Author Archive for eric-muller
Signing Off…
posted by Eric Muller
Many thanks to the fine folks here at Co-Op for inviting me to guest-blog. My time is coming to an end. I’ve enjoyed it; hope you have too. Drop by my solo blog, IsThatLegal, and say hello sometime.
July 13, 2006 at 8:07 am
Posted in: Blogging
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Renaming.
posted by Eric Muller
This effort seems destined to fail.
Prince tried it, but who actually called him “The Artist Formerly Known as Prince?”
July 12, 2006 at 8:36 am
Posted in: Weird
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Was Korematsu a “Legitimate” Supreme Court Decision?
posted by Eric Muller
Kim Roosevelt and I are debating the legitimacy of Korematsu v. United States over at my blog IsThatLegal. Kim’s arguing that the decision was wrong but nonetheless “legitimate” because it proceeded from a valid principle of deference to military decisionmaking, and I’m disagreeing.
Check it out, and share your thoughts in the comments, either here or there.
July 11, 2006 at 9:35 am
Posted in: Supreme Court
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Friday Night Blawg Fights
posted by Eric Muller
Eugene Volokh and Ann Althouse are tussling over Eugene’s exploration of innate male intellectual superiority on the right tail of the bell curve as a potential explanation of why there are more male Supreme Court clerks than female ones. Ann is even doing it with video.
July 10, 2006 at 4:46 pm
Posted in: Blogging
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Tragical History Tour
posted by Eric Muller
In a few minutes I’ll be heading out to the site of the Mindoka Relocation Center for Japanese Americans in WWII, near Twin Falls, Idaho, with a busload of surviving former internees. We’ll be touring the site with National Park Service guides, and later we’ll visit a reconstructed barrack.
Reading Korematsu and the literature on the Japanese American internment is very important. But there’s no better way really to understand the camps than to visit them, especially (if possible) with people who were warehoused there on account of nothing more than their ancestry.
There are camp sites in southern California (Manzanar) and northern California (Tule Lake), northwestern Wyoming near Yellowstone (Heart Mountain), eastern Colorado (Amache), central Utah (Topaz), southern Arizona (Poston and Gila River), southern Idaho (Minidoka), and southern Arkansas (Rohwer and Jerome). If your travels ever take you through any of those regions, stop by. It’ll be worth it.
July 8, 2006 at 9:53 am
Posted in: Constitutional Law
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Wanna Be A Paperback Writer?
posted by Eric Muller
Many lawprofs (myself included) dream of writing novels.
Kim Roosevelt, by contrast, actually does it. He talks about how he does it here.
July 8, 2006 at 9:34 am
Posted in: Articles and Books
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In Defense of Emergency
posted by Eric Muller
Or is he just saying that the Court has wrongly cheated President Bush out of his entitelement to suspend civil liberties?
July 7, 2006 at 12:22 am
Posted in: Constitutional Law
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Ngo: An “Apocalyptic” Decision?
posted by Eric Muller
Where is the outrage about Woodford v. Ngo?
That’s what Kim Roosevelt wants to ngo know.
He calls the decision “apocalyptic” for inmate civil rights suits. Head on over and tell him what you think.
July 5, 2006 at 3:22 pm
Posted in: Civil Rights
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Summertime for Hitler, Right Here In The U.S. of A.
posted by Eric Muller
If your summer plans included a pilgrimage to the Hitler Shrine in southeastern Wisconsin, it turns out that you’ll need an invitation from its owner.
But not to worry! Your daughters can download the “nationalist” music of Prussian Blue (a/k/a Mary-Kate and Ashley Eichmann), pictured above, at the click of a mouse! As this fan notes in his review of the dierndel-draped darlings’ music, “the first three songs on the new CD have nothing to do with race at all. They are geared more toward the young teen set and of course a young girls favorite topic, boys.”
July 5, 2006 at 10:22 am
Posted in: Current Events
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Kermit Roosevelt Guest-Blogging at IsThatLegal
posted by Eric Muller
Kermit Roosevelt — lawprof (Penn), novelist (In the Shadow of the Law), and presidential descendant (TR) — will be guest-blogging at my blog IsThatLegal starting today.
Drop on by and say hello.
July 5, 2006 at 8:22 am
Posted in: Blogging
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The AUMF and The Road Not Taken.
posted by Eric Muller
I’m reading Ron Suskind’s “The One Percent Doctrine.” I haven’t gotten too far, but my eyebrows definitely went up when I read that the draft of the Authorization for the Use of Military Force that administration lawyers submitted to Congress just after the September 11 attacks would have authorized the President to use all necessary and appropriate military force even within the United States in order to prevent future attacks. The language about domestic deployment of military force didn’t make the final cut in Congress.
July 3, 2006 at 3:16 pm
Posted in: Privacy (National Security)
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Hamdan, Endo, Disarray, and Arrogance
posted by Eric Muller
In this NYTimes article on hesitations about legislation to establish military tribunals, this passage stood out:
Until now, the White House and particularly Vice President Dick Cheney had been dead set against working with Congress on issues involving the detainees, against the advice of some Republicans and some administration lawyers. By waiting until the court forced the issue, the White House may have made its task more difficult, leaving Mr. Bush with less support in Congress than he had after the attacks of Sept. 11.
I am reminded of the discussions within the Roosevelt Administration (the War Department, the Justice Department, the Department of the Interior, and to a lesser extent the President himself) during the summer and fall of 1944 as they awaited the Supreme Court’s decision in Ex parte Endo.
The Endo decision came on December 18, 1944; it declared illegal the continued detention of loyal Japanese Americans in the eight “relocation centers” that the War Relocation Authority was operating at that time.
What’s interesting to me is that the Administration spent the summer and fall of ‘44 preparing for the possibility of an adverse outcome in Endo. Felix Frankfurter tipped the Administration off that the decision was coming on the 18th; this enabled the Administration to preempt the Supreme Court’s decision by announcing on the 17th of December that it would be bringing the detention and exclusion of Japanese Americans from the West Coast to an end. It had a plan in place to end the mass exclusion of Japanese Americans and to replace it with a system of targeted individual exclusions of those it deemed especially dangerous.
Compare this to the disarray in Washington over the last couple of days.
It’s quite obvious to me that this Administration just could not bring itself to believe and plan effectively for the possibility that it might lose the Hamdan case, and lose it big.
Why am I not surprised?
July 1, 2006 at 4:07 pm
Posted in: Privacy (National Security)
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Steve Bainbridge on “Evading” Hamdan
posted by Eric Muller
In a post titled “Evading Hamdan,” Steve Bainbridge notes that there’s a different way for the Executive to get the military commissions it wants than to hash out legislation establishing them with our elected representatives in Congress. Congress could instead try to strip the federal courts of all jurisdiction to hear cases out of Gitmo, or, presumably, cases leveling challenges of any sort to military commissions.
An interesting thing to think about, I suppose.
But I’m not sure I see the normative case for trying to give the courts the boot and setting up a standoff between Congress and the judiciary over the scope of Congress’s power to strip jurisdiction. Congress can make policy in this area, or it can try to eliminate the courts so as to allow the Executive to make essentially unreviewable policy. Why would it choose the latter over the former?
Steve says he’s not advocating the idea of jurisdiction-stripping, but simply mentioning it. I’m not so sure: when you say, as Steve does, that you doubt Congress has “the guts” to strip the courts of jurisdiction, and when you muse publicly about whether “anybody in Congress will have the chutzpah to run it up the legislative flagpole” — and indeed, when you frame Hamdan as a decision to be “evaded” — some people might think you believe that jurisdiction-stripping would be a good idea. That’s what I’m inferring from Steve’s post, in any event. Perhaps Steve can clear things up by explaining his take on the merits of the idea he’s floating.
June 30, 2006 at 7:58 am
Posted in: Constitutional Law
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Iron Maiden: Religious Obscurantists
posted by Eric Muller
Q. What do Julio Iglesias and 10cc have in common?
Answer below the fold.
June 28, 2006 at 12:23 pm
Posted in: Weird
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High Noon At The Supreme Court On The Purpose Of Criminal Appeals?
posted by Eric Muller
Yesterday’s SCOTUS decision in United States v. Gonzalez-Lopez is the most recent installment in a fascinating debate about the function of appellate reversal and the value of procedural rights in criminal cases.
Of course, appellate crimlaw folks know all about the “harmless error” doctrine of Chapman v. California and the important distinction (drawn in Arizona v. Fulminante) between “structural errors” in the criminal process (which require appellate reversal of convictions without regard for their impact on outcome) and “trial errors” in the criminal process (which require appellate reversal of convictions unless they are “harmless beyond a reasonable doubt” to the outcome.
The question in Gonzalez-Lopez was whether an appellate court ought to reverse a conviction automatically upon finding that a trial court denied the defendant his 6th Amendment right to counsel of his choice, or whether it ought to reverse that conviction only if the record reflected that the outcome was affected by the defendant’s not having his chosen attorney beside him. (There was no question that the trial court actually denied the defendant his 6th Amendment right; the defendant had his own lawyer all picked out, but the trial court wouldn’t allow that lawyer to represent the defendant or to participate in the trial at all.)
The issue is a bit technical, but it provides an excellent window into what seems to be a very basic disagreement on the Court about the purpose of appellate review in criminal cases, and about the nature of trial and investigative rights in the criminal process.
June 27, 2006 at 11:21 am
Posted in: Criminal Procedure
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Internment in the Arizona Desert
posted by Eric Muller
One family’s story. A tough life, with tough choices.
June 26, 2006 at 2:00 pm
Posted in: Constitutional Law
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Pop quiz.
posted by Eric Muller
Name the high-profile mass-media immigration reform opponent who, after speaking of her own “light mocha brown skin,” said this:
Never could I have imagined growing up that I would see the day when brown- and yellow-skinned people would stand on the side of pink-skinned bigots railing against the problem of too many of “them.”
Answer (as if you needed it) below the fold.
June 22, 2006 at 11:00 pm
Posted in: Race
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Goodbye Norma Jean, Though We Never … Knew You Were Jewish
posted by Eric Muller
Is the idea that the FBI spied on Arthur Miller supposed to surprise anyone?
On the other hand, the idea that Marilyn Monroe took her vows under a chupah is a surprise.
Perhaps they stepped on a martini glass.
June 21, 2006 at 11:56 am
Posted in: Culture
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Where Is The Academic Truth Squad?
posted by Eric Muller
Have you heard of Mark W. Smith? He is a ‘95 graduate of NYU Law School and a partner at the New York office of Kasowitz, Benson, Torres, and Friedman. More to the point, however, he is an up-and-coming Fox-News-style “legal affairs commentator.” He is described as “one of the fastest-rising legal stars in the country” by no less a legal luminary than … Ann Coulter. Get the picture?
I just heard Smith on our local talk radio station flogging his latest book, “Disrobed: The New Battle Plan to Break the Left’s Stranglehold on the Courts,” about which its publisher (Random House) says this:
America’s courts, legal culture, and law schools remain solidly in the Left’s camp. Decades of liberal legal precedents fill volumes of law tomes. Absent a sweeping change—precisely what bestselling author Mark W. Smith calls for in Disrobed—liberals will ruthlessly exploit their dominant position in the law to continue advancing their radical agenda, as they have for the past seventy years.
So steamed was I by Smith’s harping on the theme that the federal courts are in the grips of “loony leftists” (like, you know, David Souter and Anthony Kennedy) that I called in to the program. Smith agreed to talk with me on the air, but he has studied the Fox News Playbook, so after I said “hi,” Smith launched into a two-minute filibuster about how, as a law professor, I am so mired in the liberal atmosphere of the American legal academy that I can’t possibly perceive the truth about how dominated the entire legal system is by the legacy of “fifty years” (!) of radical leftist control of the courts. The show’s hosts had to interrupt him to create space for me to ask my question, which was this:
Richard Nixon was elected President in 1968. In the 38 years since then, Republican presidents (including presidents elected from right of the center of their party) have appointed federal judges for 26 of them. Democrat presidents have done the appointing for just 12 years, and those two presidents, Carter and Clinton, were candidates from the center or right of their parties who defeated candidates to their left (Ted Kennedy in 1980; Tom Harkin and Paul Tsongas in 1992) in the primaries. So how is it possible to maintain that the federal judiciary is currently staffed by judges of the “loony left,” or for that matter, of any kind of left, loony or otherwise?
Smith’s response was, predictably, a filibuster about how the supposedly conservative Rehnquist Court was really a court of the radical left, endorsing the killing of unborn children while forbidding the killing of baby spotted owls, encouraging the seizure of private property, and so on.
Smith is not alone in this venture. The airwaves and bookstore shelves are full of these sorts of claims, often based on brazen distortions and lies. I can’t imagine that you could fill a telephone booth with legal academics of any political stripe who would defend the claim that the current personnel of the federal courts is shot through with “loony lefties,” or lefties of any stripe.
These sorts of claims — because of their prevalence, even their ubiquity — play a crucial role in American political discourse about the judiciary. We legal academics write our law review articles; some of us even carefully study the political and jurisprudential makeup of the federal courts. We talk to each other. But we do not talk to the public. We do not respond to the Mark Smiths and Andrew Napolitanos and William Pendleys and Robert Dierkers with popular-press books, or on the airwaves.
Why not?
June 21, 2006 at 9:18 am
Posted in: Constitutional Law
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I’m Here All Week! Tell Your Friends!
posted by Eric Muller
Having read the book “An Inconvenient Truth,” I’m going with my wife to see the film tonight.
Not not sure whether to bring our daughters, who are 12 and 9. Apparently there isn’t much sex, but a lot of gore.
June 19, 2006 at 12:50 pm
Posted in: Humor
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