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Archive for the ‘law’ Category

The U.N. Charter Forbids a Country to Defend Itself

September 9th, 2013 No comments

The UN Charter is very poorly written. Article 2 of the UN forbids the US to fight Syria in self-defense, but it does allow us to fight Syria for humanitarian reasons. On the other hand, it forbids the UN itself from intervening anywhere for humanitarian reasons. Read more…

Categories: international law, United Nations Tags:

Natural-Born Citizens

August 28th, 2013 1 comment

Is Ted Cruz, born abroad to an American mother and a non-American father, eligible to be President?

In nontechnical discourse people both now and in 1789 would no doubt divide citizens up into the two categories of natural-born and naturalized— so that natural-born would include anybody who was born a citizen, and if you weren’t naturalized, you must be natural-born.

The word “natural” is needed because to say “born citizen” doesn’t sound right—- it sounds as if it’s in distinction to citizens who came out of test tubes. The word “born” is needed because to say “natural citizen” makes it sound like someone who is just a natural American because he’s loves apple pie and football even though he’s Slovakian, or that I’m alluding to some sort of natural law concept of citizenship.

Categories: Constitution, elections, Uncategorized Tags:

During Depositions, a Lawyer Cannot Tell His Client How to Answer

August 22nd, 2013 No comments

From Max Kennerly’s “Be A Potted Plant: Sanctions For Deposition Coaching and Witness Conferences”:

The defending attorney is indeed a “potted plant” with only two exceptions: they can raise objections in a concise, nonargumentative and nonsuggestive manner, and they can instruct a deponent not to answer a question when necessary to preserve a privilege or enforce a court order.

No attorney would, in the middle of their client’s cross-examination at trial, loudly clear their throat and say “if you know” or “don’t speculate” before the client answers. You don’t have to be a lawyer to see that as little more than an attempt to coach the witness into claiming they don’t know something that they actually do know.

Categories: Civil Procedure Tags:

Obviously Wrong Judicial Opinions

August 20th, 2013 No comments

Somebody put together a list of 7 or so judicial opinions he thought everybody would believe were dead wrong. All were old cases that offend modern pieties.

What would be much more interesting would be a set of cases which immediately led expert lawyers in the field to say, “That court has made a fool of itself again.” Read more…

Categories: judges, jurisprudence Tags:

“Preliminary Injunctions in the Obamacare Religious-Objection Lawsuits II: An Amicus Brief for Mersino v. Sebelius”

August 18th, 2013 No comments

I’ve just filed and SSRN’d another preliminary injunction amicus brief, this one for the 6th Circuit in Cincinnati: “Preliminary Injunctions in the Obamacare Religious-Objection Lawsuits II: An Amicus Brief for Mersino v. Sebelius”. The abstract is below. Read more…

Steve Russell on Bright Line Laws and Executive Discretion

August 16th, 2013 No comments

I got the passage below by Steve Russell from a listserv we’re both on,and I liked it so much that I asked his permission to post it here. In Terry v. Ohio, 392 U.S. 1 (1968), a policeman saw two men near a store Read more…

Categories: Constitution, crime, law Tags:

“Exclusive Dealing: Before Bork, and Beyond”

August 15th, 2013 No comments

Mark Ramseyer and I have just posted a draft of a paper on monopoly law: “Exclusive Dealing: Before Bork, and Beyond”. Comments are welcomed. Here’s the abstract: Read more…

Categories: a.research, Antitrust, game theory, monopoly Tags:

Justice versus Mercy

August 5th, 2013 No comments

I see that Obamacare is a great example of the divide between the masculine idea of “follow the rules” and the feminine idea of “get the right result”, Justice versus Mercy, Playing Dodgeball versus Playing House, Let ‘em Learn versus Keep them Safe. Conservatives look at the botched bill and say, “Tough— repeal it if you don’t like it” and Liberals say, “Hey, it’s the spirit of the thing that counts and you should let us change it to what we ought to have thought about earlier.”

Categories: crime, law, morality Tags:

The Typical Law Student: LSAT’s and SAT’s

August 2nd, 2013 No comments

I wrote a guest post at Taxprof recently. I wrote a long comment on the post too, which is equally worth reading.

At our law-and-econ lunch at Indiana University we talked about the Simkovic-McIntyre paper on the value of going to law school and the point that law students are a select bunch. My father, citing his experience in the Navy in 1945 and as a grand jury foreman in the 70’s, liked to say that university people don’t understand what ordinary people are like. So I looked up some facts, and here is my guess at what a typical law student is like.

He doesn’t go to Yale, or to Indiana. He goes to Albany Law School, a typical third-tier law school. Its 25th-75th LSAT scores are 149-155, a midpoint of 152.

– See more at: http://taxprof.typepad.com/taxprof_blog/2013/07/rasmusen.html#sthash.OQKo9KAn.dpuf

Preliminary Injunctions and Hobby Lobby

July 31st, 2013 No comments

I’ve just posted on SSRN a version of my amicus brief, “Preliminary Injunctions in the Obamacare Religious-Objection Lawsuits: An Amicus Brief for Hobby Lobby v. Sebelius.” The analysis is about preliminary injunctions; I don’t say anything on the merits of Obamacare or religious freedom and corporations. I might post separately about that today too. Here’s the abstract: Read more…

“Delay until They Die”

July 29th, 2013 No comments

Professor Fleischer’s May 16 “A Dickensian Delay at the I.R.S.” at the NYT isn’t looking so good. He said,

Long delays are evidence of ineptitude and a reluctance to tackle difficult issues, not evidence of a political conspiracy. It may be the case that a couple of I.R.S. employees went rogue, as the acting I.R.S. commissioner, Steven T. Miller, suggested on Wednesday before he was ousted from the job.

Aggressive investigation of those individuals may be appropriate. But firing Mr. Miller, as President Obama did on Wednesday, is mere tokenism. The witch hunt obscures the institutional failures that Congress could actually correct.

By now we have heard the testimony of the Cincinnati people, who say Mr. Miller’s IRS was lying when it tried to blame them, Read more…

LoPucski: Making Statutes Readable

July 25th, 2013 1 comment

Professor Bainbridge tells us of Professor Lopucki’s new paper on how to format and annotate statutes to make them more readable, which uses Delaware’s corporate code as an example.

LoPucki, Lynn M., The Readable Delaware General Corporation Law (July 10, 2013). UCLA School of Law Research Paper No. 2013-14. Available at SSRN: http://ssrn.com/abstract=2292236.\

Here’s an example. Read more…

A Trayvon-Zimmerman Miscellany

July 20th, 2013 1 comment

I’ll use this post to list interesting things about the Zimmerman-TrayvonMartin case as they come up, so it will grow over time.

July 20a. Some people say that the standard should be reduced from “beyond a reasonable doubt” to “preponderance of evidence” or something. Wikipedia has a nice Legal Burden of Proof article with:

2.1.1 Reasonable suspicion
2.1.2 Reasonable to believe
2.1.3 Probable cause for arrest
2.1.4 Some credible evidence
2.1.5 Substantial evidence
2.1.6 Preponderance of the evidence
2.1.7 Clear and convincing evidence
2.1.8 Beyond reasonable doubt

Maybe relaxing the burden is a good idea. Read more…

Categories: crime, law, race Tags:

“Top Differences Between the UCC and the Common Law of Contracts”

July 17th, 2013 No comments

Prof. Cunningham has a good post, “Top Differences Between the UCC and the Common Law of Contracts” . For example:

6. Acceptance by Shipment: buyer orders for “prompt shipment” can be accepted either by promise or prompt shipment, at the seller’s election. 2-206. – See more at: http://www.concurringopinions.com/archives/2013/07/top-differences-between-the-ucc-and-the-common-law-of-contracts.html#more-77709

Categories: contracts Tags:

Murray’s Cops and Progressives

July 15th, 2013 No comments

Charles Murray has an excellent long essay, “Simple Justice” from about 2005 that is useful for thinking about attitudes towards the Zimmerman case and to self-defense and threat and intimidation statutes generally. He distinguishes between Progressives and Cops. Progressives dislike self-defense, retribution, and punishment generally and who do not like to differentiate people into those who follow rules and those who break them. Read more…

Can the President Delay Obamacare Despite the Statutory Language?

July 12th, 2013 No comments

Someone wrote to me about another Law Lunch discussion of yesterday:

“…Jefferson’s refusal to spend $50,000 for gun boats in 1803, after they were no longer needed. Better yet, compare the more recent example of the Secretary of Housing and Urban Development temporarily suspending funds pending a study of whether the expenditures on low income housing were achieving the purpose Congress intended. That was upheld by the DC Circuit in Commonwealth of Pennsylvania v. Lynn, 1974, with the court noting the fact that the reason for the impoundment was program-related. I see a fundamental difference between refusing to enforce the law because the President wishes it had never been passed and delaying enforcement because the President likes the law and wants it to achieve its substantive goals. Read more…

What Happens When a Void Appointee Gets Appointed Again, But Properly the Second Time?

July 12th, 2013 No comments

At Volokh Conspiracy John Elwood says that even if the President properly reappoints the same people to the National Labor Relations Board whose appointments the courts have ruled invalid, they can’t just redecide all the cases that are in the courts. Read more…

Categories: administrative law, authority Tags:

Fixing the FISA Court and Search Warrants Generally

July 12th, 2013 No comments

At the law lunch yesterday we were discussing the special FISA Court which has to approve certain kinds of search warrants for electronic communications, including the famous one which let the NSA see who is making phone calls to who. One topic that came up was court composition. The court is made up of ten or so federal district judges selected by the Chief Justice of the US Supreme Court for 7-year terms, and no judge can serve two terms. The police or NSA go to one judge on it and ask for a warrant. Appeals are made to a special 3-judge appeals court, also appointed by the Chief Justice. Further appeals can be made to the U.S. Supreme Court, I imagine.

Problem 1. Currently almost all of the judges were created judges by Republican presidents, and this looks bad when they are also chosen by a conservative Chief Justice. Read more…

Categories: crime, judges, law, law. politics Tags:

Open Carry Laws

July 9th, 2013 No comments

temp

Wikipedia’s Open Carry article explains something I’ve been wondering about: what about “nonconcealed carry” for guns?

Categories: crime, law Tags:

An Amicus Brief for Hobby Lobby v. Sebelius on the Topic of Balancing the Equities for a Preliminary Injunction

July 3rd, 2013 No comments

I looked over the recent Hobby Lobby en banc decision and thought about it. Everybody seemed to be missing the most important things in the case. Then, yesterday, I realized that the deadline for submissions for the next stage was today (July 3) at 5 p.m. At 2 p.m. I rushed into action. I was able to use my draft amicus for United States v. Marshall as a template, though it’s a different circuit and Hobby Lobby is at District Court right now, for which there are no official rules. Read more…

Why the Rich Are Underpaid

June 27th, 2013 No comments

Prof. Tabarrok at Marginal Revolution talks about Prof. Mankiw’s discussion of taxes, the top 1%, and productivity. I had a thought: The most productive employees are paid too little, including the most productive CEO’s. Read more…

Categories: a.research, business, contracts, taxes Tags:

Preliminary Injunctions and Regulatory Tyranny

June 25th, 2013 No comments

It looks to me as if something is very wrong with the law of preliminary injunctions when it comes to the executive branch misusing its power. Here is what is supposed to happen. Smith sues Jones, asking the court to do X. For example, Smith may ask the court to stop Jones from selling a dog Smith claims is Smith’s dog. If doing X right away instead of in a year or two after a trial would prevent irreparable harm to Smith but not to Jones, then Smith can ask the court to do X immediately, via a preliminary injunction. Then, after the trial, the court will undo X if Smith loses. Read more…

Categories: a.research, administrative law, law Tags:

The IRS Scandal— Picking on the Little Guys

June 25th, 2013 No comments

This isn’t the typical tax case, where a lawyer is helpful so the client can avoid breaking the law, or the somewhat rarer one where the lawyer helps the client fix a mess after the client accidentally breaks the law, or the even rarer kind where the lawyer helps the client after client purposely breaks the law. This is a case where a lawyer is helpful so the IRS doesn’t think *it* can get away with breaking the law. Read more…

Categories: administrative law, bureaucracy, IRS Tags:

The Christian View of the Income Tax: Theonomist vs. Liberal

June 19th, 2013 2 comments

Gary North, noted “Christian Reconstructionist” has just published a scholarly rebuttal to a tax article by liberal Christian Susan Hamill (see here from Taxprof). This is cute, and I am glad it got published. It’s an example of how policy scholarship does have to depend on underlying ethical principles, and religious ones are just as much in need of good scholarship as atheistic ones. Read more…

Categories: law, religion, taxes Tags:

How Are Libel Laws Applied on the Web?

June 17th, 2013 No comments

Dr Cooke does not like teaching evaluation sites like Rate Your Lecturer. It’s not clear to me that these sites are a bad idea. More information about lecturer quality is good in itself; the problem is when it is misused, as student evaluations usually are by administrators in the United States, because they are too lazy to investigate actual teaching or, I fear, because the administrators really do just care about whether the students like the way a class is run. But exposing bad teaching is a good thing.

False information is clearly bad. How do the libel laws work in England? Can the victim force the website manager to divulge the names? Does the libellor have to pay your solicitor fees? If the website manager has allowed people to comment whom he cannot trace, is he himself liable? Read more…

Categories: academia, law Tags:

Voluntary Manslaughter and the Tiller Abortion Killing

January 12th, 2010 No comments

Paul Cassell has a post discussing whether the killer of the abortionist Dr. Tiller can plead voluntary manslaughter because he believed he had to kill Dr. Tiller to save a baby’s life. Professor Cassell argues no, because he killed Dr. Tiller while Dr. Tiller was in church, so the danger to the baby was not imminent. That is persuasive.

Prof. Cassell also notes that the plea only works if Tiller’s baby-killing was unlawful, and says it is lawful because abortion is lawful.

I’m not so sure on this second point. Remember, Dr. Tiller performed unusual, late-term, abortions. Even the killing of a 9-month, viable, baby can be lawful if the umbilical cord isn’t cut yet (is that the dividing line? I seem to recall some recent case where it was). But it isn’t always lawful—there has to be danger to the mother’s mental health or something like that. Suppose the killer reasonably believed that Dr. Tiller was not following all the abortion rules, so some, if not all, of the babies he killed were being killed unlawfully. Putting the Imminence issue aside, could that prove voluntary manslaughter? What degree of certainty would the killer have to have that babies were being killed for voluntary manslaughter to be valid? And how sure would the jury have to be that this was his motive and that it was a reasonable motive?

Dr. Tiller’s unusual speciality is also, by the way, what made his killing have a special impact on abortion. Ordinarily, killing an abortionist would have little effect on the number of abortions performed, because there are substitute doctors. Tiller’s case is different because few doctors in America have the stomach to perform late-term abortions like he did, so killing him removed a major supplier from the market.

Categories: abortion, law Tags:

Web Version of Books

January 1st, 2010 No comments

Here’s an email I just sent Fred Shapiro, editor of the Yale Book of Quotations:

I don’t see a web version on the website. There should be one. Your publisher may be worried about losing book sales. What you can do is this:

1. Put a serial number in each book.
2. The buyer sends in his serial number an email address.
3. He then gets a password.
4. A new password is emailed to that serial number every year (or month, or whatever), replacing the old one.

That would be good enough security to avoid most cannibalization, I think, and would greatly increase the value of the book.

Publishers *should* know about simple things like this, but I bet they don’t, and think security requires something more burdensome for all concerned.

Categories: copyright, webpages Tags:

Affirmative Action and Incompetent Doctors

December 22nd, 2009 No comments

Affirmative action kills. I just came across the New York Times obituary for Patrick Chavis, one of the five medical students whose race gave them admission over Bakke in the famous case.

In 1996, Senator Edward M. Kennedy called him a “perfect example” of how affirmative action worked. “… The University of California at Davis has no records of what the four blacks admitted with Dr. Chavis are doing, a spokeswoman, Julia Ann Easley, said. By 1996, Dr. Chavis was using liposuction to help women lose weight after giving birth. He was accused of mistreating eight liposuction patients, one of whom died. In 1998, the Medical Board of California revoked his license for “gross negligence, incompetence and repeated negligent acts.”

His professional difficulties began in 1993, at Long Beach Memorial Hospital, when he was accused of mishandling a delivery, and the hospital began monitoring him.

He sued, charging racism. In a jury trial, he won $1.1 million in damages, but a judge overturned the verdict. By 1997, he said he had delivered 10,000 children and performed thousands of abortions. About that time, he added liposuction to his practice. His personal and professional life then took a further downturn. In 1997, The Associated Press found in court records that he had been sued 21 times for malpractice and had settled some suits with no admission of guilt.

He declared bankruptcy and went through the second of two divorces. In 1997, his license was suspended, for not paying child support, but he continued to practice. The medical board used that as one of more than 90 counts in revoking his license the next year…

Categories: law, race Tags:

The Huckabee Pardons and Methodism

December 2nd, 2009 No comments

Joe Carter has an excellent article on the Huckabee pardons at First Things. He reviewed them as a researcher for the Huckabee campaign. His article is sympathetic, but it casts serious doubt on Huckabee’s judgement.

After reviewing hundreds of cases and interviewing numerous people involved in the process, I concluded to my own satisfaction that the governor’s actions and judgment were generally defensible. Yet there remained about a half-dozen situations in which even after reviewing all of the information I was unpersuaded that justice had been served. Although I was sympathetic with some of the justifications offered for making the decisions, I found them inadequate for a number of reasons….

For instance, the politically prudent tactic would have been to simply refuse to grant any leniency—ever. Other governors with their sights set on higher offices had learned that doing nothing—even to correct obvious instances of injustice—was unlikely to cause any long-term political damage. Keeping an innocent man in prison is less harmful to an ambitious politician than freeing someone who may commit other crimes.

Huckabee would certainly discover this political reality the hard way. Initially, I chalked it up solely to extraordinary political courage. Later, I tempered this view when I realized that this courage was mixed with a large dose of cluelessness. The governor seemed genuinely surprised that he was held responsible for the criminal acts committed by those whose sentences he had commuted as governor. It was as if he believed that simply having noble intentions and a willingness to make tough decisions would provide political cover. The notion that he should be accountable for future crimes committed by these men seemed as foreign to him as the idea that he should refuse all leniency. …

Judging from the records, the governor also seemed to put a lot of weight on conversion stories—a common trait among evangelicals, who believe the gospel is sufficient for restoration and redemption of character.

Carter quotes someone else as saying

What Huckabee misjudged is his ability to judge the character of a convicted murderer and rapists, a lapse out of a character for a pastor who believes in the sinful nature of an — or a lapse in character for a pastor who believes in redemption.

Here’s my comment

Very astute. We evangelicals are suckers for redemption stories. It is good that we believe in miracles. The problem is that the dominant belief in America is no longer the Puritan Total Depravity but the Methodist Moral Perfectibility, even though (or perhaps *because*) the pastors don’t teach theology to their flocks. Thus, we have the idea that church people don’t sin— at least not most church people— reinforced by nobody wanting to admit that they sin. Just one step further, and we have the idea that somebody who has converted will stop sinning.

And of course we’re rather gullible too, easily satisfied with words. We trust someone who says he’s changed and become a slave of Jesus even if he’s living with his girlfriend, shirking on child-support payments to his ex-wife, and selling pornography at the gas station where he works. It isn’t considered polite to question whether someone else’s faith is true.

Categories: Huckabee, law, pardons, religion, thinking Tags:

Should Victims Be Able to Sue Corrupt Judges

November 28th, 2009 No comments

From VC:

Now comes news that the judges are immune from suit arising from any and all of their “judicial acts” in connection with the sentencing of these juveniles. [Stories are here and here; the opinion in the case conferring absolute immunity on the defendant judges (Middle District of PA, Judge Caputo) is here). Judge Caputo’s opinion conferring the immunity is thoughtful and well-reasoned…

My comment:

Very interesting problem, and you’re right that it’s not an easy one. We definitely want the judge to have criminal liability, I think (some people might want to limit it to impeachment) and we want the corrupt cases to be subject to review, so the only question is whether the victim— the losing side— should be able to sue the judge or the government for money damages besides.

What is the case with corrupt policemen? (Section 1983?) Can they be sued personally?

We also have a second-best situation. As the Court says, we’d have a huge amount of meritless litigation harassing judges. I say that is “second-best” because it is the fault of bad policy created by the judiciary itself, which for the past 50 years has encouraged nuisance suits generally. If judges would use their powers to punish lawyers who bring meritless suits, the problem would dwindle. Maybe making judges personally vulnerable to legal harassment and wacko juries would change the judiciary’s mind about whether trial lawyers should be given every freedom to sue corporations.

Categories: administrative law, judges, law, research Tags:

International Law Explicitly Permits Jewish Settlements on the West Bank

August 14th, 2009 No comments

From Peter Hitchens, August 13, 2009:

…international law, though I am happy to discuss this with any reasonable person, all the way back to the Sanremo Accords and the original League of Nations Mandate, which designated the area now known as the West Bank for “close Jewish settlement”, and has not been superseded, so far as I know, by any multilateral treaty or plan put fairly to all sides. The West Bank remained so designated after the entire area east of the Jordan to the Iraqi borders (originally part of the proposed “National Home for the Jews”) was arbitrarily sliced off the Palestine Mandate to provide a consolation prize for Emir Abdullah.

I’d never heard this, so I checked. And in fact, international law does authorize Jewish settlements on the West Bank. From: League of Nations: The Mandate for Palestine, July 24, 1922:

Article 6.

The Administration of Palestine, while ensuring that the rights and position of other sections of the population are not prejudiced, shall facilitate Jewish immigration under suitable conditions and shall encourage, in co-operation with the Jewish agency. referred to in Article 4, close settlement by Jews, on the land, including State lands and waste lands not required for public purposes.

Hitchens also has a good summary of the extreme views that the Arab countries hold and have always held of Israel, and how the Arabs do not consider the 1967 borders to have any legal validity whatsoever.

I would add that I am always amused by the enthusiasm which Israel’s enemies now show for the pre-1967 border of Israel. Their alleged enthusiasm for it now is a fake. Their real objective, as enshrined for decades in the policy documents and propaganda of the Arab world, (though in some cases tardily, reluctantly and insincerely shelved for Western consumption) is the end of the Jewish state altogether. Every Arab political figure in the area has on his wall a map of the region, a map from which Israel has entirely vanished. Hizbollah works for the extirpation of Israel, from just beyond its northern border. Hamas (a movement whose treatment of fellow Arabs who oppose it is extremely repressive and violent) continues to make no secret of this aim. Racialist filth and Judophobic slurry are taught to children in the Arab states and broadcast on Arab TV stations. And until they abandon this aim, and this muck, there can be no compromise. How can you compromise with people who teach tiny children to hate you, and whose aim is your utter destruction? Every concession would merely be a further step towards death, not a step towards peace.

I am old enough to recall that these enthusiasts were not so enthusiastic about the pre-1967 border before 1967, when it was the border of Israel. No Arab state accepted it as legitimate, let alone lawful. So why are they so keen on it now? I guarantee that if the 1967 border were to be restored tomorrow, the Arab campaign against Israel (backed elsewhere by our strange Israel-haters, who can only find one country on the map of the world to disapprove of) would continue unabated. At that stage, before 1967, the official policy of the Arab world was to ‘drive the Jews into the sea’. The 1967 border itself, a militarily indefensible and impractical frontier, was the cease-fire line at the end of the 1948 War, not an internationally agreed frontier between peaceful sovereign states. For most of its existence it was repeatedly violated.

PM2317561View of a concrete The 1948 war was itself caused by the Arab world’s rejection of the 1947 partition plan, which allocated Israel a much smaller territory even than the land enclosed in the supposedly sacred 1967 border. That rejection itself followed the similar rejection of the partition proposed by the 1937 Peel Commission, which was even less generous to the Jews than the UN would be ten years later.

The Ricci Case

June 30th, 2009 No comments

The Supreme Court’s Ricci decision of yesterday is good evidence that Sonia Sotomayor is devious and unjust. Not a single justice supported her decision supporting summary judgement against the white New Haven firefighters without even the dignity of a published opinion explaining why. The 4 in dissent did support summary judgement for the employer, but in a weird, dishonest, way of their own. I suppose they were trying to give some color of support to Sotomayor. But looking into this case, it makes me think Sotomayor and her panelmates should have been impeached for her conduct in it, as clearly intending to evade enforcement of the law.

The big issue in contention is whether an employer can truly discriminate against whites because he is afraid that if he doesn’t, he will falsely be accused in court of discriminating against blacks. The answer seem to me pretty clearly to be No, and of course any liberal would accept that answer if it were a case of an employer turning down better qualified black applicants because he was afraid that if he treated blacks and whites equally he would be hauled into court on the grounds that he was practicing illegal affirmative action against whites. Liberal judges are result-based.

But we can at least hope that liberal judges will be procedurally fair. There are three ways this case could have proceeded:

1. The Supreme Court rules that the “fear of being sued” defense is valid, and then returns the case to a lower court for that court to find out if employer actually did have a fear of being sued instead of using that as a pretext.

2. The Supreme Court rules that the “fear of being sued” defense is valid, and then grants summary judgement to the employer, saying that it is utterly clear that the employer’s motive was fear of being sued and not an illegal desire to discriminate.

3. The Supreme Court rules that the “fear of being sued” defense is invalid, and grants summary judgement to the firefighters, since the city has offered no other plausible defense for its discrimination.

The Majority chose option 3. The Dissenting 4 Liberals chose 2– which is dishonest. I suppose one could reasonably doubt whether political pressure and desire to promote blacks instead of whites were important reasons, but one cannot say that it is so utterly obvious that the employer’s motives were entirely unpolitical and color-blind that a reasonable judge or jury could not find otherwise and there is no need to look at the evidence. As Alito’s concurrence says:

[T]he decision below, which sustained the entry of summary judgment for respondents, cannot be ffirmed unless no reasonable jury could find that the City’s asserted reason for scrapping its test—concern about disparate-impact liability—was a pretext and that the City’s real reason was illegitimate, namely, the desire to placate a politically important racial constituency….But even the District Court admitted that “a jury could rationally infer that city officials worked behind the scenes to sabotage the promotional examinations because they knew that, were the exams certified, the Mayor would incur the wrath of [Rev. Boise] Kimber and other influential leaders of New Haven’s African-American community.” 554 F. Supp. 2d 142, 162 (Conn. 2006), summarily aff’d, 530 F. 3d 87 (CA2 2008) (per curiam).

It’s noteworthy that Justices Kennedy and Roberts wouldn’t sign on to this concurrence. I treat that as a sign they don’t dare fight injustice and lying if it’s done by important people they need to work with.

The dissent goes into detail about Rev. Kimber and the evidence. It’s amazing.

Reverend Boise Kimber, to whom the District Court referred, is a politically powerful New Haven pastor and a self-professed “‘kingmaker.’” App. to Pet. for Cert. in No. 07–1428, p. 906a; see also id., at 909a. On one occasion, “[i]n front of TV cameras, he threatened a race riot during the murder trial of the black man arrested for killing white Yalie Christian Prince….In 1996, for example, Mayor DeStefanotestified for Rev. Kimber as a character witness when Rev. Kimber—then the manager of a funeral home—was prosecuted and convicted for stealing prepaid funeral expenses from an elderly woman and then lying about the matter under oath. See id., at 126a, 907a. “Reverend Kimber has played a leadership role in all of Mayor DeStefano’s political campaigns, [and] is considered a valuable political supporter and vote-getter.” …In 2002, the Mayor picked Rev. Kimber to serve as the Chairman of the New Haven Board of Fire Commissioners (BFC), “despite the fact that he had no experience in the profession, fire administration, [or] municipal manage-ment.” Id., at 127a; see also id., at 928a–929a. In that capacity, Rev. Kimber told firefighters that certain new recruits would not be hired because “‘they just have too many vowels in their name[s].’” Thanawala, New Haven Fire Panel Chairman Steps Down Over Racial Slur, Hart-ford Courant, June 13, 2002, p. B2. After protests about this comment, Rev. Kimber stepped down as chairman of the BFC, ibid.; see also App. to Pet. for Cert. in No. 07–1428, at 929a, but he remained on the BFC and retained “a direct line to the mayor,” id., at 816a….Petitioners allege, and the record suggests, that the Mayor and his staff colluded “sans the Chief[s]” because “the defendants did not want Grant’s or Dumas’ views to be publicly known; accordingly both men were prevented by the Mayor and his staff from making any statements regarding the matter.”….Reverend Kimber again testified and threatened the CSB with political recriminations if they voted to certify the test results:

“I look at this [Board] tonight. I look at three whites
and one Hispanic and no blacks. . . . I would hope that
you would not put yourself in this type of position, a
political ramification that may come back upon you as
you sit on this [Board] and decide the future of a
department and the future of those who are being
promoted….

Corporation Counsel Ude bristled at one board member’s suggestion that City officials were recommending against certifying the test results. See id., at 215a (“Attorney Ude took offense, stating, ‘Frankly, because I would never make a recommendation—I would not have made a recommendation like that’”)….Soon after the CSB voted against certification, MayorDeStefano appeared at a dinner event and “took credit for the scu[tt]ling of the examination results.”…

Taking into account all the evidence in the summary judgment record, a reasonable jury could find the follow-ing. Almost as soon as the City disclosed the racialmakeup of the list of firefighters who scored the highest on the exam, the City administration was lobbied by aninfluential community leader to scrap the test results, andthe City administration decided on that course of action before making any real assessment of the possibility of a disparate-impact violation. To achieve that end, the City administration concealed its internal decision but worked—as things turned out, successfully—to persuadethe CSB that acceptance of the test results would be ille-gal and would expose the City to disparate-impact liability. But in the event that the CSB was not persuaded, the Mayor, wielding ultimate decisionmaking authority, was prepared to overrule the CSB immediately. Taking this view of the evidence, a reasonable jury could test resultswas not a concern about violating the disparate-impact provision of Title VII but a simple desire to please a politi-cally important racial constituency….

It is noteworthy that the Solicitor General—whose position on the principal legal issue in this case is largely aligned with the dis-sent—concludes that “[n]either the district court nor thecourt of appeals . . . adequately considered whether, view-ing the evidence in the light most favorable to petitioners, a genuine issue of material fact remained whether respondents’ claimed purpose to comply with Title VII was a pretext for intentional racial discrimination . . . .” Brief for United States as Amicus Curiae 6; see also id., at 32–
33.

The dissent authored by Justice Ginsburg is rather confused on how it comes out in the end. She says :

Ordinarily, a remand for fresh consideration would be in order. But the Court has seen fit to preclude further proceedings. I therefore explain why, if final adjudication by this Court is indeed appropriate, New Haven should be the prevailing party.

and later

As earlier noted, I would not oppose a remand for further proceedings fair to both sides. See supra, at 26, n.

10.

What she is supposed to be saying in her dissent is precisely whether “final adjudication by this court is indeed appropriate”. It is just weird to say that since the Majority says summary judgement for the firefighters is best, she can’t say remand is best.

Categories: administrative law, race, sotomayor Tags:

"Under the Color of the Law"

May 29th, 2009 No comments

US Code 18-2340 says,

“(1) “torture” means an act committed by a person acting under
the color of law specifically intended to inflict severe physical or
mental pain or suffering (other than pain or suffering incidental to
lawful sanctions) upon another person within his custody or
physical control;”

The phrase “under the color of law” is unclear. Maybe 18-242
case law has cleared it up. But if it means “under the pretense of
acting on behalf of the government, but actually breaking
government rules”, then using thumbscrews in interrogation is not
torture. On the other hand, if it means, “while actually fulfilling
one’s official duties as ordered,” then the SERE training is torture
and illegal if done outside the US.

US Code 18-242 is the most important use of the phrase,but it is quite unhelpful:

This statute makes it a crime for any person acting under color of law, statute, ordinance, regulation, or custom to willfully deprive or cause to be deprived from any person those rights, privileges, or immunities secured or protected by the Constitution and laws of the U.S.

This law further prohibits a person acting under color of law, statute, ordinance, regulation or custom to willfully subject or cause to be subjected any person to different punishments, pains, or penalties, than those prescribed for punishment of citizens on account of such person being an alien or by reason of his/her color or race.

Categories: law Tags:

Discrimination in Major Law Firms?

May 6th, 2009 No comments

Interesting data is available showing the number of African, Asian, and Hispanic American lawyers and partners at 20+ major law firms. The common pattern is that the Partner/Lawyer ratio is much higher for African-Americans and Hispanic-Americans than for Asian-Americans. An interesting question is why. Three possibilities:

1. The firms discriminate in favor of blacks and make them partner more often.

2. The firms discriminate against blacks, and hire them as associates less often.

3. The past decade has had a surge in the number of Asian-American lawyers, who aren’t old enough to go up for partner yet.

This could use further study.

Later: See Steve Sailer. Apparently, if a group difference is more than 4/5, you can sue. That’s easy here. You’d get statistical significance even for individual law firms. An interesting legal question, though, is whether you could sue an entire industry on behalf of an industry class– sue 20 law firms on behalf of the denied Asian associates– if all of the law firms had the same discrimination pattern, but non individually statistically signfiicant, but jointly highly significant.

Something amusing about the lawsuit is that the likely best defense can’t be used. It is: “We make lots more blacks partner because we discriminate against them at the associate level and their average quality is a lot higher than for asians.”

Categories: law, research Tags:

Obscenity in Monroe County

April 23rd, 2009 No comments

The HT tells us that obscenity can indeed be successfully prosecuted in Monroe County.

A man initially charged with felony bestiality for participating in and videotaping a sexual encounter that also involved an unconscious woman and the man’s male Doberman pinscher has pleaded guilty to a less serious charge.

He received a one-year suspended jail sentence.

Under terms of a plea agreement, 41-year-old Thomas Meador pleaded guilty to an amended charge of activity related to obscene performance, a misdemeanor. Two other misdemeanors — sexual battery and maintaining a common nuisance for having a marijuana plant in his East First Street house — were dismissed.

Here’s the penalty:

Meador had to give up his two pet dogs as part of the resolution of the case against him. He also must participate in counseling and complete 80 hours of community service work during the next year.

It’s noteworthy that the woman involved was being filmed involuntarily. Not much of a crime, apparently.

According to police reports, the woman depicted in the video that police confiscated from Meador after a house-sitter discovered it features a 30-year-old female acquaintance of Meador who was unaware she was being filmed.

The term “obscene performance” is defined by law as something that the average person, applying contemporary community standards, would find appeals to the prurient interest in sex, or depicts sexual conduct in a “patently offensive way.” It also must lack any “literary, artistic, political or scientific value.”

Abortion and Torture

April 17th, 2009 No comments

Someone should write comparing the “torture memos” to abortion. A question in each is whether a painful technique is justified by some other good. The liberal position is that it is torture to slap a terrorist to stop a nuclear bomb, but okay to slowly dismember a baby to improve a woman’s mood.

Categories: abortion, law, torture Tags:

Don’t Trust Big Name Law Profs to Know What They’re Talking About

April 8th, 2009 No comments

A commentor at VC gives an example of how you can’t trust a big-name law professors to have his facts straight about the key point of his argument:

“According to Tushnet, there’s nothing for the AG to do until a bill lands on the President’s desk.” Absolutely not correct. (1) Obama claimed during the campaign that he would try to minimize conflicts between the President and Congress by having “his” OLC advise him and Congress of constitutional objections at early stages of bill drafting. (2) Regardless of point #1, OLC has served this function since its inception, and the reason it issued this opinion is that it was serving this function as a matter of course — this opinion was in no way unusual; in fact, OLC reviews all major items of legislation in their early stages; it has a position purely for this purpose, known as the “bill comment” deputy or “legislative” deputy (Deputy Assistant Attorney General, or DAAG). (3) Regardless of points #1 and #2, having OLC offer its views before bills become final is good policy and good government, as only the Justice Department (as compared to individual Senators and Representatives) has the budget and staff capability to field a standing body of con law experts, and having those experts advise Congress provides both a valuable “second look” and a way to head off legislative-executive conflicts before they reach an advanced stage where positions can harden artificially. (Con law isn’t the only area of expertise for which OLC serves this function for Congress but the others aren’t implicated in this question, so I won’t digress.)

Tushnet, therefore, is wrong as a matter of Obama’s campaign promises, as a matter of historical practice, and as a matter of good government practice. Three strikes — he’s out!

Categories: law, law professors, univerities Tags:

The Justice Dept. OLC

April 6th, 2009 No comments

IU law prof Dawn Johnsen has been nominated to be head of the Justice Dept.’s Office of Legal Counsel. A vote on her nomination has been delayed a few weeks by Senate Republicans. The news says this is because they don’t like her extreme pro-abortion views, or that this is part of some haggling over release of old Bush OLC memos. I just came across something else that seems relevant, though. Wikipedia says that the last Bush nominee for this job, Steven G. Bradbury, was nominated in June 2005, approved by the Senate committee five months later, and then was blocked for over three years by Senate Democrats from having a full Senate vote and remained acting but unconfirmed till the Administration ended in January 2009. Is there any payback going on? If so, Prof> Johnsen may have a few years to wait.

Categories: Justice Dept., law, OLC Tags:

International Law

April 6th, 2009 No comments

Eric Posner is good at VC on the liberal, Kohish view of international law as mere hypocrisy. He explains the academic argument by Koh: international public opinion has strong actual effect, and ends up forcing the US government to bend to its will, and so is actual law.

Categories: international law, law, law professors Tags: