The Volokh Conspiracy

Note: This is the second of two book “reviews” I’ve been hoping to do since about August, but my fall got so busy with actual paying work that they were both pushed off until the delightfully slow week between Christmas and New Years.  “First Thing We Do, Let’s Deregulate All the Lawyers” was the first, but Jonathan kinda beat me to that.  This is the second.

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We’re all lawyers here, right?

If you’ve ever regretted your career choice, I have the antidote:  Paul B. Spelman’s “Even Worse Than We Had Hoped: A Journey Through The Weird Wild World Of Local TV News,” the memoir of a former local TV news reporter who is now a lawyer at the Federal Trade Commission (and until 2010 was an associate at my firm).

After leaving the truly small time as a radio reporter in Telluride, Colorado—where Christie Brinkley made a donation to his station in gratitude for Spelman’s lack of killer instinct in investigating the story of her ski accident, Spelman’s first assignment as an on-air TV reporter was in the perfectly named Whiteville, North Carolina, where he found a sign outside one of the 86 (no joke) local churches reading “Let Jesus Fix Your Achy Breaky Heart.” Spelman is “something of a curiosity” to the townsfolk as a “half-Jewish New Yorker whose only religious experiences came from attending classmates’ bar mitzvahs.” (I am confident that many Whiteville residents are, like you, puzzling over whether that should have been “B’nai Mitzvah.”) There, Spelman gains experience operating a one-man news “bureau,” or “one-man band” in industry argot, simultaneously serving as his own cameraman as he videotapes himself reporting from the scene day after day. Spelman explains how local reporters work to turn mundane events into seemingly hard-hitting stories—the book’s title comes from a statement a local anchor supposedly made to the reporter covering a story about how an accident had been worse (and thus more newsworthy) than expected.

One sample grab comes describes how Spelman, by then working in East Tennessee, was dispatched to get footage of the farm of a former judge who had been arrested for growing marijuana there. By this point, Spelman had achieved the seniority necessary to warrant having an actual cameraman, Dan, accompany him to cover his stories. Because of delays in finding the farm, the judge had posted bond by the time they got to the scene, and Spelman’s admirable efforts to explain his rights to collect footage from a public roadway came to naught when the judge pulled a rifle case from his truck. Recognizing that the judge had the better of the argument,

We drove off, but unfortunately, we drove in the wrong direction, heading farther down a windy back road that didn’t seem to lead anywhere. So with a sinking feeling, we realized we’d have to turn around and head back to the farm. We decided that if we were going to get shot, we should try to get it on video, so I drove and Dan got in the back seat with the camera. I generously allowed that if the guy started shooting Dan was permitted to duck. “But keep rolling,” I said, “if we survive it’ll be good footage.”

When a highlight of your career is deciding how to caption your response to a sur-reply brief, that is infotainment. Spelman’s book is filled with this kind of gentle, self-deprecating humor, the observations of a person who in many ways is a visitor in his own country. Spelman spares no details, even (or especially) when it is embarrassing; his account of one evening when he spent so long in a courthouse bathroom that he arrived late to cover an aviation mishap ends with the memorable phrase, “luckily for me, it’s unwieldy to remove plane wreckage.” (His account of how he got the story anyway, maybe better than his speedier competition did, is illuminating.)

Admittedly, I grew up in Peoria, Illinois. My standards for a good time may not be the same as for some of you swells who grew up where “entertainment” consisted of something more sophisticated than listening to AM radio in the back of a Plymouth Belvedere as you drove out to a strip mine to shoot beer cans with BB guns. But as I read this book, I kept thinking, “There is a movie in this.”

When I was in my second year at law school, I went to go see the movie Black Robe, about a Jesuit priest trying to make converts in 17th Century Canada. There is a scene where the priest has been captured by hostile Iroquois and he stands waiting, hand held fast to a post, as the Iroquois chief impatiently sorts through clam shells to find one suitably dull to maximize the pain when he uses it to sever his guest’s finger. I left that movie thinking that, even though I had chosen to be a lawyer, life could be worse. Reading Paul Spelman’s book, I had the same feeling. But I laughed a lot more.

According to the New York Times, the answer seems to be “yes.” An article in yesterday’s Times by Michael Luo collects some anecdotes about misbehavior by a few licensees in North Carolina. The Times article has some numbers in it, and it provides the number of North Carolinians with carry permits (240,000). After a thorough search of North Carolina records, the Times finds that about 1% of permitees were convicted of something, other than a traffic offense, over the past five years. Of these 2,400 convictions, by far the largest group is “nearly 900 permit holders were convicted of drunken driving, a potentially volatile circumstance given the link between drinking and violence.”

“Drunk driving” (which, I would guess, the Times uses as a shorthand for lesser offenses such as driving while impaired) is a serious crime in itself. But just because a woman has three glasses of wine with dinner at a restaurant, and then gets caught in a police checkpoint, doesn’t make her some “potentially volatile” person who is going to murder somebody in an inebriated rage.

In any large population (e.g., 240,000) there will be at least a small percentage who over a period of time are found guilty of some crimes. This does not mean that that population as a whole is dangerous. It would have been useful to compare the conviction rates of North Carolinians who have carry licenses with the convictions rates of those who do not. I suspect that the non-licensee crime rate would be much higher, especially for violent gun crimes.

In a 2009 article in the Connecticut Law Review, I collected data from Minnesota, Michigan, Ohio, Louisiana, Texas, and Florida. (The state data begin on page 564 of the article.) The data show that concealed carry licensees are much more law-abiding than the general population, and that the rate of gun misuse of any sort (let alone having something to do with violence in  public place) is less than one in one thousand.

Instapundit collects some other responses to the Times‘ effort to foment hysteria and prejudice against the persons who exercise the constitutional right to carry firearms for lawful protection.

[This post was corrected in response to reader comments, including the fact that I wrongly wrote that the Times had not reported the total number of licensees.]

Although on-line reading continues to grow, many people still enjoy old-fashioned printed periodicals. In the spirit of gratuitous advice, here are some suggestions for print subscriptions.

First of all, if you’re conscientious about registering for the frequent flyer program every time you step on an airplane, you may accumulate a few thousand points on various airlines which you fly only occasionally. You’ll never get to the level of a free ticket, but the points expire if you don’t use them. So use them for magazine subscriptions. I’ve been enjoying the daily Wall Street Journal that way for several years, and have used low-level points for dozens of other year-long or half-year subscriptions over the past decades.

Second, there’s a lot to be said for trying many different periodicals with one-time subscriptions. You may find a magazine that becomes indispensable for you (as The New Republic was for me, for about 15 years), but just reading something for a year or a half-year can broaden your knowledge, and then you can move on to something else.

Some category recommendations:

Newsweeklies: Back in the olden days of the 1970s, these were truly great. Then, the daily New York Times wasn’t available outside of the New York area, and the Wall Street Journal was sparse on non-business news. Time and Newsweek, and to a lesser extent U.S. News & World Report, provided in-depth, thoroughly-reported stories of the major issue of the week, the deep inside of presidential campaigns, and so on. These days, it’s hard to make a case for reading the remnants of those once-important magazines.

The Economist is still probably the most influential periodical in the world. If you read its U.S. coverage, you’ll quickly discover that the analysis is not nearly so sharp and insightful as the omniscient tone would imply, and that the coverage has numerous blind spots and biases. Knowing how flawed the U.S. coverage is makes me question The Economist‘s accuracy on topics for which I don’t know enough to judge the coverage. So in a sense, the less you know about something, the more useful The Economist is. For example, the latest issue had an article explaining that Poland is going full speed ahead with natural gas development via fracking. Because I previously had never thought about Polish natural gas, I learned a lot by reading the article. Overall, The Economist is still a strong source for weekly world news, as long as you don’t take its editorial judgements too seriously.

If you read French, Courrier International is definitely worth a trial subscription. This Paris-based weekly takes stories from newspapers all over the world, and translates them into French. You’ll get acquainted with many fine newspapers. I ultimately gave up on Courrier because their story and source selection leaned so heavily to the official left. If the choice is between a particular nation’s version of The Guardian vs. The Telegraph, Courrier almost always goes with the former. Their special issues were particularly tendentious and one-sided. But since tastes vary, I’d recommend that people who read French give it a try.

Le Figaro, one of the leading French daily newspapers, publishes a weekly edition for a U.S. audience. It’s well-written, and has good coverage of all the Francophone world, including African analysis that is hard to find in U.S. papers. As with The Economist and Courrier International, there’s also plenty of European news that you won’t find in the U.S. dailies. Le Figaro is right-wing by French standards, which places its approximately in the same zone as the New York Times. Le Monde, which is left-wing by French standards, also has a weekly; I’ve read occasional issues, but never subscribed, and, ideology aside, Le Figaro has bigger print and better layout.

Business and Finance: If you’re a law student, or in the same general age group, the time to start learning about business and investing is now. Don’t wait until you’ve saved $50,000 in a 401(k)  and have to figure out where to put it. The sooner you start reading and thinking about investing and business, the more you’ll see fads and bubbles come and go, and the less likely you’ll be to invest foolishly 25 years from now, or to allow yourself to be led around by a self-dealing financial advisor. Besides, whatever kind of lawyer you become (or whatever other career), you’ll almost certainly be more useful to clients and yourself if you have some background knowledge of business–whether you’re serving as a volunteer on the Board of a small non-profit, or urging your friend not to spend his life savings on program trading.

Forbes, Fortune, and Business Week remain the big three of the business magazines. Give each of them a try, and pick your favorite. I life Forbes, for excellent writing, and its pro-capitalist orientation. Barron’s is worth a trial subscription. It’s purely about investing, not about business in general. For a person just starting to think about the stock markets and other financial investments, Barron’s is a good choice. You may not want the avalance of daily information that comes in the Wall Street Journal or Investor’s Business Daily. Rather, in the learning stage, you may be better off with the weekly perspective. Especially useful are the big articles which provide the viewpoints of numerous experts on a major topic (e.g., how will the economy perform in the next 12 months?). As you’ll find, experts, even well-qualified and sincere ones, are often wrong about economic predictions. One of the reasons to start reading the business/finance press early in life is to develop a healthy skepticism about following any single expert’s advice.

Money is OK if you know absolutely nothing about money, and have to start at the very beginning.

New York City:  If you’ve ever lived there, it’s fun to stay in touch. Of course the New York Times takes care of this for plenty of readers who used to live in The City, but there are other options. New York magazine is lively and interesting, and captures the NY feel in a way that the Times doesn’t. It also sometimes has strong reporting on national politics. Also worth trying is the weekly New York Observer newspaper, which has great coverage of state and city politics. As with New York, the political slant is firmly to the left, but the factual reporting can sometimes be very good. The New Yorker remains, for eight decades running, the best cartoon magazine in the world. It has, unfortunately, also become a favorite vehicle for character assassination–sort of a highbrow version of ProgressNow. I’d trust its non-fiction articles only on topics which don’t involve U.S. politics.

Legal newspapers: Especially if you can get a law student discount subscription, the National Law Journal (general national news), Legal Times (D.C. focus), and American Lawyer (corporate lawyers) are all worth trying. The same goes for any local/regional law paper in your area, such as New York Law Journal. Because of the Internet, none of these are probably as influential as they were 20 years ago, but they’re still a good way to diversify your diet of legal news.

Daily newspaper: Coverage of legal issues in the mainstream daily press is typically horrible, with stories tending to concentrate only on who won or lost, while leaving the reader in the dark about the precise legal issue in dispute. But for general coverage of the state where you live, there is still nothing that comes remotely close to the daily newspaper. So if you live in the Denver area, you ought to be a daily reader the Denver Post; in Dallas,  the Dallas Morning News, and so on. Yes, those papers can be biased and selective, but they’re still far superior to any other single source for state and local coverage.

On top of that, I’d recommend a high-quality national newspaper. In other words, the Wall Street Journal or the New York Times. The Times has a much larger “news hole,” except for business news. But the Journal‘s new stories are much less likely to be DNC opinion essays misplaced in the news section. While both papers are well-written, the Journal is better-written. And the Journal‘s Friday/Saturday culture and leisure coverage has gotten quite good. For the Times, I’d recommend a partial weekly subscription (e.g., Monday to Friday), rather than the Sunday paper. You’ll get a better variety of stories in the weekday editions, and the weekly special section on Science and Technology is sometimes excellent.  The Sunday Times does have the Book Review, which is now more important than ever, given the harsh cutbacks in book reviews at almost every other newspaper. But you can always subscribe to the Book Review separately, if it’s important to you.

For a change of pace, London’s Financial Times can sometimes be obtained with airline points. Like the Wall Street Journal, it’s a business newspaper which covers lots of regular news, and some culture. And of course plenty of U.K. news. The editorial viewpoint might, roughly speaking, be considered somewhat similar to The Economist: supportive of free markets and globalization in general, but not at all afraid of big government activism.

Gun Week: Despite the title, published tri-monthly by the Second Amendment Foundation. Pre-Internet, the indispensible source of news on the firearms industry and the gun control issue. Even today, the best single source for people who follow the topic closely.

Bonus on-line reading: One of the big differences between the Wall Street Journal and the New York Times is reporting on the United Nations. The Journal has done excellent investigative reporting on the U.N. The Times has also done some good work, as in coverage of the “peacekeeping” fiasco in the Democratic Republic of the Congo. But Times coverage of U.N. HQ often consists of running p.r. interference on behalf of the U.N. For daily coverage of the U.N., by far the best source in the world is the indefatigable Matthew Lee, of the on-line Inner City Press. Lee’s personal viewpoint is definitely from the Left, but he is relentless at digging into the corruption, lies, and human rights abuses perpetrated by an organization which too often escapes serious journalistic scrutiny, all the more so because of budget cuts in international coverage in most of the rest of the media. To his credit, the United Nations Development Programme temporarily convinced Google News to disappear Inner City Press.

p.s.: In response to some of the comments: Legal Times and National Law Journal merged last year; all the more reason for law students to give NLJ a chance, I guess. The above periodicals are only a small fraction of the periodicals to which I subscribe, and those to which I’ve subscribed in the past. Not included are categories including public affairs (e.g., Mother Jones, Natonal Review, Reason), Congress (National Journal etc.), hobby/lifestyle (Sky & Telescope), sports (Field & Stream), or scholarly journals. I’ll write about some of those when mood strikes.

I regret that I must report that USA Today refuses to correct the misrepresentation of my views about the individual mandate litigation that I pointed out in this post. I pointed out the mistake in e-mails to Joan Biskupic, the author of the article in question, and the editors of USA Today. Both refused to issue any correction. They did invite me to state my view in a letter to the editor. However, after I sent in the letter, they refused to print it on the grounds that “[i]t is the paper’s policy not to disguise corrections as letters to the editor.” They were only willing to print a heavily redacted version that didn’t clearly indicate the nature of the error that Ms. Biskupic made in her characterization of my supposed “prediction” about what the Court will do. I refused to let them publish the letter under such absurd restrictions. The whole point of the letter was to point and out and correct her mistake.

Here is the original unexpurgated letter:

To Whom it May Concern:

In her April 14 article on the the Obama health care plan individual mandate litigation, Joan Biskupic incorrectly wrote that I had predicted that “the Constitution’s ‘original meaning,’ along with recent cases, would lead a majority of the [Supreme] court to reject the law.”

In reality, I never said any such thing. In the past, I have several times publicly written that the Court is more likely to uphold the law than strike it down, though the anti-mandate side also has a significant chance of prevailing. Ms. Biskupic also erred in stating that I predicted that Justice Anthony Kennedy would necessarily vote to strike down the mandate. I did not say that either.

Finally, Ms. Biskupic omitted crucial context in quoting my statement that “There is no logical way to uphold this mandate.” What I actually said was that “[t]here is no logical way to uphold this individual mandate except by a chain of reasoning that would allow Congress to impose any mandate of pretty much any kind.” The full context shows that I was making a statement about what the Court should do, not what it actually will do.

Sincerely yours,

Ilya Somin
Associate Professor of Law
Editor, Supreme Court Economic Review
George Mason University School of Law

The only one of my statements at the ACS debate (video available here) that Ms. Biskupic cited in in support of her interpretation of my words is the following:

While it is certainly true that Thomas is willing to go farther in rolling back federal power than the other conservatives on the Supreme Court, I don’t think you have to go as far as Thomas to want to do so. Moreover, people like Scalia and also Kennedy, in recent cases, such as in the Comstock case, and Alito have gone out of their way to signal their commitment to the idea of limiting federal power. … As to Roberts, it’s hard to predict his position on this. I do not think it would be predicted by the preemption cases.

Nothing in the above passage predicts that Kennedy will vote to strike down the mandate. And even if I somehow predicted that Kennedy would do so, I certainly did not predict that the Court as a whole would.

Ms. Biskupic also tried to defend her misrepresentation of my views by noting that she quoted me as saying that Chief Justice Roberts’ vote is difficult to predict. That, however, does not offset her error in stating that I predicted that the Court as a whole would “reject the law.” The reasonable reader of her article is left with the impression that I predicted that the Court would strike down the law, regardless of the fact that Roberts’ individual vote may be hard to predict.

As I said in my previous post on this subject, I don’t blame Joan Biskupic too much for the original mistake. We all make such errors occasionally, especially under the pressure of deadlines. It is much more reprehensible for her and her superiors to refuse to correct an error after it has been pointed out to them in great detail.

Over the last few years, I have often been quoted in the media about both the individual mandate and other issues. To my knowledge, this is the first time that anything I said has been seriously misrepresented. In my experience, most reporters and editors try hard to get the facts right and to correct any errors they might inadvertently commit. Unfortunately, this case is an exception.

One of the dangers of commenting on hot-button legal issues is that reporters will sometimes misquote you. That happened to me in today’s front-page USA Today story on the individual mandate litigation by prominent legal reporter Joan Biskupic, which cited me as follows:

George Mason University law professor Ilya Somin argued at a recent forum sponsored by the American Constitution Society that the Constitution’s “original meaning,” along with recent cases, would lead a majority of the court to reject the law.

“There is no logical way to uphold this mandate,” Somin said, predicting that Justices Thomas, Scalia, Kennedy and Alito would be inclined to strike down the law. Somin said the vote of Chief Justice Roberts is more difficult to predict based on his record.

In reality, I never predicted that a majority of the Court would “reject the law.” I actually said that the case could go either way, and that Kennedy and Roberts were likely swing voters. I also noted that some things Kennedy has said in recent opinions suggest that he wants to enforce limits on the scope of federal power. But I did not say that means that it’s clear he will vote to strike down. He could, I think, go either way.

I have on several occasions publicly said that the case could go either way, that the plaintiffs face an “uphill struggle” and that a victory by the pro-mandate side is more likely than the opposite. I think the Court should invalidate the mandate, but the justices do not always get these issues right, and sometimes go against logic.

At the same time, I believe that the anti-mandate side has a real chance to win and that the case is far from a slam dunk for the federal government. To put it in sports terms, I think the federal government is the favorite to win the case, but only a narrow favorite. Everything I said at the ACS forum was completely consistent with these long-held views.

I am certain that Ms. Biskupic’s error was inadvertent. Perhaps she misremembered what I said at the ACS event (which was held back in February), or took it down incorrectly. She apparently did not have an opportunity to check the accuracy of her summary with me before publishing it. I have sent her an e-mail urging her to correct the error. But I also wanted to correct it here, in case USA Today does not get around to it in a timely fashion.

UPDATE: Having listened to the tape of the debate, I also noticed that that Biskupic omitted some relevant context from my statement that “There is no logical way to uphold this mandate.” What I actually said was that “[t]here is no logical way to uphold this individual mandate except by a chain of reasoning that would allow Congress to impose any mandate of pretty much any kind.” I should in addition note that, contrary to my memory, I didn’t say that Justice Kennedy was a swing voter, but also did not predict that he would vote to strike down the mandate.

Jared Bernstein (Politico photo)

Jared Bernstein, chief economist for Vice President Joseph Biden, served in 2008 as an economic adviser to the Obama campaign. At the same time, he was a member of JournoList, the controversial progressive email list.

Bernstein’s bio at Politico, which appears not to have been updated since 2008, states: “He is an economic adviser to the Obama campaign.”

He was known to many for his regular appearances on the financial channel CNBC. His primary employer in 2008 was the Economic Policy Institute, a pro-labor progressive think tank, but according to his bio when appointed to the Obama-Biden Administration, he also was a member of the Panel of Economic Advisers of the Congressional Budget Office.

Reached today at the Office of the Vice President, Bernstein revealed that his position with the Obama campaign was as something called a “surrogate.” “I was not paid by the campaign,” he explained. “They would call me from time to time to represent their positions, that side of the debate.”

Asked when he left JournoList, Bernstein replied, ‘‘I think I left the list around the time I came here.” Bernstein was announced as Chief Economist and Economic Policy Adviser to the Vice President-elect on December 8, 2008.

One question that has arisen in the last week is how closely JournoList members, not only discussed how to shape the news to advance the fortunes of Barack Obama, but coordinated with the Obama campaign. Jared Bernstein’s position as an unpaid adviser and surrogate shows that there was at least one direct link between JournoList and the Obama campaign.

Bernstein’s serving on the Economic Advisory Panel of the CBO is less worrisome, though it appears to violate Ezra Klein’s first rule for JournoList:

At the beginning, I set two rules for the membership. The first was the easy one: No one who worked for the government in any capacity could join.

It would appear that Bernstein’s presence on the list violated Klein’s first rule, since he met the test of working “for the government in any capacity.”

Yet note Klein’s careful wording here. People who worked for the government in any capacity couldn’t join, but could they stay on the list if they took a government job after joining?

Were there other campaign advisers or part-time government officials who participated on JournoList?

UPDATE: Here is an example of Bernstein’s humorous political writing at the Huffington Post.

2D UPDATE: I have an anonymous source who has shown me an email thread that appears to be from JournoList. From his search of the JournoList archives, he believes that Bernstein’s last direct email to the list was on December 5, 2008, a charming farewell sent 3 days before he was introduced as Biden’s chief economist. Indeed, months later there were several emails to the list from members who wondered how to contact Bernstein.

I hope to have a lot more in the next few days.

Late Monday afternoon, I received a one-sentence email from Liz McMillen, Editor of the Chronicle Review:

I just wanted to let you know that we are looking into the questions you have raised in your blog post Friday about Michael Bellesiles’s article for us.

Here is some background on Bellesiles’s June 27th article.

Here is some background on Bellesiles’s problems in 2000-2002.

In its June 27, 2010 issue, the Chronicle of Higher Education published an essay by Michael Bellesiles, Teaching Military History in a Time of War:

Yet the reality of teaching in wartime, most particularly at a working-class college such as Central Connecticut State University, is that war has touched the families of many of our students, and it is a tragic error to think that they have not experienced the staggering blow of loss and personal sacrifice.

That lesson came home to me with great force this last semester. . . . On the first day of my military-history class, after a discussion of the concept of democratic warfare, I asked my usual question about veterans or National Guard members present, and if any students had family members serving in the military. Ernesto (I have changed names out of respect for this family’s privacy), a shy but exceedingly bright student, smiled with evident pride as he mentioned that his brother Javier had recently enlisted in the Army. We discussed his brother’s reasons for enlisting, which mostly focused on a sense of gratitude to a country that had given their family refuge.

Two weeks later, the class discussed Baron von Steuben’s training of the American Continental Army . . . . Afterward, Ernesto told me that his brother had been sent to Iraq. He admitted he was worried about Javier’s safety, but had read several articles indicating that the war was winding down.

Then, after a class . . . [on the Mexican War], Ernesto told me that Javier had called him the day before and described his first encounter with enemy fire, which had been chaotic and without consequence. A few days later, Ernesto gave an amazing paper on a woman who had disguised herself as a man so that she could join the Union Army . . . . In the minutes before the very next class, during which we explored Ulysses S. Grant’s strategy of attrition, Ernesto came to me and said that he could not attend class, as his brother had been shot in the head by a sniper and was in critical condition.

Sorrow was written across Ernesto’s young face. Here was a student I relied on for an astute observation and a ready smile; now he looked on the verge of tears. I told him to give no further thought to the class, but to devote himself to his family. Ernesto missed the wars against the Plains Indians and the Spanish-American War, but showed up in time for the Philippine Insurrection. I hoped that Ernesto’s presence meant that his brother had recovered, only to be surprised to hear that Javier was still in danger, his condition so serious that the doctors feared moving him to the military hospital in Germany. When I asked him why he had come to class, Ernesto insisted that he hoped his studies would take his mind off his worries for his brother.

That afternoon I asked my teaching assistant, a Marine veteran named Joe, to talk with Ernesto. Over the next several weeks, as we traversed the terrain of the 20th century with the two world wars and Korea, Joe spoke regularly with Ernesto, advising him on his final paper and on dealing with the military bureaucracy. . . . And then, just as we were coming to . . . Vietnam, I received an e-mail from Ernesto letting me know that his brother had died.

Not surprisingly, Ernesto’s attendance became erratic, and he skipped entirely the discussion of our current wars.

In today’s Big Journalism, Dutton Peabody calls Bellesiles’s story “fishy” and asks whether the Chronicle bothered to check the story:

But given Mr. Bellesiles’ last book, unkind minds have fallen back on President Reagan’s “trust, but verify” maxim.

Peabody has trouble finding Bellesiles on the Central Connecticut State University (CCSU) website, but I found him there. Bellesiles taught at CCSU in both the Fall 2009 and the Spring 2010 terms. However, according to the course listings there, he taught his Military History course in the Fall 2009 semester, not the Spring 2010 semester. The Spring term ended in May, so (if the CCSU website is correct) Bellesiles may have been mistaken in describing the events as occurring in “this last semester.”

Peabody also wonders about the fast progression from the brother “Javier” being “recently enlisted” as of the first class and yet seriously wounded only a few weeks later.

But Peabody’s chief problem is this:

Funny: the Hartford Courant keeps careful track of Connecticut casualties, and there has been only one fatality so far this year, reported on April 4th as recently killed. That would seem weeks before Mr. Bellesiles says Javier died in Iraq. And then Lance Corporal Tyler Griffin was a Marine, not Army. And killed by an IED, not a shot to the head. And in Afghanistan, not Iraq. Nor was he an immigrant, as Javier is described. (“We discussed [his] reasons for enlisting, which mostly focused on a sense of gratitude to a country that had given their family refuge.”) And there is no sign of a brother in the Courant obituary.

In my review of several sites, but chiefly ICasualties, I find no Connecticut military killed in Iraq in 2009 or 2010 (and only one in 2008, a Marine who died from a non-hostile cause). If one expands the search to all US military deaths in Iraq from all US states and territories from the beginning of the Fall 2009 semester through the end of classes in the May 2010 semester, I could find no deaths from any state that fit Bellesiles’s account (Iraq War, recent Army enlistee, hostile fire from a rifle or similar weapon, lingering death). Nor did my quick review of all US military deaths in Afghanistan (if one changed the theater from Iraq to Afghanistan) during the last two CCSU semesters turn up any likely prospects (though I would need a closer review to be certain).

Thus it appears that Bellesiles’s account is false in at least some trivial respect–probably in the term he taught the course and in the circumstances of “Javier’s” service or death.

Further, without personal knowledge of Army procedures, I found it strange that a critically injured US soldier would not be brought to Germany for treatment over a period of several weeks. Further, while not suspicious in itself, at this stage of the Iraqi War almost all US deaths occur on the same day as the attack or on the following day. Indeed, this detail alone can be used to exclude most deaths in Iraq and Afghanistan in the last year.

If I had to guess, I would suspect that the story Bellesiles told in the Chronicle is mostly true; after all, it would be too easy for the Chronicle or Bellesiles’s department chair to check the facts with “Ernesto” and with Joe, Bellesiles’s teaching assistant. Yet some things reported by Bellesiles in the Chronicle appear to be false: the term he says he taught Military History is inconsistent with CCSU’s website, and the facts of “Javier’s” Army service and death in Iraq do not match any deaths reported by the Department of Defense for soldiers from any US state or territory.

And note that Bellesiles opens his Chronicle article with a warning that many military stories can’t be trusted, even eyewitness ones. Is this his sly way of warning us that he doesn’t fully trust “Ernesto’s” account himself or that Bellesiles is telling us a tall tale? For his sake, I hope not.

Fourth installment in a five-part series on Silverglate’s book, Three Felonies a Day: How the Feds Target the Innocent.

In a discussion on WAMU Radio yesterday, host Kojo Nnamdi noted that vagueness in the federal criminal law has recently made “strange bedfellows” of the political left and right. This same “emerging consensus” was also the subject of an insightful November 23 article by Adam Liptak, The New York Times’ Supreme Court reporter.

What has occasioned this coming together? As I mentioned here on Monday, individuals and organizations of all political stripes are realizing the danger to all when prosecutors are empowered with exceedingly broad and—worse—hard-to-define federal laws. A diverse coalition of groups—including the Heritage Foundation, the Federalist Society, the Cato Institute, the National Association of Criminal Defense Lawyers, and the ACLU, among others—have been sounding a clarion call against this species of executive expansion. They have pointed out that, from webmasters to fund managers, no segment of civil society is safe.

But this phenomenon is not new. As I document in Three Felonies a Day, the proliferation of vague laws—and prosecutions under them—began in the mid-1980s. Why has widespread recognition, especially from the American public, taken so long?

For one thing, the Department of Justice has a very effective public relations machine. With every major indictment, there is a press release and, not infrequently, a press conference that major national media typically attend with bated breath. Flanked by FBI, IRS, DEA, SEC, and members of the other myriad supporting agencies, prosecutors feed reporters the government’s side of the case, often a matter of hours after a hapless defendant has been rousted out of bed and paraded in the infamous “perp walk” (much to the delight of press photographers who have been tipped off in advance). At the end of this prejudicial circus-like performance, prosecutors often refuse to answer media questions on the ironic ground that they are bound by the federal court’s rules against pre-trial publicity and, in any event, they do not want to cause the public (especially potential jurors) to prejudge the case!

But the press corps itself is ultimately responsible for the one-sided coverage of what I call “three-felonies-a-day” cases (a reference to my new book, Three Felonies a Day: How the Feds Target the Innocent). The fact is that there is an unseemly relationship between the Department of Justice and much of the news media. While in some areas the press and the DOJ have developed an appropriately adversarial, or at least skeptical relationship, by and large the DOJ plays the press corps like a fiddle.

Consider the Houston Chronicle’s slanted coverage of the arrest, indictment, and trial of former Enron President Jeffrey Skilling, convicted in May 2006 on charges of conspiracy, securities fraud and depriving the now-defunct Houston-based energy company of his “honest services.” Vitriol for Skilling was not limited to the Chronicle’s opinion pages; news articles, sports stories, and columnists vilified Skilling well before his day in court. Despite affirming his conviction, the Fifth Circuit Court of Appeals ruled that the media coverage created a community prejudice against Skilling. The three-judge panel wrote (PDF) that the Chronicle published “nearly one hundred…personal interest stories in which sympathetic individuals expressed feelings of anger and betrayal toward Enron,” and that even “the Chronicle’s ‘Pethouse Pet of the Week’ section mentioned that a pet had ‘enjoyed watching those Enron jerks being led away in handcuffs.’” (Emphasis in original) In Houston, the so-called Fourth Estate played the role of prosecutorial lapdog.

The Supreme Court decided on October 13 to review the Skilling case as part of its trio of honest services cases this term, and one of the issues on appeal is the extent to which jury prejudice affected the verdict. But, if the previous hearing on honest services is any indication, the justices will use the Skilling case to look at the broader constitutional due process question surrounding the infamously vague 28-word fraud provision. Oral argument is set for March 1.

Another public figure, disparaged in the public eye even before he was indicted (much less convicted) will be intently watching the high court’s decisions in all three honest services cases. The prosecutor’s press machine has been so effective that even mentioning his name causes some to chuckle with derision. But the case of former Illinois Governor Rod Blagojevich deserves a closer look.

Illinois U.S. Attorney Patrick Fitzgerald framed the case, from the start, as an altruistic Department of Justice mission to clean up state and local politics. At a December 9, 2008 press conference, held shortly after Blagojevich’s early-morning arrest on a variety of political corruption charges, Fitzgerald announced his most sensational allegation: The governor deprived Illinois’ electorate of his “honest services” when he sought to sell to the highest-bidder the Senate seat vacated by Barack Obama. The headlines were, predictably, nationwide, in large type above-the-fold (or the on-line equivalent).

This discovery from the wiretap and bug planted by Fitzgerald’s agents in the governor’s office and home was deemed so threatening to the public weal that the prosecutors, rather than give the plot time to play itself out and result in an outright sale-and-purchase of the Senate seat, pulled the plug and arrested Blagojevich before any deal was consummated—or so the nation was told. At the press conference, Fitzgerald informed a rapt audience of newsmen that he had to act precipitously to prevent the governor from carrying through this “most appalling conduct” that was the pinnacle of the governor’s “political corruption crime spree.”

So the prosecution is for a “conspiracy,” or plan, to sell the Senate seat, rather than for an accomplished act. Without having to show that Blagojevich actually sold the Senate seat, and with the notoriously vague federal conspiracy law, securing a conviction is much easier. In a sense, no real crime is required. Yet neither the media nor the public questioned Fitzgerald’s motives for failing to wait until the Obama seat was actually sold. (Had such a sale taken place, of course, the Senate would surely not have seated the governor’s nominee. Hence, there was no good reason for Fitzgerald to fail to wait for the completed crime—except, as I suggest, that no such sale was in fact going to take place.)

Blagojevich has some quite different perspectives on his pre-arrest political machinations, which he sets out in a remarkable, even if unbalanced and in some places downright silly, memoir published after his indictment, entitled The Governor. The former governor claims that his motive for choosing Obama’s successor had to do with getting his political enemies out of the way of his legislative agenda. If Blagojevich’s account is to be believed, Fitzgerald pulled the plug prematurely not to serve the people of Illinois, but to save his own case. Had the matter been allowed to play itself out, says the former governor, it might have become increasingly obvious that what Blagojevich was doing was perfectly legal—even if unsavory to some refined sensibilities—Chicago politics. Indeed, Blagojevich tried, without success, to obtain the full, unedited eavesdrop tapes to play at his impeachment trial, claiming they would exonerate him, but was unable to do so due to Fitzgerald’s objection. At the very least, the tapes might have portrayed conduct deemed lawful, or at least acceptable under Illinois state law.

Blagojevich’s benign (even if unrefined) political explanation is lent credence by something Fitzgerald said during the December 2008 press conference. He noted that an Ethics in Government Act was pending in Illinois, scheduled to take effect January 1, 2009 that, according to Fitzgerald, “would bar certain contributions from people doing business with the state of Illinois.” And so, explained Fitzgerald, Blagojevich and his cronies “were working feverishly to get as much money from contractors, shaking them down, pay-to-play before the end of the year.” In other words, Fitzgerald appeared to be conceding that at least some of Blagojevich’s conduct was in accordance with state law as it stood at the time. Not a single reporter, however, pointed out that this “crime spree” was apparently occurring before the new ethics laws were enacted, and that the governor’s actions therefore conformed to and were permissible under state law.

Were these “crimes” the work of an arch criminal, or merely the machinations of a master political opportunist doing what Illinois law allowed? While it is true, of course, that the honest services fraud statute enables the feds to prosecute state officials for conduct allowed under state law—this is one of the statute’s problems that the Supreme Court presumably will rule upon in the upcoming cases—it is, or should be, difficult to brand a politician as on a “political corruption crime spree” if he is scrupulously adhering to the statutes and codes duly enacted by a sovereign state legislature.

Until we have a more skeptical press corps, the public discussion of whether and how federal prosecutions on the basis of vague statutes should be reined in is going to have to be conducted without the essential participation of an educated citizenry. This Fourth Estate cheering gallery is not what Thomas Jefferson envisioned.

Available here. Co-authored by Joseph Olson (Hamline), David Hardy, and Clayton Cramer. Key point: From 1789 to 1860, popular and legal understanding of the Second Amendment became much less militia-centric. Well before Reconstruction, the Second Amendment was considered to be mainly a guarantee of a right to own and carry guns for personal protection. Back in 1998, I wrote a hundred-page article, The Second Amendment in the Nineteenth Century, 1998 BYU Law Review 1359, which focused mainly on cases and treatises. Olson/Hardy/Cramer have gone further, and brought forward extensive evidence about the understanding of the public and of elected public officials. Along the way, the brief also corrects some misunderstandings about the 19th-century Second Amendment which appeared in Justice Stevens’ dissenting opinion in Heller.

The NYT‘s environmental blog, Dot Earth, covered the disclosure of e-mails and other files from the University of East Anglia’s Climate Research Unit, noted that the files are available on various other website, but did not reproduce any files on its site.  As Andrew Revkin explained in the post:

The documents appear to have been acquired illegally and contain all manner of private information and statements that were never intended for the public eye, so they won’t be posted here.

Am I wrong in thinking that this is a change in policy for the NYT?  Hasn’t the Grey Lady published illegally obtained documents on national security and other matters in the past?

As I posted earler this morning, there are reasons to believe these documents were released by an internal whistleblower, rather than an external hacker.  If so, would the same considerations apply?  My initial thought is that arguments against publishing hacked documents might not apply to those disclosed by a whistleblower.  In any event, it seems these documents contain substantial material of legitimate public interest, and this interest is not diminished by the way in which the documents were obtained.  I readily concede that if the documents were stolen, as it appears, the individual responsible should be prosecuted, but this is a separate question from whether to disseminate the contents of the documents themselves.

There seems to be a strange subtext in some press stories hinting that the suspect in the Fort Hood shootings, Nidal Malik Hasan, had psychological problems or motivations of a kind that would somehow render his acts inconsistent with terrorism or with Islamic terrorism. Does the press realize that the psychological profile of a typical suicide bomber or religious mass murderer is hardly one of complete normality?

The scholarship on the psychological makeup of terrorists is somewhat spotty, but in his 2005 Journal of Conflict Resolution article reviewing the literature, Jeff Victoroff identifies the following four characteristics in “typical” terrorists:

a. High affective valence regarding an ideological issue

[here Islam, jihad, or the Iraqi or Afghan Wars]

b. A personal stake—such as strongly perceived oppression, humiliation, or persecution; an extraordinary need for identity, glory, or vengeance; or a drive for expression of intrinsic aggressivity—that distinguishes him or her from the vast majority of those who fulfill characteristic a

[here probably strongly perceived oppression, humiliation, or persecution]

c. Low cognitive flexibility, low tolerance for ambiguity, and elevated tendency toward attribution error

[here there is alleged rigidity in personal relations consistent with low cognitive flexibility and low tolerance for ambiguity; we do not yet know if there was attribution error, such as unreasonably blaming Americans or Jews]

d. A capacity to suppress both instinctive and learned moral constraints against harming innocents, whether due to intrinsic or acquired factors, individual or group forces—probably influenced by a, b, and c.

[here we have not only Hasan's actions as evidence, but also his words and the words of some of his friends]

Jeff Victoroff, “The Mind of the Terrorist: A Review and Critique of Psychological Approaches,” Journal of Conflict Resolution, 49: 3-42, 35 (Feb. 2005).

If what has been reported about Hasan so far is true, his biography may not be usual. But Hasan would seem to fit the psychological profile of an Islamic terrorist almost perfectly — indeed, about as well as Mohamed Atta, Osama Bin Laden, or Khalid Sheikh Mohammed.

This week’s National Journal poll of political bloggers asked “What will be the top two issues in the midterm elections?” Enormous majorities on both the Left and the Right picked “Economy/jobs” as the expected top issue. On the Left, “health care reform” came in second, far ahead of the third-place “deficit/big government.” The issues of Afghanistan and Cap & Trade were very far behind. The picks on the Right were similar, expect that “deficit/government” was the choice for 2d place, with health care in third.

I wrote: “All these will be big, but the ballooning deficit and the unemployment rate will probably be of interest to the largest number of voters. Afghanistan/cap-and-trade/health care will probably motivate lots of base activists from both sides.”

The second question was “On balance, does the White House’s decision to take on Fox News help or hurt President Obama?” Eighty-seven percent of the Left, but only 18% of the Right thought it helped. I was among them: “It turns out that all those folks with ‘dissent is patriotic’ bumper stickers who worried about the president trying to shut down criticism were just a little ahead of their time. Obama’s stature is diminished in the short run, but Fox’s reporting is so harmful to the WH (Van Jones, Anita Dunn, etc.) that they may have figured some short-term cost is worth it if they can convince the more pliant folks in the MSM not to follow up those stories.”

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.

According to Tina Brown, they are – in an interview in today’s Financial Times about her website, The Daily Beast.  This is an elliptical addition to Eugene’s posts about e-books and new legal book technologies.

I’m sure many legal academics, myself included, have wondered how, along the way in the last couple of years, things seemed to shift so that no one seems to read one’s academic articles anymore.  Our legal academic audience, in my highly anecdotal take, seems to want to read either blog posts or books.  I’m not quite sure why this is, but I Sense This In The AcademicoSphere.

Here is Tina Brown on the topic of websites, magazines, and books.  It’s quite a good interview on the founding and progress of the Daily Beast.

Given her record, it is startling when [Tina Brown] announces that she sees no future for long-form magazine pieces “of the old kind”, outside the pages of The New Yorker, The Atlantic and Vanity Fair, and proclaims that “books are the new magazines”.

However, Daily Beast writers are to be encouraged to “exercise their narrative journalism muscles” through a tie-up with Perseus Books to produce books of no more than 50,000 words.

“People’s time spans are so short, they either want a short ‘nerve centre’ piece immediately, or they want a short book they can read on a plane,” she says. “A lot of stuff about the [financial] meltdown I would have liked to be marinated over three or four months, but I didn’t want to wait a year and a half.”

The model, which will be tested in January with a book by John Avlon called Attack of the Wingnuts , will be to launch e-books for Amazon’s Kindle or Sony’s Reader, and then to print paperbacks for titles that have sold well.

LA TIMES BLOG:

More than two years after Dan Rather filed a $70-million lawsuit against CBS for breach of contract and fraud, a New York Supreme Court appellate division has tossed out his claim.

The ruling, handed down today, dismissed Rather’s claims that CBS News broke his contract and committed fraud by sidelining him in the wake of a controversial story he reported about President George W. Bush’s Vietnam-era service in the Texas Air Guard.

Here is much of the opinion:

CATTERSON, J.

This action asserting breach of contract and related tort claims arises out of a September 8, 2004 broadcast that plaintiff Dan Rather narrated on the CBS 60 Minutes II television program about then President George W. Bush’s service in the Texas Air National Guard. Rather alleges that CBS disavowed the broadcast after it was attacked by Bush supporters, and fraudulently induced him to apologize personally for the broadcast on national television as well as to remain silent as to his belief that the broadcast was true. Rather alleges that, following President Bush’s re-election, CBS informed him that he would be removed as anchor of the CBS Evening News. Rather claims that although his employment agreement required that, in the event he was removed as anchor, CBS would make him a regular correspondent on 60 Minutes or immediately pay all amounts due under the agreement and release him to work elsewhere, CBS kept him on the payroll while denying him the opportunity to cover important news stories until May 2006 when it terminated his contract, effective June 2006.

Rather commenced this action against CBS Corporation, Viacom Inc., and individual defendants Leslie Moonves, Sumner Redstone and Andrew Heyward in September 2007. He asserted, inter alia, claims of breach of contract and breach of fiduciary duty against CBS; claims of fraud against CBS and the individual defendants and a claim of tortious inducement of breach of contract against Viacom and the individual defendants.

Now, Rather appeals and defendants CBS Corporation and Viacom Inc. cross-appeal from orders entered by Supreme Court on April 11, 2008 and September 25, 2008, which granted defendants’ motion to dismiss the claims for fraud, breach of the implied covenant of good faith and fair dealing and tortious interference with contract, and denied defendants’ motion to dismiss the claims for breach of contract and breach of fiduciary duty.

For the reasons set forth below, this Court finds that the motion court erred in denying the defendants’ motion to dismiss the claims for breach of contract and breach of fiduciary duty, and [*3]therefore we find the complaint must be dismissed in its entirety. . . .

At the outset, we find that Supreme Court erred in declining to dismiss Rather’s breach of contract claim against CBS. Rather alleges that he delivered his last broadcast as anchor of the CBS Evening News on March 9, 2005, and that, since he was only nominally assigned to 60 Minutes II and then 60 Minutes, he should have received the remainder of his compensation under the agreement in March 2005. Rather claims that, in effect, CBS “warehoused” him, and that, when he was finally terminated and paid in June 2006, CBS did not compensate him for the 15 months “when he could have worked elsewhere.” This claim attempts to gloss over the fact that Rather continued to be compensated at his normal CBS salary of approximately $6 million a year until June 2006 when the compensation was accelerated upon termination, consistent with his contract.

Contractually, CBS was under no obligation to “use [Rather's] services or to broadcast any program” so long as it continued to pay him the applicable compensation. This “pay or play” provision of the original 1979 employment agreement was specifically reaffirmed in the 2002 Amendment to the employment agreement.

That Amendment also provided, in subparagraph 1(g), that if CBS removed Rather as anchor or co-anchor of the CBS Evening News and failed to assign him as a correspondent on 60 Minutes II or another mutually agreed upon position, the agreement would be terminated, Rather would be free to seek employment elsewhere, and CBS would pay him immediately the remainder of his weekly compensation through November 25, 2006.

We agree that subparagraph 1(g) must be read together with the subparagraph 1(f), which provided that if CBS removed Rather from the CBS Evening News, it would assign him to 60 Minutes II “as a full-time Correspondent,” and if 60 Minutes II were canceled, it would assign him to 60 Minutes as a correspondent “to perform services on a regular basis.” However, this construction does not render any language of the agreement inoperative, since, consistent with the “pay or play” clause, neither subparagraph 1(g) nor 1(f) requires that CBS actually use Rather’s services or broadcast any programs on which he appears, but simply retains the option of accelerating the payment of his compensation under the agreement if he is not assigned to [*4]either program.

It is clear that subparagraph 1(g) applies only to a situation where CBS removed Rather as anchor of CBS Evening News and then failed to assign him “as a Correspondent on 60 Minutes II.” The amended complaint alleges that when Rather no longer performed anchor duties at CBS, he was assigned to 60 Minutes II. Thus, Rather implicitly concedes that CBS fully complied with subparagraph 1(g).

Supreme Court erred in finding that subparagraph 1(g) modified the “pay or play” provision when it ignored the initial prefatory clause to the rest of that subparagraph, which states “[e]xcept as otherwise specified in this Agreement.” As the defendants correctly assert, the seven words are crucial because they require subparagraph 1(g) to be read together with the “pay or play” provision, and thus, subparagraph 1(g) cannot modify the “pay or play” provision to mean that CBS must utilize Rather in accordance with some specific standard by featuring him in a sufficient number or types of broadcasts. As the defendants aptly observed, “the notion that a network would cede to a reporter editorial authority to decide what stories will be aired is absurd.”

Rather’s claim for lost business opportunities due to CBS’s failure to release him to seek other employment is insufficiently supported. Since, according to Rather’s own allegations, an immediate result of the September 8, 2004 broadcast was criticism that he was biased against Bush, it would be speculative to conclude that any action taken by CBS would have alone substantially affected his market value at that time. Rather’s claim for damages for loss of reputation arising from the alleged breach of contract is not actionable. Dember Constr. Corp. v. Staten Is. Mall, 56 A.D.2d 768, 392 N.Y.S.2d 299 (1st Dept. 1977).

Rather’s cause of action for breach of fiduciary duty must also be dismissed. Supreme Court held that the issue of “whether a fiduciary duty has been created in the course of the long relationship between Rather and CBS is really a question of fact.” Previously, the court determined that “the length of [Rather's] contractual relationship with [CBS], and the nature of the service that [Rather] performed under his contracts” created an issue of fact that could not be resolved on motion. This was error.

Rather claims that his “four-decade history” with CBS constituted a “special relationship that imposed fiduciary duties upon CBS toward [Rather].” The law in this Department, and indeed enunciated in every reported appellate-division-level case, is that employment relationships do not create fiduciary relationships. Simply put, “[the employer] did not owe plaintiff, as employee, a fiduciary duty.” . . .

We affirm dismissal of Rather’s fraud claims against CBS and the individual defendants although we find that Supreme Court erred in its rationale for the dismissal as it also erred in rejecting the defendants’ other challenges to the fraud claim. . . .

Rather alleges that various misrepresentations ( e.g., promises to publicly defend his reputation and to conduct an independent investigation into the 2004 broadcast, and assurances that CBS intended to use his talents fully and to extend his contract, which was due to expire on November 25, 2006) induced him to remain silent about his role in the broadcast and to remain with CBS, where he was allegedly “warehoused” until the completion of his contract. As a result, he alleges he suffered money and reputation damages. Relying on Rather’s well-footnoted appellate brief, this Court was already cognizant of his argument that, following the completion of his CBS contract, his compensation at HDNet was less than the $4 million a year established as an approximate market rate for comparable journalists. However, for reasons set forth here, this information was not required for our analysis, and the lack of it was not the reason for affirming dismissal. . . .

Rather’s claim that, but for CBS’ fraud, he could have had more remunerative employment than that which he ultimately obtained at HDNet is unavailing. “[T]he loss of an alternative contractual bargain [...] cannot serve as a basis for fraud or misrepresentation damages because the loss of the bargain was undeterminable and speculative.’” Lama, 88 N.Y.2d at 422, [further citation omitted].

Rather claims, based on his value and the value of similar professionals in the industry, that he would have been paid $4 million annually from 2005 through 2010. However, while claiming that he had an “agreement-in-principle” with CBS in the summer of 2004 to extend his contract, he alleges in the amended complaint that he had an unwritten “proposal” that “contemplated” a contract extension, and the terms of the proposal were compensation of $4 million for the first 19 months and $2 million annually thereafter. Rather admits that, the broadcast and its aftermath aside, CBS was already contemplating that he would step down from the anchor position in 2006 and assume a reduced role. . . .

Even if Rather pled pecuniary loss sufficiently to satisfy the Lama standard, his claim would nonetheless fail. Although allegations that defendants made statements to the general public, for example, that they falsely blamed Rather for alleged errors in the broadcast, may constitute a defamation claim [citations omitted], they are time-barred. Furthermore, Rather’s claim of under-use merely recasts his breach of contract claim in terms of fraud. . . .

Even if Rather had alleged “a breach of duty which is collateral or extraneous to the contract between the parties” Krantz v Chateau Stores of Canada . . . , he failed to adequately allege damages.

To the extent Rather claims that he should have been released from the agreement earlier to pursue other opportunities, this claim is duplicative of his breach of contract claim. . . . Similarly, Rather’s claim for breach of the implied covenant of good faith and fair dealing was properly dismissed by Supreme Court for being duplicative of his breach of contract claim. . . .

Finally, Supreme Court properly dismissed the claim of tortious interference with a contract as against CBS and Viacom. First, CBS asserts correctly that Viacom is not a proper party to this action. . . . Second, as to the claim against CBS, the court correctly applied the economic interest doctrine to dismiss this claim against the corporate defendant. . . . Rather’s bare allegations of malice do not suffice to bring the claim under an exception to the economic interest rule. . . . Since on appeal, Rather has not addressed his argument as to this cause of action to the individual defendants, we deem the argument abandoned. In any event, there is no particularized pleading of allegations that the acts committed by the individual corporate employees were either beyond the scope of their employment or motivated by their desire for personal gain. . . .

Accordingly, the judgment of the Supreme Court, New York County (Ira Gammerman, J.H.O.), entered April 14, 2008, should be modified, on the law, to grant the motion to dismiss the causes of action for breach of contract and breach of fiduciary duty, and otherwise affirmed, with costs. Judgment, same court and J.H.O., entered September 30, 2008, dismissing the amended complaint as against Viacom, Inc. and dismissing the causes of action for fraud and tortious interference with contract as against CBS Corporation, and bringing up for review an order, same court and J.H.O., entered September 23, 2008, which granted CBS and Viacom’s motion to the extent it sought to dismiss the causes of action for fraud and tortious interference with contract and denied the motion to the extent it sought to dismiss the cause of action for breach of fiduciary duty, should be modified, on the law, to dismiss the remaining causes of action against CBS, and otherwise affirmed, with costs. Plaintiff’s appeals from the aforesaid orders should be dismissed, without costs, as subsumed in the appeals from the respective judgments. The Clerk is directed to enter judgment in favor of [*9]defendant CBS dismissing the amended complaint as against it.

All concur.

[UPDATE: Note that Rather was still claiming that the false CBS story was true. I have not seen anything yet on whether Rather will appeal to the New York Court of Appeals, but it won't surprise me if he does.]