Sunday Legal Musings

And Also: Jeff Francoeur's tenure started fairly well.

David Garrow's Liberty and Sexuality led me to Pavesich v. New England Life Insurance (1905), which might be the first court that expressly spoke of a "right to privacy," even speaking about the due care that should be practiced with newly applied rights. It involved a tort claim for unwanted publicity, but it set forth broad principles. A taste:

The individual surrenders to society many rights and privileges which he would be free to exercise in a state of nature, in exchange for the benefits which he receives as a member of society. But he is not presumed to surrender all those rights, and the public has no more right, without his consent, to invade the domain of those rights which it is necessarily to be presumed he has reserved than he has to violate the valid regulations of the organized government under which he lives. The right of privacy has its foundation in the instincts of nature. It is recognized intuitively, consciousness being the witness that can be called to establish its existence. Any person whose intellect is in a normal condition recognizes at once that as to each individual member of society there are matters private and there are matters public so far as the individual is concerned. Each individual as instinctively resents any encroachment by the public upon his rights which are of a private nature as he does the withdrawal of those of his rights which are of a public nature.

First principles are helpful when considering the true breadth of the National Surveillance State and governmental power generally so as not to be limited in scope to attacks on Cheney or the like. This general issue is a major concern of Jack Balkin. Relatedly, see also Glenn Greenwald today on signs there actually will be some sort of special prosecutor (or something) chosen to investigate the Bush Administration. The contours are hazy as of now -- fears it will be woefully limited -- and I reserve judgment. Don't want some shadow of an investigation, which will be token in scope, but enough for people to say "happy now?" [No]

Meanwhile, Hilzoy is concerned with news that some might be "targeting" Frank Ricci. The article cited (even if the source is generally to be trusted) is overblown with references to Anita Hill and the like. And, if making sure the press understands all sides of the story is bad, should the reporting by Dahlia Lithwick and others on his past discrimination plans be deemed problematic? Personal stories are used by both sides to understand legal principles as it can here, if done right. Anyway, good thing he was not a state employee when he sued for an ADA violation:

We decide here whether employees of the State of Alabama may recover money damages by reason of the State’s failure to comply with the provisions of Title I of the Americans with Disabilities Act of 1990 (ADA or Act), 104 Stat. 330, 42 U.S.C. § 12111—12117.1 We hold that such suits are barred by the Eleventh Amendment.

Maybe Sen. Specter, who is concerned with the lengths of the Court's federalist jurisprudence was taken, particularly in overriding federal law, can bring it up? Oh well ... at least Balkinization is lightening their more restrictive comments policy in important cases. And, a recent hit to my blog was to this interesting past entry.

Saturday Quickies

RIP Bonnie Tinker, who followed her family's activist tradition grandly. This is a tad ironic. Meanwhile, "perfect" is a team thing: yesterday's no-hitter (by a 3-8 pitcher) had one glitch: an eighth inning error. And, what GG said -- more "how shocking!" stuff that is far from surprising and only underlines how pathetic things are. Yeah, yeah -- change is slow. Blah blah. And, Obama's role should lead people to say "fu" when he suggests things like this.

Mets/Braves Trade (Really?)

This is probably a bit unfair (not all the numbers are worse), but either way, so what? I like Church, but he's not exactly a significant cog in the machine. And, the new guy simply is not that much worse. Plus, the team already spent money (much on DL) and have no prospects. What could they do? Maybe, shaking things up will help? And, both managers swap people they don't like. Still ... the Braves?

Justice Ginsburg Interview

[And Also: Salon has more on the below interview, particularly on stereotypes, and flows into some Sotomayor stuff.]

Emily Bazelon, of Slate fame, is the grandaughter of the grand liberal judge David Bazelon. A fact that some might know when they read her columns ... it does make her a perfect fit (as are her liberal/feminist views) to interview Justice Ruth Bader Ginsburg. We have seen more of Ginsburg of late, but it is not a new thing. For instance, she has multiple speeches (unlike many who have none) at the Supreme Court website. [Breyer and Rehnquist are next.] And, many reflect her lifelong advocacy for women's rights:

One last story from the 1970s: the case of Captain Susan Struck, an Air Force officer serving as a nurse in Vietnam where, in 1970, she became pregnant. She was offered this choice: Have an abortion on base or leave the Service. (Captain Struck's case antedated the Supreme Court's 1973 decision in Roe v. Wade, which held that women have a constitutionally-protected right to control their own reproductive capacity. In those days, several military bases, without fanfare, made abortion available to women servicemembers and dependents of servicemembers.) Captain Struck, a Roman Catholic, would not have an abortion, but she undertook to use no more than her accumulated leave time for the birth, and she had arranged for the baby's adoption immediately after birth. She sued to fend off the discharge Air Force regulations required. She lost in the court of first instance and in the Court of Appeals. But she was well represented by ACLU lawyers in the State of Washington, and each month was able to secure a stay of her discharge.

The Supreme Court agreed to hear her plea. It was an ideal case to argue the sex equality dimension of laws and regulations regarding pregnancy and childbirth. Solicitor General Erwin Griswold saw loss potential for the Government. He recommended that the Air Force waive Captain Struck's discharge and abandon its policy of automatically discharging women for pregnancy. The Air Force did so, and the Solicitor General thereupon moved to dismiss the case as moot.

She repeated the story in her most recent interview, and it deserves to be spread. [In the speech, she noted that now she could not only be a nurse (even if she was pregnant), but a pilot.] The fact the U.S. government actually encouraged abortions was also discussed in Means of Reproduction by Michelle Goldberg, which noted that our sponsorship of international efforts in population control (and well-rounded health care generally, which is still a controversial matter these days apparently) was so successful that other nations took the ball when conservatives in this country pushed things in the other direction.

In this recent interview, Justice Ginsburg reinforced what she said in her dissent a couple years back:

Reproductive choice has to be straightened out. There will never be a woman of means without choice anymore. That just seems to me so obvious. The states that had changed their abortion laws before Roe [to make abortion legal] are not going to change back. So we have a policy that affects only poor women, and it can never be otherwise, and I don’t know why this hasn’t been said more often. ... The basic thing is that the government has no business making that choice for a woman.

The interview as a whole shows the quiet power of the justice and reaffirmed that social change is a result of many things. An important advocate for women's equality in the courts knew this if anything more than anyone:

The Legislature can make the change, can facilitate the change, as laws like the Family Medical Leave Act do. But it's not something a court can decree. A court can't tell the man, You've got to do more than carry out the garbage.

All the same, it can (and as she noted, did) protect his right to be home on family leave while doing so.* And, though she is mixed on the whys, diversity is an important aspect of insuring this process. Overall, good interview, and it's good (even if Souter is no fan, even he allowed a recent panel discussion to be televised for C-SPAN) for justices to give the public a window into their views.

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* Speaking of family, there was an interesting bit of personal in this oral argument where Justice Ginsburg repeatedly referenced her granddaughter, who was born in Paris.

Various Local and National Stories

And also: The NYT and Slate has covered the all important porn scriptwriting issue. This includes the Star Trek porn connection, which is also covered by a comment printed at the bottom of the article.

There are various important stories out there, even if the porn issue is of special concern for some.

Obama threatens to veto a measure (cf: this report) that would address a major abuse of the Bush Administration -- the use of the "Gang of 8" to cabin info on covert activities, often misleading them in the process. See the story cited in that first link, one which I cannot get a good judge of since we are not told what the hell (it's not "trivial" though) the problem truly is. Cf. the 1970s, where Sen. Gravel and others did not let "classified" stop them from doing that. What is the Speech and Debate Clause there for? Thus, the continuing importance of separation of powers and checks on the executive.

Also, the WP had a good article that covered the various sides of the drug war in Mexico. The article provides the various sides of the problem. We have the "isolated" nature of abuses, at least isolated per the official word of the government:

The cases in Puerto Las Ollas and Tijuana are under investigation by the National Human Rights Commission, which has been overwhelmed with more than 2,000 complaints about the army -- 140 a month this year. The commission has documented 26 cases of abuse, 17 of which involved torture, including asphyxiation and the application of electric shocks to the genitals of drug suspects.

The breadth of the problem (underlining how the 'war on [some] drugs' affects suppliers and middlemen):

With nearly 45,000 troops deployed in parts of Mexico and along the border, the military has been drawn into a low-intensity conflict in which drug cartels have committed increasingly horrific acts of brutality. Of the 12,050 people killed in drug violence from the beginning of Calderón's term through June, 973 were police officers and 72 were soldiers, according to Milenio, a Mexican media network that keeps a running total of casualties.

And, how our money (yet again) gives us a big role:

Under the Mérida Initiative, a $1.4 billion counter-narcotics package that President George W. Bush requested in June 2007, 15 percent of the money cannot be released until the secretary of state reports that Mexico has made progress on human rights. The requirements include the prosecution of suspected human rights offenders, the prohibition of testimony obtained through torture and regular consultations with independent human rights groups.

The article also notes mixed reactions to the strings, even on the human rights side -- some consider it hypocritical given our mixed record in the current 'war on terror' while others think it is an important (if limited) check on the Mexican government. Another issue with international flavor is global warning, Obama trying to reach an agreement to deal with climate change. The importance of such international agreements was reflected in a seminal gay rights ruling out of India, which included various citations of international law. Michelle Goldberg in Means of Reproduction also discussed how courts in various nations felt bound by such things.

Also, some local news. Here's a view on diversity from the head of the NYC fire department. And, Gov. Paterson tried to deal with the deadlock (31-31) in the NY Senate by appointing a lieutenant governor, but it is unclear if he had the power to do so. Republicans, unsurprisingly, rushed to challenge it. OTOH, the attorney general (and likely rival in 2010) -- a Democrat -- also deemed it unconstitutional. But, now it looks like the ultimate turncoat swung once more, and the Dems will be back in power ... with the prime ass having a major role in the process. At least for now. Oy.*

And, the NYT (over the Daily News) had it right: thankfully the Mets did not get Manny.

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* The article notes:

Mr. Espada’s return gave the Democrats 32 votes in the Senate, a clear two-vote margin that re-established their control of the chamber. Under the deal, Senator Malcolm A. Smith of Queens will be president for an undetermined period of time, and Senator John L. Sampson of Brooklyn will be the leader of the Democratic caucus. Details of the arrangement were explained by Mr. Smith at a news conference.

Such a split of roles is atypical. But, it's quite important since the president of the Senate is the acting lieutenant governor when the position is vacant, the governor's move to fill it of dubious constitutionality. Also, many of the Dems basically hate the guy's guts and don't trust him as far as they could throw him, so making him leader of the caucus would be something many could not stomach. His role as "majority leader" is bad, but perhaps seen as a fait accompli.

Play by Play

And Also: Sotomayor hearings begins next Monday, so here's a discussion of "empathy" by yours truly (and a couple less instructive sorts).

Since the Mets don't offer much reason to watch or listen, there is always fiction ...

Let's see ... right ... here's the game ...

... was struggling of late ... walked him ... tough play/still ... will clear ... 5-0 ....

it's out of here!!!!!! 5-2 ... out at the plate!!!! 5-2

... dropped the ball!!!! .... run ... to second ... first ... out!!! safe on third .... suicide? popped it up!!!! wild pitch! 5-3

... easy dp ... no! ... safe! ... it's out of here! 7-2 ...

didn't have it ... good two ... pitch hit ... clean single ... steals second down five ... to third ... sacrifice ... getting late ... 7-3

... bases loaded ... pop out ... one out ... 3-2 ... struck him out! ... to the wall .. caught!!!! ... pitch hit ... good relief ... single ... double ... itssss caught!

... double to the wall!!!! 7-5! ... dropped the ball!!!! 7-6 ...

... can't ... 8-6 ... takes the ball ... 9-6 ... welll .... one last shot ... great closer ... one blown ....

... one out ... infield ... close play ... safe! .... running on the pitch ... out at first ... one more pitch ... 3-2 ... walk! tying run? ... not a HR hitter ... going for it now ... double to the wall!!!! ... waving him in! ... safe!!!!! 9-8! to second on the throw! good at bat ... not easy ... 3-2 ... eighth pitch ... drew a walk! great eye! third game ... two innings in first? right ... singles hitter ... 0-7 ... it's ... past him!!!!! ... 9-9!!!! out trying to advance ... we're going to extras!

... top of the thirteenth ... since the fifth ... thin ... hit him! ... 3-2 ... first and third ... bunt? ... second and third, no outs ... iw ... 3-1 ... one more will end ... swung ... that was b4 ... infield in ... OF in ... hit him .. wait! ... said he didn't ... imagine that ... thrown out! ... double play depth ... fly ball ... he's ... out at the plate!!!!

bases loaded ... out at home ... toss to first ... out at first ... wasted a great opportunity there

... WP! ... 10-9 ... one more out ... fly ball to left and ... no! ... to the wall ... rounding third ... safe! 10-10! better call to postpone again ...

... batting for himself ... only two left on bench ... they have a starter ... we used for two ... out on three pitches ... looked ugly there ... K ... to the ... wild throw! ... safe at first! timing ... SB ... two outs ... out at the plate!

top of the seventeenth ... looks gassed ... usually a couple batters ... not innings ... did him a favor there ... hit him! hit the pitcher ... to second ... look who's tossing ... did pitch a little in AAA ... well very little ... meeting ... welllll ... can't risk it ... look at this ... to the wall .. caught over the wall!!! ... he was rounding third ... out!!!!!

so he would play? ... guess third? weird looking ... pitch running ... used 23 players ... yesterday and tomorrow's starters ... not going pr him ... never know ... tomorrow is today ... yesterday the day before last ... okay getting loopy ... yeah, thought a shortstop was pitching there ... out! ran into one there ... safe ... through his legs ... HR! ... 13-10!!!!!


bottom of the 18th ... this will be interesting ... would you risk it? ... coming off injury ... up by three ... still ... BP fastball ... 13-11 ... out ... barely got pitcher ... first and second ... picked off! ... how could you??!!! well it is after 1AM ... bases loaded ... hit him! ... 13-12 ... 3-2 ... walked him ... 13-13 ... oh well ...

14-13 ... that run showed fatigue ... but both sides must be ... guess they will risk it ... second and third ... out at the plate! ... K .. 1-2 ... anddddd ... in the hole ... to first ... out!!!!!! final in 19th

[or ..... 13-10 ... one last shot ... K ... caught ... no one left ... .000/.115/.141 ... ph ...well .26 better ... throwing gas ... looked bad there ... is a pitcher ... 0-2 ... got a piece ... oooh ... that's was his pitch ... so to speak ... WP ... to second ... 2-2 ... working it ... yeah he's 1-7 today ... he's the one ... wait ... could it? ... over his head!!!! ... 13-11! ... looking gassed ... third time ... clean single ... chugging around ... is he? ... safe!!!!! .... risky move ... needed to sit down anyway .... 13-12 ... 1-2 ... sinking liner ... dropped in!!!! 1/3rd ... he's hurt ... wincing in pain ... taking him out ... last player ... tomorrow's/today's ... two hits ... good for a game/not a season ... 0-2 ... would he bunt again? ... ugly ... butcher boy! ... had lead ... safeeee!!!!! 13 all!!!!! will look like a long single in box score ... no / fielder's choice ... will take it ... still ...

... guess they will risk it ... second and third ... out at the plate! ... K .. 1-2 ... anddddd ... in the hole ... to first ... out!!!!!! ... bottom of ... better score ... second and third ... out! popped out!!! just a sacrifice ... want to go to bed ... 1-2 ... eighth pitch ... throw to first ... wild!!!! ... throw home ... run down? ... can't believe this ... to third to catcher ... to pitcher ... to ... bit off ... head first ... is he? safe!!!!!!! 14-13!]

AND ... what a ball game ... I'm going to bed ... after all ... 12:30 start today

Sen. Al Franken

And Also: I caught most of Clover, about a young black girl who is left to be cared for by a white stepmother (good to see Elizabeth McGovern with a plum role) on Hallmark. The book -- by an actual black woman farmer though the race angle is fictional -- was also well done. The "ghost" of the dead dad/husband is not really found in the book, which also solely is in the voice of Clover, but fits the visual medium all the same. A case where two sources work well in their own fashion.

There is a tradition where the justice with the least seniority has the responsibility of opening the door during conferences when they discuss cases if someone comes to drop something off. They are closed door affairs where only the justices are allowed. Justice Alito has that responsibility now, but soon (unless something striking happens), Judge (Justice) Sotomayor will have that job. She has made the rounds, but has one more place to go at the very least, since it involves a member of the Judiciary Committee.

I speak of Sen. Franken, who has been appointed to the following:

* United States Senate Committee on Health, Education, Labor, and Pensions

* Committee on the Judiciary
o Subcommittee on Antitrust, Competition Policy and Consumer Rights
o Subcommittee on Immigration, Refugees and Border Security
o Subcommittee on Terrorism, Technology and Homeland Security

* United States Senate Special Committee on Aging

* United States Senate Committee on Indian Affairs*

Until about noon today, Sen. Kirsten Gillibrand (D-NY) had the least seniority (appointed to replace Clinton), and by chance (or not) presided as the senior senator of Minnesota introduced Al. The Senate website was updated, though no website is there yet, but not the Roll Call list as of this writing. Sen. Franken -- not just a funny man any more or Air America host -- ran because Sen. Paul Wellstone's death touched him so much. And, he thought Norm Coleman dishonored his memory. Now, Al sits at Wellstone's desk. Being a sentimental guy, this clearly affects him.

As many who went on his show, including Paul Krugman, know, Sen. Franken is not only funny, sentimental, and a bit corny, but he deeply cares about progressive policies and is a downright smart (Harvard grad) policy wonk. This comes out in some of the clips in the "funny man" link, including when he talks to Letterman about his trips to entertain the troops, and at one point talks about how he has talked to experts who told him about the mental trauma service brings. It was the experts he brought on that might have been the best part of his radio show, especially to the degree just Al (after Katherine left) at times got to be a bit much.

Besides health care (Social Security and Medicare is of special importance to him, particularly as such governmental safety nets helped his wife's family survive), Al at one point spoke about the need to end the Iraq War. Besides wishing him good luck and asking him to remained principled and independent like his sometime guest Sen. Sanders (I-CT), this gives me a chance to toss out a top 10 war defenses.

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* It is unclear how much influence he will have immediately in the health insurance realm, since (so it seems) his spot will be filled by Sen. Whitehouse (a good egg on some other issues) while the current legislation is being negotiated. Universal health care was a clear concern of Franken's during the campaign. There are over thirty thousand Native Americans in the state, and "Old Al" alone suggests the other committee is important to him.

The judicial slot is interesting though -- seems a big plum for a rookie without legal experience. Some of those subcommittees, though consumer rights etc. (e.g., he comes from a border state) fits his general interests, are rather technical. OTOH, that might be a plus in some ways.

Army Wives

Army Wives had a good subplot last night involving religion. Some of the other subplots were pretty good too, including Denise and her husband (perhaps no longer), which has been a complex story throughout. The Roxy/Viola stuff was a bit tedious -- Roxy is independent and doesn't want someone else (especially unilaterally!) making decisions about her bar. No duh. Never really connected to Chase (after a bad start, Pamela has become interesting), but the sudden problems Chase had after coming home was also an interesting tack to take.

Joan is about to go over for a tour of duty in Iraq and feels a need to have her baby christened, even though she herself is not very religious (or even baptized). Her husband does go to church. She is uncomfortable when the priest starts asking about her own religious beliefs. Joan was looking for a ceremony more like their wedding, not so formal and about her. Even if it does make sense that if she is going to get her baby baptized, her own faith would be a concern. She is about to forget about the idea until her husband gets her to try another church.

They find a less formal one, which sounds something like a Unitarian one for its acceptance of diverse faiths, and it fits into what Joan wants. What she basically wants is a way for their child to be part of something bigger than them, especially since there is a chance she might not come back, to show her that she fits in a wider community, one that loves her. The event clearly would still have religious overtones, surely be of a sacred favor, even if Joan is not a big God person. This underlines my belief that "religion" should not be seen narrowly, but that it has broader connotations that go beyond the stereotypes.

I often don't like all the subplots on the show, but it continues to have something of interest, particularly those involving Denise. I do wonder about suddenly bringing CJ's husband back, which seemed like a deus ex machina move. [Did preview audiences get as turned off by the new company commander as much as me?] Will Denise stick around in the end too? And, did the actress playing Roxy get plastic surgery or start wearing a lot of makeup or something? I don't like her glossy new look.

Anyway, am looking forward to the body changing series they keep on previewing ... better not be lame!