A Visit to Paradise

Faithful readers, if you are upset that I have provided no content this week, forgive me, for I have been visiting Paradise, or, at least, that portion of Paradise known as Duck, North Carolina.

In this little corner of Heaven, life is truly a beach. The Outer Banks spread for miles in both directions, and nature itself has blessed the week with a cloudless sky and balmy temperatures. The rented beach house is splendid and even the water warmed up midweek for some lovely swimming.

But there is very limited Internet access. That's why I've been away from blogging. And there's not much cell phone access either.

How pleasant, really, to take a vacation not only from work but from e-mail, voicemail, news, and Internet surfing. Constant communication and the Internet are blessings, but also curses, in that they allow work and care to absorb all one's time. How often do you check your e-mail? How often the news headlines? And do you really need either so frequently? Getting access to them about once every two days reminds me how much time and mental energy I waste on them. The messages and the headlines are there for me when I get around to them. On vacation, they dance to my schedule, not me to theirs. An attitude to remember upon one's return.

Bad Goodling!

Monica Goodling didn't provide all that much new information on the U.S. Attorney scandal in her testimony yesterday, but she did say that she crossed the line by considering the political affiliations of applicants for career Department jobs, including prosecutors and immigration judges. She was unable to say whether this happened more or fewer than 50 times. She even looked up political donations made by job applicants.

The U.S. Attorney firing scandal has been a tangled web of ambiguity, but this point is crystal clear: it's outrageous. I put in four years at the Justice Department as a career attorney, and we had a proud tradition of nonpolitical hiring. The career staff was majority Democrat, because Democrats are more drawn toward public service whereas Republicans tend to prefer private sector work, but we didn't think about political affiliation when it came to hiring and the office reflected a wide variety of ideological views.

Political hiring is not only outrageous, it's unnecessary. The career staff did what the political staff wanted. Oh, I suppose most of us wouldn't have lied or committed other professional misconduct for the bosses, but they told us what the legal position of the government was, and we deployed our talents defending it. Sometimes we would tell them their position was a loser, but then it was up to them to decide whether to go with it anyway. (You're allowed to argue a likely losing position so long as it's not so outrageous that no reasonable person could believe it.)

Sadly, the political staff never fully trusted us, whether they were Republicans or Democrats. I started in the Administration of Bush the Elder and continued into the Clinton Administration, and there was always some tension between the political and the career people. But the political people never tried to force us to hire only Republicans or only Democrats, until the current Bush came to office. It's disgraceful.

As if that weren't bad enough, it seems that there was also a strong bias in favor of hiring attorney's from Regent Law School, a fourth-tier, Christian school founded by Pat Robertson. So they were discriminating not only by ideology, but by religion too.

So there's less and less doubt that scandal was rife at the once-proud Justice Department. And we still don't know how the fired U.S. Attorneys were selected for firing. As I've said before, it's high time to draw a negative inference. If there were an appropriate, non-scandalous reason these attorneys were fired, we'd have heard it by now. But no one can tell us the reason, other than that it was the "consensus of the senior leadership." Apparently the list just dropped from Heaven, one might say. Obviously, the implication is that the list was prepared for improper reasons -- it now seems most likely that the fired attorneys were fired for refusing to prosecute Democrats without cause.

Reprimand Murtha

Republicans are demanding a reprimand for Rep. John Murtha, who hasn't denied that, when a Republican legislator tried to strike a $23 million Murtha earmark from a bill, Murtha told him, "you will not get any earmarks now and forever."

Democrats have apparently agreed to a vote on a reprimand, but they seem to be planning to vote no, although "some party members were unhappy about being pressed to defend a blustery colleague known for bare-knuckled politics."

I wish Democrats would see this as a golden opportunity. A big part of the reason they won last November is that people were fed up with the Republican methods of running Congress, particularly the House, which involved suppressing debate, strangling the opposition, and ramming through every non-public-spirited deal that pleased them. Here's a chance to show that the Democrats are serious about being different. Instead of reflexively protecting their own, why not use this as a "Sister Soulja moment"? It'll be somewhat annoying to have to reprimand a Democrat, but it could do so much good to show voters that Democrats are the party of free debate, fairness, and running the government in the public interest. I would go ahead and reprimand Murtha.

How Do You Plead?

Quite a decision from the Supreme Court today in Bell Atlantic Corp. v. Twombly. The case potentially undoes about 70 years of progress in pleading rules.

In the old days -- and I mean the old, old days, before about 1850 -- pleading one's case in court was impossibly complicated. The pleading rules (that is, the rules governing the papers you had to file to initiate a civil case) were wonders of technicality and artfulness. Even accomplished lawyers were easily tripped up; cases could be spoiled by the slightest pleading mistake.

1850 saw the first great wave of procedural reform. Much technicality was discarded and pleaders were (typically) required to state only "facts constituting a cause of action."

But even that proved too complex and technical. In 1938, the Federal Rules of Civil Procedure took over and required pleaders only to provide "a short and plain statement of the claim showing that the pleader is entitled to relief." The famous "Form 9" demonstrated how easy this was meant to be: it was enough if the plaintiff said, "On June 1, 1936, in a public highway called Boylston Street in Boston, Massachusetts, defendant negligently drove a motor vehicle against plaintiff who was then crossing said highway." Notice how simple the allegation is -- the plaintiff doesn't even need to say what the defendant did that was negligent (whether the defendant drove too fast, or went through a red light, or whatever). Just pleading that the was negligent is enough. Exactly how the defendant was negligent will emerge later in the trial process -- through discovery, for example.

But today's decision threatens to undo all that. The plaintiffs pleaded that the defendants violated the antitrust laws. The plaintiff specifically pleaded that the defendants "entered into a contract, combination or conspiracy to prevent competitive entry in their . . . markets and have agreed not to compete with one another." But that wasn't enough for the Supreme Court. The Court approved dismissal of their case on the ground that the plaintiffs didn't sufficiently plead how they knew that the defendants had done this. The plaintiffs' pleading, the Court said, just alleged a lot of conduct that was not, by itself, illegal (e.g., that the defendants had engaged in certain "parallel" conduct, which would be perfectly legal if they all happened to do it independently). But just as the negligence plaintiff isn't required to say what the defendant did that was negligent, plaintiffs who plead that the defendants entered into an illegal anticompetitive conspiracy shouldn't have to say how they know that that's true. Of course, the plaintiffs are required to come forward with their evidence at some point, but the filing of the complaint isn't that point.

It may not sound like a big deal, but it is. The whole point of the pleading system under the Federal Rules is that pleadings aren't supposed to be technical and they aren't supposed to be the filter to get rid of cases on the facts. Factual issues are supposed to be developed later. Plaintiffs aren't required to know, at the pleading stage, everything about what the defendants did. All that is required is a general notice of what the case is about. Everything else is taken care of in discovery, summary judgment, and trial.

The Court rightly pointed out that these other mechanisms are expensive and that it would be nice to get rid of unworthy cases cheaply. But that's not what the rules now provide. Maybe the rules should be changed, but as long as they are what they are, it's wrong to try to dump cases like this one on the pleadings.

Aha

I thought that Lucy Fisher and partner's seven Oscars sounded too good to be true. Sure enough, it isn't quite true, although something like it is apparently true and apparently it isn't Fisher's fault. According to the responsible Harvard office (which got back to me with admirable promptness after I sent an inquiry to the President of the Board of Overseers), an early draft of Fisher's bio was accidentally printed on the ballot, but not by fault of Fisher. Apparently the correct information is that films by Fisher's production company, Red Wagon Entertainment, have seven Oscars and twenty nominations, but most of the awards and nominations were not won by Fisher and her partner themselves, but by others working through Red Wagon. So no need to call the cops.

Now There Are Five

Chuck Hagel becomes the fifth Republican Senator to call for Attorney General Alberto Gonzales's resignation. The U.S. Attorney firing scandal was bad enough, but the stunning story of Gonzales's nighttime visit to John Ashcroft's sickbed seems to have put Hagel over the top.

I don't see how Gonzales can hang on much longer. Last week he was telling people he had "weathered the storm," but the revelation that, as White House Counsel, he was so eager to violate our rights that he tried to take advantage of a man in the ICU is really too much. It should give new impetus to the push to get him out.

Meanwhile, it is reported that Paul Wolfowitz may "soon" resign as World Bank President(although the lede in other papers is that he's clinging to his post).

There's nothing like an opposition Congress to shine some light into the dark corners of the administration. So long as the Dems didn't even have one house of Congress, they really had nothing. But with the power to conduct investigations and issue subpoenas, we're finally finding out at least something about just how bad things are in our government.

From The Self-Unhelp Section

Ah, look, the annual ballot for the Havard Board of Overseers election arrived. This ballot really should come with a note saying, "In case you were feeling good about your achievements, read this." Let's see who's up for election this year:

• OK, we've got Richard Schrock (Ph.D. '72), 2005 Nobel laureate for chemistry.
• If you don't like him, there's always Richard Meserve (J.D. '75), President of the Carnegie Institution of Washington and formerly chairman of the U.S. Nuclear Regulatory Commission.
• Still not satisfied? How about independent film producer Lucy Fisher (A.B. '71)? She and her partner Douglas Wick have only won seven Oscars [actually, that's what the ballot notes say, but I only find one win, for Douglas, at the Official Academy Awards Database -- must be some definitional issues here].
• There's always Champ Lyons, Jr. (A.B. '62), state supreme court justice (ok, it's Alabama, but Alabama is a state, you know).
• And Stephanie Wilson (S.B. '88) -- she's an astronaut.

And I haven't even mentioned a few others. Wow, quite a list of achievers. Jon Siegel (A.B. '84), GW Law Professor, is still working on his bio.

Shameless

Who's running the Department of Justice? A man who was so eager to get reauthorization for a wiretapping program that the Department had determined was illegal that he went to the hospital room of ailing Attorney General John Ashcroft to try to get him to overrule the decision of his Deputy (and Acting Attorney General) James Comey.

The Ashcroft Justice Department was not exactly known for its respect for legal niceties. Let's not forget that this same Department issued the infamous 2002 "torture memo" that not only provided the narrowest possible definition of "torture" ("intense pain or suffering . . . equivalent to the pain . . . associated with . . . death, organ failure, or permanent damage resulting in a loss of significant body function") but also, incredibly, suggested that the anti-torture statute unconstitutionally infringed on the President's Commander-in-Chief power without even mentioning Congress's military powers in its analysis. These guys would say anything to justify what the President wanted. When they conclude that your wiretapping program is illegal, you'd better listen.

Instead of listening, Alberto Gonzales, then White House Counsel, went to John Ashcroft's hospital room. Ashcroft had been hospitalilzed with gallstone pancreatitis and was in GWU Hopsital's ICU, and he had transferred the powers of the Attorney General to his deputy, Comey. The two had agreed that they could not certify the wiretapping program's legality. When Comey told the White House, Gonzales and White House Chief of Staff Andy Card went to Ashcroft's hospital bed with legal papers.

Bless Ashcroft's ailing heart. I never had much respect for him, but in this supreme crisis, when he was so ill he was in the intensive care unit, he not only turned down the White House Counsel and Chief of Staff and explained why they were wrong, but pointed at Comey and said, "But that doesn't matter, because I'm not the attorney general. There is the attorney general." Gonzales and Card left and Card later claimed that they had just been there to wish Ashcroft well!

It's hard to think of anything so shameless since Newt Gingrich went to his wife's hospital bed to work on their divorce.

And Alberto Gonzales, the man who was so eager to violate our rights that he went to the hospital to try to get an ailing Ashcroft to overrule his Deputy and Office of Legal Counsel, is now Attorney General of the United States. No wonder the whole Department is on life support.

Straining at the Gnat

The amusing thing about the Paul Wolfowitz -World Bank scandal -- apart, of course, from the pleasure of seeing at least one of the crew responsible for our disastrous war in Iraq put on the hot seat for something -- is how trivial the whole thing is. Paul Wolfowitz, the man who told us that the reconstruction of Iraq would be self-financing, when in fact Iraq and Afghanistan have already cost the U.S. more than $500 billion (it'll go to $746 billion if Congress approves the Administration's current fiscal requests), is now getting nailed for getting his girlfriend an improper raise of about sixty thousand dollars.

Sixty thousand dollars? Couldn't he have found that amount in his own pocket? You might think that someone accustomed to wasting hundreds of billions of other people's dollars wouldn't have bothered to debase himself for such a small sum. But I guess the flip side is that once you've blown away $500 billion in public money it doesn't occur to you that anyone could complain about $60,000.

By the way, Christopher Hitchen's defense of Wolfowitz conveniently omits some important facts. Yes, Wolfowitz got advice from the Bank's ethics committee that it was OK to get his girlfriend an "in situ" promotion and a transfer to a position outside the Bank as compensation for the disruption to her career. But, as the Bank's General Counsel recently made clear, no one told him it was OK to give her an extraordinary raise, to guarantee favorable performance evaluations while she was on her outside job, and to guarantee her another promotion on her return. No, Wolfowitz had his hand in the cookie jar. I'm just surprised he would bother to reach for such a small cookie.

No Insult

A commenter on my last post asks if I considered how it would make students feel. I hope students understand that there is no insult to them implied by the post. I refer to the exams as "bad essays," but how good could they be? It's not possible to write a really good essay in 30 or 60 minutes. I wouldn't write a good essay in that amount of time. Tom Wolfe wouldn't write a good essay in that amount of time. So while calling them all "bad essays" is a little hyperbolic, it's no criticism of the students. It's just a reflection on the inevitable quality that results from the exam situation.

Nose to the Grindstone

Sorry, faithful readers, but blogging will be somewhat limited all week as I am grading 170 exams.

Grading is a professor's chance to feel like an hourly employee: the job is to do a particular, defined task again and again and again, and then the next day -- same thing.

This is the one bad part of academic life. If you've never read 100 bad essays on the same topic, it's not something you want to start now.

But it's only 3 weeks out of the year. Forty-nine weeks of the year, we have the world's greatest job. Smile, professors. I'll smile next Tuesday.

Issues for the Digital Media Age

I have a letter in the Washington Post today, which expresses thoughts similar to those in this post from Wednesday. When I submitted my letter, the Post's editors asked if it was exclusive to the Washington Post (standard newspaper procedure) and also asked (this is the first time I've seen this) whether I'd posted it on any Internet forum, including a blog. Being the honest type that I am, I said yes, it was similar to an entry on my blog, but I hoped that wasn't disqualifying.

Well, the compromise was that the Post continued to consider my letter, and ultimately ran it, but asked me to take down my blog entry until after the letter appeared in the Post.

Was this a choice between my blogger integrity and the wider fame of the Washington Post letter column? Was I selling out by agreeing to the big MSM's demands? I don't know, but I did take the post off my blog for a couple of days and restored it just now. Flame away, blogosphere.

Look at it this way. The Washington Post considers my faithful readership -- you! -- to be such a powerful force that they're afraid to compete with it. I never knew this blog had such power.

A Case Made for the Blogosphere

Sometimes comment seems superfluous. When a man accuses his dry cleaner of losing his favorite pair of pants and sues for 65 million dollars in damages, what is there left to say?

I guess it's worth mentioning that plaintiff Roy Pearson is an administrative law judge for the District of Columbia and has a J.D. from Northwestern University School of Law.

That lowers the probability that he's just crazy, although the suit does make one wonder.

Oh, and by the way, the defendants offered up to $12,000 to settle, which might, to a rational person, seem like reasonable compensation for a lost pair of pants, even a pretty damn nice pair.

In fact, I would be kind of embarrassed to take that much from a dry cleaner. I'd be upset if a dry cleaner lost my pants (luckily, it's never happened), and if they were part of a suit I suppose I might feel entitled to the cost of the whole suit plus something to compensate me for the time and bother of finding a new suit. Let's go all out and say I should get twice the cost of the whole suit. How much could that be? Even an Armani suit at Neiman-Markus is only $1695. Apparently Pearson himself valued the pants at only $800.

Sheesh, take the $12,000 and buy yourself some new pants. What a windfall.

Drum Him Out of Town

Running someone out of town on a rail is actually crueler than it sounds, but could we at least drum Christopher Leinberger out of Washington? He's a visiting fellow at the Brookings Institution and he proposes to solve D.C.'s dwindling vacant land problem by repealing the height limitation on District buildings. No limit, he says -- "the market should dictate" building heights. He's not bothered by the lost sunlight.

Are economists idiots, or do they think the rest of us are idiots? City planning is a classic case where pure market forces can't solve everything because of the "externality" problem. Leinberger wants "the market" to dictate building heights, but "the market" can only send economic signals of whether builders can or cannot clear a profit by building high. They can't tell the builder whether society as a whole benefits from tall buildings, because some of the builder's costs get dumped on the rest of us -- the ones who have to walk in the dim, windy shadows and look at the ugly results.

You only need to look across the river to Rosslyn to see what we would get if we lifted the District's height restriction -- ugly, ugly, ugly. As soon as you cross the bridge you're in the midst of an urban hell of undistinguished, characterless, soul-crushingly ugly, high-rise buildings.

The height limit is what gives the District its unique character. It preserves our fine vistas and sunny sidewalks. We don't have to enslave ourselves to free market philosophy all the time, especially when it's obvious that the market can't send complete price signals to its participants because of externalities. Keep the height limitation.

Schadenfreude Alert

Randall Tobias, deputy secretary of state responsible for U.S. foreign aid, resigned last week after his name surfaced as a patron of the services of D.C. Madam Deborah Jeane Palfrey. Of course he says he only got a "massage," and indeed Palfrey's whole defense is that she ran a legal service and knows nothing about her employees having sex with any clients.

This would be only moderately amusing if Tobias hadn't been the Bush Administration's chief advocate for "abstinence only" sex education abroad. He said this in March 2005:

"the heart of our prevention programs is what's known as ABC: abstinence, be faithful, and the correct and consistent use of condoms when appropriate. . . . [It's] not 'ABC: Take your pick.' It's abstinence really focused heavily on young people and getting them to understand that the best way to keep from getting infected is to be abstinent and not engage in sexual activity until they are old enough and mature enough and get into a committed relationship, such as a marriage. B is being faithful within that committed relationship."

I'm usually not that into schadenfreude, but sometimes it's hard to resist.