December 23, 2003

Holiday Hiatus

From now until January 5, 2004, I will be spending my free time with friends and family. Merry Christmas and Happy New Year.

Posted by Curmudgeonly Clerk at 11:27 AM | Comments (1)

December 22, 2003

Libya's Capitulation

Contrarians have been quick argue that the current administration's foreign policy had nothing to do with Libya's recent capitulation. Linking to this New York Times Magazine article, Venkat Balasubramani concludes:

The profile makes all that stuff one hears about war/timing/causation sound like a bunch of bull.

Professor Juan Cole has penned a lengthier, more analytical piece that arrives at the same basic conclusion. Cole attributes Libya's u-turn to other causes altogether, writing that:

Hawks in Washington will attempt to make the argument that Libya's sudden willingness to give up its weapons of mass destruction programs is a dividend of the Iraq war.

For those who know anything at all about Libya, however, an entirely different interpretation is obvious. . . .

For his own part, Moammar Gadhafi has intimated otherwise. As reported by CNN:

Asked about his decision, Gadhafi acknowledged that the Iraq war may have influenced him, but he insisted he wanted to focus on the "positive."

A third-party source has attributed far less ambiguous language to Libya's dictator. As reported in The Telegraph back in April:

A spokesman for Mr. Berlusconi said the prime minister had been telephoned recently by Col. Gaddafi of Libya, who said: "I will do whatever the Americans want, because I saw what happened in Iraq, and I was afraid."

Unlike the Italian prime minister's spokeman, I am not prepared to argue that the Iraq campaign was dispositive. Causation strikes me as being quite complicated in this instance. No doubt a multiplicity of factors shaped Gadhafi's decision. But isn't it just as implausible to suppose that the invasion of Iraq had zero bearing on Gadhafi's decisionmaking process, particularly occurring not long after the Afghani campaign and in the broader context of a foreign policy expressly articulated as preemptive and interventionist?

Gadhafi's son has denied any such connection, stressing that negotiations with the U.S. commenced prior to the actual invasion of Iraq, but this, of course, says nothing about the impact of the invasion on the ongoing negotiations. Gadhafi's son's statement also does nothing to discredit the notion that the Afghani campaign, aggressive foreign policy stance in the War on Terror in general, and impending invasion of Iraq in combination affected Libya's decisionmaking in some degree. The very NYT Magazine article cited by Balasubramani highlights some particulars that suggest that, at the very least, our foreign policy was geared toward achieving such a result where Libya was concerned:

In May, in a landmark speech titled ''Beyond the Axis of Evil,'' Under Secretary of State John R. Bolton expanded the list of American enemies to include Libya, calling it a ''rogue state'' . . . .

* * *

''I think Qaddafi has very good reasons to be nervous,'' says a political analyst who often takes part in policy discussions on Libya at the State Department. ''The administration's attention right now is almost totally focused on Iraq, but after that, Libya is either No. 2 or No. 3 on the list of nations the hard-liners want to go after.'' The analyst recalls a meeting on Libya he recently attended at the State Department. ''The topic turned to the issue of Lockerbie, and the seniormost official in the room said, 'Well, let's hope Qaddafi deals with it while there's still time.' There was no ambiguity in what he meant, but just in case someone didn't get it, he said it twice.''

Again, I don't think that triumphalism is necessarily in order. Even assuming arguendo that the invasion of Iraq was highly influential or dispostive, one might still rationally regard our administration's foreign policy as misguided; even otherwise bad policies may reap some positive dividends.* But to conclude that Bush's foreign policy, including the Iraq campaign, had no bearing on Libya's policy reversal seems rather improbable.

*Full Disclosure: Although it has substantial risks, I do not happen to believe that the administration's aggressive foreign policy stance is misguided.

(Thanks to Southern Appeal for The Telegraph link.)

Update I: Stuart Buck offers an additional source suggesting that Libya's conduct may not be entirely unrelated to the administration's foreign policy.

Update II: Also worth reading is this January 18, 2004 article from The Telegraph. It begins:

Jack Straw, the Foreign Secretary, was last night accused of a diplomatic cover-up over Colonel Gaddafi after refusing to answer questions about the seizure of uranium-enrichment equipment bound for Libya's nuclear weapons programme last October.

The capture by the United States of thousands of centrifuges on board a German-owned vessel, the BBC China, en route to Libya has raised suspicions in Washington and London that Col. Gaddafi offered to abandon his weapons programme after threats from America, rather than the lengthy British and American diplomacy vaunted by Tony Blair.

Posted by Curmudgeonly Clerk at 11:47 PM | Comments (1)

December 21, 2003

Crimes Against Nature

The Cleburne sexual device obscenity case has garnered a fair amount of the blogosphere's attention. Less noted has been a website obscenity case prosecuted in federal court in Georgia:

U.S. District Judge David Faber on Friday sentenced Michael J. Corbett to 18 months in prison, a $30,000 fine and three years of supervised release. He had pleaded guilty in August to one count of mailing obscene material.

* * *

The case involved a Web site through which the Corbett and Bates sold videotapes and digital video discs that depicted sexually explicit scenes of defecation and urination.

* * *

"I think the guidelines for this crime were extremely lenient," Faber told Corbett. "The court, quite frankly, is appalled at the nature of material here. . . . It's dehumanizing and demeaning."

Of course, if being dehumanizing or demeaning were grounds for criminal prosecution, a substantial amount of material otherwise protected by the First Amendment would disappear, which, perhaps, highlights the nature of my discomfort with obscenity prosecutions. As distasteful as this sexual behavior may be—and I think that far more pejorative terms may be fairly used to characterize this particualar genre of pornography—what is to be gained from such prosecutions?

Posted by Curmudgeonly Clerk at 04:02 PM | Comments (0)

December 20, 2003

"Imagine Me As God, I Do"

The referenced lyrics are from The Bar and Grill Singers' Appointed Forever, which is available for listening here. The complete lyrics are also available here. The song takes aim at the hubris of federal district judges.

But what reminded me of this song was a recent Legal Affairs article about Ninth Circuit Court of Appeals Judge Alex Kozinski. Although we are not peas of a pod, I frequently agree with the substance of Judge Kozinski's writing (both on and off the bench). But I must confess (with disappointment) that the aforementioned Legal Affairs article makes him sound insufferable as a person, an employer, and a colleague.

(Link via Southern Appeal.)

Posted by Curmudgeonly Clerk at 02:41 PM | Comments (1)

Military Justice

So what's the difference between serial adultery and aggravated assault in the Army these days? About $2,000. Or that's the impression that the New York Times story (first link) leaves at any rate. As reported by the Times:

A United States Army colonel whom scores of women accused of simultaneously wooing them with promises of marriage was given a letter of reprimand and penalized $7,000 in pay, the Army said yesterday.

It was last June when many of the women learned to their horror that Col. Kassem Saleh, now 51, who headed reconstruction and humanitarian efforts for the American-led military operation in Afghanistan, apparently found all of them equally irresistible. Their indignation at his chronic courting led the Army to conduct a long inquiry, which culminated this week in a nonjudicial disciplinary proceeding at Fort Bragg, N.C., where Colonel Saleh is based.

Colonel Saleh was found guilty of violating military regulations by committing adultery, disclosing sensitive information and engaging in conduct unbecoming an officer and a gentleman. He was married but separated at the time he contacted the women.

The story goes on to specify that in nonjudicial disciplinary proceedings (i.e., disciplinary proceedings less than a court martial) "the stiffest punishment that can be imposed is a letter of reprimand, temporary restriction of movement and loss of one-half of two months' pay." (Is it just me, or has the Times gone out of its way to complicate a fine formula that may amount to one month's pay?) So being that Colonel Saleh outranks West by one pay grade, it is not necessarily noteworthy that his fine is higher than West's given the formula involved. But it nonetheless does seem unsettling that Saleh's and West's conduct merited roughly similar responses from the military.

(Link via Howard Bashman.)

Posted by Curmudgeonly Clerk at 12:38 PM | Comments (5)

December 19, 2003

Medicine Head

home for third day straight
unable to clearly think
due to medicine

Posted by Curmudgeonly Clerk at 02:44 PM | Comments (1)

December 18, 2003

The Continuing Saga of Lt. Col. West

Lieutenant Colonel West, whom I have written about on multiple prior occasions (see, e.g., here and here), made an appearance on The O'Reilly Factor this evening. The interview was regrettably all too brief. Nonetheless, there were multiple points of interest.

For example, Lt. Col. West responded with an unequivocal, "Yeah, I did that," in response to O'Reilly's query as to whether he had threatened to kill the Iraqi detainee. He confirmed that he was, in fact, guilty of all of the things with which he was charged by the Army. He was unapologetic for his conduct, but he conveyed no sense of self-righteousness or smugness.

One got the impression from West's own recitation that he understood prior to the interrogation that his own contemplated conduct was improper and that undesireable consequences would follow. Indeed, he immediately reported his interrogation conduct afterward.

What was most interesting, however, was West's characterization of the $5,000 fine levied by the Army as "more than fair." This fine, in conjunction with his loss of command, constituted the whole of West's punishment. West evinced no bitterness about the loss of his command either. He stated that the Army had "every right" to take the actions that it did so as to protect the Army as an institution.

In every respect, West comported himself rather well. His candor and willingness to accept the consequences for his acknowledged (mis)conduct were impressive. I remain uncertain as to what the appropriate punishment would consist of in this case. But given West's unassuming, selfless demeanor, I am less mystified by the Army's decision not to vigorously prosecute him.

One thing does remain somewhat unclear. O'Reilly referred to the charges being dropped. It had been my impression from press coverage that some sort of plea bargain had been effectuated. One wonders from a procedural standpoint how the ultimate result (i.e., fine and loss of command without further prosecution) were arrived at.

Posted by Curmudgeonly Clerk at 07:54 PM | Comments (1)

The Identity of Allah (Cont'd)

Slate has an intriguing, albeit flawed, article about whether the three great monotheistic faiths (Judaism, Christianity, and Islam) worship the same divinity. Among its more interesting arguments is the following excerpt:

The real controversy is whether Muslims pray to the same God as Christians and Jews. So, in the spirit of the Ramadan-Hanukkah-Christmas season, we went straight to God's biographer, or at least Jack Miles, author of God: A Biography. He noted that linguistic similarities indicated that Bush's position is correct:

Allah in Arabic is a contraction for al-ilah, "the-God," and as such is cognate with Hebrew eloh, "god" (plural of abstraction, elohim, "deity"). Linguistic technicalities aside, what matters is that back in the seventh century, the first Muslims were using the same kind of word in Arabic that the Jews were using theologically in Hebrew and using it in the same way.

As evidence that Jews, Christians, and Muslims "have always assumed their differences to be about the character rather than the identity of God," Miles points to life in medieval Spain, where people of the three faiths mingled and disagreed with each other about the "same divine subject." Thomas Aquinas, for instance, wrote Summa Contra Gentiles in part to refute the Muslim philosopher Ibn Rushd, but he never tried to make the argument that Muslims were praying to a different God.

I lack the education necessary to offer a critique of these particular views. But my prior musings on this general topic may be found here.

Posted by Curmudgeonly Clerk at 01:04 PM | Comments (0)

What's Ethical About Exploiting Children?

The latest antics of P.E.T.A. seem like potentially fertile ground for intentional infliction of emotional distress lawsuits. More details are available here.

(Link via Obscure Store.)

Posted by Curmudgeonly Clerk at 12:24 PM | Comments (0)

December 17, 2003

The Substance of Procedure

Timothy Sandefur has posted some excellent further observations on the import of legal procedure and elaborates that it's just as critical in civil matters as in the criminal context.

Posted by Curmudgeonly Clerk at 05:25 PM | Comments (0)

December 16, 2003

Getting Off On "Technicalities"

I have often attempted to make the very same point in other contexts that Professor Yin makes regarding John Poindexter. As the Court of Appeals for the District of Columbia Circuit once aptly phrased it in a related case:

[W]e do not countenance political trials in this country . . . . Rather, this is an individual's appeal from his criminal conviction, an appeal based on his contention that the government has violated his fundamental, enumerated constitutional right not to incriminate himself. We must so treat it.

United States v. North, 910 F.2d 843, 865 (D.C. Cir. 1990).

Our criminal law procedural safeguards exist precisely to ensure the intergrity of verdicts. Without them we would be considerably less justified in our general belief that the American criminal justice system produces just results. When legal commentators denigrate a criminal decision that they disagree with on the basis that the defendant got off on procedural grounds or a mere technicality, they are engaged in a myopic form of criticism that gravely distorts matters from a macro-perspective. They are so fixated on one particular tree that they have lost sight of the fact that they are standing in a forest.

Posted by Curmudgeonly Clerk at 03:48 PM | Comments (1)

F.I.R.E. Enters the Fray

The Foundation for Individual Rights in Education is defending affirmative action bakesales on college campuses. Southern Methodist University is among several universities identified by F.I.R.E. as having shut down such sales, which I wrote about here and here. The F.I.R.E. website conveniently provides the contact information (phone numbers and e-mail addresses) of the campus administrative authorities at each institution.

(Link via Virginia Postrel.)

Posted by Curmudgeonly Clerk at 10:50 AM | Comments (0)

The Long Arm of the Law

Howard Bashman has all of ther relevant links to coverage on an interesting obscenity case here in Texas. It seems that the Cleburne police are making the state a safer, more decent place by eliminating a scourge of morality from the marketplace. More specifically, they are targeting vibrators and other recreational devices. Or rather they are targeting one woman who sells them. As reported by the Fort Worth Star-Telegram:

An attorney [BeAnn Sisemore] for Joanne Webb, a Burleson woman accused by Johnson County authorities of violating an obscenity law by selling sexual devices, said she plans to move to dismiss the charge on constitutional grounds as her client makes her first appearance in court today.

* * *

The defense's motion to dismiss will argue that there is a constitutional right to fundamental privacy between adults in private, consensual sexual relationships, Sisemore said. The right to privacy encompasses the right to use sexual devices, Sisemore said.

The law allows possession but blocks the sale of sexual devices and so interferes with the user's rights by blocking their purchase, Sisemore said.

Sale of a sex toy is considered a Class A misdemeanor, punishable by a year in jail and a $4,000 fine.

I am somewhat skeptical of this constitutional claim. A fundamental right to sell dildos seems farfetched, even as a corollary to Lawrence's liberal view of sexual autonomy. Lawrence involved entirely private non-commercial activity. The undercover bust that led to these charges occurred outside of the home and involved a commercial transaction. Nonetheless, I cannot say that the defendant's constitutional argument is frivolous.

Whatever the case may be, it pains me that we must address this as a constitutional matter. This is an uncommonly silly prosecution and highlights precisely why I despise obscenity laws. What possible benefit could the state derive from prohibiting the sale of sex toys? Who is harmed and how in the absence of this prosecution?

The law enforcement conduct at issue is staggering. Undercover narcotics agents were pulled from their normal task and assigned to pose as a sexually dysfunctional couple in order to procure a vibrator in order to prosecute the seller. Any local, county, or state authority that has the resources to bring such prosecutions is simply collecting too much in taxes.

Update I: It appears that the blogosphere is abuzz with vibrator news. Nick Morgan reports on a Harpers article, which unfortunately does not appear to be available online. Morgan's account almost suffices to reconcile me to obscenity prosecutions.

Update II An Instapundit reader informed Reynolds of an on-point Texas case: Regalado v. State, 872 S.W.2d 7 (Tex. App.—Hous. [14th Dist.] 1994, writ ref'd), cert. denied, 513 U.S. 871 (1994). The case lays out the elements of the crime, as defined by statute, and a host of relevant pre-Lawrence caselaw. But of principal interest is Justice Brown's two sentence concurrence:

Here we go raising the price of dildos again. Since this appears to be the law in Texas I must concur.

Id. at 11 (Brown, J., concurring); see also Webber v. State, 21 S.W.3d 726, 732 (Tex. App.—Austin 2000, pet. ref'd) (Bea Ann Smith, J., concurring) (quoting Justice Brown and opining "I do not understand why Texas law criminalizes the sale of dildos. . . . Even less do I understand why law enforcement officers and prosecutors expend limited resources to prosecute such activity. Because this is the law, I reluctantly concur.")

Posted by Curmudgeonly Clerk at 09:33 AM | Comments (1)

December 15, 2003

Some Judges . . .

Ernie the Attorney has yet another of his indispensible Law Clerk Chronicles posts up. This one focuses on the judicial clerk job interview. I think that it is accurate in conveying just how idiosyncratic the selection process is among those candidates who manage to land an interview. In some measure this is the result not so much of eccentricity, but of the superb and comparatively equal credentials possessed by applicants who make it to the interview stage.

I have interviewed with a total of five federal judges (two appellate and three district court judges) and I honestly cannot tell you why or how I managed to convince one to hire me but not the others. Once you manage to obtain an in-person interview, I suspect that intangible factors account for most hiring decisions. One of the appellate judges flatly told me that she principally used interviews to weed out weirdos from the list of qualified candidates.

Like some clerkship applicants, some judges are a trifle peculiar though. For example, Ernie relates this priceless anecdote about a federal judge:

At least he didn't ask me what my shoe size was, which is what one local federal judge supposedly used to ask propective clerks. Why? Because he wanted to hire clerks with roughly the same size feet as he had so that he could have them break in his new shoes.

That really seems beyond the call of duty.

Posted by Curmudgeonly Clerk at 09:32 AM | Comments (1)

December 14, 2003

Playstation Made Me Do It (Reprise)

It appears that violent video games are being blamed for still more antisocial teenage conduct, in this case a vicious homicide. Attorney Jack Thompson yet again makes an appearance, albeit in a slightly different role:

Because prosecutors represent victims in criminal trials, Thompson couldn't enter the case as Mickey's lawyer. Instead, he petitioned the judge to become Lynch's defense attorney. (Thompson needed the judge's permission, because he's not licensed to practice in Ohio.) Thompson wanted to argue that Lynch was a victim—a video-game-hypnotized Manchurian Candidate not responsible for his crime.

But if Thompson were to represent Lynch, it would create a clear conflict of interest, in light of the fact that Thompson was also discussing a civil trial with Mickey [the victim's father], Medina County Prosecutor Dean Holman pointed out.

Thompson responded by saying that Holman was afraid to face an attorney of his caliber. When the judge in the case didn't immediately appoint Thompson as Lynch's attorney, Thompson lashed out at him too, requesting that the judge be removed from the case.

Ultimately, the issue was settled when Lynch chose a different lawyer to represent him. But Thompson isn't a disinterested party. He is planning to represent Mickey in a civil suit similar to the one filed in October, based on the Tennessee shootings.

Thompson—he's all class, no? For his own part, the very disturbed perpetrator of this crime has repeatedly declared that any such connection between video games and his conduct is a crock. Interestingly, the culprit does say that he drew inspiration from certain books:

But video games weren't the only outlet for Lynch's violent fantasies. He was also a fan of James Patterson's "Alex Cross" novels, which include Along Came a Spider, Kiss the Girls, and Jack and Jill, and he freely admits to looking to the books for inspiration. "Yes I do think those books gave me some influence in other murders but not JoLynns [sic]," Lynch writes. "They gave me some extra ideas."

The article does not specify whether Thompson is planning a lawsuit against Patterson or his publisher.

Posted by Curmudgeonly Clerk at 11:58 PM | Comments (0)

December 13, 2003

Colonel West Plea Bargain

FOXNews is reporting that Lt. Col. West has been "found guilty of three counts of aggravated assault and one count of communicating a threat." From the report, it sounds like a plea bargain must have been entered into, as the proceedings never culminated in a court martial. The FOXNews article states that:

At a military pretrial hearing Friday, Gen. Raymond Odierno, who commands 4th Infantry Division based in Tikrit, fined West $5,000, relieved him from his post and forwarded his request for retirement next spring for approval.

* * *

West pleaded guilty to punching and to firing a pistol near the prisoner, Yahya Jhodri Hamoodi, on Aug. 20, while interrogating him in al-Taji, just north of Baghdad. West also threatened to kill the detainee if he did not talk, according to the statement.

The division said West "disobeyed laws, ignored orders . . . and mortgaged future discipline in his unit by compromising his credibility."

"While his crimes merit a court martial, mitigating factors . . . were considered including the stressful environment . . . and Lt. Col. West's record as an officer and commander," the military said.

From my prior posts on this subject, it is obvious that I think that West was clearly guilty and that his conduct merited the charges that he faced. It has been less clear to me what punishment fits the crime. Both from the standpoint of moral culpability and deterrence, the issue of appropriate punishment strikes me as quite complex.

Posted by Curmudgeonly Clerk at 08:52 PM | Comments (0)

December 12, 2003

Crunching the Numbers

Blog 702 considers the use of statistics in making tort-related and tort reform-related arguments.

Posted by Curmudgeonly Clerk at 02:24 PM | Comments (0)

The Right of Ridicule

Times, Inc. d/b/a Dallas Observer v. Isaacks: now, here is a suit that most of us will likely be able to agree is frivolous. Findlaw columnist Julie Hilden provides the relevant details. But having ably identified why parody and satire of this nature are constitutionally protected by the First Amendment, Hilden then makes this rather incongruous argument:

But at the same time, the Observer has been foolish. Its note about the piece insulted its own readers, calling those who might have misread it "cerebrally challenged." The note also was contemptuous toward the judge and prosecutor, and failed to take into account that the parody (even if First Amendment protected) was doubtless hurtful to them.

How could the paper not have anticipated that its note would be more likely to prompt a suit, than to preempt one? It had insulted a judge and a prosecutor. It probably knew the judge was married to a lawyer, and thus had access to a free attorney.

A more respectful note from the paper might have been able to preempt this lawsuit, which is costly not only for the Observer, but also for the judicial system. It's one thing to stand one's First Amendment ground—as the Observer did, and absolutely should have done—and another to taunt a judge and prosecutor into a lawsuit. Freedom is not inconsistent with decency.

What is peculiar about this take on the case is that parody and satire both openly seek to mock the views that are being criticized. Any parody or satire worth its salt is going to sting. Parody is commonly understood to consist of close imitation "for comic effect or in ridicule." Merriam-Webster's Collegiate Dictionary 844 (10th ed. 2001). Satire consists of sarcastic commentary designed to "ridicule or scorn." Id. at 1035. Surely it is not logical to posit that parody and satire are protected free speech but then maintain that a respectful clarification, retraction, or apology is in order whenever the ridiculed party complains. The whole point of ridicule is that the arguments, conduct, or persons derided are so contemptible as to be unworthy of respectful treatment.

Posted by Curmudgeonly Clerk at 12:09 PM | Comments (3)

December 11, 2003

More on Tort Reform

Stuart Taylor, Jr. and Evan Thomas have a lauded article in Newsweek on litigation fears and tort reform. Given the blaring cover's proclamation—Lawsuit Hell: How Fear of Litigation is Paralyzing Our Professions—one can imagine the article's thesis. Some of its contents are lacking in substance, however. Consider this passage, for example:

Dr. Sandra R. Scott of Brooklyn, N.Y., has never been sued for malpractice, but that doesn't keep her from worrying. As an emergency-room doctor, she often hears her patients threaten lawsuits—even while she's treating them. "They'll come in, having bumped their heads on the kitchen cabinet, and meanwhile I'll be dealing with two car crashes," she says. "And if they don't have the test they think they should have in a timely fashion, they'll get very angry. All of a sudden, it's 'You're not treating me, this hospital is horrible, I'm going to sue you."

It is hard not to laugh out loud at this passage. So now even non-litigation is evidence of a litigation crisis? This doctor has never been sued. But the fact that unenumerated unidentified disgruntled injured laypeople have threatened to do so also threatens to paralyze the medical profession?

Some of the sentiments conveyed by Taylor and Evans are so self-contradictory that cognitive dissonance seems like an understatement. For example:

Many of these cases do not belong in court. But clients and lawyers sue anyway, because they hope they will get lucky and win a jackpot from a system that allows sympathetic juries to award plaintiffs not just real damages—say, the cost of doctor’s fees or wages lost—but millions more for impossible-to-measure "pain and suffering" and highly arbitrary "punitive damages."

* * *

The cost to society cannot be measured just in money, though the bill is enormous, an estimated $200 billion a year, more than half of it for legal fees and costs that could be used to hire more police or firefighters or teachers. Our society has been changed in a subtler, sadder way. We have been hardened and made more fearful. Friends and neighbors are more wary now. . . .

Apparently, if juries award non-economic damages it is arbitrary and illegitimate, but when Newsweek reporters dwell on equally non-quantifiable non-economic costs it is another matter altogether. So damages stemming from emotional distress are a crock, but the emotional costs imposed on society by the very process of litigation form a compelling argument for reform of the system? Of course, there actually is one huge difference between the two sorts of incalculable harms discussed by Taylor and Evans. A plaintiff actually has to prove the existence of pain and suffering or emotional distress with competent evidence. Taylor and Evans just posit the purported non-economic societal costs in the apparent hope that it will occur to no one to ask for more than anecdotal proof.

And the Newsweek article does have anecdotes aplenty, as many as can be crammed into its short space. As is so often the case with such stories, details suffcient to make educated judgments about the cases involved are sorely lacking. The American Trial Lawyers Association has tracked some of these cases down, however, and alleges that Taylor and Evans mistate both the facts and the law with some frequency. I have not had the opportunity to verify all of ATLA's claims, but, if accurate, ATLA's rebuttal renders Newsweek's article rather alarmist. Unlike Taylor and Evans, ATLA footnotes many of its claims, so verifying the accuracy of its contentions ought not to be difficult. Certainly the charges leveled are not the sort that Taylor and Evans can simply ignore.

(Thanks to Instalawyer for the ATLA link.)

Update I: Timothy Sandefur takes issue with my assessment. The nub of his argument is as follows:

The problem isn't so much irrational tort lawsuits. The problem is the fear of irrational tort lawsuits.

But this begs the question. The real question is whether this fear is itself rational. This is the fulcrum about which the tort reform debate pivots. If tort reformers cannot make a solid empirical case regarding the actual existence of our purported litigation hell, then any fear of such is ill-founded. Certainly tort reformers cannot bootstrap their way from the latter to the former.

The cases regarding fear of contracting HIV provide a nice parallel to the analytical framework that I am suggesting. Some courts have allowed this cause of action to proceed. But in order to do so, a plaintiff must show that his fears have some legitimate basis. This generally consists of demonstrating some actual exposure to infection. Similarly, I think that tort reformers have to demonstrate that there truly is an unacceptable exposure to liability in any given field of endeavor before I will take fears that are otherwise only grounded in anecdotal evidence of dubious veracity seriously.

Update II: Timothy Sandefur remains unconvinced, but then again he thinks that Liebeck was a travesty as well.

Update III: Ted Frank has a post over at Overlawyered that takes issue with ATLA's response to the latest issue of Newsweek. Some of Frank's ripostes hit their target. However, his initial one about the lawsuit exposure of clergy strikes me as somewhat ineffectual.

Frank's reponse on this subject is responsive to ATLA's argument, but seems misplaced nonetheless. Given Frank's views of causation in the Liebeck case, surely he sees that clergy's increased exposure of late is a consequence of (a) numerous meritorious inappropriate contact cases and (b) the willingness of church authorities to excuse and cover up such behavior, rather than ill-intentioned trial lawyers manufacturing business. See, e.g., Michael Rezendes, Doubts in Memo Slowed '87 Case, Boston Globe, June 13, 2002. The lawsuit exposure of clergy strikes me as one of many areas in which tort reformers are simply barking up the wrong tree.

Update IV: Newsweek has fired back a response defending its reporting. This response is available online courtesy of Overlawyered. Newsweek has also made available online a small sampling of its readers' feedback on the issue. One of the actual authors of the "Litigation Hell" piece, Stuart Taylor, Jr., has published a far lenghtier response to his critics over at Overlawyered, which may be viewed here and here.

Posted by Curmudgeonly Clerk at 12:25 AM | Comments (14)

December 10, 2003

Colonel Flagg for the Prosecution?

Steve Verdon has an extremely unkind but very funny post up describing the Army's bumbling attempt to prosecute Chaplain Yee. The picture of Colonel Flagg is an especially nice touch.

Posted by Curmudgeonly Clerk at 10:48 PM | Comments (1)

Crying Over Spilt Coffee

The war of words over the McDonald's coffee case has escalated. My original post with appended updates linking to all of the relevant comments appearing elsewhere may be found here.

Posted by Curmudgeonly Clerk at 06:07 PM | Comments (7)

December 09, 2003

More on Lt. Colonel West

A United States Army officer serving in Iraq has penned a thoughtful perspective on the West affair that mirrors some of my own sentiments on the matter.

(Thanks to reader Dylan Alexander for bringing this post to my attention.)

Posted by Curmudgeonly Clerk at 06:12 PM | Comments (0)

Footnotes

When I write internal memoranda for the court on unfamiliar legal issues, I tend to be rather expansive and academic about it, time allowing. Being a baby lawyer (i.e., a relatively recent law school graduate/bar exam passee), most legal issues are unfamiliar to me. In other words, I do a lot of such writing. I don't mind this one bit. Apart from being useful for the court as a future reference on similar claims, it is a useful educational tool for me.

The line between expansive educational writing and navel-gazing can be a fine one, however, and sometimes I cross it. This is particularly true early in the writing process, at which point I am frequently not sure what all of the issues are let alone where the merits lie.

There is one sure sign that indicates when I have gone too far afield though. Occasionally, I will have penned a multi-paragraph footnote with robust citation only to write a sentence and think to myself . . . you, know, this would be a great place for another footnote! That's right, footnotes to footnotes.

I suspect that this inclination must be a manifestation of obsessive compulsive disorder or some other impairment. When your serious legal writing begins to sound like something that would happen in one of Justice Bedsworth's columns, you know that you are in trouble. But it is nice to know that I do not suffer alone.

Posted by Curmudgeonly Clerk at 09:39 AM | Comments (3)

The McDonald's Coffee Case

Professor Bernstein has a brief post in which he argues that the infamous McDonald's coffee spill case—Liebeck v. McDonald's Restaurants, P.T.S., Inc., No. CV-93-02419 (N.M. Dist. Ct. 1994) (unpublished opinion)—is the epitome of frivolous litigation and that sentiments to the contrary are just so much misinformation by "[l]eft-wing Naderite[s]" or self-interested "trial lawyers." Having read a fair amount about this case, I think that the professor could not be more ill-informed. And being that I am neither a Naderite nor a trial lawyer, I imagine that Bernstein will have to stoop to actually answering my arguments on the merits.

First, let's examine Professor Berstein's evidence, such as it is. Bernstein writes:

Don't people realize, they ask, that McDonald's served its coffee at approximately 185 degrees, at least 20 degrees hotter than other fast food chains? And that other people had also been burned by the coffee? Well, here's the problem for me. If you make coffee at home, it is brewed at 195 degrees or higher, and it is recommended that it be served immediately. Coffee is typically (or at least properly) kept at 180 degrees or slightly higher in a carafe to maintain taste.

The links in the quoted material appear in the original. Bernstein links to two sources for this information: The National Coffee Association of the USA, an industry trade organization; and a high-end coffee maker manufacturer. Neither source is discussing coffee temperatures in any detail and none of their representations are being made in the context of an adversary process in which scientific representations are subject to legal inquiry, disputation, and objection under Daubert and its progeny. Neither of Bernstein's sources is illegitimate, but they are hardly disinterested either.

Had Bernstein consulted some similar published cases on this topic, he might have discovered additional relevant information. Consider, for example, this passage by Judge Easterbrook, who is not at all sympathetic to the plaintiff's claims, from McMahon v. Bunn-O-Matic Corp.:

. . . [A] little digging on our own part turned up ANSI/AHAM CM-1-1986, which the American National Standards Institute adopted for home coffee makers. Standard 5.2.1 provides:

On completion of the brewing cycle and within a 2 minute interval, the beverage temperature in the dispensing vessel of the coffee maker while stirring should be between the limits of 170° F and 205° F . . . .

The upper finished brew temperature limit assures that the coffee does not reach the boiling point which can affect the taste and aroma. The lower temperature limit assures generally acceptable drinking temperature when pouring into a cold cup, adding cream, sugar and spoon.

* * *

Thus home coffee makers that claim to follow the standard (a voluntary step; no statute or regulation requires compliance) must brew and hold coffee at a temperature that does not fall below 170°.

* * *

Why did the American National Standards Institute set 170° F as the minimum temperature at which coffee should be held ready to serve?

* * *

. . . [E]ven a little investigation (albeit unassisted by the parties) shows that there may be good reasons for selecting a temperature over 170° F, as several other courts have recognized. See Michael Sivetz & H. Elliott Foote, 2 Coffee Processing Technology ch. 19.2 (1963). The smell (and therefore the taste) of coffee depends heavily on the oils containing aromatic compounds that are dissolved out of the beans during the brewing process. Brewing temperature should be close to 200° F to dissolve them effectively, but without causing the premature breakdown of these delicate molecules. Coffee smells and tastes best when these aromatic compounds evaporate from the surface of the coffee as it is being drunk. Compounds vital to flavor have boiling points in the range of 150° F to 160° F, and the beverage therefore tastes best when it is this hot and the aromatics vaporize as it is being drunk. For coffee to be 150° F when imbibed, it must be hotter in the pot. Pouring a liquid increases its surface area and cools it; more heat is lost by contact with the cooler container; if the consumer adds cream and sugar (plus a metal spoon to stir them) the liquid's temperature falls again. If the consumer carries the container out for later consumption, the beverage cools still further.

150 F.3d 651, 655-56, 658-59 (7th Cir. 1998).

It should be noted at the outset that the claims in McMahon were also not scientifically rigorous. Judge Easterbrook relied on the ANSI standards as a reference solely because the parties provided the court with none of the relevant scientific data. See id. at 659 ("Our point in discussing these issues is not to endorse Sivetz & Foote; their position may be scientifically contestable. It is only to demonstrate that without evidence that a holding temperature of 180° F is of little worth to consumers, plaintiffs cannot show that the choice of a high temperature makes coffee defective."). Nonetheless, to the extent that the data cited by Easterbrook and Bernstein vary, I am inclined to assume that ANSI data is more objective and reliable than the less disinterested sources on which he relies, but I could be mistaken on this point.

Notwithstanding the variance in the data cited by Bernstein and Easterbrook, some obvious inferences flow from the latter's opinion that have a noticeable impact on the former's conclusion. The appropriate holding temperature for home-brewed coffee is premised on the notion that multiple factors will lead to a marked reduction in temperature immediately after the coffee leaves the carafe in the home environment. In short, we will not be confronted with 170° or 180° F coffee at home, unless we accidentally pour it on ourselves directly from the carafe.

There is less reason to assume that the comparatively hotter coffee served by McDonald's in the Liebeck case would be subject to an immediate cooling process of similar scope. For example, rather than being poured into a conventional ceramic coffee cup, fast food coffee is typically poured into a (subsequently lidded) cup made of material designed to retain the coffee's temperature over an extended period. To the extent that other items are stirred in (e.g., sugar, cream), the utensils available are plastic rather than metal, and creamer is usually considerably less cold than might be found in an average home refrigerator.

I can only make an educated guess as to how much such factors, in conjunction with the higher temperatures of the McDonald's coffee at issue in Liebeck, might affect the temperature of commercially served coffee, but they seem like material considerations of the sort that would have to be subjected to expert testimony in any given case. Bernstein does not account for any such variables. As such, it seems to me that he underestimates the complexity of the inquiry involved in these coffee spill cases.

I rather suspect that my supposition that coffee served in fast food venues does not cool as fast as coffee poured at home is correct based on the Liebeck case itself. One additional, necessary datapoint missing from the McMahon case was the incidence of injuries caused by coffee served at the temperatures complained of. See id. at 658 ("As for costs, the record is silent. We do not know whether severe burns from coffee are frequent or rare."). The jury was not missing such data in Liebeck. As reported in the Wall Street Journal:

Even more eye-opening was the revelation that McDonald's had seen such injuries many times before. Company documents showed that in the past decade McDonald's had received at least 700 reports of coffee burns ranging from mild to third degree, and had settled claims arising from scalding injuries for more than $500,000.

* * *

The testimony of Mr. Appleton, the McDonald's executive, didn't help the company, jurors said later. He testified that McDonald's knew its coffee sometimes caused serious burns, but hadn't consulted burn experts about it. He also testified that McDonald's had decided not to warn customers about the possibility of severe burns, even though most people wouldn't think it possible. Finally, he testified that McDonald's didn't intend to change any of its coffee policies or procedures, saying, "There are more serious dangers in restaurants."

The WSJ account also contains a noteworthy bit of anecdotal evidence regarding McDonald's pre-Liebeck practices that lends some credence to my surmise:

. . . "I drink McDonald's coffee because it's hot, the hottest coffee around," says Robert Gregg, a Dallas defense attorney who consumes it during morning drives to the office. "But I've predicted for years that someone's going to win a suit, because I've spilled it on myself. And unlike the coffee I make at home, it's really hot. . . .

The plaintiff in Liebeck presented evidence roughly to this effect, and given the extent of the plaintiff's injuries (i.e., extensive third-degree burns to the plaintiff's labia, inner thighs, and buttocks that required skin grafts), the jury apparently accepted this evidence. The defendant certainly had the benefit of the adversary process, yet accounts do not indicate that the defendant made any attempt to refute this contention. See, e.g., Professor Brill's synopsis of the case. I place more stock in the case-by-case adversarial presentation of such claims under the appropriate legal standards and subsequent evaluation by an impartial jury than in Professor Bernstein's non-analytical "common sense" approach.

Update I: Blog 702, a weblog devoted to Daubert weighs in with the following observation:

To our minds, the Curmudgeonly Critique misses one central point. Insofar as Prof. Bernstein's position depends on the thesis that higher temperatures are necessary to "maintain taste," his opinion seems lacking in "fit," as concerns the McDonalds concoction.

Legally speaking, it does not appear that this temperature/taste correlation is irrelevant to defective product and marketing defect claims. Coffee spill cases are generally brought as such. See, e.g., McMahon, 150 F.3d at 654. In McMahon, Judge Easterbrook wrote that the incremental risks of higher temperatures involved needed to be weighed against the benefits of superior taste and intimates that such considerations are relevant to both claims. See id. at 657. Personally, I am not sure how one balances such incommensurables, but, at the very least, it would require substantial data to be submitted regarding the possibility and extent of injury sustainable at incremental temperatures. I believe that such data was put before the jury in the Liebeck case.

Update II: Professor Bernstein has some further thoughts on the coffee case. I get the distinct feeling that he is less than convinced. Some of his responses would make for nice exploratory hypotheticals regarding liability in such cases. Time allowing, I'll expand on this a bit more.

Update III: Ted Frank of Overlawyered posits that my take on the Liebeck case is indicative of "how thoroughly the plaintiffs' bar has infiltrated societal thinking." I must confess that I find Frank's arguments in support of his editorial viewpoint to be rather weak. Consider this bit from Frank:

The Clerk justifies the verdict on a couple of grounds: McDonald's had 700 previous complaints; and Ms. Liebeck suffered horrific injuries.

To say that there were 700 previous complaints of burns (ranging from scalds to real injuries) from McDonald's coffee begs the question. After all, 700 is just the numerator. What's the denominator? The answer is in the tens of billions. A product that hurts one in twenty-four million people is not "unreasonably dangerous", especially when the vast majority of the 700 incidents were not the sort of grievous injuries. . . .

I think that Frank misconstrues my argument somewhat. Or, perhaps, I was less clear than I might have been. From my point of view, the 700 number is not principally relevant to show any sort of statistical significance or likelihood of injury overall, but rather to show two things. First, McDonald's coffee was sufficiently hot to injure a fair number of people. That is, there was nothing unique about Liebeck's case regarding the injuries; it was not a single isolated incident. Second, it demonstrates that McDonald's as an entity was aware of the potential for injury well prior to the Liebeck case.

Setting aside these matters, I think that Frank gets the denominator wrong where statistical significance is concerned. After all, the relevant inquiry is not what chance you have of being injured while drinking coffee (i.e., # of injuries/# of cups sold and consumed). The question is what would your likelihood of injury be if the coffee is spilled (i.e., # of injuries/# of cups spilled on a person). And the latter fraction yields a result of 1 or a decimal very close to it, because, at the temperatures in question, McDonald's coffee would not fail to injure a human being.

Frank follows his previous point up with this:

That Ms. Liebeck was surely serious[ly] hurt doesn't change the underlying problem with the lawsuit: Ms. Liebeck was hurt because she spilled coffee on herself. . . . True: McDonald's could have served luke-warm coffee or even iced coffee. But at the end of the day, the proximate cause of Ms. Liebeck's injuries, as awful as they were, was Ms. Liebeck.

There is a lot that is wrong with the preceding paragraph. These cases, as in McMahon are generally brought in terms of strict liability product defect and marketing defect causes of action. Setting aside the latter, in Texas, the elements of a product defect claim are: "(1) a product defect, (2) that existed at the time the product left [the] manufacturer's hands; (3) the defect made the product unreasonably dangerous; and (4) the defect was a producing cause of plaintiff's injuries." Parsons v. Ford Motor Co., 85 S.W.3d 323, 329 (Tex. App.—Austin 2002, pet. denied). Although Liebeck did spill the coffee on herself, such spills are a reasonably foreseeable consequence of normal use of the product. Spills happen. But had the coffee been a reasonable temperature, the consequences would have been within the realm of those contemplated by coffee drinkers. No one would suspect that coffee might result in such catastrophic burns. Frank also presents a false dichotomy in which the only temperature alternatives are insufferably hot and lukewarm (or worse). Of course, McDonald's could have served hot coffee that would nonetheless not result in third-degree burns if spilled too.

The Texas Supreme Court nicely encapsulated how the foregoing factors figure in a products liability action:

We believe that a duty to discover defects, and to take precautions in constant anticipation that a product might have a defect, would defeat the purposes of strict liability. Thus, we hold that a consumer has no duty to discover or guard against a product defect, but a consumer's conduct other than the mere failure to discover or guard against a product defect is subject to comparative responsibility. Public policy favors reasonable conduct by consumers regardless of whether a product is defective. A consumer is not relieved of the responsibility to act reasonably nor may a consumer fail to take reasonable precautions regardless of a known or unknown product defect. . . .

Gen. Motors Corp. v. Sanchez, 997 S.W.2d 584, 594 (Tex. 1999).

Hence, Liebeck's comparative responsibility for the accident might not be entirely irrelevant, but it is hardly dispositive. Perhaps, one way of contemplating the rationality of such a system is to consider a negligence hypothetical: a pedestrian jaywalks and gets hit by a speeding motorist. If you accept Frank's logic, the jaywalker is entirely at fault for his resulting injuries. But that's not quite right is it? Even conceding the relevancy of whatever Liebeck's comparative responsibility might be, comparative responsibility goes to damages not liability. Frank seems to be relying on the hoary and abrogated doctrine of contributory negligence.

Frank also writes that:

The argument for liability is that McDonald's chose to serve its coffee hot and should have foreseen that people would burn themselves when they spilled coffee. But, here's a question: the reason Ms. Liebeck's injuries were so terrible was because she was wearing a sweatsuit that absorbed the hot liquid and held it close to her skin. Surely, clothing manufacturers can foresee that people will spill hot liquids on themselves. If Ms. Liebeck's sweatpants had been made out of Goretex or some other liquid-resistant material, she never would have been hurt. What's the principle of tort law that holds McDonald's liable, but not the clothing manufacturer?

The answer to Frank's last question is that a sweatsuit is not unreasonably dangerous, whereas coffee hot enough to result in burns that require medical attention is. Contrast, for example, a pair of sweat pants with non-fire retardant children's pajamas. The fact that Liebeck's movement was relatively confined due to her presence in a vehicle might also have exacerbated her injury in some sense, but not in a fashion that would lead to liability on the part of an auto manufacturer. The fact that there is not a bright-line rule here will, no doubt, dishearten some, but this is precisely why we empanel juries. It also seems rather obvious that McDonald's superheated coffee contributed to Liebeck's injuries in a fashion that her sweat pants and the narrow confines of a vehicle did not.

Frank is simply incorrect to the extent that he suggests that, but for the sweatsuit, Liebeck would not have been injured. The sweats merely exacerbated the injury. The same is probably true of Liebeck's age to a certain degree (i.e., less resilient skin), but it is generally the case that a party who injures another takes the victim as it finds him. See, e.g., Lang v. City of Nacogdoches, 942 S.W.2d 752, 766 (Tex. App.—Tyler 1997, pet. denied) (reciting "the rule that a tortfeasor takes his victim as he finds him").

Update IV: Blog 702 continues to deny that McDonald's produces anything that might properly be regarded as coffee. In addition, Peter Nordberg has some very interesting observations about the nature of decisionmaking in the context of juries that responds to some of what Professor Bernstein wrote in his second post on this subject.

Update V: At least one self-identified proponent of "reasonable tort reform" thinks that the movement might not want to be so quick to expend its time and energy excoriating the result in Liebeck.

Update VI: Frank has filed a surreply that focuses principally on what the correct denominator ought to be. I think that his response is self-evidently wanting. He writes:

CC's proposal makes no public policy sense. By that argument, my bright red Swingline stapler is "unreasonably dangerous" because the likelihood of injury if I were to attempt to staple myself would be 100%.

Frank's hypothetical, which involves intentional self-injury, is hardly parallel to the coffee spill scenario. For starters, what is the product defect of which one might complain regarding the stapler? But for the excessive temperature of the coffee, an accidental spill would not have dire consequences. Yes, intentionally stapling yourself will inevitably lead to injury. But in the absence of superheated coffee even intentionally spilling coffee on oneself would not necessarily lead to serious injury. We expect staplers to staple whenever we press on them, no matter what happens to bear the brunt of the stapling. But when we accidentally spill coffee on ourselves, we do not expect third-degree burns. Why, one wonders, does Frank see a parallel here?

Frank also accuses me of assuming facts not in evidence with regard to the role of Liebeck's sweatpants in her injury. I think Frank is the one weighted down by assumptions. An article in the Wall Street Journal reported that the McDonald's coffee at issue was approximately 180° F when served. A medical expert for the plaintiff testified at trial that "it takes less than three seconds to produce a third-degree burn at 190 degrees, about 12 to 15 seconds at 180 degrees and about 20 seconds at 160 degrees." If anything, sweatpants are more quickly removeable than just about any other sort of pants. Had Liebeck been wearing bluejeans, the coffee-soaked material would have likely remained on her skin as long or longer. At any rate, given the high temperature involved, injury was bound to result rather quickly, approaching the range of third-degree burns within a mere twelve to fifteen seconds at most. Liebeck would have been injured no matter what she was wearing. The only question is the degree of injury that would have been involved. And Frank has certainly come forward with nothing in the way of evidence in this regard.

Frank's argument about the sweatpants is a mere diversion, however. Addressed from a product liability standpoint, it is not clear that one could demonstrate that the sweats, unlike the coffee, had a design or marketing defect. Viewed from a negligence perspective, proximate cause is lacking where the sweats are concerned. The temperature of McDonald's coffee caused Liebeck's burns in a more immediate and direct fashion than what she was wearing contributed to them. Liebeck's clothing's connection to the resultant injuries is simply too attenuated to result in liability for the manufacturer of the sweats for reasons familiar to any first year law student. See Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 101 (N.Y. 1928) ("One who seeks redress at law does not make out a cause of action by showing without more that there has been damage to his person. If the harm was not willful, he must show that the act as to him had possibilities of danger so many and apparent as to entitle him to be protected against the doing of it though the harm was unintended."). Coffee served at 180° F poses such manifold risks, jogging pants do not.

In part, I think that Frank's misapprehensions stem from a failure to fully appreciate the legal standards involved. Generally speaking, it is said that products liability actions require a plaintiff to demonstrate producing cause. Producing cause, like proximate cause, requires a showing that the alleged defect was a cause in fact of the injuries sustained. Unlike proximate cause, producing cause does not require a showing of reasonable foreseeability.

Frank devotes some space to decrying the fact that a plaintiff like Liebeck need not demonstrate forseeability. He writes that, "a defendant who is not the proximate cause should not be held liable." From this, and the elements enumerated in Parsons above, I take it that Frank has concluded that plaintiffs like Liebeck are not required to make any showing regarding foreseeability. I think that Frank is mistaken.

First, with regard to Liebeck herself, she proved foreseeability beyond peradventure. Although Frank prefers to downplay the approximately 700 other McDonald's coffee cases on the grounds of statistical irrelevance, McDonald's knew that its coffee could and occasionally did produce serious burns. Under such circumstances it was certainly foreseeable that a plaintiff like Liebeck would likely appear.

Second, as the analysis in McMahon indicates, the inquiry regarding whether a defect was unreasonably dangerous inevitably leads to a consideration of the same sorts of data that a foreseeability inquiry involves. Some form of foresseability analysis creeps into defective products cases by necessity, precisely to foreclose "liability for very attenuated injuries." See David W. Robertson et al., Cases and Materials on Torts 579-80 (2d ed. 1998). But if a business serves coffee at an abnormally hot temperature, the resulting burn injuries are hardly attenuated.

Posted by Curmudgeonly Clerk at 01:01 AM | Comments (26)

December 08, 2003

Extra, Extra!

Attention Texas attorneys: Texas Lawyer's De Novo magazine is planning on doing a piece on Texas legal weblogs. You can submit your blawg and biographical details for consideration for inclusion in the article here.

Posted by Curmudgeonly Clerk at 02:10 PM | Comments (0)

December 07, 2003

Day Of Infamy

Today is the 62nd anniversary of the Japanese sneak attack on Pearl Harbor that ushered the United States into World War II.

Posted by Curmudgeonly Clerk at 08:37 PM | Comments (0)

December 06, 2003

'Tis The Season For Litigation

Ms. Morality links to this story detailing still more Christmas-related madness:

Andrea Skoros sued the New York City public school system after being told her kids' Nativity scene could not be a part of the holiday display although a Hanukkah menorah and the star and crescent representing Islam could be exhibited.

* * *

"I felt that it is only fair if they are going to display the menorah, which is a religious symbol, that they also display the Nativity scene instead of just snowmen and stockings and Christmas trees."

While school officials wouldn't discuss the lawsuit, legal briefs filed said it has "drawn an appropriate line between secular holiday decorations and those that are purely religious."

I never cease to be amazed by how we have to go through this nonsense every holiday season. There is enough caselaw on this subject that lawyers who represent school districts (and other government entities) ought to be able to write a simple brief that outlines the ground rules.

Quite apart from the law, I don't see why any of this needs to be acknowledged in a public school. Every resource expended on this dispute is a resource that could have been better put to educational ends. It's not as if public schools are doing such a wonderful job that they have money to burn. But this school district practically begged for this sort of lawsuit. It is stunningly ignorant to put on display a menorah and star and crescent and then deny that they have anything other than secular significance. What are these two symbols intended to represent if not Judaism (or more specifically Chanukah) and Islam respectively?

Posted by Curmudgeonly Clerk at 11:08 AM | Comments (3)

December 05, 2003

Headscarves

The Straits Times reports that France is planning on banning the wearing of headscarves by Muslims from its public schools:

France, with a Muslim population of five million, the largest in Western Europe, announced on Nov 28 plans to ban headscarves from schools. It came after half-Muslim sisters Lila, 18, and Alma Levy, 16, were permanently expelled from a school in the northern Paris suburbs for refusing to remove their headscarves before lessons.

While current legislation permits the wearing of headscarves in schools if it is not 'aggressive or proselytising', individual schools are left to decide how this should be enforced. In this instance, the school's teachers took offence. And they are not the first to do so.

For the past decade, teachers and feminists in France have regarded veiling as a form of gender apartheid. The country's staunch secularists have also taken umbrage, worried that the donning of religious garb in civic spaces undermines the 1905 law that separates the state from religion, a cornerstone of French civil society.

'Secularism is non-negotiable,' says Mr Richard Serero of the International League Against Racism and Anti-Semitism, 'because secularism is about equality. We don't care if you're Jew or Christian or Muslim or gay or lesbian in your private life. You don't have to make an exhibition of it. We are all human beings with the same rights and the same duties.'

The story also traces similar wrangling over headscarves in Germany and Russia.

I am uncertain regarding the legality of such a ban under U.S. law, but I think that the notion that the wearing of a headscarf in public school would trangress the separation between church and state is dubious. I do not think that one could claim that the wearing of a headscarves in public schools would violate the Establishment Clause. See Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 18 n.8 (1989) ("[I]f the Air Force provided a sufficiently broad exemption from its dress requirements for servicemen whose religious faiths commanded them to wear certain headgear or other attire, see Goldman v. Weinberger, 475 U.S. 503, 106 S.Ct. 1310, 89 L.Ed.2d 478 (1986), that exemption presumably would not be invalid under the Establishment Clause even though this Court has not found it to be required by the Free Exercise Clause.").

But as the preceding parenthetical, perhaps, indicates, it also does not appear to be clear that students have a right to wear such scarves in American public schools. Students' attire-related First Amendment rights are somewhat truncated in non-religious contexts. Newsom ex rel. Newsome v. Albermarle County Sch. Bd., __ F.3d __, 2003 WL 22839241, at *4-5 (4th Cir. 2003). Of course, the Free Exercise Clause might alter this calculus. But cf. United States v. Bd. of Educ. for the Sch. Dist. of Philadelphia, 911 F.2d 882 (3d Cir. 1990) (upholding state law prohibiting public school teachers from donning religious garb againt free exercise challenge brought as Title VII suit by a Muslim woman), called into doubt by, Tenafly Eruv Ass'n, Inc. v. Borough of Tenafly, 309 F.3d 144, 173 n.33 (3d Cir. 2002).

Does anyone happen to know more on the subject or know of additional relevant caselaw?

(Link via The Corner.)

Posted by Curmudgeonly Clerk at 05:05 PM | Comments (3)

December 04, 2003

Colonel West Cont'd

Jed Babbin has a rather unsophisticated article about the potential charges being faced by Lt. Colonel West over at National Review Online. West, you will recall is the Army officer who may face aggravated assault charges for his conduct during an interrogation of a detained Iraqi policeman.

Babbin begins with the factual details, as related by West's defense attorney:

Between August 16 and 20, intelligence identified an Iraqi policeman who was allegedly involved in the assassination plot, and the man was arrested on Aug. 20. . . .

Lt. Col. Allen B. West was told the policeman was uncooperative, so he took a few of his men to the interrogation area to see for himself, where he found the prisoner being questioned by two female officers. They told him the man was belligerent, and wasn't giving them any information. . . . West entered the room, sat across from the man, drew his pistol, and placed it in his lap. West told him he had come to either get information, or to kill him. The prisoner responded by smiling and saying, "I love you." The interrogation continued, and one of West's troops lost his temper and started slapping the man. West then had his men take the prisoner outside, where he again threatened the man, telling him that he would kill him on the count of five if he didn't tell what he knew. The prisoner refused, and West fired his pistol into the air.

The interrogation continued, but not the beating. After about 20 more minutes of useless questioning, West grabbed the man, held him down near a box full of sand used to discharge jammed weapons, and said something like, "This is it. I'm going to count to five again, and if you don't give me what I want, I'm going to kill you." West held the man down, counted to five, and then fired his pistol into the discharging box about a foot from the Iraqi's head. He began talking. Over the next few minutes, the prisoner gave very specific information about the plot. He named the conspirators, gave times and dates of the assassination plan, and even described how attacks would be made.

These details roughly correspond to West's own prior account. Of course, the facts rendered by West's lawyer do leave out at least one salient detail: West has more than once conceded that the foregoing interrogation tactics were improper. Babbin, to his credit acknowledges the impropriety of West's conduct, albeit not West's own self-condemnation. West's lawyer's rendition of the facts also downplays material in other reports. For example, West expressly told his subordinates that the interrogation "could get ugly" and it did: "West said he watched without intervening as his men beat [the Iraqi], who had information, the troops believed, about plots to attack them." One gets the feeling that the word "slapping," employed by Babbin, might just be more than a little understated. One of West's subordinates rather ambiguously testified at the Article 32 (i.e., grand jury) hearing that, "he and other soldiers "'weren't hitting him as hard as we possibly could.'"

Nonetheless, it is not clear whether West will actually be charged. Thus far, he has been before the military equivalent of a grand jury and the decision to indict or not has not yet come down. If the United States' military's legal process is working properly, West will be indicted before long.

Given the acknowledged, undisputed facts, there is no question that West is guilty of aggravated assault under the Uniform Code of Military Justice. Legally speaking, the case is about as airtight as they come. So Babbin wisely does not discuss the relevant law. To even try to mount a legal defense leads to absurdity. Consider, for example, this argument presented by West's lawyer, retired Marine Corps Lt. Col. Neal Puckett:

Before departing for Iraq Thursday, Puckett insisted it was not a foregone conclusion West violated the military code, emphasizing the threat was conditional.

"When you offer somebody a choice, that's very different from a threat that says, 'I'm going to kill you,'" Puckett said.

By Puckett's perverse reasoning, an armed robber who says, "Your wallet or your life" hasn't actually threatened you. You do, after all, have a choice! If the advocacy seems particuarly poor, it may be unfair to hold it against Puckett. As I noted, the legal case is so airtight that a defense lawyer is practically reduced to uttering such inanities or remaining altogether silent.

Where Babbin himself does touch on the law, he gets it entirely wrong. For example, writing of the Geneva Convention, he argues:

It's no use to simply tell the troops that you have to follow the Geneva Conventions. They are, by necessity, in broad terms. Torture and abuse are outlawed. But does slapping a man or frightening him by discharging a pistol near him violate the Conventions? Hardly.

As an initial matter, it is doubtful that the Geneva Convention applies to the Iraqi detainee at all, given the definition of prisoner of war in Article 4. Nonetheless, to the extent that we might look to it for guidance on proper conduct regarding detainees, Babbin could not be more mistaken. Article 17 provides that:

No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind.

The bold font emphasis is mine. It is difficult to imagine how Article 17 might have been more clearly drafted to forbid the very sort of conduct to which West has admitted.

Babbin's real focus is extralegal, however. He dwells on the wisdom of bringing charges in the first place. It seems to me that what Babbin is maintaining is that, as a matter of sensible policy, the Army should have exercised its discretion and withheld charges in this case. Here is Babbin's apparent rationale for doing so:

What Allen West did was wrong. But there is nothing he did that warrants a court martial or a felony conviction: It's clear that the lawyers and the careerists in the Army have decided to make an example of him. But an example of what? . . . [H]ow does it help to court martial [a soldier] who intimidated a prisoner without injuring him, and actually got information that may have saved American lives?

Babbin's thinking here is flawed in multiple respects. First, there is this distracting bit about "lawyers and careerists" being out to ruin West. West has been in the Army for approximately twenty years; he himself is a career soldier. And West, of course, has his own counsel. This bit about "lawyers and careerists" is really just a bit of ad hominem. It's a wonder that Babbin could restrain himself from just calling them REMFs.*

Babbin asks a very good question, when he queries "But an example of what?" But not only does he fail to answer it, he does not even make an attempt. Given that Babbin's entire thesis is that this prosecution should have never been initiated, his inability to put forward a single reason why it might have been, even if only to shoot it down, betrays a staggering lack of imagination. Why are they out to get West? I guess that's just what "lawyers and careerists" do!

In actuality, the reason is not terribly inscrutable. But it is probably easiest to appreciate the reason for prosecution if we begin by taking up another of Babbin's apparent contentions. Babbin emphasizes that West "actually got information that may have saved American lives," which is undoubtedly true. This fact is relied on by many who would effectively excuse West's conduct. Strangely, neither Babbin nor these others ever seem to appreciate how insidious such logic is. As I wrote elsewhere:

. . . Taking a retrospective view of this incident, emphasizing West's success and the Iraqi's guilt, perverts the inquiry. This is akin to suggesting that we forgive Fourth Amendment violations whenever an illegal search actually turns up contraband. Such a position would effectively amount to an abrogation of Fourth Amendment rights when they truly matter. Of course, this is not how rights function. One does not need to be innocent or free from wrongdoing in order to enjoy his or her rights. The same could be said of human rights, even the human rights of enemies.

It seems to me that the only way around this fact is to either deny altogether that detainees such as this Iraqi have any rights or to argue that the ends justify the means. [In focusing on American lives as the bottom line, Babbin] argues the latter.

I concede that West's conduct was mild relative to what it might have consisted of if administered by someone less humane. However, [the aforementioned] account[s] reveal[] that the Iraqi had been roughed up by soldiers prior to or during West's interrogation in order to make him more cooperative. After this physical coercion failed, West resorted to firing his pistol away from the prisoner and implying that it could just as easily be fired at him. But what if he hadn't broke? If the ends justify the means, how far would West have been entitled to go?

It seems to me that the difficulties posed by such questions in time of war provide some indication of why we generally frown on physical coercion and the threat thereof in interrogation in the first place. The answers are complex judgment calls. Moreover, the people making them are (justifiably) less than dispassionate and disinterested (i.e., soldiers in time of war). Even the ends sought are not entirely clear (i.e., gain information?, stay alive?, crush the enemy?).

There are other obvious what-if questions that one must ponder once one realizes the mistake of viewing the situation in light of 20/20 hindsight. For example, what if it had turned out that the Iraqi had been falsely accused and was entirely innocent? Similarly, being that one has to decide whether to apply force (and how much) in an interrogation of civilian detainees before one has determined the truth, how do you manage to avoid roughing up innocent civilians? (The Iraqi in question was a civilian police officer, not a soldier/P.O.W..)

My intution is that West was charged because not doing so has the potential to open up the floodgates to such behavior. Given the stresses of war and the complexity of the questions involved, it is sensible to have a bright-line rule that simply forbids all such conduct rather than handling each incident on a case-by-case basis, particularly given that mistakes and excesses might do much to harm the war effort by eroding support for American troops amongst the Iraqi population. West has to be held responsible for his actions for all of the reasons that we must punish vigilantism in time of peace. It is all the more important to deter such conduct in time of war, given that the vast majority of legal and moral norms are already in abeyance.

Now, a reasonable person might read the foregoing rationale and nonetheless reject it on some ground or another. But Babbin does not even grapple with the tough issues. Instead, he ignores them and focuses solely on troop morale, which is one consideration of many and probably not the greatest of the many identifiable concerns in this instance.

Babbin's bottom line is that West should merely be reprimanded and retired. I confess that I am uncertain as to what the appropriate punishment should be. As a former military interrogator—one who admittedly (and thankfully) spent my enlistment stateside during peacetime—West's dilemma is not entirely lost on me. Perhaps, under the circumstances his punishment should not be great. But frankly, a man who has put in twenty years and only attained the rank of Lt. Col. has already taken his career as far as it is likely to go; the twenty year mark is generally the point at which career soldiers retire. Discharging him with a mere reprimand at this point is no punishment at all.

For readers, who are interested in a far more sophisticated treatment of coercion in interrogation, I recommend Mark Bowden's The Dark Art of Interrogation, which appeared in The Atlantic Monthly in October of 2003. It offers multiple viewpoints on the issue and is a very interesting read. Toward the end, the executive director of B'Tselem, Jessica Montell, advocates a position that mirrors my own:

She knows that the use of coercion in interrogation did not end completely when the Israeli Supreme Court banned it in 1999. The difference is that when interrogators use "aggressive methods" now, they know they are breaking the law and could potentially be held responsible for doing so. This acts as a deterrent, and tends to limit the use of coercion to only the most defensible situations.

"If I as an interrogator feel that the person in front of me has information that can prevent a catastrophe from happening," she says, "I imagine that I would do what I would have to do in order to prevent that catastrophe from happening. The state's obligation is then to put me on trial, for breaking the law. Then I come and say these are the facts that I had at my disposal. This is what I believed at the time. This is what I thought necessary to do. I can evoke the defense of necessity, and then the court decides whether or not it's reasonable that I broke the law in order to avert this catastrophe. But it has to be that I broke the law. It can't be that there's some prior license for me to abuse people."

West himself has expressed similar sentiments, effectively maintaining that what he did was justified:

In an e-mail to [World Net Daily], . . . [West stated]: "I made a decision, and it has consequences and I accept that."

He stated further, "However, I can look at myself in the mirror and know that my men are well."

If West's actions were justified/necessary, however, then there is not a soldier in Iraq who does not have license to commit aggravated assault.

* REMF is an unofficial military acronym used as a term of disparagement for those who are not on the front lines. It stands for Rear Echelon Mother Fucker(s).

Posted by Curmudgeonly Clerk at 05:00 PM | Comments (0)

December 03, 2003

Sharia in the West

Professor Volokh recently discussed the voluntary application of sharia in Canada via binding arbitration agreements. Regarding this trend, he writes:

I read the Law Times article, and while I may be wrong—I'm no expert on Canadian law—it sounds like this simply provides that Muslims may voluntarily submit their civil disputes to an Islamic law arbitrator, and then have his decision be enforced by Canadian courts. That's the same right that Americans (and perhaps Canadians) have long had as to nonreligious arbitration. If you and I agree to submit our dispute to binding arbitration (whether the agreement is made before the dispute arises or after), the arbitration award will generally be enforced by civil courts. That's perfectly proper: It's part of our freedom of contract, and it can often better fit the desires of the parties (as well as produce quicker resolutions). If you don't like this, don't enter into the arbitration agreement.

Such binding arbitration agreements may sometimes be unenforceable, as to certain causes of action, because the legal system may think that under some situations one's right to have one's case heard by a traditional court shouldn't be waivable. But usually they are quite enforceable. And they sometimes do have provisions saying that the contract should be enforced according to some foreign law—French law, Saudi law, or whatever else; there's no inherent objection to that.

* * *

Nor do I see any likelihood that this would indeed "pav[e] the way to one day administering criminal sentences, such as stoning women caught in adultery." American courts have enforced civil arbitration agreements for a long time, and it has by no means paved the way for enforcement of other systems' laws (laws completely different from America's own) in criminal cases. Voluntary resolution of civil cases and mandatory resolution of criminal cases are vastly different matters. I see no reason why allowing parties to agree that their civil disputes be resolved using Islamic law (or British law or California law) would somehow lead the government to insist that criminal matters be enforced using some other system's law.

Professor Rasmusen has a similar post regarding enforcement of Islamic law in American courts in the family law context. Regarding this, he concludes:

There is nothing wrong with this. Of course, private parties are not allowed to put just any kind of enforceable clause in a contract, which prevents the kind of situation that no doubt is what alarms some people. Under the common law, a contract can't ask for "a pound of flesh", and it can't require an adulterous wife to be stoned to death.

In the abstract, I am hardpressed to disagree with Volokh's and Rasmusen's assessment. Choice of law clauses in contracts or arbitration agreements are generally valid and fully enforceable, in the United States at least. However, I think that the application of sharia is disquieting in ways that voluntary submission to a selected secular legal authority is not.

Part of my hesitancy in this regard has to do with the suspicion that the agreement to be bound by sharia may not be truly consensual in many, many instances. Although courts could probe the validity of consent in any given case, consent can be a very elusive concept and a broad prophylactic rule that deprives sharia of legal status may be more appropriate than case-by-case soulsearching, particularly given the social and religious context in which Western courts will be confronted with sharia.

Consider, for example, this article over at National Review Online:

Young women killed for dating. Limbs amputated for petty theft. Makeshift courts deciding the fates of members of local Muslim communities. The Western world has grown accustomed to hearing about the brutalities of Islamic law. However, these primitive practices are no longer limited to the remote tribal areas of Pakistan, the backward kingdom of Saudi Arabia, or oppressive, mullah-dominated Iran. Today, thanks in large part to a massive flow of immigration from Muslim countries, sharia law and medieval customs are becoming increasingly common in the heart of Christian Europe.

* * *

Honor killings are not limited to Muslim countries and are, in fact, a common practice in several third-world cultures. Not all Muslims approve of them, and, according to some Muslim scholars, they do not reflect "real Islam." Nevertheless, the Koran itself permits men to beat their wives (Chapter 4, Verse 34), and the sharia-inspired penal codes of most Muslim countries give the benefit of the doubt to a man who kills his wife, daughter, or sister for engaging in adulterous or immoral behavior. This barbaric practice, which has not been seen in European countries in well over a century, is making an unsavory return within the Old Continent's Muslim communities.

The effects of the application of sharia in Europe are not limited to Muslim women. Last year, in the small Italian town of Eboli, hospital workers treated a young Algerian man whose fingers on his right hand had been chopped off. Under questioning, the man refused to reveal how he had sustained his injuries, but investigators have no doubt that he was the victim of punishment carried out according to Islamic law. Authorities in southern Italy, where many migrants from North Africa flock to work in agriculture, are becoming accustomed to such incidents. A Sicilian doctor revealed to the Italian magazine Panorama that victims of violent sharia justice go to the hospital only as a last resort, "when the bleeding is serious." He added that he had become knowledgeable about how amputations must be made according to Islamic tradition (the hand has to be chopped off piece by piece, without breaking any bones).

Now, to be perfectly clear, Volokh's assessment does not contemplate the application of the penal aspects of sharia law. Indeed, Volokh thinks that it is implausible (perhaps impossible) that arbitration agreements that provide for application of sharia could lead to enforcement of provisions of sharia regarding honor killings, for example. And Volokh's belief is well-founded: one cannot escape a jurisdiction's criminal law by way of a choice of law clause in a contract or arbitration agreement. That is, one cannot opt out of the United States Code's criminal provisions in America, for example, by private agreement.

However, it ought to be quite clear from the NRO excerpt above that sharia is being enforced within many Muslim immigrant communities in a fashion that is less than consensual. I doubt very much that those on the receiving end of sharia's harsh "justice" have consented to be so abused. Given the nature of these insular communities, what reason do we have to expect that consent exists regarding submission to more innocuous provisions of sharia?

The problem with application of sharia by private agreement is really extralegal. The nature of sharia as conceived of by many Muslim communities and their particular subculture will make it very difficult to pick and choose which portions of sharia will be honored and which will not. In the Muslim conception, sharia is an all-embracing normative code and when Western courts enforce some aspects of it, they may be unintentionally lending a legitimacy to this legal system as a whole, particularly in the minds of Muslim immigrants who do not distinguish between portions of sharia that are enforceable and unenforceable by private agreement after the fashion of the West.

In this regard, a little background on the Islamic concept of law might be in order. Consider this brief excerpt from Bernard's Lewis's The Middle East:

Towards the end of the eighteenth century a Muslim visitor to England, Mirza Abu Talib . . . described a visit to the House of Commons, and his astonishment when it was explained to him that its functions and duties included the promulgation of laws and the fixing of penalties for wrongdoers. Unlike the Muslims, he explained to his readers, the English have not accepted a divine law reavealed from heaven, and were therefore reduced to the expedient of making their own laws 'in accordance with the necessities of time and circumstance, the state of affairs, and the experience of judges.'

In principle, the Islamic legal system was totally different from that which the traveller found and described in England. For Muslims the sole valid law was that of God made known through revelation, manifested in the Qur'an and hadith, and then amplified and interpreted through the work of later jurist-theologians. Where the law itself is seen as enacted by God and promulgated by the Prophet, jurists and theologians follow different branches of the same profession. . . .

In principle, the sharia covered all aspects of Muslim life—public and private, communal and personal alike. Some of its provisions, especially those relating to marriage, divorce, property, inheritance and other matters of personal status, acquired the character of a normative code of law which the faithful were expected to obey and which the state took measures to enforce. . . .

Muslim jurists divide the sharia into two main parts. Of these, one is concerned with the minds and hearts of the believers, that is to say with doctrine and morality; the other with external acts in relation both to God and to man, that is to say with worship, on the one hand, and with civil, criminal, and public law on the other. The purpose of the law was to define a system of rules, the observance of which would enable the believers to live a righteous life in this world and to prepare themselves for eternal bliss in the next. The principal function of the Islamic state and society was to maintain and enforce these rules.

Bernard Lewis, The Middle East: A Brief History of the Last 2,000 Years 223-24 (Simon & Schuster 1995).

This conception of the law is little changed in the minds of many modern Muslim immigrants. The aforementioned NRO article provides some details:

. . . [S]everal Muslim groups in Europe openly advocate the introduction of sharia in the West. Uneducated immigrants might use sharia simply because it is a system they are more familiar with, but militant Islamic organizations push for the introduction of Islamic law because they believe it is a superior system, the law revealed by God, and therefore the only acceptable law.

In Germany, Milli Gorus, a militant Turkish Islamic organization with more than 200,000 members, is accused by German intelligence of promoting Islamic law among Turkish immigrants in Europe. The August 2001 issue of Milli Gorus's official publication, Milli Gazete, featured an article stating that "A religious Muslim is also at the same time an advocate for sharia. The state, the media, and the courts have no rights to interfere. The allegiance of a Muslim to sharia cannot be condemned or questioned."

In Britain, the rapid spread of radical Islam in urban areas has led to major social exclusion and the development of sharia among England's Muslims. Al-Muhajiroun, a London-based fundamentalist group with sympathizers throughout Britain's burgeoning Muslim communities, has made the struggle against "man-made law" one of the key points of its agenda, declaring that its members do not recognize English law, but only Islamic law. . . .

In Italy, mainstream Muslim groups have asked for the introduction of Islamic marriages with no legal effects under Italian law, a de facto subtraction of the wedlock from the control of authorities. This request is aimed at creating a situation where two different legal systems regulate the lives of two different groups of citizens within the same state. In European legal history, it would represent a jump back to the Middle Ages, when different laws applied to different ethnicities. In practical terms, it would mean that Italian citizens of Muslim faith would be subtracted from the guarantees that the Italian legal system provides to its citizens. Therefore, while Christian Italian women would have the same rights as Italian men, Muslim Italian women would have very few rights. While a Christian woman would have the right to obtain a divorce simply by filing papers, a Muslim woman would have to go to great lengths to prove ill treatment at the hands of her husband.

Given this context, I think that a Western state's complicity in enforcing sharia is more than a little troublesome. Professor Volokh posted another statement on this matter that, perhaps, is intended to address the sort of concerns that I outline above. In response to some correspondence, he writes:

Some other readers suggested that people might feel pressured to enter into arbitration agreements, by the threat of condemnation or even ostracism from their religious community. That's absolutely right—but it's also, I think, a necessary consequence of religious liberty. Religions often end up socially pressuring their members to do things: To donate 10% of their income to the church; to not engage in certain conduct that they have every constitutional right to engage in (e.g., blaspheme, go into the pornography business, marry people of other religions, engage in homosexual activity, raise their children in certain ways, join another religion, and so on); to stay in marriages that they'd rather leave; and so on. In fact, one point of religion for many people is to provide pressure that keeps them from backsliding into sinful ways. A key principle of religious liberty, I think, is that it's better to live with this sort of social pressure than to try to save religionists from such pressure.

This is a fair point, however, it does not really address the sort of literal rather than figurative coercion that members of Muslim immigrant communities in the West are likely to face regarding sharia. We are not talking about mere social pressure to conform or ostracization. Many of the Muslim immigrants believe that sharia should be enforced in the most literal sense of enforcement. Volokh's point really only makes sense from the perspective of the West, which conceives of a separation of church and state. But where religion and law are not distinct from one another, as in the Muslim conception, this bit about social pressure misses the mark. And for this reason, I think that enforcement of provisions of sharia by Western courts is potentially quite dangerous.

Volokh also points out that Western courts show no apparent reluctance to enforce other religious arbitrations. For example, he writes that, "American courts seem [willing] to . . . enforce judgments that flow from binding arbitration before a Jewish beth din tribunal." And here is where things get sticky. As Volokh goes on to note, there are three basic approaches that a legal system could take to arbitration: (1) non-enforcement of any private arbitration; (2) non-enforcement or religious arbitration; (3) non-enforcement of sharia-related arbitration. For reasons that Volokh ably explains the last two options are fairly unsavory inasmuch as they discriminate against religious people in general and Muslims in particular respectively. Nonetheless, I think that we also have to acknowledge that enforcement of sharia involves considerations absent from the enforcement of Beth Din arbitrations, particularly given the sheer incompatibility of much of Middle-Eastern Muslim culture and religion with modern Western values, legal and otherwise.

My misgivings could be mistaken, of course. It could be that Western judicial enforcement of sharia is less problematic than it appears. A good place to begin a serious examination of this topic might be Maylasia. "The Maylasian legal system is based on English common law," but its individual states have largely enacted sharia law to govern the private conduct of its Muslim population. As Malaysia has a substantial non-Muslim population, it might be an ideal case study in how partial sharia enforcement affects a broader non-Islamic society.

Posted by Curmudgeonly Clerk at 11:12 PM | Comments (2)

The Lithwick Files

Two less churlish bloggers (Eugene Volokh, Stephen Bainbridge) find that Dahlia Lithwick is making no sense whatever. Needless to say, I am shocked, shocked I tell you!

Posted by Curmudgeonly Clerk at 06:10 PM | Comments (1)

December 02, 2003

Getting Tough (And Stupid) On Crime

Texas has a reputation for frontier-style justice. This misperception is probably attributable to its relatively frequent employment of the death penalty. However, it's criminal code is apparently well-admired. According to this story in the Houston Chronicle:

A 2000 study by the Northwestern University School of Law in Chicago ranked the Texas penal code No. 1 nationally because of its simplicity, completeness and accuracy in assessing punishment.

Sadly, the story explains why the Texas Penal Code, which was basically promulgated in its present form in 1993, may not rate so well in the very near future:

The 1993 code, based on a model developed by the American Law Institute, replaced a set of laws that had been amended so many times with sentences so tough that it was unmanageable.

The Criminal Justice Policy Council, created by the Legislature in 1983 to give advice unadulterated by political considerations, helped a special reform commission identify the code as the chief culprit in a prison overpopulation problem that was reaching crisis proportions. Overcrowding in the late 1980s and early 1990s became so severe the parole board had to release violent criminals to make room for the droves of the newly convicted.

* * *

[Williamson County District Attorney John] Bradley, who was a member of the Punishment Standards Commission, worries that the parade of amendments to the 1993 penal code will burden judges and prosecutors and ultimately require another overhaul.

"The penal code passed in 1993 retained broad discretion and wide punishment range, but the Legislature has done a good job of going back to its undisciplined ways, and every session they play with the punishment," Bradley said. "No one ever reduces the punishment—they increase it."

Increasing the punishment satisfies the urge to get tough on crime. But each change makes the code more complex, and ever-harsher sentences raise the possibility that Texas could return to the prison overcrowding crisis of a decade ago, he said.

The Criminal Justice Policy Council might have some recommendations on how to avert such trouble. That is, it might have recommendations if it still existed. For reasons unexplained in the Chronicle story, the present governor abolished it this past summer.

(Link via Burnt Orange Report.)

Posted by Curmudgeonly Clerk at 05:03 PM | Comments (0)

Southern Contributions to the English Language

A recent New York Times story reports that the Southern contraction y'all is becoming prevalent in the remainder of the continental United States:

Perhaps the most striking finding, Dr. Tillery said, was the spread of the humble "y'all," ubiquitous in Texas as throughout the South. Y'all, once "you all" but now commonly reduced to a single word, sometimes even spelled "yall," is taking the country by storm, the couple reported in an article written with Tom Wikle of Oklahoma State University and published in 2000 in the Journal of English Linguistics. No one other word, it turns out, can do the job.

"Y'all" and "fixin' to" were also spreading fast among newcomers within the state, they said, particularly those who regard Texas fondly. . . .

As a non-native Texan—I've been here almost a decade now—I can attest to the usefulness and catchiness of y'all. Having grown up in the North, I was appalled by the stereotypical Southern diction and drawl and swore that the word y'all would never pass my lips. I regarded that sort of language as being reserved for the cast of Hee-Haw. I had only been in Texas for approximately a week when it first slipped out, and it became a staple of my speech thereafter. Ever since, y'all has always struck me as a nice solution to the English language's second-person singular/plural problem. I am pleased to see that the Northern masses have begun to recognize this fact.

(Link via Stuart Buck.)

Posted by Curmudgeonly Clerk at 02:51 PM | Comments (2)

December 01, 2003

In Plain English

This story over at CNN caught my attention:

LONDON, England (Reuters) -- A comment last year by Defense Secretary Donald Rumsfeld on the hunt for Iraq's weapons of mass destruction was awarded the "Foot in Mouth" prize Monday by Britain's Plain English Campaign.

* * *

John Lister, spokesman for the campaign, which strives to have public information delivered in clear, straightforward English, said: "We think we know what he means. But we don't know if we really know."

Lister's commentary is a bit cheeky and is doubtless intended to convey irony given the utterances by Rumsfeld that are at issue. At a press conference in February of 2002, Rumsfeld opined:

Reports that say something hasn't happened are always interesting to me, because as we know, there are known knowns; there are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns—the ones we don't know we don't know.

I think that criticism of extemporaneous spoken English is often a fairly pointless exercise, as unrehearsed, unpremeditated speech is seldom flawless. It does not help matters that this particular form of criticism is frequently a preoccupation of unsophisticated pedants who have no real ideas of their own to convey. In this particular case, the Plain English Campaign's criticism is so wildly off the mark that I can only assume political considerations led to Donald "Old Europe" Rumsfeld being selected for the prize, particularly in light of his reported competition (e.g., Arnold Schwarzenegger: "I think that gay marriage is something that should be between a man and a woman.").

I recall hearing Rumsfeld deliver these remarks, as FOXNews made light of them one afternoon/evening. (I believe that it was on Brit Hume's nightly newscast.) Their meaning struck me as being plain as day. Rumsfeld's point is simple and might be summarized as follows:

Our relative knowledge and ignorance on any given topic might be configured in any one of three categories. The first consists of facts about which we are certain (e.g., the speed of light is 299,792,458 meters per second). The second category entails facts about which we are both ignorant and aware of our ignorance (e.g., the recognition that the universe's mass does not properly add up in the absence of hypothetical "dark matter" conjoined with our inability to locate or detect such hypothesized matter or any other phenomenon that would make sense of observed gravitational patterns). The third category consists of facts about which we are not only ignorant but about which our ignorance extends to the very existence of these facts (e.g., the concept of gravity prior to a certain date).

There may be some epistemic objection to such a scheme of classification for our comparative states of knowledge and ignorance, or to the examples that I have proffered, but unless one is possessed of a truly meager grasp of English, it does not seem to me that one can maintain that Rumsfeld's remarks were unclear let alone "baffling." Nor did Rumsfeld resort to needless jargon in order to convey his sentiments. In plain English, I think that the self-appointed language police at Plain English Campaign are simpletons.

Update I: The World Wide Rant likewise thinks that Rumsfeld's remarks were plain as day and also considers the American media's focus on the Plain English Campaign's award but lack of coverage concerning this one evidence of bias. (Link via Instapundit.)

Update II: I see that John Quiggin of Crooked Timber endorses Rumsfeld's logic if not his choice of language. He refers to the Rumsfeld's language as "tortured." Frankly, it's not clear to me how Rumsfeld could have conveyed the idea in question in layman's terms with any greater clarity while remaining succinct. (Care to take a crack at it, Mr. Quiggin?) Geoffrey Pullum of the Language Log heartily concurs on this point: "The quotation is impeccable, syntactically, semantically, logically, and rhetorically. There is nothing baffling about its language at all."

Posted by Curmudgeonly Clerk at 03:15 PM | Comments (0)

IP Insanity

Intellectual property litigants make me scratch my head with such frequency of late that I do not know which poses more potential danger to my coiffure in the long run, male pattern baldness or intellectual property lawsuits. I am admittedly no expert in the field, so as often as not my head scratching may be the result of ignorance. Nonetheless, the lawsuit settlement highlighted in last Tuesday's Akron Beacon Journal strikes me as either (1) wanton litigiousness, or, in the alternative, (2) a sign that trademark law requires some common sense revision. But judge for yourself:

COLUMBUS, Ohio—A library-themed New York City hotel whose floors are divided based on the Dewey Decimal system has agreed to acknowledge in its advertising that a nonprofit library cooperative owns the system.

The settlement announced Monday also requires the Library Hotel to make a donation in an undisclosed amount to a nonprofit organization that promotes children's reading. The library overlooks the New York Public Library.

The Dewey Decimal Classification has been used to track books for 120 years, and the OCLC Online Computer Library Center in Ohio has owned the system's trademark since 1988.

Aside from keeping intellectual property lawyers employed full time, what policy objective is achieved by allowing a nonprofit organization to sue a hotel that purports to organize itself in accord with the Dewey Decimal System? What is the profound harm that we as a society are seeking to avoid? The damages are apparently of such moment and consequence that future advertising will have to note the trademark and some undisclosed sum must be forwarded to an entirely unrelated third party. Perhaps, I am missing something, but my initial inclination is that this case features the sort of pointless legalism that results in the law being regarded as an ornate scholastic discipline, all form and no function. Lawsuits akin to this one likely do the reputation of lawyers no favor.

On a lighter note, I see that the Library Hotel offers an Erotica Package for a mere $650 per night and that the hotel features an Erotic Literature Room. The hotel also has a Law Room on the third floor. One cannot help but wonder if any of its holdings address trademark law.

(Link via Walter Olson.)

Posted by Curmudgeonly Clerk at 12:18 AM | Comments (0)