In Dicta

Wow.. that's A LOT of money

2006-02-03T08:04:00.000-05:00

"The Bush administration said Thursday it will ask Congress for $120 billion more for the wars in Iraq and Afghanistan.

If approved by Congress, the war money would push spending related to the wars toward a staggering half-trillion dollars."

I'm not arguing about the rationality of the war(s) or not, but still, it is a lot of money.

From MSNBC News.

Alito's first (real) vote

2006-02-02T07:53:00.000-05:00

"Alito splits with conservatives on first case"

"New Supreme Court Justice Samuel Alito split with the court’s conservative wing Wednesday night, refusing to let Missouri execute a death-row inmate contesting lethal injection.

Alito, handling his first case, sided with inmate Michael Taylor, who had won a stay from an appeals court earlier in the evening. Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas supported lifting the stay, but Alito joined the remaining five members in turning down Missouri’s last-minute request to allow a midnight execution."

From MSNBC News.

Another interesting Alito piece

2006-02-01T21:51:00.000-05:00

In the Washington Post as well. "New Justice's First Challenge: Clap On or Clap Off":

Samuel A. Alito Jr., barely eight hours into his job as a Supreme Court justice, had to make a series of important rulings as he sat in the House chamber for last night's State of the Union address.

For instance: How enthusiastically would he applaud for President Bush? (More vigorously than Justice Stephen G. Breyer but less than Justice Clarence Thomas and about the same as the chief, John G. Roberts Jr.)

And: How would he react when Bush introduced him to Congress? (He would make a self-conscious grin.)

Shifting the Court... literally

2006-02-01T21:45:00.000-05:00

Interesting take on the Alito story you don't see everyday by The Washington Post:

"Justice Samuel A. Alito Jr. may or may not change the Supreme Court's jurisprudence. But he will shake up one aspect of court business that was unchanged for more than 11 years: the seating chart.

As the junior associate justice, Alito will occupy the end of the bench farthest to the courtroom audience's right during oral arguments. Justice Stephen G. Breyer, who has sat there since October 1994, will move across to the audience's extreme left.

The other justices will shift according to seniority as well, except for John Paul Stevens, the senior associate justice, who will remain just to the left of Chief Justice John G. Roberts Jr. Justice Antonin Scalia will occupy the chair to Roberts's right, where retiring Justice Sandra Day O'Connor sat.

The chief justice has the middle chair, regardless of how long he has been on the court. Thus, Roberts, a rookie, did not alter the seating arrangement when he replaced the late Chief Justice William H. Rehnquist in October.

Breyer is also in for other changes: no longer will it be his job to answer the door during the court's closed conferences, nor must he report the justices' votes to the clerk of the court. Those jobs, traditionally done by the junior justice, now belong to Alito.

Breyer was the court's junior member for 11 years, 181 days, about a month shy of the record set by Joseph Story, who served during the 19th century.

In a brief interview, Breyer jokingly observed that sitting at one end of the bench and standing last in line "require no talent," though "opening the door and reporting the results might."

"But," he said, "I am confident that Justice Alito will carry out those responsibilities perfectly."

Awesome (Yes, I am a law geek).

Suit: Ipod may cause hearing loss; pay me.

2006-02-01T21:39:00.000-05:00

More frivolous suits:

"A Louisiana man claims in a lawsuit that Apple's iPod music player can cause hearing loss in people who use it.

Apple has sold more than 42 million of the devices since they went on sale in 2001, including 14 million in the fourth quarter last year. The devices can produce sounds of more than 115 decibels, a volume that can damage the hearing of a person exposed to the sound for more than 28 seconds per day, according to the complaint.

The iPod players are "inherently defective in design and are not sufficiently adorned with adequate warnings regarding the likelihood of hearing loss," according to the complaint, filed Tuesday in U.S. District Court in San Jose, Calif., on behalf of John Kiel Patterson of Louisiana.

The suit, which Patterson wants certified as a class-action, seeks compensation for unspecified damages and upgrades that will make iPods safer. Patterson's suit said he bought an iPod last year, but does not specify whether he suffered hearing loss from the device."

From Yahoo! News.

Triumph of perserverance and entrepreneurship

2006-02-01T07:59:00.000-05:00

I love to hear stories like these:

"SIX years ago I received a call from a man named Edwin Rodriguez, an unemployed janitor. He had invented a plantain peeler and wanted to know if I would like to see it. A few days later Mr. Rodriguez's prototype arrived in the mail. It was carved from wood and painted green and lemon yellow like a child's toy — and was otherwise the most phallic cooking tool I'd ever seen. I quickly tucked it into my desk drawer.

But when I tried it out in the privacy of my home kitchen, it worked ingeniously. There was a blade for trimming off the ends of the fruit and cutting seams into the peel without harming the inner plantain. And at one end was a spade-shaped wood piece designed to mimic a thumbnail — the implement that, in the absence of a plantain peeler like Mr. Rodriguez's, is normally is used to wedge under the peel and lift it in strips. Peeling a green plantain is not like peeling a banana. The skin sticks, and if you're not careful you can easily split the fruit's flesh; you need a sharp paring knife and good knife skills.

I called Mr. Rodriguez to tell him I was impressed by his invention and wanted to write about it.

"Where can you buy it?" I asked.

"Oh, but we don't have a manufacturer," he said. With regret, I explained that it would be hard to write about a product that readers couldn't experience for themselves, and encouraged him to call back once it was in production.

(...)

Without money or connections it had taken Mr. Rodriguez, 58, more than 12 years to move his E-Z Peeler from concept to manufacture. The process began in 1990 when Mr. Rodriguez, who had grown up in Puerto Rico, was laid off from Public School 117 in East Harlem, where he had been a janitor."

That is what I call a person who will go forward in life.

From The New York Times.

Justice Alito and the President

2006-02-01T07:44:00.000-05:00

A picture worth a thousand words... and 58 Senate votes.

Sheehan: publicity hound

2006-02-01T07:42:00.000-05:00

Capitol Police arrest antiwar activist Sheehan
Invited to State of the Union address, she is removed from gallery

NBC News and news services
Updated: 3:37 a.m. ET Feb. 1, 2006

Cindy Sheehan, the mother of a fallen soldier in Iraq who reinvigorated the antiwar movement, was arrested and removed from the House gallery Tuesday night just before President Bush’s State of the Union address, a police spokeswoman said.

Sheehan, who was invited to attend the speech by Rep. Lynn Woolsey, D-Calif., was charged with demonstrating in the Capitol building, said Capitol Police Sgt. Kimberly Schneider. The charge was later changed to unlawful conduct, Schneider said. Both charges are misdemeanors.

Sheehan was taken in handcuffs from the Capitol to police headquarters a few blocks away. Her case was processed as Bush spoke.

Schneider said Sheehan had worn a T-shirt with an antiwar slogan to the speech and covered it up until she took her seat. Police warned her that such displays were not allowed, but she did not respond, the spokeswoman said.

The T-shirt bore the words “2,245 Dead — How Many More??” in reference to the number of U.S. troops killed in Iraq, protesters told NBC News.

Police handcuffed Sheehan and removed her from the gallery before Bush arrived. Sheehan was to be released on her own recognizance, Schneider said.

“I’m proud that Cindy’s my guest tonight,” Woolsey said in an interview before the speech. “She has made a difference in the debate to bring our troops home from Iraq.”

Unbelievable. A mother using her son's tragic death to make herself the center of attention.

From MSNBC News.

Alito en route to High Court

2006-01-31T07:31:00.000-05:00

"Republican senators, aided by 19 Democrats, cleared the path yesterday for Samuel A. Alito Jr. to join the Supreme Court and for President Bush to put his stamp firmly on the nine-member bench.

The Senate voted 72 to 25 to end debate on Alito's nomination and to allow a roll call on his confirmation today, shortly before noon. Alito's supporters garnered a dozen more votes than the 60 they needed to choke off a Democratic filibuster effort, which would have allowed debate to continue indefinitely.

Leaders of both parties said Alito, 55, will comfortably win confirmation today, although not by the 78 to 22 margin that Chief Justice John G. Roberts Jr. received last fall. Legal analysts say Alito's 15-year record as an appellate court judge suggests he may be more consistently conservative than Roberts. Moreover, they say, Alito is poised to make a larger impact on the court because he will replace Sandra Day O'Connor, the deciding vote in numerous 5 to 4 decisions over the years. Roberts succeeded a fellow conservative, the late William H. Rehnquist."

Which is certainly a good thing.

From The Wasington Post.

Innocent until proven guilty...

2006-01-31T07:28:00.000-05:00

unless it's one of these bozos?

"Enron Jury Chosen in First Day, Setting Stage for Opening Arguments
By ALEXEI BARRIONUEVO
HOUSTON, Jan. 30 — In a single day, the federal judge presiding over the Enron trial here defied skeptics by selecting a 12-person jury to decide whether Kenneth L. Lay and Jeffrey K. Skilling, the former chief executives, conspired to defraud investors in the biggest business collapse in history.

Despite expressing serious reservations about Judge Simeon T. Lake III's plans to make final jury selections in a day, defense lawyers and Mr. Lay himself said afterward that they were satisfied with the jury of 8 women and 4 men. The 12 were selected out of a final pool of nearly 100 prospects.

"They're a well-educated jury, better educated than most," Michael Ramsey, Mr. Lay's lead lawyer, said.

The jurors range in age from 24 to 66 — six have college degrees and of those, two also have master's degrees. Three work in the oil and gas industry, and a few are in accounting. Three are in education, and two are self-employed. Two are Hispanic and one is Indian; the rest are white.

"We had some issues, but we are very pleased with the jury that we have," said Daniel Petrocelli, Mr. Skilling's lead lawyer. "They know this is a court of law, not a court of public opinion."

Mr. Lay, speaking to a throng of news media gathered behind a metal barricade, said: "We are pleased with the outcome. My fate and Mr. Skilling's are in their hands."

Mr. Lay arrived early Monday, walking briskly past a phalanx of cameras, tightly clutching the hand of his wife, Linda, and looking downward. When a journalist yelled from the crowd, asking if this trial would be "a chance to clear your name," he called back, "It certainly is."

Continue reading at The New York Times (free subscription required).

Kennedy (not that one) in the middle

2006-01-31T07:25:00.000-05:00

Probably a very correct sentiment:

"Should Samuel A. Alito Jr. be confirmed to the Supreme Court today, as expected, it will mark the beginning of a new Supreme Court era -- and, perhaps more important, the end of an old, familiar one.

For much of the past 24 years, Justice Sandra Day O'Connor, whom Alito would replace, has wielded the swing vote on a split court, usually casting her lot with the court's four other conservative justices, but siding with liberals on such crucial issues as abortion, affirmative action and campaign finance reform.

Alito's arrival, however, may turn the O'Connor Court into the Kennedy Court. If, as many expect, Alito forms a four-vote conservative bloc with Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Clarence Thomas, that would leave Justice Anthony M. Kennedy -- a conservative who has occasionally voted with liberals on gay rights, the death penalty and abortion -- as the court's least predictable member.

"Assuming the predictions about Alito's views are correct, he turns Justice Kennedy into a swing vote on a lot of issues," said Pamela Karlan, a professor of law at Stanford University who teaches a course on the current Supreme Court.

No case illustrates the new dynamic better than the challenge to a Republican-drafted congressional redistricting plan for Texas, which the court will hear on March 1. The stakes in the case are huge and could include eventual control of the closely divided House.

The Texas plan, drafted at the request of then-House Majority Leader Tom DeLay (R) and rammed through the state legislature in 2003 over Democratic protests, created a first-ever majority-Republican congressional delegation to match the state's overall GOP voting preference.

But opponents say it was an unconstitutional, partisan gerrymander. The court has split down the middle on such claims in the past, with the four liberal justices -- John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer -- saying that the court can and should decide when partisanship goes too far.

Conservatives -- the late Chief Justice William H. Rehnquist, O'Connor, Scalia and Thomas -- said the courts should stay out of this political thicket.

Kennedy, however, said that he would not rule out the possibility that a partisan gerrymander could violate the Constitution, although such a plan had not yet been found.

On this issue, at least, Alito, who acknowledged at his confirmation hearings that he was a youthful skeptic about the court's past efforts to fix legislative districts in the name of "one person, one vote," could vote as O'Connor did. If, as expected, Roberts followed suit, that would leave Kennedy to decide the case.

Presidential war powers
Another issue on which Alito faced sharp questioning at his hearings -- presidential war powers -- is also on the court's docket. The key case is a challenge to President Bush's plan to try terrorist suspects at military tribunals.

A former aide to Osama bin Laden, Salim Hamdan, claims that his pending trial before a tribunal is unlawful because it has not been authorized by a statute or the Constitution. He also argues that the federal courts should be allowed to enforce his rights as a prisoner of war under the Geneva Conventions.

The Bush administration argues that the tribunals are based both on the president's constitutional powers as commander in chief and on the Sept. 14, 2001, joint congressional resolution authorizing the use of force to battle terrorists.

The administration prevailed in the U.S. Court of Appeals for the District of Columbia Circuit, in a decision joined by Roberts while he was still a judge on that court.

Roberts will have to sit out the case at the Supreme Court, leaving just eight justices to decide the matter.

The outcome is difficult to predict; in the past, court conservatives have splintered on similar issues, with Thomas lining up fully behind the administration, Kennedy and Rehnquist lending partial support, and Scalia actually joining with the court's most liberal member, Stevens, in rejecting the administration's claim that it could indefinitely hold a U.S. citizen captured in Afghanistan without charges.

One option for the court would be to dismiss the matter, citing a new law enacted by Congress that, in the administration's view, strips the courts of jurisdiction to hear challenges to the tribunals. But Hamdan's lawyers are resisting that.

The court will soon meet in closed-door conference to decide whether it should hear a case on the constitutionality of the federal law banning the late-term abortion procedure known by opponents as "partial birth."

The law, passed in 2003 and signed by Bush, has been struck down by lower federal courts. They cited a 2000 decision striking down state bans on late-term abortion -- a case in which O'Connor cast the fifth and deciding vote.

Padilla’s fate
Alito opposed the court's abortion rights rulings as a young Reagan administration aide, and voted to uphold a state limitation on abortion rights in a 1991 case. But as a federal appeals judge, he applied Supreme Court precedent in striking down a New Jersey late-term abortion ban.

Also, the court will have to decide whether to hear the case of Jose Padilla, a U.S. citizen arrested and held in military custody without charges as an "enemy combatant." The Bush administration has recently turned him over to civilian authorities, but Padilla's lawyers say the constitutional issue is still alive.

If the court accepts either or both of the cases, it would probably hear them during the term beginning in October."

From MSNBC News and The Washington Post Company.

If true, this is worrisome

2006-01-29T08:54:00.000-05:00

I'm not a true environmentalist, but I am human:

"Now that most scientists agree human activity is causing Earth to warm, the central debate has shifted to whether climate change is progressing so rapidly that, within decades, humans may be helpless to slow or reverse the trend.

This "tipping point" scenario has begun to consume many prominent researchers in the United States and abroad, because the answer could determine how drastically countries need to reduce their greenhouse gas emissions in the coming years. While scientists remain uncertain when such a point might occur, many say it is urgent that policymakers cut global carbon dioxide emissions in half over the next 50 years or risk the triggering of changes that would be irreversible.

There are three specific events that these scientists describe as especially worrisome and potentially imminent, although the time frames are a matter of dispute: widespread coral bleaching that could damage the world's fisheries within three decades; dramatic sea level rise by the end of the century that would take tens of thousands of years to reverse; and, within 200 years, a shutdown of the ocean current that moderates temperatures in northern Europe."

From MSNBC News.

Sheehan is a crazy attention grabber

2006-01-28T15:27:00.000-05:00

I don't consider myself a "right-winger," but not a "leftist" either. However, I really dislike Cindy Sheehan. She is an attention-seeking political hack who has profited from her son's death in Iraq. And just to prove the point that this is no longer about the Iraq war, comes this:

"Cindy Sheehan to Dianne Feinstein: Fillibuster [sic] Alito or I’ll Challenge Your Senate Seat."

Unbelievable.

Courtesy of The Volokh Conspiracy.

I hate pork...

2006-01-28T15:22:00.000-05:00

... but not the kind you eat. The Washington, D.C. kind.

Judicial biographies (or hagiographies?)

2006-01-28T10:04:00.000-05:00

Jeff Rosen has an interesting article out in today's New York Times:

"During his Supreme Court confirmation hearings, Judge Samuel Alito talked frequently about his father, an Italian immigrant. "My father was brought to this country as an infant," Alito declared. "He grew up in poverty." Offering up homey autobiographical anecdotes to build political support is a familiar strategy among nominees. But now personal exposure is becoming a strategy for judges to connect to the public even after they are confirmed: In 2002, Clarence Thomas received a $1.5 million advance for a memoir, tentatively entitled "From Pin Point to Points After," that promises to describe his rise from obscurity, including his personal impressions of his "emotionally overwhelming" confirmation battle, in which he was accused of sexual harassment by Anita Hill. And Sandra Day O'Connor recently appeared on "Good Morning America" to promote "Chico," her second book about her childhood on the Lazy B Ranch.

In an unbuttoned, confessional age, the judiciary has remained the last institution of American government to resist the public's relentless demands for personal exposure. But the norms about what's appropriate for judges to reveal about themselves are in the middle of a sea change. Before the gossipy anonymous blog Underneath Their Robes (which insists that judges should be treated as "legal celebrities") temporarily shut down last November, Judge Alex Kozinski wrote the site a playful letter nominating himself as a "judicial hottie" while Judge Richard A. Posner - one of the first federal judges to start his own blog - sent giddy fan e-mail messages."

Interesting stuff. Keep reading.

I'm back

2006-01-28T10:03:00.000-05:00

Hopefully for more regular posting.

If you thought the Michael Brown saga was over...

2005-09-27T07:15:00.000-04:00

"Brown serving as consultant to FEMA"

A congressional panel on Tuesday is expected to scrutinize the decision to keep ousted Federal Emergency Management Agency chief Michael Brown on the federal payroll.

Brown told congressional investigators Monday that he is being paid as a consultant to help FEMA assess what went wrong in the aftermath of Hurricane Katrina, according to a senior official familiar with the meeting.

Brown also said he wished he had pushed more forcefully -- and earlier -- for federal troops to be brought in to restore order in New Orleans, the official told CNN.

Brown's comments were made to investigators for Rep. Tom Davis, R-Virginia. Davis leads a House select committee probing the federal, state and local response to Katrina, and Brown is scheduled to appear before the panel Tuesday in a highly anticipated appearance.

Congressional aides told CNN that given all of the questions already raised about Brown's qualifications for the FEMA job, the decision to keep him on the payroll for about a month will be examined at Tuesday's hearing.

At CNN.com.

Immigrant complains about Police, gets deported

2005-09-26T07:27:00.000-04:00

"Waheed Saleh says he was smoking a cigarette outside a doughnut shop at the rough edge of Riverdale in the Bronx when a police officer handed him a summons for disorderly conduct. He protested, he says, and the officer yelled at him to go back to his own country.

Mr. Saleh, a Palestinian, worked as a gypsy-cab driver illegally seeking fares and was used to tickets for infractions like double parking, making U-turns and picking up passengers. But he believed that this officer, Kishon Hickman, was harassing him. So he complained to the Civilian Complaint Review Board, which examines complaints against police officers.

Before he heard back from the board, however, he heard from federal immigration authorities. About a year later, outside the same doughnut shop on the night of Dec. 20, 2004, he was confronted by a federal immigration agent and local police officers. The police took him into custody on administrative immigration violations, sending him into deportation proceedings. Mr. Saleh believes it was retaliation for his civilian review board complaint.

Now, this tiny interaction between cabbie and police officer has turned into something with potentially far larger ramifications: it appears to be the first test case of Executive Order 41, Mayor Michael R. Bloomberg's two-year-old effort to reassure the city's immigrants that they can seek help from city agencies without fear of reprisal based on illegal immigration status. The order essentially codified a "don't ask, don't tell" policy for city workers.

Whatever the outcome - the police deny retaliation, and the review board rejected Mr. Saleh's claim of harassment - the case reveals that two years after Executive Order 41 was issued, there is no real mechanism in place to independently enforce it, to punish violators or even to investigate complaints like Mr. Saleh's, which was detailed by his lawyers at the Asian American Legal Defense and Education Fund in a letter received by the Mayor's Office on Immigrant Affairs last week."

Disgraceful.

From The New York Times.

"Intelligent design" case headed for SC?

2005-09-26T07:25:00.000-04:00

"Sheree Hied, a mother of five who believes that God created the earth and its creatures, was grateful when her school board here voted last year to require high school biology classes to hear about "alternatives" to evolution, including the theory known as intelligent design.

But 11 other parents in Dover were outraged enough to sue the school board and the district, contending that intelligent design - the idea that living organisms are so inexplicably complex, the best explanation is that a higher being designed them - is a Trojan horse for religion in the public schools.

With the new political empowerment of religious conservatives, challenges to evolution are popping up with greater frequency in schools, courts and legislatures. But the Dover case, which begins Monday in Federal District Court in Harrisburg, is the first direct challenge to a school district that has tried to mandate the teaching of intelligent design.

What happens here could influence communities across the country that are considering whether to teach intelligent design in the public schools, and the case, regardless of the verdict, could end up before the Supreme Court."

Read more here.

"Time" asks: "How Many More Mike Browns Are Out There?"

2005-09-25T18:59:00.000-04:00

"A TIME inquiry finds that at top positions in some vital government agencies, the Bush Administration is putting connections before experience."

It's really not as partisan as it sounds, quite a good story. Available here.

Next SC nominee may face Republican challenge

2005-09-25T08:44:00.000-04:00

"As President Bush moves to fill the second vacancy on the Supreme Court, he faces a new challenge in finding a jurist who can not only withstand Democratic scrutiny but hold together the support of Senate Republicans as well.

Polls have shown Mr. Bush's approval ratings near the lowest levels of his presidency. And Senate Republican strategists say that since his nomination of Judge John G. Roberts Jr. to the court, members of their conference have grown increasingly willing to disagree with the White House, notably on matters like stem cell research, Mr. Bush's choice for ambassador to the United Nations and the war in Iraq.

Some, including Senator Bill Frist of Tennessee, the majority leader, and Senator Sam Brownback of Kansas, a member of the Judiciary Committee, are considering their own bids for the presidency.

Now, both socially conservative and more liberal Republican senators say they may vote against confirmation of the next nominee if the pick leans too far to the left or the right on prominent issues like abortion rights.

Any Republican defection could provide cover for Democrats who want to oppose confirmation, protecting them politically in Republican-leaning states. Democrats have vowed to dig in for a tough fight over the nominee to succeed Justice Sandra Day O'Connor because she was a pivotal swing vote on the court.

"It is going to be different," said Senator Lincoln Chafee, Republican of Rhode Island, who is socially liberal and has said he will vote to confirm Judge Roberts.

Mr. Chafee said he would apply a more skeptical standard to the next nominee because of the balance of the court and might even oppose a jurist similar to Judge Roberts. "I will be looking very carefully" at the next nominee's views on privacy rights, "separation of church and state," and the scope of federal power, he said."

From The New York Times.

Witness: Inmate was "property" of Prison gang

2005-09-25T08:41:00.000-04:00

Outrageous. How can this be allowed in our prison system?

"Roderick Johnson, a former inmate at the Allred Unit, a violent prison a few miles from here, belonged to a gang called the Gangster Disciples, but not in the usual sense, the gang's former No. 2 man explained Wednesday in federal court here.

"Was Mr. Johnson considered a member of the Gangster Disciples?" one of Mr. Johnson's lawyers asked the witness, whose name was withheld by the court because his testimony could subject him to retaliation.

"No," said the witness, a soft-spoken, perfectly bald and quite imposing black man in a prison uniform and shackles.

"What was he considered?" asked the lawyer, Jeffrey Monks.

"Property," came the reply.

That meant, the witness continued, that gang members could rape Mr. Johnson at will. They could, he said, also rent him out for sex, and they did, daily. A purchased rape, the witness said, cost $3 to $7. Mr. Johnson says the abuse went on for 18 months.

Mr. Johnson, who was in Allred for probation violations after a burglary conviction, has sued seven prison officials there for violating the Eighth Amendment, which prohibits cruel and unusual punishment. The officials, the suit says, failed to protect him and took sadistic pleasure in his victimization. Mr. Johnson was released in 2003."

Read more at The New York Times.

"Diversity" for the Supreme Court

2005-09-25T08:37:00.000-04:00

Diversity for diversity's sake is not a good idea.

"As John G. Roberts Jr. sails toward almost certain confirmation as the 17th chief justice of the United States, President Bush faces conflicting pressures about how much race and sex should factor into his deliberations for filling the second vacancy on the high court.

With Bush poised to make another nomination as soon as this week, he is hearing growing demands to name a woman or minority to the vacancy created by the pending retirement of Justice Sandra Day O'Connor, Republican political and legal strategists said.

Laura Bush twice has said that she would like to see a woman succeed O'Connor, the first woman on the Supreme Court. A number of Latino group officials have publicly urged the president to name the first Hispanic to the high court.

But the pressure is also self-imposed by a president and White House that have made outreach to the Latino community among their most visible political priorities.

Many of the women and minorities mentioned as possible candidates for the high court are regarded as committed conservatives. They include federal appeals court judges Janice Rogers Brown, Consuelo Maria Callahan and Priscilla R. Owen and Michigan Supreme Court Judge Robert P. Young Jr., and Larry D. Thompson, general counsel of PepsiCo Inc., who served as the top deputy to then-Attorney General John D. Ashcroft.

Speculation continues to swirl around the question of whether Bush will name Attorney General Alberto R. Gonzales. Bush and Gonzales, the former White House counsel, have a close relationship, dating back to their days in Texas. But conservative groups have expressed opposition to Gonzales on ideological grounds, and Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) publicly recommended that Bush not appoint Gonzales.

Some Bush advisers believe the opposition to Gonzales makes his nomination a nonstarter, but in this case Bush's relationship with the attorney general -- not to mention the political dilemma that he would present to Democrats -- may outweigh the groups' opinions."

Name a qualified candidate Mr. Bush, no matter if that candidate is a minority or not.

From The Washington Post.

Full disclosure: Both my mother and father are latinos.

Good news in the global war on poverty

2005-09-25T08:34:00.000-04:00

"Finance ministers from around the world reached agreement on Saturday on a plan to wipe out as much as $55 billion in debt owed by impoverished countries. (...)

The agreement, which will initially affect about 18 countries, came after two years of grinding debate between the United States, Japan, Britain and most of the wealthy nations in Europe. (...)

If all goes according to plan, the 18 highly indebted low-income countries could be freed as early as the end of this year from the need to repay a total of about $1 billion a year in interest and principal. (...)

The criteria for eligibility was one of the most difficult issues, with the United States, Japan and Germany adamantly opposed to opening the door to an ever-expanding list of nations.

When the plan was first hammered out last summer by the United States and Britain, the idea was to make it available to countries that are currently categorized as "highly indebted poor countries."

But fund officials said eligibility had to be based on a specific formula that would apply the same standards to all countries.

The exact criteria remained unclear on Saturday, though Mr. Brown said it was based on a nation's per capita income. In addition to being poor, however, a government has to follow "sound" economic policies and meet standards for good governance.

The immediate goal of the plan is to give hopelessly indebted nations a chance to wipe the slate clean. The broader goal, supported by the Bush administration and a broad coalition of anti-poverty activists, is to shift future aid to outright grants and away from loans."

From The New York Times.

Iraqi Judge: British soldiers must go to jail

2005-09-25T08:29:00.000-04:00

I hadn't heard about this story, much less about the British Army's rescue of their soldiers.

Question: If Iraq is a sovereign nation, can't they take people prisoner?

Question: If the Coaltion is "invited" to stay in Iraq, can't they revoke the welcome and arrest any soliders who engage in unlawful activities?

Well, apparently the answer to the first is yes, so long as the prisoner isn't a soldier or citizen of a Coaltion members; and the answer to the second is a resounding "no."

"An Iraqi judge said on Saturday he had renewed arrest warrants for two British soldiers who were rescued from jail early this week by troops using armor to crash through the prison walls.

The two soldiers were arrested by Iraqi authorities on Monday after allegedly shooting two Iraqi policemen who tried to detain them. One of the policemen reportedly was killed. The two British soldiers, operating undercover, were subsequently taken into custody.

A British armored patrol then surrounded the jail where the two were held, prompting a riot in the Basra, Iraq’s second largest city and the southern hub of the country’s oil industry. Angry residents attacked the British armor with Molotov cocktails and pelted soldiers with stones as they jumped from the burning vehicles.

Later Monday, British armored vehicles crashed through the prison walls in an operation to rescue the two soldiers. They were subsequently found in a nearby house in the custody of militiamen, Britain said.

Basra authorities said the operation violated Iraqi sovereignty and the governor ordered all government employees to stop cooperating with the British, who have 8,500 troops in the Shiite Muslim-dominated region.

Judge Raghib al-Mudhafar, chief of the Basra Anti-Terrorism Court, said he reissued homicide arrest warrants for the two soldiers on Thursday."

From MSNBC.

Full disclosure: I supported the invastion.

More on Frist's potential insider trading scandal

2005-09-24T09:11:00.000-04:00

"Senate Majority Leader Bill Frist is facing questions from the Justice Department and the Securities and Exchange Commission about his sale of stock in his family's hospital company one month before its price fell sharply.

The Tennessee lawmaker, who is the Senate's top Republican and a likely candidate for president in 2008, ordered his portfolio managers in June to sell his family's shares in HCA Inc., the nation's largest hospital chain, which was founded by Frist's father and brother.

A month later, the stock's price dropped 9 percent in a single day because of a warning from the company about weakening earnings. Stockholders are not permitted to trade stock based on inside information; whether Frist possessed any appears to be at the heart of the probes.

A spokesman said Frist's office has been contacted by both the SEC and the U.S. attorney's office in Manhattan about his divestiture of the stock. HCA disclosed separately that it was subpoenaed by the same U.S. attorney's office for documents that were related to Frist's sale. Frist and HCA said they are cooperating.

Historians said they cannot recall any other congressional leaders who have faced federal inquiries into stock sales. Frist has denied any wrongdoing.

After Enron, Tyco, Worldcom, etc., it is hard to see how Frist could conceivably be a viable Presidential candidate with allegations like these hanging over his head.

From The Washington Post.

Disaster preparations closer to home

2005-09-24T09:10:00.000-04:00

"Since Hurricane Katrina, New York City officials have assured residents that the city is prepared to handle the kind of evacuation that a major hurricane would require. The city has plans to move people from areas that are likely to flood, plans to open shelters and reception centers, and plans to use public transportation to carry them there.

Most experts say the city's plans, if imperfect, are better thought out than those in other cities. They also say the city's mass transit network makes the plans for evacuating in advance of flooding or in the aftermath of isolated biological attacks more realistic than would be the case elsewhere.

These experts say there is no question that city officials have spent considerable time and money envisioning situations and developing strategies for dealing with them. But Katrina and the scenes that unfolded as Hurricane Rita howled toward Texas raised a question: Would it be possible to carry out a complete evacuation of New York City?

City officials do not pretend that it would be easy, or even doable. They say that very few situations would trigger such a necessity. Those situations are not hurricanes, but things like a nuclear event.

But even the "area evacuations" they envision for hurricanes-evacuations of zones they have already designated as likely to be flooded-could involve huge traffic jams. Given how many bridges and tunnels the city has, the jams in Houston could seem mild. And they say that moving hospital or nursing home patients completely out of the city would be an epic challenge.

Thus, after watching the disastrous, and in at least one instance deadly, backups in Houston, they have already tried to adjust their thinking about how to assist drivers who run out of gas. Yesterday, one official said, they worked out a plan to assign police escorts to gasoline trucks.

Officials are acutely aware that talking about an all-out evacuation is talking about something unprecedented in scope."

From The New York Times.

Insider trading, anyone?

2005-09-24T09:07:00.000-04:00

"Senator Bill Frist's sale of stock in his family's hospital company has not only prompted an inquiry into the sale itself but has also raised questions about the blind trusts in which his most recent financial disclosures show he holds assets valued at $7 million to $35 million.

On Friday, the company, HCA Inc., and a spokesman for Mr. Frist said federal prosecutors and the Securities and Exchange Commission had begun investigating the circumstances surrounding Mr. Frist's June sale of his remaining stake in HCA. The sale occurred just as the company's share price was reaching a new peak and about to take a steep tumble.

A spokesman for Mr. Frist, the Senate majority leader and brother of an HCA chairman emeritus, repeated Friday that the senator ordered the sale to dispel persistent accusations that his holdings created a conflict of interest because of his involvement in shaping health care policy. The spokesman, Bob Stevenson, said Mr. Frist's staff had cleared the order to sell the shares with the Senate Ethics Committee in advance.

A Frist aide disclosed the sale to Congressional Quarterly on Monday.

Mr. Frist's decision to sell represented a departure from his previous position that his lack of control over the blind trusts that held his assets almost eliminated any conflict of interest. The Frist transaction also followed several months of heavy selling by many top executives inside the company as the stock reached its new peak, raising questions about whether Mr. Frist was following their lead.

Bad news for Senator Frist.

From The New York Times.

Sometimes "Mo' Money, Mo' Problems" is true

2005-09-24T09:06:00.001-04:00

"Even in Greenwich, the $15 million to $18 million fortune they stand to inherit stands out as serious money. And yet few would trade places with them. They are 11-, 8- and 5-year-old siblings who have endured nearly as much tragedy in their short lives as the waifs of the Lemony Snicket stories who lurch from crisis to crisis.

Last month, their mother was convicted of killing their father in 2003 at their luxurious Hong Kong home, after he learned of her affair with a television repairman. Their maternal grandfather moved them to Illinois to live with him but changed his mind after two weeks.

Then the rich uncle who gave them refuge at his picture-perfect home in Greenwich was charged with orchestrating a fraud that is punishable by years in prison and could leave him penniless. His wife, the person primarily in charge of taking care of the children in the last year and a half, is seeking a divorce. She has said she would like to keep custody, but must battle creditors to preserve any semblance of the life she has led.

The question, then, of who will raise the three Kissel children, and, not coincidentally, what happens to the money their father left behind, will now be left to the American judicial system. Stamford Superior Court has begun revisiting the issue of temporary custody, and Surrogate's Court in Manhattan, which probated their father's will, is scheduled to take up the larger question of guardianship next Friday.

In the meantime, the squabbling continues, extending a spectacle that began overseas in late 2003 when Nancy Ann Kissel was accused of giving her husband, Robert P. Kissel, a Merrill Lynch executive, a sedative-laced milkshake before clubbing him to death. It spread here with this summer's news that Robert's brother, Andrew M. Kissel, had criminal and marital problems of his own."

Read more at The New York Times.

Sometimes "Mo' Money, Mo' Problems" is true

2005-09-24T09:06:00.000-04:00

"[N]o way to evacuate a large U.S. city"

2005-09-24T09:03:00.000-04:00

Worrisome:

"After 24 hours of clogged highways, stranded drivers and short tempers, major routes around Houston returned almost to normal yesterday afternoon, but not before the mammoth, snarled evacuation underscored what many emergency planners already knew: There is virtually no way to evacuate a large U.S. city quickly and smoothly.

State and local officials faced criticism yesterday morning after a day and night of gridlocked traffic on all main routes as millions of residents in southeast Texas attempted to flee Hurricane Rita. Highways were littered with families whose vehicles had run out of gas after 15 or more hours on the road, in what was described as one of the largest peacetime evacuations in U.S. history.

With many service stations also out of fuel, local officials mobilized to deliver gasoline to those still stranded and pledged quick action to get everyone off the highways to safer territory before Rita's expected arrival early today. As they sought to complete the evacuation, officials were peppered with questions about whether the congestion could have been avoided."

From MSNBC News.

Article on Roberts in NYT Magazine

2005-08-28T09:07:00.000-04:00

Jeffrey Rosen has an interesting article titled "Roberts v. the Future" in this weeks New York Times Magazine.

Judge Roberts is one cool customer

2005-08-28T09:06:00.000-04:00

"Under pressure, some people talk a bit faster, some talk a bit louder, some get tongue-tied or sound irritated. Supreme Court nominee John G. Roberts Jr.'s voice changes not one whit.

His genial tone comes through on tapes of his many oral arguments as a lawyer before the high court. Here, years of litigation and months of preparation come down to 30 minutes of mental jujitsu with a constantly interrupting panel of contentious justices. But Roberts greets every snappish interjection, every odd hypothetical question, every hostile digression with the same unhurried yet purposeful voice.

This unflappability will be tested again starting Sept. 6, when Roberts goes before the Senate Judiciary Committee for a multiday confirmation hearing. The session is sure to feature hostile questions from Democratic senators worried about the nominee's views on civil rights, abortion, judicial ethics and the role of courts. His testimony before the same committee two years ago, when he was appointed to the federal bench -- and his years as one of America's most effective appellate advocates -- suggests that Roberts will be ready for that test.

Roberts sailed through his earlier hearings, even as the tone of the questions got pretty hot. Here's Sen. Charles E. Schumer (D-N.Y.), for example, scolding Roberts for dodging questions about judicial philosophy:

"You are making this an absurd process, sir, when you are saying that you can't answer even broad questions about specific jurisprudence, when you can't say how you feel about previous court cases."

The response was typical Roberts: cheerful, outwardly humble, yet giving up nothing. "I'm not sure that I could give an intelligent answer," the witness answered, "because I do think the philosophies of the justices are pretty hard to pin down. . . . To go back and analyze all of the cases and see, was this justice adopting this philosophy in this case, or this one that philosophy in another case -- I guess I just didn't feel capable of doing that."

More reasons why Roberts should be approved ASAP.

From The Washington Post.

"Packing" the NJ Supreme Court

2005-08-28T09:03:00.000-04:00

"Senator Jon S. Corzine says he believes that the selection of the next few Supreme Court justices is a "big, big, big responsibility," given the increasingly conservative bent of the federal courts. Douglas R. Forrester declares that he cannot "think of anything that has any more long-term potential impact" than those appointments, because the court has, in his view, often overstepped its authority.

They are not talking about the Supreme Court in Washington.

For all the attention being paid to the nomination of Judge John G. Roberts Jr., New Jersey is facing some tough court choices of its own, at a time when future cases could tackle contested topics like eminent domain and same-sex marriage.

Shortly after taking office, the next governor must replace Chief Justice Deborah T. Poritz, who will reach the mandatory retirement age of 70 next October. The job may be the most powerful state judgeship in America, because the chief justice is also responsible for assigning all 453 Superior Court judges in New Jersey, and overseeing a statewide staff of 9,000.

Then, after the chief justice's position is filled, the governor is scheduled to replace one judge who is retiring and decide whether to reappoint three of the court's five remaining justices by the end of his first term in 2009.

In New Jersey, the state's Supreme Court has had a bigger effect on fiscal issues, such as schools, zoning laws and state finances, than any decision made on the federal circuit. And those decisions have often reverberated beyond the state's borders because of the New Jersey Supreme Court's national reputation.

If Mr. Forrester, a Republican, wins, he is expected to steer what has long been viewed as a liberal court to the right, favoring nominees who have demonstrated "judicial restraint," he said in an interview. He also has had a bitter personal experience with the court: During Mr. Forrester's unsuccessful bid for United States Senate in 2002, the court allowed his opponent, former Senator Robert G. Torricelli, to be replaced by Frank R. Lautenberg, just 36 days before the election, despite the 51-day deadline set by state law.

"The big questions of land use, election law, public finance and certainly education have all been decided by the Supreme Court in New Jersey," Mr. Forrester said during a Republican primary debate in June. "That's wrong. It should be decided by the Legislature."

If Mr. Corzine, a Democrat, wins, he is expected to favor jurists who share his views on labor, privacy and other issues. By contrast, he said in an interview, Mr. Forrester has professed admiration for Justices Antonin Scalia and Clarence Thomas."

Democracy at work?

From The New York Times.

Natural Cures "they" don't want you to know about

2005-08-28T09:00:00.000-04:00

I don't like scam artists:

"When Carol Boruk of La Marque, Tex., saw Kevin Trudeau selling his book on a late-night infomercial last November, she was mesmerized.

Mr. Trudeau was good-looking, energetic and articulate, and talked about nonpharmaceutical remedies that could eradicate virtually any disease - and that he said were being suppressed by the government and the drug industry.

Ms. Boruk, who suffered from allergies and recurring headaches, called the number on the screen and happily forked over $30 for a copy.

So have millions of others. In the last three weeks, the updated and expanded version of "Natural Cures 'They' Don't Want You to Know About," which Mr. Trudeau self-published, has been outsold only by "Harry Potter and the Half-Blood Prince," according to Nielsen Book-Scan.

The book has been on the New York Times list of best-selling how-to and advice books for eight weeks and is currently No. 1. Mr. Trudeau's publishing company says it has sold roughly three million copies since last August. (...)

There are other unusual things about the book's success. Mr. Trudeau, 42, a publishing novice, is not a doctor or scientist, and has had some run-ins with the law.

In the early 90's, he served two years in federal prison for credit-card fraud. He was later sued by the Illinois attorney general over an alleged pyramid marketing scheme, and he has tangled twice with the Federal Trade Commission over claims that he made in infomercials for various alternative remedies.

Last year, the commission barred him from selling products through infomercials. "Natural Cures" was able to skirt that rule because books are protected as free speech under the First Amendment, a lawyer for the agency said.

Some of the book's assertions have prompted some readers to declare it a fraud. "Nothing more than a latter-day snake oil salesman," one reader, D. Bellini of Grand Rapids, Mich., posted on Amazon.com. Another reader called it "the worst rip-off I have gotten sucked into."

Officials at the New York State Consumer Protection Board also did not like the book. In early August the board issued a statement warning that "Natural Cures" is full of "empty promises."

"This book is exploiting and misleading people who are searching for cures to serious illnesses," Teresa A. Santiago, the board's chairwoman, said in the statement. "What they discover is page after page of pure speculation."

This is an instance where government intervention is warranted, and indeed, should be sought.

From The New York Times.

I'm back

2005-08-27T22:03:00.000-04:00

I've returned from my several business trips and family vacations (yes, two). Back to blogging.

ABA: Roberts "well-qualified"

2005-08-18T11:53:00.000-04:00

"Supreme Court nominee John Roberts earned a "well qualified" rating from the American Bar Association on Wednesday, clearing one hurdle in his path to joining the high court.

The rating by unanimous vote of an ABA committee was disclosed as the Senate Judiciary Committee announced plans for the start of confirmation hearings on Sept. 6. Roberts will face almost an hour of questioning from each of the 18 senators on the committee.

The committee also will hold one hearing that will be closed to the public.

For more than 50 years, the ABA has evaluated the credentials of nominees for the federal bench, though the nation's largest lawyers' group has no official standing in the process. Supreme Court nominees get the most scrutiny.

This is the fourth time the ABA has rated Roberts. He was designated as well qualified in 2001 when he was nominated for the U.S. Court of Appeals for the D.C. Circuit. He earned the same rating in 2003 when he was nominated again for the appeals courts and then confirmed. He was rated as qualified as an appeals court nominee in 1992, but the Senate never took up that nomination."

From law.com.

Lawyer says Merck hid Vioxx danger for a decade

2005-08-17T15:03:00.000-04:00

If this is true, Merck is in deep, deep trouble.

"Merck & Co. Inc. for years hid clinical evidence that showed Vioxx posed a heart attack risk, said the lawyer for the plaintiff in the first state civil trial against drugmaker's popular painkiller.

"We've seen a decade of deception by Merck," Mark Lanier told the jury in closing arguments on Wednesday.

Merck pulled the drug off the market in September, saying studies showed long-term usage raised patients' risk of heart attack or stroke.

During the six-week trial, Lanier presented internal Merck documents that showed some of the company's scientists were worried about heightened heart attack risks long before Vioxx was withdrawn from the market.

The case pits the drug giant against Carol Ernst, the widow of Robert Ernst, a Wal-Mart employee and marathon runner who died in 2001 at the age of 59.

An autopsy report said Ernst died of arrhythmia, or irregular heartbeat, although the medical examiner who wrote that report testified at the trial that she believed a heart attack was to blame.

That issue is key in the case, since there are no medical studies showing that Vioxx caused arrhythmia."

From Yahoo! News.

Lawyer says Merck hid Vioxx danger for a decade

2005-08-17T14:59:00.000-04:00

"Sandra Day O'Connor: The reluctant justice"?

2005-08-17T11:44:00.000-04:00

Really?

"When Justice Sandra Day O’Connor announced her retirement Friday, she cited her age, 75, and her desire to "spend time” with her husband and their three sons.

After 24 years on the bench, she'll finally have that time.

Tapped by President Reagan in 1981, O’Connor was 51 when she joined the court to replace the retired Potter Stewart.

O'Connor recalled how she was surprised by the enormity of the reaction to her appointment as the first woman on the court. She received more than 60,000 letters in her first year, more than any one member in the court’s history.

“I had no idea when I was appointed how much it would mean to many people around the country,” she once said. “It affected them in a very personal way. People saw it as a signal that there are virtually unlimited opportunities for women. It’s important to parents for their daughters, and to daughters for themselves.”

At times, the constant publicity was almost unbearable. “I had never expected or aspired to be a Supreme Court justice. My first year on the court made me long at times for obscurity,” she once said."

From MSNBC.

Democrat Senator rips Roberts

2005-08-17T11:41:00.000-04:00

It's started. A highly qualified and non-controversial nominee like Roberts gets ripped by some far-left Democrats:

"Sen. Patrick Leahy, who will lead the Democratic questioning at John Roberts’ confirmation hearings, criticized the Supreme Court nominee Tuesday as an “eager, aggressive advocate” for policies of the Republican far right wing.

While stopping short of announcing his opposition to the appointment, the Vermont Democrat’s written statement was by far the most critical he has made since President Bush nominated Roberts.

Firing his broadside one day after the release of 5,000 pages of Reagan-era records, Leahy said Roberts’ views were “among the most radical being offered by a cadre intent on reversing decades of policies on civil rights, voting rights, women’s rights, privacy and access to justice.”

Ugh. From MSNBC.

JP Morgan settles Ernon "megaclaims"

2005-08-16T12:34:00.000-04:00

"Two banks agreed on Tuesday to pay at least $420 million to settle their parts of the ''Megaclaims'' lawsuit filed by Enron against 10 banks, alleging they ''aided and abetted fraud'' and could have prevented the energy trader's collapse.

JPMorgan Chase & Co. agreed to pay $350 million in cash to Enron Corp. and Toronto Dominion Bank agreed to pay $70 million. The companies also will forgo certain claims in Enron's bankruptcy proceedings while agreeing to pay more money to Enron for the ability to pursue others.

Enron said the bankruptcy claims that are part of the JPMorgan settlement have a value of $660 million, and that the settlement with JPMorgan could reach up to $1 billion. Toronto Dominion agreed to forgo claims value at almost $56 million, while paying $60 million to allow claims valued at $320 million that the company transferred to third parties.

New York-based JPMorgan said it does not expect its settlement, which is subject to the approval of the bankruptcy court, to have a ''material adverse impact'' on earnings.

''With today's agreement, we have put behind us another significant piece of our Enron exposure,'' said William B. Harrison Jr., JPMorgan's chairman and CEO, in a prepared statement.

JPMorgan agreed in June to pay $2.2 billion to Enron shareholders to settle its part of a class-action lawsuit, after initially turning down a chance to settle for significantly less."

From The New York Times.

Medicaid litigation creating ripples throughout nation

2005-08-15T10:26:00.000-04:00

"In a series of rulings, federal judges are limiting the ability of poor people to turn to the courts to fight for Medicaid benefits to which they believe they are entitled.

The judges, following guidance from the Supreme Court, are ruling that Medicaid recipients cannot use the courts to enforce a provision of the law that says they should have the same access to health care services as "the general population."

While the federal courts are still full of Medicaid litigation, it is proving more difficult for beneficiaries to prevail.

Medicaid provides health insurance to more than 50 million low-income people. The court decisions are raising questions about what it means to have health insurance, if the terms of such coverage cannot be enforced.

The rulings, in more than a dozen cases, affect millions of people and involve a wide range of services like nursing home care, home health visits and preventive care for children.

In a typical case, the United States Court of Appeals for the Ninth Circuit, in San Francisco, said this month that Medicaid recipients could not enforce the provision of the Medicaid law that promises them "equal access" to care and services. In establishing this guarantee, the court said, "Congress did not unambiguously create an individually enforceable right."

It is not enough for Medicaid recipients to show "merely a violation of federal law or the denial of a benefit," the court said. In addition, it said, plaintiffs must show that Congress clearly intended to allow individuals to go to court to enforce the law.

In the California case, Sanchez v. Johnson, the court found no evidence of such intent.

Sara Rosenbaum, a professor of health law and policy at George Washington University, said: "The idea of Medicaid as an enforceable entitlement is hanging by a thread. Some of Medicaid's most important provisions cannot be enforced. Increasingly, the courts are saying, 'Don't come to us any more unless you can show that you have an absolutely crystal-clear right.' "

The issue is technical but critically important: whether individuals can enforce the Medicaid law or other statutes that provide benefits to millions of Americans.

The Supreme Court's latest pronouncement came in 2002. In general, said Chief Justice William H. Rehnquist, a federal law cannot be enforced through a private lawsuit "unless Congress speaks with a clear voice and manifests an unambiguous intent to confer individual rights."

Before that decision, federal judges had held that Medicaid recipients and health care providers could sue to enforce many provisions of the Medicaid law. But lower courts have reconsidered those rulings in light of the Supreme Court's admonition that they should be reluctant to infer individually enforceable rights where Congress did not explicitly create such rights."

Interesting discussion. Continue reading at The New York Times.

Judge: VA drunk-driving laws unconstitutional

2005-08-15T10:24:00.000-04:00

"A district judge has ruled that key components of Virginia's drunken driving laws are unconstitutional, citing a decades-old U.S. Supreme Court decision.

The state law presumes that someone with a blood alcohol content of 0.08 or higher is intoxicated, denying their right to a presumption of innocence, Judge Ian O'Flaherty ruled in dismissing charges against at least two alleged drunken drivers last month.

"I am sure there will be lawyers out in the field making similar arguments tomorrow," Steven Oberman, chairman of the DUI defense committee at the National Association of Criminal Defense Lawyers, said in a telephone interview Thursday.

Corinne Magee, a defense lawyer who first successfully argued the issue to O'Flaherty, said the ruling is based on a 1985 U.S. Supreme Court case that deals with prosecutors' obligation to prove all elements of a crime beyond a reasonable doubt.

Magee said Virginia's law presumes the blood-alcohol level at the time the test is taken is equal to the level at the time of the offense, even if the test occurs hours after police make a stop."

From cnn.com.

Court: L'Oreal must hire ugly women

2005-08-15T10:22:00.000-04:00

"The saying that beauty is skin deep took on a new complexion Thursday when one of the world's largest cosmetics companies learned it could be liable for insisting on the hiring of "hot" sales representatives.

By a 4-2 vote, the California Supreme Court ruled that L'Oreal USA Inc. could be sued under the state's Fair Employment and Housing Act for allegedly retaliating against Elysa Yanowitz, a former regional sales manager for Northern California, for refusing to fire a woman not considered attractive enough for company standards.

"A rule that would allow retaliation against an employee for opposing conduct the employee reasonably and in good faith believed was discriminatory," Chief Justice Ronald George wrote for the majority, "would significantly discourage employees from opposing incidents of discrimination, thereby undermining the fundamental purposes of the anti-discrimination statutes."

Justice Ming Chin, joined by Justice Marvin Baxter, dissented, arguing that Yanowitz had never directly told her bosses that she considered their orders to find good-looking employees sexually discriminatory or unlawful in any way.

"This case, thus, presents the question whether a person can be a whistleblower without blowing the whistle," Chin wrote. "At least in this case, where the personnel order was not clearly unlawful, I would say no."

I'll spare you my thoughts.

From law.com.

Judge slaps down DHS workplace rules

2005-08-15T10:20:00.000-04:00

"The Department of Homeland Security, after more than two years of work on new workplace rules, may have to scrap the plan after a federal judge questioned whether it protects union and employee rights.

The rules were scheduled to begin today but were blocked by U.S. District Judge Rosemary M. Collyer in a ruling released Friday night. A spokesman for the department, Larry Orluskie, said officials are to meet today and "consider next steps." Talk about an appeal or other options would be premature until government lawyers study the decision, he said.

The workplace rules would have dramatically reduced the clout of unions in the department, which has about 160,000 employees. Bush administration officials see the proposed rules as a key to moving forward -- and sidestepping union objections -- to more ambitious changes that would affect how employees are paid, promoted and disciplined.

The changes in labor, pay and other areas are part of a regulatory package that the administration devised after the Sept. 11, 2001, terrorist attacks. The White House has insisted that federal managers need more leeway in deploying workers and in negotiating with unions if they are to enhance national security.

But Collyer found that the Homeland Security plan "does not lead to enforceable contracts and thus fails to comply with the direction of Congress to ensure employee collective bargaining rights."

The ruling was hailed by labor groups, which have contended that the White House is trying to gut union rights under the guise of creating more flexible pay and personnel systems.

Congress and the White House have been closely watching the case. The Defense Department, with about 746,000 civil service employees, is revising its workplace rules, and the Office of Management and Budget has proposed legislation that would revamp federal pay and modify some union rules for 1 million more workers."

Definition of activist judge = see above.

From The Washington Post.

The effects of guilty plea on investigation of KPMG

2005-08-15T10:14:00.000-04:00

"For accountants, lawyers and financial executives whose role in the sale of some questionable tax shelters has been under federal investigation, the stakes have suddenly risen sharply.

With a bank executive's guilty plea last week to a charge that he conspired to commit tax shelter fraud, federal prosecutors have put considerable pressure on potential defendants who worked at KPMG, the accounting firm that sold the shelters, and at the banks and law firms involved. Now prosecutors have a cooperating witness who may be able to incriminate others - creating an incentive for some to cut their own deals with the government.

"Getting one person to cooperate is clearly the first step," said Daniel J. Horwitz, a former assistant district attorney who is now at Carter, Ledyard & Milburn in New York. He added: "Typically, in a case where the government has a menu of people to choose from, they can play people against each other, so that the first people in the door are the ones that will get the benefit of a cooperation agreement. And for those who don't cooperate, as they say in the business, the train may have left the station for them."

KPMG - along with banks, law firms and other financial institutions that helped in creating and marketing the shelter transactions - has been under investigation by a federal grand jury in Manhattan for about 18 months over its work on a number of shelters sold from 1996 to 2002. Investigators say the shelters cost the government as much as $1.4 billion in tax revenue.

So far, no one has been indicted in the case. Negotiations between prosecutors and KPMG appear to have set aside - for now - an indictment of the firm, which could be disastrous for its business. Talks have focused instead on penalties and changes in practice that could be imposed on the firm.

For potential defendants, the situation changed radically last Thursday when a former executive of the Manhattan branch of HVB Group, a large German bank, pleaded guilty to charges that he participated in a conspiracy to commit tax shelter fraud, along with tax evasion and other crimes. The executive, Domenick DeGiorgio, was co-head of the financial engineering group at HVB, according to a court filing by federal prosecutors."

Bad news for the folks at KPMG. Are we going to have only the "Big Three" accounting firms instead of the "Big Four" soon?

From The New York Times.

Court: Former gov't worker awarded $3M

2005-08-15T10:12:00.000-04:00

"The federal government often touts itself as a model employer of workers with disabilities. Lisa Bremer begs to differ.

She was awarded $3 million yesterday in compensatory damages after jurors found that the Commerce Department failed to provide "reasonable accommodation" for her battle with multiple sclerosis.

Bremer, 44, a Freedom of Information Act officer at the department since 1987, took disability retirement in April 2003 after her supervisor ended an arrangement that had allowed Bremer to work from home two days a week. She sued at that time.

Bremer, who was diagnosed with MS in 1991 and uses a wheelchair, had submitted medical documentation that her condition was severe enough to justify special treatment under the Rehabilitation Act of 1973. (The law requires the government to make adjustments so qualified workers with disabilities can perform the essential functions of their jobs.) The Commerce Department had approved her physicians' request in 1993 that Bremer be allowed to work from home two days a week, and in 1996 the department bought a motorized scooter for her to use in the office, said her attorney, Joseph V. Kaplan.

"This all could have been prevented if the Department of Commerce had just lived up to its obligations," Kaplan said.

Federal law limits Bremer's award for compensatory damages to $300,000, Kaplan said. The jury is not told about the ceiling before it deliberates. Bremer is awaiting a ruling from a judge on whether she is entitled to back pay.

Bremer said she was "ecstatic" about the jury's decision. "It sends a strong message that the government's behavior was outrageous," she said."

From The Washington Post.

Indian government bans rickshaws

2005-08-15T10:03:00.000-04:00

It appears that governments around the world are becoming increasingly restrictive through the use of laws:

"Calcutta's famous hand-pulled rickshaws will soon be banned, according to the chief minister of the Indian state of West Bengal.

The rickshaws had long been considered "inhuman" and did not exist anywhere else, Buddhadev Bhattacharya said.

The rickshaw, immortalised as a living symbol of Calcutta in films such as City of Joy, will be phased out in four to five months.

The hand-pulled rickshaw came from China in the 19th century.

Mr Bhattacharya said: "We have taken a policy decision to take the hand-drawn rickshaw off the roads of Calcutta on humanitarian grounds.

"Nowhere else in the world does this practice exist and we think it should also cease to exist in Calcutta," he said."

From The BBC.

Panhandling bans

2005-08-15T09:55:00.000-04:00

"Homeless people and dozens of their advocates spent the night at City Hall to show their opposition to a proposed panhandling ban backed by businesses in the city's downtown.

"It's far from out of control," said Ronald Lee, a 48-year-old Washington, D.C., native who has been homeless in Atlanta for eight months.

"In our nation's capital, people ask for money right in front of the White House," he said. "If someone wants to assist you, I don't see a problem with it."

Lee was among those who gathered on the steps before a planned vote on the ban Monday by city leaders — a vote that was delayed last month after a contentious meeting that included shouting matches and hissing from critics.

The proposed resolution would make it illegal to beg for money near downtown hotels or tourist sites. On a third offense, beggars could be jailed or fined.

Downtown business owners say aggressive beggars are keeping people away from the central business district. Last month, Home Depot co-founder Bernie Marcus, who is bankrolling the $200 million Georgia Aquarium being built downtown, threw his support behind the ban, saying the success of the attraction depends on its passing.

Advocates are instead pushing for affordable housing and a living wage for the city's homeless population, saying the ban would criminalize a person's right to ask for charity when they cannot take care of themselves.

"People have the right to ask, and people have the right to say no," activist and former city council member Derrick Boazman said."

I think this is a bad idea. Insofar as this is a "free" country, people should be allowed to ask for money, even if others do find it annoying.

Furthermore, from an economic point of view, think of this: assuming that people really are rational economic actors that seek to better themselves off, then panhandling should be allowed. Why? If panhandlers (and "artists" on streetcorners and subway stations, among others) have searched for a job on the hob market, and found that they can make more money with the skills that they have panhandling or playing an instrument or something of the sort, then these people are making a rational economic decision. Why should the government deter them from doing this?

From Yahoo! News.

Court: "Man Outed on Radio Show to Receive $270K"

2005-08-14T13:37:00.000-04:00

The Washington Post reports:

"A San Francisco man who says he was devastated after he was identified as gay on a national Spanish-language radio show will be paid $270,000 by Univision Radio, an arbitrator has ruled.

Roberto Hernandez, 45, was driving to work in 2002 when he received a phone call from a man who said that he met Hernandez at a San Francisco gay bar. The caller then announced that the conversation was being broadcast live on the "Raul Brindis and Pepito Show," based in Houston.

Hernandez worked for the local station that broadcast the show, and sold advertising for the program. He said he was so depressed by the incident that he could no longer work.

"It's a nightmare," Hernandez said. "How do you live with such an embarrassment in your life? How do you live when someone makes your life so insignificant? "

Hernandez had been discreet about disclosing his sexual orientation before the incident, not even telling his family.

Arbitrator Rebecca Westerfield found on Friday that Hernandez had suffered emotional distress but dismissed claims of sexual harassment. She said that Hernandez had no choice but to quit his job and was owed workers' compensation.

Hernandez was awarded $250,000 and nearly $20,000 in economic damages because of the emotional distress that led to seven months of unemployment after quitting his job.

Univision attorneys declined to comment on the case."

Roberts' high ethical standards

2005-08-14T13:27:00.000-04:00

"Judge John Roberts Jr. is bowing out of a high-stakes federal appeals court case involving the American Bar Association.

The Supreme Court nominee last week recused himself from the case, in which the ABA is a party, months after he heard oral arguments in the matter.

No reason was given for the recusal, but the ABA has long evaluated the qualifications of Supreme Court nominees and has yet to render a decision on Roberts. The Senate historically has considered the ABA's views in confirming judicial candidates.

The U.S. Court of Appeals for the D.C. Circuit, where Roberts now sits, issued a brief order announcing the recusal on Aug. 9. The court, Roberts, and the White House all would not comment on why Roberts stepped away from the case.

The case could have an impact on the way law firms do business. The suit was brought by the ABA and the New York State Bar Association against the Federal Trade Commission. The bar associations say that the federal government has no right to hold lawyers to certain privacy provisions in the 1999 Gramm-Leach-Bliley Act, which was designed to protect consumers' personal financial information and aimed largely at the financial services industry.

Roberts' choice to leave the case, at a time when his every move is being scrutinized, may be an exercise in extreme caution, some legal experts say."

Via law.com.

"Big Tobacco" in court

2005-08-14T13:18:00.000-04:00

"On and on they go, mammoth lawsuits against the nation's biggest tobacco companies.

Just two weeks ago, Philip Morris USA and five other cigarette makers were sued in a federal court in Boston by a group seeking to recover $60 billion for the government in Medicare benefits for smoking-related diseases. Lawyers for the group, the United Seniors Association, said the law also allowed the court to award an additional $60 billion to the plaintiff.

The lawsuit is just the latest in more than 50 years of legal challenges to the tobacco industry. Hundreds of other cases are still pending in this country and abroad, including some that have been grinding on for years, like the federal government's effort to claim $280 billion in a racketeering case.

As the nation's largest cigarette maker with half the domestic market, Philip Morris, alone, is currently a defendant in 454 cases; it spent $933 million in legal costs from 2002 to 2004, with lawyers billing $850 an hour and, in rare cases, up to $1,000.

Are company officials concerned about the Boston case? Are they concerned about any case? To some extent, yes, they say. But this is an industry that long ago accepted litigation as a routine cost of business.

"Obviously, we take the litigation very seriously," said Steven C. Parrish, a senior vice president of the Altria Group, the parent company of Philip Morris. Mr. Parrish added, "We believe we have the appropriate strategies and resources to successfully manage the litigation."

Like other tobacco companies, Philip Morris has a modest staff that oversees the company's litigation and retains leading law firms and specific lawyers on a case-by-case basis.

For the trial in the government lawsuit, which ended in June after nine months, much of the courtroom work was handled by two lawyers representing Philip Morris - Dan K. Webb of Winston & Strawn in Chicago and Theodore V. Wells Jr. of Paul, Weiss, Rifkind, Wharton & Garrison in New York - along with David M. Bernick of Kirkland & Ellis in Chicago, who represented the Brown & Williamson tobacco company.

Mr. Webb is a former United States attorney in Illinois who has represented Microsoft, General Electric and the New York Stock Exchange. Mr. Wells has defended civil and white-collar criminal defendants, including former Agriculture Secretary Mike Espy, former Senator Robert G. Torricelli of New Jersey and the financier Michael Milken. Mr. Bernick, who has defended chemical and asbestos companies, specializes in complex corporate cases and has been retained by Philip Morris for a class-action tobacco case in New York.

With such legal power, the tobacco companies have enjoyed a reasonable measure of success in court."

And on and on with endless litigation.

From The New York Times.

Why we need more money for education

2005-08-14T13:16:00.000-04:00

"It is a habit born of necessity. When she began teaching, Smith said, she spent several hundred dollars at the beginning of each school year on supplies. Other teachers reported spending more than $1,000. From $2.09 for a spiral-bound notebook to $500 for a high-tech Jeopardy! game, teachers dig deep into their own pockets for props that might entice children to learn and basics that some of their students might not be able to afford.

"Teachers who spend the money, who really care enough about their classrooms to spend the money, are going to be more successful because they have more tools to use and resources to pull from," said Amy Mason, who teaches second grade at Running Brook Elementary School in Columbia.

According to a study by the National School Supply and Equipment Association last year, teachers nationwide spent an average of $458 of their own money on school supplies, said Adrienne Watts, vice president of marketing for the trade group. Local educational supply stores said August through early September is their busiest time. Jeff Faw, president of Learning How, said he doubles staffing at the company's seven locations for the back-to-school rush.

At Crown Educational in Centreville on a recent afternoon, Carolyn Frank roamed the aisles in search of flashcards, posters, name tags, pens, pencils, stickers and glue.

"I look for everything," said Frank, a third-grade teacher at Centreville Elementary. "Anything that will add to what the school already gives me."

Teachers said that although schools usually provide basic supplies, they often do not cover such extras as scratch-and-sniff stickers to give to students for a job well done. And teachers also often stock up on supplies for students whose families might not be able to afford to fill their backpacks. The report by the school supply association showed that about 60 percent of teachers' out-of-pocket expenses were for basic school supplies, and that the rest went toward instructional materials.

"Parents sometimes forget that the supplies that they send with [children] at the beginning of the year aren't necessarily going to last until May or June," Mason said."

From The Washington Post.

Finally, some judicial moderation

2005-08-14T13:09:00.000-04:00

At MSNBC, a story titled "Judge reluctant to create emissions oversight". Excerpt:

"A federal judge expressed reluctance about beginning judicial oversight of pollution issues that affect global warming as she heard arguments Friday in a complaint brought by eight states against some of the nation’s largest power companies.

“Why should I do something that Congress and the president have decided they don’t want to do as a matter of policy?” Judge Loretta Preska asked lawyers for the states.

Connecticut Attorney General Richard Blumenthal said the states would prove that the five power companies are responsible for 10 percent of the nation’s carbon dioxide emissions."

It's good to see judges refraining from intervening in such frivolous and non-judicial matters.

Sorry I havent posted

2005-08-11T12:48:00.000-04:00

I'm sorry I've been so behind. I've been travelling around the country, and have had spotty internet. Be back soon.

Award almost dismissed due to Attorney's conduct

2005-08-08T08:32:00.000-04:00

"It took more than two years, but malpractice attorney Thomas A. Moore has won a $13.8 million verdict in a case where his combative style nearly cost him -- and his client -- every last cent.

In Smith v. Au, 5966, the Appellate Division, 1st Department, has upheld $13.8 million of a $16.3 million verdict that Moore and his firm, Kramer, Dillof, Livingston & Moore, won for a former law firm clerk who suffered a stroke after doctors allegedly failed to diagnose medical problems.

The final award came eight months after Bronx Supreme Court Justice Stanley A. Green reduced it to $9.6 million. In a brief ruling last week, a unanimous panel of the 1st Department said the figure was too low.

Two years ago, that figure had dropped to zero. In September 2003, Green dismissed the entire $16.3 million verdict, citing Moore's behavior at trial. The judge reprimanded Moore for talking back to him, obscuring the issues and degrading the court. He called the lawyer's conduct "reprehensible."

At one point, Green and Moore engaged in a heated exchange over the meaning of the phrase "on the same page." The judge concluded the back and forth by saying, "Please don't raise your voice to me again. End. Final."

From law.com.

Court: Homeland Security Miranda warnings "ambiguous"

2005-08-08T08:19:00.000-04:00

"A federal judge ruled unconstitutional a Miranda rights warning that Homeland Security agents used to interrogate drug-smuggling suspects, prompting the agency to make sure a legally sufficient warning is used nationwide.

U.S. Magistrate Judge Lurana Snow ruled that statements made by four men accused of smuggling cocaine aboard a cruise ship could not be introduced in court because the Miranda warning failed to spell out that they could have an attorney present during — not just before — interrogation by authorities.

"From a legal standpoint, the warnings on the Homeland Security form are ambiguous, at best," Snow said in her 16-page decision.

The ruling in Fort Lauderdale was issued July 26 but not made public until Friday by Miami defense attorney Ellis Rubin, who brought successful challenges to similar flaws in police Miranda warnings in Broward County."

From MSNBC.

Daily dose of Judge Roberts

2005-08-08T08:18:00.000-04:00

"Judge John G. Roberts Jr., President Bush's nominee for the Supreme Court, has written quite a bit in opposition to a constitutional right to privacy that has served as the basis for Supreme Court decisions protecting abortion and gay rights. But his writings, though distinctive and consistent, were always on behalf of superiors and clients and might not reflect his own views, then or now.

The positions Judge Roberts sketched out do echo those of Robert H. Bork, whose nomination for the court was defeated in 1987.

"Robert Bork was blocked in large part because he said in his writings that there was no constitutional right to privacy," said Erwin Chemerinsky, a law professor at Duke.

Judge Roberts could face serious trouble, liberal and conservative law professors agreed, if he were to embrace similar views at his confirmation hearings in the Senate next month.

In his two years on the federal appeals court in Washington, Judge Roberts has addressed significant privacy issues only in his Fourth Amendment decisions, sustaining police searches and other actions in the nine cases in which the issue arose. But there is little overlap between Fourth Amendment doctrine and the sort of constitutional privacy rights involved in cases concerning broader social issues.

Judge Roberts addressed that second sort of constitutional right to privacy, as set forth in a 1965 court ruling, as a lawyer in the Justice Department in 1981, just after finishing his clerkship with Justice William H. Rehnquist, now the chief justice.

In a draft article for Attorney General William French Smith that year, Judge Roberts wrote that the Supreme Court should not interpret the Constitution to give rise to new rights.

"All of us, for example," he wrote, "may heartily endorse a 'right to privacy.' That does not, however, mean that courts should discern such an abstraction in the Constitution, arbitrarily elevate it over other constitutional rights and powers by attaching the label 'fundamental,' and then resort to it as, in the words of one of Justice Black's dissents, 'a loose, flexible, uncontrolled standard for holding laws unconstitutional.' "

The quotation was a telling one. Justice Hugo L. Black's dissent was in Griswold v. Connecticut, a 1965 case in which the Supreme Court struck down a Connecticut law that made the use of contraceptives a crime. It was, Justice Potter Stewart wrote in his own dissent, "an uncommonly silly law." But, the dissenters said, the Constitution did not give courts the power to strike down even silly laws unless they were in direct conflict with a constitutional command."

From The New York Times.

Justice Seven's comments in Chicago

2005-08-08T08:16:00.000-04:00

I heard Justice Stevens speak here at Chicago (along with other fascinating panels, including Kenneth W. Starr).

"Supreme Court Justice John Paul Stevens issued an unusually stinging criticism of capital punishment Saturday evening, telling lawyers that he was disturbed by “serious flaws.”

Stevens stopped short of calling for an end to the death penalty, but said that there are many problems in the way it is used.

Recent exonerations of death row inmates through scientific evidence are significant, he told the American Bar Association, “not only because of its relevance to the debate about the wisdom of continuing to administer capital punishment but also because it indicates that there must be serious flaws in our administration of criminal justice.”

Other justices, including Sandra Day O’Connor and Ruth Bader Ginsburg, have also spoken out about concerns that defendants in murder cases are not adequately represented at trial.

But Stevens, 85, detailed a much harsher and sweeping condemnation.

He said the jury selection process and the fact that many trial judges are elected also work against those accused of murder.

Stevens, named to the high court by President Ford in 1975, is considered one of the most liberal justices.

In recent years he has been influential in votes that barred states from executing mentally retarded killers and those who were juveniles when they committed their crimes.

The Supreme Court frequently splits 5-4 in capital cases, and often O’Connor is the pivotal vote."

From MSNBC.

Peter Jennings - Rest In Peace

2005-08-08T08:15:00.000-04:00

He left so quickly, and so young.

"Peter Jennings, a high school dropout from Canada who transformed himself into one of the most urbane, well-traveled and recognizable journalists on American television, died yesterday at home. He was 67 and lived in Manhattan.

The cause was lung cancer, said Charles Gibson, who announced the death of his colleague on television in a special report just after 11:30 p.m. Mr. Jennings had disclosed that he was suffering from lung cancer on April 5, first in a written statement released by ABC and later that night on "World News Tonight," the evening news broadcast that he had led since September 1983.

In brief remarks at the end of that night's program, Mr. Jennings, his voice scratchy, told viewers that he hoped to return to the anchor desk as his health and strength permitted. But he never did.

It was a jarring departure for someone who for so long had been such a visible fixture in so many American homes each night. Along with the two other pillars of the so-called Big 3 - Tom Brokaw of NBC and Dan Rather of CBS - Mr. Jennings had, in the early 1980's, ushered in the era of the television news anchor as lavishly compensated, globe-trotting superstar. After Mr. Brokaw's departure from his anchor chair in December, followed by the retirement from the evening news of Mr. Rather in March, Mr. Jennings's death brings that era to a close.

For more than two decades, the magnitude of a news event could be measured, at least in part, by whether Mr. Jennings and his counterparts on the other two networks showed up on the scene. Indeed, they logged so many miles over so many years in so many trench coats and flak jackets that they effectively acted as bookends on some of the biggest running stories of modern times.

Mr. Jennings's official ABC biography notes, for example, that as a foreign correspondent, he was "in Berlin in the 1960's when the Berlin Wall was going up," and there again, as an anchor, "in the 1990's when it came down." Similarly, he was on the ground in Gdansk, Poland, for the birth of the Solidarity labor and political movement, and later for the overthrow of the country's Communist government."

From The Times.

Brilliant animantion of Kelo

2005-08-06T21:58:00.000-04:00

Available here (hat tip: Out of Control).

Catholics and the Supreme Court

2005-08-06T21:40:00.000-04:00

"It is, in many ways, a triumph of assimilation, a marker in the political ascendancy of American Catholics: After more than a century when there was typically only one "Catholic seat" on the Supreme Court, Judge John G. Roberts, if he is confirmed next month, will become the fourth Catholic on the court.

So why is there so much simmering tension about Judge Roberts's religion and the role it should - or should not - play in his coming confirmation process?

Religious conservatives contend that liberal Senate Democrats are trying to keep "people of faith" off the federal bench. Some Catholic conservatives quickly declared that any questions about Judge Roberts's beliefs were utterly out of line. Democratic leaders, for their part, angrily deny that they are the ones injecting religion into the debate, and take particular offense at being accused of anti-Catholicism, since many of them are Catholics themselves.

All this fury is largely pre-emptive; Democratic leaders say they have no intention of grilling Judge Roberts on his religious beliefs (which several of them share) in next month's confirmation hearing. But the role of religion in the public square - for voters and public officials - is one of the most contentious debates around these days. And the influence of a judge's faith and personal beliefs may be growing just as contentious, as abortion, gay rights and other social issues come increasingly under the purview of the courts.

Which leads to the question: how relevant are a nominee's religious views? Friends and political allies have described Judge Roberts's active and conservative brand of Catholicism, which he shares with his wife, Jane Sullivan Roberts, as an important part of their lives. Many social conservatives clearly took his religious background as a positive sign about his judicial and political philosophy. But any deeper probing of his religious views and their implications for his rulings strikes some Catholics as reminiscent of a more prejudiced time."

From The New York Times.

Court: pollution rules must stay

2005-08-06T08:29:00.000-04:00

"Two federal appeals court judges on Friday rejected an effort by environmental groups to block the Bush administration from carrying out regulations on power plants that emit mercury pollution.

Without comment, Judges David B. Sentelle and Janice Rogers Brown, both of the United States Court of Appeals for the District of Columbia Circuit, denied a motion to immediately halt the regulations adopted in March by the Environmental Protection Agency.

The agency's rules set a nationwide cap on mercury emissions from about 600 coal-burning power plants and put a ceiling on allowable pollution for each state beginning in 2010. Under the plan, individual plants can avoid cleanups by buying pollution allowances from plants well under allowable limits.

Environmental and health advocacy groups, as well as 14 states, had asked the appeals court to order the agency to rewrite the regulations to require all plants to install, within the next three years, the best available technology for reducing mercury pollution. Judges were asked to set aside the regulations until the case could be heard."

Via The New York Times.

Assesing the Merck Vioxx trial to date

2005-08-06T08:25:00.000-04:00

"Ernst v. Merck, the first Vioxx-related lawsuit to come to trial, is not over yet. But as the company begins to present its case after 14 days of testimony from plaintiffs, Merck appears to be in a deep hole.

It is always risky to handicap the outcome of a trial, of course. But Merck's expert witnesses may face a challenge in trying to turn the case - especially since W. Mark Lanier, the lead lawyer for the plaintiffs, is known for his skill at cross-examination. He has had the benefit of presenting the personal, painful stories of family members left to grieve for the man whose death is at the center of the lawsuit. He is also armed with many of Merck's own documents that showed the company was concerned about Vioxx's safety several years before pulling the drug from the market.

Merck, meanwhile, is relying mainly on the testimony of company scientists, who have had a hard time coming across sympathetically under Mr. Lanier's questioning.

On Friday, for example, Mr. Lanier staged a withering examination of Dr. Alan S. Nies, a retired Merck scientist who led the Vioxx development program in the 1990's. The lawyer presented documents that appeared to show that Merck tried to rush federal approval for Vioxx because it feared that Celebrex, a competing drug by Pfizer, would get approval first.

As Mr. Lanier repeatedly presented documents that contradicted statements Dr. Nies had made earlier in the day on direct examination by a Merck lawyer, Dr. Nies appeared defensive and seemed to lose his temper. "We've been over this before," he said at one point, as Mr. Lanier read from a document.

"I'm just reading this into the record," Mr. Lanier replied.

"O.K., so go ahead and read," Dr. Nies said.

Mr. Lanier later asked Dr. Nies about a contract proposal in which Merck had offered to pay researchers at Harvard $200,000 to lead a study that would have directly examined Vioxx's heart risks. Dr. Nies said the study would have been unethical, which is why the study was ultimately scrapped.

"Before you say it was unethical, look who signed the contract," Mr. Lanier said, showing Dr. Nies the signature. "It was you."

Mr. Lanier represents the family of Robert Ernst, who died in his bed in May 2001 after taking Vioxx, a painkiller and arthritis medicine, for eight months. Merck stopped selling Vioxx last September after a clinical trial showed that Vioxx increased the risk of heart attacks and strokes. Mr. Ernst's family is suing Merck in state district court in Brazoria County, Tex., alleging that Vioxx caused his death. Testimony in the trial began July 18.

After appearing to make tactical errors early in the trial by presenting evidence in a scattershot way, Mr. Lanier seemed to gain momentum before resting his case Thursday. Mr. Lanier and other lawyers for Mr. Ernst's family looked increasingly confident late this week, while lawyers for Merck seemed grim."

From The New York Times.

Strange sentence for sexual abuser

2005-08-06T08:20:00.000-04:00

"An ex-convict who pleaded no contest to sexually abusing his daughter was sentenced to crochet afghans as part of the community service requirement of his probation.

Despite an outcry over the seemingly lenient sentence, the prosecutor in the case said he had been ready to dismiss it for lack of evidence.

During a dispute over custody of the child, Norma de la Torre accused her ex-husband, Robert Wayne Thompson, of sexually abusing their 8-year-old daughter. She filed civil and criminal cases against him. (...)

So state District Judge Rose Guerra Reyna, in the criminal case, agreed to a plea bargain in July that required Thompson to register as a sex offender, be under probation — and spend 320 hours crocheting afghans."

Weird. From MSNBC.

Alabama tells off the Supreme Court

2005-08-05T11:23:00.000-04:00

"The first gauntlet has been thrown in a gathering legislative revolt by states against the Supremes' ruling in Kelo v. New London. Volokh Conspirator Todd Zywicki writes today, "Alabama says, 'Don't Mess With Our Property'":

"Alabama yesterday became the first state to limit Kelo-style takings, unanimously passing legislation in a special session. My favorite quote is from one of the sponsors in the Alabama Senate:

"We don't like anybody messing with our dogs, our guns, our hunting rights or trying to take property from us," says state Sen. Jack Biddle, a sponsor of the law."

"As the owner of two Labrador Retrievers, I'm with Sen. Biddle on this one ..."

From Inside Opinions.

Outrageous - D.C. police falsely imprison man

2005-08-05T11:05:00.000-04:00

"The District of Columbia mistakenly put Joseph Heard behind bars for almost two years, but now it has made him a wealthy man.

U.S. District Judge Colleen Kollar-Kotelly approved a settlement Thursday granting Heard $1.1 million — plus legal fees — from the D.C. government.

"It's terrific we've been able to settle this case," said John Moustakas, Heard's attorney.

Heard — who is described as deaf, mute and mentally impaired — was jailed in 1999 on a trespassing charge from a year earlier, even though a D.C. Superior Court judge had previously freed him, declaring him mentally unfit to stand trial.

Prison officials then lost track of his records and he was not released until 670 days later.

"It is pure Kafka to illegally throw a man in jail on charges of nothing and then make it impossible for him to protest the illegality," said Moustakas."

This type of case makes my spine tingle. From Yahoo! News.

Harvard Law's takeover of the Supreme Court

2005-08-05T10:46:00.000-04:00

"Black-robed for two centuries, the Supreme Court justices could be sporting a new color next term: crimson.

That would be to honor Harvard Law School, which, if John Roberts is confirmed, could make an unprecedented boast: five of its graduates serving on the high court simultaneously. A sixth justice, Ruth Bader Ginsberg, attended Harvard Law but finished her degree at Columbia.

Some schools just have a knack for particular kinds of fame: Notre Dame has produced 400 football players who went on to the pros. Point Loma High School in California graduated two pitchers who threw perfect games for the New York Yankees. Ole Miss had consecutive Miss Americas in 1959 and 1960.

In Washington, a Yale graduate has occupied the White House since 1989. And with the Roberts nomination, Harvard Law is poised to become the first law school with a court majority (though most justices did not formally study law until the 20th century).

"I sort of like this friendly takeover," laughed Elena Kagan, Harvard Law School's dean.

Some aren't persuaded it's good news.

"Where is the graduate of the University of Colorado law school or the Ohio State law school?" said Kermit Hall, president of the University of Albany and a court scholar. He has no gripes with Harvard or its graduates per se. But he worries the pipeline to the Supreme Court is narrowing to those on the kind of career path Harvard Law grads excel at: judicial clerkships and judgeships, top jobs in big law firms or the government.

In many legal circles, Yale and Stanford have the stronger academic reputation, and both have been well represented on the court. But Harvard seems to have the most cache, a product of popular culture (movies like "The Paper Chase," "The Firm" and even "Legally Blonde") and a superstar faculty that attracts many of the brightest and most ambitious. With nearly 1,800 full-time students, it also is considerably larger than either Yale or Stanford."

This isn't good news. We should want justices from other good schools. From law.com.

More on Roberts' past

2005-08-05T10:26:00.000-04:00

"As a private lawyer, John G. Roberts Jr. represented homeless Washingtonians who had lost their government benefits because of city budget cuts. He advocated environmental protections for Lake Tahoe, Glacier Bay and the Grand Canyon. He spent 25 hours assisting a convicted murderer with a death penalty appeal. He even helped gay rights activists win a landmark Supreme Court anti-discrimination case.

At first blush, these cases would seem to complicate any image of the Supreme Court nominee as a down-the-line conservative. But as details have emerged in recent days, conservative groups have been busy spreading the word to their members and the broader public about what they should think of Roberts's work in private practice: Pay it no mind.

At second blush, Roberts's role is hardly surprising, say people who have worked with him or studied his career. For more than a decade, he practiced appellate law at the Washington firm Hogan & Hartson in a distinctly non-ideological fashion. Now, as liberal and conservative activists pick over his career for evidence of his political and legal philosophy, neither side seems to attach much importance to his diverse practice. And some activists on both sides remain secure in their conviction that he is an emphatic conservative who will move the high court to the right -- never mind his client list."

Read more at The Washington Post.

Rehnquist hospitalized again

2005-08-05T10:16:00.000-04:00

"Chief Justice William H. Rehnquist was hospitalized briefly with a fever on Thursday, the second emergency treatment for the ailing 80-year-old justice in two months.

Rehnquist was treated and released from Virginia Hospital Center in Arlington, Va., the same hospital where he spent two nights for observation and tests in July, also after running a fever.

The chief justice has thyroid cancer, and his latest health problems will almost certainly renew questions about whether he is well enough to remain on the court."

Let's hope he gets better. Via MSNBC.

Roberts in favor of gay rights

2005-08-05T10:14:00.000-04:00

For those who say "Roberts is too conservative", the following story is appropriate:

"Judge John G. Roberts Jr., the Supreme Court nominee, gave advice to advocates for gay rights a decade ago, helping them win a landmark 1996 ruling protecting gay men and lesbians from state-sanctioned discrimination.

Judge Roberts, at the time an appellate lawyer for the Washington firm of Hogan & Hartson, did not write legal briefs or argue the case, lawyers involved said. But they said he did provide invaluable strategic guidance working pro bono to formulate legal theories and coach them in moot court sessions.

Judge Roberts did not disclose his role in the case to the Senate Judiciary Committee, which asked about pro bono work in a questionnaire. News of his participation was first reported Thursday in The Los Angeles Times, and it set off an immediate scramble on both the left and the right, upending perceptions of the nominee in both camps.

The White House immediately sought to reassure Judge Roberts's conservative backers, telephoning prominent leaders, including Richard Land of the Southern Baptist Convention, but it appeared that not all of them had been convinced.

The 1996 case, Romer v. Evans, is considered a touchstone in the culture wars, and it produced what the gay rights movement considers its most significant legal victory. By a 6-to-3 vote, the Supreme Court struck down a provision of the Colorado Constitution that nullified existing civil rights protections for gay men and lesbians and also barred the passage of new antidiscrimination laws.

"It's one more piece of the puzzle as we keep trying to find out who John Roberts is," said Kevin Cathcart, executive director of Lambda Legal, the advocacy group that helped bring the Romer case. "Where does this fit in on his judicial philosophy and his view of the Constitution?"

Indeed, Judge Roberts's participation seems to stand in contrast to the picture that has emerged from his days as a young lawyer with the Reagan administration, when he advocated a more conservative approach to civil rights and voting rights. Lawyers in the Romer case said Thursday that Judge Roberts had not discussed its substance with them, but seemed to approach it more as an intellectual challenge."

From The New York Times.

Court: Puerto Ricans can't vote

2005-08-04T11:08:00.000-04:00

"A federal appeals court in Boston has said for the fourth time that residents of Puerto Rico do not have the right to vote in U.S. presidential elections.

In a 5-2 ruling issued late Wednesday, the 1st U.S. Circuit Court of Appeals rejected a petition by attorney Gregorio Igartua, saying the U.S. territory must either amend its constitution, or Puerto Rico must become a state, before its residents can vote for president.

"The case for giving Puerto Ricans the right to vote in presidential elections is fundamentally a political one, and must be made through political means," Chief Judge Michael Boudin wrote.

The ruling marks the fourth time since 1994 that the 1st Circuit has denied such a bid by Igartua, who had asked the full court to review the case after a three-judge panel last year rejected his arguments.

At a hearing in May, he argued that denying Puerto Rico's residents the chance to vote in presidential elections creates a "government without consent."

"We have the same at stake in presidential elections as all other American citizens," he said, noting that 28 American citizens from Puerto Rico had died serving in Iraq and Afghanistan, yet none had the right to vote for the president who sent them there.

Federal prosecutor Gregory Katsas countered that the court doesn't have the authority to order Congress to count electoral votes from Puerto Rico, or admit the territory as a state.

Puerto Ricans, who were granted U.S. citizenship in 1917, narrowly rejected statehood in two nonbinding referenda, in 1993 and 1998. The island has roughly 4 million residents.

The 1st Circuit handles appeals of federal cases in four New England states and Puerto Rico."

From boston.com.

Sweatshops aren't

2005-08-03T22:22:00.000-04:00

"The apparel industry, which is often accused of unsafe working conditions and poor wages, actually pays its foreign workers well enough for them to rise above the poverty in their countries. While more than half of the population in most of the countries we studied lived on less than $2 per day, in 90 percent of the countries, working a 10-hour day in the apparel industry would lift a worker above - often far above - that standard. For example, in Honduras, the site of the infamous Kathy Lee Gifford sweatshop scandal, the average apparel worker earns $13.10 per day, yet 44 percent of the country's population lives on less than $2 per day."

Read more at Cafe Hayek.

One blog created "every second"

2005-08-03T21:12:00.000-04:00

From the BBC:

"The blogosphere is continuing to grow, with a weblog created every second, according to blog trackers Technorati.

In its latest State of the Blogosphere report, it said the number of blogs it was tracking now stood at more than 14.2m blogs, up from 7.8m in March.

It suggests, on average, the number of blogs is doubling every five months.

Blogs, the homepages of the 21st Century, are free and easy to set up and use. They are popular with people who want to share thoughts online.

They allow for the instant publication of ideas and for interactive conversations, through comments, with friends or strangers.

Global voices

Technorati is like a search engine that keeps track of what is happening in the blogosphere, the name given to the universe of weblogs.

It relies on people tagging - giving keywords to - their blogs or blog posts so that its search engine can find them.

Free blogging services such as those provided by MSN Spaces, Blogger, LiveJournal, AOL Journals, WordPress and Movable Type were also growing quickly, said the report.

Thirteen percent of all blogs that Technorati tracks are updated weekly or more, said the report, and 55% of all new bloggers are still posting three months after they started."

Suing Burger King for "bad building design"

2005-08-03T21:09:00.000-04:00

Also from Overlawyered, another interesting tale.

$7.25 million for eye surgery gone bad

2005-08-03T21:07:00.000-04:00

From Overlawyered:

"A jury awarded Mark Schiffer $7.25 million on his claim that LASIK surgery in 2000 by Dr. Mark Speaker had ruined his eyesight, though apparently not so badly, since he was able to drive to court for the trial. Schiffer's attorney, Todd Krouner, had asked for $35 million, complaining that Schiffer had been "embarking on the beginnings of an extraordinary career in investment banking" that had been ruined by the surgery. The banking career was so extraordinary that he had previously quit a job with Goldman Sachs to write and direct a movie with Selma Blair (photo). Press coverage notes that Schiffer was "forced" to "take a job with his dad's security firm," which makes it sound like he's carrying a nightstick rather than a CFO for a software company. Wharton must be proud of the entrepreneurial spirit shown by Schiffer to find new revenue sources. (Anthony Lin, "Former Banker Awarded $7M in Damages From LASIK Eye Surgery", New York Law Journal, Aug. 1; Maggie Haberman, "He wins $7.25M in botched eye surgery suit", New York Daily News, Jul. 31)."

11 year old girl goes to trial for felony assault

2005-08-03T20:04:00.000-04:00

UPDATE: An 11-year-old US girl has been spared a felony trial for throwing a stone at boys pelting her with water balloons.
Maribel Cuevas was given informal probation and ordered to talk through what happened with the boy she injured, in a deal agreed by lawyers.

She spent five days in detention and a month under house arrest after being detained in a major police operation.

Police in California said it had been a serious assault, but others said it was no way to treat a childish crime.

An 11-year-old US girl has been spared a felony trial for throwing a stone at boys pelting her with water balloons.
Maribel Cuevas was given informal probation and ordered to talk through what happened with the boy she injured, in a deal agreed by lawyers.

She spent five days in detention and a month under house arrest after being detained in a major police operation.

Police in California said it had been a serious assault, but others said it was no way to treat a childish crime.

From the BBC.

This is definitely unfortunate. The girl is certainly guilty of something, and should be tried, but felony charges?

"Until the afternoon of April 29, 11-year-old Maribel Cuevas' only connection with law enforcement was involvement in a mentoring program sponsored by the Police Activities League.

But that day a rock she says slipped from her hand struck Elijah Vang, 8, in the forehead. A 911 call led to Maribel being arrested by Fresno police officers, handcuffed and taken to Juvenile Hall, where she stayed for five days before a judge released her on the condition she wear an electronic ankle bracelet.

On Wednesday, Maribel is scheduled to go on trial in Juvenile Court on felony assault charges. Authorities say the rock-throwing incident was too serious to be treated lightly.

But critics of the Police Department's actions, including Maribel's father, say the treatment would have been different if Mirabel wasn't a Latina living in one of the city's poorer neighborhoods.

"If this was a middle-class or upper-class neighborhood it would have been a very different outcome," said the Rev. Floyd Harris Jr., who led a 100- person vigil Friday in front of Juvenile Hall to support Maribel.

"Police don't have the same respect for people of color in this town," Harris said.

Fresno's mayor, Alan Autry, commended the department in a statement. "In Fresno, we love our children too much to treat this like it was just a childhood dispute when in fact the consequences could have been tragic."

Maribel says she was defending herself against Elijah and other boys who had thrown rocks and water balloons at her and some of her younger siblings while they were playing behind the low chain-link fence of a relative's front yard in their largely minority neighborhood.

"She's a good girl. She's never been in trouble,'' said Martin Cuevas, father of the girl. "We are worrying what is going to happen,'' the father of six said in Spanish in a telephone interview in which he said he was surrounded by his children, ages 12, 11, 9, 6, 4 and 1.

"A criminal they don't treat like this," he said. "(Maribel) will never have trust in the police after what they did to her."

From The San Francisco Gate.

Paying a fine in pennies

2005-08-03T12:31:00.000-04:00

I reported on a similar story a couple of weeks ago. This one also caught my eye:

"A man who tried to get even by paying a traffic ticket with $120 in pennies got upstaged by a North Dakota judge who made him stay until they were counted.

Robert John Zukowski brought a garbage can full of about 12,000 pennies to Clay County District Court to pay his fine for speeding, the Fargo Forum reported. Court Administrator Jan Crossette lugged the bucket of change to a bank, which used a machine to count the money and gave her $120 in bills.

Zukowski got a few pennies back in overpayment.

Judge John Pearson told the newspaper he thought Zukowski's anger was misdirected.

"If the person is mad at the cop, why take it out on court administration?" Pearson asked. "They're punishing the wrong people."

True. From The Washington Times.

Judicial restraint and Roberts

2005-08-03T12:21:00.000-04:00

"At the time, Meese was talking about the need for judicial restraint. But the movement he helped spark has become a powerful force all its own. And while it has succeeded in placing judges who share its values on the Supreme Court, such as Antonin Scalia and Clarence Thomas, John Roberts Jr. is clearly its first true product who may reach the high court.

"Roberts," says American University Washington College of Law professor Herman Schwartz, "is the finest flower of this effort to have bright, young, affable, very conservative judges, people who've had experience on the bench and in high positions in government."

Stephen Markman vetted judicial appointees as head of the Justice Department's Office of Legal Policy during the Reagan administration. He says the effort to recruit jurists who shared President Ronald Reagan's view of emphasizing the plain text of the Constitution -- "what the law is, not what it ought to be" -- was both "comprehensive and systematic."

"Reagan had certain judicial values he wanted institutionalized on the bench," says Markman, now a judge on the Michigan Supreme Court.

The results have been telling: a reined in commerce clause diminishing Congress' ability to regulate, sweeping state immunity from most private lawsuits, an increasing emphasis on state and individual rights, and, ironically, a smaller Supreme Court docket as appellate courts fall in line with current Court sympathies."

Via law.com.

"The 20 Most Influential Businessmen of All Time"

2005-08-03T12:19:00.000-04:00

Pretty accurate list, in my humble opinion.

At Forbes via Yahoo!.

Continuing the "war" on white-collar crime

2005-08-03T11:59:00.000-04:00

The Washington Post reports that "Former KPMG Partners May Be Charged". A continuation of the "war" against white-collar "criminals"? Excerpt:

"Federal prosecutors have notified as many as 20 former partners at the accounting firm KPMG LLP, including some who were members of its senior management team, that they could face criminal charges for their role in selling tax shelters in the 1990s, according to people familiar with the case.

Government lawyers have not yet decided whether to bring criminal charges against the firm, but they are asking for tough concessions from KPMG as the price of any potential settlement. At the same time they also are focusing on individual executives involved in the tax shelters, according to sources, who spoke on condition of anonymity because of the delicate stage of the investigation.

Earlier this year, federal prosecutors in New York had recommended that KPMG face criminal charges, but senior Justice Department officials in Washington expressed concerns about the prospect of another accounting firm collapse after the 2002 demise of Arthur Andersen LLP and the Supreme Court's reversal in May of Andersen's criminal conviction, according to the sources. Instead, both prosecutors and the firm continue to negotiate.

The KPMG probe, which dates back several years, could be the next major case in a string of business fraud prosecutions that surfaced after the collapses of Enron Corp. and WorldCom Inc. KPMG was one of several firms that sold questionable tax shelters to wealthy clients, creating lucrative sources of revenue.

After reports of possible criminal charges against KPMG appeared in June, the firm issued a statement apologizing for "unlawful" activity by former partners and pledged to cooperate with investigators. The firm turned over batches of documents, pressured dozens of tax executives to resign, and imposed caps on their attorney fees.

Analysts say those moves could help persuade regulators to forgo an indictment and instead impose lesser sanctions, such as requiring the firm to pay millions of dollars in financial penalties and admitting facts that could implicate former employees. Negotiations between prosecutors and the firm continue and a resolution could be weeks away. The talks are taking place as several key Justice Department figures are in transition, including the U.S. attorney in the Southern District of New York and the head of Justice's criminal division. The assistant attorney general for tax issues has recused herself from the case, sources said."

Court: bias in HI schools

2005-08-03T11:52:00.000-04:00

Interesting decision.

"The Kamehameha Schools in Hawaii are practicing unlawful race discrimination by restricting enrollment to Native Hawaiian children, a federal appeals court panel in San Francisco ruled yesterday.

The schools, the only beneficiary of a $6 billion legacy of a 19th-century Hawaiian princess, have an enrollment of about 5,100 students, from kindergarten through 12th grade, on campuses on three islands. Yesterday's ruling means that the plaintiff in the case, a teenager, will start his senior year at one of the schools in the next few weeks, one of his lawyers, Eric Grant, said.

The schools' admissions policy requires prospective students to prove that at least one ancestor lived on the Hawaiian Islands in 1778, when the British explorer Capt. James Cook arrived.

Tuition at the schools is heavily subsidized, and the families of students who are admitted often feel they have hit a sort of academic jackpot. Many of them say that the schools are the last great legacy of the Hawaiian monarchy, one that should be preserved for Native Hawaiians. The schools are private and receive no money from the federal government.

The plaintiff in the suit sued under the name John Doe. His real name was not used, Mr. Grant said, because he and his mother feared retaliation and intimidation.

A lawyer for the schools, Kathleen M. Sullivan, said they would ask the full appeals court and, if necessary, the United States Supreme Court to hear the case.

Yesterday's decision turned on the proper interpretation of a Reconstruction-era law, the Civil Rights Act of 1866, which is usually referred to as Section 1981, after its numerical listing in the United States Code. The law guarantees, as the majority in yesterday's 2-to-1 decision put it, "the right to make and enforce contracts free from illegitimate and unlawful discrimination on the basis of race."

The schools conceded that their admissions policy was based on racial classifications. But they said the exclusion of non-Hawaiians was part of a lawful affirmative action plan.

Their admissions policy is justified, the schools said, as an effort to redress hardships suffered by Native Hawaiians to produce Native Hawaiian leaders and to revitalize Native Hawaiian culture.

Judge Jay S. Bybee of the United States Court of Appeals for the Ninth Circuit, writing for the majority, said those goals might be valid but only so long as they did not create an absolute bar to people of other races."

From The Times.

Unfortunate - CNOOC bid killed

2005-08-03T11:46:00.000-04:00

It is unfortunate. After all, they were offering plenty of money for the shareholders, and was a free flow of capital. But politics is politics.

"The board of Cnooc, the Chinese oil company, had one thing right: its bid to buy an American oil company was killed by political opposition.

Lawmakers in Congress, with tacit support from the Bush administration, managed to raise enough objections to Cnooc's bid for Unocal to make most investors doubt that the deal would ever pass muster in Washington.

But now that Cnooc has decided to abandon its bid, policy analysts and lawmakers said, the tensions between the United States and China that it reflected are not expected to diminish. Indeed, they may well intensify in the months ahead.

"I think a very serious economic clash is probably in the offing this fall," said C. Fred Bergsten, head of the Institute for International Economics, a policy research organization here.

Byron Dorgan, a Democratic senator from North Dakota who was one of the sharpest critics of the Chinese attempt to buy Unocal, argued that the withdrawal "does not change the fact that there are policy questions that have to be answered. When a Chinese government-controlled company tries to buy an American oil company, is it a free-market transaction? The answer is no."

Many economists, while not necessarily disputing that claim, would still say that the political reaction was far out of proportion to the case.

They are particularly dubious about arguments that Cnooc's bid would have jeopardized national security, noting that oil is a globally traded commodity and that Unocal's reserves contributed only about 1 percent of American oil consumption.

But the political acrimony in the United States toward China has been rising on several fronts, and the uproar over Cnooc may have been a way to vent other grudges.

"There was nothing wrong with Cnooc taking over Unocal, and for that reason I didn't oppose the merger," said Senator Charles E. Schumer, a leading critic of China's currency and trade practices. "But the furor over China treating American companies and workers unfairly up and down the line is real. And while it led to an incorrect result in this case, it must be dealt with."

From The New York Times.

Roberts' first responses

2005-08-03T11:43:00.000-04:00

At The New York Times:

"In his first written response to questions from the lawmakers who will review his nomination to the Supreme Court, Judge John G. Roberts Jr. told the Senate Judiciary Committee on Tuesday that judges must possess "a degree of modesty and humility," must be respectful of legal precedent and must be willing to change their minds.

The remarks, contained in a brief essay on judicial activism, expand on private conversations Judge Roberts has had with senators, in which he has said he places a high emphasis on "'modesty" and "stability."

The essay, which provides the public the first glimpse of Judge Roberts's philosophy in his own words, was part of his response to a wide-ranging questionnaire the Senate Judiciary Committee sent him a week ago. In it, the nominee seeks to cast himself as a proponent of judicial restraint, a quality prized by senators at a time when conservative critics of the judiciary are bemoaning activist judges.

"Judges must be constantly aware that their role, while important, is limited," Judge Roberts wrote. "They do not have a commission to solve society's problems, as they see them, but simply to decide cases before them according to the rule of law."

The 10-page questionnaire yielded 83 pages of response. It included information about Judge Roberts's financial assets and net worth - nearly $5.3 million, including a stock portfolio worth more than $1.6 million; his work during Bush v. Gore, the Supreme Court case that decided the 2000 election in President Bush's favor; and his membership, or lack thereof, in the Federalist Society, a conservative legal group. Other documents, released earlier Tuesday by the National Archives, offered new information about his work for the Justice Department in the Reagan administration.

In the questionnaire, Judge Roberts also provided fresh details about the White House interview process that led to his nomination after the resignation of Justice Sandra Day O'Connor. Judge Roberts said it began April 1 - nearly three months before there was an opening - when Attorney General Alberto R. Gonzales interviewed him for a potential Supreme Court vacancy. At that time the administration had expected that the resignation would come from the ailing chief justice, William H. Rehnquist."

Sorry (again)

2005-08-03T11:41:00.000-04:00

I was really busy on Monday and in meetings and travelling all day yesterday. Im currently on the road, but hopefully, I will continue to blog daily.

Roberts and Rehnquist

2005-07-31T10:35:00.000-04:00

Interesting article on law.com titled "The Year Roberts Had Rehnquist's Ear".

Corruption is sinking Latin America

2005-07-31T10:32:00.000-04:00

A sad, but unfortunately, true thing:

"Across the region, these second-generation democrats have proved a disappointment, and their ineffectiveness and low standing have allowed political instability and economic disparity to grow. Opinion polls routinely cite corruption as a top cause for a dangerous disillusionment sweeping the region. The disaffection has led to violent popular outbursts, including the lynching of public officials in Peru, and has helped force out eight heads of state in five years.

"This is the great problem, and there simply has not been a break from the past," said Edgar Villanueva, a congressman who is leading one of several investigations of the government of President Alejandro Toledo in Peru. "What has happened in Latin America is we have not been able to get good people into power. The person in power always maintains ties to his small power base, and they forget the people, they forget their promises." (...)

Throughout Central America, too, prosecutors are pursuing cases against current and former leaders who lined their pockets while in power. In Nicaragua, former President Arnoldo Alemán has already been convicted of diverting state funds for his personal use and is appealing a 20-year sentence. Costa Rican prosecutors have accused two former presidents of taking kickbacks to award lucrative government contracts. And in Guatemala, the state's attorneys are seeking the extradition of former President Alfonso Portillo from Mexico on charges he embezzled $15.7 million.

Some point to the flourishing of cases as evidence that judicial systems and governments are finally taking bad leaders to task. But many analysts and citizens regard the persistence of patronage, nepotism and bribery as a telling measure of the low quality of the region's democracies and of how little elite attitudes have changed since the time when colonial overlords ruled for the purposes of extraction and enrichment with little regard for the people beneath them.

International groups like the World Bank say official graft and nepotism are so powerful that they are rotting government institutions and stunting economic growth. In recent Congressional testimony in Washington, American officials estimated that official corruption might shave as much as 15 percent off annual growth in Latin America, as public funds are pilfered and wary foreign investors shy away.

Latin Americans regard corruption as their most serious problem after the region's economic crisis, according to a survey of 18 countries taken in 2004 by Latinobarómetro, a Chilean public opinion firm that regularly conducts surveys around the continent."

From The New York Times.

"On Capitol Hill, A Flurry of GOP Victories"

2005-07-31T10:30:00.000-04:00

"After years of partisan impasses and legislative failures, Congress in a matter of hours yesterday passed or advanced three far-reaching bills that will allocate billions of dollars and set new policies for guns, roads and energy.

The measures sent to President Bush for his signature will grant $14.5 billion in tax breaks for energy-related matters and devote $286 billion to transportation programs, including 6,000 local projects, often called "pork barrel" spending. The Senate also passed a bill to protect firearms manufacturers and dealers from various lawsuits. The House is poised to pass it this fall.

Combined with the Central American Free Trade Agreement that Congress approved Thursday, the measures constitute significant victories for Bush and GOP congressional leaders, who have been frustrated by Democrats in some areas such as Social Security. As senators cast vote after vote in order to start their August recess, Bush applauded Congress, saying the energy bill "will help secure our energy future and reduce our dependence on foreign sources of energy."

Capping a long day of debates and roll calls, the Senate scheduled hearings for Supreme Court nominee John G. Roberts Jr. to begin Sept. 6, and voted to reauthorize portions of the USA Patriot Act, granting sweeping new powers to authorities to combat terrorism, although the chamber remains at odds with the House."

We should be careful not to steamroll over other points of view, altough I do favor some of the bills that were passed.

From The Washington Post.

Kelo still resonates in the press

2005-07-31T10:28:00.000-04:00

I'm very happy to see that the mainstream media is still covering the awful Kelo decision as well as its aftermath:

"More than a month after the Supreme Court ruled that governments could take one person's property and give it to another in the name of public interest, the decision has set off a storm of legislative action and protest, as states have moved to protect homes and businesses from the expanded reach of eminent domain.

In California and Texas, legislators have proposed constitutional amendments, while at least a dozen other states and some cities are floating similar changes designed to rein in the power to take property.

But at the same time, the ruling has emboldened some cities to take property for development plans on private land. Here in Santa Cruz, for example, city officials started legal action this month to seize a parcel of family-owned land that holds a restaurant with a high Zagat rating, two other businesses and a conspicuous hole in the ground and force a sale to a developer who plans to build 54 condominiums.

Far from clarifying government's ability to take private property, the 5-to-4 Supreme Court decision has set up a summer of scrutiny over a power that has been regularly used but little-discussed for decades.

"The intense reaction - this backlash - has caught a lot of people off guard," said Larry Morandi, who tracks land use developments for the National Conference of State Legislatures."

Right on. From The New York Times.

Oxfam and free trade

2005-07-31T10:18:00.000-04:00

All true:

"Late last year, in hotel rooms and photo studios in Los Angeles, New York and London, a group of celebrities agreed to get doused with buckets of coffee, milk, cocoa and sugar. It was messy, sticky and sometimes smelly, but it was all in the name of easing world poverty.

The photo shoots were organized by the nonprofit advocacy group Oxfam America as part of an ad campaign to raise awareness of what they say is the unfair nature of agricultural subsidies. The campaign urges wealthy nations like the United States and European countries to stop dumping agricultural products onto the world market, which Oxfam argues makes it impossible for farmers in poor countries to compete.

The celebrities who agreed to be dumped on - the actors Minnie Driver, Colin Firth and Antonio Banderas; U2's lead singer, Bono; Coldplay's lead singer, Chris Martin; R.E.M.'s lead singer, Michael Stipe; Alanis Morrissette; and Radiohead's lead singer, Thom Yorke - say they donated their time for the campaign because they believe it is important to level the playing field for developing nations.

"People think more aid will help, but it won't," said Ms. Driver, an actress who is working on her second music CD. "Trade is the surest way of decreasing the savage amount of poverty in our world. These countries have got to be able to trade fairly." (...)

Oxfam's efforts come amid increasing criticism of the some $190 billion in annual crop subsidies that governments in places like the United States, the European Union and Japan pay to their domestic farmers, according to estimates by the Organization for Economic Cooperation and Development. This year the United States will spend $14 billion on subsidies to cotton, rice, corn, wheat and soybeans farmers, according to the United States Department of Agriculture.

In the United States, Oxfam is primarily focused on the impact that cotton and rice subsidies have on global markets.

Oxfam contends that multibillion-dollar subsidies, which they say go primarily to big companies, not small family farmers, encourage overproduction and lower the price American producers charge on the global market.

"A cotton producer in the U.S. might produce a pound of cotton for 70 cents, whereas a West African farmer produces it for 45 cents," said Raymond C. Offenheiser, president of Oxfam America, an affiliate of Oxfam International, which is based in Oxford, England. "The West African farmer should have an advantage, but our subsidies allow the U.S. farmer to undersell the African farmer. He's selling it way under his production costs."

From The New York Times.

Yes to tort reform... but not like this

2005-07-31T10:15:00.000-04:00

Actually, protecting the gun industry isn't even tort reform. It is favoring a particular industry and constituency with a liability shield. Perhaps the legislation is "good" and "worthy", but instead of this piece-meal and interest group sponsored protecting of a particular industry, let's reform the entire system.

"The nation's gun lobby is close to realizing a long-sought goal of protecting firearms manufacturers and dealers from being held legally responsible for violent crimes committed with their handguns and automatic weapons.

Supporters believe they have the votes in the Senate to pass as early as today a bill making it virtually impossible for victims of gun violence to file civil suits against the industry -- a testimony to the political clout of gun manufacturers, which have become increasingly vulnerable to civil lawsuits in the District and several states. Twelve Democrats, including Senate Minority Leader Harry M. Reid (Nev.), are joining with the Republicans to support the legislation.

Congress has fought bitterly over the issue for the past four years, with the House eager to grant liability protection to the industry but with the Senate highly resistant. A similar bill failed in the Senate last year after opponents loaded it up with amendments that were anathema to the National Rifle Association and other gun enthusiasts.

But this year, the Senate appears on the verge of approving a bill that is far broader than most of the 33 immunity-related state laws on the books and that would even halt pending cases, including those brought under the District's Assault Weapon Manufacturing Strict Liability Act, a 1991 law designed to hold manufacturers accountable for selling military-style guns."

From The Washington Post.

Condi Rice "most powerful woman"

2005-07-31T10:12:00.000-04:00

"Secretary of State Condoleezza Rice has beaten 99 female heads of state, chief executives and celebrities to top Forbes magazine’s list of the world’s most powerful women for the second year in a row.

Daytime talk show giant Oprah Winfrey was ninth on the list and the magazine’s choice for most powerful female celebrity

The magazine’s gauge of a “composite of visibility, measured by press citations, and economic impact” had China’s Vice-Premier Wu Yi in second followed by Ukrainian Prime Minister Yulia Tymoschenko in third. (...)

In fact, the magazine saw Rice as wielding such raw power that she won last year’s inaugural rankings, even before President Bush gave her the secretary of state job. She won as Bush’s National Security Adviser.

“With her steely nerve and delicate manners, Rice lately has reinvigorated her position with diplomatic activism,” said Forbes on its Web site about its no. 1 in terms of feminine clout.

“Rice has played a key, behind-the-scenes role in all of President George W. Bush’s major decisions,” Forbes said."

You bet. From MSNBC News.

How CAFTA squeaked by

2005-07-31T10:11:00.000-04:00

I definitely approve of CAFTA. But this is certainly an interesting story in the New York Times regarding the manner in which CAFTA squeaked by the House:

"It was just before midnight on Wednesday when Representative Robin Hayes capitulated.

Mr. Hayes, a Republican whose district in North Carolina has lost thousands of textile jobs in the last four years, had defied President Bush and House Republican leaders by voting against the Central American Free Trade Agreement, or Cafta.

But the House speaker, J. Dennis Hastert, told him they needed his vote anyway. If he switched from "nay" to "aye," Mr. Hayes recounted, Mr. Hastert promised to push for whatever steps he felt were necessary to restrict imports of Chinese clothing, which has been flooding into the United States in recent months.

As it turned out, the switch by Mr. Hayes was decisive. Within a few minutes, the House approved the trade pact by the paper-thin margin of two votes, 217 to 215. The pact would eliminate most trade barriers between the United States and Costa Rica, the Dominican Republic, El Salvador, Guatemala, Honduras and Nicaragua.

The cliffhanger House vote was one of the most wrenching in Congress this year, and it highlighted the messy compromises that were necessary to overcome deep antagonism in many quarters toward trade-opening agreements.

The restrictions Mr. Hastert promised could come soon. Within the next 10 days, the Bush administration is expected to rule on whether to impose import quotas on Chinese sweaters, wool trousers, bras and other goods.

Mr. Hastert "said to me, 'If you vote with me, we'll do everything we need to do in your district to help with jobs,' " Mr. Hayes recalled.

Democrats charged Republicans with buying votes and forcing members to vote against their consciences."

Sorry

2005-07-31T10:07:00.000-04:00

Sorry I haven't posted in two days - I've been busy at the office wrapping some things up and I've been celebrating my birthday (yesterday). I promise to get back to regular blogging.

Heed to Hayek

2005-07-28T21:39:00.000-04:00

"The year 1944 saw the publication of the widely read and influential book, The Road to Serfdom. The author, Friedrich Hayek, an Austrian-born economist, warned that the crimes of the German National Socialists and Soviet Communists were the inevitable result of growing state control over the economy. Hayek was fortunate enough to live to see the defeat of both totalitarian regimes. Unfortunately, there are still places where Hayek's most dire warnings remain relevant. Robert Mugabe's Zimbabwe is one such place.

As Hayek explained, central planning leads to massive inefficiencies and long queues outside empty shops. A state of perpetual economic crisis then leads to calls for more planning. But economic planning is inimical to freedom. As there can be no agreement on a single plan in a free society, the centralisation of economic decision-making has to be accompanied by centralisation of political power in the hands of a small elite. When, in the end, the failure of central planning becomes undeniable, totalitarian regimes tend to silence the dissenters - sometimes through mass murder."

Continue reading at Cato Daily Commentary.

Doh! "Woman reports her marijuana stolen"

2005-07-28T21:29:00.000-04:00

"51-year-old Boylston Street resident reported on July 21 that her residence was broken into sometime between 3:15 and 6 p.m. When asked if anything was missing, the woman reportedly told police "nothing except for her marijuana."

The woman said she suspected a man whom she had met only once but had confided where she keeps her stash may be responsible for the break-in.

The bud-stealing burglar reportedly broken into the house through a basement window and left through a rear door, which had been forced open, causing damage to the jamb."

At Town Hall Online. Hat tip: TalkLeft.

Spinal surgery risks - no matter, sue away!

2005-07-28T21:27:00.000-04:00

At Overlawyered.

Roberts a "canny bureaucratic player"

2005-07-28T21:13:00.000-04:00

"Whether you love or hate his judicial philosophy, John Roberts is one canny bureaucratic player.

As you plow through the blizzard of memos he wrote as a government lawyer, you get the sense of a man who is more conservative, more combative and more sarcastic than he has been portrayed in these walk-on-water profiles. It's no surprise that this Harvard man clerked and lawyered his way to a Supreme Court nomination.

You will, by the way, hear almost none of this on TV. Understanding the memos requires walking through the background and legal context of each controversy at the time, and television has no inclination to do that unless there's an inflammatory phrase that the pundits can argue about. (TV people keep talking about the battle over the documents while saying very little about what's in them.) It is, in short, a classic newspaper story.

Roberts is quite familiar with bureaucratic dodges and the art of Washington insincerity, the documents suggest."

From The Washington Post.

DR-CAFTA approved!

2005-07-28T20:59:00.000-04:00

"The House narrowly approved the Central American Free Trade Agreement this morning, delivering a hard-fought victory to President Bush while underscoring the nation's deep divisions over trade.

The 217 to 215 vote came just after midnight, in a dramatic finish that highlighted the intensity brought by both sides to the battle. When the usual 15-minute voting period expired at 11:17 p.m., the no votes outnumbered the yes votes by 180 to 175, with dozens of members undeclared. House Republican leaders kept the voting open for another 47 minutes, furiously rounding up holdouts in their own party until they had secured just enough to ensure approval.

The House vote was effectively the last hurdle -- and by far the steepest -- facing CAFTA, which will tear down barriers to trade and investment between the United States, Costa Rica, the Dominican Republic, El Salvador, Guatemala, Honduras and Nicaragua.

"This win sends a powerful signal to the region and the world that the United States will continue to lead in opening markets and leveling the playing field," said Rob Portman, the U.S. trade representative, in a statement issued immediately after the vote.

Although the deal was approved by the Senate last month, it was overwhelmingly opposed by House Democrats who contend that it is wrong to strike a free-trade pact with poor countries lacking strong protection for worker rights. Only 15 of the 202 House Democrats backed the accord, while 27 out of 232 Republicans voted against."

From The Washington Post.

"But the end result did not come without some drama. The voting took almost an hour as Republicans pressured about 8 to 10 members. The count seemed to stall after about 30 minutes with the tally at 214 in favor and 211 against, and a handful of votes outstanding.

For the next half-hour, Republicans, mostly from textile states, jockeyed over who would be allowed to vote against the bill and save face back home. The final count came minutes after midnight.

Within minutes after the vote, the White House released a statement from Mr. Bush praising the action. "By lowering trade barriers to American goods in Central American markets to a level now enjoyed by their goods in the U.S.," he said in the statement, "this agreement will level the playing field and help American workers, farmers and small businesses."

From The New York Times.

"The president took some political risk placing the relatively small trade pact at the top of his economic agenda. He and numerous administration officials advertised the agreement as a tool to give fragile Latin American democracies the opportunity for stability and prosperity.

The House vote, supposed to take 15 minutes, dragged on for an hour as negotiations swirled around the floor among GOP leaders and rank-and-file members reluctant to vote for the agreement. In the end, 27 Republicans voted against CAFTA, while 15 Democrats supported it.

House Republican leaders prevailed over mostly Democratic objections that the agreement leaves American workers vulnerable to losing their jobs, and Latin American workers vulnerable to laboring without employment protections.

“It will widen the gap between the haves and have-nots, weaken labor and environmental standards and set a dangerous precedent for future trade agreements,” said Rep. Robert Menendez, D-N.J.

Those who backed the agreement said goods like the apples, pears and cherries grown in Washington state and the corn, soybeans and tractors produced in Illinois will be sold free of duties in a market of 44 million people.

It levels the playing field with the Latin American nations party to the deal that already escape duties on 80 percent of their exports to the United States, they said."

From MSNBC News.

This is great news.