Casting Fresh Light On A Quiet Civil Rights Hero

This week, Is That Legal featured a mini-symposium commemorating the life of the recently deceased Mitsuye Endo, a Japanese-American woman who sued to challenge her internment during WW II. Her case, which came out quite differently than the dark landmark, Korematsu v. United States, may have triggered the end of FDR’s internment policy. Eric Muller, Jerry Kang, Greg Robinson and Patrick Gudridge contributed interesting essays casting fresh light on an overlooked historic individual and Supreme Court decision. Read these posts here, here, here, and here.


Al Zarqawi and the Marriage Amendment

Within hours after the U.S. Senate refuses to write discrimination into the Constitution, the U.S. Air Force is led to and kills #1 Iraq terrorist Abu Musab al Zarqawi.

It can’t be a coincidence. Jerry Falwell must be right after all:

I really believe that the pagans, and the abortionists, and the feminists, and the gays and the lesbians who are actively trying to make that an alternative lifestyle, the ACLU, People For the American Way – all of them who have tried to secularize America – I point the finger in their face and say ‘you helped this happen.’

Well done.


Canada’s Balance

Do the recent arrests of suspected terrorists in Canada show that the country has struck the right balance between security and civil liberties?

A New York Times article suggests that requiring the police in Canada to obtain a warrant before conducting surveillance and covert searches was conducive to thwarting the terrorist plot. The article quotes Mike McDonell, assistant commissioner of the Royal Canadian Mounted Police: “I never sought greater authority to conduct monitoring and surveillance, and I don’t expect to be asking for any more now.” A scholar is also quoted as saying that Canada doesn’t need broader government surveillance of the N.S.A. variety.

(While the article reports that the Canadian Security Establishment is permitted to intercept foreign communications upon authorization by the Minister of Defense (but without the need for a judicial warrant), the article suggests that the CSE was not involved in the recent terrorist arrests.)

It’s easy to say you’ve struck the right balance when you work within the law and manage to stop a terrorist cell. I’m not sure, though, that that’s the best basis for assessing whether we’ve struck the right balance between security and liberty. If the terrorists in Canada had succeeded in blowing up buildings and people, would we conclude that the Canadian balance was wrong and needed to be readjusted?

The right balance between security and liberty might allow for some failures, i.e. some acts of terrorism that don’t get stopped, because stopping them would involve too great a limit on liberty. On the other hand, the right balance might be security measures and restrictions on civil liberty greater than necessary (as measured by the number of actual terrorist incidents) because we’d rather err on the side of caution.


Disney Prescience or Stomach Virus?

I have been flat on my back and sicker than a dog for 36 hours. I thought it was a stomach virus. It seems that it might have instead been a sense of impending doom. The Disney opinion came out tonight. The link is:


I do not have the energy in me to do a fancy blue shortened hyperlink. I have to save my meager energy to rage about blasphemous statements such as “a plaintiff who fails to rebut the business judgment rule presumptions is not entitled to any remedy unless the transaction constitutes waste.”

And the specific discussion on good faith doesn’t get any better. After making that odd statement about the BJR, the court criticizes the appellants’ assertion that “directors violate their duty of good faith if they are making material decisions without adequate information and without adequate deliberation.” Hello pot? This is the kettle, you are black. If we want to compare “unjustifiable statements that might make sense,” I have to believe that the appellants win in this situation. Is the Delaware Supreme Court really trying to say that “making material decisions without adequate information and without adequate deliberation” *ARE* acts of good faith?

Read that again:

Based on the Delaware Supreme Court’s critique on page 63 of the Slip Op. of the appellants’ assertion that “directors violate their duty of good faith if they are making material decisions without adequate information and without adequate deliberation,” am I to believe that the good court is saying that such decisions *are* acts in good faith? Colleagues, we know that good faith means, roughly, acting in the best interests of the corporation. How can acts “without adequate information and without adequate deliberation” be acts “in the best interests of the corporation?”

I am so disappointed, but I am not shocked. As could be expected, the Delaware Supreme Court implicitly concedes to bastardizing the phrase “not in good faith” to mean “bad faith.” For those who missed it the first few times I made the argument, I maintain that “not in good faith” (as it appears in the BJR or in DGCL 102(b)(7)) covers ABDICATION of duty. Apparently this version of the Delaware Supreme Court has abandoned their previously held opinion that good faith is an affirmative obligation, requiring action in the best interest of the shareholders. Instead, it seems that the 2006 Delaware Supreme Court is of the view that “bad faith” is a good shorthand for the absence of affirmative action in the shareholders’ best interest. Kind of like a McDonald’s hamburger is a good shorthand for “a steak from Peter Luger’s.”

I need to go rest – I cannot tell if I am still feeling my stomach virus or I am just physically put off by 89 pages of words that bode ill for the American investor. I have much respect for Justice Jacobs, the author of the opinion, Chief Judge Steele, and Justices Berger, Holland, and Ridgely, but I have to sadly admit that I am of the view that they failed to produce the best, most-justified, most solidly-reasoned and strongly principled opinion possible. I will post my specific objections later.


Some Interesting Facts About Identity Theft

creditcard-2aa.jpgToday’s Washington Post contains an interesting article about identity theft. Some identity thieves enlist unwitting employees of financial institutions into supplying them with personal information:

An identity-theft ringleader, also known as the “concierge,” recruits an “insider” to steal personal information from work, data that can be used to make bogus credit cards with real names and account numbers.

Often the “insider” is a lonely woman who falls in love with the concierge after he sidles up to her in a bar, orders her a drink, and discovers that she works for a bank or insurance company — at which point he escalates his wooing. After a while, he persuades her to leak him some customer data because he’s “short on cash.” . . .

The concierge then turns that information into cash using various schemes. One involves giving the customer names and numbers to someone who uses machinery in his basement to churn out phony credit cards and IDs — documents that might not fool a cop but do get past many store clerks. Or the ringleader may use the information to open new credit accounts in the names of unsuspecting victims.

Next, he rents a van in someone else’s name, rounds up a bunch of drug addicts, and gives each a bogus credit card and a shopping list, Goldberg said. Dumped at a suburban mall, they make their purchases and return with hot merchandise.

Then they are driven to another mall in a nearby county, where they are sent shopping again. Purchases are kept under $200 and repeated in different counties to keep the dollar value of individual merchant losses below the radar of police agencies. . . .

Another interesting part of the article discusses how drug dealers are increasingly turning to identity theft:

“What I am finding is these people are in fact retired drug dealers who are sick of getting shot at and arrested,” [Richard] Goldberg [a prosecutor in the U.S. Attorney’s office in the Eastern District of Pennsylvania] said at the summit, which drew thousands of security professionals to Washington for four days.

These days, identity theft is almost as lucrative as drug dealing — but safer.

A stolen credit card number can sell for $100 to $1,000 on the black market, Goldberg said, depending on whether it includes the expiration date and other security codes, plus background on its owner.

Perhaps we should be pleased that the federal government is inept at addressing the identity theft problem . . . finally, a way to get drug dealers off the streets. . . .


Grutter Redo, Part 3

Recall that in a earlier post, I wrote about Judge Kozinski’s concurring opinion in the 9th Circuit ruling which upheld the Seattle school choice plan. His view was that rational basis review was preferable and strict scrutiny inappropriate because while the “program does use race as a criterion, [it does so] only to ensure that the population of each public school roughly reflects the city’s racial composition.” Kozinski’s position raises a number of interesting questions — at least one of which I alluded to before — the potential appeal of his approach to Justice Kennedy. But now I want to focus on the normative question which lies at the heart of Kozinski’s approach.

Let us set aside for a moment the Court’s view, which it has repeatedly reaffirmed in cases like Adarand, Grutter and Johnson v. California, that strict scrutiny review must apply to all racial classifications. The question I want to pose is this: is there a meaningful distinction between the racial preference that was at issue in Grutter, and the racial classification scheme that is challenged in the K-12 cases the Court has recently accepted. To assist you in answering this question, I’ll provide a quick review of the use of race in the two situations.

Grutter concerned the University of Michigan Law School’s admissions policy which sought to enroll a “critical mass of underrepresented minority students.” In short, while the policy did not set aside a fixed number of seats in the incoming class for minority group members, it did consider race or ethnicity “flexibly as a ‘plus’ factor in the context of individualized consideration of each and every applicant.” Even though race was used flexibly (no bonus points or set asides as was the case in Bakke), there is little doubt that with respect to some candidates, race was outcome determinative. That is, race was outcome determinative for some white candidates in the sense that minority group members with identical qualifications would have been admitted to the Law School while they were not. (We can address the standing difficulties raised under this scenario at a different time.)

Contrast the Law School’s admissions plan in Grutter with the Seattle school choice plan. Under the Seattle plan, race was used as a tiebreaker. In the first instance, students are given their choice of schools. It is only when a school becomes oversubscribed and racially imbalanced that the racial tiebreaker comes into play, and even then it only operates on the margins; effecting only schools where the “student body differs by more than 15 percent from the racial make up of the students of the Seattle public schools as a whole.” Finally, we should note that under the Seattle plan, no student is denied an opportunity to attend a public school in the school district; all students are placed in some public school within the district. Thus, Judge Kozinski’s view of the Seattle plan was, “that a student is denied a school of his choice may be disappointing, but it carries no racial stigma and says nothing at all about that individual’s aptitude or ability.”

Do you agree? Are the Grutter and Seattle plans distinguishable? Is it really true that one plan attaches “stigma” to a frustrated applicant while the other inflicts no such stigmatic harm to the students? Isn’t one argument that the stigmatic impact of each plan is a matter of degree. If that’s the case, then perhaps Kozinski is right after all that a heightened form of rational basis review is superior because it would allow the Court to take all of the relevant facts into consideration. Unless you think strict scrutiny, in the race context at least, already performs this function.


Disney, Bob Iger, and Michael Eisner

Bob Iger has been in the driver’s seat at Disney for over half of a year, and I am excited about what Iger’s Disney is starting to and will, ultimately, look like. Disney announced yesterday a new promotion – “Where Dreams Come True” – which the WSJ reports as being a “new global campaign to draw more guests to Disney’s theme parks.” The promotion, to start in October, involves a million giveaways to Disney visitors, including things like an overnight stay in Cinderella’s castle or the *entire* Magic Kingdom park to oneself for a day. I get giddy just thinking about it, in large part because I *love* the Magic Kingdom, and I like what I view to be the start of a return to the business concepts underlying Walt Disney’s ideas from decades past. I sincerely hope that Iger ends up delivering to the degree that we hard-core Disney fans expect.

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Why Do We Sign Letters?

signature.jpgI have spent some time recently signing hundreds of clerkship recommendation letters. In itself, the process is a minor irritant, which I’m happy to do to help deserving students obtain jobs with judges after graduation. But, like many tedious things, the process inspires thoughts about what I could do to shortcut it.

Not signing letters isn’t an option. (Unless OSCAR sweeps the world of state courts too). In thinking about why, I’ve come to conclude, with no scholarly studies to back me up, that there is something interestingly persuasive about a signature.

Anecdotal evidence for the point comes every day in the mail. Not a day passes without receipt of “signed” letters from various selling agents (goods, services, political ideologies). Those agents have invested capital in an autopen, or in time, but either way they’ve put their money behind the persuasive force of a writing.

But this is strange. We all know that sales documents received in the mail, like clerkship letters, aren’t individualized. Signatures are rote (at best) or robotic (at worst). Rational buyers, and judges, ought to be indifferent between an inked signature and a “/s/electronic/s/” version. But inked signatures persist, despite their inefficiency. Why do they work?

I have a theory. I think that when we see a signature, we associate it with a contract, and our totemic beliefs (exposed in the beginning of every contract law class) in the ritual power of writing things down and signing them. In popular culture, contracts exist when they are signed (and, less frequently, sealed). So when we see a signature on a letter, I think it suggests a sort of warranty.

What is the content of the warranty? I bet it looks something like this:

My name is Dave Hoffman, and I endorse this message.

Even though you don’t know me from Adam, you can’t help but rely on that ritually-created warranty a little in deciding whether to buy what I’m selling. That is, signatures help bridge the gap between purely impersonal sales (the internet is the paradigm, surely) and the door-to-door salesmen of the past. By signing a letter to a judge, I’m associating myself with the message, making it marginally harder to ignore. (Any effect is smaller for my signature than for a professor that the judge has heard of, no doubt.)

In arriving on this explanation, I reject two other stories. It can’t be the identity-assuring role, because (1) we don’t know these agents’ handwriting; and (2) in the case of recommendation letters, the court can more cheaply rely on other proxies (letterhead) to serve that purpose. I also don’t think that inked John Hancocks are really analogous to the “signatures” on emails – the persistence of that convention is just habit, reinforced by moribund cultural norms.

Are there other theories?


Rock, Paper, Scissors ADR


Via Howard B., I came across this judicial order requiring parties to a lawsuit to engage in a game of “Rock, Paper, Scissors” to settle a discovery dispute. Perhaps the lawyers ought to buy the strategy guide before playing?

Of course, this isn’t the only time in recent years that real-world decisions have been turned over to the RPS strategy. Remember the multi-million dollar auction game? But you’ve got to think that there are better ways to resolve discovery problems. Like, say, jousting.

UPDATE: I should surf more. Volokh and Prawfs are already on this. You might wonder why judges don’t issue entertaining orders like this more often – they get lots of attention, resulting in increased fame and possibly better clerk candidates.


Roy Moore, Gay Marriage, And The HoloHoax: Alabama Goes To The Polls

Alabamians came out and voted yesterday. The national take was pretty straightforward: incumbent governor Bob Riley beats Roy Moore, while citizens overwhelmingly approve gay marriage ban. But when you look more closely at a few numbers, things look more complicated. Consider:

Roy Moore (in the Republican primary) had, at last count, 153,373 votes. Opponents of the constitutional ban on gay marriage (an issue on both Democratic and Republican ballots) grabbed 170,399 votes.

This tells us that there were more people opposing a gay marriage ban than supporting Roy Moore. This suggests that support for Moore’s version of religious government might actually be weaker than support for the possibility of gay marriage. (It is possible that some Moore supporters didn’t vote in the Republican primary. However, it was an open primary, and one would think Moore supporters would have been pretty motivated to vote Republican irrespective of their party affiliation.) For the rest of the nation, the 4-1 support for a gay marriage ban will be further proof that Alabama is completely retrograde. But I wonder what the vote on this would have been five years ago. And while 170,000 people is nowhere near a political majority, it is a significant number both as a starting point for social change, and as a potential community for progressives.

Another interesting vote tally: Holocaust denying Libertarian turned Democrat, Larry Darby, snared 162,420 votes in the race for attorney general. (He lost 54-46 percent.) More people supported the man who called the Holocaust the HoloHoax than supported Roy Moore.

Alabama is a complicated place. This vote confirms my sense that the state is home to greater political disparity than almost any other state. The most curious part is that almost everyone – left and right, tolerant and not – still shops at Wal-Mart, still enjoys the same barbeque joints (and sweet tea), and still thinks that those darn condescending Northerners should get their own house in order before they come complaining about how Alabamians live their lives.