March 05, 2014
A Fool And His MoneyIn a story that references the inaptly named Conservative Voters of Texas, the following details stood out:
Mostyn's influence on the state Legislature "is very powerful – beyond powerful. He’s the No. 1 funder of Democrats statewide."Mostyn reportedly has a lot of money; so, perhaps, he can afford to squander it. But that is exactly what he is doing if he is spending that kind of money on Davis. For that matter, what does Mostyn have to show for any of the money he has spent on Texas politics (e.g., the $3.5 million he spent backing the last Democratic gubenatorial candidate)?
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For example, on Dec. 31 Mostyn donated $1 million to Texas Sen. Wendy Davis, the Democratic nominee for governor, a Texas Ethics Commission report shows.
March 04, 2014
Loose Lips Sink ShipsConfidentiality clauses are a common provision in settlement agreements. I would speculate that these clauses often are violated to some extent, but that such violations typically go undetected (e.g., when a party communicates the amount of settlement to non-party family members). But modern social media might alter the degree to which these violations remain under the radar.
The WSJ Law Blog reports about an instance in which a such settlement was undone in large part by a non-party family member's Facebook post. In this case, the settling defendant (a school) apparently learned of the breach via the grapevine; the offending Facebook post was viewed by many of its current and former students. I wonder if defendants have begun or will begin monitoring social media, to the extent possible, post-settlement to police such violations.
March 03, 2014
The VikingsI am close to finishing Robert Ferguson's The Vikings: A History. It relates an episode about the cremation of a a chieftain on the Volga circa 921 A.D., as penned by an Arab chronicler. A slave had been selected to accompany him into the afterlife, and it details the elborate ritual(s) accompanying her sacrifice. A translation of the actual chronicle is available here. It makes for fascinating reading, but I am glad to have several centuries between me and these people.
March 02, 2014
Consent Of The GovernedTimothy Sandefur remarks that:
Because they assume that democracy is our central constitutional value, and deduce jurisprudence from there, today’s lawyers, judges, and law professors—both conservative and liberal—are incapable of advocating a sensible theory of judicial review.But I am skeptical of this criticism. If judicial review ultimately does not derive its legitimacy from the consent of the governed, then I think a written constitution is an unnecessary, indeed pointless, exercise.
March 01, 2014
People I Never Want To Work For, With, Or AroundWayne R. Gross. His pocket square says he means Real Serious Business, or something. (Via Above the Law)
February 28, 2014
Are All Lawyers Blameless Advocates? Re-RevisitedFrom the New York Times:
In the final months, the documents show, Mr. Yanukovych’s government reached out to a former deputy director of Russia's military intelligence service in planning the crackdown on protesters. Years earlier, they show, the government paid American legal advisers for opinions that would justify to the West the prosecution of Yulia V. Tymoshenko, a former prime minister and the president’s chief political opponent.As I have asked before, why are we not permitted to judge Skadden by the clients it keeps?
It had been known that the law firm of Skadden, Arps, Slate, Meagher & Flom had compiled a largely sympathetic report in 2012 on the government’s prosecution of Ms. Tymoshenko, even though most impartial observers say it was politically motivated.
Over the weekend, however, street fighters found documents related to this prestigious American law firm’s work in an unexpected spot: on the tiled floor of the sauna in an opulent residence of the deposed prosecutor general, Viktor Pshonka.
February 26, 2014
The Feeble Case Against Justice ThomasFor most of his tenure, Clarence Thomas has been subjected to several recurring public criticisms:
February 25, 2014
Are All Lawyers Blameless Advocates? RevisitedI previously suggested that concepts like agency might not invariably excuse lawyers from accountability for the causes they choose to champion. I received some interesting pushback on that suggestion. Mayer Brown's representation in litigation against a comfort women memorial provides a good occasion for revisiting the subject, I think. Should the firm be immune from criticism for this suit?
February 24, 2014
The GOP Is Not A Conservative BulwarkGlenn Reynolds thinks that fellow Republicans making an issue of Milton Wolf's Facebook shenanigans is a mistake. He observes:
Given the importance, in particular, of a GOP Senate in the event of a Supreme Court vacancy, doing anything to foster such a state of events is criminal incompetence.This is the sort of rationale I routinely am offered in favor of GOP solidarity. All I can say as a conservative is: you have got to be kidding me. The idea that a GOP Senate could or would block an Obama nominee, even a bad one, is questionable at best. This is the same party that, when it held the Presidency, put the following justices on the bench:
- John Roberts, who voted to uphold the Affordable Care Act on a theory he alone embraced.
- David Souter, whose principal distinguishing feature from Ruth Bader Ginsburg is a penis.
- Anthony Kennedy, who is quite content to use substantive due process to locate hitherto unknown rights in the Constitution.
- Sandra Day O'Connor, who, like Kennedy, has preserved a constitutional right to abortion and additonally upheld the constitutionality of affirmative action in higher education.
- John Paul Stephens, who was on the opposite side of the conservative wing of the Court on every contentious issue.
- Lewis Powell, who voted to recognize a right abortion and upheld affirmative action in higher education.
Milton Wolf's Facebook ShenanigansI have no opinion on the merits of Milton Wolf's candidacy in general. But the revelation that he posted x-rays of gunshot victims on Facebook and commented on them, sometimes in a jocular fashion, does not reflect well on him as a physician or person.
Dr. Wolf does not appear to have violated HIPAA. The information in question sounds like de-identified health information. But HIPAA is the law, not necessarily what a high standard of medical ethics requires. For example, the Hippocratic Oath declares that:
Whatever I see or hear in the lives of my patients, whether in connection with my professional practice or not, which ought not to be spoken of outside, I will keep secret, as considering all such things to be private.I am uncertain whether Wolf's conduct transgresses this ancient articulation of medical ethics. But the posting of x-rays on Facebook as fodder for jokes does not seem very dignified. I certainly would not want a doctor to treat me or my loved ones in such a fashion.
February 23, 2014
Is Justice Stevens' New Book Unethical?Josh Blackman suggests that Justice Stevens' new book is ethically troubling in multiple respects. I do not share all of Blackman's sentiments, but one criticism seems quite justified. Namely, the book identifies the author as "Justice of the Supreme Court of the United States (Ret.)."
As Blackman notes, Justice Stevens is not retired in the sense that "retired" might convey to laymen:
He is not retired from the Supreme Court. Read his resignation letter. He retired from "active service as an Associate Justice" pursuant to 28 U.S.C. 371(b). There is a difference.There is no code of ethics for Supreme Court justices. Given the volume of false or ill-judged ethics-related accusations made about the justices, I am of the opinion that this lack of controlling ethical rules is a positive good. The justices occupy politically charged positions in the republic, and I do not think specific ethical rules would produce a more ethical Court. They would, however, provide a lever for ideological opponents to harass the justices with legalistic complaints.Any justice or judge of the United States appointed to hold office during good behavior may retain the office but retire from regular active service after attaining the age and meeting the service requirements, whether continuous or otherwise, of subsection (c) of this section and shall, during the remainder of his or her lifetime, continue to receive the salary of the office if he or she meets the requirements of subsection (e).He is still an Article III Judge. He has a chamber at the Supreme Court, and maintains a law clerk.
Still, even though there is no set of binding ethical provisions, one typically looks to the Code of Conduct For United States Judges for guidance. This code applies to federal district judges and judges sitting on the courts of appeal. If an activity is unethical for them, it stands to reason that it would be equally unethical for a justice of the Supreme Court, absent some reasonable distinction. Canon 2(B) almost surely prohibits use of a judicial title or office on a book cover; in relevant part, it provides that:
A judge should neither lend the prestige of the judicial office to advance the private interests of the judge or others nor convey or permit others to convey the impression that they are in a special position to influence the judge.The comments to the rule explain that:
A judge should avoid lending the prestige of judicial office to advance the private interests of the judge or others. For example, a judge should not use the judge's judicial position or title to gain advantage in litigation involving a friend or a member of the judge’s family. In contracts for publication of a judge’s writings, a judge should retain control over the advertising to avoid exploitation of the judge's office.To the best of my knowledge, justices and judges generally do not use their title on the cover of books. For example, Justice Scalia's books identify him merely by name. The same is true of Justice Breyer's books. (Though he arguably skirts this rule by including the verbiage "A Judge's View" in one title.) The much-published Judge Posner does not invoke his office. Accordingly, I am inclined to think that Justice Stevens' use of his judicial title to sell books is an ethical transgression.
I Am Not Your ValetKatarina Kroslakova laments the death of chivalry:
Being a female who knows her way around an annual report on a 6am flight offers a unique perspective. The ratio on these flights, roughly speaking, would be one female passenger to 15 to 20 males.I do not fly much these days, expecially if I can help it. But my experience differs. I have seen men assist ladies with their luggage on occasion, particularly older women and women traveling with small children. I would not hesitate to do so in such situations.
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Has anyone ever helped pop my bag up into the overhead compartment? Nope. Have I seen any other woman helped? Nope.
This week, an engineer in his 50s just stood there in the aisle, his hands clasped, as I played Olympic weight-lifting with my suitcase right in front of him. Just stood there, looking intently at the sticky carpet. Probably afraid to chip a nail or something.
Has the women's liberation movement really scared the bejesus out of men this much?When did it become chivalrous to steadfastly look away and not bother to help?If a 6am flight is anything to go by, you'd think the concept of a gentleman was well and truly dead.
That said, I would be rather less inclined to help a younger woman whose apparent difficulty consists of packing more than she can lift above her head with ease. I find Kroslakova's premise that men simply owe this duty to women to be rather odd in today's world. What is the basis for this presumption other than out-of-date notions about the sexes? Her "chip a nail" insult seems congruent with such antiquated attitudes.
(Hat tip to Glenn Reynolds.)