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"

My kids are watching the Flintstones Christmas Special.

How could the Flintstones, who were, after all, a "modern stone age family," celebrate Christmas?

Just asking.

In this article in the New England Journal of Medicine, Dr. Susan Okie argues for at least a bit more transparency from the Supreme Court about serious medical conditions afflicting its members. It's a balanced piece that takes into account both the value in privacy of medical information and the public's interest in knowing about the wellbeing of the life-tenured Justices.

I would still like to see a physician opine on the plausibility of Chief Justice Rehnquist's prediction, upon the Court's announcing his illness, that he'd be back in his chair at oral arguments the following Monday (just before the presidential election). At the time, it struck me as deeply, deeply implausible--and therefore likely intended purely to defuse any potential fallout about imminent Supreme Court vacancies in the then-boiling presidential campaign.

. . . you might be a federal court litigant.

A Kentucky girl is suing her school district for barring her from her senior prom when she showed up in the stunning dress you see here.

I understand that the federal district court is appointing Jeff Foxworthy as special master to try the case.

In his excellent chronological series on civil liberties in crisis times over at Larry Lessig's blog, Geof Stone has reached World War II and the Japanese American internment. He ends with a great question:

"Suppose the United States is hit with six terrorist attacks on the scale of 9/11 in the next three weeks. Suppose some of the terrorists are foreigners and some are American citizens who are Muslim. Suppose the Bush administration orders the detention of all non-citizen Muslims in the United States and the temporary detention of all Muslims who are citizens of the United States, at least to determine which may pose a threat to the security of the nation. Would you support this? Can you distinguish it from the World War II internment?"

I'll post more on this early next week. In the meantime, I'd be curious to know what people think. Leave a comment. (Commander Hopwood, please save your breath and my bandwidth. We know what you think.)
I would, however, like to correct one thing in Stone's historical account. He says this:

"Although J. Edgard Hoover vehemently opposed this recommendation on the ground that it was unnecessary, excessive, and entirely the product of public hysteria, and Attorney General Francis Biddle opposed it as unconstitutional and immoral, FDR nonetheless issued Executive Order 9066 in February 1942. . . . Why did FDR do this? Certainly, it was not because there was a military necessity. Rather, it was a political decision. FDR did not want to lose the support of the western states in the 1942 congressional elections."

Implicit in Stone's account here is that FDR would have been expected to oppose such a thing, and in his heart of hearts probably thought it wrong, but acceded to the political demands of residents of the western states. While it's undoubtedly true that FDR understood the political benefit of signing EO 9066, it's false to imply that a political calculus was what led him to sign the order. As Greg Robinson has amply demonstrated, EO 9066 landed on the desk of a President who had a long history of viewing Asians generally and the Japanese specifically with great suspicion. He saw them as unassimilable and untrustworthy. It's safe to say, then, that FDR signed EO 9066 not thinking it wrong but politically necessary, but thinking it right and politically necessary. That's an important difference.

John Barrett cites some interesting historical precedent for the shift in Attorneys General and (probably) in Supreme Court membership that's about to take place.

There's a comet on its way, folks. Comet Machholz. It'll peak in brightness just after the New Year.

The guy who discovered it is, you might say, a wee little bit into astronomy.

It is hard to know which of two bits in this article is funnier--the headline ("Researchers Work on Test for Cattle Altitude Sickness") or the fact that cattle altitude sickness is called "brisket."

Gussie Fisher, and the rest of the world's Jewish mothers, are not amused.

... but I do.

Back in late summer and early fall when I was posting (here and as a guest at the Volokh Conspiracy) the serial critiques of Michelle Malkin's dangerous book "In Defense of Internment" that are compiled here, a number of kind IsThatLegal readers sent me notes telling me they thought the effort deserved some sort of award.

Brian Leiter, who minces no words, was kind enough to say this about my posts:

Easily the most intellectually and morally useful contribution to the blogosphere in my memory has been the patient and thorough demolition of know-nothing journalist Michelle Malkin's book-length apology for the internment of Japanese-Americans during World War II by Professor Eric Muller (Law, North Carolina), himself an actual, scholarly authority on the subject.

Nominations for the Koufax awards are now open.

Several categories seem like possibilities: Best Post, Best Series, and Best Expert.

If you're a regular IsThatLegal reader, and think the blog deserves consideration for one of these Sandy Awards, I'd appreciate your support.

A very oddly emotional thing happened today. I don't typically blog about oddly emotional things, believing them generally better kept to myself and my family and friends, but this one happened in the context of my work, which I do blog about. So here goes.

Over the past year I've become quite interested in the role that lawyers played in planning and implementing the Japanese American internment. (There were lawyers everywhere in the internment program.) Each of the ten War Relocation Authority ("WRA") camps for Japanese Americans had a law office staffed by a caucasian "Project Attorney" and a handful of Japanese American internees who were either lawyers or what today we'd call "paralegals." The Project Attorneys were, by and large, New Deal liberals, often Interior Department attorneys, cast into the strange role of overseeing a program of racial incarceration.

The Project Attorney at the Poston Relocation Center in Arizona (about which I recently wrote in this paper) was a man named Theodore H. Haas. Over the past several months I feel I've gotten to know him well. He was a vivid and prolific writer, filing weekly 12- to 15-page single-spaced typewritten reports with the WRA's home office in Washington, DC. Unlike the Project Attorneys at other camps, who kept their reports short and focused on specific legal issues, Haas filled his reports with all sorts of details about camp life. He was funny and self-deprecating, sometimes disarmingly honest, observant of details that other camp administrators overlooked, deeply patriotic yet often agonized by the racism of the program he had a hand in administering. A Jew keenly aware of his own minority status, Haas felt a kinship with the interned Japanese Americans around him. He was troubled by digestive problems and had to leave camp for Los Angeles on more than one occasion for lengthy medical treatment. He was a loner, unmarried, a fitful sleeper, compulsively dedicated to his work.

After leaving Poston he went on to become a passionate champion for American Indians in his capacity as Chief Counsel for the Office of Indian Affairs.

I plan to write about Haas and a handful of other internment lawyers this coming spring.

Today I managed to track down someone who knew Haas well--UCLA anthropologist Walter Goldschmidt, a spry 92-year-old who travelled throughout southeast Alaska with Haas in the 1940s interviewing native southeastern Alaskans about their lives and land. Together the men produced a groundbreaking book about native land rights that was recently reprinted by the University of Washington Press.

The first thing Goldschmidt told me was that Ted Haas committed suicide in June of 1959, at the age of 54. He threw himself to his death from the Calvert Street Bridge in Washington, DC, into a thicket in Rock Creek Park 300 feet below. (After speaking to Goldschmidt, I found Haas's obituary, left, in the New York Times.)

This news hit me like a body blow. I am astonished at the intensity of my reaction. This is a man who died 45 years ago, and whom I never met. The only way I know him is from reading two years' worth of professional correspondence he left behind.

I never would have imagined I could feel such grief for someone who died before I was born. Obviously I must have identified with Ted Haas in more powerful ways than I realized.

This evening I drove out of town to a dark spot with my 10-year-old daughter to watch the Geminind Meteor Shower, which peaks tonight. It's a beautiful evening here--cold but not oppressively so, cloudless, moonless--perfect meteor-watching weather. We were not disappointed. In about 1/2 hour we saw about a half dozen nice meteors and one incredible fireball, better than what's pictured below.

It was so bright that it actually lit up the ground around us.

A beautiful, peaceful evening.

I found this little vignette from one of the opinions rendered by the Supreme Court today somehow charming.

A cop was investigating a guy who appeared to be impersonating a police officer:

Devenpeck noticed a tape recorder on the passenger seat of respondent’s car, with the play and record buttons depressed. . . He ordered Haner to remove respondent from the car, played the recorded tape, and found that respondent had been recording his conversations with the officers. Devenpeck informed respondent that he was under arrest for a violation of the Washington Privacy Act, Wash. Rev. Code §9.73.030 (1994). Respondent protested that a state court-of-appeals decision, a copy of which he claimed was in his glove compartment, permitted him to record roadside conversations with police officers. Devenpeck returned to his car, reviewed the language of the Privacy Act, and attempted unsuccessfully to reach a prosecutor to confirm that the arrest was lawful. Believing that the text of the Privacy Act confirmed that respondent’s recording was unlawful, he directed Officer Haner to take respondent to jail.

A cop parses statutory language in the squad car, while the suspect cites appellate precedent he's got stashed in the glove compartment.

You don't see that on COPS too often.

I recently read Aaron Lansky's "Outwitting History," which tells the story of Lansky's efforts to rescue the vestiges of Yiddish literature from attics, basements, and dumpsters.

Trust me that it has very little in common with this book. (The illustration of the meaning of "gornisht" is especially good.)

Which animal (after humans) has the most complex oral vocabulary?

Chimps? Dolphins? Prairie dogs? Rugby players?

The answer will surprise you.

My students are taking my Criminal Procedure exam right now.

Keeping with the theme, I just read this exam question posing as a newspaper article in the Casper (Wyo.) Star-Tribune:

Facts:
Contestant pays a $25 fee to enter a poker tournament at a bar. He is given a set number of chips with no monetary value and competes with other poker players seated at the same table at the game "Texas Hold 'Em." The winner is the player who ends up with all of the chips at the table. Winners then go on to compete against other individual table winners until only eight players are left. The final eight compete at a "final" table, and the winner of this table is crowned champion. That winner and the runners-up receive prizes paid for out of the $25 fees paid by all entrants.

Rules:

(1) Under state law, a person who engages in "gambling" commits a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both, and a person who engages in "professional gambling" commits a felony punishable by imprisonment for not more than three (3) years, a fine of not more than three thousand dollars ($3,000.00), or both.

(2) "Gambling" means "risking any property for gain contingent in whole or in part upon lot, chance, the operation of a gambling device or the happening or outcome of an event, including a sporting event, over which the person taking a risk has no control, but does not include:

"(A) Bona fide contests of skill, speed, strength or endurance in which awards are made only to entrants or the owners of entries."

(3) "Professional gambling" means:

(A) Aiding or inducing another to engage in gambling, with the intent to derive a profit therefrom; or

(B) Participating in gambling and having, other than by virtue of skill or luck, a lesser chance of losing or a greater chance of winning than one (1) or more of the other participants; and

(ix) "Profit" means benefit other than a gain, which is realized or unrealized and direct or indirect, including benefits from proprietorship, management or unequal advantage in a series of transactions

Question Presented: Are the bar or its patrons guilty of gambling or professional gambling?

Answer: --fill in the blank--

Sally Greene has been on a roll the past few days. Lots of good stuff. Go on over and scroll down.

This is my book in Japanese, just published by Tosui Shobo.

Or that's what I'm told, anyway.



If there is a Japanese speaker out there who'd be kind enough to translate the front cover for me, I'd be much obliged.

First I don't get invited to join the Harvard faculty.

Then I don't make Legal Affairs magazine's list of the nation's most important legal thinkers, in either the academic or the writers/commentators category.

So I would guess that this, like this or probably even this, is pretty much out of the question.

I tell you I don't get no respect.

If you are a blogger, and have a couple of minutes to spare, go over and respond to Martin's 5 questions about blog ethics.

Stop on by and welcome John Moye to the blogosphere.

There must be something wrong with my phone. It's not ringing.

Today "Anonymous Law Professor" (hah!) tells us this:

"Luckily I have rotated on to two of the more interesting committees. One is the student admissions committee."

If you're going to lie, at least make it credible.

A new paper I've written, "A Penny for their Thoughts: Draft Resistance at the Poston Relocation Center," is now available for download on SSRN. Here's the abstract:

Resistance to the Japanese American internment by the small handful of internees whose cases went to the United States Supreme Court is well known. Resistance to the internment, however, ran broader and deeper than those few cases would suggest. This article tells the story of the just over one hundred Japanese American internees from the Poston Relocation Center who resisted the military draft in 1944 in protest of the deprivation of their rights as U.S. citizens. They were prosecuted for draft evasion, and a federal judge sentenced sub-groups of them variously to terms of 3 years in prison, 1 year in prison, and a fine of one penny. The article defends these shifting and seemingly contradictory sentences that the judge imposed on the Japanese American draft resisters of the Poston Relocation Center as accurate reflections of the complex and varied motives of the draft resisters themselves.

Every time I'm at my kids' elementary school at the beginning of the school day, I am shocked that they do not recite the Pledge of Allegiance. Every single time.

Dabney Grinnan blogs about that issue here.

Any lingering question about whether the new blog "Anonymous Law Professor" is actually written by a law professor was put to rest this morning with a stupid post about exam-writing, in which the blogger wrote this:

I have some favorites cases that I use over and over again, mainly because they consistently fool significant numbers of first years. One of the cases we will have covered in class. However, I alter one key fact in such a way that it completely alters the outcome of the case. Invariably about 10% of the class will miss this alteration entirely; they fail.

In ten years of teaching I have met only a very small handful of professors who have out-and-out failed more than one or two students in their careers. I'm comfortable asserting that a first-year class in which ten percent of the students fail the final exam does not exist at any accredited law school in this country.

This confirms that our "Anonymous Law Professor" is actually a law student having a good time at the keyboard.

Next week's headline over at CrimProf: "Virginia Inmates Teach Habeas Corpus Seminar to William and Mary Law Students."

Some have suggested that my calling attention to Michelle Malkin's retention of her maiden name for legal use is racist, apparently because her maiden name is Filipino.

Au contraire, mes amis.

Malkin says that her maiden name is "a beautiful, melodic, Filipino family name," and I agree.

What I was pointing out was the hypocrisy of her attacking Teresa Heinz Kerry for selectively using the married name "Kerry" while selectively using her own married name.

As Malkin put it back in July, in a post called "Strange Love" commenting on the Kerry marriage, "[t]he adoring wives I know do not have huge conniption fits over adopting their husbands' names."

The inference, of course, is that adoring wives just adopt their husbands' names.

Malkin didn't.

Simple as that.

Lest you thought things were getting all warm and fuzzy here at IsThatLegal, my Reason Magazine review of Michelle Malkin's "In Defense of Internment: The Case for 'Racial Profiling' in World War II and the War on Terror" is now posted at reason.com.

It begins thusly:

Since 9/11, some civil libertarians have denounced every antiterrorism policy that singles out Arab men as a repetition of the terrible mistake the government made after Pearl Harbor, when it evicted tens of thousands of American citizens of Japanese ancestry from their West Coast homes and banished them to barren camps in the interior. Supporters of profiling have a reasonable response to this comparison with what we’ve come to call the Japanese-American internment: There is a big difference between asking Arab male airline passengers some extra security questions and forcing American citizens behind barbed wire in the high desert for three years.

As obvious as that answer might seem, it is not the answer that conservative columnist Michelle Malkin gives in her book In Defense of Internment: The Case for ‘Racial Profiling’ in World War II and the War on Terror. She argues instead that the desert imprisonment of virtually all of the West Coast’s Japanese-American men, women, and children for three years was the right thing to do: It was a sound military judgment that Franklin Delano Roosevelt and his top war advisers made on the basis of solid intelligence that Japan had organized untold numbers of Japanese resident aliens (the “Issei”) and their American-citizen children (the “Nisei”) into a vast network of spies and subversives.

Over the last several decades, historians have shown that the chief causes of the Japanese American internment were ingrained anti-Asian racism, nativist and economic pressures from groups in California that had long wanted the Japanese gone, and the panic of wartime hysteria. As the Presidential Commission on the Wartime Relocation and Internment of Civilians said in its 1981 report to Congress, “The broad historical causes which shaped [the decisions to relocate and detain Japanese Americans] were race prejudice, war hysteria, and a failure of political leadership.” Malkin contends that this history is a big lie—a “politically correct myth” that “has become enshrined as incontrovertible wisdom in the gullible press, postmodern academia, the cash-hungry grievance industry, and liberal Hollywood.”

That passage alone should tell the reader this book is not a trustworthy work of history but a polemic—The O’Reilly Factor masquerading as the History Channel.

UPDATE: Comments by Dave Friedman here.

Michelle Malkin has a good post up (really ... I'm not being sarcastic) calling attention to the efforts of some German Americans to raise public awareness of the story of German aliens and their U.S.-citizen children who were interned in the USA during WWII.

Often these advocates seem to subvert their own cause by directing a great deal of anger at those who write about the Japanese American experience in World War II. It is refreshing not to see that in either Malkin's post or the letter to which she links.

When people so cavalierly say that Chapel Hill is a great place to live, they forget that the nearest Dairy Queen is over 18 miles away.

Who would have thought it? Two works of fiction about Japanese Americans in the same year!

(Thanks to Glenn Reynolds for the pointer.)

The end-of-year snark-list over at Michelle, uh, Malkin's blog yesterday included this:

END-OF-THE-YEAR LISTMANIA II: THE TEH RAY ZAH EDITION

The quotable Mrs. Heinz Kerry (or is she back to Mrs. Heinz?) deserves a 2004 best soundbite list all her own:
. . .
"My legal name is still Teresa Heinz. Teresa Heinz Kerry is my name . . . for politics."

Here's the copyright statement from the first page of Michelle, uh, Malkin's "In Defense of Internment":



I guess Michelle Malkin is her name . . . for being a Fox News commentator.

(Hat tip to an astute IsThatLegal reader for catching this.)

This was an awesome video game.

UPDATE: Whoa. Look what I found. And I'm supposed to be writing an exam. (Couldja tell?)

Have you ever noticed how, in the grocery line, people often sound sort of, I don't know, ascetic when they opt for the plastic? It's always, "oh, plastic's just fine," as if to say, "Oh, don't go to the trouble of paper for me; I wouldn't think of wasting a paper bag on my little items here. I can get by just fine with plastic."

You never hear somebody say, "oh, paper's just fine."

What's up with that?

The comments continue to pile up about my earlier post trashing one of the often-heard objections to penalty enhancements for a criminal's motive of bias. Now the other often-heard objection appears: "Enhancing the criminal sentence because of the offender's prejudiced motivation," it is claimed, "is essentially punishing the offender for his beliefs and opinions."

This is true only in the way that an apple is "essentially" an orange.

Consider four situations:

(a) a person is convicted of and punished for the crime of hating Jews.

(b) a person is charged with the crime of burglary. A search of his car incident to the arrest uncovers viciously anti-semitic literature. The sentencing judge says, "The law allows a sentence of 3 to 7 years for this offense. I was going to give you 3 years because this is your first offense, but I've decided to give you 7 years because you're an anti-semite."

(c) a person burns down a synagogue because he hates Jews. He is prosecuted for arson, and his sentence is enhanced because of the anti-semitic motive for the attack.

(d) a person burns down a synagogue because he wants to collect on an insurance policy. He is prosecuted for arson, and his sentence is enhanced because of the motive of greed.

Is it not terribly obvious that (a) and (b) are nothing like (c) and (d)? And that each of (a) and (b) are essentially alike and each of (c) and (d) are essentially alike?

When this, one of the most conservative U.S. Supreme Courts in the history of the institution had this question before it in 1993, it rejected the argument that penalty enhancements for bias motive are impermissible punishment of belief and opinion unanimously. In an opinion by the notoriously politically correct William Rehnquist.

So enough of this chatter about how sentence enhancements for bias motive are illegal thought control. It's just silly.