More Gibberish From Arlen Specter....This Time On AIG Contracts

Once upon a time, when we all lived in the forest, a man we will call Arlen Specter worked as a DA.

Since that time he has traded in this morsel of history, much as Jake Spoon in Lonesome Dove , to establish a wholly undeserved reputation as a legal thinker worthy of some deference. For those who don't recall the inglorious facts, this tendency reached it's apogee when, during the Clinton impeachment trial, Specter voted "Not Proven" as opposed to "not guilty" or "guilty"....an archaic verdict form (sometimes known as; "not guilty, and don't do it again") once prevalent in Scottish law and, to the best of my knowledge, nowhere else. If nothing else, this alone should cement Specter's already well-deserved reputation as tiresome pedant and coward.

Now, normally, I don't trash Specter - I leave that to the long-suffering Republicans. However, this afternoon, I find that he is all over the TV asserting that the AIG retention bonus contracts are not unenforceable . This is not true. This is a lie. Specter knows that it is a lie. Arlen Specter is a liar.

In support of his ludicrous position Specter claims that the contracts are void "as a matter of public policy" and cites to the Restatement Of Contracts to buttress this argument. More specifically, Specter avers that the contracts are void ab initio in the same way a contact for the sale of heroin, for the sale of a human slave, or for the personal service of prostitution would be. Of course, those contracts are void because the subject matter of the hypotyhetical contracts are in and of themselves criminal. Citing "Public Policy" and appealing to the Restatement Of Contracts is lawyerspeak for "I have no statutory or case law in support of my position".

And, in fact, the stimulus and TARP legislation in question specifically allow for these bonus payouts, provided that they accrue to the recipients for services rendered predating the passage of the legislation.

Personally, I am, for the first and hopefully last time in my life, wholly in agreement with Sen. Grassley's recommendation that the AIG crew commit ritual seppuku. But the only thing worse than letting AIG get the money is having our legislature ignore the laws that they themselves are responsible for.

Your Justice System At Work

Shocking.

MUSKOGEE — A 44-year-old Muskogee man is being given probation after pleading guilty to raping a 6-year-old girl.

Vincent Martin LeCompte was given a 20-year suspended sentence Thursday as part of a plea deal on the first-degree rape charge.

Assistant District Attorney Shannon Otteson says prosecutors agreed to the deal because the victim already has testified three times.

Clearly a great defense attorney. Clearly a nauseating result.

New DSM....BFD

As any lawyer or, hopefully, any judge can tell you, the DSM is a a complete and utter fraud:

It helps doctors make a diagnosis and provides insurance companies with diagnostic codes without which the insurers will not reimburse patients’ claims for treatment.

That is the entire rationale behind the continuing vitality of the DSM. Any other use of the DSM as authority is completely inoperative.

Is compulsive shopping a mental problem? Do children who continually recoil from sights and sounds suffer from sensory problems — or just need extra attention? Should a fetish be considered a mental disorder, as many now are?

As a certified expert, I can assure you that a fetish is not a mental disorder. At least not until your subscription to Leg Show runs out.

When You Agree With A Buffoon

it is a painful situation.

OKLAHOMA CITY — A Tulsa lawmaker said Tuesday he will file legislation to repeal the sales tax on the purchase of guns or ammunition in Oklahoma.

"As Americans, we should not have to pay a tax to exercise our constitutional rights — especially our Second Amendment rights," said Rep. Eric Proctor, D-Tulsa.

The measure, by Proctor and state Sen. Kenneth Corn, D-Howe, D-Poteau, will not affect any dedicated revenue stream for wildlife or other programs, Proctor said, adding it would have minimal impact on the state treasury.

I am opposed to all regressive taxation, so good for him. But Proctor (delightful name, so redolent of association with School hall monitors and proctologists) is clearly trying to appeal to the most hysterical wing of Second Amendment enthusiasts. A pox upon this butched-up wus.

Althouse And Balkin On Marriage

Pretty good bloggingheads discussion on the topic of eliminating the status of marriage that I mentioned a few posts back.

Sullivan v. Paglia

In re the little dustup between Andrew Sullivan and Camille Paglia on the topic of gay marriage I must say that I find that Paglia has far the better argument when she says "....government should get out of the marriage business. Marriage is a religious concept that should be defined and administered only by churches." By way of replying, Sullivan says:

his is a very strange reading of Catholic history and American history. Marriage was not a sacrament until the thirteenth century; many Protestants, most famously Luther, denied its sacramental quality through the sixteenth century. The first marriages in America were civil, not religious in nature:

When the Pilgrims landed at Plymouth in 1620, among the first things they did for the well-ordering of their new commonwealth was to institute the Dutch custom of civil marriage with which they had become familiar during their long sojourn in the Netherlands.

The Dutch made civil marriage the law of the land in 1590, and the first marriage in New England, that of Edward Winslow to the widow Susannah White, was performed on May 12, 1621, in Plymouth by Governor William Bradford, in exercise of his office as magistrate.

Now it is true that the churches have conflated civil and religious marriage ever since and this has become part of the messy civil-religious aspect of marriage in contemporary America. And Camille, as usual, has a point: a cleaner solution would be civil unions for everyone, gay and straight.

For most of it's existence, marriage has been a much more laisseze faire institution than it is today. The entire business of formal registration of marriage in the west did in fact begin as a function of the ecclesiastical courts and was mostly concerned with the establishment of legitimacy of children (largely of concern in terms of inheritance) and settlement of property rights. Today these concerns are no longer as relevant and are often handled without regard to the marriage estate. In the wake of the Reformation (which serves to explain a lot about why Luther argued against Church control over the formalities), marriage increasingly fell under the authority of the state. At this point the government has maintained the prerogative to issue marriage licenses for so long that no one even questions their warrant to do so. But most of the accoutrements of marriage can and are handled through a variety of other devices of the civil law, such as health-care proxies, and through a more enlightened treatment of testamentary law and child-support. The other issues that arise should be (relatively) simple subject matter for statutory cures. The argument for any state licensing of marriage is just rather weak....after all, the IRS doesn't hesitate to argue the existence of a common-law marriage when it suits their purpose, so the licensing or lack thereof is not always dispositive even today.
I think that this would not satisfy Sullivan, however, as what he really wants is the State sanction, even if the State properly has no good business sanctioning any sort of marriage whatsoever.

HRC, Emoluments And The "Saxbe Fix"

I was a dreadfully mediocre law student so perhaps it was just one of the many things that I neglected but I don't recall ever hearing the word "emoluments" However, it would seem that the "emoluments clause" of Article I of the Constitution has suddenly, like the zombie from an old George Romero flick, sprung to ugly life.
Amazingly, Professor Volokh has found one of the happy few - JAG Corps attorney John O'Connor - who did not ignore the Emoluments Clause ....Who in fact wrote a Hofstra Law Review article on it, thereby proving once again that there is no subject so arcane that some law review will not publish on it. For those who may not be able to find the relevant page in their Boy Scout Handbook, the Emoluments (or Ineligibility Clause provides:

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

In January of 2008 the salary of the Secretary Of State was increased by Executive Order implementing a COLA enacted by the Congress in which Hillary Clinton served. The standard view is that Senator Clinton is barred from serving in the office of Secretary Of State until the Constitutional disability is cured by another election, an intervening election providing the opportunity for the electorate to either ratify or disavow the act of their representative. It appears that the Emoluments Clause has only twice been the subject of legal challenge, both actions being dismissed for want of standing. And, as the topic is almost the epitome of the unsexy Con Law area, the academic commentary has been fairly scant.
It would seem now that the "unsexy" quotient has changed, changed utterly by the proposed appointment of Hillary Rodham Clinton by the President-elect. At Volokh Conspiracy John O'Connor gets to the nut-cut:

I do not believe it affects the analysis that the salary increase occurred as a result of an Executive Order or that the statute creating these quasi-automatic salary increases was enacted prior to Senator Clinton’s current term. By its plain language, the Emoluments Clause applies when the office’s salary “shall have been encreased,” without regard to exactly how it was increased. Indeed, an early proposed draft of the clause included language limiting it to an increase of emoluments “by the legislature of the U[nited] States,” and was later revised to encompass any increase in emoluments. It is worth noting that several Framers thought, without much explication, that the clause was too lax as initially drafted. The clause also does not require that a Senator or Representative have voted for the increase.

The more difficult question is whether Senator Clinton’s ineligibility for appointment may be cured legislatively through the “Saxbe Fix,” where Congress reduces the Secretary of State’s salary to a level at or below where it was when Senator Clinton’s current term began in 2007. The Saxbe Fix got its name because the Nixon administration sought to eliminate Senator William Saxbe’s ineligibility for appointment as Attorney General by reducing the salary of that office to the level that existed before Senator Saxbe’s appointment. Although there was some opposition on constitutional grounds (most interestingly by Senator Robert Byrd and then-Harvard Professor Stephen G. Breyer), the legislation passed and Saxbe was confirmed. Later, Lloyd Bentsen served as Treasury Secretary after “Saxbe Fix” legislation reduced the salary of that office to its level immediately before Senator Bentsen’s Senate term had begun.

It is my view that the Saxbe Fix [] fails to remove an ineligibility for appointment. I believe the Saxbe Fix is ineffectual based on the plain reading of the Emoluments Clause and is also contrary to the intent of that clause. The Emoluments Clause provides an ineligibility for appointment to an office the emoluments of which “have been encreased.” Even if the emoluments of the office are later reduced, it seems to me that they “have been encreased” during Senator Clinton’s current Senate term even if they are later decreased.

Other Scholars drop by and deal themselves a hand. A good time is had by all. I recommend the entire posting thread to all.

UPDATE: I find I can't resist quoting Mickey Kaus in his entirety on the ridiculous, patronizing, typical and stupid response emanating from Team Clinton.

I didn't think her spokesman Phillipe Reines could top his obnoxious and nonsensical response to the Gerth and Van Natta report that Hillary had secretly eavesdropped on her enemies ( “We don’t comment on books that are utter and complete failures”). But he's come close with his spin on the legal argument--a seeming winner*** if you actually believe the Constitution's language--that Hillary is barred from becoming Secretary of State by the Emoluments Clause:

This is a Harvard Law grad nominating a Yale Law grad here, so all parties involved have been cognizant of this issue from the outset,” [E.A.]

Well all right then! No clinging to guns and God in this administration! ... I'm sure they spent a lot of time on the Emoluments Clause at Harvard and Yale.

Protecting The Peanut Butter And Jelly Sandwich™

James Boyle's book The Public Domain: Enclosing The Commons Of The Mind si available as a free download here. It looks great and I hope to say a lot more about it very soon. Excerpt from the preface:

Each person has a different breaking point. For one of my students it was United States Patent number 6,004,596 for a “Sealed Crustless Sandwich.” In the curiously mangled form of English that patent law produces, it was described this way:

A sealed crustless sandwich for providing a convenient sandwich without an outer crust which can be stored for long periods of time without a central filling from leaking outwardly. The sandwich includes a lower bread portion, an upper bread portion, an upper filling and a lower filling between the lower and upper bread portions, a center filling sealed between the upper and lower fillings, and a crimped edge along an outer perimeter of the bread portions for sealing the fillings there between. The upper and lower fillings are preferably comprised of peanut butter and the center filling is comprised of at least jelly. The center filling is prevented from radiating outwardly into and through the bread portions from the surrounding peanut butter.

Judge Richard Sanders: A Very Cool Guy

Andrew Sullivan points toward this amazing report about Washington State Supreme Court Judge Richard Sanders, one of the last uncastrated men on the bench.

Sanders initially dodged reporters' questions about the incident this week, refusing to comment on anything he might have said at the event.

A video on the Federalist Society's Web site shows that Sanders' outburst came just over 17 minutes into Mukasey's speech, after Mukasey talked about what he said was the "casual assumption among many in media, political and legal circles that the administration's counterterrorism policies have come at the expense of the rule of law."

Shortly after that point on the video, a voice is clearly heard yelling: "Tyrant! You are a tyrant!"

Mukasey can be seen briefly stopping and looking up from his speech. A few minutes later, Mukasey began shaking and slurring his words.

Of course, in today's climate such courage cannot go without censure:

Chief Justice Gerry Alexander said Tuesday that he was very concerned about the outburst's potential damage to Sanders' reputation, and to the court.

Alexander said he planned to speak privately to Sanders to express his disapproval about the incident, but said he has no authority to discipline him.

"People have a First Amendment right to speak, but that's not conduct that I would like to see judges display," Alexander said.

"Billion Dollar Charlie" v. Godzilla

Let the games begin.

There was fear and trembling on the Internets earlier this month when the word went out that storied Harvard Law School professor Charles Nesson - "Billion Dollar Charlie" - had decided to go mano a mano with the most-hated institution in America. The Bush White House? No, the Recording Industry Association of America.
"RIAA Litigation May Be Unconstitutional," headlined Slashdot, a self-described "news for nerds" website. "Harvard's Charlie Nesson Raises Constitutional Questions in RIAA Litigation," trumpeted ZDNet Government. "Insane Harvard Law Professor Promises MP3 Justice," proclaimed Gawker.

Man The Ramparts

This seizure by Steve Beshear, the creepy Governor of Kentucky, the kind of move that ought to be widely opposed by the left, the right, and by everyone who wants the internet to thrive and develop. Quite aside from the fact that this is precisely the sort of situation that lies within the ambit of the commerce clause,as Radley Balko's article sort of highlights, upholding this boneheaded ruling will open up the internet to just about any idiotic legislation that any State legislature cares to throw out there. Obscenity, sure, but also a crazy-quilt of laws respecting indecency, defamation, sedition....you name it. Very Bad News.

Dan Murdock

I am saddened to see that Dan Murdock is stepping down as OBA counsel. While I have little reason to be fond of the Oklahoma Bar Association, in my experience Dan was very fair-minded and was often helpful.

As a friend of mine said when the allegations broke, "You need to pay the lady before you bite her, Dan."

Maybe someday he and I and Judge Harris can all sit down and discuss the unfairness of things. We're not inviting Judge Thompson, though....ya gots to have some standards, after all.

Guess I Shouldn't Be Surprised

Bizarrely, for someone who comments on Due Process issues so frequently, Ramesh Ponnuru seems unaware that references to the "Liberty Clause" of the Fourteenth Amendment (as distinct from the "Property Clause") are normal elements in Contitutional discourse.

Secret Justice

Public 'left out' as Oklahoma court records sealed

This is quite pitiful.

There are good reasons to seal records, but normally (as with juvenile matters, mental health affairs, etc.) these are already defined by statute or by court rule.

Occasionally a Judge will seal a record as a matter of forbearance, taste, or mercy. However, forbearance, taste, or mercy, while not unknown downtown, are in extremely short supply.

Corruption, or it's cousin "good-old-boy-ism", is rather prevalent.

I will say more when I stop grinding my teeth.