Rethink Law (US) from Liana Guzman on Vimeo.

I caught the last 30 seconds or so of an NPR discussion about the corrupting influence of big money on elections — two days after Rick Santorum, with little money, beat the rich candidate in three contests.

Dan Abrams explains how the Citizens United court case has been distorted by Big Baloney:

One of the beauties of the transfer of power from major media operations to individuals, bloggers and tweeters is that they — we — can all serve as a sort of fact-checking peanut gallery. So it’s hard to imagine that, in this day and age, the mainstream media could repeatedly misstate the holding of one of the most significant Supreme Court decisions without being roundly excoriated. Not a matter of opinion or a partisan viewpoint, but, simply parroting a mistake or lie about the holding in that crucial ruling.

I have followed the Court’s Citizens United decision particularly closely because my dad, Floyd Abrams, was one of the lawyers who argued it (for free, incidentally) in the Supreme Court, on behalf of Senator Mitch McConnell. Their challenge was to a part of the McCain-Feingold campaign finance law that barred corporations and unions from engaging in what they argued was classic political speech — producing and showing a movie on television that criticized a candidate for President and spending money for ads that support or denounce that candidate. They prevailed in a divided 5-4 ruling. Subsequently, and not surprisingly, the ruling became one of the most controversial opinions of our day, with many on the left denouncing the ruling as a fundamental threat to our democracy.

Let me say at the outset that I don’t entirely agree with the position my dad took in the case. He sought and got a broad ruling striking down major parts of the statute. In my view, the Court could and should have decided the case on far narrower grounds, thereby avoiding the need to overturn some past Supreme Court rulings (On a personal note, I have also been amazed at the vitriol directed at my civil libertarian father from the left over his defense of a constitutional principle he firmly believes in. Defend a Nazi’s right to march? No problem. Defend the most repugnant members of our society’s right to speak? Absolutely. Defend a corporation’s right to engage in the political process? Inexcusable). But my personal view on the nuances of the ruling is beside the point. This is about what the ruling said and didn’t say, what it did and didn’t do. And about how so many in the media keep getting the ruling and its impact dead wrong.

There are two media myths and inventions that are most commonly cited.

Myth 1: The Court invalidated disclosure requirements in political advertising, thereby allowing donors to remain anonymous.

Wrong. The Court ruled just the opposite and upheld, by an 8-1 vote, the McCain-Feingold requirement of identifying donors.

Myth 2: That the Court’s ruling in Citizens United opened the door to wealthy individuals like Sheldon Adelson to pour millions of dollars into PACs.

Wrong again. The Citizens United ruling had NOTHING to do with the ability of individuals to spend their money to support candidates. That had been decided back in 1976, when the Supreme Court decided that the First Amendment protected the right of individuals to make unlimited independent expenditures supporting or opposing candidates for federal office. In Citizens United, the Court ruled that corporations and unions were entitled to the same rights. It wasn’t that long ago, after all, that the Swift Boat ads, legally paid for by individuals, soiled John Kerry during the 2004 campaign.

But reading the New York Times, Washington Post and watching MSNBC in particular, it is hardly surprising that the public would be confused. On January 9, in a front-page piece on the influence of Newt Gingrich supporter Sheldon Adelson, the Times inaccurately reported that Adelson’s $5 million donation to a pro-Gingrich SuperPAC “underscores” how the Citizens United case, “has made it possible for a wealthy individual to influence an election.” On January 14th, a column by Gail Collins asserted that, “all these billionaires would not be so worrisome if the Supreme Court had not totally unleashed their donation-making power in the Citizens United case.” The opinion, in fact, did nothing of the sort. I don’t know if it’s sad or just troubling that the Times issued two corrections on the earlier piece, including the year Citizens United was decided, but none on its repeated and major error about the ruling itself.

The Washington Post has done no better. On January 11th, Dana Milbank, writing of Adelson’s $5 million donation to a pro-Gingrich SuperPAC, asserted that it was, “the Supreme Court’s Citizens United decision which made such unlimited contributions possible.” And on February 5th, E.J. Dionne Jr. blamed Citizens United for permitting, “the brute force of millionaires and billionaires … to have their way.”  The Post published a letter from Floyd Abrams today highlighting the error, but without a formal correction…

Knowing the cause of death is critical in our justice system. Was a crime committed that must be investigated or not? One would expect the people making that critical call would be highly trained.

But no, not if you believe what you see in this episode of Frontline. The show argues subtly for a federal standard for coroners, which ignores our federalist system of government. But it’s a minor quibble.

Watch the full episode. See more FRONTLINE.

Property rights, contracts, laws that apply equally to all are the bedrock of modern, prosperous — without them, we’re Egypt.

Amity Schlaes:

…Despite the name, “Monopoly” isn’t really about antitrust. It’s about trust. Trust and commerce, Sapienza said. If people want to buy properties, if renters pay their rents and the bank acts predictably, then the game will move merrily forward, and hotels will replace houses on the board.

But if the bank can’t be trusted — if it cheats or proves too erratic — there is a problem. The players walk away from the table.

The same holds true on the great American game board. Trust that everyone is playing by the rules, more or less, is critical. Around the same time she first talked about “Monopoly,” Sapienza and a colleague, Luigi Zingales of the University of Chicago, set about trying to measure the elusive sentiment of trust. They launched a survey, formally known as the Chicago Booth/Kellogg School Financial Trust Index.

In December 2008, they found that only 20 percent of Americans said they trusted the financial system. That rate climbed in successive “waves” of the survey to 26 percent in January 2011. But the index has bobbed up and down since then, and in Wave 12, in September, the trust level had dropped back to 23 percent, other positive signs in the economy notwithstanding.

Housing Problems

To many people, housing is one reason why trust in the financial sector remains so stubbornly low. U.S. home prices have fallen 33 percent since their peak before the recession. Declining home values have diminished consumer confidence and curtailed spending. About 12 million homeowners owe more on their mortgage than their house is worth. Many people are losing their homes, and the foreclosure process is a costly mess.

If only we could straighten these problems out, the housing market could recover and the rest of the economy would follow. Or so the logic goes.

One proponent of the Houses Ueber Alles theory is Federal Reserve Chairman Ben S. Bernanke, who recently published a white paper on how housing-market fixes, especially involving mortgages, could restore growth. This is the moment, Bernanke and his Fed colleagues posit, that policy makers should “help reconcile the existing size and mix of the housing market.” Regulators and banks should consider a “broad menu of loan modifications.” Conversion to rentals from ownership may be appropriate. Mortgage servicers should get “incentives to pursue alternatives to foreclosure.” The paper recommends that regulators and lenders “tailor” vulnerable contracts.

In other words, details of paper contracts written years ago matter less than the immediate challenge of lifting burdens from the shoulders of borrowers. The lender’s contractual right to foreclose is subordinate. In Bernanke’s assessment, the rest of the economy will take heart once people get help with houses. It’s time for a new kind of Fed intervention, or Fed-inspired intervention, in residential mortgages.

John Markoff in the NYT:

When five television studios became entangled in a Justice Department antitrust lawsuit against CBS, the cost was immense. As part of the obscure task of “discovery” — providing documents relevant to a lawsuit — the studios examined six million documents at a cost of more than $2.2 million, much of it to pay for a platoon of lawyers and paralegals who worked for months at high hourly rates.

But that was in 1978. Now, thanks to advances in artificial intelligence, “e-discovery” software can analyze documents in a fraction of the time for a fraction of the cost. In January, for example, Blackstone Discovery of Palo Alto, Calif., helped analyze 1.5 million documents for less than $100,000.

Some programs go beyond just finding documents with relevant terms at computer speeds. They can extract relevant concepts — like documents relevant to social protest in the Middle East — even in the absence of specific terms, and deduce patterns of behavior that would have eluded lawyers examining millions of documents.

“From a legal staffing viewpoint, it means that a lot of people who used to be allocated to conduct document review are no longer able to be billed out,” said Bill Herr, who as a lawyer at a major chemical company used to muster auditoriums of lawyers to read documents for weeks on end. “People get bored, people get headaches. Computers don’t.”

AFP:

From being a marginal and even mocked issue, climate-change litigation is fast emerging as a new frontier of law where some believe hundreds of billions of dollars are at stake.

Compensation for losses inflicted by man-made global warming would be jaw-dropping, a payout that would make tobacco and asbestos damages look like pocket money.

Imagine: a country or an individual could get redress for a drought that destroyed farmland, for floods and storms that created an army of refugees, for rising seas that wiped a small island state off the map.

In the past three years, the number of climate-related lawsuits has ballooned, filling the void of political efforts in tackling greenhouse-gas emissions.

Eyeing the money-spinning potential, some major commercial law firms now place climate-change litigation in their Internet shop window.

Seminars on climate law are often thickly attended by corporations that could be in the firing line — and by the companies that insure them.

But legal experts sound a note of caution, warning that this is a new and mist-shrouded area of justice.

Many obstacles lie ahead before a Western court awards a cent in climate damages and even more before the award is upheld on appeal.

“There’s a large number of entrepreneurial lawyers and NGOs who are hunting around for a way to gain leverage on the climate problem,” said David Victor, director of the Laboratory on International Law and Regulation at the University of California at San Diego.

Ambulance chasers.

An Ohio lawyer has been suspended for overbilling local courts for her representation of poor clients, submitting bills for more than 24 hours a day on three different occasions.

The lawyer, Kristin Ann Stahlbush of Toledo, will be suspended for two years, with the second year stayed if she completes a one-year probationary period, the Legal Profession Blog reports.

Which brings to mind this old lawyer joke. For those who haven’t heard it:

A lawyer died and was standing in front of St. Peter at the Pearly Gates. St. Peter said, “you can’t come in here… you have to go to the other place”.

But the lawyer was really good and pleaded his case to the point where St. Peter said, “OK… here’s what I’ll do. You will spend the same amount of time in hell as you did on earth, and then you can spend the rest of eternity up here.” The lawyer figured this wasn’t too bad of a deal, so he said “OK”. St. Peter said, “Great… I’ll see you in 350 years.”. The lawyer said, “But, how is that possible… I’m only 65 years old!”. St Peter said, “We go by billing hours”

James Taranto:

Is ObamaCare constitutional? “If you ask any constitutional law professor whether Congress can do something, the answer is always yes,” says Randy Barnett. But Mr. Barnett, who teaches legal theory at Georgetown, isn’t just any law professor. A self-described “radical libertarian,” he is the author of a 2004 book, “Restoring the Lost Constitution,” that argues for a fundamentally new approach to jurisprudence.

Since the New Deal, Supreme Court justices have generally assumed a law is constitutional and overruled it only when it infringes on an individual right that is enumerated in the Constitution (free speech) or not (privacy). “If you’re talking about the regulation of economic activity, the presumption of constitutionality is for all practical purposes irrebuttable,” Mr. Barnett says.

Instead, Mr. Barnett would have the court adopt a “presumption of liberty,” placing the burden on the government to show that a law has a clear basis in Congress’s constitutional powers. “The easiest way to explain it is, it would basically apply to all liberty the same basic protection we now apply to speech,” he says.

It’s an attractive theory to those of us with libertarian sympathies—a group that seems to be growing in reaction to the Obama administration’s unprecedented expansion of federal power. But Mr. Barnett, 58, readily admits there is virtually no chance the high court will embrace it during his lifetime. “On the Supreme Court now, probably only Clarence Thomas would be willing to question what the law professors call the ‘post-New Deal settlement.’”

No one can accuse this theorist of being an ivory-tower intellectual lacking real-world experience. As a child, he was an avid fan of the 1960s TV series “The Defenders” and aspired to become a criminal lawyer. This he did, taking a job out of law school as a Chicago prosecutor. But he also had a scholarly side: “I realized that one day I would want to be a law professor, [a job] in which I could write about these things—not so much to tell people what I thought was just, but to figure out for myself what justice really is.”

“I became sort of pulled into the constitutional law world,” he says, an area of study to which he was initially cool. “I was trained in law school to believe that all the good parts of the Constitution were gone. And if they’re not going to respect the good parts, I’m not really all that concerned about the remaining parts.”

One of those “good parts” is the Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” In 1998, Judge Charles Breyer of California’s Northern District (younger brother of Justice Stephen Breyer) asked lawyers in a medical marijuana case to brief him on its Ninth Amendment implications. The defense lawyer, Robert Raich, came to Mr. Barnett, one of the few scholarly experts on the subject, for help. (more…)

No one likes Enron*. So most Americans were happy to see Jeff Skilling get convicted and sent to prison, even if the case against him was weak.

Likewise, many are turning a blind eye to Obama’s extra-legal bullying of BP.  Or Elliot Spitzer’s bullying when he was NY attorney general.

But we have laws to insure that inflamed public opinion doesn’t lead to injustice.

Cases in point:

The U.S. Supreme Court dealt a blow Thursday to the federal government’s high-profile convictions of Enron’s Jeffrey Skilling and former media mogul Conrad Black, sending the cases back to lower courts for possible reversal on at least some charges.

The high court, in opinions by Justice Ruth Bader Ginsburg, found fault with a federal law that gives prosecutors the authority to bring cases against executives who deprive companies of their honest services.

The rulings could have a significant impact on some white-collar crime prosecutions. The honest-services law has been a darling of government lawyers because it is broadly worded and gives them room to prosecute a wide range of conduct.

Justice Ginsburg said the honest-services law should be confined only to cover fraud schemes involving bribery and kickbacks. Justice Ginsburg said parts of Mr. Skilling’s conviction were flawed, but said the flaws did not necessarily require reversal of his conviction on conspiracy charges.

* No one likes Enron now. Paul Krugman was once a $50,000 per year adviser to Enron. Top business schools published glowing books about Enron’s new business model. And so on.

Randy Barnett:

A”tell” in poker is a subtle but detectable change in a player’s behavior or demeanor that reveals clues about the player’s assessment of his hand. Something similar has happened with regard to the insurance mandate at the core of last month’s health reform legislation. Congress justified its authority to enact the mandate on the grounds that it is a regulation of commerce. But as this justification came under heavy constitutional fire, the mandate’s defenders changed the argument—now claiming constitutional authority under Congress’s power to tax.

This switch in constitutional theories is a tell: Defenders of the bill lack confidence in their commerce power theory. The switch also comes too late. When the mandate’s constitutionality comes up for review as part of the state attorneys general lawsuit, the Supreme Court will not consider the penalty enforcing the mandate to be a tax because, in the provision that actually defines and imposes the mandate and penalty, Congress did not call it a tax and did not treat it as a tax.

The Patient Protection and Affordable Care Act (aka ObamaCare) includes what it calls an “individual responsibility requirement” that all persons buy health insurance from a private company. Congress justified this mandate under its power to regulate commerce among the several states: “The individual responsibility requirement provided for in this section,” the law says, “. . . is commercial and economic in nature, and substantially affects interstate commerce, as a result of the effects described in paragraph (2).” Paragraph (2) then begins: “The requirement regulates activity that is commercial and economic in nature: economic and financial decisions about how and when health care is paid for, and when health insurance is purchased.”

In this way, the statute speciously tries to convert inactivity into the “activity” of making a “decision.” By this reasoning, your “decision” not to take a job, not to sell your house, or not to buy a Chevrolet is an “activity that is commercial and economic in nature” that can be mandated by Congress.

It is true that the Supreme Court has interpreted the Commerce Clause broadly enough to reach wholly intrastate economic “activity” that substantially affects interstate commerce. But the Court has never upheld a requirement that individuals who are doing nothing must engage in economic activity by entering into a contractual relationship with a private company. Such a claim of power is literally unprecedented.

George Will:

Last week’s Supreme Court decision that substantially deregulates political speech has provoked an edifying torrent of hyperbole. Critics’ dismay reveals their conviction: Speech about the elections that determine the government’s composition is not a constitutional right but a mere privilege that exists at the sufferance of government.

How regulated did political speech become during the decades when the court was derelict in its duty to actively defend the Constitution? The Federal Election Commission, which administers the law that rations the quantity and regulates the content and timing of political speech, identifies 33 types of political speech and 71 kinds of “speakers.” The underlying statute and FEC regulations cover more than 800 pages, and FEC explanations of its decisions have filled more than 1,200 pages. The First Amendment requires 10 words for a sufficient stipulation: “Congress shall make no law . . . abridging the freedom of speech.”

Extending the logic of a 1976 decision, the court has now held that the dissemination of political speech requires money, so restricting money restricts speech. Bringing law into conformity with this 1976 precedent, the court has struck down only federal and state laws that forbid independent expenditures (those not made directly to, or coordinated with, candidates’ campaigns) by corporations and labor unions. Under the censorship regime the court has overturned, corporations were even forbidden to send political communications to all of their employees.

The New York Times calls the court’s decision, which enables political advocacy by (other) corporations, a “blow to democracy.” The Times, a corporate entity, can engage in political advocacy because Congress has granted “media corporations” an exemption from limits.

The Washington Post, also exempt, says the court’s decision, which overturned a previous ruling upholding restrictions on spending for political speech, shows insufficient “respect for precedent.” Does The Post think the court incorrectly overturned precedents that upheld racial segregation and warrantless wiretaps? Are the only sacrosanct precedents those that abridge (others’) right to speak?

Alarmists say the court’s ruling will mean torrential spending by large for-profit corporations. Anna Burger, secretary-treasurer of the Service Employees International Union — it has spent $20 million on politics in the past five election cycles — says a corporation will “funnel their shareholders’ money straight to a campaign’s coffers.” Wrong. Corporate contributions to candidates’ campaigns remain proscribed.

Cleta Mitchell, Washington’s preeminent campaign finance attorney, rightly says that few for-profit corporations will jeopardize their commercial interests by engaging in partisan politics: Republicans, Democrats and independents buy Microsoft’s and Pepsi’s products. If for-profit corporations do plunge into politics, disclosure of their spending will enable voters to draw appropriate conclusions. Of course, political speech regulations radiate distrust of voters’ abilities to assess unfettered political advocacy.

Mitchell says the court’s decision primarily liberates nonprofit advocacy groups, such as the Sierra Club, which the FEC fined $28,000 in 2006. The club’s sin was to distribute pamphlets in Florida contrasting the environmental views of the presidential and senatorial candidates, to the intended advantage of Democrats. FEC censors deemed this an illegal corporate contribution.

Barack “Pitchfork” Obama, in his post-Massachusetts populist mode, called the court’s ruling a victory for, among others, “big oil” and “Wall Street banks.” But OpenSecrets.org reports that in 2008 lawyers gave more money than either of them, and gave 78 percent of the donations to Democrats, who also received 64 percent of contributions from the financial sector.

Even if it were Congress’s business to decide that there is “too much” money in politics, that decision would be odd: In the 2007-08 election cycle, spending in all campaigns, for city council members up to the presidency, was $8.6 billion, about what Americans spend annually on potato chips.

Randy Barnett, Professor at Georgetown University Law Center:

In the history of the State of the Union has any President ever called out the Supreme Court by name, and egged on the Congress to jeer a Supreme Court decision, while the Justices were seated politely before him surrounded by hundreds of Congressmen?

To call upon the Congress to countermand (somehow) by statute a constitutional decision, indeed a decision applying the First Amendment?

Especially an amendment that begins, “Congress shall make no law…”

What can this possibly accomplish besides alienating Justice Kennedy who wrote the opinion being attacked. Contrary to what we heard during the last administration, the Court may certainly be the object of presidential criticism without posing any threat to its independence. But this was a truly shocking lack of decorum and disrespect towards the Supreme Court for which an apology is in order. A new tone indeed.

These race hustlers give ambulance chasers a bad name. Michael Blood in the AP:

Every lawsuit filed or even threatened under a California law aimed at electing more minorities to local offices — and all of the roughly $4.3 million from settlements so far — can be traced to just two people: a pair of attorneys who worked together writing the statute, The Associated Press has found.

The law makes it easier for lawyers to sue and win financial judgments in cases arising from claims that minorities effectively were shut out of local elections, while shielding attorneys from liability if the claims are tossed out.

The law was drafted mainly by Seattle law professor Joaquin Avila, with advice from lawyers including Robert Rubin, legal director for the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area. Avila, Rubin’s committee and lawyers working with them have collected or billed local governments about $4.3 million in three cases that settled, and could reap more from two pending lawsuits.

A good cause for whom? Hint: Avila charges $725/hour.

…Avila and Rubin say their roles in crafting the law shouldn’t overshadow its importance and the need to use lawsuits and threats to end years of injustice at the polls. Those they target dispute the need for the law. The number of minority officeholders was climbing even before it was enacted, and they claim the lawyers are using the statute to shake down local governments.

“It’s a money grab,” charged John Stafford, superintendent of the Madera Unified School District that was slapped with a $1.2 million attorneys’ bill even though it never contested a lawsuit.

The California statute targets commonly used “at-large” elections — those in which candidates run citywide or across an entire school district. Avila said that method can result in discrimination because whatever group constitutes the majority of voters can dominate the ballot box and block minorities from winning representation. As a remedy, the law empowers state courts to create smaller election districts favoring minority candidates.

Officials in several California communities said they never heard complaints of voter discrimination until the lawyers stepped forward. In one case, the Tulare Local Healthcare District, now known as Tulare Regional Medical Center, was sued even though its five-member governing board is a rainbow of diversity — two emigres from India, a Hispanic, a black and a white. The lawsuit argues Hispanics, who make up about a third of local voters, have been shortchanged.

Sotomayor told a whopper.

She will be confirmed, but she’s demonstrated a willingness to lie.

The Supreme Court has ruled that white firefighters in New Haven, Conn., were unfairly denied promotions because of their race, reversing a decision that high court nominee Sonia Sotomayor endorsed as an appeals court judge.

Lanny Davis in the Washington Times

Suppose a black female nurse is seriously injured during her work at a hospital and is forced to take a medical leave of absence. When she returns almost a year later, she reapplies for new jobs but doesn’t get any offers of comparable salary and seniority. For one of the jobs for which she was turned down, two white women with disabilities are chosen. For another job for which she was rejected, a younger white male is hired.

So how did Judge Sonia Sotomayor rule? The ultra-right talk-show hosts who spent all last week attacking the judge as a “liberal activist” or even a “racist” would surely predict that she would have ruled in favor of this sympathetic black female with a severe disability.

They would have been wrong.

Read Judge Sotomayor’s 11-page published opinion, on behalf of a unanimous three-judge panel of the 2nd U.S. Circuit Court of Appeals, in the case of Norville v. Staten Island University Hospital. The case, decided Nov. 3, 1999, can be found in the published federal court decision reports at 196 F.3d 89.

She found no race or age discrimination and voted for a new trial on the disability claim because of legally erroneous jury instructions.

Sure, it will be argued, this is just one case. But the Norville case is emblematic – not atypical. Read the more than 3,000 decisions in which Judge Sotomayor participated and the more than 400 opinions that she signed during her 12 years on the appeals court. I am betting you will find that in case after case, she has voted based on applying the law to the facts – even where the result is contrary to the expected “liberal” ideological position, such as her vote to protect a racist cop from dismissal on free-speech grounds (Pappas v. Giuliani, 2002), or to uphold the Mexico City policy barring foreign groups receiving U.S. funds from performing or supporting abortions (Center for Reproductive Law and Policy v. Bush, 2002).

In the Norville case, plaintiff Wendy Norville was certainly someone who one would expect to draw many people’s “empathy.” The 56-year-old black woman suffered a severe spinal injury while working in the Staten Island University Hospital’s neurology unit and was forced to take a one-year leave of absence.

When she returned, she claimed that she was denied substitute jobs comparable in pay and job security as her prior job, and that the open jobs for which she was qualified were given to whites and a younger male because of illegal race, age and disabilities discrimination.

On the race-discrimination claim, Judge Sotomayor and her co-panelists applied the required legal standard of discrimination based on race in granting a disabled person “reasonable accommodation” in working on another job. Judge Sotomayor found that there was insufficient evidence to show that the two whites were “similarly situated” in disabilities or performance to Ms. Norville; thus, she didn’t make a case of race discrimination by the hospital.

Similarly, on the age discrimination claim, Judge Sotomayor found that, while there was some evidence supporting Ms. Norville as qualified for the substitute job, the hospital’s reasons for preferring the younger applicant based in part on qualifications were not merely a “pretext,” the required legal standard.

On the disabilities claim, however, Judge Sotomajor and her two fellow appellate judges found that the trial judge had issued legally incorrect instructions to the jurors that could have affected their verdict against Ms. Norville. The judge erred by not telling the jury that offering a disabled person a new job with less seniority and job security does not constitute a “reasonable accommodation” under the Americans With Disabilities Act.

So in the run-up to Judge Sotomayor’s confirmation hearings and Senate confirmation vote, try to ignore the overheated rantings and nonfactual name-calling of certain conservative radio talk-show hosts and TV cable hosts and guests.

As to Judge Sotomayor’s statement that she “would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life”: The obvious answer is to view the statement in the broader context of what she meant – similar to what Judge Samuel A. Alito Jr. said during his confirmation hearings, i.e., that his background coming from an immigrant family would inevitably be “taken into account” as he made his judicial decisions.

But let’s get it over with: The word “better” was, in my opinion, a flat-out gaffe, as President Obama and his press secretary suggested last week. I expect that Judge Sotomayor will say as much during her confirmation hearings – similar to when Judge John G. Roberts Jr. acknowledged second thoughts concerning some of his legal memoranda written many written years before as a Reagan administration attorney.

If there were a “one-innocent-gaffe rule” that disqualified people from holding public office in Washington, there would probably be no one left in Washington holding public office. Excuse me: Did I just write a sentence that could produce a national standing ovation?

Obama cited “empathy” as a criterion for his Supreme Court pick. Law professor John Hasnas writes about the unseen effects of this.

…a good judge must have “an understanding of how the world works and how ordinary people live.” Judicial decision-making involves the application of abstract rules to concrete facts; it is impossible to render a proper judicial decision without understanding its practical effect on both the litigants and the wider community.

But what about compassion and empathy? Compassion is defined as a feeling of deep sympathy for those stricken by misfortune, accompanied by a strong desire to alleviate the suffering; empathy is the ability to share in another’s emotions, thoughts and feelings. Hence, a compassionate judge would tend to base his or her decisions on sympathy for the unfortunate; an empathetic judge on how the people directly affected by the decision would think and feel. What could be wrong with that?

Frederic Bastiat answered that question in his famous 1850 essay, “What is Seen and What is Not Seen.” There the economist and member of the French parliament pointed out that law “produces not only one effect, but a series of effects. Of these effects, the first alone is immediate; it appears simultaneously with its cause; it is seen. The other effects emerge only subsequently; they are not seen; we are fortunate if we foresee them.” Bastiat further noted that “[t]here is only one difference between a bad economist and a good one: The bad economist confines himself to the visible effect; the good economist takes into account both the effect that can be seen and those effects that must be foreseen.”

This observation is just as true for judges as it is for economists. As important as compassion and empathy are, one can have these feelings only for people that exist and that one knows about — that is, for those who are “seen.”

One can have compassion for workers who lose their jobs when a plant closes. They can be seen. One cannot have compassion for unknown persons in other industries who do not receive job offers when a compassionate government subsidizes an unprofitable plant. The potential employees not hired are unseen.

One can empathize with innocent children born with birth defects. Such children and the adversity they face can be seen. One cannot empathize with as-yet-unborn children in rural communities who may not have access to pediatricians if a judicial decision based on compassion raises the cost of medical malpractice insurance. These children are unseen.

One can feel for unfortunate homeowners about to lose their homes through foreclosure. One cannot feel for unknown individuals who may not be able to afford a home in the future if the compassionate and empathetic protection of current homeowners increases the cost of a mortgage.

In general, one can feel compassion for and empathize with individual plaintiffs in a lawsuit who are facing hardship. They are visible. One cannot feel compassion for or empathize with impersonal corporate defendants, who, should they incur liability, will pass the costs on to consumers, reduce their output, or cut employment. Those who must pay more for products, or are unable to obtain needed goods or services, or cannot find a job are invisible.

Charles Krauthammer:

It’s true that whoever Obama appoints is not going to make any change in the balance of the court because Souter was a liberal, as liberal as you come.

But I thought what Obama said today was really remarkable when he said I want someone on the court who understands that justice isn’t about abstract legal theory. It’s about how our laws affect the daily realities of people’s lives.

Now that is not only wrong, it’s deeply corrupting. The idea that you ought to be thinking about how the law affects the reality of someone’s life is something that you do when you are passing a law or create a law. That’s what you do if you are a member of Congress who represents people and their needs.

But once the law is passed, the only job a judge has is to interpret the law without consideration of a person’s standing in life. Otherwise you could never have, say, a bank foreclosing on a home, because who, after all, is more affected, a bank that might lose a few dollars, or a family that’s going to lose its home and future livelihood, et cetera?

The whole idea blinds a justice and the statutes that we have outside our courthouses of a blindfold over justice is that you do not look at a person’s station in life, their needs in life, requirements in life. It’s entirely about the law.

And for Obama to state the exact opposite openly as a way that will guide him in his appointments is quite radical.

Maybe you’ve seen the video going around about Obama not being a natural born citizen.

A lawyer sued to force Obama to produce his birth certificate in order to prove his eligibility for office. I ignore such things as distractions, usually the province of cranks.

But I had to take notice when the court tossed out the case for lack of standing. If a citizen doesn’t have legal standing, who does?

If you believe in individual rights and the notion that our Constitution is a document granting enumerated but limited powers to the federal government, then you have reason to be troubled by the recent dismissal in Berg v. Obama et al.

Philip Berg, Democrat and former Assistant Attorney General for Pennsylvania, brought suit alleging that under the Natural Born Citizen Clause of the U.S. Constitution, Barack Obama is ineligible to be President.  Federal Judge R. Barclay Surrick recently granted the motion to dismiss filed by Senator Obama and other defendants, including the Democratic National Committee, on grounds that Berg lacked standing to sue as a mere voter.

The judicial doctrine of standing is important.  It is a requirement that plaintiffs have a real stake in the outcome of a real controversy. 

A family with an autistic child was nearly destroyed because idiots in the DA’s office didn’t know junk science from a hole in the ground. Or, apparently how to use Google.

“Facilitated communication” is a discredited method to communicate with severe autistics. A facilitator holds the child’s arm to help him type letters on a keyboard. Often the kid isn’t even looking at the keys, oblivious to the process, yet is supposedly capable of reciting poetry. Or making claims of sex abuse.

Thal Wendrow was at her mother’s home when the police came to get her. Four West Bloomfield patrol cars pulled up to the curb. Her husband, Julian, at their home a few blocks away, also was being arrested that day last December.
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The couple, who had no criminal history, suddenly faced decades in prison. He was charged with repeatedly raping their 15-year-old, severely autistic daughter, and she was charged with child abuse for failure to stop it.

Thus began a four-month ordeal, a prosecution based solely on statements their mute child reportedly made while using a widely discredited method called “facilitated communication,” in which messages are typed on a keyboard with the help of an aide called a facilitator.

Thursday, the Wendrows, who saw all charges against them dropped in March, filed a lawsuit in Oakland County Circuit Court, alleging 38 counts of wrongful imprisonment, invasion of privacy, violation of their due-process rights, malicious prosecution and other misdeeds. Lawsuits on behalf of their daughter and her 13-year-old brother, who was repeatedly interrogated by police, are expected to be filed today.

Stories such as this are what give me pause about capital punishment. Like anyone else, prosecutors and cops do commit acts of stupidity, and when their cases start to fall apart, there’s a temptation to dig in. Just ask Mike Nifong and the Duke lacrosse team.

A similar case with “facilitated communicators” making sexual abuse charges was easily dismissed by a savvy prosecutor who was featured on a 1993 episode of PBS’ Frontline.

Curious about the validity of the technique, he devised a simple experiment. Using a manila folder as a screen, he was able to show the autistic child a photo of an apple and the facilitator a photo of a horse. He then asked the kid to describe what he saw. The facilitator didn’t know the photo was switched. Guess what the autistic typed out? Yep, a horse every time.

Most interesting is that the facilitators were not consciously aware of the deception. They were sincere, kind people working for little money.

That this happened 15 years before the Michigan case shows how dense people with law degrees can be.

Much more on this here from Classical Values.

LA Weekly:

…In the late 1990s, the term “toxic mold” found its way into media coverage and a handful of courtrooms. A few victims reported a frightening array of symptoms, from severe memory loss to infections and bleeding gums.

In a country where fear is second only to sex as a hot sales tactic, household mold, which has always been in the environment, soon became, in Kramer’s words, “toxic, dangerous, a killer.” While mold can be dangerous to the infirm, an opportunistic group of plaintiff’s attorneys convinced juries of an exaggerated threat — to the healthy. Awards by juries in Texas, California, Oregon and several other states exploded into massive figures, topped by $32.1 million the Ballard family of Texas was awarded in 2001 when their home was inundated with mold.

Builders and insurance agents feared that they would have “another asbestos” on their hands, an area of litigation that grew so huge, so vague — and so lucrative for lawyers — that some now refer to it as the “Asbestos Blob.” Construction companies, home insurers, health insurers and contractors decided to fight back against claims of health problems and property damage caused by mold, arguing that there is very little scientific or medical proof that household molds make people seriously ill.

But their side didn’t have Sharon Kramer. With Kramer as its Erin Brockovich and her daughter as a starring victim, a mold war exploded, with California at its center. By 2001, water-damage claims in California — driven by the discovery of mold — skyrocketed by a third, to $430 million of all homeowner-insurance claims paid, according to the Insurance Information Network of California. The average claim surged 80 percent from 1998 to 2001, to $4,730, to remove what, mere years earlier, had often been scrubbed away with a little Dutch Cleanser. The Mold Blob had arrived, and by 2002, insurers reported $3 billion in annual losses nationwide — paid as settlements for personal-injury claims and property damage caused by mold.

One of those demanding justice was Kramer, whose sickly teenage daughter was nearly killed by a household fungus that is innocuous to the healthy. A Realtor in exclusive Rancho Santa Fe, Kramer became an outraged gadfly and self-appointed mold researcher. She grew enraged by papers written by mold experts who sided with insurers and contractors in saying household mold isn’t particularly dangerous.

Like those who would later join the cause, including Johnny Carson sidekick Ed McMahon, she saw a conspiracy funded by businesses out to end mold claims while risking the public’s health. She believed that the well-being of thousands depended on her exposing that deceit. Like the fight waged by McMahon over the death of his dog purportedly from mold, Kramer’s belief has consumed her. It has wiped out her comfortable suburban life and financial security and driven away all but her truest friends.

But the great mold scare never rose to the level of accepted epidemic among serious researchers. Despite public hysteria that continues even now, science today finds no direct link between mold and serious illness in people with normal immune systems.

The Centers for Disease Control now says: “There are very few reports that toxigenic molds found inside homes can cause unique or rare health conditions such as pulmonary hemorrhage or memory loss” — the kinds of illnesses claimed in successful lawsuits at the height of the mold rush. “These case reports,” the CDC warns on its Web site, “are rare, and a causal link between the presence of toxigenic mold and these conditions has not been proven.”

Wall Street Journal: 

Justice Scalia shreds the collective interpretation as a matter of both common law and Constitutional history. He writes that the Founders, as well as nearly all Constitutional scholars over the decades, believed in the individual right. Many Supreme Court opinions invoke the Founders, but this one is refreshing in its resort to first American principles and its affirmation of a basic liberty. It’s not too much to say that Heller is every bit as important to the Second Amendment as Near v. Minnesota (prior restraint) or N.Y. Times v. Sullivan (libel) are to the First Amendment.

Which makes it all the more troubling that no less than four Justices were willing to explain this right away. These are the same four liberal Justices who routinely invoke the “right to privacy” – which is nowhere in the text of the Constitution – as a justification for asserting various social rights. Yet in his dissent, Justice John Paul Stevens argues that a right to bear arms that is plainly in the text adheres to an individual only if he is sanctioned by government.

Justice Breyer, who wrote a companion dissent, takes a more devious tack. He wants to establish an “interest-balancing test” to weigh the Constitutionality of particular restrictions on gun ownership. This balancing test is best understood as a roadmap for vitiating the practical effects of Heller going forward.

Using Justice Breyer’s “test,” judges could accept the existence of an individual right to bear arms in theory, while whittling it down to nothing by weighing that right against the interests of the government in preventing gun-related violence. Having set forth this supposedly neutral standard, Justice Breyer shows his policy hand by arguing that under this standard the interests of the District of Columbia would outweigh Mr. Heller’s interest in defending himself, and the ban should thus be upheld.

But as Justice Scalia writes, no other Constitutional right is subjected to this sort of interest-balancing. “The very enumeration of the right takes [it] out of the hands of government” – even the hands of Olympian judges like Stephen Breyer. “Like the First, [the Second Amendment] is the very product of an interest-balancing by the people – which Justice Breyer would now conduct for them anew.”

In that one sentence, Justice Scalia illuminates a main fault line on this current Supreme Court. The four liberals are far more willing to empower the government and judges to restrict individual liberty, save on matters of personal lifestyle (abortion, gay rights) or perhaps crime. The four conservatives are far more willing to defend individuals against government power – for example, in owning firearms, or private property (the 2005 Kelo case on eminent domain). Justice Anthony Kennedy swings both ways, and in Heller he sided with the people.

A President Obama would give us more Breyers, which is ironic, given that Leftists are always complaining about the government intruding on their civil liberties.

The Supreme Court ruled against the death penalty for child rape. Choice quotes: 

“The opinion reads more like an out-of-control legislative debate than a constitutional analysis,” said Louisiana Gov. Bobby Jindal, a Republican. “One thing is clear: The five members of the court who issued the opinion do not share the same ’standards of decency’ as the people of Louisiana.”

———————

“The harm that is caused to the victims and to society at large by the worst child rapists is grave,” Alito wrote. “It is the judgment of the Louisiana lawmakers and those in an increasing number of other states that these harms justify the death penalty.”

——————–

But Justice Kennedy said the absence of any recent executions for rape and the small number of states that allow it demonstrate “there is a national consensus against capital punishment for the crime of child rape.”

Justices are not supposed to divine “national consensus” but to interpret the law. To wit: is it unconstitutional for Louisiana to enact laws that meet its voters’ will. How many said executions have been carried out recently is irrelevant.

I know that much and I never went to law school.

ELYRIA, Ohio (AP) — A judge in Ohio says the state’s method of putting prisoners to death is unconstitutional because two of three drugs used in the lethal injection process can cause pain.

Lorain County Common Pleas Judge James Burge said Tuesday the state’s lethal injection procedure doesn’t provide the quick and painless death required by Ohio law.

Burge said Ohio must stop allowing a combination of drugs and focus instead on a single, anesthetic drug.

Of course, when Che murdered his victims he always made sure it didn’t hurt. We hope.

Fred Thompson writes about the Supreme Court’s decision to grant habeas corpus rights to terrorists:

Upon reading the opinion in Boumediene v Bush, one must conclude that the majority knew where they wanted to go and simply had to figure out how to get there. The trip was not a pretty one. How could it be when the justices seemingly wrote a map based on ideas cherry picked from over 400 years of established law and backfilled with justifications to create a new right for alien combatants that Americans themselves do not enjoy?

They could have saved us all a lot of time if they’d told us what was clearly on their minds.

They don’t trust military tribunals to deal with those accused of being enemy combatants, even if the tribunals are following guidelines established by Congress.

That the government has probably detained some prisoners at Guantanamo for longer than they should have.

And that Guantanamo should just be closed.

Though they are willing to give it lip service, they don’t really believe we are at war … at least not a “real” war.

Therefore, they should create a new right for our nation’s enemies commiserate with the displeasure that they and the rest of the “enlightened” people have with this “war,” Guantanamo and the Bush Administration.

At least this approach would have been an honest one and based upon about as much legal justification as the approach they took.

But, instead – as Justice Scalia pointed out in his dissent – they for the first time in our nation’s history, conferred a Constitutional right of habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war – a broader right than has been given to our own citizens. The court majority did so acknowledging that they could find no precedent to confer such a right to alien enemies not within sovereign U.S. territory. (more…)

“Enron” has become shorthand for corporation wrongdoing. But there’s more than one way to screw shareholders. Namely, through bogus lawsuits.

The game is simple: a lawyer finds a shareholder willing to sue a corporation over some real or purported financial malfeasance. Said corporation, whether guilty or not, may decided to settle the suit because it’s cheaper. For the lawyers, it’s rinse and repeat.

Now one of the biggest names in that racket is heading to prison.

The career of one of the nation’s most entrepreneurial, controversial, philanthropic and rich lawyers came to a close Monday, as Melvyn Weiss was sentenced to 30 months in prison for his role in a scheme in which he and his partners used kickbacks to gain an advantage in lucrative cases.

Mr. Weiss pleaded guilty this year to conspiracy in a long-running prosecution of him and his famed law firm, now known as Milberg LLP, in which the government alleged that the lawyers paid kickbacks to clients to serve as name plaintiffs in class actions. The scheme, prosecutors said, allowed Milberg to have a ready stable of plaintiffs that filed cases quickly, enabling the firm to become lead counsel in a case and claim a larger share of the fees.

In handing down a sentence near what prosecutors sought — 33 months — Judge John Walter noted the seriousness of the offense, which he said involved a “nationwide conspiracy that continued for decades.” But the judge, in sentencing him three months shy of the maximum plea term, also appeared moved by Mr. Weiss’s good works and his age, 72.

Weiss follows another one-time luminary in this racket, William Lerach, to the pokey.

In 1996, Lerach tried to get the rules loosened in California to pursue his racket via Proposition 211. Voters rejected it 74% to 26%.

Republicans are tagged as the stooges of corporations. Trial lawyers are the patrons of the Democrat party.

We recently linked to a story about tort reform in Mississippi.

The current New Yorker tells the tale of lawyer Dickie Scruggs, big time Democrat and big time tort lawyer who won the billion dollar settlement from the tobacco industry, making himself very rich.

Now he’s pleaded guilty to bribery charges and will be sentenced next month.  

It’s an ugly story of greed, politics. From the abstract:

Richard Scruggs, known as Dickie, was arguably the most successful tort lawyer in America and the man who took down Big Tobacco without conducting a single trial. Although Dickie is former U.S. Sen. Trent Lott’s brother-in-law, he’s a stout Democrat. Scruggs was not present at the rally in November because that morning a federal grand jury in Oxford returned an indictment charging Scruggs, his son, Zach, and three other men with conspiring to offer a $50,000 bribe to a judge in Calhoun City.

The reaction to the indictment was incredulity. Scruggs was said to have scored a billion-dollar fee in the tobacco case. Why would he bother with a tawdry little bribery scam? After graduating near the top of his class at Ole Miss Law, Scruggs worked at a pair of Jackson law firms before moving with his wife, Diane, to Pascagoula and opening a law office. He made his first fortune trying asbestos cases.

Scruggs began to formulate his own brand of litigation, of which the actual practice of law was only one part. The strategic manipulation of politics and public opinion was just as important. Mentions Mississippi Attorney General Mike Moore. Moore deputized Scruggs to develop the 1994 Medicaid suit against Big Tobacco.

Yep, he got a legal permit to be a stickup man. You can despise tobacco companies and still despise the foul system that beat them.