Category: Current Events


A Reckoning In Houston

Tomorrow the Enron jury will hear closing arguments in the Lay/Skilling trial. Given both defendants’ reported weaknesses as witnesses, the futures market estimate of conviction on at least several charges for Lay (76% ) and Skilling (73%) is predictable. (Although, the line has shifted significantly from February.) And even if a verdict arrives this week, the defense team(s) are already no doubt working on an appellate strategy. One tack: Judge Lake appears to have accepted the government’s intent instruction.

This raises an issue which I’ve been thinking a bit about recently. Given research showing that juries often ignore instuctions, especially in complicated cases, and instead focus on a narrative and attributions of blameworthiness, why does the government so often appear to overreach and thus preserve great defense issues for appeal? Does the federal prosecution manual discount the research? Or, more cynically, is the phenomena a problem of incentives? In the ordinary case, the marginal gain from the prosecution instruction is reaped by the line attorney, but the marginal cost of the instruction is usually discounted by time and by the likelihood that the government attorney defending the appeal is a different unit, or a different office altogether.


Rove Indicted?

Jason Leopold at Truthout is reporting that Karl Rove has been indicted for perjury and making false statements:

Fitzgerald served attorneys for former Deputy White House Chief of Staff Karl Rove with an indictment charging the embattled White House official with perjury and lying to investigators related to his role in the CIA leak case, and instructed one of the attorneys to tell Rove that he has 24 hours to get his affairs in order, high level sources with direct knowledge of the meeting said Saturday morning. . . . It was still unknown Saturday whether Fitzgerald charged Rove with a more serious obstruction of justice charge. Sources close to the case said Friday that it appeared very likely that an obstruction charge against Rove would be included with charges of perjury and lying to investigators.

I got the e-mail about this several hours ago, and I’ve been waiting since then to link to a more “official” story on CNN or MSNBC. It looks like none of the mainstream news sources are reporting the story, though — it’s not even on Drudge! I’m not sure what to make of that absence — if the story is true, then other news sources must be trying to confirm it, and they apparently can’t. This makes me wary. Perhaps Truthout found an exclusive source and could verify a story that other sources couldn’t verify; but perhaps they got taken, or jumped the gun. If there’s a story, then the next few days will undoubtedly bring confirmation and more detail.

In the meantime, the story is very interesting. Assuming it’s true, the charges in the indictment — perjury, false statements — are serious. (Everyone knew that; still, it’s eye-opening to read a news report that says “Rove indicted for perjury.”) The story also says that Rove has committed to resign if indicted, which makes sense from a matter of politics.

I’m not a crim law person, and I’m not quite sure what to make of the report that some charges could be confirmed (perjury, false statements), but not others (obstruction). Dan F. or other crim law folks, does this have some cosmic (or at least substantive) meaning? Does this mean some charges were decided on earlier, and prosecutors are still doing something with the obstruction charge? Does it mean that the grand jury is still deciding on those? Is there a possible crim-procedure story here that means something, or is it just a gap in the reporter’s facts?

In any case, it’s an interesting story, and I’ll be keeping an eye on the news. If our readers have any thoughts on the story (or for that matter, any deeply-confidential, on-the-QT, hot news tips), please feel free to weigh in.


Revived Immigration Bill

From the AP / Yahoo News:

Senate leaders reached a deal Thursday on reviving a broad immigration bill that could provide millions of illegal immigrants a chance to become American citizens and said they’ll try to pass it before Memorial Day.

The agreement brokered by Senate Majority Leader Bill Frist, R-Tenn., and Minority Leader Harry Reid, D-Nev., breaks a political stalemate that has lingered for weeks while immigrants and their supporters held rallies, boycotts and protests to push for action.

“We congratulate the Senate on reaching agreement and we look forward to passage of a bill prior to Memorial Day,” said Dana Perino, deputy White House press secretary.

Related posts: Retaliation Against Workers At Immigration Rallies


Pseudonymity and Ethics

Last week, the Los Angeles Times suspended the blog of Michael Hiltzik, one of its columnists, when he admitted posting comments both on his blog (which was hosted by the paper) and on other blogs under pseudonyms. Apparently these efforts were a ham-handed attempt at creating an ego chamber by suggesting that there were other participants who agreed with Hiltzik’s views. The L.A. Times has posted a notice at Hiltzik’s blog, stating that Hiltzik’s actions were “a violation of The Times [sic] ethics guidelines, which requires editors and reporters to identify themselves when dealing with the public.”

Put to the side for the moment what Hiltzik actually did, which, if nothing else, was not a bright career move (and serves as yet another reminder to the public of the existence of IP addresses). What if Hiltzik had used a pseudonym to comment on another blog merely to engage in a discussion without revealing that he was a columnist for the L.A. Times? What if the resulting discussion then became interesting enough that Hiltzik or another reporter decided to write about the debate? Is there something improper or unethical about the fact that the hypothetical Hiltzik did not disclose his identity in the course of the discussion? Assume, even, that Hiltzik engaged in pseudonymous commentary precisely to spark a discussion on a given topic — which is, of course, what many blog authors do on a daily basis — to see if it would develop into any interesting column fodder. Would he have acted unethically? Given that the participants responding to such comments are engaging with a pseudonymous individual in an open forum in any event, does it matter whether that individual is the hypothetical Hiltzik or a CPA in Schenectady? Or whether the individual is a reporter for the L.A. Times rather than the author of AcmeBlog?

Presumably the L.A. Times does not enforce its policy to the extent of requiring its reporters to “identify themselves when dealing with the public” when they are, say, participating in an online dating service or ordering a burger at the local fast food joint. I would imagine that the point of the policy is to protect members of the public who would unwittingly say something in a conversation with a nonreporter that they would not say if they knew the comment could potentially be published in the paper. But when the hypothetical (i.e., nonlogrolling) Hiltzik comments pseudonymously on another’s blog and encourages comments that are intended for public consumption from the moment the “post” button is hit, is he “dealing with the public” in the way that the paper’s policy contemplates?

(To be clear: I am in no way defending Hiltzik’s actions. But I am curious about where the line between proper and improper is in a medium in which pseudonymity is not only accepted but often encouraged.)


You gotta have Friends

The California Supreme Court has ruled in Lyle v. Warner Bros., the Friends sexual harassment case. The plaintiff alleged a hostile work environment, stemming from writers’ use of offensive jokes about sex during script writing sessions. The court disagreed, ruling unanimously against plaintiff in upholding the trial court’s summary judgment decision. The decision states in part:

Based on the totality of the undisputed circumstances, particularly the fact the Friends production was a creative workplace focused on generating scripts for an adult-oriented comedy show featuring sexual themes, we find no reasonable trier of fact could conclude such language constituted harassment directed at plaintiff because of her sex within the meaning of the FEHA. Furthermore, to the extent triable issues of fact exist as to whether certain offensive comments were made about women other than plaintiff because of their sex, we find no reasonable trier of fact could conclude these particular comments were severe enough or sufficiently pervasive to create a work environment that was hostile or abusive to plaintiff in violation of the FEHA.

In addition, Justice Chin argued in a concurrence (relying largely on the writings of Eugene Volokh) that the plaintiff’s claim is barred by the defendant’s freedom of expression under the First Amendment. David Bernstein at has a post suggesting that the majority should have based its decision on that ground.


A shout out to my home state

First, thanks to all the folks at Concurring Opinions for the invitation. I’ll no doubt be a pale substitute for my W&L colleague David Zaring and other illustrious alums of ConOp — but I’ll do my best to keep the random insights on a thousand different topics (which is what sets ConOp apart from its fellow blogs, no?) coming.

It’ll come as no surprise to those who know me well that I begin my sojourn through the blogosphere with a little news item from my beloved home state of Arkansas. (Plenty of time to brag about my scholarship (um, I mean dialogically engage with like-minded scholars about topics of mutual interest) in later posts. . . .)

Seems that Arkansas is about to become the first state in the country to ban smoking in cars where children under the age of 6 are along for the ride. The bill was passed by an overwhelmingly Democratic legislature, and our Republican-possible-Presidential-contender-health-nut governor Mike Huckabee says he intends to sign it into law. Progressivism and bipartisanship at its best — folks in Washington, take a page from the Razorback playbook. And Arkansawyers everywhere, say it with me … whoo pig sooie!

(To my fellow former Judge Buzz clerks out there (Nate? Geoff?), am I wrong? What would our “old dad” say on this one?)



If we can’t trust Page Six, who can we trust?

The New York Daily News — never one to miss an opportunity to poke a competitor in the eye — breaks the story: “A New York Post Page Six staffer solicited $220,000 from a high-profile billionaire in return for a year’s “protection” against inaccurate and unflattering items about him in the gossip page.” The federal investigation is ongoing.

I’m more interested in the human side, though. I am shocked, shocked, to hear that there would be anything other than the highest ethical and journalistic standards among the staff of a department that specializes in pestering and running sensationalistic stories about Michael Jackson, Paris Hilton, and Angelina Jolie. Really, I don’t know that I will ever read Page Six the same. How can I trust the latest tidbits? Has Sarah Michelle Gellar really been seen eating sushi at Nobu, or is that merely a paid placement? I just can’t live with that kind of uncertainty.

I’m sure going to miss those halcyon days, back when I could believe everything I read on Page Six. But those days are gone forever. And now, I suppose I can only try to crowd out my sorrows, by reading the latest from Rush & Molloy.

Necessary Investment Incentives?

scrooge mcduck.jpg

Pretty soon the alternative minimum tax is going to hit millions more taxpayers—even people making less than $50,000 annually. This extended reach will primarily harm those who work hard, pay property taxes, and have other deductions for things like dependent care, education, and health care. This AMT bite was never intended by Congress—it’s just reaching down the tax bracket because the figures it’s based on were drawn up decades ago.

You’d think this problem would be at the top of the tax reform agenda. Sadly, no. Rather, the big debate is over whether to extend tax cuts on investment income. As brilliant NYT tax reporter David Cay Johnston observes,

Among taxpayers with incomes greater than $10 million, the amount by which their investment tax bill was reduced averaged about $500,000 in 2003, and total tax savings, which included the two Bush tax cuts on compensation, nearly doubled, to slightly more than $1 million.

So this debate is basically about whether to make such windfalls permanent, or to try to stop our current fiscal irresponsibility and actually do something about our massive national debt.

But perhaps I misunderstand the issue. Is there a good policy reason for tax cuts for the superrich? Would they simply refuse to invest if better tax treatment weren’t given—choosing instead, perhaps, to roll around in vaults of money ala Scrooge McDuck? Would they renounce U.S. citizenship and move to the Isle of Man? I’m just trying to understand this policy on a higher level than positive political theory (which would, of course, predict that those best able to invest in money-intensive politics would get the highest returns). I guess I need to start reading the Tax Prof Blog!


Leaving Tulane (Updated April Edition)

tulane.jpg Newest updates in blue below, based on an email from a Tulane student. There have been a number of recent blog entries about the aftermath of Hurricane Katrina for educational institutions in New Orleans: law blogs have focused particular attention on Tulane Law. One aspect of the story that seems to be missing is the extent of Tulane’s loss of faculty from this year to next. Based on lots of sources, here is a list of the ten eleven current Tulane law faculty who will not be at the school for all, or part of, next year. (I also hear that one of their incoming hires has decided not to join the faculty, but can not confirm a name.) If there are errors, additions or subtractions, please let me know.

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Law of Conservation of Responsibility?

Back in 2004, a Florida judge angrily sent 11 defendants—mainly traffic offenders—to a jail cell for hours because they happened to be in the wrong courtroom. He’s now trying to keep his job, and claims in his defense that he had undiagnosed attention-deficit hyperactivity disorder (ADHD).

I think the case raises fascinating issues, less for the judge’s defense (I have no idea whether it’s accurate or exculpating), than for the cultural effect of such defenses. Are support groups for people with ADHD glad to see such defenses raised in court, since they add legal heft to diagnoses? Or are they worried that opportunistic defendants are going to discredit ADHD as one more tool to “get around” conventional notions of responsibility? I’d love to hear more on this type of debate, either in the criminal context (over the insanity defense) or in civil contexts. It’s a bit topical, given that the Supreme Court will hear arguments in Clark v. Arizona on April 19, to determine whether defendants have a constitutional right to an insanity defense.

All I’ll say for now is that this is not just a scientific question….

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