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"

The New York Times is casting doubt on the propriety of Justice Scalia's recent pheasant-hunting trip with the dean of the University of Kansas Law School. The problem, says the Times, is that the dean appeared before the Court a couple of weeks later in a case about prisons.

I'll be the first to admit that the duck-hunting trip with Dick Cheney about which so much ink has been spilled is troubling; Cheney is a litigant currently before the Court (and not just any ordinary litigant, either).

In this pheasant-hunting case, though, I see no reason to cry fowl.

Judges are people; they have friends; and their friends (surprise!) are often other prominent folks in legal circles (like, for examples, deans of big state law schools). If we actually enforced a rule that said that judges have to recuse themselves in cases argued by people they socialize with, I suspect that we'd have a hard time getting judicial business done. Sure, it'd probably good to have a system that required judges to note publicly that they know and socialize with one (or more) of the lawyers in a case they're hearing. But I see no reason at all to question Scalia's impartiality in this prison case. The fact that he may have a conflict in some other case doesn't mean he has a conflict in this one.

The Times is just piling on.

This is embarrassing.
A major chunk of this magistrate's docket is DUI cases.
It could have been worse, though: he might have been busted for killing a bald eagle or something.

Taking the First (first clause), Eugene Volokh coins some new constitutional vernacular.

I would simply add that if you really don't have the faintest idea what you want to do, you take the Ninth.

And if you're taking the last clause of the Fifth, you're really just ... taking.

I really enjoyed reading a former law student's take on what she looked for in a law professor. This is the sort of thing I'd like to read more of. Very helpful.

One thing I don't understand: why should I introduce my wife to 2L's or 3L's but not 1L's?

I ask this question because it's interesting to think about; not to suggest any particular answer to the question.

I'm fairly comfortable asserting that the issue of gay marriage would not have attained the level of attention and controversy it is now getting at this particular moment in history were it not for the Supreme Court's ruling in Lawrence v. Texas last June. I understand that the issue was simmering in a number of states, but I suspect that this simmering would have continued in those states (and maybe others) over a longer period of time if the Supreme Court had not turned the heat up to full boil in Lawrence.

Now President Bush is throwing his weight behind a constitutional amendment to exclude the possibility of same-sex marriage.

Here's the question: if you are a supporter of gay rights, was Lawrence a good thing? If we knew that in a world without Lawrence, the political process (as influenced by continuing slow societal development never impacted by a Supreme Court decision) would eventually come to accept gay marriage in many states, would we be better off in that world, or in a world in which the Constitution forbids states from criminalizing homosexual sex but also bans gay marriage?

This is obviously based on speculation: perhaps social development (unaffected by Supreme Court pronouncements) would not eventually recognize gay marriage in most states. But the generation that is coming of age today is, according to the polls, much more receptive to gay marriage than those now in political control.

So? What say you?

Once again, President Bush is out on the ramparts fighting for the right of state and local government to be free from federal constraint!!

Oh no, wait a second. Maybe not.

This is something I'd do: leave a bag with $6,000 in it on top of my car.

Astonishingly, the people who found it by the side of the highway returned it.

Radio, TV, and the increased mobility of the American public have undoubtedly ironed out many of the regional pronunciations and expressions that used to prevail. Still, fascinating differences survive. Check this one out. It's fascinating!

(If I looked out the window and said, "Hey! The Devil is beating his wife," would you have any idea what I meant?)

The blogosphere is catching hold of a distressing story from here at the University of North Carolina at Chapel Hill. It seems that a lecturer in the English department sent an email to her entire class singling out and castigating a student who had expressed views about homosexuality of which she disapproved.

I've been very pleased to see that university administrators have responded with appropriate condemnation.

Turns out Bill Clinton really did feel our pain.

Today is the Day of Remembrance.

Sixty-two years ago today, at the behest of the War Department and over the objection of the Justice Department, Franklin Roosevelt signed Executive Order 9066, which gave the military the authority to evict people from zones along the West Coast that the military might choose to designate.

Claiming that "the Japanese race is an enemy race" and that even second-generation American citizens of Japanese ancestry were suspect because "the racial strains are undiluted," the military soon took action to evict more than 50,000 Japanese aliens and more than 70,000 American citizens of Japanese ancestry from their homes along the West Coast. (No such program of mass exclusion was ever deployed against identically situated American citizens of German or Italian ancestry.)

Here the Mochida family, numerically tagged, prepares to depart. The photo is from the Online Archive of California.

Congressman Mike Honda (D-CA) is working hard to have Congress designate February 19 as a national Day of Remembrance. Drop him a line and let him know you support the effort.

Nicholas Kristof delivers a lecture to environmentalists today about why they should stop resisting snowmobile access to Yellowstone National Park. Most environmentalists don't realize (says Kristof) that Yellowstone is virtually inaccessible in wintertime except by snowmobile and that the new generation of snowmobiles is somewhat cleaner and quieter than the older generations. Kristof maintains that the point of preservation is to make wild places accessible for human enjoyment, not to keep wild places wild for their own sake. Just as we tolerate cars in Yellowstone in the summertime, he argues, we should tolerate snowmobiles in the wintertime.

He's certainly correct that Yellowstone is an inaccessible place in the wintertime. And he's right that newer snowmobiles are somewhat less horrible machines than their predecessors.

But none of this means that Yellowstone ought to be open to snowmobiles, especially in large numbers.

First, Kristof misses very important reasons why Yellowstone is such an attractive winter destination--reasons quite different from those that draw people to Yellowstone the rest of the year. Sure, the thermal features look pretty in wintertime. But that's not the draw. The draw for most visitors is the extraordinary solitude of a Yellowstone winter--the stunning silence of the snow-blanketed landscape, the stillness of the forest, the peacefulness of undisturbed snowfields, the graceful quiet of the bison and elk foraging for food at the fringes of the thermal fields, and, of course, the contrasting intermittent heat and fury of the geysers and springs.

Imagine all of that with somebody perpetually revving an exhaust-spewing buzz saw thirty feet away from you.

Kind of changes the experience, huh?

Kristof also doesn't note that snowmobiles in the Yellowstone winter (unlike cars in the Yellowstone summer) are essentially impossible to escape. First off, snowmobiles are a lot louder than cars. They're even louder than heavy highway traffic. More importantly, human activity in the winter is confined almost entirely to very narrow corridors of the park. Unless you're a very accomplished cross-country skiier, you can't just decide to take a hike into the backcountry (as you can in summer) to get away from it all.

Kristof notes that only 950 snowmobiles will be allowed in per day. He's got his number wrong; the actual number is 780. But that's misleading; it doesn't mean that there will only be 780 snowmobiles in the park on a given day. Snowmobilers can (and many do) drive into the park and then stay overnight at one of the hotels that remain open in the park through the winter. So the actual number of snowmobiles in the park on a given winter day is appreciably higher than 780. And while you might think that in a park of this size, a thousand snowmobiles would barely be noticeable, think again. The overwhelming majority of snowmobilers spend most of their time tooling around on the main loop road that circles the park. Last winter my wife and I, on our cross-country skis, needed to cross that road about a half-mile from Old Faithful. We had to stand by the side of the road for about three minutes, waiting for an endless stream of snowmobiles to streak by, before there was a sufficient break in the traffic for us to get across safely.

Finally, Kristof discounts the snow coaches that currently bring non-snowmobiling visitors into the park, and that ferry them from location to location (if they can't get from place to place on skis). "The existing snow coaches may be worse than the new snowmobiles in terms of noise and pollution," says Kristof, "and they are a dismal experience--you encounter nature only through fogged-up windows." Well, OK: the existing coaches are noisy, and at least in snowy weather the windows do tend to fog. But what about the idea of newer and better coaches? Might that not be preferable to hundreds and hundreds of snowmobiles? Remember: you shouldn't be comparing one snow coach to one snowmobile. You need to compare one snow coach to the 18 to 27 snowmobiles that would be needed to carry the passengers in that snow coach. Those 18 to 27 snowmobiles will form a line hundreds of yards long as they motor through the park, and extend their noise and smell across far broader distance than will a single snow coach.

I agree in principle with Kristof that our parks should be managed in a way that allows people to experience and enjoy them. But Kristof's arguments just don't take account of what's unique about a Yellowstone winter, or of the real impact that snowmobiles have on the essence of the winter experience that the Park is supposed to preserve for those who visit.

John Allore reminds us today that google searches can sometimes be a window into what a story is really about.

So says this story in the Times.

But several of the donors have expressed concern that their thank-you notes are coming from the Department of Homeland Security.

From the pen of Carol Bruxvoort (email: bruxvoor@REMOVEemail.unc.edu), one of my first-year Constitutional Law students here at the University of North Carolina, I bring you a delightful poetic interpretation of that old chestnut, Marbury v. Madison.

Marshall Law
(Respectfully dedicated to Mr. Thomas Jefferson, "T.J.")

T'was the night before T. J.
And through the White House
All the creatures were stirring
Down to the last mouse.

T'was a crisis, you see—
Republicans were coming!
They must use their wit,
Be swift and be cunning!

They'd lost the White House
And Congress to boot;
If they didn’t keep judges
Their cause would be moot.

They crafted a scheme,
They came up with a plan
"We'll only name justices
Of Fed'ralist brand."

Justice jobs were increased
'Ere the Congress was gone,
So Adams, he filled them
And Marshall signed on.

The commissions were ready
To take to those named
And delivered they'd be
By Marshall's bro., James.

So the president cried,
"On James, to your missions!
Make haste and be off!
Hand out the commissions!"

James valiantly tried
To succeed at his task
'Most all were delivered—
What more could one ask?

The Rep's then took office
And denied to the rest
Their justice commissions
At T. J.'s behest.

'To deny my commission,'
Said Mar'bry, 'was heinous'
So he petitioned the court
For a writ of mandamus.

To the High Court he went
Based on the fact
Congress said, "That's the place"
—Per Judiciary Act.

Now Marshall, you see,
Was in a tight spot –
If the writ he did grant
T. J. would be "hot"

T. J. would refuse,
He'd surely resist,
But all that could follow
Were slaps on the wrist.

The court would be toothless,
Its influence lost;
The writ wasn’t worth it –
Consider the cost!

So Marshall came up with
The plan of the hour
The writ he struck down,
But expanded his power

"The Constitution," said he,
"Is the law of the land;
It must be obeyed
Down to the last man."

He struck down as void
The Judiciary Act—
Constitutional accord
Was the thing that it lacked.

He said that the court
Is the one to decide
If a law should be struck
Or a law should survive.

He also proclaimed
"Over presidents, too
The court has the power
Of judicial review."

And from that day on
The court's claimed the right
To deem the law is
What it is in their sight.

At the end of the day
Marshall had licked 'em
By judicial review
He created in dictum.

Amidst all of the internet tongue-wagging about the rumor that has just been Drudged up about Senator Kerry's affair with a journalist intern, I found this entertaining line from a "news" piece, which says something quite stunning about the state of news reporting today, though I'm not sure exactly what:

It is unclear how the allegations will affect Mr Kerry's wife, who is now seen as an asset to her husband's campaign despite revealing that she uses Botox.

First DOJ issues supbpoenas to a university for information about a meeting to plan a protest of the U.S. military's involvement in Iraq.

Then, just a few days later, it issues subpoenas to a hospital for confidential patient information about the medical necessity of abortions.

One wonders what the Attorney General will pursue next.

Bootleggers, maybe?

The government's prettification efforts in the pending Supreme Court cases continue.

Today's Washington Post describes the dogs at the Westminster Kennel Club Dog Show as "row after row of four-legged JonBenets in cages, petted, prodded and photographed."

Is it just me, or is this line more than a bit disrespectful to the memory of a child murder victim?

... Diet Coke with Lime is good!

Congressman Mike Honda of California has been fighting for a while now to have February 19 declared as a national Day of Remembrance, to commemorate the tragedy of the incarceration of Japanese Americans during World War II. (February 19, 1942, was the day that Franklin Roosevelt signed Executive Order 9066, which gave the military carte blanche to undertake its program of eviction and detention.)

Lest you think that such a day of commemoration and education is not needed, read this.

UPDATE: Or read this comment that a reader wrote in response to this post:

Goodness me, all this fuss about something so long ago. It's odd really that we can forgive the current peoples of Japanese and the Germans, for the terrible actions of the Japanese and German nations in WWII, but we can't forgive ourselves for infractions that our nations may have committed during WWII.
I suppose one could say that's it's fair for us to hold ourselves to a higher standard, but we already did that. Hundreds of thousands of Allied soldiers, sailors and civilians were held in what were essentially death camps by the Japanese. By absolutely no stretch of the imagination can the Japanese American detention by held to be comparable.
Given that history is little more than the register of the crimes, follies, and misfortunes of mankind, the very fact that the Japanese American detention was so relatively civilized surely signifies the success of American political leadership in 1942 not their failure.

Incredible.

It's impossible to know what's behind this investigation. But it sure looks troubling.

But it's not what you think.

I'm in love with a band. (In addition to my wife.)

Fountains of Wayne.

Oh my god. I can't believe it took me this long to discover these guys. I was in a Gap store the other night and a song came on the store soundtrack. Never has a song in a store caught me so completely. I was literally glued to my spot on the sales floor, listening. I thought to myself, "whoa, this guy has listened to a lot of Squeeze." (Squeeze is my favorite band.) I actually went to the store manager and demanded to see the play list. He gave it to me, and I saw that it was "Hey Julie" by Fountains of Wayne.

I looked 'em up on the web and learned that they'd done "Stacy's Mom," a song that I'd heard a couple of times on the radio and really liked. So I went and bought "Welcome Interstate Managers."

I have not bought an album this good in 10 years. Squeeze meets Del Amitri meets Oasis. Unbelievable.

I'm in love.

The idiot who spun wheelies in his pickup in the fragile soil around Lone Star Geyser in Yellowstone National Park got jail time yesterday.
Richly deserved.

Again I am astonished -- astonished! -- at the cultural illiteracy of the American people.




Everyone's in a huff about Janet Jackson's, uh, appearance at halftime the other night.



















Do people not see Jackson's teasing yet reverential allusion to the reknowned 15th-century "Salting Madonna" by Robert Campin, the Master of Flemalle?

You'd think by now we'd know everything about the experiences of Japanese Americans in the wartime relocation centers during World War II, but good new research continues to be done. Here's a link to a story about a researcher who is investigating the institution of girl scouting at the Heart Mountain Relocation Center in Wyoming. Interesting stuff.

One quibble: the story suggests that the researcher plans to argue that membership in the girl scouts was a form of "resistance" to the government's program of incarceration. That claim strikes me as a real stretch.

I often shop at a wonderful health-food-ish supermarket here in Chapel Hill. It used to be called Wellspring, and now it's called "Whole Foods"--part of a chain of stores. It's not strictly a health-food store; they sell all sorts of stuff that would make a vegan vomit. But it presents itself very much as a health-conscious, high-quality, no-preservatives, free-range, environmentally conscious kind of place. Know what I mean?

Here's the problem. At the checkout, the progressive and environmentally-conscious-looking checkout person asks me The Question:

"Paper or plastic, sir?"

And every time, I am paralyzed. I desperately want to do the environmentally appropriate thing. (Although not enought to bring my own cloth sacks, obviously.) But I just don't know what the appropriate thing is. If I ask for plastic, I'm contributing to the overfilling of our landfills. If I ask for paper, I'm contributing to the destruction of our forests.

Any guidance on this weekly dilemma I encounter would be much appreciated.

Don't tell me to bring my own cloth sack, though. Not gonna do it.