Sheridan: Con-Law

DRIVING OFF A CLIFF

Article:Watchdog: Bailouts created more risk in system:/n/a/2010/01/30/financial/f205922S44.DTL

Article:Watchdog: Bailouts created more risk in system:/n/a/2010/01/30/financial/f205922S44.DTL

Banking, the way we do it, is a disease, threatening the survival of the nation.

One day Treasury Secretary Paulson told Pres. George W. Bush (R-TX), House Speaker Nancy Pelosi (D-CA, and Senate Majority Leader Harry Reid (D-NV), that the financial system was in danger of collapse unless the government did something, otherwise we'd have a depression that made 1930 seem mild by comparison.  People would be thrown out of work and families into the street when they couldn't pay the rent or mortgage because they'd lost their jobs because their employers had been forced to close.  There'd be rioting in the streets.  Politicians would lose their jobs.  Calamity!

Oh, what to do, what to do!?

Spend a lot of government money bailing out wall street and its bankers, was the recommendation.

Faced with the top people in the financial world telling them that the bottom was falling out of the basket, what could the political leaders do but fall into line?  So they did, investing billions of taxpayer money to bail out private enterprise.  Socialism, in other words.  The dreaded Communism of my youth when health care was considered Communistic and Socialistic.  So said the American Medical Association, the lobbyist for private enterprise for physicians more interested in stock charts than patient charts.

So Wall Street, the bastion of capitalism, the master of the free market economy, economic democracy, needed to be bailed out by the man in the street, rather than the other way around.  Socialism.  Communism.  All the boogie-man words of my youth coming back to haunt the people who threw them to prevent the man in the street from getting help from his government to protect his health as a matter of the national health.  As the generals might see it, and they do, you can't have healthy troops without a healthy population.

Having now been bailed out by the people, our new Socialist bankers are granting themselves bonuses based on the revenue generated by getting Congress to hand over the dough.  Bankers don't care where the money comes from:  embezzled funds, Mafia generated funds, drug-money, or honest business proceeds.  They care about dirty money when the law says they must care, otherwise money is money as long as it is green, or can be transferred in the form of electrons through wires and clouds.

It's the bonuses that are sticking in people's craws, people who bailed the bankers out, only to have them turn on the people who bailed them out, only to have these good folks thrown overboard while those who control the boat sit high and dry.

Meanwhile the situation is riskier now than it was before the bailout.

The phrase "driving off a cliff," incidentally, is one I used to characterize the situation to a friend over two years ago, before Lehman Brothers collapsed into bankruptcy.  I see it used below.  There's something to it, apparently.

The story is below:

Watchdog: Bailouts created more risk in system

By DANIEL WAGNER and ALAN ZIBEL, AP Business Writers

Sunday, January 31, 2010

(01-31) 02:22 PST WASHINGTON (AP) --

The government's response to the financial meltdown has made it more likely the United States will face a deeper crisis in the future, an independent watchdog at the Treasury Department warned.

The problems that led to the last crisis have not yet been addressed, and in some cases have grown worse, says Neil Barofsky, the special inspector general for the trouble asset relief program, or TARP. The quarterly report to Congress was released Sunday.

"Even if TARP saved our financial system from driving off a cliff back in 2008, absent meaningful reform, we are still driving on the same winding mountain road, but this time in a faster car," Barofsky wrote.

Since Congress passed $700 billion financial bailout, the remaining institutions considered "too big to fail" have grown larger and failed to restrain the lavish pay for their executives, Barofsky wrote. He said the banks still have an incentive to take on risk because they know the government will save them rather than bring down the financial system.

Barofsky also said his office is investigating 77 cases of possible criminal and civil fraud, including crimes of tax evasion, insider trading, mortgage lending and payment collection, false statements and public corruption.

One case concerns apparent self-dealing by one of the private fund managers Treasury picked to buy bad assets from banks at discounted prices. A portfolio manager at the firm apparently sold a bond out of a private fund, then repurchased it at a higher price for a government-backed fund. A rating agency had just downgraded the bond, so it likely was worth less, not more, when the government fund bought it. The company is not being named pending the outcome of Barofsky's investigation.

Barofsky renewed a call for Treasury to enact clearer walls so that such apparent conflicts are less likely.

Treasury said it welcomed Barofsky's oversight but resisted the call to erect new barriers against conflicts of interest. The new rules "would be detrimental to the program," Treasury spokeswoman Meg Reilly said in a statement. The existing compliance rules "are a rigorous and effective method of protecting taxpayers," she said.

Much of Barofsky's report focused on the government's growing role in the housing market, which he said has increased the risk of another housing bubble.

Over the past year, the federal government has spent hundreds of billions propping up the housing market. About 90 percent of home loans are backed by government controlled entities, mainly Fannie Mae, Freddie Mac and the Federal Housing Administration.

The Federal Reserve is spending $1.25 trillion to hold down mortgage rates, and millions of homeowners have refinanced at lower rates.

"The government has stepped in where the private players have gone away," Barofsky said in an interview. "If we take government resources and replace that market without addressing the serious (underlying) concerns, there really is a risk of" artificially pushing up home prices in the coming years.

The report warned that these supports mean the government "has done more than simply support the mortgage market, in many ways it has become the mortgage market, with the taxpayer shouldering the risk that had once been borne by the private investor."

Barofsky's report echoed concerns raised by housing experts in recent months, as home sales and prices rebounded. They warn that the primary reason for the turnaround last year has been billions of dollars in federal spending to lower mortgage rates and prop up demand.

Once that spigot of cash is turned off, they caution, the market will be vulnerable to a dramatic turn for the worse. Daniel Alpert, managing partner of investment bank Westwood Capital, wrote in a report that national home prices are bound to fall 8 to 10 percent below the lows of last spring.

"The lion's share of the remaining decline will occur in markets that saw sizable bubbles but have not yet retrenched," he wrote.

Officials from the Obama administration counter that massive federal intervention has helped the housing market stabilize and prevented more dire consequences.

Barofsky's report also disclosed that, while the Obama administration has pledged to spend $75 billion to prevent foreclosures, only a tiny fraction — just over $15 million — has been spent so far. Under the Making Home Affordable program, only about 66,500 borrowers, or 7 percent of those who signed up, had completed the process as of December.

He said the key to preventing future crises is to reform Fannie Mae and Freddie Mac, create and improve loan underwriting and supervision of banks. He stopped short of endorsing specific proposals for overhauling financial regulation, but said many of the proposals would go far to improving the system.

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PRESIDENTIAL COMMENTARY ON SUPREME COURT DECISIONS

As Pres. Barack Obama made his State of the Union address to a Joint Session of Congress last Wednesday with some members of the Court seated front and center, Associate Justice Samuel Alito was seen, and commented on, to shake his head negatively and mouth the words, "Not true," as reported in the press, in reference to the Citizens United decision the week before which accorded corporations more free, meaning expensive, speech than they'd been accustomed to for the past century of limitations on corporations buying representatives, hence government.

I don't know the significance of the C.U. case as the reactions are just now brewing in the form of new legislation designed to curtail what some think abusive lobbying and politicking by wealthy interests.  But the presidential critique of the case and the head-shaking reaction by the justice brought to mind a previous instance where a president addressed the significance of a case in the presence of a member of the Court.

The occasion was the First Inaugural Address of Pres. Abraham Lincoln in 1860, the oath of office having been administered by Chief Justice Roger B. Taney, author of the Dred Scott decision (1857) which helped crystallize the polarized North and South popular opinions regarding slavery, hastening the advent of the war, according to various commentators.  Lincoln was faced with incipient secession and was trying to apply reason in the face of emotion.  Here's what he said about Dred Scott, a suit between private parties in which, I believe, the government did not participate.  I don't know this for a fact, but I assume that the function of today's Solicitory-General's Office was not then exercised in some fashion:

   "... I do not forget the position assumed by some that
   constitutional questions are to be decided by the Supreme Court, nor
   do I deny that such decisions must be binding in any case upon the
   parties to a suit as to the object of that suit, while they are also
   entitled to very high respect and consideration in all parallel
   cases by all other departments of the Government. And while it is
   obviously possible that such decision may be erroneous in any given
   case, still the evil effect following it, being limited to that
   particular case, with the chance that it may be overruled and never
   become a precedent for other cases, can better be borne than could
   the evils of a different practice. At the same time, the candid
   citizen must confess that if the policy of the Government upon vital
   questions affecting the whole people is to be irrevocably fixed by
   decisions of the Supreme Court, the instant they are made in
   ordinary litigation between parties in personal actions the people
   will have ceased to be their own rulers, having to that extent
   practically resigned their Government into the hands of that eminent
   tribunal. Nor is there in this view any assault upon the court or
   the judges. It is a duty from which they may not shrink to decide
   cases properly brought before them, and it is no fault of theirs if
   others seek to turn their decisions to political purposes...."

Perhaps Chief Justice Taney shook his head negatively at Lincoln's undercutting of the pro-slavery, anti-human rights holdings of the case and its purported legal authority as binding on the nation and thought to himself words similar to "Not so."  I say purported because a great constitutional lawyer, A. Lincoln, had just denied its authority, saying that to do otherwise would be to have the people cease to be their own rulers.  I defer to Lincoln.

Part of the deal of being a justice of the Supreme Court is that one doesn't always know at the time of decision the effect it will have, how it will be taken, or its lasting significance.  Seeing the decision characterized, or mischaracterized, differently than one may have intended, goes with the territory.  Libraries have been written on Dred Scott.  The Feherenbach volume alone is more than 800 pages, briefing one case, if you will.

The Santa Clara Railway Case, when was that, 1887 or so? recognizing w/o argument but taking it for granted that corporations had the constitutional rights of humans seems to have contributed to the foundation of Citizens United.

Roe v. Wade (1973) is a more modern example of a case that perhaps didn't seem out of the ordinary when decided, yet in its own way has resulted in a kind of civil war with abortion protesters murdering abortion performing doctors and then seeking to excuse the crime on the basis of genuine belief, the Roeder case decided this week in Kansas against that proposition being the latest example.

The point is that we're free to characterize the import of cases as we see them, rightly or wrongly, exaggeratedly or not, and that includes presidents, justices, other politicians, partisans, and members of the public.  Cases are like paintings or any other artifact.

Beauty is in the eye of the beholder.

Perhaps you see it differently and can advise who is, or will turn out to be right, Alito or Obama.  Or Associate Justice Anthony M. Kennedy who seems to have figured he was dealing more with free speech than corporations and political law.

rs

I was pleased to see a "nice post!" re this, from one of the distinguished historians and law professors on the Conlawprofs listserv, P.F.

DARK SIDE

The question is whether you have a constitutional right to do things that others regard as wrong.

Frequently you do.

For example:

Newspapers frequently publish inaccurate reports to the embarrassment and detriment of their subjects.  A whole body of law has been developed around the question of who may sue and for what cause.  At the base of this pile of cases is New York Times v. Sullivan (1964) which protects the right of a newspaper to publish even inaccurate reports, embarrassing to public officials, through negligent reporting and fact-checking, providing not done with malice in the "NYT v. Sullivan sense," as the saying goes, meaning with either knowledge of the falsity of the statement or a reckless disregard for its falsity or for finding out the truth.

Why so much protection for falsity?

Because in order to protect the core you have to protect the fringe.  To protect the light side, you have to protect the dark side.

NYT v. Sullivan upholds the dark side to protect the light.

Can you think of other areas of the law which protect the dark side to protect the light?

The question came up the other day in regards to a California statute  (Penal C. Sec. 1054.8) which requires private defense investigators to properly identify themselve when interviewing witnesses in a criminal prosecution.

This strikes me as being of questionable constitutionality on the theory that if law enforcement is entitled to use deception (such as undercover cops posing as criminal gangsters or drug dealers), which they are (see the criminal entrapment cases such as Russell), then why shouldn't private investigators be entitled to use deception to prevent injustice, such as perjury, a crime.  Are only the police entitled to use deception to detect crime?  Why not private individuals as a matter of self-defense against a miscarriage of justice.

If you were falsely accused, wouldn't you feel entitled to trick your accuser into revealing the truth?

I would.

What about torture?  Would you be entitled to torture your accuser or a witness in order to get at the truth?

No, you would not.

Every good idea has its limits, so make sure you don't take as legal advice any of these musings.  That would be a big mistake on your part. 

SUBTERFUGE: A CONLAW MOMENT

The scene:  A seminar on ethics for criminal defense attorneys conducted January 20, 2010, in the large conference room of  the San Francisco Public Defender's Office, with Chris Gauger well-moderating the back-and-forth discussion with members of a packed audience of PDs and private attorneys.

The question, posed by the moderator:  Your client is accused of committing an offense and his accuser is learned to be an active participant in an on-line chat site.  May your investigator enter the Internet site using an assumed name, i.e. a false identity, in order to chat up the accuser in order to find information to impeach his/her testimony?

Members of the seminar audience suggest various reasons why this is not a good idea.

Moderator suggests that the answer to the question is to be found in California Penal C. Sec. 1054.8, stating that this statute provides that defense investigators are required to properly identify themselves before questioning a witness.

Seems quite right, yet this bothers me.  Why should police be allowed to lead lives of fiction while operating undercover to get the bad guys but not private investigators?

In response to this conundrum, I stand up and make the following pronouncement:

"I would raise the question as to whether Section 1054.8 is constitutional, on the theory that if law enforcement is entitled to use deception to detect crime, then why shouldn't a private investigator be permitted to use deception to prevent injustice."

Sitting back down, I hear a few laughs.

Seated, I hear just about everyone burst out laughing, followed by, what's this...? Applause! 

People are clapping, a few at first, then generally. 

This roomful of experienced defense attorneys is applauding a legal formulation. 

Constitutional law is alive in the here and now!

I was gratified at this unaccustomed reception for a modest Conlaw query.

***

Later review of the statute shows that investigators for both sides, prosecution and defense, are required to identify themselves properly when interviewing witnesses. (Disclosed witnesses, per the statute, leading one to wonder about the others one might imagine.)

Yet, the question persists.  Is there a constitutional basis supporting police use of subterfuge to detect crime?  Tradition?  Of course, I presume. See U.S. v. Russell (1973) 411 US 423, upholding use of undercover FBNDD agent posing as drug-ring buyer and allegedly entrapping manufacturer/seller of methamphetamine.  The Court notes, in declining to overrule cases (Sorrells and Sherman), holding that a predisposition to commit an offense negates the defense of government entrapment) that the defense of entrapment is not of constitutional dimension, but is rather something less, statutory, and up to Congress to define. 

What then is the constitutional basis for precluding use of subterfuge by the defense in order to prevent a miscarriage of justice by perjury of a prosecution complaining witness, say in purported violation of Cal. P.C. 1054.8?

PC 1054.8 provides:

1054.8. (a) No prosecuting attorney, attorney for the defendant, or investigator for either the prosecution or the defendant shall interview, question, or speak to a victim or witness whose name has been disclosed by the opposing party pursuant to Section 1054.1 or 1054.3 without first clearly identifying himself or herself, identifying the full name of the agency by whom he or she is employed, and identifying whether he or she represents, or has been retained by, the prosecution or the defendant. If the interview takes place in person, the party shall also show the victim or witness a business card, official badge, or other form of official identification before commencing the interview or questioning. (b) Upon a showing that a person has failed to comply with this section, a court may issue any order authorized by Section 1054.5.

***

Regarding subterfuge and other illegality such as information theft, the thought occurred that the Court, in New York Times v. U.S. (1971) 403 US 713, the Pentagon Papers case, did not let that fact that Daniel Ellsberg stole the confidential historical documents from his government employer, the Department of Defense, i.e. the Pentagon, destroy FA protection for the Times (and independently, the Washington Post) to publish, despite a national security objection.  Nor in Bartnicki v. Vopper (2001) 532 U.S. 514, did the Court allow the illegal recording of a cellphone conversation about a public issue destroy FA protection for a later discloser of the information.

Would, I wonder, the FA protect disclosure of information gained by subterfuge in violation of Cal. Penal C. 1054.8?  What about the criminal procedural guarantees, such as right to counsel and fair trial?  The truth finding function of the criminal justice system including trial? 

Perhaps the correct answer is, "Perhaps."  Therefore, proceed at your own risk.  Better yet, don't go down the risky road.  Let some other poor soul go down that road, eyes not fully open, and let his experience guide yours.  Why become a player in a crapshoot where you don't control the game but someone else does?

On the other hand, suppose there were reason to believe that the complaining witness was committing perjury, thus framing your client.

Would a private investigator be permitted to go undercover, i.e. resort to subterfuge, to detect and thus prevent the commission of this crime?

Would the grounds of justification include not only First Amendment but right to effective-counsel, which requires counsel to investigate competently to provide effective assistance, right to fair trial, due process and equal protection of law.

I don't see how to avoid these issues if one prohibits a private investigator from going undercover, just as do the police.

JUSTICE JACKSON ON RUNNING FOR ELECTION

 Prof. Barrett of St. John's in New York, who presides over a listserv devoted to Justice Robert Jackson has presented a memo from the late justice advising as to what it takes to run for Congress, written to a friend.  I've highlit it below and pass it along here, further to the general request of Prof. Barrett.

He writes:

For the Jackson List:

Robert H. Jackson was interested in and connected to politics for his entire life.  Jackson was, like his ancestors, a Democrat.  In his youth, he spoke and worked in Chautauqua County in western New York State for presidential candidate Woodrow Wilson.  Jackson later became, for a time, his party’s county chairman.  Through Democratic Party politics in New York State, Jackson became acquainted with “Frank” Roosevelt, James A. Farley, Henry Morgenthau, Jr. and others who later brought Jackson into national government and advanced his career.  Jackson worked actively for Franklin D. Roosevelt’s elections as New York governor in 1928 and 1930 and his presidential elections in 1932 and thereafter.

 

During Jackson’s Washington service (1934-41) in the Roosevelt administration, he was very much in politics.  He dealt constantly with (other) politicians, became a friend to many of them, and observed them all of politics from the inside.  Jackson came close to running for political office a few times.  In the mid-1930s, he considered running for the state bench, including the New York Court of Appeals.  In early 1938, he flirted with a New York gubernatorial candidacy.  By 1940, he was a national figure and a leading presidential prospect—of course based on the assumption, which proved incorrect, that the Democratic Party would need a new presidential candidate that year to succeed the retiring FDR.

 

In the end, Robert Jackson never ran for elective office.  In 1941, he was appointed to the Supreme Court.  Four years later, he was in Nuremberg prosecuting the principal Nazi war criminals.

 

In Nuremberg, Justice Jackson met Jacqueline Cochran, the world famous American aviatrix.  (For video, click here.)  She was covering the Nuremberg trial for Liberty magazine, which was owned by her husband, businessman Floyd Odlum.  The Cochran/Odlums soon became friends with Bob and Irene Jackson.  Irene flew often with Jackie.  Each couple hosted the other in its home (or, in the Odlums’ case, homes).

 

*          *          *

 

In the 1950s, Jackie Cochran discussed with Bob Jackson the prospect that she would run for Congress from the Riverside County, California, district where she and Floyd had a desert ranch.  Jackson subsequently wrote (probably in 1954) and sent to Jackie a typed, unsigned, undated memorandum giving advice to the prospective politician.

 

Jackson’s memorandum, much of it still relevant today (and to more than House races), seems worth considering on this political “day after”:

 

MEMORANDUM

 

Jim Farley used to say, “In politics nothing just happens.”  It seems that success depends on an intelligent plan, courageously adhered to, and one which does not omit consideration of weaknesses as well as strengths of one’s position.

 

First, to consider the dangers.  It would be fatal to your campaign to be regarded as an absentee from your district.  That is an idea that could be subtly cultivated.  Washington is full of examples of men who were once powerful and carried their districts with ease, who have been retired simply because they spent so much time in Washington that their district regarded them as foreigners.  You simply must so completely identify yourself in your district that when they think of you, they think of you as one of themselves and not as a transient.

 

Every candidate who has or is related to wealth is always charged with trying to use that advantage to carry the election.  The charge is easy to make and difficult to overcome, for the more publicity, etc. that is resorted to in answering the charge, the more the charge seems to be proving itself.  Your candidacy simply must start at the “grass roots” and remain that kind of a campaign, with no machinery in sight. This means that it must largely be the work of volunteers.

 

Volunteers present special dangers of their own.  Most of them have their own interests to promote rather than the general interest and expect to use the campaign as their own.  A mistake by one of one’s own supporters is ten times as serious as an attack from one’s enemies.  Remember, Dr. Burchard, who defeated James G. Blaine for President for his famous speech against “rum, Romanism and rebellion,” was Blaine’s friend – not his enemy.  Moreover, it is easier to get these special-interest people started than it is to get them stopped, and easier to get tied to them than it is to get loose.  History is full of instances in which candidates had to repudiate some of their supporters who were running away with the campaign, only to find it very embarrassing and sometimes fatal.

 

An intelligent plan for campaign can only be based on either the closest knowledge or an intense study of the district.  The study itself should be preceded by a plan, but it would include such items as these:

 

(a)   What newspapers are published in the district and what outside papers are read there.  Who controls them and how.  What radio stations are local or are listened to particularly.  With what, if any, special interests are each of these means of communication identified.  What are their biases in politics.

 

(b)   What are the economic interests of the district.  A Congressman is supposed to represent the general interest of the district.  But that can be ascertained only by the aggregate of special interests or the balance of special interests.  For example, one end of the district might produce what the other end consumed, such as milk which is produced in upstate New York and consumed in New York City.  While the trade can be advantageous to both ends, it is also possible for a candidate to have both ends against him unless he understands their interests.  One needs to know both what the district produces and sells and what it needs and consumes; and where its markets are and what economic ills it suffers from.

 

(c)    What employer organizations exist in the district, what is their strength and what is their policy.  What labor unions exist and what is their strength; what is their program within the district.  What are the relations of each of these organizations to national organizations and how far will they act independently of them.

 

(d)   What federal aid goes into the district.  This is of 57 varieties.  Who gets it and how much, and why.

 

(e)    What is the district’s special interest in the various federal programs, such as reclamation, agricultural controls, etc., etc.

 

(f)     Who are the important personalities and why are they important, and how do they keep their importance.  These are the ultimate materials of a campaign.  It is people who vote and people who lead voters.  It is impossible to take them on their own estimates, but the largest aggregation of them will carry the election. One cannot have some without alienating the others.  Do they lead by their influence with labor, with industrialists, with farmers, or with general publicity.  The way these ultimates line up makes the assets and liabilities of a candidate.

 

(g)   Who can make such a study of your district.  Certainly no politician connected with any of the organizations could do it because it is likely to be biased.  It is not in the line of any business organization or a public relations job.  My guess is that it could best be done by an experienced newspaper man of no particular convictions who could go into the district as if he were preparing a newspaper article and perhaps could use his material for that purpose.

 

Once this basic data is obtained, the question becomes one of evaluating it and formulating a plan based on it.  Until that is done, any commitments to persons or policies is guesswork, and I don’t need to tell an aviatrix that guesswork leads to crashes in politics as in aviation.

 

*          *          *

 

In 1956, Jacqueline Cochran Odlum did run, as a Republican, for an open House seat.  Despite the fact that another of her friends, President Dwight Eisenhower, won landslide reelection that November, including victory in California, she lost.  The winner was Dalip Singh Saund, the Democratic Party candidate and the first native of India to be elected to the Congress of the United States.

 

*          *          *

 

Thanks for your interest and, as always, please share this with others who might be interested too.

 

Best wishes,

 

John

 

 

Professor John Q. Barrett

St. John’s University School of Law

Homepage

 

Elizabeth S. Lenna Fellow

Robert H. Jackson Center, Inc., Jamestown, NY

 

Archive of selected Jackson Email List posts

  

Administrative details:  I send Jackson List notes, which do not display recipient identities or email addresses, to readers who are interested in Justice Robert H. Jackson, the Supreme Court, Nuremberg and related topics.  To read archived copies of some past Jackson List posts, click here.  If you received this note indirectly and wish to join the Jackson List, send a “subscribe” note to barrettj@stjohns.edu.  If you wish to leave the Jackson List, just send an “unsubscribe” note.

 

 

CONLAW SPEAK

California's anti-Gay Marriage Prop. 8 is under constitutional attack in federal district court in San Francisco as a violation of equal protection and substantive due process, i.e. liberty.  Leading the charge are the ad hoc team of David Boies and Ted Olson who famously opposed one another in another major conlaw case, Bush v. Gore, (2000).

Margaret Talbot of the New Yorker Magazine has written about the trial, Perry v. Schwartzenegger in the Jan. 18, 2010 edition.

She quotes the conservative Mr. Olson in an interview as saying about the subject of gay marriage:

"Separate is not equal.  Civil unions and domestic partnerships are not the same as marriage.  We're not inventing any new right, or creating a new right.  The Supreme Court has said over and over and over again that marriage is a fundamental right, and although our opponents say, "Well, that's always been involving a woman," when the Supreme Court has talked about it they've said it's an associational right, it's a liberty right, it's a privacy right, and it's an expression of your identity, which is all wrapped up in the Constitution."

Conlaw is different than the usual subject areas we divide the law into for study and discussion purposes, such as crimes, contracts, torts, etc., in the sense that to address underlying issues of legitimacy, which is what conlaw is about, one  must often reach for a higher level of generality.

The founding fathers, in drafting the Constitution, did not use the terms "fundamental right," "associational right," "liberty right," "privacy right,"and  "an expression of your identity."

Yet the Constitution was designed to protect those things without specifically mentioning them.  This is one reason for the Ninth Amendment which guarantees that rights not enumerated belong to the states and the people.  This was in case they forgot a few, which they did, as to start listing rights would require a long list.

Do you have the right to eat food and breathe air?  Don't be silly, you say.  Well, suppose government taxed your right to eat food, could it do that?  It already does, doesn't it?  Isn't the interstate shipment of goods, including food, taxed?

Suppose government rules that you cannot collect rainwater falling on your roof?  Can it do that?  This was an actual case in which one of the arid western states ruled that residents had to leave the runoff alone so that it could drip down to the river where the state got its water and power.  But would this law stand up?  Did it violate some provision of the Constitution?  That's what you have to show to support the assertion of a violation.

The terms we use today are the result of many lawyers thinking hard about what they were really talking about when claiming liberty, sometimes called substantive due process as opposed to procedural due process.  Do you have the right to choose your own marital partner regardless of race, creed, or color?  Or because of same?  Isn't this discrimination?  Of course it is. 

But is it unfair discrimination?  The Constitution prevents government from unfairly discriminating.  But does it prevent you from unfairly discriminating in your private decisions as to whom to marry?  No.  Why?  Perhaps because at the level of individual choice it is not always considered unfair to discriminate. 

Government may not unfairly discriminate as a matter of policy, but we don't necessarily consider it wrong to make personal choices as to friend, marital partner, and spouse on such bases. 

The opposing view is exemplified in two major works of art, Puccini's "Madam Butterfly," where Lt. Pinkerton, USN, knocks up and then abandons his Japanese mistress, Madame Butterfly, and James Michener's "Tales of the South Pacific," where another Navy lieutenant falls in love with the beautiful daughter of Bloody Mary over there on the enchanted isle of  Bali Hai in the South Pacific, yet abandons her because of her race, meaning his. 

My guess is that if you want to stick with your own, your entitled, but it's wrong to go down the foreign road only to have a last minute change of heart, to your partner's broken heart, because you got cold feet.

What struck me about Ted Olson's comment, above, is that he hits all the right notes, Conlaw-wise.

Olson is speaking at a high level of generality, the highest, or close to, when he speaks of associational, privacy, liberty, and identity.  He's getting away from the brass tacks of individual examples to refer to the broad general principles underlying not only the one example he's most concerned with at the moment but the many others as well.  We can see the discrimination in one context, such as Madame Butterfly, but have trouble applying it to another, such as same-sex love. 

Maybe a great artist will compose equivalent works of art where the two protagonists are not male-female but of the same gender.  Maybe it's already happened.  Some popular songs, because of their ambiguity as to gender, have found favor not only in the straight community but the gay. 

Some law students have more difficulty getting their heads around Conlaw than other subjects because they're not used to thinking and expressing themselves in terms as abstract as Conlaw demands, as exemplified by Olson, above.  It takes a long time and much work to be able to think and speak as he does, above, in discussing Conlaw principles.  He's speaking as fundamentally as the language permits while still being understood.  He could've just said "liberty" to include privacy, association and identity, but instead he listed the major categories of liberty.  He could go on and on, which I won't.

SATAN LIVES!

According to the Rev. Pat Robertson, that is.  All you need to do is believe.  Here's the item from today's news following the earthquake in Haiti:

...

White House criticizes evangelist's Haiti remark

Thursday, January 14, 2010

(01-14) 14:26 PST Virginia Beach, Va. (AP) --

A White House spokesman on Thursday slammed evangelist broadcaster Pat Robertson's remark that Haiti has been cursed.

A devastating magnitude-7 earthquake hit there Tuesday.

"It never ceases to amaze me that in times of amazing human suffering somebody says something that can be so utterly stupid," White House spokesman Robert Gibbs said.

The day after the earthquake, Robertson said Haiti has been "cursed" because of what he called a "pact with the devil" in its history. His spokesman said the comments were based on Voodoo rituals carried out before a slave rebellion against French colonists in 1791.

Spokesman Chris Roslan says Robertson never said the earthquake was God's wrath.

Earlier, senior White House adviser Valerie Jarrett said on ABC's "Good Morning America" that Robertson's statement left her speechless. She called it "a pretty stunning comment to make" and said it doesn't express the spirit of the American people or the president.

http://sfgate.com/cgi-bin/article.cgi?f=/n/a/2010/01/14/national/a072527S21.DTL

...

Here's the way I figure it.  There is no natural, or even supernatural creature such as God, any more than there is a Sanny Claus, I hate to tell you.  No God prevents natural or any other kind of disasters any more than he causes them.   Long ago, that's what people believed, that he could and did, but if he didn't there must be something wrong with all of His victims.

Abraham had it out with God over maybe 5,000 years ago, going by the Jewish Calendar.  There were a few people in the town of Sodom behaving like, well, sodomites, regarded as a sin against this boogieman of the sky, an awful, vengeful boogieman.  To punish the wrongdoers, God wanted to wipe out the town.

"What're You, nuts?" asked Abraham?  "You want to wipe out the innocent women, boys, and children in order to destroy the sinners?  What kind of sense does that make?"

So God didn't wipe out Sodom, thank Abraham.

Abraham had more brains and a better sense of right and wrong than the boogieman in the sky.

What we have is the notion of God in our heads.  He doesn't exist in trees, the sun, the ocean, the heavens, the totem poles, the images, the churches and temples, or anyplace except inside our heads, those of us who continue believe past the age of reason, let's say around age ten, plus or minus any number of years you care to count.

This God, the one in your head, is capable of encouraging you to do marvelous things, such as inspiring you to keep struggling for the sake of you and your family and loved ones when times are terrible, you're in a foxhole, or the boat is sinking and you're in the water going down for the proverbial third time.  At moments like this, I'd bet that the person believing in God has a better chance of survival than the fellow who says, "Screw this, there ain't no hope, might as well just give up."

God in this sense, the idea planted in your skull that He, She, or It exists, offers hope, forgiveness, mercy, clemency, and other things in a spiritual or psychological dimension.  Get enough others to believe similarly and pretty soon you have something called a religion.  Why you would want to kill others who don't believe as you do is beyond me.  All I know is that Christians and Muslims have been doing so longer than seems reasonable.  Jews?  I don't think they go in for this, any more than Buddhists but I can't say the same for the Hindus, given the sectarian massacres following Partition in 1948 when India first broke from Britain and then broke apart into warring states called Pakistan (Muslim) and India (Hindu).  Buddhism isn't entirely exempt from blame considering that Japan during the war was some form of Shinto mixed with Buddhism and committed some of the worst atrocities imaginable.

On the radio today, NPR, a discussion about Jewish people and anti-Semitism.  One of the commentators made the point that it was as foolish ("Nazi-like" was the expression) to attribute allegedly positive tendencies (as in "they're smart") to Jews as a group or people as it was negative (think Shylock).  He then quoted comedian Jackie Mason as defining anti-Semitism as "disliking Jewish people any more than is absolutely necessary."

Ba-dum!

Hey, at least their forebears invented God.  As in the Boogieman of the Sky that Abraham had the big run-in run-in with and came out ahead.

Perhaps we should be erecting temple to Abraham rather than B.O.S., but I wouldn't know.  Maybe some day I'll run into either or both.  My luck they won't be down there.

Meanwhile we can pray for comfort and aid for the people of Haiti.  This doesn't hurt and may make you and others feel better, which I am all for.

Further meanwhile, Wells-Fargo Bank announced the donation of one-hundred thousand whole U.S. dollars to the aid effort.  This is really generous, don't you think?  A bank generating millions upon millions, granting huge bonuses to executives, donating $100,000 where the death toll is said to reach close to 50,000 people.  That's two bucks apiece, not even enough for a decent burial.

I wouldn't have minded if WFB had donated the $100k quietly so that no one knew.  But they announced it as though the bank should be given credit for trying.  Trying what?  To look good despite the financial meltdown caused by its fellow bankers?  The president has announced a U.S. aid effort of $100 million.  He's also announced that he intends to get back the billions in bailout money spent by taxpayers to rescue the financial industry from the brink of a self-created disaster.

I never much admired Karl Marx, having come of age during the McCarthy Era when anti-Communism and anti-Socialism were mandatory, but now that we've gone Communist and Socialist what with the federal taxpayer bailout of Wall Street AND Detroit (as in General Motors, bankrupt and enabled to stay in business by us, that is Uncle Sam) we might as well just admit it, he's beginning to look less like a boogie man himself and more like someone who smelled a rat when he came across one.

How much bonus money do the top ten executives of WFB make in bonus money for last year, I wonder?  More than $100k?  More than a million apiece?  

These guys throw nickels around like manhole covers, as my dad used to say of wealthy skinflints.

SOURCES OF CONLAW

Thank you very much, Helen, I'm relieved.

Helen K., an assistant professor of Political Science at SUNY, Oswego submitted a query to the Conlawprofs List, to which I replied.  The exchange appears below:

HK wrote:

Robert:

This is extremely helpful. Many thanks.

Helen

On Mon, Jan 11, 2010 at 11:57 AM, Robert Sheridan wrote:



    Helen K. wrote:

    "...I am interested in discussions about the effects on the
    legitimacy (however that might be defined) of opinions (increased
    or decreased legitimacy) when they use broad concepts (such as
    dignity) without constitutional textual bases to support specific
    interpretations of rights that are enumerated."

    *** (RS Reply):

    Broad concepts such as dignity (and freedom, liberty) existed long
    before the notion of a written constitution for a new government
    was ever conceived by revolutionaries conspiring in a
    shade-concealed room in Philadelphia in the summer of 1787.  While
    the broad notion of due process of law had legal precedent in
    British law dating to Magna Carta, 1215, and laws of property,
    trespass, personal autonomy (as protected by the law of assault
    and battery, for example), and elements of privacy in the home
    (laws against burglary, e.g.) were similarly traceable through the
    common law, the fact is that constitutional law reflects the broader
    and more general notions of what is right in the regulation of
    affairs by government (monarchy vs. republic) and the tension
    between government power and individual right.

    In short, we EXPECT Court opinions to rely on the much broader
    body of values suffusing the larger culture than any more narrow
    compilation of doctrine culled from reported decisions.  In the
    beginning there were no reported constitutional decisions from
    which to draw.  Marshall, in Marbury, cited few, if any cases.
    None, if recollection serves.  He did rely heavily on what he
    said was the common law, such as when he referred to the broad
    concept of there being no wrong w/o remedy.  Looking at the mass
    of opinions we have now it may be easy to assume that they
    represent some body of specialized knowledge that has been created
    somehow apart from the general culture on which it stands.  I
    don't think that would be correct.  The whole point of having
    judges apply law is to give courts the opportunity to draw, one
    hopes, on the better, broader, values of the larger society that
    the courts represent.

    Sorry if this doesn't help.

    rs




        Hello all:

        With apologies to those on the Law-Courts list who received
        this request 10 days ago.

        I feel as though there must be an obvious body of literature
        out there on this subject that I simply cannot locate...I am
        looking for recommendations of significant readings discussing
        the influence (political, legal, societal, etc.) of U.S.
        Supreme Court justices' usage of specific
        phrases/terms/language in their opinions. Specifically, I am
        interested in discussions about the effects on the legitimacy
        (however that might be defined) of opinions (increased or
        decreased legitimacy) when they use broad concepts (such as
        dignity) without constitutional textual bases to support
        specific interpretations of rights that are enumerated.

        Obvious and not so obvious recommendations are all welcome.
        Off-list responses please.

        Thanks in advance, and happy new year to all,

        Helen

        ...

"The law is what we live with. Justice is sometimes harder to achieve." (Sherlock Holmes (Arthur Conan Doyle, The Adventure of the Red Circle

CLASH OF WORLDVIEWS

Conlaw is the body of law that results when conventional wisdom clashes with cultural insanity.

During slavery, it was insane, as a cultural matter, to envision blacks as either people or as people entitled to equal dignity, status or rights.  Except for a few, disparagingly called 'abolitionists.'  This cultural insanity in favor of slavery no longer exists, for the poles of insanity have switched as the result of many influences, including the Civil War and the 1868 14th Amendment.  We've realized how wrong we were.

Germany has realized how wrong it was in attitudes leading to the Holocaust.

What about gay marriage?

One man's cultural insanity is another man's right to equal protection of law.

Each side rightly claims that the other is nuts, as in insane.  Culturally.

Conventional wisdom as I grew up held that gays were degenerates and criminals.

Then gays were, slowly, regarded as people entitled to equal dignity under law.  Partially, at least.  This took decades.  But not when it came to marriage.  Culturally, marriage has been viewed as an institution between a man and a woman. 

As the comedian said, "Who wants to live in an institution." 

But I digress. 

The question is whether people who choose to institionalize themselves have that right.

I say that they do.

This represents a change in view from the assumptions with which I grew up.

Perhaps this is what growing up means, learning that some of the views of your youth are not only inconvenient, but wrong.  It may take a while to think this through, but some people do, resulting in change, one hopes for the better.

Chronicle writer Bob Egelko has done an excellent job of introducing the clash of interests, expressed as worldviews, in the article reporting on the gay marriage trial in federal district court beginning today.  The U.S. Supreme Court has blocked the immediate televising of the trial, last minute.

Article:Prop. 8 trial begins today:/c/a/2010/01/10/MNG21BF0FM.DTL

Article:Prop. 8 trial begins today:/c/a/2010/01/10/MNG21BF0FM.DTL

Prop. 8 trial begins today

Bob Egelko, Chronicle Staff Writer

Monday, January 11, 2010

The nation's first trial on same-sex couples' right to marry - and the voters' power to forbid those marriages - begins today in a San Francisco federal courtroom that will serve as a forum for two diametrically opposed worldviews.

For two couples and their allies who have filed a lawsuit seeking to overturn California's Proposition 8, the November 2008 initiative was merely the latest example of historic discrimination against gays and lesbians.

Same-sex marriage poses no threat to opposite-sex couples, children or the public welfare, they argue, and a ballot measure that revoked the marital rights of one "disfavored group of citizens" was an unconstitutional appeal to fear and prejudice.

For Prop. 8's sponsors, a religious coalition called Protect Marriage, anti-gay bias is no longer significant in California, where legislators have legalized domestic partnerships and twice voted to authorize same-sex marriage. Discrimination also had nothing to do with the ballot measure, which merely wrote the time-honored definition of marriage into the state Constitution, they argue.

Extending wedlock to gays and lesbians, they maintain, would radically redefine marriage, weaken biological parents' connection with their children, tell men that "they have no significant place in family life" and force many religious Americans to "choose between being a believer and being a good citizen."

Dueling theories

The competing legal theories that will come up in court are a bit simpler: whether Prop. 8 violates the constitutional guarantee of equal protection by discriminating on the basis of sexual orientation and gender, or whether it validly reserves marital status for those who can naturally conceive children.

The initiative overturned a May 2008 state Supreme Court ruling that allowed gays and lesbians to marry in California. The state high court upheld Prop. 8 in May 2009 in a challenge by gay rights advocates whose claims involved only state law and not the U.S. Constitution.

A few days before the state court ruling, two couples and a recently formed advocacy group, the American Foundation for Equal Rights, sued in federal court. Their lawyers are the unlikely duo of Theodore Olson and David Boies, who represented George W. Bush and Al Gore, respectively, in the Supreme Court case that decided the 2000 presidential election.

Initial unease

Established gay rights organizations had avoided federal court, fearing a possible adverse ruling by a conservative U.S. Supreme Court. But with the fate of same-sex marriage in California, and possibly elsewhere, at stake in the trial, the advocates are all on board and most have filed supportive briefs.

The city of San Francisco, a plaintiff in the state court case, has also joined the federal suit. City officials contend Prop. 8 will increase their costs of caring for couples unable to obtain insurance and will also force San Francisco to deny equal rights to its residents.

The suit was assigned by random draw to Chief U.S. District Judge Vaughn Walker, a 1989 appointee of President George H.W. Bush. Walker, who has gained a reputation as a libertarian and a maverick on the bench, has put his distinctive stamp on the case, while making it clear that he expects his ruling to be appealed.

Walker ordered a nonjury trial and will preside as lawyers question the two couples, Prop. 8 campaign officials, psychologists, cultural researchers and other witnesses over the next two to three weeks - all posted for public viewing on YouTube, the result of another unprecedented Walker order.

Prop. 8's sponsors opposed broadcasting the trial on YouTube and fought Walker's order all the way to the U.S. Supreme Court, arguing that the video display would likely cause "harassment of witnesses, threats to the safety and security of trial participants, unnecessary public exposure and ridicule of trial participants." The high court had not issued a ruling by press time Sunday night.

A trial is needed, the judge said, because critical facts are in dispute - for example, the extent of discrimination against gays and lesbians, the possible effects of same-sex marriage on opposite-sex couples and the intent of Prop. 8.

The measure's intent, which its sponsors insist is legally irrelevant, could prove to be the decisive issue.

The U.S. Supreme Court, where this case may be headed, struck down state laws against same-sex sodomy in 2003. But it has given little indication it would overturn marriage restrictions that exist in most states.

On the other hand, the court declared in 1996 that laws motivated by anti-gay bias were unconstitutional - a ruling that Prop. 8's opponents want to apply to their case.

The ballot measure was "motivated by moral disapproval and irrational views" about gays and lesbians, plaintiffs' lawyers said in court papers.

No hidden agenda

Prop. 8's sponsors - vaulted into the case by state Attorney General Jerry Brown's refusal to defend the measure - say its clear-cut goal was to reinforce traditional marriage, and any inquiry into the campaign's allegedly hidden motives is both intrusive and pointless.

"The traditional definition of marriage does not reflect animus against gays and lesbians," attorney Charles Cooper said in court papers.

"It simply reflects the fact that the institution of marriage is, and has always been, uniquely concerned with promoting and regulating naturally procreative relationships between men and women to provide for the nurture and upbringing of the next generation," Cooper wrote.

The trial will test such assertions, with competing experts arguing about the history and meaning of marriage, the adequacy of domestic partnership as a marital substitute, and the social and political status of gays and lesbians.

Walker has kept his views to himself, but his rulings so far have dismayed some of Prop. 8's supporters, who appear to be bracing their followers for a short-term defeat.

"The consistency with which the judge has sided with our opponents is anything but comforting to supporters of traditional marriage," Andrew Pugno, general counsel for Protect Marriage, said in a letter to backers of the measure last week.

Fortunately, Pugno said, the last word will come from "the nine justices on the highest court in the nation."

How to watch

Live telecast: The trial is to be shown at the federal courthouse, 450 Golden Gate Ave., S.F., in the 19th-floor ceremonial courtroom, and at the Ninth U.S. Circuit Court of Appeals, Seventh and Mission, in the first-floor library conference room.

On video: It also is to be shown on a delayed basis on YouTube. youtube.com/usdccand

(Note: The U.S. Supreme Court was asked to prevent the YouTube plan, but no ruling had been issued as of press time.)

E-mail Bob Egelko at begelko@sfchronicle.com.

http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/01/11/MNG21BF0FM.DTL

This article appeared on page A - 1 of the San Francisco Chronicle

CIRCUMSTANTIAL EVIDENCE...

...is either the best or the worst form of evidence.

So is direct.

Direct evidence is where you see, hear, or sense something happen and report it.  It's fine if there's nothing wrong with you, but frequently there is. 

"Don't believe everything you read, half of what you see, and nothing of what you hear," is an old aphorism from my dad that I heard decades ago which goes to this.

Circumstantial evidence requires jumping to a conclusion based on what you see, or 'making an inference,' in legalese.

A classic example is seeing footprints in the snow leading to a house.  Someone's inside, you infer.  Footprints leading from the house, someone's left.  Assuming human footprints, of course.  The point is that you have to read the circumstances correctly to draw the correct inference, otherwise you guess wrong and bad things happen.

Cop reaches into your jacket pocket and finds marijuana.  You're guilty of possessing contraband, right?  Not so fast?  What if it isn't your jacket and you just borrowed a friends while you went outside briefly, not knowing that there were drugs in the pocket.  The cop and the judge will have trouble with this, but a jury may go for it, especially if your friend's name is written on the garment and it doesn't fit you.  This, however, is a great deal of trouble to accept in order to demonstrate your innocence, isn't it.

Do police, or friends, ever plant drugs or contraband on someone to get them in trouble?

At my wedding long ago a friend called the police to tell them that the car we drove to the airport was stolen, we found out later.  Weren't stopped, fortunately, but he seemed such a responsible friend.

Returning from the Philippines years ago, an acquaintance slipped a balisong (a Philippine split-handled butterfly-knife) into my luggage in the hotel room as I was packing for the plane.  I didn't find out about it until I arrived home and unpacked.  Highly illegal in California, as in felony.  Today I'd be arrested before entering security, which didn't exist in those days.

In "Last Words," George Carlin's posthumous autobiography, he tells of being stopped by police who searched him or his car.  Another officer later told him that some of the cops had intended to plant dope on him in order to make a splash in the paper about a white celebrity being caught in this black neighborhood to score drugs.  Carlin reports that this is what the good cop later told him.

Since we depend on the word of police, we don't like to see them play games, do we?

The other day it was reported that a Slovak police chief resigned over explosives planted by police in an unwitting traveler's carry-on luggage in a dog-sniffing test.  Plant the dynamite and see if the dog can find it.

The dog failed to find the sticks of dynamite and the package landed in Dublin, Ireland.  The passenger who hadn't known of the explosives was arrested and detained by Irish police for several hours.  This came a week or two after a Nigerian boarded a plane to the U.S. carrying explosives in his underwear.  He was caught by other passengers trying to blow up the plane when he accidentally lit himself on fire.  Big flap going all the way to the White House because the man's father had gone to the U.S. Embassy in Nigeria
to report that his son was up to no good.  The security procedures in place failed to prevent the son from boarding with explosives.  Meanwhile much hand wringing over the lack of airline security.

My question is this.  Suppose you were the man arrested in Dublin for carrying dynamite in your carry-on shortly after the would-be Nigerian suicide bomber tried to blow up the plane; how far do you think you'd get before you were able to persuade authorities that you were innocent and had no knowledge that there was dynamite in your carry-on?

But officer, I had no idea?

Yeah, right, who do you think put it there, the police?

Oh, no, officer, not the police.  Who could imagine such a thing?

Yet, if you believe the report, and I do, that's exactly why the police chief in Bratislava, Slovakia, resigned.

From an AP story of 1/07/10 appearing in sfgate.com