Saturday, July 31, 2010

Sen. Klobuchar's anecdote about Sen Schumer

Jeffrey Toobin has an interesting profile of Senator Charles Schumer (abstract only) in this week's New Yorker.  It includes the following anecdote from Amy Klobuchar:
A few years ago when Schumer was head of the [Democratic Senatorial Campaign Committee], he took a group of Senate candidates, including Amy Klobuchar, now the senior senator from Minnesota, and their families on a bike tour of Brooklyn.  "Chuck has a bullhorn, and he stops in front of his building and announces that he and Iris [his wife] bought their apartment for a hundred and fifty thousand dolars and now it's worth ten times that much," Klobuchar recalled.  "And my twelve-year-old daughter pulled on my jacket and said, 'Mom, if you said that in Minnesota, you'd be in so much trouble.'"
Klobuchar's daughter certainly seems well-versed in Minnesota's cultural tics.  What struck me, though, was her presence on this bike tour with Sen. Schumer.  It reminded me of another anecdote, from a source who shall remain unnamed in this forum.  This person chanced upon Sen. Klobuchar in public, and used the occasion to lobby for a federal judgeship.  But Senator Klobuchar was not alone -- she was with her fifteen-year-old (or so) daughter.  And they were holding hands

Wednesday, July 28, 2010

Targeted campaign ads

Very interesting post, Mr. Gillette.  It will certainly be interesting to see how this plays out -- both in the specific case of Target's contribution and the broader context of this fall's elections.

But it's worth thinking about what would have happened if Section 203 of the McCain-Feingold bill were still intact.  That provision, which is what the Supreme Court struck down in Citizens United, did not say that "corporations aren't people"; it did not say that "corporations have no first amendment rights"; it did not even say that "corporations cannot direct money towards electioneering."  Instead, it set out a very specific way for corporations to spend money on independent electioneering within 60 days of a general election (or 30 days of a primary):  they had to do it through a political action committee.  In other words, they had to set up a PAC and give money to that PAC, which could then use it on independent political expenditures.

Testing a theory.

The Citizens United opinion came out before we started this blog. At the time, I recall us discussing whether the decision would impact the political contributions given by publicly traded corporations and/or corporations that did business with the public at large. One theory we had was that those types of corporations would not engage in large-scale political contributions because they risked alienating shareholders or customers who belonged to the opposite political party. This thought is encapsulated in the, probably apocryphal, story that Michael Jordan replied "Republicans buy sneakers, too" when asked why he was not supporting former North Carolina Senator Jesse Helm's opponent in an election.

This theory has recently been put to the test in Minnesota. Target has given $150,000 to a political group that supports Tom Emmer, the GOP candidate for governor in Minnesota. Among his positions, Emmer is anti-gay marriage.

Target's donation has been noticed and upset some folks. In response, Target's CEO is trying to do some damage control by emphasizing Target's "commitment to diversity". I predict a similarly sized donation to a pro-GLBT group as soon as the election is over. As an aside, Jon Tevlin reminds his readers that members of Mark Dayton's family founded Target. Dayton, of course, is also running for governor.

We can learn from this example

We should run for judge before our children become internet savy.

Tuesday, July 27, 2010

Colonel Mustard in the library.

The New Yorker (abstract only) had a very entertaining article about Blago's rise and apparent fall. Maybe I am naive, but I can't imagine that a lawyer is the source of the Tribune article you cite. The risk of being outed as the source seems much higher than the reward of talking to the press. For that matter, what is the reward in talking to the press in this context? Is the hope that the jury will disregard the instruction it received not to read about the case and read the Tribune article?

My guess is that at least some of Blago's practice sessions took place in front of a mock jury. Perhaps a jury member or the jury consultant is the article's source. Or Colonel Mustard, he is always a good guess.

As you note, the decision not to testify creates a problem for the defense attorneys. No attorney wants to be in the position of having promised the jury something in opening statement and then not being able to deliver it afterwords. This is especially true when it is, like this, a big promise. This summary of the closing remarks does not give this reader a lot of confidence that the defense offered a good explanation to the jury. On the other hand, that maybe the only explanation that the defense can offer to the jury. It will be interesting to see if any jurors comment on the significance, or lack thereof, of Blago's decision not to take the stand.

Thursday, July 22, 2010

More on Blago: who spilled the beans?

Yesterday I blogged about Rod Blagojevich's decision not to take the stand despite his lawyer's promise to jury, during openings, that he would testify.  Today an article in the Chicago Tribune reports that the true reason for the decision was not confidence that the government had failed to prove its case but rather that Blago failed spectacularly during practice testimony:
The ex-governor's practice runs — with prominent criminal-defense lawyers acting as cross-examiners — were troubling, sources with knowledge of the sessions told the Tribune.

The sources said the former governor had difficulty wrapping words around the concepts he wanted to use to defend himself. Blagojevich and his wife, Patti, spent several days last week going over his possible testimony with lawyers Sam Adam and his son, Sam Adam Jr., in the South Side's Jackson Park to be away from their office and interruptions. 
It's no surprise that the true reason for the decision not to testify is tactical rather than substantive.  But what it is a little surprising to me is that the Tribune was able to find "sources" to dish this information.  Seems to me that these practice sessions would have been highly confidential, if not attorney-client privileged.  If the person who spilled the beans to the Tribune is an attorney, that person likely violated the Illinois rules of professional conduct.   

I thought the US was litigious...

...but a former contestant on "Britain's Got Talent" has sued Simon Cowell in the UK "claiming she was 'humiliated and degraded' on the hit ITV show."  I wonder if assumption of risk is a defense in the UK?

Wednesday, July 21, 2010

Blago shuts up

Another fun thing about moving to the Land of Lincoln is that a former governor is always on trial.  I admit that I haven't followed the Rod (and Robert) Blagojevich trial too closely.  But there was some interesting news today:  the defense rested, and Blago took the Fifth

This was a surprise.  Blago's defining characteristic has been the inability to keep his mouth shut.  Arguably, idle talk was his only crime.  But today he took the advice of one of his lawyers (Sam Adams) over his own instinct and the advice of his other lawyer (Sam Adams, Jr.) and decided not to testify.  The theory is that the government didn't prove his case.  In fact, according to Blago, "the government in their case proved my innocence."

Of course, it's not unusual for a defendant not to testify.  But it is unusual when, as happened here, the defense lawyer told the jury during opening statements that the defendant is going to testify.  Trial lawyers are taught never to say anything in an opening statement that they can't back up during the trial.  This is why judges usually let lawyers say anything they want during openings -- because if they say something they can't prove, the jury will remember, and the jury will punish.  It will be interesting to see how it plays out here.   

Tuesday, July 20, 2010

Necessary and, in the end, proper

First, I thought I'd point out an interesting back-and-forth between Randy Barnett and Jack Balkin  about the constitutionality of the individual mandate.  In a post that I linked to in my last post, Barnett argued that DOJ's reliance on the tax power means that his attacks on the commerce clause justification must not be—as some have alleged—frivolous.  Prof. Balkin responds with the obvious point that trial lawyers always make every available argument, so DOJ's making the "tax" argument doesn't necessarily mean that the attack on the commerce clause justification has merit.  Then Balkin goes on to make a rather strange (and interesting) meta-argument that people like Barnett aren't just making assertions about the non-frivolity of their position, but are actually making their position non-frivolous by the act of making the argument:
Randy Barnett wants you to know that his arguments are not frivolous. But he is not simply reporting a fact about the world. He is engaged in a performative utterance. He is trying to make this statement true by the fact that he, a prominent constitutional theorist and litigator, is saying it. And he is trying to get enough people to agree with him so that what he says is true will actually become true.
(emphasis mine).  Surprisingly, Barnett agrees!  Responding to a related point, he says, "Jack [Balkin] is right about this. I and others are trying to do exactly this."  Lots of interesting stuff in the exchange.

What does it mean to provide "Advice and Consent"?

According to the New York Times, Solicitor General Kagen's nomination to the Supreme Court has been backed by the Senate Judiciary Committee. The article reports that only one Republican, Lyndsay Graham of South Carolina, backed her nomination.

Senator Graham didn't exactly given the nominee a ringing endorsement. He said there were "100 reasons" he could vote against her. He did not vote against her because "The Constitution, in my view, puts a requirement on me not to replace my judgment for [the President's]" Is he correct?

Article II, Section 2, Clause 2 of the Constitution says:
[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint...Judges of the Supreme Court, and all other Officers of the United States....
One would think that providing advice is an exercise in replacing judgment. Merriam-Webster, defining a advice as a recommendation on a course of conduct, certainly seems to think so. On the other hand, perhaps what Senator Graham means is that advice can be freely ignored so his "100 reasons" not to confirm Solicitor General Kagen don't matter and that only election results matter. But if that were true, why does the Constitution require the Senate's consent?

One interesting thing I learned while researching this post is that one of George Washington's nominees to the Supreme Court was struck down on ideological grounds. John Rutledge, lost his seat as Chief Justice on the Supreme Court because the Senate refused to confirm him when Washington's recess appointment expired. The Senate was unhappy about Rutledge's opposition to the Jay Treaty with Great Britain. Apparently, unpopular views as a disqualifying factor for the Supreme Court precedes Robert Bork by a two centuries.

If we call it a fee, maybe no one will notice it is a tax.

When Governor Pawlenty said that an increase in the cigarette tax wasn't a tax but a fee, I wondered if anyone actually believed him. Given that President Obama's adminstration tried the same line, I assume that the fee/tax distinction is more plausible than I originally thought.

Certainly taxing someone for not doing something seems like an unprecedented use of the power to tax. My first thought was that it really isn't so different from the situation where the property taxes of childless homeowners are used to pay for schools that the homeowners won't use. However, the analogy breaks down when one considers that everyone pays property taxes and not everyone will be paying the health insurance tax.

In the Times' article you cite, Jack Balkin says that the tax argument is the "strongest argument for upholding" the individual mandate. This may be true as a matter of constitutional law theory. However, I doubt any judge will adopt that argument. Who wants to become known as the judge that said people could be taxed for doing nothing?

I think this mandate is really a fairly straightforward application of Wickard v. Filburn. You will recall that as the case about farmer who grew more wheat than he was allowed under restrictions on farm production in effect at the time. The farmer argued that since the extra wheat was used to feed his chickens, and thus not in interstate commerce, that Congress couldn't regulate his wheat production.

The Supreme Court, in an opinion by Robert Jackson, rejected that notion 8-0 (although perhaps Linda Greenhouse would find a way to make that a 5-4 decision). Essentially the Court said that the farmer’s decision to use his own wheat had an affect on the amount of wheat purchased in his area. The effect on wheat production locally indirectly effects the effect on interstate commerce because some wheat is in interstate commerce. Just as the farmer’s dropping out of the program affected interstate commerce, people refusing the to purchase health insurance affects interstate commerce. This may not be the "strongest" argument, but I bet it is the winning one.

Sunday, July 18, 2010

Constitutionality of the "individual mandate" in the health insurance reform bill

The New York Times notes an interesting twist in the Obama administration's defense of the "individual mandate" aspect of the health insurance reform bill.  This is the provision that requires individuals either to purchase health insurance or pay a civil fine that will be collected by the IRS.  During the debate on the bill, some conservatives criticized this provision—hysterically, in my opinion—as a "dangerous expansion of the IRS's power and reach into the lives of virtually every American."  Some conservatives also argued that the individual mandate was not a proper tax since it taxed people for failing to do something (specifically, failing to buy health insurance).  The argument is that if the federal government can tax people for not doing something, then it can use the taxing power to regulate all aspects of human existence, and therefore the federal government has practically limitless power.  On the political (rather than constitutional) front, conservatives argued that the individual mandate was a breach of Obama's campaign promise not to raise taxes on those making less than $200,000 a year, since everyone was subject to the individual mandate, and the bill's subsidies for buying health insurance dropped off far below $200k.

Friday, July 16, 2010

A partial reply to Mr. Gillette's partial defense of licensing requirements

 I try never to be cynical -- just skeptical. But it seems hard to deny that at least part of the reason we have bar exams and boards of legal examiners is to distort the market for legal services in favor of lawyers (over clients) by artificially reducing the supply of available lawyers. In fact, I’ve read a few interesting blog posts recently – see here and here, for example – about whether there should even be a bar exam. But I will accept your premise that there is also some other justification that actually serves the public good. Your “bulwark” against the “machinations of unscrupulous lawyers” suffices for the sake of argument. (After all, who ever heard of such a thing as an unscrupulous lawyer? Thank goodness we have the bar exam to protect us from such hypothetical monsters!)

A partial defense of licensing requirements

Thanks for getting us started on the internet Bart. Had I been the one to post first, it would have been about whether the Twins' other starting pitchers should follow Carl Pavano's lead and grow lucky mustaches. However, your thoughts on the potential roadblocks to becoming an attorney in illinois (like Lincoln!) are a better start.

As for the issue of allowing out-of-state lawyers to practice in-state, the cynical will suggest these rules are simply anti-competitive practices designed to protect homegrown attorneys. The undoubting will see them as a bulwark necessary to protect an unspecting public from the machinations of unscrupulous lawyers from other jurisdictions.

I don't know why a federal clerkship wouldn't count towards 5 years of practice. It is certainly legal work and probably more substantive work than some associates do in their first year or two of practice. The only explanation I can think of is that what the state really wants is 5 years of competence as measured by not being sued for malpractice or discipline by the lawyer's board. Since law clerks are not going to be sued or disciplined, the state doesn't think the time should count. The problem with this explanation is that, apparently, the second year of the clerkship can count while second-year clerks are still not subject to suit or discipline.

Rule 705(h) requires that the "plan" meet the "satisfaction of the Board." Is there any guidance as to what factors the Board considers in order to be satisfied that the applicant has a plan? In the board's defense, I can see where it might think it needs more concrete information than a plan to move and pay the licensing fee. Most would not say that moving to Hollywood and getting a Screen Actors' Guild card was a "plan" to be a movie actor.

My only thought as to the confusion caused by the commentary to Rule 5.5 is that the people drafting the commentary must have been different than those who drafted the Rule.

Alternative Vote Counting

As an aside in a blog post about whether Justice Kennedy's influence is waning, Linda Greenhouse makes a rather bizarre assertion that tallying supreme court votes is an art rather than a science:
I should note here that while Supreme Court statistics are widely available on the Internet, including from the estimable Scotusblog site, the numbers I use are my own, and may not always agree with others’. There are a surprising number of judgment calls that go into Supreme Court vote-counting, such as how to count a concurring opinion that agrees with the particular outcome — as Chief Justice Roberts did in a case striking down life sentences without parole for juvenile offenders convicted of crimes other than murder — while rejecting the rationale that the majority will apply in future cases. After some pondering, I decided to count the chief justice’s vote in that case, Graham v. Florida, as a dissent, and to consider Justice Kennedy’s majority opinion as a 5-to-4 rather than 6-to-3 win for the court’s liberal bloc. I also count the term’s big patent case, Bilski v. Kappos, as 5- to-4 for its splintered reasoning, although as a technical matter the judgment was 9-to-0.

To me, Greenhouse's method seems designed to maximize the appearance of ideological division. For example, Greenhouse's decision to count Chief Justice Roberts' concurrence in Graham v. Florida as a dissent puts him in the same camp as Thomas, Scalia, and Alito in that case -- even though he disagreed with both the reasoning of Thomas's dissent and the outcome it demanded. On the other hand, although Roberts disagreed with the majority that a new categorical rule needed to be stated, he at least agreed with its result. I see no justification for counting Roberts's concurrence as a dissent. I think Greenhouse just wants to inflate the number of "ideological" 5-4 cases, probably because it dovetails with popular misconceptions about the supreme court. Indeed, one could argue that the creation and propagation of these misconceptions are Greenhouse's life's work.

Thursday, July 15, 2010

Evanston City Code

Having recently moved to Evanston, Illinois, I thought it would be wise to take a look at the city code. After all, ignorantia juris non excusat. Here are a couple of notable ordinances.

It shall be the duty of all persons in the city, when called upon by the chief of police or any member of the police department, to promptly aid and assist him in the execution of his police duties. Any person who shall neglect or refuse to give such aid and assistance shall be punished as provided in section 1-4-1 of this code.
Hmm. I haven't looked at section 1-4-1 to see what the punishment is, but I'm guessing it is spankings, and that they are personally administered by the Chief. Just part of the job.

Terms of Service

Setting aside my disappointment in learning that I cannot use Itunes to operate "Nuclear Facilities" (I wonder why Apple uses the plural), your post made me want to check what we agreed to by signing up for this blog. It turns out that the terms of our service agreement with Google obligates us to litigate claims arising out of the service agreement in Santa Clara County California.

Monday, July 12, 2010

Apple iTunes Software License

Since I'm drafting some contracts these days, I'm paying more attention to the fine print in various licenses and contracts that occasionally pop up on my computer. Today iTunes decided that it wanted me agree to a new license -- I think it was trying to auto-install an update, even though I don't use iTunes on this computer. I took a look at the software license, and was amused to read the following, in the paragraph about appropriate uses of the software:


Saturday, July 10, 2010

Becoming Licensed in Illinois

I recently moved from Minnesota to Illinois. As part of this move, I had to endure the process of becoming licensed to practice law in Illinois, which culminated in my being sworn in by the Chief Justice of the Illinois Supreme Court on June 29, 2010. During this process, however, I ran into three potential roadblocks that I’d like to discuss.

Wednesday, July 7, 2010


Unable to resist popular demand any longer, Mr. Gillette and I have instituted this blog to publish our discourses. To Mr. Gillette I propose just one rule: keep it clean.