Wednesday, June 29, 2005

The (all-new) Freedom Tower unveiled...

The re-vamped Freedom Tower is being unveiled today. The New York Times has the story on the new tower here.

The tower is now a far cry from the design selected several years ago. (See my post on the original design here.)

At its base, the Freedom Tower would be 200 feet square, like the twin towers and the two voids that are to be created in their place as part of the Sept. 11 memorial. Mr. Childs said the new building's "most important role is being a marker in the sky of the memorial."

Here are a few renderings of what the Freedom Tower, and the NY skyline will look like...

To me, this is not as graceful as the original, but I'm not student of architecture, and I'm sure that solid base will be easier to justify. Click here for a viewpoint from Curbed.

Justice Thomas quiets the crowds...

The press is reporting on the likelihood of a Supreme Court nomination this summer like it is a foregone conclusion.

Not so fast.

Yesterday Justice Clarence Thomas spoke at the swearing in of Leah Ward Sears as Chief Justice of Georgia. provides an article about that swearing in here, in which Thomas notes:
"winds of controversy swirled about the Court's decisions and, unfortunately, about the imagined resignations." Hmm...imagined resignations.

My gut feeling all spring has been that Rehnquist will come back. So will O'Connor and Stevens. Are there politics within the Court? Well, as renowned as they are, these are still people, and people are political animals - so sure, there is an element of politics. But, I do really feel that each of the nine members of this court has a more loyal bond to the institution, and the judiciary, than they do to any political parties, or pressures. If the Chief feels he cannot physically continue in his role, he will resign. Until that time, regardless of the political motivations of any Presidential administration or Senate, he'll press on in his role.

I find it interesting that a day after the close of the term, J. Thomas makes this sort of a statement public...I told my wife on Monday that if an announcement about a Justice leaving the Court was not made either Monday or Tuesday, I didn't think there would be an opening this summer. I still feel that way.

(HatTip: SCOTUSblog)

Bush Admin fails again...

Veterans Affairs faces $1 billion shortfall

Are you kidding me? In a time of war, Bush allows our VA to run a shortfall which will threaten the health, welfare, and security of the very people who he puts in to harm's way without cause. Despicable. And, that may not be the most revolting part:
"This shortfall results from either deliberate misdirection or gross incompetence by this administration and the Department of Veteran Affairs," said Sen. Patty Murray, D-Washington. ... Murray had urged lawmakers to give the VA an extra $2 billion this spring, while they assembled an $82 billion emergency spending bill on war and homeland security, but the VA said it didn't need any more money.

Senator Murray had specifically requested 1.9MM in additional funds for the VA during the Iraq emergency spending bill this spring - this spring. But the Bush administration fought against that...if the money was not lining the pockets of defense contractors, they wanted nothing to do with it. So only months ago, Bush rejects this money for veterans, yesterday the VA announces that they are in a Billion dollar hole, and Bush stands at an army base last night proving that he's a "war" President. Ugh.

In this NPR report, the VA chairman Jim Nicholson admitted that he'd known of the shortage since April, but did not divulge that information to Congress.

The Bush administration KNEW they were short in their support of veterans, they KNEW that there was a proposal on the table for additional funding for veterans, and they CHOSE not to support our veterans.

And Bush stood there last night and talked about a link between Iraq and the September 11th tragedy...a link that he has never be able to provide any evidence of, and a link that has been de-bunked over, and over, and over... So, first it was WMD (which wasn't true), then it was Saddam is bad (which was true, but there were lots of other tyrants that are bad that we don't invade), then it was humanitarian (which was difficult to argue when under our version of aid, Baghdad doesn't have water for three weeks at a time), then it was democracy (until it turned out that it was evident that it would be an fundamentalist-islamic leaning democracy), and now the justification is to combat the hornet's nest of terrorism (of course, it has only become this because Bush went to war in the first place).

He's got no reasons for his war, but apparently, he's got a reason to reject funding of our veterans - what kind of priorities are those?

Tuesday, June 28, 2005

Farewell OT2004...

The end has come for the Supreme Court's October 2004 Term. The six decisions announced yesterday completed the work of the Court for this term.

The Court finished with a bit of a flouish, with two high-profile 10 Commandment's cases (which arguably meant little) and the Grokster case (which arguably meant a lot) decided on the final day.

You can get the court opinions here:

van Orden v. Perry - the Texas 10 Commandment case (5-4 to allow the display)
McCreary County v. ACLU of Kentucky - the Kentucky 10 Commandment case (5-4 to bar display)

As you would expect, there is already a ton out there on these rulings. Click here for the SCOTUSblog meta-blog; Click here for Dahlia Lithwick's ever light-hearted opinions at Slate (including these nuggets: The public displays of religious symbols cases signify next to nothing, besides revealing that the court will never agree to a workable Establishment Clause test until someone retires. ... The two cases together must mean that if a display starts with a zealous religious purpose it can never be cured, but if it's huge, old, and carries a Post-it-note claiming to be historical, it can never be wrong.); Click here for a bit from the Volokh Conspiracy; Click here for ACSblog; and finaly, Click here for CNN.

MGM Studios v. Grokster - the internet piracy case (9-0 allowing liability for designers of software used for piracy)

Click here for the SCOTUSblog meta-blog; Click here for some Slate commentary by Prof. Tim Wu of UofVirginia Law School; Click here for Volokh Conspiracy; Click here for ACSblog; and finally, here for CNN.

Also in a case that got little to no press at the end of term, the Court decided 7-2 in Castle Rock v. Gonzales that the police are immune from suit when they fail to enforce a restraining order. In this case, a woman had a restraining order against her ex-husband, and had made several complaints about it not being respected. Eventually, the ex-husband kidnapped her kids, killed them, and then died himself in a gun-battle with police. Although there is not the press involved, this seems to me like an important issue. This case reminds me of the tragic circumstances of DeShaney v. Winnebago County Dept. of Social Services. There a young boy was beaten so badly by his father that he became comotose and suffered traumatic brain damage so severe that he became permanently retarded - at four years old. The Dept. of Social Services had been informed, and responded to the abuse on multiple occasions, but never took any steps to protect the little boy from his abusive father. The mother sued, "alleging that the Department had deprived the child of his 'liberty interest in bodily integrity, in violation of his rights under the substantive component of the Fourteenth Amendment's Due Process Clause, by failing to intervene to protect him against his father's violence.' " The Court ruled that there are no minimal levels of safey or security that the State must provide, therefore the State - even though it had specifically intervened in the situation - owed no duty to poor little Joshua.

Similarly, in Castle Rock, the Court is saying that even when it specifically steps into the situation and seemingly offers protection in the form of a restraining order - the government owes no duty to actually perform that protection. No duty to protect these poor defenseless little kids, even with a court-ordered restraining order. So, the police are given the green light to ignore these sad situations - which will only lead to more tragedy in the future.

Frankly, I couldn't care less about some showy aparatus extolling the 10 Commandments on government property - if we don't have a government with the moral compass to step up and take responsibility for protecting our kids when it is their responsibility to do so. These kinds of decisions don't make headlines, but they break hearts. At least mine.

UPDATE: Apparently I wasn't alone in seeing the connection to DeShaney - SCOTUSblog mentions as much here.

Friday, June 24, 2005

The China Syndrome...

Alan Greenspan and John Snow met with Congress yesterday and argued for globalization, and against any protectionist measures to be used against China.

The Houston Chronicle has that story here. CNN has a story here.

I'm going to try to take some more time to write about this soon, but I've been thinking a lot lately about impacts of globalization upon American national security down the road. If at some point in the not-so-distant-future we truly are not manufacturing anything domestically (because it's cheaper that way), what happens if we one day become involved in a conflict with China, etc.?

Isn't there some analogy here to the Confederate states during the Civil War - in that they simply did not have the industry to realistically compete in a long-term war with the North?

Is this a realistic concern, or am I just being overly cautious? More thoughts to come on this over time...

Thursday, June 23, 2005

Believe it or not...

The State of Texas has actually taken a step to follow the Supreme Court in regard to a capital punishment ruling.

KUHF and the Houston Chronicle have reported that Texas Gov. Rick Perry has commuted the sentences of 28 juvenile convicts on Texas Death Row.

The Supreme Court held Roper v. Simmons last March, in a somewhat controversial decision, that the execution of juveniles was unconstitutional. Appropriately following that decision, Perry yesterday commuted the death sentences of 28 on death row to life in prison. I thought this was a good quote from a staff attorney with the Texas Defender Service,
Morris Moon, an attorney who defended two of the juveniles convicted in Harris County, praised Perry for acting.
''I'm glad it's finally happened. I'm glad that Texas has finally recognized that they have to follow a Supreme Court ruling," Moon said.
Moon, a staff attorney with the Texas Defender Service, represented Johnnie Bernal and Nanon McKewn Williams.

As unusual as it sounds, it's not everyday that the State of Texas actually pays attention to the Supreme Court when it comes to death penalty law. So this really is news...

A couple of more points:
In my opinion, Justice Kennedy's decision in Roper should not have been as criticized and controversial as it has since been. Kennedy's decision has primarily been assaulted because of his noting of international trends in the area of juvenile execution. (Note that the Houston Chronicle noted at the time of the decision, "Juvenile offenders have been put to death in recent years in just a few other countries, including Iran, Pakistan, China and Saudi Arabia. All those countries have gone on record as opposing capital punishment for minors.") But the opinion wasn't based on int'l law - it was based on the 8th (and 14th) Amendment(s).
The differences between juvenile and adult offenders are too marked and well understood to risk allowing a youthful person to receive the death penalty despite insufficient culpability. An unacceptable likelihood exists that the brutality or cold-blooded nature of any particular crime would overpower mitigating arguments based on youth as a matter of course, even where the juvenile offender's objective immaturity, vulnerability, and lack of true depravity should require a sentence less severe than death. In some cases a defendant's youth may even be counted against him. In this very case, as we noted above, the prosecutor argued Simmons' youth was aggravating rather than mitigating. While this sort of overreaching could be corrected by a particular rule to ensure that the mitigating force of youth is not overlooked, that would not address our larger concerns.

And note the wonderful concurrence by Justice Stevens (joined by Justice Ginsburg) in Roper:
Perhaps even more important than our specific holding today is our reaffirmation of the basic principle that informs the Court's interpretation of the Eighth Amendment. If the meaning of the Amendment has been frozen when it was originally drafted, it would impose no impediment to the execution of 7-year-old children today. ... The evolving standards of decency that have driven our construction of this critically important part of the Bill of Rights foreclose any such reading of the Amendment. In the best tradition of common law, the pace of that evolution is a matter for continuing debate; but that our understanding of the Constitution does change from time to time has been settled since John Marshall breathed life into its text. If great lawyers of his day - Alexander Hamilton, for example - were sitting with us today, I would expect them to join Justice Kennedy's opinion of the Court. In all events, I do so without hesitation.

Beautiful stuff. Roper was the correct decision, and the criticism related to the use of int'l law is simply right-wing politics. It (the criticism) has nothing to do with the Constitution or our law. [See my other posts on the High Court's view of int'l law - Justice Stevens here; and Justice O'Connor here.]

Finally, the Supreme Court handed down an interesting, but little covered capital punishment decision on Monday that could really change habeas appeals for a number of death row inmates. In Rompilla v. Beard, the Court (through Justice Souter) held that a death penalty defendant's counsel is bound to make reasonable efforts to obtain and review material that it is reasonably certain the prosecution will use as evidence of aggravating factors in arguing for the death penalty. The Court (through a Justice O'Connor concurrence) specifically noted that this is not a "rule" to be followed, but part of the case-by-case analysis of ineffective counsel. If this decision can be broadened, it could be of benefit to so many death row convicts who were incompetently represented by state appointed counsel. See SCOTUSblog's analysis of Rompilla here.

High Court Divided...

This humorous column from Dahlia Lithwick at is a gem. (HT: SCOTUSblog) Here are a few excepts:

From: mailto:EvenStevens@
To: mailto:Supremelist@
Date: May 24, 2005
RE: Lunch??

Colleagues: Where should we take these Irish judges to lunch next week? Suggestions? Cordially JPS
. . . . . . . . . ..
. . . . . . . . . ..
From: SwingVote@
To: mailto:Supremelist@
Date: May 24, 2005
RE: RE: RE: Lunch??

How about one of Café Berlin, Bistro Bis, or La Coline? Bien sur, the bouillabaisse at the latter is magnifique. Best, "Antoine" Kennedy
. . . . . . . . . ..
From: NinoNoir@
SwingVote@; mailto:Supremelist@
Date: May 24, 2005
RE: With the Frenchie Crap again!!??!

swishy little Euro-wimp. What the heck is wrong with American restaurants? Are we really going to bind ourselves, yet again, by what a bunch of foreigners would do? This is an American court, operating on American soil, under the provisions of an American constitution. The very idea of entertaining Irish visitors next week at all is evidence of the shallow, faddish, follow-the-crowd internationalism threatening the core foundations of American Constitutionalism today. I vote for Applebee's in Chevy Chase. The one with the onion flowers. Nino
. . . . . . . . . ..
From: BreyerBreyerPantsOnFire@
To: mailto:Supremelist@
Date: May 25, 2005
RE: A compromise solution

It seems to me that there are at least four ways in which we can analyze this question. Let's assume, for a moment, that-as in Justice Scalia's last hypothetical-Applebee's were located on the moon. But, located on an American colony on the moon, in which federal jurisdiction was exclusively American, except maybe in matters of sentencing guidelines or conflicts over the density of the atmosphere. Lunar law would control in those areas. My question, if you are still following me, is whether moon colony or Applebee's law could preempt federal law? Please consult the attached 14-page memorandum for further discussion of this and other hypotheticals. Yours, Steve PS: I vote for Bullfeathers
. . . . . . . . . . ..
. . . . . . . . . ..
From: SwingVote@
To: mailto:Supremelist@
Date: May 26, 2005
RE: Ad Hominem Attacks

Nino: I don't imagine it occurs to you that the French were making bouillabaisse back when savages were eating nuts and berries in this country? Bouillabaisse is part of a vast and sweeping tapestry of history and culture-all the richness of the world's finest minds and notions, heightened by the sweetness of human dignity and worth and . . . um . . . more dignity that represents the highest human achievement of our time. That you seek to sweep French cuisine into the dusty corners of history is yet more evidence of a creeping isolationism that imperils the very freedom you so claim to cherish. Cheers, Antoine
. . . . . . . . . ..
From: NinoNoir@
To: mailto:Supremelist@
Date: May 26, 2005
RE: Originalism

The Framers would have executed a 16-year-old before they would touch bouillabaisse. Just FYI. AS
. . . . . . . . . ..
From: SwingVote@
To: mailto:Supremelist@
Date: May 26, 2005
RE: Evolving standards

Which is why it falls on us, as judges, to determine whether the standards of delicious have changed
. . . . . . . . . . . . ..
From: NinoNoir@
To: mailto:Supremelist@
Date: May 26, 2005
RE: RE: Ad Hominem Attacks

. . . . . . . . . . ..
From: SwingVote@
To: mailto:Supremelist@
Date: May 26, 2005
RE: RE: RE: Ad Hominem Attacks

. . . . . . . . . . ..
From: RuthieG@
To: mailto:Supremelist@
Date: May 27, 2005
RE: RE: RE: RE: Ad Hominem Attacks

I vote for Applebee's with Nino. Their nachos supremos rock. RBG
. . . . . . . . . ..
. . . . . . . . . ..
From: BreyerBreyerPantsOnFire@
To: mailto:Supremelist@
Date: May 27, 2005
RE: Consensus

Attached please find a 17-page Excel spreadsheet and accompanying PowerPoint presentation containing my thoughts on how to achieve consensus in this matter, while fixing the federal sentencing guidelines at the same time. Steve
. . . . . . . . . ..
From: NinoNoir@
To: mailto:Supremelist@
Date: May 28, 2005
RE: RE: Consensus Activist meddlers.

Leave it to the legislatures to decide
. . . . . . . . . . ..
From: mailto:QueenBee@
To: mailto:Supremelist@
Date: May 28, 2005
RE: Majority Opinion

Actually, I think we should leave it to ME to decide and I think that for just this one dinner, under these very specific facts, and weighing all of the factors in a carefully calibrated balancing test that will never be applicable to any other set of facts ever again, we should go for appetizers at Bullfeathers, entrées at La Coline, then ice cream sundaes at Applebee's, but not the one in Chevy Chase; the one in Fairfax. Imperially yours, Sandy
. . . . . . . . . ..
. . . . . . . . . ..
From: Chiefy@
To: mailto:Supremelist@
Date: May 29, 2005
RE: Assignments

I've tried to keep track of the voting in this matter, and believe the opinion writing can be assigned as it was in Smith v. City of Jackson, that is, we can handily dispose of this problem if Justice Stevens writes Parts I, II, and IV but not III, and Justice Scalia concurs only in part, and Justices O'Connor, Kennedy, and Thomas write separate concurrences, and I remain at home. If that is acceptable to everyone, please advise.

Tuesday, June 21, 2005

Is it ever too early to unite?

Gordon Quan will not be running for the Democratic nomination for the 22nd Congressional District in Texas. The Chronicle has the announcement here. This is Tom DeLay's seat in south Houston - much of it Sugarland and Fort Bend county. Obviously, the Democrats are going to target DeLay due to his string of ethical violations which have had him in the (unflattering) spotlight of late.

Two months ago, it looked as if the race for the Dem nomination was shaping up to be a real battle. Richard Morrison, the Democrat who gave DeLay an unexpectedly close race last November, had not really stopped campaigning since the election. Gordon Quan, a popular at-large Houston city councilman, had formed an exploratory committee to look into a run for the House. And Nick Lampson, an eight-year vetran of the House who lost his seat due to DeLay's partisan redistricting plan, had announced that he would run.

Word is that the Democratic party really pushed for a lone candidate, Lampson, to oppose DeLay. But, does that strategy make sense? Does it work? The following is something I wrote way back on 4-Feb-04 regarding the Democratic Presidential nomination - it was entitled The Dems Big Mistake???

For a week now, and three or four times last night, Democratic party insiders seem to be arguing for the following:

Let's rally behind a candidate, everyone else drop out, and within the next week wrap up our nominee and let him coast through the spring to the convention.

Richarson, gov. of New Mexico, and the gov. of Arizona both said that specifically in interviews last night, and several pundits noted and and reporters have mentioned discussions "behind the scenes". Is that really the best strategy? Is that a Big Mistake? Bush's approval ratings have been tumbling, and it seems to me that the primary reason is that the democratic party is getting TONS of press and media coverage due to the primaries and debates. As soon as a candidate is assured, there is no story - and the media will ignore the democrats until the convention. Doesn't it make MUCH more sense to keep Clark/Edwards/Dean and even Sharpton/Kuchinch in the race - debating - making primary night speeches on national television - and overall just hammering away...? Why should the Party make the choice to lose this free media coverage to make ... Bush ... clear to the voting public. Of course, there is the theory that they all beat up on each other, and the nominee can use the spring to raise money. But, if all the candidates can be convinced to keep bringing the heat to Bush, and point out differences between ideas, but not personal attacks (which there haven't been many of anway) that doesn't hold water...and the money will come in once the nominee is chosen. I'd rather see Dean and Sharpton on national TV slamming Bush long into March and April - I'd rather see Edwards showing the public that the Dems are the party to unite the two Americas - and see Clark show America that a general and NATO commander is a Democrat - even if Kerry is the de facto nominee. Am I just missing something?

Tooting my own horn a bit, I believe I was dead-on with those points. I think that it was pretty clear as the spring wore on that the momentum that the party had built against the Bush administration just whimpered away. The reason - there was no more story. As long as you had local stations covering candidates coming into your town, national stations covering primary victory or concession speeches you had a big - and free - story to tell the public.

It seems to me that the Democratic party is making the same mistake in Texas 22. They want to consolidate the money behind one candidate, not divide the message, or run the risk of attacks weakening the general election candidate. Those concerns are valid...but do they outweigh the benefits of an actual nomination race? Imagine three good candidates - and I think that Morrison, Quan, and Lampson are all good candidates - running a campaign for a full year. Getting pretty good press coverage at events, being able to hit such diverse sections of the district at the same time - and all the while keeping the pressure on DeLay for a whole year before the general election. By the time the vote came around, the voters of Texas 22 would be intimately aware of what the Democratic Party offered, and the failings of The Hammer.

But that's not what we're going to get. Morrison announced he would not run about a month ago. Quan dropped out yesterday. So the Democrats get a good candidate in Nick Lampson...who is going to be absolutely invisible for the next 14 months. I'd rather have seen a really good nomination battle which kept the District and DeLay in the spotlight for 18 months.

Another Big Mistake???

Friday, June 17, 2005

Go buy this book...

Speaking (sort of) about things I'm reading...

I got my copy of Prof. David Dow's Executed on a Technicality: Lethal Injustice on America's Death Row on Wednesday night. I finished it up last night.

This is an excellent book about the system, and how that system does not and cannot work. It is (in my opinion) written directly to those who are either pro-capital punishment or, as he described himself at the beginning of his capital defense work, 'agnostic' toward the death penalty. The stories he recounts are personal, touching, compelling, and shocking - and meant to force the reader to confront humanity in all its ugliness and beauty.

The system is wrong because it is arbitrary, because it is not justice being carried out, it is 'lightening striking.' As he sums up at the end - the death penalty is not the rule of law, it is the rule of the mob.

Home movies...

Following up on my posts here and here about the movie industry...

CNN is reporting on an AP/AOL News poll which shows that most prefer to watch movies at home.

According to the article:
Hollywood is in the midst of its longest box-office slump in 20 years, and 2005 is shaping up as the worst year for movie attendance in nearly a decade, if theater business continues at the same lackluster rate.
While 73 percent said they preferred staying home to watch movies on DVD, videotape or pay-per-view, 22 percent said they would rather see them at a movie theater, according to the poll conducted for The Associated Press and AOL News by Ipsos.

But it also included this little tidbit:
But the poll found that people who use DVDs, watch pay-per-view movies on cable, download movies from the Internet and play computer games actually go to movies in theaters more than people at the same income levels who don't use those technologies. That suggests the technology may be complementing rather than competing with theatergoing.

If that is indeed the case, then boxoffice woes are not due to the emergence of DVDs and home theatre is it a symptom of a bigger problem? Here's one thought - movies these days are just bad. Okay, disclaimer: I don't get to the theatre very often anymore. Before my son came along, my wife and I would probably average a movie a week, maybe a shade under. But I imagine we were seeing 40 to 50 movies a year in the theatre. Now...I'd guess it's down to about 4 or 5 per year. So, when we go we are highly selective. I say all that to admit that I'm not as familiar with the population of films out there as I was several years ago. Still, let's take a look at a list of films playing at one prominant theatre here in Houston this weekend:

The Adventures of Shark Boy and Lava Girl in 3D - never heard of this
Batman Begins - I would really like to see this
Cinderella Man - no desire
Crash - heard positive things about this
High Tension - never heard of this
The Honeymooners - no desire
Howl's Moving Castle - from the maker of Spirited Away (still no desire)
The Longest Yard - no desire
Lords of Dogtown - no desire
Madagascar - we're considering taking Noah to see this
Monster-in-Law - no desire
Mr. & Mrs. Smith - no desire
The Perfect Man - never heard of this
The Sisterhood of the Traveling Pants - no desire
Star Wars III - saw it, not impressed

Yawn...and this is the middle of the blockbuster summer movie season. Of the 15 playing this weekend, a grand total of one movie I really want to see (Batman Begins), one I'm intrigued by (Crash) and one I'd see for my son (Madagascar) (also one I saw and was very disappointed in). There are many variables affecting the slide of Hollywood, but the key is that they are making putrid movies.

I think it's time for another New Hollywood. After my post here on Wednesday, I went out and bought Easy Riders, Raging Bulls. I think there are some reasonable comparisons between the Hollywood of the mid-60s and today...along with many differences. But it's time that good film went mainstream again. One of the big differences between those days and today is the relatively thriving independent movie scene, there are good pictures out there - unfortunately you just have to go hunt for them. They are not at your neighborhood megaplex. This is why when my wife and I do head out to the movies these days, as often as not we skip the megaplex and head to the indie theatre - non-stadium seating and all, it's still a higher quality experience. It's time that someone yank the studios from their slumber and actually start making good movies again, or the box office numbers are going to continue to plummet.

Just something I want to remember...

Danielle starts right off criticizing what she calls the “freedom of contract ideal.” Her complaint this morning is that "disclosure statutes" to correct bargaining imbalances and asymmetric information actually conceal the real problem with freedom of contract, which is disparity of power. These statutes assume the classical conception of contract law which assumes that parties are able to make welfare enhancing choices that merit enforcement, provided they are given the relevant information.
She is now summarizing what she calls classical contract theory. She is reading pretty fast so it is hard to keep up. It is the familiar description of the rational actor model. (This is the model that Marcus was going to critique.) Now she is summarizing the standard critique of the unrealistic nature of the rational actor model based on informational asymmetry, the failure to consider all salient
information, and the absence of rationality in the marketplace. She says behavioral economics underscores this critique (which I am incompletely summarizing because she is speaking so fast--not too fast for the audience, just too fast for me to keep up). Human cognitive abilities are limited, says the literature that she is now summarizing, so people use shortcuts. They ignore the statistical data in favor of other less perfect markers. Now she is describing framing effects in which preferences are changed solely because of how the information is presented to her, which puts power into the hands of those who are presenting choices to market actors. Other studies show that people are not truly rational self-maximizers. The example is that people tip though it is not in their interest to do so (a claim that is widely criticized BTW). Market forces require businesses to manipulate information to stay in business, she says. She says the assumptions of the rational actor model underlying classical contract theory are "arguably contestable." All this undermines the feasibility of disclosure statutes because consumers will not process the information accurately and the resulting transaction will still not be wealth maximizing for consumers, which is the classical justification for enforcing contracts. By relying on disclosure statutes we are privileging the classical conception of freedom of contract which, on its own terms, is incoherent. Freedom of contract is only workable as an ideal if its underlying assumptions are sound, and they appear not to be. Freedom of contract, stripped of its underlying justifications leads to the "draconian" conclusion that "contracts should be kept." So what we have instead is a naked abuse of power. "Freedom of contract is essentially being used as a front for the use of contract as power."

This long passage come from one of a series of "live-blogs" posted to the Volokh Conspiracy by Prof. Randy Barnett from the AALS (Association of American Law Schools) Contracts Conference. There are several really interesting nuggets in these series of posts (especially some of the Critical Legal Theory stuff)...but primarily, I just wanted to be able to remember that bit above.

UPDATE: I wanted to add, that it is clear from his later comments that Prof. Barnett disagrees with the speaker (Danielle Kie Hard of Southwest University) of the above section. I did not want to leave the impression that this was his view - it is merely his reporting of the presentation.

UPDATE II: Read some of my other thoughts on Lochner and freedom of contract here, here, and here.

Wednesday, June 15, 2005

Post-Easy Riders and Raging Bulls...

Good piece in Slate yesterday about the "competition" between Steven Spielberg and George Lucas. Lucas vs. Spielberg - The worst best friends in Hollywood.

I think it's fair to say I grew up on the films of George Lucas and Steven Spielberg. The Star Wars trilogy, the Indiana Jones trilogy, Close Encounters, ET - these are some of my first 'movie-going' memories (although I don't know if Close Encounters was actually seeing it in a theatre, or just rewatching the video over and over...). Tom Shone, author of Blockbuster: How Hollywood Learned to stop Worrying and Love the Summer, writes this really interesting Slate piece depecting the gradual change in stature of the relationship of Lucas and Spielberg. At first, Spielberg was the apprentice, in self-imposed subjection to his mentor Lucas:
Of the two, Spielberg was the one willing to assume the submissive position, mostly in the form of overzealous praise for his friend. "I was most jealous of George," he says, "because I thought and still do to this day, I just thought American Graffiti was the best American film I'd seen." He would later call Lucas "the best moviemaker of his generation," adding, "I was admiring and jealous of his style and proximity to audiences."

It's a beguiling image: two young men, carving out movie empires for themselves as they build sandcastles on the beach. The important thing to remember, though, is how sad and unbalanced their relationship was at the time: Lucas was very much the top dog, with Spielberg the humble amanuensis, gratefully accepting scraps from the master's table.

But over time, that relationship evolved and changed as Spielberg became the master of his generation, and Lucas seemed to sit back upon the success of Star Wars...
His confidence restored with Raiders, Spielberg would move on to even greater triumph with E.T., which quickly became the highest-grossing film of all time. This time it was Lucas' turn to take out the congratulatory ad in Variety. Lucas, meanwhile, would retreat into Lucasfilm, tending to the effects wizards at Industrial Light & Magic and micromanaging the Star Wars sequels from above. As Martin Scorsese put it: "Lucas became so powerful that he didn't have to direct. But directing is what Steven has to do."

A decade later, Spielberg would coax Lucas back out of his cave, for it was Jurassic Park that lit the fire beneath Lucas' tail and spurred him to direct again. When Spielberg showed Lucas Industrial Light & Magic's test reel of a computer-generated T. rex, Lucas' eyes filled with tears—he hadn't quite realized how advanced his own company's effects had become. "It was like one of those moments in history, like the invention of the light bulb or the first telephone call," Lucas said later. "I'd been working with ILM from the time we finished Star Wars to get to this point. We started a whole computer division and pushed them into the digital age, and we did a lot of research in order to get to what ultimately became the seminal event, which was Jurassic Park."

The piece closes with this:
...the real source of Spielberg's magnanimity is sheer relief that the gulf between him and Lucas has finally assumed the dimensions it has. These days he sounds very much like the older brother protecting the kid who can't defend himself. The contest between the two men now looks very close to being a rout. Even if you put aside the Oscars that Spielberg has won for his more "adult" work, like Schindler's List and Saving Private Ryan, and compare the two men solely in terms of their contributions to blockbuster cinema—in terms of pure popcorn—it is clear that Lucas' much-vaunted connection to the audience, which Spielberg once so feared, looks a little rocky. Lucas' career rests precariously on a single film, directed back in 1977. Everything else of his has failed, except Raiders, which Spielberg directed. And so Lucas has been drawn back to Star Wars with an air of glum fatalism, while Spielberg puts on ever more ambidextrous displays of reach and range. Lucas may well win the box-office battle this summer, but Spielberg looks like he's won the war.

Just a really good piece about the relationship between the two storied directors, and how their work has affected that relationship, as well as 'movie culture' as a whole.

I've yet to read Peter Biskind's Easy Riders, Raging Bulls: How the Sex-Drugs-and-Rock'n'Roll Generation Saved Hollywood. I did, however, see the documentary and thought it was great. The book is a history of the great 'Director's Era' in Hollywood between the mid-60s and mid-70s. A time when Hollywood was centered around the likes of Coppola, Peckinpah, Hopper, Scorsese, Bogdanovich, Beatty ... that period of Hollywood was quite vital and relevant. It's interesting how the emergance of greats like Spielberg and Lucas - directly or indirectly - led to the downfall of that era...'pure popcorn' killed the 'thinking man's' movie.

GM pushing Union on healthcare cuts...

Following up on this post from 08-Jun, General Motors has given UAW until the end of June to either accept broad cuts in healthcare coverage, or the auto giant would implement those cuts unilaterally.

The International Herald Tribune (from the NYTimes) is reporting here that local union officials say they are willing to accept cuts, but not to the level proposed - and any unilateral implementation of cuts would force a strike.
Since GM spends nearly $6 billion on health care annually, many investors and financial analysts see cutting back on benefits as an important step in restoring the company to financial health. GM covers 1.1 million Americans, including workers, retirees and family members, making it the largest private provider of medical benefits in the United States.
But would this really restore the company to financial health? Over at ACSblog, Prof. Katherine Stone, professor of employment law at UCLA School of Law, has this interesting post commenting on GM - and more generally on the future of 'big manufacturing' in America. In it she comments:

It raises the question, is the U.S. auto industry still viable? And more fundamentally, is big manufacturing still viable in the U.S., and if so, under what terms? ...
General Motors' health and retirement plans were initially negotiated between GM and its union, the United Auto Workers Union, during World War II, when the government froze wages but permitted unions to bargain over other issues, giving unions an incentive to make gains in other areas. In the subsequent decades, the UAW and GM have continued to negotiate to to devote a large portion of the wage package to benefits GM's pension and health insurance were part of an employment system in which all large U.S. firms wanted long term employees and promised stable jobs with rising earnings and good lifetime benefits. At that time, firms faced relatively stable product markets and wanted stability in their workforce. Hence health and pension benefits were structured to encourage employees to stay on their jobs. Pensions had long vesting periods and health insurance continued into retirement.

Now companies no longer want long-term employees. Instead, they want the flexibility in order to increase or decrease their labor force as product market conditions change. GM has cut its U.S. work force from a high of 600,000 in 1979 to less than 140,000 this year. It has moved many of its core activities to the auto parts firms, where there are more flexible employment practices. ...
The question that the General Motors' layoffs raises is, can large U.S. companies that have industrial unions and generous negotiated benefit packages survive? The answer is, maybe, but only if they can rein in their health care costs. Efforts to shift costs onto employees or cut back on health benefit coverage has meet with intense opposition. The alternative is to shift the cost to the government. General Motors' competitors in Germany, Japan, and the United Kingdom all have national health systems to pay for their workers' health care needs. Fair trade requires a fair playing field, and so we need to level our field upward if we want to compete. The lesson of the General Motors' impending doom is that national health insurance is not some socialist pipedream but good policy for American business. After all, as General Motors Chairman Charlie Wilson told the U.S. Senate in 1955, "What is good for General Motors is good for America."

Tuesday, June 14, 2005

Enron Broadband Trial...

Today I had the opportunity to spend a couple of hours at the Enron Broadband trial. This was my first time in a Federal court proceeding, so it was quite interesting. This particular trial is complicated because there are a total of 5 defendants, and 12 defense attorney's - in addition to the team of federal prosecutors.

The testimony I was there for was not exactly the most interesting stuff - the direct and cross of a software engineer about the technical specifics of some of the Enron Broadband Services (EBS) services and the commercial viability of those products (or potential products). But it was a great opportunity to see the attorney's (both prosecutors and defense) in action, and to get to observe District Judge Vanessa Gilmore's courtroom.

Three of these defendant's (Joe Hirko, Scott Yeager, and Rex Shelby) are primarily related to the software/tech side of this case, while the other two (Kevin Howard and Michael Krautz) are involved on the financial side of EBS. It appears as if Howard and Krautz could have been tried separately - since to this point in the 9 week trial about 5 days of testimony have actually been related to their charges. But the federal prosecuters determined that it was a better case bound together. The Chronicle noted the lack of attention to Howard and Krautz in this article last week.
"I think the government itself is so convinced that Michael Krautz has nothing to do with the conspiracy that they don't bother to give me copies," said Krautz's lawyer, Barry Pollack.
The courtroom audience is used to seeing the back-table guys give each other not-again looks every time they are ignored — which has been about a dozen times a day in this section of the trial.
"It's hard being a spectator watching this other case being tried," said Jim Lavine, one of Howard's two lawyers. "It's like I'm on the outside looking in."
Lavine's co-counsel, Jack Zimmermann, from time to time stands up and renews an ongoing objection on behalf of Howard and Krautz that the testimony being given has nothing to do with them. Sometimes Zimmermann has to speak up or raise his arm a few times to get attention from the court.

The Chronicle has a special section on Enron here, and as a part of that, a section on the Enron Broadband trial here.

In addition, Houston's Clear Thinkers has an extensive amount of coverage and analysis of the trial here.

Capital Punishment in Texas...

The Houston Chronicle has a follow up piece today to the Supreme Court's decision in Miller-El. The Chronicle noted that this decision, coupled with a decision in a California capital case Monday, is a sign of a broader attempt to rid racial profiling from jury selection.
"'The court is sending a strong message,' said Jordan Steiker, a professor at the University of Texas School of Law. 'It requires vigorous enforcement of the guarantee against racial discrimination in jury selection.'"

It also noted the Court's displeasure with the 5th Cir. and Texas state court's handling of capital cases:

The decision was the latest in a series of rebuffs to the 5th Circuit Court, considered one of the most conservative appellate courts in the country.

"It tells us again something the Supreme Court has been telling us before over the last couple of years — it has really lost confidence in the Texas courts as well as the 5th Circuit to police the fairness of death penalty trials in Texas," said David Dow, a professor at the University of Houston Law Center who has represented death row inmates. ...

The Supreme Court last year struck down three Texas death penalty convictions. In each case the defendant was black.

(Buy Dow's book on capital punishment here.) ACSblog has their report of the case here. There, they reference the Chronicle's story on the case from December of 2004 entitled High Court, Fith Circuit battle over death row. In it, the Chronicle noted, "The high court, annoyed that the 5th U.S. Circuit Court of Appeals in New Orleans had ignored the evidence, sent the case back with orders to take a second look. The lower court did. But it didn't change its mind." The split between SCOTUS and the 5th is becoming more and more evident:
The Supreme Court has indicated the 5th Circuit has gone too far, denying defendants' constitutional rights. Although the high court accepts and decides only a tiny fraction of the cases that are filed each term, it nevertheless has taken three Texas death penalty cases at least twice. In each, the high court repeatedly has warned the 5th Circuit about failing to comply with its rulings.

"What is really happening is the death penalty system in Texas is close to breaking, because the Supreme Court simply does not have the resources to police every single death penalty case that comes up from Texas," said David Dow, a professor at the University of Houston Law Center who represents death row inmates.
"They have to be able to count on the 5th Circuit and the Texas Court of Criminal Appeals to do their jobs," he added. "So far, they haven't been able to do that."

And to me, this is the most shocking portrait of the 5th Circuit's irresponsible handling of Texas death penalty cases, and the Miller-El case specifically:
The 5th Circuit said it was merely deferring to the state trial court's decision that Miller-El had not proved the bias. But Kennedy wrote that showing deference "does not imply abandonment or abdication of judicial review." His opinion laid out in detail the evidence the justices found to be obvious.
Rather than following the majority's opinion, however, the 5th Circuit relied on the reasoning of Justice Clarence Thomas, ... who was the lone dissenter in the case. It lifted several passages from his opinion, without attributing the wording to him, in its latest decision in the case.

Abdication of judicial review, indeed. The same week in December, the New York Times noted the Supreme Court's rising tension with the Texas capital punishment system.
Perhaps as telling is the exasperated language in decisions this year from a Supreme Court that includes no categorical opponent of the death penalty. Justice Sandra Day O'Connor wrote in June that the Fifth Circuit was "paying lip service to principles" of appellate law in issuing death penalty rulings with "no foundation in the decisions of this court." In an unsigned decision in another case last month, the Supreme Court said the Court of Criminal Appeals "relied on a test we never countenanced and now have unequivocally rejected." The decision was made without hearing argument, a move that ordinarily signals that the error in the decision under review was glaring.

You can read Sentencing Law and Policy blog's take on Justice Breyer's concurrence in Miller-El here. See my original post related to the Death Penalty in Texas, and the reversal of the conviction of Thomas Miller-El here.

Monday, June 13, 2005

Debate Club: School Vouchers

Legal Affairs has a weekly feature called the Debate Club which I've mentioned before. It takes two legal/scholarly/interest group folks and has them debate a topic during the week.

This week the question is school vouchers - Fifty years ago, Brown v. Board of Education promised desegregation "with all deliberate speed." But according to the U.S. Department of Education, the benefits for minority students from that landmark ruling fall short of expectations. In 2003, just over half of black and Hispanic high school students graduated compared to 72 percent of white students. One potential solution to the racial disparity is school vouchers. Advocates say vouchers increase graduation rates and empower minority students. Critics suggest that the program's results are less clear and, because vouchers are often used at parochial schools, violate the separation of church and state. Would vouchers help fulfill the promise of Brown?

The participants are Clint Bolick - President and General Counsel for the Alliance for School Choice; and Laura Underkuffler - Professor at Duke Law School.

I think this should be a good week of debate on an interesting topic...Monday was a good start.

I have always opposed school vouchers for two basic reasons:

1. By endorsing a voucher program, you are (essentially) acknowledging that your public school system is a failure and you give up all hope of restoring or healing the system itself. I cannot and do not accept that - I refuse to give up on these kids, these teachers, these parents, these neighborhoods. It may take longer, and it may be more expensive - but the (very real, very grave) problems which exist can be corrected if we choose to make the effort, bring back the hope, and do the work that must be done.

2. I have serious doubts about the fairness of these programs. How does a poor family afford to get their kids from their neighborhood out to the suburb to the fancy private school? How do minority kids fit in at schools that may have once been established specifically to avoid integration? There are a lot of intangible qustions like this that I can't get a comfort feeling around when talking about 'school choice'. How much of a choice is the suburban, uniform-wearing private school to the single mother of three who works two jobs and lives downtown and doesn't own an auto?

I think this Debate Club should provide a lot of good information to help form and inform opinions.

Will Texas lose the death penalty?

Today the Supreme Court overturne the conviction of Thomas Miller-El and remanded the case to either be retried, or Miller-El released. The conviction was overturned due to the strong evidence of racial prejudice during jury selection.

See SCOTUSblog's notes here and here.

See the AP report from the Houston Chronicle here.

This is the second time the Supreme Court has heard the appeal of Miller-El. The Court sent the case back to the 5th Circuit last year after noting the strong evidence of racial prejudice. The 5th Circuit completely ignored the Supreme Court's order, dismissing the appeal (again) and quoting (without citing) only Mr. Justice Thomas' DISSENT in the original Miller-El decision.

Writing for the majority today, Mr. Justice Souter noted the state court's determination was, "wrong to a clear and convincing degree; the state court's conclusion was unreasonable as well as erroneous" - which was also a clear rebuke of the 5th Circuit's unwillingness to re-look at this clear, convincing, and unreasonable error. AP also noted:
Last year, the Supreme Court overturned two Texas death sentences because jurors were not old of the defendants' learning disabilities. They were LaRoyce Lathair Smith, convicted for he 1991 killing of a Taco Bell manager in Dallas, and Robert Tennard, charged with killing a ouston neighbor in 1985.
The court also lifted Delma Banks' death sentence and delivered a strong criticism of Texas officials and lower courts, saying that prosecutors had hid crucial information that might have helped Banks' case.
For such a conservative Court, this is an unusually large amount of reversal's. Last year there was discussion that the Supreme Court is so frustrated by Texas' and the 5th Circuit's unwillingness to provide rigorous tests and protections related to capital punishment, that at some point, the Supreme Court may halt the process in Texas until the state can come to grips with just just how unfair it's process is. Here is a NYTimes column from last year noting the High Court's frustration with the capital punishment system in Texas. Miller-El can only be another step in that direction.

See J. Souter's opinion here (joined by O'Connor, Kennedy, Ginsburg, Stevens, and Breyer).
See J. Breyer's concurrance here (suggesting doing away with peremptory challenges).
See J. Thomas's dissent here (joined by the Chief Justice and Scalia).

Clinton gets it...

Sometimes old news is new. I remember earlier this year that Sen. Hillary Clinton gave this speech on the anniversary of Roe v. Wade, and that speech sparked a bit of press coverage because of the sense that it was reaching out to find a compromise on the abortion issue. Pundits on the right spun this as an early set piece in her run for the Presidency in 2008, and pundits on the left spun it early set piece in her run for the Presidency in 2008. At the time I paid little attention because I thought much of the coverage was just that - spin. Today, I stumbled upon a couple of columns which discussed that speech in detail and - wow, it was really good stuff. Hillary really gets it.

William Saletan wrote a piece for Slate which he described Clinton's position on abortion to be Safe, Legal, and Never. Which sounds remarkably similar to my opinion on abortion, expressed in part in this post from 09-Nov-04. In that post I noted that:
Personally, a short-term victory means little to nothing to me if I’m treating, or more likely hiding, a symptom and ignoring the disease. I'd prefer to reduce and/or completely end abortions in the United States. But overturning Roe v. Wade doesn’t end it. It is so much more important to end the vicious cycles that actually push women to decide on abortion. Until you’ve done that, you’ve done nothing.

Saletan notes Clinton's primary point in her speech:
Abortion is "a sad, even tragic choice to many, many women," said Clinton. Then she went further: "There is no reason why government cannot do more to educate and inform and provide assistance so that the choice guaranteed under our constitution either does not ever have to be exercised or only in very rare circumstances."
Does not ever have to be exercised. I searched Google and Nexis for parts of that sentence tonight and got no hits. Is the press corps asleep? Hillary Clinton just endorsed a goal I've never heard a pro-choice leader endorse. Not safe, legal, and rare. Safe, legal, and never.

Saletan goes on to point out some of the reasons that Clinton gets it:
Clinton seems to understand this. In her speech, she recalled campaigning for "teenage celibacy" a decade ago. She emphasized "the important role that parents can play in encouraging their children to abstain from sexual activity. … Research shows that the primary reason that teenage girls abstain is because of their religious and moral values. We should embrace this—and support programs that reinforce the idea that abstinence at a young age is not just the smart thing to do, it is the right thing to do."
Abstain. Parents. Religious and moral values. The right thing. This is the way to shake up the Democratic position on abortion—not with tiny defensive concessions but with a big offensive to promote responsibility and bring down the abortion

The Wall St. Journal commented on the speech as well here, noting:
Clinton has one great advantage in pressing this argument: Because of her iconic status, she is the one Democrat who can get away with making pro-life noises without alienating the party's pro-abortion base ... She probably could even get away with endorsing some modest legal restrictions on abortion, though as far as we know she hasn't yet had the political courage to do so.

That piece goes on to comment on how changes in the abortion debate could affect her run for President - but I don't think those points are relevant to the real issue.

Sen. Clinton understands that it is okay to say that you want to reduce or eliminate abortions in America - yet still believe in the legality of that choice. There is no inherent conflict in those viewpoints...

Hillary gets it.

You can get more on that speech from the NYTimes here; or Washington Times here.

Friday, June 10, 2005

Lethal Injustice...

Executed on a Technicality is a new book by Prof. David Dow, University Distinguished Professor at the University of Houston Law Center.

A few comments/reviews:

"When David Dow was first asked to represent death row inmates, he supported the death penalty. Capital punishment was an abstraction to him, and he imagined that death row was filled with characters like Charles Manson and Hannibal Lecter. Dow gradually realized that his perception of the death penalty and of those on death row was completely incorrect." "The cases in this eye-opening book are those of the men on death row who changed Dow's mind about capital punishment forever. You'll meet Johnny Joe Martinez, for instance, who was executed despite the fact that Dow convinced the court that he had strong grounds for an appeal. Martinez had exhausted his right of appeal when his lawyer wrote a mere seventeen-line-long appeal; he was executed on a technicality. Roger Coleman was denied an appeal because, although his lawyers mailed the appeal notice on time, it was received literally one day too late; he was executed because his lawyers failed to use registered mail." These concrete accounts of the people Dow has known and represented prove that the death penalty is consistently unjust, and it's precisely this fundamental - and lethal- injustice, Dow convincingly argues, that should compel us to abandon the system altogether.

Kirkus Reviews

The death penalty is wrong because it can't be meted out fairly, argues Dow (Law/Univ. of Houston). The standard argument against executions is that they are cruel, inhumane and somehow uncivilized: a rhetorical strategy that often runs aground on the hard retort that killers can't be punished enough and to feel sympathy for them is naive at best. Some death penalty abolitionists, like Sister Helen Prejean, will explain why certain death row inmates are actually innocent, but even though the author is director of the Texas Innocence Network, he thinks that's also the wrong angle to take. Dow systematically walks readers through the process by which states decide to execute criminals, a process that ultimately owes far more to a convict's race, class and caliber of attorney than to the crime's level of brutality, which is supposed to be the factor that determines whether a death penalty or life sentence is imposed. "The tiny handful that we execute is almost never the worst of the worst," writes Dow. "Instead, people are executed because eyewitnesses make mistakes, police lie, defense lawyers sleep, and judges do not care." He returns repeatedly to the subject of defense lawyers who slept through the trials of clients who later went to death row; in one unbelievable instance in Texas, six people who had been represented by one dozing lawyer were executed. It isn't just a bad defense that makes the system so unfair to the accused, the author asserts; it's also the simple fact that minorities are executed far more often than their white counterparts (regardless of the severity of the crime) and that higher courts are increasingly unwilling to hear appeals from those on death row. Though the central power of Dow's argument occasionally gets lost in a book that
frequently reads like a dry legal brief, he succeeds in illuminating the horrific arbitrariness of a system that has abandoned blind justice for "the rule of the mob." An honorably dispassionate and logical broadside against a shameful practice.

From Publishers Weekly

This volume joins a growing list of recent books arguing against the death penalty, particularly by people who once supported it. Dow, a professor at the University of Houston Law Center and founder of the Texas Innocence Network, used to be "somewhere between agnostic and mildly in favor of capital punishment." Then, in 1988, he took on the case of Carl Johnson-and began to change his mind. Johnson's lawyer literally slept through crucial parts of the trial, and the judge, in Dow's opinion, gave an incorrect answer to a question from the jury that might have compelled them to sentence Johnson to death. The arguments Dow presents are pragmatic, based not on abstract theories but on facts: only a handful of murderers are executed, he says, and they are "almost never the worst of the worst"-not the Hannibal Lecters, not the Charles Mansons. Rather, they are poor members of minority groups who have been represented by incompetent lawyers, manipulated into forced confessions, or have, in some cases, even been innocent. All of these points will be familiar to opponents of capital punishment, but readers who are on the fence may learn much from Dow's impassioned but well-reasoned case.
From Booklist

Formerly a supporter of the death penalty, attorney Dow examines the inherent unfairness of the process of imposing the death penalty. Currently, sentencing focuses too much on guilt rather than fairness, Dow asserts. He focuses on a number of cases involving horrible crimes, in which the determination of the death penalty depended less on the crime and guilt than on a culmination of other factors, including official corruption and inept defense attorneys and judges. In effect, contrary to public notions that the penalty fit a particular crime, the death penalty is as random as a lightning strike. Dow provides historical perspective on the death penalty--outlawed in 1972 because of its arbitrary use, and its reinstatement with an extensive appeal process meant to address concerns about constitutionality. But a 1996 law effectively undercut the appeal process, sacrificing fairness as the application of the death penalty appeared less a response to horrendous crimes and more a measure of the accused's race, class, and inability to secure a fair trial.

Buy it from Amazon here.
Buy it from Barnes & Noble here.
Buy it from Brazos Bookstore (including signed copies) here.

What is commerce?

So, what is interstate commerce? I’ve been thinking about this much more this week after the Raich opinion. (See my previous posts here, here and here on Raich.)

The Constitution gives the federal Congress the right to legislate and regulate interstate Commerce. Article 1, Section 8, Paragraph 4 says as follows:

[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes
The key phrase there is the Power to regulate commerce among the several States – the Interstate Commerce Clause. In and of itself, it seems simple enough…but it becomes more and more difficult to define what is commerce – and what is among the several States. Very generally speaking, there are two camps of interpretation – Narrow and Broad. The narrow interpretation would severely limit what is classified as commerce, and would strictly define what is among the States. Conversely, the broad interpretation would categorize most activity as commerce, and use a very open test to determine what is among the States. This controversy is central to the discussion of Raich – and much (if not most) federal legislation.

Historically, the federal powers under the Commerce Clause of the Constitution have been interpreted quite broadly. C.J. John Marshall himself stated, “[T]he power of Congress does not stop at the jurisdictional lines of the several states. It would be a very useless power if it could not pass those lines." Gibbons v. Ogden, 22 U.S. 1 (1824). Marshall was an early visionary seeing, when many others could not, that a strong federal government was critical for the industrial age advances that the new United States needed for development and expansion. Later, the Supreme Court extended these powers to govern activity which was “local.” In Wickard v. Filburn, 317 U.S. 111 (1942), the Court held that a farmer who was growing wheat on his own land, and only for personal consumption, could be regulated by Congress through the Commerce Clause. Mr. Justice Jackson there stated,
Whether the subject of the regulation in question was 'production,' 'consumption,' or 'marketing' is, therefore, not material for purposes of deciding the question of federal power before us. That an activity is of local character may help in a doubtful case to determine whether Congress intended to reach it.... But even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as 'direct' or 'indirect.'
The effect of the statute before us is to restrict the amount which may be produced for market and the extent as well to which one may forestall resort to the market by producing to meet his own needs. That appellee's own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial....
In addition, Jackson specifically noted John Marshall saying, “At the beginning Chief Justice Marshall described the Federal commerce power with a breadth never yet exceeded. He made emphatic the embracing and penetrating nature of this power by warning that effective restraints on its exercise must proceed from political rather than from judicial processes.” He also noted the opinion of Mr. Justice Holmes in Swift & Co. v. United States, 196 U.S. 375 (1905), in saying, “Mr. Justice Holmes, in sustaining the exercise of national power over intrastate activity, stated for the Court that 'commerce among the states is not a technical legal conception, but a practical one, drawn from the course of business.

It is relatively clear from this historically underpinning, that the Commerce Clause is a broad doctrine, giving the federal government the power to regulate a wide range of activities that have a substantial effect on the nation as a whole.

So where is the controversy? Where is the dispute? Well, as stated, there is a camp that would read the Commerce Clause in a very strict and limited sence…it is not a viewpoint that either John Marshall or Oliver Wendell Holmes would hold to, but it exists nonetheless. Why?

The Constitution in Exile. Originalism. The Dead Constitution.

The Constitution in Exile movement essentially believes (in a sweepingly general sense) that the Constitution should be interpreted as it would have been when enacted – thus the Commerce Clause should be interpreted as it would have been in 1787.

(Understand, there are varying forms of Originalism – I’m simply making broad generalizations.) So…in 1787 would the Founders have considered growing wheat on your own land for personal use to be interstate commerce (or commerce among the several States)? Doubtful. And so under the Rehnquist Court we have seen the doctrine of New Federalism – exemplified in Lopez and Morrision. In United States v. Lopez, 514 U.S. 549 (1995), the Chief Justice wrote that a federal law (the Gun-Free School Zones Act of 1990) which forbids "any individual knowingly to possess a firearm at a place that [he] a school zone” was “not an economic activity that might, through repetition elsewhere, have a substantial effect on interstate commerce. The law is a criminal statute that has nothing to do with "commerce" or any sort of economic activity.” And in United States v. Morrison, 529 U.S. 598 (2000), the Chief Justice in the opinion of the Court held that Congress did not have the power to establish the Violence Against Women Act of 1994, noting that, “under our federal system that remedy [for the violence against the victim] must be provided by the Commonwealth of Virginia, and not by the United States." Note than in dissent of Morrison, Mr. Justice Souter wrote that a, “mountain of data assembled by Congress...showing the effects of violence against women on interstate commerce."

So, especially under the Rehnquist Court, the Commerce Clause is indeed controversial or disputed. Maybe much more so today because Justices Kennedy and Scalia decided to vote with the majority in Gonzales v. Raich (2005) and allow the federal government’s prosecution of drugs deemed illegal by the federal government and legal by the state of California.

To me, despite Mr. Justice Scalia’s concurrence with the majority in Raich, the entire question of the extent of the Commerce Clause comes down to whether you believe in a dead Constitution, or a living Constitution.

I believe in a Constitution that is alive.

We do not live in 1787. Surely, at that time the Founders would not have understood the federal congress to be able to regulate the agriculture industry to the point that a farmer growing wheat on his own land, for his own use would constitute interstate commerce. But these are different times – the entire nation is a marketplace – the entire globe is a market place. In 1787, travel, communication, information, production, marketing…everything was local and it was slow. That is simply not the case anymore. When I post this entry to my blog today, it is immediately readable all over the planet. When I drive my car, I’m engaging in interstate commerce. When I turn on my TV, I’m engaging in interstate commerce. It is taxing to think of any activity that we participate in anymore that does not, in some way, “exert[] a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as 'direct' or 'indirect.” In today’s world, almost all activities, in aggregate, have an affect on the nation as a whole.

We do not live in 1787, and our Constitution is not dead.

Everything is commerce.

To good to archive...

My posts on the Supreme Court bobble heads (here and here or May archives) have scrolled off the main page - but I just can't let that happen yet - these things still make me laugh each time I look at them - so here they are again...

Drugs and Profits...

Yesterday afternoon driving over to the Law Center, I listened to a rather remarkable report on NPR's All Things Considered entitled Documents Suggest Merck Tried to Censor Vioxx Critics (Part I here; Part II here). It was an analysis of Company documents suggesting that drug giant Merck tried to quell any opposition or criticism of it's arthritis drug Vioxx.
At least 38,000 Americans are believed to have died from taking the pain pill Vioxx before it was withdrawn last year. Drug maker Merck is now facing thousands of lawsuits.
Over the past few months, it has emerged that the company was aware for years that Vioxx might be dangerous. Now, new documents obtained by NPR suggest that even as Merck was making Vioxx into a bestseller, the company was putting pressure on independent doctors. The company's apparent aim: to keep them from discussing evidence of Vioxx's potential safety problems. The documents show that Merck exerted pressure not only on individual doctors, but also on several of the nation's top medical schools.
It comes as little surprise that the pharmaceutical industry would try to play up the positives, and play down the negatives of their products - every industry does the same. But, when the negatives pose serious health risks - up to and including death - then it becomes a trickier issue. Do these companies have the obligation to do more - or at a minimum, don't they have an obligation not to suppress what is known? Merck appears to have conducted a coordinated effort to suppress the criticisms of doctors who were questioning Vioxx - including doctors they had initially signed up to act as spokespeople.

Early in the marketing process, Merck had recruited Gurkirpal Singh of Stanford University, "Merck wanted Singh on board because he was a senior researcher on a seminal study of arthritis patients." Singh had been an advocate for Vioxx until certain research began coming out which linked Vioxx to increased rates of heart attack. Merck refused to provide the documentation of those studies to Singh, and he began to criticize the drug. Of course, Merck didn't just take that laying down...
Dealing with Singh was now a job for Merck's senior vice president for medical and scientific affairs...Merck documents obtained by NPR show that a detailed account of Singh's activities was now prepared...Almost a dozen Merck executives were involved...The profile of Dr. Singh is remarkably complete," says Columbia's David Rothman, who reviewed the final document for NPR. "One can't help but almost frame it in terms of an FBI dossier, except here Dr. Singh is not cavorting with possible communists, or possible gangsters. Here the dossier is filled with Dr. Singh's take on Vioxx, who is Dr. Singh talking to. It's scrupulously watched and very, very carefully recorded."...Around the same time, Singh heard from a friend inside Merck: "I was told [a] vice president at Merck, had become 'very interested,' in quotes, in what I was doing, and that [the vice president] is "very powerful, and he's going to crush you and he's going to fix you.'"
It also appears that the drug company went after Stanford, where Singh was a researcher.
Lisa Bero is a professor of clinical pharmacy and health policy at the University of California, San Francisco. She's done extensive research showing how funding from drug companies influences academic science. She reviewed [an] email [regarding influence at Stanford] at NPR's request.
"I didn't realize how powerful the drug companies thought they were," Bero said. "For example, having enough influence over a department to say 'change what your faculty member is saying.' I haven't ever seen that documented before."
Obviously, big drugs are big money - and they are not just big money to the drug companies - but to the medical schools who reap financial windfalls from that industry.
In 2004, Stanford's medical school got 9 percent of its research budget -- $29 million -- from drug companies. NPR surveyed several medical schools and found that's not unusual.
This was a really good report, and I highly recommend you take a read or a listen over at NPR. This type of report really questions how much these drug companies know about the detrimental side affects of their drugs, when they know it, and what they do with that information. Obviously, in the day and age in which we live, there are going to be side affects to much of this new technology, much of which is tolerable due to the overwhelming benefits of the drugs created. But, it is imperative that these trade-offs - this balancing of costs and benefits - be a public and transparent process. It appears that the entire pharmaceutical industry may be less than transparent in that process. Today's NY Times has a story entitled Lucrative Drug, Danger Signals and the F.D.A., which is an examination about similar issues at Johnson & Johnson related to a heartburn medicine.

The really distressing thing to me is that all of this is occurring amidst a background of record profits for drug companies. Is there a correlation between the thirst for profits and market expectations, and the pressure to suppress bad news about 'miracle drugs'?

Thursday, June 09, 2005

If you can't recruit, you can't cull...

It has been fairly widespread news of late that the military's recruiting has been down for several months. Tuesday's NYTimes had an article about Army recruiting (After Lowering Goal, Army Falls Short on May Recruits)...and it's not a pretty picture.
On Friday, the Army is expected to announce that it met only 75 percent of its recruiting goal for May, the fourth consecutive monthly shortfall in the number of new recruits sent to basic training. Just over 5,000 new recruits entered boot camp in May.
But the news could have appeared worse. Early last month, the Army, with no public notice, lowered its long-stated May goal to 6,700 recruits from 8,050. Compared with the original target, the Army achieved only 62.6 percent of its goal for the month.
A look at this graph shows the shortfalls over time.

The Army's recruiting goal for 2005 is 80,000 new soldiers, as of May, they are 8,300 behind in their monthly goals - but summer is usually the bigger months. But here is what one Army recruiter in New York said:
One of the recruiters said he doubted that the summer would yield more recruits than the spring. "The summer is supposed to be big, but I don't think it's going to happen," he said. "I don't see much interest among the high school seniors."

So maybe not...but there are other options:
To help offset the recruiting shortfalls, the Army is also trying to keep more soldiers. A memorandum from the Army's top personnel officer last month outlined a plan to reduce attrition among first-term enlistees by 1 percent, and retain 3,000 soldiers.
The memorandum, first reported last week by The Wall Street Journal, requires the approval of more senior-level brigade commanders, instead of battalion commanders, to discharge soldiers for pregnancy, drug or alcohol abuse, or poor fitness.
So, due to the recruiting problems, the Army may have to start keeping soldiers that it ordinarily would discharge - simply to maintain numbers. That does not sound like a successful long-term plan. Here is the Wall St. Journal article entitled To Fill Ranks, Army Acts To Retain Even Problem Enlistees. It seems that not everyone is thrilled about the new plan.
Still, some Army battalion commanders are less than pleased with the Army's decision to try to keep more problem soldiers in the service. "It is the guys on weight control ... school no-shows, drug users, et cetera, who eat up my time and cause my hair to gray prematurely," says one Army battalion commander. "Often they have more than one of these issues simultaneously."
So because of the problems in recruiting, individuals who would have been dismissed in the pass may be retained - to fill out the numbers. And, if the recruiting is down, what about the quality of the new recruits that are coming in?
One commander says the growing attrition problem can be traced to a slip in the quality of new soldiers as recruiters have increasingly struggled to hit their monthly quotas. "There are guys showing up at units with physical problems or other issues who you would not have seen a couple of years ago," says the commander.
In March, 17.4% of all new Army recruits failed to make it through training. Another 7.3% didn't finish their first three years with their unit. The Army's goal is to keep training losses below 12% and first-term enlistee losses below 5%.
You can see more about the attrition problems in this graph.

No questions there are a lot of variables that go into those numbers, but it would be difficult to argue that the recruiting problems play no part.

Slate has a good column, Dismissed!, about why this is poor long-term strategy...

By retaining these soldiers, the Army lowers the quality of its force and places a heavy burden on commanders who have to take the poor performers into harm's way. This is a quick fix that may create more problems than it solves.

and what are some viable solutions...
If retention is the goal, the military pay and promotion system needs a complete overhaul. First, retention bonuses should more closely mirror recruiting costs. Today they lag by more than 50 percent...
Second, the lock-step, caste-based pay system needs to be scrapped. In its place, a risk-adjusted bonus system needs to be built to target the growing majority of soldiers who cite "hardship" as their reason for leaving the service...
The Pentagon must stop the proliferation of its private army. Today there are as many as 30,000 private military contractors serving in traditional military billets. They are paid up to five times as much as soldiers performing the same duties. Encouraging the privatization of soldiers when there is a severe shortage of riflemen is circular reasoning...
Finally, a new reserve component is needed. The active reserve's one weekend per month and two weeks per year requirement no longer meshes with the modern workforce...
The problems are troublesome. In the context of an operation in Afghanistan, the saber-rattling of Iran and N. Korea, and a long-term, infantry intensive occupation of Iraq, these problem beg grave questions. Not the least of which is at what point does conscription become inevitable...