Monthly Archive: June 2006


Scalito No More!

In today’s decision, U.S. v. Gonzalez-Lopez, Justices Scalia and Alito broke into separate camps on the issue of counsel choice. Scalia, writing (surely with contrarian joy) for the liberal majority, held that a court’s improper denial of an individual’s counsel of choice was a constitutional error requiring automatic reversal. Alito, dissenting – and not respectfully either! – argued that there was something wrong with the idea that a person could end up with a better lawyer than he’d have preferred, but still score a new trial.

I’ll post at a bit more length in a little while. But I thought it interesting to see these supposed doppelgangers divide so neatly. (And even more so to see a little attitude show through in the opposing opinions.)

Mind you, I’m not holding my breath.


The Foie Gras Wars and the Ideology of Contract

gras.jpgGenerally speaking debates in contract law get played out according to a well-worn ideological script. On one side are the heartless conservatives who think that a contract is a contract is a contract and that folks ought to be able to deal or not deal on whatever terms they wish and that the law should confine itself to enforcing the deal as written. On the other side are the bleeding-heart liberals who insist that the vision of the marketplace as an arena of free choice and personal autonomy is an illusion and that a host of supposedly “voluntary” associations are shot through with coercion that the law ought to be policing. Or at least that is the way that the discussion tends to play out in a first year contracts class. Which is why foie gras is so much fun.

Read More


Nate Oman Returns

Nate Oman, who blogged with us from the start and took a brief leave of absence to finish up work at his firm, is now rejoining us at Concurring Opinions! He’ll be teaching full-time as a law professor at William & Mary School of Law starting this fall.

Welcome back, Nate!


One of the Oddest Tort Cases

In what has to be one of the oddest tort cases I’ve ever heard of, the plaintiff won a $750,000 verdict, which was subsequently reduced to $400,000. To find out what his injury was, click here.


This One Is For You, Paul Gowder!

Paul Gowder suggested on a prior thread authored by my esteemed colleague, Eric Muller, that we all “shut up about” the topic at hand. I took that to mean that Mr. Gowder had had his fill for the day of law professor pontification about topics that have nothing to do with what I know I find to be an issue of import and likely Mr. Gowder does as well – cable t.v.

Because I am a “customer-focused” blogger, I want to be responsive to Mr. Gowder’s preferences. I am therefore happy to move the discussion to more worthy topics. So, here is the critical question, Paul Gowder: Should I have my cable t.v. at home canceled this summer, in preparation for the cable-free life I will be living in the fall term, when I am away visiting (and living in a rental place without cable)? Additionally, I anticipate that the place where I will be living/renting in the spring term of 2007 does not have cable either, such that I will be forcibly cable-free for at least 9 months in total. I have toyed for some time with the idea of cutting off my cable here in Richmond (where I now live and where I will continue to own a home) for good, basically now, since it is only a matter of time before I will be cable-less on my visits, but I have not yet had the guts to pull the plug. Paul Gowder, should I do it? And should I do it *now*?

Read More


Template for News Stories on Government Data Gathering

surveillance3.jpgNSA warrantless wiretaps. NSA collection of phone records. CIA gathering of financial records.

The stories are endless. To help out reporters, I thought I’d just write a quick and easy template to make reporting a little bit easier. So here it is:

Under a top secret program initiated by the Bush Administration after the Sept. 11 attacks, the [name of agency (FBI, CIA, NSA, etc.)] have been gathering a vast database of [type of records] involving United States citizens.

“This program is a vital tool in the fight against terrorism,” [Bush Administration official] said. “Without it, we would be dangerously unsafe, and the terrorists would have probably killed you and every other American citizen.” The Bush Administration stated that the revelation of this program has severely compromised national security.

“This program is a threat to privacy and civil liberties,” [name of privacy advocate] said. But [name of spokesperson for Bush Administration] said: “This is a very limited program. It only contains detailed records about every American citizen. That’s all. It does not compromise civil liberties. We have a series of procedures in place to protect liberty.”

“We’re not trolling through the personal data of Americans,” Bush said, “we’re just looking at all of their records.”

The [name of statute] regulates [type of record] and typically requires a [type of court order]. Although the [name of agency] did not obtain a [type of court order], the Bush Administration contends that the progam is “totally legal.” According to the Attorney General, “we can [do whatever we did or want to do]. The program is part of the President’s emergency war powers.”


Massive Government Data Mining of Financial Records

money-4a.jpgApparently, warrantless wiretapping and gathering of phone call records just aren’t enough to quench the Bush Administration’s thirst for data. Now we learn that the government has gathered massive quantities of financial records. The New York Times reports:

Under a secret Bush administration program initiated weeks after the Sept. 11 attacks, counterterrorism officials have gained access to financial records from a vast international database and examined banking transactions involving thousands of Americans and others in the United States, according to government and industry officials.

The program is limited, government officials say, to tracing transactions of people suspected of having ties to Al Qaeda by reviewing records from the nerve center of the global banking industry, a Belgian cooperative that routes about $6 trillion daily between banks, brokerages, stock exchanges and other institutions. The records mostly involve wire transfers and other methods of moving money overseas and into and out of the United States. Most routine financial transactions confined to this country are not in the database.

Viewed by the Bush administration as a vital tool, the program has played a hidden role in domestic and foreign terrorism investigations since 2001 and helped in the capture of the most wanted Qaeda figure in Southeast Asia, the officials said.

The program, run out of the Central Intelligence Agency and overseen by the Treasury Department, “has provided us with a unique and powerful window into the operations of terrorist networks and is, without doubt, a legal and proper use of our authorities,” Stuart Levey, an under secretary at the Treasury Department, said in an interview on Thursday.

The program is grounded in part on the president’s emergency economic powers, Mr. Levey said, and multiple safeguards have been imposed to protect against any unwarranted searches of Americans’ records. . . .

That access to large amounts of confidential data was highly unusual, several officials said, and stirred concerns inside the administration about legal and privacy issues.

“The capability here is awesome or, depending on where you’re sitting, troubling,” said one former senior counterterrorism official who considers the program valuable. While tight controls are in place, the official added, “the potential for abuse is enormous.”


The Sixth Borough

phillylove.jpgA bunch of New York advertising students were asked by a local paper to create a campaign to draw New Yorkers to Philly. My favorite is featured to the right. Others are here (including a racy one not appropriate for this blog, but which would be worth posting in the West Village).

Of course, the general idea of the campaign seems to be extension of the sixth borough tripe concocted by the Times last August. I resent this trend. But I’d sure like to see a growing population in town.

The weird thing for me about this campaign is that you rarely see one American city target another American city’s residents as potential immigrants in this way (exceptions: the Gold and Land Rushes of the 1800s; Florida and Arizona’s retirement booms). And the idea actually seems somehow unlawful (even though it isn’t). Philadelphia can try to steal New York’s residents, but can’t ban its garbage?


Pop quiz.

Name the high-profile mass-media immigration reform opponent who, after speaking of her own “light mocha brown skin,” said this:

Never could I have imagined growing up that I would see the day when brown- and yellow-skinned people would stand on the side of pink-skinned bigots railing against the problem of too many of “them.”

Answer (as if you needed it) below the fold.

Read More