Affirmative Action and Incompetent Doctors

Affirmative action kills. I just came across the New York Times obituary for Patrick Chavis, one of the five medical students whose race gave them admission over Bakke in the famous case.

In 1996, Senator Edward M. Kennedy called him a "perfect example" of how affirmative action worked. "... The University of California at Davis has no records of what the four blacks admitted with Dr. Chavis are doing, a spokeswoman, Julia Ann Easley, said. By 1996, Dr. Chavis was using liposuction to help women lose weight after giving birth. He was accused of mistreating eight liposuction patients, one of whom died. In 1998, the Medical Board of California revoked his license for "gross negligence, incompetence and repeated negligent acts."

His professional difficulties began in 1993, at Long Beach Memorial Hospital, when he was accused of mishandling a delivery, and the hospital began monitoring him.

He sued, charging racism. In a jury trial, he won $1.1 million in damages, but a judge overturned the verdict. By 1997, he said he had delivered 10,000 children and performed thousands of abortions. About that time, he added liposuction to his practice. His personal and professional life then took a further downturn. In 1997, The Associated Press found in court records that he had been sued 21 times for malpractice and had settled some suits with no admission of guilt.

He declared bankruptcy and went through the second of two divorces. In 1997, his license was suspended, for not paying child support, but he continued to practice. The medical board used that as one of more than 90 counts in revoking his license the next year...

The Huckabee Pardons and Methodism

Joe Carter has an excellent article on the Huckabee pardons at First Things. He reviewed them as a researcher for the Huckabee campaign. His article is sympathetic, but it casts serious doubt on Huckabee's judgement.

After reviewing hundreds of cases and interviewing numerous people involved in the process, I concluded to my own satisfaction that the governor’s actions and judgment were generally defensible. Yet there remained about a half-dozen situations in which even after reviewing all of the information I was unpersuaded that justice had been served. Although I was sympathetic with some of the justifications offered for making the decisions, I found them inadequate for a number of reasons....

For instance, the politically prudent tactic would have been to simply refuse to grant any leniency—ever. Other governors with their sights set on higher offices had learned that doing nothing—even to correct obvious instances of injustice—was unlikely to cause any long-term political damage. Keeping an innocent man in prison is less harmful to an ambitious politician than freeing someone who may commit other crimes.

Huckabee would certainly discover this political reality the hard way. Initially, I chalked it up solely to extraordinary political courage. Later, I tempered this view when I realized that this courage was mixed with a large dose of cluelessness. The governor seemed genuinely surprised that he was held responsible for the criminal acts committed by those whose sentences he had commuted as governor. It was as if he believed that simply having noble intentions and a willingness to make tough decisions would provide political cover. The notion that he should be accountable for future crimes committed by these men seemed as foreign to him as the idea that he should refuse all leniency. ...

Judging from the records, the governor also seemed to put a lot of weight on conversion stories—a common trait among evangelicals, who believe the gospel is sufficient for restoration and redemption of character.

Carter quotes someone else as saying

What Huckabee misjudged is his ability to judge the character of a convicted murderer and rapists, a lapse out of a character for a pastor who believes in the sinful nature of an — or a lapse in character for a pastor who believes in redemption.

Here's my comment

Very astute. We evangelicals are suckers for redemption stories. It is good that we believe in miracles. The problem is that the dominant belief in America is no longer the Puritan Total Depravity but the Methodist Moral Perfectibility, even though (or perhaps *because*) the pastors don’t teach theology to their flocks. Thus, we have the idea that church people don’t sin— at least not most church people— reinforced by nobody wanting to admit that they sin. Just one step further, and we have the idea that somebody who has converted will stop sinning.

And of course we’re rather gullible too, easily satisfied with words. We trust someone who says he’s changed and become a slave of Jesus even if he’s living with his girlfriend, shirking on child-support payments to his ex-wife, and selling pornography at the gas station where he works. It isn’t considered polite to question whether someone else’s faith is true.

Should Victims Be Able to Sue Corrupt Judges

From VC:

Now comes news that the judges are immune from suit arising from any and all of their “judicial acts” in connection with the sentencing of these juveniles. [Stories are here and here; the opinion in the case conferring absolute immunity on the defendant judges (Middle District of PA, Judge Caputo) is here). Judge Caputo’s opinion conferring the immunity is thoughtful and well-reasoned...

My comment:

Very interesting problem, and you're right that it's not an easy one. We definitely want the judge to have criminal liability, I think (some people might want to limit it to impeachment) and we want the corrupt cases to be subject to review, so the only question is whether the victim--- the losing side--- should be able to sue the judge or the government for money damages besides.

What is the case with corrupt policemen? (Section 1983?) Can they be sued personally?

We also have a second-best situation. As the Court says, we'd have a huge amount of meritless litigation harassing judges. I say that is "second-best" because it is the fault of bad policy created by the judiciary itself, which for the past 50 years has encouraged nuisance suits generally. If judges would use their powers to punish lawyers who bring meritless suits, the problem would dwindle. Maybe making judges personally vulnerable to legal harassment and wacko juries would change the judiciary's mind about whether trial lawyers should be given every freedom to sue corporations.

"Under the Color of the Law"

US Code 18-2340 says,

"(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;"

The phrase "under the color of law" is unclear. Maybe 18-242 case law has cleared it up. But if it means "under the pretense of acting on behalf of the government, but actually breaking government rules", then using thumbscrews in interrogation is not torture. On the other hand, if it means, "while actually fulfilling one's official duties as ordered," then the SERE training is torture and illegal if done outside the US.

US Code 18-242 is the most important use of the phrase,but it is quite unhelpful:

This statute makes it a crime for any person acting under color of law, statute, ordinance, regulation, or custom to willfully deprive or cause to be deprived from any person those rights, privileges, or immunities secured or protected by the Constitution and laws of the U.S.

This law further prohibits a person acting under color of law, statute, ordinance, regulation or custom to willfully subject or cause to be subjected any person to different punishments, pains, or penalties, than those prescribed for punishment of citizens on account of such person being an alien or by reason of his/her color or race.

Discrimination in Major Law Firms?

Interesting data is available showing the number of African, Asian, and Hispanic American lawyers and partners at 20+ major law firms. The common pattern is that the Partner/Lawyer ratio is much higher for African-Americans and Hispanic-Americans than for Asian-Americans. An interesting question is why. Three possibilities:

1. The firms discriminate in favor of blacks and make them partner more often.

2. The firms discriminate against blacks, and hire them as associates less often.

3. The past decade has had a surge in the number of Asian-American lawyers, who aren't old enough to go up for partner yet.

This could use further study.

Later: See Steve Sailer. Apparently, if a group difference is more than 4/5, you can sue. That's easy here. You'd get statistical significance even for individual law firms. An interesting legal question, though, is whether you could sue an entire industry on behalf of an industry class-- sue 20 law firms on behalf of the denied Asian associates-- if all of the law firms had the same discrimination pattern, but non individually statistically signfiicant, but jointly highly significant.

Something amusing about the lawsuit is that the likely best defense can't be used. It is: "We make lots more blacks partner because we discriminate against them at the associate level and their average quality is a lot higher than for asians."

Abortion and Torture

Someone should write comparing the "torture memos" to abortion. A question in each is whether a painful technique is justified by some other good. The liberal position is that it is torture to slap a terrorist to stop a nuclear bomb, but okay to slowly dismember a baby to improve a woman's mood.

Don't Trust Big Name Law Profs to Know What They're Talking About

A commentor at VC gives an example of how you can't trust a big-name law professors to have his facts straight about the key point of his argument:

"According to Tushnet, there's nothing for the AG to do until a bill lands on the President's desk." Absolutely not correct. (1) Obama claimed during the campaign that he would try to minimize conflicts between the President and Congress by having "his" OLC advise him and Congress of constitutional objections at early stages of bill drafting. (2) Regardless of point #1, OLC has served this function since its inception, and the reason it issued this opinion is that it was serving this function as a matter of course -- this opinion was in no way unusual; in fact, OLC reviews all major items of legislation in their early stages; it has a position purely for this purpose, known as the "bill comment" deputy or "legislative" deputy (Deputy Assistant Attorney General, or DAAG). (3) Regardless of points #1 and #2, having OLC offer its views before bills become final is good policy and good government, as only the Justice Department (as compared to individual Senators and Representatives) has the budget and staff capability to field a standing body of con law experts, and having those experts advise Congress provides both a valuable "second look" and a way to head off legislative-executive conflicts before they reach an advanced stage where positions can harden artificially. (Con law isn't the only area of expertise for which OLC serves this function for Congress but the others aren't implicated in this question, so I won't digress.)

Tushnet, therefore, is wrong as a matter of Obama's campaign promises, as a matter of historical practice, and as a matter of good government practice. Three strikes -- he's out!

The Justice Dept. OLC

IU law prof Dawn Johnsen has been nominated to be head of the Justice Dept.'s Office of Legal Counsel. A vote on her nomination has been delayed a few weeks by Senate Republicans. The news says this is because they don't like her extreme pro-abortion views, or that this is part of some haggling over release of old Bush OLC memos. I just came across something else that seems relevant, though. Wikipedia says that the last Bush nominee for this job, Steven G. Bradbury, was nominated in June 2005, approved by the Senate committee five months later, and then was blocked for over three years by Senate Democrats from having a full Senate vote and remained acting but unconfirmed till the Administration ended in January 2009. Is there any payback going on? If so, Prof> Johnsen may have a few years to wait.

International Law

Eric Posner is good at VC on the liberal, Kohish view of international law as mere hypocrisy. He explains the academic argument by Koh: international public opinion has strong actual effect, and ends up forcing the US government to bend to its will, and so is actual law.

The Stevens Prosecution

April 8. The Justice Dept. seems to have decided to make it hard to get info on the case by removing files from their website, but I found the 10-02-2008 GOVERNMENT'S MEMORANDUM IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS OR FOR A NEW TRIAL and have posted it. This is worth having because it is said that the prosecutors lie in it. I haven't been following closely enough to know where.

The place to go for info on this case is the blog Crime and Federalism.

April 7. I see another motivation for dropping the case. I read now that the judge is ordering the prosecutors to give him their background materials even though they want to drop the case. It looks to me as if the judge is outraged and wants to hold the prosecutors in criminal contempt, perhaps sending them to jail for a while. The FBI is accused of misbehavior too. If Holder can stop the proceedings, he'll be able to hold the threat of punishment ordered by himself over the Public Integrity Section and the FBI, and use that as leverage. Thus, the Stevens case might be dropped even if Holder was sure he could get a conviction. What we may have here is that the attorney-general is willing for one criminal to go free (Stevens) to prevent another group of criminals from going to jail (the prosecutors). Stevens, of course, would not object to this-- it's a perfect opportunity for prosecution-defense collusion. The judge, however, has less reason to approve the deal.

I posted this comment at VC.

Brenda Morris joined the Public Integrity Section, Criminal Division, U.S. Department of Justice in September 1991. After working for twelve years as a Trial Attorney with the Public Integrity Section, she was promoted in March 2004 to Deputy Chief for Litigation. In August 2006, Professor Morris was promoted to the position of Principal Deputy Chief.

The acting head of the Criminal Division, who rushed the indictment unethically, was also a career civil servant. It does look as if the careerists have scored another scalp with Stevens.

A question for the lawyers: Is prosecutorial misconduct in a previous trial for the same offence admissible? If it is, Stevens would surely be acquitted in a second trial. Second question: Should it be? (Yes, I would think.)

What has received little discussion here are Holder's motives. I wonder if it has any connection with Senator Dodd. Is failure to report a favorable mortgage a crime? It is, I suppose if favorable mortgage terms are defined as a gift.

Here is an article on the Dodd mortgage.

I called Robert Feinberg, the former Countrywide executive who blew the whistle on Dodd last summer, but he declined to speak on the record. What he said to me last October is still relevant.

Dodd "got the best of the best," Feinberg told me in the fall, saying that the deal would have saved the Dodds about $77,000 over the life of the loan. It means, for example, that Dodd got a free-of-charge "floatdown" to a better interest rate and that he paid no points.

"There isn't one person that was in my pipeline during that four and a half years that didn't know they were getting VIP service," Feinberg said.

I would really like to find out who is in the Justice Dept. as career and political appointees. The same goes for the rest of the government. How many are Democrats? The public has a right to the info of who is running our government.

April 7. I hadn't been following the Stevens case, and believed the conventional wisdom that he was guilty. Now I really wonder. It seems as if this is the story: Stevens had his friend Allen renovate his house. Allen billed Stevens for $160,000. Allen also let his construction company provide free work, bought furniture, a grill, etc. The government, it seems (this is not clear, and in any case, I don't trust the government at all on this) values the free stuff at $240,000, and I couldn't figure out what the defense valued it at. Allen claims that Stevens knew he was getting renovations cheap; Allen claims he didn't know it.

I believe Stevens, on the renovations. He was not closely involved-- he even gave a power of attorney to a neighbor to sign all the permits and suchlike--- and he did, after all, pay $160,000 for not an entire new house, but just renovations. I don't see how anyone could find him guilty there beyond a reasonable doubt.

On the other hand, he seems clearly guilty of smaller infractions. He knew he had gotten new furniture, a new grill, a salmon statute, etc. If the value of that was over the ridiculously small statutory limit-- $320, I think--- then he is guilty in not reporting it.

The government could easily have proved guilt on the gifts of chattels, without even using Allen as a witness. But that was too small a violation to make the prosecution seem reasonable. In fact, I bet half the Senate is guilty of not reporting $400 gifts from old friends. I hope the Federal Sentencing Guidelines don't impose a big minimum sentence for that. Of course, prosecutorial discretion is supposed to help by preventing de minimis prosecutions.

Here are the exempt categories of gifts: (1) Bequests and other forms of inheritance; (2) Political campaign contributions; (3) Communications to your offices including subscriptions to newspapers and periodicals; (4) Consumable products provided by home state businesses to your offices, if those products are intended for consumption by persons other than yourself; (5) Gifts received prior to your Federal employment; (6) Gifts to your spouse or dependent child totally independent of his or her relationship to you; (7) Gifts from relatives; (8) Personal hospitality of any individual (see instructions); (9) meals and beverages unless consumed in connection with a gift of overnight lodging; and (10) Food, lodging, transportation, and entertainment provided by a foreign government within a foreign country, or by federal, state, D.C., or local governments.

The Function of the Office of Legal Counsel

More on the Holder overruling of the OLC. The Washington Post reported

In deciding that the measure is unconstitutional, lawyers in the department's Office of Legal Counsel matched a conclusion reached by their Bush administration counterparts nearly two years ago, when a lawyer there testified that a similar bill would not withstand legal attack.

Holder rejected the advice and sought the opinion of the solicitor general's office, where lawyers told him that they could defend the legislation if it were challenged after its enactment....

Through a spokesman, Holder portrayed the basis for his override of the OLC ruling as grounded in law, not politics.

"The attorney general weighed the advice of different people inside the department, as well as the opinions of legal scholars, and made his own determination that the D.C. voting rights bill is constitutional," Matthew Miller said. "As the leader of the department, it is his responsibility to make his best independent legal judgment, and he believes that although there are reasonable arguments on both sides of the issue, ultimately the bill would constitutionally grant D.C. residents a right to elect a voting representative in Congress."

I finally found a leftwing comment on this. Mark Tushnet says that Holder has not taken any formal, legally binding, action, yet and the bill hasn't passed either, so nothing has happened.

It seems Tushnet is wrong, though. It is true there is not action yet, but that is like saying the "torture memo" was unimportant because when it was issued, no actual interrogation had occurred yet. What Holder has said is that for any DOJ action that depends on the legal question of whether the DC bill is unconstitutional, he is overruling the OLC and the Department is to act as if the bill is constitutional.

A VC comment of mine on AG Holder's decision to back the DC Representation bill in court:

This is of course a much clearer case than in the Bush Administration of the top political leaders overruling the civil service lawyers on a legal stance. So I hope the people who objected to John Yoo's stance call for AG Holder's disbarment even more strongly.

As for myself, though, I find it appalling that anyone thinks the civil service lawyers ought to be making these decisions instead of the elected leaders. The OLC is just a bunch of staffers (mostly civil service staffers-- i.e., lawyers who couldn't get better jobs and who probably have strong ideological preferences). Staffers are supposed to give their best technical expertise to the organization leader, who then makes the actual decision-- in this case, What Shall the Executive Branch's Position be on the DC Bill? I do think the bill is blatantly unconstitutional, but I didn't get elected President and I'm not on the relevant court. I say: Let Holder and Obama defend the position they want in court. And the opinion of his staffers should not be admissible there.

Killing Viable Unborn Babies in Kansas

The Tiller case is an interesting one. He has gotten off, amazingly, with a jury acquittal, from his prosecution on charges of aborting viable babies without an independent second opinion that the mother's health requires it. I've collected links here. First see 2007-06-25 Expert McHugh Backs up Charges Against Tiller Info in Kline charges edited (for length) and emphasis added by Mary Kay Culp, Kansans for Life.

Kansas law KSA 65-6703 requires that if an abortionist suspects an
unborn child is around 22 weeks along,  he must determine if the baby
is viable, that is, capable of living outside the womb with or without
medical help (22-23 weeks is generally regarded as when a baby could
live outside the womb).

If the abortionist determines that the baby is “viable”, then the
abortion can only be performed if a second doctor who is NOT
financially or legally affiliated with the abortionist agrees with the
abortionist that it is necessary because the mother is going to die
(no such cases in Kansas since records started being kept in 1998), or
she will suffer a substantial and irreversible impairment of a major
“bodily” function. (Former Attorney General Carla Stovall issued an
opinion in 2000 that “major bodily function” includes risks to mental
health as long as such risk is “substantial and irreversible.” ) ...

Kline Charges Against George Tiller, December, 2006

Note: 15 abortions; 2 counts each

Count 1: Unlawful Late Term...14 year old pregnant child when the
fetus was viable…26 week…wrongfully relied on a diagnosis of Anxiety
Disorder NOS or Adjustment Disorder with mixed anxiety and depressed
mood.

Count 2: Failure to Report Justifications for Late Term Abortion…29
weeks of age, did report that the fetus was not viable...

Count 3: Unlawful Late Term Abortion 10 year old pregnant child when
the fetus was viable...28 weeks...wrongfully relied on a diagnosis of
Major Depressive Disorder, Single Episode...

Count 4:  Failure to Report Justifications for Late Term Abortion…28
weeks of age... did report that the fetus was not viable...

Count 5: Unlawful Late Term Abortion...15 year old pregnant child when
the fetus was viable... 28 weeks... wrongfully relied on a diagnosis
of Major Depressive Disorder, Single Episode...

Count 6:  Failure to Report Justifications for Late Term Abortion...28
weeks of age...did fail to report the basis for the determination...

Count 7: Unlawful Late Term Abortion...16-year old pregnant child when
the fetus was viable...29 weeks...wrongfully relied on a diagnosis of
Major Depressive Disorder, Single Episode...

Count 8:  Failure to Report Justifications for Late Term Abortion...29
weeks of age...did fail to report the basis for the determination...

Count 9: Unlawful Late Term Abortion...19 year old pregnant woman when
the fetus was viable...27 weeks, wrongfully relied on a diagnosis of
Major Depressive Disorder, Single Episode...

Count 10: Failure to Report Justifications for Late Term Abortion...
27 weeks of age...did report that the fetus was not viable and
therefore did not report the actual determination of fetus
viability...

Count 11: Unlawful Late Term Abortion...22 year old pregnant woman
when the fetus was viable 31 weeks...wrongfully relied on a diagnosis
of Major Depressive Disorder, Single Episode...

Count 12:  Failure to Report Justifications for Late Term
Abortion...31 weeks of age...did fail to report the basis for the
determination...

Count 13:  Unlawful Late Term...15 year old pregnant child when the
fetus was viable...26 weeks...wrongfully relied on a diagnosis of
Major Depressive Disorder, Single Episode...

Count 14:  Failure to Report Justifications for Late Term Abortion...
26 weeks of age...did fail to report the basis for the
determination...

Count 15: Unlawful Late Term 15 year old pregnant child when the fetus
was viable...28 weeks...wrongfully relied on a diagnosis of Acute
Stress Disorder...

Count 16: Failure to Report Justifications for Late Term Abortion...
28 weeks of age...did fail to report the basis for the
determination...

Count 17:  Unlawful Late Term Abortion...15 year old pregnant child
when the fetus was viable...25 weeks...wrongfully relied on a
diagnosis of Major Depressive Disorder, Single Episode...

Count 18:  Failure to Report Justifications for Late Term
Abortion...25 weeks of age...did fail to report the basis for the
determination…

Count 19:  Unlawful Late Term Abortion...15 year old pregnant child
when the fetus was viable...wrongfully relied on a diagnosis of Acute
Stress Disorder...

Count 20: Failure to Report Justifications for Late Term Abortion...26
weeks of age...did fail to report the basis for the determination...

Count 21: Unlawful Late Term Abortion...15 year old pregnant
child...when the fetus was viable... 25 weeks...wrongfully relied on a
diagnosis of Major Depressive Disorder, Single Episode...

Count 22:  Failure to Report Justifications for Late Term
Abortion...25 weeks of age...did fail to report the basis for the
determination...

Count 23:  Unlawful Late Term Abortion...14 year old pregnant child
when the fetus was viable... 25 weeks...wrongfully relied on a
diagnosis of Acute Stress Disorder...

Count 24:  Failure to Report Justifications for Late Term
Abortion...25 weeks of age...did fail to report the basis for the
determination...

Count 25:  Unlawful Late Term Abortion...15 year old pregnant child
when the fetus was viable...25 weeks...wrongfully relied on a
diagnosis of Major Depressive Disorder, Single Episode...

Count 26: Failure to Report Justifications for Late Term Abortion...25
weeks of age...did fail to report the basis for the determination...

Count 27:  Unlawful Late Term Abortion...18 year old pregnant woman
when the fetus was viable...25 weeks...defendant wrongfully relied on
a diagnosis of Anxiety Disorder NOS or Acute Stress Disorder...

Count 28: Failure to Report Justifications for Late Term Abortion...25
weeks of age...did fail to report the basis for the determination...

Count 29:  Unlawful Late Term Abortion...13 year old pregnant woman
when the fetus was viable...25 weeks...wrongfully relied on NO
established diagnosis…

Count 30:  Failure to Report Justifications for Late Term
Abortion...25 weeks of age...did report that the fetus was not viable
and therefore did not report the actual determination…

Witnesses:  Thomas Williams, Jared Reed, Dr. Ann Kristin Neuhaus,
Steve Cavanaugh, Clerk of the District Court—3rd Judicial District,
Dr. Paul McHugh (Psychiatrist-Johns Hopkins), Dr. Lome Phillips (Head
of statistics, state of KS), Lorna Jansen, Gina Bowes

Sealed documents attached in support include an affidavit of Dr. Paul
R. McHugh, M.D., Johns Hopkins Medical Center, transcript of sworn
statement by Dr. Ann Kristin Neuhaus, M.D., copies of 15 KDHE report
forms, and copies of 15 medical files with patient identification
REDACTED!

From Tiller the Killer’s Get-Out-of-Jail-Free Card:

Dr. Paul McHugh, a nationally known psychiatrist, received a warning on June 12 from Kansas Attorney General Paul Morrison who threatened to take legal action if McHugh didn’t stop making public statements regarding the medical records involved in the investigation of late- term abortionist George Tiller “the Killer.”...

On the evening of June 12, however, Attorney General Morrison did contact Dr. McHugh at a panel discussion with the intent of preventing him from speaking. A man claiming to be a criminal investigator for Morrison stood outside and asked every older man that approached if he were a doctor. Morrison’s cease-and-desist letter threatened the doctor with legal action and claimed that his office did contact the psychiatrist. “Again, we hereby demand that you cease and desist from all public comment about your work in this case,” said Morrison in the letter.

Morrison also argued that McHugh was violating the privacy of the patients involved, even though McHugh never mentioned the name of a single woman in the interview.

My Thoughts:

A major use of such prosecutions is to point out what goes on, whether it is deemed legal or illegal in the end. I think more use might be made of this case. What is most shocking is not the illegal activity--- that Tiller improperly used a non-independent doctor as his second opinion--- but the legal part--- that a viable baby can be killed if a casual non-expert opinion claims mild mental harm to the mother from the baby's survival.

I don't think the public realizes this goes on. It is, indeed, incredible. And this is one of those cases where the de facto law and the de jure law are different. The de jure law-- well, the written law, let us say, since judge-made law is probably different--- requires something like major medical harm. The de facto law requires the desire of at least two doctors in the United States that the abortion be performed. So pro-abortion people can pretend that nothing bad is happening.

What is effective in refuting them is not the vague claim that late- term abortions occur without medical justification. Rather, we need specific cases with objective documentation.

The webpage,

http://www.kfl.org/SiteResources/Data/Templates/templateb.asp?docid= 813&DocName= 2007-06-25%20Expert%20McHugh%20Backs%20up%20Charges%20Against%20Tiller

is a good start. It paraphrases the sealed medical records in the Tiller case briefly.

What would be much better would be to open up the sealed records themselves. Or, even to open up ONE sealed record to be an example.

Can any more details be publicized?

Can a successful motion be made to unseal the records? Such a motion would be vigorously opposed by Tiller. But unsealing those records would be more important to fighting abortion than even a successful conviction of Tiller, wouldn't it? The scandal is what is legal, not what is illegal.

I imagine that the case for unsealing the records would be stronger if Tiller had lost, or after he is disciplined by whatever boards are relevant. The argument would then be that these sealed records are records of illegal (if not quite criminal) activities of the doctor and patient jointly, and so the doctor and patient should forfeit their right to privacy.

Useful Links:

1. KFL contacto info

2. 18th Judicial Court, Sedgwick County, Kansas

3. KFL Tiller case links

4. Motion to Compel Discovery of Exculpatory Evidence

5. AG Morrison's Charges Against Tiller

6. March 27, 2009 Associated Press story: Jury finds Kan. doctor not guilty in abortion case

Mad Max and the Rule of Law

Mad Max Beyond Thunderdome has a great phrase from Bartertown law, which perhaps I've even improved here:

"Bust a deal: spin the wheel".

The wheel is a wheel of fortune with various punishments for breach of contract, including death.

Somehow I thought of that when I hear many supposedly free market, rule-of-law Americans saying that the government should force AIG to breach its contracts with its employees and not pay them the bonus amounts specified in the contracts, changing the law if necessary so the employees cannot have recourse to the courts to get their contracts honored. Even primitive societies believe that people should keep their contracts or pay damages.

Communion in Both Kinds

VC has a good post on laws against child drinking and communion, with comments on communion in both kinds. The Roman position seems to be that it is like priestly celibacy a policy strictly enforced by the Church but allowed or not depending on circumstances of the age. The Council of Constance decrees condemned this and other Wylclifite ideas as being against church commands, not as heresy in itself.

....although Christ instituted this venerable sacrament after a meal and ministered it to his apostles under the forms of both bread and wine, nevertheless and notwithstanding this, the praiseworthy authority of the sacred canons and the approved custom of the church have and do retain that this sacrament ought not to be celebrated after a meal nor received by the faithful without fasting, except in cases of sickness or some other necessity as permitted by law or by the church. Moreover, just as this custom was sensibly introduced in order to avoid various dangers and scandals, so with similar or even greater reason was it possible to introduce and sensibly observe the custom that, although this sacrament was received by the faithful under both kinds in the early church, nevertheless later it was received under both kinds only by those confecting it, and by the laity only under the form of bread. For it should be very firmly believed, and in no way doubted, that the whole body and blood of Christ are truly contained under both the form of bread and the form of wine. Therefore, since this custom was introduced for good reasons by the church and holy fathers, and has been observed for a very long time, it should be held as a law which nobody may repudiate or alter at will without the church's permission. To say that the observance of this custom or law is sacrilegious or illicit must be regarded as erroneous. Those who stubbornly assert the opposite of the aforesaid are to be confined as heretics and severely punished by the local bishops or their officials or the inquisitors of heresy in the kingdoms or provinces in which anything is attempted or presumed against this decree, according to the canonical and legitimate sanctions that have been wisely established in favour of the catholic faith against heretics and their supporters.

See too the Catholic Encylopedia on Utraquism.

Firing U.S. Attorneys

One aspect of the Clinton scandals was that Clinton fired all the US Attorneys immediately upon coming to office, rather than waiting until he had nominated new people to replace the Bush appointees. This was widely thought to have been to aimed at replacing the Arkansas district attorney who was a threat to him personally, but who couldn't have been fired as a single case without looking even worse. I just learned something new: the Clinton transition team lied to the Bush Administration about their intentions. Probably that was so the district attorneys couldn't speed up investigations or take papers away with them. See The Washington Post:

Advisers to Obama say they have learned from past mistakes, including Clinton's decision to require all U.S. attorneys to submit their resignations.

Critics said that move threw law enforcement efforts into disarray. And Richard Cullen, who was a U.S. attorney for the Eastern District of Virginia under President George H.W. Bush, said that crossed signals during the Clinton transition left some prosecutors on the street unexpectedly.

"We just got a call one day: Resign right away," said Cullen, now chairman of the law firm McGuire Woods. "That was at odds with what the Clinton transition people told the Bush transition people. Some people didn't have jobs to go back to, and had families to feed."

Of course, one of the oddities of liberals is how outraged they were when Bush fired a handful of U.S. attorneys later on without giving any reason.

Homosexual Orientation versus Homosexual Behavior

Here's a comment I posted at Prosblogion:

The distinction between "sexual orientation" and "sexual behavior" is absolutely crucial, and I was thinking on blogging on this myself, so I read this with interest. I see that the lawyer quoted above didn't understand the distinction. I too would like to know if city regulations do.

Someone commented:

"If I owned a business, I'd discriminate in my hiring practices, quite reasonably I think, against non-sober alcoholics. The view of those who are supporting the original petition appears to be (and someone please correct me if I'm wrong about this) that I would thereby discriminate against an alcoholic who has been sober for ten years. Isn't this just absurd?"

That's right. I'm sure Christian colleges are happy to hire people with homosexual orientation who are strongly opposed to homosexual behavior. The former alcoholic is the best crusader against drink, and it is common to encounter reformed homosexual pastors who specialize in work with homosexuals. If anybody finds a case where a strong advocate of anti-sodomy laws is denied a job because he used to practice sodomy, please let us know.

In fact, orthodox Christian belief is that everyone has a "sin orientation"; it is just that some of us control our outward behavior better than others do. This is really the same as the idea that we are all potential criminals--- murderers and thieves, for example--- but some of us, including most people with college degrees, are better at restraining themselves in light of their material incentives and the chance of getting caught.

There is something I don't think any other commentor has mentioned: the "legislative history" of anti-discrimination rules. If a judge were to rule on whether the rule were literally against homosexual orientation or were against orientation and behavior, he would first look at the text. The text is clear--- it's just orientation--- but commonly even a fair-minded judge wouldn't stop there. He would go on to look at intent and at whether the words had a broader meaning in the particular context. A big part of that is to look at legislative history. If *everyone* in the debate over enactment-- both proponents and opponents--- talked as if the words included behavior, then it would be reasonable to read the words that way. If everyone just talked about orientation, or, even better, proponents explicitly said that the rule was written purposely to allow discrimination based on sexual behavior, then the words ought to be read literally. (If the legislative history is mixed, then it isn't much use.)

I could be wrong, but I bet most anti-discrimination rules were enacted by means of arguments based on orientation, not behavior. If so, it's not fair to switch the meaning afterwards to include behavior. An argument such as "we shouldn't allow discrimination on the grounds of characteristics a person can't alter" argues for a rule against orientation, but implicitly concedes that discrimination on behavior is okay.

To be sure, forbidding sodomy hurts people who are tempted by sodomy more than those who are not, and in that sense discriminates on the basis of orientation. But that is a false sense. It is equivalent to saying that forbidding sexual harassment, or even rape, discriminates against men, and so a university should not punish it if they have a policy against sex discrimination.

In the courts, the "disparate impact" argument is treated in complicated ways, and in ways that are different depending on the type of discrimination. Race effects are scrutinized much more closely than gender effects, for example.

I'll repeat what earlier comments said: If anyone knows what courts have said on whether the term "sexual orientation" includes "sexual behavior" please let us know.

An Oral Argument before Judge Posner

C-Span has oral arguments very clearly taped. Here is Judge Posner and the lawyers at the Seventh Circuit Court of Appeals oral argument in the very silly 2006 slave reparations case of Farmer-Paellmann v. Brown and Williamson.

OLC's Dawn Johnsen

National Review has an article on IU Prof. Dawn Johnsen's confirmation hearings (OLC)with links to a Slate article on her.

Brad DeLong Calls for Colleague To Be Fired

Brad DeLong has posted a shocking letter calling for Professor Yoo of Berkeley Law to be fired for his work in the White House-- the "torture memo". I'd thought reputable economists wouldn't write that kind of letter. It should be a warning to us all--- the Left *does* want to criminalize conservatism. Liberals, you watch out--- the Mensheviks come next.

Brandeis University is selling its $350 million art collection. One interesting thing about this is that there exists a bad law saying that universities can't spend the principal of their endowments. Cushioning bad times should be a major (maybe the only) reason for endowments. Precautionary saving is an excellent idea; merely piling up golden ducats is not.

Brandeis's endowment had plunged to $540 million at the end of 2008 from $712 million as of June 30 of that year, and it was earning significantly less than the 8%-plus annual return on investment it had posted on June 30. Some of Brandeis's trustees are believed to have lost money from Bernard Madoff's Ponzi scheme, limiting their ability to make up the difference. The school, which by law spends only its gains and not the principal of the endowment, reduced expenditures by $10 million and instituted various budget-freezing measures, but "we couldn't do any more belt-tightening without fundamentally changing the character of the university," said Peter French, Brandeis's chief operating officer and executive vice president. He noted that, as the trustees looked ahead at the next four or five years, they could see operating deficits of $10 million to $20 million a year and little likelihood of Brandeis regaining its $700 million endowment and 8% interest income until 2015.

What they could do instead is to pawn the art collection and redeem it when the endowment income is flowing again. Or, someone ought to come up with a self-liquidating security which pays out dividends until none of it is left. There's some kind of Treasury security like that-- is that what a Strip is?