Begging The Question

Thursday, April 22, 2004

Hippies are the third largest source of air and water pollution, behind Dow Chemical and Mexican truckers.

Happy Earth Day !!!

Celebrate by hugging a tree today or, instead of studying for Corporations, go here and download the EPA's Earth Day coloring book. Be sure to recycle it when you are finished.

I am going to celebrate by recycling the cheap laser printed photos of President Bush that Ed Gillespie has been spamming my mailbox with.

Wednesday, April 21, 2004

Starting at Left Tackle, Ruth Bader Ginsburg
I saw that Justice Ginsburg has ordered the NFL to reply to Maurice Clarett's petition to vacate the Second Circuit's stay preventing him from entering this weekend's NFL draft. On the merits of the matter, I'm with Greg Easterbrook. But the story had a neat little tidbit in it: "Ginsburg has given the NFL until 9:30 a.m. ET Thursday to provide its written argument, Paolantonio reports. After that, Ginsburg can issue a ruling based on the written arguments from each side, or order a hearing in front of her with representatives from both sides, and then issue a ruling." (emphasis mine)

I think it would be funny if Justice Ginsburg ordered Clarett to line up against, say, Warren Sapp, to see if he really is ready for the big leagues. Of course, that might be unfair -- Justice Ginsburg understands the importance of having big, fat blockers clearing a path.

Actually, I knew that a Justice can order a hearing on a stay petition, even though it's rare. The reason I knew it is because I read about it in the wonderful book Contempt of Court: The Turn of the Century Lynching That Launched a Hundred Years of Federalism, by Mark Curriden and Leroy Phillips, Jr. That book is right up there with Gideon's Trumpet as a rich and detailed analysis of a Supreme Court case. The difference is that the case in Contempt of Court has been forgotten, while Gideon v. Wainwright is properly regarded as a landmark case.

Ed Johnson was a black man falsely convicted of rape in 1906 Tennessee. He was sentenced to death, but two lawyers set out for Washington by train to save his life. They got a hearing before the first Justice Harlan on their petition to stay Johnson's execution. Harlan granted the stay, but the locals back in Chattanooga were so incensed that they broke Johnson from the jail and lynched him. From part of an account of the event:
When the bridge was reached, the mob took Johnson a little beyond an arc light, put a rope around his neck, threw it over a beam, and swung him up....The first time Johnson was swung up, the rope broke or slipped and he fell. He was swung up a second time and shot. After some shots were fired, Johnson again fell, and while lying on the ground was again shot. It was about ten minutes after the mob had reached the bridge until Johnson was killed. It is apparent that a dangerous portion of the community was seized with the awful thirst for blood which only killing can quench, and that considerations of law and order were swept away in the overwhelming flood.
The Supreme Court was so upset at this defiance of the stay that it convened, for the only time in its history, a criminal prosecution for contempt of the Supreme Court, charging the sheriff, the jailers, and the lynch mob. The Court appointed a special master to take evidence, and eventually issued its ruling as United States v. Shipp (Shipp was the sheriff), finding several of the defendants guilty. The quote above comes from the majority opinion, along with this nice passage:
In our opinion it does not admit of question on this record that this lamentable riot was the direct result of opposition to the administration of the law by this court. It was not only in defiance of our mandate, but was understood to be such....When this court granted a stay of execution on Johnson's application it became its duty to protect him until his case should be disposed of. And when its mandate, issued for his protection, was defied, punishment of those guilty of such attempt must be awarded.
The old story goes that when Chief Justice Marshall's court had ruled against him, President Andrew Jackson said, "John Marshall has made his decision; now let him enforce it." Well, this is how John Marshall Harlan enforced his decision. Contempt of Court is not only an intimate portrait of Johnson and his lawyers, but also a detailed yet readable analysis of the legal case and the issues of race and federal intervention in state court cases that are still with us. I strongly recommend it. It's nice for the trivia value of knowing that one can be in contempt of the Supreme Court, but the Shipp case is important enough that it's a shame it's been forgotten.

And my discussion of Contempt of Court reminds me of recent comments by David Bernstein and Tyler Cowen at the Conspiracy. They were talking about why publishers don't give review copies of books to bloggers. Their blog, of course, is read by many more people than some of the print journals to which publishers do give free books. Bernstein suggests that publishers don't "get" blogs yet, while Cowen notes that most blogs don't offer book reviews: "I've also noticed how frequently neophyte bloggers will simply mention a new book as 'interesting' and think they have given their audiences something." I doubt that Professor Cowen is a regular reader of BTQ, but if he were, he would have seen my review of Positively Fifth Street or my review of Confessions of a Tax Collector. I hope that in those, as well as my briefer discussion of Contempt of Court, I have given readers something more than "interesting."

I'm not expecting publishers to start sending me books, although they are welcome to (email me for a shipping address). As it happens, I spent about a year and a half working for an academic publishing company a few years ago. Part of that time was in the Marketing Department, which was fun because, as a nonprofit, we didn't feel much pressure to sell a lot of books. But part of my job was sending review copies to journals and magazines and newspapers. Five years ago, of course, no one was thinking about blogs the way we do now, but my guess is that the folks there now probably aren't thinking about sending books to blogs. I guess I would want to see some evidence that a review on a blog causes people to buy the book. That's not crazy to imagine, especially given how many blogs are run by professors -- professors who can make their students buy lots of copies of a text for class.

I'm no professor, and I'm going to keep reviewing books whether I get them for free or not. But this has sparked some interest for me. I would really appreciate knowing if any readers have bought a book I reviewed or mentioned here. Also, if I get a chance, I might write to my old boss at the Press to get her thoughts.

Hmm. From Maurice Clarett to John Marshall Harlan to my old job at the University Press in one blog post. Hope you didn't get dizzy.

Somebody Got An "F" In Imagination
President Bush last week:
[T]he truth of the matter is, most in the country never felt that we'd be vulnerable to an attack such as the one that Osama bin Laden unleashed on us. We knew he had designs on us, we knew he hated us. But there was a -- nobody in our government, at least, and I don't think the prior government, could envision flying airplanes into buildings on such a massive scale.

Actually, Mr. President, NORAD conducted simulation exercises well before September 11 of hijacked planes being crashed into, among other targets, the World Trade Center. A planned simulation of a crash into the Pentago was scrapped -- by the Pentagon -- as being too unrealistic.

Granted, there were some key differences between these tests and what actually happened on September 11. The tests were usually aimed at air defense against international flights, rather than, say, response on the ground or hijacking a domestic flight. And I don't know if the simulations were of several simultaneous hijackings. I was chatting with Fitz about this, and he noted that this very well could have been one of many tests, and it only looks significant in hindsight. We don't know if this was one of, say, 100 scenarios run by NORAD, or one of 1,000, or one of 10,000.

But I am sick and tired of hearing people say that what happened on September 11 was a "failure of imagination" when it's beyond doubt that people were in fact imagining it. As further proof, this excellent Slate piece about the Columbine killers notes that one of their designs on infamy was to hijack a plane and crash it into New York City. If a couple of high schoolers could dream this up five years ago, why not anybody in this or the previous Administration?

I'm not trying to indict anyone here. You can draw your own conclusions about blame or what anybody should have done. And it's not exactly NORAD's job to beef up airline security or make first-responder plans for fire departments. But this isn't exactly a failure in the lines of communication, either: the Pentagon at least paid enough attention to the planned Pentagon-crash test to scrap it. But I have had it with people saying that the only ones who could have thought of something like this were thuggish terrorists.

The other thing I'm tired of is all of President Bush's qualifiers about what people saw coming. We didn't imagine hijackings on this scale, we didn't imagine planes crashing into these buildings, we didn't imagine planes being hijckaed from Boston on a Tuesday morning...whatever. Fitz suggests I'm trying to make a Palsgraf-style foreseeability argument, that is, even if no one foresaw this specific harm (although some did), enough people knew or should have known about the general harm to have imposed upon them a duty to do something.

In the same press conference linked above, the President is asked:
[Y]ou pointed out that it [the August 6 Daily Briefing] did not warn of a hijacking of airplanes to crash into buildings, but that it warned of hijacking to, obviously, take hostages and to secure the release of extremists being held by the U.S. Did that trigger some specific actions on your part and the administration, since it dealt with potentially hundreds of lives and a blackmail attempt on the United States government?
The President answers, in the midst of a lot of rambling about how he gets intelligence information and that this briefing didn't tell him anything new (!), "[H]ad I had any inkling whatsoever that the people were going to fly airplanes into buildings, we would have moved heaven and earth to save the country."

Fine, we trust your sincerity about that, as far as it goes. But even if the briefing didn't come right out and say, "they want to hijack planes and fly them into buildings," it clearly said, "they want to hijack planes." And Bush said that wasn't news to him. My point is that there wouldn't have been any planes crashing into buildings if they hadn't been hijacked in the first place! So what was this or the previous Administration doing to prevent hijacking generally? Damn little, it appears. I'm not saying they should have grounded all air traffic or instituted full body-cavity searches on every passenger, but surely they could have done something more than nothing. And to all the complaints that any tougher measures would have reduced the number of air travellers to the point that the airlines would have experienced financial distress, I say that I would prefer to have had to bail them out a little then as opposed to a lot after September 11. Moreoever, while I get the point of counterfactual hypotheticals about what might have been if we had invaded Afghanistan prior to September 11, I fail to see how that would have stopped cells of terrorists well inside America by then. And even if the American people would have gotten quite upset at such a pre-September 11 military action, I think Americans would have been more willing to go along with some tighter airline security measures in summer 2001 if the White House had announced that we had credible threats of hijackings.

I'm sorry for the rant, but I swear I will go apey the next time I hear the words "failure of imagination." If that's the real problem, hire some more imaginers. I hear they're downsizing at Disney, and more philosophy majors are graduating and moving back home every year. (Link to NORAD story via the Dallas Morning News editorial board blog (4/19, 5:53 p.m.).)

By the way, speaking of flying, I will be flying on Friday to the city where I'll be clerking starting this fall, so I might be out of touch for a few days around this weekend. I will be doing very little blogging from about Thursday evening to Wednesday morning. Just wanted to give readers a heads-up.

It's called Six Flags over Texas because Texas was governed by six sovereign nations. There's Texas, America, Mexico, France...
I don't know how France got in there...

Today is San Jacinto Day, the day on which Texans mark the anniversary of the Battle of San Jacinto in which Texas won its independence from Mexico in 1836. How will I celebrate? Mesquite grilled steaks, cold beer (imported from Texas), a rousing rendition of "Texas, Our Texas" and then I'll head on down to the local cineplex to watch The Alamo.

Some readers may want to note that the Fightin' Texas Aggies also observe Aggie Muster today.

Say it ain't so, G.I. Joe
In this post I joined Citizen Smash and Phil Carter in calling for new Department of Labor regulations that would provide for debarment as a penalty for government contractors who refuse to rehire reservists and National Guardsmen wounded in the line of duty (Jason Van Steenwyk expressed skepticism about such a regulation and urged everyone to consider the unintended consequences of such a penalty in this post). The call for new regs came about as a result of this story in the Seattle Times detailing the account of an Oregon National Guardsmen wounded in Iraq. His former employer, Securitas Corporation, refused to rehire Guardsman Dana Beaudine after he returned from Iraq. Beaudine was wounded in Basra and had been recommended for the Purple Heart.

Well, the Seattle Times has an update on this story and it does not paint a pretty picture of Mr. Beaudine. In investigating Beaudine's claim the Seattle Times found that his commanding officers and NCOs disputed the claim that Beaudine was wounded by hostile fire in the southern Iraqi city of Basra.
In fact, no one from his unit contacted by The Times could corroborate Beaudine's story.

"You have been fooled," Command Sgt. Maj. Gerald Schleining Jr. wrote in an e-mail to The Times from Kuwait after the story was published. "Beaudine was never injured in armed conflict. He has never been to Basrah or Iraq for that matter."

Capt. John Robinson, who said he was Beaudine's commander in C Company of the 1st Battalion, 162nd Infantry Regiment, also disputed Beaudine's account.
Beaudine continues to stand by his version of the events but has been unable to produce any witnesses to corroborate his account. The officer who recommended Beaudine for the Purple Heart - which recommendation has since been withdrawn - was a member of the medical staff at Ft. Lewis in Washington (where Beaudine was recovering from nerve damage to his leg) and was not a member of Beaudine's unit deployed to Iraq.

This new twist in the story is disappointing to say the least, but it does not change the fact that Securitas has been found by the Department of Labor to be in violation of the law, nor does it lessen my support for new regulations permitting debarment of government contractors for failure to rehire wounded combat veterans. However, it certainly makes Beaudine an unsympathetic "victim" and could likely slow the momentum behind the push to add new regulations permitting debarment.

(Update via Phil Carter who got the word from Mudville)

Tuesday, April 20, 2004

EPA regulations do not apply in foreign countries, so no changes are being made to reduce the harmful environmental effects of the nuclear warheads.
Jason Van Steenwyk, purveyor of the fine blog Iraq Now has finally found the answer to the burning question of where all the money for body armor and armored Humvees went, thanks to James Dunnigan at Strategy Page:
In order to comply with EPA (Environmental Protection Agency) regulations, and at a cost of about $5.2 million per ICBM, the rocket motors on 500 Minuteman III missiles will be replaced with new ones. These rockets will emit less toxic chemicals when used...

Thus, if the Minuteman III ICBMs have to be used in some future nuclear war, their rocket motors will not pollute the atmosphere.
And they say that the Bush Administration is the most environmentally destructive in the history of the world.

Isn't this the environmental equivalent of rearranging the deck chairs on the Titanic?

Monday, April 19, 2004

The Rule Regarding Unpublished Opinions Is A Wolf In Sheep's Clothing
I have been meaning to say a few more words about unpublished opinions, but have been way too busy lately. Once again, however, I have been rewarded for my laziness: someone else said it better than I could, so I can just link instead of blog!

I have previously discussed unpublished opinions and the proposed amendment to the Federal Rules of Appellate Procedure that would allow citation to them. You can go there for most of my thoughts on the matter, the primary one being that I am against citation to unpublished opinions because I write a lot of them. (Cue Dirty Harry: "A man's got to know his limitations.")

Howard Bashman noted here and here and here news that the Advisory Committee approved the rule, although there are still a few steps to go in the process. The recent item that spurred me to want to say a little more is Mr. Bashman's latest monthly column, in which he discusses the proposed rule.

I don't want this to seem like another example of Bashman-bashing. And I'm not sucking up to the guy, either. It just seems to me that Howard is a widely-read advocate in favor of the rule amendment, and I would like to add my sotto voce opposition.

Anyway, here is the portion of the column I'm interested in:
Because unpublished opinions will not miraculously transform into precedent simply by being cited in a brief filed in a federal appellate court, allowing such citations will not meaningfully increase any party's cost of legal research. Lawyers are under no obligation to conduct research into authorities that may be persuasive to, but are not binding on, the court in which an appeal is pending. Because unpublished opinions will remain non-precedential even if the proposed new rule is adopted, attorneys will be free to conduct any amount (including no amount) of legal research into such rulings.

I have two responses to this. First, does Howard really think that attorneys will conduct no research into unpublished opinions, even assuming they aren't "precedent"? How much does he look into them? My guess is some quantity above zero. I'm not quite ready to say that attorneys have a duty to investigate unpublished opinions now, but I would be much closer to arguing so if the circuit courts give parties free rein to cite them. Is it really impossible to imagine a malpractice or ineffective-assistance-of-counsel claim based on a lawyer's failure to discover a citable opinion? Moreover, can anyone imagine a young associate at a big firm not toiling through all the unpublished opinions because they aren't strictly precedent, perhaps altruistically to save the client from some padded bills? I will most certainly defer to Howard's extensive experience as an appellate litigator, but I think that adoption of the proposed amendment would make most conscientious attorneys feel duty-bound to scour the unpublished opinions. After all, if they're meaningless enough to ignore (as Howard suggests one can do), how important could it be that they be citable at all?

The second issue I take with Howard's column is the notion that the proposed amendment does not make unpublished opinions "precedent," magically or otherwise. Here is where I have been pre-empted by someone who says it better than my meager abilities would allow. Mr. Bashman's latest interviewee in his "20 Questions" feature is Northern District of Illinois Judge Milton Shadur. Howard asks (question #15) the judge about the proposal, notes the judge's opposition, and suggests "with respect, some of the reasons you offer are not persuasive." Howard says that the rule "would not eliminate non-precedential opinions." In response, Judge Shadur says that the rule "in the most meaningful sense targets the concept of nonprecedential opinions." The judge goes on to say, "I tend to disfavor the real thrust of the change (though not its literal language) for both jurisprudential and practical reasons." While acknowledging that "[m]ere citation as such obviously poses no concerns," the judge sees "the true difficulty as stemming from the goal sought to be accomplished by those who cite such opinions and what that in turn would presage for the preparation of the opinions themselves."

I know I couldn't have said it better. I don't think Judge Shadur is making a slippery slope argument. I think the concern is that the proposed rule would make unpublished opinions precedent in all but name. While that does give a court enough leeway to refuse to follow an unpublished opinion, it would make it more likely that a court would have to (a) write unpublished opinions that were more in-depth and reasoned, or more closely supervise staff attorneys who write them; and/or (b) discuss unpublished opinions cited by the parties and explain why the court isn't following them in the present case.

Isn't the very nature of precedent that a court fully explicates the reasons for its decisions, requiring later courts to explicitly agree or state the reasons the prior decision doesn't apply here? If so, how is that different from what would take place if parties are allowed to cite unpublished opinions? They become functionally precedential, even if they aren't formally precedential.

If the new rule passes, I find it hard to imagine a court saying that "We have said X in umpteen unpublished cases cited to us by counsel. However, today, in this published case, we say Not-X." Even when the court says as much, surely the thorough judge would explain why the rule of the unpublished cases didn't apply here or was wrong to begin with. To do otherwise would make it appear that the court was capricious, and that the outcome depended on little more than whim. To the extent the court feels bound, as a matter of intellectual or judicial integrity, to explain or distinguish or overrule or otherwise address its unpublished cases, they become, at a minimum, quasi-precedent.

Perhaps they are so now. I have written memos to the court advising that several unpublished decisions have said X or Y or whatever. Sometimes the rule in those cases is taken from other circuits, but this court hasn't gotten around to issuing a published case on the matter. Sometimes they depend on the court's procedural mechanisms, which we're far more likely to see dozens of cases dealing with before the court is presented with one in an arguable posture. I can think of other reasons to discuss unpublished cases that I think fall short of the specter of of an invisible justice system, but often we mention them simply to say to the court that there isn't a published case on the issue and we would appreciate having one to cite.

I have seen this analogy in a law review article I can't recall now, but think of published opinions as a form of collateral estoppel. A party is essentially estopped from arguing that X is not the law once a published opinion comes down. That opinion is binding not just on the party before the court, but on all subsequent parties. Shouldn't a court be careful when it forecloses a line of argument? Litigators don't want a case with bad facts to come out before theirs, because they suspect it will bind their hands. That's why test cases present the facts in the best possible light, with the most sympathetic parties. The result in those cases will bind others, and so they wait to bring a case in which they can get a good rule for future cases. I think something of the same mechanism takes place in a court. I think judges are conscientious and really try to get the right answer in every case. But before they issue an opinion that will bind not just the present parties but all parties, they want to be very, very sure.

Note that this is essentially what the Supreme Court does -- it allows to stand plenty of cases whose result it would disagree with before taking a case as a vehicle for announcing that rule. I know the difference between appeals to the circuit courts and petitioning for a writ of certiorari from the Supreme Court is significant -- the courts of appeals can't wait for the best case. But they also have to handle more than 80 opinions each year. They can't do that without unpublished, nonprecedential opinions.

Finally, if like Judge Richard Arnold on the Eighth Circuit you think that every opinion a court issues is precedential by its nature as a judicial pronouncement in a common law system, you won't buy this. But you also shouldn't buy the proposed rule as sufficient, either. I think Judge Shadur is right that the ultimate goal of most of the amendment's backers is making all opinions, published or not, precedential. If that's where they want to take us, they should say so, rather than making opponents of the amendment out to be Chicken Littles clucking that the sky is falling. If they don't want full precedential value accorded to every opinion, and would be content with the proposed rule as the final word on the matter, they should say that too.

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    The views presented here are personal and in no way reflect the view of my employer. In addition, while legal issues are discussed here from time to time, what you read at BTQ is not legal advice. I am a lawyer, but I am not your lawyer. If you need legal advice, then go see another lawyer.

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