All for a simple doughnut.

With one sentence, this writer for Fortune Magazine reveals that he understands nothing about Krispy Kreme Doughnuts. His ignorance destroys his credibility.
- posted by Tom Sawyer @ 4:51 PM 0 comments

 

Former Vermont governor Howard Dean (D) announced yesterday that he has raised more than $6 million in the second quarter of this year, an achievement many of his competitors privately conceded will add new credibility to his insurgent bid for the Democratic presidential nomination.

The best news I've heard in a while. Reagan-Mondale, anyone?
- posted by Tom Sawyer @ 10:17 AM 0 comments

 
Justice Thomas points out that the law stuck down in Lawrence v. Texas is, or rather was, like the law in Griswold v. Connecticut, an uncommonly silly law. But, he also disagrees with the majority that the law is irrational. How much space is there between "irrational" and "uncommonly silly"?
- posted by Tom Sawyer @ 6:12 PM 0 comments

 
This is a complicated issue, but I think Jon has it exactly right when he says that there is a silver lining to the Court's affirmative action decision. I'd go so far as to say that as a matter of separation of powers theory (as opposed to more traditional, and less theoretical, doctrinal decisionmaking) the Court got it exactly right. We're better off, in my view, letting the political process work out these emotional public policy issues than we are having the Court take them off the table. I want to think and write about this some more, but, that general belief is why my inital reaction is that the Court was absolutely right in Grutter v. Bollinger, and was absolutely wrong in Lawrence v. Texas, even though, as a policy matter, I think sodomy laws are horrendous, and affirmative action is of questionable value.

Its this area of constitutional decision making - where the Court decides that no one can regulate a subject - that makes me uncomfortable. The Court's federalism decisions, on the other hand, though important, are much less troubling. Those decisions only say who can regulate an issue. They don't keep the people from governing themselves.

How's that for a fat target for you guys?
- posted by Tom Sawyer @ 5:54 PM 0 comments

 
Ok, I'm back from training, where I've been for the last two weeks and, whether you like it or not, I'm ready to start blogging again.

As an aside, I was reminded today of my return to college after Christmas break my freshman year, when, after escaping pledge training for a month, I had forgotten how miserable it made me. As soon as I stepped foot back into the fraternity house that January, all those feelings came rushing back at once. It almost made me vomit in the doorway.

I felt the same way walking into the office today. Ugh. At least there are some interesting Supreme Court opinions to blog about.
- posted by Tom Sawyer @ 12:07 PM 0 comments

 
In the wake of Grutter, I have read some very interesting commentary about Justice Thomas's dissent - particularly, the speculation about Justice Scalia's decision to join "Parts I-VII" of the seven part opinion. At least two critics (I apologize, but I have read so much that I cannot find them or remember who they were) debated whether Thomas's Frederick Douglass quote or Declaration of Independence citation had anyhing to do with Scalia's decision. The implication - with respect to the Douglass quote - being that Thomas's words were "uniquely his" - I guess because he and Frederick Douglass are both black. (The Declaration of Independence argument seemed more persuasive to me, given Scalia's prior treatment of that document.)

Anyway, the thing that bothers me about this is that Thomas's use of the Douglass quote has been attributed to his being black - not his style, his interest in history or the fact that the quote fit perfectly with his opinion. (See, for example, this abhorrent article written by Maureen Dowd in yesterday's NYT. I guess the chance to take a jab at Thomas was worth writing a racist article and jettisoning a likely history of undying support for affirmative action.) This seems pretty presumptuous to me. After reading Jonathan's post and Bakke's treatment of the 14th Amendment/political compromise issue and thinking more about it, I had this thought: Could Thomas's use of the Douglass quote (incidentally, from 140 years ago) have been a tacit way to lend support to the idea that one should not assume that the Framers of the 14th Amendment - or at least their contemporaries - were only concerned with providing a special protection for ex-slaves? (Okay, maybe that's a stretch. At least the quote - roughly contemporaneous with the 14th - could reflect Thomas's interest in historical context.)

Just a thought. At least that makes the use of the quote "uniquely Thomas's" not because he and Douglass happen to be of the same race, but because of Thomas's interest in original understanding - a more palatable proposition in my mind.
- posted by Anonymous @ 6:58 PM 0 comments

 
CBS's Early Show featured First Lady Laura Bush reading to a group of children this morning to promote her Early Readers Club. It was pretty cool to see, but I thought of a scene that would have made it a lot more fun to watch. Imagine Mrs. Bush starting off with "Okay, boys and girls, when we left off last time, Hillary - the book's narrator and protagonist - had just found out along with the rest of the nation that her husband, Bill, had been unfaithful to her with a woman almost as young as their daughter. Let's see what happens next . . . "
- posted by Anonymous @ 12:41 PM 0 comments

 
Court's Decision on Affirmative Action at Michigan Law

Silver lining or just grasping at straws? Although O'Connor came in with yet another of her famous split-the-baby decisions that solves nothing, perhaps that is OK. There is a theory that I remember from law school (perhaps those of you more familiar with this stuff can confirm it) that the wording of the 14th Amendment is a historical compromise and that the intent of the amendment was to protect black people from discrimination at the hands of states. Clearly after the Civil War this was necessary. The fact that the 14th Amendment broadly prohibits discrimination based on race in general was necessary because they could not have passed an amendment that explicitly said what it was meant to do. Thus, white people or any other group were not meant to have the benefits of the 14th Amendment. Therefore, current efforts to make a constitutional issue out of affirmative action are routed in wording that was a political compromise at the time. Of course, many laws are political compromises and I firmly believe in taking the law as written.

But I also believe that we try to make the constitution do far too much work. Affirmative action, at the end of the day, is a public policy debate. California outlawed it and the court's decision does nothing to change that. Any state can take such action. So O'Connor's decision puts this decision in the political sphere and I don't have a real problem with that result at least. What I am saying here is that this is not a "Roe" decision that takes a hotly contested issue out of the political debate and makes the court the epicenter of the debate for decades to come. Maybe that is a bright side?


- posted by Anonymous @ 9:20 AM 0 comments

 
Great news for Winston-Salem, North Carolina based Krispy Kreme Doughnuts (and all of our friends Down Under):Krispy Kreme opens Australian store.
- posted by Anonymous @ 4:39 PM 0 comments

 
At the risk of setting bad a precedent for this blog's "subject matter jurisdiction," I have to make a comment on pop culture. Raleigh, North Carolina is still outraged about Clay Aiken's "American Idol" loss to Ruben Studdard. People here have called for re-counts and investigations with a tenacity that rivals Jesse Jackson's post-2000 Presidental election stunts. Although, I confess, I have never watched American Idol, I have followed the frontpage - no joke - Raleigh News & Observer stories covering this "issue." In all of the news stories and op-ed pieces published, however, I never once learned this interesting fact about Aiken reported by the Associated Press in this CNN article about Aiken's recent interview with Rolling Stone magazine :

Aiken told the magazine that he doesn't believe in premarital sex and never curses. He also discusses his father, from whom he is estranged. "If I have anything good to say about him, it's that I think I learned to be who I am by being everything he wasn't," he said. "Part of the reason I don't smoke is that he did. He drank, and I don't. He's a racist, and I'm not. I don't want anything to do with any of that."

While it has been easy for me to just laugh at this guy that I always assumed was just another entertainment industry pansy, I do have a new-found respect for him.
- posted by Anonymous @ 11:24 AM 0 comments

 
This review of Eugene Volokh's recent book, "Academic Legal Writing: Law Review Articles, Student Notes, and Seminar Papers" - incidentally, from my Constitutional Law professor at www.isthatlegal.org - sounds great. (The review is the 9:52 a.m. post on 6/18/03. I couldn't figure out how to link to the individual post, itself.) I wish the book were around when I struggled through some tough times with student notes.
- posted by Anonymous @ 2:12 AM 0 comments

 
Litigators, huh? At a training session today we dicussed deposition techniques - depositions allow lawyers to interview important witnesses under oath but before the trail begins. It quickly degenerated into story-time, including this story, held up as an instructive example.

The teacher talked about her deposition of a plaintiff who was bringing suit against the United States because she'd been fired. She claimed her life had fallen apart, including a divorce due to her husband's drinking. The lawyer soon discovered that this woman had been in a long term abusive relationship, where she was beaten on a weekly basis, sometimes severely, both before and after she was fired. The moral of the story, says the instructor - be thorough, you never know when you'll get great stuff like that to destroy your opponents case. That witness, the instructor bragged, barely got any money. She gave no hint, not even an aside, about this woman's plight. Her abuse was unambiguously presented as a great development. I mean, otherwise, the instructor would have lost the case. Duh. Then there was video tapes of upset, angry, crying deponents. These were met with laughter and derision from the instructors and class participants alike.

The moral of my story? Litigators have no morals.
- posted by Tom Sawyer @ 11:23 AM 0 comments

 
Lance wins. Next stop: a 5th consecutive Tour de France.
- posted by Tom Sawyer @ 9:08 AM 0 comments

 
Watched the Christopher Guest mockumentary last night. The movie, titled A Mighty Wind, is not quite as funny as This is Spinal Tap, but only because the folk music scene, which this movie satirizes, has less of the combination of narcissism and absudity that made heavy metal music, really, the perfect mockumentary target. If you've seen a mockumentary, you know about what to expect, if not, here is the final verse to the title cut, a Might Wind:

A mighty wind is blowing
Blowing equality
A mighty wind is blowing
Blowing you and me!

- posted by Tom Sawyer @ 10:19 AM 2 comments

 
LOCATION, LOCATION, LOCATION: Perhaps I'm a federal court snob, but it makes me very suspicious that the Big East has filed suit against the ACC in state court. There are clearly citizens of different states involved, and the attorneys for the Big East, Skadden, Arps, a New York Death Star firm, generally prefer federal court. I wonder why they made that tatical decision, and whether it had anything to do with letting a Connecticut judge decide whether the University of Connecticut's conference should win the lawsuit.
- posted by Tom Sawyer @ 3:00 PM 0 comments

 
More cycling, anti-french news. In the Dauphine race I've been talking about, the French cyclists decided to protest the new helmet rule in pro cycling. The rule, which requies pro riders to wear helmets at all times, except within the final kilometers of a mountain top finish, was put in place in May after a well known cyclist, Adrei Kivilev, died in a crash. Kivilev was using both hands to adjust his radio earpiece when he rubbed tires with another rider, flipped over his handlebars, and died. Here's what American Tyler Hamilton had to say about the French protest.

So today, all the French riders took off their helmets to make a statement. I have to admit, I'm all for freedom of expression and protesting what you don't agree with. But, I think today's message from the French riders was derailed when one of them collided with a motorcycle on the race course and had to be rushed to the hospital. Luckily, he's okay. But the accident certainly won't help them defend their case down the road.

What's French for "morons"?
- posted by Tom Sawyer @ 1:36 PM 0 comments

 
This Martha Stuart case illuminates one of things necessary to be a really good prosecutor: You have to KNOW that the defendant did it, even before you have any evidence. In a prosecutor's world, there is really no finding out they didn't do it. There is only not finding enough evidence to convict them of doing what you know they did. Every protestation of innocence is merely proof that the defendant is a cold-blooded liar, every failure to find documents merely proves the defendant is hiding them or destroying them, and every excuplatory witness is in on the deal.

This isn't a criticism. To be effective, a prosecutor has to be this way. The sad fact is that there are a lot of defendants who are cold blooded liars that destroy documents, and a lot of witnesses who have something to gain. If you aren't cynical, you'll never convict anyone who can walk and chew gum at the same time. Instead of changing that attitude among prosecutors, we count on a larger system to ensure the right results. That's why we separate executive and judicial functions, have grand juries (for whatever they are worth, which is not much), allow defense lawyers, and give prosecutors elected bosses.

In Martha's case, it looks like the last of those methods has failed; the elected bosses seem to have an incentive to "make an example of Martha" (query whether prosecuting someone becasue they are famous is an example we want to set). So, Martha's got to count on the other parts of the system to save her, because the prosecutors - they're SURE she is guilty of insider trading and should go to jail, but, since they can't get her on that, they'll do what they can.
- posted by Tom Sawyer @ 11:27 AM 0 comments

 
Tom Watson comes in with a 65 to tie for the lead on Thursday at the U.S. Open. OK -- Maybe Thursdays aren't always lame.
- posted by Anonymous @ 7:51 AM 0 comments

 
This is why I have lost all respect for the Discovery Channel.
- posted by Anonymous @ 8:45 PM 0 comments

 
Bret Quigley is leading the US Open. Who the hell is that? I hate Thursdays at major championships!


- posted by Anonymous @ 6:19 PM 0 comments

 
Safire's column on Martha Stewart today gets it just about right. In brief:

"It twists a protestation of innocence into "lying to investors."
Last summer, a week after Waksal had been arrested for fraud, Stewart — who had been subject to a series of gleeful leaks about her impending doom — dared to tell an investors' conference that her sale of stock was perfectly legal and that she was cooperating with investigators. She also proclaimed her innocence in some detail to The Wall Street Journal.
That, charges the government, was a crime. Although common sense suggests that mounting a public defense was the natural thing to do for a person being anonymously smeared, the prosecutor reads a sinister motive into her speaking out: she was not trying to salvage her personal reputation, but was instead pumping up the price of the stock of the company that bears her name."


- posted by Anonymous @ 6:07 PM 0 comments

 
Few things make me appreciate the civil liberties we enjoy in this country more than a survey of what goes on in the rest of the World. This article reports that a panel of 15 Egyptian censors have decided to ban The Matrix Reloaded. Why, you ask? The censorship committe explains that

[d]espite the high technology and fabulous effects of the movie, it explicitly handles the issue of existence and creation, which are related to the three divine religions.

Existence and creation, huh? I don't know what y'all think, but I reckon that casts a mighty broad net.
- posted by Anonymous @ 5:19 PM 0 comments

 
Here is some encouraging news from the BBC:

"Israeli army radio has been reporting that the forces are now under orders to "completely wipe out" Hamas.
The radio said everyone from the lowliest member to Sheikh Ahmad Yassin - the crippled spiritual guide of Hamas - was a target."

I am growing to believe that we can only expect a Carthaginian peace in this conflict.



- posted by Anonymous @ 5:15 PM 0 comments

 
Here is part of a news report from AFP for what appears to be the imminent collapse of the latest roadmap to peace in the middle east:

"Palestinian medical sources said more than 30 other people were wounded in the fifth Israeli helicopter raid in Gaza in three days, including an attempt Tuesday to kill a senior Hamas political leader that sparked a new cycle of bloodshed."

This is the third time I have heard the Israeli botched helicopter attack on this guy described as the spark to the "new" violence. Someone please correct me if I am wrong, but wasn't the helicopter attack a direct response to the combined attack by members of Hamas, Hezbollah and Al-Aqsa against an Israel military checkpoint that killed two Israeli soldiers. If I am right about this sequence of events this report is not just shading of the news but is an outright lie. Brian Williams reported the same drivel last night.
- posted by Anonymous @ 5:10 PM 0 comments

 
As Sawyer has brought the sports world into the blog here is the U.S. Open update. Montgomery is tied for the lead which would disgust me if I were not confident of his implosion sometime around 3:00PM on Saturday. Tiger went to +1 but has scrambled back to -1. If he is within three strokes of the lead going into Saturday, count on an a repeat by Mr. Woods. Another notable is Justin Leonard doing the University of Texas proud at -2. The rest at the top of the leader board are your typical Thursday darlings. I expect them to crumble even before Monty.

- posted by Anonymous @ 1:07 PM 0 comments

 
From today's story in the NYT about the U.S. stationing port inspectors in Arab countries:

"Human cargo is also a concern. In October 2001, only weeks after the Sept. 11 attacks, the authorities in an Italian seaport discovered an Egyptian man suspected of Qaeda membership hiding in a shipping container bound for Halifax, Nova Scotia; airport maps and security passes were also found in the container, which he had outfitted with a bed and bathroom. The man disappeared while on bail." (EMPHASIS IS MINE)

I remember that story. What I DID NOT remember was that the Italian authorities LET THIS GUY OUT ON BAIL. In the words of John McEnroe "You CANNOT be serious!"


- posted by Anonymous @ 12:58 PM 0 comments

 
Lance takes the lead in the Dauhpine

As if there was ever any doubt. Of course, just in case there was any, Lance Armstrong made a point of reminding the cycling world that he's the alpha male of the pack

There are still 4 days left, so its not over, but things look good. Tomorrow's long stage with two big climbs will show us more.
- posted by Tom Sawyer @ 11:57 AM 0 comments

 
NYU Law Professor Stephen Gillers suggests nominating commissions as a way out of the judicial confirmation wars. I'm skeptical, but am going to think about it before I pop off.
- posted by Tom Sawyer @ 1:58 PM 0 comments

 
Am I obsessed? My third post about Mrs. Clinton in two days, but when the New York Times gives this review to a leading liberal politician, its got to be bad.

Overall the book has the overprocessed taste of a stump speech, the calculated polish of a string of anecdotes to be delivered on a television chat show.

- posted by Tom Sawyer @ 10:14 AM 0 comments

 
A new law student blog,Three Years of Hell to Become the Devil, has it completely wrong. Bless his heart, if he thinks law school is bad, wait until he's a lawyer.
- posted by Tom Sawyer @ 10:04 AM 0 comments

 
Not at all sure what this is about.

'Disgusting' tampon ad prompts glut of complaints

A presenter called Sandy demonstrates the benefits of Lil-lets' new extra comfort range to co-host Mervin.
To her surprise, Mervin takes to the subject with unexpected enthusiasm, even volunteering - rather bafflingly - to test the Lil-lets himself.

- posted by Tom Sawyer @ 9:51 AM 0 comments

 
I would have loved to hear a tape recording of this exchange:

Amtrak spokesman Dan Stessel said the man brandished what he said was a grenade and asked for $20.
But the clerk, according to accounts, apparently did not believe that the grenade was a live weapon and refused to comply.
According to accounts provided by Amtrak, the man left the store empty-handed.

The dude is clearly not right in the head. I mean, $20 will barely buy you dinner in DC.
- posted by Tom Sawyer @ 9:46 AM 0 comments

 
I think the Serena Williams situation, although terribly unfortunate for clearly the best women's tennis player in the world, was a helpful display to the world of what we are dealing with in the French. The hatred is of the sort that only an arrogant impotent wretch can feel. There is no hatred like that spawned of jealousy and pangs of inferiority. Lance better watch his back. He already has to deal with the preposterous accusations of doping everytime he goes over there and wips the Europeans at their own sport on their own turf. I would be saddened, but not surprised, to see someone jump out of a crowd and cause him problems.


- posted by Anonymous @ 3:00 PM 0 comments

 
Here's what happened to me at about 10 p.m. Saturday night. Walking home from the subway, I pass a seemingly well dressed woman walking gingerly down the center of the street. She murmurs, half to herself, "I don't really know where I'm going." As I walk past her, she stops, and shouts venomously, "What the fuck is wrong with you that you won't stop and give directions."

Aside from raising the obvious retort, "Well, you didn't ask me for directions," that story nicely illustrates two things I don't like about city living. First, it makes you the kind of person that ignores old ladies who seem lost in the middle of the night. As I walked past this woman Saturday night, that thought flashed through my head. The second, and even sadder thing this event shows you about city living is that you are right to be the kind of person that ignores old ladies who seem lost, because, more likely than not, they are not lost little old ladies, but are instead foul-mouthed hags looking to con you out of $20.

I need a vacation.
- posted by Tom Sawyer @ 2:40 PM 0 comments

 
The Dauphine Libere started Sunday with a time trial, where Lance Armstrong finished 3d, 11 seconds back. The Dauphine Libere is a cycling race considered by most to be the final tuneup for the Tour de France. With how angry the French have been making me lately, most recently by booing Serena Williams, I hope Lance wins the Tour by two hours. As a result, I'm hoping he'll do well in the Dauhpine.
- posted by Tom Sawyer @ 9:45 AM 0 comments

 
From The Washington Post

Barbara Walters came away from [the interview] looking better than Hillary Rodham Clinton, the celebrated interviewee.
By "better," I think what I mean is "more recognizably human."

Ouch.
- posted by Tom Sawyer @ 9:13 AM 0 comments

 
Hilliary Clinton is considering a run for President in 2008, in part because she is very popular with the Democratic base. I'm doubtful she'd make a good candidate in the general election, though, because so many people have an unfavorable impression of her. This poll by Foxnews estimates that 47% of Americans have an unfavorable impression of her. That's a lot to overcome.
- posted by Tom Sawyer @ 1:42 PM 0 comments

 
I am currently reading Bush at War, which is far from a great book, but which clearly discusses some great events. This morning on the subway, I read the portion describing Bush's first visit to Ground Zero. Woodward reports that as Bush walked through the crowd, there were intensly personal outpourings of emotion, like when a worker pointed at the President and said, "Don't let me down." The President then climbed up on a firetruck with a bullhorn to speak to the crowd, without any prepared remarks, or even a proper platform or PA system. After several false starts, with the crowd shouting out that the bullhorn wasn't loud enough for them to hear the him, the President paused, and shouted back "I can hear you. The rest of the world hears you. And the people who knocked down these buildings will hear from all of us soon." I really did start to tear up on the subway.
- posted by Tom Sawyer @ 11:27 AM 0 comments

 
A fun time for the ACC

[U]nless the Hurricanes, and their president Donna Shalala, pull the surprise of the spring and keep the Big East together, look for change in the ACC. Twelve teams. Two divisions. A football championship game. May as well get used to it.

Damn it. I think that's right.
- posted by Tom Sawyer @ 10:09 AM 0 comments

 
Daniel W. Drezner

GALACTICALLY STUPID DISTORTION AT THE GUARDIAN

This is really, REALLY, REALLY outrageous. Please check it out.
- posted by Tom Sawyer @ 10:06 AM 0 comments

 
Because I generally don't like folks who win too much, it took the French's obnoxious behavior at the French Open yesterday to turn me on to Serena Williams:

Williams made one last grasp for the crowd's affection as she walked off the court, waving to the stands, but she was met by another round of boos.

But, after seeing how she dealt with their booing, I've become a big fan. I especially hope that Serena wins the next 15 French Opens.
- posted by Tom Sawyer @ 9:49 AM 0 comments

 
Cool. We're on a blogmap: D.C. Metro Blog Map See Union Station.
- posted by Tom Sawyer @ 3:52 PM 0 comments

 

The New York Times is reporting on the resignation of Howell Raines, the Executive Editor of the New York Times, here. The new Executive Editor is the old Executive Editor, Joseph Lelyveld, who promoted to reporter the guy whose sloppy reporting caused this resignation. Got that?

I know the Blair fiasco got Raines fired, but does this mean the leftward drift of the Times will stop, or will it continue unabated? I have no idea, but I bet the blogosphere will have something to say about that soon.
- posted by Tom Sawyer @ 3:42 PM 0 comments

 
I have decided to go anonymous. With the people flocking to the site, blogging under my real name creates many different problems - not least of all, the legions of adoring fans constantly stopping me on the street for autographs. Its getting embarrassing. In keeping with the theme of the blog, I'll be Tom Sawyer from now on. To keep from confusing me with our the other co-blogger, Tom, I'd ask my co-bloggers to just refer to me as Sawyer. Pretty sneaky, huh?
- posted by Tom Sawyer @ 3:19 PM 0 comments

 
Sawyer should write a brief letter to Mr. Kilpatrick on the issue. The guys over at Human Events are often knee-jerk reactionaries. The Requist court has done great work in getting a handle on the overuse of the commerce clause and reestablishment of sovereign immunity. But that little thing called article V of the 14th Amendment simply cannot be sidestepped. Correct me if I am wrong but nobody has ever really challenged the essential holding of Katzenback v. Morgan (I might not even have that case name right), that Congress can broadly legislative to rectify discrimination when they have done the leg work to find that widespread discrimination is actually happening. Kilpatrick should be made aware of this before Human Events begins to treaty Renquist as some apostate.

One question is this case, however, is the extent to which Renquist went out of the congressional record in finding the prevelance of discrimination. My understanding is that Scalia took him to task for this. Any views on this would be welcome.


- posted by Anonymous @ 11:44 AM 0 comments

 
Randy Barnett has just joined The Volokh Conspiracy. He'll make a good site even better, I'm sure.
- posted by Tom Sawyer @ 11:38 AM 0 comments

 

This article, What Got into Rehnquist?, by James Kilpatrick, demonstrates the gulf between lawyers and non-lawyers when discussing the decisions of the Supreme Court. Kilpatrick thinks Rehnquist's opinion in Nevada v. Hibbs was inconsistent with his opinions in Garret, Kimmel, and Seminole Tribe. That may well be true, but not for the reasons Kilpatrick mentions.

There are two big things Kilpatrick ignores. First, he argues that sex discrimination, the basis for Rehnquist's decision, had nothing to do with William Hibbs, the plaintiff, because Hibbs just wanted time off to care for his wife, and "sexual discrimination was never an element in the case." Thing is, Mr. Kilpatrick, its was the constitutionality of the law that was at issue, not the constitutionality of Hibbs's desire to care for his wife. The law, the Family and Medical Leave Act, was justified as a way to remove sex discrimination.

Second, Kilpatrick gives the impression that Rehnquist had been consistently holding that Congress can NEVER abrogate soverign immunity, then made a 180 in this case. That's just not true. Congress has always had the power to abrogate state soverign immunity in some cases. True, recent decisions have stopped Congress from abrogating the 11th Amendment with its commerce clause power (see Seminole Tribe), but Congress always could and still can abrogate it under its 14th Amendment powers (see the Civil Rights Act of 1964, to name one example). There is no excuse for making such a clear error. I mean, at least talk to a lawyer before you write this.
- posted by Tom Sawyer @ 11:08 AM 0 comments

 

Jon's post got me a little more interested in this Martha Stuart businsess. After reading his post I was ready to do my Law and Order rant, when I scream at the criminal who is being investigated, "DON'T SAY THAT, YOU IDIOT!!! GET YOUR LAWYER IN THERE!" However, after looking at the indictment, it looks like Martha was smarter than most of the Law and Order perps. She got a lawyer, and brought him with her to her interview. Problem is, the guy just sat there as Martha lied herself into deeper and deeper trouble.

Now, my limited experience in criminal law indicates that Martha, like most suspects, and even most defendants, lied to her lawyer as well. But, in this situation, her lawyer could have prevented it. If Jon's right about the securities law here (which I'm sure he is), her lawyer should have given her a speech that went something like this:

Martha, I hear what you've said, now let me describe the legal landscape here. If you did insider trading, the consequences are not very grave. You'll probably not get convicted because they can't prove that you KNEW the information was confidential inside information. And, even if you do get convicted, you'll only have to disgorge your profits of $45,000. That, Martha, is about what you make while you drink your morning cup of coffee, and less than it will cost me to represent you in a criminal case. I mention a criminal case to you because, if you lie, these guys can put you in jail for false statements and obstruction of justice, even if they can't prove you broke the law, and even if you didn't break the law. Jail, Martha, as in where you'll need a pen pal to keep up your self esteem. Now, is it possible that there is something you forgot to tell me?"

Seems like any reasonable person would, at that point, say, ok, ok, the gig is up, thus avoiding this whole mess.
- posted by Tom Sawyer @ 10:08 AM 0 comments

 
Overcoming my initial inclination to shadenfreude I have to weigh in as rather disgusted withthe current situation with Martha Stewart. Let's see here. The government begins an investigation into her for insider trading because her broker told her that the head of imclone was trying to dump his stock. (OK -- Broker is now in BIG trouble (job gone, license gone, etc). But what about Martha? All she was alleged to have known was that Waksal was dumping his stock -- not why. Any reasonable securities lawyer should have told her to simply tell the feds just what happened. No way is she going down for insider trading on those facts. Forget about "tippee" liability. The tippee has to KNOW the information was confidential inside information AND that it was provided to them in violation of a duty by the person who provided it. Now Martha might have known her broker should not have told her about Waksal's stock dealings, but knowing that the stock trades of Waksal was confidential information is very sketchy.

So Feds realize they have no insider trading case. But what they do have is somebody who got skittish in the face of a federal investigation in a climate where the feds are looking for scalps under a theory of law (insider trading) that has been aggresively expanded by the SEC with complacent courts going along for the ride. They look at everything she said and decide that she must have lied to them about a charge they could never make stick in the first place. What a wonderful way to do business for the government. I predict an acquital and I hope she fights like hell.


- posted by Anonymous @ 9:24 AM 0 comments

 
In response to Sawyer's post (and in the [paraphrased] words of Lynyrd Skynyrd):

I heard the Surgeon General talk about us.
Yeah, I heard Carmona put us down.
Well I hope Carmona will remember,
a Southern Man don't need him around, anyhow.
- posted by Anonymous @ 3:20 PM 0 comments

 
This, reports the Washington Post is the position of the U.S. Surgeon General:

"If Congress chose to go that way, that would be up to them," he said. "But I see no need for any tobacco products in society."

It is not, apparently, the position of the Bush administration, but still, wow!
- posted by Tom Sawyer @ 2:29 PM 0 comments

 

What Bush doesn't have is contempt for the average American's intelligence, as the intellectual bullies seem to. Their language may be fortified with concern for the ordinary among us, but it's phony--a paternal concern, not a fraternal one; they're sure they know better what's best for us. And that, ultimately, is what they dislike most about the president. It's not so much that he's stupid. It's that he doesn't think we are.

I can't say I agree with everything in this article; I wish the author had avoided the attacks (which make him seem unreasonable), and he seems to agree, at least in part, that the President isn't very bright. But, the article has a lot of truth in it. A LOT.
- posted by Tom Sawyer @ 11:37 AM 0 comments

 
Sammy Sosa, caught using a corked bat. Com' on, Sammy. You already hit it 700 feet. Why do you want to hit it 800?
- posted by Tom Sawyer @ 9:18 AM 0 comments

 
Skinny Joey Merlino is at it again, trying to get his RICO conviction overturned. That despite the fine, fine opinion rejecting his attempts to do so on direct appeal, which, apparently has been appealed to the Supreme Court. I hope they take it.
- posted by Tom Sawyer @ 4:59 PM 0 comments

 
The narrator, John Lewis, is watching some young women play tennis, and decides to examine himself on an important question:

"Why did I like women's breasts so much? I was clear on why I liked them, thanks, but why did I like them so much?"

Although this quote is from another of his books, humor like that is spread throughout Kingsley Amis's most famous novel Lucky Jim, which I, along with Christopher Hitchens (who is the source of the above lines), think might well be the funniest book in English. I highly recommend it. It really is laugh out loud funny.
- posted by Tom Sawyer @ 10:05 AM 0 comments

 
If you had any doubt that the Nation wasn't worth reading, the title to this recent article about the Guantanamo Bay detainees, Bush's Death Camp, should do the trick.
- posted by Tom Sawyer @ 9:43 AM 0 comments

 
The New Republic, in a short article titled PAUL WOLFOWITZ, NOT EXACTLY COMING CLEAN, accuses the Deputy Secretary of Defense of "a classic Washington gaffe -- that is, accidentally saying what he really means." The statement they claim went too far was this one:

The truth is that for reasons that have a lot to do with the U.S. government bureaucracy we settled on the one issue that everyone could agree on which was weapons of mass destruction as the core reason [for invading Iraq.]

The New Republic contends this is a problem because it "implies that the administration's hawks had their man, and were groping for a crime to pin on him." Look for yourself exactly what Wolfowitz said in the article; he implies nothing of the sort. Instead, he "implies" that there were lots of good reasons to go after Saddam, but WMD, for "bureaucratic reasons" (I suspect he means political reasons, but maybe not) was the most resonant, so that's what the administration pushed. I have no problem with that sort of decision making by the administration. They had several good reasons to act, they discussed all of them with the public, but pushed the most resonant. I would feel differently if WMD was a bad reason and if they didn't discuss the other, real, reasons for the attack, but since Wolfowitz implies nothing like that, he, and the administration, are coming clean enough for me.

- posted by Tom Sawyer @ 9:38 AM 0 comments

 

"We talk about him every time we come up here," said Taylor, 36. "The legend of Eric Rudolph... ."

Shamefully, that quote fromthis article sort of summed up my attidude about Eric Rudolph, the alleged Olympic bomber. All I really knew about him was that he disappeared into the North Carolina Mountains where 200 FBI agents couldn't find him. Now that've I've learned more about him and his incredibly outrageous views I realize he's a despicable human being. Assuming these news reports are right, he deserves the same punishment as an Al-Qaeda terrorist.
- posted by Tom Sawyer @ 9:14 AM 0 comments