the brooding omnipresence?

This is the End

2007-08-07T14:27:00.000-05:00

Farewell, faithful readers. As you can tell, this omnipresence has fizzled. Work is around the corner and I simply cannot justify cranking up the ole' blog again for two more weeks.

Thanks for allowing me to share my thoughts with you and, perhaps, indulging my narcissism.

It is said that all good things come to an end. I disagree. Both good and bad will last.

But I will say that all earthly loves point towards a fond farewell. Every friendship, every marriage, every family, will someday have to face the facts of saying good-bye.

There is only one love that lasts, one that is worth all the farewell's. It is omnipresent. Is it brooding or is that a smirk I see?

Godspeed, all.

Harry Potter Reax

2007-07-29T12:18:00.000-05:00

I thought it was wonderful; however, I will have to get a little farther away from the maniacal joy of reading it to really evaluate its themes and implications.

It was a wild ride.

In the meantime, perhaps this musical treasure will suffice.

I'm Done with the Bar Exam!

2007-07-27T21:53:00.001-05:00

Congratulate me! Tell me that I will enjoy working! Reassure me that I have not just gone over to the dark side!

Have I?

Harry Potter VII

2007-07-20T19:06:00.001-05:00

There may be one who is now like I once was, doubtful of this craze over some children's book. Doubt not. Harry Potter is really quite good.

I eagerly await Harry VII, but I have one big fear: is the ending going to spoil the series? I am not talking about a Matrix-style meltdown--Rowling is far too good for something that bad.

But I worry that Harry Potter may be like the show 24: really great and addicting while you're in it but B-grade entertainment when it's over. Am I still going to find myself going back to read my favorite passages once I know how it ends? Or is the whole thing a slave to this masterful slow crescendo of suspense?

One way or another, Rowling has achieved something incredible. But if Harry Potter is going to cross over into the realm of the great books, the ones we keep reading 100 years after their authors have died, she will have to end this book in a way that satisfies more than the needs of a wonderful plot.

If I may be cheesy for a moment, the books have had an appeal that is almost magical, but I feel like she will have to get beyond the magic, both in her plot and her substance, to triumph.

But what do I know? When was the last time I made a billion dollars writing books for kids?

On a side note, please don't comment about the plot here. I will be away from the omnipresence (which is ironic) taking the bar next week. I'd hate to have someone find out how it goes down here. And I'd really hate for that someone to be me.

Another Bird!

2007-07-18T08:16:00.000-05:00

It would appear that young birds, freshly tossed from the nest, find our porch a welcoming place. We've got a wee robin that perched on a chair yesterday afternoon and was still there this morning. It's weird, because he doesn't seem the slightest bit scared of me. If he only knew...

Please recall the young mockingbird (the one that appeared to be contemplating death) that spent some time on our porch this spring.

Maybe my abject hatred for all cats (except tigers) radiates and is somehow detected by newly independent birds. Well, to all birds and all friends, feel free to call my porch your own.

But, friends, I hope you do not have the pooping problem our young robin has.

Happy Birthday Melissa!

2007-07-17T08:32:00.001-05:00

Welcome to the Quarter Century Club.

Different Ways of Saying "Don't Touch" (a tribute to the far side)

2007-07-16T09:14:00.000-05:00

Precious Rainy Days

2007-07-16T08:57:00.000-05:00

It went so long without raining here that I became accustomed to the burning Alabama sun.

Now, it has rained so much that I cannot stand a break in the clouds. I feel like some kind of freak creature. Like Gollum, maybe.

On second thought, maybe the fact that I have done nothing but sit inside and study for a month has heightened my sensitivity to the sun... but that would have nothing to do with making us like raw fish and starting to mutter to ourselves.

Conservatives and Judicial Activism

2007-07-11T10:54:00.000-05:00

I've got a problem I've been mulling over. Adam Cohen takes the Roberts Court to task for being "activist." Activist seems to mean two things in this article, neither of which are particularly compelling. First, activist courts strike down laws. Second, activist courts overturn precedents.

Both species of "activism" do involve activity, I'll give him that. But there are serious problems with these definitions. I hope Cohen notices the tension between them. Imagine a court which struck down a law in term 1. Would overturning that decision in term 2 be activist? Or would it be the proper way to remedy a past wrong?

(This hypothetical situation is analogous to what happened in the abortion case this term. Congress passed a ban on partial birth abortions and the Court struck it down a few years back. Congress passed another ban specifically written to address the problems in the first law and the Court upheld it. People have accused the Court of reversing the earlier decision, but that is not what happened at all. And, even if it were, is reversing an activist decision activist?)

There may be an activist critique of the Roberts Court, but Cohen hasn't offered it. He has merely labeled all activity "activism" and said "Gotcha!"

About the War

2007-07-11T10:20:00.000-05:00

I have been hearing a lot about the war in Iraq this week.

Scratch that. I have been hearing a lot about the domestic politics of the war in Iraq. I've heard almost nothing about the war.

I may get in trouble for saying so, but I think that out country's best policy is to stay in Iraq and keep up the fight. This whole "surge" gig is just getting under way, but all I hear is how it has already failed. Really? On what evidence?

The question of whether we should have gone into Iraq in the first place is a hard question, and one that I am not sure how to answer. But when I look at the situation there now, I can't find any good reasons to leave.

Success in Iraq establishes a stable popular government under the rule of law. Failure makes a failed state and sends a signal to Iran and Syria that the way to beat the United States is to wait out the will of the people.

In the end, we can only win wars we want to win. If we don't want to win, we've already lost. So the politics are important after all.

If the war is lost in your mind, it is lost. If you have the will to win, there is a good chance of winning.

Do you have the will? Should you? Should I?

Sorry for Slow Days

2007-07-11T08:19:00.000-05:00

I can't believe how little I have been blogging. I don't if I should say "I'm sorry" or "you're welcome." Turns out studying for the bar is a little more intense than studying for mere exams...

And blogger has been giving me some formatting problems.

Fear not. I've still got lots to say. You'll hear from me today...

Dialogue on Libby and the Supreme Court

2007-07-09T08:32:00.000-05:00

Volokh has posted an interesting dialogue between a liberal lawyer and a conservative one discussing the Libby case and the Supreme Court's recent term.

Check it out.

Here's to you, Mr. Kick a Flaming Terrorist in the Balls Guy

2007-07-05T16:26:00.000-05:00

This guy kicked one of the Glasgow terrorists in the balls while the terrorist was on fire and trying to break into the airport. The British dude, a cab driver, kicked the terrorist so hard that he hurt his foot.

If nothing else excited ever happens to that guy, he's got something great to write on his tombstone.

How Many Law Students Are There In America?

2007-07-05T09:42:00.000-05:00

141,031. Be afraid.

There are too many lawyers in America. There are too few good ones.

Into which category will I fall?

Clinton: On Perjury & Pardons

2007-07-03T14:25:00.000-05:00

I think it is interesting to view the mess with Libby through the lens of President Clinton. President Clinton had lots of experience with pardons and at least a little bit of experience with perjury. Let me explain.

Libby's perjury consisted in making false statements to a grand jury. Clinton also made false statements to a grand jury. One was prosecuted, one was not. It is obvious from Clinton's statements preceding and during his impeachment that his perjury was not a big enough deal to warrant all the fuss. Lying is lying, and when one lies to a grand jury, the law provides consequences. Clinton faced political consequences; Libby faced criminal ones. In my opinion, neither of these men would have been tried but for the offices they held; therefore, I think political remedies are more wise and appropriate. However, both men appear to have broken the law. I am not defending either on legal grounds.

My "defense" of Libby and of Clinton is that the special prosecutor system is prone to excess. The presence of so much political pressure leads to indictments that would otherwise not issue.

But don't take my word for it. President Clinton wrote an extensive defense of the 450 pardons he made during his tenure. He wrote that "[i]n some cases, I granted pardons because I felt the individuals had been unfairly treated and punished pursuant to the Independent Counsel statute then in existence." In other words, he saw the convictions of some people as unjust because of the process by which they were investigated, indicted, and prosecuted.

I'm not here to support or attack President Clinton or Scooter Libby. I don't know if Libby's sentence should have been commuted. I don't know if President Clinton should have been indicted. I am too ignorant of the underlying facts.

But it does seem to me that one standard should apply to both men, since their conduct seems substantially similar. And one standard should apply to both Presidents when they make their pardoning decisions.

I am not getting the impression that one standard governs.

Howard Zinn & July 4th

2007-07-03T11:13:00.000-05:00

Check out Howard Zinn's thoughts on what we should do this Independence Day. The essay is called "Put Away the Flags."

Zinn was required reading my high school U.S. History class and he is much revered by fans of Good Will Hunting. Read his book (used copies are remarkably affordable and every library will have it). See if his reputation is well-deserved.

There are people who think lots of different things about our country, about its past, its present, and its future. Because of our system of government, it is at least partially true that our policies are driven by our views of the past.

Howard Zinn's is the defining voice of the past for a large segment of our nation.

Libby is Not Going to Jail

2007-07-03T10:41:00.000-05:00

Bush did not give Libby a full pardon, but he wiped out the prison sentence.

What do you think? Playing politics? Mitigating a political prosecution?

An Early Holiday or Why John Adams Gets a Bum Rap

2007-07-02T12:11:00.000-05:00

The second day of July, 1776, will be the most memorable epoch in the history of America. I am apt to believe that it will be celebrated by succeeding generations as the great anniversary festival. It ought to be commemorated as the day of deliverance, by solemn acts of devotion to God Almighty. It ought to be solemnized with pomp and parade, with shows, games, sports, guns, bells, bonfires, and illuminations, from one end of this continent to the other, from this time forward for evermore.

— John Adams

Adams was commenting on the adoption of Richard Henry Lee's Resolution, the first resolution adopted by the Continental Congress that asserted the right and fact of Independence. It seems that Thomas Jefferson was forever one-upping John Adams.

Catholic Archbishop in Zimbabwe Calls For Invasion of His Own Country

2007-07-02T10:06:00.000-05:00

If you don't know about Robert Mugabe and what he has done to Zimbabwe, check it out.

It really gets my attention when a Catholic Archbishop says "We should do it ourselves but there’s too much fear. I’m ready to lead the people, guns blazing, but the people are not ready."

Some facts on Mugabe's Zimbabwe:

The annual inflation rate is simply astounding--reports differ, but the true rate is somewhere between 2,000% and 15,000%. Zimbabwe's inflation rate was just 7% in 1980, the year Mugabe took over. In the United States, 4% is considered pretty bad.

Female life expectancy has fallen from 63 to 34 in ten years. Male life expectancy is 37.

Agricultural output has fallen almost 90%. Zimbabwe was once the breadbasket of Africa. It now cannot grow enough food to feed its own population.

So many people are dying in Zimbabwe from AIDS, starvation, and other preventable causes that the population is estimated to have declined by 4,000,000 since 2002, leaving only about 8,000,000 people left. I should note that a lot of the population decline may come from the mass exodus of men from Zimbabwe, many of whom head to South Africa. But, for as much as anecdotal evidence is worth, the rate of HIV infection in Zimbabwe's army is around 90%.

Zimbabwe's economy has shrunk by half since 1999.

Infant mortality is around 12%.

Unbelievable. What are we to do in light of such suffering?

Scrushy

2007-07-02T08:06:00.000-05:00

Richard Scrushy is in jail, and he is paying for it.

The judge sentenced Scrushy, the founder of HealthSouth Corp., to six years, 10 months in prison, three years of probation, 500 hours of community service, a $150,000 fine and $267,000 in restitution. He also ordered Scrushy to pay the costs of his prison stay - $1,952.66 a month while he is in prison plus $3,450 a year for supervision.

He is paying for prison like it were a hotel. Also, his attorney does not seem to optimistic on the prospect of winning an appeal.

"We're going to pursue all of his options, all of his appeals and we expect he will be vindicated," Leach said. "I'm disappointed by the length of the jail term but it could have been a whole lot worse," Leach said.

"It could have been a whole lot worse" is not something that press-savvy lawyers often say when they think they've got a winning appeal on their hands.

I keep checking Scrushy's website to see what his official response will be. Nothing yet.

The New York Times Weighs In

2007-06-30T14:44:00.000-05:00

The Times's editorial on the school cases (called, in what has to be gross overstatement, "Resegregation Now") speaks to the tension between negative and positive rights I highlighted earlier. Clearly, the editors of our paper of record are positive rights folks.

"The Supreme Court ruled 53 years ago in Brown v. Board of Education that segregated education is inherently unequal, and it ordered the nation’s schools to integrate."

This opening sentence begs the question that the Court had to decide in these latest school cases: does Brown require integration or mere desegregation?

The editorial calls the opinion "radical" and labels it "activist."

This claim of activism is especially interesting. While it is true that the Court did rule that local governments lack the power to determine admissions by counting by race, Brown did the exact same thing.

Even more ironically, the editorial cannot seem to agree on the meaning of activism. At one point, it reads "This decision is the height of activism: federal judges relying on the Constitution to tell elected local officials what to do."

At another, "It has been some time since the court, which has grown more conservative by the year, did much to compel local governments to promote racial integration. But now it is moving in reverse, broadly ordering the public schools to become more segregated."

Put aside the obvious misstatement that the Court ordered schools to become more segregated. That's pure nonsense; however, it is true that this decision could lead to less integration in schools located in neighborhoods dominated by one race. The important issue raised by these two statements is why it is "activist" to forbid schools to count by race but not activist for a court to compel a school to do so.

Whether you agree or disagree with the school cases, it is impossible to hold up this editorial as an example of clarity of thought and reason.

Don't get your thoughts on the Supreme Court from the New York Times editorial page. I am no legal genuis, but the task of dismantling this doesn't require much more than middle school civics and a casual perusing of chapter 1 of "The Idiot's Guide to Logic."

Form your own opinions. People are all too willing to form them for you, and you can tell how well qualified they are.

London Terror Plot

2007-06-29T11:53:00.000-05:00

Note to terrorists: if you try to bomb Picadilly Circus, you are going down.

My Thoughts on the Seattle & Louisville Cases

2007-06-28T10:53:00.000-05:00

Here goes nothing.

This case hinges on a debate that has endured in legal philosophy for centuries: are rights positive or negative? In other words, are freedoms to be considered as freedoms from something or as freedoms to something? Negative rights are freedoms from government action. Positive rights are freedoms to have to government act on the right-holder's behalf.

The Chief Justice's opinion for the Court (which is a majority in some respects and a plurality in others) and Justice Kennedy's concurrence in judgment both take a fundamentally negative view of the rights arising under the Equal Protection Clause: individuals are given the freedom, under the Equal Protection Clause, to be free from having the government classify them on the basis of their race. The Chief Justice makes this point abundantly clear: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." In this paradigm, segregation is a positive governmental action and each citizen is and should be free from such positive acts. We are all free from "de jure" segregation- active segregation by law.

Again, Chief Justice Roberts:

Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again--even for very different reasons.

To be clear, Justice Kennedy writes his own opinion to argue that citizens are only free of racial classifications to the extent that the government making the classification can show that there is a compelling interest in making it and that there is no way to achieve that interest without counting by race. He leaves the door open to allowing state action to remedy "de facto" segregation, which is segregation in fact. De facto segregation (which the majority may call a contradiction in terms) arises from housing patterns: races live near each other and therefore neighborhood schools reflect the narrow racial mixture of the neighborhood not the racial mixture of the city. Justice Kennedy's position is that there may be some positive right relating to segregation, even de facto segregation, but it is very hard to find an interest compelling enough, and a law tailored narrowly enough, to justify the exercise of that right.

The dissents' position embraces positive rights. They view the right in Brown v. Board of Education as a positive right: the right to attend an integrated school. This perspective aims farther than the negative rights view because it requires that the courts enforce laws that create positive integration, not merely the absence of segregation. Consider this excerpt from Justice Breyer's dissent:

In this Court's finest hour, Brown v. Board of Education challenged this history and helped to change it. For Brown held out a promise. It was a promise embodied in three Amendments designed to make citizens of slaves. It was the promise of true racial equality--not as a matter of fine words on paper, but as a matter of everyday life in the Nation's cities and schools. It was about the nature of a democracy that must work for all Americans. It sought one law, one Nation, one people, not simply as a matter of legal principle but in terms of how we actually live.

The verbs in this passage show the emphasis on positive rights: challenge, change, make, work, and seek.

Justice Thomas's concurring opinion challenges this positive rights approach:

Regardless of what JUSTICE BREYER's goals might be, this Court does not sit to "create a society that includes all Americans" or to solve the problems of "troubled inner city schooling." Ibid. We are not social engineers.

The negative rights crowd aims at color-blindness (per Justice Thomas); the positive rights crowd would allow local governments to use "race-conscious criteria" to further the interest of integration as long as those criteria do not involve "invidious discrimination."

In this case, Justice Kennedy charted a middle course between negative and positive rights. His opinion requires schools to start with a negative rights approach and only allows them to proceed to positive integration (i.e., directly counting by race) if the race-neutral means fail to achieve the compelling interest. He denies that color-blindness is a workable constitutional principle, though he clearly prefers it to counting by race.

I think that Justice Kennedy's approach, while it is a huge mess, will have the effect of forcing states into embracing the negative rights approaches. Before a school board can start counting by race, it will have to show that it exhausted the race-neutral alternatives. Practically, I don't think that school boards will be willing to create fully individualized interview processes addressing each student's skills and needs or pay for building schools so that they naturally draw from diverse neighborhoods. Without taking these steps, I don't think that a board will be able to satisfy Justice Kennedy's requirements, and his opinion is the law.

So what do you think? Is there a right to integration? Is it the job of the Supreme Court to say that the way to end racial discrimination is to stop discriminating by race? Is it the job of judges to determine which forms of discrimination are invidious and which are benign? Which side followed Brown?

Really good commentary is now available at scotusblog and bench memos.

School Cases are In

2007-06-28T09:39:00.000-05:00

Find them here, consolidated into one opinion (with concurrences and dissents, it runs 185 pages).

In short, the schools in these cases failed to carry their heavy burden of showing that their race-based plans were narrowly tailored to meet a compelling governmental interest; therefore, the plans were struck down.

I (obviously) haven't read the full opinions yet, but I expect that the effect of Justice Kennedy's concurrence, limiting this case to the narrow tailoring aspects, prevent this case from being "the big one" that some people expected.

However, here are some passages from the opinions that may make it broader than it presently appears. From Justice Kennedy's concurrence:

A sense of stigma may already become the fate of those
separated out by circumstances beyond their immediate
control. But to this the replication must be: Even so,
measures other than differential treatment based on racial
typing of individuals first must be exhausted.

We'll have to see. I'll pass along the thoughts of the really smart people at scotusblog or volokh when I can.

Today is the End of the Term

2007-06-28T09:01:00.000-05:00

There are 4 opinions due to be announced today (3 if the two school cases only yield one opinion). When I can gather my thoughts about them, I'll have something up. I am also working on a review of the term as a whole, although I seriously doubt my ability to evaluate such a weighty topic in a manner worth reading.

Well, lack of ability has never stopped me before. What I lack in ability I make up for with enthusiasm!