Watch Doan's Memory at Work

If you'd like to see Lurita Doan try to explain what Scott Jennings was doing at GSA with slides about the 2008 elections, you can do so here.

Worth watching. It's particularly amusing to see Doan deny that a reasonable interpretation of the slide headed "2008 House Targets: Top 20" was that it was a political attempt to try to target the top 20 Democratic candidates for defeat in 2008. She says no, "I would say that this is a slide that says '2008 House Targets: Top 20.'" (Watch from 6:40 left.) Sheesh.

She can't remember the meeting, she can't remember what she said at the meeting, she can't explain what these slides have to do with GSA's core mission of managing government buildings.

It sure seems like a clear use of government offices for political campaign purposes.

Wanted: Managers with Bad Memories

Obviously, a major criterion for working in the Bush Administration is having a bad memory. Lurita Alexis Doan, the Administrator of the General Services Administration (which manages the federal government's buildings), says she can't remember much of what happened at a meeting just two months ago, this January 26.

At the meeting, Scott Jennings, a top aide to Karl Rove, gave a PowerPoint presentation on highly political topics, such as which were the White House's top 20 2008 House targets (i.e., House seats they hope to pick up in 2008). Doan says she "honestly do[es]n't have recollection of the presentation at all." According to others present at the meeting, Doan asked her top staffers "How can we use GSA to help our candidates in the next election?" When asked whether she said that, her response was, "I do not have a recollection of actually saying that."

No recollection? Wouldn't you remember, yes or no, whether you made a statement like that? It's a little different from "pass the mustard," I would say.

By saying that she "has no recollection" of making the statement, Doan is saying that she might have said it. She can't tell us that she didn't say it. It would have been more comforting, wouldn't you think, if she had said, "Well of course I would never have said such a thing because it would have been completely inappropriate to suggest that we 'use' a government agency to support 'our' candidates."

So let's see. Doan can't remember whether or not she blatantly politicized the GSA. Alberto Gonzales can't remember being involved in the U.S. Attorney firings -- or, more precisely, "doesn't recall having a recollection about having deliberative discussions," according to stand-in spokesperson Dana Perino. President Bush himself also "has no recollection" of suggesting the firings, although "anything's possible," according to Tony Snow. And of course Scooter Libby's memory has more holes than a Swiss cheese.

Can't anybody in this administration remember anything? Perhaps they're just very good at understanding which things are best forgotten.

Cue the Orchestra

I'm sorry, but I just can't help thinking of the Pirates of Penzance every time I hear about Major General Stanley McChrystal, commander of the Joint Special Operations Command. Fortunately for him, he seems to have been promoted to Lieutenant General. Unfortunately for him, he is one of the officers implicated in the wrongful reporting of the friendly-fire death of Army Ranger Pat Tillman, back when he was a mere Major General. Investigators believe that he was "accountable for the inaccurate and misleading assertions" in papers recommending Tillman for a Silver Star. I guess he wasn't the very model of a modern Major General.

By the way, why does a Lieutenant General outrank a Major General?

ERA in a New Era

How interesting -- there's a new push to ratify the Equal Rights Amendment, which was originally proposed by Congress in 1972, and which fell just three states short of ratification in the 1980s. The amendment would provide that "Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex."

What would the ERA actually do if adopted today? I think the fair answer has to be "no one knows." Much of what it might do has already been done by the Supreme Court. At the time the ERA was first proposed, one could still point to Supreme Court cases suggesting that gender discrimination need only be supported by a "rational basis" -- the most lenient standard of review. E.g., Kahn v. Shevin, 416 U.S. 351 (1974) (upholding state law granting property tax exemption to widows, but not widowers). But the Supreme Court has changed all that. Current law requires that gender-based government action be supported by an "exceedingly persuasive" justification. E.g., United States v. Virginia, 518 U.S. 515 (1996).

So it's not quite clear what the ERA would do. I suppose it would, at a minimum, prevent the Supreme Court from unraveling what it has done in the sex discrimination area, which would be a useful safeguard. Conventional wisdom suggests that it would make sex a "suspect classification," and that laws discriminating on the basis of gender would be struck down as much as laws discriminating on the basis of race. But I am skeptical. A law requiring blacks and whites to use different public bathrooms in a state building (as was the practice in an earlier time in our history) would obviously be struck down forthwith, but, to use the example that anti-ERA people love to bring up, what about a law requiring men and women to use different public bathrooms, as is common? I am guessing that courts would probably find that the ERA was not intended to change this customary practice. Courts, I am guessing, would probably be willing to credit the justification that "men and women just feel uncomfortable using the same public bathrooms," even though the justification "blacks and whites just feel uncomfortable using the same public bathrooms" wouldn't fly for a moment.

In other words, I am guessing that no matter what language is used, courts will never quite put gender rules on exactly the same par as race rules. I am not saying that this is desirable or undesirable; it's just my view on what's likely to happen. The Equal Protection Clause already guarantees men and women the "equal protection of the laws," and I don't see that much difference coming from a specific prohibition on denying "Equality of rights under the law" based on sex. I would guess that the Supreme Court would end up thinking that both phrases mean something like "give an appropriate level of protection against gender discrimination."

OK, Now I'm Suspicious

Monica Goodling, senior counselor to Attorney General Alberto Gonzales, will refuse to testify before Congress about the firing of U.S. Attorneys. She's going to invoke her Fifth Amendment privilege against self-incrimination. She and her lawyers have prepared an affidavit and an explanation that claims that invocation of the privilege is appropriate, because Democrats in the Senate have already concluded that wrongdoing occurred in the U.S. Attorneys flap.

Hmm. Goodling and her counsel have cited a case, Ohio v. Reiner, 532 U.S. 17 (2001), which they claim supports her invocation of the Fifth Amendment privilege in this situation. In that case, a man was being prosecuted for manslaughter in connection with the death of his son, who had died of "shaken baby" syndrome. He claimed it was the babysitter who did it, and the babysitter refused to testify, even though she claimed complete innocence. The Supreme Court upheld the invocation of the privilege by someone claiming innocence, because part of the purpose of the privilege, the Court said, is to protect innocent people who "otherwise might be ensnared by ambiguous circumstances."

So I guess there is some basis for claiming the privilege here. Still, the case seems somewhat different. According to her counsel's own letter, one fear that Goodling has is that she might get prosecuted for perjury after testifying. And to be fair, in the current polarized political world, I can certainly understand the desire of a political official not to appear before a hostile Congress under oath. But still, I don't think the purpose of the privilege against self-incrimination is to protect people from having to testify truthfully. "I can't testify because I might lie" is not a very appetizing claim.

Even more important, the invocation of the privilege is highly suspicious. As I've said all along, the whole key to the U.S. Attorney "scandal" is why the fired U.S. Attorneys were fired. Even showing that the firings were "political" is not necessarily scandalous because some "political" reasons -- e.g., if the U.S. weren't fully on board with the administrations enforcement priorities -- would be perfectly appropriate reasons for the firing. Only if the reasons were "political" in a bad sense -- e.g., if the U.S. Attorneys were fired because they refused to stir up trouble for Democrats without regard to the evidence -- would there be a real scandal.

So what we need is evidence of why the firings really took place. And one probative piece of evidence is all the changes and contradictions in the administration's story. If the firings were done for a perfectly legitimate reason, why can't the administration just state that reason and be proud of it? Why does the White House keep changing its story? Did Attorney General Gonzales participate in the firing discussions, or didn't he? The changes and contradictions are suspicious.

Invocation of the Fifth Amendment is all of a piece with these suspicious circumstances. Outside the actual criminal contest, when a witness takes the Fifth, one is allowed to draw an adverse inference. If Goodling has to take the Fifth rather than testify, that raises the likelihood that the U.S. Attorneys were fired for some shameful reason. Can't the White House see that this kind of thing is just adding to its self-inflicted wounds on the U.S. Attorney issue?

Are we irrelevant?

Perhaps you saw Adam Liptak's piece in the NY Times about the disconnect between legal scholarship and judicial decisions (or perhaps not, it's behind the TimesSelect wall). Liptak observes that "Articles in law reviews have certainly become more obscure in recent decades," that "scholarship no longer had any impact on the courts," and that "the legal academy has become much less influential."

There's certainly some truth to this critique. When I read law review articles from about the 1950s, it's amazing how much influence some of them had. Professors wrote articles and the law changed. For some reason, a great deal of the legal academy deliberately ran away from the goal of having any influence on the law.

But not everybody. The law and economics movement has had tremendous influence. So have the legal feminists. And occasionally individual articles just nail an issue. I'll always remember the very first case I worked on -- a tragic case in which my client (the United States) had negligently failed to warn a woman that she had breast cancer, resulting in her death. But, according to the factual findings of the district judge, there was a 20% chance that she would have died anyway, even if she had been warned. How should that affect her damages? The classic rule was that if the lost chance is less than 50%, it has no effect on damages, but if it's greater than 50%, the plaintiff should recover nothing. In 1981 Professor Joseph King wrote an article in the Yale Law Journal called "Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences," which said that the better rule would be, in all cases, to multiply the plaintiff's total damages by the lost chance of recovery. I can't tell you how many different state courts said, "we used to follow the classic rule, but Professor King's article convinces us to follow his rule." Wow. That guy had influence.

I don't understand why professors wouldn't want to have that kind of influence, and I think the bulk of us still do want that. At this point, I agree with Michael Dorf, who said that "The claim by judges that they have no use for law review articles seems to me an anti-intellectual know-nothingism that is understandable but regrettable." The fault lies on both sides. We need to make our articles shorter and more accessible (kudos to law journals for encouraging this recently), and judges need to look for them.

Your Purchase Is Free

No legal content today, but can I just ask when it was decreed that every retail lunch shop has to have a sign saying, "If I fail to give you a receipt, your purchase is free!"? When was the last time you needed to prove that you owned your lunch? I suppose one customer in fifty gets reimbursed. Let that one customer ask for a receipt. I came to buy a sandwich, not a piece of paper.

What's particularly annoying is that the cashiers have become adept at handing you first the dollar-bills part of your change, then the receipt, and then the coins on top, so that the receipt is sandwiched in the middle and hard to get rid of.

I think we all know that stores don't do this out of concern for the customers. It's to make sure the cashiers don't put the money in their pockets. To save stores from pilfering, we're all walking around with bits of paper we don't want.

Welcome new readers

Welcome to readers who found the blog because Slate magazine picked up my post about Khalid Sheikh Mohammed's confession and because the Guardian Newspaper of Britain featured it on its "Comment Is Free" page. Your comments are welcome -- feel free to post.

U.S. Attorney Explanations Continue

I explained yesterday that whether the U.S. Attorney scandal is really a scandal turns on the reason for the firings -- some potential reasons are perfectly legitimate; others would be scandalous. Today's news -- that fired U.S. Attorney Carol Lam notified the White House of a major step in her investigation of well-connected defense contractors one day before Alberto Gonzales's chief of staff Kyle Sampson wrote an e-mail saying there was a "real problem" with her -- hints at the sinister explanation, although frankly, it's not as probative as one might think. I expect that there were so many steps involved in these firings, and U.S. Attorneys always have so much going on, that some temporal connection between something a U.S. Attorney did and a step in a firing would be expected by coincidence.

More probative, to me, is the fact that the White House keeps changing its story about what happened. If there was a legitimate reason for these firings, it shouldn't be that hard to state it. Continually changing explanations suggest a cover-up.

They also suggest, to me at least, that this isn't a Karl Rove operation. If Rove were in charge, you know he would have knocked this out of the park right away. He would have said something like, "the fired U.S. Attorneys weren't cooperating with our immigration enforcement policy. Do they really suppor the war on terrorism? We can't afford to have U.S. Attorneys who are squishy on terrorism. 9/11 changed everything, you know."

U.S. Attorney Redux

As the U.S. Attorney scandal deepens, I've been asked if I stand by my previous post on the subject. The answer is yes, but perhaps it's time for some more detail.

As I said previously, the position of U.S. Attorney is a political position. U.S. Attorneys get their jobs by being well-connected (in addition to having the necessary legal talent), and if after a few years in office they get pushed aside to make room for someone who's even better connected, that's just life in the world of politics. Not the best management practice, perhaps; not something that's likely to inspire people to want to work for you; but not a scandal either.

It's also legitimate for the President to remove a U.S. Attorney who isn't on board with the administration's enforcement priorities. The notion that each U.S. Attorney should have full autonomy over prosecution policy in his or her district is untenable. Enforcement resources are scarce and it's up to the President and the Attorney General to set national priorities. Some administrations want to invest heavily in going after pornographers and drug traffickers; others want to focus on corporate malfeasance and polluters. The President can't effectively implement his law enforcement priorities if 90 different U.S. Attorneys each have their own right to set priorities in individual districts. So removing a U.S. Attorney who refuses to carry out the President's legitimate enforcement priority decisions is appropriate.

But the key word here is legitimate. The President can have legitimate enforcement priorities, but he, like an individual prosecutor, shouldn't be abusing his authority. U.S. Attorneys should be making individual prosecutorial decisions based on the evidence in each case, not on the basis of which political party the potential defendant supports. The President can decide that enforcement resources should be directed to stamping out voter fraud, but telling a U.S. Attorney to make trouble for Democratic candidates whether they are engaging in fraud or not would cross the line. It would be the duty of a U.S. Attorney to resist such a request, and firing a U.S. Attorney for such resistance would be a scandal.

So it all depends on what was really going on. Evidence that U.S. Attorneys were pressured in a political, partisan way (as by phone calls from politicians, to ask if they were going to bring charges against Democrats prior to the 2004 elections) is disturbing.

And of course, lying about why U.S. Attorneys were fired is wrong too. The administration keeps changing its story about what happened; it should gather the facts and then tell the truth.

My old classmate Jack Goldsmith has a good article on the whole thing in Slate with Dahlia Lithwick. Adam Liptak's piece in the Times is good too.

Bush supports independent judiciary!

President Bush demonstrates his understanding of the importance of not just believing every charge brought against anyone without some independent investigation: "I support a plan that says that there’ll be an indpendent judiciary analyzing every charge brought forth, and when someone is found guilty there’s punishment," he said.

Good news for U.S. prisoners on Guantanamo Bay and elsewhere, held for years without access to judicial proceedings? No, President Bush was referring to the need for indpendent judicial investigation into charges that political allies of Colombia's President Alvaro Uribe are tied to right-wing death squads in that country. Independent judicial investigation is for charges in other countries; our executive branch gets to hold people on its own authority.

D.C. Voting Rights Advances; Still Unconstitutional

The House Judiciary Committee voted 21 to 13 to send the D.C. voting rights bill to the House floor. The bill would give the District a vote in the House of Representatives (and in a Missouri-compromise-like provision, also add a seat for Utah, so Democrats and Republicans would each advance by one). It looks like the bill might actually pass the House, although its prospects in the Senate are less clear. It's an exciting moment for the District, where our lack of representation in the Congress has long been a national disgrace.

Unfortunately, as I explained here and here, the bill is blatantly unconstitutional. The Constitution limits representation in Congress to states. The District is not a state. That's really a problem. I know some heavy hitters (including Viet Dinh, Ken Starr, and my former boss, Judge Patricia M. Wald) have endorsed the constitutionality of the bill, but I just don't buy it. Sorry -- I agree that the status of the District is scandalous, but we have to obey the Constitution as we fix it. Maybe it can't even be fixed without a constitutional amendment.

More on the time stamp

OK, OK, I see now that it was my responsibility to tell Blogger that I was now posting from Eastern Daylight Time, not Eastern Standard Time. So I guess this post took a somewhat unfair dig at Google. But still, hmm . . . . couldn't Google's Blogger program have guessed that I, in the Eastern time zone, just might, possibly, maybe, have moved my clock forward on the same day as every other American as mandated by Act of Congress? Did I really have to tell it that I was not staging a one-man protest against the time change and still keeping myself on Standard Time while everyone else was on Daylight Time? As an old colleague of mine used to say whenever he made some similarly absurd adjustment to his computer, "someday computers will do this for us."

Mohammed Confesses

Khalid Sheik Mohammed confessed to planning the 9/11 attacks, according to a transcript of a secret hearing released by the Pentagon.

I believe Mohammed is a terrorist, although I have only the U.S. government's word for it. But let's face it, we picked this guy up four years ago, we've held him in secret detention centers for years, he has no access to counsel, and we've subjected him to who knows what treatment. After all that, I'd confess to shooting the Pope.

If we're going to abandon our ideals of justice in pursuit of the war against terror, we have to accept that confessions we obtain will have limited credibility. Maybe Mohammed did plan 9/11, but I don't believe it because of his confession. I want some real evidence.

Google Stung By the Clock Bug

By the way, I'm not really posting at 6:15 am. Google just hasn't adjusted its clock for daylight savings time. I've adjusted my clocks, and I'm not a powerhouse technology corporation!

More on D.C. Voting Rights

In yesterday's post, I complained that the proposed D.C. Voting Rights Act, which would give the District (as we locals call it) a vote in the House of Representatives, is unconstitutional. I didn't mention the main argument of those who support the bill: they rely on the "District clause" of the Constitution, which provides that Congress shall have power "To exercise exclusive Legislation in all Cases whatsoever" over the District.

This argument is just too ridiculous. Yes, Congress has a lot of power over the District--all the powers that a state government has over a state--but it still has to obey the rest of the Constitution. Congress can't ban free speech in the District. Congress can't provide cruel and unusual punishment for crimes committed in the District. Congress can't take private property without just compensation in the District. And Congress can't violate voting rights in the District -- in this case, the voting rights of everyone who lives in states, who have a right not to have their representative's votes diluted by the presence of unconstitutional votes in the House.

The pro-Bill forces have some heavy hitters vouching for these arguments, but this one is just silly. That's why I focused on the argument that the District can be treated as a state for other purposes, which at least is in the running.

Taxation without Representation

A House committee has now approved a bill proposing to give the District of Columbia a real vote in the House of Representatives.

What a great idea. District residents (including me, I should disclose) are U.S. citizens. We pay taxes, serve in the armed forces, do our jury duty, and fulfill all the other obligations of citizenship. But we have no representation in Congress. It's a national scandal. Giving us a vote in the House is only a half-measure -- we need Senators, too -- but at least it would be a half-measure in the right direction. We should have representation like anyone else.

There's just one, small problem. The bill is blatantly unconstitutional.

Article I, section 2 of the Constitution provides that "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States." D.C. is not a state. So it can't have representation in the House. End of story.

Sorry. No one wants the District to have full voting rights more than I do, but it can't be done in an unconstitutional way.

Congress is relying on opinions from some big legal guns, including Ken Starr, Viet Dinh, and my favorite former federal judge, Patricia M. Wald (I clerked for her). Their opinions point out that courts have approved treating the District as a state in some other contexts. But I just can't believe the Supreme Court would go for it in this context. Representation is basic. The Constitution says that Congress is made up of representatives of the states. D.C. is not a state.

The best solution, as I wrote years ago, is to give the District back to Maryland. The Virginia part of the District was given back to Virginia in the 19th century. If we reunited the District with Maryland, then the city government could handle the city-level functions, the state government could do the state-level functions, and Congress could do the national stuff. The District would be represented at every level. We'd be like any other city in the nation. It works everywhere else, why not here?

That would probably require a constitutional amendment too. But I say, first let's figure out the right structure for the District, and then we can overcome the obstacles to getting there.

Microsoft Tightens Its Grip

I always knew the day would come when I would be forced to use Microsoft Word whether I wanted to or not. Well, that day is just about here.

I've always used Wordperfect. It's the superior product. At least, it was the last time I did a serious comparison -- I have to confess that I'm about three product generations behind on both products (my employer still supplies me with Wordperfect 10), and for all I know Word has caught up with or perhaps even surpassed Wordperfect. So what I say may not be true any more. But really, the "reveal codes" feature of Wordperfect makes things so much easier. And Wordperfect is (or was) much better for footnotes. Legal writing is footnote-intensive, so this is important. And if there's one thing I really hated about Word (again, for all I know this is fixed in the most recent version), it was that if you try to delete from where you are to the end of the text in a footnote, you get the message "This is not a valid action for footnotes." You have to delete from where you are to just before the end. Sheesh. As though the software couldn't be set up to do that for you.

Anyway, I now have nearly 20 years of investment in Wordperfect. I know the keys, I know the tricks, I know how to use it. I've got nearly 20 years of files in WP format. Changing would be a royal pain, especially since WP to Word file conversion doesn't work very well.

But here it comes, I'm just going to have to change. The problem is that everyone else uses Word. It's what the economists call a "network effect." Part of a law professor's life is submitting written work to others, and all the others expect the work to be in Word format. If it's not, it causes problems.

In particular, every law review I know about now uses Word. When a law review accepts your article, the first thing they do is convert it to Word. Formatting disappears, footnote cross-references disappear, other problems arise, it's a pain.

But even with all that, I've just been putting up with it, but now, the end is in sight. Law reviews increasingly insist that articles be submitted in Word format, electronically. So long as I could submit on paper and get my articles accepted, I could put up with the annoyance of conversion difficulties afterwards. But being disadvantaged in the acceptance process is too much. I'm just going to have to switch.

It's a pity that Microsoft gets so much advantage because it's a monopoly. But once pretty much everyone is using Word, there's a substantial disadvantage to being in the minority. I've held out for a long time, but I can see I'm just going to have to switch.

Pardon Me

Even President Bush senses that it would be a good idea to stay out of the Lewis Libby case, at least until the appeal is over. Libby's supporters are agitating for a pardon.

You heard it here first: Libby's lawyers will drag out the appeal as long as possible (with Libby remaining free pending appeal) and then Bush will pardon Libby on November 5, 2008. That's the day after the 2008 election. That way, Bush can reward his loyal aide while not suffering political consequences.

Like the Marc Rich pardon (granted by President Clinton on his last day in office), the Libby pardon will reveal a structural defect in the Constitution. The only check on the pardon power is the political anger of voters at ill-conceived pardons, but they can't effectively punish anyone for pardons issued during the lame-duck period after a presidential election. Amusingly, Libby used to work for Marc Rich.

The solution is that a President's pardon power should expire 60 days before the presidential election. That would give the President plenty of time to issue pardons, and then the voters would have sufficient time to learn about them at take them into account when voting. Second-term Presidents would be somewhat less subject to check, but would probably still want to protect their party from voter wrath.

Unfortunately, this change would require a constitutional amendment, and it's probably not important enough to worry about. But maybe, with a couple more high-profile bad-news pardons, it could happen.

Attack of the Tax Protestors!

I've mentioned before that I have a strange fascination with tax protestors, those sometimes naive, sometimes wily, and sometimes crazy people who think there's no law requiring you to pay federal income taxes. As a small public service, I've devoted a section of my website to laying out exactly what the law is.

It turns out that hundreds of people look at this section every day, and I get a fair bit of mail about it. Some, about half or a bit less, comes from people who are right in my "target market" -- they've seen tax protestor stuff on the Internet or they've heard it from friends; they find it at least somewhat plausible; they wonder, "could this possibly be true?"; and they mail me to say they were happy to find reliable information that showed them the actual law. The other half, or perhaps a bit more, comes from irate, unreachable individuals, who accuse me of being ignorant, or, even worse, part of a massive conspiracy to hide the truth from hard-working people who are having their money stolen by the government.

Yesterday, one of the leading protestors, a fellow named Larken Rose, a big proponent of something called the "861 argument" (it's too complicated to go into, but it claims that section 861 of the tax code and some other sections and regulations show that the domestic income of U.S. citizens is not taxable), sent his fan base a message reviewing my web page that responds to the 861 argument.

Wow. My hits went through the roof and I got more mail than I could respond to. "Yale & Harvard didn't teach you much," was one correspondent's subject line. "[Y]our treatment of the subject matter (in my opinion) was so superficial and incomplete, I wouldn't deem it worthy of a FIRST YEAR LAW STUDENT's effort," said another. In response to the demand for more detail, I actually updated my 861 page and added a further 861 page with more detailed quotations and citations.

What drives these people? Why do they so resolutely believe such complete nonsense? I point out on my web page that Larken Rose recently finished serving a substantial prison sentence for income tax evasion. You might think that that would influence some people's opinion as to whether he is a trustworthy source of income tax information. But no, it only seems to enhance his credibility in their eyes. Why? It would be an interesting anthropological study to find out.

My untrained guess is that some people have a deep-seated yearning to believe that there is a massive conspiracy against them. Some of my income tax correspondents have also provided allegedly conclusive evidence that the U.S. government blew up the Oklahoma City federal building or the World Trade Center. Many tax protestors also believe that the government is enslaved by the Federal Reserve banks and must do whatever they say, including oppressing the public. Perhaps the belief in such a conspiracy helps people to cope with setbacks and hardships in their life -- it must be some comfort to think that their problems stem from forces that they couldn't be expected to control. But of course this is just armchair psychology.

I've tried to explain to some of my correspondents that even if their were a government-wide conspiracy to hide the truth about the income tax code (which is obviously a fantastical notion already), such a conspiracy could never extend to all law professors and private lawyers. There are innumerable law professors and lawyers who've made their whole career out of suing the government and bringing government injustice to light. My own colleague Jonathan Turley, for example, has sued the government about Area 51, about environmental issues, about national security matters, and much else. He's not afraid to sue the government for anything, and he's just one of many, many lawyers who do the same kind of thing. If there were a legitimate argument that most people don't have to pay income taxes, and that the government is concealing this truth, these lawyers would be making that argument, especially considering that the financial incentive to do so would be enormous.

Some correspondents seem a little moved by this argument, but most of them prefer to stick with their conspiracy theories and to take their legal advice from convicted felons instead of from respectable lawyers and law professors. Strange.

Well, it's amusing to have achieved some tiny amount of fame, even if it's only in the bizarre Internet world of tax protestors. Maybe some day I'll be as well known among a wider audience.

FNC before jurisdiction?

OK, this post is for lawyers only. And frankly, even most lawyers will find it boring. I'll try to get something of more general interest up later today.

Today the Supreme Court decided Sinochem Int'l Co v. Malaysia Int'l Shipping Co.. In this dispute between a Chinese company and a Malaysian company, the district court dismissed on grounds of forum non conveniens, even though it was uncertain whether it had personal jurisdiction over the defendant, and there was some issue about subject matter jurisdiction too. The burning question thus presented: can a district court dismiss on FNC grounds without first making sure it has jurisdiction?

The Court said yes. Nine years ago, in Steel Co. v. Citizens for Better Environment, the Court took quite a harsh view of the doctrine of "hypothetical jurisdiction." Sometimes, a court is faced with a case posing a difficult question of jurisdiction, but it's obvious that the plaintiff's ultimate claim on the merits is a complete loser. In such cases, the lower courts had gotten into the habit of saying, "why should we waste our time deciding the hard jurisdictional question when we can see that the plaintiff is just going to lose anyway?" and dismissing these cases on the merits. This sensible procedure saved everyone time and effort.

Well, the Supreme Court got all huffy and reminded those unruly inferior judges that jurisdiction is sacred. A court cannot act if it lacks jurisdiction, and so "hypothetical jurisdiction" is forbidden. A court must make sure it has jurisdiction before dismissing a case on the merits, no matter how easy the merits question and how hard the jurisdictional question.

This insistence on jurisdictional purity naturally led to much waste of time, and the Supreme Court has been backing away slowly ever since. In Ruhrgas AG v. Marathon Oil Co. (1989), the Court held that a court can dismiss a case for lack of personal jurisdiction without deciding whether it has subject-matter jurisdiction. Even though subject-matter jurisdiction is usually thought of as being "above" personal jurisdiction, the Court held that there is no jurisdictional hierarchy. So a personal jurisdiction dismissal is not a real "action" that a court must have subject-matter jurisdiction to take.

Now we go even further. Today's decision seems to say that all non-merits bases for dismissal are equal. Even without any kind of jurisdiction, a court can dump a case on forum non conveniens grounds. Presumably insufficient service of process would fall in the same category.

Probably there will now be years of wrangling about what constitutes a non-merits basis for dismissal. Lack of prosecution? Probably OK. How about laches, statute of limitations, or res judicata? I'm guessing those are merits bases, but who knows.

What a waste of time. If the plaintiff loses, the plaintiff loses. I can see the arguments against hypothetical jurisdiction (for example, courts can't act at all without jurisdiction; we have to guard the federal courts' limited jurisdiction; the plaintiff shouldn't be bound by a ruling on the merits if the court should have dismissed for want of jurisdiction; etc., etc.) but I find it difficult to get worked up about them. Expending time and resources in the name of doctrinal purity just seems wasteful. If the case has to be dismissed, let it be dismissed as soon as any reason for dismissal becomes apparent.

Amusingly, today's other case, Lance v. Coffman, turns on adherence to jurisdictional niceties!

Those U.S. Attorneys

Everybody's upset about the Bush administration's firing of eight U.S. Attorneys. It looks like -- gasp -- some politics may have been involved in the decision to dump these federal employees, although the Justice Department insists the firings were performance related. The Internet is abuzz with theories about what really happened.

Let's start with the basics. U.S. attorneys -- the federal government's chief lawyer and prosecutor in each of 94 judicial districts around the country -- are political appointees. They serve "at the pleasure of the President." That means the President can fire them at any time, for any reason, or for no reason at all.

Therefore, it's difficult for me to engage my sympathy muscles when I hear the ousted prosecutors complain that their treatment isn't turning solely on their job performance and that some of them may have been brushed aside so that up-and-coming Republican pols could get some padding for their resumes. How do the ousted attorneys think they got their jobs in the first place? It wasn't by being the best lawyers around. I'm sure they're good lawyers, but there are a lot of good lawyers. They got their jobs because of political connections. Democratic U.S. Attorneys who served in the Clinton years got fired so that the Bushies could have their jobs. That's how it works. If you live a political life, you have to be ready to take a fall for the party. If a Karl Rove protege needs a good platform for a shot at political office or a federal judgeship, you may be asked to step aside. That's life in the great big world of politics (and a good reason to be a tenured professor instead). I can't see that anything that happened is illegal.

On the other hand, the President is properly subject to the political displeasure of the voters if he abuses his removal power, even by just using it unwisely. And the administration does seem to have handled this with its usual ham-handed clumsiness. It fired six prosecutors in a single day and went out of its way to claim that the firings were performance-related. Usually, the White House finds some way to do these things discreetly, to say that the fired employees were in fact terrific, and to get them to claim that they're leaving to "spend more time with their families." Heck, find them some cushy private sector job and then everyone's happy. Then we can maintain the fiction that political offices are handed out on the basis of merit.

So when you see claims that U.S. Attorneys are being pushed aside even though they're doing a perfectly good job, to make way for even better-connected, more loyal pols, it's legitimate to be concerned. Political jobs are political, but they also have to get done competently, and an administration famous for giving charge of FEMA to someone whose expertise was in Arabian horses would do well not to heighten the perception that it gives important government posts to party hacks whose only qualification is loyalty and connection.

Got standing?

Our esteemed Supreme Court recently heard oral argument in Hein v. Freedom from Religion Foundation. The plaintiff foundation claims that the Bush administration violated the Establishment Clause of the First Amendment ("Congress shall make no law respecting an establishment of religion") by hosting a series of regional conferences on the White House's "Faith-Based and Community Initiatives."

Nonlawyers might think the matter is pretty simple. The Establishment Clause (more or less) prohibits the government from spending money to promote religion. If that's what the White House is doing, a court should hold it unconstitutional and put a stop to it. End of story.

Well, not quite. You might think that it's the federal courts' job to interpret and enforce the Constitution and to make sure that the government behaves lawfully. But you would be wrong. According to the conventional view, the courts' job is to decide cases. In the course of doing so, the courts often have occasion to interpret and enforce the Constitution and to make sure that the government behaves lawfully. But their doing so is only an incident of their actual role, which is to decide cases.

So before a federal court can do anything, it has to be presented with a case. And what exactly constitutes a case? If we had about a month, I could explain most of the answer (and I'm not kidding here, that's how long it takes to cover the issue in class). But for now, the key point is that an essential element of a case is that it be presented by a plaintiff who claims to have been injured by what the defendant is doing. And not just anything constitutes an injury. It has to be something that hurts the plaintiff in a distinctive and individualized way. Just being upset that the government is doing something illegal, even unconstitutional, doesn't count, if the government isn't hurting you with its illegal activity.

A special, somewhat different rule applies, however, in the unique context of Establishment Clause claims. Thanks to a case from the 1960s (Flast v. Cohen), taxpayers are allowed to challenge government expenditures as violative of the Establishment Clause specifically.

But boy, it's complicated. In a later case, the Court held that taxpayers lacked standing to challenge the government's donation of property to a religious organization. The Court distinguished between government spending (in which taxpayers apparently have a legitimate interest) and government disposition of property (not a taxpayer's business). And this week's case is about whether taxpayers have standing to challenge religious spending that comes out of general appropriations, as opposed to a specific appropriation.

Hmm. So taxpayers have an interest if the government just gives money to a religious group, but not if it spends the money on property and then gives the property? And they have an interest in specific appropriations but perhaps not general ones? Someone unfamiliar with the fine distinctions of the legal mind might have to be forgiven for thinking this is crazy.

The problem is that the original rule of Flast just doesn't fit with modern standing doctrine. Let's face it, if a court orders the government to cease illegal expenditures, the impact on any individual taxpayer's taxes is zero. And I don't just mean it's small, because any of us contribute only a tiny amount to any particular government expenditure, I mean it's zero. Taxes are not determined by figuring out the appropriate share each of us must bear of the government's expenditures. Taxes are determined by the tax code. The tax code just imposes a certain percentage tax on income. Government expenditures can go up, down, or stay the same and none of it has any impact on taxes.

I suppose taxpayer plaintiffs might say that if government expenditures go down, by enough, for long enough, the government won't need as much money and Congress will lower taxes. But standing doctrine doesn't allow standing based on such speculation, particularly not speculation that maybe, someday, Congress will pass a statute.

And besides, the speculation isn't even correct. Just look at what Congress actually does. Does it raise taxes when the government needs more money and lower taxes when the government has plenty of money? Ha ha. It lowers taxes when it feels like it and raises taxes when it feels like it. The Republicans always want lower taxes, even when the budget is hundreds of billions in the red.

So trying to fit different taxpayer Establishment Clause claims into modern standing doctrine is hopeless. We either need to overrule Flast or just accept that we've established a special Establishment Clause rule.

The better answer is to accept the special rule. The Establishment Clause was specifically adopted to prevent the government from spending our tax money on religion. Madison famously said that the government can't be allowed to spend even threepence of taxpayer money on religion. Any taxpayer should be allowed to make sure that the Establishment Clause is serving its purpose.

And better still would be to relax standing doctrine altogether in public law cases. The result might be that the Constitution and the laws would be enforced. Could someone tell me what's so terrible about that?

One Bombing a Day

Laura Bush remarked that "many parts of Iraq are stable now. But, of course, what we see on television is the one bombing a day that discourages everybody."

Of course the President and numerous other administration officials have long complained that the media fail to cover all the good news from Iraq and just focus relentlessly on the bad news. Is this a valid complaint?

I'm sure Iraq today is a highly complex blend of events, with good news and bad news every day. But let's face it. If there were just one bombing once in our own nation's capital -- say, if someone blew up a car bomb at a market and killed 30 or 40 people -- it would be the only news, and not just for that day, but for days thereafter. Now imagine such a bombing occurring once every day in Washington, DC or in New York or Los Angeles. What would be on the news?

Security issues tend to overwhelm other issues. It's hard to enjoy the good news when you fear being blown up.