Monthly Archives: February 2008

Not Exactly a Prior Restraint — But Close

Posted on February 18, 2008 by Michael Froomkin

Old confused post removed – see the new improved posting at Two Strange Orders in the Wikileaks Case

Posted in Law: Free Speech | Comments Off on Not Exactly a Prior Restraint — But Close

The Microcosmographia Academica Is Online

Posted on February 18, 2008 by Michael Froomkin

Thanks to Paul Horowitz's PrawfsBlawg: “O young academic politician, know thyself!”, I now have a link to an online copy of the Microcosmographia Academica.

I was introduced to this wonder by a young man in a hurry when I was student in Cambridge. He's done very well for himself, I might add.

First published in 1908, one hundred years later the Microcosmographia Academica reamains one of the truest and saddest things ever written about academic politics.

Posted in Law School | Comments Off on The Microcosmographia Academica Is Online

Clinton Competence Report

Posted on February 18, 2008 by Michael Froomkin

A major reason to support Sen. Clinton over Sen. Obama, at least in my book, has been the suggestion that she brings with her a management team tested by time, one much more ready to hit the ground running if they take office.

Competence, as the last seven years — not to mention the Carter administration! — have taught us, is no small thing.

But the Clinton competence aura has taken a big hit in the campaign. First there was the devastating Joshua Green article in the Atlantic, Inside the Clinton Shake-Up.

Now comes this corroborative account of Team Clinton haplessness when it comes to the Texas primaries, Burnt Orange Report::: Senator Clinton Campaign Worried by Texas Primary System.

It does make you wonder.

Posted in Politics: US: 2008 Elections | Comments Off on Clinton Competence Report

Is This Right?

Posted on February 16, 2008 by Michael Froomkin

I am not by any stretch of the imagination a local government lawyer, so someone who actually knows about this stuff please chime in…

Eye on Miami spotted this little piece of Democracy in action. Here's the quoted text of Miami-Dade's new ordinance:

“Ordinance relating to county boards, amending Section 2-11.88 to provide that any person who has a pending lawsuit against the county shall not be eligible to serve on a county board unless this requirement is waived by two-thirds vote of the members of the board of county commissioners, providing severability, inclusion in the code and an effective date.”

Is that Constitutional? I wouldn't mind if it weren't, but on what theory?

It appears that local Boards are usually appointed by the County Commission itself:

Sec. 2-11.38.1. Process of appointment.
(a) Vacancies occurring on any board shall be advertised in publications of general circulation. Twice a year advertisements shall appear setting forth a list of all County boards; any special qualifications necessary for membership on the board; and the County telephone number to call for additional information.

(b) Prior to its making appointments to County boards, the Board of County Commissioners shall be furnished a list setting forth the qualifications and demographic background of all new candidates for membership, along with a list of the qualifications and demographic backgrounds of the present members of the board to which an appointment is being made.

(Ord. No. 80-136, § 5, 12-16-80)

…so it's possible that under a 'greater power includes the lesser' argument, since the Commission makes the appointment anyway, it can tie its own hands in this manner.

There's presumably no US Constitutional right to equal consideration for Board membership, so I am dubious about an equal protection argument. And while there's a certain sort of First Amendment feel to the issue, I don't think lawsuits are protected speech — they're protected as part of due process. Here, arguably, no one is being denied their right to sue the County, they're just being forced to pay a political price. Is that a due process violation? Absent any research, I'm not sure.

Certainly from a standing point of view, the strongest case would be a sitting Board member who got thrown off a Board for bringing a lawsuit.

And what about the Florida Constitution? Again, I'm no expert, but I'm not sure I see an obvious hook here either…

This strikes me as a very pig-headed public policy, one designed to make life hard for local activists. But is it unconstitutional?

Posted in Miami | 2 Comments

YouTubers For Obama

Posted on February 15, 2008 by Michael Froomkin

Barow Wow Wow, Go Obama! (Politics of Hope Mix)

There's also a less jolly alternate version they call the “politics as usual mix”; I don't like it as much.

Posted in Politics: US: 2008 Elections | 4 Comments

We Write Letters

Posted on February 15, 2008 by Michael Froomkin

Just sent this:

Dear Mr. Hulse,

Thank you for your informative article “House Leaves Surveillance Law to Expire” in today's paper.

I was struck, however, by the following sentence, and I wonder if you could help me understand the state of play. You write, “The main sticking point is a provision in the Senate bill that provides legal immunity for telecommunications companies that, at the Bush administration’s request, cooperated in providing private data after the Sept. 11, 2001, attacks.”

I was under the impression that there was now substantial evidence that in fact these requests long pre-dated 9/11 (see, for example, [URL] and [URL])

You write with some authority that the issue is entirely post-9/11. Have these accounts been debunked, or is there some other reason to disbelieve them?

As I am sure you appreciate, the issue of when the requests were first made is not irrelevant to whether the administration and its enablers should get to prevent discovery as to what exactly happened.

Best regards,
Michael Froomkin
Professor of Law, University of Miami

Update: Reading Political Animal, I see something which makes me think that maybe Mr. Hulse had a good reason to write it the way he did:

The Senate version of telecom immunity in S.2248 applies only to activities taken after 9/11. There have been reports of possibly illegal NSA/telecom activities being initiated several months before 9/11, but S.2248 wouldn't apply to them. Here's the relevant text:

[A] covered civil action…shall be promptly dismissed, if the Attorney General certifies to the court that (A) the assistance alleged to have been provided by the electronic communication service provider was (i) in connection with an intelligence activity involving communications that was (I) authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007; and (II) designed to detect or prevent a terrorist attack, or activities in preparation for a terrorist attack, against the United States….

So maybe Hulse got it just right? Note, however, that the evidence we have is also consistent with this scenario: the administration started pressuring the telcos for the wiretaps long before 9/11…but they only started cooperating afterwards.

Posted in The Media | 5 Comments