BeldarBlog

Beldar scoops NYT on analysis of Edwards trial

Beldar — 2012-05-23T20:54:56-05:00

History will reflect that today, during the fourth day of jury deliberations in John Edwards' criminal trial on campaign finance fraud charges, the New York Times finally figured out the most likely key to the John Edwards trial — "a rigorous disagreement between the defense and prosecution in the courtroom over whether the law requires that influencing an election be the sole reason for giving money, as the defense team interprets the law, or only one of the reasons, as the prosecution sees the case."

Let the record also reflect, however, that readers of BeldarBlog were so advised on Thursday, May 17, 2012, before the jury began its deliberations.

Like the first analyst quoted by the Times, I agree that these jury instructions are also likely to be the most promising potential basis for an appeal if the jury convicts Edwards. I'm not yet persuaded, however, that the instructions were defective. To the contrary, on this specific issue I'm quite confident that Judge Eagles' instructions are substantially correct: This is an issue of first impression, with no prior appellate opinions to resolve the issue, but nothing in the language of the statute supports the defense contention regarding "sole reason," and there's no reason for a court to read that extra requirement into the elements of the crimes the statute defines.

Beldar muses on John Edwards' fate while the jury is out

Beldar — 2012-05-17T22:52:16-05:00

The press reports I've read regarding closing arguments today in John Edwards' criminal trial are unremarkable. The arguments might have been brilliant in person, but at least as filtered through the press they simply re-hashed themes and arguments and evidence that have been discussed before. So my interest turned to other, more technical matters that I actually think may be more important than the closing arguments themselves.

Unfortunately, I can't yet find a written version of the court's charge to John Edwards' jury earlier today — neither on PACER, nor elsewhere on the net. The charge will contain Judge Eagles' formal questions of, and instructions to, the jury, as delivered by her to them in writing and as read by her in open court before the jurors begin their deliberations. The charge is of crucial importance in every trial, but especially in a case like this one in which so many of the facts were essentially undisputed. The prosecution and Edwards' defense team certainly put very different characterizations on those facts. But when the jury tries to sort out which side's characterization is correct, the jurors inevitably will look to the judge's instructions and questions for their guidance.

However, the newest document that's up tonight on PACER — Edwards' lawyers' objections to the draft charge that was circulated after the charge conference yesterday — implies pretty strongly that Edwards' lawyers didn't get the instruction they wanted on what I believe to be the key legal issue in the case: whether to qualify as a "campaign contribution," something must be intended solely to promote a campaign. I don't know if Judge Eagles instead gave the jury the instruction requested by the prosecutors, which would have explicitly said that they could find Edwards guilty even if the conspirators had multiple purposes — in other words, even if Edwards, Bunny, Young, et al. intended to deceive both the American public at large and Elizabeth Edwards in particular. But I agree that that's the proper interpretation of the statute, so it wouldn't surprise me if Judge Eagles gave the jury the instruction as proposed by the prosecution, or something very close to it.

The other alternative is that she submitted neither side's requested instruction on this issue, but I think that would run a legitimate risk of juror confusion and misinterpretation. That's another way of saying: If she gives no instruction at all on this topic, that would permit the defense team to argue to the jury as if they had gotten the interpretation of the statute, and the resulting instruction, that they wanted, but that the judge has refused; and I think that would be improper.

If the prosecution did in fact get the instruction they wanted, or something pretty close, on this key point, then I think Edwards' conviction on at least some counts is likely. But of course, I'm basing that on an incomplete and subjective set of reports about the evidence, which I haven't actually seen or heard or read; and one can never be certain what any given jury will do. Until this particular jury returns its verdict, Edwards remains entitled to his constitutional presumption of innocence like anyone else; but barring a hung jury, that presumption is about to be replaced by a verdict one way or another.

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UPDATE (Fri May 18 @ 5:45pm): Here, from PACER, are the Final Jury Instructions as read aloud and given in writing by Judge Eagles to John Edwards' jury yesterday. The key instruction, in my opinion, is this one (starting at page 8 of the .pdf file)(boldface mine):

... Whether the money Ms. Mellon provided to Mr. Young through Mr. Huffman was provided by Ms. Mellon for the purpose of influencing an election is a factual question you will decide from the credible evidence. You will consider any evidence about the intent, motivation, and goals of Ms. Mellon, evidence about the statements made surrounding the solicitation and acceptance of the money, how the money was actually spent, and other evidence of all the surrounding circumstances, and determine whether this money was given by Ms. Mellon for the purpose of influencing an election.

The government does not have to prove that the sole or only purpose of the money was to influence the election. People rarely act with a single purpose in mind. On the other hand, if the donor would have made the gift or payment notwithstanding the election, it does not become a contribution merely because the gift or payment might have some impact on the election. Nor does it become a contribution just because the donor knew it might have some influence on the election and found that acceptable, if the donor’s real purpose was personal or otherwise unrelated to the election. In other words, the government has to prove that Ms. Mellon had a real purpose or an intended purpose to influence an election in making the gift or payment. If her real purpose was personal or otherwise not for the purpose of influencing the election, or if you cannot say what the purpose was beyond a reasonable doubt, then that would not be sufficient to satisfy this element. If you find beyond a reasonable doubt that one of her purposes was to influence an election, then that would be sufficient.

The government does not have to prove that Ms. Mellon had any intent or knowledge as to exactly how the money would be spent, or that the money was in fact spent on the campaign, or that it would have been legal or illegal for the campaign to spend the money the way the money was in fact spent. While you may consider how the money was spent as part of your consideration of whether the money was provided for the purpose of influencing an election, it is not an element of the offense that the money be spent on purposes related to the election.

This, like similar instructions Judge Eagles has given in connection with later counts of the indictment, is close enough to what the prosecution requested that they are undoubtedly very happy with Judge Eagles' interpretation of the campaign finance statute — and I agree with the prosecutors that this is the correct interpretation of the statute. And this is exactly the opposite of what Edwards' lawyers had requested, which was an instruction that the intent had to be solely to influence an election.

In fact, I commend the entire document to you if you really want to know what the case is about.

Edwards' defense team might want to reconsider their reliance on a Clintonesque "It's all just about sex" defense

Beldar — 2012-05-13T15:33:13-05:00

John Edwards has always tried to emulate, and out-do, that other smooth-talking, good-looking Democratic politician from the South, Bill Clinton. Edwards has certainly fallen short of Clinton's achievements — most conspicuously in failing to win the White House. As for Edwards' foibles and failings, I suppose that the consensus of history will decide, someday, whether sexually exploiting a White House intern, and lying about that to the American people and the First Lady, is worse than having an affair and fathering a child with a campaign groupie, and lying about that to the American people and the would-be First Lady (who's also dying of cancer).

But John Edwards' urgent problem is not the eventual judgment of history, but the impending judgment of the U.S. District Court for the Middle District of North Carolina. And his defense lawyers would do well to keep that always in mind as they ponder the appropriateness and likely effectiveness of a defense strategy consciously constructed to parallel Bill Clinton's defense in L'affaire Lewinsky.

Clinton was tried primarily in the court of public opinion. Oh, yes, he certainly was impeached in the House of Representatives, and he was nominally "tried and acquitted" in the resulting Senate proceeding over whether he ought also be removed from office. But there is not much resemblance between even the formal "rules" that governed the impeachment proceedings against Clinton and those which are governing Edwards' criminal trial. And Edwards' trial in North Carolina has taken place within a structure, a setting, that has little in common with Capitol Hill. The key participants in Edwards' trial are ordinary, "real-life" participants in our criminal justice system, with the most significant of them being chosen as a cross-section of the voting public — not big-shots from our political system.

Then-Chief Justice William Rehnquist did a fine and fair-minded job of presiding over Clinton's Senate "trial," using his exalted position atop the judicial branch to keep order inside the Senate chamber during the formal proceedings. But nothing could give even the Chief Justice remotely the same practical authority or influence over the U.S. Senators who decided Clinton's fate that U.S. District Judge Catherine Eagles will necessarily have over the jurors who decide John Edwards' fate.

When Clinton's supporters argued — within the House and Senate proceedings, but mostly, incessantly, and desperately in every channel of public conversation outside the Capitol Dome — that his prosecution was "all about sex," there was no one to overrule them, to correct them, to re-focus the inquiry.

But whenever John Edwards' team finishes his defense — and it's still essentially certain that defense will not include Edwards waiving his Fifth Amendment rights and taking the stand on his own behalf — Judge Eagles will give the jury a set of written instructions and questions comprising the "charge of the court" and their required verdict form. Although she will doubtless give Edwards' lawyers great latitude to argue, if they wish, that Edwards' prosecution is "all about sex," or "all about politics," or "all about ____ (fill in the blank)," nevertheless, when all the lawyers are done, the jury will be obliged to answer the questions posed by Judge Eagles.

And at that point, Edwards' lawyers simply won't any longer be able to distract attention from those questions and that verdict form any longer. Judge Eagles' questions will be lifted in large part from the text of the relevant statutes. And those questions are therefore guaranteed to be about violations of the federal campaign finance laws — not about sex, not about politics.

Edwards' lawyers can puff and huff about sex and politics all day long, but it's the jury's eventual answers to those specific questions which will decide their client's fate.

Being tried in the court of public opinion, rather than in a U.S. District Court, was an enormous advantage to Bill Clinton because a "misdirection defense" works quite well in a court with no rules, no boundaries, and no effective judge to control the proceedings and define the issues. I doubt that a "misdirection defense" is likely to be as effective in Judge Eagles' courtroom. But I suppose it's the best semblance of a defense they can put together for this toxic scoundrel.

Beldar & kids see "The Hunger Games"

Beldar — 2012-03-25T21:38:48-05:00

My daughter Molly introduced me to Susanne Collins' trilogy "The Hunger Games" when the novels first came out a few years ago, and I was much taken with them.

There have been many criticisms of the books, and by and large they also apply to the just-released movie version of the first book. The central premise — in which twenty-four teens, drawn by lottery from twelve world districts, compete in a televised deathmatch — requires a large swallow of "willing suspension of disbelief" to wash it down. Indeed, the rest of the "world creation" is thin and often internally inconsistent. (Small spoilers ahead, click and drag to display text: How could a society with the technology to materialize deadly robotic wolves out of thin air still be dependent on coal mining done by humans in a village that's functionally indistinguishable from Depression-era Appalachia?) As science fiction plots go, "The Hunger Games" trilogy is fairly trite and not very original. No one would mistake it for great literature, and it doesn't aspire to be that.

Nevertheless, however improbably, the trilogy succeeds as well-spun and spare-but-compelling story-telling — a page-turner that induces readers to identify with and care about the characters, and that is particularly likely to inspire sentimental tears from anyone who's ever had a sister or daughter. So Molly and I have been eagerly awaiting, and following the advance press accounts regarding, this first episode of the film adaptation. We resolved to see the film during the first weekend of its release, and we were joined today by my son Adam and his roommate Erik, neither of whom had read the books.

Many trilogy fans criticized the casting of Jennifer Lawrence as the protagonist, "Katniss Everdeen," on grounds that she is too old and too blonde. Her blondeness was easily remedied, of course, and with due respect to purists who'd rather the films exactly track the books, and to the many excellent child actors who've graced other difficult film roles, I frankly can't imagine this movie having been made successfully with an actual thirteen- or fourteen-year-old. And Jennifer Lawrence's performance is stunning; the phrase "vividly understated" sounds contradictory, and I guess it is, but it approximates the tightrope she successfully walks between making Katniss too ordinary to be inspiring and too terrific to be believable. By the end of the film's first major plot development (roughly 10 minutes into the movie), she completely owned the screen and, I suspect, the hearts of everyone (of any sex or age) in the theater. The film is quite long (142 minutes), but Lawrence's performance is so persuasive and so winning that the filmmakers were able to mostly omit many of the cut-away scenes which I had expected to be necessary from reading the books — especially the ones showing Katniss' performance in the Hunger Games as generating strong reactions among not only her hometown friends and family, but among those viewing the spectacle of the Games from her competitors' home districts too.

(Among the trailers shown before our screening was one for the upcoming "Snow White and the Huntsman"; when Kristen Stewart appeared on-screen, she inspired much muttering, if not quite hissing or cat-calls. And if you're familiar with her lifeless, boring performances in the "Twilight" series of films, you can easily imagine how she, or someone else equally young and hot but talentless, might easily have been cast in — and have thoroughly ruined — "The Hunger Games.")

The only real clunker of a casting decision in "The Hunger Games" was Woody Harrelson as Katniss' mentor, "Haymitch Abernathy." My extreme personal dislike of that actor admittedly taints my reaction to any film he's in. I suppose he wasn't quite as much of a travesty in this film as he was in "Friends With Benefits," which I watched on cable last week; and I haven't yet steeled myself to watch "Game Change," since my dislike of Harrelson is significantly exceeded by my contempt for the real person Harrelson plays in that particular piece of gutless defamation.

But Haymitch is among the most important half-dozen characters in the books, and next only to Katniss, he's absolutely the most interesting, complicated, and challenging character. In this film adaptation of the first book, the character deserves, and gets, a fairly generous allotment of screen time. Yet Harrelson wastes just about all of it. Veteran Donald Sutherland, by way of easy contrast, brings one hundred times the acting talent to a part with a quarter or less of the screen-time that Harrelson had. Indeed, in the film's delicious and wordless final scene, Sutherland does more to provoke your attention for the next film in the trilogy — using merely a slight change in the way he's holding his mouth and a tiny flick of his fingertips — than Harrelson manages with all his carpet-chewing throughout the rest of the movie. True stars like Sutherland, and even new talents like Lawrence, make Harrelson look genuinely simple-minded and completely out of his league in this film — rather like Woody Boyd, the dimwitted bartender in "Cheers" (after which role, Harrelson ought to have simply retired, or perhaps taken up bartending). Indeed, I'd gladly see the second and third films sacrifice continuity in order to replace Harrelson with a real actor who's up the part of Haymitch.

Other supporting actors worth recognition include young Amandla Stenberg as "Rue" and the ever-talented Stanley Tucci as the perfectly named master of ceremonies, "Caesar Flickerman." Molly also particularly liked Lenny Kravitz' performance as "Cinna," but he didn't really leave me with a very strong impression. I do hope they'll give Paula Malcomson, whose performance as "Trixie" in HBO's splendid series "Deadwood" showed considerable acting chops, something more substantive to say and do in the role of "Katniss' mother" in the next two episodes of "The Hunger Games." But her slim role in this film does track Collins' books fairly closely, and the essential element of that character is her emotional vacancy, so it's hard to criticize Malcomson for being very low-key.

Generally speaking, as Adam and Erik confirmed afterwards, the film is quite accessible even to those who haven't read the books, and it hews closely enough that I don't think there's any particular downside to reading the books after seeing the film(s). If you're uninterested in pop culture, you've likely missed the books already and you'll similarly decline the opportunity to see the film versions. But if you can follow at least the first half of the advice Haymitch gives to Katniss' chaperone, Effie Trinket (played by an almost unrecognizable Elizabeth Banks) — "Loosen your corset and have a drink!" — you might enjoy this movie a great deal. Molly, Adam, Erik, and I all give it a solid "thumbs up."

Paul Ryan: "America Deserves a Better Path"

Beldar — 2012-03-15T23:06:32-05:00

In my view, the GOP should nominate for President the single currently most consequential Republican leader, the one who's most doing the most, and proving the most effective right now, on the most urgent issues threatening our country — not someone who merely has served in a single state, or whose service was mostly or entirely back in the 1990s. With due respect to Speaker Boehner (who actually I'm pretty sure would agree with me on this), the currently most consequential Republican leader is not him. And again, with due (but sincerely calibrated) respect to them, it's certainly not any of the current candidates.

It's Paul Ryan.

As the tag-line suggests, this video is intended as a preview of what Chairman Ryan plans to do with his House committee, and with this year's revised version of the Path to Prosperity, between now and Election Day. Make no mistake, this is targeted at Barack Obama and his Democratic cohorts.

But I agree with the Weekly Standard's Mark Hemmingway when he titles this "the best political campaign ad of 2012." Hemmingway's wistful subtitle: "Unfortunately, he's not running."

The only thing entirely certain about the GOP convention is that it has to produce a nominee for President and Vice President. In some parallel universe in which candidates could put aside their personal ambition — even the kind of driving, compulsive, relentless personal ambition necessary to campaign for President of the United States — in favor of the good of the Nation (and, therefore, the good of the Grand Old Party), I would hope for a brokered convention at which, on the 10th round of deadlock, some combination of Mitt Romney, Rick Santorum, Newt Gingrinch, and Ron Paul would implore all of their original delegates to cast their next ballot for the chairman of the House Budget Committee. But in this universe, I've still not been persuaded to change my sidebar by anything any of those candidates have done since ... well, since ever.

Ryan, by the way, hasn't endorsed anyone, and has promised not to (he says it would be a conflict with his party fundraising position). Wisconsin is a purplish state that's in play. And his pre-Election Day work for the Budget Committee will necessarily be complete or nearly so by the time of the GOP National Convention in Tampa, after which he's going to be campaigning anyway, if (probably) only (sigh) for his current House seat.

Silky Pony & co-star negotiate return of sex tapes

Beldar — 2012-02-24T00:46:00-06:00

I, for one, am relieved by this news: "Sex tape of John Edwards [&] mistress to be destroyed within 30 days after lawsuit settlement."

My relief flows from the general proposition that it's a good thing to reduce, when possible, the total number of things in the universe which, if seen by me by accident, might make me want to stab myself in both eyeballs with knitting needles.

The first version of the story I'd read, from TheHill.com, reported that "all copies of the tape will be destroyed within 30 days." If accomplished, that would be a rare exception to the general rule of thumb about sex videos in the digital/internet age.

But if you read to the end of the AP story, you'll find that "[i]n the settlement, the Youngs pledged to seek the destruction of any copies of the sex tape that may now be in the possession of the federal government." Meaning there are such, and meaning that the feds haven't yet made any such commitment. Nor, likely, could they — not while six felony and misdemeanor campaign finance charges are still pending against Edwards in connection with his co-star.

Just in case, I'm going to avoid acquiring knitting needles.

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UPDATE (Fri Feb 24 @ wee-smalls): Local press coverage indicates that we'll certainly hear and see more about the sex tape:

Hunter sued Young after Young's tell-all book published in February 2010 described the tape. The 21-page consent judgment and permanent injunction does carve out a notable exception to the disclosure injunction: items already sold by the Youngs as part of a movie deal based on the book.

....

"Ms. Hunter was demanding money up until very recently," said Robert Elliot, the Youngs' attorney....

This makes it sound like a financial wash, a walk-away deal where neither side paid any cash to the other. As for what's coming soon to your local motion picture theaters — or, maybe, not?

Information about the sex tape and the list known as "The Slut Club," as described in "The Politician," were specifically exempted from the non-publication order. The Youngs had sold the rights to the tape to Aaron Sorkin of Colvin Road Entertainment as part of movie deal for Young's story and book, according to the agreement, and Elliot said that anything said in the book is fair game.

However, in the agreement filed Thursday, Hunter explicitly retained the right to take the Youngs to court again with regard to the movie if more information stemming from the property returned to her is publicized.

Conspiracy theorists will immediately seize upon Aaron Sorkin's close ties to the Democratic Party and draw enthusiastic inferences and conclusions therefrom. But the Sorkin connection is actually old news. The old saying was that "Politics is show-business for ugly people" — but now it's just all an ugly blur, isn't it, even though some very pretty people are involved?

Is it okay for Obama to tell voters that Obamacare's individual mandate is not a tax, while telling the federal courts that it is?

Beldar — 2012-02-16T17:41:31-06:00

I have been following the ongoing litigation about the constitutionality of Obamacare, and I have very strong opinions about it. But I haven't written much about it here because there are so very many other conservative and libertarian law-bloggers who are doing such a good job — including many of them who are directly involved in the litigation — that I haven't felt I had anything novel or useful to add. However, I was much struck by the concluding paragraphs of Wisconsin conlaw professor Ann Althouse's post today entitled "The Obama Administration clearly states that the individual mandate is not a tax" (all emphasis hers):

Well, I suppose it depends on what the meaning of the word "tax" is. It's one thing for the purpose of political argument: Democrats in Congress didn't want to call it a tax when they were jamming it through, and Obama doesn't want to call it a tax now as he's promoting a budget with no new taxes for those making less than $250,000 a year. But for the purposes of legal argument, you might want to characterize it as a tax. The serious question is whether the Supreme Court will accept that characterization for the purpose of upholding the law, even though for political purposes the word was not — and is not — used.

And the answer to that question depends on whether the Justices think that analysis of the political dynamics matters in the interpretation of the scope of Congress's enumerated powers. Whatever the vigor of the Court's role here — and obviously much is left to Congress's political will — it is crucial for the people — exercising their political pressure on the Congress that works its political will — to see what is happening. Even in the thrall of judicial restraint, the Court should reject an argument based fooling the people about what Congress is doing. The people are especially vigilant about new taxes, so denying that something is a tax is an important maneuver in the political arena. If that move is made to ward off public outrage, it should not be easy to turn around win the favor of judges by calling it what you did not dare tell the people it was.

As I said in a comment to her post (reprinted here without blockquoting, slightly edited and expanded here for clarity):

Every statute passed by Congress and signed by the POTUS (or passed over his veto) must be justifiable by some provision of the United States Constitution. That is essential to the maintenance of our Republic as a government of limited, enumerated powers — a government subordinate to, not the dictator over, its people.

Flacks for the Obama Administration, including many lefty lawyers and law professors, would love to persuade you, the people, that they're entitled to rely on one part of the Constitution, the taxing and spending clause, as a justification for Obamacare while they're arguing in the federal courts over its constitutionality, and yet to deny elsewhere that Obamacare involves any "taxes."

"This is complicated lawyer-stuff that only us high priests of penumbras and the living, breathing Constitution can possibly comprehend," they suggest. "Go back to your circuses — look, look, they're handing out more free bread! FREE BREAD!"

(Or maybe just free condoms and birth control pills.)

Democrats are the masters of cognitive dissonance. That's not in dispute and won't change. What might change — as between November 2008 and November 2012 — is the number of rubes who remain enthralled by their shameless hoaxes.

George Romney never had a little tip jar

Beldar — 2012-02-06T01:56:05-06:00

Of the controversy surrounding Mitt Romney's profession that he isn't "concerned about the very poor," Stephen F. Hayes of the Weekly Standard artfully explains a rather subtle but important reason why "movement conservatives" were dismayed.

They understand, of course, Romney's full intentions and the entire context of the remarks. And like Romney himself, movement conservatives contemplating Romney as the potential GOP nominee wish he could better repress these self-inflicted rhetorical wounds; his considerable communication skills are offset heavily by something of a tin ear.

Yet even leaving these issues to one side altogether, movement conservatives reacted to Romney's in-context argument with disappointment, according to Hayes, because Romney

seemed utterly unaware of a long strain of conservative thought on the morality of capitalism. He seemed oblivious to the argument — central to the conservative movement — that free markets allow the poor to transcend their position, that poverty is not destiny....

This was, in other words, an opportunity that Romney missed, one in which he could have made a compelling pitch for why even the poor ought prefer Obama's defeat. Hayes continues:

But [Romney] received some help from Marco Rubio, who had shared his own story in the Republican response to the president’s radio address a week earlier.

“My father was a bartender,” Rubio said. “And I thank God every night that there was someone willing to risk their money to build a hotel on Miami Beach and later in Las Vegas where he could work. I thank God that there was enough prosperity in America so people could go on vacation to Miami or Las Vegas. Where people felt prosperous enough to have weddings or Bar Mitzvahs and, by the way, could leave tips in my Dad’s little tip jar. Because with that money he raised us. And he gave me the opportunity to do things he never had a chance to do.”

I think Hayes gets it about right when he concludes:

If Romney wants to return to Tampa to accept the GOP nomination, he would do well to spend more time before then with Rubio. And maybe, in a more formal way, afterwards.

That much seems a realistic hope, I think. It's sad, but probably true, that a key reason why Romney is so obviously uncomfortable about his own wealth and success in particular — and perhaps so uncomfortable in his own skin more generally — is that he hasn't internalized and committed to this morality of capitalism. I'm sure Romney understands the theory; on other occasions I've heard him articulate it well (if perhaps too dispassionately for my tastes). But to curtail these sorts of awkward gaffes and turn them into something which could help him win November if he's the GOP nominee, Romney would need to claim, own, and release his own embarrassment over, his own successful striving to achieve the American Dream.

That is probably not a realistic hope, however; and thus the potential importance to Romney, as it was to McCain, of a Veep nominee who can help him mend fences, rally the faithful — and yes, preach the morality of capitalism.

Duty, breach, and bottle rockets

Beldar — 2012-02-04T15:15:13-06:00

Librarians, taxonomists, cartographers, philosophers, priests, lawyers — many professions categorize things, trying thereby to define and explain them. One of the first times I got a sense of the sweep of the law, and its elegance, was when I learned the definition of "tort."

A tort is a noncontractual civil wrong.

A client, Paul, comes to a lawyer and says, "Doug hurt me and I need justice!" Paul's lawyer must not only decide what he can do for Paul, but what sort of law will be involved in getting Paul the relief he seeks from Doug. How did Doug come to hurt Paul? Was a contract involved? No? Was a crime committed? No. Then it must have been — a tort!

As legal reasoning goes, this is roughly the equivalent of the great chef boiling a pot of water: basic, basic.

Of course, Paul's and Doug's respective obligations toward, and rights against, one another depend on their respective positions and relationship. If Doug was Paul's next-door neighbor in a condo complex, Paul may have different expectations of Doug than if Doug had been, say, a business competitor from another continent. But one of the law's lowest common denominators — and therefore one of law's most commonly applied classifications — is simply that of the "reasonable person" who coexists with other reasonable people in the society subject to our laws. The civil law — tort law in particular, and negligence law even more particularly — implies a duty upon each of us, as a reasonable person, to use due care not to harm the people or property with which we interact. If one breaches that duty, one has committed the tort of negligence.

When tort lawyers plead their clients' cases in written petitions to the relevant court, then, those lawyers have, for centuries, been careful to touch all these bases: duty, breach, resulting injury.

And such is the magnificence of the law that almost anything you can imagine a person doing that might hurt some other person — so long as we're not talking crimes or contracts — can be dealt with through civil tort law. It's all about how you frame the legal issues to fit your particular factual setting, and, in particular, how you identify the relevant duty, breach, and injury.

That, I think, fully explains this case, in which the plaintiff alleged that the defendant owed, and breached, a duty to use reasonable care "not to fire bottle rockets out of his anus."

That would be the defendant's anus; sorry for the imprecision, but of course you can imagine a slightly different set of facts where a parallel duty and breach might arise with respect to the plaintiff's own anus. Law professors delight in setting up factual hypotheticals like this, and then selectively varying one fact at a time to see when and why the outcome might change. At some point during the variations on this particular hypothetical, there's a near certainty that flying monkeys will become involved.

Majestic and subtle is the law. Isn't it? (Hat-tip: InstaPundit.)

Beldar congratulates the PhilBob & bride

Beldar — 2012-02-04T01:56:22-06:00

I didn't have the famous Philip Bobbitt as a professor at UT-Law. But when I was the book review editor for the law review, he was one of my favorite faculty resources — good-naturedly sharing on request (and my requests were frequent) his opinions about which just-released books were worth reviewing and who, among the law faculty members of the country's best law schools, might be an appropriate target for us to solicit to write a particular book's review. He never steered me wrong. Indeed, I'm confident that "You should talk to Bobbitt, a lot" has been advice handed down to generations of incoming Texas Law Review book review editors by their immediate predecessors.

A gregarious intermingler with the law student body, it was common to find Professor Bobbitt sharing (and occasionally even buying) pitchers of beer at the Posse-East near the law school. And when I was touring Europe after graduation and clerkship with a fellow UT-Law grad, my late and dear friend Craig Youngblood, we dropped in — unannounced, or maybe announced with a phone call that resulted in an immediate invitation, but in any event on little or no notice — on Prof. Bobbitt at his summer flat in London, where he served us a quite passable afternoon tea. (My recollection is that we talked about the then-just-concluded SALT-II missile treaty, which is to say, by the end of the session Craig and I had learned a great deal about an important topic on which we previously had known essentially nothing.)

Professor Bobbitt is a vivid individual, the sort of person who's clearly remembered decades later by even those who, like me, had only a somewhat passing acquaintance with him.

I was pleased, then, to read this charming tale of his recent courtship and new marriage. (Hat-tip Prof. Kenneth Anderson at the Volohk Conspiracy.)

Congratulations and best wishes to Philip Bobbitt and his new bride, Maya Ondalikoglu Bobbitt!

Beldar on "code words" arguments

Beldar — 2012-01-30T23:51:33-06:00

From time to time, I've had occasion to say something nice about leftie pundit Juan Williams, even though I rarely agree with him about matters of politics or national policy. I was, accordingly, disappointed to read an op-ed from Mr. Williams entitled "Racial code words obscure real issues" (hat-tip Patterico). Mr. Williams is off into paranoid fantasy land by the essay's third paragraph:

The language of GOP racial politics is heavy on euphemisms that allow the speaker to deny any responsibility for the racial content of his message. The code words in this game are "entitlement society" — as used by Mitt Romney — and "poor work ethic" and "food stamp president" — as used by Newt Gingrich. References to a lack of respect for the “Founding Fathers” and the “Constitution” also make certain ears perk up by demonizing anyone supposedly threatening core “old-fashioned American values."

My take (consistent with a comment I left at Patterico's):

Any argument by John which relies on the premise that Mary is using “code words” is intrinsically insulting to Mary, and instantly reveals John to be arguing in the worst of egotistical bad faith. If anything Mary says can be reinterpreted at will by John, then John might just as well be engaged in a monologue, and Mary is completely superfluous to John's self-stimulation.

The Somalia rescue

Beldar — 2012-01-26T07:15:00-06:00

I put aside for today the many faults I find with President Obama's handling of military and foreign policy, in order to state clearly and without further dilution the following:

God bless and keep the United States Navy and those Navy SEALs — again! — and everyone else in the military, intelligence, and diplomatic communities who in any way contributed to the successful rescue of American Jessica Buchanan and a Danish man, Poul Hagen Thisted, from kidnappers in Somalia. Due credit goes to President Obama at the top of that chain of command. His decision to authorize this, like the authorization of the bin Laden raid, was correct and fully justified.

That is all. Carry on.

Did Gingrich, in 1986, attack Reagan for "weak policies" that were "clearly failing" in the Cold War?

Beldar — 2012-01-26T07:00:00-06:00

Remind me never to get on the wrong side of Elliott Abrams, who clearly has a long memory and holds a grudge. Nevertheless, if these purported quotations of then-mere-member Newt Gingrich criticizing Ronald Reagan in the mid 1980s are accurate and in context — I'm not vouching for them and haven't checked, so that's a sincere and substantial "if" — then those quotations may affect some opinions among the conservative faithful of 2012.

I'm surprised that Mr. Gingrich can still surprise me, but this did. (Hat-tip Betsy's Page via Maetenloch at Ace's.)

Beldar endorses Ted Cruz for the U.S. Senate from Texas

Beldar — 2012-01-24T00:51:48-06:00

I meant to post something along these lines many weeks ago, but — better late than never — this will confirm my enthusiastic endorsement of Ted Cruz in the upcoming Texas GOP primary race for United States Senator, to fill the seat being vacated by Sen. Kay Bailey Hutchison.

Ted is someone who first came to my attention during the Texas redistricting litigation in 2003-2004, and he did a genuinely remarkable job as Solicitor General for the State of Texas from 2003-2008. In that capacity, he was the chief appellate lawyer for the State of Texas before the U.S. Supreme Court and all the state and federal appellate courts. And he has been simply superb in every aspect of that job, including briefing and oral argument on several blockbuster SCOTUS cases. He's already been a genuine hero as a public servant; his conservative instincts and principles are thorough-going and deeply rooted in a compelling personal history; and I have no doubt that he can bring that same level of excellence, that same earnest public servant's heart, on behalf of the people of Texas when he's in the U.S. Senate.

I have no ax to grind with two of Ted's three primary opponents. Lt. Gov. David Dewhurst has been an effective leader in an important job, and former Dallas mayor Tom Leppert has earned his fans. (I have a hard time taking the fourth candidate, former SMU running back, ESPN sportscaster, and political rookie Craig James, very seriously as a candidate for this important an office.) I expect there will end up being a run-off between Cruz and Dewhurst, and that's fine.

But I commend to you Brian Bolduc's cover-story on Ted in a recent issue of National Review to help you understand why Ted Cruz is among the up-and-comers of the GOP on the national stage. This is a strategic vote, one that Texas conservatives should make not just for now but for the future.

Ted Cruz simply scares the hell out of the far-sighted strategists of the national Democratic Party, for the very best of reasons. The Angry Left website Think Progress, for example, labels Cruz a "radical" candidate with "fringe constitutional theories" — hysteria they reserve for conservatives who genuinely threaten them the most, whether in the halls of the SCOTUS or on the campaign trail.

I've contributed to Ted's campaign and encourage others to consider doing so. Indeed, I'll be running an unpaid side-bar link to his campaign website throughout the primary season and, I hope, through the general election. Good luck, Ted! I know you'll do us proud.

In 9/0 ruling, SCOTUS smacks down 3-judge federal court that redrew Texas' Congressional districts; stresses state government's superior role over federal courts in determining the interests of Texas citizens

Beldar — 2012-01-20T21:43:01-06:00

I've just read today's unanimous, per curiam (unsigned) opinion by the United States Supreme Court in Perry v. Perez. The media reports I've read so far are, unsurprisingly, either clueless or filled with Democratic Party spin (but I repeat myself), and they're working hard to paint this as some kind of "split" or "mixed" result in which the SCOTUS produced something for both sides to like and both sides to hate.

That's wrong. This is an amazing decision that, fairly interpreted, was a brutal smack-down of a special three-judge federal district court. And the smack-down was delivered because that court had thoroughly ignored the wishes of the voters of Texas — as expressed by their duly elected representatives in the Texas House, the Texas Senate, and the Governor's Mansion — about how to redraw Texas' electoral maps to accommodate the 2010 Census results, in which four additional seats in Congress were apportioned to Texas.

This whole area of the law is highly technical, with a complicated and sometimes internally inconsistent set of judicial, legislative, and historic precedents involved. So even though this opinion is comparatively short and clearly written, it's rough sledding for most non-lawyers to follow, especially when one starts getting into the tall grass of mandatory direct SCOTUS jurisdiction, Section 5 preclearance requirements of the Voting Rights Act of 1965, and relative standards of proof in preliminary injunction hearings. But here's how the opinion tees up the stakes and the big-picture issues:

[H]ere the scale of Texas’ population growth appears to require sweeping changes to the State’s current districts. In areas where population shifts are so large that no semblance of the existing plan’s district lines can be used, that plan offers little guidance to a court drawing an interim map. The problem is perhaps most obvious in adding new congressional districts: The old plan gives no suggestion as to where those new districts should be placed. In addition, experience has shown the difficulty of defining neutral legal principles in this area, for redistricting ordinarily involves criteria and standards that have been weighed and evaluated by the elected branches in the exercise of their political judgment....

(Even casual students of voting rights cases like me can appreciate the ironic understatement of that last sentence. Indeed, it's been so hard to find "neutral legal principles" that even the Supreme Court has frequently fragmented into multiple small voting blocs in these cases, quite commonly failing to produce any single written opinion that speaks for a majority of the Court. This is the kind of droll observation that John Roberts, as Chief Justice, can put in without it bugging any of the left-leaning Justices enough that they ask him to take it out, and one or two of them aren't completely humorless anyway.)

The Supreme Court continues:

... Thus, if the old state districts were the only source to which a district court could look, it would be forced to make the sort of policy judgments for which courts are, at best, ill suited.

To avoid being compelled to make such otherwise standardless decisions, a district court should take guidance from the State’s recently enacted plan in drafting an interim plan. That plan reflects the State’s policy judgments on where to place new districts and how to shift existing ones in response to massive population growth. This Court has observed before that “faced with the necessity of drawing district lines by judicial order, a court, as a general rule, should be guided by the legislative policies underlying” a state plan — even one that was itself unenforceable — “to the extent those policies do not lead to violations of the Constitution or the Voting Rights Act.”

So you don't throw out democracy and mount a judicial coup d'état just because some small part of a redistricting map is, or might be, problematic. Instead, to paraphrase today's opinion, what the Legislature passes and the Governor signs — what Texas' own duly elected government does for itself in the exercise of its solemn duties under both the state and federal constitutions — should, as much as possible, trump federal judges who think it's their job to just dive in and fix whatever they think they can improve upon.

After more analysis along these same lines, we get to the meat of the decision, which also conveys the smack-down (citations omitted, boldface, highlighting & first bracketed portion mine):

In this case, the District Court [that comprehensively redrew the Texas Legislature's map] stated that it had “giv[en] effect to as much of the policy judgments in the Legislature’s enacted map as possible.” At the same time, however, the court said that it was required to draw an “independent map” following “neutral principles that advance the interest of the collective public good.” In the court’s view, it “was not required to give any deference to the Legislature’s enacted plan,” and it instead applied principles that it determined “place the interests of the citizens of Texas first.” To the extent the District Court exceeded its mission to draw interim maps that do not violate the Constitution or the Voting Rights Act, and substituted its own concept of “the collective public good” for the Texas Legislature’s determination of which policies serve “the interests of the citizens of Texas,” the court erred.

Wait, wait ... You don't think that's a smack-down? You expected maybe something snarky, maybe something like Justice Beldar would have written?

Actually, the dry and unemotional language used here again makes me think that Chief Justice Roberts is the likely unacknowledged author. Regardless, here's my translation, in plain English and without the restraint with which judges talk about each others' screw-ups in print:

Whoa! Just WHOA now! Just who do you three judges on the special district court think you are? Who made you the boss of the Texas state government and Texas voters? You're not!

And you may think that you have some judicial Magic 8-Ball which tells you what's best for the citizens of Texas, but we have these Constitutions — one federal, one state — which actually limit your whole role in this fight to way, way, way less than you guys think you're supposed to be doing. So cut it out, right now!"

The rest of the opinion mostly comprises specific examples of things the three-judge special district court got absolutely wrong because they thought, at least in this particular case, that they were philosopher-princes who rule the cosmos instead of federal judges. (Umm, again, that's Justice Beldar's characterization, not from the per curiam opinion itself.)

So this case is already going back, in a big hurry ("judgment shall issue forthwith," sez the SCOTUS, so no motions for rehearing or such), to the special three-judge district court. Their job — now that their attitudes (and legal standards) have been appropriately readjusted — will be to take the map passed by the Legislature and signed into law by the Governor, and to then make the absolute minimum number of changes that are absolutely necessary to fix, temporarily (for 2012 only), only those specific things that the plaintiffs in the case actually demonstrate to be pretty darned likely to be found illegal or unconstitutional.

That's likely to end up looking an awful lot, then, like what the Legislature passed. And that means the Democrats have lost this round in Texas for all practical purposes.

But do you want to know what actually got my motor racing the most when I read through this per curiam opinion? It was this (bracketed portions mine):

This Court recently noted [in the Northwest Austin MUD No. 1 v. Holder case, a 2009 Roberts opinion,] the “serious constitutional questions” raised by [Voting Rights Act] §5’s intrusion on state sovereignty. Those concerns would only be exacerbated if §5 required a district court to wholly ignore the State’s policies in drawing maps that will govern a State’s elections, without any reason to believe those state policies are unlawful.

Friends and neighbors, that's what my tenth grade English teacher at Lamesa High School, Mrs. Koger, trained me to recognize as "dramatic foreshadowing." And since I would very much like to see the SCOTUS agree that it's now time to quit presuming, as a matter of federal law, that today's Texans are racists just because 1965's Texans were racist, I'm very eager to see this play out.

The four liberal Justices likely read that same paragraph, though, and thought (to themselves; they wouldn't quibble about this with the Chief, or decline to concur over it): "Yeah, we'll just see about that when the time comes." But the Beldar SCOTUS Tea-Leaf-o-Matic™ says Chief Justice Roberts is signaling that he has the votes for what will be a monumental decision in American constitutional law and, indeed, American history.

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UPDATE (Fri Jan 20 @ 10:30pm): The PBS NewsHour actually does a pretty good job reporting this story, in large part because they interviewed and relied upon election law expert Rick Hasen. Prof. Hasen has been very gracious in some previous blog discussions with me about Texas redistricting. He's a reliable leftie, but he's wicked smart, and he tries to be (and mostly succeeds in being) intellectually honest (even when he's wrong). Prof. Hasen also picked up on the broader Voting Rights Act implications. The NewsHour headline (which Prof. Hasen links and republishes without demurrer on his own blog): "Supreme Court Ruling on Texas Electoral Maps 'Huge Setback' for Democrats." And yes, that's exactly right.

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UPDATE (Sat Jan 21 @ 3:10pm): The Wall Street Journal's editorial page also mostly gets this story right, including the implications for future litigation on the continuing constitutionality of Section 5, in "Holder's Texas Defeat: The Supremes deliver a unanimous drubbing on redistricting." (But you won't learn anything there I didn't already say here; and the Journal's admirably concise telling leaves out some details I tend to savor.)

A lot of the other commentary I'm reading about this decision completely misses the parts of the opinion in which the SCOTUS stressed that there can't be any map re-drawing without the required evidentiary showing of a legal violation to justify it. Even some conservative bloggers I've read seem to be assuming that the three-judge court can still produce, if it's so inclined, another map that suits the Democrats better than what the Legislature passed and the Governor signed.

That is emphatically wrong. For that to happen, at least two of the judges of the three-judge special court would have to publicly defy the SCOTUS. The last time something like that happened on a really important case was in 2000, when the Florida Supreme Court pointedly ignored the SCOTUS after the SCOTUS had already said, "Hey, you can't do that, so cut that out, and don't make us come down there and smack you!" The Florida court's institutional reputation has still not recovered, and the reputations of the individual judges who'd led the defiance simply vaporized because they were exposed as lawless partisan hacks.

No, sir or ma'am, these three judges will indeed now understand that every single alteration they make from the Texas Legislature's map is going to be scrutinized under a SCOTUS microscope. Indeed, they've been given a list of specific (and otherwise likely) screw-ups that they have been publicly warned not to repeat. And the whole point of this unanimous, per curiam opinion was to send an unambiguous set of directives: There are no concurrences or dissents to muddy the water, and these three judges now know that what they did the first time couldn't find a single supporter on the SCOTUS. Repeat: these judges couldn't get so much as a kind word even from Justice Ginsburg, the long-time general counsel of the ACLU, on this one. That's such a harsh reality that it can't escape notice.

So these three judges would have to be utter fools to defy the Supreme Court. As I wrote in a comment below, there's no shame in being reversed, nor even in being reversed by a unanimous SCOTUS. There is, though, shame in being reversed twice in the same case on the same issues; and these three judges are going to take lots of care to see that doesn't happen.

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UPDATE (Sat Jan 21 @ ~5:00pm): This post is a fine example of why I complimented Prof. Rick Hasen for trying to maintain his intellectual honesty despite his partisanship. He admits to having "gotten a fair bit of pushback that the outcome after remand is far less certain" after his description of yesterday's decision as a "big win for Republicans." But he gives three reasons for why he "think[s] it is unlikely that whatever maps come out of the Texas court (and face a possible second emergency appeal to SCOTUS) are not likely to be nearly as good as the maps which came out now." (By "good," Prof. Hasen means, "pro-Democrat.")

His first and third points, I've already made here. He's correct that it's the Texas Legislature's maps, "(rather than starting from scratch maps) which will govern what the final maps look like." He's also correct that "The three-judge court is likely to be chastened by the unanimous Supreme Court decision."

His second point amplifies on something I've noted in a way that I think is also probably correct (emphasis mine):

In drawing those maps, the Supreme Court went out of its way not only to say that the three-judge court should not deviate from Texas’s plan any more than necessary to solve any constitutional/voting rights violation. The Court specifically pointed out that the court should not draw any minority coalition districts to achieve voting rights results. This makes it more likely that the majority-minority districts will have more minority voters in them and will not lead to the creation of extra Democratic seats.

I'm sure Prof. Hasen would protest and disagree, but I respectfully submit that that paragraph contains an inescapable but implicit acknowledgement that what this is all about is partisan politics, not remedying of racial discrimination. And its premise is that only Democrats can reflect the views of minority voters — an offensive and, indeed, a racist premise. (Again, he would protest and disagree.) But as always, the Dems want to win in federal court what they can't win at the electoral polls. They haven't won a state-wide race in Texas since 1994, and they've lost their majorities in both chambers of the Legislature, because Texas voters have rejected them — repeatedly, comprehensively, at every level and despite all their class- and race-warfare. The likely composition of the Texas Congressional delegation in January 2013 will now, correctly and fairly and legally, reflect that rejection.

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UPDATE (Sun Jan 22 @ ~5:40pm): I thank Prof. Hasen for this gracious cross-link to this post. (I'd sent him an email "ping" as a courtesy since I don't think his blog uses trackbacks and his comments are disabled.) In it, he writes (briefly, and not tendentiously but, I hope, with good humor):

For the record, I hardly think it racist to note that minorities, especially African Americans (but aside from Cuban-Americans in Florida) tend to vote for Democrats by very lopsided margins.

To which I'd respond, not quite as concisely:

Of course it's not racist to merely note it, especially as history. But it's a racist judgment (i.e., an act; I'm not indicting people but rather conduct and decisions) to assume or presume that so it must always remain. And partisan race-based politics is an illegitimate basis to strip state legislatures (and, ultimately, their constituents) of their constitutional rights and obligations to redistrict. In Chief Justice Roberts' inarguable formulation: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

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UPDATE (Sun Jan 22 @ 8:10pm): Concision is definitely something I lack, but I haven't vented about this for a few years. So, expressed slightly differently:

1. Democrats believe as a matter of political faith that, by definition, their party includes no racists and can commit no racist acts; rather, Democrats are merely people who insist that government, and especially the federal courts, trample democracy to reorder society (including Texas' Congressional districts) in order to dictate winners and losers on the basis of skin color. Nuance: I learnt it from that "Animal Farm" book ("four legs good!").

2. (a) Partisan gerrymandering is one of democracy's most unappealing, raw aspects. Democracy itself is a terrible system of government with many historically demonstrable failings, redeemed only by the fact that it's nevertheless the least worst form of government ever yet invented and implemented.

(b) The Democrats are complaining bitterly that in the Texas redistricting, Republicans discriminated against Democrats and in favor of Republicans. Well, duh. That's not disputed; that is the essence of gerrymandering, which is about sorting voters into districts based on how those voters are likely to vote. Every alternative to gerrymandering comes at a cost to small-d democracy; I haven't yet seen one which was worth that, and I don't believe any such alternative exists. The Founders' decision to put the responsibility for redistricting at the most organic, grass-roots level of government, the state legislatures, was indeed a choice of the least-worst alternative.

(c) However, proof that Republicans simply discriminated against Democrats also wins them no relief in federal court. So Democrats have to engage in this fiction that by discriminating against Democrats, the Republican majorities in both chambers of the Texas Legislature and the Texas Governor were all actually discriminating against racial minorities.

(d) That's counter-factual; the Democrats claimed that in 2003-2004 too, and were ultimately laughed out of court because all they had to support those claims was wild speculation and innuendo.

(e) In fact, neither Republicans nor Democrats have any need to discriminate anymore on the basis of so crude and statistically inaccurate metric as race. They can draw more useful, better-gerrymandered maps using other, much more precise data on who's likely to vote Democratic and who's likely to vote GOP.

(f) Nevertheless, absent actual evidence of discrimination on the basis of race (which doesn't exist, because that's not what's been happening), the Democrats' proof of an alleged voting rights violation depends entirely on their ability to win a purely legal argument (unmoored from evidence) that conflates "Democrat" with "racial minority." Without that presumption and assumption, their legal position falls to pieces, and is exposed as an accusation that Republicans are (gasp!) political.