Category Archives: Courts

California Empowers Victims To Fight Back Against Sexual Crime

Dancer’s Suit Puts Corrupt Lawyers on Their Toes,” by Wendy McElroy, FoxNews, 1 August 2006,,2933,206615,00.html (courtesy Brendan of I Hate Linux).

Early experiences have made me interested in sexual predators. I have been able to see more sides of this phenomenon than many people. Thus I have written on pedophilia on this blog, as well as rapists like Elisabet Sunde and convicted criminals like Crystal Gale Mangum.

Some news is bad. Other news, like this, is good:

What would you do if a lawyer threatened, “Give me a million dollars or my client and I will publicly brand you as a rapist and destroy your life?”

On July 27, the California Supreme Court expanded the range of choices possible to one man who was presented with that threat.

The dance phenomenon Michael Flatley of Riverdance fame can proceed not only with a lawsuit for defamation against his accuser but also with one for extortion against her lawyer.

The very fact that the attorney faces possible civil liability may impact how aggressively attorneys proceed in lawsuits that allege sexual misconduct. A common reason for settling such suits is fear of publicity.

Flatley’s lawyers contend that the drama started when their client achieved wealth and renown as the creator and a lead dancer of the theatrical show Riverdance. At that point, he became a celebrity target.

In October 2002, Flatley and his accuser Tyna Marie Robertson had a sexual encounter in a Las Vegas hotel. Twenty-five days later, she called Nevada from Illinois to report a rape.

While the decision is limited to the State of California, it is heartening to know that one state now allows victims to go after the accomplices and conspirators of sexual predators. Because, according to the facts of this case, that Tyna Marie Robertson is a sexual predator. Rape-blackmail is nothing less than sexual assault, and Michael Flatley is a great man for fighting back.

In Hamdan v. Rumsfeld, the Supreme Court Limits International Law

International Law v. United States,” by Andrew McCarthy, Commentary, February 2006, (from The Corner).

Here’s why I’m not worried about the Hamdan decision (and it’s not just that the Supreme Court smacked around “international law” the day before).

First, note what the intellectual right-wing was saying early this year: that the “Law of Nations” described in the Constitution should be narrowly interpreted.

Still, the framers held firm to the imperatives of self-determination and limited interference. The Constitution prescribed a system of enumerated powers, sufficient to secure the nation and promote commerce but respectful of individual choice and local sovereignty. Any authority not expressly assigned to one of the three federal branches was reserved to the states and the people. If new law was needed or if current law required mending, the divisions of authority were reasonably clear: matters of immediate, parochial concern were to be taken up by representatives and courts at the state and local level; the federal governmenta sliver of the present-day behemothwas reserved for those relatively few issues that transcended state boundaries.

The first was the law of nations. In a very useful recent book, Jeremy Rabkin explains that this term of art, culled from Blackstones Commentaries, related specifically to piracy and mercantile shipping (both of which lay outside the jurisdiction of any nation) as well as to the need to provide safe harbor for lawful foreign nationals, including diplomats. And, finite as this was, the framers constrained it still further. Under Article I of the Constitution, the law of nations was to have domestic application only if Congress chose to define and punish offenses against itand regardless of what other nations might regard as a violation.

The Supreme Court agrees

Ultimately, Hamdan v. Rumsfeld is best read as the Supreme Court limiting international law by refusing to grant the Bush’s administration expansive interpretation of it.

There is no suggestion that Congress has, in exercise of its constitutional authority to “define and punish . . . Offences against the Law of Nations,” U. S. Const., Art. I, §8, cl. 10, positively identified “conspiracy” as a war crime.33 As we explained in Quirin, that is not necessarily fatal to the Government’s claim of authority to try the alleged offense by military commission; Congress, through Article 21 of the UCMJ, has “incorporated by reference” the common law of war, which may render triable by military commission certain offenses not defined by statute. 317 U. S., at 30. When, however, neither the elements of the offense nor the range of permissible punishments is defined by statute or treaty, the precedent must be plain and unambiguous. To demand any less would be to risk concentrating in military hands a degree of adjudicative and punitive power in excess of that contemplated either by statute or by the Constitution. Cf. Loving v. United States, 517 U. S. 748, 771 (1996) (acknowledging that Congress “may not delegate the power to make laws”); Reid, 354 U. S., at 23–24 (“The Founders envisioned the army as a necessary institution, but one dangerous to liberty if not confined within its essential bounds”); The Federalist No. 47, p. 324 (J. Cooke ed. 1961) (J. Madison) (“The accumulation of all powers legislative, executive and judiciary in the same hands . . . may justly be pronounced the very definition of tyranny”).3

At a minimum, the Government must make a substantial showing that the crime for which it seeks to try a defendant by military commission is acknowledged to be an offense against the law of war. That burden is far from satisfied here. The crime of “conspiracy” has rarely if ever been tried as such in this country by any law-of-war military commission not exercising some other form of jurisdiction,35 and does not appear in either the Geneva Conventions or the Hague Conventions—the major treaties on the law of war.36 Winthrop explains that under the common law governing military commissions, it is not enough to intend to violate the law of war and commit overt acts in furtherance of that intention unless the overt acts either are themselves offenses against the law of war or constitute steps sufficiently substantial to qualify as an attempt. See Winthrop 841 (“[T]he jurisdiction of the military commission should be restricted to cases of offence consisting in overt acts, i.e., in unlawful commissions or actual attempts to commit, and not in intentions merely.”

Good job!

(More thoughts from Captain Ed, The Glittering Eye, Mark Safranski, Shannon Loves disagrees.)

American Supreme Court Ignores International Court of Justice

Bench Memos and Opinio Juris celebrate the Supreme Court’s latest rejection of “international law” and the UN’s International Court of Justice in Sanchez-Llamas v. Oregon

… the ICJ has interpreted the Vienna Convention to preclude the application of the procedural default rule to Article 36 claims. The LaGrand Case… and the Case Concerning Avena and other Mexican Nations… were brought to the ICJ by the governments of Germany and Mexico, respectively, on behalf of several of their nationals facing death sentences in the United States. The foreign governments claimed that their nationals had not been informed of their right to consular notification. They further argued that application of the procedural default rule to their nationals’ Vienna Convention claims failed to give “full effect” to the purposes of the Convention, as required by Article 36. The ICJ agreed, explaining that the defendants had procedurally defaulted their claims “because of the failure of the American authorities to comply with their obligation under Article 36.”… Application of the procedural default rule in such circumstances, the ICJ reasoned, “prevented [courts] from attaching any legal significance” to the fact that the violation of Article 36 kept the foreign governments from assisting in their nationals’ defense…

Under our Constitution, “[t]he judicial Power of the United States” is “bested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Art. III, § 1. That “judicial Power… extend[s] to… Treaties.” Id §2. And, as Chief Justice Marshall famously explained, that judicial power includes the duty “to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). If treaties are to be given effect as federal law under our legal system, determining their meaning as a matter of federal law “is emphatically the province and duty of the judicial department,” headed by the “one supreme Court” established in the Constitution.

It’s not a slam dunk. An even cooler court would have gone farther in showing “leading international law scholars” that their goal of a Progressive Ulema is unachievable. Still, a large majority agreeing that ICJ rulings are not binding is a good thing.

Thank you, Supreme Court.

Federal Courts Attack San Diego, Veterans, Christians, Democracy

Federal Appeals Court Rules Against Cross,” Christian News Wire, 26 June 2006,

The latest example of anti-democratic Judicial Tyranny is out of California (where else), where…

A three-member panel of the 9th Circuit Court of Appeals ruled on June 21, 2006, that the majestic 30-foot cross atop Mt. Soledad in San Diego must be removed by August 1, or the city will face $5,000 per day fines.

Atheists began a crusade to remove the cross when they filed a lawsuit against the city 17 years ago. The cross, located in a city-owned park in the Pacific Beach area with a breathtaking 360° view of the California coastline, was built in 1953 as a Korean War Veteran Memorial. Christian groups found it a popular site for Easter sunrise services and other events.

Mt Soledad Veterans Memorial Cross

It gets worse.

In November, 2005, San Diegans approved Proposition A with an overwhelming 76% of the vote, which would have allowed the cross to remain by transferring the title to the land. A District Court judge ruled that Prop A was unconstitutional, but in an ironic twist, the 4th District Court of Appeals ruled moments after the 9th Circuit that the city could appeal the Prop A ruling.

Extending the logic, I can’t imagine why other public crosses should stand in public places as public memorials

The Grave of Robert F. Kennedy
Arlington, Virginia

The ugly, militant secularism of California’s federal courts is despicable. Due to judicial fiat, San Diego (must the city change her name as well? — tdaxp) is being forced to destroy a war memorial, a historic cross, a beloved part of history. Similar disgusting idiocy from Earl Warren began the War for the Courts. Agitprop, such as the California Federal Judiciary seems to automatically generate, may be the key to completing it.

The Enemy of Fingertip-Feeling and Resilience

White Men Can’t Help It,” by Michael Orey, Business Week, 15 May 2006, pg 54,

One can only hope…,” by Leonard Powers, Business Week, 5 June 2006, pg 17,

“Sociology is the Mississippi of the Social Sciences. No matter how bad your field it, sociology is always worse.”
– Overheard

This post isn’t about racism, though it could be:

Enter the magician. Sociologist William T. Bielby is the leading courtroom proponent of a simple but powerful theory: “unconscious bias.” He contends that white men will inevitably slight women and minorities because they just can’t help themselves. So he tries to convince judges that no evidence of overt discrimination — no smoking gun memo, for instance — is needed to prove a case. As Allen G. King, an employment defense attorney at the Dallas office of Littler Mendelson, puts it: “I just have to leave you to your own devices, and because you are a white male,” you will discriminate.

Nor is it about babbling academics, though it could be:

One can only hope the courts will soon realize that “unconscious bias” theory is a silly amalgamation of junk science and psychobabble whose sole objective is to profit at the expense of the innocent.

Rather, it’s about a disastrous movement growing in corporate America in response to these threats:

The key flaw that Bielby typically finds in the companies he testifies against is that they give managers too much discretion and let them rely on too many subjective factors in hiring, promotion, and pay. In that kind of unfettered atmosphere, he says, all people (not just white men) unknowingly revert to stereotypes in making decisions. “The tendency to invoke gender stereotypes in making judgments about people is rapid and automatic,” Bielby wrote in a 2003 report on Wal-Mart that was filed with the court. “As a result, people are often unaware of how stereotypes affect their perceptions and behavior,” including “individuals whose personal beliefs are relatively free of prejudice.”

Bielby faulted Wal-Mart for the way it identifies candidates for management positions that often require a move. Without a “systematic mechanism” for determining who might be interested, he wrote in his report, managers may automatically assume women don’t want jobs that require them to relocate.

Job postings are one way around this problem. But Bielby, citing deposition testimony of Wal-Mart executives, noted that store managers had authority to bypass the retailer’s posting system and “informally approach” candidates. That can result in what he calls “tap-on-the-shoulder” promotions, typically favoring men. In its appeal, Wal-Mart says Bielby’s testimony is unscientific and unreliable.

The good Dr. Biebly is attacking the use of fingertip-feeling in business. Fingertip-feeling, or as Erwin Rommel called it, “fingerspitzengefuhl” is an intuitive feeling that is critical to success. It lies halfway between automaticity and comprehension, and following fingertip-feeling is important to success in nearly every field.

During the Vietnam War, the US Army widely abandoned fingertip-feeling and adapted a more systematic approach to complex operations. The alternative, the Zero Defect Policy championed by Secretary of Defense Robert Macnamara, was described as a “cancer” by generals and was partially responsible for losing us the war.

Yet, despite the great similarities between war and business, men like Bielby would mandate, through the Courts, the abandonment of fingertip-feeling by corporate firms. Indeed, he and his allies have already made substantial progress here. And it may be disastrous.

American companies have historically been resilient and adaptive, but this court-mandate would make this much, much harder. Call is “maldevelopment in a box.” It cherrypicks the best of the American system, throws it into the manure pile, and gives us whatever courts decide instead.

Utterly sickening, and utterly typical of the Leftist Courts.

Bloggers Win! Congratulations AppleInsider, Powerpage, and EFF!

Apple dealt loss in Apple v. Does trade secret case,” by Ryan Paul, Ars Technica, 27 May 2006,

I love my iPod, and I’d love a MacBook, but I love freedom more.

bloggers are entitled to free speech

A California appeals court judge has ruled in favor of a petition filed by the EFF that frustrates Apple’s attempt to force rumor sites AppleInsider and Powerpage to reveal their sources. In 2004, web site AppleInsider published an “exclusive” account of a new Apple product alleged to be in development, a breakout box for GarageBand dubbed Asteroid (presumably because it allowed you to rock. Rimshot!).

The ruling concludes that trade secrets do not categorically transcend freedom of the press, that there is no relevant legal distinction between journalistic blogging and journalism with regards to the shield law, and that Apple’s attempt to subpoena the e-mail service provider of one of the sites was a violation of the federal Stored Communications Act.

Congratulations to AppleInsider and PowerPage, which both appear to be fine blogs.

tdaxp supports the Electronic Frontier Foundation.

Justice Ginsburg and the Supreme Court of the World

Sounds like the Big cheese admires Weeramanty,” by Mark Safranski, tdaxp, 26 September 2005,

Ginsburg discusses court integrity, Congress on campus visit,” by Meredith Grunke, Daily Nebraskan, 10 April 2006,

Note: My source for this post is the Daily Nebraskan, the occasionally incoherent student publication of the University of Nebraska – Lincoln. Most of their time, such as with their publication of my dialog with Dr. Frances Kaye over ROTC, they get things right. Occasionally they don’t. I am assuming that their reporting of a recent speech by a Supreme Court justice on our fair campus is accurate.


Ruth Bader Ginsburg wants to take over the world!

Ginsburg’s use of foreign laws in her decision has become unpopular. Attorney General has criticized the use of foreign laws, while the Washington Post criticized Ginsburg’s reasoning. Given the emphasis on American laws shown by her colleagues Justice and Chief Justice , you would imagine Justice Ginsburg would give in and do her job. Nope.

This past Friday, Ginsburg came up with a new reason to use foreign laws in our Courts:

In both her talks, Ginsburg mentioned the Supreme Court’s reference to international law, the exercise of executive power in times of war and recent confirmations to the court.

The justice also fielded questions and spoke in her lecture about the court’s references to foreign law when making decisions – a practice she believes is widely misunderstood. Congress has been looking into measures to curb the court’s references to decisions made by foreign countries.

If we aren’t willing to read and consider what our counterparts abroad are writing, … they will be discouraged from listening to us,” she said, pointing out that court decisions made in other countries are not binding to the U.S.

It appears that Ginsburg is saying that if the US Supreme Court does not use laws from other countries, those countries will not rely on the US Supreme Court.

This statement makes no interest if Justice Ginsburg is interested in interpretating the Law of the Land, or if her primary loyalties are to US Law and the US Constitution. However, it makes perfect sense if one sees her as part of an international league of justices primarily interested in see their words run the world.

In the words of Mark Safranski, these people

would like to establish as a legitimate authority is effectively a ” Transnational Progressive Ulema” where IL scholars and certain NGO and international bodies collectively float above nation-state sovereigns and hand down rulings much they way Ayatollah Sistani or Sunni scholars issue fatwas

This approach is undemocratic, because it removes the legislative (much less the diplomatic!) function from the Congress and gives it to the Courts. It’s non-modular, because it places its face in one, best, international solution whether than evolving local ones. It’s philosophy of experts-know-best has more in common with the theories of the French and the Soviets than with the experience of Americans.

I would stop here, except taking a shot at Ginsburg’s victimology is too easy:

“In some political circles, it is fashionable to criticize and even threaten, federal judges who decide cases without regard to what the `home crowd’ wants,” she said.


Washington Post Criticizes Ginsburg Over Foreign Law

Citing Foreign Law,” Washington Post, 21 March 2006, (from NRO’s Bench Memos).

I’ve applauded Chief Justice Roberts successful attack on so-called international law. Roberts’ victory is all the more encouraging because of the division of the Supreme Court on a closely related matter: foreign law.

Foreign law, which has been attacked by the Attorney General and Justice Scalia, differs from “international law” in that it is actually law, somewhere. While there was once a real international law based on the Catholic Church, in modern times “international law” means at best the socialization of states and at worst a strange morality.

When applied to cases in the United States, both are threats to our freedom and democracy. Freedoms we hold dear, like free speech, are routinely ignored by other countries like China and Germany. At best, an “honest” use of foreign laws by the Courts would lead to a lessening of freedoms in the United States, as are laws are harmonized with the less-free acts of foreign parliaments and potentates.

However, those lovers of “foreign law” are not so honest. They wish to use foreign law to get opinions that would be impossible otherwise. For example, liberal justices like Ruth Bader Ginsberg will use European criminal law (which is more liberal than American criminal law) to liberalize our justice system, but have not (yet) used European abortion laws (which are more conservative than American abortion laws) to make life safer for the unborn.

Don’t take my word for it: take the Washington Post‘s:

At the same time, Justice Antonin Scalia offers some reasonable criticisms of how the court has used foreign precedents — that is, selectively, when foreign law supports results that the court cannot justify based on American authorities alone. As Justice Scalia points out, justices cite foreign precedents in capital cases, where European law is far more liberal than American law, but not in abortion cases, where it is more restrictive.

Ginsberg, recognizing her weak position, has compared those who oppose permissive use of foreign laws to the old Apartheid government of South Dakota.

Of course, she also hides behind sex stereotypes and complains of right wing terrorists-sympathizers in Congress, so it’s not surprising behavior for her.

John Roberts on Unlimited Warfare (Rumsfeld v. FAIR on the Solomon Amendment)

Rumsfeld v. FAIR,” by John Roberts et al, Supreme Court of the United States, 6 March 2006,

John Roberts isn’t just right on . He also is ready to lead the Court of a nation in an unlimited war.

An cautiously alarmed post at Bench Memos, a blog of the the libertarian/conservative National Review, made me kick myself for not reading the decision earlier. Rumsfeld v. FAIR is the case that challenges the Solomon Amendment, which denied federal funds to schools that prohibit from recruiting on campus…

Living in South Dakota, which suffers under the federal thumb of highway money, I had little sympathy for the colleges. If South Dakota’s 10th amendment rights can be trampled on in the name of some Liddy Dole scheme, then I don’t see why Georgetown should hide behind the first. Yet even I was stunned by the formulation Chief Justice Roberts used to force the colleges to accept ROTC.

Anything that begins like this:

The Constitution grants Congress the power to “provide for the common Defence,” “[t]o raise and support Armies,” and “[t]o provide and maintain a Navy.” Art. I, §8, cls. 1, 12–13. Congress’ power in this area “is broad and sweeping,” O’Brien, 391 U. S., at 377, and there is no dispute in this case that it includes the authority to require campus access for military recruiters. That is, of course, unless Congress exceeds constitutional limitations on its power in enacting such legislation. See Rostker v. Goldberg, 453 U. S. 57, 67 (1981). But the fact that legislation that raises armies is subject to First Amendment constraints does not mean that we ignore the purpose of this legislation when determining its constitutionality; as we recognized in Rostker, “judicial deference . . . is at its apogee” when Congress legislates under its authority to raise and support armies. Id., at 70.

has to be good.

And good it is. Roberts continues, saying that if Congress couldn’t have forced the universities to accept recruiters without compensation, they can’t force universities to accept with them compensation:

Under this principle, known as the unconstitutional conditions doctrine, the Solomon Amendment would be unconstitu­tional if Congress could not directly require universities to provide military recruiters equal access to their students

And because the opinion requires the universities to accept the recruiters, it’s clear what the Supreme Court believes.

This is a good thing. We are in a Long War. Chief Justice Robets has a lifetime appointment. Hopefully he will be able to lead the Courts through it.

John Roberts and the Supreme Court Disparage "International Law." Good.

Gonzales, Attorney General, et al. v. O Centro Espirita Beneficente Uniao do Vegetal et al.: On Writ of Certiorari to the United States Court of Appeals for the Tenth Circuit,” by John Roberts et al, Supreme Court of the United States, 21 February 2006,

While not quite as succinct as Justice Antonin Scalia’s criticism of international law, Chief Justice has officially put “” in its place

John Roberts: Lord of International Law

The case, which struck down a federal drug law, was well decided. That is good. The government gave an incompetent and lackluster defense. That is typical. But what’s wonderful is this paragraph

The fact that hoasca is covered by the [U. N. Commentary on the Convention on Psycho­tropic Substances], however, does not automatically mean that the Government has demonstrated a compelling interest in applying the Controlled Substances Act, which implements the Convention, to the UDV’s sacramental use of the tea. At the present stage, it suffices to observe that the Government did not even submit evidence addressing the international consequences of granting an exemption for the UDV. The Government simply submitted two affidavits by State Department officials attesting to the general importance of honoring international obligations and of maintaining the leadership position of the United States in the international war on drugs. See Declaration of Gary T. Sheridan (Jan. 24, 2001), App. G to App. to Pet. for Cert. 261a; Declaration of Robert E. Dalton (Jan. 24, 2001), App. H, id., at 265a. We do not doubt the validity of these interests, any more than we doubt the general interest in promoting public health and safety by enforcing the Controlled Substances Act, but under [the ] invocation of such general interests, standing alone, is not enough.

In other words, the Court has affirmed two principles

  • First, treaties have to meet a “compelling interest” before they trump certain domestic laws, such as the
  • and Second, international law is only valid in the context of “international consequences,” not as laws unto themselves

Those who support America’s submission to “international law” often cite the second paragraph of Article VI of the US Constitution

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

The Constitution lists three sources of the “supreme law of the land”

  • the Constitution itself
  • the laws of the United States
  • all treaties made

However, in the same sentence, the Constitution instructs all judges to be bound by that, notwithstanding

  • “anything in the Constitution,” or
  • “the laws of any State”

In other words, the Constitution identifies three sources of Supreme Law (the Constitution, Laws, and Treaties), and then identifies the Constitution and the Laws as the most important of these. The Supreme Court may listen to government pleas that it has an interest in some treaty, or that some treaty beneficial consequence to the United States.

Treaties are the least democratic source of “law,” because they are enacted by the joint action of the President (who is indirectly elected through the Electoral College) and the Senate (which represents the States, and thus has equal representation for states regardless of the population). Under our democratic system of government, treaties are rightfully deprived of much power and influence.

As the historian Mark Safranski wrote:

Most of what passes for ” International Law ” are simply arguable moral claims advanced by interested parties. The most solidly ” legal ” core of international law is considered binding because nations-states have agreed almost universally to restrict themselves with certain provisions out of self-interest. Enforcement comes only in the cases of the most egregious violations when the moral outrage of the world can be coupled with the selfish interests of the great powers to intervene. That is about the best we can expect from such a system and if ardent advocates of International Law Theory get their way, we won’t even have that much.

International law is best taken with a healthy dose of common sense.

The recognizes this.