About Damn Time

I think the Minnesota Supreme Court reads this blog. I complained yesterday about how they were taking their sweet time deciding the Minnesoat Senate election case. Well, today, they issued their decision. And about time, too.

Franken wins. It's unanimous. The decision is somewhat about legal issues, but mostly about how Coleman just hadn't proved his case. That will make further appeal difficult for Coleman.

I think Franken is going to the Senate. When a court comprised of a majority of Republican appointees rules for the Democratic candidate on primarily factual grounds, the opinion has a lot of heft. Coleman is going to have a tough time getting anywhere.

Update: It looks like Coleman reads the blog too. He has conceded.

Notable Sleeper

Lots of big legal news yesterday: an important Supreme Court decision about employment discrimination, and Bernie Madoff getting 150 years for his fraudulent Ponzi scheme. But perhaps most important of all is the short, easily missed Supreme Court order in Citizens United v. Federal Election Commission. The order sets the case for reargument and asks the parties to address the question, "For the proper disposition of this case, should the Court overrule either or both Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), and the part of McConnell v. Federal Election Comm’n, 540 U.S. 93 (2003), which addresses the facial validity of Section 203 of the Bipartisan Campaign Reform Act of 2002, 2 U.S.C. §441b?"

When the Court asks parties to tell it whether it should overrule a previous case, it's usually already decided to do so. In McConnell, Justice O'Connor joined a 5-Justice opinion upholding section 203; Justice Kennedy dissented. With Justice O'Connor replaced by Justice Alito and the vote of swing Justice Kennedy already known, it's not looking good for section 203.

Section 203 prohibits corporations and labor unions from using their general treasury money to fund electioneering communications. Look out for this section to be declared unconstitutional this fall. After that, stand out of the way of the tidal wave of corporate and union money that will flood election campaigns.

Meanwhile, in Minnesota . . . (cont.)

Wondering what's up with that Minnesota Senate Race? I was too. The answer is, nothing. Nada, bupkis.

It's been five days since even the Minnesota Star ran a story on the race -- and all it said was "Wait is Agonizing for Coleman, Franken." How about the rest of Minnesota?

The fault lies squarely on the shoulders of the Minnesota Supreme Court, which heard argument four weeks ago and hasn't uttered a peep since.

C'mon, you MN justices! Wake up! The leisurely briefing schedule you set for the case was bad enough, but now briefing is over, argument is over, and it's time to decide. What do you think this is, a slip-and-fall case? This is important! A U.S. Senate seat is at stake! We need a decision. Act now.

All Michael Jackson, All The Time

The news today is all about the death of Michael Jackson, and who am I to buck the trend?

Michael Jackson was a supremely talented entertainer. His work touched billions of people, and I well remember the time when he was the world's number one entertainment celebrity. He performed in a genre that is not my personal favorite, but even I enjoyed his best work and appreciated how important it was in popular culture.

Still, even at the moment of his death, I find it impossible to separate his work from the strange features of his life, most prominently, his decision to surgically transform himself from a perfectly handsome man to an almost freakish monstrosity, his strange relationships with children, his own bizarrely child-life affect, and his inability to keep himself solvent -- despite his tremendous financial success, at the time of his death his net worth may well have been negative.

I suppose that I have little appreciation of the pressures that led to these behaviors. Jackson played an important role in getting mainstream audiences to accept black artists, and when I question his decision to have so much surgery, I am looking at his original face with cultural eyes that are now accustomed to appreciating black facial features. I'm sure he faced tremendous pressure to conform to what audiences expected at the time of his greatest stardom. Also, I have no idea what it would be like to experience so much fame in childhood, and I'm sure his strange adult life must be related to his very unusual upbringing.

So perhaps we should not be too critical. Still, Michael Jackson, the idol of millions, will forever be a mixed and somewhat tragic figure.

The Neverending Story

When I first heard that the Governor Mark Sanford of South Carolina was missing, I thought the media were making a big story out of nothing, as usual. The man's entitled to a vacation. It was just after the end of a tough legislative session. It's not as though politicians have a legal duty to let the media know where they are at all times.

Then when it turned out that his staff didn't know exactly where he was either . . . and neither did his wife . . . although people seemed to think he was hiking the Appalachian trail . . . by himself . . . even though he's got four kids . . . and it was Father's Day . . . I thought, OK, I guess this is a little weird after all. But still, I was willing to give the man the benefit of the doubt.

Then it turned out he wasn't hiking the Appalachian trail, he was in Buenos Aires. Hmmm, that is odd, I suppose, but really, why shouldn't he be in Buenos Aires? That's supposed to be a nice spot, isn't it? For a little R&R?

OK, then it all comes out: he's not in Buenos Aires for R&R. He's there to see his mistress! He's been having an affair for about a year.

Now it all makes sense. Of course! He's just the next notch in our list of politicians having affairs. I might have said conservative, Bible-quoting politicians who have criticized others for having affairs, but apparently Sanford isn't that much of a moralist, so I'm letting him off easy.

Look, I understand that there's probably some relationship between having the kind of drives necessary to win high political office and having a massive, uncontrolled libido, but really, guys, keep your pants zipped. The era when the press was a gentleman's club that would cover for you is over. You're going to get caught. And we've had enough of it. At least for this month!

Still More on the New Speaker

Another interesting feature of the House of Commons' new Speaker is that the post is quite different from the post of Speaker of our own House of Representatives. In the U.S., the Speaker is the chief leader of the majority party that controls the House and as such she is a partisan who sets the agenda and tries to move legislation that her party desires.

Not so in Britain. The Speaker of the House of Commons "must, of course, be above party political controversy and must be seen to be completely impartial in all public matters." The "of course" shows how different British thinking is about the role of the Speaker. Upon election, the Speaker resigns from his party, remains aloof from his former friends in the House, and does not even frequent the House dining room. He is an umpire, not a partisan.

Quite a difference from the U.S.! It almost makes one wonder why any politician would want to be the Commons' Speaker. It's not the sort of job most politicians would aspire to.

In his first speech in the chair, new Speaker John Bercow reiterated his intention to abandon all of his political views. The leader of his former party, the Tories, in his congratulatory speech, added that he hoped that would be true -- another little dig at the fact that Bercow was not especially popular within his own party.

By the way, the Parliamentary factsheets from which I learned all this information are really delightful -- much better than anything put out by the U.S. Congress. Be sure to check out this factsheet on the customs and traditions of the House of Commons -- very well done.

That New Speaker

And by the way, appropos of the last entry, be sure to catch the proceedings by which the Queen gave Royal Approbation to the House of Commons' choice of its new Speaker.

There's nothing like having a few centuries of practice behind you to produce rituals to which only Monty Python could really do justice. The reading of the royal commission is particularly delicious. I also liked how everyone had to have their lines in front of them and to be prompted by the lackeys who really knew the rituals.

Long Journey

Britain elected a new Speaker of the House of Commons yesterday, in an election that had many interesting features. For instance, it is understandable that the House, mired in scandals resulting from questionable expenditures by members, would turn to a member from the opposition Tory party as the new Speaker. Some, however, have suggested that John Bercow, the new Speaker, was chosen precisely because he is unpopular with the Tories, having criticized some conservative policies.

But what I really want to note is that Bercow is the first Jewish Speaker of the House of Commons. Not such a big deal these days, of course, but rather more important when one considers that when Lionel de Rothschild was elected to Parliament in 1847, he could not take his seat because he could not take the oath of office, which required him to swear "on the true faith of a Christian." Rothschild declined so to swear, and was unable to take his seat for nine years, during which he was re-elected twice, until Parliament finally adopted a bill relaxing the oath requirement for Jews. So a small but significant milestone as Jews have finally gone from entry into the House to attaining the House's highest office.

Calling the Eighth Amendment

Music downloaders, beware: a jury has determined that a 32-year-old Minnesota woman violated the copyrights on 24 songs owned by four major record labels, and it returned a verdict for the labels in the amount of $1.92 million. That's about $80,000 per illegallly downloaded song. That's even though each downloaded song could have been purchased legally for $1.

The copyright statute authorizes "statutory damages" (i.e., damages that may be unrelated to a plaintiff's actual damages) in any amount between $750 and $30,000 per copyright violated that the court considers just, and in cases where the violation was wilful, the amount may be increased to up to $150,000. So the amount, incredible as it is, is within the statutory limits (wilfulness was apparently proved). The statute does make it seem as though the court, not the jury, sets statutory damages, so I'm a little surprised that the jury is involved here, but I'm not really familiar with the practice on this point.

In any event, even allowing for the need to impose a penalty that goes beyond the actual damages suffered and that will provide an appropriate deterrent to illegal behavior, clearly this verdict is ridiculous. Indeed, off the top of my head I'd be inclined to say that it's a case for application of the Eighth Amendment, which prohibits the imposition of "excessive fines." The Supreme Court has held that this amendment does not apply to damages in a civil suit between private parties, but it has constrained punitive damages using the Due Process Clause, and here statutory damages are serving a similar function.

But first I would apply the statutory copyright provision that the statutory damages should be such damages "as the court considers just." The defendant is liable for more than $24 and should pay an amount that would appropriately deter illegal music downloading. But I think about $10,000 or $15,000 would amply serve that purpose (defendants have apparently been settling for $3,000-5,000, so the fine imposed after trial needs to be more than that). $1.9 million is absurd.

Update: A little research (actually I asked a colleague, but that's part of research!) reveals that in 1998 the Supreme Court held that the Seventh Amendment right of jury trial includes the right to have the jury determine the amount of statutory damages in copyright cases. So that's why a jury verdict was involved. But presumably the court could still apply any constitutional constraint on the amount of damages awarded.

Almost Too Easy

It's almost too easy to blog about politicians getting into trouble for their extramarital affairs -- but is it any harder if one limits oneself to hypocritical politicians who have piously criticized others for the same fault?

No, not really. Predictably, Senator Ensign, the latest Republican to be caught with his pants down, was in the pious group. He called upon President Clinton to resign after Clinton's affair came to light and he also tried to push Senator Craig out of the Senate for his indiscretions.

But I don't mean to pick on Republicans. Sure, it's one of their group that's on the front burner right now. But the Democrats' Eliot Spitzer suffered from the same pious hypocrisy, patronizing a prostitute after prosecuting prostitution rings.

Perhaps politicians of all stripes should go a little easier on those who succumb to temptation, since it seems only a matter of time before they are caught themselves.

Pros Acting Irrationally

Fascinating article in yesterday's NY Times: a study of over 1.6 million putts made by professional golfers shows that the pros are slightly more likely to make a par putt than to make a birdie putt of identical length. The study's authors believe that the data demonstrate the psychological phenomenon of "loss aversion": golfers try harder on par putts because they don't want to lose a stroke to par; whereas on birdie putts they have the psychological comfort of knowing that if they miss they can still make par.

The study is fascinating because it shows golfers acting irrationally. The golfer's goal is to do as well as possible in the tournament, and this goal is backed up by a large financial incentive. Whether a stroke is for birdie or par is irrelevant to the golfer's best strategy for the stroke. The study controlled for relevant factors, such as the golfer's current position in the tournament or the number of holes remaining. But the number of strokes taken on the hole so far and the relationship between that number and par are irrelevant -- a stroke is a stroke whether it's for birdie, par, or double bogey.

One expects casual players to make strategic misjudgments, just as a casual poker player will fall for the "sunk cost" fallacy and tend to stay in a pot to "protect" the amount he's bet so far, even though paying attention to that irrelevant figure may cause him to throw good money after bad. But professional poker players should be keenly aware of and should know how to avoid that error. Similarly, economists would predict that, with the big sums at stake, professional golfers would act rationally and learn to overcome the psychological pressures identified in this study. But they apparently don't. Humans befuddle economists again.

'Vast There!

Sometimes it's hard to read a judicial opinion without hearing people cry "Hard-a-port! Man the Scuppers!" in the background. Today's opinion in Polar Tankers, Inc. v. City of Valdez, Alaska fits the bill, as the Supreme Court struck down a city tax because it violated the Constitution's Duty of Tonnage Clause.

The what? That's right, Article I, section 10, clause 3 of the Constitution provides that "No State shall, without the Consent of Congress, lay any Duty of Tonnage." You missed that in your Constitutional Law class? Frankly, so did I, but remember that in the Framers' day shipping and maritime matters were vital.

The City of Valdez imposed a personal property tax on large ships that traveled to and from the city -- with exemptions that effectively limited the tax to oil tankers. Ah, but our Framers had anticipated taxes like this. They didn't want coastal states to take advantage of their favored geographical position by imposing taxes that would burden inland states. So, even though a "duty of tonnage" is literally only a tax on the cubic capacity of a ship, the Supreme Court has struck down "all taxes and duties regardless of their name or form, and even though not measured by the tonnage of the vessel, which operate to impose a charge for the privilege of entering, trading in, or lying in a port." Valdez's tax was, effectively, a charge for the use of its ports, so it got struck down.

Our eighteenth century ancestors still rule us today. And they cry "Hard-a-port!" as they do.

What Are the Odds?

Here's a feature of the Sonia Sotomayor nomination that isn't getting a lot of play: if she is confirmed, eight out of nine Supreme Court Justices will be either Catholic or Jewish.

How unlikely is that? According to the Gallup Organization, Catholics and Jews together make up about 27% of the national population (see table 80 after clicking the link).

Now a little math: if Justices were chosen at random from the national popultion, the probability that any specified 8 out of the 9 justices would fall within this group would be (.27)^8 = 0.0000282. But then there are 9 possible ways to take 8 Justices out of 9, so the possibility that any 8 out of the 9 would be either Catholic or Jewish is 9 * (.27) ^8 = .000254. In other words, about 1 chance in 4000.

This calculation is a little artificial in that it chooses one particular moment (the moment after Judge Sotomayor's hypothetical confirmation) to do the calculation. Really, one should ask what the likelihood is that, at some point in our 200+ year history, we would find 8 out of 9 Supreme Court Justices in these categories. That's too complicated (for me, anyway), but suffice it to say that, while the probability would be higher than 1 in 4000, it would still be a surprise.

What does all this mean? Not much, probably. But it is somewhat surprising. One is tempted to think that there must be something about Catholics and Jews that disproportionately propels them toward careers that could lead to a Supreme Court appointment.

Man Up, NY Democrats

Look, I'm not happy either that Republicans have taken over the NY State Senate, but the Democrats' response is ridiculous. Democrats locked the Senate chamber's doors and unsuccessfully tried court action to block the Republican takeover. Then they stayed off the floor and prevented the Republicans from having a quorom.

The Republicans are, of course, engaged in the usual absurd posing when they claim that their actions are not a power grab but an effort at bipartisan reform. And it's not a coincidence that the two Democrats they've brought over to their side have their own ethical challenges (one has campaign finance scandals and the other is accused of slashing his girlfriend's face with a broken glass).

But the Democrats are not showing themselves to advantage either. Legislative bodies are governed by majority vote. If the minority side gets more votes, it becomes the majority side. When Jim Jeffords switched parties in the U.S. Senate, that Senate went Democrat. The Republicans didn't lock the doors and run crying to a court to try to keep control.

Democrats, stop whining. If you have the majority, you have it, and if you don't, you don't. If there are more votes to make someone else the majority leader, you're not it anymore.

Do your wheeling and dealing in the back rooms. If you can get back the votes, fine. But if you can't, you have to reopen the Senate and let the other side have its day.

Bots Get Confused

Now this is interesting -- just moments after today's post, I got an automated message from Google saying that my blog had been marked as a possible "spam blog." Logging on to check, I saw the message: "This blog has been locked due to possible Blogger Terms of Service violations. You may not publish new posts until your blog is reviewed and unlocked. This blog will be deleted within 20 days unless you request a review."

No reason was given. I'm guessing that the references to "Jews" in the previous post, and perhaps particularly the quotation of "kill all the Jews" from the crazy anti-Semite who shot up the Holocaust museum, triggered Google's bots' sensitivities.

I presume it will all work out, but it's interesting that automated devices designed to cut down on anti-semitic spam can also interfere with basic social commentary.

And by the way, if you see this post, then my blog isn't really locked. But I am required to type in a nonsense word as verification that I am at least a real human posting this.

Big Day for Anti-Semites

I don't usually spend much time worrying about whether people hate me because I'm Jewish, but some days you can't help but think about it.

First, a gunman opened fire at the Holocaust Memorial Museum right here in Washington, DC. Police have arrested an 88-year-old long-time white supremacist and anti-Semite named James von Brunn, who is apparently the author of "Kill the Best Gentiles," a conspiracy theory book about how Jews are threatening the white race. "It's time to kill all the Jews," he said in a recent e-mail. Then he took his rifle over to the museum.

Of course, carrying such weapons around will soon be perfectly legal in DC if Congress repeals all our gun control laws, as it is threatening to do in an amendment attached to the DC Voting Rights Act.

Meanwhile, if you were wondering whether Reverend Jeremiah Wright has been unfairly portrayed by the media or whether he really is a smug, narcissistic blowhard, he helpfully cleared things up by explaining that "them Jews" aren't allowing President Obama to talk to him.

Bernard Malamud said, "If you ever forget you're a Jew, a Gentile will remind you." As I said, I don't spend much time thinking about this, but some days it seems that the Jews serve as a litmus test for hateful people. Eventually, we bring out their bigotry.

Supreme Bailout

The Supremes did their bit to push along the Chrysler bailout, denying the application for a stay filed by some of the company's secured creditors. Now the planned sale of the company to Fiat can go through and the company can emerge from bankruptcy.

I don't know that much about bankruptcy, but the plan does seem a little radical, inasmuch as it gives -- or at least is said to give -- unsecured creditors a better deal than secured creditors. I don't understand how that can happen. The complaining creditors do seem to have a point.

At the same time, there is one useful indicator of why the Supreme Court might have declined to get involved: the creditors seeking the stay held just $42.5 million of the total of $6.9 billion of Chrysler's secured debt. That's about 2/3 of 1%.

If 99.33% of the secured creditors are satisfied with the plan, there must be something good about it. As I say, I don't know enough bankruptcy law to have a truly informed opinion, but this objective indicator suggests that the plan can't be all that unfair to the secured creditors.

Back in Business

I'm back from my college reunion -- I won't give the somewhat scary number involved, but clicking on the link and simple subtraction will provide alert readers with the answer.

It was great. If you've got a milestone reunion coming up, go. It was great to see so many old friends and acquaintances. Also, everyone had mellowed considerably. Old animosities had faded. There was no competitiveness or cliqueishness. We were all just happy to see each other.

Now back to work.

Blogging Break

Sorry, faithful readers, but posting is likely to be slim for the next week. See you June 10, I hope.

Another D.C. Vote Debate

Actually, this one isn't exactly a debate, but I will be testifying before a hearing of a D.C. Council's Special Committee tonight at the Wilson building. The hearing starts at 6:30 pm. I'll be on a panel discussing the constitutionality of H.R. 157, the District of Columbia House Voting Rights Act of 2009. As faithful readers know, I think the act is clearly unconstitutional. Others on the panel disagree, so there'll be something like a debate on the topic.

Interestingly, also on the panel will be Patricia M. Wald, former Chief Judge of the District of Columbia Circuit Court of Appeals. It isn't every day that I clash with the judge I clerked for, but she's on record as supporting the constitutionality of the act. So we'll be taking opposing views on the panel

And I might be questioned by Mary Cheh, who is both my colleague and a Council Member. Small world.