The Right Coast

Editor: Thomas A. Smith
University of San Diego
School of Law

A Member of the Law Professor Blogs Network

Friday, March 30, 2012

Roger is keeping himself busy
Tom Smith

"Roger", that CIA guy, is keeping himself busy.

March 30, 2012 | Permalink | Comments (0)

A tax on the stupid
Tom Smith

Lottery fever is sweeping the nation. I guess that's fine.  For most people it's a harmless source of amusement.  I think most people would not buy lottery tickets except that they cannot really conceptualize the vanishingly small probabilities involved in actually winning.  Some commentators have tried to inform folks.  You have a better chance of being struck six times by lightning and surviving each, one said.  A greater chance of being killed by space debris (riskier than I had realized, one chance in mere thousands said the talking head).  Somebody has to win, people say, as if that somebody could really be them.

It's a shame in some sense to see what are rather attractive traits, such as optimism, energy, and belief in one's own luck, so systematically exploited. I gave up buying lottery tickets when I realized I could fantasize about being rich perfectly well without them, and save a little money at the same time.  Some self-help book LWJ read years ago opined that fantasizing about being rich was bad for your soul, which it probably is, but it's cheaper than buying lottery tickets.

March 30, 2012 | Permalink | Comments (5)

Uncontacted tribes
Tom Smith

Very cool website.

March 30, 2012 | Permalink | Comments (1)

Decline and Fall
Maimon Schwarzschild

A friend at a law firm describes how big, apparently successful firms collapse:

"What appears to happen in these places when they go under is that a greedhead partner earns say $1.8 million in one year but only $1.3 million the next. One would think that life would go on somehow. But the greedhead gets angry. He feels "misled" by the Managing Partner who expressed optimism about the year to come at the Partners Retreat in Hilton Head the previous March. The MP may have been influenced by the sunset or the gin and tonic. But he is not forgiven. The angry partner talks to like minded greedheads who joined the firm when he did, just before the 2008 crash, when they all received large two year guarantees. They turn mutineer. Secret lunches are held, then evening meetings around someone's deck or swimming pool. Then they suddenly decamp for another firm, which also takes on debt to pay a new set of guarantees, to be paid for by promised "synergies" which may or may not occur. But their old firm still has to pay rent on their offices and other overhead. The trade and mainstream press covers the story. The headhunters call. The vultures circle. Others panic and leave. A death spiral sets in. Moral (if any): I do know that I consider debt the root of all evil."

This sounds right to me. It's worth considering carefully whom you're going to practise law with.

March 30, 2012 | Permalink | Comments (0)

Thursday, March 29, 2012

The flexibility doctrine
Tom Smith

Words fail one.

March 29, 2012 | Permalink | Comments (1)

Mass judge mangles First Amendment
Tom Smith

Here.

March 29, 2012 | Permalink | Comments (0)

Pope gets bad review from Cuba
Tom Smith

This is unfortunate.  Not how JPII would have handled it, I bet.

March 29, 2012 | Permalink | Comments (0)

Jonathan Chait thinks conservative justices are nuts
Tom Smith

I have not been following closely the liberal commentariat's discussions of the ObamaCare case before the Supreme Court just because I have doubted it would be very educational to do so. But for some reason this piece by Mr. Chait caught my eye.  Surely this must be an odd situation?  Though in reality, I realize, not really.  A writer that even I have heard of, writing for a major magazine, makes the claim that the whole entire wing, or subset, of the legal profession, which includes perhaps a majority, but anyway almost certainly at least 40 percent of the Supreme Court, many practicing lawyers, quite a few (if far less than a majority of) law professors (including me) and, if recent polls are to believed, about 60 percent of the American people, is not just incorrect in their legal views of the constitution, but completely unhinged, nuts, crazy, just wildly and bafflingly wrong.  Gosh, this is a fellow who is very confident indeed of his constitutional theories.

Whence this confidence?  Well, I see he is a graduate of the University of Michigan, one of the great public universities.  I do not see that he went to law school, which would at least have given him the chance to learn about the Constitution, though hardly insured sadly that he would have done so.  I am not seeing any history of profound research about our fundamental law, however.  Hmmm. Well.  That would make high confidence much easier to attain.

I for one think the issues before the court in Florida v. HHS are in fact profound and anything but easy.  (I don't see how anyone could listen to the oral arguments and think otherwise.) One way to think of it might be to say that our republic has reached a point where it may have to make a choice, via its supreme judicial body, whether a certain core limitation on the powers of the federal government will be left behind as a sort of residuum of political and legal evolution, or to the contrary kept and propped back up as something that we intend to keep as essential to our form of government. The argument that if Congress can compel an individual to buy something, even something as specialized as a health insurance policy, as an exercise of its power to regulate interstate commerce, it would in fact then have a plenary police power of a sort traditionally understood only to belong to the states, is not a trivial argument in the least. To the extent it has not been entertained seriously in some, perhaps most elite law schools, that is because those faculties, for reasons having more to do with their own politics than with the Constitution, just would not allow it to be entertained on their premises.  But the failure of a particular academic view to triumph over the legal profession and the judiciary is not evidence that the lawyers and judges are nuts. The nuts, dare one suggest, might be found more abundantly in the academy and the journalists who take their views as gospel.  Look, long ago I walked out of a class at the Yale Law School when I realized that the point of the class was to advance the view that the owner of a private book store -- this was the whole point of the class, mind you, not just some throw away suggestion -- should not be permitted under the First Amendment to sell just whatever books the book store owner wanted to and only those.  No, under the First Amendment the government had the power to tell him what he could and could not sell.  Seriously. You could say I should have stayed in the class to broaden my mind, but trust me, I was getting this sort of thing just by breathing the air.  While there might have been something self-consciously daring in the most oliagenous academic sense about taking this view, there was nothing remotely shocking about it at that time and place.  But the seminar I took from Judge Bork (for whom thank God) at which he suggested the Constitution should perhaps be read rather like we would read a contract, first on the basis of the plain meaning of its words and then according to what we could figure out about what the people who wrote it were trying to say, well, that really was daring, as the frosty reception he got from his colleagues indicated. To understand this world, you almost have to be Alice, and to be governed by its rules would be like being a subject of the Red Queen. One of its indignities is that you have to tolerate being called crazy.

It is part of the problem in which we find ourselves that someone like Chait, through no fault, or more fairly perhaps, little fault of his own, can maintain in good faith, as he probably could, that he has spoken to many luminaries at Harvard and Yale and the rest, and they have all told him, and they probably have, that no sensible person could possibly think that Congress's being given just a power to regulate interstate commerce somehow limits it merely to the power to, well, regulate what some fellow circa 1790 would think of as interstate commerce.  It is so much, much more than that!  This is what the worthies have settled on and the rest of us, even up to a majority of the people and maybe even the Justices of the Supreme Court, just have to live with it.  Chait probably has spoken to these folks and this is probably what they have told him.  He's probably not entirely to blame.

There are different ways to deal with this peculiar situation.  One would be to try to convince somehow or other this particular legal academic elite that they should consider that they might be wrong.  You could beg them "in the bowels of Christ" as Cromwell did the Scots , to "think it possible that [they] may be mistaken." But that would be a complete waste of time, and would also deeply offend their secular sensibilities. The polite and the charitable thing to do, I think, is to let them, like a loud party being carried on in the basket of colorful hot air balloon, just float gently away, to where one knows not, while the rest of us stay behind and figure out how we ought to govern ourselves under our stubborn, old Constitution.  If it comes to this, as I hope, it would be indeed a remarkable thing.  It would be a remarkable thing, and a cause for great celebration and gratitude, if instead of liberating power from the Constitution, the whole objective of what you might call progressive constitutional law and theory, this party instead liberated itself from being relevant except to itself.  It would be a great and unexpected victory for the permanence, the vitality, the rule of law.  

March 29, 2012 | Permalink | Comments (3)

The ObamaCare Reckoning
Tom Smith

A good WSJ editorial.

I am unexpectedly encouraged by the tenor of the oral arugments as I have heard them reported and on the basis on listening to the second day of arguments.  I wish this all did not turn on what Justice Kennedy decides, but there it is.  Perhaps he shall have to retire and listen for that small, still voice of the median voter.  He at least seems to get that requiring people to enter commerce in order to regulate it would amount to an important, even "fundamental" expansion of federal power quite beyond anything imagined before the progressive remodel of the Constitution which introduced the philosophical equivalents of formica, shag carpeting, cheesy track lighting and prohibitive heating bills.

I feel some sympathy for Justices Breyer and Sotomayor.  One can hardly blame them for thinking that it is rather later in the day to begin worrying about expansions of federal power. One did get the feeling that it would be difficult to come up with something that Breyer would think the federal government could not do under his preferred reading of the commerce clause. He might be the first person I have ever heard who managed to sound both like a voice in the wilderness and really self-satisfied at the same time.  Maybe it takes years at Harvard to perfect that.  

If the court really does strike down ObamaCare on commerce clause grounds, it will truly be a watershed moment in American constitutional history, which is a reason for suspecting it won't happen, but one dares hope.  Whowouldathunkit, a constitutional moment (Professor Ackerman, call your office!)  in my lifetime, and one that would be good, rather than bad.  I would have to revise my whole Weltschmerz weltanschuuang (maybe that should be one word? Or is there a better term?), but I would be happy to do it. I would have to resist feeling too much schadenfreude (sorry) at the liberal (is there a German word for a great and widespread shitting-of-bricks?  It seems like there should be) that would follow, indeed is already beginning. Anyway, I give the future of American constitutional government even odds, better than in a long time. But one should not get one's hopes up too much.

March 29, 2012 | Permalink | Comments (4)

Tuesday, March 27, 2012

Obama's secret plea to Russia is a big deal
Tom Smith

If I saw this story on World Net Daily, Free Republic or some such place, I would just assume it was the product of some right wing fever dream.  Oh come on --  The President of the United States says to the President of Russia, whose office he is about to  hand over to a former KGB thug (whose little bitch he is), on whose hands the blood of who knows how many journalists and human rights activists is still wet -- says, in effect, yeah, I want to weaken our defenses, but you really have to give me some time to do so -- the crucial thing is to wait until after the elections.  Well, I just wouldn't believe it.  I would honestly not think even our current young President was capable of this.  If Obama were the president of a public corporation and he was referring to his shareholders rather than to the people of the United States, is there any plaintiff's attorney who could not just tear him apart for disloyalty?  No, forget that.  He would be forced to resign;  the shareholders would just have him out.  

Who exactly is the President supposed to be representing when he speaks to the Russians?  I thought, well, us.  To speak as he evidently did (is anyone claiming Obama did not really say the words attributed to him?  That they are somehow out of context?) suggests not so much, or rather just, weakness, as a profound failure to understand where he is and whom he is dealing with, a man way, way out of his depth, and whose heart is not even in the right place, not remotely.  Let's be clear -- Putin is a mass killer, a tyrant and demagogue with nothing like a normal human conscience, one of the last products of one of the most vile and feared (and rightly so) secret police machines in the history of the world, who has at his disposal a nuclear arsenal more than adequate for destroying life on earth, a man who longs for the days of the great Soviet empire, and who has no love for us, or freedom, or anything evidently besides his own power and grotesque ego.  A deeply evil, profoundly dangerous man.  So Obama proposes to run a game with him against the American people, as if he and Obama both know better what is good for America and its security than what the American people would themselves, in sacred spaces of our voting booths assembled, countenance?  Just Putin-and-Obama's little secret? As if the terrible Republicans and various bitter clingers are less to be trusted than the ruthless Czar of a decaying empire? I mean, WTF?  What does this say about our President's view of our, you know, the American, form of government?  Perfect it ain't, but surely it deserves more respect than this, to be held in mutual disregard before a bloody tyrant's errand boy?  What, like they can both agree what ridiculous bothers elections are, just one tyrant who holds the ruled in contempt to another?  This is honestly just horrible.  Not funny, just really alarming and upsetting.  Who is this guy?  What have we done?  For all that I think Obama has been a disastrous President, I would simply never have suspected he was capable of expressing this sort of sentiment about us to our at best near-enemies.  Not in a legal sense, but in a moral sense, isn't it sort of, well, a betrayal?  A word I hesitate to use, because it's one much loved by nut cases, but it seems disturbingly appropriate, and if overstated, only by a distressingly small margin.  That his words seem to come from his lips so casually suggests to me merely that the President lacks moral depth.  I feel like we've elected an atheist as Pope.

Unless this turns out to be some sort of confusion, that there is some (I can't imagine what) unrevealed context that explains his words, then one really must conclude he is unfit for his office.  Someone who evidently takes this attitude toward democracy and his office has no business being where he is.  How could one possibly think, given this, that he is fit for our trust, we whom he seems to hold in such contempt?  Still, I don't underestimate his supporters ability to brush it aside.  "Whatever" covers a lot of ground. 

March 27, 2012 | Permalink | Comments (10)