Category: Legalia

CLS/Hastings update

The arguments were had before the Supremes yesterday, after my post and bold-if-not-foolish prediction.

Gordon Crovitz of the Wall Street Journal summarizes nicely here:

Presumably Gays & Lesbians for Individual Liberty do not share the CLS view of human sexuality. But they understand exactly where Dean Martinez’s logic is taking us.

“[U]nder Hastings’ forced membership policy, only majority viewpoints (or those viewpoints too banal to interest the majority) are actually assured a voice in Hastings’ forum,” argues their brief. “That is a patently unreasonable way to ‘promote a diversity of viewpoints.'”

Sadly, it appears that this is shaping up in the popular press as a case about the legal status anti-gay bigotry if religiously motivated. Few in the press note that the CLS sexuality standards bar from office unrepentant straight fornicators as well as unrepentant gay fornicators.

As well it should: so far, the sexual revolution and no-fault divorce have done a heckuva lot more damage to the formation of Christian consciences and the institution of marriage than has the gay rights movement.

Crony capitalism

I haven’t yet, and probably never will, fully think through this editorial from today’s Wall Street Journal, titled An Economy of Liars. The author is from the Cato Institute, a right-libertarian group, so read it discerningly for that bias.

Thomas Carlyle, the 19th century Victorian essayist, unflatteringly described classical liberalism as “anarchy plus a constable.” As a romanticist, Carlyle hated the system—but described it accurately …

The idea that multiplying rules and statutes can protect consumers and investors is surely one of the great intellectual failures of the 20th century. Any static rule will be circumvented or manipulated to evade its application. Better than multiplying rules, financial accounting should be governed by the traditional principle that one has an affirmative duty to present the true condition fairly and accurately—not withstanding what any rule might otherwise allow. And financial institutions should have a duty of care to their customers. Lawyers tell me that would get us closer to the common law approach to fraud and bad dealing …

Hayek’s mentor, Ludwig von Mises, predicted in the 1930s that communism would eventually fail because it did not rely on prices to allocate resources. He predicted that the wrong goods would be produced: too many of some, too few of others. He was proven correct.

In the U.S today, we are moving away from reliance on honest pricing. The federal government controls 90% of housing finance. Policies to encourage home ownership remain on the books, and more have been added. Fed policies of low interest rates result in capital being misallocated across time. Low interest rates particularly impact housing because a home is a pre-eminent long-lived asset whose value is enhanced by low interest rates.

Distorted prices and interest rates no longer serve as accurate indicators of the relative importance of goods. Crony capitalism ensures the special access of protected firms and industries to capital. Businesses that stumble in the process of doing what is politically favored are bailed out.

Note through this that it’s not just big business lying. Big business and government are in bed together.

But “financial institutions should have a duty of care to their customers”? And “Deregulation is not some kind of libertarian mantra but an absolute necessity if we are to exit crony capitalism”?

Yes, but who will enforce that if not the “cognitively captive” regulators? Class action lawyers? Sheesh! They’re as unpopular as bureaucrats, and justifiably so in many, many (most?) cases. Dismantling regulation per se is not an adequate response. That will only leave us captive to megacorp or to a new cartel of judges and shysters with a chaotic jumble of 50 different rules, one per state.

On the other hand, a local bank, not answerable to a Mother Ship in New York City, might behave itself without massive, Washington-based regulation and without big gun bullshit slingers like the Breck Girl, John Edwards, to sue them if they do get out of line.

Isn’t this another indicator that we need some trust busting of the “too big to fail”? Then we can deregulate. Right?

Christian Legal Society and Hastings Law School

Not surprisingly, the New York Times editorial on todays hot Supreme Court ticket gets it wrong, starting with the facts. But the Washington Post gets it right, influenced, I assume, more by Jonathan Turley’s analysis that by Newt Gingrich’s epithet-laden call to arms.

The New York Times is factually wrong, as I understand it, that the Christian Legal Society Hastings Chapter “bars non-Christian and gay students.” CLS allows all students to attend meetings, but CLS bylaws barred non-Christians, gays and non-celibate heterosexual students from serving as officers or voting members. Even on its sexual standards, it recognizes human frailty: students, gay or straight, who lapse into unchastity are allowed as members and officers if they’re repentant. It’s those who reject the virtue of Christian chastity who are excluded.

Moreover, religions typically are exclusive. The Hastings policy in effect prefers non-exclusive religions (e.g., Unitarian Universalism – though I recall a debate even there about whether a pagan polytheist can style himself Unitarian – the “belief in, at most, one God”) over typical religions, despite the Constitutional requirement of neutrality of government between religions.

This is the slippery constitutional slope down which government starts the slide when it exalts faddish and undiscerning equality (by undiscerning, I mean disregarding relevant distinctions; I’m not intending to promote invidious discrimination) over explicit mandates of the Bill of Rights.

I believe that the government itself should not discriminate on irrelevant bases, and that sexual orientation, for instance, is generally irrelevant. But it is a much different matter, it seems to me, for government to fund things with tax dollars but require as a condition of funding that recipients not discriminate, however nonviolently, based on matters that are relevant within the logic of the recipient’s associative purposes. The controlling principal in funding, I believe and predict, is that of the Supreme Court’s “Rosenberger decision in 1995, after the school refused to pay for publications for religious organizations on campus: Fund all or none.” That quote, from Jonathan Turley’s discerning column, gets to the heart of the matter.

By the way, this dispute reminds me of a maxim that I believe I coined a few decades ago: In a regime of strict separation of Church and State, when government gets bigger, the Church is forced to get smaller. That’s why as a life-long Churchman (who has, however, switched Churches) I’m biased against big government.

Three additional matters that I don’t think qualify as an update (I simply failed to mention them although I intended to):

  1. The possibility that making sexual orientation a protected class would eventually lead to denial of tax exemption to religions that do not countenance unrepentant homosexuality has long been a powerful argument to me, based on the Bob Jones University tax exemption decision (mentioned in Jonathan Turley’s column), and Turley recognizes the power of that argument in his final paragraph or two or his column.
  2. Hastings law school will no doubt attempt to rely on the case Employment Division v. Smith, which abandoned a precedent of moderate duration in favor of the rule that laws may legitimately impinge on the free exercise of religion provided they are neutral laws of general application – a surprisingly difficult test to meet (some powerful group generally lobbies for an exemption, which prevents the law being “of general application”). Hastings will argue that its nondiscrimination policy applies to every student group seeking funding. I still think the “fund them all or fund none” principle will prevail. Denial of funding because of a belief nonviolently applied is much different than generally banning a particular behavior regardless of the motivation.
  3. For almost 25 years, I was a member of the Christian Legal Society. I stopped renewing my membership finally when I realized that CLS was pervasively Protestant. Although they accept as members Orthodox and Catholics who can subscribe their doctrinal beliefs, as could I, I simply was not being “edified” by their distinctive “take” on things.

Free speech – England versus United States

Occasionally I think our speech in the U.S. is a little too free – like when the tabloids traffic in gossips that should make the purveyor and the consumer both want to go home and shower off the slime. It’s the sort of thing that well-formed Christians will shun, but it’s pervasive in our culture.

But I’ll take our free-wheeling system in a heartbeat over the British system where libel suits are used to silence critics, and where the burden is on the critic to prove that what he said was true, not on the target to prove that it was false.

Even the British system comes out okay in the end sometimes, as told in “Now Charlatans will know to beware the geeks.” It seems that one “Simon Singh had written an article which was true and important about the dangers of the quack therapy of chiropractic healing.” In classic British libel law form, British chiropractors tried to kill the messenger:

Then, like so many authors and publishers before him, he learnedEnglish law persecuted rather than protected honest argument and that he was in trouble.

The British Chiropractic Association was suing him for saying that there was “not a jot of evidence” that its members could help sick children by manipulating babies’ spines in accordance with the teachings of a more-than-usually nutty American faith healer.

Well-run societies do not defend men who make money from worried parents and, more seriously, fob off their children with bogus “cures”. In his wisdom, however, Mr Justice Eady decided that the law would intervene to silence a debate on public health and ruled that it would not be enough for Singh to show that there was no reliable evidence that alleged treatments worked, which Singh would have difficulty in doing because there wasn’t. Because he had written that the chiropractic association “happily promotes bogus treatments”, the judge said he had to jump the insuperable barrier of proving that the therapists were lying rather than merely deluded and face costs of £500,000 or more if he failed.

But this time the intimidation didn’t work:

Far from being depressed, the audience turned into a heaving mass of furious geeks, who roared their anger and vowed that they would not rest until they had brought down the rotten system The “skeptic movement” (always spelt with “k” by the way, to emphasise their distinctiveness) had come to Singh’s aid. He was now in the protective custody of men and women, who, with straight faces, introduced themselves by the titles of their blogs: “Hi, I’m Gimpy.”

“Jack of Kent, pleased to meet you, love your writing. This is Holford Watch, Zeno, Jago, and I thought I saw the Quackometer getting a round in at the bar.”

Unnerved by their determination, I said to Ben Goldacre, demolisher of pseudo-science in all its fraudulent forms: “The nerds are on the march. I wouldn’t like to be the one standing in their way.” An uncharacteristically mystical look passed over the great debunker’s face. “Yes,” he said. “Strike us down, we shall become more powerful than you could possibly imagine.”

Full disclosure: I go to a Chiropractor the way I went to my M.D. before I had a chronic condition that needed monitoring: when I’ve got a problem I think he can help, typically a characteristic headache that seems to originate in neck and shoulders. I’ve never met the kind of chiropractor who make sweeping claims:

Meanwhile, their allies tracked down the web pages of every chiropractor in Britain who was claiming they could treat asthmatic children and reported him or her to their local trading standards officer.

Back to the U.S.A. In my experience, lawsuits are used to silence critics here as well, despite our free speech tradition. It may not be a straight-up libel suit, but rather may take the form of an “intentional infliction of emotional distress” claim or even a discrimination claim if the quack is in some sort of minority. I’m defending one right now (it’s unusual for me to litigate).

The problem is well-enough known that states have enacted laws to punish those who start the aptly-named SLAPP suites – Strategic Lawsuits Against Public Participation.

I once was sued in a SLAPP by my city government for signing a petition asking it to enforce a zoning ordinance. Diana Vice, who blogs at Welcome to My Tea Party, has been sued by a roofing contractor in something that – let me be cautious here – fairly plausibly looks like a SLAPP suit by a roofing contractor that does a lot of work for school systems in ways that Vice finds fishy.

I wish Judges wouldn’t be so hesitant to impose an award of attorney fees to a winning defendant, because these suits are effective to at least “chill” free speech on important topics as long as there’s a prospect of spending unreimbursed 5-figure attorney fees as the price of speaking out.

Also, it’s particularly important that guys like Singh prevail in Britain because British law is being used to silence critics in cyberspace, which knows no borders, world-wide — on the theory that the American author spoke or “published” in Great Britain, which accordingly has jurisdiction to entertain complaints of the aggrieved — oh, let’s say Czech. You get the idea. Because someone in Britain read it on the internet, British courts can referee the spat between two non-Brits.

And it’s especially gratifying that the cyber-community mustered the evidence to win Singh’s suit.

Goldman Sachs

I feel sorry for some of the people – astonishingly few – who realized what a house of cards we were living in financially two years ago and who put their money where their mouth was by short-selling.

Why should I feel sorry for them? Because they called it exactly right, but lost money anyway because the government bailed out some of the companies they were shorting.

Not so John A. Paulson. Although the New York Times re-tells his story today – under a headline that sounds like a lament (Investor Who Made Billions Not Targeted in Suit) – he got exactly what he deserved: richly rewarded for an audacious big-time bet that was spot on accurate. (It was more complicated than regular short-selling, but the concept was the same: he foresaw the collapse of collateralized debt obligations in mortgages and sought a way to profit if he was correct.)

Why should anyone think for a minute that he would be targeted in a lawsuit?

Has it come to that? Anyone who gets rich gets sued by some ambitious prosecutor playing to the rubes in the peanut gallery?

Yeah, in New York state it did come to that under the corrupt Eliot Spitzer, whose disgrace from whoring around is fading waaay too fast. Before he was governor, he was Attorney General, and made his political fortune filing extortionate suits against people who had committed no recognized crime but had made out well enough to incite envy – or to be susceptible of inciting populist envy if Spitzer played it right. This, for just one instance (suscription may be required).

Kudos to prosecutors who targeted double-dealing Goldman Sachs (I’m not prejudging the criminality of this particular case – though it seem likely to me) and left Paulson alone. May their tribe increase.

UPDATE:

It’s worse than I thought for Goldman. Here:

Among other things, the commission alleges that, starting in early 2007, Fabrice Tourre, a vice president working in Goldman’s New York headquarters at the time, structured and marketed Abacus 2007-AC1 — a syntheticcollateralized debt obligation tied to the performance of a bunch of residential mortgage-backed securities. The problem was that he did this without telling Abacus investors that John Paulson, a prominent hedge fund manager who made billions of dollars by famously betting against the mortgage market, had selected the mortgage-securities that went into Abacus specifically because they were so lousy.

And then, the S.E.C. alleges, Paulson bet against Abacus and made $1 billion, while the investors — among them, ABN Amro and IKB, two big European banks — lost $1 billion when the real-estate market collapsed.

So Goldman helped Paulson package bad mortgage-backed securities so that when the unwitting bought them, Paulson could borrow them and short them? I think so. And then Goldman sold them to the unwitting without mentioning that “this package was specifically bundled to be especially crappy”? So says the complaint! And here:

A number of journalists and commentators (yours truly included) have taken issue with the fact that some dealers (most notably Goldman and DeutscheBank) had programs of heavily subprime synthetic collateralized debt obligations which they used to take short positions. Needless to say, the firms have been presumed to have designed these CDOs so that their short would pay off, meaning that they designed the CDOs to fail. The reason this is problematic is that most investors would assume that a dealer selling a product it had underwritten was acting as a middleman, intermediating between the views of short and long investors. Having the firm act to design the deal to serve its own interests doesn’t pass the smell test (one benchmark: Bear Stearns refused to sell synthetic CDOs on behalf of John Paulson, who similarly wanted to use them to establish a short position. How often does trading oriented firm turn down a potentially profitable trade because they don’t like the ethics?)

Yet the author of that block quote continues:

Strange as it may seem, structured credit-related litigation is a new area of law, with few precedents. Until the credit crisis, unhappy investors seldom sued dealers and other key transaction participants.

This may be why the commission is pursuing this as a civil case rather than criminal. What Goldman did was not clearly a crime.

But it sure smell bad.

Replacing Justice Stevens

The world of punditry is full of opinions about filling the seat of Justice John Paul Stevens upon his long-overdue retirement this summer, so important has become the Supreme Court to our polity.

Doug Masson, perhaps half-jokingly, defended what I’d call a moderately activist judiciary. It’s moderate because the activism Doug advocated involved pulling legislative chestnuts out of the fire more than inventing new constitutional “rights”:

What occurred to me only later is what immense responsibility this would place on legislators if they were actually forced to deal with nothing but strict constructionist judges. They’d have to think through the full implications of what they wrote into law without being able to trust that judges would be, well, judicious in how the law was applied …

I’ve read enough legislation and draft legislation in my time to shudder a bit at the thought of judges applying the language absolutely in all situations unless the text specifically instructs them not to regardless of whether doing so makes sense or seems remotely just. That would really up the pressure on legislators to craft legislation meticulously, being sure to describe every caveat and exception.

I agree completely with Doug that lots of legislation is drafted shoddily, but I think that’s partly a consequence of knowing that the Court’s will bail them out.

I’d love to see our legislatures become something other than the Branch of Grand-and-Voter Pleasing Platitudes. Courts legitimately resolve ambiguities in positive law (i.e., legislative enactments), but a law can be unambiguously stupid. Unless there’s no rational purpose to it, judges should enforce it with perhaps a rebuke thrown in for the legislature (e.g., “What in heaven’s name they were thinking when they wrote this is beyond me, but ….”)

I am particularly appalled at the increasingly common disregard of legislators – at all levels, including County Commissioners – to shrug off their oath to uphold the Constitution by saying, in effect, that “constitutionality is for the courts to decide; I think this law will please my constiuents, so to hell with my oath.” (Okay, I exaggerate, but only a little.)

Adam Liptak at the New York Time is one of many noting that Stevens is, formally, the last Protestant on the Supreme Court:

His retirement, which was announced on Friday, makes possible something that would have been unimaginable a generation or two ago — a court without a single member of the nation’s majority religion.

I cannot recall what Protestant allegiance Stevens ever claimed, but were it not so implausible, I’d suspect he was a soul-competency Baptist. As I wrote quoted soon after his announcement:

[I]n four different places in an opinion barely five paragraphs long, Justice Stevens used the word “indoctrination” as a synonym for religious education. Stevens asserted that the voucher program was being used to pay for “the indoctrination of thousands of grammar school children.” He surmised that an educational emergency might provide a motivation for parents to “accept religious indoctrination [of their children] that they otherwise would have avoided.” He decried the fact that “the vast majority” of voucher recipients chose to receive “religious indoctrination at state expense.” And he depicted the voucher program as a governmental choice “to pay for religious indoctrination.”

This is not an unfair summary of Justice Stevens’ hostility to any religion that actually has doctrinal content that adherents think should be preserved and transmitted.  I infer that his deprecatory use of “indoctrination” reflects the view that everyone should decide all this stuff for himself or herself – a very, very American approach that has led to countless sects, cults and semi-Christian denominations, not to mention multiply-countless unaffiliated Churches (unaffiliated means you get whatever the Pastor feels like today – kind of like following a blog, except that bloggers, taken with the appropriate grain of salt, are less likely to lead you to delusion and damnation).

See also Ann Coulter’s entertaining take on the last Protestant. (Coulter is like a 15 car pileup – I feel guilty for reading her sometimes, but it’s irresistible. She is quite smart about the law, too.)

I agree with George Will that political experience is not a prerequisite, and I always have shuddered when someone like Oren Hatch is mentioned as a potential Supreme Court nominee because his colleagues respect him, he could be confirmed fairly easily, and he once upon a time went to law school.

Lastly, I’d say Timothy Egan is right on the facts about Harvard and Yale being disproportionately represented on the Court, but I’d sure hate to see law school diversity become a criterion for nomination. Yeah: Michigan, Chicago, Stanford (Justices O’Connor and Rehnquist, I believe) are top-tier, and I wouldn’t expect a Justice from the top tier of one of those institutions to be appallingly stupid. But I suspect, especially from his title (“Supreme Club”) that Egan is engaged in a little populist posturing at the highly elitist New York Times.

What’s going on here? Boy Scout sex abuse case.

This Wall Street Journal story blind-sided me this morning. I was unaware of this lawsuit.

On the one hand, the Boy Scouts have been roundly vilified, and even banned from city-owned buildings in gay-friendly cities, for expelling scouts who come out. Now an Oregon jury thinks they were too lenient about pedophile scoutmasters:

The jury found the national body 60% negligent for the abuse and the local council just 15% negligent, assessing economic damages of $840,000 and $210,000, respectively.

Deliberations on punitive damages—the plaintiff’s attorneys are asking for $25 million—resume here next week.

I know the connection between homosexuality and pedophilia is disputed, and denial of any connection seems very plausible to me.

But on the theory that “we’re just like you except that we prefer the same sex,” I consult my own feelings (especially when I was a younger adult) about sexually mature adolescent girls. Hmmm. It seems to me that it would be highly imprudent to put a young straight guy in a position where he could finagle sexual access to nubile female charges.

By “just like you except …” extension, is it not imprudent to allow a gay adult male to be in charge as Scoutmaster of a bunch of sexually mature if young adolescent boys?  (Note, however, that the plaintiff here was apparently 11 or 12 during the abuse, and likely pre-pubescent.) We had a local tragedy as a result of “out” gay Greg Ledbetter being put in charge of troubled adolescent boys (although he was caught later, elsewhere), and the politically correct line throughout was that the charges against him were not even plausible, but were cooked up by fanatical homophobes.

The national Boy Scout organization apparently tried to avoid such problems:

[T]he Portland case against the Boy Scouts drew national attention, in part because it was one of the very few times jurors have been allowed to review secret “perversion files” the Boy Scouts compiled against its own membership.

The national organization in the past has tried to keep those files out of court proceedings, but lost an appeal to the Oregon Supreme Court last February that would have kept confidential its files on pedophiles dating back to 1964. During the trial, attorneys for the Boy Scouts argued that the files demonstrated the lengths Boy Scouts officials have gone to police their ranks and keep suspected pedophiles away from children.

Attorneys for the defendants declined to comment, citing the coming deliberation on punitive damages. The Boy Scouts of America issued a statement on its Web site denouncing the jury’s decision.

“We are gravely disappointed,” the scouting organization said. “We believe that the allegations made against our youth protection efforts are not valid. We intend to appeal.”

I’m imputing no political agenda to the Plaintiff in this case, but is this a “damned if you do, damned if you don’t” dilemma for the Scouts? How can an organization the puts adults and kids together steer between the Scylla of phobia and the Charybdis of laxity?

Tactical shift coming in Supreme Court confirmation fight?

Since Roe v. Wade was imposed on us by the Supremes 37 years ago, there has been a pervasive “abortion distortion factor”:

The “Abortion distortion factor” is that phenomenon whereby when established rules of law encounter the abortion right, the established rule is bent to accomodate the abortion right.

(Bopp, James, in A Passion for Justice – A Pro-life Review of 1987 and a Look ahead to 1988, at page 80) That factor has been huge in most Supreme Court appointment battles since 1980 – generally couched in code words and litmus tests that fooled no observant observer.

The successor for Justice Stevens may face a significantly different constellation of questions, centering on “Obamacare” partly because that issue works to the benefit of the Republicans though so pervasive is the Abortion Distortion Factor that it won’t be entirely out of play:

Another set of questions could prove embarrassing for Democrats who have lauded Griswold v. Connecticut and Roe v. Wade for creating a right to privacy that includes contraception and abortion. “How can the freedom to make such choices with your doctor be protected and not freedom to choose a hip replacement or a Caesarean section?” asks former New York Lt. Gov. Betsy McCaughey in The Wall Street Journal. “Either your body is protected from government interference or it’s not.”

McCaughey also notes that in 2006 the Supreme Court in Gonzales v. Oregon ruled that the federal government couldn’t set standards for doctors to administer lethal drugs to terminally ill patients under Oregon’s death with dignity act. So does the Constitution empower the feds to regulate non-lethal drugs in contravention of other state laws?

Such questions may not persuade an Obama nominee to rule that Obamacare is unconstitutional. But they can raise politically damaging issues in a high-visibility forum at a time when Democrats would like to move beyond health care and talk about jobs and financial regulation. Stevens apparently timed his retirement to secure the confirmation of a congenial successor — but some Democrats probably wish that he had quit a year ago, when they had more Senate votes and fewer unpopular policies.