Professor Bainbridge links the text of the California anti-gerrymandering initiative. It looks more-or-less like a good idea to me, but the selection procedure for the “special masters” looks overly complicated. But, I suppose, that’s the way California politics works…

Charles Pickering (who the national Democratic Party would have you believe is a racist hatemonger, even if many Mississippi Democrats and the reliably left-wing Clarion-Ledger editorial board disagree) just issued a ruling in a racial segregation case, and somehow managed to do so without declaring the Civil Rights Act of 1964 unconstitutional. Stuart Buck and Howard Bashman have more.

Past posts on the Pickering smear campaign here.

I somewhat agree with both Glenn Reynolds and Lorie Byrd that the Swift Boat Veterans for Truth ad (link only works in Internet Explorer) is “devastating”—mind you, leaving aside the truth of the charges it makes against John Kerry. And I think the Kerry campaign is going to have to do much better than threatening to sue any TV station or network that airs the ad, even if the ad is maliciously false and libelous under the NY Times v. Sullivan standard—a legal standard public opinion doesn’t care much about.

That said, charges of lunacy toward some of the “Swift Boat Veterans” (say that six times fast!) are flying on both sides of the political aisle, while Steven Taylor is skeptical and cautious, but points out three reasons that the SBVfT account of events may indeed be credible:

1. It strikes me as odd that a large number of veterans would come together to make these allegations, knowing the amount of public and media scrutiny they would have to endure. ...
2. The leader of this group, and the first named author on the book, Houston lawyer John O’Neil, has had some compelling character witnesses, if you will, who also give me pause for thought. ...
3. Mr. Kerry’s own words give credence to some of the accusations.

On the other hand, I agree with von of Obsidian Wings that it’d be real nice to have the actual evidence these accusations are based on before pronouncing judgment on their veracity—or, for that matter, the sanity of Kerry’s accusers.

Frivolous lawsuit or real justice? Check out this story from Knoxville:

The Tennessee Court of Appeals has reinstated a lawsuit against a gas station filed by two victims of drunken driving.

The court ruled Gary West and Michell Richardson could sue East Tennessee Pioneer Oil Company for negligence.

An investigation concluded that employees of a Knoxville Exxon station operated by Pioneer refused to sell Brian Lee Tarver beer because he was intoxicated, but helped him pump fuel into his car.

Police say Tarver left the station with his lights off, driving in the wrong lane and crashed head-on into the car carrying West and Richardson in July, 2000. [emphasis added]

It seems to me the more appropriate target for this lawsuit is the employees, who I doubt were following company policy in helping drunk drivers fill their gas tanks (assuming the Exxon is self-serve only), but considering they were stupid enough to fill the guy’s tank, they probably don’t have any money to collect in a lawsuit anyway.

(Link via email from a friend of the blog.)

Brett Marston isn’t too impressed with the National Labor Relations Board’s decision last week that removed the right of graduate students to organize at private universities. He writes:

I don’t want to be uncharitable, but the majority seems to have little interest in the function of labor law. They seem to view it as a collection of information about congressional views on categories of relationships between people rather than as an attempt to reduce labor conflicts. For the majority, the relevant question is whether TA’s have a primarily “economic” or a primarily “educational” relationship to the university; if it’s the latter, then the administrators win, because educational relationships are not covered by the rules.

In contrast, the dissent seems to indicate that the function of labor law is to provide a regularization of existing disputes that are characterized by the unionizing participants themselves as labor disputes. It’s the disputes themselves that matter, not the formal relationship categories that Congress has helped create.

My suspicion, however, is that TA unionization doesn’t “reduce labor conflicts” at all; instead, it is a vehicle for graduate students to obtain greater benefits from their employer/educator than they might otherwise receive (by bargaining collectively, rather than on an individual basis), which seems rather orthogonal to the idea of “conflict.” If anything, having a union would seem to create a system by which disputes between graduate students and the administration would be increased and intensified, by being channeled into adversarial activities such as “work to rule” and strikes—events that wouldn’t occur if disgruntled students had individual disputes with the administration.

On the other hand, I was raised in an era and a political culture hostile to unions, and grew up cheering on Margaret Thatcher as she pummelled Britain’s excessively powerful labor unions into submission, so I could be wrong.

The “Marriage Protection Act of 2004” has all the good legalist-model-types in the blogosphere scrambling for reasons why it would be unconstitutional. Josh Chafetz says it’s unconstitutional because it (partially) strips the federal judiciary of its mandatory jurisdiction over all cases arising under federal statute and the Constitution.

My gut feeling is that the Court would be more likely to rule the act (assuming it ever becomes law, something I don’t see given the inevitable filibuster in the Senate) unconstitutional on the basis of Romer v. Evans, on the basis of the act being a violation of equal protection.

All this, of course, is trumped by the attitudinalist in me, which sees zero chance of the Supreme Court ever permitting any of its jurisdiction to be curtailed by Congress without its consent. The legal reasoning surrounding such a ruling would be, more likely than not, just window dressing for the underlying preferences of the Court’s members. (I suppose this is my bias as a political scientist showing.)

Eugene Volokh finds a shocking relationship between ice cream consumption and sex crimes. Fun with stats ensues.

(This item is blogged so I remember to shamelessly rip it off when I teach methods in the fall.)

From Scipio comes this word:

In court on Friday, Judge Pickard announced that he was going to effectively bar asbestos and silica products liability cases in Jefferson and Claiborne Counties, because about half of every jury pool consists of named plaintiffs in asbestos and silica cases. Accordingly, the defendants would not be able to ever get a fair trial in those two counties.

I don’t know what’s more disturbing: that half the people of two counties are named plaintiffs in liability cases, or that it took half the people of two counties being named plaintiffs in liability cases to get any meaningful tort reform in this state.

Interesting statistics: in 2000 Jefferson County had 9,740 people, 86.7% of whom were black (the highest proportion of any Mississippi county), while Claiborne County’s population was 11,831, 84.4% of whom were black (2nd). Mississippi as a whole had 2.844 million people in 82 counties, 36.6% of whom were black; the median county propulation was 22,374, and the median percentage black in a county was 37.5% (μ=39.6%, σ=20.2).

Alex Knapp more-or-less sums up my reaction to the Supremes’ ruling on the Guantanamo detainees and José Padilla. More, of course, at Volokh. And, there’s archived Signifying Nothing Gitmo coverage here.

Incidentally, both Alex and Von approvingly quote from Antonin Scalia’s dissent. (Mind you, the most immediate impact of this case on my life is now I have to shoehorn it into two-thirds of my courses in the fall.)

Matt Stinson would support a constitutional amendment forbidding Britney Spears from getting married again. Apart from the unfairness of singling out Ms. Spears for constitutional opprobrium (surely, the violations perpetrated by Jennifer Lopez and Larry King are equally deplorable), conservatives—as opposed to libertarians—might legitimately be concerned that such an amendment would lead to widespread sympathy for Ms. Spears engaging in nonmarital* sex, and—if we are to believe the cited Mr. Sullivan’s views on same-sex marriage—increased promiscuity by Ms. Spears and other individuals prohibited from the benefits of legal marriage.

On a more legalistic level, one might be concerned that such an amendment amounts to a bill of attainder and deprives Ms. Spears of equal protection (particularly if Ms. Spears is subjected to some nonmarital abuse), although it is unclear whether a constitutional amendment can be unconstitutional in its own right; an amendment reducing or increasing the Senate representation of any state in which Ms. Spears resides would clearly be unconstitutional, as would have any amendment passed in 1800 restricting someone from importing Ms. Spears as a slave, but these are clearly “corner cases” in the law. Such questions would no doubt lead to great controversy between the 9th Circuit Court of Appeals—which has jurisdiction over Nevada, undoubtably the site of any future Spears “marriage”—and the Supreme Court, inevitably leading to a further decline in public respect for both institutions.

Thus, and for reasons of good taste, I must decline Mr. Stinson’s implicit invitation to join his effort to amend the constitution. Nonetheless we should remain vigilant that the institution of marriage remain the sacrosanct cornerstone of American society. Or at least retain the possibility that Ms. Spears might, eventually, come to her senses and marry the proprietor of this weblog.

Dean Jens explicates the original purpose of the Electoral College:

[T]he electoral college as originally conceived was expected to elect George Washington as many times as he could be talked into it, and then to very rarely actually give a majority of the votes to any candidate. It was viewed largely as a nominating committee, giving the House of Representatives a short list of candidates from which to select a president. It didn’t work out the way they envisioned, and, if it had, it may not have worked out the way they envisioned; regularly having the legislative branch elect the chief executive may or may not have proved to be a good idea. But it’s my understanding that that was the idea.

Alexander Hamilton’s explanation of the selected procedure is in Federalist 68. Funnily enough, one of the changes to the procedure made in the 12th Amendment reduced the “short list” of candidates from an indecisive vote of the Electoral College from five to three.

Steven Taylor:

Can we say “matching funds are dead”? I bet we can. There can be no doubt that after Bush in 2000 (and ‘04) and Kerry and Dean this time, that the presidential primary matching-fund process created by the FECA is essentially dead. At best it is campaign welfare for medium-to-low wattage candidates.

While we spend a while hashing out what we’re going to do about this travesty, Congress and the Federal Election Commission might do well to heed the words of baseball guru Bill James, on a completely unrelated topic, the balk rule:

Q: Can you elaborate on how/why the balk rule doesn’t work? Thanks

Bill James: The rule manifestly fails to achieve its goals. It’s one of those rules that, when it didn’t work, they tried to fix it. When that didn’t work, they fixed it again, and they fixed it again, and they fixed it again.

At some point they should have stopped and tried something else, but they didn’t, so they stuck history with a rule which (a) is almost totally unintelligible, and (b) is arbitrary in its enforcement.

In principle, trying to prevent one player from decoying another is a dumb idea. The balk rule is like a rule in basketball that says (a rule that would say… theoretical example) that if you fake a shot, you have to take the shot; otherwise it is travelling. That would be a dumb rule. The balk rule is basically the same thing, only applied to baseball. [emphasis mine]

I think the bolded passage pretty much sums up the state of campaign finance law in the United States in 2004.

Eugene Volokh gives the legalist’s reasoning as to why the Supreme Court granted certiorari in Newdow v. Elk Grove; I still believe the original plan of the justices who voted for cert was to also reach a substantive conclusion on the constitutionality of the pledge requirement (perhaps in line with Thomas’ concurrence), but Scalia’s recusal threw a wrench in the works of that happening.

Meanwhile, Alex Knapp agrees with Dahlia Lithwick that the more important issue settled in the case may relate to the majority’s newfound respect for the principle of federalism, at least in the area of family law.

Many conservatives like to bash the Ninth Circuit Court of Appeals, pointing out that in recent years it has had more decisions overturned by the Supreme Court than any other Court of Appeals. I’m no legal expert, but I’ve long suspected that this is because the Ninth Circuit has been faithfully applying precedents that the Supreme Court has been in the process of overturning over the past two decades. Which is exactly what a lower court is supposed to do. Other Courts of Appeals have, to a greater extent than the Ninth Circuit, been instead playing a game of “guess what the Supreme Court will say.” To the extent other Courts have been right in their guesses, they have been overturned fewer times.

Some support for this thesis is contained in today’s concurring opinion in the Newdow case by Justice Clarence Thomas, the Supreme Court’s most conservative Justice. Thomas, who would have overturned Newdow on the merits, writes: “I conclude that, as a matter of our precedent, the Pledge policy is unconstitutional.” (Via the Volokh Conspiracy.)

Contrary to my expressed preference in the case, the Supreme Court decided to duck the case by pretending that Michael Newdow lacked standing to bring the case in the first place, a decision that essentially concedes (at least in the mind of this attitudinalist) that the Court couldn’t muster five votes to keep “under God” in the pledge without using the bogus “standing” issue. Indeed, Stevens’ justification for the 8–0 ruling (Scalia recused himself) amounts to a non sequitor:

When hard questions of domestic relations are sure to affect the outcome, the prudent course is for the federal court to stay its hand rather than reach out to resolve a weighty question of federal constitutional law.

How, exactly, does the question of who has custody over Mr. Newdow’s daughter affect whether or not the pledge of alliegance is constitutional? Whether or not the child’s mother approves of the pledge is irrelevant to the legal issue at hand.

One suspects, however, that this holding action won’t settle the argument for good, as I’d imagine Mr. Newdow will find another athiest parent with uncontested custody, or a high-school student of majority age, to bring a similar case in the near future.

Update: Stephen Green, Eugene Volokh (via Anti-Climacus), Jacob Levy, Mark of Memphis Red Blogs, Steven Taylor, and Spencer of Mediocrity’s Co-Pilot also have posts on the decision.

I think the interesting political question here is why the Supremes granted certiorari in the case; the standing issue certainly could have been decided without an oral argument, and perhaps even without briefs (the case simply could have been reversed and remanded). I don’t want to post too much about my thoughts, because I think this might be a good discussion topic in Con Law in the fall when we talk about the structure and powers of the Court, even though the content of the semester focuses on topics other than civil liberties (except economic regulation, which is covered).

Eric Muller starts hypothesizing about MemoGate:

This is the sort of thing one might expect to see a young lawyer do in a “brainstorming” sort of memo—and that one would expect to see a more senior lawyer react to by saying, “Very creative. I like how you’re thinking outside the box. But none of this is going to fly in the real world. Please go back and rewrite this into something we can actually use.”

The memo is marked “draft”—so maybe all of this too-clever manipulation of hornbook law ended up in the back of a filing cabinet of non-starter ideas. Somehow I don’t think it would have been leaked if that were true, though. [emphasis mine]

Alternative hypothesis: today is June 11, 2004, a mere 144 days before a presidential election. This memo is highly embarrassing to the Bush administration (at least in the opinion of those who already don’t much care for said administration; the jury’s still out on whether rank-and-file swing voter cares about Jose Padilla and Iraqi detainees). Lower-level functionaries in major government departments are known to be core Democratic voters. Ergo, any embarrassing material—even if it was never used to justify administration policy—is worth leaking, especially considering that Abu Gharib was finally moving off the front pages in light of progress in the political situation in Iraq.

Counter-hypothesis: today is June 11, 2004, the week of Ronald Reagan’s death. The memo is highly embarrassing to the Bush administration, but about the most damning piece of the paper trail that ties administration actors to extra-legal torture by CIA and military intelligence operatives. Leak it now, and the news will be buried along with Reagan, as the only media outlets who will still care in a week will be ones with known partisan taint like The New Yorker, and thus, any such accounts will be immediately discounted by otherwise-swayable Republican elites.

It’s just been confirmed that I’ll be teaching Constitutional Law in the fall—specifically, the first half of the typical political science “Institutional Relations / Rights and Liberties” sequence. Since I’m not a lawyer or an institutionalist, this leaves me a tad out of my depth; I’ve been on the receiving end of Rights and Liberties, but the rest of my background in law and the courts is in judicial behavior.

Assuming I use the case method (given that these are primarily law-school-bound students, I think I should stick with orthodoxy), I’ve got a couple of possible textbooks in mind: Mason and Stephenson (used by John Winkle at Ole Miss) or Rossum and Tarr. Since I’m not sure we plan to offer Rights and Liberties in the spring, and since I’m not sure that I’ll be teaching it even if we do, I’m leaning toward a single-volume text (which indicates Rossum and Tarr over Mason and Stephenson). I also thought of dragging out the first volume companion to the overweight West book I used as an wee grad student for Rights and Liberties, but it may be too expansive—and expensive—for a junior-level undergraduate seminar consisting primarily of political science majors and pre-law types.

Any suggestions, endorsements, or recommendations would be greatly appreciated.

Update: I received a vote via email for Epstein and Walker, which has the advantage (IMHO) of having been written by political scientists.

I think there’s a reasonable argument to be made supporting media outlets’ decisions to not name alleged rape victims, including that of Kobe Bryant’s accuser. That argument would seem to extend to also not naming her alleged past and present sexual partners, but apparently it doesn’t, which strikes me as a very odd double standard to be upholding in this day and age.

Congratulations to Scipio of The Vast Right-Wing Conspiracy on winning his defendant’s case at his first trial. I won’t swear to it, but it sounds like he had fun or something.

Geitner Simmons finds David Broder finally figuring out that those of us who somehow figured out that McCain-Feingold was a disaster waiting to happen were right.

Of course, many of the parties involved—President Bush included—thought the Supreme Court would bail them out of having made such a terrible piece of legislation. They were wrong, and now we’re all stuck with the consequences—the establishment of sham media organizations (NRA News, Air America Radio) to circumvent advertising restrictions, the undisclosed funnelling of cash to 527 organizations, the granting of even more institutional advantages to incumbent politicians, and the further emasculation of the American political party system. Coupled with the Court’s unwillingness to curtail the increasingly fraudulent redistricting practices of state legislatures, one might realistically despair of the prospects for legitimate republican government.

It’s Monday, so that means same-sex marriage is on in the Bay State. For suitable discussion, see James Joyner, Steven Jens, OxBlog, and Kevin Drum. For apoplexy, go visit Clayton “Even Worse Volokh Conspirator than David Bernstein” Cramer.

Like Moe Lane, I generally take Seymour Hersh’s journalism with a huge grain of salt—and immediately suspected a fresh round of “inside the beltway” fingerpointing as the source for the latest revelations, which purportedly trace the prisoner abuse at Abu Ghraib all the way to Donald Rumsfeld’s desk. Now, however, I’m not so sure. And, clearly if Rumsfeld (or his inferiors, like Defense Undersecretary Stephen A. Cambone) condoned or specifically authorized the abuse of detainees at Abu Ghraib, he/they should be fired and prosecuted—and if the president won’t can him/them, Congress can and should impeach and remove Rumsfeld (and/or Cambone) from office.

More at OTB and Matt Yglesias.

Mark Lane of the Miami Herald urges everyone to support the Truth, Beauty, Decency, Cute Little Children and Free Beer for Everyone (with Proper ID) Act of 2004.

If I could add one amendment to the U.S. Constitution, it would be something like Article II, Section 17 of the Tennessee Constitution:

No bill shall become a law which embraces more than one subject, that subject to be expressed in the title. All acts which repeal, revive or amend former laws, shall recite in their caption, or otherwise, the title or substance of the law repealed, revived or amended.

Tennessee courts have struck down laws because of this Constitutional provision, notably the “toy towns” bill of 1997.

But I’d settle for a Constitutional provision forbidding the use of contrived acronyms in the titles of bills.