Law

More populism

2 February 2010

For the most part, the law has evolved to produce common sense results in the majority of cases. But two weeks ago, the U.S. Supreme Court missed the common sense mark by about as much as it possibly could in ruling that corporations and other organizations can spend unlimited amounts of money on elections. Forget for a second the mental stretch involved in equating a greenback with free speech. This result is based on a second, even more absurd, thesis.

There is a standard legal fiction applied in a wide variety of situations: A corporation is the same as a person. We, for instance, wouldn’t want to give people free license to steal from a corporation, but say it’s not a crime because the theft didn’t harm a person. By the same token, we wouldn’t want to allow negligent acts that harm corporations to go uncompensated; otherwise, no one would bother to establish them.

Having said that, the blind application of a basic principle to a different concept is absurd. All of us know that a corporation really isn’t a person, and saying it is doesn’t make it so. And we don’t want to call a corporation of person if it’s going to interfere with free and fair elections.

The smokeless gun

30 November 2009

The Associated Press finally tells us why a federal grand jury will be hearing testimony in the Marshall University – Emily Perdue matter. John Perdue told officials he was the State Treasurer, and Robin Perdue told them she was director of the State Grievance Board.

The most telling quotation: “My contention has never been that the student did not do the work to earn the grade,” Wyant said. “The problem for me has always been the way it was handled, and the fact that right from the beginning I knew it was not right. Other students do not get that kind of attention.”

Emily Perdue did the work, but it’s a crime because she was given special treatment? By special treatment, I assume we’re talking about an expedited path for completing coursework after Marshall University treated students in this program pretty shabbily as best I can tell? And just where is the quid pro quo – the thing that someone at Marshall University was promised in exchange for the favorable treatment? Again I ask why anyone would take a matter like this before a federal grand jury?

The libelous world of higher education blogging

11 November 2009

As someone once accused (behind my back and falsely) of anonymously posting libelous comments about someone on a blog, I have been following with particular interest the story of the Butler University undergraduate student who was sued by the school for publishing libelous and defamatory statements about administrators on a blog.

The blogger, “Soodo Nym,” was critical of administrators for dismissing his stepmother as chair of the University’s school of music. Among other things, he wrote that the dean of the College of Fine Arts was “power-hungry and afraid of his own shadow” and that he “lied” to faculty and left the meeting “embarrassed” for having done so. He also sent an email in which he said: “We can create much more trouble than we have so far,” which supposedly put Butler’s provost in fear for his own safety.

Several observations:

It never ceases to amaze me how thin-skinned some people who reach positions of power can be. If you are a leader, you should expect to be criticized, fairly or unfairly, from time to time. It goes with the territory.
If there’s any area that should be a “free speech” zone, it is a college campus. I would not want to attend any institution that sued its students for libel for criticizing, even unfairly, its administrators.
I would much rather have had my accuser publish his accusations on a blog, rather than behind my back, even if more people might see/hear them. At least you can refute the former.

Fair and balanced selection of West Virginia Supreme Court justices

24 September 2009

Yesterday I explained how I would select West Virginia judges. How about West Virginia justices?

The last thing I would want would be for the governor (not this governor, but rather governors generally) to have exclusive power to appoint justices. With only five justices on our highest court and the court’s stranglehold on appellate decisionmaking, West Virginia’s State Supreme Court could easily become dominated by a single governor’s appointments, and the governor could then end up controlling not one, but two, branches of state government. So much for the fundamental constitutional principle of separation of powers.

By the same token, I’m not keen on the election option either. The biggest problem: because the U.S. Supreme Court (wrongly in my opinion) equates obscene independent expenditure on elections with core First Amendment free speech rights, judicial seats – like all political seats for that matter – are vulnerable to being bought and paid for by rich lawyers and people like Don Blankenship who have a lot of money. A secondary problem: I want my justices performing judicial business, not running around the state giving political speeches and eating pinto beans at gatherings of party faithful.

If I had my choice, the lower level judges selected to serve by lottery (described in my previous post) would select one of their own from time to time to continue judicial service as a state supreme court justice for a six year, non-renewable term.

Fair and balanced selection of West Virginia judges

23 September 2009

I note that How Appealing, a widely read blog in elite legal circles, is carrying news of both former U.S. Supreme Court Justice Sandra Day O’Connor’s visit to West Virginia and her advice to West Virginia to stop electing judges. Thanks to Hugh Caperton, Don Blankenship and Brent Benjamin and their United States Supreme Court case,West Virginia’s Independent Commission on Judicial Reform has an audience far beyond West Virginia’s borders.

Is Justice O’Connor right? I think so, as long as we develop a system to replace popular election that is likely to produce the legal profession’s best and brightest and most fair and balanced as state judges. I really don’t want my judge working the political pinto bean dinner circuit, nor feeling pressure to impose the popular criminal sentence.

Should the Governor be able to appoint judges, possibly with the advice and consent of the Senate? If that’s the only process, I don’t think so. Otherwise, we may do little more than place political partisans in positions of judicial power.

Should lawyers play a role in the selection of judges? Yes, but …. The people most likely to know whether an individual demonstrates the characteristics necessary to be a good judge are lawyers who interact with him or her regularly. By the same token, lawyers often do not appreciate larger policy issues nor do they always act honorably.

What would I do?

I would solicit applications from all lawyers interested in being judges. They would submit character references and writing samples.
I would have a committee made up primarily of non-lawyers review the applicants’ qualifications and designate anywhere from 20% to 25% as the most highly qualified.
I then would hold a lottery to select the judge, who would serve for six years. Once he or she served six years, he or she would not be eligible to serve as a judge again.
Judicial seats would be filled on a rotating basis so more veteran judges could mentor newer judges.

It’s one thing to say that there’s got to be a better system of selecting judges than popular election. It’s another thing to come up with a truly better system given the vicissitudes of politics, money and self-interest.

More populism

The smokeless gun

The libelous world of higher education blogging

Fair and balanced selection of West Virginia Supreme Court justices

Fair and balanced selection of West Virginia judges

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