PrawfsBlawg

Some Weekend Reading: A Review of Posner and Powell

Looking for something to do this weekend?  I have just the thing for you.  Here is a short draft review, which should hopefully be destined for a popular practice journal, of two great new books: Richard Posner's How Judges Think, and H. Jefferson Powell's forthcoming Constitutional Conscience: The Moral Dimension of Judicial Decision.  Both are splendid, and I hope the review is a nice introduction.  I hope fans of virtue jurisprudence will find it particularly interesting, but it should be of general interest to students of and kibitzers in constitutional law and people who are interested in the judge's craft -- that is to say, everyone who reads this blog.  Here's the abstract:

This is a short review of two new books on judging -- Constitutional Conscience: The Moral Dimension of Judicial Decision, by H. Jefferson Powell, and How Judges Think, by Richard A. Posner. Although both books examine the same topic, and both focus largely on judicial decision making by Supreme Court Justices in the area of constitutional law, their approaches diverge significantly. Powell takes a page from virtue ethics in offering an expansive and ruminative vision of the ethical virtues and vices that characterize the judge in a constitutional case. Posner brings his economist's toolkit, supplemented by a variety of disciplinary adjuncts and a bracing dose of pragmatism, to many of the same questions. Their goals are somewhat different, and their conclusions, despite some common ties, present a striking contrast. These books may be read as complementary and not just competitive accounts. Nevertheless, I suggest that Posner's account is far more descriptively accurate, although Powell leads us, commendably, to think about the ways in which we might reconsider and revive the kinds of constitutional virtues that are at the heart of his romantic account.

And here's a brief snippet comparing the two authors:

Powell would drape the figure of Lady Justice in new and glorious robes, albeit robes of ancient design.  Given his druthers, Posner would criticize the cut of Justice’s robes, scoff that they aren’t warm enough to have any useful function, and digress to note that the taboo against nudity is itself a historically contingent and only locally applicable social norm.  (Seriously.  Doubters may consult the index entries on “nudity” in Posner’s Sex and Reason.)

Enjoy.  May I add self-servingly that I would love to expand this short review into a full-on treatment for a law review, and I invite law review editors who might be interested to let me know. 

Voter ID and Election Fraud: A Non-Fix to a Non-Problem?

Lots of people have said interesting things about the Court's upholding of the Indiana Voter ID statute, including Rick Hasen  (in a 2006 piece in Slate, voter ID laws in Slate, and a more recent piece here)   Vikram Amar, Dan Filler, and Edward Foley and Dan Tokaji. 

My perspective comes from my experience with technology here in Tucson, and it makes me think that requiring a photo ID at the polls is almost perfectly calculated to exclude only legitimate voters, while taking care not to catch any fraudsters.   Reasonably high quality fake ID's are readily available.  The students in my white collar crime clinic prosecuted a man who, for $50, in a matter of minutes, with nothing but a computer, laser printer and laminator, made pretty terrible green cards for the undocumented and pretty good Arizona driver's licenses for thirsty high school kids.  Any fraudulent voting operation could easily mass produce acceptable counterfeit photo ID.  This guide enables bars to check the validity of  ID's by identifying the characteristics of genuine documents--oops, since it is available to the general public, vote fraud folks can also make sure to use the right verification codes.   They look legit.  So requiring photo ID would not prevent organized vote fraud (if it in fact existed, which many commentators seem to doubt).    On the other hand, actual security would be easy to achieve.  Every police car in the State of Arizona can instantaneously pull up a driver's license photo on a wireless laptop--the actual photo of the licensee, so the officer cannot be fooled by a fake document.   There is no reason, if it is important, that  these databases cannot be made available to election workers,  and every voter verified--not merely to verify that they have an ID, real or not, but that they are actually who they say they are.  And of course, photos of people without driver's licenses could be added to this database, or to another one, at the time of registration.  This type of system would have the virtue of actually preventing fraud.  However, this type of verification system would  also allow most everyone to vote, even if,  when asked what kind of ID they have, they answer "nun", the poll worker would just pull up their photo.   Since the states don't seem to do this, commentators may be right that there is no actual fraud problem, but that voter ID is another transaction cost designed to drive down Democratic voter turnout.   

Federal Rules of Electoral Procedure?

Heather Gerken had a Legal Times op-ed and a Balkinization post discussing proposals for private, non-partisan "shadow institutions" to help resolve electoral disputes involving vote counting, eligibility, and districting. She writes more here. She argues that such institutions can function as a first step towards taking control of electoral processes out of partisan hands and moving us, incrementally, toward the non-partisan processes that all other western democracies use.

I do not study the electoral process, although much of the work in it, particularly Gerken's, is very interesting. But it seems that she and other commentators pushing for electoral reform are playing out, in the electoral context, the same spirit of judicial procedural reform that played out in the late 19th and first three decades of the twentieth century, and which lead to the Rules Enabling Act of 1934 and the Federal Rules of Civil Procedure four years later. (Steve Burbank's 1982 article remains the best history of the spirit of reform that lead to the Rules).

That period was marked by a drive for reform in the content of procedural rules (simplified and de-emphasized pleading, simplified access to litigation, flexibility to bring multiple claims and multiple parties into a case, broad discovery and cooperative exchanges of evidence, preference for resolution of claims on the merits) and in the process for creating rules (moving the power to create rules away from individual states and the political branches and into the federal judicial branch, reliance on the expertise of the judges, law professors, and lawyers on the rules committees that did the drafting). All with a goal of creating a uniform national system of "neutral" procedure, with rules that do not favor one set of litigants or interests over another (bracket, for the moment, the realty that, as the system and substantive law have evolved, procedure has proven to not, in fact, be neutral).

Does that sound similar to what electoral-reform scholars now seek? A system of neutral electoral procedures, that do not systematically favor one political party or group over another. A system that will be fairer and better able to serve the ultimate goals of free, fair, and accurate elections with full voter participation and easy access to participation in the process. A system of rules created by experts in an environment insulated from the realities of partisan rent-seeking. And perhaps a degree of uniformity in the system, at least to the extent that experts agree on "best practices" for drawing district lines, registering voters, and counting votes.

The analogy is not perfectly exact. The problem, as Gerken points out, is that legislators' personal and partisan interests in the details of the electoral process, and the outcomes they produce, make them less likely to surrender rulemaking power to any other institution, neutral or otherwise. Members of Congress, regardless of party, did not particularly care whether the advisory committee and the Supreme Court adopted notice pleading or made it easier for plaintiffs to get into court; they will care about how electoral lines are drawn to the extent it advantages or disadvantages them or their party. Reformers can take some solace in knowing that change takes time--agitation for procedural reform begin in earnest in 1896, but had been ongoing for some years before that. So it takes time. On the other hand, I do not believe late-19th century civil procedural was nearly as dysfunctional as current electoral procedures, so waiting becomes a little harder.

By the way, the title is not meant to suggest that the electoral rules should be federally codified, but only to suggest that we may be seeing a similar spirit of procedural reform as the 70-year-old (as of this year) FRCP.

Debate without definition

Richard Ford at Slate's Convictions writes about a new announcement from the LAPD that a departmental investigation into more than 300 accusations of alleged racial profiling found that none could be sustained. Ford is not surprised by the result, because the department defines racial profiling as an officer-initiated confrontation solely because of race; and of course it virtually never will be the case that an officer stops someone solely because of race, even if race (along with other characteristics) is a factor. Ford makes the broader point that everyone in the political debate can agree that racial profiling is wrong because no one agrees on what it means; all sides can oppose what they define as profiling, but we never move forward in resolving the problem because there is no agreement on what, precisely, the problem is.

This is a problem as to most of the hot-button terms of current political debate. But, at least in the political arena, no one ever discusses the importance of definition. President Bush can say with a straight face that "America does not torture" because the administration has defined the word so narrowly as to define it out of existence and no one has gone to the trouble of pinning the president down on what he understands torture to mean. We see the same problem with respect to "judicial activism," a phrase I try to eliminate from my Fed Courts students' vocabularies. Again, everyone sort of agrees that "judges legislating from the bench beyond their assigned role" is a bad thing--but there is no agreement (and I am not sure there ever can be) on when a judge has legislated from the bench, when she has engaged in permissible interpretation, and when she has exercised her power of judicial review.

This is why the most important follow-up question I can ask in class (and the one that certainly most frustrates students) is "what do you mean by X?" Bill Clinton, of course, became infamous for demanding a clarification of the definition of "is." But underneath the ridiculous appearance, he was right. Law and policy simply cannot function when we attempt to work with undefined terms, but the import of definition too often is ignored.

Blue Dogs on the Bayou

This Saturday the Sixth Congressional District in Louisiana will hold a special election to fill the seat vacated by long-time Republican Congressman Richard Baker, who resigned to become head of the main lobbying group for the hedge fund industry. Needless to say, Baker’s salary should experience a nice bump up.

In recent years, especially since redistricting in 2000, the Sixth District has been considered a safe seat for Republicans.  It comprises most of Baton Rouge, which is fairly diverse racially and politically, and surrounding suburban and rural parishes, which are mostly white and very conservative.  But this year, “Blue Dog” Democrat and current State Representative, Don Cazayoux, is making a strong run for the seat.  The national Democratic Party is apparently pouring money into his race. Cazayoux’s main opponent is Woody Jenkins, a wealthy, ultra-conservative newspaper publisher who, when running for the Senate in 1996, gained infamy for buying former Ku Klux Klansman David Duke’s telephone list and then trying to hide the purchase. The national Republican Party is apparently less enthusiastic about Jenkins, though he does have the endorsement of Louisiana’s conservative boy wonder Governor and possible John McCain running mate, Bobby Jindal, as well as a lot of grass roots support particularly in the outlying parishes.  Voter turnout is expected to be the key to the race.

Should Cazayoux win, it will be a nice victory for the Dems and perhaps a harbinger of upcoming Congressional elections elsewhere in the South.  It might also foreshadow the next Louisiana Senate race, in which the always vulnerable Blue Dog Democrat Mary Landrieu will attempt to hang on in the face of a national Republican effort to unseat her.

Voting, political protest, and meaningful judicial review

A lot of great commentary on yesterday's decision in Crawford v. Marion County Election Board, upholding as against a facial challenge Indiana's requirement that people present a government-issued photo ID in order to vote. Several people have drawn parallels between this decision and other, (generally conservative-leaning) decisions on voting rights and abortion rights, particularly in the consistent rejection of facial challenges and in requiring individual plaintiffs return later with more developed facts of particular harms.

The problem, of course, will be one of timing: Will a plaintiff who experiences a serious and particularized burden on her right from the ID requirement (or other burdens on the right that, as Miike Dorf argues, states are almost certain to dream up in service of partisan ends under the constitutional cover of yesterday's decision) be able to litigate her constitutional challenge in time to vindicate her right to vote in this election? In all likelihood, no.

The parallel I want to draw is with political protests at major events, such as national political conventions. A new strategy for local governments is to enact restrictions on political speech on the eve of the event, leaving little time for reviewing the restrictions. This happened with the Democratic Convention in Boston in 2004. The city established protest zones (apparently inconsistent with what protesters believed had been agreed upon in negotiations) several days before the Convention. The district court and the First Circuit both declined to issue a preliminary injunction, citing the timing concerns and the imminence of the event as a basis for being unable to fully perform a time-place-manner constitutional analysis and for not being able to grant an injunction that would ot leave the city sufficient time to draft replacement regulations. Judge Lynch wrote a concurrence in the First Circuit, chastising both the city and the protesters for failing to leave sufficient time to negotiate the protest rules and to fully litigate issues that cannot be negotiated.

Of course, the government has no incentive to negotiate or otherwise act in a timely manner if the lapse of time means its last-minute regulations remain in place for the immediate event. Even if they are struck down later, the immediate goal (limiting protests or voting for the instant event) has been achieved. And that is true in both the protest context and, now, in the voting-regulation context.

And here again is a situation in which the § 1983 constitutional damages remedy is utterly insufficient to provide review and relief. The protester has lost her liberty to speak (outside of a metal pen underneath a railroad trestle) once the Convention ends; the voter has lost her liberty to vote once the election is over. Given the rules for § 1983 damages, under which the court looks for concrete tort-like injury and does not compensate for the constitutional right itself, the plaintiff will receive little ($ 1 in nominal damages, in all likelihood) or nothing (qualified immunity lurks as an overwhelming defense) for her troubles in post hoc litigation, even if she successfully proves a violation. At best, she ensures that she will be able to exercise her right (to vote or to protest) next time, but that hardly seems like a meaningful remedy.

Virginia v. Moore and § 1983

In a near-unanimous decision yesterday in Virginia v. Moore, the Supreme Court held that the Fourth Amendment was not violated where police arrested (and conducted a search incident to that arrest that found cocaine) an individual for an offense (driving with a suspended license) that is not an arrestable offense as a matter state law. I leave it to Orin and others who know this area to deconstruct the opinion under the Fourth Amendment. I want to weigh in on how this affects my area--§ 1983 damages litigation.

It long has been recognized that a violation of state law by a defendant acting under color of state law is not actionable under § 1983. But several lower-court decisions had gotten around that with the idea based on the notion that when police commit an act prohibited by state law, they necessarily act unreasonably. Thus, consider a case I worked on as a district court clerk and which I use as an in-class illustration. Two Philadelphia Housing Authority officers, whose jurisdiction as a matter of state law is limited only to PHA property, conduct a traffic stop and search off of PHA property; the stop otherwise would have been lawful, since pretty much any traffic stop is, if conducted by these officers on PHA property or by an officer with proper jurisdiction. That seizure arguably violated the Fourth Amendment because it might have been unreasonable for officers to take action beyond what they know to have been their state-law-authorized jurisdiction. At the very least, the claim was cognizable in a § 1983 action and could go to trial. Yesterday's decision seems to reject that notion altogether. The violation of state law merely is a violation of state law, not cognizable under § 1983, and nothing more.

Domesticating Torture and the John Yoo Affair

Talk has been circulating about John Yoo and tenure. Based on allegations that he has committed war crimes, that he has provided shoddy legal advice to the detriment of the country, and that he has advocated morally reprehensible views, some advocate that he be fired from Berkeley’s Boalt Hall School of Law. I don’t want to wade into this controversy (though, I’ll admit in passing that I do not agree, no matter how much I think that some of the underlying criticisms are probably correct, with firing a tenured faculty member based on such public pressure), but I do want to comment on an difficulty that Yoo’s case causes for one of the principle arguments used to justify extra-legal government action.

Oren Gross made an effective argument on how to justify extra-legal measures here. He argues that public officials may be justified in engaging in extra-legal actions during times of perceived emergency if they openly acknowledge their actions and if the public is willing ex post to ratify the actions. Even assuming that the acts of torture the Yoo memos purport to justify were committed under perceived emergency circumstances (a highly dubious proposition), the administration has only been partially open about its extra-legal actions, and it has not been willing to take responsibility ex post for having taken illegal actions. And while not admitting to engaging in war crimes and other illegal actions, the administration has worked hard to obtain ex post immunity from prosecution for those who carried out its policies (Military Commissions Act 2006, e.g.). Within Gross’s framework, Yoo’s memo is particularly pernicious because not only does it purport to provide legal cover for those engaging in what would otherwise be considered illegal actions, but it does not admit that the actions sanctioned are extra-legal, or illegal, in the first instance. By redefining the law to enable what would otherwise be considered torture, and by tendentiously purporting to define the scope of executive power, the memos shift the discussion away from holding administration officials responsible for what they actually have done. We are left playing semantic games between an administration that insists it does not torture (because its lawyers have implausibly defined torture so narrowly as to render even the most gruesome practices non-torturous), and the reality that the administration has engaged in torture (on any plausible account, and judicially sanctioned in other jurisdictions, of what constitutes torture). Thus, Jack Balkin can write, correctly I think, that there is little chance of any administration officials being held legally accountable for their actions. Is it nonetheless possible to hold administration officials responsible?

A practical problem is that in form, our present situation very much resembles Gross’s framework. The public has become aware of the administration’s actions and the internal means by which those actions were sanctioned, yet the mechanisms of responsibility have no outlet. Because of the particular difficulties of one administration holding a prior administration responsible for war crimes, and the near impossibility of the current administration pursuing any prosecutions of its own officials, there are fewer routes available for holding those officials responsible. The failure to prosecute or to have some more official public shaming, may reflect widespread public acceptance of torture, or it may reflect the fact that there are no institutional means by which the public can hold officials responsible (other than the ballot box). From this follows the misplaced desire by some to have Yoo fired. But does that mean we must leave things where they now stand? Must we accept that the official position of the U.S. government is that no one can be held responsible for acts of torture justified as necessary and sanctioned (or enabled) by the lawyers?

I think that Christopher Kutz makes a powerful point here, following the philosopher Bernard Williams, when he writes, “given a people who see slavery (or another injustice [torture]) as necessary, at least let them see it as a brute and inevitable affront to their principles, not as something their principles can domesticate and make safe to perpetuate.” Even if substantively wrong, calls for Yoo to be fired are attempts to make sure affronts to our principles do not become domesticated. If it is necessary for us to live with war criminals, or with those who have engaged in extra-legal or illegal actions, let the public sphere loudly and widely reflect the fact that we see their actions as brute and barbarous affronts to our principles.

I picked up the April Mother Jones issue last night at the grocery, and the cover story fits this theme nicely: “Torture Hits Home: When the Unthinkable Becomes Acceptable.” More than writing blog entries and law review articles like I (here and here) and others have done, I think that we do need some form of institutional accountability to ensure that torture does not become domesticated, even if no criminal charges are ever filed.

A web pitch for a Webb VP pick

The folks at Politico have this new piece about possible VP picks for the Democratic nominee, and I cannot help but add my two cents: I strongly favor Senator Jim Webb as the VP choice for the Dems.  Let me explain as a matter of political strategy and policy substance:

Political Strategy: As detailed in his official and wikipedia bios, Senator Webb was born in Missouri and elected to the Senate from Virginia.  If the Democrats can carry both these swing states, they have a huge advantage getting to 270.  In addition, Senator Webb has an extraordinary resume, both in terms of military and (outside-the-Beltway) achievements, which should draw support from all sorts of people from all parts of the country.  For example, during the Reagan years, Webb became the "first Naval Academy graduate in history to serve in the military and then become Secretary of the Navy."  In addition, Webb "has authored eight books, including six best-selling novels, and has worked extensively as a screenwriter and producer in Hollywood."  In addition, Webb "taught literature at the Naval Academy as their first visiting writer, has traveled worldwide as a journalist, and earned an Emmy Award from the National Academy of Television Arts and Sciences for his PBS coverage of the U.S. Marines in Beirut."

Policy Substance: To my knowledge, Senator Webb is the only prominent national politician who has held a congressional hearing directly addressing the problems of mass incarceration (details here and here and here).  In addition, I believe Senator Webb is an avid supporter of individual gun rights, which is sure to become a campaign issue once the Supreme Court decides Heller.  I am not deeply familiar with Webb's other policy positions, but his insightful concern about mass incarceration suggests to me that he is a thoughtful observer of national policy problems.

Listing a con for Senator Webb, the Politico piece says "Blunt and unpredictable, he might be a reluctant campaigner."  With a nation clearly tired of politics as usual, I view "blunt and unpredictable" as a pro rather than a con.  And I think Webb's military resume and anti-Iraq-war stance should make him the ideal person to attack Senator McCain on all sorts of policy issues.

Cross-posted at SL&P

Must-Read New Republic articles

While on the road this past weekend, I had the chance to sit down with the 4/9/08 issue of the New Republic, and I highly recommend the following articles as especially thoughtful or funny or both.

• Cass Sunstein and Richard Thaler's excerpt from their new book on "choice architecture," entitled Nudge (Yale University Press). There's a great anecdote about designing urinals, which long-time readers of Prawfs know is an important theme here.
• Peter Miller's penetrating review of Samuel Kassow's book on the Oyneg Shabes archive and its implications for historiography. The book, published by Indiana U Press, is called, Who Will Write Our History? Emanuel Ringelblum, the Warsaw Ghetto, and the Oyneg Shabes Archive. Perhaps our guest this month, Adam L., has some grad school reactions to this essay?
• Charles Larmore's unforgiving review of Charles Taylor's gargantuan new tome. The review's title says a lot: "How much can we stand?"
• And last, Leon Wieseltier's shrewd assessment of Noah Feldman's latest NYTMag piece. My favorite line from Leon's essay: "I do not want The New York Times to become the voice of moderate Judaism, or of any Judaism. I want only that liberals desist from granting Muslims a reprieve from the rigors of liberalism." Another lively excerpt after the jump.

[Feldman] compares Islamic law to nothing less than "the American constitutional balance of powers." Philadelphia! But hold on. Reading Feldman's analysis, sharia begins to look rather unlike an apotheosis of progressive state-building. For the term "connotes a connection to the divine, a set of unchanging beliefs and principles that order life in accordance with God's will." It "is best understood as a kind of higher law." It is "a legal system in which God's law sets the ground rules." Political legitimacy in a regime of sharia is conferred not by the rulers or the ruled, but by "the scholars," who interpret--which is to say, invent--God's will, and appoint themselves: "judicial authority came from the caliph, but the law came from the scholars." In sum, a dictatorship of divines: malign or benign, but a dictatorship. (Today's Islamism does away with the scholars as "the constitutional balance to the executive," but demands "Islamic judicial review" of all legislation.) It may be that "shariah aspires to be a law that applies equally to every human being," but Feldman says little or nothing about its treatment of women and non-Muslims, or about the law of jihad.

Does following the money suggest the end is soon Senator Clinton?

Two money stories about the Clinton campaign on Politico caught my eye this morning: Cash-strapped Clinton fails to pay bills and Clinton didn't pay health insurance bills.   Here is a damning excerpt from the first story:

[W]ord is getting around that Clinton’s campaign does not promptly pay those who labor to make her events look good, said an employee of the event production company Forty Two of Youngstown, Ohio.  “I feel insulted by the way that the campaign treated this company and treated us personally,” said the employee, who did not want to be named talking about a client.

The Clinton campaign paid the company $16,500 to set up a stage, press riser, sound system and backdrops at a Youngstown high school last month for a raucous union rally, where an aggressive Clinton stump speech drew thunderous applause. But the Clinton campaign has yet to pay Forty Two for two other February events, and the employee said the campaign has stopped returning phone calls, e-mails and didn’t respond to a certified letter.

“We worked very hard to put together these events on a moment’s notice and do absolutely everything to a ‘t’ to make it look perfect on television for her and for her campaign,” said the employee.  “Sen. Clinton talks about helping working families, people in unions and small businesses.  But when it comes down to actually doing something that shows that she can back up her words with action, she fails.”

Combine these money stories with Senator Clinton's foot-dragging on the release of her tax returns, and I am now thinking that the Democratic race could end a lot sooner than the Clintons' want to admit.    Even with a big win in PA, Senator Clinton is likely to remain behind on many fronts, and she will have an uphill battle in all but a few of the remaning primaries.   And if the Clintons' tax returns reveal that they are very rich (as this Money Magazine assessment suggests), and yet cannot manage to pay the bills, the hypocrisy of Senator Clinton's appeals to working-class Democrats may become too much for any smart superdelegate to deny. 

Though demographic realities suggest that Senator Clinton will prevail in PA, it now seems reasonable to predict that she may not be able to continue her campaign effectively beyond late April or early May.

Is ignorance bliss as Campaign 2008 ignores crime and punishment issues?

Writing here in The New Republic, Robert Gordon has a notable commentary entitled "Criminal Intent: The presidential candidates need to stop ignoring America's crime problem — and start considering innovative solutions."  Here is how the commentary begins:

Here's a funny thing about this presidential campaign season: Two crime dramas — "The Wire" and "Law & Order" — have gotten more attention than actual crime.  Twenty years ago, with the crack epidemic peaking, George Bush rode to victory using Willie Horton against Michael Dukakis.  Now, with the violent crime rate one-third lower, Republicans no longer try to paint Democrats as soft on crime, and Democrats no longer feel the need to prove themselves tough on the issue.  Campus shootings in Virginia and Illinois have barely registered politically, and President Bush's evisceration of aid to local cops has received little attention on the campaign trail. Even Rudy Giuliani, who made his name fighting murder and mayhem in New York, included nothing on crime among his major campaign planks.

Although the end of law-and-order demagoguery is welcome, America still has a crime problem — or, rather, two crime problems.  On one hand, the crime drop of the 1990s has ended, without delivering real relief to many communities.  For example, while murder is down dramatically in New York and Chicago, homicide rates in Baltimore and Detroit are about the same as in 1995 — and 25 percent higher than New York's rate at its 1990 peak. In many inner cities, violence and the fear of violence remain central facts of life that drive away jobs, small businesses, and successful families. Overall, the country's homicide rate is still three times higher than England's or Australia's, and twice that of Canada. According to the University of Chicago's Jens Ludwig, crime costs the United States on the order of $2 trillion a year.

At the same time, America's incarceration rate — the highest on earth — continues to balloon. According to a recent report from the Pew Center on the States, one in 100 U.S. adults is now behind bars, the largest percentage in our history.  The racial imbalance is even more disturbing: One in 106 white men is in prison, compared to one in 15 African-American men.  Overall, our incarceration rate is four times higher than it was in 1980, and more than five times that of England or Canada.

This commentary makes an astute observation about the apparent eagerness for the 2008 campaign to ignore crime and punishment issues.  However, the essay fails to take Bill Clinton to task for transforming the Democratic Party into a party that has — in my view, wrongly — concluded that "law-and-order demagoguery" is essential to winning elections. 

Though this commentary starts by noting the Willie Horton ad that played a role in the 1988 Bush-Dukakis election, it fails to highlight that Bill Clinton in 1992 and throughout his presidency (directly and indirectly) urged Democrats to be involved in "law-and-order demagoguery."  It is against this backdrop that it was so telling and so sad that Senator Hillary Clinton this year was the only Democrat to speak out against the retroactivity of the crack guidelines.  That choice, in my opinion, showed that Senator Clinton still believe that electoral success (even against fellow Democrats) is to be achieved through "law-and-order demagoguery."

Give these realities, it may be an good that so far none of the major Presidential candidates are talking about crime and punishment issues.  The Clintonian approach now seems to be to use these issues as a wedge to beat up on fellow Democrats, and that approach likely ensures that we get policies and politics (at least at the national level) that contribute to both the crime problems that the TNR piece discusses.   

Some SL&P posts on crime and punishment and the 2008 campaign:

• How the media can do better: ask the candidates tough crime and punishment questions
• Might crime and punishment finally start drawing the attention of the candidates and the media
• "Where candidates stand on crime, death penalty"
• Interesting commentary on 2008 politics of death
• Candidates asked "what would Jesus do" about the death penalty
• Clinton and Obama, crime and punishment
• A retroactive litmus test on leading Democratic candidates
• Is Senator Clinton to the right of Justice Scalia on sentencing issues?
• Race, class and criminal justice in campaign 2008
• Politics and the war on drugs 
• Should criminal justice reform be the new civil rights movement?   
• Aren't extreme sentences and mass incarceration a "tired philosophy that trusts in government more than people"?

Cross-posted at SL&P

A "free vote" on tough legislative questions?

An interesting story is developing in the United Kingdom, regarding the "Human Fertilisation and Embryology Bill" now under consideration in Parliament.  (Read more here.)  Apparently, part of the drama concerns the question whether Catholic MPs (and others who object to the Bill on moral grounds) will be given a "free vote" by the Labour Party: 

Cardinal Cormac Murphy-O'Connor, leader of the Roman-Catholic Church in England and Wales, yesterday became the most senior clergyman to insist that Labour MPs should be granted a free vote.

He urged Catholic MPs - including Cabinet ministers Ruth Kelly, Des Browne and Paul Murphy - and those of other faiths to be guided by their religious convictions.

So far, Labour has refused to follow Parliamentary tradition on issues of conscience and allow MPs to vote as they wish on the Human Fertilisation and Embryology Bill, though it has in the past given free votes on issues such as hunting, reform of the House of Lords and fluoride in drinking water.

Instead, MPs will be whipped - meaning they could face disciplinary action if they refuse to support the Bill. . . .

What's the current thinking among political scientists on strong whip policies, party discipline, etc.?  Putting aside our views of the merits of the proposed Bill, is it better (and, if so, by what measure?) if a Party can effectively require legislators to vote with their Party on things the Party's leadership really cares about?

Imagining the players who could jump-start a third party

In this post yesterday, I raised the notion that developments within both the Democratic and Republican parties could present a unique new opportunity for the emergence of a viable third party in the United States.  Let me unpack this idea a bit more in the hope of getting some feedback on my thinking.

1.  With the approval ratings of Prez. Bush and the Congress so low, I think there is deep nationwide disenchantment with the political status quo.  This reality in part explains the success of three non-traditional candidates in the 2008 presidential primaries of our two modern major parties. 

2. Important factions within both parties seem deeply troubled by modern developments: many fiscal and social conservatives are quite troubled by modern Republican realities; the Clinton-Obama battle has revealed deep and consequential fault lines within traditional Democratic voting blocs.

3.  There are a few prominent non-traditional politicians with lots of money and name recognition who could jump-start serious third-party talk.  New York Mayor Mike Bloomberg has already started some of this talk, and California Governor Arnold Schwarzenegger is another name that comes to mind.  I suspect a serious national candidate with the serious backing of both Bloomberg and Schwarzenegger would have a real good chance to compete in California and New York (garnering all the media attention that is always focused on these two states).  That's a pretty good running head-start for anyone.

4. Prominent politically-oriented celebrities ranging from Bono to Angelina Jolie to Oprah Winfrey might readily be drawn to work with/for a new political party that lacks the historical baggage of the traditional parties.  In addition, though politically-oriented athletes are depressingly hard to find these days (see ESPN piece here), I could imagine a new third party finding ways to appeal to prominent socially-conscious athletes ranging from Charles Barkley to Brett Farve to Cal Ripken to Tiger Woods.

5.  Depending upon how they are treated by their own parties, some big names from the 2008 campaign might come to see the virtues of trying to re-make the political map by going off in a whole new direction.  Of course, Barack Obama is the first person I think of here, but I could also imagine Mitt Romney and/or Mike Huckabee being drawn away from the Republican party if not given serious consideration as McCain's VP.  Senator Joe Lieberman's 2006 re-election as an independent, of course, shows the possibilities of retaining political power even after leaving a long-established connection to a particular political party.

These various forces hardly ensure that a new third party would have a real chance to compete the presidency in 2008 or have a long-term political future.  Nevertheless, some serious talk by serious people about starting a serious third party — which might call itself the "Good Government Party" party or the "Independence Party" — like would significantly impact the 2008 political dynamics in many (expected and unexpected) ways.

Is the Democratic Party now doomed?

I speculated here just two weeks ago that a continuing primary campaign (at least through Pennsylvania) might be good for the Democrats.  But, reflecting on the recent racial issues and some new poll numbers out of PA, I am now thinking that the Democrats are now of the path to a permanent schism in the party.

Consider these PA data points as one reflects on the future of the Democratic party:

• White voters go with Clinton 61 - 33 percent; Black voters back Obama 76 - 18 percent
• Women back Clinton 59 - 35 percent; Men go 48 percent for Obama to 45 percent for Clinton
• Voters under 45 back Obama 57 - 39 percent, while voters over 45 back Clinton 60 - 34 percent

It seems likely that, especially after the events of the last few days, Senator Obama's strongest supporters — Blacks and younger voters — will be very disenchanted if Senator Clinton is the eventual nominee.  Whatever these realities mean for the 2008 general election, I think it means real trouble for the long-term future of the Democratic party.   

It is less clear to me whether Senator Clinton's strongest supporters — White women and older voters — will be very disenchanted if Senator Obama is the eventual nominee.  But even if they are only mildly disappointed, if their disappointment turns some of them into McCain Democrats, I think it means real trouble for the long-term future of the Democratic party.   

I have long resisted the conventional wisdom that the Obama-Clinton primary battle is a slow-moving train wreck.  But I am now starting to think that the wreckage is already visible and that the on-going battle really could destroy the (fragile?) modern Democratic Party.   

Since I have never been a huge fan of the modern Democratic Party (particularly as led by the Clintons), and because Prez. Bush has already partially destroyed the (fragile?) modern Republican Party, I am not deeply troubled by all these developments.   Moreover, these developments present a unique new opportunity for the emergence of a real third-party in the US (which I think would be a healthy development).  But what really amazes me is how much modern political realities have changed in the last three months, and especially over the last three weeks.

Obama's Speech

I wouldn't normally post twice in a day, but I just saw the video of Obama's speech, and I'm very curious what folks thought about it.  I'll go first.  I thought it was pretty amazing:  intelligent, eloquent, persuasive, and yeah, inspirational.  It was, to me, an actual example of explaining some complex and difficult real and perceived differences, and then trying to build bridges, stressing commonalities and not divisiveness.

Of course the other story here is, "will this 'defuse' the "Wright controversy' sufficiently that Obama is still a plausible candidate?"

So, thoughts on (i) the quality and substance of the speech; and (ii) the effect on Obama's political future?

Could and should Obama just "play the Jesus card"?

The media buzz on the 2008 campaign is now focused on the provocative pulpit comments of the pastor of Senator Obama's church, Reverend Jeremiah Wright.  Reverend Wright's provocative sermons and the reaction thereto are probably worthy of many posts, but here I want to question Senator Obama's written response on Friday that appeared at The Huffington Post.  Specifically, I wonder why the response is so defensive and lacks a fuller religious explanation that, in my view, could and should help make Reverend Wright a far more understandable figure.

As I watch (and re-watch) the media clips of  Reverend Wright's provocative comments, I see a religious man who seems deeply troubled by the failure of America to be more committed to the teachings of Jesus — teachings that all modern American presidents and most Americans claim to be committed to.  Not surprisingly, a secular media portrays Reverend Wright's comments principally as anti-American, but these comments might also be framed principally as pro-Jesus.

Enter Obama's response, which largely accepts the anti-American frame and "at the outset" stresses that the Senator "vehemently disagree[s] and strongly condemn[s]" Reverend Wright's provocative comments.  I suppose I understand the political need for Obama to now distance himself from these comments, but I think Obama could have and should have provided a lot more religious/biblical context for Reverend Wright's viewpoints.  Tellingly, Obama's eight-paragraph response uses the word "justice" twice, but mentions "Jesus" only once.  I think a much more  accurate (and effective?) response would have discussed Jesus and religious/biblical ideas a lot more.

Because I was raised Jewish, married someone raised Catholic, and have never belonged to an organized church, perhaps I do not appreciate possible pitfalls of "playing the Jesus card" in this context.  But, as I see the secular media and others so consumed with attacking a (Black) man of the cloth, I cannot help but wonder if Senator Obama is really as talented as he once seemed at changing the discourse of modern American politics.

Indirect advice for wanna-be lawyer-pols?

In this post a few weeks ago, I linked to this Newsday article providing a long account of Senator Clinton's work as a criminal defense attorney three decades ago.  The Newsday article seemed to be written to provide talking points against HRC because of her work on behalf of an accused rapist: it stressed that "a 27-year-old Hillary Rodham, acting as a court-appointed attorney, attacked the credibility of a 12-year-old girl in mounting an aggressive defense for an indigent client accused of rape in Arkansas."  Interestingly, though, this story did not end up having any legs in the heated 2008 campaign; I cannot even recall seeing any legal blogosphere discussion of this article.

But now I see this notable new article from the American Lawyer, which asks "Is Clinton's Corporate Law Background Hurting Her Candidacy?".  Here are snippets from this very interesting article:

An inarguable fact — and lawyers love inarguable facts! — is that Hillary Clinton spent the longest stretch of her professional life working in a corporate law firm. From 1977 to 1992 she worked as a lawyer in the firm of Rose, Nash, Williamson, Carroll, Clay & Giroir (renamed Rose Law Firm in 1980) in Little Rock, Ark.  She devotes a single sentence to these years on her campaign Web site: "She continued her legal career as a partner in a law firm." (And this, in a section called "Mother and Advocate.")...

The ability to argue all sides of an issue is a hallmark of the lawyerly mind.  Hillary's ability to assert moral residency on different ideological sides of an issue showed itself soon after she joined the Rose firm....

Neither Hillary Clinton nor the average corporate law partner is likely to make anyone's blood jump or heart sing.  When you are in trouble, however — real trouble — it may be that the person you want to see isn't the guy who wows you with his wit and charisma, but someone who has really done her homework, pored over all the boring details, and then gone back over them again, just for fun.  It's pretty clear that the country is in real trouble. Bridges are falling down; the stock market is all over the place; and let's not even bring up Iraq or Sudan.  This might or might not be the right time to look past Hillary Clinton's cool, corporate, bill-by-the-hour sensibility, her lawyerly inclination to avoid risk and run everything past the pollsters, to smile and keep a stiff upper lip because appearance and propriety matter more than most things — and certainly more than impropriety.

So, all you wanna-be lawyer-pols out there, it seems your political future could be hurt more by time in a corporate law firm than from time practicing criminal defense.

Cross-posted at SL&P (under a different post title).

Federalism and the Presidential Candidates

Being a federalism nut, I naturally surf the ’08 election blogs and websites looking for signs that anyone cares about basic issues of federalism – you know, statutory and regulatory preemption, dormant commerce clause, uniformity versus diversity of individual rights, etc.

Here is the bottom line from my investigations: Neither the voters nor the candidates give a darn about federalism.

Take preemption. As usual, the Court’s docket is crowded with important preemption cases: Altria Group v Good (are state claims about deceptive advertising by cigarette manufacturers preempted by federal labeling laws?), Kennedy v DuPont Plan (are state laws regarding divorced spouses’ rights to insurance preempted by ERISA?), Chamber of Commerce v Brown (are state rules about the use of state funds preempted by the NLRA?) , and Wyeth v Levine (are state law claims that injected drugs were mislabeled preempted by federal FDA labeling requirements).

But none of the candidates’ websites have anything to say about preemption. John McCain’s website has but a single line favoring tort reform, without elaboration.

It is not as if these preemption issues are small potatoes: The 2004 campaign involved prominent discussion of “Patients’ Bills of Rights,” federal bills that would have eliminated some ERISA preemption of state-law claims against HMOs. McCain was, indeed, the co-sponsor of one such bill (the McCain-Kennedy-Edwards Patient Protection Act). And the issue has been the source of raging controversy in DC, with the FDA, OCC, and other federal agencies taking strong preemption positions, opposed by the trial lawyers, one of the most powerful of the democrats' constituencies.

Preemption is not the only big federalism issue. Davis v Kentucky Dept of revenue involves the right of states to provide tax exemptions only for their own bonds, discriminating against bonds issued by other states. Does the dormant commerce clause bar such discrimination? The Court will tell us this term – but, in the meantime, the political process is simply silent on the issue.

The silence of the Presidential candidates on federalism is all the more perplexing in that, according to the conventional wisdom, federalism is supposed to be protected through the national political process. Well, the national political process is chugging along in high gear, but no one is making federalism an issue.

Why not? Could it be that federalism, like most complex institutional arrangements, is simply far too obscure for voters to make a basis for their votes? Rob Mikos thinks not: in an interesting empirical study, he claims that voters actually care about which level of government makes decisions. (See working paper)

Maybe he is right. But you can’t tell from reading the campaign literature.

Sex, Corruption, Federalism, & the Mann Act

Our governor's downfall will provoke ample commentary from bloggers everywhere:  I see no need to add to the flood.  But the event does provide an opportunity to ponder the Mann Act, a statute that seems to flaunt our ordinary conventions about the proper role of the federal government. 

The Mann Act, in its original form, illustrated the role of formalism in expanding the reach of federal law.  As a matter of constitutional interpretation, Hoke v U.S., 227 U.S. 308 (1913) seemed to suggest that Congress had the power to block movement of people across state lines for any purpose whatsoever.  Caminetti v United States, 242 U.S. 470 (1917) held that the Mann Act's prohibition on the transportation of women or girls across state lines "for the purpose of prostitution, or debauchery, or for any other immoral purpose" included the purpose of non-commercial but extra-marital sex.  Hoke would culminate in Darby's principle that, when Congress uses its power to block interstate movement of people or goods, its motive or purpose is irrelevant.  Caminetti continues to be the classic citation for the principle that the intention of Congress, as inferred from committee reports, ballot title, and social context, cannot trump the plain language of the statute.  In effect, a federal statute targeted at 'white slavery" (i.e., brothels) was transformed by the magic of judicial formalism into a catch-all device to enforce sexual morality simpliciter, contrary to any apparent congressional intention.

Hoke and Caminetti combined led to an era of federal snooping into sexual immorality.  Although the Mann Act began life as an effort to suppress international prostitution rings, David Langum reports that the statute was enforced to the tune of 400-500 convictions annually against couples crossing state lines for extra-marital but entirely non-commercial trysts.  David Langum, Crossing Over the Line: Legislating Morality and the Mann Act 139-60  (U. Chicago Press 2004).  The defendant was frequently the woman who, when she drove the car, was indicted as a co-conspirator in transporting herself across state lines for immoral purposes!  As a historical matter, the Act was often used to discredit controversial political or public figures, ranging from the boxer Jack Johnson to singer Chuck Berry.  It was not until 1986 that Congress finally got around to trimming back on the statute's application to non-commercial sexual vice, limiting its application to "prostitution or ... any sexual activity for  which any person can be charged with a criminal offense."  18 U.S.C. section 2421.

Does anyone else besides myself find the use of the Mann Act against a governor a mite disturbing, especially when enforced against someone who belong to a political party other than the President's?   Given that the state governments seem completely capable of prohibiting prostitution if they wish to do so, is the enforcement of sexual morality by the federal government a completely gratuitous -- and, therefore, politically suspect -- exercise? 

Of course, there are also the allegations of money laundering and perhaps mail fraud.  But there is no claim that Spitzer defrauded the people of New York of honest services and, therefore, no role for the feds in illuminating local official dishonesty that local pols seek to shield.  Of course, the governor's transgression occurred in Washington, D.C., an enclave in which the federal government has general police powers.   But the feds are not enforcing any D.C. ordinance.   Whose interest, therefore, are the feds serving?  Not the interests of us New Yorkers:  We can enforce -- or not-- our own laws against sexual hank-panky.  Not the residents of D.C.  The only obvious beneficiary of this prosecution is the majority leader of the New York Senate, Joe Bruno and, more generally, Republicans who have managed to eliminate a major political rival.

In short, I find the distastefulness of the governor's tawdry behavior matched only by the distastefulness of the feds' wasting taxpayer resources to enforce an utterly gratuitous federal regulation of sexual morality against a political rival of the President's. 

Of course, I am a certified federalism nut.  Does any sane person share my reservations?

Could Spitzer's downfall break the Democratic deadlock?

While newspapers and pundits are still sorting out the details and possible New York consequences of the Spitzer scandal, I cannot help but wonder if this remarkable turn of events may doom the chances of Senator Hillary Clinton becoming the Democratic presidential nominee. 

In my view, even if voters do not flee from Senator Clinton  in the wake of a New York sex scandal, I suspect many super delegates have to be worried about how the Spitzer story can reinforce a Democratic "family values" immorality that Bill Clinton has long represented.  In just a few hours of CNN watching last night, I saw the famous clip of Bill Clinton's finger wagging lie about not having sexual relations.  Whether he resigns or stays on as Governor, Elliot Spitzer and Bill Clinton will be linked in discussions for weeks and perhaps months to come.  And one can already imagine how many different Clinton-Spitzer jokes are being written for the late night talk shows (including, of course, the all-important SNL).

Of course, in a primary season that has had an amazing number of twists and turns in just 10 weeks of voting, it is foolish to make any bold predictions about exactly what will happen next.  But I believe that Elliot Spitzer's expensive February date may be the unofficial start of the end of the Clinton era in Democratic politics.

Proof of media (math) bias!!!

Though I assume CNN will soon fix this example of new math, I find funny and telling the fuzzy math right now in this new CNN report about the Obama-Clinton battle:

Obama was campaigning in Mississippi a day before the state holds its primary on Tuesday, while Clinton keeps her eye on the next big prize on the Democratic calendar, Pennsylvania.  Thirty-three delegates are at stake Tuesday, and in the tight Democratic race, every delegate is critical.  CNN estimates that Obama leads Clinton by less than 100 delegates, 1,553 to 1,438.  A candidate needs 2,025 delegates to win the nomination.

I am not a math genius, but I can work a calculator: the numbers CNN reports indicate that Obama leads Clinton by 115 delegates.

In other notable political news involving a New Yorker, it appears that NY Governor Spitzer has decided to try a different approach to generating Clinton era nostalga.

UPDATE:  It does appear that the folks at CNN found a calculator.  This piece now reads: "Thirty-three delegates are at stake Tuesday, and in the tight Democratic race, every delegate is critical.  CNN estimates Obama leads Clinton 1,553 to 1,438. A candidate needs 2,025 delegates to win the nomination."

Shouldn't Obama just offer to pay for re-votes in Florida and Michigan?

Barack Obama generated so much excitement in January and February because he seemed like a completely different breed of politician.  But the Obama "movement"  has slowed because, starting with the NAFTA nonsense in Ohio, he has recently seemed like (a lesser form of) just another modern pol. 

The annoyance of "politics as usual" hit a high this morning when, on the political talk shows, I saw a bunch of old white men — ranging from Tom Daschle to Howard Dean to John Kerry to Bill Nelson to Ed Rendell — debating what to do about Florida and Michigan.  (Given the recent election records of Daschle, Dean and Kerry, I suppose the Dems will have other renown losers like John Edwards and Dick Gephardt and Al Gore making the rounds in the weeks ahead.)  Watching each side set out their partisan talking points almost had me rooting anew for Mike Bloomberg to decide to run. 

Particularly annoying was all the hand-wringing about who would pay for the costs of any re-vote plan in Florida and Michigan.  Though cost estimates varied, nobody put the collective price tag above $25 million, which is less than half of what the Obama campaign raised in February and much less than what the Clinton campaign is on pace to raise in March.  Thus, while the candidates keep raising huge sums to support partisan campaign efforts, apparently the relatively small costs of making sure Florida and Michigan voters are part of the process has everyone flummoxed.

Here's a suggestion: if Obama wants to show he truly is a completely different breed of politician, he ought to offer to pay the costs of Florida and Michigan re-votes from his campaign coffers.  In making this offer, Obama could say that he'd like the Clinton campaign to offer to share these costs, but he should make clear that he is willing to cover all the costs if necessary. 

Such an offer to ensure the voters in Florida and Michigan can play a direct and fair role in the primary process seems to be the right thing to do regardless of its possible political impact.  And, at least from my perspective, it also would be a shrewd move for a candidate who has not seemed much like an agent of change in recent weeks.

Bobby Jindal and Ethics Reform in LA

As a New Orleans native whose family still lives there, the months since Hurricane Katrina have been full of one heartbreak after another.  The devastation of the storm has been followed by disappointment at the failure at all levels of government, particularly state and local, to at least restore the city and state to what it was, or at best, to utilize the opportunity to create something better.  Then came Bobby Jindal and the campaign against Ruth's Chris.

Jindal was elected governor in the wake of Katrina.  The 36-year-old son of Indian immigrants, a graduate of Brown University and a Rhodes Scholar, has had a fairly remarkable career trajectory.  He was secretary of Louisiana's department of health and hospitals, president of a national council on reforming medicare, president of Louisiana's university system, and assistant secretary at HHS.  He then ran unsuccessfully for Louisiana governor but, after his loss, was elected to the House of Representatives. 

When Jindal was inaugurated in January he became the youngest governor in the country and Louisiana's first non-white governor since Reconstruction.  While Rush Limbaugh's endorsement of Jindal as "the next Ronald Reagan" could be a positive or the kiss of death, depending on your viewpoint, as one who cares about Louisiana and removed from any political leanings, I am heartened by his actions since becoming governor.  Which brings me to Ruth's Chris.

A prominent plank in Jindal's platform is widespread ethics reform; he campaigned heavily on this topic and called a special session of the legislature to create new ethics rules.  Arguing that Louisiana's tawdry reputation for less-than-above-board politics curtailed outside investment, he pushed bills through the legislature that would force most political officials statewide to disclose all sources of income, real estate holdings, and significant debts.  State officials can no longer get contracts for various state projects, and lobbyists' expenditures on meals for officials will be capped at $50.

These reforms sound fairly basic, but the reaction in Baton Rouge -- particularly to the cap on meals -- illustrates the cultural change this could cause.  The Times highlighted the impact this will have on the capitol's Ruth's Chris, and reported that one legislator "said the limit would force her and her colleagues to dine at Taco Bell, and urged that it be pushed to $75 per person, to give them 'wiggle room.'"  Whether the outside investment spurred by the ethics overhaul will compensate for the reduction in profits for the restaurant industry is, I guess, an oustanding issue.

These changes are certainly timely.  As of late 2007, the former governor (Edwin Edwards) was in jail, the former Elections Commissioner had been convicted of money laundering, three Insurance Commissioners in a row had been sent to jail, the Agriculture Commissioner was indicted on bribery charges, and the former President of the State Senate was  in jail for money laundering.  (For a summary of this recent political corruption, see here.) Add the situations facing William Jefferson and David Vitter, and the ongoing investigation into the former administration of New Orleans mayor Marc Morial, and the corruption is really remarkable.  For all the damage wrought by Katrina, maybe this can be a turning point for some of the state's problems.   And, since Ruth's Chris moved its headquarters from New Orleans to Florida following Katrina and hasn't come back, I guess I don't care if their business suffers.

Clemens v. McNamee: Your One-Stop Civ Pro Exam

Apparently, the new goal of sports figures is to educate the public about civil procedure (not a bad thing, actually). First came the lawsuit between West Virginia University and Rich Rodriguez, its former football coach, which taught us about removal and the difference between a citizen of a state and an arm of the state for purposes of diversity jurisdiction and now is going to demonstrate just what the discovery process looks like. (WVU Law's Sports and Entertainment Law Society and Professor Beth Thornburg (SMU, visiting at West Virginia) both are doing a great job watching and reporting on the procedural details).

Now comes the defamation lawsuit that Roger Clemens filed against Brian McNamee, his former trainer, over McNamee's statements to law enforcement and the Mitchell Commission that Clemens used performance-enhancing drugs. Clemens filed the lawsuit in January in state court in Houston; McNamee removed to federal court (on diversity--this was an obvious move). Yesterday, McNamee brought Rule 12(b) alive for civ pro students and sports fans alike. Get ready for your final exam, featuring a motion to dismiss for:

1) Lack of Personal Jurisdiction: McNamee argues that his allegedly defamatory statements were made in New York (where he met with Mitchell Commission investigators) about actions that Clemens took in Toronto and New York. McNamee went to Texas several times to train Clemens (about 2-3 times per year since the late 1990s) but none of those trips had anything to do with his injecting Clemens or with his statements. Clemens suffered harm in Texas, where he lives, but McNamee did nothing to direct his statements to Texas, and 5th Circuit precedent holds that the situs of harm alone is not enough. More interestingly, Clemens' complaint argues that McNamee is subject to general jurisdiction based on 2-3 annual trips to Texas.

2) Improper Venue: Under § 1391, a diversity case can be brought in a federal district in which a defendant resides or in a district where a substantial part of the events and omissions giving rise to the claim occurred. McNamee resides in New York, which also is where the events and omissions (his statements and the subject of those statements) occurred. It is not clear any of the key events occurred in Texas.

3) Failure to State a Claim: McNamee argues that Clemens' complaint is factually insufficient, by failing to allege with specific detail the defamatory statements--when the statements where made, when, to whom--and cites, of course, Bell Atlantic v. Twombly, the current focus of much academic obsession. There also is citation to prior case law that required higher pleading for defamation claims, such claims being "disfavored."
McNamee also argues for dismissal of Clemens' claim for a declaratory judgment that Clemens did not defame McNamee, arguing that case law generally prohibits a potential tortfeasor from seeking a declaration of non-liability, since doing so would allow a potential defendant always to trump the potential plaintiff's choice of forum. This likely is a first step towards McNamee bringing a defamation counterclaim (which likely would be compulsory) if he is unsuccessful in getting Clemens' complaint dismissed.

Notably missing is a motion to transfer venue from Texas to New York--that even if Texas is appropriate, the case can more easily and more appropriately be litigated in New York. This probably is because it is tough to get a case transferred out of the plaintiff's home forum (Clemens lives in Texas). But I am surprised McNamee's attorneys did not spot that issue and at least try to raise that issue.

Reverse age discrimination and presidential hiring

Paul's new post on "the Endless Narcissism of a Generation" has me again thinking about age as an extremely important — and remarkably underexamined — aspect of federal elections.  Senator Clinton has recently been urging citizens "to think about this decision more like a hiring choice than a voting choice."  Okay, HRC since you asked:

1.  It seems fair and responsible to assume we are making an 8-year hiring decision, since voters will only "fire" an incumbent if he/she is very unpopular and opponents put up an appealing alternative.

2.  We are hiring for the "toughest job in the world,"  a job in which the worker apparently needs to be prepared to take emergency phone calls at 3am and must be ready to lead on Day 1 (though the job comes with a nearly 3-month preparation period between being hired and starting work). 

3.  The skills needed by, and the challenges facing, a president are dynamic and ever-changing: e.g., Prez Bush focused mostly on domestic issues until 9/11, whic