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New York Times Gunning for Justice Kennedy

Many have claimed that Justice Anthony Kennedy's votes in key issues have been motivated by the Greenhouse Effect, which is

is the name of a phenomenon popularized by D.C. Appeals Court Judge Laurence Silberman referring to federal judges whose rulings are guided solely by their need for adulation from legal reporters such as Linda Greenhouse of the New York Times. The idea is that once confirmed, justices become desperate to be invited to the right cocktail parties and conform their views to those of the liberal intelligentsia.

Whether the Times has influenced Kennedy's views is not something I am qualified to answer.  I did notice something very interesting in a recent Times editorial.  In arguing why it felt the Court wrongly decided Ledbetter v. Goodyear Tire and Rubber (an employment discrimination case), the editors singled out Justice Kennedy:

It is disturbing that Anthony Kennedy, the court’s swing justice, cast the deciding vote in favor of gutting a key part of the Civil Rights Act.

Whether the Times' effort to shame Justice Kennedy into voting the "right" way is working is an open issue.  Whether the Times is engaging in a plot to influence Justice Kennedy is now a closed case.

Phantoms of Lost Privacy

Everyone has been so concerned with the government's information mining that they lost track of what people in the private sector are doing:

While I am not saying that the privacy concerns raised by private sector actor's is a good or bad thing, it is worth noting that people in the private sector generally manage to gather and collect information more efficiently than in the public sector.

Wales Bound

Dante missed one of Hell's circles. It is populated by lawyers preparing to leave for vacation. What vision? Perhaps an urban sewer, a steady stream of waste streaming onto the damned who sit politely prattling into a telephone. Hell, alas.

Parting is such sour sorrow, it almost makes me regret having decided to leave the office.Well, not quite.

By the time you read this, I will be settled into a farmhouse in rural Wales. I am attending the 20th annual Hay-on-Wye Festival. I've already purchased tickets to attend writers' workshops, lectures on the crusades, global warming and organic gardening. I'll even tour a Welsh dairy farm. Who knows whether cows are in my future?

But tonight I suffer. My flight leaves tomorrow and I am swamped by the thousand and one details of running a small firm. Short calendars in order? Check. Motions up to date. Ditto. Briefs overdue? Miraculously, no. As always, though, I am behind on calls to clients. So much woe and so little time, what's a lawyer to do?

I've been tossing and turning for a week, stunned by my good fortune. Me a 50-something geriatric hippy of no pedigree off to Wales. For 10 solid days nothing to do but tour bookstores, and listen to lectures by authors known and unknown. And solitary walks amid the sights and smells of an ancient countryside. Heaven is within reach.

Hay-on-Wye is a book lover's paradise. The town is parked some 150 miles from London. It boasts 1,500 residents, but, and here is a glimpse of the divine, there are more than 40 bookstores in the town. All but a handful sell used and rare books. Pinch me. Tell me this is not a waking dream.

It all started almost 40 years ago when Richard Booth bought the castle in the town's center and declared himself King of Hay. A bold move. Who would want to be lord of a declining farming town?

Booth soon began to import books in bulk from estate sales, library sales, sales of every sort. Many of the books came from North America. He sells these used treasures. "This shall be a book town," he declared. And so it is. It sounds like my kind of place.Twenty years ago, the town started holding annual festivals. Book lovers flock to Hay from around the world. I've tried to arrange my schedule to attend for the past two years. But ornery judges with cases to be tried interfered each year. This year I staked all on going to Hay. And it is so. For 10 days I will sip ambrosia. But first, I suffer. I have a small firm, and a handful of employees. There is so much to do. I push through a dark night and then recall as if awakening from a dream that there is a column, too, to write. I've many commitments and only so much time.

I am gone tomorrow. There is grace even in the law.

Can Bethany be a book town, I wonder? Don't I own a bookstore? Questions, hopes, dreams, desires. All compressed for a time on printed page and celebrated in Wales. Can I really be going?

It is so. When you read this, I will be gone. Dreams can come true. Next week, I will write from Wales.

Reprinted with permission of The Connecticut Law Tribune.

Terrorism: Two Reminders

This article in the Washington Times notes that a) Middle Eastern men are doing terrorist test runs and b) the government is covering this up.  The article thus reminded me of two things.  First, do not expect the government to keep you safe from terrorism.  The government is actually covering up the terrorists' plans because, in the government's eyes, it's better that the sheep feel safe - even if they are not actually safe.  As my friend Kip likes to note in unrelated contexts, it's the politics of the warm-and-fuzzy feeling.

Second, while racial profiling* is a very bad thing for the government to do (and it's something I oppose the government's doing), you'd better believe that I do it.  Show me a flight full of 13 Middle Eastern men, and I'll show you a flight I'm staying awake on. 

*Of course, show me a group of white males wearing camouflage pants and "Live Free, Or Die" shirts, and I'll show you  one blogger on high alert.  So spare me the lectures on equality: I "racially profile" people of every race.

Justice Stevens Wants Confusion in the Law?

In order to win a Section 1983 lawsuit against a police officer, the plaintiff must show, first that a police officer violated the law; and second, that the law was clearly established at the time of the violation.  If the law was not clearly established at the time of the rights violation, the officer is entitled to qualified immunity from suit, i.e., he skates. 

In Los Angeles County v. Rettele, a per curiam Court held that it was not unreasonable under the Fourth Amendment for police officers to order a naked couple to remain standing with everything showing.   While I think that ruling was a bad one, Justice John Paul Stevens proposed an even worse rule:

[No case] clearly establish the unconstitutionality of the officers’ conduct.  Consequently, regardless of the proper answer to the constitutional question, the defendants were entitled to qualified immunity. I ... disavow the unwise practice of deciding constitutional questions in advance of the necessity for doing so.

Slip op. at 9 (emphasis added).  Imagine if Justice Stevens' rule were widely applied.  That is, in every tough case courts would hold, "We won't say whether what the officers did here was a constitutional rights violation.  What we will say is that, even if it was, the law was not clearly established at the time of the officer's conduct."  How could the law ever get clearly established in such a world? 

Isn't it better to have more clarity in the law?  (Steve Minor has similar thoughts here.)  Wouldn't it be better for officers to know in advance what they can or can't do?  Indeed, isn't it fundamental to the rule of law that all laws be knowable in advance? 

Surely Justice Stevens would not contend that the Rettelle's Court's deciding the constitutional question amounted to an advisory opinion.  There was a live case or controversy before the Court, namely, litigants sued claiming it was unreasonable to hold them naked at gunpoint.  The Court simply said, "Nope, your rights were not violated."  Why clarifying the law is an "unwise practice" is beyond me.

Family Court? God Save Me

I have a proposal to make. It will cost some lawyers a lot of money. And it raises grave constitutional issues. But I rely for persuasive authority on none other than Plato. As you will recall, he thought the state should raise children. It was too big a job for parents acting alone.

I say, once a couple becomes involved in divorce proceedings, remove the children from the custody of both parents. Create a rebuttable presumption that both parents are unfit to raise healthy children given the travail that is divorce. This might actually reduce needless litigation, force parents to behave well, and put the divorce bar out of work.

I am prompted to propose this after being lured into the family courts once again. I represent a father. He believes his ex-wife wants him out of her children's lives, the better to live with her new and oh-so-perfect husband.

Efforts to negotiate the father's resumed visitation fail. I ask the lawyer for the mother whether there is any conceivable situation under which the mother would agree to resumed visitation. No, is the response. So I file a motion for contempt.

The court appoints a new lawyer for the children. Suddenly, the mother's lawyer is sweet reason. Is there anything we can do, she implores, in an email sent courtesy copy to the new lawyer for the kids. There are minor children at stake, she begs.

This is a start, I reason. After a couple months in the case, she is finally willing to talk. We arrange a call. My client is sick, disturbed and the mother just wants what is best for her children, I am told. What about resumed visits with the kids? I ask. He needs to sign the release, opposing counsel responds. Huh?

My client has supervised visitation. About the time I got in the case, the supervisor got wind that trouble was in the air. He wanted my client to sign a release promising not to sue or he'd quit. Without the supervisor, apparently, there can be no visits.

I am now beyond incredulity. What has a release to do with the best interests of the children? What sort of clinician insists on a release from liability as a constructive condition of a father's seeing his child?

My adversary isn't so nice anymore. "I was hoping what everyone said about you wasn't true. I thought you'd be reasonable," she says. I just want to know what a release from suit has to do with visitation.Gibberish is the response. I try to back off. Educate me, I say. I am not a family court lawyer. What principle animates this?

If he wants to see his children all he has to do is sign the release, I am told. Just who is this lawyer representing? When I demur, she tries a new tactic. Your contempt motion is ridiculous, I am told.

I agree, it may be.Maybe I really should sue the supervisor.

You know we are all laughing at you, she tells me. Now that's a rhetorical move new in my experience. Oh, I am stung to the quick. By all means, take my client's children.

Is this what passes for lawyering in the family court? Feigned sincerity for half-an-hour or so? Then insults and ridicule?

Go ahead and laugh, I say. I sort of feel as though I just walked into a leper colony and all the residents are giggling. He looks funny, they say. I am glad I do.•

Reprinted courtesy of The Connecticut Law Tribune.

Scalia's New Police Professionals

In Hudson v. Michigan, Justice Scalia argued that the exclusionary rule was unnecessary because of "[a]nother development over the past half-century that deters civil-rights violations," namely, "the increasing professionalism of police forces, including a new emphasis on internal police discipline."  In the past couple of days, we have the following examples of the "new police professionalism"

If this is what Scalia considers to be professional, then what does he consider unprofessional?

Everything About You Is Wrong

Orin Kerr has a disturbing post involving a man convicted for violating a law that no one seemed to know existed:

  Each day around lunch time, Sam Peterson would drive to the Union Street Cafe, park his car and--without actually entering the coffee shop--check his e-mail and surf the Net. His ritual raised the suspicions of Police Chief Andrew Milanowski, who approached him and asked what he was doing. Peterson, probably not realizing that his actions constituted a crime, freely admitted what he was doing.

"I knew that the Union Street had Wi-Fi. I just went down and checked my e-mail and didn't see a problem with that," Peterson told a WOOD reporter.  

Milanowski didn't immediately cite or arrest Peterson, mostly because he wasn't certain a crime had been committed. "I had a feeling a law was being broken," the chief said. . . .  

Milanowski, who eventually swore out a warrant for Peterson, doesn't believe Milanowski knew he was breaking the law. "In my opinion, probably not. Most people probably don't."

Indeed, neither did Donna May, the owner of the Union Street Cafe. "I didn't know it was really illegal, either," she told the TV station. "If he would have come in (to the coffee shop), it would have been fine."

The defendant did not know what did was illegal; the "victim" did not know she was a victim; and the police officer did not know what what the defendant did was illegal.  Yet under these circumstances there was a prosecution?  Where goeth prosecutorial discretion? 

What's worse is that, if you find Orin's analysis persuasive (I do), you must conclude that the defendant did, in fact, not break any law.  So we have someone being convicted of something that either a) no one knew was a crime; or b) was not a crime at all.

That, my friends, is our criminal justice system at its best.