Why I am Not a Libertarian

May 20, 2010

I sometimes like to say that I am a member of the libertarian wing of the Democratic Party. This is usually good for a laugh, but I mean it seriously. At best, a lawyer is a bulwark between the individual liberties of his client and the awesome power of the state. I am leery of the moralistic, authoritarian wing of the Republican Party, which seems to me to threaten the basic American right to be left alone –what Justice Brandeis called “the most comprehensive of rights and the right most valued by civilized men.” I am a civilized man, and mostly, that’s what I want — to be left alone.

But all values exist in a hierarchy, including individual liberty. Libertarians seem not to recognize this. Forty-six years later, most Americans (including, emphatically, me) believe that it was good that the federal government banned racial discrimination in public accommodations, even though this meant infringing on the right of a restaurant or hotel owner to invite whom he pleases onto his property. But many ideological Libertarians do not — a central tenet of their political philosophy is that property rights are sacred, and that the government has no business banning discriminatory behavior by individuals on private property, even if the majority finds such discrimination offensive. And one of those ideologues, Rand Paul, just won the Republican nomination for the Senate in Kentucky.

Here’s a link to a post that has his recent interview with Rachel Maddow. Pretty amazing stuff. As Ezra Klein says, “when you can’t answer the question ‘Should [the] Woolworth lunch counter have been allowed to stay segregated? Sir, just yes or no,’ it’s fair to say you’re off-message.” This magic moment comes at the end of the long, painful interview. If the Democrats can find a halfway decent candidate, this could be an interesting election.


so we all know this

May 18, 2010

Don’t use Jerry Guierinot as your lawyer if you are on trial for capital murder.


Native -Born American Citizen Arrested by Federal Agents for Failing to Carry Birth Certificate

April 26, 2010

It’s an outrage! Anti-government intrusion Tea Party types to the barricades! What, he’s a Mexican-looking guy with an accent in Arizona? Never mind, then.


Neoliberalism, Regulation, and Volcanic Ash

April 20, 2010

I hope no planes fall from the sky.  And yet I think:

The pressure to get those planes in the air is unsafe; it is motivated by business interests and the giant neoliberal push over the last 20 years means that there is no one in a position to stand up for consumer safety in a meaningful way (meaning they have the power/authority to intervene).

Here’s why I am freaked out:

1. My good friend and fellow blogger, Bob Nelson, is in Germany trying to get home.   I need him if I ever want to finish my next book. Plus I love his kids . . . but let’s not go too far down this road.

2. Every business/airline that sends test flights into the ash reports no damage but every military or government test shows some engine damage.  Read all about it here.

3. The plane manufacturers recommendation for acceptable particulate level for jets flying through is ZERO (the flight safety foundation concurs (opens as PDF) and so does the USGS (opens as PDF) and the airline industry group EIN.

4. We actually have had some planes unavoidably fly through DIFFUSE ash clouds in the not too distant past. This ash cloud is not diffuse.  Here is what happens.

So basically, the hot engines suck in ash which is made of sand and glass. It melts and then clogs the tiny cooling holes. Engines overheat, stop working, and the plane plummets to the earth. BUT if the pilot reduces throttle (the opposite recommendation from normal power loss) until the plane drops oh say 10,000 feet and then he guns the engines, the cold fresh air MIGHT break the glass and the plane could keep flying.

So why is this appropriate for a Legal Studies blog?   Well, maybe it isn’t but I had to get this off my chest.   But I think it is because here you have the CLASSIC model of business in trouble (through no fault of their own — I mean really, what is a more convincing “act of God” than a volcano?).  You have regulators with less power as the EU has consolidated it has definitely taken on a more “free market” mentality to encourage business; regulators and regulations have less bite than they used to (though more than in the US) and you have pretty much every piece of empirical data I can find which says this is a no-brainer — you don’t fly through ash clouds if you can help it.

I don’t think business people making these decisions are evil (let me be clear).  I think they are not the proper neutral party to make the safety determination because they are facing a boat load of pressure from the people that the law has set them up to be responsible to (shareholders primarily though also customers).

So I am just sayin’ – here we are in a situation where you really want some top scientists, pilots, etc etc making the safest decision for everyone but that system is not in place because we have deferred regulation to business (here and in Europe). And the regulatory authorities that do exist and have called for these cancellations can resist for about 5 days before business goes on.  And I hope it is safe, but I am skeptical.


A Musical Offering

March 10, 2010

On the train to downtown this morning, I listened on my ipod to the first two movements of Dvorak’s Piano Trio in F minor, Opus 65. Then the train pulled into the station in the middle of the third movement, and I turned the music off. It’s a beautiful piece, and I wanted to listen to the whole thing before getting down to work, and so I checked the world’s greatest jukebox, youtube, and found this — a video of the third movement posted two weeks ago by a young trio who appear to be based at the music school at SMU in Dallas. If you are looking for a political point, I would note that the cellist is Italian, and the violinist is Lithuanian. Don’t know about the pianist, Elena Zyl, but I’d guess Russian. But no point is intended, just enjoy.


The Smear

March 9, 2010

Eugene Robinson nails it. LB, please make your students read this.

‘Al-Qaeda 7′ smear campaign is an assault on American values

By Eugene Robinson
Tuesday, March 9, 2010
The word “McCarthyism” is overused, but in this case it’s mild. Liz Cheney, the former vice president’s ambitious daughter, has in her hand a list of Justice Department lawyers whose “values” she has the gall to question. She ought to spend the time examining her own principles, if she can find them.
A group that Liz Cheney co-chairs, called Keep America Safe, has spent the past two weeks scurrilously attacking the Justice Department officials because they “represented or advocated for terrorist detainees” before joining the administration. In other words, they did what lawyers are supposed to do in this country: ensure that even the most unpopular defendants have adequate legal representation and that the government obeys the law.
Liz Cheney is not ignorant, and neither are the other co-chairs of her group, advocate Debra Burlingame and pundit William Kristol, who writes a monthly column for The Post. Presumably they know that “the American tradition of zealous representation of unpopular clients is at least as old as John Adams’ representation of the British soldiers charged in the Boston Massacre” — in other words, older than the nation itself.
That quote is from a letter by a group of conservative lawyers — including several former high-ranking officials of the Bush-Cheney administration, legal scholars who have supported draconian detention and interrogation policies, and even Kenneth W. Starr — that blasts the “shameful series of attacks” in which Liz Cheney has been the principal mouthpiece. Among the signers are Larry Thompson, who was deputy attorney general under John Ashcroft; Peter Keisler, who was acting attorney general for a time during George W. Bush’s second term; and Bradford Berenson, who was an associate White House counsel during Bush’s first term.
“To suggest that the Justice Department should not employ talented lawyers who have advocated on behalf of detainees maligns the patriotism of people who have taken honorable positions on contested questions,” the letter states.
But maligning is apparently the whole point of the exercise. The smear campaign by Cheney, et al., has nothing to do with keeping America safe. It can only be an attempt to inflict political damage on the Obama administration by portraying the Justice Department as somehow “soft” on terrorism. Even by Washington’s low standards, this is unbelievably dishonest and dishonorable.
“Whose values do they share?” a video on the group’s Web site ominously asks. The answer is obvious: the values enshrined in the U.S. Constitution.
The most prominent of the nine Justice officials, Principal Deputy Solicitor General Neal Katyal, represented Osama bin Laden’s driver, Salim Hamdan, in a case that went to the Supreme Court. In a 5-to-3 decision, the court sided with Hamdan and ruled that the Bush administration’s military tribunals were unconstitutional. Are Liz Cheney and her pals angry that Katyal was right? Or do they also question the “values” and patriotism of the five justices who voted with the majority?
The letter from the conservative lawyers points out that “in terrorism detentions and trials alike, defense lawyers are playing, and will continue to play, a key role.” It notes that whether terrorism suspects are tried in civilian or military courts, they will have access to counsel — and that Guantanamo inmates, even if they do not face formal charges, have a right to habeas corpus review of their detention. It is the federal courts — not defense lawyers — that have made all of this crystal clear. If Cheney and her group object, they should prepare a blanket denunciation of the federal judiciary. Or maybe what they really don’t like is that pesky old Constitution, with all its checks, balances and guarantees of due process. How inconvenient to live in a country that respects the rule of law.
But there I go again, taking the whole thing seriously. This is really part of a death-by-a-thousand-cuts strategy to wound President Obama politically. The charge of softness on terrorism — or terrorist suspects — is absurd; Obama has brought far more resources and focus to the war against al-Qaeda in Afghanistan than the Bush-Cheney administration cared to summon. Since Obama’s opponents can’t attack him on substance, they resort to atmospherics. They distort. They insinuate. They sully. They blow smoke.
This time, obviously, they went too far. But the next Big Lie is probably already in the works. Scorched-earth groups like Keep America Safe may just be pretending not to understand our most firmly established and cherished legal principles, but there is one thing they genuinely don’t grasp: the concept of shame.


I’LL HAVE WHAT HE’S HAVING!

November 26, 2009

Will a NY judge’s decision hold up in appeals?  Is it legal for him to erase this man’s mortgage debt?


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