IsThatLegal?

"Though he be a gentleman, remember, Eric Muller is also a lawyer."
-- Sparkey of "Sgt. Stryker's Daily Briefing"
"Relentlessly sensible and often important."
-- Michael Froomkin of "discourse.net"

I'll be having lunch tomorrow with a newly formed Weblogs Working Group here at UNC - Chapel Hill. The group is the brainchild of blogger and journalism student Anton Zuiker, and the following blogs will send representatives: Pattern Recognition, Freight Train Runnin'Through the Middle of my Head, Jane's Addiction, Stralkast, Justinsomnia, Silflay Hraka, and Paul Jones.

I just noticed that the book many law professors call the "studbook"--the book we get each year that lists and gives a brief bio of every American law professor--is called the "Directory of Law Teachers," and therefore really ought to be called "the DOLT."

As Curly might have said, I represent that remark.

When the Middle East roadmap is torn to shreds, as it inevitably will be, and suicide bombings resume, as they inevitably will, and Israel insists (as it inevitably will) that it cannot talk when suicide bombers are being sent into its streets, and some respond (as some invariably do) that it's unfair for Israel to take this position because the suicide bombings are uncontrollable acts of understandable rage by an occupied people, outside the ability of Yasser Arafat or any other leader to stop,

LET IT BE REMEMBERED:

That today, various organizations representing various Palestinian constituencies coolly undertook, in writing, to control what some say are uncontrollable acts of occupation-inspired rage.

The Yin Blog argues that the Texas prosecutor may not have proved that Chante Mallard, she of driving-with-a-man-through-the-windshield fame, committed murder. His theory is that her act of striking the victim could not have been any form of murder, and that everything that happened after that moment was just an omission to act rather than an act that the law could treat as murder.

I see it differently. First, Yin says that Mallard "drove while intoxicated from alcohol, Ecstasy, and marijuana and ploughed into her victim. Those actions constitute some combination of driving under the influence and perhaps vehicular manslaughter. They're NOT murder." I don't know Texas criminal law, but in many places this certainly could be murder. It wouldn't matter that Mallard didn't intend the victim's death, or know for sure that her action would kill him. Extreme recklessness, known at common law as action with a "depraved heart," suffices to convert what would otherwise be manslaughter into murder. So it would not surprise me to learn that Texas law supports a murder charge in a situation where a person is driving through areas with pedestrians in as intoxicated a state as Mallard apparently was.

Second, Yin argues that "the prosecution's main theory was that she failed to call for help after hitting the man, and had she done so, he could have been saved. In other words, she failed to do something. That might be enough for a wrongful death civil suit (although here my recollection of tort law is fuzzy), but I don't see that it's murder."

Again, the "right answer" here is going to turn on the details of Texas law, details that I do not know. But Yin's general assertion that an omission cannot support a murder charge is, in many places, false. A crime requires proof of a bad act and a guilty mind. An omission to act can, in a sense, "replace" an act in this formula. If, for example, a person isolates another in a situation of mortal peril, and then fails to rescue that person, the common law treats this omission to act as the equivalent of the "bad act" that the formula requires. And if the state could prove, independently of this, that Mallard, in omitting to save her victim, had the degree of "guilty mind" that the crime of murder requires, then the state would have both of the elements it needs.

Earlier this week I blogged at some length about Justice O'Connor's extraordinary (and arguably hypocritical) decision to speak about and, as it were, "spin" her Grutter opinion to a Chicago Tribune reporter within a day or so of filing the opinion. (I also noted the inappropriateness of doing this in the context of a publicity interview for a book she's hawking.)

I picked up a much coveted InstaPundit cite on the story, but there the issue died.

Why is that?

It's not that there's no story here. Trust me: talk to any federal judge in the country, and they'll tell you how unusual (and, if they're candid, troubling) it was for a judge--nevermind a Supreme Court Justice--to be answering questions about a written opinion, especially when that opinion is just hours old.

I suspect that one reason the story has not "caught" is that the week has been so full of other (and more significant) Supreme Court news that people's attention has been elsewhere.

But I also suspect that we may be seeing a worrisome (and little-noticed) hole at the intersection of judicial and journalistic ethics. "Access" (as Ed Cone today writes about it) to a Supreme Court Justice is a precious commodity. Maybe not quite as precious as the Saddam Hussein interview that Peter Arnett was trying to score, but nearly so.

There's one way, and only one way, for the media to kill that nascent opportunity: to report on it and correctly identify it as inappropriate.

We see a version of this dynamic often when journalists chase after jurors in high-profile criminal cases for post-verdict interviews. But in that scenario there's really no story in the fact of the interview itself: while jurors are sometimes discouraged from speaking to the media, they're absolutely free to do so, and there's a considerable history of jurors giving interviews.

When a Supreme Court Justice gives a media interview about an opinion she has just filed, on the other hand, the interview itself is a big story. But it is not in journalists' interests to say so, or that'll be the last such interview anyone ever gets.

That, too, is troubling.

How do you write a headline for an obituary?

That's a fascinating question that's posed by the passing of former Senator Strom Thurmond of South Carolina. What single phrase sums up the man's life?

Notice the difference between the New York Times's headline: "Strom Thurmond, Foe of Integration, Dies at 100," and the headline in the San Diego Union-Tribune: "Strom Thurmond, longest-serving senator in history, dies at 100." A quick google search reveals that the Union-Tribune's headline is the far more typical in today's papers.

Is the Times's headline unduly critical? Does the Uniont-Tribune's shy away from the tough truth about this man's legacy?

Me, I prefer the Times's headline.

You?

Yesterday was mostly a day of punditry and analysis and prognostication here in the blawgosphere, and that makes sense, because I guess that's what we law types like to do, and also what we think is expected of us.

But to be honest, my reaction to Lawrence yesterday was mostly personal and emotional. I've had several close friends who are gay, and for them I felt an enduring warm glow of love and pride. Yesterday must have been a truly extraordinary day for them.

Hmm. Ari Fleischer's job is open. This guy can spin with the best of 'em. And it turns out he's available .

Could it work?

to the story about Justice O'Connor's answering questions about Grutter during a publicity interview for her book. Here is what a reader reported in a comment to my earlier post on the subject:

Justice O'Connor was the speaker at my law school graduation. She was friendly and most of my classmates got pictures taken with her. One overly enthusiastic student asked her some questions about an opinion she had written and her response was something like "we don't discuss opinions." Most of us thought the student was wrong to even ask.

Well, the student wasn't wrong to ask, and Justice O'Connor wasn't wrong in her response. She was wrong the other day when she talked to the Chicago Tribune.

The Fourth Circuit today dismissed the government's appeal of the district court's order allowing Zacarias Moussaoui to question Ramzi Binalshibh. The holding was jurisdictional: the 4th Circuit held that the district court's order was unappealable on an interlocutory basis (note for non-lawyers: that means "at a point in the trial proceedings before a final trial judgment") until the government has defied the district court's order and the district court has imposed a sanction.

As news goes, this really isn't news: the government will assuredly defy the district court's order, and the district court will assuredly impose a sanction. And that will take the case right back to the 4th Circuit.

I have two very quick things to say about today's decision in Lawrence v. Texas.

(1) Bravo. And ta-ta, Bowers v. Hardwick. You won't be missed.

(2) That Justice Kennedy sure can write a perplexing opinion! This reads like a companion piece to his opinion for the Court in Romer v. Evans: It reads great, but when you get to the end of it and try to fit it into any of the Court's established frameworks of review (strict scrutiny, rational basis, etc.), you're left scratching your head. I'll have to think for a while about whether Kennedy's doing this on purpose in these cases about homosexuality; surely he knows what a standard of review is and how to apply it, so he must be up to something. I'm just not sure what.

In my earlier post on the subject of Justice O’Connor’s interview with the Chicago Tribune, I initially called her lapse of judgment “outrageous.” On reflection, I thought that was extreme, and changed it to a “major” lapse in judgment. That adjective I am prepared to stand by.

One reader has suggested that my claim needs further support, so I offer it here.

* * *

U.S. Supreme Court Justice William Brennan said that "the reasons behind the social policy fostering an independent judiciary also require that the opinions by which judges support decisions must stand on their own merits without embellishment or comment from the judges who write or join them." (Quoted in Alan F. Westin, Out-Of-Court Commentary by U.S. Supreme Court Justices: Of Free Speech and Judicial Lockjaw, 62 Columbia Law Review 633 (1962)).

Brennan also liked to tell this story: “ A great Chief Justice of my home State [Arthur Vanderbilt of New Jersey] was asked by a reporter to tell him what was meant by a passage in an opinion which had excited much lay comment. Replied the Chief Justice, ‘Sir, we write opinions, we don't explain them.’ This wasn't arrogance--it was his picturesque, if blunt, way of reminding the reporter that the reasons behind the social policy fostering an independent judiciary also require that the opinions by which judges support decisions must stand on their own merits without embellishment or comment from the judges who write or join them.” (Quoted in Linda Greenhouse, Thinking About the Supreme Court after Bush v. Gore, 35 Indiana Law Review 435, 440-41 (2001)).

Here is what Judge Edward C. Stringer of the Minnesota Supreme Court has to say: An opinion “is filed and emerges into the sunlight to take its own life. The court never comments on the process of reaching the final result, or on the opinion itself--it is an ironclad rule that the opinion speaks for itself.” May It Please the Court, 29 William Mitchell Law Review 263 (2002).

And here’s the view of Judge Royall Ferguson, U.S. District Judge for the Western District of Texas (from his article entitled Why Judges Don’t Explain Their Rulings, 66 Texas Bar Journal 49 (2003): "While any decision of any judge is open to full comment in our free society, it is not the place of the judge to engage in the debate after the ruling is issued. To debate is to argue policy, and in our society, policy is the domain of the legislative, not the judicial, branch of the government. If the majority decides that the law does not further the correct policy, then the majority can change the law. Such is not the province of the judge."

To the same effect are the words of Chief Judge Sidney Eagles of the North Carolina Court of Appeals: “Most appellate judges adhere scrupulously to the tradition that we do not comment for the record about our opinions-our opinion must speak for itself.” 35 Indiana Law Review 457, 462-3 (2002).

The leading academic commentator on the issue is Professor William G. Ross of the Cumberland School of Law in Alabama. Two published pieces address the topic: William G. Ross, The Questioning of Supreme Court Nominees at Senate Confirmation Hearings: Proposals for Accommodating the Needs of the Senate and Ameliorating the Fears of the Nominees, 62 Tulane Law Review 109 (1989); and William G. Ross, Extrajudicial Speech: Charting the Boundaries of Propriety, 2 Georgetown Journal of Legal Ethics 589, 601-03 (1989). Here are several relevant passages from Professor Ross’s work:

"Although the canons do not prohibit judges from making public comments concerning their own judicial decisions, judges should tenaciously and categorically refrain from making such comments about any decision that is the subject of a written opinion. As an official pronouncement, a judicial opinion is a self-contained entity which must speak for itself. Any public comment by a judge concerning that opinion detracts from its integrity. Such comments may distort the legal process by encouraging lawyers and even courts to interpret the decision in the context of the judge's remarks. In contrast to statutes, which may be interpreted with reference to legislative history, a judicial decision must be its own exponent."

"The unwritten prohibition on comment by judges about their own decisions should extend even to comments by retired judges or comments about decisions decided in the distant past or decisions whose significance has been eclipsed by more recent decisions. It appears, however, that the danger of comments about a particular decision subsides as the decision becomes settled law or fades into insignificance."

"As Thornberry and Rehnquist stated during their testimony before the committee, a judicial opinion should speak for itself. A judge who issues an opinion should not try to amend it, revoke it, add to it, or explain it. Any explanation of an opinion is perforce tantamount to a re-writing of that opinion. Litigants and lawyers will inevitably seize upon the judge's remarks to interpret the opinion or to vary its plain meaning. It is improper for the judge's remarks to vary the opinion since the judge is not acting in his judicial capacity. Remarks about his own decisions by so prominent a judge might encourage other judges to make extra-judicial statements concerning their own decisions. Such statements would confuse the law more than they would clarify it."

* * *

What does all of this mean for Justice O’Connor’s comments about Grutter and affirmative action to the reporter from the Chicago Tribune? I think it means that Justice O’Connor violated a norm of proper judicial conduct that nearly all judges share. The norm has never been reduced to a formal prohibition in a code of judicial conduct, so one could certainly argue that Justice O’Connor didn’t really “break any rules.” But that’s a tepid defense. She may not have broken any rules, but she did breach what Professor Ross correctly calls an “unwritten prohibition” on extrajudicial elaborations of recently filed opinions.

And she did it in an especially suspect context—not in a speech or in a law review article, but at a publicity interview in which she’s hawking a book she has written.

Was this a violation of a specifically codified ethical prohibition? No. Was it a major lapse in judgment? I certainly think so.

Instapundit links to an interview that Sandra Day O'Connor gave to the Chicago Tribune (registration required) in which the Justice spoke at some length about her opinion in Grutter and about affirmative action more generally.

I find this a major lapse in judgment on O'Connor's part.

A Supreme Court opinion ought to speak for itself. It should not be described, elaborated on, analyzed, or "spun" by any Justice of the Court, let alone by its author, a day or two after it was issued.

And it seems especially troubling to me that she chose to respond to these questions, and to give juicy, headline-worth quotes, in the context of an interview that was (according to the Chicago Tribune itself) supposed to be about a book she has written, for which she is now doing publicity. On top of everything else, it smacks to me of using the occasion of the filing of the Grutter opinion as a way of generating even more interest in her book.

(Good gosh, Justice O'Connor! If you want to draw attention to your book, get a blog!)

Erik Jaffe continues to contend that Justice O'Connor's opinion in Grutter contradicts Justice Powell's opinion in Bakke. Referring to a piece by Charles Lane in yesterday's Washington Post, Jaffe says that "[w]hile [Lane] notes [that O'Connor's] seeming concern with creating 'a racially and ethnically mixed leadership cadre' and quotes Harvard Sociology Professor Nathan Glazer as saying: 'The court is no longer basing the case for affirmative action on past discrimination and past racism, but on the need for a multiracial and multiethnic elite for a stable society .... That part of O'Connor's decision may be said to broach new ground.' Pity that the article did not point out that the new ground she broached was rejected as an unconstitutional interest by Powell in Bakke and by O'Connor herself in endorsing Powell's opinion."

I think Jaffe is vastly over-reading Powell's opinion in Bakke, trying to milk from it a condemnation of any forward-looking state interest in increasing diversity downstream in the workforce. Powell's opinion just didn't establish any such blanket proposition. Here is the relevant portion of Powell's opinion in Bakke:

Petitioner identifies, as another purpose of its program, improving the delivery of health-care services to communities currently underserved. It may be assumed that in some situations a State's interest in facilitating the health care of its citizens is sufficiently compelling to support the use of a suspect classification. But there is virtually no evidence in the record indicating that petitioner's special admissions program is either needed or geared to promote that goal. The court below addressed this failure of proof:


"The University concedes it cannot assure that minority doctors who entered under the program, all of whom expressed an `interest' in practicing in a disadvantaged community, will actually do so. It may be correct to assume that some of them will carry out this intention, and that it is more likely they will practice in minority [438 U.S. 265, 311] communities than the average white doctor. (See Sandalow, Racial Preferences in Higher Education: Political Responsibility and the Judicial Role (1975) 42 U. Chi. L. Rev. 653, 688.) Nevertheless, there are more precise and reliable ways to identify applicants who are genuinely interested in the medical problems of minorities than by race. An applicant of whatever race who has demonstrated his concern for disadvantaged minorities in the past and who declares that practice in such a community is his primary professional goal would be more likely to contribute to alleviation of the medical shortage than one who is chosen entirely on the basis of race and disadvantage. In short, there is no empirical data to demonstrate that any one race is more selflessly socially oriented or by contrast that another is more selfishly acquisitive." 18 Cal. 3d, at 56, 553 P.2d, at 1167.

Petitioner simply has not carried its burden of demonstrating that it must prefer members of particular ethnic groups over all other individuals in order to promote better health-care delivery to deprived citizens. Indeed, petitioner has not shown that its preferential classification is likely to have any significant effect on the problem.

Powell was responding to a specific claim--namely, that more black medical students today would make for greater "downstream diversity" (to use Jaffe's term) in the medical profession tomorrow, and that this, in turn, would improve the delivery of services to underprivileged black communities. Powell wasn't at all persuaded that greater downstream diversity would in fact lead to better healthcare for the poor. In fact, I think he recognized that the state's argument was itself built on a racial assumption that black doctors would want to have black patients--and poor ones at that.

So Powell's Bakke opinion did not foreclose all arguments about the benefits of downstream diversity, and it certainly didn't foreclose the argument on which O'Connor relied, which was that people who learn in an integrated classroom are likelier to work more effectively in an integrated workplace and be more effective leaders of an integrated society.

UPDATE: Erik Jaffe has responded to this post. He says that I've faulted him for misreading Bakke, but that the mistake is actually mine, because Justice O'Connor (and therefore Jaffe too) was invoking a different part of Bakke than the one I cite above.

I did go to Bakke and look for the passage that came closest to addressing the "downstream diversity" argument that Erik is claiming Bakke foreclosed. The passage I quoted is actually the one that in fact does come closest. The passage from Bakke to which Erik refers (but does not quote) is, I think, the passage in which Justice Powell responds to the claim, quoted directly from the state's brief, that its special admissions program at UC Davis would "reduc[e] the historic deficit of traditionally disfavored minorities in medical schools and in the medical profession." Here is how Powell dealt with that argument:

If petitioner's purpose is to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin, such a preferential purpose must be rejected not as insubstantial but as facially invalid. Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids. E. g., Loving v. Virginia, supra, 388 U.S., at 11, 87 S.Ct., at 1823; McLaughlin v. Florida, supra, 379 U.S., at 196, 85 S.Ct., at 290; Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954).

So Powell's point here was that to admit more black med students for the sake of reducing a historic racial deficit in the medical profession is just to practice unadorned race discrimination for its own sake.

The amici arguments in Grutter were not, as Erik contends, just a retread of this rejected argument. As I said in an earlier post, the amici urged the Court to recognize racial and ethnic diversity as a compelling state interest for an instrumental reason--namely, to help train young people to function in, and in some cases to lead, an integrated society. That is not race discrimination for its own sake. And it is not what UC Davis unsuccessfully tried to get the Bakke Court to say was "compelling"--the objective of getting from a society with few black doctors to a society with many black doctors.

The one state claim in Bakke that does at least moderately resemble the one that O'Connor endorsed was the one about improving healthcare service in underprivileged communites. It resembles that claim because it is similarly instrumental: UC Davis was contending that it was preferring minority applicants not to serve the abstract good of increasing their numbers, but for the instrumental purpose of improving medical services for the underprivileged. That claim, at least in its form, is similar to the "downstream diversity" argument that O'Connor actually endorsed (and that Erik says Bakke foreclosed). But as I've shown, this rejected argument from Bakke is different enough in its content to leave the door wide open to the claim that O'Connor ultimately endorsed.

On the subject of summer associate stories, I recall one told me by a fellow lawyer at the firm I worked for years ago in Manhattan.

It seems that in the middle of a very very hot Manhattan summer in the mid-to-late 1980s, the air conditioning broke at one of the swank midtown firms.

The partners snapped into action and authorized the purchase of desk fans--for themselves, and for the summer associates.

Not for the regular associates. You know, the regular associates that the associates of the summer variety were hoping one day to become.

(I'd also assume, though I don't know, that they didn't buy fans for the support staff either.)

I understand that the firm made lots of offers at the end of that summer, but fewer people said yes than the firm was accustomed to.

Gee. I wonder why.

Summer associate at Skadden Arps inadvertently copies partners on an email candidly describing the life of a New York summer associate.

He follows it up by eating a very big crow.

Shouldn't truth be a defense here?

(Link courtesy of JD2B.)

(You know what? I've read "JD2B" dozens of times, and only just now got the pun in the URL.)

Erik Jaffe over at the Volokh Conspiracy misunderstands the position of the military and educational amici who filed briefs in the Grutter case (and on whose reasoning Justice O'Connor relied, to Jaffe's consternation).

The point of these briefs was not that diversity is a compelling interest for a public law school (or the military) because more diverse student bodies will produce more minority lawyers (or soldiers) down the road.

The point was that lawyers (and soldiers) are going to have to thrive and assume leadership positions in an increasingly diverse workplace, and that racial and ethnic diversity in their professional (or military) education will assist them in their work down the road.

That's the argument, by the way, that my colleagues Jack Boger, Charles Daye, Julius Chambers, and my dean Gene Nichol made in the amicus brief filed by the University of North Carolina School of Law.

I walked into my local Borders bookstore yesterday and was very surprised to see four copies of the new paperback edition of my book "Free to Die for their Country: The Story of the Japanese American Draft Resisters in World War II" displayed on the "New Paperback" table in the front of the store. (Note: For this particular store I'm a local author, of course, but the book was on the "new paperback" table, not in a "local authors" rack.)

Curious, I drove a half mile up the street to the local Barnes & Noble, and found the same thing there.

Very exciting. I've known that these chains carried the hardcover edition of the book, but it's typically stuffed back on the shelves in the history section.

But now I'm wondering: is this just some local quirk? Or has somebody at Barnes & Noble and/or Borders taken a liking to my book?

If you happen to be in or near a Borders or a Barnes & Noble in the next few days, would you eyeball the "New in Paperback" table and see if my book is there? And if so, would you drop me a line and let me know? (No purchase necessary, by the way. And I'm not even asking this as a ruse to get you to pick my book up and look at it. I'm just curious to know whether I'm seeing some sort of larger marketing decision by the big chains, or whether it's a purely local phenomenon.)

Much obliged.

By the way, if you do see the book, would you check and see whether it's hermetically sealed in plastic wrap, as the copies at my local bookstores were? Somehow it seems to me that sealing a book tightly in plastic wrap is not the best way to invite browsers to pick the book up...

(Please note, as well, that there is no good reason to seal the book in plastic wrap. It contains no dirty pictures. Honest.)

The conventional wisdom about getting a new puppy is that your kids will promise to take care of her but then won't. We've only had Margot since Saturday, and so far the kids have been pretty good about their responsibilities. But I'm noticing something about the experience that the conventional wisdom did not prepare me for: I am the bad guy. I had a dog when I was growing up, and as I remember her, she was my friend and my playmate. I liked being silly with her. Yes, I fed her some and took her for walks sometimes, and got her to and from her run on rainy days, but mostly I just remember her as fun.

Guess what? With Margot, that is how my children's relationship with her will be. Already they walk into the room and she lights up like a halogen lamp at full throttle. I walk into the room and she looks at me with "what is the tall guy going to tell me to do now?" all over her face.

No fair.

Don't get me wrong: Margot is a sweetheart, and I love holding her and playing with her. But my relationship with her will not be a child's. I didn't expect that.

Tonight I heard an NPR reporter on All Things Considered refer to an opinion joined in by "Justices Breyer, Stevens, and Bader Ginsburg."

"Bader Ginsburg?"

She doesn't refer to herself that way, does she?

Is this yet another example of NPR reporters being even more politically correct about people's names than the people themselves are? (I'm referring here to the penchant that a couple of NPR reporters have of pronouncing every Latino name with a Spanish accent, regardless of whether the named person him- or herself pronounces the name that way. (And it's only Latino names; you never hear these reporters trying to reproduce a Chinese name in the original.) And then of course there's also the mellifluously named Sylvia Poggioli...

I know the rumors about an imminent O'Connor retirement from the Court are rampant, but it's hard not to read O'Conor's opinion in Grutter as a kind of swan song. In an earlier case striking down a measure benefitting racial minorities O'Connor famously wrote that she wished to dispel the notion that strict scrutiny was "strict in theory but fatal in fact." I imagine that Justice O'Connor wanted to make good on that promise before retiring--to show that she meant what she said when she wrote that an affirmative action plan might someday survive strict scrutiny. The Michigan Law School's plan gave her that chance, and she took it.

I do think she had to suppress some of her usual outlook to vote and write as she did in Grutter. I'm thinking especially of the remarkable passage late in her majority opinion, in which she said the Court would "take the Law School at its word that it would 'like nothing better than to find a race-neutral admissions formula' and that it will terminate its race-conscious admissions program as soon as practicable." Taking the law school at its word for this proposition? Justice O'Connor told us in Adarand Constructors v. Pena that one of the organizing principles of the Court's affirmative action jurisprudence is "skepticism" toward plans that draw racial lines, and there is nothing at all skeptical in O'Connor's attitude toward the law school in Grutter. I'd sooner say it's "credulous" and "indulgent."

In all of the hubbub over the affirmative action cases today, the Court's opinion in the California Holocaust-Era Insurance case (American Insurance v. Garamendi) will undoubtedly be overlooked. But it's an interesting read, and it takes an important step in federal-state relations that should not go unnoticed.

The nub of it is this: after many decades when it made no political sense for the WWII Western Allies to press West Germany and German companies to come clean about the extent of their fleecing of Jews, the fall of the Soviet Union enabled the WWII Allies finally to begin to apply some pressure. That pressure produced, among other things, an executive agreement signed by President Clinton that recognized an international commission for the resolution of claims on insurance policies held by the Nazis' victims. The insurance companies (that spent over 50 years stonewalling victims' efforts at payment) pressed for language in the executive order that would force the dismissal of claims against them in state courts (so that those claims could be adjudicated by the commission), but Justice Department lawyers resisted that. The order ended up with some wishy-washy language to the effect that the federal government would "seek dismissal" of lawsuits against insurance companies in state courts on "any valid legal ground," but it explicitly noted that whether those suits would be dismissed would be up to the courts.

The international commission is, by the way, to put it mildly, a disaster. After three years of operation, in November of 2001, it had processed only about 800 claims (out of 77,000 that had been filed). Since then it has done only modererately better. My father has been wrangling with it for several years now over a life insurance policy for his father's brother, who was murdered in a camp in Poland in 1942. He is no closer to satisfaction now than he was two years ago.

At this point, enter the State of California--a state with lots of Holocaust survivors and surviving relatives of Holocaust victims. Dissatisfied with the difficulties of the claims process, California adopted a policy that any insurance company wishing to do business in the state must, if it did business in relevant parts of Europe from 1918 through 1945, disclose to the state lists of its policyholders from that time period.

The insurance companies sued, claiming (among other things) that the California law was invalid because it conflicted with the President's executive agreement and was therefore preempted.

The Court agreed in a 5-4 vote.

Here's why the decision is remarkable: the executive agreement said nothing at all about disclosure by private insurance companies wishing to do business in the United States; indeed, the agreement did not even purport to require the dismissal of lawsuits against those companies. In addition, the executive agreement did not seek to protect foreign governments or governmental or even quasi-governmental agencies. (To the extent it "protected" anyone or anything overseas, the agreement protected private insurance companies.) Given all of this, you'd think that a court (especially this Court, as protective as it usually is of state power as against federal power) would have upheld California's law. The Court would not have had to say that a president is powerless to insulate foreign companies from these sorts of disclosure requirements; it could have said simply that a president who wants to negotiate such an unusual protection for a foreign entity needs to do it clearly and explicitly, and displace state laws clearly and explicitly.

But the Court instead chose to infer--to read into the executive agreement--preempting provisions that were not actually there, and this out of fealty to the Court's extremely deferential stance toward the president's powers to run the nation's foreign affairs.

The Court majority's incredibly broad and fuzzy understanding of the President's powers in the international arena is a worrisome development.

The opinions in the affirmative action case were filed an hour or so ago. I have, of course, read them all thoroughly and written a detailed and insightful analysis of them (not to mention several op-ed pieces, a magazine-length treatment, and catchy pitch letters for all of the major news programs). But for some reason I'm having a hard time linking to them. I guess you'll just have to take my word for it.

This is rich.

Back in February, Howard Coble, a powerful member of the North Carolina congressional delegation and chair of a House subcommittee on homeland security, opined that Japanese Americans were put in camps in 1942 for their own safety. This was, of course, categorically false, but the remainder of the North Carolina delegation remained silent (until Senator John Edwards condemned the comments, only to be rebuked for doing so by North Carolina Rep. Richard Burr.)

The other day, Congress passed a resolution calling Dayton, Ohio, the "birthplace of aviation." (That's where the Wright Brothers were from and where they did most of their aviation work, although not the First Flight itself, which took place at Kitty Hawk, in North Carolina's Outer Banks.) This, finally, was enough to rouse the slumbering historians of the North Carolina congressional delegation: "Dayton is a great spot ... but we just couldn't allow (Ohio lawmakers) to rewrite history,'' Rep. Robin Hayes said on Thursday, explaining his vote against the resolution. Howard Coble voted against the resolution too.

It is nice to see our guys on the side of historical accuracy, at least when it really matters.

Check out this headline.

Why, one wonders, did he stop there? Why not: "Parrish Street Renaissance: Grubstakers Revivifying Burghal Hub?"

Laramie MusicBox Margot Muller. She'll go by "Margot."

I just spent the last six hours waiting for her to pee. She didn't. Now she's sleeping. Grrr.

Ed Cone has organized quite a little bloggers' panel for an upcoming conference at Harvard Law School. I can't be there on October 4, but maybe you can.

Senator Mike Enzi, R-WY, is hard at work getting model rockets exempted from the coverage of the new Homeland Security Act, which requires the Bureau of Alcohol, Tobacco, Firearms and Explosives to monitor the purchase and transfer of "any chemical mixture or device whose primary or common purpose is to function by explosion."

A great idea, right? Model rockets are harmless, right?

Harmless? Wrong. Quite wrong.

I figured out that what has been keeping my page from loading was my comments (by Squawkbox). I've disabled them for a while. If you have something to tell me, email me (isthatlegal-at-nospam-bellsouth-dot-net, without the "nospam") and I'll try to quote your comments and post responses if possible.

Technorati's list of "Top 50 Interesting Newcomers" has IsThatLegal? at number 27.

A friend just pointed me to the Tables of Mortality from seventeenth-century London. It lists the various causes of death for London residents and the numbers who perished from each cause. Some of the causes of death are quite odd, as you might imagine: "wolf," "cut of the stone," "fainted in bath," "frighted," "grief," "itch." Others, on the other hand, are quite familiar: "cancer," "leprosy," "plague," and, of course, "mother." (Sorry, mom.)

Odd that there is no entry for "mother-in-law."

Interestingly, the name of the Ambassador to Switzerland and Liechtenstein is Mercer Reynolds, and he's from Tennessee. No indication that he's any relation to Instapundit Glenn Reynolds, who also has a Tennessee connection, and Reynolds isn't exactly an uncommon name, but it's still something to wonder about.

Does the headline of this news story read like a headline from The Onion, or what?

I just found out that my book Free to Die for their Country: The Story of the Japanese American Draft Resisters in World War II won Honorable Mention in the 2002 Gustavus Myers Outstanding Book Award. That's a nice thing.

When I was in my first year of law teaching, I had to pick a casebook for my Federal Courts course. Federal Courts, for those of you who do not know, is to law school what I would imagine a course in brain surgery is to medical school. It's tough. I knew that I needed a casebook with a teacher's manual. But I soon discovered that several of the handful of authors who actually deigned to provide a teacher's manual with their books seemed to think that "helpfulness" was a dirty word. The casebook would present some sort of convoluted case, and the notes after the case would ask all sorts of essentially unanswerable questions. If you're a lawyer or a law student, you know what I'm talking about: "Would it have made a difference if the plaintiff, in pleading ancillary jurisdiction, had cross-referenced the lis pendens provision under Alabama state law in the cause of action that arose under Missouri statute?" Then I'd turn to the teacher's manual for the answer, or at least for some sort of hint about how to present the case to students only slightly more confused than I, and what I'd find would be ... more questions: "Query whether efforts by the Missouri legislature to strip Missouri courts of jurisdiction over claims including notices of lis pendens filed under Alabama law would violate the federal Full Faith and Credit Clause, the Rule Against Perpetuities, or The Hague Convention." Thanks a lot. Very helpful.

I've just finished reading Eugene Volokh's new book, "Academic Legal Writing: Law Review Articles, Student Notes, and Seminar Papers", and am pleased to report that it takes a tough enterprise and makes it simpler--much simpler. This is a very good thing. But students should not be fooled by its title: it is not just about writing articles, notes, and seminar papers. It's really just about good legal writing. So I think it's a must-have not just for 2L's gearing up for their student notes or 3L's scampering about in search of a seminar topic. I think it's a must-have for all law students, including--perhaps especially--1Ls who are biting their nails over how to get started on their first memo assignment.

Eugene preaches clarity, conciseness, and careful organization in student writing, and he practices what he preaches. You'll find no jargon of any sort in this book (except for the very helpful list of legalistic mumbo-jumbo to avoid in one of the book's appendices). You will find clear, easy-to-follow, step-by-step advice for everything from finding a topic to shopping your finished piece to publishers. Perhaps the chief virtue of the book is that Eugene really succeeds in putting himself into his reader's shoes, and dispenses valuable advice on the sorts of things that it would never even occur to most professors (myself included) to mention.

The book is also admirable for emphasizing the ethics of scholarly writing--considerations about plagiarism, tone, and (especially) careful methods of proving one's assertions. (Arguably, Eugene is complete here to a fault: I found the eleven pages that he devoted to proper methods of interpreting surveys and opinion polls to be excessive, even a distraction.)

In short, this is a book that just falls all over itself to be helpful to students in all of the right ways. I wish casebook authors would approach their teacher's manuals in the spirit of enthusiastic helpfulness that animates Eugene's book. I plan to recommend Academic Legal Writing to my students, and I recommend it to you too.

My RSS feeds are again operational. Click on the buttons on the right.

One more comment about the Discriminations site: Jon is commenting (negatively, even derisively) today on a system of racial preferences adopted in Brazil.

I know nothing absolutely nothing about racism, racial politics, or even how "race" is understood in Brazil. But I do know that careful discussion about the wisdom and legality of racial preferences in the United States depends crucially on our unique political and cultural history and our unique legal system. You can't just pick up your views about the wisdom and legality of racial preferences in, say, Ann Arbor, and plop them down into a debate about the wisdom and legality of racial preferences in, say, Sao Paolo, unless your view is that colorblindness (or ethnicity-blindness, or religion-blindness) is a principle not just of American constitutional law, but of universally applicable natural law. And if that's your view, try telling it to some white and black South Africans, or some Protestants and Catholics from Northern Ireland, or some Hutus and some Tutsis, or some Serbs and some Croats, or some Israelis and some Palestinians, or some (insert your favorite locus of racial, ethnic, or religious strife here) and see how seriously they take you.

Jon over at Discriminations picked up on my post about a Pennsylvania judge's delaying a murder trial in order to secure a jury pool whose percentage of blacks approximates the percentage of blacks in the community. He pushes us out onto the slippery slope: "if you are not bothered by what this Pennsylvania judge is doing," he asks, "don't you think he should also confirm that the jury pool has the requisite percentage of Jews, Muslims (Sunni, Shiite, other), lesbians, Methodists, Episcopalians, gays, Presbyterians, Baptists (Southern and otherwise), the transgendered (of the male and female persuasions), etc., etc.?"

It's a good question, but Jon won't be satisfied with the answer, which is that (under existing law) the judge should be confirming that the jury pool does not significantly and systematically underrepresent those groups in the community that the law deems "distinctive." Here's the prevailing definition of a "distinctive group": "(1) the group must be defined and limited by some clearly identifiable factor (such as race or sex), (2) there must be a common thread or basic similarity in attitude, ideas or experience which runs through members of the group, and (3) there must be a community of interest among the members of the group to the extent that the group's interests cannot be adequately represented if the group is excluded from the jury selection process."

Judges applying this standard are inevitably going to have to draw lines and accommodate competing and even conflicting values, and that is going to result in some groups (racial, ethnic, and religious groups, and men and women) probably making the list, and some groups (the transgendered, for example) probably not making the list. Will this line-drawing be open to charges of over- or underinclusion and subjectivity? You bet. Will it be any moreso than the application of any other legal test? Probably not.

A question back to Jon, though. His reason for opposing race consciousness in the rules for assembling a pool of prospective jurors is this: he is "bothered because official racialism (assuming that race correlates with much besides, ususally, skin color) reinforces and legitimizes that obnoxious notion."

It does do some of that, undoubtedly. But as obnoxious as the notion may be, is it actually false? Will an all-white jury in fact mete out the same justice to a black defendant as to a white defendant? Will an all-black jury in fact mete out the same justice to a white defendant as to a black defendant? In all cases? Even in cases whose facts are themselves somehow racially charged?

If the answer to those questions is "no," or "not always," then notice what you're sacrificing on the altar of colorblindness: a defendant's liberty, or possibly his life.

While driving my daughter to her summer camp this morning, I realized that the major local radio stations in the Chapel Hill area have the following pairs as their morning teams: Bob and Sheri, Bob and Tom, Bill and Sherri, and Bob and Madison.

If there's a morning team out there called "Ebenezer and Phyllis" or something a bit distinctive like that, I see a good market for you to break into.

Over the weekend, my wife and I visited Poplar Grove Historic Plantation a few miles north of Wilmington, North Carolina. From the l790's until 1970 it was the home of the Foy family, who were peanut growers and (as you might expect) prominent citizens in their coastal community. We took the tour, and learned from our guide that "the Foy family were very good to their slaves"--so good, in fact, that after the Civil War, 64 of the 65 freed slaves chose to stay and work the land as tenant farmers, where they "shared" their farming profits with the Foy family. (The allocation of the profits between the landlords and the tenant farmers was not disclosed.) And at Poplar Grove they don't use the word "sharecroppers"--a word that (according to the brochure I purchased) "brought with it a bad connotation of low class which was not true at all. The tenant farmers did not consider themselves poor, nor low class, just an employee in the biggest industry in the state."

It would be interesting to take a tour of all of the remaining plantation properties in the South. I bet I'd find that every family of masters was "very good to their slaves!"

I speak from frightening personal experience here: do not get caught in the open water in a kayak during an electrical storm.

I was out with the wife and kids for a Father's Day paddle yesterday morning, when up (and quickly!) snuck a huge thunderstorm. Our guide didn't turn us around in time, and we didn't have time to get back to shore. We had to be rescued in a little inflatable dinghy, with the wind howling and rain pelting down and deafening thunder all around us. With the girls out there, it somehow felt like a scene from the Hardy Boys or a Nancy Drew mystery. I'm not sure why.

Later in the day, I couldn't get the theme from Gilligan's Island out of my head... A three hour tour...

I'm off to a place where there are no computers. Blogging will resume on Monday.

Not forthcoming on what, you might ask?

On governmental conduct in its domestic antiterrorism efforts?

On immigration and "material witness" detentions?

On what the Administration actually knew about Iraqi weapons of mass distraction, I mean destruction, during the build-up to the war?

Nope. On "guarding domestic textile interests."

Sigh.

On the Couch with Beavis and Butthead

An excerpt:

"Butthead is significant, because he embodies a subjectivity constructed in accordance with convention. Beavis, on the other hand, literally fails to complete each of the metaphorical Lacanian narratives of subject-formation."

Read the whole thing, ass wipe.

I am going through my student evaluations from my Constitutional Law course this past semester, and just came across one that made me laugh out loud. And I mean loud.

The question for the students was "Is the professor able to impart the subject matter (e.g., communication skills, organiation, responsiveness to student questions, stimulation of interest in the subject matter)"

This student's response: "Yes, but he is kind of like the hippie teacher from Beavis & Butthead in his delivery."

The student is referring, of course, to Mr. VanDriessen:

Now that is funny.

This evaluation, on the other hand, was not funny. It was among the evaluations for my Con. Law class from my last semester at the University of Wyoming, just before I moved to the University of North Carolina. No evaluation, before or since, has quite matched the nastiness of this one: "Forthright opinion? I had better instruction concerning constitutional law from my 8th grade history teacher. I felt like I was trapped under something heavy all semester ... first I thought it was my textbook, but then I realized it was Muller's incredible ego! Constitutional Law is one of the most important classes because it not only deals with fascinating law but rights as US citizens. But instead of the inspiration w/n instruction I was expecting, I received a whole semester of useless drivel. Go bore those Southerners @ UNC, Prof. Muller. I'm sure they will appreciate your little J. Crew ties a lot more also."

The evaluations were, of course, anonymous, and I have no idea who wrote it. But on the exceedingly remote chance that the person who wrote that evaluation might be reading this blog, let me say something I've wanted to say for 6 years now:

They're Land's End ties, bucko.

There. That feels better.

I would imagine that some in the blogosphere will express outrage about this story on the AP wire this morning: a judge in Pennsylvania is delaying a murder trial until the district's jury selection procedures are changed to produce a jury pool that is ten percent black. But legally speaking, there's really nothing to be outraged about here. It has been settled law for decades that the Sixth Amendment requires a jury pool or "venire" to reflect a fair cross-section of the community. A jury venire is not a fair cross-section if the selection system is calibrated to underrepresent a "distinctive group" in the community. Racial groups are, under the Sixth Amendment, "distinctive." The district where this murder trial is to occur is twelve percent black, but the venire is never more than five percent black. So this ruling strikes me as an elementary application of well settled law.

(Note: this area of the law says nothing about the representativeness of actual juries that get seated to hear particular cases. It addresses only the larger pool of prospective jurors from which actual juries are drawn.)

To the extent that people are talking about this story, it is because some people seem to be upset that this area of Sixth Amendment law appears to run counter to the "colorblindness" theory that is all the rage in some constitutional quarters. And, in an important sense, it does do that: this area of the law works from the assumption that race is not completely irrelevant to people's life experiences, perspectives, and perceptions.

So it's worth taking a moment to think: if you're bothered by what this Pennsylvania judge is doing, is it because you think that the assumption underlying this area of law is actually false? Or for some other reason?

Cass Sunstein didn't note the irony, but in his recent piece praising FDR's domestic policy objectives at the close of World War II, he included a listing (out of Roosevelt's own mouth, no less) of just about every right that Roosevelt had denied to Japanese Americans:

"The right to a useful and remunerative job ... the right to earn enough to provide adequate food and clothing and recreation; the right of every farmer to raise and sell his products at a return which will give him ... a decent living; the right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies ... the right of every family to a decent home ... to adequate medical care ... the right to adequate protection from the economic fears of old age, sickness, accident and unemployment; the right to a good education."

And this in a piece that Sunstein titled "FDR's Wise Take on U.S. Security!"

Now, to be fair, I admit that Sunstein's piece was about FRD's immediate post-war economic objectives. But the title surely misleads. Aspects of FDR's take on U.S. security were wise. But not all of them.

Monkeytime has an interesting post about resistance to the Nazis.

By the way, I think he's giving the German people of the wartime years the benefit of the doubt. He notes that "Gestapo records reveal that approximately 800,000 Germans in a population of more than 66 million were jailed for active resistance during the Reich's 12-year reign." He's right that 1 in 66 is nothing to cheer about, of course. But what he doesn't note is that very many of those 800,000 jailed Germans had probably engaged in nothing we'd recognize as "resistance," but were jailed on either paranoid suspicion or false and vindictive denunciations.

Inicidentally, the story of the White Rose--a student resistance group led by the Scholl siblings--is as least as riveting as the story Monkeytime mentions (the story of the Red Orchestra). There's a good movie about the White Rose by director Michael Verhoeven, who also directed the better-known film The Nasty Girl.

Ed Cone notes, correctly, that the Joy in Blogville over the personnel shakeup at the NY Times is way overblown. The blogosphere did not bring down Raines and Boyd; my sense, like Ed's, is that this is a story whose outcome was a product of forces mostly outside the blogworld.

I do think, though, that something else is noteworthy about the developing blog-as-policeman: its essentially unconstrained selectivity. If the blogosphere did contribute to the Raines/Boyd downfall, this was at least in part because the New York Times was such a juicy target for many of the tiny handful of widely-read bloggers--most notably Glenn Reynolds. A big liberal newspaper was just too inviting a target to ignore. A story like the Howard Coble affair, on the other hand, just doesn't get traction. Stories about peccadilloes on the political right are sometimes mentioned in the Big Blogs, but they are rarely pursued--and therein lies an important difference. (I don't think the Coble story was ever even a blip on the radar at, just to name a few, Kaus, Sullivan, or Postrel.)

Ed writes movingly about his father, on a day that, coincidentally, I spent being a father (a day of boating and fishing with my two girls on a nearby lake).

It was nice. The voice in my head telling me that I was supposed to be spending the day doing "something constructive" was kind enough to shut up after just a half hour or so. Days like today are a gift.

I figured out how to make the archives and permalinks work properly. Alles ist in ordnung.

I've moved to a different server, but now can't seem to get my archives or permalinks working. There must be some way I'm supposed to tweak the blog's template to get these functions working, but I can't figure 'em out. Suggestions? Leave a comment or email me, OK?

A New York photographer gathered seven thousand nudes in Barcelona for a photograph over the weekend.
Don't know about you, but I see the fine hand of Karl Rove in this one.

This is amusing. We know that Instapundit is great at linking to other people's posts that are worth reading. Well now he's linking to his own posts that are worth reading.

Well, if you're looking at this, then you've figured out that I'm at a new URL: http://www.isthatlegal.org. Please make a note of it, and come back often!

I will be guest-blogging (glogging?) over at the Volkhonspiracy today and tomorrow. See ya back here on Saturday.

This is a great idea. People will definitely be much more sympathetic to Bobby Kennedy's assassin in Fresno than in Los Angeles.

Eugene Volokh did a chat with the Khronicle of Higher Education today about academic blogging. Here's the transcript.

Perhaps some of you heard the commentary on NPR's "Morning Edition" today by Bronx public defender David Feige. Most of it was an accurate, if somewhat innocuous, description of the challenges that busy urban public defenders face in keeping up with their caseloads and in living up to the promise of the Sixth Amendment's guarantee of "effective assistance of counsel." Feigen's conclusion, though, turned rather silly. He admitted that sometimes a public defender will make a mistake that he thinks it's in his client's interest to confess. Many lawyers will not do this, he explained. "Only the best public defenders," he said (and I'm quoting from memory here; it's not going to be precise), "will say to the judge, 'Your honor, I should have filed that motion. A competent lawyer would have done so. But I didn't.'"

If that's what "only the best public defenders" will say, then either we're in deeper doo-doo than I realized, or Mr. Feige needs to think more carefully about what it means to be a good lawyer. As he himself noted, courts have defined "effectiveness" of counsel under the Sixth Amendment to mean that only truly egregious deviations from a rather minimal standard of care will qualify, and those blunders will get the convicted defendant relief only if the defendant would probably have been acquitted if the lawyer hadn't made them. Those are the sorts of errors--or, more precisely, those that might colorably be described that way--that are in the client's interest for a public defender (or any criminal defense lawyer) to confess.

Can Feigen's point really be that "the best public defenders" are the ones who admit to responsibility for these sorts of train wrecks? I would think that even good public defenders (nevermind the "best" ones) were those who didn't make these sorts of catastrophic errors in the first place. Sure, even the best public defenders make mistakes. (Public defenders are no different from anyone else; everybody makes mistakes.) But if you're making the kind of mistake that amounts to constitutionally ineffective assistance as the courts have defined it, you're probably not an especially good lawyer. Let alone "the best."

Since Bill Clinton left the presidency I would assume that Renaissance Weekends are passé. That must explain how I (and, undoubtedly, a highly select group of four or five hundred thousand others) finally made it onto their invitation list. But I must confess that I was amused by the list of people the organizers say they're trying to attract. Read this alliteratively alluring list and see if you can't find the one group that doesn't belong:

This eclectic, non-partisan group--CEOs, venture capitalists and entrepreneurs, Nobel laureates and Pulitzer-prize winning authors, artists and scientists, admirals, astronauts and Olympic athletes, judges and journalists, volunteers, diplomats and work-at-home parents, Presidents, Prime Ministers, professors and priests, Republicans, Democrats and lots of Independents, innovators from across America and several nations--has become for many an "extended family."

"Work-at-home parents?" I think I'm going to be sick. Who are they kidding?

"The participants' only common denominators are innovative achievements on a national or regional scale," says the brochure. The application form asks you to list "prior professional titles/activities," and gives as examples "CEO, Widget Manufacturing; astronaut; author, "Through the Ozone"; Asst. Sec'y, U.S. Dept. of Transportation." It also asks for "current activities and interests," and lists the following examples: "concert pianist; soup kitchen volunteer; black belt Judo instructor; Chair, National Fly-fishing Museum; corporate or non-profit boards."

But they're really looking for work-at-home parents. No, really.

Had a lovely lunch in Greensboro today with Ed Cone. It was raining, so Luna, his BlogDog (Dlog?), couldn't join us.

Burke Marshall has died. Marshall was one of the towering figures of twentieth century American law, in his soft-spoken, behind-the-scenes way. He was a damn good professor to boot. This is a loss for civil rights, for the law, and for legal academia.

The California Senate today followed in the footsteps of the state's Assembly, voting unanimously for a resolution calling on Howard Coble (R.-NC) to resign as Chair of the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security. The vote was 31-0. I have not found an actual tally of the vote anywhere, but I do know that the California Senate has 25 Democrats and 15 Republicans. So we know for sure that at least 6 members of Coble's own party went on record for him to resign.

A friend of mine, Nick, has continued to chew over Colonial Williamsburg's practice of enforcing the 1774 exclusions from service as a justice in its reenacted trials. He noted something else about it: it is utterly pointless. The trial we observed was one in which an indentured servant was suing to be freed from his indenture because he alleged that his master had abused him in various ways. Guess who won? (By the way, this trial was based on an actual trial from that colonial court and that time period.)

You're probably guessing, "Why, the master must have won. After all, the justices were selected according to these ridiculous exclusions that made sure that everybody on the panel was a propertied white protestant anti-papist middle-aged male, just like the defendant master, and a gang like that would've laughed a claim of abuse by an indentured servant right out of court."

Wrong. The indentured servant won (both in the real case and in the reenactment), was released from the indenture, and was given the opportunity to go to work for a different master who had more or less "rescued" him from the nasty one.

So what, then, was the point that Colonial Williamsburg is trying to drive home by selecting justices for this case according to the various 1774 exclusions? Apparently, the point is that a colonial trial presided over by white, male, protestant, properdied anti-papists still reached just results.

Is that the historically accurate message that Colonial Williamsburg is trying to impart?

If you're going to select justices in exclusionary ways, wouldn't it make more sense to then have those justices hear a case in which the exclusions actually matter?

Monkeytime has some interesting stuff about about the capture of Eric Rudolph.

Maybe we should send the 10-dollar-an-hour rookie cop who found Rudolph to Afghanistan and Iraq to look for Osama and Saddam?

Rep. Howard Coble (R.-NC) sure can hold an audience's interest! (Look at the picture.)

Ed Cone's editorial in today's Greensboro News-Record is a good read -- and not only because he manages to work in seppuku, Schadenfreude, and Gatsby's green light. Still, I can't help but wonder: how are we to know "objective" journalism from the biased stuff?

I promised I wouldn't blog any more about Colonial Williamsburg, but I'm going to break that promise. (By the way, I had a very good phone conversation the other day with the head of public relations at Colonial Williamsburg, in which he addressed the concerns I'd voiced about the ways in which they are presenting colonial "reality" as part of their visitor experience.)

My reason for posting this is not to criticize Colonial Williamsburg, but to point out how difficult it is to depict history in a way that is meaningful and thought-provoking for visitors, and that is accurate. (This is something I was probably paying more than my usual degree of attention to during my visit last week, because I'm on the board of a foundation that's in the process of conceptualizing an interpretive learning center at the site of the Heart Mountain Relocation Center in Wyoming, one of the ten camps for Japanese Americans during World War II.)

To walk from the Colonial Williamsburg Visitor Center into the historical area itself, visitors have to walk across a sort of "bridge of history"--a pedestrian bridge which asks you to imagine that you are moving backward in time as you walk across (and forward in time as you come back in the other direction). To assist you in this imaginary trip through time, the Colonial Williamsburg Foundation has placed little markers in the surface of the bridge at about twenty-year intervals. Each marker mentions a notable event or development that occurred at about that point in history.

For example, when you get to the 1940s, you see this:



OK. Get the idea? I think it's a nifty idea; it is a pretty graphic way of bringing home how the world has changed, and at what pace. Sort of like those scale models of the solar system that you see at a planetarium.

Here's another example that I think is effective. This is the marker for 1865:



Nicely phrased. It grabs your attention, and it certainly is more effective than a sign that says "it is legal to own slaves" or something like that.

But the phrasing of this one (for 1954) is a bit curious:



The word "tolerate" is a bit odd. Many whites didn't just "tolerate" segregated schools before 1954; they affirmatively liked them. And most blacks probably found segregated schools intolerable. Perhaps they "endured" segregated schools, but they didn't really "tolerate" them. In fact, for much of the 20th century up until 1954 some blacks did not just put up with segregated schools; they fought to abolish them. So "tolerate" is a perplexing choice of words. I see what they're trying to do, but I'm a little suspicious.

And then you get to this one for the year 1920:



Now this word choice strikes me as very suspicious. "Accept?!?" What a normative word that is! It is absolutely false that before 1920 a person would necessarily have "accepted" that women could not vote. (Who is this "you" who would have done the accepting, by the way? A man before 1920? A woman before 1920?) The nineteenth amendment capped off more than fifty years of advocacy for women's suffrage. So it's one thing to say that before 1920, if you were a woman, you would have been unable to vote even if you'd wanted to (or maybe even prosecuted for doing so). It's quite another to say that before 1920 you would have "accepted" that women cannot vote.

Representing history vividly is tricky business.

Here's a bizarre, and troubling, story from my local paper, the Chapel Hill News: a high school student had a blog (no longer in operation) on which she groused about school and family and such. She shared the blog's URL with a handful of school friends. In one entry she wrote about some problems that her school's computer system was having, and said something about "the Gibson"--apparently a reference to something from the movie "Hackers." (I've never even seen the movie. Honest. (I say that in case police officers are reading this.))

A month ago, on Friday, May 2, two local police officers showed up at her school and interrogated her about a possible hacking of the school's computer system. They identified themselves as FBI agents and members of the FBI's Cyber Crimes Task Force. One of them produced a business card with "FBI Cyber Crimes Task Force" on it. They even wore nifty shirts with "FBI" stitched on them.

The trouble was that they're not FBI agents, and not part of the FBI Cyber Crimes Task Force. They're local cops.

It's important to remember that we don't yet have the full story. Perhaps there is an explanation for what seems to be some pretty incredible intimidation of a blogging high school kid. But the officers involved have all been placed on leave.

UPDATE: The allegations in this newspaper article describe a federal crime. Section 912 of Title 18 of the U.S. Code provides that "whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency, or officer thereof, and acts as such, or in such pretended character demands or obtains any money, paper, document, or thing of value, shall be fined under this title or imprisoned for not more than three years, or both."

FURTHER UPDATE: Here is a much fuller version of the events. It seems that the cops were in the process of getting detailed to the FBI's task force, but hadn't yet made the transition (or gotten their clearances). I still think this doesn't look good for the officers.