Reasonably Right

Test Bubble- At least war spending has decreased

2010-02-04T11:08:00.001-06:00

Perhaps you noticed the President’s proposed budget this week- if approved by Congress, for every Dollar spent by the Fed in 2010-11, 40 cents of will be borrowed:

http://news.yahoo.com/s/ap/20100201/ap_on_bi_ge/us_budget

But shouldn’t our reduced presence in Iraq save money . . . ?

http://www.alertnet.org/thenews/newsdesk/N01207827.htm

07 and 08 TOTAL war spending under Bush (Iraq and Afghanistan): $ 171 B and $ 185 B respectively.

10 and 11 Total war spending: $130 so far (likely to end up at around $ 163 B with $33 B interim gap-filler proposed) and $159.3 B in the fiscal ’11 budget.

I don’t think a 9.47 % reduction in war spending constitutes the “change” that the People expected.

Laissez-faire or just L-A-Z-Y?

2007-04-16T15:08:00.000-05:00

Below is a email I composed to my Congressmen. It concerns the recent news that the recording industry's governing body (self-regulated, I believe) is going to hike rates in a prohibitive way for online radio stations.

Dear Congressmen,

I urge your attention to the recent decision of the Copyright Royalty Board to retroactively apply exorbitant new per listener rates on internet music. These rates are irrational as to internet radio which is a medium that will be necessary for furture growth for the music industry. The music industry no doubt struggles to adapt to the modern formats and a shift away from traditional packaging of its products (i.e., cd's, tapes, records). Nevertheless, this group has targeted an irrational industry (internet radio) that will have the effect of harming consumers like me who enjoy a wealth of information and sampling of new music.

Online radio has induced an abundance of music purchases from myself and like-minded consumers. These sales were generated by industry-partnered downloading services, such as Real Networks based upon my listening to "free" online radio which the industry now targets. If the decision by the Copyright Board proceeds without intervention, quality and variety will be harmed. Marketplace choice would be diminshed, until such a time as the Record industry regains its touch with reality and learns that online radio FOSTERS sales of music in the long-run. Let's prevent this vicious cycle of adjustment by checking this decision at the onset.

Risk-Reward Failure

2007-01-15T14:51:00.000-06:00

This survey of the most dangerous jobs in America reveals some significant assymetries of benefit to cost. For instance, the AVERAGE farmer makes $29,000 annually and is twice as likely to die on the job than a policeman. Four times more likely is death for farmers at work than even firefighters. Having myself lived in a significant farm economy at one time, I recognize that many areas still significantly dependent on farming offer few opportunities for work. However, if that were my lot, I would seriously consider a relocation.

Same Old Song

2006-10-26T20:53:00.000-05:00

This post at Truth on the Market is merely a recitation of how the existence of Wal-Mart has benefited people around the world. Sadly, those that are blind as to how economics works still won't get it...and probably never will.

With that being said, I'm back.

ABA up to good work again

2006-08-14T17:38:00.000-05:00

Among their resolutions at the annual delegate's meeting in Hawaii, the ABA decided against review of judicial errors and also against the President's abuse of signing statements. My favorite part is where they decided that the President should veto decisions that "he or she" feels are unconstitutional. I like the sense of inclusion there. Oh Hilary!

Walmart Victorious

2006-07-19T16:57:00.000-05:00

Earlier I wrote about Maryland's Anti-Walmart law. Well, it turns out that a federal judge ruled in favor of the Retail Industry Leader's Association, the group that brought suit on behalf of Walmart.

I was unable to find any links to the opinion or basis thereupon, but I would guess it was preemption based upon the federal ERISA laws, rather than Equal Protection, which I think was also a problem. Keep an eye out for the news story. I will likely be too busy in the final Bar Exam push to blog any more until then. Best to my colleagues taking it in Minnesota.

Valerie Plame & Joe Wilson Sue all the President's Men

2006-07-14T10:33:00.000-05:00

In the civil suit (complaint here) filed recently in Federal District Court, attorneys for Plame and Wilson argue that a bevy of constitutional rights have been violated by Cheney, Rove, and Scooter Libby. It seems that even if every factual allegation is true, there are likely no legally-cognizable theories of relief.

Two thoughts that I have from my quick read are thus:
1) Does a CIA Agent have a Fifth Amendment property right in her classified status not being revealed for public consumption? This seemed like Plame's weakest claim.
2) Do political officials not have the right to rebut directed charges against their veracity and political objectives by discrediting the credibility of their attackers? This seems like Rove/Cheney/et al's best defense. Namely when Wilson hit the "Meet the Press circuit" blasting Bush, could not Bush's people respond by placing Wilson's experience in "context"? Playing other than nice does not equal constitutional right violation. (I should also that Cheney may have official immunity for any of his acts. This would naturally be his best defense.)

Bar Review Point of View

2006-07-12T15:34:00.001-05:00

Was the provocation of Zinedine Zidane in the World Cup final adequate to evade a red-card? Apparently not. Will he avoid the sanction of FIFA's executive committee by being stripped of his best player award? Likely so.

How about some of the other items with which the authors of the blog are becoming quite familiar?

Per common law definition--
Murder: provocation adequate to arouse a sudden and intense passion in the mind of an ordinary person, absent a sufficient cooling off period = involuntary manslaughter.

Slander (defamation) per se as a civil remedy = comments impugning the chastity of a female member of one's family, or accusing one having a loathsome disease.

So what Materazzi said must have been pretty serious . . .

Justices Afffirm State Choice on Insanity Defense

2006-07-04T11:39:00.000-05:00

Essential to any bar preparation is the recognition that the insanity defense in criminal trials is a matter of state concern. The Constitution requires no specific insanity defense, nor does it mandate that states must even make available such a defense. The Supreme Court affirmed this principle 6-3 last week in the case of Clark v. Arizona.

Arizona had adopted part of the M'Naghten Rule for which Defendant must lack the ability to appreciate the wrongfulness of his action. The Defendant in Clark was a paranoid schizophrenic who killed a police officer. Interestingly (troubling) enough was the fact that Justice Kennedy joined Stevens and Ginsburg finding that the Arizona version of insanity defense was irrational. However, the majority for state choice, championed by Justice Souter, announced that there was no "baseline for due process in the area."

Baseball News: Two notes

2006-04-05T11:15:00.000-05:00

Today ESPN obtained a list of the 409 millionaires playing Major League Baseball. It also ranked the players' salaries all the way through. There are a few items of interest to me:

1) Deplorable: The Yankees had 5 of the top 11 paid, including numbers 1-3 (A-Rod, Jeter, Giambi) and 10 of the top 50 most well-off.
2) Commendable: Mike Piazza is doing an inverse-Clemens this season, choosing to play for the Dodgers for $1.25 million when he clearly could have shopped the market and demanded more to DH for some American league club.
3) Equitable: My beloved Cardinals are not really too big on overspending--future HOFer Pujols is only the 14th highest paid player at $14MM (about half of A-Rod's annual, and less than such superstars as Mike Hampton and Chan Ho Park!!). In all, the Cards have 3 in the top 50 (Pujols, Rolen, and Edmonds) and only 5 in the top 100 (add Isringhausen, 78th, and Mulder, 98th).

Secondarily: Lou Brock was on KFAN-radio program P.A. and Dubay this morning discussing, among other things, the state of baseball and Ricky Henderson breaking his SB record a number of years ago (my paraphrase of a couple items are listed below). Mr. Brock was tremendously gracious on the program speaking candidly about who he likes to watch play today--Pujols, Bonds and Cabrera (whose name he couldn't quite remember).

He was gracious about Henderson ("If you're going to break a record, I want to see you shut the book on the record for some time and Ricky did that."). Brock also mentioned why he didn't much care to attempt to steal for home ("As you get closer to the plate and the batter considers the pitch, that bat keeps looking bigger and bigger"). He ended the call by thanking the KFAN guys for "remembering." What a class act!

Court hands down Georgia v. Randolph opinion

2006-03-28T12:55:00.000-06:00

Six Justices wrote separately. A plurality held that police may not enter on the basis of consent when one occumpant gives permission, and the other clearly withholds consent to enter a dwelling. The facts and resolution of the case are discussed in the article.

I discussed this case in my criminal procedure class and predicted this outcome, despite the outcome of IL v. Rodriguez (1990), in which a live-in girlfriend gave police permission to search while her abusive bf slept. The facts in this case were unusual and clearly different than Rodriguez.

Perhaps predictably, Roberts, Scalia and Thomas sided with law enforcement. However, keep in mind that the bright-line rule that this case advances is that police could have called a DA to ask for a warrant while "chatting" with the "suspects." A mad dash into the house to flush contraband could have resulted in exigent circumstances sufficient to alow police to follow them into the house.

Indeed in this instance transactions costs in searching are increased. But the rights to home privacy, I think, should be inviolate. This should hold true even in instances of marital spats, even when the principle places a burden on law enforcement.

The Decline and Fall of Barry Bonds

2006-03-15T11:48:00.000-06:00

This book excerpt is perhaps the most detailed that I have read to date regarding Mr. Bonds. There is alot of news on this subject presently. It is sad that there are so many other steroid users in sports. Baseball is just the tip of the iceberg; it appears that no serious inquiry has ever been made in the NFL, nor is one forthcoming. It does seem now that a Hall of Fame induction is in serious jeopardy for Mr. Bonds as he and Rafael Palmeiro are now perhaps the only two players with serious credentials to ever be outright caught during their careers for steroid use.

SCOTUS rules in Solomon Amendment Case

2006-03-06T10:41:00.000-06:00

Today the High Court threw a considerable set back on those hippies that keep handing out fliers to protest the military's "don't ask, don't tell" policy (The case is titled FAIR v. Rumsfeld). The policy instituted during Clinton's administration was challenged by a collaborative of liberal law schools who were forced to choose between the receipt of federal funds and barring the military from conducting interviews on campus. Hamline is one of the many schools that raises a large stink, via advertisements and emails/letters from our Dean protesting this policy around the law school. (I am unsure if we participated in the lawsuit in any capacity).

The schools argued that the government was interfering with its First Amendment freedom of speech by making so onerous the conditions of the federal funds that it effectively prevented the schools from advocating socially responsible policy (consistent with each schools' views). The Court, however, apparently turned the case on the distinction between speech and conduct. Plainly the schools can and will make known their liberal ideology in the manner that Hamline does. However allowing military on campus was the condition precedent to idealogues such as Hamline (sarcasm) getting a boat load of cash. The Hamlines of the world are NOT willing to sacrifice the dough necessary to maintain their independence and moral superiority, or so it appears.

{Update: I wanted to note a few of the better comments at the link above.
One notes that Harvard and the other law schools are "firing at the wrong target"--that the military only follows Congress and the President's lead. It is truly hard to believe that the legislation and con law geniuses at Harvard don't know this. Ergo, the attack should be aimed at Congress.

Second, this story, though a bit bawdy, is illustrative (attributable to George Bernard Shaw, I believe) : A man approached a woman and asked for sex in return for 1 million pounds, she said yes. He then asked if she would sleep with him for 10 pounds, enraged, she asked "what kind of a woman do you think I am!" To which he replied, "Madam, we've already determined that, we're just haggling over price."}

Civil Liability and Medical Ethics

2006-03-03T11:53:00.000-06:00

This civil suit seems unfortunate. However, I wonder how the true medical/emergency rescue issue would turn, if in fact the decedent had had HIV. Generalizations are tricky. The ACLU claimed that even if the decedent had HIV, the Americans with Disabilities Act would require treatment, including mouth-to-mouth by the police department. I am skeptical.

Dubai Ports World Deal

2006-02-22T10:24:00.000-06:00

We discussed this story in my national security class this week. At the time I sat silently in class because I was unsure how to react. There are two questions that I have regarding a United Arab Emirates-owned firm owning the port operating rights in several US coastal cities.

First, who will be making decisions on the ground? It is silly to assume that a whole bunch of UAE citizens will be getting shipped over to control the docks in these cities. It will likely be many of the same employees, US citizens, staffing these jobs. As with anything else, the owners will be making the decisions. The UAE higher-ups have alot of economic interest on the line, and no known ties to terrorism.

Second is the foreign investment issue. Alexander Hamilton, as our nation's first Treasury Secretary, posited that investment in a government is likely to keep loyalty intact. He believed that the economic stakeholders in a nation are unlikely to wage a war against the same because they've already put their assets into the success of that nation (of course this transaction is a private one, but is still analogous).

The indelible conclusion that I must reach is that whether a British outfit, a UAE outfit, or an American outfit runs these ports, the government oversight/inspections/rule-making should be firmly in place. I don't believe Congress should attempt to keep a foreign company (from any nation not openly and officially hostile toward the U.S.) out of industry. I will stop short of stating unqualifiedly that the UAE is our friend forever. Yet I think there are better, more effective controls to be levied against whichever company takes control. Despite what the conspiracists may say, the premise--that any Middle East-owned company is likely to blast America through ports that it owns and operates--is without support.

In the wake of the failed CNOOC-Chevron deal last year, foreign investors will at some point rebuff large-scale US investment. This is an unacceptable result in the present climate, where such investment has been an integral part of our recovery over the last 18 months.

Update: The DPA has suggested forming an American Corporation in order to structure the deal.

Does it make you uncomfortable?

2006-02-16T13:15:00.000-06:00

That the first $500,000 in donations and state funding pay the CEO of Minnesota Public Radio? A story in the Star Trib yesterday revealed that the radio not for profit organization had yet to file for $190,000 in available state benefits, contingent upon revealing the number of employees that are highly compensated ($100k or more in annual compensation). The state legislature last year passed a bill so requiring reporting that was fairly narrow in directing its effect upon MPR.

MPR counters that it has been singled out by the state and is considering not filing for the benefits on principle. What principle? These are not my principles.

I have no guilt over "using their services." Perhaps the spirit of service that MPR asks of its contributors should carry over to those who make more money than I will for many years out of law school. Perhaps MPR should become MPR, Inc., and then your people could make lotsa money . . . and I wouldn't have to put up with this in order to get my Morning Edition.

ABA Midyear Delegates Meeting

2006-02-16T13:11:00.000-06:00

No doubt the most significant recommendation to be voted on was the Slavery Commission, which:

"urges Congress to create and appropriate funds for a Commission to study and make findings relating to the present day social, political, and economic consequences of both slavery and the denial thereafter of equal justice under law for persons of African descent living in the United States and authorizes the Commission to propose public policies or governmental actions, if any, that may be appropriate to address such consequences.” According to the report, “this resolution would encourage the Congress to formally and comprehensively study this country’s ‘legacy of inequity’ and propose and policies or governmental actions that may be appropriate.”

Understatement of the baseball offseason

2006-02-13T11:21:00.000-06:00

It involves Sammy Sosa, who hit .221 with 14 home runs and 45 RBI in 102 games last year for the O's. Sosa, who has only received a single one-year, $500K offer from the Nationals for next year, is now considering retirement. The goliath under-statement is:

Baltimore declined a $18 million option for Sosa in 2006.

[For a frame of reference, Albert Pujols made $11 million in 2005.]

I Have Returned...

2006-02-09T21:43:00.000-06:00

...to predict and suggest that either Katharine McPhee or Paris Bennet should win this year's iteration of American Idol. Both are head and shoulders above the rest of the contestants.

EDIT: I must also add that the rendition of "Man in the Mirror" done by John Williams - his "remixed" version - was the most entertaining audition I've ever seen.

You know you are nervous when . . .

2006-02-08T16:07:00.000-06:00

Justice Ginsburg visited UCLA School of Law earlier this year, where she provided the following anecdote about how she expects the Court to change:

In the twelve-and-a-half years we served together, court watchers have seen that women speak in different voices and hold different views, just as men do. Even so, some advocates each term revealed that they had not fully adjusted to the presence of two women on the high Court bench. During oral argument distinguished counsel, including a Harvard Law Professor and more than one Solicitor General, began his response to my question, 'Well, Justice O'Connor. . .' Sometimes when that happened Sandra would smile and crisply remind counsel that 'she's Justice Ginsburg; I'm Justice O'Connor. Anticipating just such confusion my first term as a member of the Court, the National Association of Women Judges had T-shirts made for us. Justice O'Connor's reads: 'I'm Sandra, not Ruth.' Mine: 'I'm Ruth, not Sandra." With Alito's appointment to the Court, at least we don't have to worry about this gender confusion.

[I think there is a pretty distinct difference between these two foxy ladies. But apparently some SCOTUS practitioners had some trouble.]

Rough day for radio voice

2006-01-31T15:06:00.000-06:00

This morning NPR's Morning Edition news voice (filling in) had some trouble. She announced that Kenneth Skilling and Jeffrey Skilling were being tried today in the first day of what is sure to be a long trial (sounds like Larry, Darrell and his other brother Darrell). However, she did catch, and then correct.

This was right after she announced the death of Coretta Scott King, wife of slain rights civil leader, MLK Jr.

A rose by any other name . . .

2006-01-30T09:40:00.000-06:00

A fellow in PA signed his ballot "God." The registered Republican has a catchy story here as to why. I wonder the legitimacy of adopting such a monniker, however. People sign by nicknames, shortened names, etc. all the time. Tastless? Perhaps.

Reasonable privacy interest in saliva on envelope sent to faux law firm?

2006-01-29T15:10:00.000-06:00

This article details a nefarious plot by which Washington-state law enforcement officers cracked a rape/murder case that occurred 15 years prior. The plot entails a teenage suspect who long ago left the state for the East Coast when the DNA technology was less developed. Police obtained DNA evidence at the scene, but were unable to match during the technologically primitive 1980's.

Somehow, they learned of the subject's whereabouts. But unable to extradite without confirming the DNA match, they sent a letter to the suspect, posing as a class-action lawfirm. The return letter that they received proved the smoking gun, and said rapist was arrested. Defense counsel, as well as the ACLU and other lawyer's groups are seeking to overturn this conviction on the grounds that the DNA was improperly obtained (remember the exclusionary rule from Law and Order).

You know you are taking your love of sports too far

2006-01-17T17:10:00.000-06:00

. . . when this happens.

Wal Mart and healthcare costs

2006-01-16T12:41:00.000-06:00

This article describes the Maryland legislature's misplaced efforts at sticking its nose into WalMart's business last week. The unfortunate reality is that the bill requiring all companies in the state with over 10,000 employees to expend at least 8% of total compensation on healthcare benefits misses the mark.

It is the total package of employment benefits that makes employees feel the satisfaction or sting of their benefits package. It is this figure which motivates employees to either accept the comp as reasonable for their services, or to move on to another endeavor that meets roughly the value of their opportunity cost. This is pure union legislation at its finest.

New Year's Pop Culture Iconicism

2006-01-11T10:01:00.000-06:00

If 2005 was the year of natural disasters and the final stage in the polarization of national politics, then 2006 will surely be the year of the Super-Precedent. The word has admirers on both sides of the aisle, as evident in the Alito hearings. Though I sincerely hope that when Sen. Brownback, R-KA, said "super-dooper precedent" this morning that he was mocking the new buzz phrase.

Education = $$ ?

2006-01-10T11:49:00.000-06:00

Linked article discusses a study of medium education levels in major cities, cross-referenced with the medium income grid.

Looked at me like she'd never seen a 10 befoe . . .

2006-01-06T12:17:00.000-06:00

Call us Aaron Burr from the way we're dropping Hamiltons'. This has been widely circulated, but I love it, so if you've not seen it, you must.

Sign of the Night

2006-01-02T19:32:00.000-06:00

Seen in the Fiesta Bowl on ABC:

Anti-
Buckeye
Catholics

One-way ticket straight down

2005-12-22T16:14:00.000-06:00

Noticed this story in the blogosphere earlier.

Death Penalty/Tookie Williams

2005-12-22T14:18:00.000-06:00

Judge Posner has an interesting discussion of the effects of capital punishment, and observations of the Williams case:

Early empirical analysis by Isaac Ehrlich found a substantial incremental deterrent effect of capital punishment, a finding that coincides with the common sense of the situation: it is exceedingly rare for a defendant who has a choice to prefer being executed to being imprisoned for life. [Ed: Posner also notes that Ehrlich's study, though met with heavy criticims in years since the study, has recently received renewed support by subsequent economics studies] . . . these authors found that one execution deters 18 murders. Although this ratio may seem implausible given that the probability of being executed for committing a murder is less than 1 percent [out of all murderers]. . . . Even a 1 percent probability of death is hardly trivial; most people would pay a substantial amount of money to eliminate such a probability.

[Turning to the Williams case] the major argument made for clemency was that he had reformed in prison and, more important, had become an influential critic of the type of gang violence in which he had engaged. . . . On the one hand, if murderers know that by "reforming" on death row they will have a good shot at clemency, the deterrent effect of the death penalty will be reduced. . . . [C]lemency is the currency in which such activities [William's writings agains violence] are compensated and therefore encouraged. Presumably grants of clemency on such a basis should be rare, since there probably are rapidly diminishing social returns to death-row advocacy, along with diminished deterrence as a result of fewer executions. For the more murderers under sentence of death there are who publicly denounce murder and other criminality, the less credibility the denunciations have.

Requirement of ID teaching ruled unconstitutional

2005-12-20T14:32:00.000-06:00

A federal district court judge today in PA released an opinion declaring the school board resolution--requiring schools in the district to teach Intelligent Design in its classrooms--to be out of accord with the Establishment Clause of the First Amendment. I have some thoughts about this that I hope to blog before the end of the week.

Media Bias?

2005-12-14T15:22:00.000-06:00

Proof that the media is no different than the political parties themselves in terms of the spin put on stories: Compare the two headlines from Bush's speech today. First note the CNN story. Contrast it with Fox News. Titles are meant to convey a great deal of importance, yes?

Reminder to keep your sense of humor

2005-12-06T22:43:00.000-06:00

As we study for finals, let us take inspiration from Kathleen Sullivan, recent Dean of Stanford Law, constitutional law scholar, and frequent Supreme Court advocate, who this summer failed the California Bar Exam.

She wanted to "get as far away as possible, get married, and start a new life"

2005-11-22T09:28:00.000-06:00

Should 14-yr old girl who ran willingly to meet her parents' killer (her boyfriend) be charged with anything other than bad taste? Naturally she is a juvenile. But this story is creepy.

TO Suspension Dispute

2005-11-18T09:41:00.000-06:00

You may remember that I am rather passionate about the antics of football star Terrell Owens. I wanted to highlight this article by a practicing NYC attorney regarding Owen's appeal of his suspension. I report with much glee, that 1) the suspension will stand (no player can force a team to accept their services), and that 2) for at least 4 games of the remainder of the season, TO will be going without pay (as allowed under the terms of the collective bargaining agreement, which allows team discretion on disruptive acts). It is good to see a professional sports team not back down in exercising contract rights when dealing with a professional baby, er. . . athlete. All due respect to Professor Martin, but contractual terms do have meaning.

Think judges should face civil liablity for their decisions?

2005-11-15T09:55:00.000-06:00

Well, 50, 000 or so people in South Dakota do.

Philosophy vs. Single-Issue Thinkers

2005-11-14T16:17:00.000-06:00

Though there exist judges that believe abortion is ok whom conservatives could support, I don't think a conservative should support any judge who thinks there is an absolute Fundamental right to abortion, free from state restraints (the pre-Roe status quo-- you may remember--abortion was not criminalized via the national government). All the faithful readers of this blog and other areas of legal academia know that the penumbras are regarded as a vastly bastard-ized line of jurisprudence: mysterious indeed in its origin.

A nominee that makes it to this level will be more than just a one or two-issue "hack" who is merely looking to get a foot in the door to mandate views on pet issues. Ginsburg would be perhaps the best example: Though she held (perhaps still holds) wild views regarding sexual autonomy/freedom that are vastly outside the mainstream, she is otherwise a competent jurist (though I disagree frequently with her analysis).

It is time to be frank in this debate and recognize that no candidate for SCOTUS will fail this competence test. Therefore, to the Presidential victor go the spoils--the nominations. Democrats can try to steal his glory. But I don't think that when the music stops this will in fact take place.

Counter-Offensive turns into Team Sport

2005-11-14T10:34:00.000-06:00

This blog provides a fascinating look at the weekend's happenings on the Sunday morning political shows; it notes that John McCain is even drawing the line on the latest attacks against Bush. Notice also Sen. Rockefeller getting blown up on Fox News. Pretty hard to explain away video of your own comments on the floor of the Senate!!!

[Anyone else wonder at the Bush Lied campaign?? Indeed, this is a President not up for election again. Why not focus a Democratic campaign on getting people elected? I suppose the sentiment is currently, "we got our governors elected on the above platform." My response is wait until you win (or don't get trounced) in a national election to see how that strawman campaign works.]

Abortion Program on NPR

2005-11-12T11:07:00.000-06:00

Mid-Morning program discussion between NARAL and Democrats for Life directors last week made me marvel as usual. Nevermind the constitutional issues. Upon what basis do womens' "right to choose" advocates advance this unlimited privacy/freedom interest? Since when are our freedoms unlimited? See e.g. drug laws, regulation of the medical profession, vehicle registration, homicide (including fetal) criminalization, and property taxes.

Gun control nuts are making me angry

2005-11-07T16:04:00.000-06:00

This piece is on a liberal blog regarding Alito's stance on gun control:

Community safety: Alito, dissenting in the case of United States v. Rybar, said that Congress does not have the power under the Commerce Clause to restrict the transfer and possession of machine guns at gun shows. In response to Alito’s assertion that Congress must make findings or provide empirical evidence of a link between a regulation and its effect on interstate commerce, the majority said, nothing in Lopez (an earlier Supreme Court case) requires either Congress or the Executive to play Show and Tell with the federal courts at the peril of invalidation of a Congressional statute.

When will people and groups stop doing this? I feel like the Left is even worse about this than the reactionists on the right. The logic follows something like this. Commerce Clause > interstate commercial activity > Congress can regulate. Judge who applies the Commerce Clause = a radical with an agenda against whatever action Congress takes. (In this case, Judge Alito wants "machine" guns to be on the streets).

Truly awful analysis. So bad, in fact, that I am forced to break it out:
"The courts must declare the sense of the law; and if they should be disposed to exercise will instead of judgment, the consequence would be the substitution of their pleasure to that of the legislative body." -Federalist No. 78

Alito and Vanguard

2005-11-07T11:50:00.000-06:00

You will likely be hearing news coverage presently questioning Judge Alito's hearing of a case involving Vanguard (The Federal District Court opinion may be found at 2001 WL 253648; apparently, the 3rd Cir. with Alito on the panel, voted without reported opinion to affirm). Below is my interpretation of why Judge Alito's non-recusal should be a non-issue regarding his fitness as a judge:

A cursory review of the case reveals that it is very questionable indeed whether Alito had any substantial outcome financially in the case. First, the facts of the case seem to parallel those of an interpleader situation (suffice it to say, that the legal consequences to Vanguard promise to be very immaterial to the overall health of any particular fund). Second, did you see those financial disclosures on the Justices? (Including even Harriet?) It seems likely that a large deal of Judges and Justices in this country have money in a Vanguard fund of some flavor. The Star Fund, according to my information, is the most commonly invested fund of this sort in the world. Should this mitigate the likelihood that a judge would feel conflicted about hearing the case? Maybe. How about suit against the PBGC, under ERISA, for a breach of fiduciary duty? Potentially a whole lotta people, including judges would "have an interest" in a suit of that nature.

Legend of Zoro

2005-11-07T11:38:00.000-06:00

Saw it over the weekend. I wasn't aware that Zoro was defender of California's Constitution. I also was unaware that horses can be made to jump off a bluff onto a moving train.

Alito Nomination

2005-10-31T10:33:00.000-06:00

Bush today appointed Federal Court of Appeals Judge for the Third Circuit Samuel Alito to succeed Sandra Day O'Connor. I love the pick. I think it is a fiendishly sly move. In fact, I wonder if there isn't a possibility that Bush et. al. didn't orchestrate the Miers' nomination with an aim at a withdrawal or Senatorial fillibuster. Though this claim will never be capable of verification, my reasons for the thought are thus:

First, Democrats' outspoken opposition to Federal Court judges earlier in Bush's term wasted political capital. The spoils of the presidency have always been nominations. Dems can only so long play the "we disagree with judicial philosophy of this President, we're going to take a stand!" drum.

Second, Bush has remedied the flaws articulated about the Miers candidacy. Alito is very experienced with the Federal Judicial System. He has spent a career of working for the Solicitor's general office and as a Federal Appellate Judge (15 yrs on the bench). His pedigree academically and otherwise is top notch.

Third, Alito is the third SCOTUS candidate that Dems have immediately attempted to rally against (See Ted Kennedy's statement today). Roberts because he was too young, too inexperienced on the bench, too conservative, and an unknown quantity, as most of his written work was for the earlier administrations and therefore reflected his professional obligation to a client (the White House), rather than independent judgments. Miers was opposed because under-qualified educationally and otherwise, unkown for views independent of working for Governor, now-President Bush and other insitutional clients, had no experience as a judge, and was a suspected Roe v. Wade-basher.

Enter Alito: the "too-conservative" cry cannot stand in light of the sequence that yielded his nomination. By most accounts on the Volokh Conspiracy and elsewhere among centrist academics, Alito is another judge fashioned from a Robertsonian cloth. If this was all engineered by the Bush administration, this pick is even more brillant than the Roberts nomination!

Bush has satisfied me that his campaign promise to the base was in fact met. The holy outrage over Miers has passed. An egg-shell walking contest looms for the Democratic party.

Gender Equality?

2005-10-27T16:11:00.000-05:00

French golfer Jean Van de Velde wants to qualify for the Women's British Open. This announcement comes on the heels of the decision to allow women to qualify for the Men's Open. Naturally the golf authorities refuse to publicly address such a story head-on. But I think that a frank discussion of this dichotomy should be forthcoming.

Though silly it may seem, why shouldn't men be allowed in a professional sport in which men's leagues admit the most competitive of their female peers? I believe that this policy is inherently sexist. The message conveyed signifies one of two possibilities. Either 1) men should not aspire to lessen themselves to the level of women's competition, or 2) the competition of men's leagues are so clearly superior (vis-a-vis the women's equivalent) that the best women should not be subjected to the limitation of only playing with women.

It is the feeble intentions of the gender equality folks that have set up this framework by allowing, even forcing, womenly participation in men's ahtletics. These folks have some explaining to do.

One Reason I'm a Zionist

2005-10-26T15:59:00.000-05:00

Iran president wants Israel "wiped off the map"

Liz Phair...

2005-10-22T21:26:00.000-05:00

...just gave what might be the worst rendition of "God Bless America" I have ever heard during Game 1 of the World Series.

The Wit of an AMFA Member

2005-10-22T03:25:00.000-05:00

I have stumbled upon an anti-AMFA site...run by AMFA members. The primary feature of the site is the message board, where fed up members voice their displeasure for their union. This is the rank-and-file speaking its mind - not the union heads spouting off the usual rhetoric on AMFA's site. Kudos to those speaking out - it is, after all, these people who are feeling the real effects of this strike.

The following is an excerpt from one of the e-mails posted on the site. One wouldn't know that actual members feel this way about their "leadership" from following the mainstream media's coverage of the strike.

Our fearless Assistant National Director, Steve MacFarlane has recently conducted a garage sale and is in the process of selling his house. He's moving to Utah. Well I guess it would only be natural to move to Utah after he's finally done screwing all of us he's got to go to a state where polygamy is legal so he can screw more people.

Best Explanation of Cards' Win

2005-10-18T08:40:00.000-05:00

Last night I saw the most incredible thing on a baseball field that memory will allow me to recall (apart from the collective 4-game comeback by last year's Red Sox--nonetheless, this was a dramatic momentary turn-around). Pujols of course hit that towering home run into left field, with his team having been just one strike away from playoff elimination. The following is one possible explanation:

Now, as for the Astros' playoff beards: Is it me, or are these guys actually grooming their playoff beards? Take a look at Lance Berkman's chin line; it's suspiciously clean, isn't it? If I'm right, then this is very, very bad form. This is George Michael territory. The baseball gods will punish this behavior. Maybe not today, maybe not tomorrow but soon and for the rest of their lives.

Larry David

2005-10-17T19:29:00.000-05:00

All three of us Reasonably Rightsters were having lunch today at Peter's Grill in downtown Minneapolis. I am convinced that I spotted Larry David, co-creator of "Seinfeld," creator of "Curb Your Enthusiasm," and the biggest genius in comedy, in the same restaurant while we were there. All of us had a few good looks at him, but none of us could say with absolute certainty that it was him.

If anyone can point me to a source that definitively states whether Larry David was in Minneapolis today or not, the first one to do so will earn a complimentary lunch/dinner at Peter's.

Baseball Playoffs

2005-10-12T16:53:00.000-05:00

I am fond of making predictions about my teams in a tangible medium of expression prior to the big games, so that I can hope to have bragging rights when I am right (this happens roughly 9% of the time).

So, for my NLCS-bound St. Louis Cardinals: Might the key to the series be Reggie Sanders' .429 BA, .529 OBP, 5 HR, and 13 RBI in 11 games against Houston this regular season?

I agree that Houston's cadre of pitchers is the best playoff 1-2-3 I've ever seen assembled for a playoff series. However, these same teams played last season. Houston was missing Pettitte due to injury. St. Louis was missing Carpenter for the same reason. Both are back and pitching well.

Mark Mulder is the bonus addition for the Cards. That is a pretty big bonus. Oswalt and Backe (who is scheduled to start game 4) were a combined 1-3 against St. Louis this year in 6 starts. Backe gave up 13 runs in 11 1/3 innings, and Oswalt surrendered 11 runs in 19 innings.

Might it be that the Cards that won last year, are stronger on paper this year? Let's hope so. STL in 7.

Miers, part III

2005-10-05T13:46:00.000-05:00

Of her religious persuasion, Today's Times has this story, and this line:

Religion appears to have influenced her views on certain subjects. In a discussion with her campaign manager in 1989, Ms. Miers said she had been in favor in her younger years of a woman's right to have an abortion, but her views evolved against abortion, influenced largely by her born-again religious beliefs, said Lorlee Bartos, a Democratic campaign consultant in Dallas who managed Ms. Miers's City Council campaign.
"She was someone whose view had shifted, and she explained that to me," Ms. Bartos said.

Miers, part II

2005-10-04T15:55:00.000-05:00

Linked here is an observation from Miers' student-authored casenote while at Southern Methodist Law School. *Big disclaimer:* My own view of student-authored law review articles is that not everything written directly reflects the views of the author (they are seeking to get published per the editorial board's satisfaction). Additionally, I think views certainly may change in 30+ years of practice.

Bankruptcy Reform and special interests

2005-10-03T14:43:00.000-05:00

Remember in the Spring of this year when the Reform legislation to the Bankruptcy Code was passed with much criticism because it was solely a product of the special interest that is the credit card industry? Well this article, that I missed at the time, speaks to other special interests involved.

It is interesting to note that Senator Chuck Schumer, D-NY, received $2.5 million in campaign contributions from lawyers in his last campaign. Ted Kennedy, D-MA, received the single largest campaign pot from lawyers (relative to all other groups) in his last campaign.

Curious? The new Bankruptcy laws made attorney's fees the number 2 priority, to family support obligations in the priority hierarchy. Formerly, lawyers got paid ahead of all other comers. Hmm. . . I wonder if any of those lawyers forking out cash to Democrats had an interest in voting against the legislation?

Miers nomination

2005-10-03T14:00:00.000-05:00

The media channels are currently being glutted with analysis of Harriet Miers validity as a nominee to be a Justice of the SCOTUS. I have this morning read blog presentations ranging from, "no experience as a judge," to "Bush crony," to "highly professional and loyal." Most strange, one person has claimed she is in fact a lesbian who sent her partner to enter a proxy vote for her in some sort of committee meeting while in Texas (this anonymous individual claimed personal knowledge of this event, claiming that Miers said in advance that she was "sending her partner") .

I thought it would be of interest, that Jay Sekulow, of the Evangelical conservative non-profit, the American Center for Law and Justice, is a supporter of Ms. Miers. He calls her in a recent grouplist email "[an] excellent nominee [and] a strong candidate who shares your values and ideals, and one who will properly interpret the Constitution and not legislate from the bench. She is bright, thoughtful, and a consummate professional."

He adds, "As head of the Texas Bar Association, Harriet Miers attempted to reverse the pro-abortion position of the American Bar Association - returning it to its former position of neutrality."

The PR-fury yet in its infancy demonstrates that members of the conservative establishment have views all over the board concerning Miers' nomination. Many thought that the views of Judge Roberts were such a mystery. Enter Harriet Miers.

Bush was Right

2005-09-30T14:24:00.000-05:00

I express no judgment about the merits of this song. Listen to the preview here. It sounds almost comical, but nonetheless, the song received rave reviews at a support the troops rally in DC last weekend.

Whatever happened to . . .

2005-09-30T13:52:00.000-05:00

Rodney King? Here you are.

Second Amendment Hotbed

2005-09-26T12:07:00.000-05:00

The fact that the appalling confiscation of weapons in New Orleans has gotten little press coverage is of little surprise given media views of the right to bear arms. I commend this brief for the case, which is excellent. That fact is underscored by the recent Consent Decree entered by the guilty New Orleans parrishes (the equivalent of an "oops, my bad").

The brief is particularly excellent for its use of Equal Protection and Substantive Due Process as bases for the right to bear arms. I am especially pleased to see the 14th Amendment arguments expounded to test the analytical sincerity of modern interpretation of the Equal Protection and Due Process Clauses. The Second Amendment is an explicit pronouncement found in the Bill of Rights and belongs squarely within the ambit of rights that the 14th Amendment guards (unlike sodomy, privacy, abortion, and gay marital /benefits/adoption rights, to name a few).

In order to repeal the right to bear arms, it is not enough for the Superintendent of Police to say-so. Three-fourths of the states and two-thirds of the Congress (*notwithstanding the state-initiated convention, which has never been used*) have to say-so.

The N.O. case is further chronicled here by David Kopel, a VC contributor.

Some real news from the sporting world.

2005-09-26T10:03:00.000-05:00

Summation would not do this story justice.

Dubya hates. . .

2005-09-15T22:40:00.000-05:00

Update: Please view the Kanye West for Pres link in the post below. Not surprising somebody put together that website!

Ready to be Offended?

2005-09-14T10:38:00.000-05:00

Then click here.

Economist of the Day

2005-09-14T02:52:00.000-05:00

One economist whose writings I have much enjoyed recently and whom I think is quite an important figure in furthering the only kind of policies that can lift Africa out of poverty is James Shikwati. Do a search on him and read some of his works - you won't be disappointed.

Dubya hates black people--Winds of change rustle (I can hear them, can you?)

2005-09-12T12:26:00.000-05:00

Apparently this photograph was proliferated by the Kanye West for President, 2008 caucus. Rumored to be considering running with Christopher Walken, ttp://www.walken2008.com/ , the upstart musician no doubt would be a fine choice for VP, along with Alec Baldwin, the Dixie Chicks, Green Day, and other invaluable contributors to the political debate in this country.

The Right Response to Katrina from Bush:

2005-09-10T18:33:00.000-05:00

Should have been this:

"I find no warrant for such an appropriation in the Constitution, and I do not believe that the power and the duty of the General Government ought to be extended to the relief of individual suffering which is in no manner properly related to the public service or benefit. A prevailing tendency to disregard the limited mission of this power and duty should, I think, be steadfastly resisted, to the end that the lesson should be constantly enforced that though the people support the Government the Government should not support the people.
The friendliness and charity of our countrymen can always be relied upon to relieve their fellow-citizens in misfortune. This has been repeatedly and quite lately demonstrated. Federal aid in such cases encourages the expectation of paternal care on the part of the Government and weakens the sturdiness of our national character, while it prevents the indulgence among our people of that kindly sentiment and conduct which strengthens the bonds of a common brotherhood."

-- President Grover Cleveland, upon vetoing a bill appropriating money to aid drought-stricken farmers in Texas [February 16, 1887]

Charlie Weiss Era

2005-09-10T11:06:00.000-05:00

Espn's Kirk Herbstreit has the following take on Charlie Weiss and his impact at Notre Dame:
"Offensive skill-position players will take a hard look at going to South Bend if that is the kind of offense Weis is going to play on the collegiate level. You will see a lot of recruits want to play for him for one reason: Not only are you going to win, but you have a great shot at getting to the NFL."

I believe three superbowls with the Patriots in four years validate this statement. They showed the talent last week against Pitt. There are going to be a couple superstars emerge this season alone (watch Quinn and Darius Walker go). Finally Notre Dame is Notre Dame again.

Judicial Nominee Poll

2005-09-08T13:45:00.000-05:00

Confirm Them has a judicial nominee poll here.

Tough Job, But Someone's Gotta Do It

2005-09-05T01:51:00.000-05:00

I came across the following tidbit while looking up information about US Open third round winner Nicolas Kiefer on the ATP Tour site:

His father, Wolfgang, is a teacher while mother, Nicole, is French…

Incidentally...

2005-08-30T22:17:00.000-05:00

As I have made painfully obvious in the last few posts, I do not think that the AMFA should belittle and make verbal attacks against those who are choosing to perform labor outside of a union.

However, I would think that the AMFA SHOULD have a legitimate gripe against the other union members at Northwest who are not honoring their picket lines. After all, it is those employees, and not the non-union workers, who believe that picket lines should not be crossed - yet they are doing it anyway.

To delve further into the question of why there is not much ACTUAL support by the other unions (symbolically supporting the AMFA while crossing their picket lines is a mere token gesture) would take exploring the history of the formation of the AMFA and its conflict with the IAM. Aside from that, it seems intuitive to me that the AMFA should be focusing their ire not at the replacement workers, but at the other unions at Northwest since they supposedly share the same philosophy with regards to organized labor.

Irony and the AMFA

2005-08-30T21:40:00.000-05:00

From an AFL-CIO member in the Star-Tribune (registration required):

"I'm proud to be with an AFL-CIO union supporting your strike," (Sandra) Sherman told the crowd. "This is a fight for all working-class people across the country and the world."

The group picketed the Radisson on the University of Minnesota's East Bank campus, chanting "Scab Go Home," in reference to the Northwest replacement mechanics.

No Sandra, YOU are instigating a fight AMONG the working class. No one is disrespecting your RIGHT to stand united as union members. However, the least that the AMFA and its allies can do is respect the choice that the replacement workers have made to perform labor outside of a union.

The Arrogance of the AMFA

2005-08-28T01:48:00.000-05:00

From an AP story via the TwinCities.com (registration required):

The union will continue to focus on getting replacement workers to quit. During the rally, people chanted "scabs go home," referring to the replacement workers Northwest has hired. The union on Tuesday plans to picket a Minneapolis hotel where leaders say many of the replacements are staying.

"For us, this is war," MacFarlane said. Dozens of members wore black T-shirts with an image of a hand holding a gun. "Scab Hunter" was written above and below the image.

First of all, I find it appalling that there does not seem to be some kind of backlash against the sick message being conveyed on these shirts. Is there a call from anywhere in the liberal Twin Cities public (who, by and large, are anti-gun zealots) for these union members to stop putting forth such a message? No concerns by the "progressives" that these people are advocating violence against workers trying to make a living? Not too shocking.

Second, I am surprised at the hypocrisy coming from a group that claims that they are simply "doing what they have to do." The replacement workers are also simply doing what they feel they need to do. The replacement workers have obviously chosen to go the non-union route; thus, no show of "solidarity" with the AMFA should be expected from them. However, the AMFA believes that every worker that is able to perform the same job duties as its members should be unionized and does not respect those who disagree with this point of view.

Apparently it is fine for the members of the AMFA to act solely with their self-interests in mind, but not fine for the men and women that they loathingly refer to as "scabs" to do the same.

AMFA Strike

2005-08-25T11:13:00.000-05:00

It looks more and more like the Aircraft Mechanics Fraternal Association is going to lose their war against Northwest Airlines. The Detroit Free Press has reported that some of the tasks that AMFA members were assigned to will now be assigned to members of the International Association of Machinists - the same union that the AMFA broke away from in the 1990s.

This is a brilliant move by NWA. It appeases the IAM (for the meantime) while earning a few public relations points from people that tend to favor unions on labor issues. More importantly, it is additional leverage against the AMFA. The more Northwest's performance stays as strong as it has been thus far post-strike, the better odds the AMFA can be broken.

Open the floodgates

2005-08-23T15:37:00.000-05:00

The NCAA this week cleared Florida State University to use its Seminole nickname in NCAA championship events. It can't be long until Utah, Illinois, and North Dakota jump through this same exception to the rule. The justification for the waiver was FSU's longstanding positive relationship with the Seminole tribe. Warning: Unfair competition and antitrust ahead.

UCAN'T do that

2005-08-17T09:44:00.000-05:00

Two UConn men's players were arrested for stealing laptop computers. Sigh.

UConn is a perennial final four contender. Roughly one quarter of its starters in the past several years have been drafted into the NBA. Yet this prospect is not enough for two members of its backcourt, including Marcus Williams, the starting point guard (I believe). I will resist the temptation to drone on. . . but seriously, laptops?? I suppose though, that when you need cash, you need cash.

On a side note:
"The four laptops, which have a total value of $11,000, have been recovered. "

-Wow. Nice laptops at an average value of $3k apiece. Either they are using the newest Apple. . .or their is a little insurance fraud also going on.

[To his credit, Coach Jim Calhoun did not even entertain fighting for them to play this season. He suspended them from basketball immediately upon hearing the news.]

Bush Administration Objects to .xxx Domains

2005-08-16T12:35:00.000-05:00

The article is found here, via Drudge. I don't quite understand the argument against the creation of this new top-level domain. I would rather have all the pornographers switch over to a domain like that than to pick some clever domain name in .com land that would lure unsuspecting visitors.

As for the fears that such a domain would further legitimize pornography on the internet, does adding a ".xxx" suffix really make pornography much more legitimate than having www.insertvulgarsextermhere.com domain names?

"best known for playing menacing or psychologically damaged characters"

2005-08-13T13:08:00.000-05:00

Christopher Walken for president.

Wow. Hat tip to Jason Geer. I'll use his line: "Needs more presidential cow bell."

NARAL Pulls Roberts Ad

2005-08-12T10:18:00.000-05:00

This is old news now (as far as internet life spans are concerned). However, the following is a quote from the president of NARAL about their decision:

"We regret that many people have misconstrued our recent advertisement about Mr. Roberts' record," NARAL President Nancy Keenan said.

To that, all I have to say is that I regret that NARAL misconstrued Judge Roberts' record in their recent advertisement.

Hyattes

2005-08-11T14:29:00.000-05:00

The so-called Bonnie and Clyde from the TN prison escape were apprehended today in Ohio. I wonder if in the coming months an interesting problem will arise when the two are sentenced (in separate trials, one would think). Seemingly, prosecutors are dealing with two cases of equal mens rea.

But in Convict Wyatte's case, he had a prior record. However, his charge will be for felony murder, conspiracy (planning the whole thing), etc. She actually pulled the trigger, killing a prison guard.

I think their mens rea is equally guilty. But it should pose an interesting dilemma, if prosecutors seek the death penalty for one or both. Who is deserving of death in this case? The woman with no prior record who pulled the trigger? Or the violent criminal who presumably planned it?

To prove the charge of felony murder, it is true that prosecutors do *not* have to prove mens rea for the murder, just the underlying felonious act. However, I wonder how much of a role mens rea will play in sentencing. [Well outside this author's expertise]

Women's issue?

2005-08-11T14:19:00.000-05:00

This story discusses gender segregation of summer classes at VA Tech for visiting faculty for Saudi Arabia. The King of S.A. in fact paid the University a significant sum to establish the men and women only classes. Here is a quote from a VA Tech Professor's complaint against the school:

"The presence of these segregated classes on campus indicates to me that the university doesn't place a strong enough value on women's rights," Coupey said Wednesday. "This makes me feel that the university holds me in less regard than my male counterparts."

There may be ire-inspiring elements to this move, but I don't see a connection between what was done and the quote above.

[Note: perhaps supporting any facet of the Saudi government is seen as denigrating to women. But from the sounds of the brief Fox News piece, women were included as faculty and likewise separated from men. I don't see the mere establishment of the separate classrooms as being a continuation of any form of denigration. After all, women were not denied the opportunity to equal access by VA Tech or apparently by the King of S.A., who more or less funded this thing.]

War of the words over Kelo

2005-08-04T13:33:00.000-05:00

Readers, yours truly has been doing battle with liberals via the comment board at the VC. The post is here, documenting several comments that intimate Originalists are being unprincipled in their criticisms of Kelo v. City of New London (the takings clause case, you know it). A few commenters say that the Takings Clause of the 5th Amendment doesn't prohibit taking for a non-public use. But we know that is hooey.
--------------------------------------------------------------------------------
There is an argument that the Takings Cl of the 5th says "nor shall private property be taken for public use, without just compensation," instead of "nor shall private property be taken for private use, and only for public use w/out just compensation." Apparently the Framers left out the operative bold phrase. Writings of the Framers taken jointly and severally suggest that they would consider it a tyranny to allow such a "taking" b/c they left out the italicized bit above. I don't think this is drumming up an unenmerated right.

"I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?"
-Alexander Hamilton, Federalist No. 84

"The Constitution is not an instrument for the Government to restrain the people, but an instrument for the people to restrain the Government."
-Patrick Henry

"When faced with a clash of constitutional principles and a line of cases wholly divorced from the text, history and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution's original meaning."
-Thomas, J., dissenting (Kelo)

I get it, legal liberals, you are trying to catch textualists with their pants down. (And I should add that I could spout a much more plethoric list of catchy quotes from the Framers of our Constitution, but I'll err on the side of brevity.) Unlike privacy, contraceptives, internet pornography, and wire fraud we have a picture of what the Founders were trying to do with the last clause of Amend V.

The Wit of Ichiro

2005-07-31T11:41:00.000-05:00

Ichiro broke the Major League Baseball record for most hits by a player in his first five seasons. Here is Ichiro's reaction to this:

"I didn't know about that record," said Suzuki, the defending AL batting champion who broke the single-season hit record last year with 262. "When I heard of this record I thought to myself, 'Man, there's a lot of records out there.'"

Drink apple juice, because OJ kills!

2005-07-27T13:18:00.000-05:00

"[The judge] basically denied us our right to a jury trial. . . . This was a decision made by a judge in chambers. They say he did it; we say he didn't. A jury should be able to make that decision."

--OJ's Attorney (named Yale) in response to a judge's grant of summary judgment in OJ's bootlegging trial. Mr. Simpson was charged with using equipment to steal DirecTV's signal for tv programming, without paying for it! And he endured a heavy fine for so doing.

I have a thought on this probing legal kernel
. . .hahahahahahahahahahahaha

bah. . .hahahahahahahaha.

Judge Roberts and the Federalist Society

2005-07-25T22:03:00.000-05:00

David Bernstein at the Volokh Conspiracy provides an excellent reason as to why it really doesn't matter whether John Roberts is a member of the Federalist Society:

The media's new obsession over whether John Roberts is or was a member of the Federalist Society is pretty foolish. I know members whose political views range from moderate conservatives (more moderate than, say, O'Connor or Kennedy) to Christian rightists to libertarian anarchist individualists. Judicial philosophy ranges from Borkean anti-judicial review views to Randy Barnettian presumptions of liberty. In short, membership in the Federalist Society tells you nothing about a nominee except that he or she is not "on the left", which one presumes would be true about any Bush Supreme Court nominee.

TO Update

2005-07-25T12:17:00.000-05:00

From ESPN news service this morning:

"I'll be there," Owens told the [Philadelphia] Inquirer on Friday. "I mean, the bottom line is that I still believe I deserve a new contract. I still believe I deserve more than what they've given me. But I'm not stupid. I'm not about to miss training camp, get fined every day and give them even more reasons to keep from paying me."

It appears that my earlier wish did not come to fruition. I suspect the true loser in this announcement is Drew Rosenhaus. The super-agent wants to use these players as bargaining chips, of which he has several, including Javon Walker of the Packers [who intends to sit out the whole season]. Terrell is too smart to be so used. I will give him that.

My new passion

2005-07-22T14:08:00.000-05:00

. . .is hoping that Terrell Owens and his agent are stymied by the Eagles football team. The receiver making the third-highest scratch at his position in the NFL is holding out until he gets a "more fair deal." This Philly newspaper story gives the details. It seems that the team may fine him, considerably chipping into the signing bonus he was paid last year. And they may pay him $0 for the season if he holds out. I am extraordinarily hopeful that they do just that.

Owens chose at the start of last season to take the long-term 7-yr deal valued at $49. Apparently his value has fluctuated so much in one season that his former deal is fundamentally unfair. Mr. Owens chose his contract, which the above article mentions was a very good deal, giving him a large signing bonus, and large-up front values for the first three years of the contract. This allowed him to largely mitigate the risk of a season, or career-ending injury. Now after taking the sure deal, and getting the team to assume all his risk, he has re-thought his bargain. There is no alternative market in professional sports. Therefore, there is no such thing as an "efficient breach."

Owens is accordingly a loathsome individual, and deserves his "business" bluff to be called. He has more to lose than the team does, notably his livelihood. I hope that the team sends a message to the league that there is some legitimacy to the CONTRACTS to which one pens his name. Holmes said that "Every contract is an implied promise to perform or pay damages." I strongly suspect that Owens is not willing to pay the piper.

Will Roberts unite the Force?

2005-07-22T11:07:00.000-05:00

I don't know. But this article gives the best glimpse to date into his background.

London Bombings and Patriot Act Revisited

2005-07-22T11:02:00.000-05:00

As I blogged two weeks ago when the first transit bombing occurred, the Patriot Act was indeed renewed by the House. A vote in the Senate should see the Act returned to President Bush, who will again sign it.

Insight into selection process

2005-07-21T11:34:00.000-05:00

The Times has an interesting article about how Bush chose Judge Roberts.

[Note: to view this article one need only provide minimal information to register with the NYT. It is free, but you have to give email, zip code, year of birth, and name]

Biblical Scroll Fragments Found in Israel

2005-07-18T19:35:00.000-05:00

Neat.

Antitrust Gone Wild

2005-07-14T00:47:00.000-05:00

This antitrust suit against NASCAR is just plain idiotic - as are antitrust laws. Here's what Milton Friedman has said about antitrust laws in the past:

"When I started in this business, as a believer in competition, I was a great supporter of antitrust laws; I thought enforcing them was one of the few desirable things that the government could do to promote more competition. But as I watched what actually happened, I saw that, instead of promoting competition, antitrust laws tended to do exactly the opposite, because they tended, like so many government activities, to be taken over by the people they were supposed to regulate and control. And so over time I have gradually come to the conclusion that antitrust laws do far more harm than good and that we would be better off if we didn’t have them at all, if we could get rid of them. But we do have them."

Wal-Mart

2005-07-14T00:34:00.000-05:00

Russell Roberts at Cafe Hayek shows that Wal-Mart is not immoral with regards to compensating their employees and not offering them benefits - rather, it is amoral. The following is an excerpt - the entire post can be found here.

There's a simple way to look at it. Wal-Mart doesn't offer health insurance or pay more than they do because they've found that they can attract enough workers with the pay package they currently offer. Period. For other companies, they have to offer health benefits to attract workers. They reason they offer health insurance isn't because they're socially responsible or kind or altruistic. They find that to compete for workers they have to offer it.

Paradoxically, Wal-Mart doesn't determine what it pays its workers or what benefits it offers any more than you can set the price of your house when you want to sell it. Suppose houses of similar quality and location sell for $500,000. You're free to set any price you want, but if you set a price of $1,000,000, you're going to wait a long time for a buyer. Oh, you might get a slight premium above $500,000 because you did such a nice job renovating your kitchen. Or maybe a little less if your taste in kitchen's is real different from most people's. You don't set the price of your house.

Query

2005-07-13T14:53:00.000-05:00

I have yet to encounter articles on the desirability of Fed budget deficits. Today's news states that due to increased tax revenue, the Fed deficit this year was reduced $100 B, but is still at $338 B. This in conjunction with a story I saw in Monday's Wall Street Journal (about corporate cash reserves being at an all-time high) had me thinking about the following: As corp debt is to some degree desirable, can gov't debt ever be?

Principally, corporations leverage themselves so that they can invest in what they are good at and make a considerably higher return than the interest rate on their debt. Could there ever be such an economic justification for gov'ts? Or is it just poor management, coupled with crisis spending, i.e., wars, hurricane relief, etc?

Update: Todd Zywicki at the VC has posted an detailed response to my question. Note several of the comments, including the article which TZ refereneces at the bottom. Another particularly good point is that Corp debt is largely a function of tax breaks, not at issue in government borrowing. However, I disagree with the comment that corp debt would not exist without such incentive. Clearly some startups and seasoned firms would still take on debt, so that the principals of the company wouldn't have to share their equity at every step of the road in corporate America.

Al-Qaeda Attacks Since 1998

2005-07-12T12:42:00.000-05:00

Winds of Change has put together a Flash presentation of all of Al-Qaeda's attacks around the world since they declared war in 1998. The link to the presentation can be found here.

Michael McConnell as Nominee

2005-07-12T11:46:00.000-05:00

Judge McConnell (10th Cir.) is my favorite candidate to replace O'Connor from the last weeks. He is most famed in my mind for arguing for the Boy Scouts in the Dale case before the Court a few years ago. That 5-4 decision that the Boy Scouts could exclude a gay scoutmaster, in my opinion is one of the most significant Supreme Court decisions protecting liberty of the Rehnquist court. (Like top 3 most important.)

This is an excerpt from McConnell's confirmation testimony in 2002 when he was nominated to the 10th Cir. I don't think he is perfect, but well-reasoned at least. He is the one Pres. Bush should be considering to survive the storm if Rehnquist does not retire before he has to get SDOC's successor appointed.

What's Cookin' at the Corner?

2005-07-11T16:25:00.000-05:00

Did Karl Rove really "out" an undercover CIA agent? I don't think John Podhoretz over at the Corner on National Review thinks so. This is what he wrote about an hour ago:

Two years ago Joseph C. Wilson IV had a bio available online in which he mentioned his wife Valerie Plame's name. The bio has vanished. If anyone perchance saved it or a screenshot of it and can e-mail it to me, I'd be grateful. (PS: It's now 4:15 pm EDT. If you don't do it by 4:30, don't bother.)

Twenty-five minutes later, he wrote:

Thanks, everybody, for the multiple copies of his bio. Check out the NYPost tomorrow for my use of it...

This is obviously an indication that even if Rove did leak Plame's name to Matt Cooper, the question remains whether he "revealed" the name of an undercover CIA agent. This should make for quite an interesting developing story...

UPDATE: The bio that names Plame as Wilson's wife can be found here.

At Stake

2005-07-08T09:37:00.000-05:00

Orin Kerr of the VC tells you what it is:

The Future of the Supreme Court
July 7, 2005
The Washington [Post/Times]

The retirement of Sandra Day O'Connor presents a major opportunity for President George W. Bush. It is essential to our Nation that he choose her replacement wisely. Although nominated by Ronald Reagan, Justice O'Connor turned out to be surprisingly [enlightened/unprincipled]. Her jurisprudence was [pragmatic/random], which tended to frustrate [conservative wingnuts/believers in a written Constitution]. While Justices Scalia and Thomas voted to [turn back the clock/ follow the Constitution], Justice O'Connor frequently voted in a way that was quite [reasonable/result-oriented]. News reports speculate that President Bush may nominate Attorney General Alberto Gonzales, Jr. to replace Justice O'Connor. If so, it will be a major [relief/disappointment]. While Gonzales has a proven record of loyalty to the President, he does not appear to be a [nut/conservative]. He [may not/ may] vote the right way in many cases, but [he is as good a nominee as we're likely to get/ I doubt it]. Other individuals often named as possible nominees to replace Justice O'Connor are much [worse/better]. Nominating an [extreme/actual] conservative like J. Michael Luttig would signal to all Americans that the Constitution is [on life support/back]. The conservative base has made its position loud and clear: it wants Bush to nominate a strong conservative to the Supreme Court. He should [ignore/listen to] them. The stakes are too high to do otherwise. The fate of our Constitution, and our Nation, hangs in the balance.

SDOC and Religion

2005-07-07T16:09:00.000-05:00

I know little about this law professor from the U of Toledo. However, his Religion Clause blog provides a summary of Justice O'Connor's religion decisions. Interestingly, she has authored a majority opinion only twice during her tenure (a third time she wrote a plurality opinion). He links to every opinion she has written. (The ones I viewed were in Findlaw or some other free, publicly available internet tool). For that reason, his blog is quite a convenient resource.

[Don't confuse Prof. Howard Friedman with Howard Friedman law firm in Boston. Any takers?? "A lawfirm concentrating in civil rights and police misconduct litigation."]

Prof. Volokh defines "Enemy Combatants"

2005-07-07T15:13:00.000-05:00

The following shot from the hip is rather persuasive, though admittedly narrow in its scope. Before reading the essay, I can suggest that what is missing from the analysis is the desiribility of sacrificing liberties (the liberty interest of the un-proven enemy combatant). More specifically, I would say the liberty interest of the U.S. citizen who is un-proven to be an enemy combatant.
----------------------------------------------------------------------------------

The purpose of detaining enemy combatants is prevention. An enemy soldier wants to kill our or our allies' soldiers (and often civilians). We normally stop that by killing him. But when he surrenders, we prefer not to kill him: Killing the enemy generally isn't our goal, but just the means to the end of protecting ourselves and our allies — and if we can serve that end by locking a captured enemy soldier up instead of killing him, we do that (and are required to do that by the laws of war).

The thing that makes this logic work, however, is our ability to keep the man locked up. When we release him, he can go right back to killing our soldiers. What's more, it seems quite likely that he will: If he tried to fight us once, why wouldn't he do that again? We release ordinary criminals after some time chiefly because we hope that the term in prison has deterred them from repeating their crimes. But someone who obviously isn't deterred by the risk of being killed (the high risk, when you're a small force fighting the U.S. military) isn't going to be deterred by the risk of repeat incarceration.

Thus, we have three options: (1) Kill them on the battlefield, and protect our and our allies' soldiers and civilians. (2) Lock them up until we feel confident that the war is pretty much over (which indeed could be decades), and protect our and our allies' soldiers and civilians. (3) Or in a fit of misguided mercy — misguided because it is mercy to the bad that ends up hurting the good — let them out and allow them to again kill our and our allies' soldiers and civilians. Option 3 strikes me as deeply unsound, and not required either by justice or by international law.

Last Post

2005-07-07T13:22:00.000-05:00

"Surely today's bombing must reveal that the terrorists of today's world cannot be persuaded through world political accords and other placatory measures (read the London Mayor's quote below)."

First, I don't know what part of the excerpt of the mayor's quote addresses persuasion of terrorists through world political accords and other placatory measures.

Second, I doubt dealing with the terrorists with all our might would "persuade" them either. Though that approach may ultimately prove to be the most effective one, engaging the terrorists in military actions certainly will not stop them from attempting to recruit future generations of West-haters.

The "War on Terror," by definition, is unwinnable. However, what can be done to "fight" terror is to contain it, and it remains to be seen what the best means doing this is.

Further thought on London Bombings

2005-07-07T11:36:00.000-05:00

The knee jerk reaction would suggest that the people of the UK, already skeptical of the War in Iraq (according to polls by the news media), will further resent Blair and the U.S. I think that another response is well merited. And I predict at least a good chance that this could cause a unified European response that even 9/11 failed to elicit.

Only time will tell. Undoubtedly Europe is as angry about this bombing as I am. Surely today's bombing must reveal that the terrorists of today's world cannot be persuaded through world political accords and other placatory measures (read the London Mayor's quote below).

[Update: My colleague above makes a quasi-legitimate point. I think the mayor's quote is a good framing of the issue (though does not state the issue explicitly). Our enemy is elusive, fights un-conventionally, is difficult to identify, and has a short-term goal that we cannot prevent--the obliteration of lives in free societies. The issue is indeed, how to contain this enemy.

No doubt the most powerful nations of the world will win this fight. Clearly terrorists are expendable. Although there may be potential myriads willing to be terrorists, as the U.S. remains, and as terrorists continue to die without making a dent in any real sense to their "mission," this movement will lose steam. But I would prefer that it is much sooner, rather than later. To this end, I believe the War for Iraq may be more than illusory. I think the message is: even in a hostile land, where millions had been programmed their whole lives to hate the U.S., we can invade, we can overthrow your leader (an interantional criminal) and we can fight your terrorists to the point of compliance.

I doubt any of this makes me eligible to run for office anytime soon. ]

The U.S. Patriot Act has been much maligned as 9/11 has become increasingly remote in time. I don't recall stiff opposition to the Patriot Act when ratified [Update: the Act passed 98-1 (Russ Feingold, D-WI as the lone dissent) in the Senate, and 357-66 in the House]. Yet when this happens, the trump card is shown and (I predict) most of the meaningful debate comes to an end.

London Transit Bombings

2005-07-07T11:34:00.000-05:00

London Mayor Ken Livingstone said: "I want to say one thing, specifically to the world today — this was not a terrorist attack against the mighty and the powerful, it was not aimed at presidents or prime ministers, it was aimed at ordinary, working-class Londoners, black and white, Muslim and Christian ... young and old … that isn't an ideology, it isn't even a perverted fate, it is an indiscriminate attempt at mass murder."

"I know that you personally do not fear to give your own life in exchange to taking others ... but I know you do fear you may fail in your long-term objective to destroy our free society ... in the days that follow, look at our airports, look at our seaports and look at our railway stations ... you will see that people from the rest of Britain, people from around the world, will arrive in London to become Londoners, to fulfill their dream and achieve their potential … whatever you do, however many you kill, you will fail."

--Fox News for the quote