"Glenn Beck Should be Speaker of the House"

... is the modest proposal by Evan Schnidman, who points out some Constitutional trivia I'd never noticed: the Speaker does not have to be a member of Congress.

Article I, Section 2 of the Constitution states: "The House of Representatives shall chuse their Speaker and other Officers." The Speaker is elected by roll call vote when each new House first convenes. Customarily, the conference of each major party nominates a candidate whose name is placed in nomination. Although the Constitution does not require the Speaker to be a member of the House, all Speakers have been members. Members normally vote for the candidate of their own party conference, but could vote for any individual, whether nominated or not.

Love that Jane-Austenish "chuse" btw.

Reading: it's not just a pastime, it's your duty

Besides Fulghum, there was another decision yesterday, one that doubtless has made many insurance lawyers in Mississippi very happy, and deprived many plaintiff attorneys of one of their workhorse precedents.

Mladineo v. Schmidt is another Katrina case, this time alleging that the homeowners thought their policy covered any and all wind and water damage from a "named storm," and that the agent supposedly told them their property wasn't in a flood zone (and hence needed no flood insurance), even tho in fact part of it was. Summary judgment for all defendants.

The Court held that the agent had no affirmative duty to advise the homeowners on what insurance they needed, but once he did give advice, he assumed a duty and could be held liable for negligence. So SJ reversed on that count. (Note to insurance agents: don't give advice!)

However, the Mladineos were SOL otherwise, because the (Nationwide) policy stated what it did and didn't cover, and they couldn't claim to rely on what the agent told them it said.

That's where the fun part comes in. Plaintiffs relied on Chuck McRae's opinion in American Income Life Insurance Co. v. Hollins (Miss. 2002), which the Mladineo Court quotes:

That [the plaintiff] did not read it does not alter the fact that she relied on [the agent’s] statements before the policy was provided to her. The exclusion contained in the policy, while unambiguous, was not made available until after she had purchased the insurance in reliance on [the agent’s] statement. Because [the plaintiff] was not informed otherwise prior to relying on [the agent’s] statement, her reliance on the statement that her [pre-existing] condition would be covered was reasonable.

Hollins, 830 So. 2d at 1237-1238.

This holding in Hollins directly contradicts our well-settled precedent regarding an insured’s duty to read his or her policy. See e.g. Gulf Guar. Life Ins. Co. v. Kelley, 389 So. 2d 920, 922 (Miss. 1980) (“[An insured] may not neglect or purposely omit acquainting himself with the terms and conditions of the insurance policy and then complain of his ignorance of them.”) Where Hollins is contradictory to the “duty-to-read” and “imputed knowledge” doctrines, it is hereby overruled.

Hollins has been heavily relied on as negating any "duty to read." Not any more though.

The lineup in Hollins was Diaz, Easley, and Graves joining; Pittman concurring only in the result; and Smith, Waller, Cobb, and Carlson dissenting.

Graves, the only remaining justice who joined McRae's opinion, dissents in Mladineo ... because he would've let off the agent as well, on a duty-to-read basis.

As stated by the majority, this Court repeatedly has held that knowledge of an insurance policy is imputed to an insured regardless of whether he has read the policy. See Stephens v. Equitable Life Assurance Soc’y of U.S. , 850 So. 2d 78, 83 (Miss. 2003); Oaks v. Sellers, 953 So. 2d 1077, 1083-84 (Miss. 2007); Cherry v. Anthony, 501 So. 2d 416, 419 (Miss. 1987); and Atlas Roofing Mfg. Co. v. Robinson & Julienne, Inc., 279 So. 2d 625, 629 (Miss. 1973).

* * * The majority fails to adequately explain how it carves out an exception to the duty to read and the imputed-knowledge provisions under only the negligence theory.

No reference to Hollins at all, let alone to Graves's casting a decisive vote therein. We call that "chutzpah." (The majority, while disagreeing that they are "carving out" any exceptions to the duty to read, is too gracious to observe who *did* carve out an exception to it.)

Justice Kitchens, appellate counsel? (updated)

In the much-watched case of Kristi Leigh Fulghum v. State -- which achieved special notoreity when it appeared that Fulghum had persuaded her brother, Tyler Edmonds, to assist her [in killing her husband] -- the MSSC today affirms the conviction but reverses and remands on the death sentence, spanking the State and trial court for excluding a social worker's mitigating evidence.

Of some interest is a Kitchens concurrence -- joined, alas, by Dickinson -- which provides free legal advice for any future proceedings, re: deficiencies in the indictment, etc.

None of these issues was raised on appeal. However, Fulgham’s appellate counsel was the same as her trial counsel, so she will have an opportunity (should she so desire) to raise the issues in a properly filed petition for post-conviction relief.

Justices Randolph and Lamar find this a bit much:

It shall come as a great surprise if the appellate counsel for Fulgham’s post-conviction-relief motion will not present the issue, having received this instruction on advocacy from such an esteemed jurist as Justice Kitchens. I decline to join in offering such advice, as I fully expect this litigant will appear before this Court again. A jurist should adjudicate, not advocate. In resolving disputes presented for adjudication, we should neither favor, nor offer advice to, an accused or the State.

So, if and when these issues arise on PCR and return to the MSSC, do Kitchens and Dickinson recuse, having prejudged the legal issues in question, and served a dual role as judge and advocate? Somehow I doubt it.

(Points however to Kitchens for writing "None of these issues was raised." "None" is singular, grammar mavens to the contrary notwithstanding.)

... NMC (in comments below) and Will Bardwell suggest it was just a plain-error analysis; Bardwell even gives his post the misleading title "the fight over plain error."

But Kitchens doesn't say it was plain error; indeed, if he *had* made that argument, it would've required a dissenting opinion, not a special concurrence. A skim doesn't show anyone in any opinion even mentioning plain error.

I'm totally sympathetic to Kitchens's argument -- that the State should not charge anyone with robbery, let alone base a capital sentence on robbery, without troubling to state in the indictment WHAT (more or less) was allegedly stolen. And that might've risen to plain error.

All right then -- but did Kitchens not really think of that? Was there some weird tactical basis for not dissenting on that ground?

Plain error isn't an explanation for Kitchens's opinion; it only makes it more mysterious. As if the law clerk who drafted it hadn't heard of plain error, and no one else thought of it either.

For my upcoming CLE on "How to Win Rehearing Every Time!"

Via Eugene Volokh, a June 21, 2010 petition for rehearing filed in the 9th Circuit Court of Appeals:

Plaintiff has news for these slime ball, piece of shit, ass clown judges (Bowie, Canby, Thomas and Fletcher-this means you) that think they are going to rig the system and railroad the poor and innocent -- such as blocking the discovery process so the poor cannot defend themselves, commit perjury in their orders and a host of other constitutional violations, and do it with impunity -- that is simply not going to happen in this case. You cock suckers are now on notice.

The facts of this case are going to come out, one way or the other. Remember that bitches.

Now, confess: haven't we all wanted to file this motion?

Neither faithful nor beautiful

Is Michael Grant the worst translator of Latin in our time?

Cicero, "First Speech Against Catiline" (Grant tr.):

What a scandalous commentary on our age and its standards!

Cicero, "Oratio in Catilinam Prima in Senatu Habita":

O tempora, o mores!

... Dunno how that strikes you, but I find myself not wanting to read a single word of Grant's Cicero after that.

Maybe we need an amendment to define "judge" more rigorously

Will Bardwell calls out Hinds Circuit Judge Malcolm Harrison for "astonishing laziness" in allowing a ballot initiative to redefine "person" in the Mississippi Constitution (it's an embryo/fetus thang).

Quoting from the court's order dismissing the case denying the motion (see below) makes it even more egregious:

Plaintiffs ask the Court to declare the Initiative unconstitutional and enjoin the Secretary of State from delivering the measure to the legislature for placement on the November 2011 general election ballot. The Mississippi Constitution, Section 273(5)(a) states the initiative process shall not be used: (a) for the proposal, modification or repeal of any portion of the Bill of Rights. The plaintiffs argue the Initiative violates Section 273 by modifying and adding to the Bill of Rights.

(Emphasis addded.) So okay, that's the basis for seeking relief. What saith the circuit court?

Plaintiffs carry a heavy burden in attempting to restrict the citizenry's right to amend the Constitution. Initiative Measure No. 26 has received more than the required amount of signatures to be placed on the ballot and the Constitution recognizes the right of citizens to amend their Constitution. The Court finds plaintiffs have not met their burden.

No, really, that's it.

Number of cases cited: zero.

No response whatsoever to the only argument lodged by the plaintiffs.

This is so bad, so poor, that it makes one wonder whether a denial of due process has occurred here. Does one have a meaningful opportunity to be heard if one's central (perhaps sole) argument is not even responded to? I don't know.

Bardwell blames "laziness." Given the impending election, the vices that come to my mind are more like "cowardice" or "hypocrisy." If this is the kind of judge he's promising to be for the next 4 years, then Hinds voters need to consider somebody else.

Miss. Const. art. 6, sec. 155:

I, ________ , solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as ________ according to the best of my ability and understanding, agreeably to the Constitution of the United States and the Constitution and laws of the state of Mississippi. So help me God.

Section 273(5)(a) appears not to be the only part of the state constitution that Harrison disregards.

... NMC cannily notes that denial of the 12(c) motion is not, technically, dismissal of the suit (tho as it presents a pure question of law, I don't see any basis for not entering a final judgment for Hosemann).

We really don't know clouds

Via Making Light, this Discover blog post tells us about NASA's climate-change website, which is pretty damn good -- I wish there were something equally concise and well-organized for natural selection.

The part that made me think of Joni Mitchell was from the "Uncertainties" section:

Clouds have an enormous impact on Earth's climate, reflecting back into space about one third of the total amount of sunlight that hits the Earth's atmosphere. As the atmosphere warms, cloud patterns may change, altering the amount of sunlight absorbed by the Earth. Because clouds are such powerful climate actors, even small changes in average cloud amounts, locations, and type could speed warming, slow it, or even reverse it. Current climate models do not represent cloud physics well, so the Intergovernmental Panel on Climate Change has consistently rated clouds among its highest research priorities. NASA and its research partners in industry, academia, and other nations have a small flotilla of spacecraft and aircraft studying clouds and the closely related phenomenon of aerosols.

Young scientists would be well advised, then, to have their heads in the clouds.

Superstatutes!

Adrian Vermeule reviews A Republic of Statutes: The New American Constitution, which argues that some (quite a few, actually) statutory laws are so entrenched as to be effectively constitutional -- "superstatutes."

How do these statutes become super? Eskridge and Ferejohn posit a causal sequence. A political entrepreneur puts a problem on the public agenda, in many cases by mobilizing a popular movement that grabs the attention of incumbent politicians. Opponents predict disastrous consequences or condemn the proposal as inconsistent with “core national commitments.” A process of political argument unfolds, eventually producing a statute whose supporters are temporarily riding high in the saddle. But the statute becomes super only over the course of subsequent years, if confirmed and expanded by further rounds of political action. New legislation that reaffirms the statute’s central principles, or (even more likely) administrative interpretation monitored by judges and congressional committees, may effectively cement the statute in the working constitution.

Vermeule is skeptical, and plausibly so, of the book's criteria for what is a superstatute: "entrenchment" raises more questions than it explains. If difficulty of repeal is the measure, is the home-mortgage tax exemption any less "entrenched" than Social Security or Title VII? Perhaps, but on what theory?

Myself, I think of Quine's "web of belief" in this context, with a law's being more or less "constitutional" corresponding (ha!) to a belief's being more or less "true." But that's not much help analytically. (On that theory, the deepest "truth" of American law would be equal suffrage in the Senate.)

Why James Bopp Jr. is full of it

McClatchy chats with appellate advocate James Bopp Jr., whose work in Citizens United and others has helped roll back restrictions on campaign spending; he was also the lead advocate in Republican Party of MN v. White, the case that struck down judicial canons against partisan identification.

Bopp is a smart guy, too smart to believe there's anything constitutional, as opposed to partisan, in guff like this:

Bopp said that he's crusaded against both federal campaign donation limits and disclosure requirements because he thinks corporations have First Amendment rights in election campaigns and shouldn't be "punished" with negative publicity for exercising them.

GMAFB. There's no First Amendment right for one's speech to be protected from public criticism. If Megacorp wants to fund Republican candidates and run negative ads vs. Democrats, or vice-versa, then voter-consumers should be able to find out that it's Megacorp paying for 'em, not "Citizens Raging Against Politicians," an allegedly neutral 501(c)(4) that's just a front for Megacorp and its pals.

The conservative sublime

Corey Robin takes the occasion of 60th anniversary of Adorno's Authoritarian Personality to argue that violence is not an aberration from "true" conservatism, but essential to it, going back to Burke on the sublime vs. the beautiful and tying it in to his political thought:

Far from being saddened, burdened, or vexed by violence, conservatives have been enlivened by it. Not necessarily in a personal sense, though it's true that many a conservative has expressed an unanticipated enthusiasm for violence. "I enjoy wars," said Harold Macmillan, wounded three times in World War I. "Any adventure's better than sitting in an office." The conservative's commitment to violence is more than psychological, however: It's philosophical. Violence, the conservative maintains, is one of the experiences in life that makes us most feel alive, and violence, particularly warfare, is an activity that makes life, well, lively. Such arguments can be made nimbly, as in the case of Santayana, who wrote, "Only the dead have seen the end of war," or laboriously, as in the case of Heinrich von Treitschke:

To the historian who lives in the world of will it is immediately clear that the demand for a perpetual peace is thoroughly reactionary; he sees that with war all movement, all growth, must be struck out of history. It has always been the tired, unintelligent, and enervated periods that have played with the dream of perpetual peace.

* * * Rule may sometimes be sublime--our power is not always so assured or secure--but violence is more sublime. Most sublime of all is when the two are fused, when violence is performed for the sake of creating, defending, or recovering a regime of domination. But history does not always present such opportunities. The conservative must settle for the lesser good of war, pure and simple. Thus, when Carl Schmitt declares that the fundamental distinction in politics to which all "actions and motives can be reduced is that between friend and enemy," he merely formalizes an axiom that had been stirring the conservative mind for more than a century.

In this age of terror, it's easy enough to identify this strain of thought in parts of the conservative movement. Even the sunniest of neoconservative spirits can't get enough of the dark arts of war. "We have traded the anxieties of affluence for the real fears of war," a fizzy David Brooks wrote after 9/11. Channeling not only Burke--a patrimony he would be only too happy to claim--but also Schmitt and a great many other fascist and proto-fascist writers, Brooks welcomed "the fear that is so prevalent in the country" as a "cleanser, washing away a lot of the self-indulgence of the past decade." Being attacked, it seems, and attacking back, is like that bracing slap of after-shave in the morning.

Read the whole thing. Robin has "a collection of his essays on conservatism" coming out in 2011; it will be worth keeping an eye out for.

Science class

* * * Before we go further here, has it ever occurred to any of you that all this is simply one grand misunderstanding? Since you're not here to learn anything, but to be taught so you can pass these tests, knowledge has to be organized so it can be taught, and it has to be reduced to information so it can be organized do you follow that? In other words this leads you to assume that organization is an inherent property of the knowledge itself, and that disorder and chaos are simply irrelevant forces that threaten it from outside. In fact it's exactly the opposite. Order is simply a thin, perilous condition we try to impose on the basic reality of chaos . . .
--But we didn't have any of this, you . . .
--That's why you're having it now! Just once, if you could, if somebody in this class could stop fighting off the idea of trying to think. All right, it all comes back to this question of energy doesn't it, a concept that can't be understood without a grasp of the second law of, yes? Can't you hear me in the back there?
--This wasn't in the reading assignment and that . . .
--And that . . . he paused to align pencils on his desk all pointing in the same direction before he looked up to her far in the back bunched high and girlish by a princess waist, bangs shading the face pancaked into concert with her classmates in the shadowless vacancy of youth, --that is why I am telling it to you now.

William Gaddis, J R, at 20-21.

Talk about citing "foreign authorities" ...

Appropriately weighty principles guide our course. First, we recognize that police power draws from the credo that “the needs of the many outweigh the needs of the few.” Second, while this maxim rings utilitarian and Dickensian (not to mention Vulcan²¹), it is cabined by something contrarian and Texan: distrust of intrusive government and a belief that police power is justified only by urgency, not expediency.

-- Robinson v. Crown Cork & Seal, Inc. (Tex. Oct. 22, 2010) (Willet, J., concurring).

Footnote 21:

See STAR TREK II: THE WRATH OF KHAN (Paramount Pictures 1982). The film references several works of classic literature, none more prominently than A Tale of Two Cities. Spock gives Admiral Kirk an antique copy as a birthday present, and the film itself is bookended with the book’s opening and closing passages. Most memorable, of course, is Spock’s famous line from his moment of sacrifice: “Don’t grieve, Admiral. It is logical. The needs of the many outweigh . . .” to which Kirk replies, “the needs of the few.”

Via How Appealing.

Better than being *their* wife ... I guess ....

Over at Making Light, Patrick offers a classic example of when the serial comma isn't just optional:

This should be in the next edition of every grammar handbook.

Testing that "better late than never" maxim

Now that Ginny Thomas has experienced the perils of LTMUI (Leaving Telephone Messages Under the Influence), Anita Hill and Clarence Thomas are back in the news. And Thomas's then-girlfriend is speaking up:

"He was obsessed with porn," she said of Thomas, who is now 63. "He would talk about what he had seen in magazines and films, if there was something worth noting."

McEwen added that she had no problem with Thomas's interests, although she found pornography to be "boring."

According to McEwen, Thomas would also tell her about women he encountered at work. He was partial to women with large breasts, she said. In an instance at work, Thomas was so impressed that he asked one woman her bra size, McEwen recalled him telling her.

Presented with some of McEwen's assertions, Supreme Court spokeswoman Kathy Arberg said Thomas was unavailable for comment.

However bizarre they may seem, McEwen's recollections resemble accounts shared by other women that swirled around the Thomas confirmation.

Angela Wright, who in 1984 worked as public affairs director at the Equal Employment Opportunity Commission -- which polices sexual harassment claims -- during Thomas's long tenure as chairman, shared similar accounts with Senate investigators.

Once, when walking into an EEOC seminar with Thomas, he asked her, "What size are your breasts?" according to the transcript of her Senate interview.

Her story was corroborated by a former EEOC speechwriter, who told investigators that Wright had become increasingly uneasy around Thomas because of his comments about her appearance. * * *

Another woman, Sukari Hardnett, who worked as a special assistant to Thomas in 1985 and 1986, wrote in a letter to the Judiciary Committee that "If you were young, black, female and reasonably attractive, you knew full well you were being inspected and auditioned as a female" by Thomas.

So, McEwen watched Anita Hill being treated like a lying attention-hungry whore on national TV, watched Thomas lie like a rug, and kept silent until now? ... well. That's loyalty, I guess.

... In related news, Ginny Thomas's wingnut lobbying group is taking back everything it said about how unconstitutional Obamacare is, so now there's no pesky need for Thomas to recuse himself, should any such case or controversy come before him. Whew, what a relief!

(Both via How Appealing.)

How dare people identify themselves by their religion! This is AMERICA!

If it takes rampant political correctness to get that asshole Juan Williams fired from NPR, then I've gotta say, PC isn't all bad:

NPR has terminated the contract of long-time contributor Juan Williams over remarks he made on the O’Reilly Factor last night. On Monday night’s O’Reilly Factor Williams weighed in on Bill O’Reilly’s now infamous View appearance.

Well, actually, I hate to say this to you because I don’t want to get your ego going. But I think you’re right. I think, look, political correctness can lead to some kind of paralysis where you don’t address reality.

I mean, look, Bill, I’m not a bigot. You know the kind of books I’ve written about the civil rights movement in this country. But when I get on the plane, I got to tell you, if I see people who are in Muslim garb and I think, you know, they are identifying themselves first and foremost as Muslims, I get worried. I get nervous.

I understand, Mr. Williams. I'm from the South, and many of my neighbors, they see young men in athletic jerseys and gold chains, they are identifying themselves first and foremost as African-Americans ... well, it gets them worried and nervous too.

Williams's shtick has always been "hey, I wrote a civil rights book and I'm black, so I can be your faux-liberal commentator who continually rags on Democrats!" so I am not terribly sorry to see him felled by the same PC crap that got his sorry ass a job in the first place. Enjoy your upcoming Fox News gig, Juanito.

Going kinky

Sarah Palin's campaign takes a walk on the wild side:

Jay-Newton Small searches Sarah Palin's financial disclosure filings and discovered that her political action committee recently hired Allison Meyers, the same RNC operative who was fired for arranging a party at a topless, bondage-themed nightclub.

"Topless" and "bondage-themed" sounds like the McCain-Palin ticket.

Nietzsche on blogging

It is not the worst things that cause the worst shame: there is not only guile behind a mask -- there is so much graciousness in cunning.

-- Nietzsche, Beyond Good & Evil # 40.