BeldarBlog

The Academy Award for overwhelming hubris goes to ...

Sean Penn, who began his acceptance speech for his Best Actor award with:

If there's one thing that actors know — other than that there weren't any WMDs ...."

I'd be far more interested in the opinion of the average dental assistant, bus driver, or rodeo clown than in Mr. Penn's on matters political, military, or historic. That he thinks actors have opinions on these subjects especially worth broadcasting is too absurd for serious discussion.

Cosmic stupidity from the Houston Chronicle re Roe

In Sunday's Houston Chronicle, reporter Thomas Korosec writes:

The 5th U.S. Circuit Court of Appeals has agreed to consider written arguments as to whether the Supreme Court made a mistake in legalizing abortion.

That is just cosmic, mind-boggling stupidity. Neither the United States Court of Appeals for the Fifth Circuit, nor any other Court of Appeals for any other circuit, nor any federal district court can ever, under any circumstances, overrule the United States Supreme Court on a question of law. They lack the fundamental power. It's not just a matter of stare decisis or respect for precedent. It's a question of who's the Supreme Court, and who's not.

Anyone who managed to get a passing grade from a high school civics class should know that. For the Chronicle to say otherwise is shameful.

The Fifth Circuit's appellate jurisdiction is not discretionary. Unlike the Supreme Court, the Courts of Appeals cannot refuse to hear an appeal. If you file the right papers on time and pay the fee, any numbskull can appeal almost any decision from a federal district court to the Court of Appeals for the federal circuit within which that district court is located. The Fifth Circuit has absolutely no choice whether to "consider written arguments" on every such appeal, regardless of how frivolous the appeal may be.

The Fifth Circuit can — and it has in this case — refused to set the appeal on its oral argument calendar, meaning that the case will be decided on the basis of written briefs and the record from the district court alone.

But whether it hears oral argument or not, under no circumstances whatsoever can the Fifth Circuit overrule the U.S. Supreme Court's decision in Roe v. Wade. Even in the microscopically small chance that it decides that Norma McCorvey's petition to re-open her case was timely, the Supreme Court's prior ruling is known as the "law of the case." Regardless of whether there's been an intervening change in the relevant facts pertaining to Ms. McCorvey, neither the US District Court for the Northern Division of Texas, Dallas Division, nor a three-judge panel of the US Court of Appeals for the Fifth Circuit, nor even the entire US Court of Appeals for the Fifth Circuit sitting en banc — nor the United Nations or the International Court of Justice sitting at the Hague (thank goodness) — has the power to overrule the "law of the case" as decreed by the US Supreme Court.

It can't happen. No exceptions. Ever.

The only way that the legal precedent set by the US Supreme Court in Roe can be changed is by a majority vote of the US Supreme Court or by an amendment to the US Constitution. Period. End of paragraph. Full stop. End of story.

If this kind of enormous, glaring mistake — a mistake made even after talking to law professors at UT Law School, for pete's sake! — can't get you fired as a reporter, then I can't imagine what possibly could.

Stupid, stupid, inexcusably wrong and stupid. But some people will doubtless believe it, because after all, it was printed in a "major" newspaper.

Beldar as Polonius: Roe redux in the Fifth Circuit

I did a frenzy of blogging over the weekend, most of it in comments elsewhere rather than on my own blog. What can I say? I like to argue, especially (but not always only) when the topic's something I think I know something about. Hence, when I saw a post over at Burnt Orange Report entitled "This is why the Circuit Courts Matter," it was like someone waving a stalk of corn under Bevo's nose. I like that blog and I like its bloggers, even though we're on opposite sides of the political spectrum. This particular post mentioned the Bill Pryor recess appointment to the Eleventh Circuit, which I'd just been blogging about myself, but its main focus was on the very curious story of how the then-pregnant and pseudonymous "Jane Roe" of Roe v. Wade fame is now trying to reopen her original case. The specific news item prompting the post was a report that the Fifth Circuit had agreed to hear oral argument on her appeal from the decision of the district judge who'd thrown her case out of court.

So I mustered up a small head of steam, adopted my most reasonable, mildly humorous tones, and waded into the comments on the post to explain that the Fifth Circuit's decision to hear oral argument really isn't as big a deal as the mainstream media has made it out to be. Unlike the Supremes, the Courts of Appeals don't get to pick and choose what cases they must resolve; they can't duck a ruling altogether. And while they can and do resolve a large percentage of their appeals without oral argument, there are all sorts of reasons why a case might get put on the oral argument calendar that have nothing to do with the likelihood that the Fifth Circuit is ultimately going to reverse the district court's decision.

And as comments, especially on political blogs, tend to do, things began to roll. I got into a bit of a debate. My one comment became three, then five, then — I dunno, I've lost count. My arguing partner in the comments is convinced that the oral argument calendaring of the case isn't as meaningless as I'm insisting; he smells the proverbial Vast Right-Wing Conspiracy, perhaps as implemented by the Fifth Circuit's reputedly most conservative active-status judge, the Hon. Edith Jones. But by the end of the weekend, I felt like the commenting fever, at least on my part, had about run its course. By that point I was feeling a bit of a blogging hangover, so to speak, but not a bad one. I was thinking myself to have been a bit like Polonius in Hamlet (Act 2, Scene 1) when he's been dispensing all that good advice — maybe a bit stuffy and pompous, but hey, I've got gray hair and I earned it, and Fifth Circuit procedures really are a subject I know something about from my clerkship days and as a practicing lawyer.

So I'm about to leave the office today and, as is not unusual on a weekday when 5:00pm has come and gone and the phones have quieted down, I flip through my Favorites to skim a few of the blogs I regularly read.

Suddenly, I'm not Polonius calmly dispensing sound advice! Instead, I'm — what? — what's that coming through the curtain?!? A blade? Or is it ... OMG, it's the amazing and seemingly omniscient Howard Bashman of How Appealing, who reports that the oral argument for the Roe redux appeal was calendared to be heard by a panel that included not only Judge Jones, but also controversial recess appointee Judge Charles Pickering, about whom I've also recently blogged!

As I drop to my metaphorical knees and clutch my chest, my eyes track down to Bashman's update. No, Judge Pickering now mysteriously appears to be off the panel, and ... and ...

What's this? Another update?!? Arrgh, the blade twists in my chest! According to the update, the Roe redux appeal has been de-calendared! And by order of the Hon. Edith Jones to boot, it seems! (Judge Jones' blade has even stricken the motions by "Concerned Law Professors" to file an amicus brief and participate in the argument, so I may not be the only wounded Polonius staggering around today.)

I thought my lengthy comments on Burnt Orange Report had covered, one way or another, just about every procedural possibility that could have occurred with the handling of this appeal. But no — the one possibility that I hadn't discussed, or foreseen, was de-calendaring from the oral argument calendar. I confess that I'm entirely unfamiliar with this unusual process. I'm guessing that the amicus motions went to Judge Jones as the senior active-status judge on the panel that had been set to hear the oral argument, and I'm likewise guessing that in that capacity — perhaps sua sponte? — she had the ability to unilaterally de-calendar the case.

With considerable understatement — perhaps he doesn't realize that I'm bleeding all over the floor here, me and the Concerned Law Professors! — Bashman writes that "the plot thickens." Actually, perhaps it's not understatement, but altogether too much melodrama for those who're all too ready to believe that the VRWC has already largely succeeded in its plot to take over the courts, the government, the world!

Gasping, Beldar-Polonius crawls from behind the curtain as Bashman further solemnly intones, "Presumably the court will issue a ruling in the not too distant future on the merits of the appeal."

"Yes," I sputter, "presumably so!"

But Polonius, after all, was not the intended target of Hamlet's blade (Act 3, Scene 4), nor really even a rat, but just a bit player, a poor fool behind the curtain. And Hamlet ended in tragedy, its eponymous hero slain along with the wicked King. How shall this drama end? In tragedy or triumph, and for whom?

As Beldar-Polonius drags his stricken shape along the floors of Elsinore Castle — or are these the marbled floors at 600 Camp Street in New Orleans? my eyes grow so dim, my metaphors so mixed! — he mumbles to himself: "Wouldn't it be a cosmic hoot if (as seems likely) the removal of Roe redux from the oral argument calendar merely presaged the summary affirmance of the district court's opinion, without oral argument, rather than a vast right-wing conspiracy to overturn Roe? And if so, wouldn't it be ironic if that sword is in fact wielded by Judge Jones?"

Someone get me a few flights of angels to sing me to my rest. This is making my head hurt.

What Secret Service codename for Kerry?

ABC News reports that Democratic presidential contender John Kerry "woke up under the watchful eye of the U.S. Secret Service today, fresh evidence of his front-runner status as a contender for a run at the White House":

And the guessing game has begun: what sleek Secret Service codename will be assigned to Kerry and his wife Teresa Heinz Kerry?

Traditionally, Democratic candidates are labeled with short distinctive names starting with "D" — Jimmy Carter was Dasher, and later Deacon, his wife Dancer — while Republicans are "R" — Ronald Reagan was Rawhide and Nancy was Rainbow.

Let's help the Secret Service out here, shall we? Hmmm, appropriate, short, distinctive names starting with "D" ...

• I can't find a synonym that starts with D for my favorite Kerry nickname (as bestowed by Kevin Whited) — "Cabana Boy." Shucks.

• "Duplicitous" is, I suppose, a bit polysyllabic to use on a walkie-talkie. And we probably ought to stick to nouns.

• "Deceiver" sounds too much like "Receiver"; again, likely to cause confusion on the walkie-talkies.

• "Doublecrosser" would certainly fit with his role as an antiwar protestor who accused his former comrades of widespread war crimes in Vietnam. Not very distinctive, though, when we're talking about politicians.

• "Disdainer" is an odd noun, and too reminiscent of a recent blue-dress scandal involving another D-codenamed protectee.

• "Demagogue" is another one that gets misspelled a lot, and might be confused too easily with "demi-god."

• "Drone" is short, sweet, and apt in several ways. Yeah, that's my favorite so far. "[kiiiiiiiih-KUP!] Unit One, this is Unit Two — Drone has finally finished his speech and is headed for his limo to join Dillpickle, over!" Yup, works for me.

Comments are open! Gentlemen and ladies, start your thesauri!

The Pryor appointment (and the NYT's continuing efforts to smear him)

President Bush has used his constitutional power to make recess appointments to the federal bench to appoint Alabama Attorney General William H. Pryor to the United States Court of Appeals for the Eleventh Circuit, which hears appeals from district courts in Alabama, Georgia, and Florida. Pryor graduated magna cum laude in 1987 from Tulane University School of Law, where he was editor in chief of the Tulane Law Review, and he clerked for one of the heroes of the civil rights revolution in the South, the late John Minor Wisdom of the Fifth Circuit. In 2002, despite having taken some politically unpopular stands (see below), he was re-elected as Alabama's Attorney General with 59 percent of the votes — a higher percentage than any other statewide candidate drew.

The appointment drew immediate attacks from the usual suspects, including a predictably slanted "news" article from the New York Times:

Mr. Pryor is known for, among other things, defending the right of high school athletes to pray "spontaneously" and for his initial\*/ support of an Alabama state judge who posted the Ten Commandments in his courtroom and erected a monument engraved with the Commandments in the Supreme Court rotunda.

What liberal media, they ask? Let's start with this paragraph right here, because the slanted, partial truthtelling it engages in amounts to yet another smear of a good man's record in promoting the rule of law. Both of the controversies referenced by the Times actually do tell quite a bit about Pryor's fitness for the bench — but only if you actually bother with the facts.

In Chandler v. James, a federal district judge in Alabama had issued a sweeping ban on prayer in public schools, actually requiring school officials to forbid students or other private individuals from "all prayer or other devotional speech in situations which are not purely private, such as aloud in the classroom, over the public address system, or as part of the program at school-related assemblies and sporting events, or at a graduation ceremony." Pryor, as the state's attorney general, resisted making an extremist attack on that ruling before the Eleventh Circuit — to the point that then-Gov. Fob James hired his own lawyers to do an end-run around his own attorney general!

The Eleventh Circuit quite properly rejected Gov. James' own looney-tunes arguments — among them, that the states aren't bound by the First Amendment. Instead, the court largely followed the more moderate and carefully nuanced course — accommodating both the Free Exercise and Establishment Clauses of the First Amendment — that was suggested by Pryor. Regardless of whether he personally agreed with that Supreme Court precedent, Pryor quite properly conceded before the Eleventh Circuit "that, under Supreme Court precedent, [Alabama] may not prescribe prayer or allow state employees to lead, participate in or otherwise endorse prayer of any type during curricular or extracurricular events." But — again, closely following prior Supreme Court caselaw — he successfully persuaded the Eleventh Circuit that the district court could not "constitutionally enjoin [the school] from permitting student-initiated religious speech in its schools." And that ruling was re-affirmed by the Eleventh Circuit after the intervening US Supreme Court decision from a Texas case in 2000, Santa Fe Independent School District v. Doe. As the Eleventh Circuit wrote: "Santa Fe condemns school sponsorship of student prayer. Chandler condemns school censorship of student prayer. In their view of the proper relationship between school and prayer, the cases are complementary rather than inconsistent."

So what can we conclude about Pryor from this? That he was a capable lawyer, scholar, and advocate who respected and followed the rule of law, as announced and interpreted by prior decisions of the US Supreme Court — even when to do so, he had to take on his nominal boss, the governor of Alabama. Does the New York Times applaud Pryor for standing up to the forces in his home state who were urging civil disobedience and defiance of the US Supreme Court's precedents? Ummm, well, no — that only gets you points from the Times when there's a "(D)" after your name on the ballot.

The Times' attempted smear by associating Pryor with former Alabama Supreme Court Chief Justice Roy Moore is even more egregious. In fact, Pryor was not only the instrumentality of the state who vigorously and capably enforced the rule of law against Moore — personally cross-examining Moore and closing the final arguments during procedings to remove Moore from the bench (rather than delegating that role to a subordinate, as would have been far more usual, and far less controversial) — but Pryor also put his own career further at risk by speaking out eloquently as to why Moore and his supporters were wrong:

Mr. Pryor had a major role in Alabama's Ten Commandments drama. He thought the state had a duty to obey the injunction, and he urged the chief justice's colleagues to do that, notwithstanding his own view that there are ways of depicting the Ten Commandments in a courthouse that are constitutional. Mr. Pryor also represented the state in the ethics deliberation that resulted in Mr. Moore's removal.

While Mr. Moore and Mr. Pryor hold to the same Christian faith, they remain at odds on essential questions of duty and the rule of law. Both men can't be right. And in his speech, delivered to the Federalist Society of Harvard Law School, Mr. Pryor shows why Mr. Moore is wrong.

Mr. Moore criticized Mr. Pryor and other Alabama officials for failing to accept that they had a moral duty to acknowledge God that required them to join him in disobeying the injunction. Citing a number of New Testament texts, Mr. Pryor makes the theological argument that because God is sovereign and government exists by his will, "we have a moral obligation to obey the commands of our government" and that this duty, which is "for our protection and common good," isn't suspended "even when we believe its commands are unsound" — unless, of course, government should command a citizen to violate a Christian duty.

That didn't happen in the Ten Commandments case, says Mr. Pryor, who makes the obvious point that "Christ did not command us to maintain a monument of the Ten Commandments in the rotunda of the State Judicial Building."

The Times thus takes two dramatic incidents of a principled, devout public official taking political risks to enforce the rule of law — following his duty even when it required him to defy the heads of his state's executive and judicial branches — and turns those incidents topsy-turvy to suggest that he was trying to bend the law to fit a conservative social agenda.

One thing I'm reasonably sure of:   Bill Pryor has more dignity than to use the sort of terms that would most accurately and fitly apply to the New York Times writer who penned this smear. I'll swallow my own inclinations, and let the facts — the ones ignored by the Times — speak for themselves.

----------

Update (Fri Feb 20 @ 8:15pm):   Lest you think I overstated the risks Pryor took in following and upholding the rule of law:   Just yesterday, one day before the recess appointment, supporters of former Chief Justice Moore had called for President Bush to withdraw Pryor's nomination to the Eleventh Circuit altogether. Previously, they'd demanded Pryor's resignation as attorney general and even sued him in federal court over his role in Moore's removal from office. The Atlanta Journal-Constitution reports that Pryor "has found himself a marked man in his home state — threatened with death and needing security guards for himself and his family." Yet the liberal elites in the US Senate, lobbyist organizations, and press corps insist that the recess appointment was made by Dubya for partisan political reasons to solidify his far right-wing base. Now there's some irony you can cut with a chainsaw.

\*/Update (Fri Feb 20 @ 10:00pm):   I'm entirely unsurprised to see that as originally published, the NYT story was even more misleading, and was only later edited to refer to Pryor's "initial support" of Judge Moore. (Hattip to Kathryn Jean Lopez of NRO's The Corner.) An editorial in tomorrow's NYT — entitled, with unintentional irony, "Judicial Activism" — claims that "Judge Pryor has a narrow-minded judicial temperament and a ferocious attachment to an ideological agenda that puts him well to the right of the judicial mainstream." White-Noize and Southern Appeal blogger and Harvard law student Adam White also wrote an eloquent article earlier this week for NRO about Pryor's Federalist Society speech. And Southern Appeal also has a post about the same NYT article I've criticized here, along with links to other reactions to the Pryor appointment from the right and the left.

Update (Sat Feb 21 @ wee-small-hours):   I've been reading the transcript from the proceedings to remove Judge Moore from office, including Bill Pryor's cross-examination of Judge Moore and his final argument. I will tell you that I've never seen a better job of cross-examining a hostile, bloviating witness; Bill Pryor is a fine trial lawyer. But let me quote a bit from the official transcript (starting at page 149) of his closing argument so we can see whether the picture painted by the New York Times in its news and editorials about Bill Pryor is apt or whether it's spin:

The stakes here are high, because this case raises a fundamental question. What does it mean to have a government of laws and not of men? ....
....
Every one of these citizens, and thousands more who come before the courts, must know that the final orders of the courts will decide their disputes, even if that citizen disagrees with that order. Someone has to lose, and virtually always, the losing litigant thinks he was right and the court was wrong. This court must provide the answer that no citizen, whether rich or poor, powerful or weak, is above the law.

As I mentioned a moment ago, the judicial branch of our government, both our federal government and our state government, as human institutions, are imperfect. They sometimes make mistakes. Even terrible ones. We correct some of those mistakes on appeal. Sometimes the appeals court, even the Supreme Court gets it wrong, too. Fortunately, our Constitution gives us remedies.

I stand by my remarks from 1997 that we're called by God to do what is right. But we're called to exercise our constitutional rights in fulfilling his will.

We can elect lawmakers, legislatures, to change the law. We can elect presidents to appoint judges faithful to the law. We, the people, can even amend the Constitution itself. That is what our nation did when it abolished slavery with the 13th Amendment, which overruled the abominable decision of the Supreme Court in Dred Scott versus Sanford. But the refusal of a party to comply with a court order, whether the court order is right or wrong, is not a remedy provided by the Constitution.

Because Chief Justice Roy Moore, despite his special responsibility as the highest judicial officer of our state, placed himself above the law, by refusing to abide by a final injunction entered against him, and by urging the public through the news media to support him, and because he is totally unrepentant, this court regrettably must remove Roy Moore from the office of Chief Justice of Alabama. The rule of law upon which our freedom depends, whether a judge, a police officer, or a citizen, demands no less.

I rather doubt that Harvard law graduate Sen. Charles Schumer could have made this same argument any more eloquently.

Presidents Day thoughts re 9/11's impact on domestic matters

Brendan Miniter, writing today in the Wall Street Journal Online, clearly still gets it about how 9/11 continues to affect our country on matters of foreign policy:

Fighting terrorism ... is increasingly dividing this country — and not always along party lines. There are two distinctive camps developing. One comprised of Americans who don't think the war is something that should touch their everyday lives. And another that sees combating terrorism as a fundamental struggle not just between good and evil but also over the soul of this nation — a struggle over who we are, as a people, and what we will tolerate on the world stage.

He goes on to argue about how 9/11 has affected domestic policy:

America is now at a crossroads. In one direction is complacency, a return of the mindset the nation was in before 9/11. It is here that staying within the consensus of "world opinion" is valued above acting on moral principles. It is here that, we are told, the ethos of the "everything goes" culture must not change. Schools and other civic institutions need more money, but shouldn't come in for fundamental reform.

In the other direction lies a wholly different mindset. Here Sept. 11 is still seen as a turning point not only for foreign policy, but culturally as well. That day marked the coming of an era where America is again confident enough in her ideas of individual liberty to not only encourage their spread abroad (sometimes through forcibly removing dictators) but also to teach them in her schools at home.

He sees John Kerry on the wrong side of both the foreign and domestic policy divides:

This election year it's clear where John Kerry, for one, stands. He promises to take his hat in hand and walk back to the United Nations. Under his leadership, national security will again be treated as a law enforcement matter and schools will likely be left to be run by the teacher unions. The question remains, will America choose his complacency over Mr. Bush's vision?

I'm no fan of John Kerry, certainly. And I'm not sure that I disagree with Miniter about 9/11's significance for domestic policy issues. I certainly agree, for one thing, that teaching "civics, raising education standards and shoring up other religious and civic institutions is perhaps the best way to address [the] domestic problem" of ctizens "who do not have a sense of the goodness of their nation or even of their own history."

But neither am I yet convinced that 9/11 ought to become a rallying cry for domestic policy issues that aren't closely related to national security issues. "Civilization versus barbarism" is, I think, still a distinct issue — albeit a preconditional one — from "how we make ourselves better as a society."

For those who still "get it" — which unfortunately excludes some who once "got it," but have allowed themselves to be lulled back to sleepy dreams of invulnerability since then — 9/11 was an abrupt, ugly awakening to reality about where our civilization stands vis-á-vis the forces that are trying to pull down that civilization. But too many have forgotten, or are forgetting, the clouds of dust and smoke filling spaces that once held two towers — too many have already blocked out, or are busy blocking out, the falling bodies, the pieces of corpses of innocents, the raw wound in our national psyche. For them, 9/11's powerful shock is already fading. Those are the people who already are finding hypnotic comfort in Kerry's view of the fight against terrorism as largely a "law enforcement" matter; those are the people who'd feel safer demonizing Donald Rumsfeld, John Ashcroft, Halliburton, and yes, George W. Bush than Osama bin Laden.

Trying to use memories of 9/11 to leverage a broad domestic agenda, as well as a foreign policy one, won't work with those people. And I worry that the attempt to do so would further dilute the remaining power of 9/11's far clearer meaning as it pertains to the War on Terrorism. Confusion begets sleepiness and inattention to what is, still, a threat to our existence. Dubya frankly needs the votes this November of those who remember — or can be reminded of — that threat's overriding significance, even if they cannot be persuaded to his domestic policies. Miniter, I fear, is trying to go a bridge too far here.

Revisionist history re Dean's "I Have a Scream" speech

I can well understand why, and even somewhat sympathize with, Dean supporters' bitterness at the public fascination with his "I Have a Scream" speech. And Gov. Dean has given various explanations for it (none nearly so good as the one Hugh Hewitt suggested) — usually that he was "just having fun," or trying to recognize and energize his troops after a tough loss. But this rationalization, from the St. Louis Post-Dispatch, is just silly:

"The coverage of that speech was a lie," said Bagley, a retired bread truck driver. He was referring to Dean's much-debated Iowa concession speech, in which Dean yelled partly to be heard in a noisy hall.

Yes, the hall was noisy. Yes, Dean was tired and his voice was frayed and he was bellowing. But he frequently speaks to noisy crowds, and he bellows more often than not. Under no possible interpretation of the facts can the bizarre noise that he made that night be explained "partly [as Dean trying] to be heard in a noisy hall."

Gov. Dean concedes that "the scream" was "unpresidential." He should just leave it at that. In fact, he should just leave it. Neither he, nor friendly reporters like the one who created the above-quoted rationalization, does the struggling Dean campaign any favors by offering up this kind of obviously bogus excuse.

Best line I've read today

Jonah Goldberg, writing in NRO about the Dems' new enthusiasm for John Kerry:

The Democrats seem to have succumbed to a terrible bout of wishful thinking, like Michael Moore bringing a condom in his wallet to a Sports Illustrated swimsuit-photo shoot.

Tuesday Morning Quarterback's revenge

Per the New York Daily News,

The curtain's coming down for Michael Eisner.

That was the word from Wall Street yesterday after Comcast launched its $54 billion hostile bid for Walt Disney.

Corporate governance law expert Professor Stephen Bainbridge of UCLA, long a critic of the imperial reign of Eisner, has a perceptive writeup of the story, its causes, and its implications:

Bad management is just another form of information that efficient markets are able to process. When a declining market price signals shirking by directors or management, among those who receive the signal are directors and managers of other firms, who possess the resources to investigate the reason for the potential target's deteriorating performance. Sometimes it will be something that is beyond anybody's ability to control, such as where highly specialized assets are languishing because of a permanent shift in consumer demand. Sometimes, however, it will be due to poor management, which presents real opportunities for gain if the personnel or policies causing the firm to languish can be corrected. A successful takeover gives the acquirer the ability to elect at least a majority of the board of directors and thereby control personnel and policy decisions. The resulting appreciation in value of the acquired shares provides the profit incentive to do so. It is partly for this reason that we refer to the takeover market as "the market for corporate control."

Michael Eisner's Disney looks like a ripe candidate for a disciplinary takeover....

The long-term problem at Disney has been that virtually every mechanism we have for holding boards accountable has failed. Director independence failed because the board has been comprised of nominally independent folks who in fact were cronies of Eisner or know-nothing ceremonial directors. Shareholder activism failed because it never made a serious dent in the board's complacency. Litigation failed because the board was willing to pay zillions to Ovitz, Katzenberg, etc.... SOX and the other post-Enron reforms failed because Eisner is so good at boardroom politics that he was able to use even those reforms to further entrench himself.

There is one tool left: Have somebody buy the company and fire Eisner.

Driving home last night, I heard some "expert" on NPR question whether potential acquirer Comcast, a large cable TV company that "brings sex, nudity, and violence into people's homes," was an appropriate candidate for acquiring Disney. I thought that pretty ironic. It was, of course, TMQ Gregg Easterbrook's attack on the gratuitous violence of a Quentin Tarantino film from Disney's Miramax subsidiary that not only got Easterbrook fired from his spot as a columnist for Disney subsidiary ESPN, but also got everything that Easterbrook had ever written for ESPN "disappeared" from its website in a twenty-first century retaliatory act of "nacht und nebel." Eisner's spinmeisters spun some unfortunate loose language of Easterbrook's as being "anti-Semitic" as their purported grounds to fire him, but I doubt they'll be able to make such a claim to fend off Comcast's takeover bid.

Disciplinary takeover. Heh. Easterbrook, who also writes a blog for The New Republic and whose TMQ column has a new and better home at NFL.com, has to be enjoying this. I know I am. Easterbrook is probably cackling like Rafiki did when Simba returned to cast out Scar in "The Lion King." And if by chance his employment at ESPN left Easterbrook with any Disney stock, I'll bet he'll enjoy tendering it into Comcast's bid.

Colin Powell smites moonbat

In Congressional testimony yesterday from Secretary of State Colin L. Powell, " a retired four-star general known for his even temperament":

Powell, however, became testy when [Rep. Sherrod Brown (D-Ohio), a 12-year veteran of the House] said, in a reference to questions about whether Bush completed his National Guard service: "You are one of the very few people in this administration that understands war. We have a president who may have been AWOL" from duty.

"First of all, Mr. Brown, I won't dignify your comments about the president because you don't know what you are talking about," Powell snapped.

"I'm sorry, I don't know what you mean, Mr. Secretary," Brown replied.

"You made reference to the president," Powell said.

"I say he may have been AWOL," Brown repeated.

"Mr. Brown, let's not go there," Powell retorted. "Let's not go there in this hearing. If you want to have a political fight on this matter, that is very controversial, and I think is being dealt with by the White House, fine. But let's not go there."

Bully for General Powell! Bully, I say! And hie thee back to Atrios where ye belong, Congressman!

Clark quits

We won't have a chance to see if Wes Clark could become the twenty-first century's George McClellan.

I'm glad. "Little Wes" genuinely scared me — not because I'm a Bush supporter and a Republican, but because I'm an American, and Clark is a nut.

Optimus Prime for Prez

Prompted by Dubya's appearance today on Meet the Press, Michelle of A Small Victory eloquently expresses the views of those of us American parents whose worldviews, and consequently whose politics, have been rather forcefully clarified by 9/11 in this post, which I highly recommend.

And after Kim hands over his nukes, we'll all ride our bicycles together over the moon, me and Kim and Kofi ...

I expect pretty much the entire world, civilized and un-, is rejoicing over this.

Stop it! Don't laugh. Don't!

Don't.

She is one of Charlie's Angels. C'mon. And I'll bet there's some plan afoot that involves Lucy Liu pretending to be Korean ....

(Hat-tip to AllahPundit.)

Student law review editors

A post by blawger Scheherazade entitled "Why Law Review Is A Waste Of Time" prompted a number of responses on her own blawg and elsewhere, many of which she's thoughtfully linked. UCLA Law Professor Stephen Bainbridge in turn quotes from one of those responses, from blawger Evan Schaeffer:

So to answer Sherry's question, what was valuable about the experience? Once you got over the initial cite-checking hurdle, all of the third year editorial staff, from the editor-in-chief on down, learned skills like these: how to manage large projects to completion, how to take a small budget and use it to accomplish large things, how to manage a distracted staff, each working on a little piece of a giant puzzle. These lessons were in addition to all the good that came from learning about editing and fact-checking (skills often learned the hard way, since even some of the best stuff we accepted for publication had to be substantially rewritten. The authors of the articles, by the way, gladly accepted this "student editing").

In the dissenting voice of someone who has dealt with one too many young whippersnappers, however, Prof. Bainbridge allows:

I was nodding in agreement until I hit the parenthetical. Early in my career, I had law review editors try rewriting my articles. They never improved the article; to the contrary, they often introduced serious errors of substance or grammar. The higher the law review was ranked, the more serious the problem seemed to be. Once I got tenure, and getting published in a hurry was no longer at issue, I began putting a clause in the publication agreement giving me the right to pull the article from the journal if I disagreed with the editors. I've never had to use it, but I have had to threaten doing it a couple of times.

My own history as a member and editor of the Texas Law Review more than two decades ago puts me firmly into Schaeffer's camp regarding the pros and cons of law review service. The year I spent as an editor did more to improve my own writing, legal and nonlegal, than anything before or since (although my immediate post-graduate experience as a law clerk for a Fifth Circuit judge would run a close second). In particular, going through the editing process on my own law review note, and then spending a year as an editor myself, taught me how much anyone's writing can be improved by a fresh set of critical eyes — something that, unfortunately, my blogging gets only after it's published, if then.

But I certainly can appreciate and sympathize with Prof. Bainbridge's aggravation. And our unwritten, unacknowledged editorial policies back then on the TLR dove-tailed with the personal experience he reports from an author's perspective: How aggressively we student editors wielded our colored pencils (in those pre-PC, typewriter-dependent days) had quite a bit to do with whether we were editing manuscript from a student writer, a junior law faculty member, or an acknowledged superstar of the celestial legal-academic firmament. We were keenly aware with whom we had leverage — and the leverage was (a) inversely proportional to how badly we wanted that author's work in our journal and (b) directly proportional to how badly that author needed to be published by us.

I was our journal's book review editor. Our strategy at Texas was to make copious use of contacts and recommendations from our own faculty members — combined with heavy flattery and a light editorial pencil (both my job) — in soliciting book review projects from famous law professors who could get their articles published in the half-dozen or so most prestigious law reviews, and who therefore wouldn't usually submit those articles to us. Our journal's national reputation was sufficient that publishing with us was not beneath the dignity of those heavy hitters; and even the meaty, substantive book reviews we sought were easier to write than a stand-alone article.

"Dear Prof. A___," I'd write. "I was just discussing with Professor B___ of our faculty (who sends his regards to you)" — shameless namedropping, always with the permission of Prof. B___ — "the new book just published by Prof. C___," who would always be another big-name heavy-hitter. "Prof. B___ speculated that you, Professor A__ — in particular out of all the law faculty in America — would likely have an interesting, even compelling, reaction to Prof. C__'s work! Using Prof. C___'s book as a springboard for your own thoughts, would you consider writing a book review for the Texas Law Review?" We'd explicitly promise light editing and quick publication as additional bonuses. The strategy worked pretty well for us.

Prof. Bainbridge's lament, though, particularly brought to mind a book review written by our campus' resident superstar, the late and truly great Prof. Charles Alan Wright, that I had the privilege of editing. All of my lawyer readers will recognize Prof. Wright as the senior co-author of the definitive multi-volume treatise on federal practice and procedure, along with leading handbooks on the federal courts and on constitutional law, and one of the last century's most distinguished professors, scholars, and appellate lawyers — a true statesman and genius of the law.

The subject book was about the history of the Supreme Court. Fortunately and unsurprisingly, the raw manuscript that Prof. Wright submitted needed only the lightest of editing anyway. But I remember being a bit surprised that in one place, Prof. Wright had referred to a particular nineteenth century Chief Justice as "Chief Justice of the Supreme Court."

"Aha!" I thought to myself very proudly, "I happen to know that unlike the Associate Justices, who may properly be called 'Associate Justices of the Supreme Court,' the Chief Justice has a unique title recognizing his position as not only the head of that Court, but of the entire federal judiciary — 'Chief Justice of the United States.'" So I duly penciled in that change on the manuscript before sending it back to Prof. Wright for his review.

We went over all of my proposed changes in his office one afternoon, and he was very gracious about accepting all my suggestions — except this one. I explained my rationale, trying very hard not to look smug — at which point Prof. Wright peered at me over the top of his reading glasses, paused, and then said: "Mr. Dyer, I ask you simply to trust me on this one, for the afternoon grows late and I have other places I need to be soon." I gulped and relented immediately, changing the reference back to "Chief Justice of the Supreme Court." (Even a third-year law student should know when to stop tugging on Superman's cape.) And when my co-editors raised the same point, I shrugged and told them that I'd gone over it with him, that he'd rejected my suggestion, and — well, that he was Charles Alan Wright, and if he wanted it that way, we'd best not press the issue further.

A few weeks after Prof. Wright's book review was published, he sent me a copy of a letter he'd received from a young law professor at another school. The letter was extremely polite and complimented Prof. Wright on the book review he'd written, but said, "I believe I've caught Homer nodding," and then went through an explanation of the same distinction that I had tried to raise.

But Prof. Wright had also sent me a copy of his reply to this professor, which he'd begun by thanking the young man for his interest. "A student editor," he wrote, "had made the same observation before the book review's publication." Then — no doubt drawing solely from his prodigious and legendary memory — Prof. Wright's letter proceeded to track all of the various versions of the United States Judiciary Act enacted from 1789 to the present, complete with detailed citations, as he explained that the statutory language authorizing the position of "Chief Justice" had been changed for a brief period in the nineteenth century during which the official title was, indeed, "Chief Justice of the Supreme Court," rather than "Chief Justice of the United States." The individual referenced in Prof. Wright's book review had, of course, been Chief Justice during that period. Prof. Wright politely closed with, "Please be so kind as to let me know immediately if you ever again believe that you have caught me in an error regarding the Supreme Court and its Justices."

So to Prof. Bainbridge's implied charge that student law review editors can be impertinent young whippersnappers who sometimes screw up what they're trying to fix, I must confess my own guilt. To this good day, I am profoundly grateful that Prof. Wright spared me the withering embarrassment that must have been felt by the young law professor who'd written to point out Prof. Wright's "error."

Juries in complex civil cases

The Curmudgeonly Clerk argues persuasively in favor of the jury system even in complex civil cases, with this conclusion:

The jury system has shortcomings that are fairly obvious. These shortcomings are, no doubt, pronounced in complex civil cases. Nonetheless, I think that the contempt sometimes expressed for jurors is overstated (e.g., the derisive observation that cases are decided by twelve persons too dim to avoid jury duty).

I agree entirely, and reprint here a lengthy comment I left on his blog with a personal anecdote:

A few years ago I spent six weeks in a Harris County District Court trying a "bet-the-company" securities/accounting fraud case to a jury of twelve citizens good and true. The plaintiffs were two Middle Eastern investment trusts incorporated in the Netherlands Antilles; the defendant was an American Stock Exchange-listed New York-based company that was an early investor in international cellular telephone licenses.

In addition to about a dozen lay witnesses, over a dozen different lawyers or accountants — from Houston, Washington, New York, and London — gave expert testimony on topics including GAAP (generally accepted accounting principles), corporate finance, international intellectual property rights, and the proper discount to apply to restricted shares of stock in a company whose unrestricted shares traded on the London Stock Exchange. All of those subjects were important to understand in order to evaluate what was, necessarily, a largely circumstantial case regarding the defendant's subjective intent to commit fraud. There were over 600 written exhibits, many of them hundreds of pages long and extremely technical (including SEC filings, corporate charters and minutes, and patent applications).

In short, the case was a textbook example of a complex commercial case of the sort that many "experts" insist cannot be effectively evaluated by lay jurors.

The plaintiffs were represented by a first-string team from one of Texas' largest, oldest, and most prestigious law firms. Their lawyers were very experienced, very ethical, and very, very good, and they employed professional jury selection consultants, a "shadow" jury, and a professional graphics/demonstrative exhibits firm. The defendant was represented by a much leaner, but still very competent team that I had the privilege of leading. Each side's pretrial legal fees and expenses ran into seven figures, but the amount in controversy ran well into the eight-figure range and the underlying business transaction was in nine figures — so each side had ample incentive to do its best. The plaintiffs were sufficiently wealthy that they could well afford to pay their counsel's regular hourly rates, and they were under no pressure to settle; and indeed, the parties were still tens of millions of dollars apart when pretrial settlement negotiations (including a court-ordered mediation) were exhausted. The case had to be tried.

The trial judge was a very experienced veteran who specifically chose this trial to be the last he presided over before his retirement. Like many state-court judges, his natural inclination was to give the lawyers wide latitude — to "let it all hang out" — although we had several days of pretrial conferences before the jury was picked to sort through a great many legal and procedural issues.

It took about six hours for the jury to reach its unanimous verdict (although 10/2 would have sufficed) for the defendant.

Talking to the jurors afterwards, I concluded that probably four or five of them had understood essentially every word of testimony they had heard. Another third of the panel followed all the main points, but probably zoned out on some of the technicalities. The last third of the panel understood the main issues at least well enough to have recognized the main themes and the "gotchas" of cross-examination; their intuitive evaluation of both the expert and lay witnesses' credibility was spot on.

An appeal was of course possible, and one might have thought it inevitable simply given the stakes. To their credit, however, the plaintiffs' counsel, after themselves polling the jury, quickly concluded that although they had taken their best shot, they'd lost fair and square and were unlikely to do any better in a retrial. Within forty-eight hours, they abandoned their appellate rights in exchange for a waiver of the defendant's right to recover a comparatively trivial amount of money (a few tens of thousands of dollars) in "court costs" (mostly deposition transcript fees). And thus ended the case.

The system worked exactly as it was designed to work.

That's just one anecdotal example, of course, and I am certainly aware of other complex cases in which juries have gone far astray. Almost always, skilled and impartial observers can trace the seeds of the problem to faults in lawyering, or more rarely, judging.

As someone who's tried jury cases over the last twenty-three years with amounts in controversy ranging between $200 and $200 million, I am still a believer in the system.

Super thanks!

I'm watching the Super Bowl while blogging.  I don't much care who wins. 

But I'm very proud of my adopted hometown of the last 23 years.  I think we "done good" in putting this thing on.  (I say "we"; my sum total contribution was in politely chatting with a small handful of visitors I've run into in gas stations or drug stores, but I did make sure to "put my smile on" and welcome them, per Mayor Bill's instructions.)  I'm thankful to everyone who has worked to make the event a success —

• I'm thankful to those who put on the pregame tribute to the heroes of the Space Shuttle Columbia.

• I'm thankful to Houston native Beyonce for not overdoing the artistic styling of the Star Spangled Banner, and to everyone in the stadium who cooperated in the patriotic flash-card display.

• I'm thankful to all my fellow Houstonians who've shown hospitality, and especially to the hundreds or maybe thousands of volunteers whose work has made this shindig possible even though they didn't get complementary game tickets and maybe even are missing seeing the game on TV.

But most of all, I'm thankful to everyone — from Houston to Kabul and Baghdad — who've literally put their lives on the line to make sure that some crazy bastards who hate America and hate freedom haven't been able to crash an airliner into Reliant Stadium, or sneak a fragmentation bomb onto one of our new lightrail trains, or otherwise deliver some tragedy into the midst of the festivities.

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Update (Sun Feb 1 @ 9:30pm):  And hey, it turned into a heckuva good football game too!  Grats to the Pats; and grats to all those who took Carolina and the points.

School uniforms

It's odd, what one finds oneself blogging about.   I had no intention of writing today about school uniforms.  But Will Baude at Crescat Sententia has a pair of posts up about school uniforms, in the later of which he says:

The argument for school uniforms rests on two logical steps, both of which I think are incorrect. The first step is believing that more discipline, uniformity, order, or whatnot are a good thing in our public schools. The second step is believing that school uniforms will supply that.

Will, a good libertarian (whom, despite his protests to the contrary, I quite often agree with — I just don't post my "ditto, Will!" observations), argues persuasively that neither reason justifies school uniforms.  And Will's co-blogger Amanda Butler has also weighed in on the issue, arguing that uniforms are not crucial to "producing 'intelligent, well mannered, critically thinking citizens.'"  The contrary view is argued eloquently by Steve at Southern Appeal in his own pair of posts. 

I'm not sure about discipline; I leave that debate to Will, Amanda, and Steve.  But as the father of an about-to-be 13-year-old daughter who attends a public middle school that requires school uniforms, I'm in favor of them for an altogether different reason than discipline per se. 

Without uniforms, teens and pre-teens — especially, but not only, the girls — obsess about fashion.  And on a net basis, it's just not a productive obsession.  For all but the coolest richest cutting-edge kids, in fact, it's a source not only of distraction from schoolwork and extracurricular activities, but also of jealousy, embarrassment, insecurity, resentment, and yes, tears. 

The degree to which young teens and pre-teens fall prey to this obsession may seem wildly disproportionate to a well-balanced adult, but that's the point — we're not dealing with well-balanced adults. 

Growing up — dealing with all the other hurdles of adolescence, including fashion outside of school — is hard enough.  Deciding whether her chosen outfit for the day is going to ruin her popularity, fortunately, is something neither my daughter nor any other young teen at her school has to deal with. 

Will argues that "fashion and politics are two things that add to students' education rather than subtracting from them."  But there are plenty enough other decisions that confront her every day for me to be quite comfortable that she and her fellow students are in no danger of becoming "happy little calculus drones" despite their school uniforms.

Stereotypes aside, boys also can feel fashion pressures.  I've got two sons as well, by the way — the older of which is at a public high school that doesn't require uniforms.  He's fortunately somewhat better able to deal with making fashion decisions as a tenth grader than my daughter is as a seventh grader. 

And especially for boys, but also for girls, demure school uniforms frankly dampen (although they certainly can't, and shouldn't, stop) the degree of distraction that comes with the opposite sex transforming from "yucky" to "dreamy." 

I admit to being overprotective of my daughters, like most daddies.  Watching a daughter become a woman is a complicated subject for us dads.  I've blogged about that subject; interestingly enough, and also frighteningly to me, that post included a G-rated but fairly sexy .jpg reproduction of the recent Rolling Stone cover featuring the Olsen Twins that Google's image search function has mysteriously promoted to about page 4 in its search listings for them, and that image is now driving about 500 additional hits a day to my site from all over the world.

For my two youngest kids who are still in elementary school, uniforms aren't a big deal either way.  But as someone who was scared to death by the promos for the movie "Thirteen," I'm frankly glad my daughter's middle school requires uniforms.  Surely even a libertarian can grant some grace to a dad who doesn't want to see his daughters (or his sons) pressed into premature sexuality by fashion-driven peer pressure!

 

Drug money

I'm listening to Howard Dean on "Meet the Press" rail against the just-passed prescription drug benefits legislation on grounds that it will give money to drug and insurance companies instead of to seniors.

How exactly are you supposed to have legislation paying for prescription drugs that doesn't channel money to drug and insurance companies?

What does Dean want?  Should we pick seniors who need help paying for prescription drugs and insurance, and give them money — but then forbid them to spend it on prescription drugs and insurance?

What am I missing here?  How can this be understood as anything other than populist demagoguery directed to the extremely stupid?

Comments are open, just in case some browsing Dean supporter can enlighten me.