Larry Tribe is the smartest man alive

When Justice Souter retired, Larry Tribe, the famous Harvard law professor, wrote a letter to President Obama (his former student) urging him to nominate Elena Kagan.  The letter has now been leaked to Ed Whelan.  It is a very interesting letter.  One aspect that struck me was Tribe's apparent confidence that he could easily judge the relative intelligence of the front-runners. 

• On Sonia Sotomayor, the eventual nominee:  "Bluntly put, she's not as smart as she thinks she is."
• On Judge Diane Wood:  "More powerful intellectually than Sonia Sotomayor or any of the others mentioned as plausible prospects at the moment with the sole exception of Kagan, who is even smarter."

I guess when you're a professor at Harvard law school you get pretty confident in your ability to separate the brilliant from the merely very smart.  But, boy, what an ego!

Prof. Paulsen on the "separation of church and state"

Michael Stokes Paulsen, our old civil procedure professor, has some thoughts on Christine O'Donnell's comments about the separation of church and state, including:

Ms. O’Donnell’s pithy challenge—“Where in the Constitution is the separation of church and state?”—is actually an excellent shorthand critique of those (like Mr. Coons, perhaps?) who would sloppily translate the First Amendment’s protections of religious liberty into incoherent hostility toward religion. And that is no laughing matter.

Caffeine + Alcohol = MADNESS!

Powers that be are moving to ban beverages like "Four Loko" that combine the alcoholic content of wine with the caffeine content of coffee.  The problem, supposedly, is that the caffeine interferes with that well-known natural effect of alcohol on young adults:  sleepiness.  Worse, the beverages may be "explicitly designed to attract under-age drinkers," what with their "colorful packaging and flavors like watermelon, blue raspberry and lemon-lime."   Consider the case of one student at Ramapo College, who was hospitalized after "drinking three cans of Four Loko and several shots of tequila in just over an hour."  Presumably, were it not for the caffeine in those three cans of Four Loko, the helpless student would simply have fallen asleep before he had the chance to drink those "several shots of Tequila."  These beverages are a menace.

I miss "Crossfire"

Like most people, I've been thinking about Juan Williams.

Perhaps unlike most people, when I think of Juan Williams I think of "Crossfire" (the old CNN debate show).  When I was in high school, I watched that show every day.  I loved watching the sinister Pat Buchanan go up against the earnest Michael Kinsley.  It was in his role as Michael Kinsley's understudy that I first became aware of Juan Williams.  Let's put it this way:  Juan Williams was no Michael Kinsley.

I stopped watching "Crossfire" in about 1995, around the time Buchanan rejoined his Pitchfork Brigade for another run at the presidency.  The show started to change.  Buchanan and Kinsley were gone, and so was the sober black background.  A studio audience was brought in.  Tucker Carlson.  Paul Begala.

This brings me to another man in the news:  Jon Stewart.  Famously, he killed "Crossfire."  He indicted the show for "hurting America" and accused its hosts (Carlson and Begala) of "partisan hackery."  In my view, the charges were shrill and trumped up.  But apparently they touched a nerve.  Just a couple months later, "Crossfire" was cancelled.

What are we left with?  Bill O'Reilly, Glenn Beck; Keith Olbermann, Rachel Maddow.  I am pretty ignorant about these shows.  I just don't watch much cable news.  (It always seems to be focussed on some runaway bride or another.  I don't understand the appeal.)  But it does seem like there's a dearth of true left vs. right debate on the airwaves.  I know O'Reilly has people (like Juan Williams!) on to debate, and I imagine the others do too.  But these are more like ambushes than debates.

So, I miss "Crossfire."  Maybe it's a dead format that wouldn't work today.  Maybe the culture has become too fragmented, too partisan, too cynical, and too idealogical.  I dunno.  I just know I'd watch.  (On YouTube, at least.)

Extreme skepticism

Yesterday a man named Tim Profitt forcefully pressed his foot down on the back, shoulder, or neck of a woman named Lauren Valle, who was already restrained, face-down, by another man.  Here's the video.



Ms. Valle is a MoveOn.org volunteer who was dressed up in Rand Paul gear and a blonde wig outside the venue for a debate between Rand Paul and his opponent, Jack Conway.  Apparently, she intended to confront Paul and present him with an "award" for being friendly to corporations.  When she attempted to do so, the events depicted in the video transpired.

Mr. Profitt was a volunteer with the Rand campaign, but the campaign has now "disassociated itself" with him.  He faces fourth-degree assault charges.  He claims we was just trying to defend Mr. Paul from an unknown assailant.

Jack Conway condemned the men involved in the incident in a strangely macho way:  "physical violence by a man against a woman must never be tolerated."  (Man-on-man violence is apparently tolerable, at least in some circumstances.  And woman-on-woman violence?  That's just hot.  Rrrr-owww!)

Mr. Profitt did not come forward as the "stomper" until late in the day today.  Before he came forward, Ann Alhouse speculated that the entire incident might have been staged:

Are the men in the T-shirts also from Moveon.org? Who were they? There were no arrests and though there was a crowd, no one bothered to have detained these men. Did they just melt back into the night? It's very convenient that these bad actors were wearing labels identifying them.

Hundreds of comments ensued.  Most of them bought into the conspiracy theory that the entire incident was staged.  My own interpretation of the video--and this was before Mr. Proffitt came forward--made me think that this was extremely unlikely.  The men who subdued Ms. Valle did not appear to be acting to me.  Mr. Proffitt's attack seemed so believably impulsive.  And the reaction of the others around--e.g., "no no no no no no no!" when Mr. Proffitt did his thing--seemed authentic.

Moreover, there were easy answers to all of Althouse's questions.  There were no arrests because there was a crowd.  Yes, the men melted back into the night--or at least melted back into the embrace of their compatriots.  And it's not convenient that the men were wearing Rand Paul insignia; it's exactly what you would expect political activists to be wearing at a debate.  

That so many of Althouse's commenters bought into the conspiracy theory is depressing to me.  It's one thing to be skeptical.  I am an avowed skeptic.  But in order to a functioning skeptic you have to be skeptical of your own skepticism.  You have to ask yourself, "Why am I inclined to distrust my own eyes?" If you don't cross-examine yourself with your own biases, you'll become either a cynic or an ideologue.  That's not good.

But this is the depressing part.  It's hard to find evidence of anyone on the Internet who isn't either an ideologue or a cynic.

UPDATE:

More video!

This shows that Ms. Valle rushed Rand Paul's car and tried to shove something at him through his open window. She is pulled away. Then, at about the :55 second mark, she comes around from behind the car to make a second run at the candidate. Presumably this is when she was tackled and treated roughly.

Update on Andrew Shirvell

Chris Armstrong, the object of Michigan Asst. Attorney General Andrew Shirvell's fascination, has withdrawn his petition for a protective order against Shirvell.  According to Armstrong's attorney, "The petition for a personal protection order was dismissed by Chris Armstrong because he received assurance that he will no longer be contacted by Andrew Shirvell."

Is the House of Representatives too small?

This is the question posed today by Gerard N. Magliocca at Balkinization. His primary argument is that increasing the size of the House is the only practical way to limit the influence of money in politics:

Suppose you doubled the size of the House of Representatives, which only requires a statute. This would accomplish the goals of both campaign finance reformers and libertarians. First, the cost of each campaign would go down because House districts would be smaller. Second, special interest groups would find it much more expensive to wield clout within a legislature. They would have to donate twice as much, in effect, even though the demand for money from candidates would be lower. Third, the influence of any single member would be reduced in a larger legislature, due to the higher transaction costs for public action, and would thus make it harder for a member to make a credible promise of a benefit to a donor.

The idea of regulating the House’s person-per-representative ratio has an interesting history. Such a proposal, in fact, was originally the very first article of the Bill of Rights that came out of the First Congress. The purpose of the proposal was to ensure a minimum representation for the common people in the new federal government. As passed by the House in 1789, the proposed amendment read:

"There is widespread recognition, across the political and ideological spectrum, that the United States is over-criminalized, and that over-criminalization poses serious threats to our liberties, our values, and our prosperity. With recognition and examination of this problem, it is now time to move to the next level – developing solutions."

That's from the description of a symposium held last week in D.C. called "Overcriminalization 2.0."  This alleged consensus is news to me, but I guess I'm part of it.

By the way, I'm guessing that "Overcriminalization 1.0" was a bit of a failure.

The Grudge Match.

So now that Wisconsin has won the Hartland Trophy, do we reverse the names of the blog until next year when Iowa avenges the loss inflicted on them by that portly purveyor of perfidy, Brett Bielma?

The wet side of the moon

It's pretty much a full moon tonight.  And the moon has been in the news.  According to NASA, the moon is wetter than the Sahara desert. According to my independent study, the moon is also drier than the Pacific ocean.   So, you know, somewhere in between there.

A modest proposal to end the funding crisis for public defenders

Mr. Gillette has convincingly established that Minnesota's system of public defense for indigents is in crisis.  He points out that neither candidate for governor has so much as acknowledged the problem, much less proposed a solution.  Notably, however, Mr. Gillette does not propose a solution either.  Times are hard.  Money is scarce.  Simply hiring more public defenders is not possible.  What can be done?

I have a solution, and it is virtually free:  fewer crimes.  I don't mean that people should commit fewer crimes (although that would be nice).  I mean that there should be fewer crimes.  With fewer crimes, there will naturally be fewer criminals.  And with fewer criminals, the crisis in public defense will disappear.

There are a lot of stupid crimes on the books.  But I've got a couple of categories in mind.  Let's start with drug crimes.  In particular, the simple possession of drugs--any drug--should be decriminalized, subject only to civil forfeiture of the contraband.  We can wait to decriminalize the production and distribution of drugs, and can pick and choose which drugs we want to do that for.  But for now, we should be arresting and prosecuting only drug dealers--not drug users.  Frankly, I think local, county, and state police authorities should entirely cede the field of drug enforcement to the federal government.  That way, only major operations are worth going after.

(As a side note, here's a depressing factoid about the international drug war.  Last year, 6,600 people died from drug-related violence in Mexico.  For comparison, there were 4,674 civilian deaths from violence in Iraq last year, and the US has lost just 4,500 soldiers in the entire Iraq war.   "The drug war" is not a metaphor.)

Prostitution is another obvious candidate for decriminalization.  From my brief experience as a city prosecutor in Minneapolis, I can confidently say that going after hookers and johns is about the biggest waste of government resources that one could possibly imagine.  Another benefit of decriminalizing both drugs and prostitution is that we'd likely have at least one more federal judge going to work on Monday.

Finally, and most controversially, here's one other idea for a class of crimes we should consider getting rid of:  drunk driving.

More on the Thomas/Hill voicemail.

As you note, Mr. Torvik, the story of Ginni Thomas calling Anita Hill and asking her to apologize for her testimony at Justice Thomas's confirmation hearing is strange. However, it seems to me that Ms. Hill's behavior is a lot less strange.

As memory serves, and Oprah Magazine confirms, Ms. Hill received death threats as a result of her testimony. I suspect that she also received threats of a less drastic nature. One can imagine that, at the time of her testimony, she was told to forward these threats to the FBI. So, twenty-years later, she receives a call from a woman claiming to be Ginni Thomas and asking Ms. Hill to apologize and provide "some full explanation of why you did what you did with my husband.”

Ms. Hill, and I think understandably, found this odd. After reflecting on it, she provided the voicemail to her employer's security department and instructed them to contact the FBI perhaps per a protocol from the days when she was receiving threats. That doesn't seem strange to me.

What does seem strange is how this came to the attention of the New York Times. The article doesn't say. If Ms. Hill brought it to their attention, that would be very strange. But, perhaps it came from some other, less strange, source.

I agree with David Bernstein over at the Volokh Conspiracy, that if Ginni Thomas truly was seeking an apology she should have chosen a better means of communicating that other than a voicemail. That part of the story is very strange.

This renewed interest in the Hill/Thomas controversy doesn't seemed to have done much for Ms. Hill, Justice Thomas, or Ms. Thomas. On the other hand, it has arguably worked out well for other people, and not just bloggers. Lillian McEwen, a woman who dated, and apparently worked with, Justice Thomas in the 1980s, is looking for a publisher for her memoir. Ms. McEwen claims that Justice Thomas was "obsessed" with porn during the time they dated and worked together. This time period coincides with the period when Ms. Hill worked with Justice Thomas. She, as the links indicate, has gotten some free press about her proposed memoir. I suspect a publishing deal will not be far behind.

If one is inclined to believe Ms. Hill, then Ms McEwen's revelations, are more support for Ms. Hill's testimony. Although, I suppose it is support that comes is 19 years late. If one is inclined to believe Justice Thomas, than Ms. McEwen's story is suspect because it comes after such a long delay and is, with all due respect to Ms. McEwen, the only thing that would make her memoir interesting to a publisher.

Given that the voicemail and Ms. McEwen's allegations really just give us an opportunity to relive the days when the Senate testimony took about things like pubic hair on Coke cans and Long Dong Silver, I would have to say that the voicemail has had the opposite of its intended effect.

The Tipping Point: Are We There Yet?

MinnPost.com has two articles about the state of affairs for Minnesota's public defenders. The articles paint a bleak picture. Judge Sharon Hall is quoted as saying that Minnesota courts are "fast becoming the courts of McJustice."

According to MinnPost, Minnesota budgetary woes have led to cutting the number of public defenders. The result is that remaining public defenders now carry twice the caseload recommended by the American Bar Association.

The result of this shortage is twofold. One result is fairly obvious, the other strikes me as very weird. I will start with the weird one.

"[O]ur jobs as political appointees is to protect the president."

That wasn't my understanding.

Justice Thomas's wife leaves Anita Hill a voice mail asking for an apology ...

and Anita Hill calls the police!

These are very strange people.

You're telling me that's in the first amendment?

About a month ago, you posted on the question of whether legislators should consider whether the bills are constitutional before passing them. Your question was prompted by Dalia Lithwick's reflection that the constitutional views of Christine O'Donnel, the Republican candidate Delaware's open United States Senate seat, were fascinating.

Professor Lester Hunt posted on his blog about Ms. Lithwick's thoughts and suggested that "When . . .Ms. O'Donnell talk[s] about 'the Constitution,' they often don't mean the literal word of the law as contained in that piece of parchment."

Professor Hunt apparently hit the nail on the head. As CBS reports, this morning at a debate with Chris Coons, her Democratic opponent, Ms.O'Donnell today challenged him on his statement that the Constitution disallowed the integration of religion into the federal government, asking, "Where in the Constitution is the separation of church and state?"

Unfortunately for Ms. O'Donnell, the debate was held at the Widener School of Law, and her question reportedly "prompted laughs from the studio audience."

The exchange took place when Mr. Coons said he considered intelligent design a religious doctrine that should not be taught in public schools. Mr. Coons said that the First Amendment explicitly calls for the separation of church and state.

Ms. O'Donnell's response to this statement with incredulity. She said "Let me just clarify: You're telling me that the separation of church and state is found in the first amendment?"

Mr. Coons responded by saying "Government shall make no establishment of religion." A slight mangling of the amendment as it says "Congress shall make no law respecting an establishment of religion. " However, I think he got the gist of it correct.

"That's in the First Amendment...?" O'Donnell responded.

The worst part of it is that earlier in the debate, Ms. O'Donnell accused Mr. Coons of constitutional ignorance by telling him "perhaps they didn't teach you Constitutional law at Yale Divinity School."

"Clay ran through holes that looked as if they had been forged by glaciers."

Pete Thamel reports on the University of Wisconsin football team's thrilling victory over The Ohio State University last night.  Next up for the Badgers is a Gillette-Torvik grudge match:  Iowa, with the Heartland Trophy on the line.

But beating #1-ranked Ohio State wasn't even the best news out of Madison yesterday.  At long last, college basketball season has begun.

Disturbing trend: the letter "K"

I can't help noticing that most of folks we've been discussing over the past month have names that start with the letter "K":

1)  Kenneth Kratz -- the "sexting DA";

2)  Steven Koukios -- the lawyer who loved too much;

3)  Chris Kokenis -- the accused tax cheat who kept mum about his "good faith beliefs"; and

4)  Steven Kutzner -- the man who got busted for downloading "Simpsons" porn.

Coincidence?  Hard to believe.  I think it has something -- something -- to do with this.

Man pleads guilty to possession of obscene "Simpsons" porn. Why?

As reported by The Onion's AV Club:

A former middle school teacher in Idaho is facing up to 10 years in prison for downloading Simpsons porn—that is, pornographic cartoons depicting child characters from The Simpsons engaged in sexual acts. After a search warrant led to the discovery of more than 70 such images on his computer, 33-year-old Steven Kutzner immediately resigned and pled guilty at a subsequent hearing.

The prosecution raises serious constitutional issues.  The Supreme Court has held that "virtual child pornography"--e.g., cartoon depiction of child-characters having sex--is protected by the First Amendment because, unlike real child pornography, it doesn't require the actual abuse of actual children to be created.  See Free Speech Coalition v. Ashcroft.  Congress responded by narrowing the statute somewhat.  Now it is a felony to possess:

A rant

On Slate, Dahlia Lithwick reviews Justice Breyer's new book, Active Liberty Making Our Democracy Work.  I found it to be a frustrating review, mainly because Lithwick advances a thesis--that Breyer and Scalia are more similar than you might imagine--that she actively contradicts.  There is also some sloppy, hard-to-understand writing.  The version of the article I read contained two glaring typos (since fixed), making me wonder if I was reading a blog post rather than a published article.  (Fyi, typos are perfectly acceptable in blog posts.)  The article also contains this indecipherable paragraph:

Big money lost by Menards

I recently came across the very interesting case of Sands v. Menard, Inc., which was decided by the Wisconsin Supreme Court in July.  It raises a number of interesting points, and one basic one:  if an in-house lawyer—particularly a corporation’s General Counsel—is fired for a discriminatory reason, can the court order reinstatement as a remedy, thereby forcing the corporation into an attorney-client relationship with an attorney not of its choosing?  In its typical 4-3 split, the Wisconsin Supreme Court said no.

'“I gave up my rental thinking I would have a house,” said Ms. Ducksworth, a 28-year-old catering assistant. “Now I’m sharing a room with my son. What the hell is up with that?”'

The New York Times reports on the latest housing crisis:  the lack of foreclosures.

Justice Alito is a warrior for justice

Some purple prose from CBS Supreme Court reporter Jan Crawford Greenburg describing Justice Alito at oral argument:

He's like a one-justice Delta Force: He's so quiet and low-key while drawing in the lawyers with his questions that he manages to plant several bombs before they even realize he's on the attack.

Then BOOM!

Guns, drugs, and strippers: what could possibly go wrong with that combination?

Last month, Slate.com ran an article about how the number of vacant judgeships on the federal bench was creating a crisis. As an aside, the Slate article missed the real crisis -- that you and I are not on the federal bench. The crisis Slate describes just got a little worse because Georgia lost a judge. As reported by the AP, Senior Judge Jack T. Camp, a 67-year-old who ought to know better, is in a lot of trouble because his adventures with cocaine, guns, and a stripper. Can we agree to call this particular combination of illegal activities a Camp-trick rather than a hat-trick?

Trade Undress

One kind of trademark is "trade dress," which encompasses the design and appearance of a product and its packaging.  Think of the distinctive shape of a Coca-Cola bottle.  On Friday, the Federal Circuit Court of Appeals took up of the issue of whether the "cuffs & collar" uniform of the Chippendales exotic dancers is "inherently distinctive" trade dress under federal law.  It is not.  Some highlights:

The applicant, Chippendales, is in the business of providing adult entertainment services for women. It opened its first strip club in Los Angeles in 1978. In 1979, Chippendales performers began wearing an abbreviated tuxedo—wrist cuffs and a bowtie collar without a shirt—as part of their act. This costume, referred to as the “Cuffs & Collar,” was featured prominently in Chippendales’ advertising and performances over the past several decades. It is set forth below:

I know what you're thinking:  did Chippendales steal Bart Torvik's image for that picture?  This occurred to me as well.  I have no proof and, anyhow, I'm flattered.

Back to the case.  The court found "the Cuffs & Collar mark not inherently distinctive because of the existence of the pervasive Playboy mark, which includes the cuffs and collar together with bunny ears."  Playboy first registered its version of the Cuffs & Collar look in 1964.  Here's a more recent variation:

Pro Boner Publico

Last year, Chicago attorney Steven Koukios was arrested.  As the Chicago Tribune puts it, he "was taken into custody after arriving at a Chicago apartment in April 2009 just moments after police had arrested Shannon Rosillo, 33, for soliciting an undercover police officer. Authorities charged Rosillo with prostitution and Koukios with visiting a 'house of ill fame.'"

As he sat in the back of the squad car with Ms. Rosillo, Koukios stepped up and attempted to make the best of a bad situation:  he offered to represent her free of charge.  And he kept his word.  He appeared in court on Rosillo's behalf, and negotiated a plea agreement for her.  There was just one problem:  he never discussed his potential conflict of interest in the case.  This got him in trouble when, later on the same day that he appeared on Rosillo's behalf he appeared--before the very same judge--on his own behalf to deal with the "house of ill fame" charge against him.

Koukios has agreed to censure from the attorney disciplinary board.  This is just another example how even the best of intentions can get you in trouble.  As Koukios's lawyer put it:

"His only motivation was to help this young lady who was distraught," Ex said. "He did it without charge to her — financial charge."

Hmm.  Was there a non-financial charge?

UPDATE:

I did a little digging, and discovered that this is not the first time Koukios has been censured by the Illinois Attorney Registration and Disciplinary Commission.  He was also censured in 2007 for more mundane, but really more troubling, conduct:  he basically quit on a case.  Without his client's consent, he hired another attorney to work on the case and had that attorney settle that case without the client's consent.  The disciplinary board's decision is here.

Given this prior censure, I'm actually a little surprised that the Commission would agree to settle for just another censure in this case.  And, particularly given the publicity the case is generating--which clearly reflects poorly on the profession--I think the Supreme Court might impose a harsher punishment.

UPDATE 1/19/2011:

Koukios skates by with a censure.