Archive | June 1, 2010

Foreign Sovereign Immunities Act v Alien Tort Statute?

Sounds like Alien v Predator.  Well, the Supreme Court might have taken up that question, but in the event, decided not to get involved with it.  My Opinio Juris co-blogger Duncan Hollis explains at OJ.  The case handed down today is Samantar v Yousef.  I concur with Duncan’s takeaway:

For human rights activists, however, the case had real import for the future of litigation under the Alien Tort Statute (ATS) … My own first take, however, is a simple one, namely, that human rights activists should be breathing a huge sigh of relief tonight.  The Court had a chance here to gut the ATS, and it declined to do so.

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Its All in the Marketing:

Philip Morris goes green (via The Onion):

Executives at Philip Morris USA this week unveiled Marlboro Earth, a new eco-friendly cigarette that gradually eliminates the causes of global warming and environmental destruction at their source….

“I leave work three to five times a day to stand outside and help the environment,” said longtime smoker Sam Davies, an office worker in Raleigh, NC. “And the best thing about them is they make saving the planet incredibly addictive. After only a few hours, I get the uncontrollable urge to go out and help the environment some more.”

Philip Morris executives stressed that the new cigarettes, which contain the same great taste smokers have come to expect from Marlboro, but with nearly three times the tar and carbon monoxide, could make a huge difference in as little as 40 to 50 years, cutting down on urban sprawl, overpopulation, and eventually helping to enrich the soil with powerful fertilizers.

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“Of All the Liars, That Have Ever Lived, Since Lying Was First Invented, [Members of the Other Party] Are the Greatest Liars”

(Everything old is new again, political rhetoric department, Part MMDCCCLIV.) The quotation in the title of this post is from the Republican Spy, April 1, 1806, and was said about the Federalist, though I took the liberty of changing “liv’d” to “lived.” Other than the “liv’d,” the sentiment has been freely recycled for over 200 years. [...]

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Herd of Individualists, Wolfman Edition

The Sun:

Deikitsen “Lupus” Manley, 15, who claims to be pack leader at Brandeis High School in San Antonio, said: “Human wolves have been around a lot longer than characters in Twilight.

It gives us a sense of belonging. You gain friends and you belong and indulge your wild side.” Another “wolf” named Argus said: “We’re not to be feared.”

Deikitsen’s mum Pam said: “As soon as he walks in the door, he is supposed to take out the fangs, and lose the lenses and tail. They’re good kids. It takes courage to stand up and be who you want to be.”

He may be a good kid, but wouldn’t it take more courage, and be more of a reflection of being who you want to be, to not join a “pack”? [...]

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State Attorneys General Argue that Non-Media Speakers Should Get Less First Amendment Protection than Media Speakers

From the amicus brief for 48 states plus D.C. supporting Snyder in Snyder v. Phelps:

No decision of [the Supreme] Court has ever exempted a non-media defendant from generally applicable state tort law on First Amendment grounds.

That assertion is factually mistaken: NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), held that non-media defendants could not be held liable for their speech under the generally applicable state tort law of interference with business relations.

And beyond this, Citizens United v. FEC, 130 S. Ct. 876, 905-06 (2010), expressly “‘reject[s] the proposition that the institutional press has any constitutional privilege beyond that of other speakers’” (adopting the reasoning of Justice Scalia’s dissent in Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 691 (1990), and of Justice Brennan’s dissent in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 784 (1985); Dun & Bradstreet involved state tort law). I’m disappointed that so many state attorneys general, of both parties, are willing to reject this, and to treat “institutional press” speakers as getting more First Amendment protection than other speakers have. And of course their position would have to deal with what Citizens United gave as one of the reasons for its conclusion: “With the advent of the Internet and the decline of print and broadcast media, moreover, the line between the media and others who wish to comment on political and social issues becomes far more blurred.” Is this blog part of “the institutional press”? Or should it get less protection than, say, various Slate or Salon columns, or posts on National Review Online‘s The Corner?

(For a response to the argument that the text and original meaning of the Free Press Clause does offer special protection to the press as an [...]

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The Dale Peterson Ad

I don’t live in Alabama and I’m not a registered Republican. But if I were, this ad would convince me not to vote in the primary for Dale Peterson for Agriculture Commissioner.


Somebody who’s been  a Marine, a cop, and a farmer ought to know elementary gun safety. Yet when Peterson takes out a rifle near the end of the video, he puts his trigger finger inside the trigger guard. I realize that the gun in the commercial is just a prop, and was almost certainly unloaded. However, the Agriculture Commissioner should model good behavior, and the viral ad itself, with over a million views, is a model of unsafe and irresponsible gun handling. Perhaps most of the viewers know better than to handle a gun in the dangerous manner than Peterson does, but at least some viewers won’t know that what Peterson is a violation of gun safety rules; some of them may think that he’s showing the normal way to carry a gun, and some of those viewers might one day attempt to carry a gun the way Peterson does. Accordingly, Peterson’s ad itself increases the possibility of accidents from unsafe handling of firearms. [...]

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Is the Sixth Circuit the New Ninth (At Least in Habeas Cases)?

With today’s decision in Berghuis v. Thompkins the Supreme Court has once again reversed the U.S. Court of Appeals for the Sixth Circuit in a habeas case.  Indeed, this is the fifthsuch reversal this year.  In each case, a panel of the Sixth Circuit granted a prisoner’s habeas corpus petition.  In each case, the Supreme Court reversed.  Three of these decisions were unanimous (Berghuis v. Smith, Smith v. Spisak and Bobby v. Van Hook), one was 6-3 (Renico v. Lett).  Today’s decision was 5-4.  Overall, this means the Circuit could only muster 7 of 45 available votes in support of its decisions.

It’s hardly unheard of for a single circuit to be reversed five or more times in a single term.  The number of cases up for review in any given year is a sufficiently small and unrepresentative sample to preclude drawing any sweeping conclusions.  Still, it is unusual to see a circuit fare so poorly in a single area of the law in a single term, and in such a uniform direction.

The spate of reversals is also notable because the Sixth Circuit has been so divided in habeas cases of late.  As I’ve chronicled over the past several years (see, e.g., here, here and here), the judges on the Sixth Circuit are deeply split over the proper standard of review in habeas cases, particularly when the death penalty is involved.  Indeed, the Circuit released yet another divided panel decisionin a habeas case this morning.   The uniformity of the reversals suggest that one side in the Sixth Circuit’s habeas disputes has the better of the argument, at least under existing law.  If current law is too restrictive on this score — and it may well be — then it [...]

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Sabotage! Or How “Dilbert” Won The War

A friend of mine who works in the intelligence community brought this jewel to my attention.  In January 1944, the Office of Strategic Services created a secret document entitled “Simple Sabotage Field Manual” (available here as a free audio book) to assist operatives in disrupting the Axis war effort.  It contains the expected stuff about starting fires and shorting electrical systems.  But the most enlightening stuff comes at pages 28-31, in a section entitled “General Interference with Organizations and Production.”  There, we learn that our secret weapon against the Nazi war machine was . . . bureaucracy.  Note these ingenious plots:

(a) Organizations and Conferences
(1) Insist on doing everything through “channels.”  Never permit short-cuts to be taken in order to expedite decisions.
* * *
(3) When possible, refer all matters to committees, for “further study and consideration.”  Attempt to make the committees as large as possible–never less than five.
(4) Bring up irrelevant issues as frequently as possible.
(5) Haggle over precise wordings of communications, minutes, resolutions.
(6) Refer back to matters decided upon at the last meeting and attempt to re-open the question of the advisability of that decision.
(7) Advocate “caution.”  Be “reasonable” and urge your fellow-conferees to be “reasonable” and avoid haste which might result in embarrassments or difficulties later on.
(8) Be worried about the propriety of any decision–raise the question of whether such action as is contemplated lies within the jurisdiction of the group or whether it might conflict with the policy of some higher echelon.

More nuggets after the jump.

In other words, the war would have ended a year earlier if we could have just parachuted the Executive Secretariat of some executive agencies behind enemy lines in 1942.  But probably the paperwork wasn’t in order.

I don’t want to oversell [...]

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Interesting SCOTUS Line-Up

Today provided yet another reminder that not every closely divided opinion splits the Supreme Court along ideological lines.  In Carr v. United States, the Supreme Court held, 6-3, that the Sex Offender Registration and Notification Act (SORNA), which requires convicted sex offenders to register with local authorities when they move from one state to another, does not apply to sex offenders whose interstate travel occurred before the Act went into effect. This holding enabled the Court to avoid consideration of whether SORNA’s registration requirement violates the ex post facto clause.  Justice Sotomayor wrote the opinion for the Court, joined by the Chief Justice and Justices Stevens, Kennedy, and Breyer. Justice Scalia concurred in part and in the judgment. Justice Alito dissented, joined by Justices Thomas and Ginsburg.

UPDATE: There’s another interesting line-up in Alabama v. North Carolina, an original jursidiction dispute over an interstate compact.  Justice Scalia wrote for the Court, joined in full by Justices Stevens, Ginsburg, and Justice Kennedy wrote an opinion concurring in part and concurring in the judgment, joined by Justice Sotomayor.  The Chief Justice filed an opinion concurring in part and dissenting in part, joined by Justice Thomas.  And Justice Breyer filed an opinion concurring in part and dissent-ing in part, joined by the Chief. [...]

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Waiting for the Kagan Papers

The Senate Judiciary Committee is waiting for the Clinton Presidential Library to release of over 100,000 of pages from Elena Kagan’s time in the Clinton White House.  According to the AP, the documents will be released “in waves,” and some could be released to the public at the end of this week. The AP also reports that President Obama has yet to assert executive privilege with regard to any of the documents, nor has former President Clinton sought to withhold any materials.

Although few documents are likely to be withheld, that does not mean there will be all that much of interest. Bush White House veteran Tevi Troy, who like Kagan was deputy director of the Domestic Policy Council, doubts the document dump will create many issues for Kagan.  Efforts to turn DPC memos into political issues, on the other hand, could further discourage future White House aides from writing (or typing) their own views on controversial issues. [...]

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