Opposition Brief

Caution: Entering Slow Blogging Period

2008-06-23T06:30:00.002-04:00

The frequency of my posts will be way down over the next few months as both the blog, and I, will be undergoing some significant re-tooling. We will both emerge for the better in August.

Nationalize Industry or Industrialize Wilderness? (or how political footballs lead to bad laws)

2008-06-18T21:48:00.011-04:00

Matt Drudge often chooses headlines that overstate and exaggerate to create drama on his website. So when I saw the headline that read "House Democrats Call for Nationalization of Refineries" I knew I had to find out what actually happened, instead of relying on Drudge's banner or the Fox News article that "supported" it. As it turns out, only one Democrat, Representative Maurice Hinchey, suggested that we should consider government owned refineries as a method of increasing fuel production, in lieu of more drilling on the coasts or in Alaskan wilderness.

So Drudge exaggerated again. However . . .

. . . I'm no economist, but it seems pretty clear that the price of goods is best left to the free market. As with most commodities, a decrease in oil's supply leads to an increase in price. But an increase in price should lead to a decrease in use and an increase in the use of alternative goods.

The problem with oil, at least right now, is that it is so much better than all available alternatives. No other alternative energy source combines its efficiency, portability, and potency. Nothing, in fact, comes close right now. Bio-fuels, by some measures, require nearly as much energy to produce as they generate, and may create more of a greenhouse problem than they solve. Solar and wind suffer from a lack of portability, at least until we find the combination of political will and technical wherewithal to build an efficient national power transmission infrastructure. Nuclear is good, if you have a place to store the waste; but Yucca Mountain is at least a decade away from readiness.

So for the next decade, at least, we are stuck with the reality that oil is the essential fuel for our economy. And naturally, when prices soar, politicians want to appear to be in favor of taking steps to lower oil prices; or at least as likely, they want to make their opponents appear to favor unpopular steps. The issue becomes the subject of a political game -- tossed about like a football for the benefit of talking heads and potential voters.

Today, the political game over oil prices was as pretty as last year's Steelers-Dolphins 3-0 debacle. In other words, neither side looked good, and almost no one scored. The Republicans disingenuously called to open up off-shore shelves and parts of the Alaskan wilderness to drilling, claiming (falsely) that this would result in lower prices. The Democrats, meanwhile, correctly pointed out the falseness of the Republicans' claims, but at least one Democrat, Representative Hinchey, appeared to call for government ownership -- nationalization -- of oil production refineries.

Nationalize? Yikes.

Certainly that is not the position of most -- if any -- other Democrats, but that kind of overreaching, ill-considered position, invoking (properly) Republican comparisons to Chavez et al., is a sign that the game has became even more stupid than usual. Government ownership of the means of production is not going to help our economy efficiently deliver energy over the long-haul. Gazprom is not a good model for us.

As is often the case, the best answer is not likely to be an easy one. Probably the answer for the long run is to invest in energy transmission infrastructure that makes alternatives to oil economically feasible, and for the short run to conserve energy. It really is not rocket science. But as long as both sides think they will appear to gain political yardage, we'll continue to see ridiculous posturing. Let's hope neither side is successful in actually passing legislation until after the whistle blows in November. The last thing we need right now is a poorly-gamed national energy policy; neither drilling in nature preserves nor nationalization of industries will do us any good.

Unnamed Sources of Grand Jury Information

2008-06-16T07:14:00.005-04:00

Today's WSJ has an article claiming that an investigation of Bradley Schlozman, former interim U.S. Attorney in Mo., has been "referred" to a Grand Jury. The article purports to describe both the fact of referral and the nature of the investigation; yet it relies entirely upon unnamed "people familiar with the probe." This is a common practice for reporters writing about secret Grand Jury proceedings.

What the WSJ fails to discuss, and what reporters nearly always fail to point out in these stories, is that the unnamed sources almost invariably fall into one of three categories: (1) lawyers for the subject of the investigation, or for a witness in the investigation, who have a goal of controlling the timing and nature of media coverage of the investigation for their client's benefit; (2) government employees committing a federal crime by revealing information about a matter occurring before a Grand Jury protected from disclosure by Federal Rule of Criminal Procedure 6(e); or (3) someone who simply does not know what is occurring before the Grand Jury. So when the reporter attributes his or her information to "people familiar with" the investigation, the reporter should tell the readers in which of these categories those "people" fall. It is certainly relevant to evaluating the credibility of the report to know, for example, that the source is a defense attorney with an agenda to benefit his client. It would also be useful to know if the source is breaking federal criminal laws to provide the information. And of course, if the source just has it wrong, or is lying, that would be nice to know, too.

Rule 6(e) is designed to protect the people who are subject to Grand Jury investigations as much as it is to protect the investigations themselves. Grand Jury investigations frequently look into conduct by people that is not criminal, and does not result in charges. Should those subjects of the Grand Jury investigation be subjected to public tarnishing on the basis of an "unnamed source"? Doesn't the WSJ have the responsibility to fairly present the basis of their report -- a report which has now tagged Mr. Schlozman as a potential criminal?

Happy Father's Day!

2008-06-15T11:44:00.009-04:00

Sometimes it takes having kids of one's own to really appreciate your own parents. With two of my own, I now have first hand knowledge of how tough the job actually is. Good job, Pop!

On this father's day, I wish Pop a Happy Father's Day with a Father's Day Haiku contest and pair of top five list.
Here's the opening salvo:

How Pop Created a Lawyer -- a haiku

Father's Day is here
What have I learned from my Pop?
Love of argument

Reader submissions welcome. I'm confident you can do better; winner announced soon.

Here's my list of the top five great fictional fathers (using no particular criteria other than these are fathers that might have been fun to have):

5. Eugene Levy's character in American Pie
4. Clark Griswald ("Roll up the windows!" National Lampoon's Family Vacation)
3. Ben Cartwright (Bonanza)
2. Ralphie Parker's Dad ("You'll shoot your eye out"; Christmas Story)
1. Homer Simpson

The Ponderosa's wise patriarch, and third best fictional dad

Top five not-so-great fictional fathers:

5. Danial Plainview ("Bastard in a Basket!"; There Will Be Blood)
4. Al Bundy (Married (With Children))
3. Darth Vader ("I am your father"; Return of the Jedi)
2. Bull Meechum (basketball bounced on the head; the Great Santini)
1. Jack Torrance ("Heeeere's Johnny!"; The Shining)

Happy Father's Day!!

Extraterrestrial Reach of Boumediene v. Bush?

2008-06-12T21:32:00.009-04:00

There is plenty of scholarly discussion of the reasoning and real-world significance of today's Supreme Court decision in Boumediene at high-brow sites like SCOTUSblog, Balkinzation and the like. But what really grabbed me about today's (third) slap in the face to the Bush administration's detainee policy was not Justice Kennedy's sweeping language re-affirming the primacy of liberty (even over security), but rather the majority's thorough analysis of how and when certain fundamental Constitutional rights protect anyone, whether citizen or not, in places outside of the United States -- like Guantanamo Bay, Cuba.

Or, like outer space.

The Supreme Court did not venture onto this theoretical launch pad, but the Bush Administration has itself already compared Guantanamo Bay to outer space, as chronicled by Elizabeth Sepper:

A memo written for the Department of Defense discussed the fact that the Administration was considering possible detention sites on the basis of whether a federal court could exercise habeas jurisdiction over them, concluding that "a district court cannot properly entertain an application for a writ of habeas corpus by an enemy alien detained at Guantanamo Bay Naval Base." Memorandum from Patrick F. Philbin, Deputy Assistant Attorney Gen. & John C. Yoo, Deputy Assistant Attorney Gen., to William J. Haynes, Gen. Counsel, Dep't of Def. 9 (Dec. 28, 2001). One former Administration attorney described Guantanamo as "the legal equivalent of outer space."

See Elizabeth Sepper, The Ties that Bind: How the Constitution Limits the CIA's Actions in the War on Terror, N.Y.U. Law Review, n.118 (October 17, 2006) (citations omitted, emphasis supplied).

If Messrs. Philbin and Yoo were correct, then perhaps Boumediene would apply to the planned United States moon base, once occupied?

The 1967 Outer Space Treaty purports to forbid signatories, including the U.S., from asserting sovereignty over the moon or any other celestial body. But Boumediene makes clear that the existence or non-existence of sovereignty does not control whether Constitutional protections extend to a particular territory -- Guantanamo Bay is under Cuban, not U.S., sovereignty according to the government's position in Boumediene, for example. Moreover, parties to the 1967 Outer Space Treaty can opt out of the treaty with one year's notice.

So once the moon base is occupied, a prompt habeas corpus hearing should be available to its occupants. Future little green detainees can now breathe a little easier.

Though they should remember that in space, no one can hear you petition.

Future Combatant Status Review Trial?

Extraordinary Rendition Vehicle?

Bloggers Must Have Short Attention Spans

2008-06-11T22:08:00.002-04:00

The Atlantic has a fascinating article about the effects of frequent internet usage on our ability to stay focused on long written pieces. I'd elaborate further on the report, but I only managed the first half of the first page before clicking on something else.

Former NBA Ref -- While Cooperating With Federal Prosecutors -- Accuses NBA of Fixing Games

2008-06-11T05:11:00.017-04:00

Fox Sport News reports that Tim Donaghy, the former NBA referee who pleaded guilty in 2007 to federal fraud and gambling crimes, sent a letter to prosecutors proffering that other refs fixed NBA playoff games at the instruction of league officials.

The four-page letter written by Donaghy's counsel, John F. Laura, (J.D., Georgetown, '82) was sent to the District Judge in the Eastern District of N.Y. (Brooklyn) who will decide Donaghy's sentence at a hearing scheduled for July 14, 2008. The letter purports to recount several proffer sessions with prosecutors where Donaghy accused NBA executives of telling refs to call excessive screens, benefit star players, and favor a team (probably the Lakers) who was down 3 games to 2 in the 2002 playoff series in a crucial game 6 -- thereby taking the series to 7 games and increasing league revenue. The Fox Sports article has a breakdown of the fouls called in that game which might corroborate the proffer (the Lakers took 27 free throws to the Kings 9 in the fourth quarter).

My favorite part of the letter is footnote 3. The text describes how an owner complained about refs not calling fouls for "illegal screens." Lauro, apparently concerned that the importance of this might be lost on the Judge, drops a footnote explaining:

A "screen" is the legal action of a player who, without causing undue contact, delays or prevents an opponent from reaching a desired position. Under NBA Rules, "a player who sets a screen shall not . . . move laterally or toward an opponent being screened, after having assumed a legal position.

As is usually the case with legal proceedings, there seems to be more to the story than has been reported by the press. Usually letters like this remain sealed with the Court and unavailable for public view, with the consent of the prosecutors (who do not want to reveal details of investigations) and the defendant (who want prosecutors to tell the Court that the defendant's cooperation provided the government with substantial assistance). But here, Donaghy opposed sealing his letter, causing the Court to release it and its bombshells. Why?

Well, perhaps there is a clue in the fact that Donaghy also filed, on the same day the letter was unsealed, a request that the Court allow him to subpoena documents from the NBA for use at his sentencing hearing. According to the letter, the NBA told the Court on June 5, 2008, that it was entitled to $1 Million in restitution from Donaghy. Donaghy argued in response that the NBA's request was unsupported by the law and perhaps motivated by Donaghy's proffered information regarding the NBA's alleged fixing of games.

So was Donaghy hitting back at the NBA for its restitution request? Was the demand for $1 Million from a criminal defendant unlikely to ever be able to pay worth it Mr. Stern?

Keeping Things in Perspective

2008-06-10T05:39:00.005-04:00

CalTech physicists studying the origin of the universe are proposing that the distribution of matter shortly after the big bang, as revealed by studying the Cosmic Microwave Background, can tell us something about the shape of the much larger universe from which our entire universe bubbled.

That's right, they are proposing that our entire universe is a pimple on the rear of another universe. Douglas Adams would be proud.

Karl Rove's Trail of Tears? (or how sausage is made)

2008-06-09T21:32:00.016-04:00

U.S. Representative Henry Waxman, Chairman of the House Committee on Oversight and Government Reform, released a report with supporting documents alleging that disgraced and convicted uber-lobbyist Jack Abramoff had extensive contacts with senior White House officials, including Rove. Having experienced Congressional reports first hand, I know that they are motivated by politics, often inaccurate, usually based upon hearsay, and sometimes simply dead wrong. But in this case, we have the actual e-mails between Abramoff and Rove, Ken Mehlman (current partner at Akin Gump and former political director in the White House), and others.

Boy is there some disgusting, but strangely entertaining, stuff in those e-mails. As a whole, reading the Abramoff e-mails makes me feel as Upton Sinclair must have felt upon first viewing Chicago's turn of the century meat packing industry.

For example, when describing some of his most lucrative clients, Native American tribes, he says: "I told cherokee to come up with the dough or prepare for another trail of tears !!! :)" (smiley face in original).

The redeeming quality to reading through the e-mails is the knowledge that Abramoff, with all his hubris and corruption, is now sitting in federal prison. But at the end of the day, it is not Abramoff who is the most disgusting, but rather the supposed public servants who accepted streams of tickets, meals, and other things of value to take actions for the benefit of Abramoff's clients.

Was this Administration uniquely receptive to this approach? Or did we just get lucky that Abramoff tripped himself up on a Casino boat deal gone bad, giving prosecutors the leverage they needed to pry open the lid on the sausage factory?

Obama Hires Sysiphus

2008-06-08T14:49:00.006-04:00

I have been impressed with Barack Obama's (J.D., Harvard, 1991) management style. He seems to have been quite effective at running the logistics of a very difficult primary campaign. Today's NYT has an excellent article describing his evolving general election strategy, and revealing some of the details of how he intends to manage the coming contest.

This line, however, made me laugh:

One area in particular where Mr. Obama is adding muscle is a team that is tasked with tracking down rumors and erroneous statements circulated on the Internet.

One could hardly imagine a more appropriate modern punishment for Sysiphus.

UPDATE: Just one example will suffice. This morning, I received (from Mom, no less!) an e-mail claiming Lee Marvin fought with Captain Kangaroo on Iwo Jima, and that Mister Rogers was a hardened, tattooed vet trained to kill in hand-to-hand combat. The e-mail actually sounds convincing when you first read it, and it comes replete with photos and purported transcripts. Snopes does a good job of debunking it. Perhaps Obama should bring the Snopes folks on board . . .

The Captain:

War hero?

Lerach Tries to Explain His Guilty Plea and Justify Pay for Plaintiffs

2008-06-08T14:13:00.008-04:00

Bill Lerach, heavy hitting securities class action lawyer formerly of Milberg Weiss, and now convicted felon, just wrote a fascinating article for Conde Nast. While it contains the typical attacks leveled by criminal defendants regarding the prosecutors' motives and the government's supposedly overwhelming power, the more interesting part of his piece is the full-throated defense of payments to class action payments. Lerach even invokes Brown v. Board of Education, arguing that no one would think it criminal if the class action plaintiffs in that case received a fee for their troubles.

Do the benefits of paying class-action plaintiffs a fee outweigh the costs? My strong sense is they do not, and paying plaintiffs is most unfair to honest class action lawyers who are unwilling or unable to do so.

In a way, the debate reminds me of the current dispute about whether college athletes should be paid.

There, too, I think paying college athletes disadvantages schools who are uncomfortable with or financially ill-suited for such an endeavor.

Saturday Book Report

2008-06-07T15:44:00.004-04:00

Without question, the greatest character-based detective series is John D. McDonald's Travis McGee series. For those of you who have yet to read these great little books, just pick up any of the McDonald novels with a color in the title. Deep Blue Goodbye is the first, from 1964. Lonely Silver Rain the last, from 1985. I've read all 21 more than once, and just finished reading The Quick Red Fox. My favorite is Pale Gray for Guilt, though that is not his tightest or best written. Quick Red Fox may well be the best from a technical standpoint. Taught, bitter, and fun. Perfect summer reading.

On Marxism and Money Laundering

2008-06-07T05:48:00.002-04:00

Tom Delay has accused Barack Obama of being a Marxist. First, of course, consider the source. Delay is currently under indictment on money laundering charges. Second, consider what Marxism is -- an ideology based on discredited 19th century economic theories used by some of history's worst totalitarian regimes to commit mass slaughter, contrived starvation, and other atrocities. Finally, look at Barack Obama's economic proposals. Tax cuts, a plan to help small businesses, an embrace of the energy and effectiveness of the free market, mixed with common-sense reforms to health care and some traditional democratic positions on NAFTA and labor. Calling the candidate who embraces these positions a Marxist would be akin to calling John Kerry a coward. Who would ever stoop to such a level?

Pittsburgh Trivia Question

2008-06-06T16:08:00.003-04:00

Which of the colored highway "belts" actually form a complete loop? Hint: only three do.

Answer tomorrow.

ANSWER: The Purple, Blue, and Yellow belts loop. Green, Orange, and Red, not so much. See map.

AG sweepstakes

2008-06-06T15:33:00.000-04:00

In law-related news, John Edwards appears to have taken himself out of the running to be Barack Obama's VP, leaving open the possibility that he still may serve as Attorney General. The smart money, though, is still on Eric Holder for that spot. A former US Attorney for the D.D.C, Deputy A.G., and current Covington partner, he was once nominated by President Reagan to a DC judgeship. He is now one of three appointed by Obama to conduct the veep search. (Caroline Kennedy heads the V.P. search committee.) Detractors are sure to bring up Marc Rich's pardon, and will try to pin Holder with the responsibility for that controversial decision late in Clinton's second term.

Few appear to be seriously considering Hillary Clinton as a viable A.G. candidate. The specter of old allegations about her conduct at the Rose Law Firm (whether justified or not) would seem to counsel against her stepping into the top spot at Justice at this time in history.

Friday Entertainment Briefing

2008-06-06T15:28:00.001-04:00

I am angling to watch There Will Be Blood on FIOS this weekend. A few weeks back we watched No Country for Old Men. Seems like a great year for Westerns, which seem to bloom cyclically. By the way, why do studios always seem to push out similarly themed movies at the same time?