Begging the Question

Plea Deal Not Necessarily Sexist

2008-09-29T23:29:00.002-04:00

Prof. Berman has a post up noting a CNN story on a plea deal for a female teacher who was charged with a sexual escapade (literally: they ran away to Mexico) with an underage male student. Originally facing a ten-year mandatory minimum on federal charges, the woman pled guilty and received a six-year sentence. Prof. Berman asks, "Am I wrong to wonder if the plea deal that allowed Peterson to be sentenced to far less than 10 years' imprisonment would have been offered had the defendant been a man and the victim a 12-year-old girl?"

I guess there's nothing wrong with wondering, but if Prof. Berman is passive-aggressively suggesting that the woman benefited from a double standard, I'm not so sure.

First, it's not at all uncommon for prosecutors to over-charge to leverage a defendant into pleading guilty to a lesser offense. And this isn't nothing -- pleading ten years down to probation would be one thing, but six years of federal time is no joke.

Plus, the vast majority of federal cases end in guilty pleas. A big reason for that is that some prosecutors don't want to go to trial, for various reasons. Two messy facts jump out at me in this story. One, the woman disputed the boy's age -- although prosecutors said he was twelve, her attorney said the kid was sixteen. (He was an illegal immigrant, so his paperwork isn't exactly 100% on the up-and-up.) That fact might make the victim somewhat less sympathetic on the witness stand, if he even wanted to testify at all.

The other messy fact is the theory that there's a double standard here. Some people think that teenage boys aren't really "victims" of sex with older females, while teenage girls are. All it takes is one juror with that mentality to hang a jury.

So, I think it's perfectly reasonable for a rational, risk-averse prosecutor to feel comfortable getting six years in this case, despite concerns that the defendant's sex saved her four years.

That brings up another point. Prof. Berman excerpted a good chunk of the CNN story on his site, but deleted a few sentences in the middle. Right after the sentence "She will be credited for nearly one year she has served and could get another year off for good behavior, said U,S. Attorney Joe Stecher," Prof. Berman has ellipses, but the CNN story goes on to state, "The guilty plea doesn't mean Peterson is off the hook on state charges, which include kidnapping and first-degree sexual assault."

Those sound like pretty serious charges to me! My quick glance at the Nebraska criminal code suggests these crimes are punishable by one-year minimums and fifty-year maximums. (I'm not too familiar with the facts of the offense, but if the boy suffered "serious bodily injury," the penalty for the kidnapping would be life without parole; query whether the statutory rape would be considered "serious bodily injury.") Add that to the six years in the federal pen, and you're talking a long stretch of time. Of course, it's possible the woman could reach a plea agreement on the state charges, too, but I don't think her outlook is all that rosy for the next decade or so.

Maybe Prof. Berman disagrees, but that doesn't seem to be a clearly insufficient punishment for this woman. Sure, it's possible a man would get more time on these facts. But then again, this helpful Slate article from a couple of years ago argues that the notion that female teachers who have sex with students get much lighter sentences than similarly-situated males is largely a myth. Am I wrong to wonder if Prof. Berman might be wrong on this one?

My quick take on McCain's gambit, and more

2008-09-24T22:45:00.004-04:00

So the news today is that John McCain is "suspending" his campaign to go to Washington and roll up his sleeves and solve the economic mess and support the pending $700 billion bailout bill. He has proposed to Barack Obama that they postpone this week's debate. My thoughts:

I'm sure the Republicans who have actually been working feverishly to get this lead balloon afloat are just tickled that John Wayne McCain is ready to swagger back to the Capitol, get directions to his office, and tell them all what's what. It's beyond pointless of him to make this move unless he shows up with some kind of plan and then actually does something. It will look dumb if all he does is cast a vote. He will have to be seen as the one taking charge of all this. A) I don't see anyone caring what McCain has to offer, or even letting him appear to be in charge. B) If the bill fails, he's emasculated and this gamble is a total washout. C) If it passes, it's McCain's albatross. It will undercut a lot of his rhetoric about reform and cutting spending, etc. And my sense is that the American people are far from sold on this plan. Is he that confident that in six weeks this bill will look like a genius move? That the public will support the bailout? In the long run, McCain might be better off running against the bill, but McCain doesn't think "long run." This "bold" move fits with his campaign's tendency to care more about winning the news cycle than planning long term. He'll look great for a day or two, but then what? My gut sense of McCain's plan: very little upside, lots of downside, and it might not even be the right thing to do on the merits.

I had a long talk last night with an old friend who is now a financial analyst or investment advisor or something. He's pretty convinced that the stakes are high, things could get quite bad, and the government needs to do something. He endorses a smaller-scale stopgap measure, with the assumption that eventual costs may rise to $700 billion or $1 trillion eventually. But he's against writing that check for the full amount right now. The thing that really swayed him, I think, was just listening to how panicked Paulson and Bernanke sounded in the hearings. He's convinced they're convinced, and that scares my friend.

My concern is that the public is skeptical that this is another Y2K -- a lot of hype for a fizzle. I hope we don't have to find out there hard way.

What the hell is going on?

2008-09-22T00:08:00.000-04:00

I've been trying to do some reading to help me understand the current financial crisis a little better. I thought I would share some links I've collected.

1. This is a decent nickel tour of the basics, from Jim Manzi at The Corner. The policy outlook is conservative, but if you only have three minutes, it'll do.

2. Here's a Q-and-A with some U. of Chicago economists at the Freaknomics blog.

3. Here's a better round-up of links than this one, from Prof. Hoffman at the Co-Op.

4. NPR has started a new blog and podcast, Planet Money, that looks promising (the podcast especially, for neophytes).

5. Finally for now, an amazing episode of This American Life, "The Giant Pool of Money," that explains much of the background in a very informative and entertaining way. It provides a great primer on what subprime mortgages are, how they work, and how they got us into this mess. Very much worth an hour of your time.

Feel free to add more basic/introductory links in the comments. Maybe we'll move on to advanced topics later.

Hairum Scarum

2008-09-16T20:43:00.003-04:00

Yesterday I paid the most money I've ever paid for a haircut.

A prize to the person who comes closest to guessing the amount I paid, including tip.

A Pig in a Poke

2008-09-10T01:04:00.003-04:00

Feddie gets the vapors over Barack Obama using the common aphorism "You can put lipstick on a pig. It's still a pig." Because he used this phrase to describe some position of John McCain's and Sarah Palin's, Feddie asserts that Obama is calling Palin a pig, and has therefore lost "the women vote."

Marc Ambinder points out the fallacy of this argument, noting that Obama has used this phrase before (with no relation to Palin), and also reminding us that McCain used the same phrase to criticize a Hillary Clinton proposal. I don't think this means McCain called Hillary a pig, either, although I'd suggest that McCain has less benefit of the doubt in this regard, given his past remarks about the women in the Clinton family. (Updated: see also Prof. Lindgren at Volokh for thoughtful comments.)

I'll also note for the record that I use this phrase myself sometimes. It tends to show up when I'm discussing the weaker sections of briefs I write. I'm more likely to use its cousin "You can't make a silk purse out of a sow's ear." Now, if Obama has said that, would people like Feddie construct the syllogism that Sarah Palin carries a purse; therefore Obama must have called her a sow?

One doesn't have to strain too hard to come up with all sorts of banyard axioms that could be misconstrued by the offense-seekers. If it walks like a duck and quacks like a duck...get your goat...if you lie down with dogs...bull in a china shop...stubborn as a mule...deer in the headlights...you get the idea. And of course there are the verb forms of animal names like monkey and ape and horse (around) and pig (out) and dog. And let's not even go near "catfight." Has Feddie never, ever used the phrase "Why buy the cow when you get the milk for free?" Was he calling the subject an actual cow?

My point here is simply these sayings are so common that it's ridiculous to take them literally every time one is uttered. That's why the English language has metaphors, so we don't have to spell out in Bidenesque detail what we mean. We can use these well-known symbolic phrases to convey our meaning, because everyone should understand that we're not talking about literal animals, but qualities we attribute to those animals. Absent some pretty strong evidence that a literal meaning is intended, people who read anything more into this are trying too hard to find something to complain about.

Finally, at the risk of goading Feddie into throwing down the glove and demanding a duel to restore Gov. Palin's honor, I'll offer that if you're not willing to run with the big dogs, stay on the porch. (Or would it be less offensive if I said about a woman that if she can't take the heat, stay out of the kitchen?) "Politics is show business for ugly people," as they say. And if you go around making a big deal about how beautiful you are (see: damn near every GOP male, including McCain, re: Palin's looks; plus Palin herself competed in a beauty pageant), you should expect someone to vote you runner-up, as it were.

Taste is subjective, and some people are going to think Palin is ugly. Of course, the number of times Palin is called pretty pales in comparison to the number of times Hillary Clinton or Janet Reno have been called ugly. And it's not just women. People made/make fat jokes about Bill Clinton, or Mike Huckabee, or Ted Kennedy. John Kerry has a horse face, Tim Kaine has that eyebrow thing...all the way back to Richard Nixon's five-o'clock shadow. Appearance is important in politics. But if you want to leave appearance out of it, don't make your beauty a campaign talking point, and don't compare yourself to a lipstick-wearing dog.

I'm not saying Obama really did call Palin a pig, or that she is, or that she deserved it. And I'm certainly not suggesting it would be wise to do so. (Although I won't go as far as Feddie to discuss the impact on the apparently monolithic "women vote.") All I'm saying here is that if McCain et al. insist on pushing Palin's looks as a reason to vote for her, and thus in some bizarre way making your vote a referendum on her hotness, they have to expect some people to have a different opinion on her attractiveness.

Anyway, that aside is separate from my main point that most metaphors, and especially animal metaphors, shouldn't be taken literally. That's why they're metaphors.

The Latest in Kennedy

2008-09-09T00:29:00.003-04:00

Via SCOTUSBlog, news comes today that the Supreme Court has issued an order in the child rape death penalty case Kennedy v. Louisiana. The state of Louisiana has sought rehearing based on a factual error in the opinion. It argues that this error undermines the majority's reasoning. The Solicitor General has come out in favor of granting the rehearing petition. Prof. Berman at his sentencing blog and Prof. Yung at the Sex Crimes blog are covering this development as well.

I have written about Kennedy a few times -- here and here and here. I have been critical of the SG's position in the case, specifically its attempt to join the rehearing petition as an amicus despite a clear Supreme Court rule prohibiting rehearing-stage amici. Instead, I noted that 28 U.S.C. sec. 2403 would seem to allow the United States to intervene as a party to the case. In essence, I argued that the SG should go all-in or stay out, and not try this half-way dance it's doing now.

At the risk of being proven wrong, I'll guess that today's order -- which calls for briefing both on the necessity of granting rehearing and the merits of the petition -- is something of a compromise. My thinking is that some members of the Court are unwilling to substantively amend the opinion without a formal grant of rehearing, even if that doesn't lead to new briefs and argument. Others probably don't think that's necessary, and others probably want to drag the whole thing back for the full plenary treatment. This procedure allows Kennedy's lawyers to weigh in. By rule, no responses to rehearing petitions are allowed unless called for by the Court, and the Court virtually never grants rehearing without seeking a response.

I think this order lets the Court ruminate a bit more. I think it also makes a grant of rehearing much more likely, although I still don't think the final outcome will change.

A Different Way of Doing Things

2008-09-08T00:53:00.002-04:00

Canadian Prime Minister Stephen Harper just dissolved Parliament and called for elections. On October 14. That's in five weeks. By that time, we will almost be finished with our election's debates.

I'm not saying it's advisable for us to shrink our election cycle to five weeks. But surely there is some happy medium between five weeks and two years.

If McCain is Maverick...

2008-09-02T23:16:00.001-04:00

Does that mean Palin is Goose?

Arguing with TAPPED

2008-08-30T22:54:00.005-04:00

Reviving a long defunct post topic. The response over at TAPPED to the Palin pick has generated it's fair share of laughable lines. A small sampling.

"But it lends more credence to the argument that the McCain campaign is a war room masquerading as a campaign. They're not thinking about governing--they're thinking about winning." link

Me: Are you joking? Are you seriously trying to say that Obama wouldn't have picked Jenna Jameson as his VP if it would've given him the best chance of winning? This is politics. Winning has to happen before you can govern. To imply that the Democrats would never stoop to selecting a VP solely because it would help them win is insulting to anyone with a brain.

"She's Reagan with a vagina!" link

Me: Wow, that's mature.

"Barack Obama picked a running mate who can help him govern. The president's job is far too big for any one person to do on his own, so Obama took the first step toward building a first-rate team. John McCain engaged in a cynical stunt aimed at winning the news cycle. It's an incredibly arrogant decision that calls into question whether he really understands the nature of the job he's running for." link

Me: Many things on this one.
1: Obama picked a running mate to help him govern because he needs a running mate to help him govern. McCain doesn't need that help. This is as much a comment on Obama (the presidential nominee) as it is on Palin (the VICE presidential nominee).

2: Democrats have spent the last 8 years decrying the amount of power that Cheney was given in the Bush White House. Now all of a sudden that's the accepted mold. Bullshit.

3: McCain doesn't understand the job he's running for but Obama does? Does anyone believe that? Anyone? Anyone? Bueller? Bueller?

4: Obama preaches about change, and picks a life long Washington insider who has done nothing to change how the city works. McCain talks about change, and picks someone from outside Washington who has tackled corruption in her home state. And McCain is the cynical one?

"If McCain were in his 50s, or even his 60s, or weren’t a cancer survivor, Palin would be a more understandable pick. But given his age and his medical history, picking the single least qualified candidate in the modern history of the presidency and vice-presidency is simply a dangerous decision for the nation..."link

Me: Yeah, because governors and mayors have never, every ascended to the Presidency and done alright. Being a History major, comments from professional journalists that have a blatant disregard for anything past the last 50 years is a little insulting.

"I can't help but be, oh, a little bit skeptical of Republican's sudden interest in the glass ceiling." link

Me: Because Liddy Dole running for President 8 years ago doesn't count as Republicans trying to break the glass ceiling.

"MCCAIN'S SEXIST VP PICK." link

Me: If he picks a highly intelligent and talented women, he's sexist. If he doesn't pick one, he's insensitive to the majority of the voting population. What a wonderful scenario where he can be slammed either way.

"McCain’s selection of Alaska Governor Sarah Palin as his running mate is a triumph of Republican identity politics."link

Me: Translation - "It's no fair when they do it too."

Wasn't the entire Democratic primary one big identity politics-off? What exactly happened to all those highly qualified, experienced Democratic white males in the running? Oh yeah, they finished a distant fifth to the inexperienced woman and African American and dropped out of the race.

Palin-monium (trademark)

2008-08-30T14:00:00.003-04:00

So McCain went with the VP choice I'd been hoping for. Just becaue she was my first pick, I was convinced he was gonna go with someone safe and boring. Milbarge and I have already traded emails on our thoughts on the pick. Maybe the relevant back and forth can be summarized into another post.

For now however, I just wanted to mention that when the pick was announced, it generated an incredible amount of enthusiam at the office where I work. I of course have been reading the emails that get posted in the Corner. But people I've worked with for years that I didn't even know followed politics were talking about what a great pick it was. To a man/woman they were all talking about how much they like Governor (not Mayor, as the Obama campaign would have you believe) Palin. Her politics, her toughness, her story, her family. All of it. This pick has created interest, and actual excitement about the Republican ticket for the first time this election. Excitement that is visible in actual people and not just on the interwebs. The fact that the excitement has to come from the VP and not from any of the large original slate of candidates speaks to what Glenn Reynolds calls the GOP's need to work on their farm system. But the excitement is there none the less.

If she holds up in the debates with Biden, and I think she will, (McCain better have run her through some drills before making the call) then this one pick will have done more to change the election than anything that gone before in this 2 year process. This pick was genius, and not just because it's the one I would have made.

I have signed up on the McCain - Palin website. Only the second time I have done this for a campaign. And if life allows I may be doing some volunteering. This is gonna be fun.

UPDATE: Unsurprisingly, Mark Steyn sums up Palin better than I ever could.

Why Biden is a good choice as Obama's running mate

2008-08-23T04:44:00.003-04:00

He may not be the perfect choice, but pretty good overall, I think. A few thoughts. First, one reason I saw against picking Biden is that it could be spun as an admission that Obama needed shoring up on foreign policy. This selection could be cast as Cheney-esque, in the sense of "Don't panic! A grown-up will be present to chaperone!" Picking Biden shows some humility on Obama's part, some recognition that he isn't the leading expert on everything, or appealing to all voters. The only people who could have done more to send that message were Hillary Clinton and Al Gore, and Obama's not that humble.

Second, how long until the media (and Obamaphiles) start comparing this ticket to another pairing of sitting senators, one fresher and one a fixer? Biden won't deliver Texas, but I don't think the Democrats will shy away from people bringing up JFK and LBJ.

Third, picking Biden makes McCain more likely to go "outside the box." Had Obama chosen a relatively ordinary, less-well known person like Bayh or Kaine, McCain could have taken the safe route with Tim Pawlenty. Now he has to choose someone to match the stature of Joe Biden. Mitt Romney is the most obvious choice, but he brings some risks. However, I think the Biden choice makes McCain at least marginally more likely to pick a stunner like Joe Lieberman or Tom Ridge. My wildest dreams (and Feddie's worst nightmares) include a McCain-Lieberman ticket, so I won't say any more on that, lest I jinx it.

Finally, the McCain camp is already hitting back with lots of quotes from Biden regarding Obama's inexperience and unpreparedness to be president. (It's still not as jarring a flip in support of a former rival as Johnson's of Kennedy or Bush's for Reagan or McCain's for Bush, I'd suggest.) When he is inevitably asked about this, wouldn't the best answer -- the most Biden-esque answer -- be something like, "If he can out-debate me, he's qualified to be president!"

Could Shaquille O'Neal be the next Dick Heller?

2008-08-23T02:48:00.002-04:00

I think Prof. Berman has found a new champion in his quest to see the courts recognize robust Second Amendment rights in the context of federal criminal firearms laws.

A judge in Atlanta has imposed a temporary restraining order on basketball megastar Shaquille O'Neal. A 23-year-old woman alleged that she and (the married) O'Neal had an intimate relationship, but when she ended it, Shaq stalked her by sending threatening emails and making harassing phone calls. The woman says O'Neal sent an email stating "I dnt no who the [expletive] u think u dealin wit u will neva be heard from one phone call is I gotta make now try me. Sho me." More coverage from Deadspin here and AOL's Fanhouse here.

It should be noted at the outset that these are only allegations. The restraining order was granted ex parte and O'Neal has not even been served with it yet, let alone had a chance to appear and contest it. (A hearing is scheduled for September 4.) But after the hearing, the judge could make the restraining order permanent. I confess my ignorance on the law regarding restraining orders, but I would presume a permanent order requires some kind of showing that the allegations are credible and that O'Neal poses a danger to the woman.

But if Shaquille O'Neal finds himself subject to a restraining order, he has some problems (aside from whatever punishment the NBA might impose). O'Neal is famous for having something of a cop fetish, on par with that of Elvis Presley's. O'Neal has been made an honorary officer of several law enforcement agencies (including the U.S. Marshals), has made arrests as a Miami "reserve officer," and participated in the service of a search warrant (albeit on the wrong house) on a suspect in a pornography case. Shaq has made it clear on many occasions that he wants to be a full-time police officer when he retires from basketball.

And therein lies the rub. It almost goes without saying that no wise law enforcement agency would hire a high-profile deputy subject to a restraining order for stalking and threatening a former companion. Indeed, many of Shaq's police pals disassociated themselves from O'Neal after he was caught on video saying some bad words about former teammate Kobe Bryant. If something that innocuous makes police offices leery, imagine how they would react to a restraining order.

But the even more serious consequence for O'Neal would be the impact of federal criminal firearms laws. Tucked away in the federal code is Section 922(g)(8) of Title 18. That provision makes it illegal for anyone under a restraining order to possess a firearm. The order has to be entered after notice and a hearing, so Shaq's wouldn't qualify yet, but if the judge makes it permanent after the upcoming hearing, I think it would fall within section 922(g)(8).

Obviously, O'Neal couldn't be a police officer if he were legally prohibited from possessing firearms. More importantly, it would be a federal crime for him to possess firearms, at any time, ever, for life. (I don't know for sure if Shaq even has a gun now, but I can't say it would shock me if a "reserve officer" who participated in SWAT raids happened to own a gun.)

Now, we may decide that the provision makes sense, and courts might uphold it against a Second Amendment challenge. Notably, however, the Supreme Court's dicta in Heller suggesting the continuing validity of firearm-possession bans on felons and the mentally ill does not include persons subject to restraining orders.

Prof. Berman has questioned several times whether (non-violent) felons like Martha Stewart and Scooter Libby should be permanently stripped of their rights to self-defense in their homes. Shaquille O'Neal could make a similar argument, and he wouldn't even have to be convicted of anything. Yes, he could hire an entourage of bodyguards, but they would be unlikely to sleep in his bedroom, where he might desire a measure of lethal protection. (Ask Sean Taylor.)

I realize there are strong arguments that stalkers and those who threaten violence are exactly the type of people out of whose hands we would want to keep firearms. But if O'Neal were subject to serious penalties for violating the restraining order or contacting the woman, is it also necessary to prohibit him, on pain of federal prison, from possessing a gun even when he's far away from her, and even if he needs it for self-defense in his home?

Even if the answer is "yes," I think it's a worthy debate to have, and O'Neal might be the perfect protagonist. He certainly has a higher favorable rating than your average person under a restraining order. (And, I wouldn't be shocked if his apologists start spreading the notion, regardless of the facts, that this case is about a psycho ex-girlfriend overreacting and denying Shaq his dream of taking down perps.)

Anyway, I will be interested to see how all this plays out. If Shaq still wants to be a police officer, I expect him to fight this pretty hard.

Home Sweet Home Home Home Home Home

2008-08-21T19:51:00.003-04:00

Greater Blogistan is buzzing today over John McCain's Kinsley gaffe in an interview with Politico. When asked how many houses he (and his heiress wife) own, McCain replied, "I think -- I'll have my staff get to you." It appears he has seven homes.

All the political blogs, and a nice chunk of the mainstream press, is covering this, but I've especially enjoyed the alternative takes from NRO's The Corner (see here and here for example) and The New Republic's Plank and Stump blogs.

The conservatives are defending McCain mainly by pointing out that Barack Obama is wealthy and that there was some shadowy business involved in the purchase of Obama's home. It's hypocritical, they say, for Democrats to chide McCain for being elitist when their ranks include the likes of Ted Kennedy. Moreover, they assert, the Democrats will get no traction out of such populist class warfare. But this is a spectacular case of missing the point. NRO's Jonah Goldberg, particularly, has been way wrong about this (see here and here and here for starters).

Goldberg's defense is here, and it makes me worry that a lot of liberals (at least the ones who read The Corner) are missing the point, too. Jonah says that the liberals' have written him, and their argument actually is that McCain's multiple homes make him "out of touch" with the working man. Goldberg concedes that they may gain some ground with this one, akin to the first President Bush's famous experience with the grocery store checkout scanner. Goldberg's basic defense is that the ones who are really out of touch are the cultural elite, predominantly liberal, as opposed to the economically elite, including the McCains.

(Oh, and the McCain's campaign's response is pricelessly lame. After noting that Obama lives in "a frickin' mansion," as if the McCains' home swere hovels, his spokesman said, "This is a guy who lived in one house for five-and-a-half years -- in prison." Yes, and then he lived in one house for seven or eight years before dumping his wife to marry the heiress and buy more houses.)

But all this caused enough forehead-slapping, "arrggh"-venting frustration that I felt compelled to have to spell out what the point really is. It's not that McCain has a lot of houses. The point is that McCain doesn't even know how many houses he owns! That's bad for McCain even if the answer is a Unabomber shack and an outhouse. How are the Cornerites and their ilk missing this? The Obama campaign press release notes more than a dozen times that the campaign surrogates will discuss at various events "McCain losing track of how many homes he owns."

This post from Eve Fairbanks at TNR's Stump notes that this adds fuel to the McCain-is-old-and-confused meme. That's true, and that's probably where the late night jokes are going to go, with the wealth aspect tossed in. ("McCain also said he couldn't remember whether his toilets are gold or platinum! And then he said he always forgets which yacht is his at the marina!") The point here -- and the part of all this that will resonate -- is that it's one thing to be rich; it's another thing to be so rich (and addled) that you forget how many houses you own.

I just have a feeling this will stick to McCain. The only thing that would make it worse is if there had been video showing his confusion. After the zeitgeist gels around the rich+confused notion, how will McCain respond? There are lots of defenses (as if there is anything necessarily blameworthy) to being wealthy and owning lots of property. That's what McCain and his supporters are trotting out now. But what defense is there to not even knowing how many homes you own? After admitting to Politico that he didn't know the number, McCain said, "It's condominiums where -- I'll have them [his staff] get to you." Without tracking down his real estate holdings, I wonder if McCain is suggesting that a condo is leased or held by a trust or in some way not owned outright in fee simple by the McCains. Would Mr. Straight Talk McCain really argue that it all depends on what the meaning of the word "own" is?

Prediction: This may not cost McCain the election, and next year we may be joking that he forgets how many White Houses there are. But this will have legs. It's just too easy a target, too rich for lampooning, and too difficult to defend. And also, even if this story dies down a little this weekend, after Obama picks his running mate, it will re-gain some traction next week, when I'm sure it will be mentioned a hundred times during the Democratic convention, and more importantly, when Jay Leno returns to the air after the Olympics end. Leno's probably already written twenty solid minutes on this. And he can have my yacht joke for free.

UPDATE: A few new links. I think Prof. Althouse misses the point. Marc Ambinder gets it. Matthew Yglesias does the legwork to actually count the McCains' houses (it's complicated because some appear to be rental property).

And, here is the audio of the statement during the Politico interview. McCain can't pinpoint it, but he doesn't sound befuddled or anything. Video probably would have helped him, actually. Still, I stand by my analysis. I don't think his defense will be very compelling if it amounts to "I'm not as confused as my words make me sound!"

McCain v. Kaine?

2008-08-18T22:35:00.002-04:00

Well, the veepstakes are heating up, and everyone with an electoral college map and a congressional directory is making predictions. (Mine, from November, are comically wrong, but I'll save the laughs for those willing to put in the effort to find that post.) The buzz this week on the Democratic vice-presidential nominee seems to be focused on Delaware Sen. Joe Biden, just as it was centered on Indiana Sen. Evan Bayh last week, and Virginia Gov. Tim Kaine the week before that.

As a native of Virginia, I took a little interest in the Kaine boomlet. I think there are decent arguments on his behalf, and decent arguments against him. And, ultimately, I don't think he'll be the choice. But I did want to comment on one argument against Kaine that I think shouldn't be a major consideration: the fact that picking him will turn the Virginia governorship over to a Republican.

Virginia does not elect a ticket; its Governor, Lt. Governor, and Attorney General all run separately. In 2005, when Kaine was elected, the GOP took the other two spots. Bill Bolling was elected Lt. Gov., and Bob McDonnell won the A.G. spot. So, if Kaine did leave office, Bolling would indeed take over. But there are a couple of noteworthy quirks to all this.

First, Virginia's governors cannot run for re-election. They are limited to one (consecutive) term. So Kaine's tenure would be up in 2009 anyway. The other offices are not term-limited. The consensus seems to be that the GOP will coalesce around McDonnell as the 2009 gubernatorial nominee, with Bolling running for another term as Lt. Gov. (and probably setting himself up for nomination in 2013).

The other big quirk is that Virginia attorneys general have, for decades, followed a tradition of resigning when they run for another office, to minimize claims of partisanship in the AG's office. I don't think that's usually necessary (or, if it is necessary, probably not sufficient), but that's neither here nor there. It is what it is.

But what this could mean is that, if Kaine leaves office, Virginians could see the strange circumstance of the incumbent Governor (Bolling) running for the lesser office of Lt. Governor, and the Lt. Gov. and AG spots vacant, one because of elevation and the other because of resignation. (Technically, some placeholder would be named AG, but that person is usually an unknown without a statewide constituency. I think the Lt. Gov. position stays open, or is effectively filled by a Senate President Pro Tem or something, but I'm not sure. The point is, the officeholders won't look anything like the ones voters elected in 2005.)

It might be amusing to see Barack Obama pick Kaine, just to see how all this would effect Virginia politics. Plus, Kaine may decide the ship is sinking and it's time to bail out. But given Kaine's closeness to Obama, and the fact that he won't have another job come November 2009, I fully expect to see Kaine take some kind of position in an Obama administration, should Obama win this fall.

The natural fit for Kaine, a former urban mayor and housing lawyer, would be H.U.D. Secretary. Assuming Kaine has higher political aspirations, though, he might want some foreign policy experience. (This is the biggest knock against Kaine as a vice-presidential hopeful.) So, I'll throw out another suggestion: Ambassador to Mexico. Kaine is fluent in Spanish and once served as a Catholic missionary in Central America. Kaine could take a role in formulating and implementing Obama's immigration policies. Maybe a few years in Mexico City, then a move to a U.N. post or something. Something like a Bill Richardson path. Or, stick with the domestic experience at H.U.D. and be a Jack Kemp to a future presidential candidate with more foreign policy expertise.

Anyway, the point of all this is that I don't think Virginia's gubernatorial succession provisions should prevent Obama from choosing Kaine, although, as I said, I think there are other arguments against Kaine (or, to put it another way, stronger arguments in favor of other candidates). In any event, I still have a feeling that if Obama wins, he'll end up picking Kaine for another post at some point, so they'll probably have to go through those succession procedures before the scheduled transition anyway.

Vote McCain. Do it for the comedy.

2008-08-16T18:58:00.002-04:00

Two reasons to vote for McCain. Both have comedic implications.

1. Many people out there are more than willing to label any criticism of Obama as racist. This has implications not only for the current campaign, but also for talk shows and comedians across the country. Can you imagine 4 (or 8) years of not being able to criticize, mock, or satire the President for fear of being branded a racist and losing your job? A few weeks back I was watching the Daily Show, and Stewart had a joke on Obama. A good joke. After he delivered it the crowd was silent. He looked at the audience and said "You're allowed to laugh at him." The sad thing is that is seems too many people either won't or are afraid to. I personally don't want a President that can't be mocked every night on TV.

2. Can you imagine the comedy of watching Obama's die-hard supporters if he loses? Four years ago liberals were threatening to leave the country if Kerry lost, and most of them didn't even like him. Before the nomination was clinched, many were threatening to march on Denver if he didn't get the nomination. For all those people who faint in his presence and believe he will create world peace his first full day on job, watching how they handle defeat (my guess: not well) would be comedy gold.

"Boys...it would be a shame to have to kill you now."

2008-08-12T00:03:00.002-04:00

It would be a shame to have to kill you now, because then you wouldn't be able to listen to the like totally awesome Stuck in the '80s podcast episode honoring the Red Scare Movies of the 1980s! Naturally, I was blown away (pictured) by the discussion of Spies Like Us, but also had a lot of fun hearing the gang's reminiscing about the volleyball scene in Top Gun. And I know Sebastian will be pleased to hear that they probably talk about Red Dawn more than any other movie. Anyway, it was a very enjoyable show, and as good an intro as any for the uninitiated. Via the link above, you can listen to this episode or subscribe to the podcast via iTunes.

Legal Miscellany

2008-08-11T23:17:00.003-04:00

1. I wrote here recently about the Sirius-XM satellite radio merger. See also here for more background. But way back here, I wrote about another proposed merger, this one between grocery chains Whole Foods and Wild Oats. Basically, I analogized these two specialty stores to the satellite radio companies, and figured that if these two organic stores could merge and not threaten the greater grocery market, the satellite radio outfits could merge and not cause a blip in the larger music entertainment industry. Anyway, in my original post, I noted that a federal judge had refused the Federal Trade Commission's attempt to block the merger. Well, a couple of weeks ago, the D.C. Circuit reversed that judgment, and sent the case back to the district court. The merger isn't totally kaput (in fact, much of it has already happened), but it's an interesting development in light of the recent approval of the radio merger by the DOJ and FCC. Lots of info about the appeals court decision is available via How Appealing here and here.

2. Going even farther back in time, way back here some four-and-a-half years ago, I wrote about lawsuits seeking to apply the Americans with Disabilities Act to stadium-style movie theaters. Very briefly, the issue (which has divided the courts of appeals) is whether the ADA requires theaters to provide only unobstructed sight lines for wheelchair-bound patrons, or if it requires the theaters to provide seats comparable to those higher up in the "stadium." (Go to the linked post for more background; see also this follow-up with more thoughts.)

Again via the indispensable How Appealing, I see that the Ninth Circuit decided a related case, Miller v. California Speedway Corporation. This one involves the ADA's application to racetracks. A NASCAR fan who is confined to a wheelchair wanted to watch the races, but his view was obstructed by the fans who stood up during the exciting parts of the race. He sought an order applying the ADA to the track in such a way as to require a sight-line for him comparable to standing fans. The Ninth Circuit allowed the suit to proceed. (The movie theater cases were cited in the opinion.)

These suits, at bottom, are about accommodations in public places for those in wheelchairs, and could potentially affect lots of venues. But the legal questions turn on the interpretation of the ADA, the Department of Justice's regulations implementing the Act, and its Manual providing guidance for understanding the regulations, along with the deference courts will give to the Executive agency's interpretations. Basically, an Administrative Law orgy. Don't be surprised to see the Supreme Court take this case, if not during the next term then once the district court reaches a final decision.

Standard Bearer

2008-08-06T23:22:00.002-04:00

I was pleased to see that the U.S. Olympic team elected runner Lopez Lomong to carry the flag during this week's opening ceremonies at the Beijing Games. Lomong was born in Sudan, was a victim of that country's civil war, came to America in 2001, and became a U.S. citizen last year. He's deserving of this honor for a lot of reasons, but I really like the vote as a statement about the suffering in Darfur -- and China's complicity with the Sudanese regime. I imagine some Chinese officials will be squirming when the U.S. delegation marches into the stadium. As his website shows, Lomong is outspoken on the issue. I just hope the television commentators will note the symbolism, too.

12 Angry Minutes

2008-08-05T23:38:00.002-04:00

This post at How Appealing led me to a Houston Chronicle story about the execution of Jose Medellin, whose death sentence led to quite a fuss regarding the International Court of Justice. I didn't really have anything to say about the Medellin case, but a story in the Chronicle's sidebar caught my eye.

This story is about a series of trials in an awful sex abuse case. At the end, the article notes that two co-defendants were convicted (and sentenced to life in prison) after the jury deliberated less than five minutes. Five minutes! That's some efficient work.

How short would a jury "deliberation" have to be to be unworthy of the name? Ordinarily, we don't peer into the "black box" of jury deliberations because we want jurors to speak freely and vote their consciences. To refrain from prying, we have to resort to the legal fiction that juries always follow their instructions. We have to assume, for example, that the jury didn't rely on evidence the judge told it to ignore, and that the jury didn't bring in any outside information, like news articles.

But one of the instructions is also that the jury should not deliberate until the end of the trial. In theory, the jurors' minds should not be made up until after they start deliberating, so they can hear from their fellow jurors and come to a collective decision. It probably takes almost five minutes to elect a foreperson and count the votes. The lawyers probably didn't even have time to leave the courtroom before the jury came back. The jury might as well have not left the box.

Maybe the case really was open and shut, but still, five minutes is damn fast. It would seem clear that the jurors made up their minds before they were supposed to (or they deliberated earlier than they should have). At that point, it's not like the judge could send the jurors back to twiddle their thumbs and pretend to deliberate some more. And I'm sure the prosecutor would say that the evidence was obviously so strong that any jury, no matter how long it was out, would have convicted. But at what point could a jury deliberation be so short that there has to be a remedy? And what would that remedy be -- a mistrial? a new trial? Would double jeopardy prevent a re-trial, the irony being that a defendant whose guilt is so clear the jury didn't even have to deliberate ends up not being convicted? No easy answers, except, apparently, for that jury.

Update on the "Cases" Cases

2008-08-04T22:40:00.002-04:00

Longtime readers know about my little obsession with chronicling all the Supreme Court's "Cases" cases -- that is, Supreme Court opinions styled (either popularly or in the U.S. Reports) as "The [X] Cases," such as The Slaughterhouse Cases or The Civil Rights Cases. Here is my last post on the topic, with my current list.

A few days ago, Prof. Vladeck at PrawfsBlawg considered the matter, and pointed out a couple I hadn't found yet (although he didn't provide cites). Anyway, thanks to Prof. Vladeck for the tips. I think that between my efforts and his, I'm up to twenty-five "Cases" cases. I'll update the full list soon.

Care to collaborate on an article, Prof. Vladeck?

The Solicitor General Cops Out in Kennedy

2008-07-29T00:03:00.001-04:00

I'm disappointed with the approach taken by the Solicitor General's Office in the ongoing Kennedy v. Louisiana child rape death penalty case rehearing matter. For background, see my posts here and here. The short version is that Louisiana sought rehearing, and there was some curiosity about what action the United States, in the form of the Department of Justice and Solicitor General's Office might take. After all, the late-discovered military law permitting the death penalty for child rape means that the Court's holding directly affected a federal law. Having sat out the cert and merits stage, would the SG be drawn in at this late date?

In my first post, I discussed the rule in 28 U.S.C. sec. 2403, which allows the U.S. to intervene in any case in a federal court where the constitutionality of a federal law has been called into question. That provision seemed to fit perfectly what happened in Kennedy. So naturally, I wondered if the SG would seek to intervene in the case (a) to make rehearing more likely, and (b) to defend the federal statute at issue.

In my second post, I discussed the state of Louisiana's rehearing petition. I noted that it specifically cited section 2403 and served a copy of the petition on the SG (although, of course, the SG was already aware of what was going on). The petition seemed to be all but asking the U.S. to wade in.

On Monday, the other shoe dropped. As reported by Lyle Denniston at SCOTUSBlog, the SG has moved for leave to file an amicus brief in support of the rehearing petition (pdf). (Interestingly, the submission seems to have been filed shortly after Monday morning's orders list, making me wonder if the SG thought rehearing would be denied this morning before it had to submit anything.) And while it's certainly notable that the U.S. has finally weighed in on Louisiana's side, I found the motion much more interesting for what it did not say.

To begin with, although the motion is for leave to file an amicus brief at the rehearing stage, and the brief itself is styled as such, at no point does the SG's proposed brief acknowledge that Supreme Court Rule 44.5 clearly states that "The Clerk will not file any brief for an amicus curiae in support of, or in opposition to, a petition for rehearing." (Thanks to Prof. Berman for originally noting this.) In other words, by rule, the Supreme Court Clerk should stamp the SG's submission "return to sender."

In reality, I find it well nigh inconceivable that the Justices won't at least be aware of the SG's position, and they will probably read the proposed brief anyway, even if it's not officially lodged in the record. But I find it troubling, to say the least, that the brief does not ever point out that its very filing is prohibited by rule. I think that a more intellectually honest brief would have addressed Rule 44.5 in some fashion.

To me, what's confusing about all this is that there is a reasonable argument the SG could have made to get around Rule 44.5: It could have, as I noted, moved to intervene in the case. In my original post, I pointed out some reasons why the Court might deny permission to intervene, but at least the SG would be on marginally surer footing -- it would be submitting its brief not as an amicus, but as a party.

The most logical deduction I can draw from all this -- not mentioning either Rule 44.5 or the only way I can see to avoid it -- is that the motion is political posturing, and the SG doesn't really want to get too involved in the case. (And as a bonus, the SG can act as if the Court is obstinately ignoring the facts when it's simply applying its rules in an evenhanded manner.)

Acting Solicitor General Greg Garre should fish or cut bait -- either acknowledge that Rule 44.5 prevents filing an amicus brief and leave it at a press release, or move to intervene and accept the responsibility of being a party to the case.

Proposed Name: XiriuM

2008-07-28T00:53:00.003-04:00

I have written here a few times about my experience with satellite radio and my support for the proposed merger between XM and Sirius. See here and here and here. So naturally I was pleased to hear that the FCC voted 3-2 to approve the merger. I felt like I ought to say something about it, but I couldn't have put it any better than Publius did at Obsidian Wings. So, you know, what he said: merger good.

Supreme Court Inside Baseball

2008-07-23T00:02:00.002-04:00

Via How Appealing, I saw this interesting Legal Times story about a pretty wonky little essay.

The back story: In their Supreme Court expose The Brethren, Bob Woodward and Scott Armstrong relate a story about Flood v. Kuhn. Flood upheld baseball's "reserve clause" over a challenge on antitrust grounds. Anyway, Justice Blackmun's opinion starts out with a lengthy history of baseball and a long list of the game's great players. It's right up there with "Poor Joshua!" among Justice Blackmun's stranger discourses.

In The Brethren, Woodward and Armstrong write that Blackmun originally circulated a draft, got some comments, and added a few names to the list of baseball greats. According to the writers, Justice Thurgood Marshall noted that there were no black ballplayers on the list, so Blackmun added three. The story has persisted for decades as an example of (at best) Blackmun's thoughtlessness about race.

However, as the Legal Times article reports, there is a new essay by Professor Ross Davies calling the Woodward-Armstrong account into question. Davies has extensively studied Justice Blackmun's papers and finds no indication that there was ever an early, all-white list of players circulated to the other Justices. Therefore, Davies asserts, there was nothing for Justice Marshall to criticize, and the story from The Brethren is false. The essay is a quick read and makes a strong case. I'll leave it for Woodward and Armstrong to defend their work as they see fit.

But reading Davies's analysis, I thought of another piece of evidence he could have marshaled, and I'm surprised he didn't mention it. He writes that Blackmun used a baseball encyclopedia in making his list. He established statistical cut-offs to measure greatness and included the players who made the grade. (When the drafts circulated, Blackmun added a few names in response to suggestions or politicking from the other chambers.)

So why doesn't someone find a baseball encyclopedia, reverse-engineer Blackmun's standards, and see if the black players in the final opinion (Jackie Robinson, Satchel Paige, and Roy Campanella) made the initial cut? I'm not enough of a stat geek to pull this off, but a baseball fan/number cruncher should be able to figure out Blackmun's method pretty easily. (In fact, it may be preserved in his papers.)

I suppose if Justice Blackmun's standard was amorphous and hard to pin down, it might be difficult to know why any particular player was included or not. (Apparently Mel Ott's exclusion was a genuine error, but others may be harder to figure out.) But if it's reasonable easy to determine what Blackmun's personal hall of fame voting metric was, I think it would be just as easy to see whether the black players were inside or outside the hallowed group. If they're above the line, and virtually everyone else above the line is listed in Flood, that's strong evidence they were included all along. But if they were below Blackmun's line, and virtually no one else below the line is on the list, either he imposed his own affirmative action, or did so only at Justice Marshall's suggestion.

In any event, retracing Justice Blackmun's steps in compiling the original list would seem like an obvious and manageable task, and would get us a little closer to an answer to the controversy Davies writes about.

Update on the Kennedy child rape case: my intervention post vindicated?

2008-07-22T00:24:00.002-04:00

On Monday, the state of Louisiana filed a rehearing petition in the Supreme Court, asking the Court to reconsider its recent decision in Kennedy v. Louisiana, which outlawed the use of the death penalty for child rapists. SCOTUSBlog has coverage and a link to the petition, here's some coverage from How Appealing, here's a little from the Sex Crimes blog, and Prof. Berman here and here.

I discussed the possibilities of a rehearing petition last week in this post. As everyone expected, the petition focussed on the Court's (and the parties') error in failing to note that military law allows for capital punishment for child rapists. Since a major portion of the Court's opinion was based on what it saw as an evolving national consensus away from authorizing the death penalty in these cases, Louisiana's petition said the recently-enacted federal law undermined the Court's reasoning.

It's a fair argument to make, and the petition also makes another very interesting point. The other rationale for the Court's decision was the majority's independent judgment, apart from whatever the national consensus is, that the death penalty is simply a disproportionate punishment for child rape. As the state's petition asks, if the consensus argument is invalidated, is the proportionality holding enough to support the Court's decision? To be sure, it would be if the Court said so, but the petition points out that a straight proportionality holding, without consideration of national consensus, would be a sharp departure from recent Eighth Amendment jurisprudence. And it's probably too big a step to take without briefing and argument.

In the end, I doubt that will be enough to get the petition granted. But I took a special interest in one small part of the petition. In my post last week, I suggested that the Court's decision, apparently striking down a federal law as unconstitutional, gave the United States a right to intervene in the case pursuant to 28 U.S.C. sec. 2403. In the petition, Louisiana specifically cited section 2403 in noting that it served the petition on the Solicitor General, and asked the Court to request the views of the S.G.'s office. The petition didn't explicitly mention intervention, and ultimately, that's the S.G.'s call. And, certainly, I know I'm not the only person to think of this. But I do feel somewhat vindicated in thinking I wasn't completely crazy.

So, anyway, now the ball's in the Court's...uh, court. Stay tuned.

50 Book Challenge: How the States Got Their Shapes

2008-07-20T23:34:00.002-04:00

How the States Got Their Shapes by Mark Stein (Amazon, B&N, Powell's). Okay, I'll admit it: I'm a geography nerd. When I was in junior high, I went to the state geography bee sponsored by National Geographic. I didn't get very far, and I was nowhere near the national finals with Alex Trebek. But I was nerdy enough to get my bona fides. So, as you can imagine, this book appealed to me.

How the States Got Their Shapes is exactly what the title promises. It has chapters for every state and the District of Columbia. Stein describes the compromises and controversies leading to the boundaries we see on the map today. Even a pretty obvious state like Hawaii gets a whole chapter (mostly on why certain islands in the vicinity are or aren't included in the state). The more oddly-shaped states get the full treatment, and soon you'll be able to explain why Connecticut has a panhandle and why Michigan has that non-contiguous Upper Peninsula. I was surprised to learn how many borders prompted skirmishes between settlers, and not just the famous Kansas-Missouri one. And you'll find out how just how often crooked borders are the result of nothing more significant than bad surveying (hint: very).

Stein had me hooked with his introductory chapter entitled "DON'T SKIP THIS." And it's good advice. That chapter discusses the big boundary events in American history -- the Treaty of Paris, the Louisiana Purchase, the Mexican War, the Missouri Compromise, etc. When the U.S. acquired new territory, it had to decide how to carve it into states. Stein makes a good case that, very often, those designs were based on commendable Congressional foresight. There's a reason state pairs like Alabama/Mississippi and Arizona/New Mexico are so similar in size (not to mention North and South Dakota). Despite, or maybe because, the original colonies were so dissimilar in size, thanks to royal grants, religious exclusion, and political power, Congress made a concerted effort to give equal size to new states, to the extent possible. Exceptions like Texas and California are truly exceptions. It's pretty remarkable how successful legislators were in their efforts -- as demonstrated by the number of western states that are precisely seven degrees of longitude wide or three or four degrees of latitude high.

That reliance on longitude and latitude is understandable, given the available technology. But it makes me wonder what the states would look like if they were being drawn up from scratch in the modern age. I suppose they would look like our gerrymandered election districts. Faced with that gruesome image, I'm just fine with those boring square states we have.

This book could have been written very differently, with lots of discussion of various Congressional hearings or the efforts by many states to grab a little more land. Stein provides a bibliography, so I suppose that kind of information is out there if you want to track it down. I do wish there had been some kind of index or timeline so one could read the book chronologically, but Stein also provides many cross-references in the individual chapters, so you can peek ahead to Wisconsin while you're reading about Minnesota. But the essentially random nature of the alphabetical approach suits the reader who wants to jump around.

Stein's book is a fun read for grown-up geography nerds like me, and also accessible enough for the junior high class trying to pick a winner of the school geography bee. Chock full of facts, highly interesting, certainly recommended for anyone who ever looked at a map and wondered, indeed, How the States Got Their Shapes.

(Previous 50 Book Challenge reviews)