Saturday, March 29, 2008 - Posts
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David asks an interesting question (which I overlooked before--apologies):
But the plain fact is that the President could have sought an injunction. And the simple fact is that our elected president did not seek an injunction in this case. So the reason no judge weighed in here on whether this should have been published is that no president asked a judge to do so. So, on Eric's own reasoning, the truly irresponsible actor here is none other than President Bush, right? So why take on Mr. Lichtblau?
There is a funny notion embedded in this question that I have to choose between Bush and Lichtblau, that if I criticize Lichtblau, I must be defending Bush. However, the question is a good one. And the answer is probably not, or not just, that courts are extremely reluctant to enjoin media from publishing stories, so such an effort would have been futile and politically embarrassing. The most plausible answer is that The Times gave Bush no choice. In Lichtblau's words:
Th[e] decision was helped along by a chance conversation I had soon after our White House meeting. The administration, I was told, had considered seeking a Pentagon Papers-type injunction to block publication of the story. The tidbit was a bombshell. Few episodes in the history of the Times-or, for that matter, in all of journalism-had left as indelible a mark as the courtroom battle over the Pentagon Papers, and now we were learning that the Bush White House had dusted off a Nixon-era relic to consider coming after us again. The editors in New York had already decided they would probably print the story in the newspaper for that Friday, Dec. 16, 2005, but when word of the Pentagon Papers tip reached them, they decided they would also post it on the Internet the night before. That wasn't routinely done at that time on "exclusive" stories because we would risk losing the scoop to our competitors, but the editors felt it was worth the risk. The administration might be able to stop the presses with an injunction, but they couldn't stop the Internet.
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For your latest entry in the seemingly non-stop barrage of fawning Barack Obama major-media coverage, look no further than Newsweek's latest cover, which offers "When Barry Became Barack."
All very interesting, I suppose. But while Newsweek's on the subject, I'd be interested to learn about "Baruch Obama." That's the version that Eleanor Kerlow repeatedly used in Poisoned Ivy, her 1994 review of Harvard Law School's troubled late-1980s, early-1990s days.
Perhaps one of my Convictions colleagues -- or one of our readers -- can clear this up for me: Did Barack actually go by "Baruch" at some point in time? If so, why did he change it to "Barack"? The Newsweek piece never mentions "Baruch."
I suspect that, in fact, he never used the name "Baruch," and that Kerlow made a mistake. (In the 1990 volume of the Harvard Law Review, for example, he's listed as "Barack Obama.") Then again, I've long thought that Kerlow's entire book was a mistake.
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AP reports that in a recent speech Justice Scalia criticized press reporting on the Supreme Court:
Scalia said news organizations often fail to focus on the text of the laws the court interprets, citing accounts of last month's 8-1 decision that made it harder for consumers to sue makers of federally approved medical devices.
He singled out for criticism a New York Times editorial on the case headlined "No Recourse for the Injured."
The media often make it appear as though the court is reaching policy judgments on its own rather than basing its decisions on the text of the law at issue in a case, Scalia said.
The decision in question is Riegel v. Medtronic. I looked at the stories in the New York Times, the Washington Post, and the L.A. Times. The N.Y. Times and Post stories say accurately that the Court held against the plaintiff because it found that a 1976 federal law preempted state common-law tort claims. The Post quotes a professor who says that the court engaged in a "narrow, textual interpretation" of a federal statute. Neither of the stories says that the Court decided on policy grounds that federal regulation is superior to state regulation, though both gave a flavor of the political background of the rulings (accurately, I think).
The L.A. Times story is fully consistent with Scalia's charge. It's dreadful. It says nothing about the law except: "the court read federal law broadly to protect companies from juries and state regulators." The reporter provides no evidence that this is true.
However, the NYT editorial is not as bad as Scalia says. Although certainly not a model of careful legal analysis, it correctly says: "The court's decision hinged on whether the Medical Device Amendments of 1976 - which gave the F.D.A. the prime responsibility for regulating medical devices - pre-empted the right of injured patients to sue for damages in state courts."
The offending language seems to be:
The court's majority opinion, written by Justice Antonin Scalia, stressed that intricate medical devices go through a rigorous assessment process in which F.D.A. experts balance their potential risks and benefits while a lay jury simply looks at the possible damage done to a patient by a device and is not concerned with its benefits to other patients.
Justice Scalia's faith in the F.D.A. far outstrips our own. The supposedly expert and rigorous reviewers at the F.D.A. are hardly infallible. They may approve marketing of a device based on questionable evidence and they are notoriously derelict about removing dangerous products once they are on the market.
This does sound as though the Times is accusing Scalia of making a policy judgment, namely, that national regulation by the FDA is superior to state common law regulation, and one can understand Scalia's irritation -- how does the Times know that Scalia has "faith" in the FDA (I suspect that, in fact, he doesn't have much faith in the FDA)? Scalia would reply that preemption is plain on the face of the text.
But how one reads the text of a statute depends on what one thinks Congress was trying to accomplish, and it is hard for an interpreter to avoid assuming that Congress was trying to implement good policy unless the statute plainly contradicts that assumption. This type of thinking is ubiquitous in judicial decisions, and, in my view, it can be found in the majority opinion in Medtronic as well, as Justice Steven notes in his separate opinion:
There is nothing in the preenactment history of the MDA suggesting that Congress thought state tort remedies had impeded the development of medical devices. Nor is there any evidence at all to suggest that Congress decided that the cost of injuries from Food and Drug Administration-approved medical devices was outweighed "by solicitude for those who would suffer without new medical devices if juries were allowed to apply the tort law of 50 States to all innovations." Ante, at 13 (opinion of the Court). That is a policy argument advanced by the Court, not by Congress.
Can the Times editorial be blamed for echoing the judgment of Scalia's colleague?
See Dan Slater's post for more.
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As Jack has recently observed,
apart from Katrina, the Iraq War and the conflict with al Qaeda, there
has hardly been a government challenge of greater enormity this decade
than the economic crisis we are now facing. Yet someone who is neither
elected nor politically accountable, Ben Bernanke, is making virtually
all of the nation's most momentous monetary decisions . . . and there
is little the President can do about it. (The President may not remove
members of the Board of the Federal Reserve except "for cause," 12
U.S.C. 242, which has long been understood to reflect congressional
intent that the President may not remove such officers merely because
of a substantive disagreement with their particular monetary
decisions.) What's more, virtually everyone in the Nation now accepts
this as the Way Things Ought to Be and, truth be told, is grateful and
relieved that the President is not "the Decider" when it comes to the
fate of our economy.
And what does the Bush Administration have
to say about this profound threat to the "unitary executive"? After all, even with respect to the much-less-powerful Consumer Product Safety Commission, the Bush OLC (per John Yoo), wrote that a similar for-cause removal condition for CPSC Commissioners "could prove to be unconstitutional."
Well, on
Monday, the Administration's Department of Treasury will
"propose a far-reaching overhaul of the nation's financial regulatory
structure that would reshape the relationship between Wall Street and
Washington and redefine the responsibilities of some of the federal
government's most powerful agencies." In particular, and most
strikingly, the powers of the Federal Reserve would be dramatically expanded:
the Fed "would gain the power to investigate any aspect of financial
institutions that threatens the stability of the entire system,
gathering information and taking action to combat risks to the
financial system as a whole." In the words of one Treasury official,
the Fed "would act as a 'free safety,' . . . with broad but somewhat
undefined powers to roam the entire playing field of Wall Street's
activities."
Needless to say, the Administration has not -- thus far -- added that tis bold new proposal "could prove to be unconstitutional." The Blueprint for Monday's statutory proposal does not even mention the
apparent constitutional anomaly that these important functions would be
transferred away from the control of the elected President and other
politically accountable officials.
* * * *
As Jack wrote:
Within
the halls of the Bush Administration, nobody seems to be thumping the
pulpit, arguing about the framers and demanding the sacred prerogatives
of the Unitary Executive. Messrs. Cheney and Addington are nowhere to
be heard from defending the President's powers to take responsibility
for the money supply and for the financial crisis we are now in.
President Bush doesn't want the buck to stop in his office. He likes
the dictatorship of the Fed just fine.
Continue reading at Balkinization . . .
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