The Volokh Conspiracy

Glenn Beck likes Muse.  He’ s hardly alone, given the award-winning British Altrock band’s growing popularity in the U.S.  While most other Muse fans may be drawn in by the music, Beck likes the lyrics.  “These guys are brilliant, they know the time that we live in,” he said during a September broadcast. “All of the lyrics are... dead on, on what’s coming our way.”   After Beck praised the band and read their lyrics on his radio show, a Muse representative contacted the program seeking a retraction — or so Beck said.  The Telegraph reports it was all a joke.  In any event, looking at the lyrics from the band’s hit single, “Uprising,” it’s easy to see what Beck likes.

The paranoia is in bloom,
The PR transmissions will resume,
They’ll try to push drugs to keep us all dumbed down,
And hope that we will never see the truth around,
So come on!

Another promise, another seed,
Another packaged lie to keep us trapped in greed,
With all the green belts wrapped around our minds,
And endless red tape to keep the truth confined,
So come on!

They will not force us,
They will stop degrading us,
They will not control us,
And we will be victorious!
So come on!

Here are the full lyrics, the video, and a live performance.  And here are the lyrics to “United States of Eurasia,” another tune that apparently caught Beck’s fancy.

The New York Times reports on the hack and disclosure of e-mails from the University of East Anglia Climate Research Unit.

The e-mails, attributed to prominent American and British climate researchers, include discussions of scientific data and whether it should be released, exchanges about how best to combat the arguments of skeptics, and casual comments — in some cases derisive — about specific people known for their skeptical views. Drafts of scientific papers and a photo collage that portrays climate skeptics on an ice floe were also among the hacked data, some of which dates back 13 years. . . .

In several e-mail exchanges, Kevin Trenberth, a climatologist at the National Center for Atmospheric Research, and other scientists discussed whether a string of recent years of relatively stable temperatures undermined scientific models that predict long-term warming.

“The fact is that we can’t account for the lack of warming at the moment and it is a travesty that we can’t,” Dr. Trenberth wrote.

Other scientists went on to rebut him, saying that the fluctuations were not inconsistent with a continuing warming trend.

Dr. Trenberth said Friday that he was appalled at the release of the e-mails, which he said were private discussions. . . . .

At first, said Dr. Michaels, the climatologist who has faulted some of the science undergirding the global warming consensus, his instinct was to ignore the correspondence as “just the way scientists talk.”

But on Friday, he said, after reading more deeply, he felt that some exchanges reflected a concerted effort to block the release of data for independent review.

Bishop Hill summarizes lots of the e-mail contents here.

Someone hacked into the computers at the University of East Anglia Climate Research Unit, downloaded various files and e-mails posted on the web.  Now the climate blogosphere is all atwitter over whether the resulting disclosures are a scandal or much ado about nothing.  Excerpts and reactions from Roger Pielke Jr., Real Climate, Climate Audit, Watts Up With That, James Delingpole, and Island of Doubt.

About 600 or so.

Most discussions about the constitutionality of an individual mandate in health care reform proposals have focused on whether such a mandate could be justified under the federal government’s enumerated powers in Article I, section 8. (See, e.g., these VC posts.)  Some (including me) have opined that, under existing case law, an individual mandate would probably pass muster.  For example, under existing precedent I think it likely the Court would see an individual mandate as a necessary and proper incident of comprehensive regulation of health care markets, as a mandate is necesary to prevent other aspects of health care reform (such as a ban on refusing to cover preexisting conditions) from driving up health care markets.  (Of course, were the Court to apply the original public meaning of the relevant provisions, an individual mandate would be out of bounds.)  But in focusing on Article I, Section 8, I wonder whether we’ve ignored another potential constitutional problem with provisions of Article I, section 9.

As I understand the current proposals, the individual mandate would operate as follows: A tax would be imposed on all individuals, and the tax would be offset by a credit for those who purchase or are otherwise covered by qualifying plans.  The constitutional problem would arise if this tax is considered a “direct tax.”  Why?  Because Article I, section 9 provides: “No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.”  “So if mandate is imposed through the tax code, and the provision operates as a “capitation” or “other Direct tax,” it would have to be apportioned.

Do the respective individual mandate provisions constitute direct taxes?  I’m not sure.  “Indirect” or so-called event taxes are not subject to apportionment under Article I, section 9, and income taxes were exempted from the apportionment requirement under the 16th Amendment.  So the question would be whether any tax imposed on those who fail to purchase qualifying health plans would constitute a “direct” tax, or whether they could be properly characterized as indirect or income taxes. From what I understand, the tax in the House bill is, at least for some individuals, based upon income up to a set threshold.  This might be enough to avoid the Article I, section 9 problem.  I have not yet had a chance to look at how the mandate provisions are written in the Senate bill.  I would be curious to read what others think about whether an individual mandate imposed through the tax code could run afoul of Article I, section 9.

The Supreme Court’s decision in Ricc v. DeStefano did not put an end to litigation over the New Haven Fire Department’s use of tests for firefighter promotions.  One black firefighter, Michael Briscoe, has filed a disparate impact suit against the city (more here), and other black firefighters have sought to intervene in Ricci on remand.  As Daniel Schwartz notes on the Connecticut Employment Law Blog, these claims are likely to face tough sledding. Stay tuned.

How successful has the stimulus been at creating jobs?  So successful that it’s created jobs in Congressional districts that do not even exist!  More from Nick Gillespie.  (HT: Instapundit)

Several news reports indicate that some Republican Senators are going to try to filibuster the confirmation of Judge David Hamilton to the U.S. Court of Appeals for the Seventh Circuit.  This effort is futile and unfortunate.  Even if I believed that Judge Hamilton’s record justified opposition to his confirmation (and I do not, as I believe the Senate should be relatively deferential to a President’s judicial nominees), I would oppose a filibuster. Even if Senate Republicans had the votes to block Judge Hamilton’s confirmation, I would still feel the same way.

The strongest argument in favor of a filibuster is that Republican Senators are unwilling to engage in unilateral disarmament in fights over judicial nominations.  Under this reasoning, the attempted use of the filibuster would be justified as a retaliatory measure until such time as both parties could agree to forswear future reliance upon it.  I have yet to read of any Republican Senator justifying an attempted filibuster on this basis, however.

Last fall, I suggested a GOP filibuster attempt might end the filibuster of judicial nominations once and for all:

While I oppose the filibuster of judicial nominees, one practical benefit of a Republican filibuster of an Obama nominee could be the end of judicial filibusters. If Republicans were able to hold their caucus together, perhaps Senate Democrats would be prompted to cut a deal promising to forego any judicial filibusters in the future. Alternatively, perhaps a GOP filibuster would prompt Senate Democrats to invoke the nuclear option, ending judicial filibusters once and for all. Indeed, I would feel better about any GOP filibuster threats if filibustering GOP senators would commit to voting to support the nuclear option if it were invoked. In this way, GOP Senators could maintain a principled opposition to the filibuster of judicial nominations without unilaterally disarming themselves against Senate Democrats (and a President) who have supported such filibusters in the past.

Alas, I suspect this is all wishful thinking, and I suspect judicial filibusters may be with us for a while.

On Friday, in Johnson v. Sherry, a divided panel of the U.S. Court of Appeals for the Sixth Circuit vacated the district court’s denial of William Johnson’s petition for a writ of habeas corpus and remanded the case for additional proceedings to determine whether Johnson received inadequate assistance of counsel.  In his habeas petition, Johnson maintained that his representation had been constitutionally inadequate because his attorney failed to object to the temporary exclusion of the public from his murder trial.  Judge Clay delivered the opinion of the court, joined by Judge Cole.

Judge Kethledge dissented from the court’s judgment.  His dissenting opinion begins:

In defending a murder charge, it is a bad idea, I think, to leave the judge with a smoldering suspicion that your client had a role in killing two of the prosecution’s key witnesses before trial. A lawyer who minimizes that danger—by consenting to, rather than fighting, closure of the courtroom during the testimony of three surviving witnesses, out of a total of 18 testifying witnesses in the case—does not thereby render constitutionally ineffective assistance of counsel. That is all the more true, in my opinion, when there is not a shred of evidence that the closure had the slightest effect on the trial’s outcome.

The majority concludes otherwise. The majority suggests that the closure fight here was one worth having—indeed, that it was constitutionally mandated—its ethereal upside and concrete downside notwithstanding. The majority then sidesteps the absence of any actual prejudice resulting from Johnson’s consent to the closure—and with it, the plainly stated actual-prejudice requirement of Strickland v. Washington, 466 U.S. 668 (1984)—by holding that Johnson need not show any prejudice at all in support of his ineffective-assistance-of-counsel claim. That holding is not supported by “clearly established Federal law, as determined by the Supreme Court,” 28 U.S.C. § 2254(d)(1), which means that we are without power to impose it on the Michigan state courts in this habeas case. I respectfully dissent.

It seems to me the majority’s opinion is a bit of a stretch, and Judge Kethledge has the better of the argument under existing law.  The Supreme Court has been anything-but-bashful in reviewing alleged ineffective assistance of counsel claims of late.  (See, for instance, today’s per curiam opinion in Wong v. Belmontes and last week’s decision in Bobby v. Van Hook.) So, even though this is not a capital case, I would not be surprised were this case reversed en banc if not by the Supreme Court.

The Obama Administration has announced nominees to the federal bench at relatively slow pace thus far, as I noted here and here.  Now the lag is beginning to get more attention.  As the NYT reported over the weekend:

President Obama has sent the Senate far fewer judicial nominations than former President George W. Bush did in his first 10 months in office, deflating the hopes of liberals that the White House would move quickly to reshape the federal judiciary after eight years of Republican appointments.Mr. Bush, who made it an early goal to push conservatives into the judicial pipeline and left a strong stamp on the courts, had already nominated 28 appellate and 36 district candidates at a comparable point in his tenure. By contrast, Mr. Obama has offered 12 nominations to appeals courts and 14 to district courts. . . .

The White House contends that the number of confirmations, not nominations, is what matters. They argue that they were proceeding more methodically than Mr. Bush’s team — in ways like making a greater effort to consult with home-state senators — and so a higher percentage of Mr. Obama’s nominees would ultimately become judges. . . .

By this point in 2001, the Senate had confirmed five of Mr. Bush’s appellate judges — although one was a Clinton pick whom Mr. Bush had renominated — and 13 of his district judges. By contrast, Mr. Obama has received Senate approval of just two appellate and four district judges.

Those numbers could rise rapidly. Four appellate and four district court nominees have cleared the Senate Judiciary Committee and are waiting for floor votes. Democrats have accused Republicans of stalling them by raising obstacles to votes on uncontroversial nominees. Republicans counter that Democrats, too, used procedural tactics to slow or block some Bush nominees.

The story notes that the Administration had to focus on an early Supreme Court nomination and has been hampered by the lack of a confirmed head of the Office of Legal Policy.  It also raises the possibility that turnover in the White House Counsel’s office will slow things even more.

The Brookings Institution’s Russell Wheeler has a useful report on the pace of nominations through October 20.  He concludes:

Probably the two most striking findings about this early comparative look at the current and most recent administrations’ early nominees are: 1) the relatively paucity of Obama administration nominees, and 2) the delay in full Senate action on those nominees—quick Judiciary Committee hearings but little more. It is too soon to say whether these early developments presage an administration with a less energetic policy on judicial nominations than its predecessor; greater difficulty in identifying qualified candidates, especially non-judges; or a Senate that will not confirm large numbers of nominees because of unchallenged minority delaying tactics—or some combination of all three.

Even though Senate Democrats have a filibuster-proof majority, some argue that the low number of confirmations is primarily due to Republican delay tactics. This argument is featured in the LA Times as well.  Yet as the data show, the percentage of appellate nominations confirmed by this point is about the same.

Doug Kendall accuses Senate Republicans of a “new form of obstructionism.”  This would be true if by “new” Kendall meant “less obstinate than their predecessors.”  During the Bush Administration, Senate Democrats adopted the unprecedented tactic of filibustering appellate judicial nominations, including several individuals who were extremely well qualified.  (See also here.)  While Senate Republicans have hardly greased the skids for Obama’s nominees, they have yet to do anything comparable.  Ed Whelan further rebuts Kendall’s misleading account here, here, and here.  (See Kendall’s rejoinders here and here.)

In the end, the primary reason for the slow rate of judicial confirmations is that neither the Obama Administration nor the Senate leadership has made judicial nominees a significant priority.  The White House has been slow to make nominations, and the Senate leadership has made little effort to push those nominated through.  Further, for all his talk of bipartisanship President Obama has yet to reciprocate President Bush’s decision to re-nominate stalled Clinton nominees, as Bush did at the beginning and end of his presidency.  Like those who preceded them, Senate Republicans cling to the Senate’s blue slip tradition and seek extensive time to debate some of Obama’s nominees, yet there will be no filibuster (even if only because Republicans don’t have sufficient party discipline or the votes) — and that’s a good thing.

For some of my prior posts on confirmation history here, here, here, here, and here.

The NYT reports that a state court judge has concluded that there is no need to evict the seals from the “children’s pool” in La Jolla — at least not yet.  In January, a new state law will take effect giving local authorities greater discretion over whether the seals may stay.  Meanwhile, reports the Times, “The seals basked on the beach, oblivious as usual to the fuss.”

My prior poses on the seals of San Diego are here and here.

Czechs celebrated the 20th Anniversary of the Velvet Revolution with a star-studded concert in Prague.  Among the highlights, according to news reports, was Lou Reed and Renee Fleming singing Reed’s “Perfect Day.” I’m not sure what the song has to do with the reason for the celebration (most believe it’s about heroin), but it’s a classic track from Reed’s classic album, Transformer.  Here’s a taste of the lyrics:

Just a perfect day,
Problems all left alone,
Weekenders on our own.
It’s such fun.
Just a perfect day,
You made me forget myself.
I thought I was someone else,
Someone good.

Here are the full lyrics and another Reed performance.

Jay-Z and Alicia Keys sing “there’s nothing you can’t do” in New York.  That may be true for Hova, but it’s not supposed to be true when it comes to eminent domain under New York law.  A purported “public purpose” is insufficient to seize private property for economic development.  So government authorities resort to “blight” designations to condemn private property they would like to redevelop.  This is the strategy being used for the Atlantic Yards Arena and Redevelopment Project in Brooklyn.  Yet as Nicole Gelinas reports, the blight designation here is a bit of a stretch, as it relies upon the condition of the Metropolitan Transit Authority’s railyards, occasional weeds and grafitti, and the alleged “underutilization” of local properties.  As Gelinas notes, if “underutilization” is sufficient to constitute blight, then nearly any proposed economic redevelopment project could utilize eminent domain under New York law.

The U.S. Supreme Court held, in Ballew v. Georgia, that the constitutional right to a jury trial requires a jury consisting of no fewer than six persons for non-petty offenses.  Does this standard apply in military courts-martial?  Not according to the U.S. Court of Appeals for the D.C. Circuit.

This morning, the the D.C. Circuit rejected Kevin Sanford’s claim that his conviction by a military court-martial consisting of fewer than six persons violated his due process rights.  Judge Rogers opinion for the court summarizes the case as follows:

In challenging his conviction by a military court-martial consisting of less than six persons, Kevin Sanford invites this court to hold that his rights under the Due Process Clause of the Fifth Amendment were violated. He relies
on the Supreme Court’s announcement of a constitutional minimum six-person jury for the trial of civilian, non-petty offenses in Ballew v. Georgia, 435 U.S. 223 (1978), and suggests it is the government’s burden to show that his due process rights were not violated. Because Ballew was grounded in the Sixth Amendment right to a jury trial, however, Sanford is actually seeking a new due process right to a court-martial panel of a minimum size. Sanford’s focus on rebutting the government’s assertions thus fails to engage the appropriate inquiry under Weiss v. United States, 510 U.S. 163 (1994), which is “whether the factors militating in favor of [the proposed rule] are so extraordinarily weighty as to overcome the balance struck by Congress.” . . . Because Sanford failed to
engage this standard before the military courts, their resolution of his claim suffered from no fundamental defect and was properly upheld by the district court.

The Supreme Court’s conclusion regarding minimum jury size in the civilian system was based on empirical  studies.  . . . Sanford presented no similar empirical evidence regarding the military justice system, which
has features to ensure accurate fact finding not found in the civilian justice system. Rather, Sanford contends that Ballew reflects a conclusion about a fundamental right that is required by due process under both the Fifth and Fourteenth Amendments. Still he fails to show that the empirical data underlying Ballew’s holding applies with equal force to the military justice system, which is based on Congress’ balancing of interests, some of which are unique to the military. Doubtless it is fundamental that there be accurate fact finding under the justice system Congress established in the Uniform Code of Military Justice, . . . but Sanford fails to show that the design of the military system is so incompatible with that principle as to violate due process.  Accordingly, we affirm the dismissal of his complaint.

Speculation has swirled over the future of White House Counsel Greg Craig for weeks.  Now, it appears, the speculation is over.  Both the Washington Post and Associated Press report that Craig will announce he is leaving the administration tomorrow.  The new White House Counsel?  Bob Bauer.  More from Marc Ambinder here.

UPDATE: It’s official.  One question is how Craig’s departure will affect judicial nominations.  As I’ve discussed before, the Obama Administration has been quite slow to nominate federal judges.  One reason for this could be a bottleneck within the White House Counsel’s office, which has been involved in many issues historically handled by attorneys in various cabinet agencies.  If this is the cause, Craig’s departure may be less significant than the eventual confirmation of Christopher Schroeder to head the Office of Legal Policy.  (Speaking of which, what’s up with that? Why is that confirmation taking so long?)

ACORN has filed suit challenging Congress’s decision to defund the organization.  The Center for Constitutional Rights, which is representing ACORN, alleges the defunding decision is an unconstitutional Bill of Attainder.  The Washington Post and New York Times cover the suit.  Related VC posts are here.

The LA Times reports:

The American Medical Assn. on Tuesday urged the federal government to reconsider its classification of marijuana as a dangerous drug with no accepted medical use, a significant shift that puts the prestigious group behind calls for more research. . . .

In changing its policy, the group said its goal was to clear the way to conduct clinical research, develop cannabis-based medicines and devise alternative ways to deliver the drug.

“Despite more than 30 years of clinical research, only a small number of randomized, controlled trials have been conducted on smoked cannabis,” said Dr. Edward Langston, an AMA board member, noting that the limited number of studies was “insufficient to satisfy the current standards for a prescription drug product.”

This shift could be quite significant, as one major obstacle to medical marijuana has been the federal classification as a Schedule I controlled substance and the consequent limitations on medical research.

There are plenty of reasons to oppose the cap-and-trade legislation working its way through Congress, but the claim that  a “nasty bureaucratic provision” will require “President Obama to act like Venezuelan strong man Hugo Chavez” is not one of them.

The provision at issue — Section 707 in the bill approved by the Senate Environment Committee — reads as follows:

SEC. 707. PRESIDENTIAL RESPONSE AND RECOMMENDATIONS

Not later than July 1, 2015, and every 4 years thereafter—

(1) the President shall direct relevant Federal agencies to use existing statutory authority to take appropriate actions identified in the reports submitted under sections 705 and 706 and to address any shortfalls identified in such reports; and

(2) in the event that the National Academy of Sciences has concluded, in the most recent report submitted under section 706, that the United States will not achieve the necessary domestic greenhouse gas emission reductions, or that global actions will not maintain safe global average surface temperature and atmospheric greenhouse gas concentration thresholds, the President shall submit to Congress a plan identifying domestic and international actions that will achieve necessary additional greenhouse gas reductions, including any recommendations for legislative action.

This provision would clearly require the federal government to step up its efforts to reduce greenhouse gas emissions, and could well be triggered rather quickly if the bill is passed.  It’s also possible, as Senator David Vitter warns, that it could limit the award of carbon reduction offsets and permits under this and other regulatory programs.  (See also here.) But “strong man powers”?  Please.

The above provision grants no new powers to the federal government, let alone the President.  None.  Zero.  Zilch.  Rather, it directs the President to have agencies use “existing statutory authority” to ensure greater greenhouse gas emission reductions.  In other words, it requires the President to ensure that agencies are using all the tools Congress has already delegated to them to reduce greenhouse gas emissions — tools that such agencies could use even if the section is not triggered — and demands the President “submit to Congress” a request for additional authorities the President believes are necessary to ensure greater emission reductions.  Moreover, insofar as this provision constrains the Executive Branch’s discretion over what emission-reduction measures it wants to take, it actually reduces executive authority.

That said, Section 707 could be worrisome to interest groups bullish about their ability to influence EPA implementation of a cap-and-trade regime, particularly those anticipating they will be able to take advantage of a flexible administrative approach to emission reduction offsets.  The farm lobby, for instance, pushed hard to shift responsibility for monitoring agricultural offsets from the EPA to the Agriculture Department, as they expect the Ag Department to be more favorable to their interests when evaluating offsets.  The EPA has been too ambivalent about the environmental benefits of ethanol and other biofuels for the farm lobby’s tastes.  Once triggered, Section 707 might tie Ag’s hands, insofar as it would require the Department to adopt a more restrictive approach to evaluating offsets.  This could leave the farm lobby quite disappointed.  So, while Section 707 may provide reasons for offset-seeking interests and other rent-seekers to take a second-look at bill, it’s hardly a stalking horse for climate Chavistas.

The Obama Administration’s nominee to head the Transportation Security Administration, Erroll Southers, was censured by the FBI for asking law enforcement personnel to conduct a background check on his ex-wife’s boyfriend.  The incident occurred some time ago (1988), and Southers has acknowledged his misconduct and claims he has not done anything similar since. According to the story linked above, however, a copy of the letter of censure has not been released by the FBI, nor has it been provided to the Senate committee considering Southers’ nomination.  Given the nature of his alleged offense, and the sensitivity of the position , Southers should see to it that the committee has the full story, and an opportunity to review the letter of censure, before his nomination proceeds.

The Washington Post reports on a lawsuit filed by Amir Meshal, who alleges he was subject to extraordianry rendition even though he is a U.S. citizen.  From the Post story.

Meshal, a Muslim born to Egyptian parents, traveled to Somalia in 2006 “to enrich his study of Islam,” according to the lawsuit. Mogadishu, the Somali capital, had recently come under the control of a militia known as the Islamic Courts Union. Later that year, the U.S.- and Ethiopian-backed Transitional Federal Government of Somalia launched a military offensive and took back the city.

As he fled the fighting, Meshal was picked up in Kenya, near the Somali border, and held at the behest of U.S. officials, often in filthy and crowded cells, according to the lawsuit. He was repeatedly questioned by FBI agents who threatened to send him to Israel or Egypt unless he acknowledged ties to al-Qaeda, the lawsuit alleges.

Meshal signed a document waiving counsel, but the lawsuit claims that the FBI told him doing so was the only way he would get home, effectively leaving him no choice.

When a Kenyan human rights group filed a habeas petition on behalf of Meshal and other foreigners picked up at the border with Somalia, the American was secretly flown back to Somalia, where he was held for a number of days, before being taken to Ethiopia. He was also questioned repeatedly by U.S. agents in Ethiopia before finally being allowed to return to the United States on May 26, 2007, the suit says.

Yesterday, the U.S Court of Appeals for the Eighth Circuit affirmed a district court ruling that NFL quarterback and one-time dog abuser Michael Vick is entitled to keep some $16 million in roster bonuses from the Atlanta Falcons.  The opinion is here. (HT: How Appealing)  Now if only Vick’s new team, the Philadelphia Eagles, had been able to win last Sunday against Dallas . . .

Former OLC attorney John Yoo is appealing a federal district court decision that he may be sued civilly by former detaine Jose Padilla.  How Appealing has posted Yoo’s appellate brief here.  More details here and here.

UPDATE: How Appealing has links to news coverage of Yoo’s appeal.

Michael Shellenberger and Ted Nordhaus continue their pushback against “Climate McCarthyism,” with a particular focus on efforts to equate unorthodox climate views with Holocaust denial, guilt-by-association, and lead Climate McCarthyite Joseph Romm.  Roger Pielke Jr. chimes in here.

I posted earlier on Shellenberger and Nordhaus’ first fusillade.

UPDATE: Ron Bailey chimes in.

Renewing the intermittent tradition of Monday bear blogging, I thought I’d note this story.

Michael Shellenberger and Ted Nordhaus have had enough of efforts to stifle debate over climate change policy, particularly by those who solicit quotes to “trash” those who don’t toe the party line.  Roger Pielke, Jr. would add those who selectively edit their comment threads.

UPDATE: The primary point of the post is to highlight Shellenberger & Nordhaus’ commentary on “the state of the liberal debate about climate change”: “Those who question apocalyptic predictions are treated as global warming deniers or traitors or worse. Those who advocate solutions other than cap-and-trade have their characters assassinated.”  Exhibit A in their post is the treatment of those who believe climate change is a serious problem, as they do, yet nonetheless question the desirability of cap-and-trade, targets and timetables, etc.  The furor over SuperFreakonomics is a recent example.  Their post notes some others.

SECOND UPDATE: Those who think my post is a defense of climate change skepticism may wish to re-read my February 2008 post on  “Climate Change, Cumulative Evidence, and Ideology.” Like Shellenberger, Nordhaus, and Pielke, I believe climate change is a serious policy concern.

THIRD UPDATE: Brad DeLong responds in the comments below, as well as in this post.  My response can be found here.

My colleague Jacqui Lipton has posted some photos from the AALS faculty recruitment conference.

The Vanderbilt Law Review’s “En Banc” online supplement has published a roundtable on Free Enterprise Fund v. PCAOB, an important separation of powers case the Supreme Court will hear later this term.  The case concerns the constitutionality of the Public Company Accounting Oversight Board, an independent entity appointed by the Securities and Exchange Commission.  The roundtable features an impressive line up of constitutional and administrative law scholars: Peter Strauss, Richard Pildes, Stephen Calabresi and Christopher Yoo, Harold Bruff, and Gary Lawson.  Prior VC posts on this important case can be found here.

The latest installment of the Federalist Society’s “Originally Speaking” debate series features UC Irvine Dean Erwin Chemerinsky and Baker & Hostetler partner David Rivkin sparring over the constitutionality of an individual mandate.

We’ve had something of a debate over this subject here on the VC as well.  Our prior posts are collected here.

Ineffective assistance of counsel is a common habeas petition claim, particularly in capital cases.  This has led me to wonder whether legal representation that is constitutionally deficient should presumptively constitute legal malpractice.  After all, for a capital defendant, effective assistance of counsel can be a matter of life and death.  Yet it is rare that defense attorneys are sanctioned for providing inadequate assistance to capital defendants.

One reason for the lack of sanctions may be that the threat of sanctions could discourage attorneys from representing capital defendants, making it more difficult for them to get proficient counsel.  On the other hand, I have also heard it claimed that the low likelihood of sanctions gives defense attorneys an incentive to “tank” bad cases, such as by providing sub-par performance at the penalty phase after losing at the guilt phase, so as to plant grounds for appeal. Such conduct would be worthy of sanction for sure, but I don’t know how often it occurs, if at all.  But what of shoddy or negligent legal work?  Should that be sanctionable too?

Yesterday the U.S. Court of Appeals for the Sixth Circuit decided Johnson v. Mitchell, an appeal from a district court’s denial of habeas relief for convicted murderer Gary Van Johnson. The three-judge panel, in an opinion by Judge Martha Craig Daughtrey, denied six of Johnson’s seven claims, yet granted relief on an ineffective assistance claim. Based on the facts described by the Court, if there’s a case in which a lawyer should be sanctioned for inadequate assistance, this would be it.

The key facts are these.  Johnson was initially convicted in 1983 and sentenced to death.  A new attorney represented Johnson on appeal, arguing (among other things) that Johnson had received ineffective assistance of counsel during the penalty phase of his trial.  Specifically, Johnson’s initial attorney had failed to investigate Johnson’s background for potential mitigation evidence that could be presented to the jury.  The Ohio Supreme Court agreed, vacated Johnson’s sentence and ordered a new trial.

Johnson’s new attorney — the one who had successfully argued that Johnson’s initial representation was constitutionally inadequate — represented Johnson in the new trial.  Johnson was convicted and, once again, was sentenced to death.  Here is where it gets ugly.  For Johnson’s new attorney made the precise same error as his initial attorney: He made no effort whatsoever to find potential mitigation evidence for the penalty phase of the trial.   Thus, Johnson once again received ineffective assistance of counsel.  Indeed, according to the Sixth Circuit, Johnson’s representation the second time around was “more egregiously deficient” than in most prior cases.

The same attorney who secured that favorable decision from the Ohio Supreme Court, James Willis, also represented Johnson at the retrial. But, after arguing successfully that Johnson’s original attorney had been constitutionally ineffective in failing to present available mitigating evidence at the penalty phase of the proceedings, Willis himself committed the same grievous error. He introduced no mitigating evidence at the penalty phase of the second trial, instead relying solely upon Johnson’s unsworn statement to the jury, a statement in which the petitioner chastised the finders-of-fact at length for failing to find a reasonable doubt as to his guilt despite what he alleged were numerous weaknesses in the prosecution’s case.

In a series of affidavits submitted to the Ohio state courts in post-conviction proceedings, Willis admitted that his sole preparation for Johnson’s capital murder trial consisted of reading the transcript of the petitioner’s first trial – a trial that had resulted in convictions for aggravated murder and aggravated robbery, as well as a sentence of death – and speaking with Johnson himself. . . .

The petitioner’s counsel at his second trial reviewed the transcript of the first trial, noted the ineffective assistance provided by Johnson’s original attorney, and convinced the Ohio state courts that it violated constitutional standards of representation. Nevertheless, prior to and during Johnson’s second trial, attorney Willis admittedly interviewed no new or old witnesses, did not request or hire an investigator for the second trial, “felt there was no need for any new investigation into Gary Johnson’s case,” did not seek any discovery prior to the second trial, and presented no evidence in mitigation at the second trial. Thus, in effect, Willis merely replayed the disastrous initial trial a second time. Not surprisingly, the same result followed, and Johnson was once again sentenced to die at the hands of the state for his crimes.

What is particularly striking about this case is that Johnson’s attorney knew that the failure to investigate Johnson’s background constituted ineffective assistance of counsel, and could be grounds for a new trial.  So the only question was whether the attorney’s deficient representation was a product of incompetence or design.  Either way, Johnson should not suffer for his attorney’s malfeasance.  The attorney, on the other hand, should be subject to sanction.

Like many others, I’ll be off to D.C. tomorrow to attend the AALS faculty recruitment conference.  Perhaps I’ll see you there.

While Congress considers legislation to impose a cap-and-trade regime on emissions of carbon dioxide and other greenhouse gases, Warrne Buffet makes “a huge bet on coal.” Either Buffet’s made a blunder, or he realizes any cap-and-trade legislation that can pass Congress will do little to reduce coal consumption. (HT: Roger Pielke Jr.)

Adam Kirsch reviews Anne Heller’s Ayn Rand and the World She Made in the NYT.  As others have noted, the review contains a curious passage.

Nor would Rand, sooner than any other desert prophet, allow her message to be trifled with. When Bennett Cerf, a head of Random House, begged her to cut Galt’s speech, Rand replied with what Heller calls “a comment that became publishing legend”: “Would you cut the Bible?” One can imagine what Cerf thought — he had already told Rand plainly, “I find your political philosophy abhorrent” — but the strange thing is that Rand’s grandiosity turned out to be perfectly justified.

In fact, any editor certainly would cut the Bible, if an agent submitted it as a new work of fiction. But Cerf offered Rand an alternative: if she gave up 7 cents per copy in royalties, she could have the extra paper needed to print Galt’s oration. That she agreed is a sign of the great contradiction that haunts her writing and especially her life. Politically, Rand was committed to the idea that capitalism is the best form of social organization invented or conceivable. . . .

Yet while Rand took to wearing a dollar-sign pin to advertise her love of capitalism, Heller makes clear that the author had no real affection for dollars themselves. Giving up her royalties to preserve her vision is something that no genuine capitalist, and few popular novelists, would have done. It is the act of an intellectual, of someone who believes that ideas matter more than lucre. In fact, as Heller shows, Rand had no more reverence for the actual businessmen she met than most intellectuals do. The problem was that, according to her own theories, the executives were supposed to be as creative and admirable as any artist or thinker. They were part of the fraternity of the gifted, whose strike, in “Atlas Shrugged,” brings the world to its knees.

It would seem Mr. Kirsch does not understand Rand’s capitalist ideal and is not all that familiar with Rand’s work (perhaps beyond what he read in Heller’s book).  If he’s read The Fountainhead, he clearly missed the essential features of Howard Roark’s character and the underlying egoism driving all of Rand’s heroes.  Don’t get me wrong, there’s plenty to criticize about Rand and her work — unlike some libertarians, I was never all that enamored with Rand or her ideas — but this alleged “contradiction” is not one of them.

The United States has agreed to recognize the results of this month’s election.  Ousted President Zelaya will be allowed to return to Honduras, and the legislature will vote on whether to allow him to serve out the remaining three months of his term, albeit without control over the military.

Meanwhile, it seems some members of the U.S. Senate objected to a Law Library of Congress report that largely supported the legality of Zelaya’s ouster.  According to this report, Senator John Kerry (D-MA) and Representative Howard Berman (D-CA) asked the Library of Congress to retract the report because it ““contains factual errors and is based on a flawed legal analysis that has been refuted by experts from the United States, the Organization of American States and Honduras” and “has contributed to the political crisis” in Honduras.  The Library of Congress stands by the report, however, and is preparing a response to Senator Kerry and Representative Berman.

If the two lawmakers belive the Law Library of Congress report is flawed, there are better responses than seeking a retraction.  For one, they could demonstrate the report’s failings, perhaps by pointing to alternative analyses that are more persuasive.  Perhaps, they could even encourage the State Department to release the memorandum written by Harold Koh supporting the U.S. government’s position that the removal of President Zelaya constituted an illegal coup.

What’s scarier, alleged Illuminati puppet Lady Gaga sung by Daughtry or sung by Cartman?  Covers can be scary things.  Occasionally a cover is completely unexpected, but still works. Sometimes they are simply inspired, and the cover artist seems to own the song as much as the original.

One of my absolute favorite covers is Joe Jackson’s “Got the Time” sung by Anthrax.  There’s nothing scary about it (other than it’s sung by Anthrax).  However much I like Jackson’s original, the song fits Anthrax perfectly — so much so that many Anthrax fans don’t realize it’s a cover of the British New Wave pioneer.

Here’s how the lyrics begin:

Wake up, got another day to get through now
Got another man to see
Got to call him on the telephone
Got to find a piece of paper

Sit down, got another letter to write
Think I’ll got to get the letter just right
There’s a ringing on the telephone
Oh no, got to write a little later
No such day as tomorrow, only one two three go!

Time — got the time tick-tick-tickin’ in my head (repeat)

Here’s a live version of the original and the Anthrax cover video.  The full lyrics can be found here.

Does government interference inevitably follow government ownership of private companies?  It sure seems that way.  As a WSJ article reports: “Companies in hock to Washington now have the equivalent of 535 new board members — 100 U.S. senators and 435 House members.”  Specifically, the story reports on efforts by various lawmakers to inflence the business decisions at GM.  The story begins:

Montana Rep. Denny Rehberg was no fan of the $58 billion federal rescue of General Motors Co., saying he worried taxpayer money would be wasted and the restructuring process would be vulnerable to “political pressure.” Now the lawmaker says it’s his “patriotic duty” to wade into GM’s affairs.

Along with Montana’s two Democratic senators, the Republican congressman is battling to get GM to reinstate a contract with a Montana palladium mine nullified in bankruptcy court. “The simple fact is, when GM took federal dollars, they lost some of their autonomy,” Mr. Rehberg says.

And later in the story:

“I was elected to represent the interests of Montana, not General Motors, which is something that GM should have considered before letting the federal government assume control of their company,” Rep. Rehberg said recently.

Alas, this is but one of many tales of political interference in the once-proud automaker’s affairs detailed by the WSJ, many of which involve efforts to save politically connected auto dealerships. Stuff like this doesn’t make it likely my next car will be a GM.

The original version of an NYT story on President Obama’s visit to the dover Air Force Base included a paragraph characterizing the trip as a staged event, “intended by the White House to convey to the nation that Mr. Obama was not making his Afghanistan decision lightly or in haste.”   At some point, however, this paragraph was removed from the story, and yet there is no indication that any change was made, as Ed Morrissey reports on Hot Air.

As with a similar incident at the Washington Post, the NYT may well have had a legitimate reason for the change. For instance, the paragraph may have been unsourced conjeccture on the part of the reporter, and thus an unfair characterization of the White House’s intent.  I am certainly willing to give the White House the benefit of the doubt on a matter like this. But whatever the reason for the change, the NYT should have disclosed that changes were made and that it had decided to excise information included in the original story.  As I wrote before:

This is not the first time I’ve noticed the web site of a prominent news organization failing to disclose that it had edited the web-based version of a story after initial publication. . . .  Is this now common practice? If so, it seems to be a major failing. Responsible bloggers routinely disclose anything more than the most minor stylistic and typographical revisions to published posts. I would think newspaper websites could do the same. Indeed, shouldn’t newspapers at least match the disclosure norms observed by bloggers? After all, they’re the real journalists.

Former federal appellate judge Michael McConnell, now a professor at Stanford, argues that the “Pay Czar” is unconstitutional.  Specifically, he argues that the “Pay Czar,” aka the Treasury Department’s “Special Master” for executive compensation, is an “officer” of the United States for purposes of the Appointments Clause (albeit likely an inferior officer) because he is an “appointee exercising significant authority pursuant to the laws of the United States.”  Article II, section 2 of the Constitution provides in relevant part:

He [the President] . . .  by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

Under this provision, all officers must either be nominated by the President and confirmed by the Senate with one exception.  Congress may vest the power of appointment of an inferior officer in the President or a “Head of Department.”  It did not do so here. As a consequence, the “Pay Czar” cannot exercise “significant authority pursuant to the laws of the United States,” such as the authority to set executive compensation levels for TARP recipients .  Congress delegated this authority to the Treasury Secretary.  While the Secretary may sub-delegate this authority, he may only do so to a duly appointed officer of the United States, and the “Pay Czar” does not qualify.

McConnell concludes:

The Supreme Court observed in Buckley v. Valeo that the provisions governing appointments under the Constitution reflect more than “etiquette or protocol.” They embody the Founders’ conviction that all power under U.S. laws must be exercised by officers with constitutional authority.

The Founders understood that the president and heads of the executive departments could not single-handedly carry out the law, so they required Senate confirmation as what the Federalist Papers call “an excellent check” on abuse or favoritism by the president. Yes, there are some offices so inferior that this check may be eliminated—but it is for Congress to judge which ones these may be. Congress and Congress alone has power to dispense with the safeguard of the confirmation process.

The power to set compensation at large American businesses is especially subject to potential abuse, favoritism, arbitrariness, or political manipulation. It is no reflection on Kenneth Feinberg, who has a sterling reputation and who appears to have approached these sensitive duties with a spirit of commendable integrity, to say that the checks and balances of the Constitution should be scrupulously observed. They were not. Because he is not a properly appointed officer of the United States, Mr. Feinberg’s executive compensation decisions were unconstitutional.

I’ll be in Chicago tomorrow to debate the merits of a cap-and-trade carbon emissions control regime at the Northwestern University School of Law.  It’s a noontime event sponsored by the student Federalist Society chapter.  For a preview see some of my prior VC posts (1, 2) and articles from NRO (1, 2).  I may also discuss some of my recent work on prizes.  (I should have a paper on the subject up on SSRN later this year.)

This morning NPR ran a story on Yale University’s decision to force the Yale University Press to remove all depictions of the prophet Muhammed, including several controversial Danish cartoons, from Jytte Klausen’s book The Cartoons that Shook the World.  As had already been reported, the University’s decision was based, in part, on various outside experts on national security, terrorism, and Islam who beleived republication of the cartoons could spark further violence.  What I had not previously known, but NPR reported today, is that the experts consulted by Yale University were not asked to read the book, only to comment on the cartoons.

just a few weeks before publication, Yale University, which owns the Yale Press, mounted a second review. The university asked some 20 scholars, counterterrorism officials and national security experts to asses the risk of more violence if copies of the cartoons were included in the book.“It was fairly overwhelming that the people who knew the most about this kind of situation said ‘Don’t do it,’ that this was likely to provoke violence,” Yale Press director John Donatich said. . . .

The university told Yale Press to eliminate the cartoons from the book, along with all other images of Muhammad. And Klausen was told she’d have to sign a nondisclosure agreement if she wanted to read the experts’ comments. She declined to do so. But she says she was even more dismayed to learn that the panel had not read her book.

“My first reaction was that it was stunningly similar to what happened during the conflict itself,” said Klausen. “I disagreed with the experts’ advice. I felt that had the experts read my book, they would not have given the advice they produced.”

So we are clear: A prominent University censored content from a book based on the opinions of experts who had not read the book in question.

It appears that some Cook County prosecutors don’t like journalism students looking into whether innocent people may have been wrongly convicted, so they’ve decided to investigate the students.  The NYT reports:

For more than a decade, classes of students at Northwestern University’s journalism school have been scrutinizing the work of prosecutors and the police. The investigations into old crimes, as part of the Medill Innocence Project, have helped lead to the release of 11 inmates, the project’s director says, and an Illinois governor once cited those wrongful convictions as he announced he was commuting the sentences of everyone on death row.But as the Medill Innocence Project is raising concerns about another case, that of a man convicted in a murder 31 years ago, a hearing has been scheduled next month in Cook County Circuit Court on an unusual request: Local prosecutors have subpoenaed the grades, grading criteria, class syllabus, expense reports and e-mail messages of the journalism students themselves.

The prosecutors, it seems, wish to scrutinize the methods of the students this time. The university is fighting the subpoenas.