Thursday, February 28, 2008
Monday, February 25, 2008
"Creating" or "declaring" rights
Perhaps it is not enough to gladden the hearts of true “originalists,” but a clear majority of the Supreme Court has newly acknowledged that, when it comes to constitutional rights, they always existed and did not just emerge out of modern judicial creativity. That concept, most closely identified with the jurisprudence of Justice Antonin Scalia, is a basic rationale behind Wednesday’s 7-2 decision in Danforth v. Minnesota (06-8273) — a decision described in this earlier post.
To Justice Scalia (as he wrote 18 years ago), any notion that the Court creates the law — including a right — as opposed simply to declaring “what the law already is,” runs counter to judicial power as the Constitution defines it. The only thing that can justify judicial review, including the authority to strike down laws passed by “duly elected legislatures,” Scalia said then, is the view that the Supreme Court merely finds that something is already embedded in the Constitution. It is, for him, a variant of the originalist persuasion — that is, according to him, the view that “the Constitution does not change from year to year….To hold that a government act to be unconstitutional is not to announce that we forbid it, but that the Constitution forbids it.”
Justice John Paul Stevens, who wrote the Danforth ruling, is not known as a devotee of the unchanging Constitution. But his opinion on Wednesday quotes approvingly from Scalia’s past remarks and comments that, when the Court announces a new rule of criminal procedure, protecting a right, it is not announcing a rule “of our own devising.” He adds that “the source of a ‘new rule’ is the Constitution itself, not any judicial power to create new rules of law. Accordingly, the underlying right necessarily pre-exists our articulation of the new rule.” The language varies somewhat from Scalia’s, but the core concept is the same.
What makes this approach palatable to Justice Stevens (and the Court’s other liberal members, who joined his Danforth opinion) is that it fits well with a long-term project that Stevens has pursued. That is to draw a clear line of separation between a “right” and a “remedy” for a violation of that right. It is the business of the Supreme Court to say what rights are in the Constitution — that is, to say when a constitutional violation has occurred – but others may share in the task of implementing that right with remedies, according to Stevens’ view. This flexibility at the remedy stage enables a more creative, and perhaps even more expansive, view of how to fix the constitutional violation.
This is precisely the project that was at work in the Danforth decision. When the Court declares that a right exists for those accused or convicted of crime, and that right is asserted in a state criminal case, the states remain free to “remedy wrongful state convictions” — in this case, the states are allowed to decide for themselves whether to apply the right to earlier cases, even though the Supreme Court has ruled it would not apply to earlier federal cases. If, as in this case, the declared right (a variant of the right to confront one’s accusers) is one that the Court has refused to apply retroactively, Stevens wrote, “does not imply that there was no right and thus no violation of that right at the time of the trial — only that no remedy will be provided in federal habeas courts.” A state that now decides that it would make that right retroactive is not defying some binding federal law, Stevens said, but is only following its own law on retroactivity principles.
The rationale of the Stevens opinion for the Court is more consequential than the actual result. As Stevens pointed out, the majority of the states already feel free to give broader effect to Supreme Court declarations of criminal law rights than the Justices have done, and only three states take the contrary view — that is, that they must deny retroactivity if the Supreme Court has done so.
One thing not said in the Stevens opinion — and the omission is noted by dissenting Chief Justice John G. Roberts, Jr. — is whether Stevens would now permit a state, with its new-found control over retroactivity doctrine and remedies, to actually use it in the opposite way: that is, could it refuse to make a new criminal law right retroactive if, in federal cases, the Supreme Court did make it retroactive? Stevens said in a footnote that that was not at issue, and so the Court said nothing about it.
Nevertheless, it is not clear that that is a real issue. The Court has not found a new criminal law right to be retroactive in federal cases and, indeed, regularly refuses to do so, and thus no state is likely to be faced with the choice that the Chief Justice posited. But, even assuming that the Court did make retroactive some newly declared criminal law right, it does not necessarily follow as a logical matter that the Stevens majority, if faced with a state’s refusal to go along in state cases, would permit it to limit an inmate’s right to claim the new right in a habeas challenge. After all, making a new criminal rule apply in federal habeas would mean that, when state inmates pursued a habeas challenge by invoking the new right and its retroactivity, they could benefit from the right and the remedy the Supreme Court itself devised: retroactivity.
Sunday, February 24, 2008
SNL opened up with their take on the American press' love affair with Barack Obama. It took place in the context of a Democratic debate. In addressing the press' one sided coverage of the campaign, totally ignoring any attempts to report the news neutrally, Obama had only these words for the journalists, "Yes, we can. Yes, we can take sides." At which, it appeared one of the female moderators swooned and had hot flashes. Pretty good SNL.
SNL then took up Hillary Clinton w/ Tina Fey bringing America the "Women's News" on Weekend Update. Opening up with a take on Lindsey Lohan looking old, Fey quickly moved on to a defense of Hillary Clinton. Among other things, Fey stated that it's OK for a woman to be a bitch. "I'm a bitch... Bitches get things done," commented Fey. At which point Fey exclaimed it wasn't too late for Texas and Ohio to get "on board," cause "Bitch is the new black." And yes, New York Times blog writer, I'm pretty sure that was Tina Fey's endorsement of Hillary Clinton.
And lastly, though not quite as pointed as Obama and Clinton, SNL actually DID feature Mike Huckabee who, still refuses to "exit with class and dignity." Enjoy:
Wednesday, February 20, 2008
Tuesday, February 19, 2008
A few days ago I was in a London taxicab when I noticed a possibly expensive purse in the seat next to me. I climbed out of the cab and without much thought (shame on me) gave it to the driver. I explained someone had left it there. Of course I was intent on treating the driver like a decent human being. But wait, I know I am honest and maybe he isn't. But wait, maybe I couldn't have gotten the purse to the woman very easily. But wait, I could have posted notice on this blog and had you help me track her down. But wait, isn't it my obligation to simply leave the woman no worse off than she was in the first place? But wait, what is the default point for defining "in the first place"? But wait, what would the driver have thought if he saw me taking the purse out of his cab? But wait, isn't a purse really really important? But wait, what if the purse belonged to the driver?
Thursday, February 14, 2008
Wednesday, February 13, 2008
Saturday, February 9, 2008
Friday, February 8, 2008
Apparently, my home-state's legislature has a few members who have gone off the deep end.
Bill would limit smoking in cars carrying children.
I have no clue as to how these lawmakers would propose adequate enforcement of such a thing. Let's start with measurable limits of harmful material. Was this experiment conducted in a car that had its windows rolled up? Could the potential harm be significantly diminished if the car had been moving and its windows were rolled down?
Next, how would an officer punish this? Is it something an officer could pull someone over for if s/he happened to spot a smoking driver go by with a child seat in the back, regardless of whether or not s/he saw a child in that child seat? If, during the progress of a vehicle stop for something unrelated, could the smell of cigarette smoke coming from the car be enough to issue a citation?
Finally, Rep. Schual-Burke has a classic quote at the end of the article. Try reconciling her two sentences. 1) The government isn't telling you can you can't smoke in the privacy of your own car. 2) "We're saying...don't do it when they [the children." Sure sure.
In conclusion, I'd expect this sort of silly taking-things-too-far approach from somewhere like Berkeley, but not my beloved Washington.
Thursday, February 7, 2008
Granted I've only been around long enough to pay attention to the past few presidential election cycles, but I cannot remember anything in the '96, '00, or '04 campaigns that galvanized so many people with a positive attitude and seemingly genuine faith in a candidate, not any candidate that had a shot of winning at least.
It often goes unstated how important "gut feelings" are when it comes to selecting a candidate. Politicians are like professional athletes in the sense that they have a certain script they need to follow when addressing the public. (i.e.: "Just got to take things one game at a time" = "I will work hard to get bi-partisan legislation through") And whether it is right or fair, the presentation of that script can be decisive in a candidate's appeal. Gore was a robot in both appearance and presentation, Kerry was ghoulish and uninspiring.
Now we come this year's Democratic field. Before Johnny Edwards bowed out, he had a strong appeal along the fighting-against-big-corporations-for-the-common-man element, which plays well among the young and angry, the downtrodden, or members of student groups that "jokingly" get referred to as "Stalinists" by their classmates.
Ms. Clinton? Well, perhaps I'm bias, but I'd rather watch paint dry. If I was at one of her speaking engagements, I'd probably feel like Bill Murray in Caddyshack, "Hey Lama, how about a little something, you know, for the effort?" I know they're canned lines, but infusing a little passion into your speech wouldn't turn me off. I've seen bar stools with more stage presence.
That brings us to Mr. Obama. I don't think much needs to be said on his behalf.
And the original speech:
I was first introduced to Alvin Lau through this poem, "Asia America, Where Have You Gone?," and it really sent a shiver down my spine. He asked, in sum, "Now that the Asian American community is here in America, where are we going? How will we define ourselves in the future?" With his poem, Lau eloquently attempts to jump start the dialogue in the hope that others in the community will respond. For me, it raised many questions and concepts about "identity" that are often talked about, but never fully fleshed out. What particularly caught my attention was that Lau managed to do express this sense of "vagueness" in the community so articulately, in a manner I had never seen from an Asian American. It was simply powerful.
Now, I realize that not all of our readers are Asian American, so I don't expect all of what I've said to apply to all of you. Regardless, it's still, flat out, a great poem. So whoever you are, hopefully you'll be able to enjoy the merits of the poem in your own way. Happy New Year!
Monday, February 4, 2008
HILLARY CLINTON (16 total):
Mike Thompson (District 1, St. Helena); Doris Matsui (#5, Sacramento); Lynn Woolsey (#6, Petaluma); Ellen Tausher (#10, Alamo); Tom Lantos (#12, Burlingame); Dennis Cardoza (#18, Atwater); Brad Sherman (#27, Sherman Oaks); Hilda Solis (#32, El Monte); Diane Watson (#33, Los Angeles); Lucille Roybal-Allard (#34, East Los Angeles); Maxine Waters (#35, Los Angeles); Jane Harman (#36, Venice); Laura Richardson (#37, Long Beach); Grace Napolitano (#38, Norwalk); Joe Baca (#43), Rialto); Loretta Sanchez (#47, Garden Grove).
BARACK OBAMA (7 total):
George Miller (District 7, Martinez); Barbara Lee (#9, Oakland); Anna Eshoo (#14, Menlo Park); Zoe Lofgren (#16, San Jose); Adam Schiff (#29, Burbank); Xavier Becerra (#31, Los Angeles); Linda Sanchez (#39, Lakewood).
UNDECLARED (11 total):
Nancy Pelosi (District 8, San Francisco); Jerry McNerney (#11, Pleasanton); Pete Stark (#13, Fremont); Mike Honda, (#15, San Jose); Sam Farr* (#17, Carmel); Jim Costa (#20, Fresno); Lois Capps (#23, Santa Barbara); Howard Berman (#28, Valley Village); Henry Waxman (#30, Los Angeles); Bob Filner (#51, Chula Vista); Susan Davis (#53, San Diego).
* Had supported Chris Dodd, who ended his candidacy after a poor showing in Iowa.
MIKE HUCKABEE (1 total):
Duncan Hunter (District 52, Alpine).
JOHN MCCAIN (2 total):
Dan Lungren (District 3, Gold River); Darrell Issa (#49, Vista).
MITT ROMNEY (5 total):
Wally Herger (District 2, Chico); Buck McKeon (#25, Santa Clarita); Dana Rohrabacher (#46, Huntington Beach); John Campbell (#48, Irvine); Brian Bilbray (#50, Carlsbad).
UNDECLARED (11 total):
John Doolittle (District 4, Roseville); George Radanovich** (#19, Mariposa); Devin Nunes** (#21, Visalia); Kevin McCarthy (#22, Bakersfield); Elton Gallegly (#24, Simi Valley); David Dreier** (#26, San Dimas); Ed Royce** (#40, Fullerton); Jerry Lewis** (#41, Redlands); Gary Miller (#42, Diamond Bar); Ken Calvert** (#44, Corona); Mary Bono** (#45, Palm Springs).
** Had supported Rudy Giuliani, who ended his candidacy after a poor showing in Florida.
The Iowa Electronic Markets are the granddaddy of political futures markets. A "futures market" is "an auction market in which participants buy and sell commodity/future contracts for delivery on a specified future date. Trading is carried on through open yelling and hand signals in a trading pit." For the IEM, trades are done electronically instead of in a live pit. The commodity for sale are the political candidates. And the market is the race for the democratic nomination.
For IEM, the future's market is "winner take all." So, if you bet the winning candidate, you win $1 per share (you can't purchase a share for over $1 as, logically, it would make the investment an automatic loser). If you lose, you get nothing. So, if some one were to purchase a share of John Edwards for $0.10, and Edwards to end up the nominee, they would get $1.00, thus netting a handsome $.90 per share. If you had bet against Edwards, no matter what you originally bet, you wouldn't get nothing, thus losing your entire investment.
The IEM is an important tool at measuring the nominee race because it is fairly accurate at predicting outcomes. Slate.com has a pretty good explanation, but the general idea is also described by Russ Ray, Ph. D., of Risk Management magazine. He explains that "predication markets are able to flush out information that otherwise would not be available. Individuals around the world have different tidbits of inside information, and they know that using such information can enable them to earn a profit. Prediction markets are able to quickly and and successfully aggregate such information as no other mechanism can.
Through out the course of the next few months, Citizen Kendrick will be giving you updates not only on the democratic nominee markets, but eventually the presidential markets. So, stay tuned, and happy trading!
Sunday, February 3, 2008
Here is the most recent Iowa Electronic Market graph for the 2008 democratic nominee. For a closer look at the numbers, you can go here. For the most part, it can clearly be seen that Clinton has, far and away, been the run away favorite. This all changed very suddenly come January and the Iowa primary, which Obama won handily. After that, investors overreacted and had an abrupt swing. And then just as abruptly, swung back the other way around to stabilize and favor Hillary again.
As we creep towards Super Tuesday, the charts clearly show Obama is gaining ground. Curiously enough, it appears Clinton still has a significant advantage, one that is must more pronounced than the polls. While the polls show Hillary and Obama in a virtual dead heat, the market shows a more favorable gap for Hillary.
Indeed, Obama has been making strides in the market, but, coming into Super Tuesday, those strides have been very volatile. It likely means the market is unsure about Obama, and aren't quite ready to commit, so are defaulting on Hillary until Obama can prove otherwise. Most likely, this decision will happen after Super Tuesday.
Given this uncertainty, however, it still doesn't explain why Hillary is still so favored over Obama. If polls believe the race is tight, why don't investors bet on Obama since he seems to have as equal chance of winning the nomination as Hillary? It seems reasonable to believe that if people think the outcome could go either way, then investors would plan for this. It seems natural that an equal number of investors would bet on Hillary and Obama. If anything, they might at least bet on Hillary, but hedge with Obama, thus, at least driving Obama's stock higher and Hillary's stock lower.
This is further confusing as investor's were already burned with Obama's win in Iowa, so here one would think they would give Obama more credit and bet more conservatively, evening out the two candidates. One explanation is that in Iowa, Obama took the nation, and thusly the market, by surprise. As markets hate uncertainty, they acted somewhat irrationally, and violently drove up Obama's stock at the expense of Hillary, only to later reverse themselves. The situation here is very different. Obama is already a known commodity, so investors know the odds. Yet still, they refuse to put faith in him. This indicates that despite what the polls and the press say, the 56,388 traders on the IEM seem to think they both have it wrong (meaning the market is correct). That in fact the race is close, but not as close as pundits would lead the public to believe. Of course, it's entirely possible the two prices will move closer together all the way until Tuesday. If this is the case however, why don't investors stake out their positions earlier? Well, whatever the reason, I'm sure this will all be figured out on Tuesday.
If you want to know who the ACS is endorsing, highlight the blank area below to reveal the endorsement:
USF ACS endorses the World Champion New York Giants in 2008!
Well, he finally did it. USF Men's BBall coach, Eddie Sutton, accomplished what he came to USF to do: win his 800th game. And he did in in style against the terribly awful Pepperdine Waves (7-15 overall, 1-5 conference). Not that the Dons are much better (they had to battle back from a 19 pt. half time deficit). This win brings their season to a 6-15 overall, 2-4 in conference. Indeed, this is truly an accomplishment. I doubt we'll see many other college basketball coaches reach this milestone. He's quite a ways, however, from the top of the list. Texas Tech coach, Bob Knight is atop that heap with a record of 902-371.
As much as I'd like to celebrate, the Dons need a plan to start rebuilding their basketball program. Sutton has already indicated he will not stay for next year, that all he came here to do was to get win 800 and then get out. With that being said, USF athletic director, Debra Gore-Mann, has a huge roll to fill in order to jump start our mediocre mens basketball program. Well, such as it is, congratulations Coach Sutton! Enjoy it. And win us some more games! Go Dons!