Law Notes

This has been a pet peeve of mine for a while; now I’ve found some actual authority for it.

A plaintiff in a defamation case bears the burden of proving that the defamatory statements are false – the burden is not on the defendant to prove that the statements are true. So, the phrase “truth is a defense” is a misstatement of the law. Christian Research Institute v. Alnor (Feb. 28, 2007) 2007 DJDAR 2875, 2877, citing CACI 1700. The case deals with the burden of proof a plaintiff must meet against an anti-SLAPP motion challenging a defamation claim – the plaintiff must prove falsity by a preponderance standard even if the plaintiff is a public figure. (Malice must still be proven by clear and convincing evidence, but the element of falsity has a lower burden of proof). The CACI is useful and persuasive, but it is not legal authority on its own.

I’ve nowhere else to lodge this particular morsel of information so I may as well post it here so I know I can find it later when I need it. By the time I do need it, it will likely be in the official case reporters. I would expect, given that the ACLU represents the appellant here, that the appellant will at least petition the California Supreme Court for further review; I would also expect that the Supremes will deny review since the decision does conform with what I understand to be the existing law. But, you never know, and if they grant review, I’ll have to wait a while before I can cite this case.

The point is, truth is not a defense to defamation. If the defendant can prove the truth of the statements, that negates the plaintiff’s prima facie case. That’s different than an affirmative defense.

Arnold's Ambivalence

"Passivity" seems more like it. I know it's a touchy issue but it seems as though the Governator has elected to not lead on this issue but rather follow. It's good to represent the will of the people, I concede. But he's the Governor, not a legislator, and he isn't going to run for re-election at that. So if he has an opinion of his own, that's something he's pretty free to express or even implement.

Something Else To Read Later

Inside the Libby jury’s deliberations. I’m not usually a Huffington Post fan (a few neocons and a lot of neolibs arguing – not much there for me!), but this could be a very interesting read indeed.

When Depositions Go Very Bad

Watch it to the bitter end. You may think you've seen the character of the deposition after about sixty seconds, but things get really interesting at about three minutes and thirty seconds -- after the lawyers have given up and are leaving the room.

I hope the video camera operator is okay.

U.S. Mint Inadvertently Complies With The Constitution

Now this is my kind of money. Why this isn't done on all money is bothersome -- hardly the gravest problem facing the country, to be sure, but irritating all the same.

Come on, believers -- do you really think God cares about whether our currency acknowledges his existence or not? I seem to recall a story about someone else handling a piece of currency and saying "Give unto Caesar what is Caesar's." So of course not. That phrase isn't on our currency to please God, so it must be there to please believers. And that makes it an Establishment of Religion.

It's a good bet that you're Christian if you're still not convinced. So think about how you'd feel if if our money said "In Kali We Trust" or "In Allah We Trust" instead. After all, the money doesn't specify which God is the repository of our national trust... but then you'd have to be pretty dim to think that any god but Jehovah was intended to be thus honored.

The Mint is likely to correct its "mistake" and stamp coins bearing the technical violation of the First Amendment in the future and these coins will have value for collectors and not be circulated. If they were, I bet they'd spend just as well as other kinds of money.

Now if you ask me, the real problem with these new coins is that they have a really scary picture of good ol' George:


Recall, if you will, the Simpsons' Treehouse of Horror in which zombies tried to eat the brains of the residents of Springfield, and Homer defended his family from the likes of undead Albert Einstein with a shotgun. That picture looks a lot like zombie George Washington.

Real Lawyers Eat Fast Food

From the outside looking in, one might think that lawyers eat luxury meals for lunch and dinner; martinis and bleu cheese salads for lunch, and rich French red wines with steaks and lobsters for dinner every day. It's not true. Real lawyers eat fast food because there isn't time to eat anything else.

This accounts, in no small part, for the wealth of soft bodies and plump profiles of so many in the legal profession.

Take yesterday for me, for instance. I had a reasonably healthy breakfast of coffee and oatmeal. Then I worked through a client meeting and preparation for a mediation. I waited until the last minute to leave for the mediation so I could get as much work done as possible. The mediation was in Valencia, about forty-five minutes away from my office. So on the way in, I got some drive-thru salty fat burger and an unintentionally ironic diet cola.

The mediation began at 2:00 and lasted until 10:00. At about 6:00, I had a slice of pizza which was ordered in by the mediator. The mediation concluded at close to 10:00 at night, by which time I was running out of gas and wanted to come home to The Wife and the critters. That meant no time for a real dinner anywhere with anything like vegetables in it; instead, there was more drive-thru.

I'm still really burnt out from the stress and duration of the mediation. Mediations give me a small taste of the emotional roller coaster of someone in combat -- they require that when it's our turn to work with the mediator, we be as "on" as a trial requires, and at the same time significantly more open and honest to work towards a collaborative solution to the case. After that, it's a lot of waiting. For the attorney, that means doing a lot of hand-holding for the anxious clients, who sit around with no further input for long periods of time.

Fortunately, my clients yesterday were very cool people with whom I would probably enjoy socializing outside of the work context. That made it a little bit easier, and when they realized just how much time they were going to have on their hands, they were grateful that I told them to bring some other things to do (they're schoolteachers, so they brought in papers to grade; we learned that Adolf Hitler and his wife Eva Braun committed suicide the day before they got married -- must have been a grim reception -- and that "Gorge" Washington had a very simple house made of cherry trees).

I also can take my time getting in the office this morning; I had blocked off the morning to return to Valencia to depose of the parties in this case but now that it's settled I don't need to go back. I can log in to the office remotely and work from home if I need to, but I will go in later this morning. If I don't make it in by 8:30, though, I won't feel too bad, after last night's marathon.

A consistent diet of not getting home until eleven o'clock is not a recipe for the kind of home life I would like. This sort of thing is fortunately rare and The Wife is really very nice about it. A consistent diet of fast food is not a recipe for the Adonis-like body I'm sure The Wife would prefer I have. That sort of thing, however, is more likely to be repeated in the future.

Say What?

Now that's what I call a big flip-flop.

Morals Legislation

Jonathan Adler at Volokh was ahead of me by a few days on the issue of adult incest and whether it should be criminalized. Later tonight (when I have more time) I’ll read what he has to say; for now, it suffices to note that, as Prof. Adler reports, the Texas Supreme Court upheld criminalizing consensual adult incest by a vote of 6-1. I’ll be interested in seeing what the Texas Supremes say justifies the law, especially in light of the U.S. Supreme Court overruling this same Court with respect to other laws criminalizing what consenting adults do behind closed doors. (Maybe they’re spoiling for a fight and think a change of two Justices at One First Northeast will turn things their way.)

Scooter Goes Down

If you’ve been watching, reading, listening to, or even been in the same room as news today, you’ve heard by now that I. Lewis “Scooter” Libby, Vice President Cheney’s former chief of staff, has been convicted of four of five counts of obstruction of justice relating to the Valerie Plame scandal. The airwaves are abuzz right now with talk of what this means to the Administration – ranging from one assessment that the Administration’s credibility is as low as it could possibly go and this just won’t make any difference at all, all the way to “this means Cheney must resign!” No, I do not expect Cheney to resign. And no, the Administration’s credibility is not so low, its disapproval ratings are not so bad, that it could not get even worse.

I’ve already written off this Administration, in case you Loyal Readers haven’t been paying attention. Bush’s experimentation with “big-government conservatism” has been an abject failure and letting the neocons get hold of foreign policy has propelled us into a spectacular and bloody misadventure. My concern for the fallout from the Libby verdict is that it will be another stick on the pyre of Republican claims to be the superior party for governing the country. I mean, good lord, the Bushmen have made such a mess of things. So Scooter going down is a symptom, not a problem. It’s a crack in the ship’s superstructure after the iceberg hits the starboard hull; the propellers will rise out of the water next.

Just an Example

You would be best advised to not oversimplify the dynamics of the Supreme Court.

Traditionally, one would say Breyer, Souter, Ginsburg, and Stevens are liberals, Roberts, Alito, Souter, and Thomas are conservatives, and Kennedy is usually conservative but often votes liberal. (Or, if you’re really conservative yourself, you think Kennedy usually votes liberal but sometimes votes conservative.) But the breakdown of the Justices and the way they look at things is much more complex and nuanced than “liberal-conservative” and this simplistic way of looking at the law at its highest level is dangerously inaccurate.

This case is an example of that. The question: the scope of a punitive damage award against the big tobacco companies for contributing to a man’s death from lung cancer. The breakdown: Stephen Breyer wrote the majority opinion, joined by Chief Justice Roberts, Anthony Kennedy, David Souter, and Samuel Alito. Dissenting were Ruth Bader Ginsburg, and joined by John Paul Stevens, Antonin Scalia, and Clarence Thomas; the primary dissent was written by Justice Ginsburg and Justices Scalia and Thomas joined her opinion. The entire slip opinion is reasonably short, and I will probably be using it in my future classes because it’s much shorter than the State Farm v. Campbell case I have been for the purpose of describing the modern method of determining punitive damages.

Not Likely To Be Popular In Falls Church

I’m sure that our friends in Virginia, who are mostly Democrats, will not be happy about this. Or maybe they will, for reasons of strategic advantage to Democrats since they would surely like to see strength siphoned away from stronger GOP candidates and make the field easier for a Democrat in the long run. I recall they had nothing at all good to say about Jim Gilmore, from his governing style to his administrative skills to his choice of ties and shoelaces.

One Place Rudy Can Improve

Let's face it. Rudy needs a better website. Other candidates’ exploratory committees and campaigns have good-looking websites with lots of content.

John McCain’s website looks very sharp, it has good video feeds and is packed with information. It’s easily the best website of the big six campaigns. Mitt Romney’s website is also content-rich and seems to be updated hourly; it also looks more patriotic and less scary than McCain’s black-and-white motif. Hillary Rodham Clintons’ website looks more traditional in its presentation, but again there is plenty of content and it’s friendly to the eye. Barack Obama’s website looks like a well-designed myspace site, and is perhaps a bit over-friendly in its design (large, smoothed icons, etc.) which may be the point. I guess John Edwards is back in the mix of things now, thanks to being the victim of a name-calling over the weekend. His website loads slow – a cardinal sin for web marketers – but is very content-rich; I would suggest to Edwards’ campaign staff that all the video they’ve got requires a faster server than what’s being used now.

But Rudy’s website looks like it was hastily-thrown together at the last minute by someone who neither knows nor cares about such things. A good website probably won’t gain you any converts to your cause who have already committed to someone else. But it will gain you credibility with undecideds. It makes it look like you take the campaign seriously and you want to attract votes and tell people about yourself. Rudy’s website falls short of the competition’s. Surely there is more than one good picture of the man to use on the site, and surely there are pieces of news to announce other than the addition of this or that politico to the team (although that is important, it is also not something of much interest to the general public).

Moose versus Helicopter

Moose wins: read all about it!

Left Behind, Part II

The Wall Street Journal walked away from CPAC unhappy with any of the available GOP choices. The Journal also says Rudy’s second-place showing was a victory for him. I would have called it a second-place showing; anything but winning is a setback for the front-runner. But, InTrade’s futures markets are still banking on him more than McCain or Romney. So what does that tell you?

Will that be delivery, dine-in, or take-out, Mr. West?

Must be nice to be a big-time rapper and get $3,900 Indian take-out food for eight delivered to your NYC crib straight from the Indian Raj Restaurant in London. Sheesh -- talk about conspicuous consumption!

"Ick" Isn't A Good Enough Reason

This story from Germany is somewhat troubling. A man and a woman grew up in separate households, and as adults they met and fell in love. Twist is, they then found out that they are actually siblings; the man was taken away from his family when he was very young. They decided to continue their romantic relationship. German law won't let them get married because they are biologically siblings, but they've had four kids together.

Three of their children have been taken away by the state and two have some form of birth defects, although the doctors are unsure if the close genetic relationship is the cause of these problems. The Guardian reports that at least one of these "birth defects" seems to be epilepsy, which would not, to my knowledge, be directly related to the boy's parents being closely related to one another.

(CNN has a video interview of the couple, who are nice-enough looking young people. I haven't bothered to search for a link for you Loyal Readers this morning. If you're that interested, I'm sure Google can help you out.)

And don't think that because it's Germany, it's not an issue. Several States here in the U.S. have laws similar to the one in Germany that put this man in prison for two years. Tenn. Stat. § 39-15-302 renders the conduct that these consenting adults (he is 30, she is 26) a class C felony (Tennessee has class A through class E felonies; class A being murder and the like). Germany is not so different a country from the United States; if it happened there, it could happen here, too.

Also here in the U.S., the slippery-slope argument is being used to suggest that same-sex marriage should not be permitted: "If gays can marry, then what about brothers and sisters? Or brothers and brothers?" Some scholars who I admire very much suggest that while technically this is a logical fallacy, we should nevertheless give some weight to slippery-slope arguments of this nature because they do come true sometimes, and whether they have logical effect on the issue under debate, they also affect the debate itself.

Certainly, incest as practiced between an adult parent and a minor child would be of obvious and tremendous psychological harm to the child. But we already have laws against child molestation anyway. Perhaps it is appropriate to add to the punishment for such a crime in light of the fact that the parental relationship only compounds and magnifies the harm to the child resulting from such an act.

But even so, why are there laws against consensual adult incest? I've suggested in the past that such a thing seems like it would be exceedingly rare; in a healthy family relationship that sort of thing would normally be so far out of the question that it would occur to no one. But then I see a story like the one about this couple in Germany and it reminds me that when a society makes rules, it makes them for everyone, both the majority and the (in this case, probably tiny) minority.

So if there is a tiny minority of people who have the psychological makeup to have such a relationship, should the rules punish them for doing what everyone else takes for granted? After all, they don't feel like brother and sister; they weren't raised in the same household -- to them, the sibling relationship is an accident of genetics and nothing more. All they want, I'm sure, is to be left alone to live their lives in peace.

Germany's Constitutional Court is expected to rule on the case in April.

In the meantime (and afterwards) it's useful for us to consider why we have such laws ourselves. What purpose do these laws serve? Who are they hurting, aside from themselves; if they are hurting themselves, should society intervene? One thing I know for sure -- protecting the rest of us from having to contemplate the icky reality that some people choose to live their lives in ways that the rest of us would not choose to is not a good enough reason to send people to prison.

Results of CPAC Straw Poll

There is some encouragement for both Mitt Romney and Rudy Giuliani here. You can see the powerpoint slides yourself here; I have a few observations.

First, the attendees at this event were overwhelmingly college-age or just older than college-age, and two-thirds of them were men. Perhaps their youth is partly responsible for the enthusiatic reaction of some of them at Ann Coulter's slur. College-educated people should know better, of course, but perhaps some life experience will do them some good in this regard. (For her part, Coulter has a higher bar of explanation than "immaturity." But that was the previous thread.)

Second, a majority of these young party activists identified "reducing the size of government" as their primary goal of political activism, rather than "promoting traditional values." Fewer than one in five opted for national security as their top political priority. Wither then the leaders of the GOP who have been agitating for so long against the Islamofascist threat, or even the leaders of the social values cadre of conservatives? A libertarian slant appears to be a different angle to "excite the base," an angle that has not been tried for at least eight years (indeed, if not twenty). But that part of the base is still there and hungry for attention.

Of course, just because the Reaganesque/libertarian ideal of reducing the scope of government is the top priority does not mean it is the only priority or that these three agenda items are necessarily incompatible with one another. So it's possible to read too much into classifying these people as "libertarian," "values," and "security" conservatives, because these are not mutually exclusive concerns. Nevertheless, this does seem to be a reasonable snapshot of the three policy priority groups that Republicans seem to have.

The Presidential preference is moderately in favor of Romney for the top spot, and moderately in favor of Giuliani when assimilating first and second choices. Romney beats Giuliani by one percentage point amongst "libertarian" conservatives; Brownback blows away both Romney and Giuliani amongst "values" conservatives; and Giuliani is convincingly but not decisively in the lead amongst "security" conservatives. McCain only polls competitive numbers amongst the "security" conservatives.

It is probably inevitable that a candidate with as centrist a set of values as Giuliani would not top out the list at a function like this. Young, probably strident, idealistic college students are more likely to express a preference for a Brownback or a Tancredo than regular voters, whose taste runs closer to the mainstream. That Rudy did as well as he does in a tough room like this speaks well of either his charisma or his momentum (or both). And, the amalgam of first and second choice candidates favors Giuliani, paralleling a similar straw poll taken in 2000 which predicted Bush as the party's nominee.

Overall, the data depicts a young group of activists who seem to think their party is lost in the woods, and they are looking to right the ship's course by going back to basics. That is probably why most of them prefer "Reagan Republicans" to "George W. Bush Republicans." There is some concern about the war but hints of confidence in its successful eventual outcome; there is much more concern about the bloat of government representing a betrayal of conservative principles.

Activists' support counts for a lot, but we'll know what really counts in about four weeks, when FEC campaign donation reports are due. The big mystery is how much money Romney and Giuliani can raise. If Romney can't stay in the same league as Rudy, that's going to weigh heavily on other donors' minds.

Get Out, Ann. Right Now.

I would prefer to treat Ann Coulter's role in the contemporary Republican party the way I would treat a sunburn on my ass -- ignore it and hope it goes away. But sometimes you need to speak out on things. Things like this.



This bit of sunburn I can't ignore. No responsible Republican should. The number of things wrong with Coulter's statement are legion.

Get out, Ann. Get out of my party. Get out of my movement. There ought to be no place for you or bigots like you or this kind of statement at the annual premier political event of the conservative movement.

For those Republicans (or conservatives, if you prefer) at the conference who applauded and laughed: shame on you. Shame on you for approving of that. Even if you are not ashamed of being bigots, you should be ashamed to be such fools as to to hand our adversaries so much ammunition.

To Mitt Romney: you want to be President? Then you have no choice but to retract your introductory remarks of Coulter and condemn her instead, and do it fast. Do it today. Certainly do it before you leave CPAC tomorrow. The Democrats will not forget this and they will use it against you in the general election.

To the rest of the world: please forgive the rest of us. We're not like that. That's not what we're all about. We're about limited government, lower taxes, balanced budgets, having the government treat everyone the same, a strong defense, and the fair administration of justice. Ann Coulter is a diseased wart in the armpit of the body politic and she needs to be rejected by the marketplace.

UPDATE (March 4, 2007): Every Democrat in the universe was quick to pounce on the remark, and John Edwards is using the event to raise "Coulter Cash" for his campaign. All three major Republican candidates (Giuliani, McCain, and Romney) have condemned the remark, demonstrating that they are grownups. Coulter cannot make the same claim; she apparently sent an e-mail to the New York Times that said "C'mon, it was a joke. I would never insult gays by suggesting that they are like John Edwards. That would be mean." Something is clearly very wrong with this person and she needs to go away. Here's how it happens: Quit buying her books!

End Swiss Imperialism Now!

You just can't trust the ever-expanding Swiss Confederacy. If this is how they treat their tiny, unarmed neighbor, just imagine what they'll do Luxembourg! Prepare to defend yourselves, San Marino, you may be next!

A Desperate Smear

Mitt “4% behind a guy who isn’t even running” Romney today said of Rudy Giuliani, “He is pro-choice, he is pro-gay marriage, and anti-gun,” which is about one-third correct. This is a desperate ploy for support amongst social conservatives, but most conservatives, I expect, will prove smarter than this and Romney would be well-advised to back off from the comment.

1. Yes, Rudy is pro-choice. Recently, he’s tempered that with support for bans on partial-birth abortions and support for parental notification laws, as well as promising to appoint “strict constructionists” to the Supreme Court. So far, there is no indication he intends to temper that position any further. I suspect Rudy’s position on the issue overall rather closely mirrors the plurality opinion of the country. This seems to be a winning plank for the ticket’s platform. Romney is more right than wrong about Rudy being pro-choice, but he’s also a very recent newcomer to the pro-life cause himself, whose sincerity of belief is very much to be doubted. (Note: If he were really a die-hard pro-lifer with the zeal of a sincere recent convert, Romney would have called Rudy “anti-life” and not “pro-choice.”)

2. No, Rudy is not in favor of same-sex marriage; he is in favor of civil unions or domestic partnerships providing similar legal benefits as marriage. (Just like President Bush.) This position is more than palatable to thoughtful conservatives, even those who oppose same-sex-marriage. I am not among that number, being in favor of removing gender restrictions on marriage altogether. But Rudy’s position is acceptable to me, too, since semantics aren’t as important to me on this point as substantive legal rights. Seems to me that it is also a nice not-quite-all-the-loaf position that has some play with America as a whole – gays are hardly popular, but most Americans generally have a “live and let live” attitude about them, even in very conservative places I’ve been like Knoxville and Palmdale. So while restriction of the use of the word marriage doesn’t make sense to me (I say we should call it what it is), it does matter to a lot of people, and Rudy’s position is congruent with that concern. So Romney is just wrong here.

3. No, Rudy is not anti-gun, although he does favor mandatory licensing for gun ownership. In 2000, he spoke about the Second Amendment and New York’s gun control laws: “I do not think the government should cut off the right to bear arms. My position for many years has been that just as a motorist must have a license, a gun owner should be required to have one as well. Anyone wanting to own a gun should have to pass a written exam that shows that they know how to use a gun, that they’re intelligent enough and responsible enough to handle a gun.” This position, like the other two, strikes pretty close to the way most Americans feel. Again, it’s not a perfect mirror of my own position (you should be able to own guns until you demonstrate that you can’t be trusted with them) but it’s an acceptable one, and I certainly don’t think being in favor of licensing is being opposed to guns. Romney is more wrong than right on this point.

I guess Governor Romney is not happy with polling in fourth place among the die-hard, no doubt heavily Baptist, conservatives of South Carolina. The McCain campaign is apparently shopping anti-Giuliani smear material, too – yet Giuliani remains the GOP front-runner despite all of these early attacks focused on him and McCain, the only major candidate with good conservative policy credentials, remains a non-starter with the right wing. Perhaps that’s because these hard-core conservatives realize that they’re better off with a Republican in the White House than a Democrat. At least then, they’ll have a seat at the table. So they see that Rudy’s the only Republican running who has a credible shot of winning the election now that even died-in-the-wool Republicans recognize that the Bush Administration has chained a bloody albatross slightly larger than the state of California to our necks.