Decisionism Flashes Back

See, I was planning to make my next post about why I've stopped blogging.* But then Judge Tauro did his thing and Judge Walker did his and now I can't resist linking to some early thoughts I had on all of this.

One thing to watch for here is what I hereby dub the "Reverse Cocktail Party Effect". Recall that one stubborn response to instances in which Justice O'Connor or Justice Kennedy strayed from the conservative line in individual rights cases has been that they just want to keep getting invited to Washington cocktail parties. In this vein, keep your eyes peeled for enlightened right-leaning legal thinkers expressing support for equal marriage rights but furrowing their brows at application of the rational basis test to denial of those rights.

*Other than abject laziness, of course.

Put That In Your Musket And Shoot It!

As noted on Universal Hub, today in Commonwealth v. Runyan, No. SJC-10480, the Supreme Judicial Court held (i) that the Second Amendment does not apply to the states; and (ii) that even if it did, requiring people to lock up their guns would still pass constitutional muster. The former issue is currently under intense consideration in the United States Supreme Court. For much more on that, the best place to go is here.

As for the latter issue, Justice Gants makes what appears to be an unassailable point in footnote 8:

We also note that, even if a firearm were secured in the manner required by G.L. c. 140, § 131L (a ), a gun owner threatened in his or her home today would be able to fire the weapon in self-defense at least as quickly as would a gun owner in 1791, when the Second Amendment was adopted. At that time, laws were in effect requiring that gunpowder be stored separately from firearms, which meant that a law-abiding homeowner acting in self-defense would need time to load and fire a musket or flintlock pistol. See Heller, supra at 2849-2850 (Breyer, J., dissenting). A skilled soldier of that time using specially prepared cartridges required a minimum of fifteen to twenty seconds to load and fire a musket; a less skilled soldier could fire no more quickly than once per minute. Hicks, United States Military Shoulder Arms, 1795-1935, 1 Am. Military Hist. Found. 23, 30-31 (1937). A gun owner today could remove a firearm from a locked container or release a trigger lock more quickly than that.

If you're going to be an originalist, you'd better be prepared to deal with the consequences.*

*I predict without fear that the usual suspects will try with all their might to puncture Mr. Hicks's "once per minute" datum. (The good thing about this prediction is that I'll even be happy if I'm wrong . . . .)

For The Record: I Am Opposed To Death By Stoning

This morning's New York Times featured another article about Eric Holder's decision to try Khalid Sheikh Mohammed in a civilian court. It's a nice companion to Jane Mayer's piece last week in the New Yorker. Both discuss at length the political tempest in which Mr. Holder now finds himself.

And yeah, duh, it's bad politics.* But I don't want to talk about that. What interests me is the totally crass and craven nature of the opposition to trying KSM in the Southern District of New York. As Mayer's comprehensive piece points out, Holder's investigators have been able to cobble together a much stronger and more compelling case than anything that been extracted by, uh, different means from KSM at Gitmo or elsewhere. And Mayer also describes the downright ineffectual nature of the military commissions that people like Lindsay Graham seem to love so much. You want to convict? You want a tough sentence? Yes? The same military commissions that just released Osama Bin Laden's driver and sent him to Yemen (yes, Yemen)? Okay. Who's soft on terror again?

I have not seen a single legal or tactical argument against a criminal trial for KSM that has any merit whatsoever. If you've seen one, send it to me.

One last thing. If the administration really wanted to play a smart game of politics,** they'd announce that there will be no trial for Khalid Sheikh Mohammed. They'd call a press conference and announce that sometime this Spring they'll tie KSM up to a post at Ground Zero and let the 9/11 families stone him to death. That would be super popular.

I really hope that the next member of the press who interviews Lindsay Graham or Scott Brown or, heck, Rahm Emanuel asks a simple question:

Do you support death by stoning for Khalid Sheikh Mohammed without a trial?

*Which makes the administration's lack of political groundwork for the decision pretty disappointing.

**When I said I didn't want to talk about politics, I lied.

Reporters Left Hanging

Adam Gaffin at Universal Hub and Dan Kennedy* each report today on the SJC's decision in Fustolo v. Hollander, SJC No. 10485. If you've spent time with me, or read this blog, you probably know that I have a genetic inclination toward a broad interpretation of the First Amendment, especially as it relates to the press. But the decision in the Fustolo case feels right to me.

The issue in the case is whether a person who writes an objective news story is petitioning the government. If she is, the case against her would probably be dismissed in its earliest stages and she would be awarded her attorneys' fees. I agree that the statute is not as artfully crafted as we might like it to be. Especially on this front. But it protects petitioning. A reporter who objectively provides citizens with information about an issue of public concern is performing a valuable service in our democracy. She may be providing information that others use to petition. But she's not petitioning. Which is what the statute protects.

So the most important sentence in the opinion, to me, pops up early on: "she expressly stated in her affidavit that in writing all her articles, she was 'always careful to present an objective description of the subject matter, including the positions of both sides where applicable,' and that while she had personal views on the issues she covered, 'they were not reflected in the articles I wrote.'"

Again: not petitioning. No matter what you think of the plaintiff, no matter what you think of the press, if you're not presenting personal views you just aren't petitioning.

*I can't resist noting that Mr. Kennedy links in his post to an affidavit that he was paid, presumably by Ms. Hollander to the submit to the Court. As with just about everything he writes, it's persuasive and beautifully written. But I'm not so sure it's a particularly helpful document to file in a civil dispute to which he's not a party.

At Least They Had Good Seats For The Speech

It was a dramatic moment, wasn't it? With a handful of the justices seated immediately before him, the President criticized the recent Citizens United decision. Supposedly, though I didn't see it, Justice Alito shook his head and said "That's not right." I haven't read any of the commentary on this yet. But let me make the following assumption: right-leaning legal thinkers are comparing this to court-packing and all manner of other evils. Left-leaning legal thinkers are saying that there's nothing wrong with shining a light on an institution that is almost completely unaccountable for the work it does.

My immediate reaction was guilty pleasure. I liked the fact that Justice Roberts, Justice Kennedy, and Justice Alito were called out in the most public setting possible by someone who commands respect. And for the second time in a couple of days, no less.

Now I haven't read all or even most of Citizens United. I suspect that it's based on a justifiable reading of the First Amendment. I'm quite certain it puts yet another nail in the coffin of conservative hand-wringing about judicial activism. To the extent there's even room for another nail anyway.

But what if it had been another president up there on the dais? The last one, for example. And what if instead of criticizing Citizens United, he'd been criticizing the decision in Lawrence v. Texas? I think I would have been less happy about that. But I think I would have been wrong.

It is now commonly accepted that presidents are going to appoint justices who share similar political philosophies. How does this President's criticism of a controversial decision differ from his predecessor's appointment of two extremely conservative justices in a clear effort to push the Court further to the right? It really doesn't. Both are public acts. Both have in mind political goals. So why are conservatives (probably)* so upset this morning? Because they lost the White House. They might get it back in a few years. They might not. But that's what's really going on here.

*Again, I haven't read a word about this yet.

SJC Tackles Fee Application; Subtle Sausage-Like Aroma Sniffed At Adams Courthouse

If you litigate, chances are that at some point in your career you'll submit to a court (or oppose) an application for attorneys' fees. If you do business, chances are that some point you'll have to retain an attorney to fight like pit bull on your behalf. Either way, you should take a few minutes and read Haddad v. Wal-Mart Stores, Inc., SJC No. 10261A., decided last week.

It's all here: how competent and careful attorneys bill their time, the degree of attention with which lawyers pick over bills submitted by their prevailing opponents, how courts do their best to reach rough justice and make both sides feel like they've won (or lost). After reading it, you may feel like you need to take a shower. Or, if you're like me, you might revel for a moment in the messiness of our very public legal system.

Some Thoughts On Martha Coakley

In the middle of October, I received a call from a reporter for a major local publication. He had seen this post and seemed to expect that I would have bad things to say about Martha Coakley, who at that point had not yet won the primary election. Coakley, remember, had a rough time when she argued in front of the Supreme Court, at one point not knowing the answer to a predictable question and at another misstating the record and being corrected by the Chief Justice.

I was reluctant to criticize the Attorney General, in part due to cowardice and in part because arguing in front of any appellate panel is an immensely difficult skill to master. Much less the United States Supreme Court. So I wouldn't give this reporter the juicy quote he unabashedly sought and he moved on.

But I had misgivings. The Attorney General's performance before the Supreme Court was a signal that something was amiss. Perhaps it was a lack of diligence. Or an inability to engage in complex strategic thinking. Perhaps it was a lack of respect for an important institution. Or all three. Or something else. Whatever it was, I was spooked. My vote in the primary reflected that.

There are smarter, snarkier, more eloquent folks than me spilling bytes and barrels of ink about HOW ON EARTH THIS HAPPENED. It could have been a wave (maybe) or sexism (maybe) or tepid support from the party (er, probably not). I find myself returning to that Supreme Court argument. You don't back into a seat in the United States Senate. If you don't work for it -- I mean put every ounce of your being into it -- and you don't understand the strategic significance of looking like you're not working for it, people are going to think that you don't respect them and vote for the candidate who *is* working hard. Which seems to be what happened.

As for Scott Brown, well, he's to be congratulated. I can't restrain myself from providing one word of unsolicited advice to our new Senator: you probably don't want to join Jim DeMint and Tom Coburn's Ayn Rand book club or anything. You are, after all, a Senator from Massachusetts, not Oklahoma. You'll want to have that in mind as you make your way.

Charlie Baker Is Licking His Chops Somewhere (Or Should Be)

Law-and-order types in the legislature -- and law-and-order types who want to be in the legislature but aren't right now -- should take a look at the Supreme Judicial Court's opinion today in Souza v. Sheriff of Bristol County, No. SJC 10508, helpfully reproduced by Adam Gaffin at Universal Hub.

The Court affirmed the trial court's determination that the "sheriff lacked authority to impose the cost of care, medical care, haircut, and GED fees" on inmates. But it didn't hold that such fees were unconstitutional. No -- just that the legislature hasn't authorized the sheriff to collect them. If there *isn't* some diligent staffer drafting a bill at this very moment, I'd be a bit surprised.

Save Your Work!

This case will probably settle now, yes? Otherwise we're all going to have to reacquaint ourselves with WordPerfect. I'm trying to think of another distinct consumer product (as opposed to a brand or company) that has ever been as dominant in its field and generally ubiquitous as MS Word has been for the last ten years. Maybe Kleenex at some point? The iPod?

Separation Of Powers Is More Interesting Than Charles Nesson*

Adam Gaffin at Universal Hub points us to Judge Gertner's decision today in what will probably be come to known as the Charles Nesson file-sharing case (but for now is just Sony BMG Music Entertainment v. Tenenbaum, D. Mass. No. 07-CV-11446-NG). There's all manner of juiciness in the discussion of Professor Nesson's performance as trial counsel.**

But it's a good indication of the magnitude of my nerditude that I found the following graph on page 35 of the opinion to be way more interesting:

As this Court has previously noted, it is very, very concerned that there is a deep potential for injustice in the Copyright Act as it is currently written. It urges – no implores -- Congress to amend the statute to reflect the realities of file sharing. There is something wrong with a law that routinely threatens teenagers and students with astronomical penalties for an activity whose implications they may not have fully understood. The injury to the copyright holder may be real, and even substantial, but, under the statute, the record companies do not even have to prove actual damage. “Repeatedly, as new developments have occurred in this country, it has been Congress that has fashioned the new rules that new technology made necessary.” Sony, 464 U.S. at 430-31. It is a responsibility that Congress should not take lightly in the face of this litigation and the thousands of suits like it.

I'm really not all that sure how I feel about Article III judges telling Article I legislators what to do. Though not a huge believer that judicial activism poses a danger to the Republic, I do suppose it's not that far of a leap from telling Congress to change a statute in an opinion to just going ahead and invalidating it yourself. Which, by the way, is the right thing to do if the statute offends core constitutional principles. At least until Marbury v. Madison gets flipped.***

*He might agree with that, by the way.

**Prof. Nesson seems to have represented Judge Gertner before the First Circuit in 1984. See In re Grand Jury Matters, 751 F.2d 13 (1st Cir. 1984). Slightly awkward, no?

***You chuckle, but it could happen. You know it could.

Supreme Court Abolishes Michigan Trial Court*

Today, in Michigan v. Fisher, U.S. Supreme Ct. No. 09-91 (pages 11 -18), seven members of the U.S. Supreme Court decided that they were better judges of a police officer's credibility than the trial judge who heard the actual evidence.

The whole thing stems, as is often the case, from a police officer's decision to enter a house without a warrant. The trial court held an evidentiary hearing and found that the officer's belief that someone was inside the house in need of immediate aid to be objectively unreasonable. Six years later, seven judges who sit four hundred miles and three states away -- not one of whom has served as a trial judge -- disagreed. The one justice who *has* presided over any significant number of trials and evidentiary hearings, Justice Sotomayor, dissented.

The majority's rationale is captured in a sentence on the final page of its opinion: "It does not meet the needs of law enforcement or the demands of public safety to require officers to walk away from a situation like the one they encountered here." Justice Stevens dissented (joined, again, by Justice Sotomayor). "[I]t is hard to see how the Court is justified in micromanaging the day-to-day business of state tribunals making fact-intensive decisions of this kind," Justice Stevens wrote. "We ought not usurp the role of the factfinder when faced with a close question of the reasonableness of an officer’s actions, particularly in a case tried in a state court."

It's surprising that there were only two dissenting justices here. I'm ready for just about anything, but a universe in which any five justices can flip a state trial judge's findings of fact that they find disagreeable or contrary "to the needs of law enforcement", that's a bit much even for me.

*Kidding!

So . . . How Was *Your* Fall?

I read some post somewhere by someone I trust and it was about the top five indicators that a blog is fading away. The winner going away was "Posts become infrequent." Uh. Yeah.

Thus begins my attempt to debunk conventional wisdom, subvert the dominant paradigm, and stick it to the man.

Shocker? Not So Much

Here's the latest breathlessness from the Herald on the Gates fiasco. This is a situation that generates more questions than answers, but let's add a few more to the mix.

Is the witness trying to exonerate herself because she didn't mention the race of the people on the Ware Street porch? Does this mean race had absolutely nothing to do with it? Does the witness call the police if she sees a 58 year-old white guy in glasses and a little polo shirt trying to force his door open?

And did she really and truly have to retain an attorney? Was that the only way she could let the whole world know that she has “olive-colored skin and is of Portuguese descent”?

Let's just all have one last good collective cringe and move on. Okay?

UPDATE: A typically excellent and thoughtful post from Dan Kennedy here.

Gates

Wow. That's just about all I can say after reading these stories about the arrest of Henry Louis Gates at his home a few days ago. Some thoughts:

1. To say that Gates has the better of the two arguments here would be a laughable understatement. He showed the arresting officer his license and Harvard ID card, and the good Officer Crowley continued to question him? And then Officer Crowley arrests Gates because he's yelling at him? That's a joke. And a bad one, at that. Just turn around. Get back in your cruiser. And drive away.

2. Cambridge had better lawyer up. It was bad enough that its officers seem to have accosted a high-profile public intellectual in his home. But then they arrested him? And charged him? I hope the city has insurance (with high coverage limits) for this sort of thing.

3. The person with the hardest job in Eastern Massachusetts today is Gerard Leone. He's going to alienate someone before the day is over. Even if he just sits in his office and refuses to comment.

4. If the arraignment does go forward on August 26, 2009, it might be the slightest tad bit chaotic, no?

5. Cambridge should call John Linehan and ask for the number of his PR people. Because this is officially a fiasco.

6. Police officers have incredibly difficult jobs. But this is America and we're allowed to criticize them when they seem to do stupid things. Those traditionally sympathetic to law enforcement might keep that in mind.

UPDATE (12:30 p.m.): Charges dropped. There's your answer to No. 3.

It Happened Here, Too

If you listened to NPR this morning, you probably heard Nina Totenberg's typically excellent report on the Supreme Court's decision in Ricci v. DeStefano, No. 07-1428. Totenberg interviewed Richard Primus, a professor at the University of Michigan,* about the decision. Professor Primus talked about the limits of the holding in this case. The argument, which kind of strays into Kübler-Ross territory, is that this isn't that big of a deal.

But that's just wrong. A quite similar case arose from a promotional decision made by the Boston Police Department. In that case, Cotter v. City of Boston, First Cir. No. 02-1404,** the white plaintiffs lost. Whether the Cotter case remains good law -- I think it does, just barely -- would make for an interesting article topic.

*Go Blue.
**Full disclosure: I worked on this case when I was a pup, helping out with representation of an intervening party, the Massachusetts Association of Minority Law Enforcement Officers.

Decisionism Is Just Like Mark Sanford*

Remember how Martha Coakley argued in the U.S. Supreme Court? The thinking at the time was that she did not do so well. Today, unsurprisingly, she lost. It's interesting, though, that the justice who asked her a question that nearly catastrophically tripped her up, Justice Kennedy, wrote an impassioned dissent supporting her position. So you just never know.

*In that it disappears for days and days without explanation. Thankfully, the similarities just about end right there.

Oh, Please

It borders on preposterous that on the morning after a respected and reliable Supreme Court observer publishes this post and this one, the supposed paper of record puts this on its front page. That darn liberal media strikes again!

Note To Self

Never, ever, ever do anything that attracts Nate Silver's attention. The thing of it is that mere mortals would read Prof. Mankiw's argument and say to themselves, "Hmm. Not such a good argument. But OMG he's way smart so I'll just take a flyer on this." Nate Silver is no mere mortal. He looks at the argument. He unpacks it. And then he blows it up into ten zillion pieces. Is he afraid of offending someone's grandmother? No. He is afraid of nothing. He is a magician with numbers. And he can write. Stay out of the man's way.

I suppose this is my first unofficial Sotomayor post. And I get this vague sense that one or two readers want to know what I think of Judge Sotomayor's nomination. Short useless answer: good pick. I like the fact that she's been an actual practicing lawyer. I like the fact that she's got Ramesh Ponnuru in such a snit that he feels the need to remind us that he graduated summa from Princeton, too. Finally: we have something in common! We've both said arguably true things we probably regret in front of large groups of Boalt Hall students!

An Actually Big Development

Thanks to 23 Neighborhoods for highlighting Judge Tauro's decision in Real Estate Bar Ass'n for Massachusetts, Inc. v. National Real Estate Information Services, D. Mass. No. 07-10224-JLT. This is a significant case. It emanates from the United States District Court for the District of Massachusetts, which gets shafted by this blog because its opinions aren't distributed electronically (understandable, but disappointing). It's also more than a month old, so it's not news per se.

Judge Tauro holds that requiring retention of Massachusetts attorneys to close real estate transactions here is unconstitutional. The practice is unconstitutional because it discriminates against interstate commerce and thus runs afoul of the Dormant Commerce Clause.* The Court's analysis of the issue starts at Page 15. It's not simple at all, but it probably didn't help REBA that one of its officers defended the lawyer requirement and was quoted in the Globe as stating "We don’t need outsiders coming into Massachusetts and telling us how to do things." That's usually not going to win you very many dormant commerce clause cases. It also didn't help REBA that it adopted an almost identical argument to one that the First Circuit rejected in an earlier case about a Rhode Island debt collection law.

With the pesky Constitution involved, there isn't a whole lot REBA can do about this except appeal. That seems likely; running real estate closings is a massive source of income for a large segment of the Massachusetts bar. The First Circuit will probably decide whether that continues to be the case.

*A legal doctrine that is neither dormant nor a clause, but hey.

Tradition!

There are not insignificant corners of the blogosphere supposedly devoted to documenting the stupid things said on occasion* by Mickey Kaus and the Instapundit, Prof. Glenn Reynolds. They probably should have dropped their copies of the Little Red Book or Das Kapital yesterday and done some blogging, because Kaus and Instapundit sure did join forces and serve up a hanging curveball.

They each try to raise a stink about the fact that the administration is talking about appointing a new U.S. Attorney for the District of North Carolina. It seems that the current person in the job, who was appointed by George W. Bush, is investigating John Edwards. So, they ask, why isn't the media freaking out about this like it did when Bush fired U.S. Attorneys who weren't bringing frivolous election fraud cases again Democrats? As the cool kids say, it's teh bias!

Except it's not. The modern tradition is that when a new administration comes to power, U.S. Attorneys from the previous administration move on to bigger and better things. Why don't Kaus or Reynolds mention this in their posts? The author of the article to which they link certainly does.** Maybe Reynolds overlooked it in his haste to post photographs of a sparsely attended tea party and Kaus did the same because he had to go patrol the border since Obam won't build the fence. Or perhaps there were other reasons. We'll never know.

*Or more frequently, as it were.

**The N&O headline writer's hilarious predilections notwithstanding.