to determine whether constitutional rights have been affected.

In this case, the Court concluded that because existing opinions hold that the government has an interest in protecting fetal life stronger later in the pregnancy, and there are still abortion procedures available at this stage of pregnancy, the law was not unconstitutional.

A read of the opinion, however, suggests to me that like the congressmen and senators who adopted it, the justices in the majority were stricken by the cruelty of the procedure.

There was a recent episode of the TV program "House" in which a problem pregnancy results in a very premature delivery. The tiny hand and arm of the baby are depicted. It is, of course, very moving, at least to anyone who has been close to a pregnancy or learned to love babies. So long as the tiny hand is not an abstraction, late-term abortion will have a constituency only among the most zealous advocates of abortion rights.

From Tragedy, To Farce, To Peewee Herman?

noreply@blogger.com (Grumpy Old Man) — Wed, 28 Feb 2007 15:37:00 +0000

The Duke lacrosse case continues to unravel.

The latest defense motion reveals yet more DNA samples found in the accuser's body, that are not identifiable to any suspect. Prosecutor Mike Nifong did not disclose any of these to the defense, as both North Carolina and U.S. Constitutional law require him to do.

In a complex case, mistakes are sometimes made. Prosecutors are sometimes over-zealous. That's improper and can be unethical.

Nifong's conduct, if the defense motion proves correct, goes way beyond mistakes or excess of zeal. This was a conscious attempt to keep a frame-up going, at least past election time.

Where is the outrage from Duke officials? If these defendants were not middle-class white athletes there would be yowls of protest and mass demonstrations.

I'm not going to let any child of mine apply to Duke. The only person who should go to jail is Nifong; it's that bad. Dismiss this outrageous case now!

SCOTUS Restricts Punitive Damages Again

noreply@blogger.com (Grumpy Old Man) — Mon, 26 Feb 2007 01:48:00 +0000

When a jury awards punitive damages, in setting the amount, can it consider harm to people not part of the lawsuit?

Answer: only through the back door.

Punitive damages, although they get a lot of press, are rarely awarded. Clients tend to think the defendant's behavior in their case was outrageous, and they should get such damages. Some states don't allow punitive damages at all. Others restrict them.

Now the U.S. Supreme Court (SCOTUS) has found in the U.S.Constitution reason to impose new restrictions on these damages. Philip Morris USA v. Williams (2007) 2007 DJDAR 2233.

Jesse Williams died, and the jury found smoking killed him, and Philip Morris, manufacturer of his favorite Marlboros, defrauded him into believing smoking was safe. (I know, I know, what planet was he living on? But this post is not about this jury finding.) The jury awarded him $ 821,000 in actual damages, and nearly $ 80 million in punitive damages, which the trial judge reduced to a skimpy $ 32 million. The Oregon Supreme Court restored the original amount.

The case found its way to the U.S. Supreme Court, because of a challenge to the verdict under the U.S. Constitution. Without a federal question, the Oregon Supreme Court would have been the last stop.

SCOTUS has already suggested that punitive damages must bear a reasonable relationship to actual damages, although they haven't said for certain what the maximum multiple is, but has suggested that 9 times might be about right. This case doesn't speak to that issue.

What it says is that in considering the amount of punitive damages, the jury can only consider harm to the plaintiff or plaintiffs in the case itself, not harm to others. In deciding how reprehensible the conduct was, however, the jury can consider harm to others. So, for instance, if Philip Morris hid the dangers of smoking from many people, resulting in more deaths, that fact would make its conduct more worthy of blame (reprehensible), which might increase the amount of punitive damages, but in actually fixing the amount to be awarded, the jury can take into account only the dollar amount it awarded for harm to the plaintiffs in the case itself.

Otherwise, SCOTUS held, all kinds of terrible things might happen, including multiple awards against a defendant for the same harm.

Fair enough, perhaps, but how can the effect on many of the defendants bad acts be considered for blameworthiness, but not for determining whether the multiplier from the actual damages to the punitive damages is constitutionally proper, that is, affords the defendant due process of law?

Only in the fun house world of the law, it seems. We ask juries to do strange things all the time, such as receive evidence for one purpose but not for another. Lawyers know that juries do all kinds of things when they are alone, and don't always follow the instructions, but everyone goes along with the fiction that they can understand subtle distinctions that only a lawyer can love.

Say the plaintiffs slips on a broken sidewalk. Normally, the fact that the defendant fixed the sidewalk after the accident would not be admitted into evidence, because that would discourage people from fixing things after an accident. However, the fact that a private party and not the city fixed the sidewalk might be admitted to show the private party had actual control of the sidewalk, and so was responsible for its condition. Then we ask the jury to consider the evidence for purposes of deciding who had control of the sidewalk, but not to consider the repair as evidence the private party was negligent in not fixing the sidewalk earlier.

So with punitive damages. The jury can look at all the people made ill and killed by smoking Marlboros, to decide that Philip Morris really deserves harsh punishment. It's not supposed to consider harm to other people in fixing the dollar amount of the punitive damages, if in fact it awards any.

Can your letter carrier make this distinction? (Letter carriers often end up on juries in long trials, because the government pays them their full pay while they sit, and they won't be in the rain or in range of a bulldog's teeth for the duration).

Perhaps not. But if the average juror can figure this one out, it might be a little harder, in the future, to get huge punitive damages awards.

One case likely to to be affected is the endless litigation over the Exxon Valdez oil spill case. The punitive damage award keeps getting appealed, then sent back to the trial court, and then appealed again, as SCOTUS continues to clarify the law that applies. SCOTUS loves to reverse the 9th Circuit, the Court of Appeals that decided the Philip Morris v. Williams case.

We haven't heard the last of this issue. When huge punitive damages awards are at stake, and the law is in flux, there's every incentive to appeal, appeal, appeal.

Beware Contractor Who Speaks With Forked Tongue

noreply@blogger.com (Grumpy Old Man) — Mon, 26 Feb 2007 01:15:00 +0000

If you rely on a licensed general contractor to get your building permits, and he doesn't bother, are you out of luck?

Beware. In California, you've got trouble. Ciraulo v. City of Newport Beach (2007) 2007 DJDAR 2172 (4th Dist., Div. 3, No. No. G034963).

Joseph and Carole Ciraulo owned a duplex, and decided to build a two-story single-family home. They got a permit, which included a 25-square-foot rooftop structure to house the top of an elevator shaft, even though the structure exceeded the usual height limit.

The Ciraulos decided they wanted to include a fireplace, a bathroom, and other improvements on the roof, which would require a 125-square-foot structure. They asked their contractor to build it, but only if he obtained a permit from the city. The contractor took the easy way out in a California beach city--he went ahead and built the enlarged structure without a revised permit.

After the fact, the Ciraulos applied for variances, which the City refused. After the obligatory appeal to the City Council, the Ciraulos went to court, seeking a writ of mandate. "Tough luck," said the Court of Appeal.

Justice Bedsworth, writing for a unanimous court, said:

While it is clear the Ciraulos view themselves as innocent victims in this case -- and indeed, for all we know, they are -- it would appear the one who victimized them was their contractor, not the City. Apparently, the Ciraulos delegated the responsibility for ensuring the rooftop expansion was properly approved to the contractor. He gave them the impression he would take care of it, and they relied upon him to do it. This entire mess was created not because the Ciraulos relied upon the City's inspections as indicating approval for the expansion, but because they relied upon their contractor to actually obtain that approval.
Significantly, no one contends the contractor was unaware the expansion was not properly approved, or that he was otherwise "mistaken" about what was going on. And, no one contends the contractor himself was misled by anything the City's inspectors did, or that he reasonably believed the various inspectors were authorized to, in effect grant a "permit" for structural changes which violated the city codes. Because the contractor was the Ciraulos' agent, his knowledge (and misconduct) is legally attributable to them. (Civ. Code, � 2338; Powell v. Goldsmith (1984) 152 Cal.App.3d 746, 750.) The fact the Ciraulos themselves were, in effect, victimized by his misconduct {Slip Opn. Page 14} is of no moment. "Appellants state they relied completely on 'the honesty and integrity' of [their agent]. Their reliance and trust was misplaced. A principal cannot benefit from the fraud of its agent who is acting in the course and scope of his agency." (Id. at p. 751, italics added.)

Although this result is harsh, and puts a burden on homeowners who may be quite unsophisticated, the court could hardly have ruled otherwise without inviting collusion between homeowners and contractors, seeking to obtain advantages that they wouldn't be allowed under the normal planning process.

Whether planning and zoning restrictions in California beach cities are oppressive and excessive is a separate question. If a city is going to have any restrictions, as has been permitted by the U.S. Supreme Court for nearly a century under the local "police power," then owners have to be responsible for the acts of their agents who break the rules.

The rule of Ciraulo puts a burden on homeowners who may be naïve and inexperienced. If you build or remodel a custom house in California, you had better pile up reserves of both cash and patience, and make sure your contractor has plenty of insurance. You may need all three.

Incidentally, if there was no collusion between the Ciraulos and the contractor, the next lawsuit is likely to be one by the Ciraulos against the contractor, for breach of contract and negligence, asking for the cost of the roof structure back, as well as the cost of demolition and legal fees.

The more complicated the rules get, the better lawyers do. Sometimes "preventive law" before the fact can be a lot cheaper than litigatin after the horses have left the barn. And who knows? The barn may be illegal, too.

Somali Cabbies Again

noreply@blogger.com (Grumpy Old Man) — Sat, 24 Feb 2007 20:15:00 +0000

As you may recall, the former Lutheran Mecca of Minneapolis is now a favorite destination of Somali immigrants, who now make up a majority of cab drivers in that northern burg. Some of the Somalis, with the enthusiasm characteristic of peripheral "Arabs," have rediscovered strict Islam, and are refusing to take on fares who are transporting alcohol, or even dogs, which the Somalis regard as unclean.

The Metropolitan Airport Commission is considering, and on Tuesday will hold a hearing on, proposed regulations increasing the penalties for improperly refusing a fare. Documents reproduced on Daniel Pipes's site. Warning: some regard Pipes as anti-Muslim.

My first reaction is surprise at the fact that Minneapolis, which we furriners think of as a Scandinavian icebox, has attracted enough Somali refugees for them to dominate taxi driving. Such are our times. How much exoticism, cultural, racial and religious, the heartland can stand is one question, which history will answer.

The issue of the demand for special rules for a minority religion is more interesting. I've commented on it before, and I won't belabor points already made. What's concerning is the tendency, in this country and abroad, to move toward special rules for the Muslim minority.

The Ottoman Empire developed the millet system, whereby each ethnic-religious group was governed, at least in matters such as marriage and inheritance, by its own traditional law. This system has survived in modern Israel, and is hardly conducive to national unity. It's "free exercise" taken to excess. The demands of Muslims in Europe often point in this direction. Although the U.S. has allowed free exercise of religious observance, it has only made minimal accommodations to religious differences in the secular marketplace, which is governed by uniform laws.

So, for instance, if you get a hack license, you're supposed to carry everyone, a sore point in New York City, where a combination of prejudice and the desire for self-preservation has led many cabbies to ignore black would-be passengers trying to hail them. It's also a sore point in Minneapolis, where people arriving at the airport carrying lawful substances or escorting lawful quadrupeds don't want to be subjected to a religious test.

A lawyer of a social observer can spin out complexities, exceptions and caveats here, but basically, it's simple. If you want a license to serve the public, you can't pick and choose what part of the public to serve.

Rant's [sic]

noreply@blogger.com (Grumpy Old Man) — Fri, 26 Jan 2007 18:34:00 +0000

Pedant that I am, I sometimes react more strongly to apostrophe errors than to snark, stupidity, and lies.

The poor little punctuation mark is so misused that sometimes I think he should be put out to pasture.

It's easy, folks.

Rule 1. When the word is a contraction ("do not"==>"don't" "it is"==>"it's") you replace the letters that aren't pronounced with the apostrophe.

Rule 2. When there's a possessive "s" added to a noun, the apostrophe goes before the "s" when the noun is singular ("John's hat," "the cat's meow).

Rule 3. When there's a pluralizing "s" added to a noun that is also possessive, the apostrophe goes after the "s" ("the horses' tails," "the Smiths' dinner party").

Three simple rules, folks, that's all.

"It's" and "its" sometimes cause trouble, but they follow the rule.

"It's," meaning "it is" takes the apostrophe internally, because it's a contraction.

"Its" as a possessive doesn't take an apostrophe any more than "his" does--pronouns don't take a possessive apostrophe.

So: "It's a boy!" meaning "It is a boy!" but "Its eggs are green" because "its" is neither a contraction nor a possessive noun.

So endeth the rant. Amen.

(For extra credit: "apostrophe" is also one of the many devices of classical rhetoric:

A digression in the form of an address to someone not present, or to a personified object or idea, as “O Death, where is thy sting?”

Go and sin no more.

(Cross-posted from As the Top of the World Turns).

Ticket time for Mike Nifong?

noreply@blogger.com (Grumpy Old Man) — Thu, 25 Jan 2007 16:11:00 +0000

The North Carolina Bar has upped the ante by amending the charges against Mike Nifong, the prosecutory in the Duke lacross team rape case. Now they're accusing him of withholding evidence and lying to the court, not just improper pretrial publicity.

This is what lawyers call "ticket time"--where you risk losing your license to practice.

The Anniversary of Roe v. Wade

noreply@blogger.com (Grumpy Old Man) — Tue, 23 Jan 2007 04:36:00 +0000

Apparently today is the anniversary of the Supreme Court's decision in Roe v. Wade.

Although in the past I have taken the view that it is imprudent for the state to ban abortion, I have long believed that the Roe decision was poorly reasoned and politically disastrous. I began a series of posts on Roe, but sad to say haven't brought the analysis up to the Roe ruling itself and the equally important Webster case.

In my view, issues of this kind should be resolved through the constitutional political system, by the legislative process (or in some states, the initiative, which is fraught with other difficulties). When unelected, or even nominally elected judges, use legal reasoning that's impenetrable to the mind of the average citizen, to impose their views on highly charged subjects such as abortion, the political process is thwarted, the losers feel cheated and put upon, and the legitimacy of the system suffers.

Before Roe, the country was drifting in the direction of a less restrictive approach to abortion, and if Roe is overruled, the political process will resume. In some states, such as California, which has placed a "right of privacy" in its Constitution, a permissive approach to the issue will prevail; in others, more conservative, some degree of restriction is likely to be enacted. Even supposedly conservative South Dakota refused, this last election, to enact an absolute abortion ban with no exception for rape or incest.

I've also grown increasingly uncomfortable with the cultural consequences of a relaxed approach to abortion. I remember the sorrow when my wife miscarried, before our first child was born healthy. As potential viability becomes possible earlier in a pregnancy, late-term abortion becomes more and more akin to infanticide. Looking at the results of sex-selection abortions in Asia (millions of men who will be unable to marry, because the babies who would have grown up to be their wives were aborted, among other things), the creepily casual way in which technology is used and misused in reproductive matters, and other changes, few of them good, in the culture, I am increasingly troubled. In addition, rather than overpopulation, the developed world appears to be facing rapid population decline, as well as a decline in family life.

It appears to me more and more that we, and I in particular, have gone astray in these matters and the easy acceptance of abortion looks to be one of the reasons. There is much to answer for.

White Shoe Law Firms vs. the Neocon-Christer Mafia

noreply@blogger.com (Grumpy Old Man) — Sat, 20 Jan 2007 17:47:00 +0000

Boy Genius Eugene Volokh

The Volokh Conspiracy is my favorite law blog. Eugene Volokh, leader of the pack, is a law professor and former child prodigy at my alma mater, UCLA Law School, and writes on free speech and slippery slopes, among other things.

On this page, posts are gathered together about the remarks of deputy assistant secretary of defense of detainee affairs Cully Stimson, who questioned the number of major corporate law firms who had signed up to represent detainees at Guantánamo Naval Base, who are, of course, suspected or accused of terrorist activity and affiliations. Stimson suggested that corporate clients pressure these Establishment firms to eschew these representations. Critics, including the Volokh conspirators, piled on the heretic. After a barrage of press and blogosphere discussion, Stimson recanted. However, as Galileo is supposed to have said, the moon still moves.

One of the question laymen often ask lawyers is why they represent people who are obviously guilty of heinous crimes. The stock answer is that to insure we have a fair system, everyone is entitled to representation, and if the goal of representation for everyone is to be achieved. In the abstract, I agree with the statement, although of course many who represent unsavory defendants have other motivations, such as money, fame, making political points, and sympathy for the accused or their plight. None of these motivations is necessary to be condemned, either, but one need not acknowledge the nobility of the actions of lawyers like Lynne Stewart, who was convicted of providing non-legal assistance to the convicted terrorist Omar Abdel Rahman, known as the "Blind Sheikh," or the communist lawyers whose representation of unpopular defendants is said bys ome to have been designed to propagandize about the unfairness of the system, as opposed to achieving the best results for their clients.

Because of the importance of providing representation to all, it's considered unethical to try to dissuade a lawyer from representing a particular defendant. The criticisms that Stimson drew are understandable from this perspective.

And yet, it's worthy of comment that these white shoe firms have flocked to work on this particular issue. The younger lawyers in these firms are perhaps influenced by legitimate concerns for the innocence of some of the detainees (many apparently got swept up in post 9/11 operations more or less at random) and the procedural confusion attendant upon their incarceration, and the professionally interesting constitutional issues raised by the clients' situation. Are they also salivating in response to the conditioning they received at the major law schools, with their heavily left-wing culture, and their location in the blue-state word-worker élite that regards Bush & Co. as a bunch of Bible-thumping fascist rubes, and the Guantánamo cases as a blow against some neocon-Christer Mafia?

The white shoe firms' choice of pro bono clients is not a legitimate target of government pressure, but why these folks choose to do what they do is a proper subject of public discussion.

Unfettered Discretion in BoBo Land

noreply@blogger.com (Grumpy Old Man) — Fri, 19 Jan 2007 11:23:00 +0000

My office is right across from our City Hall. Last night, a client and his architect came in, disconsolate and angry. My client's deck leaks, and I'm suing the general contractor and a passel of other people. In the course of repairing it, my client wants to expand the area of the deck a bit. The expansion is consistent with the zoning.

Not so fast. In our town, you can't move a stick without going through a prolonged and expensive hearing process, called "Design Review." You have to notify your neighbors, put up stakes to show what's going where, and appear before five busybodies (the Design Review Board) to get permission.

My client's desolation and rage came about because the DRB denied his application, not because the deck would interfere with his neighbor's privacy, but because the DRB doesn't like "incrementalism," also known as "salami tactics"--a slice now, a slice tomorrow, and pretty soon I've got the whole salami. Now he can appeal to the City Council, and if they deny the project, sue. In the alternative, he can give up, or spend more money and try again.

All of this is done in the name of conservation and preserving the "village character" of our BoBo town.

In fact, what is being conserved is the high price of property; it's drawbridge politics . Aside from the property rights question as to whether these things should be regulated at all, other than by the law of nuisance, the vice of the process is that in spite of all pretensions, it's essentially standardless. If a neighbor complains, the powers-that-be don't like you, or one of the board members gets a wild hair, you're cooked.

The courts are reluctant to take on these issues. One could say this stance is due to respect for the democratic process, except that the courts don't respect the process when leftist doctrine, developed in the law schools, says that new rights are at stake. Perhaps it's mostly fear that there is so much arbitrariness in local government that if they interfered with this kind of abuse except in the most extreme cases (here's one involving private arbitration, and even there, the remedy was limited), they'd be swamped.

There has been so much frustration that the City Council appointed another committee (of course!) to review the process. Their solution: up the fees and appoint more staff. My solution: abolish the DRB and let property owners build what they want, so long as it complies with the written zoning rules. Clear guidelines and predictability. What a concept!

Until that millenial dispensation arrives, it will continue to suck.

UPDATE: Corrected link to "Drawbridge Politics."

Couch Potato Justice

noreply@blogger.com (Grumpy Old Man) — Thu, 18 Jan 2007 15:33:00 +0000

When the Ninth Circuit Court of Appeals (the federal appeals court for the West and the Pacific) met to consider Kevin Cooper's death penalty appeal, the courtroom was full, but none of the justices was present in person. All three were at remote locations, and one was present only by audio, because the video link was down.

The trend toward remote court hearings is growing, and Mary Schroeder, the chief judge of the Ninth Circuit is concerned:

In an interview late last week, Schroeder, who is based in Phoenix, said she was troubled by the development, and may propose curbs on judicial videoconferencing.

"I was at the courthouse in San Francisco on Tuesday, and I was very surprised and concerned when I learned all three judges were on video," Schroeder said. "That was a first. Several other judges are concerned as well, and we are going to have a full discussion as soon as we can.

"I don't think this is going to happen again."

The practice grew up innocently enough--lawyers from Guam asked for the privilege because the trip for a brief oral argument was long and expensive. In many routine appeals, argument is brief and unlikely to change the result.

In a death penalty case, the problem is more serious. Is something lost because the judges and the lawyers can't see one another in three dimensions, and look one another in the eye?

I've had some experience, not with video, but with telephone appearances in the trial courts. I don't like them, because the visual clues are entirely missing, but with traffic in the Los Angeles-Orange County area being as bad as it is, you can't always justify charging a client for a four-hour round trip to a court, for a three-minute appearance where nothing is done but setting a date. In such instances, teleconferencing through CourtCall, the company that has the contract, saves time and client expense.

Indeed, some judges now post tentative rulings on motions on the Internet, encouraging lawyers to "submit" on them, that is, accept the ruling. If the ruling, for example, says a complaint is defective but may be amended, it's often not worthwhile to appear.

All of this, of course, is a loss. Law students participate in "moot court" (mock oral argument) to hone their advocacy skills, and the Socratic method of question, answer and debate still rules in the law schools. In trial courts nowadays, it's rare that such skills are needed. The motions are studied by staff attorneys or law clerks, and minds tend to be made up in advance. A few old-line judges used to enjoy discussing the case law in open court, and the intellectual challenge was stimulating. It doesn't happen much. Short of trial, the premium is on written advocacy, which, fortunately, I'm good at.

In appellate courts, even with video appearances and judges who've already studied the record and often made up their minds in advance of argument, video may have it's place, but one loses something. The give and take is a bit artificial and an air of unreality descends over the proceedings.

It's like the difference between live theater in a small house and TV drama. Live theater has something special. Of course, most of us are couch potatoes more than theatergoers these days. It's too bad. And it's too bad that the immediacy of contact with appellate judges, whom one sees only in oral argument, is in jeopardy.

The Camel's Nose Is In the Tent, and He's Got a Spliff In His Mouth

noreply@blogger.com (Grumpy Old Man) — Wed, 17 Jan 2007 13:33:00 +0000

LA's police chief William Bratton Views With Alarm the rapidly increasing numbers of so-called medical marijuana clinics.

So he's proposing legislation to regulate them, including a ban within 1,000 feet of schools.

Concerned by a 2,350% increase in the number of medical marijuana dispensaries in Los Angeles in a one-year period, Police Chief William J. Bratton is calling for a moratorium on new facilities until strict rules can be adopted governing them.

In a report to the Police Commission, Bratton said he wants to ban existing dispensaries within 1,000 feet of schools, churches, parks and places designated exclusively for the care of children. He also advocates limiting their hours to 10 a.m. to 6 p.m.

The establishments are allowed under a 1996 state ballot measure and a more recent state law making marijuana available to patients by prescription to relieve pain or nausea.

Bratton said the number of dispensaries increased from four in November 2005 to 98 a year later.

"This has fostered an increase in … crime problems and caused quality-of-life issues for families and communities, as evidenced by the 110 complaints received from neighbors, business owners and concerned citizens concerning these dispensaries," Bratton's report states.

* * * *

"One clinic blatantly resorted to placing fliers on the windshields of vehicles parked in and around Grant High School in an obvious effort to entice children," Bratton said.

The chief did not identify the clinic, but said its flier stated that it is legal to own, grow and smoke medical marijuana and that "qualification is simple and our experienced physicians are more than happy to help you," adding that the visit is free if the applicant does not qualify.

Bratton is right about one thing. These places are not all simply supplying weed to people on chemotherapy. The medical marijuana thing is a way of relaxing controls on the foul weed. Even if the excuse is plausible, like sacramental wine during Prohibition, the exception's being used, as the Chief says (horror of horrors!) for "profit and recreational drug use".

I don't care for the stuff, but if you started out analyzing the deleterious effects of pot and booze, you'd probably legalize pot and ban booze. Pot makes people passive and silly, not combative (although remember the word "assassin" comes from hashishin, the youths the Old Man of the Mountain plied with hashish to give them visions of heaven before he sent them on their missions).

The other noteworthy thing in the Chief's screed is his call for a ban within 1,000 feet of a school. This hypocritical ploy is now used all the time as part of an emotional plea to, so they say, protect children. 1,000 feet is a fifth of a mile, or four blocks. This kind of proposal, blessed by the Supreme Court in the case of so-called adult venues, i.e. pornography, is just an excuse to ban or at least harass an unpopular kind of business. It has nothing to do with protecting children in the real world; it's just a cynical exploitation of fears for children.

And who appointed the cops as moral arbiters? They're supposed to enforce criminal laws, not come up with new ones. Instead the do things like visit schools and tell kids not to use drugs, a program demonstrated to be ineffective.

Legalize it. Strike a blow against the Nanny State.

Mt. Soledad Cross

noreply@blogger.com (Grumpy Old Man) — Sun, 14 Jan 2007 15:06:00 +0000

The Ninth Circuit (the federal Court of Appeals that covers California) has told the District Court to vacate (withdraw) its order requiring removal of the large cross on Mt. Soledad in La Jolla.

On May 3, 2006, Judge Gordon Thompson, Jr., moved to enforce an order he initially made in 1991, telling the city that the cross violated the state constitution's ban on government aid and preference for religion, and to remove it or face a fine of $5,000 per day. In August, Congress passed a bill allowing the federal government to take control of the land. That rendered Judge Thompson's order moot, since the land no longer fell under the authority of the California constitution, triggering the 9th Circuit's decision.

Two more lawsuits, of course, are in the wings, challenging the federal government's allowing the cross to remain on federal land.

That we spend so much time on issues like this confirms my view that our freedom-of-religion jurisprudence is wacky. It's a majority (and historically) Christian country. You don't have to like it, but it is. Get over it.

The Somali Cabbies of MPLS

noreply@blogger.com (Grumpy Old Man) — Sat, 13 Jan 2007 23:06:00 +0000

Somali cabbies in Minneapolis, who apparently make up a significant proportion of the cabbies who serve the airport, are demanding the right to refuse service to anyone transporting alcohol, or dogs. Alcohol is forbidden under Islamic law, and according to some interpretations, dog saliva is ritually unclean.

In fact, the unilateral refusal of service is inconveniencing others, including the "First Mate," the wife of Minneapolis blogger Captain Ed:

It also goes beyond the airport cabs, as the First Mate discovered on more than one occasion where she used taxis for normal travel when she still used Cory as her guide dog. She had to threaten one cabdriver with a complaint to get him to allow the dog, and on other occasions had to explain the open access laws for service dogs in America.

Now, compare and contrast the issues raised by Christian pharmacists who claim the right to refuse to sell the "morning after" pill on the ground that it's a forbidden abortifacient. Feminists and lefties are outraged, arguing that a pharmacy is a kind of public utility that should not be able to pick and choose what services within its authorized area of business it will provide.

The Muslim cabbies and the Christian pharmacists are claiming a religion-based exemption from a rule of general application.

There is a long history in this country of enacting generally applicable laws that have a religious basis, notably Sunday closing, or "blue" laws. These have been upheld in many cases, but on the somewhat strained basis that they have a secular purpose, such as limiting the hours of work or preventing traffic congestion.

The constitutional case law in this area is quite confused. But from a policy perspective, requiring a licensed public conveyance to carry anyone carrying a lawful substance or a licensed guide dog hardly seems like an imposition, and the demand for an exemption by a religion whose beliefs demand the enactment of its own system of law to govern society as a whole, seems ominous.

Nifong Bows Out

noreply@blogger.com (Grumpy Old Man) — Sat, 13 Jan 2007 03:32:00 +0000

Michael Nifong, the rogue prosecutor in the Duke lacrosse team case, has finally come to his senses enough to ask the state Attorney General to appoint a special prosecutor in the case. Grounds: the State Bar investigation creates a conflict of interest.

I can't imagine the case lasting 48 hours once this happens.

No Forced Mediation In California

noreply@blogger.com (Grumpy Old Man) — Thu, 11 Jan 2007 14:37:00 +0000

In the last several years, much of my practice has been in the area of construction defects, sometimes also known as "the dream house that becomes a nightmare."

In California, these cases explode. The owner sues the builder, and owner or builder or both sue every subcontractor they can think of, in hopes of compelling additional insurance companies to contribute to settling the case. Although I've tried them, these cases rarely go to trial, because the defects are usually evident and the cost prohibitive.

Instead, these cases go to mediation. Mediation is a process conducted before a third party, often a lawyer or retired judge. Unlike an arbitrator, a mediator has no power to make a ruling on the merits of a case.

Many hold themselves out as mediators, but relatively few are really good at it. And although it may seem that a mediator has the easy job of sitting around and playing "Let's Make a Deal," effective mediation is quite difficult, requiring legal knowledge, psychological insight, and patience, among other things. Perhaps that's why private mediation can be quite costly, especially in a complex case where several sessions may be needed to achieve a settlement.

The business of private "ADR" ("alternative dispute resolution") has exploded over the last two decades. Firms such as JAMS and Judicate West, as well as the old-line American Arbitration Association, are quite lucrative. Many experienced judges can't fight the temptation to make real money as mediators and arbitrators.

Judges on the bench have also gotten into the habit, especially in complex matters such as construction defect cases, of ordering the parties to mediate a case and to pay for the privilege.

No more, at least in California.

A new case, Jeld-Wen, Inc. v. Superior Court (2007) 2007 DJDAR 233, No. D048782, puts a stop to the practice of forced participation in mediation. Jeld-Wen, apparently a window company, was an uninsured cross-defendant in a construction defect case. This means that another party, probably a defendant builder or general contractor, had brought Jeld-Wen into the case, claiming it was partly responsible and had to contribute to resolving the case.

The trial judge ordered everyone into mediation, and ordered them to share the costs. Jeld-Wen, lacking insurance and claiming it didn't install the subject products, refused to participate or to pay. The court slapped Jeld-Wen with "sanctions" (basically a fine).

Jeld-Wen then "ran a writ," that is, asked the Court of Appeals to order the trial court to stop. Normally Courts of Appeal won't even hear such writs, preferring to wait until a case is completely over. Every now and then the Courts of Appeals do decide to hear an issue, especially if it's an important and new issue of law.

In Jeld-Wen's case, the Court of Appeals in San Diego told the trial court to back off. No statute or court rule, it said, empowered a trial judge to order a party to pay for private mediation over its objection.

This ruling is a good one. One of the basic functions of government is to administer justice, and one of our system's advantages is that in business matters our system of justice is reasonably predictable. Our courts are busy, and understandably are tempted to move cases to resolution however they can, including by using private mediation. Private mediation of construction cases will undoubtedly continue to be popular, because the parties will conclude it's in their best interest. However, it's unfair to require a party that may or may not have the resources, to pay a private mediator against its will. The principle that the courts are open to all is important, and this rule--no one can be forced into mediation--reaffirms that principle. It will also avoid the suspicion that there is a conflict of interests, that judges are ordering parties to hire their former colleagues or future employers. And it will force mediators to be a bit more competitive, in quality if not in price.

Circumstantial Evidence

noreply@blogger.com (Grumpy Old Man) — Wed, 10 Jan 2007 14:22:00 +0000

The long-delayed murder trial of Michael Goodwin is finally over. Goodwin was charged with the murder of a former business associate, Mickey Thompson, and his wife.

The Thompsons lived in the small, wealthy foothill community of Bradbury. Two black men rode up on bicycles and shot the couple. Goodwin fled the country, and supposedly lived on a sailboat in the Caribbean for years, but ultimately returned. He was arrested, tried and convicted.

No one saw him do it, and there was no physical evidence such as DNA, fabric, or ballistics connecting him to the crime. The actual killers have never been found and for all we know may have been killed themselves. The evidence consisted, among other things, in Goodwin's threats to kill Thompson, his flight, and reports by witnesses who said they remembered, years later, that they had seen Goodwin in the neighborhood shortly before.

I'm not going to rehash the trial. The papers have done that, and no doubt there will be a book out before long.

The point here is about the law of evidence. Many non-lawyers think that "circumstantial evidence" is legally inferior to direct evidence, as when a witness says he saw the event in question. Not so. Circumstantial evidence has the same standing as direct evidence, and a jury can convict a defendant even of murder based entirely on circumstantial evidence. (In the Goodwin case, there was some direct evidence--descriptions of the crime scene, autopsy results, and so on).

Here we have motive and opportunity, flight as reflecting consciousness of guilt, and the evidence of Goodwin's presence at the scene before the killings. All of this is circumstantial evidence, and it's undoubtedly legally sufficient to convict. On appeal, the fact that the evidence may seem thin won't be enough for a reversal; if a reversal comes it will be due to legal error, not insufficiency of the evidence. An appellate court doesn't need to find guilt beyond reasonable doubt. It just has to find sufficient evidence to make out a case on which a jury could convict.

So, surprise and delight (or annoy) your friends. Next time they say, "It's only circumstantial evidence," set them straight.

From Organ Enlargement to "Christian" Loans

noreply@blogger.com (Grumpy Old Man) — Wed, 03 Jan 2007 03:58:00 +0000

I'm the recipient of scads of spam.

Used to be, a goodly portion of the messages offered me the opportunity to enlarge my virile member, and drugs to stiffen it. Another tranche of missives invited me to participate in myriad variants of the Nigerian "419" scheme--to transfer millions illegally in exchange for a cut of the loot, including Suha Arafat's clandestine estate.

There are fashions in spam. Nowadays I get lots of stock tips in graphic form, to evade the spam filters, offers to sell me fake Rolexes, and to download cheap (and probably pirated) Windows software, which, as a Mac cultist, I don't use.

Today's topic, however, is the increasingly common solicitation for "Christian" financial services, such as payday loans. For example, today I received an unsoliced email that contained this image:
I'm intrigued by the "Christian" angle. For much of its life, the Church condemned lending at interest, while tolerating the lending activities of a caste of Jews who lacked the same scruples as to the practice. These days, it tolerates the practice, but it's hard to see what would make a lender's activity "Christian," besides, perhaps, declining to make a profit on the sorrows of the poor.

I'm no sleuth, but Google provides a few tools even for amateurs such as I. It turns out that the address of this particular lender is in Las Vegas, and although its address is given as "848 N. Rainbow Blvd. # 612" in Las Vegas NV, Google Maps's imaging software seems to show only a small building, suggesting that there's no sixth floor, and we're dealing with a mail drop.

If we go to their website, in the small type, there's a disclaimer:

* Christian Faith Financial is a financial matching service - matching prospective borrowers with prospective lenders. Your information may be placed with one of several independhttp://www2.blogger.com/img/gl.link.gifent loan companies. Not all independent loan companies will approve you for a loan or can provide you with up to $1,500 on your first loan. We cannot guarantee final approval of unsecured cash loans. Qualifying for final approval of a cash loan depends on various factors including income and the state in which you reside. Christian Faith Financial is not a financial institution or a lender. The independent loan companies may verify your supplied information with any number of independent verification companies including but not limited to: CLVerify, Teletrack, or Accurint.

In short, the website is just a finding service for a series of payday lenders. The FTC warns against them, and the Nevada Legislature is considering tightening control on them.

Then I checked the domain from which the spam came, streetsworlds.com. This appears to be a bad credit lending site, with nothing particularly Christian about it. A "whois" search of the domain name leads to

Reliant First
Web Master (customer.dept@reliantfirst.com)
952 Troy-Schenectady #310 Road
Latham
NY,12110
US

This website advertises email and web marketing services. In short, if Reliant First is not an illegal spammer, it's something close. Unless it's somehow related to a Canadian mortgage lender, also named "Reliant First."

If I were an investigative reporter, or wished to invest additional time in phone calls and web searches, undoubtely I could find out a good deal more without much difficulty. Certainly, it seems that the "Christian" label and the Bible quote are just window-dressing designed to bring in the marks. According a posting by the Arizona Corporation Commission, this is known as "afffinity fraud," using the mark's ethnic or religious association to attract him to a scam such as this one:

In Arizona, the Baptist Foundation of Arizona is a recent example of an affinity fraud. The Corporation Commission issued an order requiring the Baptist Foundation of Arizona and two related corporations, Arizona Southern Baptist New Church Ventures, Inc., and Christian Financial Partners, Inc., to cease and desist from violating the Arizona Securities Act in offering and selling their investment products. The three nonprofit corporations have sold more than $530 million in investments involving promissory notes, to more than 13,000 investors throughout the United States. An investigation conducted by the Securities Division revealed that the Foundation had misrepresented its financial condition to investors.

The Christian press itself contains many stories about the surge in "Christian" scams, such as this one, which includes the following:

I've been a securities regulator for 20 years, and I've seen more money stolen in the name of God than in any other way," said Deborah Bortner, president of the North American Securities Administrators Association. Securities regulators are warning that religious-based investment seams have risen dramatically, citing three prominent cases that accounted for a total of $1.5 billion in losses.

Bortner, who is also director of securities for the state of Washington, said in a statement August 7 that "when you invest you shouldn't let your guard down merely because someone is appealing to your religion or your faith." In the past three years, securities regulators in 27 states have taken action against hundreds of individuals and companies that used spiritual or religious beliefs to gain the trust of investors.

The association cited the cases of Greater Ministries International Church, the Baptist Foundation of Arizona and the IRM Corporation as key examples of a fraudulent mixture of religion and money. Association officials held a news conference in Washington, D.C., the day after Gerald Payne, founder of the Tampa, Florida-based Greater Ministries International Church, was sentenced to 27 years in prison on fraud and conspiracy charges.

To summarize, this proves Shakespeare right when he wrote, "The devil can cite Scripture for his purpose."

Jim Bakker lives.

Meanwhile, if you feel your virile member is inadequate, have I got an herb for you . . .

Another Suspect Prosecution

noreply@blogger.com (Grumpy Old Man) — Sun, 31 Dec 2006 13:31:00 +0000

Prosecutors in the United States have ethical duties different from those of other lawyers. Although most lawyers' duty is to represent their clients zealously, within the bounds of the law, prosecutors' obligation is to convict only the guilty. Theoretically, they represent "the People" ("What a majority!" as the defendant in the joke says, as the case of "People vs." him is announced). "The People" want to convict only those found guilty beyond a reasonable doubt, obliging a prosecutor not to try the innocent. Moreover, loyalty to the system should limit a prosecutor's zeal to convict if only improper tactics, such as concealing evidence, appear likely to secure conviction.

Mike Nifong is District Attorney in Durham, North Carolina, where the would-be Harvard of the South, Duke University coexists uneasily with a heavily black town. Earlier this year, some Duke lacrosse players, all but one of them white, in the way of a certain kind of young men, hired two black strippers to perform at a party, where no doubt some of them drank too much. One of the strippers got hysterical and cried "Rape!"

Politics overlays any rape charge, and especially an interracial one. Two movements, the black civil rights movement and the women's movement, have made an issue of rape. At one time, false charges of rape of white women against blacks led to controversial convictions and causes célebres. The fear of race-mixing and the taking of white women by supposedly sexually powerful and animalistic black men was a theme in racial politics. Meanwhile, in the Old South, it was common for powerful white men to have their way, more or less secretly, with black women. An example is the late Senator Strom Thurmond's posthumously disclosed fathering of a child with a young black housemaid, a child he supported, to his credit, all his life.

The women's movement, on the other hand, developed a narrative that violence against women was one means of maintaining what they saw as inequality between the sexes, with rape being too common and insufficiently punished, in a number of ways. Susan Brownmiller was one of the first writers to argue these points, typically intensified to the frontiers of madness by the late Andrea Dworkin. This agitation led to legislation that restricted inquiry into accusers' sexual histories to invoke the "she got what she deserved" meme, and criminalized rape within marriage. The notion that even an unchaste woman should not be forced into sexual relations by violence became commonplace. Supposedly rampant "date rape" became the subject of endless agitation on college campuses.

The events in Durham invoked the concepts of both movements. Blacks were likely to regard the supposed rape as a throwback to the era of Jim Crow and unpunished white violence against black women, while the stereotypes of the drunken, privileged college athlete and the victimized young black girl led a rush to judgment. Some 88 Duke faculty members, mired in gender politics and multiculturalism, were quick to issue a statement. Duke's President, Richard Brodhead, suspended the lacrosse program and issued self-flagellating statements.

Meanwhile, DA Nifong was in a struggle to be elected to the office for the first time after his appointment. There was a rush to judgment, Nifong hyped the story and the press obliged him, and three lacrosse players were indicted. Nifong was narrowly elected.

The accusations began to unravel almost immediately. The accuser and her companion told conflicting and changing stories. It turned out the that accuser had cried rape before and then withdrawn her claims. The photo array used to identify the accused was fatally tainted--all the photos were of lacrosse players, including no non-suspects as is normally and properly done. Some of the players had ironclad alibis, casting doubt upon the chronology.

In recent days, it has come out that the DNA testing performed by a private laboratory revealed that the accuser had had sexual relations with a number of men in the days before the alleged rape, but NONE of them was a lacrosse player. Although it's theoretically possible that the accuser was busy with others, unprotected, before the party, while the rapists all wore condoms, the crucial fact is that the DA and the lab knew about these results for months, and the DA failed to disclose them to the defense, as constitutional criminal law requires.

As a result of this embarrassment and the severe doubts this evidence evoked, Nifong recently dropped the rape charges, while maintaining others not involving penetration. The credibility of the accuser, who didn't mention her numerous men friends, can't possibly stand up under minimally competent cross-examination.

Now it's DA Nifong who is in the sights. The State Bar has issued formal charges that Nifong breached ethics in his loud and false statements to the press early on, and may amend those charges to include other misconduct, including concealing evidence and misleading the court. The North Carolina association of DA's, a type of group that's normally rabidly pro-conviction and pro-punishment, called upon Nifong to withdraw from the case. Among other things, the pending misconduct charges against Nifong create a conflict with his duty to exercise discretion in whom he charges and prosecutes, and how he prosecutes them.

These young men have been grievously abused, and their troubles aren't over. If they hadn't had parents with money to pay lawyers, they might be headed for prison for a crime they did not commit.

Duke has suffered. The reflexive, ideological stupidity of its faculty, and the knee-jerk abandonment of its students by President Brodhead will undoubtedly tarnish its reputation and scare away applicants, even though most faculties and our large, prestigious institutions might very well behave similarly. If I were a Trustee, I'd want to fire the man immediately.

These events also demonstrate the racial inversion that has taken place in this country. If events occur that seem to support the concept that white racism and anti-black violence are commonplace, the press jumps on them. The Jesse Jacksons and Al Sharptons ride into town and the marches follow.

In reality, black-on-white violence is far more common nowadays than the reverse, and the same is true of rape. Black racism toward whites today seems more marked than white racism toward blacks, the public expression of which is not only taboo, but in many places, such as universities, leads to an orgy of self-flagellation. Discrimination against whites in favor of blacks, misnamed "affirmative action" is seen as a sacred duty in some quarters.

One hopes that we will learn something from these events. I doubt we will.

For more information about the Durham events, see LaShawn Barber's blog; this one, especially dedicated to the case; the inimitable Captain Ed; and Mary Katherine Ham's video tour of all the places in Durham where things did not happen.

A Suspect Prosecution

noreply@blogger.com (Grumpy Old Man) — Sun, 31 Dec 2006 06:18:00 +0000

(Originally posted June 24, 2006)

Steve Yagman is a flamboyant Venice, California lawyer who handles police abuse cases and gets into scrapes with federal judges. He got into long disciplinary fights over his accusations against Judges Manuel Real and William Keller. He's had scrapes with the Bar over his fees.

He's also won some major victories.

Now, the feds are prosecuting him for alleged income tax and bankruptcy shenanigans.

I don't know the facts, but I smell a rat. Yagman recently won a big case against the IRS. Now they're trying to send him to prison.

Of course, being a defense or police abuse lawyer, even a crusading one, should not earn one a "Get Out of Jail Free" card.

But is this a vengeful or selective prosecution? If so, it wouldn't be the first. i don't know the facts, but--inquiring minds want to know.

What Roe Is All About II (Incorporation and Privacy)

noreply@blogger.com (Grumpy Old Man) — Sun, 31 Dec 2006 06:11:00 +0000

This piece is reproduced from my personal blog. It was written in October 2005, and is second in a series, still incomplete, on Roe vs. Wade, looked at from a legal, not a political or moral perspective. My earlier discussion is here.

Remember that we ended the Introduction with a discussion of the Fourteenth Amendment's ban on the states acting against the newly-minted ex-slave citizens, or any citizens by Denying them the privileges and immunities of citizens Depriving them of life liberty or property without due process of law; or Denying them the equal protection of the laws. All of this sounded good, and to the Radical Republicans who enacted the Fourteenth Amendment, had a clear intent of protecting the ex-slaves.

Within a few years, however, interest in affording much protection to the ex-slaves waned, and with the compromise arising out of the disputed 1876 election, Rutherford Hayes was allowed to carry Florida in exchange for a promise to end Reconstruction and give the white South a free hand with respect to the Negroes, who were relegated once again to a condition of subordination.

By 1896, the Supreme Court held in Plessy v. Ferguson that a state could enforce racial segregation in railroad cars, provided the facilities provided to each race were equal. In other areas, however, the Supreme Court found that certain rights of individuals and of corporations (fictitious legal "persons") under the federal constitution applied, under the Fourteenth Amendment, also to the states. The key case for this principle is Lochner v. New York. Lochner held unconstitutional a law of New York that forbade employers from making bakers work more than 60 hours in a week. The court held that a "freedom of contract" that the Fourteenth Amendment imposed upon the states trumped the states' inherent police power, and made it unconstitutional for a state to regulate the hours of work of bakers, even though restrictions on the hours of work of miners and others by other states had been upheld on health and safety grounds. The Supreme Court held that no such restriction on the work of bakers was justified by such health considerations.

This doctrine in Lochner has been labeled "substantive due process." In other words, it is not a case of a right being taken away without proper notice and procedures ("procedural due process"), but the content of the law itself the Court found offensive to the Constitution. In the economic sphere, substantive due process survived little more than 30 years. It was tossed out during the New Deal, when government regulation of the economy, in the face of the Great Depression, once again became fashionable. But Lochner is most emphatically not dead in non-economic spheres. Increasingly, the court has held, whether or not the focus is the Fourteenth Amendment's original one of race that the rights enumerated in the first ten amendments, much, if not all, of the "Bill of Rights" now applies to the states because the Fourteenth Amendment makes it so. Reams of paper have been covered with arguments as to which aspects of the Bill of Rights are "incorporated" or applied to the states under the Fourteenth Amendment.

II.

The other abstract concept needed to understand the legal arguments about Roe is the "right of privacy." In American jurisprudence, the concept of a "right of privacy" is generally traced back to an article by later Supreme Court Justice Brandeis and his law partner Samuel Warren in the Harvard Law Review. Brandeis and Warren wrote not about highfalutin' constitutional law, but about the law of torts, a tort being a civil wrong not arising out of a contract, for which suit may be brought. Brandeis and Warren argue that there is ample justification for the common law, as it does from time to time, to create a new tort, whereby damages and more rarely, an injunction, could be obtained for unauthorized publication of private facts, even if truthful. The article does not address the question of whether the constitution itself contains (or does not contain) an implied right of privacy. Brandeis and Warren's "privacy" deals more with protection against the likes of paparazzi than against state legislation:

Of the desirability -- indeed of the necessity -- of some such protection, there can, it is believed, be no doubt. The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle. The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury.

As we shall see, it is this concept of privacy, brought into the constitutional law and imposed on the states through the Fourteenth Amendment "incorporation" doctrine, that provided the initial rationale for Roe. Whether "privacy" can be found in the Bill of Rights, whether "incorporation" applies a right of privacy to the states, and whether abortion is within the scope of any such right of privacy, are all questions which must wait for further posts.

Drawbridge Politics, or Zoning for BoBos

noreply@blogger.com (Grumpy Old Man) — Sun, 31 Dec 2006 06:00:00 +0000

(Originally published March 5, 2006)

Courtesy of blogger Jane Galt, I had a chance to look at an article in the New York Times Magazine (free subscription) about the work of a Harvard economist, Edward Glaeser. Glaeser’s ideas confirmed much of what I have believed for some time about supposedly “liberal” planning and zoning restrictions. Such controls are particularly strong in places where affluent political liberals reside, what David Brooks called “BoBos in Paradise,” “BoBos” standing for “Bohemian bourgeoisie.”

In my own life, I’ve seen this phenomenon at work in two Southern California beach
cities, Santa Monica and Laguna Beach. In ‘80s Santa Monica, I served one term on the City Council of what then and now is often called the “People’s Republic” of Santa Monica, because of the affinity of the political leadership to certain kinds of left-wing nostrums like rent control for the benefit of retired communists and ex-graduate students and “inclusionary zoning.” In Laguna, an arbitrary and tyrannical Design Review Board stands athwart every property owner’s plans to remodel or build a home. All this in the name of protecting the environment.  

The Times Magazine article summarizes some of Glaeser’s ideas this way: Glaeser has come to believe that changes in zoning regulations may be the most important transformation in the American real-estate market since the mass acceptance of the automobile. In his view, these regulations have essentially created a "zoning tax" that has pushed prices far above construction costs. Very, very far above construction costs. It is not a perspective shared by all housing analysts; some economists have been far more inclined to blame high prices on high demand (spurred by low interest rates) or on rampant speculation. Others agree with Glaeser in emphasizing supply but not necessarily fixing on zoning. Karl Case, for instance, an economist at Wellesley College who counts himself a fan of Glaeser's, agrees that lack of supply has led to steep prices in the Boston area, but he attributes the housing shortage not just to zoning but also to the nature of the construction business and the scarcity of large desirable tracts of land. Still, among the half-dozen leading economists who study housing supply, there seems to be wide agreement that regulations have had a tremendous effect on prices. "I think the evidence is overwhelming," says John Quigley, an urban economist at Berkeley who has looked specifically at the effects of regulation on the California market. As Glaeser says: "It's so easy to forget the world that we were living in around 1970, when basically almost all of the value of houses was in the physical infrastructure. That was actually the cost. There was some land, and it was worth something, but it wasn't worth more than 20 percent of the value of the house."

Even in New York City, Glaeser says, the price of an apartment back then was essentially the cost of building the next floor. In researching New York City's housing prices, in fact, Glaeser and Gyourko discovered that over the past 30 years, the average height of new residential buildings in Manhattan decreased in size. "That's crazy," he insists, especially in light of how much the demand to live in New York has increased. "You know, if prices in Manhattan are skyrocketing, you should be building more and more at 50 stories, rather than at 30. Not the reverse." So is it his contention that Manhattan could build far more than it has recently? "Oh, for sure," he says. "Technologically? Certainly. No reason why you couldn't." Let's go back to Manhattan in the 1920's, Glaeser says. "New York in the 1920's is a pretty developed place, a pretty mature place. But they're producing a hundred thousand units a year. They're tearing up swaths of Manhattan and building higher buildings."

That would be legally and politically impossible today, but as he and Gyourko see things, it is precisely those legal and political roadblocks to "tearing up" the city that have made the place so expensive. Actually, in 2004, the two men took a close look at Manhattan and estimated that one half or more of the value of condominiums in the borough could be thought of as arising from some type of regulatory constraint preventing the construction of new housing. In short, zoning and other building restrictions are major factors in increasing house prices.

My own town, Laguna Beach, has become one of the most expensive cities in Orange County, as far as housing prices go. If the free market were allowed to function, its pleasant climate and coastal amenities would no doubt lead to the construction of high-rise condos as in Ipanema and the Barra de Tijuca in Rio de Janeiro. Zoning and design controls have made such an evolution impossible; Proposition 13 has reduced the pressure of market-driven property taxes to create the “highest and best use” of residential properties. The result has been to drive both the working class and industries that rely on working class labor out of Orange County, and to a degree, out of California. In a 1926 case called Village of Euclid, the US Supreme Court approved municipal zoning as a proper exercise of the police power, limited by later cases only to the extent that zoning must not deprive an owner of all economic use of his property. The phrase “Euclidean zoning” thus refers to the case, not to the logical nature of the process.

Nowadays, zoning and planning rules have become arbitrary and unpredictable, a different but related issue. What cannot be gainsaid is that they help them as has, and exclude them as would like to have--”God bless the child that has his own.” At least, following Glaeser, we should understand that despite the veneer of liberalism, the effect of most zoning is to exclude the young, the poor, and the aspiring, in favor of the old and the lucky, all of whom use zoning, environmentalism, and design controls to protect their turf against interlopers. “I’ve got my share of the castle. Let’s pull up the drawbridge!” Less hypocrisy. More understanding. Who knows where it will lead? But it’s a beginning.

The Polygamous Judge and the Future of "Privacy"

noreply@blogger.com (Grumpy Old Man) — Sun, 31 Dec 2006 05:56:00 +0000

Under pressure from the Utah Supreme Court, which in turn was responding to an anti-polygamy group made up largely of women, Judge Walter Steed, who has three wives and no less than 32 children, has resigned. Steed is a member of one of a number of Mormon sects that rejected the deal by which the mainstream Mormons abandoned polygamy (polygyny, really, because a woman cannot take more than one husband at a time) in exchange for statehood.

Notable is the Utah Supreme Court’s careful distinction between the constitutional questions, which are very much alive, and the issue on which it ruled, a judge’s obligation to follow the law even if he disagrees with it: "In the case of a sitting judge, it is of little or no consequence that the judge may believe a criminal statute is constitutionally defective," the court said. "A judge ignores the clearly stated clearly stated criminal prohibitions of the law at his or her peril." "Civil disobedience carries consequences for a judge that may not be applicable to other citizens," the court said. When judicial officers violate or ignore laws, "the stability of our society is placed at undue risk."

Judge Steed did not abandon his belief that the practice of polygamy is constitutionally protected: "I am hopeful that the court will eventually consider the issue of polygamy as an aspect of personal privacy, marital rights and religious freedom," Steed said. "I am proud of my effort to bring the issue before the court and the people of Utah."

This story is more than a bit of Utahn exoticism. Opponents of gay marriage have long argued that there is no principled basis for saying that gays have a privacy-based right to marry, while sincere polygamists do not. Sen. Rick Santorum was pilloried for making just this point, as Stanley Kurtz points out. If in fact the basis for claim the Constitution prohibits the states from forbidding gays to marry if it allows the same privilege to mixed couples, is the doctrine that the state may not interfere in the liberty interest that consenting adults have in ordering their sexual and marital lives without state restraint, it is hard to see why only gays can benefit from such privacy claims. Such claims are being asserted on behalf of at least three groups: Polygamists, such as the good judge,who based their practice on pre-Admission Mormon doctrine. In many foreign non-Muslim countries, the sharia-based claim to a right to polygamy is now at least on the agenda. The more New Age-y “polyamorists” who advocate not only polygamy, but various forms of group marriage.

Although there is a loud and influential gay community that has promoted gay marriage, perhaps accounting for its prominence as a public issue, there are at least as good constitutional arguments in favor of polygamy. Unilike gay marriage, it furthers a public policy interest in favor of reproduction. Moreover, it is supported by religious texts that are meaningful to the supporters of the practice, unlike gay marriage, which must depend either upon a rejection of the dominant monotheistic traditions, or upon a tortured reading of their texts.

The question of whether any of these practices should be sanctioned as a result of democratic debate and legislation is a different one that whether the fads and fashions of a couple of decades should be enshrined in constitutional law. By starting with a weak theoretical basis (”penumbras” from the Bill of Rights as applied to the states under the Fourteenth Amendment), the groundwork was laid for the justices to impose the fads of Cambridge and Manhattan’s élites on the country by fiat, and claiming a constitutional mandate for doing so. What follows from this tortured reasoning is a doctrine that contains no principled basis for imposing practices even more repugnant to the values of the majority. The gradual extrapolation from these doctrines, created for the nonce to justify a desired result, will lead us no one knows where. Let us be thankful that no one (yet) has found in the Constitution a basis for giving a rat the same civil rights as a boy as PETA’s famous slogan would seem to urge.

Another View of David Irving

noreply@blogger.com (Grumpy Old Man) — Sun, 31 Dec 2006 05:39:00 +0000

(Originally posted February 22, 2006)

The oddly-named Neo-neocon pulls together various views of the David Irving case. She quotes Roger Boyes, who thinks Irving deserves jail, points to the differing histories of Austria and Germany, and the perceived danger of a Nazi revival, but in the end, comes down on the libertarian side of the debate:

The Irving-is-a-chump school describes him as a "fringe academic addressing a group of loopy far-right radicals wearing silly hats in a basement in Vienna". Jailing the man is supposed to award him an undeserved importance. This is a truly parochial view, given that the problem is not strange, skinheaded Austrians in lederhosen (though I worry a bit about them, too) but bearded men in turbans who have never made their peace with Israel. The European input has always been important to the development of anti-Semitism in the Middle East. The widespread Arab hatred of Jews does not derive from the Koran: it stems from the need of national liberation movements for hate figures.

European anti-Semites have fed them from the start. Palestinian nationalists aligned themselves with Nazi Germany, identifying Zionism as the enemy. As the state of Israel took shape, Arab writers (borrowing heavily from European deniers) presented the Nazi gas chambers as a flimsy myth designed to justify a land-grab.

An interesting point. But, in the end, an irrelevant one. Because the sad truth is that the damage has already been done. The horse is out of the barn, the cat is out of the bag, Humpty Dumpty has fallen off his wall and all the king's horses and all the king's men and all the jailers in Austria will not undo the influence of the European anti-Semitism that has been tainting the Arab world for much of this century.

So it seems to me that the only remedy is free speech in the theater of ideas. We must believe in the ability of truth to ultimately triumph, and in our ability to wage war against those who would preach hate and follow through on it with destruction. If Irving and his ilk have influenced Iran, the damage is long done, and the remedies lie elsewhere--unfortunately.