Bracing for a Fight

As one might expect, interest groups are gearing up for battle over the Sotomayor nomination.

But wait, should one really expect that? It's true that Supreme Court nominations often produce big battles. But this one should produce only a little battle. It's a simple question of numbers.

The Clarence Thomas nomination was a big battle. But Thomas was appointed by a Republican President at a time when the Senate had 56 Democrats. The Democrats had a reasonable prospect of blocking the nomination. Hence, a big battle was to be expected.

The recent Roberts and Alito nominations show what happens when the numbers are different. They were appointed by a Republican President when the Republicans held 55 seats in the Senate. There wasn't that much the Democrats could do to block the nomination. A filibuster was theoretically possible, but it's tough to filibuster a Supreme Court nomination in the full glare of the national spolight. So the battle wasn't nearly as big.

Now a Democratic President has nominated Judge Sotomayor when the Democrats have 59 seats in the Senate -- possibly 60 if Al Franken gets in before the nomination is considered. Realistically speaking, this nomination is going through. The interest groups will rattle their sabres, play to their bases, and raise lots of money, but there's just not that much they can do. And that's before you even consider the Republican fear of taking on the first Hispanic Supreme Court nominee. I expect a small battle, not a big one.

It's Sotomayor

President Obama has selected Sonia Sotomayor as his nominee for the next Supreme Court Justice, according to all the reports.

Frankly, I don't know much about her. I met her once at a conference (I think she was still a district judge then), but I haven't followed her opinions.

It would be irresponsible -- even for a blogger! -- to express a view based on absolutely no information. So I'll withhold judgment until I learn more about the nominee.

But of course the advocacy groups aren't waiting. “Judge Sotomayor is a liberal activist of the first order who thinks her own personal political agenda is more important than the law as written,” said one opponent.

We'll see. But I expect groups on both sides will be exaggerating as usual.

Summer Blockbuster

It's a holiday, so we get to relax from legal posts.

This weekend marks the unofficial start of the summer season, so my girlfriend and I took in the summer blockbuster Angels and Demons. The verdict: don't bother.

(Caution: spoilers ahead. In fact this won't make sense if you haven't already seen the movie)

The fundamental problem is that the movie is absurd. Of course we suspend our disbelief for works of fiction, but we still expect some basic level of plausibility and motivation for what happens. Star Trek scored better on both counts.

Professor Langdon again deploys his exceptional gift for interpreting symbols to unravel an ancient mystery, this time the location of the Church of the Illuminati. But what on earth is going on? First, even though someone will be killed every hour and all of Vatican city blown up in four hours, he and his sidekick sleuth take many minutes to chat about history. Then suddenly they remember the time pressure and start doing far more than could possibly be done in the time allowed. Heck, it would take longer than they have just to tear around Rome each time. I won't complain about his getting every symbolic clue exactly right just in time, but I don't see how they could even beat the traffic back to the Vatican and out to a church again in the available time, not to mention taking up time to prowl around and smash things up in the archives. And it's too much to imagine that he later finds exactly the right spot on the videotape on the first try.

Why doesn't the assassin kill Langdon and Vittoria? He killed everyone else who posed any threat to him.

And are we really to believe that the nefarious Carmelengo dreamed up a plot that relied on everyone's arriving at the antimatter bomb with exactly six minutes to spare? What if he'd been just a little bit off? And did he really think that nothing bad would happen to Vatican City as a 5-kiloton bomb went off just a few thousand feet above it? (By the way, why did nothing bad happen?)

And with the Carmelengo exposed, why does the security team walk toward him very, very slowly until he starts running, then let him get a good long lead, and then start running toward him at top speed?

And while we're complaining, the method of electing the Pope by acclamation quasi ex inspiratione was abolished in 1996 and there is also no requirement that the Pope be chosen from among the existing cardinals. (See paragraph 88 in the previous link.)

But of course the real problem is that the whole idea that the Carmelengo would cook up this unbelievably elaborate plot that included killing the Pope and his likely successors, and all for no very adequate reason, is just too absurd to believe.

So for something much more realistic, go catch the new Star Trek. That was surprisingly good.

The Mind Game

Another of my eccentric interests (besides tax protestors) is bridge. It's a great game -- intellectual, social, and exciting all at the same time. But there is one big problem: it's out of fashion. Your image of bridge, let's face it, is that it's a game your grandmother plays. The average age of members in the official league, the ACBL (American Contract Bridge League) is 67 and rising. Players are dying faster than new players are joining the league. The league is not doing a good job of recruiting new players, particularly younger new players. I'm no longer less than half the age of most of my opponents, as was true when I joined the league, but a lot of them still have at least 20 years on me. I figure organized bridge has about another 10 years before it's all over, because there won't be any players left.

That's why I'm not sure whether this article today's NY Times is good or bad. It suggests that playing bridge regularly may help stave off the onset of dementia.

Well, that's nice, and the ACBL has actually used it before as a recruiting tool, but an article about how bridge is good for the over-90 set (really, the article is all about a study of people older than 90) is not exactly a big turn on for the 20-40 something crowd that bridge needs. I'm happy that bridge helps people, but the article just cements the image of bridge as a recreation of the old -- the very old, in fact.

Funny, my 1950s-era Emily Post says that you have to play at least a passable game of bridge or you won't get invited anywhere. Imagine. Times have changed.

Credit Check

Congress passed a bill yesterday that will impose some limits on credit card companies. You'll be entitled to 45 days notice of rate increases; the rate on an existing balance can't increase without some permitted reason (including being 60 days late in paying); penalty fees have to be reasonable; and so on. Of course the credit card companies are protesting that credit will be less available.

Unfortunately, the bill doesn't address the number one problem with credit cards -- they charge interest rates that would be usurious if anyone else did it. Most states have limits on the rate of interest that a lender can charge on a loan, and many credit card interest rates exceed the rate permitted by the usury laws.

How can this be? The federal government is responsible -- which makes it appropriate for the federal government to take action to do something about it. The Supreme Court decided in 1978 that, by virtue of the National Bank Act, a bank can charge interest permitted by the state where the bank is located, even if the borrower is in another state that has a lower limit on interest rates. You can imagine what happened -- banks flocked to states with high interest limits, or, better still, no limit at all. South Dakota, which repealed its interest rate ceiling altogether, got most of the business. That's why, if you look carefully, you'll notice that your credit card company is probably located there.

So what Congress should really do is restore state control over interest rates, or fix some national limit, so we're not all helpless in the face of South Dakota's freewheeling, laissez-faire attitude. But in the meantime, it's good that Congress has recognized that it can pass consumer protection laws. Now if it could just do something about airlines and cell phone providers.

D.C. Vote Debate

Faithful readers who want an opportunity to see Law Prof on the Loose in person can watch me debate the DC Voting Rights Act tonight at American University. Details here.

Of course, anyone can see me in person most anytime by just dropping by my office. But this is a more formal opportunity.

And for my position on the DC Voting Right Act, see here. And here. And of course here.

Icky Iqbal

Quite a decision from the Supreme Court yesterday: in a case called Iqbal, by a 5-4 vote (and you won't need me to tell you who was in the 5 and who in the 4), the Court dismissed a lawsuit by someone who claimed that in the wake of 9/11 he was arrested and subjected to unconstitutional treatment because of his race, religion, and/or national origin. (The plaintiff was a Pakistani Muslim.) The plaintiff specifically claimed that Attorney General John Ashcroft and FBI Director Robert Mueller personally condoned and willfully and maliciously subjected him to harsh treatment on these illegal grounds. But the Court dismissed the case.

What's remarkable about the case is this: the Court dismissed the case based solely on the pleadings. The Court said that the plaintiff wasn't even entitled to an opportunity to try to prove his case against Ashcroft and Mueller. The plaintiff alleged that these officials acted against him out of illegal bias, but it didn't provide much evidence for this allegation.

And of course, normally, that wouldn't matter. The complaint just starts a case. Plaintiffs aren't required to plead their evidence. If I sue you and say in my complaint, "you punched me in the nose," and you say, "no, I didn't," that's not an excuse for dismissing the case. We have to have a process for determining who's telling the truth, and that process is called trying the case.

Dismissal is appropriate only if my allegations, even assuming them to be true, don't amount to a real complaint. If I say, "you made a nasty face at me," that complaint could be dismissed, because even if you did, there's no law against it. If I say, "you were my employer and you fired me for no reason," that complaint could be dismissed, because, guess what, employers are generally allowed to fire their employees for no reason.

So the normal rule is that the allegations of a complaint are assumed to be true for purposes of a motion to dimsiss. But in a recent case called Twombly, and even more in yesterday's Iqbal case, the Supreme Court has upset decades of pleading law by deciding that sometimes, a court can determine that it doesn't need to accept "conclusory" allegations. The problem with Iqbal's complaint, apparently, was that he alleged that he didn't sufficiently allege facts that would help prove the defendants' allegedly illegal motives.

This is a bad decision. Sure, the plaintiff needs to prove his case at some point. But that's not the function of the complaint. The complaint serves only to give the defendants general notice of what the case is about. We have other processes for determining whether the plaintiff really has a case: discovery, summary judgment, and, ultimately, trial.

Not only will this case be used as an excuse by judges to get rid of cases they don't like, but it will result in decades of confusion about what constitutes a "conclusory" allegation and what is a sufficient factual pleading. A great achievement of the Federal Rules of Civil Procedure was that they put an end to pointless, time-consuming squabbles about how much had to be in the complaint. Now the Supreme Court has reinstated this pointless battle.

Virtual Study Group or Cheating Bank?

Interesting article in today's NY Times about websites that offer solutions to problems in leading math and science textbooks, sample research papers, working computer code for computer classes, old exams, and answers to questions posted by members.

What does a professor think about such a website? Glad you asked.

The answer, I would say, is that the websites (based on the report, I haven't checked out each of them) do little more than duplicate what is already available in old-fashioned, human form. They don't pose strikingly new problems; rather, they present familiar issues about how much collaboration is permitted on different kinds of assignments.

With regard to homework, for example, the background understanding, I would say, is that, unless otherwise specified by the instructor, collaboration on homework is permitted. We all know that students form study groups and help each other out to some degree. A website that duplicates this practice strikes me as no worse than old-fashioned study groups. I would say that a student who completely copied a whole set of homework answers has cheated, whether the copying is from a fellow student or from a website, but students who get some help are OK. There's not an exact line and students need to exercise reasonable judgment. In any event, as the article noted, this problem is "self-policing," in that students who don't really do the homework will not learn the material and will suffer at exam time.

The article mentions a student who posted a question from a take-home exam and got help from the website community. That's clearly cheating. The assumption (which should be expressly stated by instructors) is that collaboration is not permitted on exams. Students are on their honor for a take-home exam, and using the Internet to violate the rules is the same as getting help from a fellow student.

As to posting old exams, I think this should be within the control of the professor, but at the same time, a professor who gives the same exam year after year is asking for trouble. Students routinely look at old exams for help preparing for each new exam, and professors should assume that old exams are available. Still, posting old exams against the wishes of the professor would be a copyright violation, so if professors really want to make a stink about it, they could.

But in the end, like so many things on the Internet, it's not as new as it might seem. It's just an extension of long-existing practices.

Meanwhile, in Minnesota . . .

Have you lost track of the Minnesota Senate Race? It occurred to me that I haven't thought about it in a while. The reason is that we're all waiting for the Minnesota Supreme Court to act.

Last month, Coleman's request for judicial review of the actions of the state elections apparatus actually led to an increased lead for Franken -- at the close of play he was up by 312 votes. But Coleman kept appealing; now the case is in the Minnesota Supreme Court.

That court has put the case on a leisurely schedule whereby Coleman's brief was due April 30; Franken's will be due May 11; and Coleman's reply will be due May 15. Then we'll all take a couple of weeks to fish and barbecue before oral argument on June 1. Of course there's no date set for the decision.

This is what the court calls an "expedited" schedule. Well, I suppose it is expedited compared to the normal case briefing schedule, under which briefing takes about two and a half months and the parties can wait another six months or so for argument after that. But heavens, this is an important case and the court could have gotten its judicial rear in gear a little faster.

As in most situations in which matters sit in a queue for a long time before action, it's usually possible to process any one matter very quickly if you allow it to jump the queue. The U.S. Supreme Court granted certiorari in Bush v. Gore on December 9, 2000, ordered briefs filed the next day, heard argument on December 11, and decided the case on December 12.

Bush v. Gore was not the Supreme Court's finest hour, to put it mildly. So I commend the Minnesota Supreme Court for not dashing through the Franken/Coleman case in three days. But that doesn't mean it requires more than 30. A week for each side's brief and then oral argument a week later would have been plenty.

Every day of delay in this case is another day that the people of Minnesota are deprived of half their representation in the Senate. The Minnesota Supreme Court should move more swiftly.

Marriage in Maine

Maine became the fifth state to permit same-sex marriage, and the second state to do so by democratic vote of the state's elected representatives.

As I mentioned when Vermont made the same change, it is highly significant that the change is now taking place by democratic vote. That two states have now done so really takes the sting out of conservative arguments that same-sex marriage is being involuntarily imposed on a reluctant populace by unelected judges. The people of these states, speaking through their elected represenatives, have accepted same-sex marriage as appropriate.

It's amazing how much movement there has been on this issue in such a short time. If memory serves, it was only ten or so years ago that anything like marriage for gay couples appeared impossible. It didn't take long for civil unions to become a moderate, mainstream position, even though actual marriage remained a point of difficulty. Now, legislatures are accepting actual marriage.

One of the latest contrary arguments is that permitting same-sex marriage somehow discriminates against religion and will somehow require churches to recognize same-sex marriage even though it is contrary to their religious tenets. But a simple perusal of the actual bill shows that it amply protects against this danger.

Grammarian's Delight

Oh what a tangled web we weave when we try to specify the mental element of crimes.

Criminal law has since time immemorial required that a defendant commit an actus reus ("bad act") with a mens rea ("guilty mind"). Most crimes are not crimes if you do them unwittingly or accidentally -- if someone unexpectedly falls off a bicycle in front of your car and despite your best effort to stop you run them over and kill them, it is a terrible thing, but you have not committed murder. You committed the actus reus of killing them, but you did not have the mens rea of intending to do so. Mens rea is no mere detail but part of the heart and soul of criminal law.

That's why it's so important for legislatures to be clear about specifying the mental element of crimes. Congress did the usual almost-adequate job in banning "aggravated identity theft." It imposed a sentence enhancement on anyone who, in the commission of certain other crimes, "
"knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person."

So at least Congress made clear that the crime occurs only when the criminal acts knowingly. But how much has to be done knowingly? Does the defendant have to have knowingly transferred, possessed, or used something, without having to know that that the thing is a means of identification of another person? (The thing might be in a sealed package that the defendant knows he is transferring, but without knowing the contents.) Does the defendant also have to know that the is a means of identification, but not that it belongs to another person? (The defendant might have made up a fake Social Security Number, without knowing that it actually belongs to another person.) Or must the defendant know all the elements in the rest of the sentence?

The second hypo was the actual case at the Supreme Court yesterday. The defendant used a fake Social Security card, but the evidence didn't prove that he knew the SSN belonged to a real person -- and he had previously used a fake card with a number that didn't belong to anybody. In a plausible opinion, the Court held that the usual import of the word "knowingly" is that it applies to everything that follows. The Court supported its conclusion mainly through application of ordinary principles of grammar.

Fair enough, but the tough question is, suppose you wanted to prohibit knowingly tranferring, possessing, or using a means of identification that belongs to another person, and you wanted the "knowing" requirement to apply to everything except knowing that there's a real person involved -- so that it is a crime to use a fake ID that in fact belongs to another person, provided you know it's a fake ID, whether or not you know that it belongs to another real person. What would you say?

It's not so easy to express this idea. And this point comes up all the time -- "knowingly" is a common mens rea, but it is frequently unclear how much it covers.

I think legislative drafters have to give up on trying to do it all in one sentence. It really requires two. There should be one sentence that uses the term "knowingly" as in the statute above, and then a second sentence that says, "the 'knowingly' requirement applies to the following elements: . . . " Awkward, but it would get the job done more precisely.

P.G. Wodehouse, Tax Evader

Everyone loves P.G. Wodehouse -- his books were so good that Punch once remarked that he was "exhausting the superlatives of the critics." Even as you read this, I am enjoying Right Ho, Jeeves, which I received on CD as a present.

But did you know that Wodehouse had a big dispute over payment of U.S. taxes that went all the way to the Supreme Court? It's true. I'm editing a case from volume 337 of the U.S. Reports, and, flipping through it to get to the case I'm interested in, I happened across Commissioner v. Wodehouse, 337 U.S. 369 (1949).

Wodehouse sold the U.S. serial and book rights to some of his works. He claimed that the resulting income was from the sale of property, and that the U.S. did not, at the time, tax nonresident aliens on such income. The IRS claimed that the income was from royalties on a U.S. copyright, which was taxed.

Wodehouse lost, 5-3 (with one Justice recused). Frankly, he had a pretty decent argument. Without going into all the details, prior to 1936 U.S. law clearly would have taxed Wodehouse's income, but in that year Congress changed the law to relieve aliens of tax on slaes of property, but to increase the tax imposed on aliens for "dividends, rents, salaries, wages, premiums, annuities, compensations, remunerations, emoluments, or other fixed or determinable annual or periodical gains, profits, and income" from sources within the U.S. and required that the tax be withheld at the source.

The Court majority relied less on the new statutory language and more on its understanding of Congress's overall goal, which, in the Court's view, was to limit the tax on nonresident aliens to that which was readily collectible, while increasing the rate to make the change roughly revenue neutral. Money given for the use of copyrights, the Court thought, was readily accessible and a long-established source of revenue, and the Court discerned no congressional intent to change its taxablility.

Nothing ever changes in statutory interpretation. There are always disputes between those who want to parse each word Congress enacts and those who would rather enforce Congress's overall gestalt. Sorry, P.G., but Bertie and Uncle Fred will just have to pony up some of the ready.