Archive | September, 2012

Sales of Tickets for Jesus Christ Superstar Blocked by Russian City Government reports:

Rock opera Jesus Christ Superstar has been pulled before a performance in the Russian city of Rostov-on-Don following complaints from Orthodox Christians. The believers claim the production is in breach of a controversial new religious offense law…. “In our view the image of Christ presented in the opera is incorrect. If they want to stage a play about the life of the Savior, they should first clear it with the local church authority,” one of the offended believers told Life News….

The religious offense law was drafted in the wake of performance group Pussy Riot’s “punk prayer” in Moscow’s central cathedral earlier this year…. The bill calls for up to three years’ imprisonment for disrespecting religious sensibilities and is currently being discussed in the Duma.

The city’s administration has instructed the local theater to stop selling tickets for the production….

Despite the apparent success of the current attempts to ban the play, the local church does not actually appear to support the complaints….

Though the story says that the claim is that the production violates a new law, at this point it looks like the law is only under consideration (as the story itself acknowledges); the precise basis for the city’s order is thus not clear. The BBC reports that the play had been performed in Russia for decades. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer. [...]

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Muslim Rioters Burn Buddhist Temples and Homes in Bangladesh

The AP reports:

Thousands of Bangladeshi Muslims angry over an alleged derogatory photo of the Islamic holy book Quran on Facebook set fires in at least 10 Buddhist temples and 40 homes near the southern border with Myanmar, authorities said Sunday….

[A police chief] said at least 20 people were injured in the attacks that followed the posting of a Facebook photo of a burned copy of the Quran. The rioters blamed the photo on a local Buddhist boy, though it wasn’t immediately clear if the boy actually posted the photo.

Bangladesh’s popular English-language Daily Star newspaper quoted the boy as saying that the photo was mistakenly tagged on his Facebook profile….

More details from the Daily Star:

Home Minister Mohiuddin Khan Alamgir … promised to rebuild the Buddhist monasteries and temples and compensate the victims whose houses were destroyed.

The minister assured that the miscreants who stirred the violence would be traced and brought to book within 15 days….

Also addressing the rally, Industries Minister Dilip Barua said that in 1971 the country was liberated to establish a secular state. “The unprecedented events in Ramu have tarnished its reputation and our belief in secularism,” he said….

Thanks to Charles Chapman for the pointer. [...]

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The Big Surprise of the New Supreme Court Term

The first Monday in October is tomorrow, and that means the opening of a new Supreme Court Term. A lot of press reports have focused on the many interesting cases that the Court will hear in its first month. But the press reports have not mentioned the biggest surprise so far: With just a few hours to go before the new Term, there hasn’t been a single leak yet. No discussions among the Justices about how they might be leaning in Kiobel. No reports of new summary reversals. No stories of experiences teaching in Europe over the summer. Nothing — nada, zip, zilch. It’s eery. [...]

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Speaking tomorrow

I’ll be speaking tomorrow on same-sex marriage before the student chapter of the Federalist Society at the Lewis and Clark Law School in Portland, Oregon. The event begins at Noon and will last one hour.  The student chapters of OUTLaw and the ACLU are co-sponsoring the speech. [...]

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New Creditor Challenge to the GM Bankruptcy

I hadn’t heard of this until a reader sent me the link:

General Motors GM -1.86% is worried that a little-noticed lawsuit could reopen the books on its massive 2009 federal bailout, a deal touted by President Barack Obama during this year’s election season as one of his chief first-term achievements.

The lawsuit, filed by a trust representing “old” GM’s unsecured creditors, attacks a “lockup agreement” that sent hundreds of millions of dollars to a group of hedge funds to get them to drop their claims against GM’s Nova Scotia unit. The deal helped keep the unit’s parent, GM Canada, out of bankruptcy, but the unsecured creditors trust says it was unfair, and, more importantly, not disclosed properly to a bankruptcy judge.

The trust, which is recovering money for old GM’s unsecured creditors, says the deal was completed after GM’s bankruptcy filing, meaning it should have been reviewed by Judge Robert E. Gerber of the U.S. Bankruptcy Court in Manhattan. If the suit is successful, the deal could be undone, putting “new” GM on the hook for at least $1.3 billion in claims.


The hedge funds, creditors of the Nova Scotia-based GM subsidiary, agreed in June 2009 to waive $1.3 billion in claims in exchange for a $367 million payment. The payment came from GM Canada, which borrowed $450 million from old GM to make that payment. GM, which is vigorously fighting the suit, has said it will prove during the trial that the loan was made before it sought bankruptcy protection and not “backdated” after the fact, as the trust claims.

Judge Gerber has already made it known that the deal at least should have been run by him and that he is worried the entire sale might have to be reopened.

Even if the trial doesn’t come

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Dinesh D’Souza and Obama’s “Anticolonial” Ideology

Gene Healy of the Cato Institute recently wrote a harsh, but I think correct assessment of Dinesh D’Souza’s recent movie 2016, which purports to prove that the origins of Barack Obama’s leftism are to be found in the “anticolonialism” and socialism of his Kenyan father:

“2016” grew out of conservative provocateur Dinesh D’Souza’s 2010 Forbes article, “How Obama Thinks,” which posited that dreams from the president’s Kenyan absentee father motivate everything Obama Jr. does.

“It may seem incredible,” D’Souza wrote, “to suggest that the anticolonial ideology of Barack Obama Sr. is espoused by his son, the President of the United States.”

True enough: That theory wasn’t remotely credible when D’Souza advanced it in Forbes, and it’s even more ludicrous on the silver screen…..

The whole cinematic mess is the mirror image of Left-wing fascination with Skull and Bones, Haliburton and George W. Bush’s alleged Oedipal complex as explanations for the Iraq War. At least Michael Moore’s crackpot documentaries provide a few impish laughs. In “2016,” all the yuks are unintentional.

I wrote a more detailed critique of D’Souza back when he first proposed his theory in 2010. Later, I compared D’Souza’s interpretation of Obama with that of Princeton Professor Cornel West:

Last year, Dinesh D’Souza made waves by claiming that Barack Obama’s left-wing ideology and policies can be explained by his “anti-colonial” attitudes, traceable to his father’s Kenyan background…. This year, Cornel West claims that Obama’s racial background is the key to explaining why the president isn’t left-wing enough. West believes that it’s because Obama mixed-race background led him to have a “certain fear of free black men,” and to be more comfortable with “upper middle-class white and Jewish men who consider themselves very smart.”

Both West and D’Souza err in assuming that there is something unusual

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Did Elizabeth Warren Engage in the Unauthorized Practice of Law?

Legal Insurrection’s William Jacobson has a series of posts alleging that Harvard law professor and Massachusetts Senate candidate Elizabeth Warren engaged in the unauthorized practice of law. At Legal Ethics Forum, John Steele is not convinced. Given the sorts of legal work that many law professors perform in their “spare” time, the underlying legal issues might be of interest, even if the specific UPL rules vary from state to state. [...]

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President Obama Blocks Chinese-Owned Wind-Farm Development

As anticipated in yesterday’s post, today President Obama acted on the pending CFIUS report regarding the Chinese-owned wind-farm developer (Ralls Corp.) and its  four wind-farm projects in Oregon.  The President’s order is noteworthy for being even broader than the two CFIUS orders it supersedes (which are described in my first post).

Such presidential orders are quite rare; a colleague of mine thinks this may be only the second or third such order since 1988.

The President first finds–without additional detail–that Ralls and its affliates and subsidiaries, through their control of the wind-farm projects, “might take action that threatens to impair the national security of the United States.”  The President does not specify how, but the Department of the Treasury issued a press release that provides one possibility, stating that “The wind farm sites are all within or in the vicinity of restricted air space at Naval Weapons Systems Training Facility Boardman.” (As noted here, Ralls relocated one project  at the Navy’s request to avoid that airspace, and Ralls’ lawsuit alleges that after it did so, the Navy recommended that Oregon regulators issue the necessary approvals–although they did emphasize that even the new location “may have negative national security implications”.)  In light of some of the order’s restrictions, I don’t think the proximity of the Naval base is a full explanation of the government’s concerns.

The President’s order then prohibits Ralls’ already-completed acquisition of the four projects and their assets and orders Ralls to divest them within 90 days (with a possible  three-month extension on such terms as CFIUS may require).  Ralls is even required to divest all interests in the projects’ “intellectual property[ and] technology.”  Ralls is given just 14 days to  remove “all items, structures, or other physical objects . . . (including concrete foundations),” from [...]

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[UPDATE: Old News, It Turns Out] “When You Trivialise the Founding Acts of a Religion, When You Touch on Sacred Things,”

“you create an unbearable moral violence which is a danger to our children.” So said lawyer Thierry Massis, apparently in support of a French court decision to ban this ad:

According to the BBC, the complaint was brought by the Catholic Church; the judge agreed, concluding that the ad was “a gratuitous and aggressive act of intrusion on people’s innermost beliefs.” “The authorities in the Italian city of Milan [also] banned the poster last month.”

Thanks to commenter zuch for the pointer.

UPDATE: While I usually check the date lines in stories that people send me, I failed in this instance — it’s a 2005 story, and it turns out the French court decision was later reversed by an appellate court. I couldn’t see any stories about whether the Milan decision had also been reversed. It’s still an interesting incident, but sorry for the error, and thanks to commenter PrometheeFeu for the correction! [...]

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Fifth Circuit Cell-Site Case: Magistrate Judge Smith Responds and Defends His Decision

Although I wasn’t planning to post any more on the Fifth Circuit cell-site case, I happened to notice that Magistrate Judge Smith recently posted a new essay on SSRN that is in significant part a response to my amicus brief and my criticisms of his decision. I thought it only fair to point readers to his paper and explore Smith’s argument in some detail. I’ll then offer my thoughts in response at the end.

In his essay, Standing Up for Mr. Nesbitt, forthcoming in the University of San Francisco Law Review, Smith argues that magistrate judges must “stand up” and protect ordinary citizens from “an increasingly surveillance-happy state” because “Congress and the Supreme Court have yet to do so.” None of the three branches of government are standing up to protect the ordinary citizen, Smith argues. The Executive Branch can’t regulate itself, and Congress has not addressed some important issues effectively. The Supreme Court has failed to step in, too, as it has hardly touched electronic privacy and it has expressed caution about its own role in recent decisions. With all three branches failing to protect the ordinary citizen, Smith argues, magistrate judges must step in and “play goalie for the missing side.” That is, magistrate judges must correct for the failures of the three branches by representing the side of the target of the investigation. He explains:

Almost by default, then, these matters have been left to the lowest limb of the Judicial Branch, the magistrate judge. Unlike the Supreme Court we don’t have the luxury of picking and choosing our cases, waiting until various appellate courts have weighed in with their considered judgment on difficult or novel issues of law. We are on the front lines, grappling hand to hand with the various, novel, and creative

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Now There’s a Photoshop for You

Here’s the photo of Netanyahu’s Iranian bomb / red line image, from his speech today to the UN:

And here’s a version by David Ferguson (Snicker Snack Baby):

Thanks to Powerline and Instapundit for the pointer.

UPDATE: A commenter asked why I thought the cartoon was interesting; I hope that others perceive some of this themselves — a joke isn’t really funny if it has to be explained, and a picture is worth a thousand words — but for those who are curious, my thinking is that this cartoon works well because it packs in so many mutually interacting messages (whether or not intended by the author).

1. First, focusing on Netanyahu, imagine Netanyahu actually displaying this cartoon in the UN, especially with the serious facial expression that he’s wearing. That’s pretty absurd, given the meltdown that it would generate, which is a bit funny by itself.

2. But at the same time, while it’s absurd that Netanyahu would show the cartoon, the cartoon likely captures pretty well (I can’t read Netanyahu’s mind, but it’s a good inference) what Netanyahu is actually thinking. To him Ahmadinejad and much of the rest of Iran’s hardliners are exactly the Turban Bomb Mohammeds that the cartoon depicts.

3. What’s more, deep down inside (or maybe not so deep) Netanyahu and many other Israelis, especially ones on Netanyahu’s side of the political divide, likely secretly wish that someone would indeed go into the UN chamber and show the Turban Bomb Mohammed = Iran cartoon. In a sense, the cartoon is thus a picture of what might be (again, no-one knows, but political cartoons like this aren’t about conveying provable information) Netanyahu’s dream the night before his speech: That he might go into the UN and thumb his nose at his enemies this way. [...]

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Update on Lawsuit Challenging CFIUS Action Blocking Chinese Wind-Farm Development

With my firm’s CFIUS experts, I put together a fuller analysis of the potentially significant CFIUS lawsuit I blogged earlier this month.  For those just tuning in now: the U.S. government’s Committee on Foreign Investment in the United States issued an order that blocked a Chinese-owned developer from proceeding with four wind-farm projects in Oregon; the developer sued, challenging not only the lack of transparency in CFIUS’s procedures and decision making, but also CFIUS’s authority to block  or unwind the transaction.

There have been a few noteworthy developments in the case.  First, just hours before the government was due to file its opposition to Ralls’ motion for a TRO, Ralls withdrew the motion after reaching an agreement with the government that allowed it to resume  preliminary construction at the wind-farm site while the suit is pending; the CFIUS order previously directed Ralls to “cease all [c]onstruction and [o]perations at the site.”  Although correlation does not imply causation, it suggests that the suit has improved Ralls’ position with respect to CFIUS.

Second, although correlation still does not imply causation, the day after the suit was filed, CFIUS sent a report to the President describing its assessment of the risks; by statute, once CFIUS sends such a report, the President has 15 days to  decide whether to take action (e.g., to block or mitigate the transaction).  The deadline runs tomorrow.

Because the  Foreign Investment and National Security Act of 2007 provides that the President’s actions and supporting findings “shall not be subject to judicial review,” there would be a question whether the President’s own actions (if any) would moot the lawsuit.  Ralls has a response (that the suit could continue under the “capable of repetition but evading review” exception to mootness doctrine. as CFIUS reviews each transaction in the first [...]

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“Anything You Can Do, I Can Do Meta”

Cuellar de Osorio v. Mayorkas (9th Cir. Sept. 26, 2012) (en banc) (Smith, Milan, dissenting) notes a circuit split about the significance of circuit splits:

[I]t is worth noting that there is currently a circuit split over whether the existence of a circuit split is evidence of statutory ambiguity [for purposes of deciding whether to apply Chevron deference]. Compare Snell Island SNF LLC v. NLRB, 568 F.3d 410, 419-20 (2d Cir. 2009) (evidence), vacated on other grounds, 130 S. Ct. 3498 (2010), McCreary v. Offner, 172 F.3d 76, 82-83 (D.C. Cir. 1999) (same), and In re S. Star Foods, Inc., 144 F.3d 712, 715 (10th Cir. 1998) (same), with Allapattah Servs., Inc. v. Exxon Corp., 333 F.3d 1248, 1254 n.4 (11th Cir. 2003) (not evidence), aff’d, 545 U.S. 546 (2005), and Rosmer v. Pfizer Inc., 263 F.3d 110, 118 (4th Cir. 2001) (same).

Thanks to Fred Norton for the pointer. [...]

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Insane Clown Posse Sues FBI

The noted “horror core” hip hop duo, Insane Clown Posse, has filed suit against the Federal Bureau of Investigation. The FBI apparently labeled ICP fans, known as “Juggalos,” as a “loosely-organized hybrid gang,” to which ICP has taken offense. ICP tried to get the FBI to explain itself, and filed a FOIA request for information that would justify the designation, but the FBI was not forthcoming. So now ICP is suing. Bang! Pow! Boom! [...]

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