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Dark Justice -- Fifteen

Bitten by a Shark

It is supposed to be simple, at least in theory. Two strangers are pulled suddenly and somehow into one another’s field of gravity. Their orbits intersect and a relationship or sorts is formed. Now the parties are no longer strangers. Each now in the eyes of the other the bearer of reciprocal rights and responsibilities. The alchemy which transforms strangers is the law, and the law is expressed in rules. Want to see magic? Watch the rule of law at work.

The law often made Jonathan Reardon’s head hurt. It wasn’t so simple. There was harmony in the law, to be sure. But there was so much hurt, and searing pain.

The pain started for Reardon in law school. There were long nights, nights he sat squirreled away in dark corridors of books called stacks. He’d sit reading cases, trying to discern the permanent in the never-ending sea of facts thrown his way. The library would close, and he’d trudge home through the dark streets of Hartford. The trees now mere shapes bearing principles somewhere beneath the bark. Would he ever see the real form animating them? And then at home, reading, reading, reading, and the taking of reams of notes. Sometimes fatigue would yield subtle deception: Is the print on this page really blue, or green or tinged with red? The page now held to a lamp, and the appearances undecipherable.

Something like despair cracks the skull of every law student. So many rules, and an infinity of cases swirling, churning and always beckoning. When has enough been read to really discern the law’s contours? At what point can a confident conclusion be reached?

And then the bar examination. Reardon took a course to prepare for the two-day ordeal. He had graduated from law school, but was still not deemed fit to sit with a client and throw darts at law’s board. To earn that right one must pass another test, the bar exam, a line that separated spectators from participants in law’s dance.

The bar review course taught him a sobering truth. The rules can be stated clearly and distinctly. It took a month or so of cramming these sugar plums down his mind’s gullet to prepare for the test. So long as he did not vomit them out before the bar exam, passing was possible. So why law school, then? Or was it the bar exam that was unnecessary? Another sinkhole; always questions without answers.

Reardon passed the bar exam the first time he took it. Soon, he began to meet clients, and suddenly his world was simple. There was no longer a distinction between that which appeared and an underlying reality. There were no deeper truths or underlying structures yielding patterns or intuitions of the divine. If God was silent, so too were the demons who made him seek a harbor in life’s storm. The world was now rendered in primary colors. He was a painter, a pointillist. Law’s rules were his colors, and his clients came to be painted in the hues of their hopes and dreams. He gauged success not in terms of justice achieved, but rather in his clients’ sense that the law had responded to their visions of themselves.

It was simple. At least it was simple for a decade or so.

"Merlin Shank on line three," Amelia buzzed him. Reardon was typing a brief and the call startled him.

"As in The Shark," Reardon responded. He was surprised. Merlin wasn’t actually a legend. He was a little young for that. But he was notorious. Appearing in court against him was a little like going to a fun house. Sure, each room had walls, a floor and a ceiling. But Merlin’s house was no home to most litigators. He was a wild man, through and through, as inclined to give a closing argument while standing on his table as he was to whisper imprecations into the ears of his adversaries while the jury was present in the room.

"Jon Reardon," Reardon thought it sounded businesslike and self-sufficient to answer in this manner.

"Hey, Jon. It’s Merlin Shank," at once self-important and ingratiating. "I need to see you. Can I come by," a slight crack now in the facade. "It’s, well, it’s a matter of some urgency."

"Sure, Merlin. Let me check my calendar," Reardon said reaching for a diary.

"Well, Jon, I’m just around the corner. I can be there in five minutes," Shank said. No request. A simple announcement.

"Sure, sure," Reardon said, suddenly intrigued and put out at the same time. "C’mon by."

The Law Offices of Jonathon Reardon and Associates was easy to find. It was located on the corner Main and Vine, Katy-corner to the Superior Court. Years before, it had been a clothing store. But Reardon bought it for a song, renovated it and put his name in big letters across a new frosted pane glass window. There was enough space for his secretary, a paralegal and a couple of young lawyers. Reardon’s office was in the very back. He had his own door so that he could come and go without having to engage in small talk with his employees.

"Thanks for seeing me, Jon," as always, Shank was impeccably dressed. A Brooks Brothers’ suit, fancy-looking wing-tipped shoes and a regimental tie. He looked like a barrel of expensive wine.

"I need to engage your services," Shank spoke so quickly, Reardon never had a chance to be gracious about this unexpected imposition.

"Well, what’s the issue, Merlin?" Reardon asked. He made it a point never to take a case until he knew what his client wanted. It was safer that way. Some clients did not want their lawyers to succeed; all they wanted was a whipping boy, someone to scream at who was required to listen. Reardon had learned through hard experience to reject the cases of such clients.

"I want you to hold this in trust," Shank said, sliding an envelope across the table.

"Hold it unless and until something," he paused now, looking somewhere within himself for a word to bridge the gap between bravado and terror, "unless and until something happens to me."

Reardon left the envelope laying on his desk.

"Are you in some sort of trouble, Merlin?" Reardon sensed something like panic.

"Jon, I trust you. I need you to do this for me," Shank said, and he reached into a coat pocket for a wad of bills. "Here’s a retainer. Nine thousand in cash, Jon. No need for a contract in this case." Merlin wasn’t leaving a paper trail. No need to report a cash transaction to the federal government, so long as the sum did not exceed $10,000. And the lack of a written contract meant less bait for other sharks trolling in Merlin’s wake.

"I’m flattered, Merlin, I really am," said Reardon, all the while thinking that $9,000 about covered a month’s expenses. "Can you tell me more?" Was Shank trying to entrap him? Caution, caution always when a fellow lawyer offers cash.

Merlin paused. He shook his head no and began to speak.

"This is privileged, right?" Shank asked.

"It is if you tell me you are engaging me as your lawyer, and not as a mere acquaintance," Reardon caught himself. Never call a client a friend, he reminded himself.

"Have you been reading the papers?" Shank asked, eyes darting in search of ghosts.

"Well, yeah, but ..."

"Lester Fuchs is missing. He was murdered. It is that simple. This envelope would permit the police to close the case," Shank said. "However, you cannot disclose it to anyone unless something happens to me, do you understand?" Shank urgent now.

"Yes, but ..." Fuchs, the son of Associate Justice Harmon Fitzgerald, had been missing now for months. The press reported his disappearance; gossip had concluded that the boy had been murdered.

"There are no buts about it, Jon. I did not commit a crime, nor am I involved in any fraud. There is nothing in the envelope that taints me, or will taint you. Understood?" Shank said. Urgent now. "You have my word."

Reardon was approaching comfort until all was staked on Shank’s word.

"Well, this is most unusual," he said. "Let me think on it." A warning bell was sounding somewhere over the horizon.

"Of course," Shank said, "this retainer," pushing the bills closer to Reardon, "will be replenished with a like sum periodically. I need you to hold this in trust for no more than three, maybe four years."

In the moment Reardon hesitated, Shank was on his feet and out the door. The cash was left on Reardon’s desk. A new client; a new relationship between rules now to be strained and sifted through the law’s rules.

Doe v. Miller: The Legal Theories

[Ed's note: This is the second installment on Doe v. Miller.  The first installment is located here.]

The plaintiffs in Doe v. Miller attacked Iowa City's law on several bases.  They argued that the law violated their procedural due process and substantive due process rights; that it violated their rights to travel interstate and intrastate; that it violated their privileges against self-incrimination and that it violated the Ex Post Facto Clause.

Procedural due process.
According Judge Colloton:

[T]he Does contend that they are deprived of notice required by the Constitution because some cities in Iowa are unable to provide sex offenders with information about the location of all schools and registered child care facilities, and because it is difficult to measure the restricted areas, which are measured “as the crow flies” from a school or child care facility.

Slip op. at 9.  The vagueness challeng rightfully failed because, unlike in a free speech case where a can be facially challenged, Broadrick v. Oklahoma, the plaintiffs could not prove that the law could never be constitutionally applied.  See Sabri v. United States ("Facial challenges [against criminal laws] are especially to be discouraged.")  Instead, the plaintiffs are limited to bringing as-applied challenges to the law. One practical problem to this holding is that the plaintiffs must not wait until being prosecuted before bringing an as-applied challenge to the law.

In theory, a plaintiff could bring a declaratory action after demonstrating that he could not determine how far his potential home was from a school.  But a judge would likely say: "If you can figure out - or obtain the help to - file this lawsuit, then obviously you can go to city hall to obtain surveyors' notes.  No injury, and thus no standing.  It's also not ripe: have your lawyer here take you to city hall where the surveyors' notes are located.  Case dismissed."  Forcing someone to do some leg work to comply with a law does not violate the notice requirement of due process. 

The plaintiffs also argued that their due process rights were violated because they were not given an individualized hearing before being excluded a school zone. But no case have ever held that due process requires that.  Indeed, a similar challenge failed in Connecticut Department of Public Safety v. Doe (holding that "due process does not require the opportunity to prove a fact that is not material to the State’s statutory scheme.")

Substantive due process.
The plaintiffs next argued that the law violated their right to familiar association.  Since the law prevented some sex offenders from living with family, they argued it violated their due process right to familial relationships.  The panel rejected this claim.  The panel seemed to say: "Very well.  Move."

While there was evidence that one adult sex offender in Iowa would not reside with his parents as a result of the residency restriction, that another sex offender and his wife moved 45 miles away from their preferred location due to the statute, and that a third sex offender could not reside with his adult child in a restricted zone, the statute does not directly regulate the family relationship or prevent any family member from residing with a sex offender in a residence that is consistent with the statute.

Slip op. at 12-13.  I'm not sure who's right.  On the one hand, the law does interfere with the right to live with one's family.  On the other hand, the plaintiffs can still live with relatives: they just can't live with them within 2,000 feet of a school zone.  Unlike free speech cases where laws that unintentionally but indirectly burden expressive association, Brandenburg v. Ohio, there isn't any caselaw (that I know of) holding that heightened scrutiny applies to indirect burdens on familiar relationships.  If you can correct, then feel free to do so.

Interstate and intrastate travel.
The next argument involved the right to travel interstate.  The plaintiffs argued that a person from, say, Minnesota, who wanted to travel across the border to move into Iowa would be precluded from doing so.  But as the Court noted in Saenz v. Roe, there are three components to the right to travel:

(1) “the right of a citizen of one state to enter and leave another state”;
(2) “the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second state”; and
(3) “for those travelers who elect to become permanent residents, the right to be treated like other citizens of that state.”

But the law does not prevent someone from "enter[ing]" or "leav[ing]" Iowa or from being treated as a "welcome visitor."  Visitation is fine: just don't stay in Iowa City.  And since in-state and out-of-state sex offenders were treated equally, the challenge failed.

What about the dormant Commerce Clause?
One argument not raised, but worthy of dicussion is the dormant Commerce Clause issue.  Namely, not allowing workers to move into Iowa City places an undue burden on interstate commerce.  As we know from positive Commerce Clause cases, almost anything is interstate commerce. 

Under dormant Commerce Clause jurisprudence, facially neutral regulations that unduly burden interstate commerce must meet heightened scrutiny.  Even post-Morrison, I think that the right of employees to travel interstate to work would be interstate commerce.  Morrison referred only to their productivity - not their right to travel qua travel.  Of course, the reviewing court weighing the burden on interstate commerce could well conclude that the local benefits outweigh the burden.  But it's still an issue worth exploring.  (New plaintiffs would be needed, though, as the current plaintiffs were in-state residents and thus wouldn't have standing.)

The panel also rejected the argument that the law violates the plaintiffs' right to travel intrastate.  This created a circuit split. Slip op. at 15-16 (collecting cases).  This could be the case for the Court to consider whether there is a right to travel intrastate.  In analyzing this question, it seems that the panel takes a wrong turn.

Judge Colloton wrote: "We find it unnecessary in this case to decide whether there is a fundamental right to intrastate travel under the Constitution, because assuming such a right is recognized, it would not require strict scrutiny []."  Slip op. at 16 (emphasis added). While it's true that it might not require strict scrutiny, the challenge would still be analyzed under some form of heightened scrutiny.  The judge also wrote that

the Iowa statute would not implicate a right to intrastate travel for the same reasons that it does not implicate the right to interstate travel. The Iowa residency restriction does not prevent a sex offender from entering or leaving any part of the State, including areas within 2000 feet of a school or child care facility, and it does not erect any actual barrier to intrastate movement.

Id. at 16-17.  This seems to misapply Saenz.  In Saenz, the plaintiffs were not denied the right to travel into California. Rather, they were denied the right to obtain the same welfare benefits that in-state residents enjoyed.  Under Saenz's third category, the right to be treated equally would seem to apply.  Here, plaintiffs who want to move to Iowa City are not being treated equally. Perhaps there are good reasons for disparate treatment.  But the panel glosses over the issue, instead pretending that there isn't any issue of equal treatment.

The panel split 2-1 on the Ex Post Facto Clause issue; and the self-incrimination issue is also interesting.  I've written enough, though, and look forward to seeing Professor Berman forthcoming post.

All in all, Doe v. Miller is a very interesting case.  You can find the full opinion by clicking here.

Doe v. Miller: No Place to Live

Today a unanimous three-judge panel of the Eighth Circuit Court of Appeals upheld a law that would require people convicted of certain sex offenders to live, if at all, as complete outcasts.  Doe v. Miller, No. 04-1568 (8th Cir. Apr. 29, 2005).  Perhaps people convicted of crimes against minors should be treated as lepers.  Sermon Illustrations, Leprosy ("Almost every age has had its social outcasts, people barred from normal society whether through physical illness or national origin. One person who stepped across these barriers in India was pioneer missionary Mary Reed. Already working in India, Mary visited a leper colony and was deeply moved by the people’s plight.")

How we should treat those convicted of harming the most vulnerable is an interesting question - morally and legally.  But before I go into the law involved in Doe v. Miller, I want to illustrate that Iowa's law would indeed create a new form of leper colonies.

Iowa City, IA adopted an ordinance that prohibited persons convicted of certain crimes against minors from living within 2,000 feet of a school zone.

The problems for sex offenders are three-fold.  First, the law prevents them from living with relatives.  Many convicted criminals - and especially those convicted of sex offenses - are unable to find jobs; as a result, their only viable option is the generosity of friends and family. 

Second, Iowa City's law would mean that some people would have difficulty establishing housing anywhere.  According to the panel, "the district court found that the restricted areas in many cities encompass the majority of the available housing in the city, thus leaving only limited areas within city limits available for sex offenders to establish a residence." Slip op. at 4.  Indeed, "[i]n smaller towns, a single school or child care facility can cause all of the incorporated areas of the town to be off limits to sex offenders."  Id.

Third, when you factor in that a sex offender's registration becomes imperfect unless he immediately updates it upon every change of residence, it's also likely that some sex offenders will be convicted for forgetting to register after every short-term move.  There was a recent case where a person who had not reoffended in almost a decade was convicted of failing to (re)register as a sex offender after he had moved.  Because he did not update his registration within the required two weeks, this man - who by all acounts was rehabilitated - returned to prison.  Imagine the difficulties people who jump from friend's house to friend's house will face, as they now must ensure that they are not within 2,000 feet of a school zone and that they promptly update their registration.

Maybe you think that the law, constitutional issues aside, is just.  Perhaps the need to protect children outweighs and problems Iowa City's law might cause.  Please leave your remarks (anonymously, if you feel uncomfortable discussing this volatile topic using your name) in the comments section.

[Ed's note: In the next installment I'll discuss the legal issues raised in Doe.  My spouse is telecommuting today, and thus will get first dibs on the only computer with a working wireless card, so it might be awhile before I update the post.  Or not.  So stay tuned!]

No Right to Live Near Schools, Or Even in a City

Miami Beach wants to enact a law that would prevent designated sexual predators from living within 2,000 feet of a school.  Because of the town's layout, this would preclude them from living in the town.  Today a unanimous three-judge panel of the Eighth Circuit upheld Iowa City's similar prohibition against numerous constitutional challenges, Doe v. Miller, No. 04-1568 (8th Cir. Apr. 29, 2005), though the panel split on the Ex Post Facto Clause challenge.  Slip op. at 31-36.

In 2002, in an effort to protect children in Iowa from the risk that convicted sex offenders may reoffend in locations close to their residences, the Iowa General Assembly passed, and the Governor of Iowa signed, a bill that prohibits a person convicted of certain sex offenses involving minors from residing within 2000 feet of a school or a registered child care facility. The district court declared the statute unconstitutional on several grounds and enjoined the Attorney General of Iowa and the ninety-nine county attorneys in Iowa from enforcing the prohibition.

Because we conclude that the Constitution of the United States does not prevent the State of Iowa from regulating the residency of sex offenders in this manner in order to protect the health and safety of the citizens of Iowa, we reverse the judgment of the district court. We hold unanimously that the residency restriction is not unconstitutional on its face. A majority of the panel further concludes that the statute does not amount to unconstitutional ex post facto punishment of persons who committed offenses prior to July 1, 2002, because the appellees have not established by the “clearest proof,” as required by Supreme Court precedent, that the punitive effect of the statute overrides the General Assembly’s legitimate intent to enact a nonpunitive, civil regulatory measure that protects health and safety.

An Act of Conscience?

The death penalty debate is one of the great moral issues of our time. It is also one of the easiest. You are either in favor of capital punishment or against it. Not a whole lot of wiggle room.

Great moral issues also create the opportunity for heroism and great moral statements. Some times it takes an act of courage by a person in a position of power to change perspectives.

Chief United States District Court Judge Robert N. Chatigny has been given an opportunity to make such a statement arising from efforts to execute Michael Ross in Connecticut. If Chatigny has the courage of his convictions, and truly believes that an injustice is occurring in the handling of the Ross case, he will resign in protest to register his dissent. It would not be an act of civil disobedience, but it would be prompted by the same sense that the law is so wrong it cannot be followed.

Chatigny created controversy in Connecticut by threatening to have Ross's lawyer disbarred if the lawyer did not stop an impending execution. Ross had directed the lawyer to waive any further habeas petitions. Ross was prepared to die. In several weeks of furious activity, the United States Court of Appeals for the Second Circuit and the United States Supreme Court ruled that Ross's waiver was knowing, intelligent and voluntary. Hours before the execution, when all legal avenues were blocked, Chatigny took matters into his own hands and issued his threat.

Chatigny has been grieved to the Second Circuit for his extra-legal antics by seven state prosecutors. Bad Boy, Bobby  Of course, the complaint is secret -- judges don't air the dirty laundry beneath their robes. And, of course, the defense bar sings the judge's praise: Give us what we want and you are a hero, they have all but declared.  All I Want for Christmas is a Judge Like Bob

New compentency hearings were held in the wake of Chatigny's tantrum. Ross has been found competent, and is set for execution on May 11.

Chatigny intervened because he said he could not live with the outcome. He thought a miscarriage of justice was about to occur. What's he going to do now?

Here's a draft of a brief statement a man of conviction might make:

"I was honored to accept lifetime appointment as a federal judge, and vowed to do justice and to see that the laws were faithfully applied.

"Consistent with that duty I did what justice required to stop the execution of Michael Ross. That execution is now set to go forward, and, although I am sworn to uphold the law, I am persuaded to a moral certainty that an injustice will occur if Michael Ross is killed.

"I am therefore resigning effective immediately from my position as a federal judge so that my energies may be devoted to correcting this injustice, and so that I may devote myself and my energies to avoiding the repitition of any further miscarriage of justice.

"I reach this decision with a heavy heart, but with a clean conscience. I cannot sit by and watch my colleagues and my country kill with equanimity. If I cannot stop injustice as a judge, I will endeavor to do so an advocate."

Let's see if he does it.

Just Say "No" to "Entertrials"

Read my lips: N-O.

There is no good reason to televise trials. I don't care how much money Court TV pumps into David Boies and his band of white-shoe lawyers.

Boies argued yesterday in favor of striking down a New York State law banning televising of trials. His claim? The statute is overbroad. It tramples on the First Amendment. He appeared, untelevised, in the United States Court of Appeals for the Second Circuit. His client? Court TV.

Exhibit One in my case against televising court proceedings is none other than Court TV itself. Pick any day's programing; study the offerings. The network has sculpted something new from the ordinary tales of suffering presented in a courtroom: The entertrial. Never heard the word? It is the merger of entertainment and trial.

Consider, for example, the Scott Peterson case. Hundreds of reporters descended on the courthouse. The queen of Court TV, Catherine Crier, former judge and prosecutor, now full-time hostess of her own show, has even written a book on the case. What, other than gossip-mongering and hype did all this coverage produce?

This all-too-ordinary tale of a cheating husband who couldn't face the impending demands of parenthood suddenly became the breathless wonder of people who actually think in sound bytes. Court TV and the legions of reporters descending on a case du jour trivialize almost all they touch.

It is really not their fault. A camera captures action, not thought. Pick the most dramatic moment of the day and televise it. As any experienced trial lawyer knows, the real drama at trial is intellectual and unseen: It comes in the form of marshaling evidence, citing precedent, blending fact and law. These are things a camera cannot see and translate.

The jury system is under assault by many who believe jurors are not up to the task of doing justice. We certainly do not need television cameras offering yet another distraction. (Question: How different would the OJ case have been if Judge Ito had not succumbed to the need to preen?)

The First Amendment imposes reasonable time, place and manner restrictions on speech of all sort. A reporter sitting with a notebook can take down everything he or she sees and hears. It can be done quietly, and out of the way.

Stick a television camera in the room and everything changes. I recall a trial in Connecticut not long ago -- the Michael Skakel case. Cameras were not present in the courtroom. But reporters mobbed the building. Skakel's lawyer, a darling of the New York media who boasts of dining at Elaine's and does such things as attend Academy Awards galas, couldn't stop grinning at the cameras at every break. Perhaps that explains why his client is now behind bars and Robert Kennedy, Skakel's cousin, accuses him of blowing a "no-lose" case.

Cameras distract. Entertrials trivialize.

Sadly, the trend is to permit cameras in the courtroom. Forty-three states now do so. Only two did in 1965. Is this why people are down on the jury system? All they see is the pathology a camera captures. And they see that because on television the image is the thing.

We don't televise what goes on in operating rooms. We worry about contamination and distracting surgeons as they go about saving lives. The same concerns should animate opposition to cameras in the courtroom. I'll save my preening for the circus on the courthouse steps, and seek justice in the calm of a courtroom.

Supreme Court Newsletter

I want to plug a newsletter I've been reading for a while.  Mark Stancil offers the best summaries of Supreme Court opinions.  They're also (usually - sometimes he tries too hard) funny.  Here's an excerpt from his most recent newsletter:

Greetings, sportsfans.  Today was International Smugglers' Day at the Supreme Court, with a pair of opinions bringing bad news for bootleggers and good news for a would-be arms dealer.

Pasquantino v. United States (03-725) - Give the petitioners here credit for creativity.  First, they dreamed up a scheme to buy liquor on the cheap in the U.S. and smuggle it into Canada without paying the latter's oppressive excise taxes (think "Strange Brew" meets "Smokey and the Bandit").  Second, when indicted by the U.S. for wire fraud, they argued that the little-known "common-law revenue rule" bars application of  U.S. criminal statutes to "enforc[e] the tax laws of foreign sovereigns."  A panel of the Fourth Circuit agreed, but the en banc court reversed and upheld petitioners' convictions.  The Supreme Court affirmed.  Justice Thomas-joined by the Chief, Stevens, O'Connor, and Kennedy-took his maple-syrup-sweet time with this one.  He first determined that petitioners' scheme "falls within the literal terms of the wire fraud statute," 18 U.S.C. § 1343, because petitioners used interstate wires (they called in their orders to discount liquor stores in Maryland) in furtherance of a "scheme or artifice to defraud" a victim of "property."  Petitioners' assertions to the contrary notwithstanding, "Canada's right to uncollected excise taxes on the liquor petitioners imported into Canada is 'property' in its hands."  Unlike Cleveland v. United States, 531 U.S. 12 (2000), where the court held that an unissued video poker license was only a regulatory interest and not "property," here Canada has "a straightforward 'economic' interest" in the revenue."  "How else do you expect Canada to pay for all those Commie social programs like universal health care and Kids in the Hall," Thomas added.  He next rejected petitioner's argument that the common-law revenue rule excepted "frauds directed at evading foreign taxes" from the wire fraud statute.  It was not at all clear that the rule would have prohibited this prosecution when Congress enacted § 1343 in 1952, Thomas concluded, and he refused to draw the opposite inference from the-gasp!-foreign cases upon which petitioners relied.  In any event, none of those cases "barred an action that had as its primary object the deterrence and punishment of fraudulent conduct-a substantial domestic regulatory interest entirely independent of foreign tax enforcement."  To the extent U.S. law might require petitioners to pay restitution to Canada, which would come closer to offending the common-law rule, they can just get a pass.  Thomas then rejected petitioners' analogy to "early English common-law cases" enforcing contracts with the illegal purpose of evading foreign revenue laws.  Whereas those cases were designed to promote commerce in the face of "high tariffs," by the 20th Century the focus of the rule had shifted to avoiding the appearance of enforcing another sovereign's penal laws.  Thomas closed by disputing Justice Ginsburg's suggestion in dissent that the Court's holding gives the wire fraud statute extraterritorial effect.  "[The] domestic element of petitioners' conduct is what the Government is punishing in this prosecution," Thomas explained, "no less than when it prosecutes a scheme to defraud a foreign individual or corporation, or a foreign government acting as a market participant."

All you need do to subscribe is send Mr. Stancil an e-mail.  Mark [dot] Stancil [at sign] bakerbotts [dot] com

Amicus Briefs as Fundraising Literature

Judge Posner has argued that reading amicus briefs are largely a waste of time.  Most of them, he notes, are calculated not at the court but at members of the authors' respective organizations.  Look at what we've done: now, send us money!  Today I saw this in action.

We've just helped win a HUGE victory for access to justice and consumers' rights in the U.S. Supreme Court!
The Court overturned the federal appeals court decision finding preemption and held that pesticide damage claims are preempted only in very narrow circumstances (which are not applicable in this case). [X-organization] had filed an amic[us] brief urging the Court to rule as it did.
Congratulations and thanks to you, too, for making our Access to Justice Campaign possible. Your generous support helped win a big victory today! To further our battle for the right to a day in court, click here [and give us money].

Yeah, I'm really sure that David Frederick (formerly Assistant to the Solicitor General) needed your help.  I'll be sure to send a lot of money quickly, because without you, the 7-2 result would have been different.

UPDATE: Justices O'Connor and Ginsburg agree with me.*  Most amicus briefs are crap, according to O'Connor and Ginsburg.

At a panel discussion sponsored by the National Association of Women Lawyers, Ginsburg said she has her law clerks arrange the briefs into three piles: must-read briefs; those she could skim or read selected pages from; and then, the "skip" pile that she does not need to read at all. The first pile, she said pointedly, is "very thin." The largest pile, she said sheepishly, is the "skip" pile.

* That's another peeve of mine.  How can you say that someone whom you've never met (or argued a certain point to) agrees with you?  You can't, so knock it off, 'cause it's dopey.

Could Blogs Help Stop Crime?

After unsuccessful attempts to track down a smut peddler, a police detective

decided to try something different. A computer expert digitally erased the girl from the photos, and in February, Gillespie asked the public to help identify the locations: a hotel room, a fountain, an elevator and a video arcade.

Moments after the pictures appeared on a Toronto television station, the tips began to come, and caller after caller identified a Disney World hotel in Florida. A scan of hotel records gave the police a few clues. They believe some of the pictures were taken by a relative on a family vacation and the rest were taken at a residence.

Tracking down child p*rnographers is difficult due to masking software.  But many images include landmarks and other reference points that mean nothing to most of us, but that could be identified by locals.  With this in mind, why don't state and federal police officers start a CrimeBlog? 

Police could post images of landmarks, which blog readers could help identify.  It would be easy to do; and it would be very successful.

Of course, the bad guys would eventually catch on and find other ways to elude capture.  But many arrests and convictions could flow from perverts caught in the delta.

Other than bureaucratic nonsense, what good reason would there be to not implement this project?