Wednesday, July 30, 2008

Sen. Ted Stevens Indicted

From Reuters on Tuesday:

Veteran Republican U.S. Sen. Ted Stevens was charged on Tuesday with concealing more than $250,000 worth of gifts, including home renovations, that he received from an Alaska oil services company, the Justice Department said.

National Review Online has called on Stevens to resign, but he isn’t the type for that.  Indeed, I’d be greatly surprised if he even were to abandon his plans for reelection (he’s up this year).  If he doesn’t, we’ll find out whether voters in Alaska are willing to throw him out.  Let's hope they do a bit better than voters in Louisiana did.

Monday, July 28, 2008

The Bailout Is On

On Saturday, the Senate voted overwhelmingly to pass the much discussed foreclosure relief bill.  With the measure already having passed the House, it will quickly go to the president, who (in a reversal of position) indicated last week that he will sign it.  Like any major piece of legislation these days, it has lots of moving parts (including, of course, some entirely unrelated to housing), but arguably the most important provision in the bill authorizes the Federal Housing Administration to refinance up to $300 billion worth of mortgages that would otherwise enter foreclosure.

And thus, up to $300 billion worth of privately-held bad loans --loans often made by irresponsible lenders, and often made to irresponsible borrowers-- will be transferred to the federal government’s books.  Borrowers will get to keep homes they couldn’t otherwise afford, and lenders will receive higher compensation for their bad loans than they would get by foreclosing. Indeed, the only losers are taxpayers, who assume the risk of those loans defaulting. 

In sum, just the kind of bipartisan action we’ve come to expect from Congress.

Thursday, July 24, 2008

Two Points

According to the latest Gallup tracking poll, that’s the margin of Obama’s lead over McCain at the moment, at 45 to 43 percent.  The margin of error is plus or minus 2 points. Over the past month, Obama’s margin has varied by a few points (probably due just as much to the natural tendency of poll numbers to bounce around a bit as any real changes in public opinion) and McCain hasn’t lead in any poll, but Obama’s margin hasn’t exceeded six points.  Considering that McCain hasn’t really landed any good blows against Obama recently (at least in my opinion) and that press coverage of Obama’s campaign is still considerably more favorable than the coverage McCain is receiving the narrowness of Obama’s lead at this point ought to be a cause for some concern for the Obama camp and a cause for some optimism for the McCain folks.

Monday, July 21, 2008

The FCC Loses in Court, Again

Remember the infamous "wardrobe malfunction" that happened during during the halftime show of the 2004 Super Bowl?  On Monday, the D.C. Circuit Court of Appeals threw out a $550,000 indecency fine against CBS for airing the nine-sixteenths of a second bit of partial nudity.  The Court found the FCC's action arbitrary and capricious because the agency had diverged from it's longstanding previous policy -- of punishing indecency only when the material in question was intended to shock the audience-- "without supplying notice of and a reasoned explanation for its policy departure."  I'll link to the full opinion when the Court's web site has it up.

As the news story somewhat explains, the defeat is just the latest in a string of courtroom setbacks for the FCC's efforts to suppress supposedly indecent speech on the airwaves.  The agency better hope that its fortunes improve before the Supreme Court decides a potentially major indecency case next term dealing with "fleeting profanities" (ie. when one or two isolated vulgarities are used in a broadcast.) I, for one, hope they don't. 

Sunday, July 20, 2008

The Unique and Controversial American Exclusionary Rule

The New York Times had a great article up on the front page of its site on Friday examining the basically unique nature of the American exclusionary rule.  The article pointed out that no other nation in the Anglo-American legal tradition automatically excludes evidence obtained during an illegal search, and favorably quoted a scholar who argues that there is no evidence whatsoever that the framers intended that such a rule be enshrined in the Constitution (and yes, this really is an article from the The New York Times).  The author then discussed some of the policy pros-and-cons of the rule.

This strikes me as an interesting subject for a poll.  Do you, dear reader, think that (1) the exclusionary rule is required by the U.S. Constitution, (2) isn't actually required by the Constitution but should be maintained as a rule of federal constitutional law under stare decisis, (3) shouldn't be a part of federal constitutional law but should be enacted, in some form, as policy by the federal government and states,  or(4) should be junked outright?  Express your opinion in the sidebar and/or in the comments section.  Personally, I agree that there's no exclusionary rule mandated by the Constitution, at least for Fourth Amendment violations, and that, eventually, that rule should be excised by the Supreme Court from federal constitutional law.  But still, I'm extremely skeptical that other current remedies (ie. civil suits and internal police disciplinary procedures) provide just, reasonably certain, or sufficiently-deterring consequences for willful or reckless violations of the Fourth Amendment.  At this point in my thinking I suppose that I would support federal and state statutory rules that would continue to exclude evidence gained from such obvious violations, though I'd be quite interested to hear arguments from those who favor junking the exclusion option all together (I'm especially looking your way, Tom H.).   

Thursday, July 17, 2008

We're Number 47! (Sigh)

Not sure when this was released, but I just noticed that CNBC's 2008 rankings of the top states for doing business has the Great State of West Virginia ranked at 47.  Not surprisingly, WV scored well in the "Cost of Living" (21) and the "Cost of Doing Business" (15) sub-categories, but was sunk by abysmal rankings in "Workforce" (48), "Economy" (46), "Technology & Innovation" (49), and, yes, "Business Friendliness" (50).  A complete breakdown of West Virginia's scores is here.  West Virginia was ranked 44 in the 2007 analysis.

To add insult to injury, Mississippi beat us out, coming in at 46.  Thank God for Rhode Island (48), Hawaii (49), and Alaska (50), however, which scored below WV largely due to high costs of living and doing business.  At the other end of the spectrum? Texas, Virginia, Utah, Idaho, and Colorado, in that order, made up the top five.


UpdateHere's an explanation of the categories and CNBC's methodology.  The rankings were released on July 9.

Update 2:  I really shouldn't need to add this, but I will anyway: take theses rankings, as all such rankings, with the requisite grain of salt.

Wednesday, July 16, 2008

Get Live Mesh from Microsoft (for Free)

I don’t normally cover technology here (though I devote a decent chunk of my free net surfing time to the subject), but I'll make an exception today.  If you're the type of person who (1) uses more than one PC or laptop (say, one at home and one at work) and would like to easily and securely synchronize all kinds of files and folders between your computers, (2) would like an easy way that your can securely access your home PC over the net while you're away from home (while at work, for example), and/or (3) would like to backup important files to the net with little fuss you should sign up for this right now.  If you don't have a Windows Live ID, you'll need to take a couple a minutes to create one, but it's worth it.  Don't argue with me, just go.

And now back to our regularly scheduled programming...

I Credit Myself for Not Making an Obvious “Fox” Entendre

In my very successful time-wasting efforts this evening I ran across a couple of good cheesecake items for right-wingers stories about developments in financial and political news coverage.

First, Ben Stein has a nice item up on the anchor staff at the relatively new Fox Business news channel.  He makes the astute observation that the channel’s female personalities are not only smart and well-informed about the state of the economy and the markets but also not-unattractive.  Stein particularly appreciates the talents of 27 year-old ace host Jenna Lee.

Fox anchor Jenna Lee
















(Photo credit: Jason Bell for Best Life Magazine.)


In other news, Meghan McCain, political blogger and daughter of John McCain, is making the rounds with significant youth culture icons in support of her father’s candidacy.

Meghan McCain

(Photo credit:  Getty Images.)


Now back to our regularly scheduled programming…

Monday, July 14, 2008

How Sen. Charles Schumer Caused a Bank Failure

You may have already seen this, but if you haven’t, you ought to.

Perhaps someone in the Democratic leadership could persuade the Senator to take a vacation (far, far away from any contact with the  media) while the situation with Fannie Mae and Freddie Mac gets worked out.

Tony Snow, R.I.P.

So you’ve undoubtedly heard about the death of former White House Press Secretary and journalist Tony Snow over the weekend.  My favorite thing I’ve read regarding his passing is actually a commencement speech that he gave at The Catholic University of America last May, after the colon cancer that would eventually kill him had returned.  As commencement speeches go it’s decidedly non-crapulent, although it’s no surprise to learn that Snow was one of those few who could actually give a worthwhile graduation speech.  Here’s a nice sample:

Finally, love. How trite is that? But it’s everything. It separates happiness from misery. It separates the full life from the empty life. To love is to acknowledge that life is not about you. I want you to remember that: It’s not about you. It’s a hard lesson. A lot of people go through life and never learn it. It’s to submit willingly, heart and soul, to things that matter. . . . 

Love springs from small deeds, the gestures that say casually and naturally “I care.” That acknowledge what’s special about somebody else. If somebody’s smarter, quicker, better, prettier, wiser than you, tell them. Learn from them. Don’t be jealous. Glory in it.

A reminder that all of us need from time to time.

(Hat tip: Katherine Lopez at The Corner.)

Thursday, July 10, 2008

More on WV’s Lack of an Intermediate Appellate Court System

A while ago I posted an item discussing whether West Virginia should create and intermediate appellate court level.  For those interested in more analysis of that question and comparative info about West Virginia’s court system more generally allow me to recommend an excellent post here.  It’s chock full of lots of links to good news stories on the debate (and, kindly, a link to my blog post on the matter) and contains some good discussion of the impact, or lack thereof, on civil defendants of creating an appeal by right in civil suits.

Distinctly Unsurprising

Rodriguez v. West Virginia University Board of Trustees has settled for $4 million.  Rodriguez himself will pay WVU $1.5 million, with the University of Michigan picking up the other $2.5 million and Rodriguez’s legal fees.

Some Thoughts on Kennedy v. Louisiana

Though it’s been a couple of weeks now, I’d like to revisit the Court’s decision in Kennedy v. Louisiana ruling the execution of child-rapists unconstitutional.  I expressed my overall view of the majority’s ruling in the title of this post, but allow me to elaborate a bit more on why the majority’s opinion is so (potentially) important and so definitely awful.

The appellant raped his eight-year old step-daughter and was sentenced to death under a Louisiana statute, one of six in the nation allowing juries to return a verdict of death in child rape cases.  Justice Kennedy, joined by Justices Breyer, Ginsburg, Souter, and Stevens, concluded that imposing the death penalty in child rape cases where the victim doesn’t die (ie., where there’s no capital murder chargĂ© to go with the rape charge) is “grossly disproportionate” and therefore constitutes Cruel and Unusual Punishment under the Eighth Amendment.  The majority reached that conclusion by (1) determining that under current “standards of decency” a national consensus exists against executing child-rapists and (2) deciding that, in their own “independent judgment,” executing child rapists is morally unjustified and is a bad policy course. Justice Alito, joined by Chief Justice Roberts and Justices Scalia and Thomas, wrote a rhetorically restrained but substantively vigorous dissent.

In my view, there are three major doctrinal implications for the law on capital punishment to come from the Court’s opinion,.  Even more importantly, though, the Court’s reasoning on those points gives us one broadly applicable lesson that, if followed faithfully in future cases, could have a huge impact on availability of the death penalty in America.

But let’s start with the doctrinal points:

1.  The Court further confirmed that the evidentiary burden needed to show a “national consensus” against imposing the death penalty for a certain crime is quite, quite low.

As Justice Kennedy directly states in his opinion, the Court has,  since Trop v. Dulles in 1958, forsworn the notion that whether the death penalty is grossly disproportionate for a certain crime must be assessed by views of the Eighth Amendment at the time it was enacted.  Instead, the Court has chosen to look to “the evolving standards of decency that mark the progress of a maturing society” and the “independent judgment" of the Justices themselves in determining whether a punishment is grossly disproportionate.  On the evolving standards of decency point, the Court has consistently stated that it looks for a "national consensus" that a criminal act doesn't merit the death penalty before striking down at statute, particularly looking to the "objective evidence" of how legislators and juries behave.

But of course, as the Court has repeatedly shown the amount of objective evidence needed to demonstrate a national moral consensus against imposing the death penalty for a certain crime is not what one would initially think upon reading the word "consensus." To stick with two recent and prominent examples, in Atkins v. Virginia (2002) and Roper v. Simmons (2005) five Justices concluded that a national consensus existed against executing all offenders who were, respectively, under 18 or slightly mentally retarded at the time they committed otherwise capital murders. In both cases, 20 states --a majority of the states that had the death penalty at the time-- allowed the execution of such defendants. 

In light of Atkins and Roper it was already clear that the level of proof needed to establish a national "consensus" is remarkably low, but  Kennedy lower the bar even further, albeit in a somewhat different way.  As noted above, at the time of the decision only six states had laws allowing the execution of child- rapists on the books.  Why so few?  Because in Coker v. Georgia, the 1977 case holding that a death sentence is grossly disproportionate for the rape of an adult woman (no matter the aggravating factors present), a plurality opined that rape does not morally merit the punishment of death because it does not result in the taking of a life.  The conclusion in Coker that personal crimes that do not result in death cannot be punished by death was technically dicta; the facts of the case were limited to the rape of an adult woman.  But, until recently, state legislators and courts took that dicta to heart, predicting (correctly, as we now know) that the Supreme Court would use similar reasoning to strike down child-rape laws.

In Kennedy, the state of Louisiana and the dissenting Justices made the obvious argument that the relatively small number of states to allow the execution of child-rapists could not be taken as proof of a moral consensus against the practice because of the impact of the Coker dicta.  But the majority, wielding the shield of “It was only dicta!,” deflected that argument away.  Thus, the Court declared the execution of child-rapists unconstitutional based partly on the small number of states allowing such executions where non-enacting states may have been very reasonably reluctant to pass such laws because the Court had previously opined that similar laws were unconstitutional.

As the result, the already liberal standard of proof needed to show a “national consensus” has been loosened yet further.  Indeed, the now-farcical nature of the Court's consensus standard was pricelessly captured in the majority's own opinion:

The evidence of a national consensus with respect to the death penalty for child rapists ... shows divided opinion but, on balance, an opinion against it.

In contrast, in his dissent Justice Alito cut through the farce and spoke to actual current moral standards:

I have little doubt that, in the eyes of ordinary Americans, the very worst child rapists —predators who seek out and inflict serious physical and emotional injury on defenseless young children— are the epitome of moral depravity.


2.  Despite all logic, “standards of decency” can only "evolve" toward narrower use of the death penalty.

When the Court first announced that it was taking Kennedy, there was a fair bit of excitement in the ranks of observers because the case was a vehicle for addressing a unclear question regarding how the legally cognizable “standards of decency” on the death penalty could evolve.  In the 10-15 years proceeding Kennedy, states and the federal government had been expanding the number of crimes which could, according to the letter of the law at least, merit the death penalty (no one in the U.S. has actually been executed for a crime other than murder since the 1960’s).  Indeed, the adoption by six states of laws allowing the death penalty for child rape was a part of this trend of expanding the death penalty to non-murders.  Not surprisingly, many began to ask the jurisprudential question of whether societal standards of decency could evolve toward acceptance of the death penalty for a greater range of crimes.  Put another way, the question that observers really expected Kennedy to speak to was whether standards of decency can only “evolve” toward less use of the death penalty –with that doctrine thus being a “one-way ratchet” – or whether societal views can indeed evolve  toward expansion of the death penalty’s use.

Now, from a strictly analytical standpoint, the answer to that question is fairly obvious: as Justice Scalia and many others have pointed out there’s no reason whatsoever to think that societal standards of decency can only evolve upward (even assuming that restricting application of the death penalty is “upward” evolution).  But, of course, the judgment of the Court is only bounded by what conclusions can gain five votes.  Justice Kennedy answered the ratchet question, in his distinctively conclusory and broadly sweeping Justice Kennedy style, in responding to Justice Alito’s dissenting arguments on the issue:

These concerns overlook the meaning and full substance of the established proposition that the Eighth Amendment is defined by “the evolving standards of decency that mark the progress of a maturing society.” Trop, 356 U. S., at 101 (plurality opinion). Confirmed by repeated, consistent rulings of this Court, this principle requires that use of the death penalty be restrained. The rule of evolving standards
of decency with specific marks on the way to full progress and mature judgment means that resort to the penalty must be reserved for the worst of crimes and limited in its instances of application. In most cases justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense. Difficulties in administering the penalty to ensure against its arbitrary and capricious application require adherence to a rule reserving its use, at this stage of evolving standards and in cases of crimes against individuals, for crimes that take the life of the victim.

In other words, it doesn't matter whether societal standards can or do evolve toward using the death penalty more broadly; only changes in societal views toward more restricted use can be recognized because the scope of capital crimes should never be extended.

And thus the farcical "evolving standards of decency" standard turns, at the last, into pure, intellectually insulting, utterly dishonest nonsense. 


Okay, so I see that I'm over the 1500 word mark, which means that it's more than past time to break this piece into two parts in the interest of maintaining some bit of readability.  Stay tuned for (a hopefully shorter) second part where I'll discuss the Court's "independent judgment" and the broader overarching lesson from Kennedy v. Louisiana.


Corrections:  Fixed a couple of glaring grammatical errors.

Wednesday, July 9, 2008

Updates Coming

Sorry about the lack of updates over the past week: I’ve been pre-occupied with professional and personal stuff.  Rest assured that there’s lots of goodness coming quite soon.  Thanks for your indulgence.

Update:  Funny. Checked my visitor logs, and July 3 through July 9 was one of my best weeks in quite a while even though I didn't post anything.  Maybe my readership is trying to tell me something.


Thursday, July 3, 2008


One of the big stories out of West Virginia today concerns a Charleston-area attorney named Michael Markins.  Mr. Markins was suspended from the practice of law for two years for hacking into the business e-mail accounts of his wife, an attorney at mid-size (for West Virginia) firm Offutt Fisher and Nord, and many of her colleagues.  According to this story from The Charleston Gazette, this occurred from November 2003 to March 2006 and gave Mr. Markins access to confidential information about the firm and (more importantly) a number of its clients.

So what master hacker technique did Markins use to gain access to the accounts?  Exploit a zero-day flaw in OFN’s e-mail server software?  Put password-stealing malware on the laptops of firm attorneys? Use social engineering techniques to convince OFN’s IT staff to give up the passwords?

Not quite:

Markins had discovered that the password to the e-mail account of any OFN lawyer was the lawyer's last name . . . .

I suppose it’s possible that some lawyer or staffer who worked at OFN from November 2003 to March 2006 realized that using your last name as your password for an e-mail account that contains confidential info is an insanely insecure practice and mentioned that fact to someone with decision-making authority, only to be ignored.  Therefore, I’m not going to straightaway brand everyone who worked at OFN during the period with the label “shockingly incompetent dumbass” (“SID”).  Instead, I’m just going to adopt a rebuttable presumption that anyone who worked at OFN during the period was and continues to be a SID and leave it at that.

Christopher Hitchens Get Waterboarded

Article here, video here (not to spoil the suspense, but the clip’s not a long one).  His take on the tactic?

I apply the Abraham Lincoln test for moral casuistry: “If slavery is not wrong, nothing is wrong.” Well, then, if waterboarding does not constitute torture, then there is no such thing as torture.