LEGAL DAY

In refusing to examine the legislative history that provides a clear answer to the question whether Congress intended the scope of the mineral reservations in these two statutes to be identical, the plurality abandons one of the most valuable tools of judicial decisionmaking. As Justice Aharon Barak of the Israel Supreme Court perceptively has explained, the "minimalist" judge "who holds that the purpose of the statute may be learned only from its language" retains greater discretion than the judge who "will seek guidance from every reliable source." Judicial Discretion 62 (Y. Kaufmann transl. 1989). A method of statutory interpretation that is deliberately uninformed, and hence unconstrained, increases the risk that the judge's own policy preferences will affect the decisional process.

-- Justice Stevens (with two others), dissenting

Obscure Cases Make Good Platforms: Justice Stevens chose a rather weird case (3/31) to quote a somewhat controversial foreign justice to show the problems with too strict use of the "plain meaning of the statute" style of interpretation favored by Justice Scalia, et. al. In fact, as the link notes, his buddy in law Justice Thomas concurred separately (along with Justice Breyer), interpreting things differently. The whole case is apparently obscure enough that "4 beats 5" (see link again), so why not?

Partial Birth Abortion/Privacy: An important federal appeals court ruling barring the release of "partial birth" abortion records requested by the Justice Department was handed down. The majority couldn't find a good reason for such a request though it "begged the government’s lawyer to be concrete." A good reason was necessary because important privacy concerns are involved. There was a chance that even the redacted records would have too much personal information and anyway privacy includes not having personal stuff (like nude pictures and private medical records) exposed to public view even if it is totally anonymous. This latter principle has implications that go much further than this particular issue.

Death Penalty: Also in legal news (and to update my discussion here), the International Court of Justice handed down a ruling holding that the United States violated treaty obligations by not protecting "the rights of more than 50 convicted Mexican nationals on death row by not providing them with access to their country's consular officials when they were accused of serious crimes abroad." The U.S. consented to the suit and the ruling honored its sovereignty by giving it discretion on how it should examine each affected case as well as insuring proper procedures will be followed in the future. I still think commutation might be justified in individual cases given who knows how things might have been different if early notification was truly followed?

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Radio and Television: The liberal radio network, Air America, started today. I caught most of Al Franken's show (12-3PM, repeated 11PM-1) and the end of Janeane Garofalo (8-11PM). Al with help of an actual radio veteran was a bit rough, but the presence of such guests as Al Gore (call-in), Bob Kerrey (9/11 Commission), and some signs of good humor suggests the value of the enterprise. I did get from him along with Garofalo (admittedly, I only caught about fifteen minutes) a lot of predictable anti-Bush positions. The shows have to resist talking to the choir. Marty Kaplan's take on the news sounds like an interesting concept, and when I get around to hearing it (7-8PM), maybe I'll put my .02 in.

I was not home to listen because I was out listening to Lisa Simpson explain the proper ways to vomit. Seriously. Well, actually, it was the woman who gives a voice to Lisa, Yeardley Smith. She has an autobiographical one woman show explaining how her life was so stressful, including her fight with bulimia. This led her to discuss a typical binge, including useful tips for beginners. The title was More , that is, even with her success, she always wanted "more." I basically wanted more myself -- more reason why to care about her. I just saw a one woman show on an actress who (in much less over the top fashion) discussed her brother dying from cancer while she herself had to deal with cancer. That lady got my sympathy.