Monday, December 31, 2007

WVU v. TRB Jurisdiction Contest: The Answer

I know I said I'd wait until the new year to post what I think the other diversity jurisdiction issue is in this case, but upon reflection Alex's comments have set the stage for the answer, even if he hasn't given it precisely.  Thus, I declare him the winner and provide my answer.

A hint comes from that source of all sources, Wikipedia (more specifically, from a paragraph in  the concise but reasonably accurate entry on diversity jurisdiction):

Usually, in order for diversity jurisdiction to apply, none of the plaintiffs in a case can be from the same state as any of the defendants (complete diversity). . . . Cities and towns (incorporated municipalities) are also treated as citizens of the states in which they are located, but states themselves are not considered citizens for the purpose of diversity.

A state is not a "citizen"  under the diversity jurisdiction statute.  The presence of any state in a suit, plaintiff or defendant, destroys the diversity of parties.  (That's the "you'll kick yourself" part.)

But, one may object, "this suit isn't styled State of West Virginia v. Richard Rodriguez; the Board of Trustees for WVU is the plaintiff!" That is true, and it raises the question of whether WVU should be treated more like a city (which is a citizen, normally) or the State of West Virginia itself.   That is the issue I was referencing.

So, just for kicks and giggles, how would a federal court resolve that issue?  I'll let (now former) Judge Luttig explain:

Section 1441 of Title 28 provides that "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division
embracing the place where such action is pending." 28 U.S.C.A.§ 1441(a) (West 1994). . . . States, however, are not "citizens of a state" for purposes of § 1332(a). Moor v. Alameda County, 411 U.S. 693, 717 (1973). In addition, public entities and political subdivisions, such as municipalities, are also not "citizens of a state" if they are an
"arm or alter ego of the State." Id. at 717-18.

Maryland Stadium Authority v. Ellerbe Becket Inc., No.04-1743 (4th Cir. 2005).

Does the alter ego doctrine apply here?  Well, in Maryland Stadium Authority the court concluded that the University of Maryland was merely an arm of the State of Maryland and ordered the suit dismissed for lack of subject-matter jurisdiction.  From the discussion in the case, that result seems consistent with what other circuits have decided about other universities.   However, it may be too much to say that there is a general rule that public universities are alter egos, even in the Fourth Circuit: Judge Luttig qualified his opinion by writing that alter ego determinations are fact-specific, and the panel came to its conclusion using a multi-factor test.   Thus, there may be some hope for TRB's lawyers yet on the issue.

Alex will receive some low-value prize, probably from my collection of never-read or read-once books (my spare copy of Aristotle's The Nicomachean Ethics, perhaps), when I get around to it.

(And, yes, I know my cites are formatted incorrectly; fortunately, this is a blog, not federal district court.)

I Don't Know Whether This Move is Brilliant or Incredibly Stupid

Huckabee created a negative ad against Romney, scheduled it for play in Iowa, had a "change of heart" and ordered it down, then showed it at a press conference to every reporter west of the Mississippi. We'll see how that works out.

By the way, here's a link to a bootleg copy of the discarded ad, shot by reporter Mark Halperin for Time.

(Hat tip to Jonathan Martin and his must-read Politico blog.)

Worth Noting

"Bloomberg Moves Closer to Running for President."

Sunday, December 30, 2007

WVU v. The Rat Bastard (Jurisdiction Contest)

The attempts thus far to answer the removal question I posed have been good ones.  I agree that a key issue would be the location of TRB's domicile when the suit was  filed (and perhaps even when some of the underlying events occurred, though the weight of precedent is against that, as far as I remember).  Several commenters discussed the domicile question in one way or another, and it would be difficult to choose the best of the offerings. So I'm not.

There is, at least, one other major issue regarding diversity jurisdiction in this case.  It's the sort of issue that you smack yourself in the face for not immediately recognizing (as I did metaphorically after I realized I hadn't).  First one to mention it wins whatever I'm going to award. (Incidentally, I'm not saying the issue should clearly be decided one way or another; just saying it's there.)  If no one gets it by, say, the start of 2008 I'll just post what I think  it is.

By the way, the local NBC station here in Clarksburg (WBOY) had an interview with a lawyer regarding the case on last night's evening news.  They even discussed the question of whether the case could be removed to federal court, and mentioned the domicile issue specifically (albeit very briefly).  When the local news in Clarksburg, West Virginia features a discussion of federal subject-matter jurisdiction we are in strange territory indeed.

What Campaign Finance Regulation Hath Wrought

Personal wealth and 527 support could be major factors in determining  the course of the next month's proceedings.   This article provides some coverage.

Saturday, December 29, 2007

Dripping With Irony

The caption to a video clip accompanying a Washington Post story about the Romney campaign:


Romney Responds Angrily to McCain Ad

Traveling across Western Iowa, Mitt Romney responded angrily to the latest negative ad by rival John McCain, who uses the spot to call Romney a phony. In the comments to reporters on the bus, Romney also defended his own negative ad against Mike Huckabee, saying the allegations in it are true.

Another Take on the "Man of the Year"

The Weekly Standard gets the choice right.

Friday, December 28, 2007

West Virginia University v. Richard Rodriguez

Update: For those looking for a copy of the complaint and the relevant employment contract documents in the case, read on. For those also interested in the federal removal jurisdiction questions at play, see the following original post and its comments, as well as this post (which links to a copy of the removal notice), this post discussing the alter-ego doctrine, and this post addressing WVU's motion to remand (and linking to the same and accompanying memo).

Update #2: WVU has filed an amended complaint adding a breach of contract claim after Rodriguez failed to make the first payment on the $4 million buyout. This post now has a link to the text of that document.

As those of you who are interested in such things certainly already know, WVU has filed a declaratory judgment action against Rich Rodriguez (hereinafter "The Rat Bastard" or "TRB") seeking a ruling that the university lived up to its obligations under TRB's employment contract and is entitled to liquidated damages of $4 million. For your perusing pleasure, I am posting a copy of the complaint, which has the contract documents attached as exhibits.

(Bonus content/pop quiz: True or False: TRB's lawyers can successfully remove this case to federal court. Best answer and cursory-but-correct-explanation wins an undetermined prize of little or no monetary value. Leave your answer --and e-mail address, if I don't know you-- in the comments).

Yet More on the Religious Test Clause

Some very informative historical background on the political meaning (as opposed to the legal meaning) of the Religious Test Clause here, courtesy of The Corner.

Also, for what it's worth I think that I more or less agree with Krauthammer's position (ie. that voters shouldn't directly consider the validity of the religious views of candidates in deciding for whom to vote), but I might be persuaded otherwise.

Wednesday, December 26, 2007

A Wicked Idiot Indeed

Rick Brookhiser over at The Corner has used the label "wicked idiots" to describe Ron Paul and his core supporters. To the extent that I had thought about Paul, I had doubted that that label applied to him personally (some of his backers, on the other hand...) .

After I viewed this clip, all such doubts were dispelled.

Tuesday, December 25, 2007

Gloria in Excelsis Deo

Merry Christmas to you and your's.

Monday, December 24, 2007

Rudy's in Trouble

This story in today's New York Times nicely chronicles Rudy's recent travails and his now firmly February 5th-based campaign strategy. The article confirms that Rudy is basically ditching New Hampshire and is looking to the vote in Florida (on January 29) for his first win.

Though I'm currently a Rudy supporter, I have to say that I think his course to the nomination has become much more difficult since he has dropped out of contention in New Hampshire. Briefly, I believe that in order for Rudy to be viable on Feb. 5:

1. Huckabee must win Iowa.

2. Romney and McCain must fight a close contest for first in New Hampshire, thus denying Romney a solid victory in either of the first two contests.

3. Rudy must win in Michigan on Jan. 15 --not just "do well" in Michigan as Rudy's advisors told the Times-- and in Florida two weeks later.

Considering the continuingly fractured nature of GOP race, the first two events listed above might well happen. However, I think a victory in Michigan, where Romney and McCain will both likely be quite strong, will be a tall order indeed.

Sunday, December 23, 2007

We Still Have Things to Learn from the Brits

From a Washington Post article:

In many parts of the world, companies hold Christmas parties -- or holiday, year-end bashes -- for employees. But in Britain, the gatherings have become a particularly potent institution, legendary for massive booze consumption that leads to fistfights, firings and spur-of-the-blurry-moment indiscretions in boardrooms and parking lots.

Saturday, December 22, 2007

In Case You Missed It, Winter is Here

The Winter Solstice occurred at 1:08 am (EST) this morning.

That is all.

WVU Alums Need to Read This Story

It seems WVU officials, perhaps including high officials in the Garrison administration, recently may have granted an unearned MBA to a woman who happens to be a subordinate of a very important WVU donor (and the most important businessman in the state) and the daughter of a very important West Virginia politician. Read the story, from the Pittsburgh Post-Gazette, here. If the allegations implied in the piece are true, this could be quite a scandal indeed.

Friday, December 21, 2007

Make a Note of It

SCOTUS news on the big death penalty case (appropriately, via SCOTUSblog):

The Supreme Court announced Thursday that it will promptly release the audiotape of the oral argument on Monday, Jan. 7, in Baze v. Rees (07-5439) — the Kentucky case testing the constitutionality of the three-drug protocol for execution by lethal injection. The case also involves the question of a constitutional standard for judging the validity of such a protocol.

The argument is scheduled for 10 a.m., the first case to be heard in the January sitting. “The audio recording will be released shortly after the conclusion of the argument,” according to the Court’s press release. That would mean somewhere soon after 11 a.m. The argument is scheduled for one hour, and, because a second case will be argued that morning, the Baze hearing should not run much beyond 11.

By the way, in case you hadn't noticed a link to this story is also available in the SCOTUSblog feed in the sidebar to the right.

A Hit Piece, or a Fair Critique?

This article from the Politico's Roger Simon is getting a bit of attention on political sites. Simon covered a stop on Thompson's final campaign push in Iowa. The title of the piece? "Fred Thompson: Lazy as charged."

Thompson man Jonathan Adler says video of the event doesn't support Simon's description. I blog, you decide.

We Must Try to Contain Our Sadness

From the AP:

DES MOINES, Iowa - Rep. Tom Tancredo, who built his longshot presidential campaign on opposition to illegal immigration, dropped out Thursday and endorsed Republican rival Mitt Romney as the best man to carry on the fight.

As for the endorsement, reports are that Thompson wanted it very seriously as well. It might have helped energize his last-ditch Iowa campaign swing.

Thursday, December 20, 2007

On Balance, This is Probably Good News

From Politico:

FEC heads toward shutdown

Senate Majority Leader Harry Reid (D-Nev.) just announced that the Senate will not clear four new appointees for the Federal Election Commission, meaning the panel that acts as a watchdog on political campaigns cannot function during the critical election-year period.

"no religious test shall ever be required..."

A few days ago, I briefly mentioned the dispute over whether there is a moral principle behind the Constitution's religious test clause that should prompt voters to basically forgo direct consideration of a candidate's religious views in deciding whether to support that candidate. I made that mention in response to a Charles Krauthammer column in which he argues that there is. So I think I would be remiss if I didn't link to Christopher Hitchens' opposing treatment of the question, posted on Monday. I'd tell you who I think is more persuasive, but my insomnia just ran out of steam. More later.

Blog Improvements to Come

As you may have noticed, the format and features of the blog right now are a little undeveloped, to put it charitably. I've begun to make some improvements (see the SCOTUSblog feed and Recent Comments widgets in the right sidebar) but there's much to do. Over the next week or so I'll be working on the colors and fonts scheme, adding in links to other blogs, and so forth. If you have suggestions for content and/or features that you'd like to see me add in that period, make them in the comments to this post. Of course, I'll continue to make changes as things go along and suggestions/criticisms are always welcome.

Wednesday, December 19, 2007

Re: Justice Kennedy, Call Your Office

I wish that I could say that I really called this, but I was just making a lame joke at the time (last Friday). The title of a Time article posted on Monday:

New Jersey: A Death Penalty Trend?

Some Wednesday Political Humor

From a Slate article discussing Mike Huckabee's use of humor and some past politicians who were funny in a good way:

Huckabee reminds me of Mo Udall, the last great punster and jester on the campaign trail who every candidate wants to quote but not emulate. "I'm Mo Udall and I'm running for president," the failed Democratic candidate said, walking into a shop. "Yeah," replied the barber, "we were just laughing about that." Candidates don't repeat Udall's better lines, like his observation that the difference between a cactus and a caucus is that with a cactus, the pricks are on the outside.


(By the way, the article argues -correctly, I think- that Huckabee's ceaseless joking will come back to haunt him rather quickly.)

Monday, December 17, 2007

Mixed Feelings About Romney

An editorial from today's edition of the Manchester Union Leader nicely encapsulates the ambivalence that a lot of Republicans, including me, feel toward Romney at this point.

Gov. Romney has many strengths as a presidential candidate. His management record is stellar, with the exception of his lawn maintenance contractor. He has brains, to be sure, and he is right on most issues -- at least at the moment.

We have to say that he impressed us with his intellect and his analytical abilities during both of our interviews with him. And on the campaign trail we have observed him express his views with eloquence and explain himself with the discipline and detail with which a math professor might explain a complex formula.

And yet for all of his strengths, we sensed something lacking. In months of observing and interacting with Gov. Romney, we haven't discerned in him a real passionate political conviction.

Yes, he says all the right things. But given the noted changed in many of his positions, how does one believe that he now means what he says? Romney does not speak with the passion of a convert, but with the calm demeanor of an analyst.

Maybe he really is converted to a deeply conservative philosophy. Maybe he just doesn't express himself in emotive ways. Or maybe he has figured out what the Republican base wanted and decided to be that candidate. We honestly don't know, and that bothers us.

The editorial goes on to reiterate the Union Leader's support for McCain. I not there yet, but I have begun to rethink the strength of my opposition to him. We'll see how things play out.

Sunday, December 16, 2007

Rudy Cutting Back in NH; Not So Good

From a Politico update from New Hampshire:

Yesterday, Giuliani made a symbolic statement that he and his campaign think their path to victory lies not in the early January snows of New Hampshire but in sunny Florida, which holds its primary in late January.

I'm increasingly convinced that this race, or at least the sub-race to be the anti-Huckabee, will be over before Florida.

Saturday, December 15, 2007

"Man of the Year"

I thought the NR editors were off base in their Romney endorsement, but I agree with this entirely.

Friday, December 14, 2007

Justice Kennedy, Call Your Office

In the news:

TRENTON, New Jersey (Reuters) - New Jersey on Thursday became the first U.S. state to legislatively abolish the death penalty since the U.S. Supreme Court reinstated capital punishment in 1976.

It's a trend!

Freedom and Religion

So here's something that's peaked more than a little interest recently. Last Thursday, in his speech on religious tolerance, Mitt Romney said:

"Freedom requires religion just as religion requires freedom.... Freedom and religion endure together, or perish alone."

Now, first let's assume that Romney actually meant to say that freedom and religion can only survive in a society together, and not just that religious liberty is both a major part of freedom and demanded by religious principles. (As an aside, I'll take even a tangential mention of religious liberty as a chance to link to Milton's Areopagitica; if you haven't read it, you need to.) If so, is Romney right?

Charles Krauthammer offers an answer:

But this is nonsense — as Romney then proceeded to demonstrate in that very same speech. He spoke of the empty cathedrals in Europe. He’s right about that: Postwar Europe has experienced the most precipitous decline in religious belief in the history of the West. Yet Europe is one of the freest precincts on the planet. It is an open, vibrant, tolerant community of more than two dozen disparate nations living in a pan-continental harmony and freedom unseen in all previous European history.

In some times and places, religion promotes freedom. In other times and places, it does precisely the opposite, as is demonstrated in huge swaths of the Muslim world, where religion has been used to impose the worst kind of unfreedom.

As far as the "religion requires freedom" part goes, Krauthammer's line of argument seems to me to be almost indisputable. Indeed, he could have (and with more space, almost certainly would have) pushed it much further: the history of the last 1500 years shows that religious belief, as a practical matter, can complement authoritarianism as well as it does freedom.

The more interesting matter is whether "freedom requires religion." The evidence from modern Europe certainly seems to support the position that it does not, but I'm not yet entirely convinced.

Any thoughts?

Hat Tip: The Corner

(By the way, I'm also uncertain about Krauthammer's argument that the principle behind the Constitution's prohibition on religious tests for federal office means that citizens should not directly consider the religious beliefs of presidential candidates in casting their votes. More on that, and on the "freedom requires religion" issue, later. )

Update: Re-reading Krauthammer's quote that "[i]n some times and places, religion promotes freedom. In other times and places, it does precisely the opposite . . . " it was struck that it is, in fact, pretty close to the argument I thought was pushing "much further." My blogging rust is showing a bit.

"Would Reagan Survive in Today's GOP?"

Peggy Noonan's Friday WSJ column poses that interesting question (though I wish she had spent more than one paragraph addressing it). After discussing Mike Huckabee's rise (driven,as she sees it, by Huckabee's promotion of the fervency of his faith), Noonan writes:

I wonder if our old friend Ronald Reagan could rise in this party, this environment. Not a regular churchgoer, said he experienced God riding his horse at the ranch, divorced, relaxed about the faiths of his friends and aides, or about its absence. He was a believing Christian, but he spent his adulthood in relativist Hollywood, and had a father who belonged to what some saw, and even see, as the Catholic cult. I'm just not sure he'd be pure enough to make it in this party. I'm not sure he'd be considered good enough.

I think the answer to both of those implied questions is "probably yes," but not "definitely yes."

Also, the column contains a sort-of-nice insight into the immigration debate; I wouldn't characterize the elite apathy point as she does - her views on what to do about illegal immigration significantly color her description, and my views are somewhat different from hers- but there is more than a little truth in her overall assertion. (If you want to understand what I'm talking about, read the column).

Thursday, December 13, 2007

Ah, America's Struggling Small Farmers

From a story in today's Washington Post entitled "Farm Program Pays $1.3 Billion to People Who Don't Farm":

Even though Donald R. Matthews put his sprawling new residence in the heart of rice country, he is no farmer. He is a 67-year-old asphalt contractor who wanted to build a dream house for his wife of 40 years.

Yet under a federal agriculture program approved by Congress, his 18-acre suburban lot receives about $1,300 in annual "direct payments," because years ago the land was used to grow rice.

Matthews is not alone. Nationwide, the federal government has paid at least $1.3 billion in subsidies for rice and other crops since 2000 to individuals who do no farming at all, according to an analysis of government records by The Washington Post.

The story also discusses the U.S. agricultural subsidy system more generally:

What began in the 1930s as a limited safety net for working farmers has swollen into a far-flung infrastructure of entitlements that has cost $172 billion over the past decade. In 2005 alone, when pretax farm profits were at a near-record $72 billion, the federal government handed out more than $25 billion in aid, almost 50 percent more than the amount it pays to families receiving welfare.

The Post's nine-month investigation found farm subsidy programs that have become so all-encompassing and generous that they have taken much of the risk out of farming for the increasingly wealthy individuals who dominate it.

The farm payments have also altered the landscape and culture of the Farm Belt, pushing up land prices and favoring large, wealthy operators.

The piece is kind of long, but well worth a read.



Just to clarify, the headline above wasn't meant to mock struggling small farmers (although if you're a struggling farmer in today's farm price environment you might want to rethink your choice of occupation). It was meant to mock the federal subsidy system that backers say is geared toward helping small farmers but instead primarily benefits wealthy individuals, large agribusinesses, and farm-state congressmen and senators.

Wednesday, December 12, 2007

Down With Hand Raising

Not a great fan of Fred Thompson's campaign thus far; I think history will record that his late entry tactic and lackadaisical attitude toward campaigning didn't pay off. However, this moment from today's debate in Iowa might be my favorite in this cycle so far.

Stick it to 'em, Fred.

Sentencing Reform for Crack Offenders

This article in today's Washington Post makes for interesting reading. More when it's not 4:12 am.

A Song for A Merry Little Christmas

My favorite Christmas song, easily, is the originally-performed version of "Have Yourself a Merry Little Christmas." The mixture of hope for better things to come and sadness over things and people long gone are quite poignant, at least to me. Alas, as some of you probably know (and as this wonderful Entertainment Weekly article explains) the song's lyrics were later changed to make them more unambiguously upbeat. Today alone, I've heard the phrase "hang a shining star upon the highest bough" at least four or five times. Thus, and in agreement with the minority of modern musicians who have discovered the superiority of the old lyrics, I feel compelled to present the proper version for your holiday enjoyment.

A Sure Contender for Political Understatement of the Year

Somewhat surprisingly (at least to me), the editors of National Review endorsed Mitt Romney for president today. There was little doubt that a majority of NR bigwigs supported Romney, but I had assumed there were enough dissenting voices inside the mag to prevent an endorsement before the first primaries began. Obviously, that assumption was wrong.

The actual text of the endorsement is interesting, though it contains no new insights into the GOP race. The editors discuss the weaknesses of the other candidates in some depth (although not in ways that are unseemly), but, speaking of Mitt admit only that

Some conservatives question his sincerity. It is true that he has reversed some of his positions.

The editors quickly move on to argue that "we should be careful not to overstate how much he has changed."

Mitt Romney has a number of qualities (as far as I can discern) that one would wish a president to have. However, to argue that consistency is one of them is simply hogwash. He has radically changed his positions not just on abortion, but on gay marriage, taxes, immigration, campaign finance regulation, and a number of other matters. He has gone from being a moderate, Massachusetts-electable Republican to, as NR puts it, "the most conservative viable candidate" in the race. More importantly (in my view), it seems that those changes in viewpoint largely occurred only after he began to seriously consider running for president. The 2000 and 2007 versions of Mitt Romney are more different than those of any other major candidate in the race, Republican or Democrat.

"Some conservatives question his sincerity"? "It is true that he has reversed some of his positions'? Indeed.

(Full disclosure: I am running as a delegate for Rudy Giuliani to the February 15 West Virginia GOP candidate selection conference. As I'll discuss later, my assessment of Rudy is more than a bit ambivalent, but if a WV GOP primary election were held today he would be my choice and I think he's worth actively supporting. )


Dear Reader:

As you might be able to tell, this is the first post (of hopefully many, many posts) on a new blog. More specifically, it's the first post on my new blog. As you also might be able to tell, I intend this is to be a blog that will cover matters in the fields of law and politics, as well as "miscellaneous nonsense" --defined as whatever interests me at any particular posting time on any particular day. Part of me wishes that I had some some semi-original concepts for topics to cover here or for a blogging format, but, well, I don't. What this site's setup lacks in creativity, however, will hopefully be made up in the quality of individual posts on it. Hopefully.

For those of you who are familiar with my postings (admittedly, it's been a while) on Semper Liberi, a now dormant blog for the members of the Federalist Society chapter at the West Virginia University College of Law, you'll find my missives on legal topics here to be similar in tone and style (but perhaps sometimes exhibiting the effects of a couple of years of intellectual polish and skill development.) You'll also read a bit about some of my interests and views outside of the law, such as they are. For those of you who don't know me at all, if you decide to stick around you'll learn soon enough.

Postings are all well and good, but comments are really what separate good blogs from merely serviceable blogs. Any and all comments of any remotely constructive nature are welcome and much appreciated here. Though, of course, I reserve the right to delete any material I deem defamatory or otherwise inappropriate for this site.

That's nearly enough pontificating on the nature of this blog for now. There is one further thing to address here, however: the name of this site. Repeated references to "this blog" are ungainly and indistinct. I rather like the name "LPMN"; it's short, it's unique (well,except for the Libertarian Party of Minnesota), and it's an acronym. What more could you want?

(Seriously, though, if you have naming suggestions leave them in the comments. I might change my mind. Unlikely, but possible.)

So, with no further adieu let's get started.