Begging The Question

Friday, April 28, 2006

Why can't cell phones block numbers?
After several long months of being overworked and understaffed at the office, and near continuous home improvements (pictures coming soon), I finally have the time to post and something to talk about.

A few years back, when we moved in together, Mrs. Haff and I bought some furniture. She didn't like my old stuff, and I didn't like hers. We did the whole "no payments, no interest til..." and duly paid off the balance. Right about the time we were finishing paying it off, I started to receive phone calls that we had a large unpaid balance and were in danger of being reported to a collection agency. I was initially worried, but once I calmed down and thought about, I realized this had to be a scam. (This started to occur right around the time that stories were coming out about consumer credit databases being hacked.) I called the credit company directy, not using the number the caller gave, and they assured us the balance was fine. When I got the final statement showing a $0 balance, I was sure to file it away safely. I began ignoring the calls through the magic of caller ID, and after a while, they stopped.

Well, they started up again a few months ago, only this time with a new script. Two or three different people have left messages and the script is always the same. "Sebastian Haff, this is Joe Shmoe. It is very important and time sensitive that you call me back as soon as you get this message. I am required to make an important financial decision on your behalf. It is in your best interest to call us back at (phone number)." And that's it. No company name. No reason for the call. No reference as to what it's regarding. I ignored them as I did before.

Only they got more persistent. Instead of calling once every week or two, they started calling once a day. Again I ignored the calls, but was starting to get annoyed, so one evening while I was out picking up dinner, they called. I decided to answer.

SH: Hello?
Joe X: Hello is this Sebastian?

SH: My name is Sebastian.
Joe X: Is the Sebastian Haff?

SH: My name is Sebastian. What was your name again?
Joe X: Joe X

SH: And what company do you work for?
Joe X: Company A.

SH: And what is the address of your company?
Joe X: That is not relevant to this conversation.

SH: Are you going to give me your address?
Joe X: That information is not relevant.

SH: If you're not going to give me your address, then I have no further interest in this conversation.
Joe X: You do have an interest. Sebastian I'm calling in regards to a credit account with Company X that is seriously past due. I want to know if you plan on working with us to resolve this situation.

SH: I've never had an account with them.
Joe X: I am speaking with Sebastian Haff.

SH: My name is Sebastian.
Joe X: I'm trying to verify that I'm speaking with Sebastian Haff. I need you to verify the last 4 digits of your Social Security number.

SH: I don't give that information out over the phone.
Joe X: Can you verify that the last four digits of your Social Security Number are (insert wrong 4 digits here).

SH: I don't give that information out over the phone.
Joe X: (becoming annoyed) I'm trying to verify that I'm speaking with Sebastian Haff. Is your address (insert wrong address here)?

SH: I don't give that information out over the phone. Will you give my your address?
Joe X: That information is not relevant.
SH: In that case I'm done. hangs up

So I hang up the phone and wait patiently for the return call I know is coming. Sure enough, about a minute later:

SH: Hello?
Jim X: Hello Sebastian. We were trying to transfer the call here and I think we got disconnected. SH: Right

Jim X: Sebastian I just need to confirm that I'm talking with the right person. I need you to verify the last four digits of your Social Security number.
SH: What company do you work for?

Jim X: Company A
SH: And where are you located?

Jim X: Before I give that information out, I need to verify I'm speaking with Sebastian Haff.
SH: Why won't you tell me where your company is located?

Jim X: We don't want to give that information out to third parties.
SH: Um, you called me.

Jim X: I need to verify I'm speaking with Sebastian Haff.
SH: I have no interest in talking with you if you won't tell me your address.

Jim X: (becomming annoyed) Fine, I'll give you our address. It's (insert probably phony address here. Now will you confirm that I'm speaking with Sebastian Haff.
SH: Thank you, now that I have your address, if it is correct, I can file my complaint.

Jim X: And who are you going to file a compaint with?
SH: The Better Business Bureau, the FTC, and probly the FBI.

Jim X: (in a significantly higher voice) The FBI!?
SH: Yes.

Jim X: For what!?
SH: Oh, attempted fraud and harrassment come to mind.

Jim X: Fraud? How do you figure?
SH: Well let's see. You're calling to get my personal information to collect on an account I've never had. Sounds like attempted fraud to me.

Jim X: Well, you do what you feel you need to do...
SH: Thanks, I will.
Jim X: ...but you're playing a very dangerous game.
SH: No, I'm really not. hangs up

So I hang up on them again, pick up dinner, and head home. They called again while I was driving back to the house, but I'd pretty much exhausted my entertainment value from them. I looked up the company name they gave me, and on the first page of Google results were articles about the Attorney Generals of 3 different states (none mine) taking action against a telemarketing company doing business as the name they gave me.

The phone calls still come, but less frequently. Usually now the message that gets left is elevator music, followed by an automated message saying "All our representatives are busy. This phone call is regarding financial business. Please stay on the line."

So with all that being said, I've put my number on the Do Not Call list. Something I should have done a long time ago, I know. But it got me frustrated as to why I can program numbers into my cell phone to call out, but I can't program numbers in to block. Seems like the technology aspect is fairly simple, and I know there must be demand for it. The only conclustion I've left with is that there is a legal reason the phone companies don't allow this, but damned if I know what it is.

Thursday, April 27, 2006

What Would Jimmy Do?
Caution: Serious law nerdery ahead. Proceed at your own risk.

I was thinking today about all these folks like Feddie who are praying/hoping that Justice John Paul Stevens will retire some day soon. The common speculation from them is that Stevens, who was nominated by President Ford, remains at least nominally a Republican and would desire a Republican to appoint his replacement.

Maybe so. Such a motive appears to have been the reasons that Justice William Brennan and Justice Byron White chose to retire when they did. Brennan, an Eisenhower appointee, retired during the first Bush presidency, even though by then he was considered much more liberal than the other Republican-appointed Justices. In a mirror-image fashion, White, a Kennedy appointee, voted with the conservatives often during his service, but retired while Bill Clinton was in office. The folks who have already booked a hall for the Stevens retirement bash hope the senior Associate Justice follows this path.

It's worth noting that not all Justices are so loyal to the party. Chief Justice Earl Warren and Justice Harry Blackmun are recent examples. Warren, another Eisenhower nominee, announced his retirement during President Johnson's term, but ended up staying on until after Nixon took office because of the failed nomination of Justice Abe Fortas for Chief. Nixon appointed Blackmun, who later retired during Clinton's term. Both of these Justices were decidedly more liberal in their voting than their nominators would have suspected, and both seem to have made a political consideration to retire when they did. Blackmun famously (or infamously, depending on your perspective) issued a rather blatant notice of his impending retirement and the political concerns tied to the choice for his successor in his opinion in Planned Parenthood v. Casey. So maybe Justice Stevens wants to take this approach and have a successor who is probably more likely to vote like he did. However, opposite-party transitions happen frequently and not always by design; Thurgood Marhsall's retirement comes to mind.

All of this got me thinking about Justice Stevens's predeccesor on the Court, Justice William O. Douglas. Douglas was the longest-serving Justice in the Court's history, but undoubtedly wanted to serve even longer; it took great effort to convince him to retire after a stroke. In one of history's rich little ironies, Gerald Ford, who had led an effort to impeach Douglas when Ford was in the House of Representatives, then had the opportunity to appoint Douglas's successor. And while I wouldn't say that Stevens is as liberal as Douglas, I'm pretty sure he's more liberal than Ford thought he would be.

Now to the point of this whole post. What if Douglas hadn't had his stroke? What if the FDR-appointee and committed New Dealer had held on until a Democrat was back in the White House? Jimmy Carter, of course, was the only President to serve a full term and never make a Supreme Court nomination. (A couple of multi-term Presidents have had four-year terms without a nomination but made them during other terms.) So I got to wondering who Jimmy Carter might have appointed to the Supreme Court.

I'm sure I could dig up an old newspaper or magazine article with contemporary speculation, but I didn't want to put that much effort into it. I just did a little browsing and ruminating and came up with a few possibilities. In no particular order:
  • Judge Frank Johnson. Johnson was a federal district judge in Alabama when Carter took office. Appointed by Eisenhower, Johnson was a courageous champion for civil rights who steadfastly implemented the Warren Court rulings. Carter elevated Johnson to the Old Fifth Circuit. (He later transferred to the Eleventh Circuit and served until 1991.) According to the linked Wikipedia article, Carter nominated Johnson as FBI Director, but Johnson withdrew for health reasons. I hadn't heard that story, but it seems apparent that Carter was familiar with Johnson and thought highly of him, so a Supreme Court nomination doesn't seem outside the realm of possibility. I said I wasn't ranking these names, but the more I think about it, the more I think Johnson would have been the leading contender.
The next group comprises some well-known federal appeals court judges who were nominated by Democratic Presidents, had achieved some prominence by the time of the Carter administration, and seem likely to have been included on short lists of that era. Naturally, there are always some dark horses or less-prominent names on those lists, but these would have been in the discussion, I'd have to think. Of course, I wasn't following politics that closely during those years, so feel free to correct me if any of these judges were not generally considered for potential nominations or if I'm missing other judges who should be on this list.
  • Judge James R. Browning. A Kennedy appointee, Browning was a long-serving Ninth Circuit Chief Judge and is the namesake of that court's main courthouse. A Montanan, Browning might have seemed a fitting replacement for Douglas, who was famous for being an outdoorsman, even if some of that reputation was earned by showboating.

  • Judge Frank M. Coffin. Coffin was Chief Judge of the First Circuit by the time Carter took office. He had been appointed by President Johnson. Coffin has written extensively about appellate advocacy, and would have been one of the few northerners on the Court at that time. Even more counterfactually, had Coffin been nominated to the Supreme Court, would he have been followed so soon by fellow First Circuit Judges Souter and Breyer?

  • Judge Ruggero Aldisert. Aldisert was a Johnson nominee to the Third Circuit. He wrote even more prolifically than Coffin. He might have been appealing to Carter as the Court's first Italian-American Justice, a distinction that later fell to Justice Scalia. Grasping at straws for other reasons for nominating Aldisert, Carter won Pennsylvania's 27 electoral votes by less than 3% in the 1976 election, and a switch in that state would have won the race for Ford. So Carter might have seen political benefits from nominating a Pennsylvanian to the Supreme Court, if anybody cared about that kind of thing.
While sitting federal judges are the most common choices for Supreme Court nominations, Presidents will occasionally go off the beaten track for a nominee. The remaining names on my list weren't federal judges, but certainly were well-known in legal circles during Carter's presidency.
  • Justice Stanley Mosk. Mosk was an Associate Justice on the California Supreme Court. While Roger Traynor was probably more prominent and more influential then, he would have been a little old for a U.S. Supreme Court nomination by the time Carter got to the White House. By the time he retired, Mosk had arguably caught up with Traynor. Republicans might have seen Mosk as another Earl Warren-style liberal and would likely have fiercely opposed the nomination, though. Mosk voted against the school's affirmative action program in the famous Bakke case, and that might have engendered opposition from the other side of the political spectrum. Notably, Justice Stevens voted for Bakke, too.

  • Erwin Griswold. Griswold was Dean of Harvard Law School for ages, and was U.S. Solicitor General under both Johnson and Nixon. He had no judicial experience, but was widely respected among the academy and the bar. I could see Griswold as a Lewis Powell-type nominee: more liberal and academic than Powell, but not a fire-breathing ideologue, probably capable of irritating both liberals and conservatives at times, and probably a safely confirmable choice if other nominees had failed.

  • I debated about putting Senator Edward Kennedy on this list. He was Chairman of the Senate Judiciary Committee during part of Carter's term. While obviously a controversial figure thanks to the Chappaquiddick incident, Senators are routinely deferential when confirming one of their own to a presidential appointment. And Carter likely would have removed a political rival if he could get Kennedy on the bench. Kennedy might not have taken the appointment, of course, but life tenure is mighty tempting. The idea of a Justice Teddy Kennedy frankly makes my mind reel, but I figure if current short lists include names like Senators Orrin Hatch and John Cornyn, it's not inconceivable that Kennedy's name might have been floated as a potential Carter nominee.
I'm sure there are other names the Carter administration bandied about while it waited in vain for a vacancy. The point of this post was only partly an excuse to stroll through Wikipedia and the Federal Judicial Center's judge biographies. To tie this all together, the discussion over whether Justice Stevens would prefer to retire with a Republican or Democrat in the White House got me thinking about how he got on the Court in the first place.

Forgive the pun, but it was basically a stroke of fortune that created the opening Stevens filled. Had Justice Douglas hung on for only another year or so, we would never have had a Justice Stevens. How different would America be if Carter had made that nomination? Given Justice Stevens's voting record, maybe not much in some areas of the law, but in other areas, probably quite a bit. To suggest an obvious example, a Carter nominee quite likely would have provided a fifth vote to uphold outright racial quotas in Bakke. On the other hand, a Carter nominee (had he or she served long enough) might have voted to uphold the Sentencing Guidelines against Sixth Amendment challenges in the Apprendi line of cases.

To some extent, any counterfactual history like this is kind of pointless. But it's fun for nerds like me, and I think it's worth keeping in mind how random and fluky history can be. It wouldn't surprise me if John Paul Stevens didn't give a tinker's damn who's sitting in the Oval Office and plans to be carried out of the Supreme Court building feet-first. On the other hand, maybe he wants to cast one last vote and will time his retirement accordingly. I guess this whole exercise in "what might have been" was mainly designed to remind myself and others that people generally have a poor track record in predicting the future. And so, I'm not going to waste a lot of time trying to read Justice Stevens's mind. After all, I've already wasted plenty trying to read Jimmy Carter's.

UPDATE: The inimitable Feddie provides an astute comment: "I noticed that you left off Carter's first atty general, Griffin Bell. He was actually on Carter's short list, and he would have been extremely conservative (i.e., a hell of a lot better than Stevens)."

That's a good catch from Feddie. I was aware of Bell, and I'm not sure why I omitted him. That's a swing and a miss by Milbarge. Kennedy put Bell on the Old Fifth Circuit, where he was when Carter named him A.G. I'll agree that Bell would probably have been the first choice, and everyone on my list would be duking it out over second-place. I'm not familiar enough with Bell's jurisprudence to make an assessment versus Stevens, so I'll defer to Feddie on that note. And thanks to him for catching my error.

Wednesday, April 26, 2006

An Iraq Primer?
I have a confession to make. I'm not entirely up to speed on what's going on in Iraq. I guess I know the broadest strokes -- the factionalism between the Shias, Sunnis, and Kurds, the new Prime Minister, etc. But I can't always keep the names straight or remember which groups wants what or where they are in the process of writing a new constitution.

So what I'm looking for is a good source for clearing up my confusion and keeping up with the major developments over there. I'm just interested in the basics -- I don't have time for a comprehensive study of the place. I'm not going into the Foreign Service or anything. I'm also not looking to read a bunch of warblogs or propaganda. I'm just curious about the big events and need to have a go-to source. I'm not sure I'll know exactly what I have in mind until I find it, but I guess ideally I'd like to have one or two sources I could check every few days and feel reasonably informed. Any suggestions?

"Shortly after moving to TJ, I was prevailed upon to take custody of a terminally ill ferret..."
I don't know if this is one of those internet chestnuts like the Motion for Fist Fight or the Motion to Kiss My Ass, but this is good, and I hadn't seen it before, so I thank the friend who sent it to me. It's a declaration (13-page .pdf) by a lawyer confessing negligence in handling a client's case. It's a little bizarre. Among the reasons for the negligence was the quote used for the title of this post, along with the odd reason he was in Tijuana in the first place. Sadly, the ferret, Senorita Bandita, didn't make it.

Tuesday, April 25, 2006

Life (L)imitates Art
One day after posting about a fictional statute of limitations case (and go check out Steve Minor's better book titles), we get a real limitations case from the Supreme Court, a habeas case called Day v. McDonough. Howard has the links here. I wouldn't call it a major case, even among the habeas corpus subset of cases. But you might not know that if you read the comments at SCOTUSBlog or at Prof. Berman's place.

In short, Day filed a habeas petition and the state agreed it was timely. The trial court did some math and concluded the state was wrong: the petition was in fact late under applicable Circuit precedent. Generally, the statute of limitations is an affirmative defense you have to raise at the risk of waiving it if you don't. But here, the lower courts applied the time limit on their own and dismissed Day's petition. (If Day had been a day late, the irony would overwhelm us. However, while it was close, it wasn't that close.)

The Supreme Court said today, in an opinion by Justice Ginsburg, that the district court has discretion to raise the limitations issue itself, and lays out a flexible standard for when that's appropriate. The majority was Ginsburg, Chief Justice Roberts, and Justices Kennedy, Souter, and Alito. Justice Stevens agreed with Ginsburg's rationale, but dissented from the Court's decision not to hold the case until it resolved the substantive question of whether petitions like Day's are actually untimely, a matter to be decided in a later case. Justices Scalia, Thomas, and Breyer would have applied the traditional bright-line rule that failure to raise the statute of limitations forfeits that defense.

Several commentators noted the "unusual" line-up in these opinions, but I think some of them are going a bit overboard. Commenting at SCOTUSBlog, Kent Scheidegger, Legal Director and General Counsel of the Criminal Justice Legal Foundation says, "The next time someone implies that the Justices can be neatly plotted on a conservative-liberal spectrum and the prosecution v. defense lineup predicted from that, this case is Exhibit A for the rebuttal."

Well, first of all, I think Apprendi, Blakely, and Booker should be Exhibits A through C in that rebuttal case. But most importantly, we need to keep in mind that the underlying merits of Day's habeas petition weren't before the Court. While the adoption of Justice Scalia's dissent would have the initial effect of giving Day his day in court, it says nothing about the (slim) chance Day has of winning his case. (I note also that the habeas rules already allow district courts to dismiss petitions sua sponte -- even before the respondent's answer is filed -- if untimeliness is clear on the face of the petition. So Justice Scalia's approach would not have led to a flood of late petitions being considered because of "technicalities," unless the states started engaging in a rash of miscalculations.) The occasions where certain Justices vote to grant habeas relief on the merits -- now, those are truly noteworthy events. I'd be willing to bet money that we won't see the same lineup when the Court considers the timeliness issue.

This case is more about the old rules v. standards argument, and about deference to legislatures v. judicial policymaking. The majority is willing to hand down a standard with several factors for judges to consider before acting sua sponte. The principal dissent prefers the clear rule applicable in other civil actions. The majority is content to let judges decide how this will work in practice, a move Justice Scalia laments "will apparently require the development of new rules from scratch" because the Court is "disregarding the rules that Congress has enacted."

This case isn't about prosecution v. defense. It's about which branch -- Congress or the courts -- gets to decide how the courts manage their dockets, and about how rigid they have to be in exercising that power. Viewed from this perspective, I find today's case somewhat interesting, but not because it supposedly shatters some ludicrous notion that certain Justices always vote for certain parties.

Monday, April 24, 2006

A Man's Got to Know His Limitations
Readers of this blog may be interested in a new serial novel, Limitations, by Scott Turow, running in the New York Times Magazine. The first installment arrived this weekend. They just finished a Patricia Cornwell story, and it wasn't bad if you like her thing, I suppose.

The Turow story starts out with an oral argument in an appeals court, so I was hooked, of course. The case concerns a rape at a party hosted by elite prep school athletes, a rape of a black woman by white boys. (I wonder when he came up with this idea, and whether he'll find that truth is stranger than fiction.) Anyway, the attackers filmed the rape, but the tape didn't turn up for some time, and the question is whether the statute of limitations has run. Naturally, I expect many twists and turns and doubt if even Turow can write a whole novel about one appellate case.

This first entry is mostly exposition and teases, but the judges seem interesting. And, as a bonus for Presumed Innocent fans, there's an appearance by Tommy Molto. So if you're looking for a serialized legal thriller, I hope this hits the spot.

(Post title source.)

Sunday, April 23, 2006

The Tipping Point
Mr. Poon got me thinking about something the other day. (I know: That's the reason everyone goes to his site, for the thinking!) It was this post about tipping. And then, the next day I went to this little place for lunch. Everyone loves it, local institution, rave reviews, etc. They're especially well known for the friendly staff and great service. In fact, there was even a note on the menu that they take pride in their service and appreciate "the customary 20% tip."

Now, let's leave aside the fact that my service that day was actually so bad I got my meal for free. That's another story. And I guess I've even come to accept that 20% now really is "customary," when it was just 15% not too long ago. (And in fact, I think a lot of people would still say 15% is the norm, and I was at a place last week that automatically adds 15% to late-night orders.) Okay. But even accepting 20% as the standard, where did that come from?

Who decided we suddenly had to pay 20% instead of 15%? What were the reasons for that? I'm not saying waiters and waitresses or delivery people don't work hard, but are they -- as a nationwide class -- working 5% harder than they did just a few years ago? (My experience last week would indicate no.) If they were underpaid at 15%, why was that the standard for so long, and still the accepted rate in some places?

One obvious answer may be that food prices are up 5% (or more) recently. Even assuming that's true, I don't buy it as the sole reason. That's because my sense is that the tippees expect a minimum amount even when the bill is small. For instance, if the bill is $7.50, a lot of tippees would be quite upset to only get $1.12 (15%) or $1.50 (20%). After all, they work the same whether I order the grill cheese special or the Grand Slam Hungry Man plate. But if the price rises 5%, to $7.88, they're probably not going to be content to get a whopping $1.58 (20%). The math is confusing me, but my point is just that at the low end of the price spectrum, even 20% is a pretty measly amount, and the tip amount isn't totally in sync with the bill, so I don't think a 5% rise in food prices can account for an across-the-board jump from 15% to 20%. Moreover, surely there are places where prices have risen even more than 5%. Is the norm there even higher? Before you answer, ask if it's higher because of rising prices and in line with the amount of increase. It may just be that you're living some place where restauranteurs are gouging you and some social pressure makes you feel like a heel if you tip less than 25%.

Another obvious answer is that the "cost of living" has risen 5% (or more) recently. And, with the lack of change in the minimum wage, and assuming that employers aren't making up the shortfall themselves, it falls to consumers to extend an ad hoc cost-of-living adjustment. Of course, rising food prices would be part of an increase in the cost of living. So maybe the answer is a combination of these two reasons. But why a jump from 15% to 20% with no stops in between? Wasn't the rise in cost of living more gradual? I think we would notice if the price of everything jumped 5% overnight. Was the tip-dependent service industy willing to live on 15% tips when the rising cost of living would have dictated, say, 17% or 18% tips, or did they round up to 20% as soon as the cost of living "tipping point" was, say 17.5%?

I'm not trying to sound bitter or turn this into a rant. "I wish we tipped like Europeans do, wah, wah, wah..." If you like that system so much better, eat over there or cook at home. I've made my peace with the concept of tipping, and am generally a good tipper. (I'm not extravagant for no reason, but I tip the standard amount for standard service and reward better service with better tips.)

So this post isn't meant to ask why we tip or whether we should. What I'm curious about is how we seem to have agreed on this increase from 15% to 20% and what the reason for it was. And how high will it go, because I don't see the cost of living going down. Your tips are appreciated.

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