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August 31, 2006

Friday Night Law Review Fights

was going to post something quasi-lengthy about the head-turningly nasty exchanges between Yale lawprof Jed Rubenfeld and Minnesota lawprof Michael Stokes Paulsen in the most recent issue of the Yale Law Journal, but I see that Paul Horwitz and his commenters already said much of what I planned to say.

In the issue, Paulsen (very) negatively and (quite) snarkily reviews (pdf file) Rubenfeld's new-ish book presenting his (Rubenfeld's) own personal Unified Field Theory of Constitutional Interpretation, and Rubenfeld responds (pdf file), shall we say, ungraciously. The very first sentence of Rubenfeld's response: "I do not know Michael Stokes Paulsen or his writings."

SNAP!

A very intense line -- delivered, it must be assumed, entirely for effect, since it turns out not to be true.

The blogosphere has nothing on academia at its nastiest.

UPDATE: Welcome, visitors from Instapundit. I've been blogging about music most recently; my guest-blogger Shertaugh has been blogging about politics (here, here, and here, too). Make yourselves comfortable!

Posted by Eric at 7:55 PM | Comments (3)

"The Thought That Life Could Be Better Is Woven Indelibly Deep In Our Hearts And Our Brains."

y enchantment with Paul Simon's "Surprise" continues. Right now the song that has got me is "Another Galaxy." In some respects it's a fairly ordinary song thematically, about a woman who runs away the morning of her wedding in the belief that there's a better life somewhere else. But what makes it more than ordinary is the fact that this is a theme Simon has pursued before, and very movingly, both in lyrics and in music.

I'm thinking of two songs from the stunning "Hearts and Bones" album of 1983: the title track and "Train in the Distance." "Train" is about (in the words of the other song, "Hearts and Bones") "the arc of a love affair" -- a marriage that begins happily but soon falls apart as the spouses hear and follow "the sound of the train in the distance" and "think it's true" -- that sound being the refrain "that life could be better" somewhere else, in some other situation or relationship. "Hearts and Bones" is another achingly beautiful song about a failed marriage, but what reminds me of the current tune "Another Galaxy" is the music and the arrangement: "Another Galaxy" has nearly the same tapping percussion and nearly the same swirling triplet acoustic guitar figures adorning the main line of the song as does "Hearts and Bones," and the mood is very similar. It's as though Simon is directly quoting himself.

In one way, i's a bit surprising to see Simon, now (and for over a decade) in a happy marriage with Edie Brickell, still exploring the same theme about whether to trust the siren song of an imagined better life somewhere else. In another, I guess it's just a very human theme, maybe a timeless one, and therefore not suprising to see him still exploring.

Posted by Eric at 3:50 PM

Former Navy Secretary John Lehman Said What?

n a column in today's Washington Post, John Lehman -- Navy Secretary during the Reagan administration -- offered this assessment of the GWOT:

even the most sanguine optimist cannot yet conclude that we are winning or that we can win without some significant changes of policy.

But in reaching this conclusion, the former Secretary made a few claims that, frankly, left me scratching my head.

First, in discussing the home front, he said:

The Bush administration deserves much credit for the fact that, despite determined efforts to carry them out, there have been no successful Islamist attacks within the United States since Sept. 11, 2001. This is a significant achievement, but there are growing dangers and continuing vulnerabilities.

Perhaps I missed them, but what were these "determined efforts" to attack the U.S. since 9/11? Padilla, the dirty bomber? The Miami 7? This administration's track record is to turn Attorney General Gonzalez into a mockingbird for the cameras when the slightest whiff of domestic terror is in the air.

There were no successful Islamist attacks in the U.S. from February 1993 until 9/11/01 -- which covered most of Clinton's presidency? Are we seeing a pattern here suggesting Al Qaeda is quite selective? Or mabye, as has been suggested, Al Qaeda is not nearly the domestic threat the administration has made it out to be?

Another comment by Lehman that left confused was this:

One of the most deep-seated of these problems is the U.S. government's tendency to treat this war as a law enforcement issue.

I was under the distinct impression from this administration that the way to fight terror is to send 150,000 American troops to Iraq so we can "fight 'em there" and "not over here." The projection of American military stength has been a constant since 9/11.

Finally, Lehman said this about nuclear weapons:

The greatest terrorist threat on the home front is, of course, the use of weapons of mass destruction by Islamists. Here the president has moved to establish a national counter-proliferation center to share and act on intelligence, and he has recently initiated a cooperation agreement with Russia and our allies to work together in preventing nuclear materials from getting into the hands of the Islamists and to undertake joint crisis management if such an attack takes place. These are real accomplishments.

Okay. That was nice. But the Bush administration's record on nuclear proliferation is a dismal failure. Look at Iran. Look at North Korea. Look at Pakistan and India -- friends today to be sure, but the key word is "today." The president's policy of not negotiating with "evil people" really hasn't worked out well in the area of nuclear weapons.

To be clear, I fully concur with Lehman's bottom line: We are winning nothing nor will we with this administration in charge. (On the other hand, you can be sure that, as a country, we will continue driving the wrong way on this one-way street; otherwise, someone might call the president a flip-flopper: "He made awful policy choices before he made good ones.") I just found some of his arguments along the way too be curiously generous to the Decider.

Update: Thank you, Mr. Turtle, for catching the typo "February 2003" -- which should have read, and now does, "February 1993".

Posted by shertaugh at 3:02 PM | Comments (5)

Who Says the President Doesn't Know Irony?

he administration has settled (for now) on calling its efforts in the GWOT a fight against Fascism. Helpfully, the administration's media outlets are right in step.

This new meme seems more than a bit ironic. Since 9/11, we've heard the president say over and over how the GWOT involves cells of stateless actors. Hence, the Bill of Rights, traditional law-enforcement techniques (like the kind that led to the capture of the British wannabe plane bombers), and the Geneva Convention are obsolete.

But now, the administration invokes the long, dark shadow of Facism -- a political system that concerns the operation of a country. Merriam-Websters defines "fascism" this way:

a political philosophy, movement, or regime (as that of the Fascisti) that exalts nation and often race above the individual and that stands for a centralized autocratic government headed by a dictatorial leader . . . .

Got that? A movement that exalts "nation" above the individual. See the connection now to those Al Qaeda cells?

More likely, "Fascism" is the meme-du-jour because it conjures up fearful images for older people who lived through or at least know about WWII -- where Fascism posed a real threat of world domination. And being older, these people are more likely to vote. It's still all about the "fear card" for this president.

Posted by shertaugh at 12:28 PM | Comments (6)

August 30, 2006

Return from Casablanca

was watching Casablanca last night. Rick Blaine -- the cafe owner played by Humphrey Bogart, of course -- was an American expatriot living in Morocco during WWII, when Morocco was a French protectorate. As the movie shows, the Nazis -- by then at war with the U.S. -- were welcomed visitors. So it occured to me, after watching Rick shoot Major Strasser so that Victor and Ilsa could escape to Portugal -- in effect, rejoining "the fight" against fascism, as Victor said -- what would happen if Rick wanted to return to the United States?

Fast forward to 2006. Rick would be coming here from a country brimming with people allied with our enemies. Like the two American citizens in Pakistan who won't submit to an FBI interview. Would it be enough for Rick to show his American passport -- which seems to be all federal law requires? Or would the unitary Executive deny Rick his 5th Amendment liberty interest as an American citizen to travel abroad and return home unless he first waived his 5th Amendment right to remain silent as a condition for reentry? Does "national security" outweigh Rick's 5th Amendment liberty interest and privilege against self-incrimination? Does the unitary Executive have the plenary power to exclude American citizens from America? What if a citizen with a valid passport won't answer the FBI's questions at the border? Do we, as Americans, now forfeit our 5th Amendment rights when cross the border into a foreign country -- because during the height of the Cold War, I don't think that was true? If American citizens with valid passports can be denied reentry on "national security" grounds for refusing to answer the FBI's questions, then isn't every protection guaranteed by the Bill of Rights now outweighed by "national security" when a citizen refuses to answer questions? It seems to me, the fact that questioning occurs at the border makes no difference -- because questioning a citizen implicates 5th Amendment concerns while a "border search" implicates the Fourth Amendment.

But this seems to me to be exactly what the Bush Administration contends. All the world's a battlefield. So the Bill of Rights must yeild to the unitary Executive's on-the-spot decision that a citizen must answer questions or, in the interests of national security, lose his liberty -- and end up in one of those detention camps being built by Halliburton.

Update: Commenter David Cohen helpfully points out that the events depicted in the movie take place during the first week of December 1941. In my "fast forward" scenario, I don't know that it would change Rick's border experience.

Posted by shertaugh at 8:49 PM | Comments (3)

Oman? Oh, man!

hink you know northern African and Middle Eastern geography?

You sure?

(Thanks to my brother David, who knows this stuff cold, for the pointer.)

Posted by Eric at 1:45 PM | Comments (5)

Shertaugh: He's "Fun!"

lease join me in welcoming Shertaugh to IsThatLegal as a guest-blogger. Shertaugh is a lawyer, and will blog about all manner of things, including law, politics, sports, and life.

Posted by Eric at 12:26 PM

JonBenet and Our Unbelievable Media

y old friend, public relations expert Dick Lavinthal, is making all kinds of sense about the recent JonBenet Ramsey debacle.

Dick also blogs at prPROpinion. Check him out.

Posted by Eric at 9:23 AM | Comments (1)

August 29, 2006

Creepy.

avid Bernstein's use (and, in the comments, defense) of the word "creepy" to describe the decision of some traumatized Holocaust survivors to leave Judaism behind and conceal their Jewish past from their children reveals, in my view, a tin ear for the diversity of human reactions to that unspeakable trauma.

If some Holocaust survivors became convinced that their faith had brought them the worst suffering imaginable, and decided it was best and safest to try to give their children a life without the risks associated in their minds with being Jewish, I do not find that "creepy."

Very, very sad -- yes. But "creepy?" Not at all.

Posted by Eric at 1:24 PM | Comments (3)

August 28, 2006

A Suprise From Paul Simon.

am loving Paul Simon's new album, Surprise.

It's a collaboration with Brian Eno, and you can hear it. There is a shimmering quality to the sound and an occasional intrusion of faintly discordant guitar that I hear as pure Eno. It works well for Simon, giving his sound a crispness and an edge.

The songwriting is vintage Simon -- lyrically and musically. The lyrics stand as poetry in their own right. (I'm thinking especially of "Everything About It Is A Love Song" and "Wartime Prayers.") And the music -- well, nobody can blend joy and wistfulness like Paul Simon. Even -- maybe especially -- a bouncy love tune like "Father and Daughter." Just about any songwriter would resolve the verses and the chorus on the song's bright major tonic chord; Simon beautifully leavens the feeling of the song with sadness by resolving it to the relative minor. Poignant and unexpected.

"Surprise" is fresh, vibrant songwriting and performance. Give it a listen. (You can hear the tunes by clicking on each of them here.)

Posted by Eric at 12:47 PM | Comments (1)

August 27, 2006

Woof.

t has been a while since I've posted a picture of this blog's mascot.

Taken this afternoon by my daughter Nina.

Posted by Eric at 9:14 PM

August 26, 2006

I don't have anything to hide. Do I?

ho is the NSA watching? That seems like a far more central question than the quality of the opinion enjoining the NSA eavesdropping program exposed by the NY Times. Roberto Lovato, after examining FBI records disclosing the surveillance of a friend of his, a Catholic priest active in the 1980's in seeking a peaceful solution to the strife that then eveloped El Salvador, wonders:

Thanks to the expansion of the definitions of “terrorist” and “terrorist sympathizer” under the Patriot Act and other post-9-11 statutes and thanks to the exponential growth of the means that government agencies like the Pentagon can spy on Americans, the number of people who can be spied on has grown dramatically.
The release of the surveillance memos makes me wonder not if but how, the FBI and the Pentagon are spying on those who have joined in the massive immigration marches. Just last week, documents released by the Pentagon revealed that it had been spying on gay and lesbian groups opposed to the “don’t ask, don’t tell” policy. Millions marching for immigrants’ rights must be among the more than 200 million whose phone records were given to the NSA by AT&T, Bell South and Verizon.
It’s especially disturbing to hear these ongoing exposés just before Defense Secretary Donald Rumsfeld, who spends most of the $45 billion authorized by Congress for intelligence on the greatest expansion of the Pentagon’s foreign and domestic spying capabilities in history, said last Thursday, “I’m not in the intelligence business,” in response to questions asked by protester and former CIA agent, Ray McGovern.

Posted by Peter at 3:59 PM

Our Nation Turns Its Lonely Eyes To Jew. (Woo Woo Woo.)

his otherwise excellent article inexplicably fails to mention Joe Shlabotnik.

Posted by Eric at 9:06 AM | Comments (2)

August 25, 2006

Can You Hear Me Now? In Alaska, Yes. In Chapel Hill, Not So Much.

an somebody please explain to me why I had outstanding cellphone service all over Southeastern and Southern Alaska, including at this old goldmine three miles up a canyon outside of Girdwood and in remote Kachemak Bay State Park, while here in Chapel Hill, NC, Cingular routinely drops calls that I make from on an interstate highway (not to mention all over town on local roads)?

Posted by Eric at 12:09 PM | Comments (7)

One Of These Things Is Not Like The Other.

inally, a break in the Deshaun Wiliamson murder case!

You know, the eight-year-old unsolved murder of a twenty-two-month-old child in Durham, NC?

Surely you've heard of the Deshaun Williamson case?

You haven't?

Strange, that.

Posted by Eric at 10:18 AM | Comments (1)

Macho and Meta-Macho

portswriter Bob Klapisch on Joe Torre's "getting emotional" the other night after his Yankees swept the Sox:

The manager shook hands with his players, patted them on the back, thanked them for essentially ending the race in the AL East. These were the first Yankees since 1951 to sweep the Red Sox in a five-game series, and now Torre's eyes were moistening.

The manager said he was "emotional" after Monday's 2-1 win over Boston, which is what grown men say when they're close to tears.

Note that Klapisch reported that Torre was "close to tears," which is apparently what grown sportswriters say when they mean "crying."

Posted by Eric at 12:18 AM | Comments (2)

August 23, 2006

Judge Taylor is such a bad writer, don't you think?

'm sick of reading criticisms of Judge Taylor's decision enjoining the NSA electronic intercept program as poorly written and reasoned: "What we can judge is the end product, and in this case, the end product is not very good." The problem is that the writing and the reasoning is not the end product--the decision (the order itself as a judicial act), as any lawyer understands, is. Thus, I don't understand at all criticisms of Judge Taylor written by law professors that don't even mention the merits. The real question is whether the Bush Admiinistration has the legal authority to implement such a program, and regardless of the quality of Judge Taylor's writing and reasoning, her decision will be upheld if (as seems quite likely) there is no such legal authority.

Posted by Peter at 10:40 AM | Comments (11)

August 21, 2006

Do people really believe liberals would stop spying on terrorists?

his is remarkable to me in many ways, though not in the way most commenters took my post last week asking whether Bush is merely inarticulate or stupid. What I find more remarkable than the real answer is the way right-wingers are beginning to turn on Bush. Bush’s defender is reduced to saying: "We’d stop spying on the terrorists if the Democrats are elected." Do people honestly believe that? I suppose they do.

Posted by Peter at 11:29 PM | Comments (2)

Is Michael Chertoff looking to what he'll do next?

ric worked for Michael Chertoff and has described him as "probably one of the 2 or 3 smartest people I have ever known." Writing yesteday about Chertoff, Frank Rich pointed out that

When [Chertoff] said last weekend that the foiling of the London plot revealed a Qaeda in disarray because 'it's been five years since they've been capable of putting together something of this sort,' he didn't seem to realize that he was flatly contradicting the Ashcroft-Gonzales claims for the gravity of all the Qaeda plots they've boasted of stopping in those five years. As recently as last October, Mr. Bush himself announced a list of 10 grisly foiled plots, including one he later described as a Qaeda plan 'already set in motion' to fly a hijacked plane 'into the tallest building on the West Coast.'

As Eric had also written previously, though Chertoff might be smart, his experience is as a lawyer in law enforcement. As he showed one year ago, he doesn't know much about disaster relief. Apparently, he's no "soldier" in the "War on Terror" either. One problem the Bush Administration might have with Chertof, of course, is that successful law enforcement is something they've been downplaying as part of the "War on Terror." That Chertoff might be speaking more for his own benefit rather than in harmony with the Administration's talking points might be good for the country, but it may also mean he is looking to come out of the Administration with some of his reputation intact. I never did quite understand why a guy would give up a lifetime appointment to the U.S. Court of Appeals to be head of the Department of Homeland Security.

Posted by Peter at 11:18 AM

August 16, 2006

U.S. Official Secrets Act?

y colleague Jon Adler, with whom I don't always (often?) see eye to eye, is posting frequently over at Volokh on the recent ruling that journalists can be prosecuted for reporting on leaked classified information.

Posted by Peter at 7:57 PM

Merely inarticulate or stupid?

ohn Fund says that George Bush "is inarticulate but not stupid." But, as I always try to convey to my students, and as David Foster Wallace would have it, it really doesn't matter if you aren't stupid; if you don't sound smart to the people to whom you are speaking, they're going to think you're stupid. Of course, there's also the school of thought that actions speak louder than words.

Posted by Peter at 7:05 PM | Comments (4)

Can't these guys do anything well?

rom today's Washington Post: "Problems with elections in Ohio's most populous county are so severe that it's unlikely they can be completely fixed by November, or even by the 2008 presidential election, a report commissioned by Cuyahoga County and released Tuesday says." According to the Cleveland Plain Dealer, "In more than 75 percent of the machines examined, the paper record did not match the votes recorded on the memory chips or the memory cards. In more than a third of the machines, the difference was greater than 25 votes." Under Ohio law, the "official ballot" is the paper record that the voting machines are supposed to produce; without them, a manual recount would be impossible and/or meaningless.

I don't know where to begin. If we can't run reliable and transparent elections, how the hell are we ever going to give Baghdad electricity 24/7, much less "transform" the Middle East?

When I served as a "designated challenger" for the Democratic Party in November 2004, my Republican counterpart argued to me that there should not be federal election standards--that we're all better off with each state setting its own standards. I just don't get this argument at all. I understand the "states as laboratories" concept that underlies one line of reasoning against federal uniformity, but the problem isn't a lack of innovation; it's a lack of non-partisan standards and enforcement. Do you hear that, Ken Blackwell?

Posted by Peter at 1:59 PM

August 15, 2006

The Reality-based community strikes back.

eorge Will (!?) writes today to oject strenuously to the Administration's refusal to acknowledge that our security is better protected by police and intelligence work than it is by war-making. He describes an Administration official's contention that the "law eforcement approach doesn't work" as "rhetoric" that "reflects the intellectual contortions required to sustain the illusion that the war in Iraq is central to the war on terrorism, and that the war, unlike 'the law enforcement approach,' does 'work.'"

Posted by Peter at 3:31 PM

In vino veritas?

e've heard a lot in connection with Mel Gibson lately that in vino veritas. Gavin de Becker reminds us of the obvious: drunken outbursts often aren't truth tellings, and humility counsels forgiveness.

Posted by Peter at 2:08 PM | Comments (5)

August 14, 2006

Is it "war"? (part 2)

he New York Times yesterday featured a story on the debate about whether the "War on Terrorism" is in fact best described as a "war." The crux of the piece is the question whether, to the extent we've treated it as a war, "this strategy created greater danger by providing terror groups with exactly what they crave: the sense that they are a unified army of jihadists?" When I raised this question-is it a war?--on Friday, I had in mind that the asymmetries of conflict wtih terrorists make what's been derided as "mere police work" a more effective tool against terrorists than the sheer violent force of war-making. Of course the Dick Cheney view, the same view I've heard far too often from supporters of Israel's right wing over the years, is that "these people" only understand force: “You’ll see case after case of terrorists hitting America or American targets — and America failing to hit back hard enough.” What I want to know from the Israelis is whether they're better off after 30 years of hitting back hard? It's as if some people think that if we only hit those Arabs hard enough, they'll submit, as if they're more like dogs than the free and independent homo sapiens we are.

Another point raised by the Administration's intellectual supporters that has puzzled me is that this conflict with "Islamic Fascists" is somehow more dire than the Cold War. (Joe Lieberman, yesterday: "the evil of the enemy that faces us . . . . [is] probably more dangerous than the Soviet Communists we fought during the long cold war.”) I remember sitting in on a mock senatorial hearing on the NSA Wiretappying Controversy at my law school during which Ruth Wedgewood, tesitifying on behalf of the Bush Adminnistration, explained that during the Cold War we were secure, thanks to Mutually Assured Destruction, in ways we are no longer. I don't know about those others of you who lived through much of that period, but I remember it as terrifying. My parents--optimistic and fearless types with 4 young kids--were terrified the Cuban Missile Crisis was going to erupt into total nuclear war. I grew up with one recurrent nightmare--planes overhead dropping the bombs I knew signalled total nuclear holocaust. Do you remember The Day After? The Soviet Union had the capacity to destroy the United States. The "Islamic Fascists" don't. I'm not saying they can't cause monumental and horrific harm, but let's keep our facts straight. Another twist on arguing the current situation is worse than the Cold War is that "Islamic Fascists" are irrational--driven by a faith that would welcome mass martyrdom--whereas the Soviets were rational. It's another version of: we felt safer then. But I don't think we did.

Posted by Peter at 10:32 AM | Comments (5)

August 11, 2006

Isn't the fight against "Islamic Fascists" police work?

aybe you want to cite it as an example of successful right-wing "framing," but I've always wondered why it's so commonplace to assume that terrorism is not a criminal justice problem. John Tirman writes that what stopped the London-based plot to destroy ten civilian airplanes was "law enforcement. Law enforcement. Not a military invasion of Pakistan, Iran, Lebanon, Egypt, or Iraq. Old-fashioned surveillance, development of human sources, putting pieces together, and cooperation with foreign police and intelligence services." Part of what reinforces the thought that the "war on terror" cannot be fought through the criminal justice system is the even more profound acceptance that what 9/11 provoked is entirely a "war." Iraq is a war. Afghanistan is a war. Busting a terrorist plot in Britain is police work.

Posted by Peter at 9:04 AM | Comments (4)

Races and Places

ESOLVED: Calling Dearborn, Michigan "Dearbornistan" is morally no better than calling New York ''Hymietown'' or New Orleans "the chocolate city."

Discuss.

Posted by Eric at 6:21 AM | Comments (3)

August 10, 2006

Regarding Eric

ric’s introduction is too kind, but I am very grateful for the opportunity to be here. I teach legal rhetoric (better known as legal writing , but that’s an issue for another day), so my 1st concern is to get a sense of Eric’s audience. My own experience (perhaps not worth much given my usual scant audience) is that the strongest reader reaction arises when I write something personal. Well, not necessarily personal—I don’t trade in the sort of autobiographical minutae others (with large audiences) do—but I have provoked particularly strong feedback when I’ve written about friends and relatives.

So until I get a better sense of what all of you out there are interested in, my natural opening topic is what we already have in common: Eric.

I am honored to be Eric's “old friend. (When, Eric, did we get old enough to have old friends?) As he mentioned, we worked together in a law firm in NYC. It was Eric’s first few years of practice. I was 3 years ahead of him, and I like to think I had some positive influence on his development as a lawyer. Regardless, he has long since surpassed me. It was plain early on he would. His brilliance was obvious. What really set him apart, however, was an intellectual hunger for the strongest possible evidence and logic supporting any given point we were advocating. He is, as with the greatest of stars, someone who makes everyone around him better, in part by pushing them by example. That he is also as kind and calm a colleague as you’ll find helps a lot too. Perhaps my only serious reservation about him is his taste in New Jersey bands. I’m a Yo La Tengo guy myself.

Posted by Peter at 11:36 PM | Comments (1)

Guest-Blogger: Peter Friedman

or the next couple of weeks, my old friend Peter Friedman will be your guest-blogger here at IsThatLegal. Peter is on the faculty at the Case School of Law at Case Western Reserve University in Cleveland. We've walked similar paths: we're both grads of Brown University, we both worked at the same New York law firm more years ago than we care to admit, and now we're both in law teaching.

Peter regularly blogs at Rawblog. I've given him the run of the place, and told him to follow the motto of Outback Steakhouse: No Rules.

But of one thing I'm certain: Peter will be very interesting! And he'll be checking comments too, so ... give him a piece of your mind from time to time.

Posted by Eric at 4:45 PM | TrackBack

August 9, 2006

Catch A Rising Star.

un -- don't walk -- over to Sally Greene's blog, where you'll find John Moye guest-blogging for the next couple of weeks.

It'll be worth repeated visits. Trust me.

Posted by Eric at 10:28 PM | TrackBack

Rolling the Moon

great photo:

(image from SpaceWeather.com.)

Posted by Eric at 9:57 AM | TrackBack

August 8, 2006

fiftysomething, by now

V experts, riddle me this:

Why has there been no thirtysomething reunion?

I want a thirtysomething reunion!

Have Hope and Michael stayed together?

Where did Janey go to college?

Has D.A.A. made a comeback?

Did Nancy's cancer ever recur?

Has Melissa gotten her hair together yet?

So many questions.

Posted by Eric at 7:03 PM | Comments (3) | TrackBack

August 7, 2006

The Photoshop That Kept Us From Winning The Vietnam War.

ichelle Malkin and Little Green Footballs are right. MSM photographers really do hate freedom.

The staff here at IsThatLegal spent the weekend pouring over the archived images of Pulitzer-prize winning AP photographer Nick Ut and discovered this original, unretouched image:

Nixon was closer to right than he realized.

Posted by Eric at 8:47 AM | Comments (19) | TrackBack

August 5, 2006

Prosecutorial Insubordination? Prosecutorial Conscience? Something Else?

ere's an intersting hypothetical, for those of you who like to think about lawyering and the role of the prosecutor:

In a jurisdiction with a three-strikes-and-you're-out provision in felony cases, a defendant is charged with petty theft, a non-violent felony. The defendant has several prior offenses for violent felonies. Under the policy of the prosecutor's office at the time the case is initiated, the new petty theft charge can qualify as a third strike, opening the defendant to a sentence of 25 years to life. So that's how the staff prosecutor charges the case: felony petty theft, with the earlier violent felonies counting as the additional "strikes" to invoke the three-strikes law.

But then the prosecutor's office changes its policy. Now, if the currently charged felony is not a violent felony, the case is presumptively a second (not a third) strike, even if the prior felonies were violent. (The idea, it seems, is that if a person is going to go away under a 3-strikes law, his third strike ought to be a violent felony. This defendant's isn't.)

The defendant moves to dismiss the felonies that would serve as the prior strikes, in order to remove the threat of the three-strikes law from the case. This means that the trial judge now has the discretion to dismiss those priors if he or she finds it appropriate to do so.

The staff prosecutor who is handling the case believes that the defendant is dangerous, so he writes a memorandum to his supervisor arguing that notwithstanding the change in the office policy, the office should oppose the defendant's motion and seek to hang on to the prior offenses so that the three-strikes law can be applied and the defendant can be sent away for 25-to-life.

The supervisor, who is the final authority in the prosecutor's office for such decisions, rejects the staff prosecutor's position. He decides that under the office's policy, the staff prosecutor should move to dismiss the prior offenses.

The staff prosecutor appears at the hearing and reports that he has been instructed to move to dismiss the prior offenses. However, he then volunteers this:

"It is a decision that I will just say not as a representative of the People but just because I have a First Amendment right to say what I want to say that I disagree with this position, but I am not saying that as a representative of the People. And the office's position is that we are moving to [dismiss the prior offenses]."

He also volunteers this:

"I want it to be clear that our position is that we are making this motion to [dismiss the prior offenses] .... And for my own conscience and peace of mind, I'm going to give my personal opinion as to what I think the appropriate sentence is, but not as someone representing the People but just as somebody exercising free speech rights."

Having said that, the staff prosecutor then calls as witnesses the victims of the very prior offenses that he has been instructed to move to dismiss, to give the court a "full picture" of the defendant. Finally, after calling those witnesses and opining that the defendant posed a "great danger to society," the staff prosecutor dutifully moves to dismiss the prior offenses, saying that he has been instructed to do so by his superior.

The trial judge denies the motion to dismiss the prior offenses, thereby keeping the three-strikes law in operation. When the defendant is convicted of the petty theft, the judge sentences the defendant to 25-to-life.

The question: Did the staff prosecutor act properly in this case? Does a staff prosecutor have a "First Amendment right" to argue his own personal position about a case in court when it conflicts with the position his office has instructed him to take? Can a prosecutor appearing in court as the lawyer for the government offer his "personal opinion" about the appropriate sentence in a criminal case, in his "personal" capacity and on the basis of his conscience?

Thoughts?

UPDATE: Query -- would you reactions be the same if the staff prosecutor had been directed to seek the three-strikes priors, but he had instead moved to dismiss them because he thought the defendant did not deserve a sentence as harsh as 25 to life? Same case? Or different?

Posted by Eric at 12:12 PM | Comments (11) | TrackBack

August 4, 2006

Freedom Is On The March!

housands of Iraqis Rally for Hezbollah.

From the linked article:

Angry protesters chanted slogans, burned Israeli flags and waved Lebanese and Hezbollah flags in the Iraqi capital's densely populated Shiite enclave of Sadr City. They also held up placards with the portrait of Hassan Nasrallah, head of Hezbollah.

Now you must excuse me. I have a very, very bad headache.

Posted by Eric at 10:28 AM | Comments (1) | TrackBack

An Interesting Sixth Circuit Case On Inconsistent Criminal Jury Verdicts

onsider this hypothetical:

Two men are suspected of involvement in a murder-for-hire scheme; one (let's call him "Hiram") is alleged to be the guy who did the hiring and the other (let's call him "Gunn") is alleged to be the paid triggerman.

Both are tried for capital murder, but separately (that is, to different juries). Hiram is tried first. His jury convicts him of aggravated murder, but after a sentencing hearing in which the government submitts murder-for-hire as an aggravating factor warranting the death penalty, the jury sentences Hiram to life, finding the murder-for-hire factor not to have been proven.

Gunn is tried second. He too is convicted of aggravated murder, but his jury finds the murder-for-hire factor to have been proven, and sentences him to death.

Gunn appeals his conviction and death sentence, contending that the inconsistency between his death sentence (on the strength of a murder-for-hire theory) and Hiram's life sentence (on the basis of a rejected murder-for-hire theory) renders his conviction and death sentence unconstitutionally arbitrary and disproportionate.

What result?

A couple of days ago, a divided panel of the Sixth Circuit reversed the conviction and death sentence in a case just like this called Getsy v. Mitchell. The majority held that because the crime of murder-for-hire requires (at least) two guilty participants, the first jury's rejection of the murder-for-hire factor was logically inconsistent with the second jury's endorsement of it, and that the logical inconsistency rendered the second conviction and death sentence unconstitutionally arbitrary and disproportionate.

This case presents an interesting variation on a problem I explored at length back in 1998 in my article "The Hobgoblin of Little Minds? Our Foolish Law of Inconsistent Verdicts," which appeared in the Harvard Law Review.

I'm pleased to say that both the majority opinion and the dissent quoted from and relied on my article. This is not the sort of thing that happens every day for a law professor! It is gratifying to see that every now and then, some of the toiling that we do here in this ivory tower proves useful out there in the real world.

In my view, the dissent by Judge Gilman has the better of the argument. While it is admittedly uncomfortable -- especially in a death penalty case -- to see two different juries reach inconsistent conclusions on similar evidence about the same episode, I don't believe that there's any reason to see legal error of any kind in the second jury's verdict. When a single jury reaches logically inconsistent verdicts in a single case, we can be certain from the verdict itself that the jury has somehow erred (in the sense, at least, of not following its instructions), and the argument of my Harvard article is that the legal system ought to do something about inconsistent convictions in this setting (rather than just letting them stand, as the law now does). But when two juries reach logically inconsistent verdicts in separate trials, those verdicts supply no evidence that either jury has erred -- let alone that the erring jury was "harsher" one.

Posted by Eric at 10:15 AM | Comments (6) | TrackBack

August 3, 2006

A Bleg for Help With MS Word 2003

or reasons I don't really understand, some of the endnotes in my book manuscript are formatted one way (single-spaced, Times New Roman, 10 pt.), and others are formatted another way (double-spaced, Lucida Bright, 12 pt.). I'd like to have Word apply the same formatting to all of the endnotes.

I'd also like it to produce each endnote number in the endnotes (as distinguished from the text) not as a little superscript number, but as a regular number at the beginning of the line, followed by a period.

Can any Word experts give me any hints on how to change endnote formatting in these ways for the entire manuscript? Surely I don't have to go in and change each one by hand, do I?

UPDATE: To commenters alkali and Sue -- THANK YOU!!!!! Your fixes worked perfectly. I am indebted to you. I will have people on the staff of my subscriptions and accounting departments add an additional month to your subscription to this blog, absolutely free and at no cost to you whatsoever, as my little way of saying "thank you."

Posted by Eric at 11:05 PM | Comments (5)

August 2, 2006

Lebensraum für Juden

erman troops to guard Israel from its enemies?

Posted by Eric at 9:09 AM | TrackBack

August 1, 2006

Who Knew?

el Gibson was working on a miniseries about the Holocaust.

Posted by Eric at 4:27 PM | TrackBack