Category Archives: Law: Everything Else

Prof. Bainbridge has a comments to the original Brown item here.

The blogosphere is getting very distracted by the Lochner tangent to the Janice Brown confirmation battle. Eric Muller injects some sense into that debate.

But forget about Lochner for a minute. The technical merits and demerits of that decision are the wrong debate. Read the whole speech in which the Lochner passage is only a small part. Jon Roland has HTMLized it: “A Whiter Shade of Pale”: Sense and Nonsense—The Pursuit of Perfection in Law and Politics, delivered to the The Federalist Society at University of Chicago Law School (April 20, 2000).

You should read the whole thing to get its true flavor. Justice Brown believed that the United States in 2000 was on the brink of collectivism, in the grips of a slave mentality in which the unthinking (led by Marxist academicians, of course) are just itching to surrender their liberty for the opiate of socialism exemplified by the New Deal—the great error in our history. And, oh yes, the family is being destroyed by bureaucrats, or by feminine reliance on the state [please note that Justice Brown clearly doesn't just mean AFDC, where there might be something to the claim…she means a substantial proportion of the women who voted for Clinton].

But fear not, “it is too soon to despair. … We must get a grip on what we can and hold on. Hold on with all the energy and imagination and ferocity we possess. Hold on even while we accept the darkness. We know not what miracles may happen; what heroic possibilities exist. We may be only moments away from a new dawn.” That would be a new ultra-libertarian, anti-collectivist (defined as “regulation”) dawn, apparently. Which is of course why some folks fixated on the Lochner point.

There does come a point where, however smart they may be, a person is so far outside of the mainstream that they really shouldn't be a federal judge. This speech persuaded me that Justice Brown is out there, well past that point. And this despite the cool Procol Harum references.

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Much of the most interesting news today was nowhere near the front page of my paper. One of these was the buried item, Senior Federal Prosecutors and F.B.I. Officials Fault Ashcroft Over Leak Inquiry, which appeared on page A16 of the national edition of the New York Times.

Mostly it's a bunch of near-gossip, albeit firmly based on prosecutorial experience: people in charge of investigations that touch their bosses and friends usually suffer, even when they don't screw it up accidentally or on purpose. Recusals protect more than the investigation — they also protect the person with the conflict from accusations. So the professional prosecutors and mid-level politicals in Justice are worried that either Ashcroft will do something bad, or he won't and still get unfairly blamed for it. Either way, the unamed sources think it would be better to get him out of the picture.

There is, however, one smoking gun here. Inexplicably you have to read to the end of the story to find it.

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Because my weather report in the left column is not customized for every user, I feel pretty confident that it's not covered by the latest over-the-top Microsoft patent. So, the scare headline over at Slashdot: Microsoft patents your local weather report, is slightly exaggerated—but only slighlty. This does seem like a radically over-broad patent. There must surely be tons of prior art on per-user customization using state information

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