Franco Castalone: Politics

San Francisco Follies

Thu, 19 Feb 2004 01:07:33 GMT

Isn't it interesting that it is a city executive and not a judge who is the activist in San Francisco? Even more interesting is the fact that so many conservative commentators are criticizing the judges who are hearing the cases challenging the mayor's actions for taking the cautious, non-activist approach rather than jumping right in to make a big splash with a quick ruling.

When I was in college, a couple I knew (a man and a woman) held a marriage ceremony and thereafter lived together as husband and wife. The only trouble was, they had never applied for a marriage license and thus the ceremony was of no legal effect. A couple of years later, that made the "divorce" quite easy.

The same thing is happening in San Francisco. A bunch of people are going through a ceremony of no legal effect, one which will not create a relationship which will be recognized anywhere. I have a hard time getting all that worked up about it.

Junk science and cerebral palsy cases, re-revisited

Sat, 14 Feb 2004 21:02:31 GMT

In response to my posting of February 1, in which I took the position that the obstetrics malpractice cases pursued by John Edwards when he was a plaintiff's trial attorney in North Carolina were not based on "junk science" as that term is used and understood in current parlance, Walter Olson responded on February 2.

Recall that the cases in question reportedly involved claims for damages for cerebral palsy allegedly arising from perinatal hypoxia - deprivation of oxygen to the newborn, before or during delivery. The "causation hypothesis" under discussion is that cerebral palsy is or can be caused by perinatal hypoxia, sometimes also called intrapartum asphyxia.

Olson's responsive posting cited two sources from the political rather than from the medical literature:

"A two-volume report from the Institute of Medicine, entitled Medical Professional Liability and the Delivery of Obstetrical Care, in the course of exploring its subject, built a substantial case that many obstetricians were being wrongly sued. It appeared in 1989. In his widely reviewed book Galileo's Revenge, which was and remains the leading popular work assailing "junk science", my Manhattan Institute colleague Peter Huber accords a central role (and a full chapter) to cases charging obstetricians with causing cerebral palsy."

The Institute of Medicine's report had this to say:

"Until recently, cerebral palsy was thought to be linked to abnormal parturition, difficult labor, premature birth, and hypoxia or asphyxia of the infant. The committee evaluated more recent data that cast serious doubt on the correlation between presumed hypoxia and later cerebral palsy."

The publication went on to cite the many studies published by Nelson and Ellenberg (the most active researchers in this area) in the 1980s and their conclusions, including the following specific items. We will correlate the statements with the reverse and deductive conclusions that are not mentioned:

"Of the cases studied, 69% [of the cases of CP] did not have even one clinical marker of asphyxia [at birth]."
(This means that 31% did. The conclusion, one with which all will agree: other things may also cause CP.)

"Of the 21% that did [note the mathematical error], 58% had an alternative explanation."
(This means that for 42% of those which did show asphyxia, it was the only factor. The presence of two or more alternative factors complicates the analysis for the 58%, which explains why OB malpractice cases are so complex.)

It then quotes directly from Nelson and Ellenberg, including the following:

"[The] results suggest a relatively small role for factors of labor and delivery in accounting for cerebral palsy."

A "relatively small" role is not the same as "no role".

Galileo's Revenge, published in 1991, was a well-written book, but it has been subjected to some criticism of its own. A review of the author's carefully-chosen language is instructive. At p. 82, Huber cites to a well-known 1986 study published in the New England Journal of Medicine for the proposition that:

"More than half [of babies later diagnosed with cerebral palsy] who display at least one sign of asphyxia at birth also exhibit some more important risk factor, like congenital malformation, low birth weight, or microcephaly."

This language, though, means that nearly half of the CP babies who showed evidence of perinatal asphyxia did not have any other associated risk factor.

The various sources cited by Huber did not conclude that hypoxia at birth does not cause cerebral palsy. What they concluded and declared was that hypoxia at birth is not the only thing that causes cerebral palsy. That is a different thing entirely.

Huber (who is an engineer, not a physician) stated the following as a conclusion, made without any citation to medical authority:

"Yes, it is possible for asphyxia to cause cerebral palsy, but only if the asphyxia is especially severe and prolonged."

For a critical evaluation of Huber's book, see "Galileo's Retort: Peter Huber's Junk Scholarship", 42 Am. Univ. Law Rev. 1637 (Summer 1993) by Kenneth J. Chesebro, and "Junk Scholarship In Search Of Junk Science" by William F. Gallagher. In the latter, Gallagher commented:

"Huber's treatment of the cerebral palsy cases would embarrass even a first year law student. He argues that obstetric malpractice accounts for a negligible number of cerebral palsy cases, and consequently most suits brought by plaintiffs that allege medical malpractice as the cause of infant cerebral palsy are frivolous, and efforts to reduce cerebral palsy by improving obstetrical care are nothing more than a cruel and expensive hoax. Huber asserts that most cerebral palsy babies are doomed long before an obstetrician comes near them. His argument relies most heavily on an article appearing in 1986 in the New England Journal of Medicine, Karin B. Nelson and Jonas H. Ellenberg, Antecedents of Cerebral Palsy: Multivariate Analysis of Risk, 315 New Eng. J. Med. 81 (1986). Huber claims that this study brings to a definitive end the century long debate over the causes of cerebral palsy.

"However, Huber fails to inform the reader that the editors of the New England Journal of Medicine, in the very issue that published the Nelson and Ellenberg article, noted significant analytical flaws in the article. In an unusual step, the editors paired the publication of the Nelson and Ellenberg study, which they obviously regarded as provocative, with their own critique of the article's underlying analytical premise. The author of the editorial, Dr. Nigel Paneth, of Columbia University College of Physicians and Surgeons, stated concern that the methods used by Nelson and Ellenberg could have obscured the asphyxia. Birth and the Origins of Cerebral Palsy, 315 New Eng. J. Med. 124, 125 (1986). Dr. Paneth criticized Nelson and Ellenberg's study for confounding prediction with cause: the fact that certain pre-birth conditions unrelated to delivery may predict cerebral palsy does not mean that physicians cannot overcome these problems through state of the art birth procedures that can ensure a healthy baby. Thus, failure to use these procedures may constitute a proximate cause of cerebral palsy.

"Moreover, Huber fails to acknowledge that one of the co-authors of the Nelson and Ellenberg study essentially recanted her conclusion two years later. See, Karen B. Nelson, What Proportion of Cerebral Palsy is Related to Birth Asphyxia? 112 J. Pediatrics 572, 573 (1988). Huber's failure to even apprise the reader of either Dr. Paneth's editorial or Nelson's disavowal of her earlier study is incomprehensible. If he did it in a Connecticut court, he would probably end up before the grievance committee. Huber can hardly claim inadvertence. He was well aware of both the editorial criticism and the Nelson recantation because he cited both sources earlier in his chapter as background on the problem of cerebral palsy."

I do not venture to say whether Huber's analysis or Gallagher's is more sound. I simply point out that there are many views clamoring to be heard.

Medical sources

Each of the sources cited by Olson has some useful information, but I prefer to refer to medical sources when discussing medical issues. Edwards practiced in North Carolina from 1977 to 1998, so the medical sources which were extant during that time period should be considered.

The following is the entry from Williams Obstetrics, 17th edition, 1985, p. 794:

"Cerebral palsy may result from preterm birth complicated by asphxia in utero [i.e., cord compression] or in the newborn period, from severe hyperbilirubinemia, from cerebral and cerebellar malformations, and from infections acquired in utero. . ."

It then goes on to note an early study (dated 1982) that raised some questions about the causation issue, but still found a causal association in a certain number of cases.

"Holm has provided a review of 142 cases of cerebral palsy. One half were the consequence of events that occurred before labor and delivery. No more than 10 percent were considered to be caused by labor and the method of delivery."

Again, a 10% correlation is not the same as no correlation.

Compare later developments in the fields of obstetrics and pediatrics. The entry from the 1997 edition of Williams is much more detailed and much more reserved on this issue, but it still supports the causation hypothesis in certain specified cases. The following is language based on a study done under the joint auspices of the American College of Obstetricians and Gynecologists and the American Academy of Pediatrics in the mid-1990s:

"In order to establish that hypoxia near delivery was severe enough to cause hypoxic ischemic encephalopathy [brain damage caused by oxygen deprivation], all of the following must be met:

[The text then goes on to list highly technical names and descriptions for what we can identify in shorthand somewhat-plain English as

1. Cord pH less than 7.0
2. Apgars at 3 or less after five minutes
3. Neurologic problems
4. Dysfunction of several organs]

In the section entitled "Brain Disorders", the author notes a number of studies that call some of the previously-held conclusions into question, but the ultimate conclusion repeats the factors listed in the ACOG-AAP consensus criteria stated above.

The conclusion is that, in those cases in which the listed factors are present, the medical profession today accepts a causal relationship between intrapartum asphyxia and neonatal brain damage that can later manifest as cerebral palsy. A graphic figure taken from a 1985 study shows the following:

For babies with mild to moderate brain damage at birth, 12% had fetal hypoxia as a risk factor.
For those with severe brain damage at birth, 22% were associated with fetal hypoxia.

I will repeat my statement. The state of medical thought on the causation issue has seen a lot of development over the last 20-30 years. I believe that the position in favor of a causal connection was not by any means "junk science" during the 1980s and 1990s, and even today there is still widespread controversy on the topic. A conclusion that birth defects are caused by maternal use of Bendectin (as an example) can accurately be called "junk science", because (1) there is no reliable medical evidence demonstrating the connection and (2) the medical profession as a whole does not accept the connection as having been scientifically established. By contrast, the belief that there are causal connections between perinatal asphyxia and cerebral palsy has been accepted by the medical profession in the past and continues to be accepted today, though in a more narrow range of cases.

This issue is enormously complicated from both a medical and legal perspective. It is one which is also enormously important, given the amount of money which passes from the medical profession to professional liability claimants in these cases. The causation issue does not lend itself well to the simple statements and overarching accusations which tend to be used in political commentary.

New freedoms in Massachusetts

Sat, 07 Feb 2004 04:01:52 GMT

The opinion of the Massachusetts Supreme Court entitled OPINIONS OF THE JUSTICES TO THE SENATE *, which has recently been in the news, is based solely on the Massachusetts Constitution, and thus should be impervious to any appeal to the U.S. Supreme Court. For reasons that I have mentioned earlier at this site, there is no constitutional basis for any amendment to the U.S. Constitution to overturn this decision. The folks in Massachusetts, in my opinion, should have to live with the results of their Supreme Court's decision, unless and until appropriate processes under the laws of the Commonwealth can counter it.

A quote from the opinion:

The bill's absolute prohibition of the use of the word "marriage" by "spouses" who are the same sex is more than semantic. The dissimilitude between the terms "civil marriage" and "civil union" is not innocuous; it is a considered choice of language that reflects a demonstrable assigning of same-sex, largely homosexual, couples to second-class status.

(Quaere which same-sex couples are not homosexual.)

My favorite comment is that by Pat Buchanan, who of course deems this ruling an "outrage" and would surely favor invasion of Massachusetts by Federal troops:

"By next June, we'll have a bevy of blushing brides with beards and mustaches."

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* We have applied a tinyURL to the opinion, since the original URL is as follows:

http://weblinks.westlaw.com/Search/default.wl?RP=%2FWelcome%2FFrameless%2FSearch%2Ewl&;n=3&ACTION=SEARCH&bhcp=1&bQlocfnd=True&CFID=0&DB=MA%2DORSLIP&Method=TNC&query=to%28allsct+allsctrs+allsctoj%29+&RLT=CLID%5FQRYRLT564462&sp=MassOF%2D1001&ssl=n&strRecreate=no&sv=Split&RS=WEBL2.92&VR=2.0&SPa=MassOF-1001&serialnum=2004108962

A little more, and then quiet for a while

Mon, 02 Feb 2004 04:52:39 GMT

This will be my last comment on these issues for a few days.

Among the discussions engaged in by Walter Olson, Peter Nordberg, David Bernstein and I over the last week about the legitimacy of the claims made in some of the cases John Edwards pursued as a North Carolina plaintiff’s trial lawyer – essentially, that errors made by delivering physicians led to intrapartum hypoxia causing cerebral palsy in the neonate – it seems that I have neglected to address one important issue: whether Edwards had any reason to disbelieve the theories he was advancing on behalf of his clients. In so doing, I fear that I have given too much credence to Olson's initial criticisms of Edwards. Those who have read my comments on the obligation of strong advocacy by the trial lawyer for his client may perceive that, by leaving it unchallenged, I have accepted Olson's position that Edwards's obstetrical malpractice cases were founded on "junk science".

Nordberg and I have not addressed the question of whether the weight of scientific evidence supported those causation theories. By contrast, Bernstein poses the question based on an extreme assumption:

I agree with Wally Olson that trial lawyers should not be obligated under ethics rules to pursue claims based on admissible evidence that the attorney knows to be "junk science."

This is the classic "straw man" argument. Bernstein proceeds from the premise that Edwards was a showman and a charlatan, that he knew as a lawyer that the theories he espoused were fallacious, and that he knowingly advanced them despite that knowledge. Olson likewise suggests (putting it very bluntly) that Edwards knew that he was slinging bullshit in the courtroom, but knowingly chose to do so, despite the harm it caused to the obstetricians he sued, because it made him wealthy.

Olson's criticism is, as I have suggested, a political rather than a legal or medical argument, since that is his job.

In fact, the theory that perinatal hypoxia or perinatal "asphyxia" can cause cerebral palsy has been an hotly debated issue in the fields of obstetrics and maternal-fetal medicine for the last 25 years. It was not until a year ago that some authoritative declarations were made in this area. Even those, however, are still far from definitive on this issue.

The report of the ACOG Task Force on Neonatal Encephalopathy and Cerebral Palsy was released almost exactly one year ago today, on January 30, 2003. That is the first release of what can be characterized as a "consensus" view within the obstetrics profession on this vital issue. For 25 or more years prior to that report, the issue of whether and to what extent depriving the neonate of oxygen can result in neurological deficits was an open question, one which was widely debated and highly controversial during that time. Indeed, a review of most of the medical literature and authorities published during the 1980s and 1990s shows a preponderance of belief in favor of the association. Although some studies questioning this long-held belief began to emerge, it is accurate to say that many level-headed and disciplined scientific minds were persuaded that such an association existed during the last quarter of the 20^th century, including the entire time that John Edwards was practicing law.

Indeed, even the 2003 report does not dissociate the two completely. Instead, it differentiates those forms of CP which can be from those which are not associated with intrapartum asphyxia:

Spastic quadriplegia and, less commonly, dyskinetic cerebral palsy are the only types of cerebral palsy associated with acute hypoxic intrapartum events. Spastic quadriplegia is not specific to intrapartum hypoxia. Hemiparetic cerebral palsy, hemiplegic cerebral palsy, spastic diplegia, and ataxia are unlikely to result from acute intrapartum hypoxia.

Some translation is needed:

"Spastic quadriplegia and, less commonly, dyskinetic cerebral palsy are the only types of cerebral palsy associated with acute hypoxic intrapartum events."

This means that there is a known association between deprivation of oxygen at birth and both spastic quadriplegia and dyskinetic CP.

"Spastic quadriplegia is not specific to intrapartum hypoxia."

This means that other things cause spastic quadriplegia, too.

This is far from a resounding declaration that the causation hypothesis is regarded as laughable by the profession.

As a defense attorney who has been defending doctors for the last two decades, I can state quite definitively that during that entire time there has been no perception that the association between perinatal oxygen deprivation in the neonate and neurological deficits in later life is "junk science" as that term is generally used. It has instead been an actively debated and litigated issue of causation. "Junk science" refers to a principle of causation which is unproven and not generally accepted in the relevant field of practice. Up to 2003 for many forms of CP, and even now for others, that label would not properly apply to the causal arguments in question.

For further consideration in this area, look at the CDC’s publication on cerebral palsy, including the section entitled "What causes cerebral palsy? Can it be prevented?", which was current as of October 2002. It can fairly be said that the CDC tries to be even-handed on these hotly-contested causation issues. The following is the first paragraph under that section:

Cerebral palsy is caused by brain damage that affects a child's ability to control his or her muscles. The part of the brain that is damaged determines what parts of the body are affected. There are many possible causes of the brain damage. Some causes affect how the child's brain develops during the first 6 months of pregnancy. These causes include genetic conditions and problems with the blood supply to the brain. Other causes of cerebral palsy happen after the brain has developed. These causes can occur during later pregnancy, delivery, or the first years of the child's life. They include bacterial meningitis and other infections, bleeding in the brain, lack of oxygen, severe jaundice, and head injury.

One can criticize John Edwards for many things. As far as I know from the evidence available to me, participation in legal charlatanry is not one of them.

Demonizing a political opponent is splashy and makes for good theater, but in the end it is not too far removed from the scene of Geoff Fieger depicting Richard Thompson, the Oakland County prosecutor of Jack Kevorkian, as a caricature of a clown with a big red nose before the television cameras. I prefer to think of my political opponents and my courtroom opponents as human beings who in many ways are like myself. I find that I understand them better and can oppose them more effectively if I do.

More on Edwards and effective advocacy

Sun, 01 Feb 2004 10:50:06 GMT

Walter Olson responds to us and to Blog 702. In so doing, he misses one mark but makes a side point.

In noting our position and that of the Blog702 author, he says,

A theme has developed among several lawyer and law-professor bloggers that Edwards should not be held up to reproach even if it turns out that he employed dubious expert testimony to extract fortunes from innocent obstetricians, on the grounds that a trial lawyer is just doing his job when he seeks to introduce all admissible evidence on behalf of his client; in fact, he may even be obliged to do so as an ethical matter of "zealous advocacy". . . We ourselves aren't buying this line of reasoning, but it has some articulate advocates. . .

My first thought is that Olson is obviously not a lawyer if he does not accept this line of reasoning. Not that there's anything wrong with that.™ Olson does not need to be a lawyer to be a knowledgeable commentator on the legal system, but one would expect that he would at least have some appreciation of the nature of the duty owed by a lawyer to his client before offering criticism.

In his posting, Olson points to an earlier item, written in July 2003. That earlier comment and the points made deserve some thoughtful consideration, although in the end they do not make Olson's point for him.

The July item noted a proposal made by the State Bar of Arizona to amend that state's Rules of Professional Conduct to remove the word "zealous" from its provisions, and to substitute in its place an obligation to "act honorably in the furtherance of a client’s interests". The thinking, as Olson notes, based on the comments of an unnamed member of the committee, was that "The term 'zealous'. . . was erroneously being used by some attorneys to defend behavior that was seen as unprofessional and potentially belligerent".

The Arizona committee has an excellent point, one that is quite well appreciated here in the home state of Geoffrey Fieger. The lawyer's obligation to be "zealous" can be properly interpreted or it can be misinterpreted. The proper understanding requires that the lawyer work hard for his client’s best interests, that he serve the client well, and (most important for our considerations here) that he advance all arguments on behalf of his client that will accomplish his client's goal. The limitation is that the positions advanced must be either well-founded under law or (as the formulation is commonly phrased) supported by a good-faith argument for extension or revision of existing law.

The standard of "zealous advocacy" does not in any way require or support hostile, belligerent, or improper conduct. It does not permit the lawyer make an effort to bribe the judge, to tamper with the jury, or to use sneaky tactics to introduce obviously improper evidence before the jury. The standard does not justify any of Geoff Fieger's actions:

It does not require or even condone the lawyer appearing on television, putting fake red noses on a caricature of the prosecutor to depict him as a clown.
It does not require or condone taking to the airwaves to call judges who have ruled against the client's position "idiots", "clowns", or "Nazis".

The standard of zealous advocacy does not excuse the lawyer who utilizes such tactics or in any way shield him from the legal or ethical repercussions of his misconduct.

But there is no evidence in any of the reports that Edwards was guilty of any such misconduct. Indeed, he has been described by those who observed his handling of trials as a very effective advocate, one who could persuasively argue his client’s case before a jury and who could articulate complicated medical issues in a way that a lay jury could understand.

Under our system, whether or not the term "zealous" is used, all lawyers and judges understand that a lawyer is not only permitted, he is required to use the current rules of evidence to introduce whatever admissible evidence is going to assist his client’s position in the case. As long as the system allows that evidence to be used, it is proper to use it, and it is the mark of an effective advocate that it be used well in his hands.

The difficulty of having lay juries sit in judgment on complicated issues of professional negligence and of having them sort out and attempt to differentiate between sound science and half-baked theories of causation and other elements of "junk science" may well argue in favor of some process other than the tort system for redressing claims and injuries caused by professional negligence, but there is no legally justified basis to criticize a lawyer who works within that system for using that system and its rules to work for the goal of his client. That is his job, it is what the courts and society expect of him. If that reality is to be changed, it will be necessary to change the system.

Of course, the criticisms that are being leveled against Edwards are being made in the political arena, where neither the legal rules nor the rules of common sense and fair play apply. In the political arena, in the end it is all caricature.

Nothin' subtle about this one

Tue, 27 Jan 2004 01:13:19 GMT

Source: boing boing

Clinton in Qatar

Wed, 21 Jan 2004 01:32:45 GMT

And while we bask in the glow of positive comments on our adversaries, check out the column by Ralph Peters in the New York Post, describing Bill Clinton's speech to a conference in Qatar. Peters was surprised at how forceful and how positive Clinton was.

As soon as he took the podium, Clinton began taking stands as brave as they were necessary. With virtuoso skill, he led the audience where they needed to go - while convincing them it was where they had wanted to end up all along. His sense not only of what required saying, but of how best to express it to that complex, contrary audience was almost supernatural. . . He didn't pander. He made America's case and made it well. Beginning with a sometimes-rueful look at the progress his administration had failed to make and noting that the wars that plague the world are begun by men his own age or older, but paid for in blood by the young, he refused to direct one syllable of blame at the Bush administration. Accepted as a citizen of the world, he spoke as a convinced American.

Asked by an eager-to-Bush-bash delegate if he, Bill Clinton, would have behaved differently after 9/11, our former president said he would have followed an identical course, pursuing our enemies into Afghanistan and beyond. Queried about his position on Iraq, he stated that any disagreements he might have would be most appropriately expressed at home in the U.S., not before a foreign audience.

The contrast between the former President, speaking confidently and positively to a group that would not be expected to be friendly, and the bunch of nattering nabobs of. . . well, you know, who want to have the chance to run for President could not be more striking.

Mackinac Center on the Gov

Tue, 20 Jan 2004 23:35:25 GMT

The Mackinac Center for Public Policy, a conservative think tank based in Midland, has issued a report card, grading Gov. Granholm after her first year in office. The verdict, perhaps a bit surprising: a B-.

The report compliments Granholm for avoiding the prevailing liberal tendency to resort immediately to tax increases to counter declining revenues, the approach used by Gov. Bob Taft of Ohio. She has cut spending at many levels of state government, including the Executive Branch, and the report notes that this is a sharp contrast to the President's push for "massive hikes in domestic, nondefense spending at more than double the rate the Clinton administration delivered". She has even sought modest reductions in K-12 education, a "sacred cow" of politics in any state.

One key observation:

While we applaud many aspects of Gov. Granholm’s handling of the state budget deficit this year, we know that a new and important test on that front may be coming soon. What will the governor do when the nascent economic turnaround begins to yield higher revenues for Lansing? Will all the talk about reinventing government give way to pleasing traditional constituencies, throwing money at one perceived problem or another, expanding state programs that the citizenry would do better without? Will she set state government once again on the course of more spending, thereby making it all the more difficult for Michigan to weather the next downturn, whenever it comes? This remains to be seen.

The report identifies several areas in which Granholm has faltered, including the debacle over charter schools in Detroit, but overall a grade of B- is a pretty favorable rating for a Governor from "the other side of the aisle".

Picking teams

Tue, 20 Jan 2004 13:20:06 GMT

William Saletan offers two pieces in Slate, one new and one old, describing how chaotic and erratic the Iowa caucus procedure is. It makes Florida 2000 look, well, democratic by comparison.

Pickering's new position

Sun, 18 Jan 2004 18:11:35 GMT

Back in the BB ("before blogging") era, in March 2001 to be exact, Howard Bashman wrote an article in the Legal Intelligencer (reproduced at his law firm's site) detailing the reasons for his conclusion that recess appointments to the Federal bench would be unconstitutional. An interesting piece of information appears therein: A person who receives the recess appointment is prohibited under 5 U.S.C. §5503 from receiving any compensation from the Federal government for his services. Judge Pickering, it seems, has given up a paying position as a Federal District Judge for a non-paying and of course temporary position on the Fifth Circuit bench.

Unless he is independently wealthy, I wonder how he could do that. Unless. . .

They wouldn't. Would they?

Capital punishment and the absolute certainty standard

Thu, 15 Jan 2004 04:31:40 GMT

We are on record at this site (see the first and the second entries, from September 2002 and April 2003, respectively) as advocating for a new "absolute certainty" standard of guilt as a predicate to the imposition of the death penalty. As we stated in the first entry, the criminal standard of "beyond a reasonable doubt" is appropriate for a finding of guilt and for a penalty involving a fine or imprisonment. Given the many errors that our judicial system has encountered, however, a higher standard should be required when the ultimate penalty is to be imposed. There just is no commutation or reversal of a death sentence once it is carried out.

We now see that our argument and position have been accepted in some quarters. In Massachusetts, Gov. Mitt Romney is advocating for a new death penalty statute, but in recognition of the faults of the current system, he is pushing for new safeguards. In October 2003, he appointed a commission whose charge is to "build a more perfect death-penalty statute", reports the Christian Science Monitor. The commission is weighing a number of factors, but it will eventually

put greater demands on prosecutors and police, limit the type of murders that qualify for the death penalty, and demand a higher level of proof. 'Going to a punishment that is irrevocable requires a level of certainty beyond what we've ever had before," says [the state's Lieutenant Governor].

And now, in New York state, the lawyers for a convicted killer are asking that state's highest court to impose the absolute certainty standard as a new common-law requirement, the New York Times reports.

Money and judicial politics

Wed, 31 Dec 2003 04:02:42 GMT

In October, we commented on political contributions made by Geoffrey Fieger, and in so doing noted (based on a report at the Follow the Money site) that Fieger contributed the statutory maximum of $3,400 to Michigan Supreme Court Justice Marilyn Kelly's campaign in 1996.

We recently received a message from Justice Kelly, asking us to clarify that her committee returned that contribution, for reasons not specified. We are glad to set the record straight on that point. Consider it done.

This raises an interesting point, however. If the Follow the Money site reports all contributions received by a campaign, shouldn't it also somehow reflect those contributions that were returned? Its database does not seem to be geared to handle returned contributions.

Day of Mourning

Sun, 30 Nov 2003 23:46:06 GMT

Denise Howell has found time to let us know about the Day of Mourning site, which informs us that "the long history of subsequent violence and discrimination suffered by Native People across America is nowhere represented" by the tale of the first Thanksgiving.

Of course, the Christmas story focuses only on the message of hope and world peace occasioned by the birth of Jesus, and fails to include any mention of the Catholic Church's long history of violence and oppression against dissenters, non-believers, Jews and Muslims in the name of Christ. And while the worst of the violence visited upon Native Americans lasted for perhaps a hundred years, the systematic violence of the Catholic Church lasted for nearly 1,000 years. But there is no Day of Mourning for the victims of the Crusades or of the Spanish Inquisition.

In truth, there is no "equal time" expectation for holidays and observances. Holidays are a time to focus on the positive aspects of human life. We seem to spend all the rest of our time on the negatives.

Query whether the Day of Mourning people are going to include descriptions of the savage butchery perpetrated by certain Indian tribes against white settlers and against other Indians. Probably not is my guess.

A proposed constitutional amendment

Thu, 20 Nov 2003 11:24:23 GMT

My preferred constitutional amendment would say, in essence, that

the Federal government is not required to recognize or give effect to any jurisdiction's laws regarding marriage which violate its public policy, and
the full faith and credit clause shall not be construed to require that any state recognize or give effect to any other jurisdiction's laws regarding marriage which are in violation of the state's public policy.

In each case, I would leave it to the current legislature to declare that policy, rather than trying to declare it in an amendment to the Consitution, to be fixed (nearly) permanently. That approach can lead to disaster, as we saw with the 18th Amendment.

This alternative would leave each state free to act as it sees fit, but would also permit the Federal government and each state to implement its policies without concern about a claim that a union recognized in another state is binding on them.

Granted, much of this is already encompassed in the Federal Defense of Marriage Act. But that is only legislation; it does nothing to address the FFC clause issue (as to the states) or the other potential constitutional challenges, primarily due process arguments, as to the Federal government.

Another political gaffe

Thu, 20 Nov 2003 11:00:09 GMT

This guy has now blown his chance at any high political office.

An insider's view of Reagan at work

Thu, 20 Nov 2003 04:15:49 GMT

The Weekly Standard has published The Ronald Reagan I Knew - A behind the scenes look at a consummate politician and statesman, an insider's view of Ronald Reagan's negotiations with the Soviets in his first term. The author is Max M. Kampelman, a Democrat who was first appointed by Jimmy Carter and then was retained by Reagan to serve at the Conference on Security and Cooperation in Europe.

An excerpt:

The Ronald Reagan I knew and worked with had my respect and admiration. No American did more to undermine the brutalities of the Soviet Union and destroy the dictatorships of Eastern Europe. No American did more to spread the gift of democracy and respect for human dignity to people who had not enjoyed them. And no American did more to persuade our country that the spread of democracy and human rights to all peoples is the proper goal of the United States.

One of the article's interesting revelations is that Reagan and Hubert Humphrey were among the organizers of a new anti-communist group in 1949. It was called the Americans for Democratic Action.

Sullivan on the FMA

Mon, 17 Nov 2003 00:18:40 GMT

Andrew Sullivan, usually a pretty perceptive guy, has this to say about the proposed Federal Marriage Act:

The amendment wouldn't simply ban equality in civil marriage, a right that is now guaranteed to murderers, child abusers, dead-beat dads, multiple divorcees and foreigners - but not to gay citizens. It would also make it unconstitutional for a state or federal law to give any benefits whatsoever to gay couples. Where do I glean that? From the words "or the legal incidents thereof."

I'm afraid he reads too much into the proposal. The wording is:

"Marriage in the United States shall consist only of the union of a man and a woman. Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups."

As I read it, this would obviate any claim that any constitutional or statutory provision implicitly requires that marital status or its legal incidents be extended to gay couples, but it would not preclude any state from explicitly extending that coverage. Any state is free now to create new civil rights in this area, if it sees fit to do so, and the FMA would not do anything to prevent it from doing so.

A statute that expressly confers the legal incidents of marriage on gays needs no construction to get to that result, and thus the "shall [not] be construed to require" language would not stand in the way.

Still the same old Bill

Sun, 16 Nov 2003 17:29:20 GMT

Some dreams never die, including one clung to by loyal Clintonistas: that Sen. Hillary Rodham Clinton will be the Democrats’ presidential nominee next year. Is there a chance she would get into the race? "That depends on what you mean by 'get into the race'," one of her closest friends and advisers explained to NEWSWEEK.

Prof. Barnett and Senate rules

Sat, 15 Nov 2003 19:17:50 GMT

Prof. Randy Barnett, in his otherwise excellent op-ed on the judicial nomination impasse in Friday's New York Sun, misstates something in discussing the so-called ongoing "filibusters":

Moreover, upping the number of votes needed for confirmation to 60 is not only unprecedented, it is unconstitutional, as the Constitution requires “advice and consent” by a simple majority.

Wrong. The Constitution does not mention a simple majority or any other measure. Of course, the rule that a simple majority decides any given vote (unless the governing document or rules specify otherwise) is an implicit premise in any parliamentary body, but it is not required by the written Constitution.

Indeed, the Constitution is silent on the issue of precisely how the Senate is to provide advice and consent to the President. The pertinent language of Article II, Section 2 simply states:

He shall. . . nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States.

How the Senate in fact provides that advice and consent is a complex combination of its own rules and long-standing tradition, including presidential traditions. It was George Washington who began the tradition that the Senate not be consulted in advance of nominating Supreme Court Justices. The more literal reading of the provision quoted above would suggest that some advance consultation, perhaps even formalized consultation, would be in order. But it is not done that way, and it has not been done that way since the beginning.

Filibusters and the rules governing cloture are a matter of internal Senate procedure. The Constitution explicitly states (Article I, Section 5) that each house of Congress will "determine the rules of its proceedings", and it will not answer to the other house, the President, or the courts in doing so. The Senate thus has the sole authority over its own rules and procedures. If it were to simply adopt a rule that approval of the President's judicial nominations requires a 60% vote, this may not be consistent with the implicit premise mentioned above, but I am doubtful that the Supreme Court would ever be willing to consider a challenge to such a rule.

Back to the positive. This comment by Barnett hits the target dead center, in discussing the question of whether and which previous decisions should be followed:

Disingenuous defenses of precedent to one side, I think Democrats are right to favor ignoring bad precedent. Supreme Court justices take an oath to uphold the Constitution, not prior Supreme Court rulings.

In other words, being right is preferable to being consistent.

More -- Lawrence Solum's Legal Theory has two long posts on related topics -- whether the President can call a special "Executive Session" meeting of the Senate, and whether the Senate has an affirmative duty to act, that is, to provide advice and consent.

I've predicted it before - some major change will be made.

Religion in American life

Sat, 15 Nov 2003 17:32:01 GMT

The Northwest Ordinance of 1787, Section 14, Article 3, states as follows:

"Religion, morality and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged."

Our forefathers recognized that religion is an essential element of civic virtue, and did not hesitate to say so right in the words of a Federal statute. This language was adopted by Congress just two years before the adoption and ratification of the First Amendment.

The last word on Roy Moore

Sat, 15 Nov 2003 12:24:04 GMT

Although it probably won't be, I think that Glenn Reynolds's pithy comment should be the last word on this sorry affair:

"If judges don't obey court orders, who will?"

Former lives

Sun, 09 Nov 2003 01:26:55 GMT

This item from the Onion is hilarious. Spence may not be inclined to agree, though.

Energy Secretary Just Assumed Cabinet Knew He Did Porn Films In The '80s

The power of courts

Thu, 06 Nov 2003 01:35:21 GMT

Eugene Volokh says that "this is troubling". I find it outrageous:

"A Christian mother is appealing a judge's decision that prohibits her from teaching her daughter that homosexuality is wrong."

It would be equally outrageous for the judge to prohibit her from teaching her daughter that homosexuality is normal.

A judge has no business dictating such things to a parent.

Reagan's legacy

Thu, 23 Oct 2003 03:49:45 GMT

Nolan Finley of the Detroit News began a recent column with this evocation of Ronald Reagan:

Ronald Reagan revived the conservative movement with a simple, easy-to-recognize philosophy: Take as little of the people's money as possible and spend it wisely; shrink the size of government, and leave business alone to create jobs.

This is Reagan's political image, but it does not match the reality, for much the same reason that the small-is-better image does not match that of our current President. Both would have favored, in the abstract, a Federal government with a smaller footprint. But the events of history intervened.

In both cases, the desire to minimize the Federal government was there, but the simple fact was -- they couldn't do it, in light of developing international conditions. Reagan made himself the greatest President of the latter half of the 20th Century by seizing the opportunity presented by a faltering Soviet state, and by being astute enough to recognize that opportunity. In order to take advantage of that opportunity, he had to increase defense spending and thereby continue to apply increasing pressure on the Soviet behemoth until it cracked along its natural fault lines and died a natural death, hastened by our assistance.

The defeat of Hitler was this nation's greatest accomplishment of the first half of the 20th Century, and the defeat of Soviet communism was the greatest of the second half. In both cases, the cost to our nation was enormous, but in both cases it was well worth the cost.

Today, we are engaged in another epic struggle, and again the cost has been and is likely to continue to be enormous. It takes courage and resilience to pursue this course, and it takes a sense of history to appreciate the fact that our President's course is well worth the cost we are paying and will pay.

Weblogs and politics

Wed, 22 Oct 2003 12:47:25 GMT

In the wake of the Easterbrook controversy, both Ernie the Lawyer and Jerry Lawson have chimed in on one of the inherent risks of maintaining a weblog: leaving an easy and well-documented trail for later use against the author, not in a court of law (although that can happen) but in the no-holds-barred world of politics. The practice of digging up old writings and speeches and using them, often in a slanted or distorted way, to discredit the speaker -- witness the current use of old pro-Bush speeches by Wesley Clark -- is a time-honored political tradition in this country. But if I can be forgiven for using a pair of superficially conflicting metaphors, let me make an observation. Both the internet, with its inherent stickiness (enhanced by Google and the Internet Wayback Machine), and weblogs, which like Teflon vastly promote the fluidity of ideas, have magnified the volume of the source material that is available for this purpose.

Ultimately, though, several other things are true:

A person who has written or spoken extensively will probably have said things that a clever opponent can use against him.
A person who seeks a political or judicial office will probably be the type of person who has written and spoken in many venues, compulsives and overachievers being what they are by nature.
Often, such a person is precisely the type of person we want for such offices, as he has shown himself to be the type of person who thinks things through and can articulate his ideas.
If, on the other hand, he has thought things through to ridiculous or unsupportable conclusions, there's nothing like a weblog to show it.
Your mother never told you that politics was for the faint of heart -- or the weak of mind.