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Military Lawyers as Lawyers Jack Ayer Heaven know there has been a good deal of clucking over the use of military tribunals to try Guantanamo detainees. Last week, some criticism came from an unusal source. Two military lawyers, assigned to represent prisoners in tribunal cases, charged that the system "is fundamentallyunfair and hoepelessly antiquated." Per Reuters, the two said they were "concerned with virtuallyevery aspect of the military commjission process." A skim of Google News suggests that this is yet another story that seems to have got more buzz outside the United States than at home (or is this a function of the Reuters distribution list? Or of Google News search algorithms?). There was a passing mention in a New York Times story last week. At this point it is just lawyer talk. And one is bound to entertain some skepticism about the determination of a career military lawyer to take on the system root and branch. Still, it is hard to think of anybody better positioned to raise a rukus about the issue. 11:58 PM | | link to this post | what's new in Law Reporting | go to JURIST Setting the Agenda Jack Ayer Back when I was still writing my newspaper stories with obsidian chips on sandstone, I spent some time in the company of an eccentric but highly imaginative one-term congressman (also a former mayor) named Charlie Farnsley. Charlie would rant on about the power of the press. I would deny that we could make anything happen. Charlie said: "no, you can't make anything happen, but you can set the agenda." I wonder what Charlie would the newest great agenda-setting tool: the internet. Here's an example. On February 9, Reuters reported "In the annual Economic Report of the President, the White House said the number of workers on U.S. non-farm payrolls was likely to rise to an average of 132.7 million this year from a 2003 average it thought would come in at 130.1 million." Or so it is quoted by Brad DeLong in his remarkable weblog, where Brad holds forth on macro policy, the crimes and follies of the Bush administration, clever kid trix and the like. With his customary restraint, DeLong asked: "Why or Why are we Ruled by These Idiots?" He pointed out that the number implied an average increase of 320,000 per month, wildly inconsistent with anything that the economy has generated lately. Long has returned to the topic several times since. See, e.g., here and here and here. Within a day, DeLong's name had crept into a Q&A with a Washington Post reporter. From there on, it snowballed. On February 18, poor Scott McClellan, the President's beleagueredgured press secretary, took a batch of incoming from the press corps at a daily briefing. About the same time, the President himself started backing away from the number. CBS called it "fuzzy math" (with an Alfred E. Newmanish picture). By the end of the month, the criticism had become the received wisdom in the mainstream press, all the way down to Millinocket, Maine. For the moment, we can ignore the question whether DeLong is right or not. My point has to do with the flow of information, or at least argument. Aside from the Administration, DeLong also likes to beat up on the press corps: his second favorite headline, after "Idiots," seems to be "Why Oh Why Can't We Have a Better Press Corps?" (sometimes one suspects that he is a Paul Krugman wannabee, but I don't think he has the venom). Anyway, I think his complaint is too coy by half. Yes, yes, I admit someone might have come up with the issue any way. But it's hard for me to believe that we would have had anything like the gang pile-on without DeLong stirring up the action. Setting the agenda, indeed. [Footnote: in my researches, I stumbled on the fact that a Democratic candidate this year for Charlie's seat is one "Burrel Charles Farnsley." Coincidence? I think not.] 1:19 AM | | link to this post | what's new in Law Reporting | go to JURIST
Trial of Jesus, etc. Jack Ayer Wendy, I don't know anything "strictly legal" re the Trial of Jesus (though there must be a ton of stuff). But I gather that just in general, historians of the life of Jesus engage in a lot of conversation over these questions. Why (exactly) was he arrested? Why (exactly) was he executed? Evidently the gospels aren't clear (or internally coherent) enough to garner anything like general assent. To give a flavor: E.P.Sanders in "The Historical Figure of Jesus" argues "that Caiaphas had Jesus arresred because of his responsibility to put down trouble-makers, especially during festivals." (Penguin Paperback, p. 269). Sanders also notes a couple of other theories, which he rejects. "One is that [Jesus] was misunderstood. Caiaphas and Pilate thought that he had in mind a kingdom of this world, and that his followers were about to attack the Roman army; they mistakenly executed him as a rebel." (Ibid. p. 268). And second "Jesus was arrested because of theological differences with the mass of Jews, led by the Pharisees. He believed in love and compassion, ideas that the Pharisees abominated, and he disagreed with petty legalism and ritualism, which they favored; for these reasons they consipired to have him killed." (Id.) Repeating -- Sanders rejects the two theories just set forth, but he acknowledges that others accept them. I'm only picking up pebbles on the beach here, and I know there is a whole ocean to cope with. In my limited experience, I've got most helpful instruction from Bart Ehrman. It goes without saying that his views on the historical Jesus are "controversial"--everyone's are--but what I particularly like about Ehrman is that he goes to great length to lay out the substructure of his argument, and to set forth his canons for accepting or rejecting particular items of evidence. BTWFWIW, we celebrated Mel Gibson day yesterday by going to a performance of Bach's St. John's Passion. It was lovely, time well spent, and I doubt very much I would have enjoyed Gibson more. But I must say--if you read the text of the Bach Passion, you'd have to acknowledge that it is pretty much as anti-semitic as anything Gibson is accused of. It just doesn't sound so bad with an oboe (but hey, nothing does, eh?). 7:39 PM | | link to this post | what's new in Law Reporting | go to JURIST Media coverage of the trial of Jesus, per Mel Gibson's film Wendy Leibowitz Just a quick question about an ancient trial that is much in the news of late: has anyone seen a good explanation in the legal press of the charges and procedures of the trial of Jesus? The procedures, the jurisdictional questions; the role of the "jury" (the crowd)? I understand that the gospels give several (at times) conflicting accounts, but I wonder if any legal publication has dealt with the trial in the context of Recent Cinematic Events. I am familiar with the excellent Web site of legal historian Douglas Linder, as well as its thorough FAQ A great review of the site by JURIST legal journalism blogger Carl Kaplan can be accessed from the site. From Prof. Linder's site: Jesus is arrested in Gethsemane, brought before high priest Caiaphas, tried before Pontius Pilate, and executed near Jerusalem....Pilate is ordered to Rome to face complaints of excessive cruelty. He is exiled in Vienne, France. ** Many thanks in advance. Peace, Wendy 5:05 PM | | link to this post | what's new in Law Reporting | go to JURIST
Say It Ain't So -- Or Else Jack Ayer Slate has a cool piece that must say something (but heaven knows what) about the changing nature of the media biz. It's an item about screenwriter Joe Eszterhas and his place in the history of privacy law--specifically, his role as the culprit in a leading Supreme Court case furthering the definition of the notion of "false light." Eszterhas, then a testosterone-poisoned young feature writer, cast as a proto-Jayson Blair, wrote a tear-jerker feature account of a family that lost its papa in a bridge collapse. The victim's widow, Eszterhas wrote, "remembers him singing along with a Flatt and Scruggs song." Cute, but not true. In the first place Eszterhas never talked to her. And anyway, as she said later, "I never heard him sing in my life." Now, I guess we can stipulate that to accuse a man of enjoying Flatt and Scruggs does not necessarily lower his reputation in the eyes of his community -- certainly not if his community is a bunch of law professors, and I suspect not among West Virginians either. But it is "false light," and the rest is history. But Eszterhas wrote the story in 1968 (the Supreme Court spoke in 1974). People will be eligible to serve as President this year who weren't even born then. Talk about invasion of privacy: what, you ask, is the purpose of re-raking these old coals now? Ah, interesting that you should ask: Eszterhas has written what you might call a "book" 768 pages of gonzo gossip about everything that ever happened to him. No, strike that: everything except the Cantrell case. Michael Doyle, otherwise unknown to me but identified as "a reporter in the Washington bureau of McClatchy Newspapers," is happy to play "gotcha." But good hook or no, it's a good yarn, well told. I guess the only grand moral I can draw out of all this is something about -- well, can you imagine any media outlet of any sort that would have told this story in this way, even 10 years ago? Okay, Steve Brill in American Lawyer, but any other? No, neither can I. And what's more, a weblog picks up on it ... [Fn.: I plead guilty to having rooted around for some of the saucy parts of Eszterhas' memoir, in an unbought copy over coffee at Barnes & Noble. It was okay, but I didn't need 768 pages of this stuff.] 7:23 PM | | link to this post | what's new in Law Reporting | go to JURIST Why Gay Marriage Matters -- In Particular Jack Ayer Legal Fiction has a nice post on "Why Gay Marriage Matters" that would translate into perfectly respectable newspaper copy. He offers three down-to-brass-tacks cases--all essentially custody fights--where a sensible court might well care whether the two parties to the parental couple were "connected" in some way. I think he moving the ball down field in a way I was struggling (but failing) to articulate last night. That is: it seems to me that an awful lot of the "gay marriage" debate is carried on at too high a level of abstraction. Better to understand that it comes down to some very particular questions like visitation rights, dependency payments, property settlements, etc. This kind of particularity is the kind of thing the media is supposed to do all too well; ironic to find it missing in this case (always excepting, of course, Rick "man on dog" Santorum). 1:02 AM | | link to this post | what's new in Law Reporting | go to JURIST
Still "Appearing" at a Courtroom Near You Jack Ayer Thanks to Michael ("Habermas") Froomkin, I've had a chance to see the Sierra Club's Motion for the Recusal of Justice Antonin ("Honk") Scalia, available in html or pdf. Note especially the appendix of editorial cartoons -- the usual mildly predictable stuff. But of what possible use can these be except to show that the assembled gasbags in on the nation's editorial pages do not approve? And as I asked a month ago -- do we really want questions of judicial ethics decided by said gasbags? There is also an unrenpetant letter from Scalia himself, clearly not forged because nobody with access to Supreme Court stationery can be so characteristically bumptious and combatative. 10:45 PM | | link to this post | what's new in Law Reporting | go to JURIST Re-Roe v. Re-Wade Jack Ayer I'm a little surprise that the reopening of Roe hasn't received more attention than it seems to have from the blogostocracy (or indeed, in the mainstream press); is that they are busy with other stuff, or are they hoping it will go away? (Our own brief mention hardly qualifies. Today's lede is that the court has decided not to hold oral argument. I am amused by our beloved colleague's report: "observers speculate that it may be part of an effort to expedite the case, or perhaps to turn it down quietly." Uh, I think he just said that "observers admit they don't have a clue." The long range potential is mind-boggling. Is it time to take a second look at Plessy v. Ferguson? Or, if we are limited to Justice Blackmun, can we at least have another whack at Flood v. Kuhn? 5:00 PM | | link to this post | what's new in Law Reporting | go to JURIST
Okay, Show of Hands ... Jack Ayer ... how many of you have your server side personal RSS aggregator activated? Anyone? Anyone? Well then, you'll just have to fall back on Feedster to keep up with the blog (blawg) action about San Francisco gay marriage -- and in particular, the question on every good blawgger's lips: isn't San Francisco thumbing its nose at the law the same way Judge Roy Moore did down in Alabama when he tried to stick up a (graven image), oops, pardon me, a statute of the Ten Commandments? Okay, not everyone. But ask Feedster for "gay marriage san francisco moor ten commandments" and you get 22 hits. No way I'm going to wade my way through all of them before I go shooting off my own mouth, but I think I may have a couple of things to say that may not have been said elsewhere. First: the local government issue. I taught "local government law" once or twice back in the stone age. I abandoned it in part because I could never for the life of me get students interested in what I guess were supposed to be central issues in the course, i.e.: how far is a "local government" or a "municipality" a mere appendage of the state and how far an independent semi-sovereign entity (distinctions between "statutory" and "charter" cities begin to emerge from my subconscious, like spotted lizards crawling up over the window sill). That is, if the students liked the result, then it was a "local" matter and the state shouldn't be permitted to interfere. If they didn't like the result, then nail 'em. Okay, perhaps I am doing more than (further?) displaying my incompetence as a teacher. At some level, these issues have to be important. No matter what the Enlightenment philosophers may imply, we do not undertake the same obligation of loyalty to the whole world that we do to our (state) (church) (neighbor) (bowling league). We feel that special loyalties are (somehow) different and (somehow) important (for more on just how, see this book). On the other hand, I suspect the students were onto something. Maybe to loyalty to one's city meant something to a Medici, or to Saul of Carthage. I guess some would say that there is that kind of loyalty to (New York) (Paris)--but even there, I think you are talking about loyalty to a particular milieu, not to the City as a Whole? When someone says "I love New York," I really don't think they mean Queens. And anyway, no one from Rome, New York, will beat his breast and say "Civitas Romanus Sum!" So to agonize over a municipality as having an internal coherence seems to me to be a stretcher. Second point, not really related: I suspect the big issue with gay marriage is not so much power per se as "full faith and credit." SFO may be willing to recognize its own gay marriages from now until Kingdom come. But does anybody else have to recognize them? Article IV of the U.S. Constitution says: "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state." So if Vermont adopts a gay-marriage statute, then we may have an Article IV problem when the couple shows up in North Carolina. But I don't see anything in there about "cities," not even cool grey, cities of love. It's been a turtle's age since I took a course in jurisdiction, but my recollection is that the courts have always had more trouble giving full faith and credit in domestic relations cases than in other cases (insert Arkansas infancy joke here). It wouldn't really be anything new if we had that kind of problem with gay marriage. 10:54 PM | | link to this post | what's new in Law Reporting | go to JURIST Fees & Conflicts Jack Ayer The Washington Post had an intriguing editorial Sunday on an issue which has puzzled me: disputes over attorneys' fees. That is: apparently a court-appointed defense lawyer in a life-imprisonment case can earn no more than a princely $1,096 (for crimes that carry up to 20 years, the sum is $395). A Ricmond lawyer undertook to challenge the fee cap. He moved for dismissal, arguing that (per the Post) "any court-appointed lawyer in the case had a conflict of interest," and that the defendant "was constituionally entitled to a conflict-free counsel." A trial judge denied the motion. So far, no big deal. The Post continues the story: "But another judge, James Kulp, decided that [the] motion was an unacceptable threat to the system. At a docket call hearing where many cases were being considered, he announced that he had read about the argument in the newspapers. He then read to the assembled lawyers from the disciplinary code and said that if any lawyer thought he had a conflict in any case, he would 'see that your name is removed from the court-appointed list.' Announced the judge, 'We're not having any further challenges in cases.'" I'm not even sure I'm supposed to follow the logic here: apparently if you think you have a conflict, then you are in breach of your professional obligation, but if you see no conflict than you are cool. Man, how simple life would be ... The Post adds: "Since Mr. [sic--not Judge?] Kulp's suppression of debate on this issue, no court-appointed lawyer has challenged the caps." And it gets richer: evidently in a later case, the court said that it was clear that the client had not been harmed by the fee cap because counsel had done such a good job. The Post uses the case as a vehicle for lamenting the sad state of the right to counsel in Virginia. Bully for them, but I want to focus more directly on the fee cap. Down at the bankruptcy court, we vultures and bottom fishers spent a lot of time worrying about our fees, and court control of same: to represent the debtor in Chapter 11, you have to have court authorization at the beginning of the case, and all your fees are subject to court sayso. My senior partner had a standard pitch for new debtor-clients in Chapter 11. We would take the biggest retainer we thought we could get away with. From then on, we were basically married to the client, for good or ill. If the case tanked we usually lost money. If it was a success, we asked for a bonus. "So," as the lawyer liked to tell the client, "if we get to fighting over fees, you know we have had a success." Put it this way: isn't it always the case that the lawyer and his client are adverse when it comes to fees? And if adversity over fees gives rise to a conflict, is there any way anybody can be represented, ever, except for free? More generally Judge Kulp's intervention has to be a misuse of his position, not so? If he cared so much about the conflict issue, shouldn't he structure another hearing on that issue before some other judge, and let the defendant's case go forward unimpeded? More generally, isn't this like the judges who put everybody in the courtroom in civil contempt at the beginning of the trial and then says: "I'll withhold my decision on penalties until after the verdict" -- thereby terrifying everybody in the room into a kind of submission? And that is wrong, yes? No? 10:22 PM | | link to this post | what's new in Law Reporting | go to JURIST Pickering's Retreat? Jack Ayer Howard Bashman (doesn't this guy have to work for a living?) is all over the story of the revivification of Roe v. Wade, and particularly, the question of who will hear it. Per Bashman, the Fifth Circuit originally assigned Judge Charles W. Pickering, Sr., the Bush "recess appointee" who has been on the court for about a month now, and who was (has been) a lighning rod for anti-Bush critics. But (again per HB), Pickering has been supplanted by Judge Edward C. Prado. The Roe story itself has received spotty attention in the mainstream media. But a Google News search for "Pickering Prado" draws a goose egg. It's inside baseball of course, but Pickering has received enough notoriety, you think someone might have been willing to spill some mainstream ink on it. I wonder if it is possible that "random assignment" worked just too well here -- that Pickering's name came rolling down the bingo chute and that everyone, including Pickering himself, realized it would be just too much of a polarizing event (he is, after all, still a recess appointee). But I'd be interested to hear from others as to the"integrity" (or lack thereof) of random-assignment systems generally. My own experience suggests that judges generally love random assignment: they think it is good for the system, and that it gives them protection they want and deserve. But every court has its bozos, and I can't believe the chief judge (of any court) doesn't shave the dice in some cases. Newspaper anecdote: someone once asked, "do you have expert/specialists on your copy desk?" Reply: "no, we have negative experts; people who cannot be trusted with certain stories. 1:12 PM | | link to this post | what's new in Law Reporting | go to JURIST
The Servant's Revenge Jack Ayer One unfortunate consequence of the new morality is that we haven't had a really first rate smut trial since -- well, maybe since Larry Flynt, the sage of Hustler, whose antics in the 70s and 80s (back before he became Woody Harrelson) gave new meaning to the term "bad taste." Flynt is still around, and it turns out that he is now opening a chain of Hustler sex shoppes in Great Britain. Happily for voyeurs and libertines everywhere, there is a career review in today's Independent. Read it or not, but don't expect me to tell you what Lewis Lapham was referring to when he said ""I'm not sure this was quite what Jefferson had in mind." The Independent also digs up this priceless bit on the changing nature of the porn trade [by Richard Neville, who had his own brushes with the porn law]: "When Penguin published Lady Chatterley," Neville wrote, "they were tried at the Old Bailey. One question was: 'Would you let your servant read this book?' Larry Flynt has turned this upside down. Now it is the servants - the busboys and the truck drivers - whose erotic tastes are repulsive to a bewildered establishment. Hustler is the servant's revenge." 8:54 PM | | link to this post | what's new in Law Reporting | go to JURIST
Enron--Stepping Up to the Plate Jack Ayer I'll have to do this one from memory--no transcript available--but I just heard Joe Nocera on NPR, discussing the new Enron indictment and addressing an issue that has been bugging me for months. That is: I've been saying I wish someone would step up to the plate and tell to what extent Enron was (a) active violation of existing rules; as against (b) skilled (if satanic) manipulation of a set of rules that simply aren't up to the job. I've been following Enron in a somewhat less-than-desultory way and up to now, I haven't seen anyone who really addresses this point. Several of the quicky books on Enron dance right around it; some seem not even to know that they are dancing around it. I admit I'm sticking my neck out here: there's a lot about Enron I have not read--haven't read a lot of stuff on Jurist's own Enron webpage. And I haven't yet seen the anthology in preparation by my good bud Nancy Rapoport (but it looks promising -- you go, girl!). Anyway, Nocera nailed the point, at least as a matter of reportage. Scott Simon asked: why has it taken so long to get an indictment against the president of Enron? Nocera said (as I understood him) that it took long because the prosecutors had to change their theory in mid-case--they started out assuming that this was a case of law-breaking; midway, they realized that it probably wasn't a case of outright lawbreaking, but had to shift to a theory of fraud "as a whole." The importance of the distinction is self-evident, yes? I mean, if these guys simply broke rules, then put 'em in jail and that is the end of it. If they succeeded in working in the white space around the letter of the law, then we have a different sort of problem, not only from the standpoint of the prosectutor, but also from the the perspective of long-range social policy. My own guess is that the prosecutors probably have it right. I'm not an expert accountant but I dabble at it, and I must say it's not obvious to me that you can point to specific violations of specific rules in the Enron. Of course, this may not be the end of it. There is at least one case, famous among accountants, sustaining an indictment for accounting deception, in the face of expert testimony that the statement "was in no way inconsistent with generally accepted accounting principles ..." I used to have a cartoon (I wish I could find it) where the one guy in a suit says to the other guy in a suit: "we will keep your books according to generally accepted accounting principles, heh, heh, heh." It makes me think of the old canard--I think it is attributed to Lon Fuller--that there can be no gentleman's agreements in the textile industry, because there are no gentlemen in the textile industry. 11:22 AM | | link to this post | what's new in Law Reporting | go to JURIST
Overholser again Jack Ayer Wendy has already picked up on it, but let me expand on our good neighbors over at the Wall Street Journal--they're chuffed with Geneva Overholser for calling on Robert Novak to come clean about his source(s) in the Valerie Plame affair. Well, you can't say a Journal editorial isn't entitled to some weight. I mean, I have to admit I was at least on the fence about Ms. Overholser's call for an outing here. But can we agree -- if the Journal editorial page endorses something there is an evidentiary presumption (not conclusive: I have an open mind) that the idea is cockamany, mean-spirited, too clever by half, or flat wrong. It's not so much the result, it's the reasoning. The Journal starts of by archly recalling that her husband was a "National Security Council member" (emphasis added and "sic"--it looks to me like he was a staffer, but hey) "from the Clinton years"--they might just as well have mentioned that he was George 41's acting ambassador in Baghdad in the runup to the first Gulf War. The editors go on to concede that "the law requires proof that the leak was done with the intent to unveil a covert intelligence officer by someone who knew the CIA was taking active measures to keep the agent's covert status concealed." Exactly. But no obvious reason they declare that "this is all beside the point, because those shouting loudest already have what they really want: a special prosecugtor to score political points and tie the Administration up as long as possible." Aside from smashing irrelevance, there are so many things wrong with that sentence, it is hard to know where to begin. Suffice it to say that a good many of the critics believe just the opposite -- they believe that the appointment of a (not very special) prosecutor to look into this matter will serve to assure that it never gets settled until the next ice age. From their pulpit at the apex of the chattering class, the Journal goes on to rant about "the media establishment" or "the beltway media" the way President Reagan used to rant about "the government" -- as if he was just a bystander who happened to be watching the show ("Where are you going with that elephant?"--"What elephant?") And they just can't resist the chance to end with a nasty personal dig. "Have you ever seen a man who enjoyed the alleged destruction of his wife's career as much as Joe Wilson?" Well, maybe or maybe not, but there seem to be a lot of other women's husbands who are enjoying every minute of it. Bet she isn't much good at football, either. Source note: Romenesko showcases the Journal piece, and points out that Ms. Overholser has a blog of her own here. 6:05 PM | | link to this post | what's new in Law Reporting | go to JURIST Why People Hate Lawyers, Part Umptyump Jack Ayer Have now finished reading Tony Lukas' "Nightmare" which ends as it began -- a monument to the best that journalism can be. It is full of law angles and law-press angles, and I have to confess Lukas even made me soften a bit on Woodward and Bernstein: I still think they get more credit than they deserve for creating the Watergate story, but I guess I have to concede that they did play a pivotal role in keeping it on the agenda. There is one beautiful bit of law talk that almost certainly did not come to public notice at the time. It involves a poor mug named Bart Porter, otherwise unknown to me, who was induced to lie by the much more prominent Jeb Magruder. Porter finally decides he needs a lawyer. He winds up in the office of Jim Sharp. Sharp was already representing a Magruder: indeed he had already cut a deal for Magruder and was carefully nursing it towards closure. Of course Magruder wouldn't want his deal blown out of the water by a competing deal. But Porter tells Sharp that he wants to confess all. Per Lukas, "Sharp exclaimed:" "'My God, you are an ant! You are nothing! Do you realize the whole course of history is going to be changed?' "When Porter bridled a bit, Sharp abruptly changed his approach. If Porter was adamant about going to the prosecutors, the lawyer said, why of course Magruder would give him the 'courtesy' of going down first. Porter thanked him. "But as soon as Porter was out of his office, Sharp called [the prosecutor] and set up an appointment for Magruder ..." Magruder met with prosecutors that morning and closed his deal. Later in the day, Magruder ran into Porter. "[H]e mentioned that he had been to see the prosecutors that morning. Porter, remembering Sharp's professered 'courtesy' of the day before, was 'rather stunned.'" I invite commentary from my distinguished colleagues, but it sure looks like a betrayal (of Porter) to me. My first thought was: unh hnh, this is why people hate lawyers. But then on second thought: no this is why people love lawyers -- you get them to do the sleazy little bits of misconduct you wouldn't think of doing yourself. Anyone, anyone? Not satisified with the vanity-press opportunities afforded me here, I have weighed in with some further comments about Lukas in an Amazon review. 11:40 AM | | link to this post | what's new in Law Reporting | go to JURIST Real Rules Jack Ayer The Real Rules for Journalism Critics are fun and too true, too true. They have, indeed, been around before (not that that's a complaint) - but they popped up just this past week on one of my favorite sites -- Newsgorilla, home of the Burnt-Out Newspaper Guild. It's a favorite not least because it can be very funny, but also because the proprietor seems to be one of the last of what I thought to be a vanished breed -- an ink-stained wretch, sharp-tongued, sardonic, blazingly clever, the kind of guy who (I suspect) idles away the hours by doing the New York Times crossword puzzle in his head. Also, by all appearances, living from paycheck to paycheck, a therapeutic reminder of why we professors bailed out of journalism for the law (I have always said I am the only person I know who went into teaching for the money). There is a moral around here somewhere. It's too early in the day to pontificate, but there was much to be said for a world in which journalism still belonged to the ink-stained wretches, not the celebrity bigfoots (bigfeet?) -- where a Washington correspondent earned no more, perhaps less, than a steadily-employed steelworker. 11:14 AM | | link to this post | what's new in Law Reporting | go to JURIST Journalistic principles in action Wendy Leibowitz A free opinion section of the WSJ states, "Journalists abandon their principles in the Plame kerfuffle." The editorial seems to believe that journalistic principles boil down to sticking up for a colleague, in this case, Robert Novak. When it comes to criminal conduct, and covering up criminal conduct, journalistic principles (such as they are) are much more flexible: reporters who stumble on facts or witnesses who might help the police often assist the police. It only makes news when reporters REFUSE to turn over their notes or provide a name to the cops. In the Novak case, Robert Novak was allegedy used to help commit a felony--to assist in exposing the name of a CIA operative, whose name, Valerie Pflame, is now as well known as any intern's alleged to have had a relationship with a powerful Democrat. Covering up for the person who committed this felony is not ethical no matter what your profession. I agree that Ken Auletta's interview on C-SPAN was superb. Can't wait until there's a C-SPAN covering the courts. (Court TV has become a cop show/detective channel. Nothing wrong with that, but it's not serious, objective coverage of the courts). And if Jack can post The Real Questions facing jurors, here are Real Rules for Journalism Critics 101 (which is all of us), written by Jackman Wilson of the Eugene (Ore.) Register-Guard in 1993, but very true today: 1. If it's not above the fold on Page 1, it's buried. 2. If it's above the fold on Page 1, it's sensationalized. 3. Everything but the entire universe is out of context. 4. If you can't criticize what's in a story, criticize what isn't in it. 5. If it's not a hatchet job, it's a puff piece. 6. And vice versa. 7. No one can ever be accurately quoted. 8. All stories that fail to mention the problems on my agenda are trivial, and therefore a disservice. 9. Facts are never reported, but "admitted," "confessed," or "allowed to creep into the story." 10. Everything newspapers do is done to sell papers, and selling papers is bad. 10:52 AM | | link to this post | what's new in Law Reporting | go to JURIST The Defense Snoozes Jack Ayer One of the first trials I ever covered (back in the Pleistocene) was a statutory rape case involving a 12-year-old. The defense was that she told him she was 37. I thought this held some kind of record for gobsmacking clueless, but hey, it was another century and it is time for a fresh start. So a let's give a big Jurist-law welcome to Colorado Coach Gary Barnett, whose response to a rape charge is that she wasn't a very good football player anyway. As I write this he is holding forth on the last recourse of all scoundrels, the Larry King Show, saying something about the out of context blah blah wrong time wrong place blah blah (and the right time would be?). I have to admit, just having to listen to Larry King is punishment enough for most offenses -- but my point here (ah, I knew I had a point here) is that it all brings to mind what we use to say in Kentucky are the questions facing the jury in a murder case: --One, did the victim deserve to die? --And two, was the defendant the right person to inflict the penalty? If the answer was "yes" to both, then the defendant walked. If the answer was "yes, absoslutely," then there was a party. (I won't tell the one about the defendant who had a tattoo on his -- well, I said I wouldn't tell.) 12:17 AM | | link to this post | what's new in Law Reporting | go to JURIST
Auletta (Barbershop Mirrors) Jack Ayer We've spent a fair amount of time noodling around with the role and implications of the blogosphere. Following up on that line of inquiry, I have been noodling around with the law coverage available at C-Span. In the process, I stumbled on this remarkable interview with Ken Auletta, media critic for The New Yorker, and author of a bunch of books, several of them on the media. The latest of his books is "Backstory," a collection of his columns from thre mag. Haven't watched it all yet, but I think I will keep it queued up on my laptop, anticipating that I can watch it in snatches over the next few days -- this technique of watching itself being a matter of notice itself, perhaps. Indeed, barbershop mirrors here: I am watching with one eye (and listening with one ear, I guess) as I write, and Auletta is discussing the recent bout of navel-gazing at the Columbia Journalism School over whither journalism. [Update: pardon the spelling error, now corrected. I suppose a barbarshop is a place where an elephant gets a nose job.--jda] 7:15 PM | | link to this post | what's new in Law Reporting | go to JURIST Kerry Garrett Epps There is one way in which these "Kerry rumors" ARE relevant to our blog. That is this: Clinton's dalliance with Monica and others became relevant because of a lawsuit and the requirement of sworn statements and testimony. I am curious how the Kerry rumor would be relevant even if true. It reminds me of the period during the 1996 Dole campaign when THE WASHINGTON POST was investigating reports (apparently true) that Dole had had an affair with a woman after the breakup of his first marriage. The investigation by THE POST caused the Dole campaign some concern, but the editors finally decided not to print anything because this was consensual sex between adults during a time when neither was married (or if married, separated). 1:30 AM | | link to this post | what's new in Law Reporting | go to JURIST
Standing Garrett Epps Wendy asks, "What standing do religious groups have to challenge gay marriages in San Francisco?" That question was answered admirably by Brother Ayer in two earlier posts, q.v. While "anyone can file a lawsuit" is technically true, it doesn't go to my point. Sometimes (as is usual in the federal system) these kind of "busybody suits" are dismissed; different states have different standing rules. California has looser "busybody" rules than the federal system, which is an interesting comment on the state's legal system in itself. (When I was still teaching comparative law, I used to threaten to include a unit on California law as an example of a truly bizarre foreign system.) As for the Treaty of Guadalupe Hidalgo, when I was clerking for the federal defender, we got a defendant off on treaty grounds, so some good came of it. . . . 1:03 PM | | link to this post | what's new in Law Reporting | go to JURIST The Daily Alex Polier Wendy Leibowitz Some blogs--notably andrewsullivan.com and Glenn Reynolds' instapundit.com --began as Daily Me's and are now read by more people than read some print publications. Their standing to commit news and opinion (or to link to same) was entirely self-made. To answer Carl's question about the name of the intern in the Kerry story, you can get the entire saga from the NY Observer: http://www.observer.com/pages/frontpage3.asp And I found the link to the Observer from, um, The Drudge Report. He has good links. Like a golf course. Life would have been so different if he'd just been hired by a newspaper the way he wanted. But he didn't have the grades, nor the connections, so we have The Drudge Report. Now SOMEONE please get us back to proper legal journalism or Garrett Epps will sue me, standing or no. Because anyone CAN file a lawsuit---it then might be dismissed on any number of grounds, but it can be filed, with the concomittant publicity. What standing do religious groups have to challenge gay marriages in San Francisco? 12:53 PM | | link to this post | what's new in Law Reporting | go to JURIST Sex Sells, etc. Jack Ayer "...which seem to me a bit far afield from the topic of this blog," Sonny, I guess you are too young to remember the great Willard Pedrick, who said that for a good law prof, everything is a subtopic of his primary subject. Show me a restaurant placemat, I can find you a bankruptcy angle. Re standing and the Gadsden Purchase, I have a colleague who says he is still mad about the Treaty of Guadalupe Hidalgo. But he is a proceduralist, so I guess he knows what he is up against. 12:44 PM | | link to this post | what's new in Law Reporting | go to JURIST Standing Garrett Epps I am not quite sure how a discussion of "standing" as a legal necessity in the California gay-marriage case morphed into a discussion of the Kerry sex rumors, which seem to me a bit far afield from the topic of this blog. My specific concern is about the impression that news coverage often gives that any citizen who doesn't like something government is doing can trot into the nearest courthouse and complain to a judge. I assume that the other law profs on this blog also run into the recurring phenomenon of people wandering into their offices and demanding help in enjoining the government of New Mexico on the grounds that the Gadsden Purchase was illegal or something similar. I don't think that the press is covering the gay-marriage dispute because "sex sells." I think it's an important and serious (if gaudy) part of a debate on public policy. But I do think that reporters would do a service to their readers/viewers if they would take the time to understand standing rules and mention them at some point in their reports. 12:31 PM | | link to this post | what's new in Law Reporting | go to JURIST The Daily Me Jack Ayer Wendy, you've probably been following the dialogue among the chattering classes over the issue of "The Daily Me" -- the question whether google, weblogs, listservs, blahblah, broaden access to information or merely Balkanize us further into our own little gated cybercommunities. A visible proponent of the Balkanization view is the indefatigable Cass Sunstein. There is a useful followup here, including a discussion of work by my beloved friend and colleague, Anupam Chander. It's an interesting conversation and I suppose I'm still on the fence. For myself, I have to admit that I've put together a list of favorite blogs where I check in a lot, and to a certain extent, they tend to reinforce my prejudices. But it is not that easy to stay isolated. Even among the favorites, I find myself stumbling across stuff I don't like to hear. And more inconvient stuff is only a mouseclick away. ("Hulk not like views that challenge Hulk's prejudices! Hulk must not click button!") Inconvenient facts. Ah, yes, here it is: "The primary task of a useful teacher is to teach his students to recognize 'inconvenient' facts—I mean facts that are inconvenient for their party opinions. And for every party opinion there are facts that are extremely inconvenient, for my own opinion no less than for others. I believe the teacher accomplishes more than a mere intellectual task if he compels his audience to accustom itself to the existence of such facts. I would be so immodest as even to apply the expression 'moral achievement,' though perhaps this may sound too grandiose for something that should go without saying." Max Weber, Politics as a Vocation, at least as quoted by this guy. Now, once I get my new PDA programmed for Wi-Fi access, I'll be a perfect monster ... [Footnote: of course, I have nothing to add about weblogs that may simply not be read at all. I name no names ...] 12:23 PM | | link to this post | what's new in Law Reporting | go to JURIST Creative Outing Jack Ayer There's a fascinating story breaking in Detroit about a Federal prosecutor in a major terrorism case who is (per CBS News): "suing Attorney General John Ashcroft, alleging the Justice Department interfered with the case, compromised a confidential informant and exaggerated results in the war on terrorism." The story is, at least, a most instructive account of a bureaucratic turf war. For the purposes of a law-press log, perhaps the most interesting assertion is that the prosecutor accuses Justice Department officials of "intentionally divulging the name of one of his confidential terrorism informants (CI) to retaliate against him" -- an offense which might as well be called "plaming," after the CIA operative who was outed via Robert Novak's syndicated column. The CBS story doesn't mention the names of the informants, but you can get a name and get various bits of background from Google News, including the good folks at Al-Jazeerah. Per Al-Jazeerah, a lawyer for the complaining prosecutor says that the leak surfaced in the Detroit Free Press on January 17. I first saw the story today in the weblog of the ever-vigilant Joshua Micah Marshall, who has been all over the Plame story. 11:49 AM | | link to this post | what's new in Law Reporting | go to JURIST what blogs do vs. what papers do Wendy Leibowitz Some say that the role of the blogosphere is to fact-check newspapers. This was true in the Kerry intern non-relationship. The British papers reported the entire rumor, complete with the name of the intern. (The British gutter press, into which the BBC Web page has now fallen, stands for "reckless disregard" despite the strict libel laws over there, when it comes to sex or discrediting Americans.) The blogosphere, including Columbia Journalism School Students, found the woman, who denied any relationship. But we're all still talking about it, which is what the papers want: they want to sell newspapers, and sex sells. Rumors of sex sell. That's one reason why "standing" is rarely discussed when rumors about sex fly: even if charges can never be brought, the story will sell the paper. I'm sorry to be cynical on this point, but I think it's true. Go and try to stop a sex scandal by talking about lack of standing to bring charges. I dare you, gentlemen. Another role of the legal blogosphere is to discuss issues that the printed publications cover sporadically or poorly. ONe such issue is electronic discovery, a subject close to my heart. (Not everyone is interested in standing). Delighted to announce that there is an e-discovery blog, at http://www.discoveryresources.blogspot.com/ Thanks to Sabrina Pacifici's blog for the tip. Many discovery disputes are resolved between the parties, far from a courtroom, so newspapers that report legal decisions can't or won't cover these issues. And discovery is so common that developments are not really "newsworthy." But the issues surrounding the form and focus of electronic discovery are key to any litigation now that most information is generated in electronic form. ("How would you like your 8,000 e-mails: on a CD-ROM? Or printed out?" And who pays for the forensic expert if there's a problem?) The e-discovery blog is young, as is its author, but it bodes well that there will be continuous coverage of this important topic. The other aspect of legal life that blogs can cover better, or at least in more detail, than printed matter is conferences. Ernie the Attorney just returned from a teach-in on Digital Democracy. His account is here. And in the blogosphere, no one cares if you have standing or not. 11:43 AM | | link to this post | what's new in Law Reporting | go to JURIST
Outing Kerry Jack Ayer Carl asks: "Did anyone read a story about the Kerry rumors that before today named the young woman?" Web surfers could have seen her name in Rupert Murdoch's London Sun last week: Google News dates the cited clip from February 13 (although the page itself bears today's date). Several other papers around the world picked it up over the weekend. Sunday's Telegraph quoted an anonymous "friend" saying: "This is not going to go away ... What actually happened is much nastier than is being reported." A number of papers, like this one, showcased a quotation from her father calling Kerry a "sleazeball." The sleazeball quote seems to have originated with the Sun. I can't put my finger on it at the moment, but I believe I saw stories earlier today in which the parents deny they ever talked to the Sun. Vaguely related--we can all stipulate, I suspect, that the way the mainstream press captures a gutter story is by making a story-about-a-story. For a cute variation on this theme, see the discussion in last week's Economist mag of Janet Jackson, complete with a color photo of the naughty part (but considering the size of that piercing, I would say it is no more than 40 percent naughty, at best). 10:16 PM | | link to this post | what's new in Law Reporting | go to JURIST POST headline Garrett Epps Carl writes: "I assume there is no legal impediment (libel, privacy or otherwise) in recklessly naming or recirculating the name of a rumored paramour of a public official. Whether there ought to be is another matter. " If I were still in the biz, I would regard this as a risky assumption. "Reckless disregard for truth" is the standard for a defamation claim even of a public figure. A private individual who is falsely named as the paramour of a public official does not automatically thereby become a public figure. Thus it is possible that damages could lie simply on a basis of negligence. And in any case, if the news medium knows the charges to be false or entertains subjective doubt of their truth, damages (including punitive damages) may lie even if by some mistake she is held to be a public figure. On the other hand, if the individual involved implicitly consents to publication of her name by giving a denial for attribution, the paper may be safe. 8:52 PM | | link to this post | what's new in Law Reporting | go to JURIST TV Lawyers Jack Ayer Used to be all we chased was ambulances; apparently now it is satellite trucks, per this instructive account in Tuesday's San Francisco Chronicle, on the subject of TV lawyers. I admit it: I once took an acting class on the premise that, harrumph, well, a good lawyer should know this stuff (but I was mainly looking for babes). Oh, and I notice that the Chron's website maintains a special Scott Peterson webpage. 8:33 PM | | link to this post | what's new in Law Reporting | go to JURIST Kerry Rumors Carl Kaplan Did anyone read a story about the Kerry rumors that before today named the young woman? Today the New York Post, which has been all over the story, ran a piece that named her and carried her explicit denial of (a) an internship with Kerry and (b) any affair. Previously, the Post (1) ran a story stating there were rumors circulating of an affair between Kerry and an intern (fueled by Drudge), and (2) ran an update quoting Kerry's denial. Of course, in a better world no one would have run a story in the first place unless it checked out and the woman was an intern in Kerry's care and an editor thought long and hard about it. But at least on the Post there's still a figleaf of ethics because they didn't name her in the rumormongering phase. The figleaf, I think, will fall away one of these days; I assume there is no legal impediment (libel, privacy or otherwise) in recklessly naming or recirculating the name of a rumored paramour of a public official. Whether there ought to be is another matter. 12:08 PM | | link to this post | what's new in Law Reporting | go to JURIST Standing and U.S. Prosecutions for Extraterritorial Sex with Minors Carl Kaplan Like my New Post headline? Funny, I've been thinking about standing, too, and why reporters sometimes do not address the issue. The other day I read a story buried in the national section of the NYT -- I'd link to it but I don't know how to do links --about the sentencing of a New York doctor for sex crimes. According to the piece, a special unit of the DOJ prosecuted the doc for having sex with young boys at a sex-resort in Mexico that allegedly caters to pedophiles. Bad stuff, I know. The article did not specify the charge, but I assume there is a recently-passed federal 'sex holiday with minors' crime; the judge was Lewis Kaplan of the SDNY. The article, too, as Garrett complained generally in his 2/15 post, did not even raise the standing issue. How does a federal prosecutor -- representing the People of the United States -- have standing to go after a citizen for a sex crime that occurred in a foreign place? The other side of the coin is, why do U.S. courts have jurisdiction? Shouldn't Mexico prosecute with U.S. help? The issue is not academic. Although prosecution for extraterritorial sex-crimes may be compelling, what's the stopping point? 11:49 AM | | link to this post | what's new in Law Reporting | go to JURIST
More on Standing Jack Ayer My doughty henchman Rex, doing the work that we could have done and did not, has tracked down the California standing complaint. I should think the relevant paragraphs are are these: "14. Plaintiff Randy Thomason is an individual residing in Yolo County, California, who voted in favor of Proposition 22, and who has paid taxes to the State of California during the past year. "15. Plaintiff Campaign for California Families, which actively campaigned for the passage of Proposition 22 on behalf of constituents located throughout the State of California, is a Sacramento-based nonprofit family values organization serving taxpaying families throughout California." [Prop 22 is a votor initiative, adopted in the year 2000, which provided that "[o]nly marriage between a man and a woman is valid or recognized in California." The wording is odd, isn't it? It seems to say that the condition of being single is not valid or recognized in California.--jda] Rex adds that it: "looks like they are using the taxpayer standing rule. However, the complaint is pretty weak, with minimal legal grounds and I'm not sure they will have standing. After all, it's mostly SF tax money that is allegedly being wasted, and no SF citizens currently are plaintiffs." 6:55 PM | | link to this post | what's new in Law Reporting | go to JURIST Standing Jack Ayer Re standing, I confess I have always found it fascinating. In fact, it was the subject of my first LR article (a piece which I would now just as well forget; so far as I know, it was never cited for anything, ever, and just as well, too). But I am sure it is hard to jump-start it in class (I've never had occasion to teach it). And if hard in class, how much the harder in the press. Indeed, I suspect that what caught my fancy was precisely the fact that I'd never thought of it before. Meanwhile, re California standing, a beloved friend and colleague whose initials are Rex Perschbacher offers the following: Although California does have a standing requirement/real party in interest, there is an exception for questions of "public right" and "public duties" that allow a plaintiff seeking a writ of mandamus to sue as long as the plaintiff shows s/he "is interested as a citizen in having the laws executed and the duty in question enforced." Green v. Obledo, 29 Cal.3d 126, 144 (1981). Taxpayers can sue to prevent a public official from waste or illegal expenditure of public funds. The plaintiff must be a resident of the state, city, or county involved, and assessed for and liable to pay taxes (or have paid tax) to the public entity within the past year. California Code of Civil Procedure sec. 526a See generally Brown & Weil, California Practice Guide: Civil Procedure Before Trial para. 2:66-2:70 (The Rutter Group 2003). [Rex added that he didn't know anything special about the particular litigation in question here.] 4:50 PM | | link to this post | what's new in Law Reporting | go to JURIST
Grand Jury Garrett Epps I certainly am not suggesting that high officials should be allowed to "testify" outside the presence of the grand jury. But I do think that there is no need to notify reporters and schedule a "perp walk" in a politically charged investigation of this sort. 12:33 PM | | link to this post | what's new in Law Reporting | go to JURIST AWOL v. Desertion Jack Ayer "Law from the Center," in an entry for January 24 (hey, I'm slow) here has a nice (in the strict sense) discussion of the distinction between AWOL and "Desertion." Blogtalk, of course (indeed a law student). I leave it to others to speculate on what this means to the audience of Larry King Live or Entertainment Tonight. 12:22 PM | | link to this post | what's new in Law Reporting | go to JURIST Grand Jury Protections Jack Ayer Will try to see if I can say something useful about standing later, but at the moment I am still stuck (with Tony Lukas) in the Watergate farrago. Here we are in the late summer of 1973, where a Federal prosecutor is making a (not very strenuous) effort to explore links between the "thrid rate burglary" and the White House. Lukas says: "The lawyers couldn't accompany their clients into the grand jury room, but they found other methods of frustrating the work of the jury ... . [John] Dean [counsel to the President] persuaded Henry Petersen, the assistant attorney general now in overall charge of the Watergate prosecution, that White House staff members should not have to appear in person before the jury because of the harmful publicity they would attract if newsmen saw them entering the federal courthouse. So the prosecutors ... interviewed White House officials under oath in Petersen's office in the Justice Department, ... a most unusual procedure which deprived the jurors of a chance to assess the witnesses' credibility at first hand. . . . When [Campaign Finance Director] Maurice Stans was subpoenaed ... to appear before the grand jury, he flew into a rage, demanding that he get the same consideration as White House officials." After the application of some White House muscle, Stans did in fact testify privately at the Justice Department, rather than before the grand jury. In the midst of it all, John Ehrlichman, the White House point person in the Watergate coverup, complains that Petersen is "acting like a local prosecutor." "Which, of course," as Lukas acidely remarks, "is exactly what he was." Lukas, Nightmare, p. 242. 12:05 PM | | link to this post | what's new in Law Reporting | go to JURIST Standing in California same-sex license case Garrett Epps Does California have a standing requirement for litigation? If so, how does a conservative advocacy group get standing to challenge the marriage licenses issued by the City of San Francisco? Not all states require the kind of standing to sue that federal courts do. But I wish I could find some discussion of this issue in the coverage of the lawsuit filed there. Standing is a dull issue--just ask my students--but failure to address it creates the impression that the courts are a free-ranging commission to censure legislative and political bodies when they make policy determinations the judges don't agree with. 11:35 AM | | link to this post | what's new in Law Reporting | go to JURIST
Tony Lukas Garrett Epps The quotes from NIGHTMARE are interesting. But as an old friend of Tony's, I have to correct the record. The name is J. Anthony L-U-K-A-S. He was a great reporter and a terrific person for a young reporter to know. His name currently graces an award given by Columbia Journalism School for a book-lenth work of non-fiction that "exemplify the literary grace, the commitment to serious research, and the social concern" that he displayed. 10:15 AM | | link to this post | what's new in Law Reporting | go to JURIST
Jurist Gets Results! Jack Ayer Man, the power of the blogosphere! Within hours, hours of my post complaining about retaining prisoners at GTMO, we have "Senior Defense Department Officials" saying they "would soon set up a panel to review those long-term prisoners' cases annually to determine whether the men remained a threat to the United States or could be released. The NYT report is here. "Caving to pressure from Jurist," the NYT did not add. Well, um, actually, the announcement seems to have come some hours before the post -- drat, I must stop letting my wife use her cellphone at the breakfast table. And, um, actually, the lede was that "they were planning to keep a large portion of the detainees ... for many years, perhaps indefinitely." Note the "annually" in the previous paragraph: apparently there is no expectation that these reviews will actually get people out. Okay, okay, I stipulate again to the dirtbag concession from my previous post. Still the faith of these good Republicans in the power of government to do good is touching, almost childlike. The very idea that a lawyer, a lawyer frevvins sakes, might add something to the process, apparently remains laughable and beyond any consideration. 11:05 PM | | link to this post | what's new in Law Reporting | go to JURIST What's Wrong with the Media |
