ROWLAND

Saw some of the CT Supreme Court arguments on C-Span last night. (Connecticut is my home state, so I have an emotional -- but not especially intellectual -- connection with the impeachment proceedings against Rowland.) It doesn't seem particularly surprising to me that the court refused to take an expansive view of executive powers, given national-level trends against judicially enforced standards of executive immunity. Plus, impeachment is more of a political procedure than a legal one: the basic authority to impeach lies in the hands of the legislature, and however many "legal" forms it adopts, ultimate impeachment authority partakes more of political than of legal judgment. I don't want to make too much of the distinction, and I'd have to think about this further. At the very least, though, it seems to me that the courts should not spend a lot of time refereeing what is essentially a political dispute. If the executive wants to defy the legislature, he should have to rely on his own political capital, not on the political capital that can be made of a judicial judgment. See the NYT article here.

MORE (Monday): Rowland to resign. Good, institutionally, that the court didn't throw its weight behind him.

STRAUSS-KAHN

Dominique Strauss-Kahn has a blog, here (in french). Just FYI.

ELVIN JONES

Elvin Jones died last month.

I saw a 72 year-old Jones in concert at Yale in 1999 (link through picture). He had an odd stage presence. When he was on mike, his language was nearly unintelligible; he struck me as almost too old and worn-out to speak. His playing, though, was unbelievably vigorous and beautiful. Josh of Oxblog and NYT Book Review fame was there, too, and, at the end of the concert, he had the same look of stunned exuberance as I suspect I did.

MORE: Josh has more, here. I had forgotten the exchange between Jones and Willie Ruff.

PATRIOT ACT ABUSES?

That Girl writes:

My credit union — after telling me on the phone that he would not need a green card to become a member — insisted that he needed a green card to become a member. They insist this is what the Patriot Act requires, even though my research very clearly contradicts that. (My understanding is that the Patriot Act gives no specifics regarding the forms of ID a bank may accept, just that, basically, they must "verify and record information that identifies the customer". I've seen bank websites that list the forms of ID they will accept, and a green card is just one of the things a non-citizen can use for ID. We had multiple forms that the other banks will allow, but mine wouldn't have it.

If this story is true, then we should think about how street-level officials are thinking and talking about the Patriot Act, and not just complain about coverage of the act by the news media and civil liberties groups.

BASAL QUESTIONS

Check out Basal Questions, written by Simon Evans of the University of Melbourne Law School, for detailed discussions of Australian law and politics. Most recent post: reflections on a recent decision (North Australian Aboriginal Legal Aid Service v. Bradley, here) that implicates judicial independence.

STATE, HEALTH CARE BUREAUCRACY, CITIZEN

I don't know enough about health law to comment on the case issued today by the Appeals Court of Massacusetts, Centennial Healthcare Investment Corp. v. Commissioner of the Division of Medical Assistance (No. 02-P-915, accessible through this page). But the facts section is worth reading, to remind yourself of how difficult it can be to navigate relationships with private health care bureacracies. I've omitted the footnotes.

Thomas Columbo was admitted to Charlwell House in January, 1993; he was in his late eighties at the time and mentally incapacitated. Throughout the period of Columbo's residency at Charlwell House, Centennial was under contract with the division to provide skilled nursing home care for residents receiving medical assistance through the Medicaid and Medicare programs. Upon Columbo's admission, Columbo's temporary guardian, a family member, agreed to pay the cost of Columbo's care; Columbo's assets at the time of his admission exceeded $1 million.

Shortly thereafter, Paul Donovan, an attorney, was appointed Columbo's guardian and arranged to pay Centennial from Columbo's cash assets and, later, from the sale of portions of Columbo's real estate. In April, 1997, Donovan stopped paying Centennial, claiming that Columbo's cash assets were depleted and that he was attempting to sell additional real estate to cover the nursing home expenses. After unsuccessful negotiations between Donovan and Centennial, and a failed attempt by Donovan to obtain a court injunction to prevent Centennial from discharging Columbo, Centennial filed a complaint in Norfolk Superior Court in September, 1998, to recover over $90,000 for unpaid services.

That case was settled on February 18, 1999. Centennial and Donovan, in his capacity as Columbo's guardian, executed an agreement for judgment, pursuant to which Donovan agreed to pay Centennial $71,573, less any payments received after that date, for services provided through February 28, 1999. A second agreement for judgment dismissed Donovan's counterclaims. Donovan began liquidating Columbo's assets. However, on April 28, 1999, he moved to stay the entry of final judgment, stating, among other things, that a delay in his receipt of payment in the sale of one of Columbo's real properties did not warrant Centennial's execution on the judgment, and that Donovan's application for Medicaid on Columbo's behalf, if approved, would reduce the amount of the judgment. Donovan's motion was denied, and final judgment was entered for Centennial on May 3, 1999.

In October, 1998, while this dispute with Centennial was pending, Donovan filed an application for Medicaid benefits for Columbo. The division initially denied the application on the basis of Columbo's extensive assets. At Donovan's request, the division held a hearing on the application. Centennial attempted to appear at that hearing, but was not permitted to attend or participate. Again, the division denied Columbo's application. Donovan then sought a rehearing, and the division, on its own, determined that Columbo was, in fact, eligible to receive benefits, retroactive for the period from July 1, 1998, to July 16, 1999. The term of Columbo's eligibility was later extended to October 18, 1999.

As a result, the division issued a notice approving Columbo's Medicaid application on September 22, 1999. Donovan wrote to Centennial, notifying it of Columbo's Medicaid eligibility and seeking a refund of $70,250.41 for amounts he had paid for nursing home services between July, 1998, and July, 1999; he instructed Centennial to submit a bill to the division for that period instead. Centennial failed to respond. Subsequent letters, with adjustments in the amounts demanded, likewise went unanswered.

By letter dated December 8, 1999, the division, taking Columbo's side, notified Centennial that it was in violation of the law and its provider agreement for its failure to reimburse Donovan, and threatened the imposition of sanctions. Centennial responded that it was investigating the matter. On January 24, 2000, the division sent Centennial a sanction notice, imposing a fine of $54,900 for its failure to refund to Donovan amounts he had paid at the private pay rate for the period of Columbo's eligibility. Centennial appealed the sanction. Following an adjudicatory hearing, the hearing officer affirmed the imposition of sanctions, but reduced the award so that the sanctions accrued from the date Centennial received notice of Columbo's eligibility, rather than from the actual date of his eligibility.

Centennial filed this action in Suffolk Superior Court on July 5, 2001, alleging breach of contract, constitutional violations, and civil conspiracy; seeking declaratory and injunctive relief; and requesting a review of the board's decision under G.L. c. 30A, § 14, affirming the imposition of sanctions. Donovan filed a motion to dismiss, and the division joined in the motion. Centennial moved for judgment on the pleadings on count VIII of its complaint, for c. 30A review of the sanctions. The judge allowed the defendants' motion to dismiss as to all counts except count VIII; as to that count, the judge ruled that the board's decision was supported by substantial evidence and correct as matter of law. Judgment was entered for the defendants on all counts, and Centennial filed this appeal.

Note: Columbo's cash assets were depleted after four years of care in the nursing home, and then they started selling off real estate. The family got a lawyer (who seems pretty gutsy from the record) who could help them figure out how to keep Centennial at bay on the one side, and figure out how to get state aid on the other. Long years of continuing litigation ensue. Meanwhile, Columbo is still mentally incapacitated, and it's not an unreasonable assumption that this whole affair takes its toll on the emotional health of his family.

And just in case you missed it: Centennial was suing the state because it had granted retroactive Medicaid eligibility to a patient under its care. Centennial wanted to be able to bill Columbo at the higher private rate, but the terms of a lower court judgment forced it to accept the Medicare payment as payment in full for the time frame of eligibility and to refund to Columbo the rest. Centennial also wanted review of the grounds for the penalties assessed against it.

The court wasn't too happy with Centennial's claim, though.

"Junk lawsuit," albeit not of the standard trope?

ADDITIONS

I've added a Feedburner feed, here, and a search capacity for this site from Feedster, at the bottom of this page. The older permalinks are in the older Blogger format on the archived RSS feeds, though, so the search capacity is of limited usefulness. If you are looking for something I've written and come up with a broken link, let me know and I'll send you the updated link information by e-mail.

MORE: In a perhaps futile effort to make this site more visually attractive, I've also added a graphics feature, sidebar right: a "Law and Politics Pic of the Week." This week's installment is a picture of "marriage" in the legal sense, which rests on a piece of paper that certifies that a state authority has recognized you as married. Ignore the goofy look on the figure holding the paper, please.

THE MEANING OF LEADERSHIP

Apparently, leadership means arrogantly berating members of the press for asking questions that are too long.

Our gracious President.

See the video from this morning's press conference with Karzai here (Real Player). Check out the Q & A starting around 15:00.

MORE: To be fair, he corrects himself a few questions later. Still, I think that the contrast with the stage presence of Reagan, just to pick a random example, couldn't be greater.

LIST

Here are some blogs that I've added to my Bloglines list:

1. Displacement of Concepts (Blawg written by some folks at Norwich Law School)


2. Iddybud (liberal commentary from upstate New York)


3. Oligopoly Watch

INVOLUNTARY ERECTILE MEASUREMENT CASE

Just when you think you've seen it all:

A German appeals court wanted to keep a 81 year-old rape suspect over night in a university clinic for three days to determine whether or not he could have an erection (he claimed that he was impotent). The lower court had wanted more: it had wanted to keep him for seven days, and to determine both erectile and ejaculatory potential, but the appeals court balked at the longer time frame and the more intrusive methods required for both determinations, which as far as I can tell could be done without the consent of the suspect, since German criminal law allows nonconsensual medical exams such as the drawing of blood if the tests are important in an evidentiary sense and if there is "no reason to fear negative health consequences" (See § 81a StPO, here).

The constitutional court struck down the appeals court order, however, but did so in a way that avoided many of the significant constitutional questions: whether such an exam is unconstitutional because it offends the dignity of the suspect (Article 1) or his freedom over his person (Article 2). Instead, the court argued that the lower courts had failed to ground their ruling in a sufficient weighing of all the circumstances surrounding the exam. From par. 28:

The court neither took full account of all the circumstances in this case nor tested whether the measures were indispensible. [. . .] Further, given the conflicting testimony of experts, the court should have had some doubts about the expected probative value of the exam with respect to the erectile potential of the suspect; the court must attempt to take this doubt into account in its examination of the circumstances in their totality. Even the expert who was charged with performing the exam gave conflicting testimony on the significance of the suspect's cooperation: he said that a nocturnal exam is possible without the cooperation of the suspect, but his willingness to be cooperative would be significant. The appeals court did not resolve this contradiction. In addition, no comparable exams have taken place at the clinic in question, so the expert could be deficient with respect to experience in this area. The appeals court also failed to take account of the suspect's stated desire not to sleep in the clinic, even though this objection could influence the exam's success.

Denn der Senat hat Inhalt und Tragweite des Übermaßverbots verkannt; er hat es versäumt, eine Würdigung aller Umstände sowie eine Prüfung der Unerlässlichkeit der Maßnahme vorzunehmen. [. . .] Darüber hinaus hätten sich dem Senat auch angesichts der Angaben des Sachverständigen Zweifel am zu erwartenden Ertrag der Untersuchung zur Aufklärung der Erektionsfähigkeit des Beschwerdeführers aufdrängen und ebenfalls im Rahmen der gebotenen Gesamtabwägung berücksichtigt werden müssen. Bereits die Angaben des mit der Untersuchung beauftragten Sachverständigen zur Bedeutung der Mitwirkung des Beschwerdeführers waren widersprüchlich, weil dieser ausführte, eine Nachtschlafuntersuchung sei zwar gegen den Willen des Betroffenen möglich, jedoch sei dessen Kooperationsbereitschaft wesentlich. Diesen Widerspruch hat das Oberlandesgericht nicht aufgelöst. Hinzu kommt, dass in der Klinik des Sachverständigen bislang keine entsprechende Untersuchung gegen den Willen des zu Begutachtenden stattgefunden hat, so dass es dem Sachverständigen insoweit an Erfahrungswerten mangeln könnte. Ebenso wenig setzt sich das Oberlandesgericht mit dem Einwand des Beschwerdeführers, er beabsichtige nicht, in der Klinik zu schlafen, auseinander, obwohl dieser Einwand geeignet sein könnte, den Erfolg der Untersuchung zu beeinflussen.

So I suppose we will have to wait to find out whether involuntary nocturnal erectile measurements violate the human dignity safeguarded by Germany's Basic Law. Doesn't seem like a tough call to me, though.

You can read the full text of the case here, the court's press release here, and a news account here.

MORE: And for Scott: note the name of the defendant in the case, as reported by the court. I suppose to be truly Kafkaesque (rather than merely disquieting), the case would have had to take much longer to wind its way to an appeal, and the suspect would have to consent -- in an ambiguous fashion -- to the exam.

AVOIDING HARM

Two stories about avoiding harm, here and here. The first harm was avoided through luck, the second harm was avoided through procedure. . .

MORE: Compare these quotes:

"I'm just glad no one was sitting on the couch because they would have got absolutely crowned," Mrs Archer said.(From the BBC story linked above.)

and

When hard questions of domestic relations are sure to affect the outcome, the prudent course is for the federal court to stay its hand rather than reach out to resolve a weighty question of federal constitutional law. (From the final paragraph of Stevens's opinion, here.)

LINKS GALORE, EN FRANCAIS

Netlex Blogs. Check it out.

MABO

Twelve years ago the Australia High Court issued its landmark Mabo decision, which declared that Australian common law recognizes native land titles. For some coverage of celebrations of the decision, go here and here. On some of the political aftermath (particularly Australian critique of judicial activism, go here -- via here). The full text of the decision is available here (and here). For an overview of some of the developments in the law up to and since 1992, see this page from the Australian Parliament.

GERMAN CLOSING LAWS DECISION

On Tuesday, the German Constitutional Court upheld recent changes to the country’s store closing laws against a constitutional challenge. See the Globe and Mail’s story here, Deutsche Welle’s coverage here, and BBC’s story here. In German, read ZDF’s coverage here.

The court ruled that the current version of the law is constitutionally permissible. Individual states have a right to make minor changes in the law, according to the court, and they will be able to make more fundamental changes if parliament explicitly allows them to do so.

Reaction from the political parties was positive. A press release from the conservative opposition party CDU (here) states that the decision protects shopping-free Sundays, "a significant part of our culture." The Bavarian (and more conservative) version of the CDU, the CSU, claimed that the ruling was a "big day for federalism" (here). The CDU/CSU faction apparently wants to allow this issue to be decided at the state level. The Greens, minority party in the governing coalition at the center, were happy that the Court left their legislative product intact, and they argued that a "further liberalization" of the rules would "disadvantage small and mid-sized businesses" (here). The SPD likewise defended the law as it stands (here): "It is still important to protect workers from excessive work at socially unfortunate times." And unions are also happy with the decision (see here).

The whole decision in German is here and a press release from the court here. By the way, press releases and decisions from the court are both available as RSS feeds, here and here. Cool.

By the way, Tyler Cowen sees this court ruling as another sign of Europe’s economic decline, here. Cowen argues that the "small shop lobby" is the main obstacle to the liberalization of the laws, but that judgment requires ignoring the views of the SPD and Green leadership as well as the position of labor unions.

GRADING THE MEDIA

Last week, the Pew Center released a study called "News Audiences Increasingly Polarized." If you followed some of the web commentary of the study last week, you would have encountered sentences such as this line from Vodkapundit:

For all intents and purposes, more than half of the populace (everybody except partisan Democrats, and even their numbers for credibility are nothing for most of the press to brag about) has written off the vast majority of the national press. And they're doing so because they believe that the press has written them off.

Roger Simon writes, "No news entity earns much respect," and Andrew Olmstead writes that "the media has a severe credibility gap."

These folks exaggerate a bit, I think. If you look at the actual numbers of the study, especially Section V, you’ll see a somewhat different, more nuanced story. Consider the following question (exact wording from this page):

Q. 23: Now, I'm going to read a list. Please rate how much you think you can BELIEVE each organization I name on a scale of 4 to 1. On this four point scale, "4" means you can believe all or most of what the organization says. "1" means you believe almost nothing of what they say. How would you rate the believability of [X] on this scale of 4 to 1?

And the results are here, in context here. If you add up columns four and three -- people who seem to be giving the media an "A" or a "B," for believability, you get the following results:

60 Minutes: 69%

CNN: 72%

C-SPAN: 65%

Fox News Channel: 63%

Local TV news: 63%

NBC: 65%

ABC: 64%

CBS: 63%

NewsHour: 59%

NPR: 56%

MSNBC: 64%

In other words, among those who believed that they were qualified to judge, significantly more than half of respondents thought that every single media outlet was believable at a level of 3 or 4 in a four point scale. I’d probably answer 3 for most of the items.

So, far from a vast majority of news consumers “writing off” media outlets, most media outlets seem trustworthy much of the time. That’s not too bad, in my book. In fact, I’d actually like to see a little more skepticism of the media – more 3’s, fewer 4’s.

If you're worried about the technique of adding columns to generate a binary result, note that the folks at Pew did this themselves for Q.50, the results of which are reported here (in context here). Q.50 is reported in a binary fashion but asked on a four-point scale (see here.) So we have the interesting phenomenon that a majority agrees that they don't trust the news, but when asked about specific news outlets, majorities seem to find them more trustworthy than not.

This phenomenon is not all that uncommon in public opinion research. Surveys find that people are much more likely to agree that Congress is untrustworthy in the abstract than they are to find that their individual representative is untrustworthy.

One final point. Bloggers are self-interested observers here: the more the "traditional media" appears "written off" by the public, the more one can imagine that blogging provides an important service.

(Link to Vodkapundit from No Left Turns, which also overreaches in its interpretation. I don’t mean to say that the story about political segmentation in the media isn’t interesting, but we should at least take a closer look at what the data actually says. More thoughts on the study can be found here.)

TWO POINTS ON TORTURE

1) Kieran Healy writes:

It’s a lot easier to speculate about the pros and cons of torture in the abstract than when it’s clear to all that your government has actually been torturing people to no great purpose and its legal staff has been looking for ways to rationalize its actions. While “ticking bomb cases” are all very well for uncovering your own moral intuitions about torture, they have essentially nothing to say about the institutionalization of torture within the machinery of the state.

2) And Zack writes:

This ["ticking time bomb"] hypothetical has been invoked lots of times by supporters of torture. However, it assumes perfect information: We know an attack is coming, but not when, where, what; we have a guy in custody who we know that he definitely knows about the attack; and he’ll tell us about the attack when tortured. In the real world, we never have that information. The guy we have in custody might be innocent or our intelligence about a terrorist attack might be wrong, etc.

(once again, via the Poor Man)

There's a strange parallel between the limits on the applicability of hypotheticals and the limits on the desirability of promulgating rules that specify when the executive might act counter to established rules of law.