So former Solicitor General and current Harvard Law School Professor tells us that the federal government could, if it were of a mind to, issue a mandate requiring Americans to buy vegetables, and that such a mandate would pass Constitutional muster (thankfully, the good Professor tells us that they couldn’t actually force us to EAT those vegetables once we’ve bought them. Don’t you feel better now?) Now, Charles Fried is a smart guy. Clearly much smarter than me, because it seems to me that what he’s selling here is just so much nonsense. If the feds can force us to buy vegetables, what can’t they force us to buy? Mets tickets? If Professor Fried’s views are generally representative of what they’re teaching in Con Law at Harvard, there’s little mystery about the sorry state of the legal academy.

In an interesting recent piece in Slate, Dahlia Lithwick and Sonja West (a former clerk to retired Supreme Court Justice John Paul Stevens) explore the question of whether and when sitting and retired judges should be free to express their personal opinions on public issues. Lithwick and West conclude that, with respect to sitting judges (or justices), silence is the better option – that the perceived fairness of the system is better served if judges don’t speak out on matters of public concern, especially issues that might end up being resolved by the courts. They argue that retired judges, however, ought to be free to speak their mind as they see fit, since “they’ve earned” the right to do so. Lithwick does better on these questions than she ordinarily does – she got it half right.

Lithwick’s concern with respect to sitting judges speaking out seems to be based upon the premise that when judges express opinions publicly on issues of public concern, people will come to believe that the judge has pre-judges an issue that either has or might come before him, thereby eroding confidence in the fairness of the system. But when, say, Justice Stevens runs around deriding recent Supreme Court decisions, including decisions issued while he was still on the Court (but in dissent, as in Bush v. Gore), isn’t the potential for damage to the system the same? Don’t such criticisms from retired justices similarly risk eroding confidence in the system?  It is, of course, interesting to note that those whom Lithwick claims have “eaned” the right to speak out happen to be expressing opinions with which she herself likely agrees. But of course I am not so cynical as to suggest that Lithwick’s views on judges’ free speech rights depend upon whether or not they agree with her personal agenda or not.

The bottom line is that judges, and Supreme Court justices, are humans and, as lawyers, in all likelihood very opinionated humans. They have their beliefs, preferences and ideas. Many of the opinions that they hold in private likely relate to issues that have arisen in cases that have come before them, or that might some day come before them. If we are concerned that a particular individual won’t be able to set aside those opinions and beliefs and decide cases based upon the relevant facts and law, then they ought not be put on the bench in the first place. If we are confident, on the other hand, that they have that ability, then there’s nothing to worry about. And whether the judge or justice in question decides to speak out publicly on an issue doesn’t affect the calculus at all. In fact, if anything, recognizing judges’ unfettered free speech rights makes it easier for us to determine how able they are to be impartial.

That’s the title, minus the question mark, of a new website launched by the Texas Public Policy Foundation. The site bills itself as “the sone-stop source for conservative ideas on criminal justice.” As a conservative, and as a lawyer involved in the representation of criminal defendants, I will confess to a little confusion over what these folks – contributors include such as Newt Gingrich, Ed Meese and Grover Norquist – hope to achieve. I mean, besides the preservation of the rights enshrined in the Constitution, what “ideas” do conservatives need on the subject of criminal justice? To the extent that they choose to focus on the increasing over-criminalization of ever increasing facets of our lives, and the persistence of prosecutors in pursuing cases against non-violent offenders for victimless crimes (see Roger Clemens, Barry Bonds & The D.C. Madam) then I am anxious to hear what the folks at “Right on Crime” can contribute to the discussion. To the extent, however, that they choose to pursue the well worn path of advocating for mandatory minimum sentences, rigid sentencing guidelines and longer sentences, then I fear that this venture will do neither the cause of true criminal justice reform, nor the conservative movement generally, a whole lot of good.

(Hat tip to Scott Greenfield)

Evidently a New York state judge thinks that its ok to force 5 year old children to defend themselves against lawsuits. What a horrible, disgraceful idea. Any lawyer who files such a lawsuit – not to mention said lawyer’s client – should be ashamed of himself.

The federal government clearly doesn’t have enough important things to do, what with chasing down all the evil old baseball players who used steroids and hounding escort service owners to their deaths. This week brings the news that the feds intend to insert themselves into the process of school discipline. Its not sufficient, apparently, to have schoolyard bullies dealt with by the folks who have always done so – parents, teacher and school principals. Nope. Now we need to start threatening federal civil rights prosecutions and the like. This seems like an even better use of federal dollars and Justice Department resources as the not at all misguided federal prosecutions of Barry Bonds and Roger Clemens, and is clearly likely to yield as many results as the highly successful Enron Task Force. As Charlie Brown might say, good grief.

According to one of the British tabloids, looks like Lindsay Lohan will be released from jail soon, having likely served not more than 9 days of a 90 day sentence imposed last week for her for violations of the terms of the probation she was serving for various prior offenses, including charges for drunk driving and possession of cocaine. I know many will express outrage that the mediocre actress will serve so little time. Frankly, I am not particularly concerned. Whatever her prior offenses, Lohan didn’t kill anyone, she didn’t hurt anyone (except maybe herself). The girl doesn’t need to serve a lengthy jail sentence. She needs help. And the government needs to spend its resources pursuing real criminals who have committed real crimes. Guys like Roger Clemens.

During last night’s installment of celebrity apprentice, that’s what Sharon Osborne told Trump when he asked her why she was so emotional during the boardroom confrontation at the end of which Osborne was fired. It happens that the charity for which Osborne was playing was very personal to her, and thus her plea that it wasn’t just business to her. Setting aside the obvious – that all of the players on the NBC show are competing to benefit causes that are in some way important to them personally – Osborne hit on what is, or ought to be, a deeper truth for all of us who are engaged in serving clients or customers. Business SHOULD BE personal. We should identify with our clients’ needs as keenly as we do with our own. We should engage with them on a level where their success matters as much as our own, and where we feel it as sharply as they do when they fall short. As Tom Peters might say, its all about empathy. I don’t mean to suggest that you become so involved with your clients’ issues that you lose objectivity or the ability to provide clear headed analysis. But if you can’ empathize, and don’t understand where the customer is coming from, your advice or service will be at least somewhat lacking. We all should strive to make our clients needs as personal to us as Sharon has her charitable works.

On this weekend’s installment of C-SPAN’s “America and the Courts” Justice Antonin Scalia spoke to and took questions from a group of high school students from Virginia (you can view the program at this link for a limited period of time). I highly recommend that you take a look if you have any interest in the Supreme Court. 

http://abajournal.com/images/blawgs/covers/Neukom.jpgFormer Microsoft general counsel Bill Neukom has assumed the presidency of the American Bar Association. Might we hope that, under Mr. Neukom’s leadership, the ABA might perhaps be more attuned to the interests and needs of enterprise?

The New Jersey Law Journal reports that a New Jersey appellate court has held that attorneys cannot be held liable for malicious prosecution even when their client pursued the underlying litigation for an improper purpose unless the attorneys pursued the case for an improper purpose of their own. In Pennsylvania cases for abuse of process are typically filed pursuant to a statutory provision known as the Dragonetti Act. Court decisions applying the Act are more or less consistent with the New Jersey decision. In Pennsylvania, to prevail in such a claim, the plaintiff must show that the underlying case was pursued in bad faith, both objectively and subjectively. In other words, the lawyer cannot be liable for abuse of process unless he or she held the subjective belief that the case lacked merit or had an improper purpose for pursuing the matter. The New Jersey case is significant, however, because it would appear to go a step further in that the court held that the lawyer can be insulated from liability even where he knows that the case is weak, and where the client has an improper purpose so long as the lawyer does not have an improper purpose of his own (although it would seem to me that litigating an acknowledged weak or baseless case for a client with malicious intent maybe ought to qualify). It will be interesting to see if this holding finds wider application or if its just an outlier.