Category Archives: Law: Everything Else

In Salon, Joe Conason offers his take on The real reason Bill Clinton pardoned Marc Rich. It's by far the most interesting thing I've read about the Holder nomination/confirmation process.

By and large Obama's appointees are smart-to-brilliant technocrats. A few of the nominations seem inspired — General Eric Shinseki to the VA, Steven Chu to Energy, Janet Napolitano to DHS. A few seem odd or high-risk — Dennis Blair as DNI, Hillary Clinton to State, Mary Schapiro to the SEC (huh?).

And then there is Eric Holder. Very smart. Very hard-working. Very experienced. Perfect for the Attorney General job in normal times. But these are not normal times: the AG in the coming administration is going to be faced with a number of unusual challenges involving cleaning up the messes of his predecessors. For example, and just off the top of my head:

• Dealing with inescapable evidence of war crimes by members of the Bush administration
• Dealing with strong evidence of perjury by members of the Bush administration
• Cleaning up the mess in the Justice Department caused by politicized hiring
• Restoring confidence in the politicized US Attorney's office — and re-examining possibly politicized prosecutions (and exonerations)
• Reviewing shoddy and in some cases evil (and secret) opinions of the OLC
• Prosecuting thieves who pillaged some of the other agencies and especially the war effort in Iraq

And lots more besides. These tasks require not just a technocrat, but someone with a strong moral compass, maybe even the capacity to feel outrage. Is that Holder? Some accounts suggest it could be. Others, focusing particularly on his involvement in the Marc Rich pardon, suggest it isn't always.

Conason's account of how the pardon came to be — a response to intense foreign pressure, a bargaining chip in the peace process — suggests that there might have been a reason why even a person of strong principles could have favored the deal. That gives me some hope. Hope is not a plan, but it's something.

Note: I give little weight one way or the other the Obama proto-administration's statements soft-peddling the chances of war crime/torture prosecutions. An administration planning on investigations with an eye to possible prosecutions would, if it were smart, say exactly what Obama has been saying now. A public posture of skepticism pays three related dividends:

1. Signaling, prior to Inauguration Day, that prosecutions are unlikely reduces the chances of preemptive lame-duck pardons.
2. Suggesting prosecutions are unwanted removes any defense of vendetta/political interference were there to be a trial.
3. Suggesting prosecutions are unwelcome allows a hypothetical future Obama to allow the prosecutions to go forward more in sorrow than in anger, 'due to the overwhelming evidence'.

I'm not saying that I think this is in fact what they are planning; if you asked me, the odds are they actually mean what they say. Which is why the extent to which Holder is a man of steely principle as well as a great lawyer and an über-technocrat is so important.

When you have an online web presence, you get asked all sorts of things.

But this was a new one, which I reprint with the permission of Mr. Dennis W. Webb of Fort Worth, TX.:

I realize you're probably very busy, so I'll get right to my problem. Tomorrow I'm to begin writing summaries of a local lawyer's court cases. (Sorry, I'm not even sure what this is called.) I've read your “Legal Writing Tips,” which seems to be straightforward advice. Can you think of anything else that may be useful in my first day on the job?

Thanks.

Got any advice for Mr. Webb?

At last! A companion case to US ex rel. Mayo v. Satan and His Staff. The Omaha World-Herald reports,

Judge Marlon Polk threw out Nebraska Sen. Ernie Chambers' lawsuit against the Almighty, saying there was no evidence that the defendant had been served. What's more, Polk found “there can never be service effectuated on the named defendant.”

Contrast this result to the famous Jewish story about the Rabbis sent to a concentration camp who decide to put G-d on trial for allowing the Holocaust to happen. Not subject to the FRCP, they hold a trial on the merits, and find the Defendant guilty of abandoning them and of allowing this great evil to happen.

And then, after the trial was over, they said evening prayer.

I don't know how well they publicized yesterday's meeting in Coral Gables (see Florida Courts Hearing on the Future in Coral Gables Tomorrow), but it wasn't all that well attended — not much more than 20 people. But the presentations were fairly interesting.

I had planned to hold my peace, as it seems to me that there are already court committees working on all the major judicial tech issues (and, from what I can tell, doing a very good job of it too), but given the shortness of the queue I figured I might as well make a plea for three small things I'd love to see the Florida Supreme Court do.

1. Mandate web-friendly citation forms and document formats for all state judicial opinions. This would include web friendly file naming, formatting, and paragraph numbering. This would cost almost nothing.

2. Provide law clerks for the trial court judges (this would require an appropriation from the Legislature) — most states have them, our appellate courts have them, but our hard-working trial court judges don't get their own law clerks. (Disclosure: this proposal would create more jobs for our graduates, but I think it's a very good idea on its own merits — judges who are in court need the back-office help.)

3. (This is a pipe dream) Remove unreasonable barriers to entry of lawyers who move here from out of state. Florida's rules are an archaic barrier to entry in a national economy and globalized world. Unlike just about every other state, there are no provisions for experienced lawyers to waive into the Florida bar. Worse, the application process for experienced lawyers requires so much paperwork that it would be struck down as a barrier to entry if the anti-trust law applied. I know the bar is against this, but I think it would serve the public interest.

The panel took notes on the first point, agreed vigorously if not particularly optimistically with the second, and were polite about the third — but I'm not holding my breath.

You can make your own comments in writing by Nov. 1, to:

Task Force on Judicial Branch Planning
Office of the State Courts Administrator
Strategic Planning
Florida Supreme Court
500 South Duval Street
Tallahassee, Florida 32399-1900

Zero tolerance gone mad.

Boing Boing, Fourth grader suspended for using broken pencil sharpener. Note that the “use” was his trying to sharpen a pencil, not threaten someone.

I am no great fan of McDonalds — I don't think I've been inside one more than twice in the last decade — but I think they deserve praise for this letter responding to the threat that has now matured as this boycott campaign.

(found via Good as You, AFA will try to tarnish Golden Arches)

Note that I support the right of people to organize boycotts against companies whose policies they don't like, indeed celebrate it as a valued form of citizen activism. And I also support the right of the rest of us to make fun of misguided boycotts.