Tuesday, January 31, 2012

Newt Gingrich has a pretty bad day.

As part of our continuing series on people who will never be president but are running for president, we should point out that things are not going well for Newt Gingrich. Mitt Romney has already claimed victory in today's Florida primary. Also, 80s one-hit wonder Survivor is suing Mr. Gingrich because he has been using "Eye of the Tiger" at his campaign stops without their permission. Maybe Mr. Gingrich can settle with the band by getting them something from Tiffany's.

Thursday, January 26, 2012

An unjust situation? Maybe not.

I was looking at the post on the legal blog Above the Law today. For whatever reason, this post caught my eye. Perhaps it was the post's title "Even a Bargained For Search of Breasts Can Be Pretty Damn Illegal If You’re a Cop"

The post is about, as the author puts it, the "nexus of abusive police power and drunk co-eds." It seems that a campus police officer at Central Michigan University recently bet two female students that their blood alcohol levels were higher than 0.05%. If the police officer won the bet, the girls were supposed to expose their breasts to the officer. The girls lost the bet.

The post goes on to say the officer has:
pleaded guilty to misconduct, and could be looking at five years in prison. At first blush, that sounds like a heavy price to pay for essentially saying, “show me your tits.”
But that’s probably just the testosterone talking. The AP story doesn’t give us all the facts. We don’t know if this was a stupid little game between some kids and a guy trying to play along, or a coercive encounter between a person of authority and relatively defenseless college students. The police get away with enough in this country that I’m comfortable if the ambiguity is read in favor of the college kids.
But incarceration feels like a bit much. Fire him, take away his pension or something. Let’s make sure that the next time he wants a free show, he’s got to throw away some beads instead of flashing a badge. But I’m not sure that running around making bets with co-eds over a flash really constitutes a menace to society that needs to be punished with prison.
So the author thinks that the possible penalty for the guilty plea is too high because, as the title says, the incident was just a "bargain." It might have been a bargain but it wasn't an arm's length transaction between parties of equal bargaining power.

Before I go further, in the author's defense the AP story he linked to does not give all the facts. However, the AP story does say it is relying on reporting from the local paper in Mount Pleasant, Michigan—The Morning Sun. The Morning Sun story goes into a bit more detail.

According to the Morning Sun, Jeffrey Allen Card, pleaded guilty on the day his trial was to begin. Mr. Card was on his patrol when two female students asked him for a ride home. Instead of giving them a ride home, he drove them out of town and made the "bet" about the students' blood alcohol content. The students showed the Mr. Card their breasts. Mr. Card didn't take the students back to their dorm until his dispatcher called asking Mr. Card to return to campus. Also, according to a CBS news report done at the time the incident was reported, Card took pictures of the students on the back of his squad car.

Three observations: first, the situation seems a lot more ominous than what the Above the Law author thought. The officer did just ask to see the women's breasts, he arguably abducted them. I don't know what penalty the judge on Mr. Card, but jail doesn't seem like an unjust situation to me. Second, Mr. Card wasn't found guilty, he pleaded guilty. If we adopt the formulation used by Above the Law, Mr. Card made a bargain. So, presumably Mr. Card didn't think the possible sentence was too harsh compared to the trial. Third, Google tells me that the search I ran to get the full story on Mr. Card took .21 seconds. Just saying. Finally, none of the stories seem to answer the question that made me search Mr. Card in the first place: what did the students get if Mr. Card lost?

Wednesday, January 25, 2012

Albert Brooks is funny and also handles disappointment well.

As Richard Roeper of the Chicago Sun-Times notes, the Academy of Motion Picture Arts and Sciences snubbed a fair number of people this year when picking the nominees for the Academy Awards. Albert Brooks was one of the actors who didn't get nominated. As his Twitter feed shows, Mr. Brooks is handling his disappointment with aplomb. Read his tweets here.

Tuesday, January 24, 2012

R.I.P. Judge Wesley Brown

The Gillette-Torvik blog is saddened to learn of the death of Judge Wesley Brown. Judge Brown was a judge in the United States District Court in the District of Kansas and the oldest sitting judge in the country's history. He was 104 and still hearing matters in 2011. The Wichita Eagle has a nice summary of the judge's accomplishments here.

Incredibly, Judge Brown was not the longest tenured judge in our nation's history. That title belogns to Judge Joseph Woodrough. He was a district court judge in Nebraska and then a judge on the 8th Circuit, for a total of judge for 61 years. However, according to Wikipedia, Judge Woodrough did not perform any judicial duties the last 16 years of his life. So in terms of active service, Judge Brown has the record.

At 104, Judge Brown was not particularly close to hitting oldest person in the world status. One hopes this means that he was not targeted by the serial killer that we discussed here.

Friday, January 20, 2012

A Gillette-Torvik Conversation™: The Montana Corporate Speech Case — PART FIVE

[Here are parts one, two, three, and four.]

TORVIK:  The concept of corporate personhood does not affront my human dignity. The principle that corporations are entitled to certain constitutional rights is an old and well-established one. So if it were injurious to human dignity, the damage would presumably already be done. But perhaps I just don't know what it is like to feel fully dignified. Though I am frequently indignant.

When you think about it, it's pretty clear that corporations and other entities must have certain rights but not others. For example, no one would think it proper under the Fourth Amendment for the government to raid the ACLU's (or even IBM's) headquarters without a warrant. See Hale v. Henkel, 201 U.S. 43, 76 (1906). But few would bat an eye at the proposition that corporations lack the privilege against self-incrimination granted by the Fifth Amendment. Id. Why this different instinct? One idea: some rights are personal (such as the privilege against self-incrimination) and other rights are more structural (like the right to be free from unreasonable searches and seizures). The privilege against self-incrimination seems to flow from an idea that there's something wicked about forcing an actual human being to testify against himself. The right to be free from unreasonable searches, on the other hand, has more to do with proper government structure—i.e., ensuring that the government is not tyrannical. (Though, to be sure, there's an element of a personal privacy right in the Fourth Amendment also.)

So maybe one's reaction to Citizens United comes down to whether one thinks the right to engage in political speech (and to spend money to amplify that speech) is more like a personal right or a structural right. This strikes me as a question about which reasonable minds can disagree. If your theory of the First Amendment is that it exists to foster personal self-fulfillment and autonomy, you probably don't think protecting corporate speech makes much sense, and you might even be offended by it. But if your theory is that the First Amendment exists to encourage a free-wheeling exchange in the marketplace of ideas, then you probably just say "the more the merrier," whomever (or whatever) the speaker is. Since I'm provisionally in the latter camp, I don't think the dignity of the species is at stake.

GILLETTE:  It is a mildly amusing thought experiment to scroll through the Amendments to the Constitution and decide which ones apply to “people people” and which ones apply to “corporate people.”  Corporations can’t vote, bear arms, invoke the right to not testify, or run for office (to stretch the 22nd Amendment).  On the other hand, corporations do get to take advantage of the rights to free speech, be free of unreasonable searches and seizures, and free from being forced to quarter soldiers in peacetime.  At least I assume that corporations are protected by the Third Amendment; no case actually discusses the issue.  In fact, it appears that there is only one case that has ever been decided solely on Third Amendment grounds, Engblom v. Carey, 677 F.2d 957 (2nd Cir. 1982).

The fact that the First Amendment applies discusses “the press” and the “establishment of religion” certainly suggests that the Framers thought that the amendment applied to organizations.  After all, virtually every religion has some sort of organization or hierarchical structure.  The same is true for “the press.”  It would be strange to think that freedom of the press only means freedom of the human printer not the freedom of the company owning the newspaper.  One might also point out that the First Amendment’s prohibition is on the Government’s ability to prohibit any speech (“Congress shall pass no law”) not just speech by “people people.”  Moreover the amendment is not  a grant of a right to the people (although granting a right to the people would be weird given that the Constitution is written by “We the People.”). 

To me it isn’t necessarily about self-fulfillment or the marketplace of ideas.  It’s more along the lines of the Eugene Volokh hypothetical you brought to my attention.  If we say that corporations don’t have first amendment rights, then that rule is going to apply to corporations whose speech I support as well as those whose speech I don’t.  I don’t regard that as a good trade. 

Speaking of corporate speech, John Stewart and Stephen Colbert do a nice job of illustrating the bogus nature of laws preventing candidates from coordinating advertisement campaigns with the Super-Pacs that support them. 

TORVIK:  Let me make clear that the Gillette-Torvik Blog believes that it has the right to be free from being forced to quarter soldiers in peacetime. 

I think your instinct that a ban on corporate speech would stifle lots of speech that you like masks a deeper principle. I don't think your judgment is that you approve of allowing corporate speech just because, on the whole, you think that it will allow enough speech that you like. I think the underlying judgment is that there is something wrong with stifling the corporate speech that you like, and you have to admit that the same principle must apply to the corporate speech that you don't like.

Anyhow, I think we've come to some consensus. Corporations do have some rights, including some free speech rights. But like any rights they are susceptible to reasonable regulation. I think there's probably a lot of ways to nibble around the edges of corporate speech rights to satisfy the pragmatic concerns of Citizens United's opponents. But—to bring things back to the Montana case that got us off on this—my great disappointment with Western Tradition is that it makes such a poor effort at making any persuasive distinctions. Those will have to await a future case. So we'll have to wait probably about five minutes.

Finally, I want to reiterate my belief that most of these attempts to limit the role of money in politics are futile. I support disclosure laws and those kinds of things, but I think in the end we'd probably be better off with fewer restrictions on political spending rather than more.

Thursday, January 19, 2012

The Iowa Caucuses and The Nature of Reality

Who won the Republican Iowa Caucuses?

It depends on when you ask.

Back when the answer mattered, they told us that Mitt Romney won, by 8 votes or so.

Now, when we are simply writing history, they tell us that Rick Santorum won, by 34 votes or so.  Or so.  It turns out that eight Iowa precincts did not turn in their final tallies by the deadline, so the votes in those precincts will never be counted. (At least until, at some point in the future, somebody decides to count them.)

So who won the GOP's Iowa caucuses?  The terrorists won.

A Gillette-Torvik Conversation™: The Montana Corporate Speech Case — PART FOUR


[Here are parts onetwo, and three.]

GILLETTE:  I’ll concede the point that the story of Senator Clark may be irrelevant for purposes of whether the statute is constitutional.  However, I think the portion of the opinion that dealt with the Anaconda corporation is relevant.  The statute, after all, is attempting to control the influence of corporations.  The Anaconda corporation controlled the state during a significant portion of Montana’s history and the statute is, evidently a response to that control. 

With respect to judicial integrity, presumably the state could protect that integrity by not having its judges elected.  They could, like federal judges, be appointed for life or some other term.  I agree with you that that particular part of the opinion is not particularly well crafted.

While I am not afraid of speech, your lack-of-alternatives argument regarding the marketplace of ideas doesn’t convince me that attempts to regulate the flow of money in political campaigns are misguided. One way of limiting the amount of speech in the marketplace of ideas is the law being upheld by the decision.  The Montana law at issue had been on the books for nearly a century.  Is the democratic process in Montana less robust as a result of the law?  There doesn’t seem to be any evidence that it is less robust.  As I mentioned earlier, Western Tradition is an organization that, in part, is dedicated to overturning laws like the one in Montana.  They are supremely motivated to find a compelling plaintiff to show how democracy is harmed in Montana.  They were unable to do so.  Instead they got two co-plaintiffs who were unable to articulate any impact on them by the law.

Your response to my first question is more difficult.  If money isn’t speech than laws regulating its use aren’t subject to First Amendment scrutiny.  While I can’t imagine that a federal law allowing corporations to only donate money to one party would ever get out of the Senate, it does strike me as conceivable that a state that is dominated by a single party could pass such a law.  However, I suppose that in those states there are fewer donations to state political parties and candidates because there isn’t much by way of competitive elections.   Thus, there isn’t any incentive to pass such a law.

Your response to the second question also touches on the part of the dissent that has caught some attention.  Justice Nelson writes that while corporate personhood is well established law, “I find the entire concept offensive.”  ¶ 132.  According to Justice Nelson, since corporations are creatures of law, any legal protections corporations enjoy should be conferred by the legislature not by the Constitution.  Just Nelson writes “Corporations are not persons.  Human beings are persons, and it is an affront to the inviolable dignity of our species that courts have created a legal fiction which forces people-human beings-to share fundamental, natural rights with soulless creations of government.  Worse still, while corporations and human beings share many of the same rights under the law, they clearly are not bound by the same codes of good conduct, decency, and morality, and they are not held equally accountable for their sins.  Indeed, it is truly ironic that the death penalty and hell are reserved only for natural persons.”

I have not previously considered my dignity affronted by corporate personhood to be an affront to the dignity of the species.  That said, I take Justice Nelson’s point to be that humans have fundamental rights because of the unique qualities that make us human.  Particularly, I think the justice is referring to free will.  Corporations, of course, don’t have a will.  Instead they have people who are tasked to act in furtherance of the corporation’s purpose.  With respect to for-profit corporations, the corporation exists to make money.  Political action corporations exists to propagandize for a cause.  Corporations, unlike humans, do not have to navigate the junction of emotional, physical, social, and philosophical imperatives that drive humans.   Lacking these motivations, corporations are different enough from human beings that, according to Justice Nelson, they shouldn’t be afforded the same rights.

You say that if corporations aren’t people then their speech can be regulated to the point of being forbidden (or perhaps also compelled).  Moreover, if corporations aren’t people than presumably corporations have no rights under the Fourth Amendment.  Given that corporations have no rights under the Fifth Amendment (see U.S. v. Kordel, 397 U.S. 1 (1970)), one might argue that whatever Fourth Amendment rights they have are illusory.  I didn’t research the point, but I hope that corporations don’t have any Second Amendment rights.

Limiting or eliminating corporate speech is only a problem if you regard corporate speech as somehow important.  There are, I suppose, arguments pro and con that point.  One thing that I think people who feel like Justice Nelson overlook is that whatever rule gets created regarding corporate speech will apply equally to entities one might think of as doing good as to entities one thinks of as acting more like the Anaconda Corporation.

How’s your personal/species dignity doing since Citizens United?

TORVIK RESPONDS ... TOMORROW!

Wednesday, January 18, 2012

Inmate on death row not responsible for mail room mistakes

Back in October, I posted about the unusual case of Cory Maples. The original post is here. Today the United States Supreme Court ruled on the case. The Court ruled 7-2 that Mr. Maples can bring an ineffective assistance of counsel claim despite the fact that the deadline for such a claim was missed because his law firm's mail room never opened or provided him with an order that he needed to perfect his claim. The Court's order and dissent are here. Adam Liptik's summary of the case is here. While I would like to believe this decision signals the end of Courts punishing litigants for hyper-technical violations of rules, I doubt the case will be read that broadly.

On a lighter note, I was amused by the fact that Justice Scalia's dissent, which includes the line "Technology is destiny" was published the same day as the SOPA, PIPA protests are being held on various websites.

A Gillette-Torvik Conversation™: The Montana Corporate Speech Case — PART THREE

[Here are parts one and two.]

TORVIK:  Before I answer your specific questions, I want to discuss the Montana history lesson you mention. I too was amazed by the account of gilded-age corruption in Montana.  But while I was reading it, I kept asking myself: why does this matter? None of it had anything to do, I'd submit, with electioneering by corporations. Instead, it appears that some rich guy had everybody in the state of Montana on the take. This isn't some indirect corruption caused by the implicit purchase of votes through campaign contributions.  It's straight up corruption—bribery, direct payments, etc. (In Chicago, where I live, this is called Tuesday.)  

How does any of this history support the statute? Is the idea that because some people who got rich running corporations engaged in corrupt practices that all corporation must be excluded from making direct campaign contributions? Or what? I just don't get it.

The opinion also goes on at length about the governmental interest in protecting the appearance of an impartial judiciary. Again: so what? Most states have specific rules about judicial elections that address these concerns head on. The legal term for that is "narrow tailoring." The court attempts to address this concept in ¶ 47, but it is a D-minus effort at best. Instead of actually talking about whether the statute is narrowly tailored to address the identified governmental interests, it cursorily states that the effects of the statute on the plaintiff's speech are merely minimal. But that really isn't the point. The issue is whether the legislature could have accomplished the same goals by using less speech-restricting methods.  

The answer is a clear yes. If corruption in the form of bribery is really the interest—as you suggest—that interest can be addressed by laws that outlaw bribery and such corrupt practices. But Montana surely already has such laws. This is why the issue normally raised in these cases is not actual corruption, but the appearance of corruption. It's hard to see how limiting a corporations ability to spend money on politics prevents actual corruption. On the contrary, it would seem to prevent it by taking the money that would otherwise go to fund bribes and using it buy slimy ads. Or something.

And if the sanctity of judicial elections is the sacred cow, come up with special rules for judicial elections.

Now, on to your questions.

1)  Should spending money on politics be considered a form of speech? Yes. If it weren't, then content-based restrictions on campaign contributions and expenditures would be permitted under the First Amendment. For example, a law that said, "You may donate to Republicans, but not Democrats" would presumably be constitutional unless the First Amendment protects campaign donations as a form of speech. Or consider a law that allowed corporations to donate to Democrats but not Republicans. Unless corporations have free speech rights and campaign donations are a form of speech, such a law would presumably be constitutional.

2)  Is more speech always better? Perhaps not, but what is the alternative? Who decides when to restrict, and how do we determine whether such restrictions are legitimate? A free-for-all marketplace of ideas strikes me as superior to any conceivable alternative. Moreover, we just can't be afraid of speech. Because either people can handle free speech or they can't. And if they can't—if the polis is so easily duped, overwhelmed, or discouraged by "bad" speech"—then the republican form of government is doomed anyhow. So if we are going down, I'd prefer we go down fighting and free rather than surrendering to the idea that human beings are fundamentally incapable of self-government.

GILLETTE RESPONDS ... TOMORROW!

Tuesday, January 17, 2012

A Gillette-Torvik Conversation™: The Montana Corporate Speech Case — PART TWO

[Here is part one of the Conversation™.]

GILLETTE: The first thing that struck me about the case, and perhaps this goes to your subjective nature of reality posts, is how ludicrous at least two, if not all three of the plaintiffs’ claims are. One plaintiff, Champion Painting, Inc., is a sole proprietorship owned by Kenneth Champion, who is apparently the only employee of the company. Opinion ¶ 5. Mr. Champion is personally active in county and state politics, supporting and opposing candidates through blogs, letters to the editor, and speeches. Id. Mr. Champion believes (emphasis mine) that the Montana law prohibits him from speaking as the corporate spokesman of Champion Painting and prohibits him from using corporate funds to independently support or oppose candidates. Id. He also believes (emphasis mine) that an endorsement by Champion Painting would help his message. He also believes that there would be tax benefits to his corporation spending the money instead of him. ¶ 18. Apparently, he did not provide the court with anything by which it could gauge whether Mr. Champion’s beliefs were supported by fact. Please pause to consider the fact scenario by which a person might find the endorsement of the owner of Champion Painting unpersuasive but find the endorsement of the company Champion Painting persuasive.

Similarly, another plaintiff, the Montana Shooting Sports Foundation, has, for over 10 years, operated a political action committee in Montana and publicized the foundation’s grading and endorsements of candidates in state and national elections. ¶ 6. Gary Marbut, the foundation’s founder says that the foundation has “some weight with the Montana public by virtue of [the foundation’s] long history of activism in Montana.” Id. However, Mr. Marbut believes that Montana law prohibits him from using the foundations member dues (but not donations) to support or oppose candidates. Id. As the Court notes, Mr. Marbut is simply wrong in his belief. ¶ 17.

Perhaps unsurprising given the above, neither Mr. Marbut nor Mr. Champion could articulate a way that the Montana law hindered their political speech. Id.

Then we come to the third plaintiff, Western Tradition Partnership Inc. It is a Colorado corporation but is not a business corporation. ¶¶ 7, 19. Its purpose, according to the Montana Attorney General, is to solicit and anonymously spend the funds of other corporations, individuals, and entities, to influence the outcome of Montana elections. ¶ 19. As the opinion notes, Western Tradition is refreshingly upfront that its expenditures will, in fact, influence Montana elections. It told potential donors “The only thing we plan on reporting is our success to contributors like you who can see the benefits of a program like this. You can just sit back on election night and see what a difference you’ve made.” Id. Western Tradition has not been complying with Montana Election laws and has brought at least three lawsuits in Montana state and federal courts to overturn various Montana election laws it doesn’t like. One of the dissenters said Western Tradition engaged in “blatant hypocrisy.” ¶ 69 n.3. The dissent, of course, wanted to rule in favor of Western Tradition.

Anyway, you didn’t ask whether I thought the plaintiffs were nincompoops. You asked whether any of the opinion’s distinctions were persuasive to me. The answer is yes. In Citizens United, the government did not claim that corporate expenditures had actually corrupted to political process. Thus, Justice Kennedy wrote that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” Citizens United, 130 S.Ct. at 909. Looking at the history of the State of Montana, the Montana Supreme Court said “[e]xamples of well-financed corruption abound.” ¶ 23.

The opinion goes on at length with these examples, which I was unaware of and found amazing. I won’t go too much into them but there were examples of corporations paying judges for decisions, bribes paid to the Montana legislature to seat W.A. Clark as United States senator that were so notorious, the Senate unseated him. At one point one a subsidiary of Standard Oil controlled 90% of the newspapers and a majority of the legislature. Things were so bad that even Senator Clark admitted that many people were indifferent to voting because of the large sums of money expended to control politicians. Because of Montana’s small population, current Montana politicians submitted affidavits describing how corporate spending significantly affects the outcome of elections today. At a minimum, it seems to me that the Montana Attorney General was trying harder to defend the statute then the government did in Citizens United.

One thing that is interesting about decision is that while the majority opinion doesn’t attack the concept of corporate personhood, the second dissent, by Justice James C. Nelson, attacks the concept relentlessly and remorselessly. Justice Nelson, who dissents because he agrees with Professor Volokh and Ms. Lithwick that Citizens United controls the outcome of the case, writes:
While, as a member of this Court, I am bound to follow Citizens United, I do not have to agree with the Supreme Court’s decision. And, to be absolutely clear, I do not agree with it. For starters the notion that corporations are disadvantage in the political realm is unbelievable. Indeed, it has astounded most Americans. The truth is that corporations wield inordinate power in Congress and its state legislatures. It is hard to tell where government ends and corporate America begins: the transition is seamless and overlapping. In my view, Citizens United has turned the First Amendment’s “open marketplace” of ideas into an auction house for Friedmanian corporatists. Freedom of speech is now synonymous with freedom to spend. Speech equals money; money equals democracy. This decidedly was not the view of the constitutional founders who favored the preeminence of individual interests over those of big business.
Second, I disagree with the premise that unlimited corporate political speech is essential to ‘enlightened self-government’ and aids in the electorate in making ‘informed choices.’ Citizens United¸130 S.Ct. at 898, 907. I agree that “[r]hetoric ought not to obscure reality.’ Citizens United, 130 S.Ct. at 907. But I cannot agree that Citizens United majority’s views reflect “reality.” For one thing, voters generally do not have the desire, much less the time, sophistication, or ability, to sift through hours upon hours of attack ads, political mumbo jumbo, and sound bites in order to winnow truth (of which there often seems to be very little) from fiction and half truths (of which there unfortunately seems to be an endless supply). The Supreme Court believes the solution for false or misleading speech is more speech. Yet, an endless barrage of accusations and counteraccusations providing more fodder than fact only serves to overwhelm, confuse or disenchant voters.
There’s more to the dissent that we should, and perhaps will, discuss. But let’s start with these two points. I think that Justice Nelson is correct that current First Amendment jurisprudence equates speech and money. But should those things be equal? Second, do you think that “more speech” or at least the speech we currently get in elections, is particularly useful in terms of ferreting out the truth? As lawyers’ we believe that truth emerges in our adversarial system. But in a trial, each side gets an equal opportunity to present its case to the judge and jury. That doesn’t necessarily happen in elections because one side may spend vastly more than the other.


TORVIK: Hmm. That's a lot to chew on. I will have to sleep on this and get back to you tomorrow.

TO BE CONTINUED...

Friday, January 13, 2012

A Gillette-Torvik Conversation™: The Montana Corporate Speech Case — PART ONE

GILLETTE:  The Montana Supreme Court made the news recently for its decision in Western Tradition Partnership, Inc., v. Attorney General. The decision upholds Montana’s ban on corporate expenditures in favor of or against a political candidate. Eugune Volokh says that this result is directly contrary to Citizens United, the United States Supreme Court opinion that overturned a provision of the McCain-Feingold law that prevented corporations from spending money on independent electioneering within 60 days of a general election (or 30 days of a primary), and will be reversed by the United States Supreme Court. Indeed, the two dissenters in the Montana Supreme Court opinion dissent for that very reason. Dalia Lithwick at Slate also thinks the decision is a thumb in the eye to Citizens United, but in typical Slate faux-contrarian fashion she posits that the Montana Supreme Court ruled the way it did because the justices on the court are elected and they know that Citizens United is not popular with a lot of people.

This lack of popularity stems from the fact that the shorthand description of Citizens United is that corporations are people with the same First Amendment rights that, to borrow a phrase from Stephen Colbert, “people people” have.

What do you think Mr. Torvik?  Is Western Tradition Partnerhship doomed for reversal?  Or is the majority’s decision defensible?

TORVIK:  If Eugene Volokh and Dahlia Lithwick agree that Western Tradition is directly contrary to Citizens United, who am I to disagree?

I would love to defend the decision.  It's often true that seemingly irreconcilable decisions can be squared away by emphasizing minute but legally significant distinctions.  That's lawyering, after all.

But the Montana court doesn't do a very good job of pointing out any meaningful differences.  Frankly, some of its "analysis" is closer to schoolyard taunts.  For example, it notes that the statute was passed 99 years ago and frames the question to be decided as "when  in  the last  99  years  did Montana lose  the  power  or interest  sufficient  to  support  the  statute, if it ever did?"  Obviously, once you see this formulation of the question, you can guess what the answer is going to be. (Flashback to law school: "Was it 98 years ago? 97 years ago? 90 years ago? ...")  And in an analogy on its way to the preordained answer, the court says, "Does a state have to repeal or invalidate its murder prohibition if the homicide rate declines?  We think not."  Careful lawyers might be able to make some distinctions here, between the murder hypo and the campaign finance situation.

I'll give the court credit for one thing—it did resist the urge to make a Hitler analogy.

What do you think?  Did any of the Court's distinctions sing to you?

TO BE CONTINUED ...

Thursday, January 12, 2012

The Pitfalls of Style

Occasionally, statutes or codes go through a process of "stylistic revision." The intent is a noble one. Laws are often confusingly or archaically drafted, or both, leaving them sometimes incomprehensible even to trained lawyers. Since the lay public is presumed to know what the law is, laws should be drafted in a way that even the average person can understand them. Stylistic revisions further that goal.

But sometimes laws are hard to understand because they are just complicated, and stylistic revisions can, in an effort to simplify the prose, unintentionally change their meaning—and thus the law!

Wednesday, January 11, 2012

Friday, January 6, 2012

LaVar Arrington isn't afraid to take a stand when a stand is needed.

I don't believe that we have posted about the horrific allegations surrounding former Penn State University defensive coordinator Jerry Sandusky and the fact that the University, including Joe Paterno, allegedly knew that Mr. Sandusky was sexually assaulting children and took no actions. Those unfamiliar with the story can read about it here.

Former Penn State linebacker LaVar Arrington spoke out yesterday about his feelings of anger and embarrassment regarding the way Penn State is handling things. Mr. Arrington said that he would put "in storage" anything that relates to his time at Penn State. Among Mr. Arrington's possessions are an Alamo MVP trophy and the Butkus Award, an award given to the best linebacker in college football each year.

My first thought on seeing the article was that it was about time that a famous Penn State player criticized the way the University handled the scandal. However, on further review of the article, it turns out that Mr. Arrington is not complaining about how the university is handling the scandal. Instead, Mr. Arrington is upset that Penn State is apparently going to hire a head football coach who has no previous connection with Penn State.

While I understand that every person has a point at which a situation becomes so intolerable that they need to protest, I am not sure that Mr. Arrington was wise in determining what actions by Penn State forced him to stop supporting his alma mater.

Thursday, January 5, 2012

College Basketball and the Nature of Reality

It has been a rough week for me as a fan of the Wisconsin Badgers.  First, the basketball team lost to lowly Iowa at home.  Then the football team lost in the Rose Bowl.  Then, on Tuesday, the basketball team lost again at home, this time to arch-rival Michigan State, in overtime.

For one ecstatic moment, however, it seemed that the game was headed for a second overtime.  Forward Ryan Evans banked in a three to tie the game just before the buzzer sounded.  The clock on the screen while the play was happening clearly had not yet struck zero.  It was great.

But then the madness began.  The clock on the screen wasn't the official clock!  And the "official clock"—the one above the backboard—was all zeroes when Evans let the shot go.  Here's the definitive picture that shows both clocks:


This is inexplicable.  One possible explanation is that the clocks got screwed up when the refs went to the monitor with 20.1(or 20.3?) seconds left to make sure the clock had stopped at exactly the right time.  But I prefer an explanation rooted in the not-so-immutable physical laws of the universe.  Put simply, simultaneity is relative.