Z
The Legal Monthly
Vol. 1 No. 4 Blog at http://zlegaltimes.blogspot.com/ November 2006
The Uniquely Gregarious Source Of Legal News And "Divers" Contrary Information
SPECIAL 2006 MIDTERM ELECTION ISSUE

Democrats wanted 15 seats to make Rep. Nancy Pelosi of California the first woman speaker in history; they got 28 and made history. Dems also took over the Senate 51-49. Two Independents will caucus with the Democrats. Many national races at one time uncontested or safely Republican got a lot hairier the closer we got to November 7. Democrats said they would defeat Republicans Rick Santorum in Pennsylvania, Mike DeWine in Ohio and Lincoln Chafee in Rhode Island, and Republicans made little attempt to dispute them. In the campaign's final days, pivotal races were re-election campaigns by Sens. George Allen in Virginia, Conrad Burns in Montana, Jim Talent in Missouri and the Tennessee seat vacated by Majority Leader Bill Frist so he could run for president. In an interview following Senator Allen’s concession in Virginia, in which the vote was so close that the winner could not be called until Thursday, Senator-elect Webb said he got traction on three issues accurately summing up the national mood: course change on national security, class divide not seen since the 1880s in this country, and … President Bush’s unpopularity.

Justice Under Attack Justice Sandra Day O'Connor, retired in January after 24 years on the nation's highest court, continues to speak out in defense of the judiciary ---"the weakest branch"— just days before South Dakota voters consider the "Jail 4 Judges" initiative that would create a citizens' grand jury that could authorize lawsuits or criminal prosecutions against judges based on their rulings. Colorado voters will decide whether to limit judges on the state's highest courts to 10 years in office, a measure that would remove five of the state's seven Supreme Court justices within two years.

Democracy, American Style A review article appearing in The New York Times starts like this: "The current result of American democracy (though this may change on Tuesday) is Republican control of the presidency, both houses of Congress and (undeniably by now) the federal courts. And that, in turn, has produced policies that, unless I badly misjudge the demographics, most readers of The New York Times Book Review don’t care for: unjustified tax breaks for the rich, a miserable war in Iraq, unbelievable indifference to civil liberties (Secret prison camps? Torture?? America???), among other treats. But this doesn’t prove any flaws in democracy itself. Maybe it’s what people want."

That’s pretty cheeky. It goes on, "if reason has led you to a certain set of political beliefs, the fact that others disagree perhaps should give you pause, but it should not automatically change your mind, no matter how many others there are. *** Candidates and partisan commentators strike poses of outrage that they don’t really feel, take positions that they would not take if the shoe was on the other foot (e.g., criticizing Bush when you gave Clinton a pass, or vice versa), feel no obligation toward logical consistency. Our democracy occasionally punishes outright lies but not brazen insincerity. When we vote after a modern political campaign run by expensive professionals, we have almost no idea what the victor really believes or what he or she might do in office.

My favorite part of this article is where Kinsley called Bush v. Gore "surprising" "shocking, in fact" and "probably the most fatuous — i.e., knowingly stupid" decision ever, and says "the justices of Plessy v. Ferguson (1896), who upheld racial segregation, could at least plead historical blinders. The majority justices of Bush v. Gore have no such excuse. Both as a raw assertion of judicial power and as a more specific interpretation of the 14th Amendment, it was not merely wrong, but spectacularly wrong in precisely the ways that conservative justices like Scalia, Rehnquist and Thomas had been objecting to for years. The justices invented a nonsensical equal-protection "right" — essentially, the right to an equal risk of having your vote miscounted — and held that any attempt to correct mistakes through a recount was unfair to those who didn’t get recounted. And then they declared this alleged right to be a one-time-only offer, like a grocery-store coupon. As Adam Cohen pointed out recently on the New York Times editorial page, the coupon has indeed expired. Bush v. Gore is rarely cited or applied in other situations."

Kinsley provided insightful comments regarding well timed books and closed with a nice argument well worth reading:
"at least regarding the presidency, our Constitution doesn’t provide for majority rule. It dictates an arcane process involving the Electoral College and gives disproportionate weight to low-population states. We accept this with surprising equanimity. No one doubts that Al Gore
got the most votes in 2000, but almost no one feels that this alone means that the presidency was stolen from him. One who does apparently feel that way is Sanford Levinson, a professor at the University of Texas Law School, who has written "Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It)," calling for wholesale revision of our nation’s founding document. *** registration laws and the distribution of assets like voting machines [to] discourage certain voters and potentially change the result. These abuses are the subject of "Stealing Democracy: The New Politics of Voter Suppression," by Spencer Overton, a professor at George Washington University Law School. Fifth — and darkest — is outright voting fraud, by "fixing" (that is, by breaking) the voting machines, as well as more traditional methods à la Chicago in the old days. *** Although resentment over the actually stolen election of 2000 is remarkably muted, there is a noisy contingent of citizens, led by Robert F. Kennedy Jr., who are convinced that the Republicans stole the election of 2004. "Was the 2004 Presidential Election Stolen?" by Steven F. Freeman and Joel Bleifuss, answers its own question with a resounding "yes." *** It is remarkable that the chairman and chief executive of Diebold, the company that makes the voting machines used in Ohio, sent out a fund-raising letter for Bush in 2003 in which he said he was "committed to helping Ohio deliver its electoral votes to the president." This doesn’t prove anything except that the C.E.O. is an idiot. He’s an idiot if his company is not fixing the voting machines, and an even bigger idiot if it is. I hate to be reasonable at this historic moment, but the principle of Occam’s razor favors the lesser idiot theory.And so the quotation and the fund-raiser don’t really feed the case for conspiracy. Most of the other evidence offered by conspiratorialists is not about Category 5 — outright theft — but Category 4: strategic, purposeful, deplorable, but not illegal voter discouragement. *** A famous mathematical proof called Arrow’s Impossibility Theorem, for which the Stanford economist Kenneth Arrow won the Nobel Prize in 1972, demonstrated that whenever there are more than two choices (as there always are in presidential elections, if you include the primaries), no voting system can accurately translate individual preferences into a consensus winner even in theory. *** The great flaw in American democracy is not electoral irregularities, purposeful or accidental. It’s not money (which, even under current law, cannot in the end actually buy votes). It’s not even the inexplicable failure of all other Americans to vote my way or of politicians to enact my own agenda. It’s not the broken promises and the outright lying, although we’re getting close. The biggest flaw in our democracy is, as I say, the enormous tolerance for intellectual dishonesty. Politicians are held to account for outright lies, but there seems to be no sanction against saying things you obviously don’t believe. There is no reward for logical consistency, and no punishment for changing your story depending on the circumstances. Yet one minor exercise in disingenuousness can easily have a greater impact on an election than any number of crooked voting machines. And it seems to me, though I can’t prove it, that this problem is getting worse and worse. A few days before the 2000 election, the Bush team started assembling people to deal with a possible problem: what if Bush won the popular vote but Gore carried the Electoral College. They decided on, and were prepared to begin, a big campaign to convince the citizenry that it would be wrong for Gore to take office under those circumstances. And they intended to create a tidal wave of pressure on Gore’s electors to vote for Bush, which arguably the electors as free agents have the authority to do. In the event, of course, the result was precisely the opposite, and immediately the Bushies launched into precisely the opposite argument: the Electoral College is a vital part of our Constitution, electors are not free agents, threatening the Electoral College result would be thumbing your nose at the founding fathers, and so on. Gore, by the way, never did challenge the Electoral College, although some advisers urged him to do so.

Of all the things Bush did and said during the 2000 election crisis, this having-it-both-ways is the most corrupt. It was reported before the election and is uncontested, but no one seems to care, because so much of our politics is like that. And no electoral reform can fix this problem. Intellectual dishonesty can’t be banned or regulated or "capped" like money. The only way it can be brought under control is if people start voting against it. If they did, the problem would go away. That’s democracy. (from Michael Kinsley and The New York Times) Michael Kinsley is American editor of Guardian Unlimited (guardian.co.uk), the Web site of The Guardian of London. His column appears in The Washington Post and Slate.

IN DEFERENCE TO THE ENTERTAINMENT VALUE OF THIS OLD RAG, "The Bush Wars" this month: THE FANTASTIC EMPIRICAL PRESIDENCY---OF CHEERLEADERS, ROYAL SPITBALLS, AND SINKING SHIPS Washington. Yesterday, Wednesday, November 1, 2006, was a very interesting day. The hot news (perhaps not news?) was that the other one-time-next-POTUS and U.S. Senator Kerry botched a joke. Then during the day ACTUAL POTUS W made a "weird" statement (they had Andrew Sullivan with Chris Hitchens last night on CNN---the word is Andrew’s, or was it Chris’s? I forget but who said what is NOT important). WHAT W SAID was that he would keep Rummy and Chinney until THE DAY he was to leave office, in other words, until January of 2009. OMG.

It WAS TOTALLY weird. The video clip shows W flanked by Chinney, Rummy and etc., (I am talking THE WHOLE CREW including Condi, and some more people in uniforms and suits, all lined up for a group shot outside a log cabin somewhere at Camp David, and W is grim faced as are they all…and…but they are trying to smile and trying to make it look like they were all just partying it up and having a good time, except they all looked very much as though they’d been up all night, which they probably had been because you just can’t hide the fact that you slept in your shirt and sportcoat until AFTER you change and take your morning shower OBVIOUSLY … and well, Andrew Sullivan called it a big "DENIAL" and compared it to Katrina, saying that if you thought the Katrina kudos were true, then you’d also think that Rummy and Chinney are doing "a fantastic job," as W actually said.

Andrew believes Iraq is this year’s Katrina, that W’s popularity rating, meaning his APPARENT level of competence in the public’s perception, is actually tied to his level of competence as determined by what he actually came out and said, and/or did, as reported by the MSM. And this is just what the People THINK WE KNOW our President is doing. Can you just imagine all the STUPID decisions he must actually be making in SECRET that don’t get reported? NOW do you understand why things are the way they are in Iraq?

The following is what really happened, and continues to happen every day, in and around Iraq. This is VERY IMPORTANT because it directly affects what is happening in and around AMERICA. From day one of the invasion or before until today this "project" has skimmed American Peoples’ tax dollars and scooped them into the private coffers of, Halliburton, ChevroTExxonnIncCo/Mobil/BP, etc., and all the other BIG (and small) oil companies and BIG (and small) executives and their "family and friends" in Saudi Arabia, Venezuela, Russia, and even in Houston, Texas, Alaska, Wyoming and Oklahoma, and yes, Kennybunkport, Maine, too. Which essentially leaves the hard working American Joe stiffed, hungry, and looking for…the nearest Walmart. And, well, just go back and look at your photo histories of the 1930s, shake off your coffee-table picture books about the Dust Bowl, and re-read Grapes of Wrath. That’s Steinbeck. That was no fantasy.

But Chris Hitchens has called it "fantasy." That W was just having a fantasy using that word, that it wasn’t real, whatever that means. (Hitchens also denied being "conservative" on the spot right when Paula Z introduced him on CNN). But I know what that means. I saw the video clip of the Bushies outside Camp David yesterday. And what I saw is that Bush is clueless, a void, a vacuum, a … get the picture? Have you seen the photos of Hitler in the final days? Check that out. Eerily similar. Drawn hollow cheeks, blank stares, thin taught lips. Walking dead (dead man walking?). And nobody is telling the Emperor that he has no clothes ON. But who’s fault is that?
How can anybody think things are going "fantastic" in Iraq, or anywhere else? Couric’s own CBS last night spotlighted the following stats: the People will vote AGAINST Bush and not for a Democratic or Republican candidate this Tuesday; Iraq is first/foremost on the collective American mind; "We" don’t like what’s happening; Iraq is NOT going "fantastic"[ally] well. WE HAVE KNOWN THIS FOR SOME TIME NOW AND SHOULD HAVE KNOWN THIS FOR A VERY LONG TIME NOW.

Further, yesterday’s NYT feature on the front page is a leaked Pentagon assessment of intelligence, rating Iraq conditions on what I will call a "green scale" (green represents PEACE, red is for CHAOS…in between are yellow, amber, orange, etc.) And there is an arrow on the dial called current assessment marking a point well into the RED (right), and an arrow marking "week ago" is just to the left of the one marked "current assessment". WHEW. OUCH. The People know this already, and now we know this: so DO the GENERALS. W is the only one who doesn’t seem to know??? Or is he just pretending and playing the role of loyal cheerleader?
Also news yesterday, housing prices are starting to actually decline and not just stagnate. That has not happened since the Great American Depression of the 1930s. Today might just well mark the beginning of the next Great Depression-era bust. And this time, as it was before, it will be GLOBAL. And this time, well, we know it led to HITLER last time. And this time, well, HISTORY DOES TEND TO REPEAT, REPEAT, REPEAT. So goes the old joke: the Captain is heard over the ship’s PA system reassuring the passengers. What he says is, "nothing can go wrong… nothing can go wrong… nothing can go wrong…"

Oh, and if you are wondering what the spitballs are about? The BBC reported somebody "over there" has termed the spat between W and K in which W demands an apology from K for botching the joke a "royal spitball fight" or some such thing. Yes, it truly was a very interesting day. Special from Major Goodbar, USAVOICE.ORG

Frankly, my dear… I actually prefer a b*j* (good, bad, or ugly AND even if it does happen to be in the Oval Office—talk about shooting the moon) over a bad war any day.

QUOTE
"To announce that there must be no criticism of the president, or that we are to stand by the president, right or wrong, is notonly unpatriotic and servile, but is morally treasonable to the American public." --Theodore Roosevelt, 1918

The United States Supreme Court 2006 Term Update (Seriously, now)
RETROACTIVITY: With a single question during argument Tuesday (11/7) in Burton v. Stewart (05-9222), Chief Justice John G. Roberts, Jr., dropped a hint that Congress' revision of federal habeas rules in 1996 might play a major role in determining the fate of one of the most important precedents in the field: Teague v. Lane. Teague might be on the way to being scuttled and, with it, a significant amount of jurisprudence on making criminal law decisions retroactive to earlier cases. Potential retroactive application of the reasonable doubt standard is at issue in Burton. If a procedural rule breaks new legal ground it generally is applied retroactively only if it involved a "bedrock principle," a "watershed" rule that helps to assure fair trials. Apprendi began a series of rulings reinforcing the role of juries – rather than judges – in making the factual findings that can lead to enhanced criminal sentences. Blakely followed in 2004, applying the Apprendi principle to enhanced sentences under state guidelines systems, and a year later came Booker, extending the principle to the federal Sentencing Guidelines regime. The Court has not considered whether to make Apprendi and Booker retroactive but that may ride on the outcome of Burton. Indeed, some of the briefs filed make the argument that all three should be made retroactive. Other briefs, of course, insist that no sentencing procedure ruling should qualify for retroactivity. (Whorton v. Bochting, 05-595, confronted a similar dispute over potential retroactivity. That involved Crawford v. Washington limiting the use of out-of-court statements not subjected to cross-examination and the Confrontation Clause.) The Ninth Circuit found the decision is to be applied retroactively. That holding appeared vulnerable when the Justices granted review -- the Court has been unwilling to make any of its criminal procedure rulings retroactive in the 11 years since it laid down the tests to apply a new rule to earlier cases.

There were signs of that reluctance in the one-hour hearing on Wednesday -- such as a revealing hint that new Justice Samuel A. Alito, Jr., may be attracted to an aggressive suggestion by amici that Congress has taken away the Court's authority to make criminal rulings retroactive to state cases challenged in federal habeas. But the signs seemed less conspicuous than the growth in constitutional stature that Forsman -- on her own, but also with significant help, especially from Justice Anthony M. Kennedy -- conferred on the Crawford decision itself. It might be possible to count to five Justices for the proposition that Crawford was a "bedrock" constitutional decision, and thus would be made retroactive. At the very least, a majority of the Court did not appear interested in the suggestion that it abandon its 1989 decision in Teague v. Lane which, among other things, had declared that retroactivity was the exception but that a rule could be applied to earlier cases if it reflected a "bedrock understanding" of what a fair criminal trial must be.
The Court has already ruled against retroactivity in one post-Apprendi sentencing decision. In Ring v. Arizona in 2002, the Court applied the Apprendi principle on jury fact-finding in sentencing enhancement to require that juries find the aggravating factors
necessary to make a person convicted of murder eligible for the death penalty. But, in 2004, in Schriro v. Summerlin, the Court ruled that Ring was not to be applied retroactively in federal habeas cases. The Ring decision, however, only dealt with the part of Apprendi that

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assigned the fact-finding role in enhancement to juries. It did not deal with the part of Apprendi – later applied in Blakely – that requires that any facts that lead to enhancing a sentence must be found by the jury "beyond a reasonable doubt.

PLRA EXHAUSTION: The Court heard the consolidated arguments of Jones v. Bock and Williams v. Overton, considering three procedural questions regarding the Prison Litigation Reform Act’s exhaustion provision. First, do prisoners have to plead exhaustion in their initial complaint, or does the burden lie with the state to raise non-exhaustion as an affirmative defense? Second, do prisoners have to name every official they will sue in federal court in their original underlying administrative grievance? Third, does the PLRA mandate a "total exhaustion" rule, whereby all claims brought by a prisoner must be dismissed where one or more non-exhausted claims are included in the complaint? All three issues were decided against the petitioning prisoners in the Sixth Circuit. ***Jean-Claude Andre, arguing for petitioners, opened by framing the three rules in contention as "judge-made corollaries" which "contradict the federal rules." Through an exchange with Justice Kennedy, Andre emphasized that under the Sixth Circuit’s holdings, prisoners are not allowed to amend their complaints if they do not satisfy the heightened pleading standard.

AEDPA: Argument in Lawrence v. Florida revealed that the Court may be willing to loosen the strictures that AEDPA places on criminal defendants seeking post-conviction relief. The Court appeared divided on the issue of where an application for post-state conviction relief must be pending for 28 U.S.C. § 2244(d) tolling purposes.

BOOKER: At Conference the Court had before it a long list of cases on the issue. From those, it chose Claiborne and Rita, presenting an array of specific questions on the core issue of reasonableness. The Solicitor General had opposed review in both. In the two cases, the Court itself wrote the questions it will be reviewing, spelled out in the orders.

Is AEDPA 28 U.S.C. 2254(d) Unconstitutional?
No news is not good news in this area: until SCOTUS says you have a constitutional right, no LOWER court will be authorized to recognize that right, a very high hurdle, since it takes SCOTUS many years to review an issue, extremely few unpaid petitions are ever granted cert, AND the bulk of AEDPA petitions are unpaid. Further, this is court stripping like you have never seen before, and denies to the lower courts jurisdiction to consider and rule upon "new" or "unrecognized" constitutional rights, and that is completely unprecedented in the history of the Republic.

The "clearly established rights" doctrine of 1983 immunity cases is the only rule with a resemblance (where immunity cannot be overcome unless a right was "clearly established"). Even there, when the Court sought to define the scope of the term "clearly established" it did not require that the right have been established verbatim (identical or indistinguishable facts and circumstances are not required), as the language of AEDPA appears to require.

New In the Circuits (not yet in print thus Federal Reporter Citations not given) The reporters (or courts) seem to have taken a renewed interest in prisoner litigation issues this month. That incarcerated persons should have certain constitutional rights is a proposition which requires vindication now and again (interestingly, most of these cases have been in the pipeline for quite some time). The looming battle concerning AEDPA review remains whether or not reviewing courts can defer to results of state-court opinions in and from which facts can only be implied, inferred, or deduced, the so-called "silent" opinions or, as it has been said, "can deference be given to that which does not exist?" (when a district court makes no independent findings of fact review de novo the district court's conclusions of law and findings of fact; when state court did not address a properly raised federal claim court is not bound by AEDPA's deferential standard of review and instead reviews the claim de novo. Williams v. Haviland, No. 05-3986 (6th Cir. 10/26/2006)).

Peralta v. Vasquez, No. 04-2822-pr (2nd Cir. 10/17/2006) presents a new twist on a familiar issue: What requirements must a prisoner meet before he can maintain a claim under 42 U.S.C. § 1983 that challenges sanctions imposed pursuant to a prison disciplinary proceeding?
Johnson v. Finnan, Superintendent, Wabash Valley Correctional Facility, November 2, 2006 When a prisoner who seeks a writ of habeas corpus provides competent evidence (such as an affidavit by someone with personal knowledge of the events) contradicting an assertion by the prison disciplinary board on a material question of fact pertinent to an issue of constitutional law, the district court must hold an evidentiary hearing to determine where the truth lies. Piggie, 272 F.3d at 926.

Roth v. Green, No. 05-1129 (10th Cir. 10/30/2006) (10th Cir., 2006) This §1983 case shows not only the high costs and ultimate futility of trying to enforce drug laws through the use of vehicular "ruse" checkpoints, but also a great deal of attorney stupidity. Appeals challenged a sanction award against counsel pursuant to Federal Rule of Civil Procedure 11 and 28 U.S.C. § 1927, as well as a fee award against two individual plaintiffs pursuant to 42 U.S.C. § 1988.

Thore v. Howe, No. 06-1627 (1st Cir. 10/27/2006) (1st Cir., 2006) (Interesting Heck v Humphrey issue and judicial estoppel, state court convictions, plea and consequences for estoppel in future legal proceedings.)

McCann v. Neilsen, No. 05-3699 (7th Cir. 10/26/2006) (7th Cir., 2006) Another good Heck case. "As a general proposition, a plaintiff who has been convicted of resisting arrest or assaulting a police officer during the course of an arrest is not per se Heck-barred from maintaining a § 1983 action for excessive force stemming from the same confrontation. VanGilder, 435 F.3d at 692. A contrary conclusion, we held in VanGilder, would "imply that once a person resists law enforcement, he has invited the police to inflict any reaction or retribution they choose, while forfeiting the right to sue for damages." Id. We disapproved such a result because it "would open the door to undesirable behavior and gut a large share of the protections provided by § 1983." Id."

Trujillo v. Williams, No. 04-2257 (10th Cir. 10/17/2006) (10th Cir., 2006) Conditions of confinement

Stanley v. Bartley, No. 06-2184 (7th Cir. 10/17/2006) To fail to interview any witnesses or prospective witnesses was a shocking dereliction of professional duty in a case in which the state's evidence, though sufficient to convict the defendant of murder beyond a reasonable doubt, was far from compelling. Leslie Stanley would have had a decent shot at acquittal. The state courts' contrary conclusion was not reasonable, judgment of the district court AFFIRMED.
Lankford v. Arave, No. 99-99015 (9th Cir. 11/7/2006) re: counsel's performance in a twenty-two year old capital murder trial; critical jury instructions that were correct under federal law but clearly in error under Idaho law, error was not harmless, judgment of the district court reversed and writ granted.

Nothing of critical interest was reported out of the Fifth Circuit this month by way of Habeas Corpus and Criminal Law. 112 cases in which the words Habeas or Corpus appeared were reported out of all federal appellate courts in September, October and November to date. That number is down to 37 when "ineffective assistance" is added to the search terms and jumps to an unmanageable 397 when the search term is crim*

EQUITABLE TOLLING: Flores v. Quarterman, No. 04-51062 (5th. Cir. 10/6/2006) (district court abused its discretion in invoking equitable tolling where Flores, uncertain as to which date, elected the later).

OF SPECIAL INTEREST Grayson v. King, 460 F.3d 1328 (11th Cir. Aug 18 06) David Boies and the Innocence Project, high powered counsel, document efforts to convert an ethical obligation by prosecutors under Brady (see Imbler v. Pachtman, 424 U.S. 409, 427 n.25) into one that implicates due process. Could be headed to SCOTUS.

Regarding Actual Innocence
Innocence Blog
Smith v. Baldwin, No. 04-35253 (9th Cir. 10/24/2006) (9th Cir., 2006) Actual Innocence claim overcame procedural bar.

Litigation --
Lawyers for Guantanamo Bay prisoners argued in two briefs filed Wednesday in the D.C. Circuit Court that the language Congress chose in its new court-stripping law actually leaves detainees who have not been charged with any crimes free to go forward with constitutional and treaty-based challenges to their original detention and continued imprisonment. In essence, the lawyers contended, Congress' new exercise in drafting should be read the same way as the Supreme Court did with the original attempt in its ruling in Hamdan v. Rumsfeld -- leaving habeas rights intact. 11/1/06

In Doe v. Schwarzenegger, et al., no. 06-cv-06968-JSW, a federal district judge issued a Temporary Restraining Order (TRO) against the enforcement of the residency restrictions under California’s Proposition 83 (Jessica’s Law), which passed easily on Tuesday, Nov. 7. The judge found that the parties have a likelihood of success on both the Ex Post Facto Clause argument (based on retroactive application) and the due process claim. So far no highest court has supported either of these arguments in killing a residency or work restriction, consequently, it is very unusual for a court to find a likelihood of success on the merits. As this litigation moves forward expect a challenge to GPS monitoring included in the plaintiff's arguments. Residency restrictions for sex offenders are likely to endanger, rather than enhance, public safety. Iowa's prosecutors, who have the most experience with these laws, came to this conclusion long ago. Beyond the public safety consequences, the California experience with residency restrictions in Proposition 83 spotlights that these laws always engender copious litigation.

Books, Magazines (Articles) and Websites
New in the blogosphere is Sex Crimes, a blog devoted to the criminal laws regulating and punishing sex offenders

Senator Byron L. Dorgan (Democrat of North Dakota) "Take This Job and Ship It: How Corporate Greed and Brain-Dead Politics Are Selling Out America," an exercise in assertion rather than persuasion that takes for granted the obvious truth of what it purports to argue, which is boilerplate protectionism

Patrick J. Buchanan at his usual fever pitch "State of Emergency: The Third World Invasion and Conquest of America." (Earlier Buchanan titles, on other issues, have included "The Death of the West" and "The Great Betrayal.")

Ronald Dworkin’s "Is Democracy Possible Here? Principles for a New Political Debate." Dworkin, a law professor at New York University and University College London and a distinguished liberal thinker, says with patent insincerity that he does not blame one side more than the other for the trashy state of our politics

In "Does American Democracy Still Work?" another distinguished liberal philosopher, Alan Wolfe, faces manfully up to "the new politics of democracy" in which sentimental populism seems to be owned by the right. Although Wolfe clearly regards this as terribly unfair (as do I) and a result of voters’ failure to know their own self-interest, he manages to make his argument for more "quality control" in American democracy in ideologically neutral terms.

"The Broken Branch: How Congress Is Failing America and How to Get It Back on Track" reveals their relationship with the national legislature be much more profound than mere observation. Frankly, it’s love. And they are deeply distressed by Congress’s current low esteem. Urging reform at every opportunity, they seem like the loyal spouse of an alcoholic or drug addict, desperately pushing their beloved into rehab. You may not share the authors’ heartbreak over the decline of the "15-minute rule" — a not-so-old tradition (it began in the 1970’s with electronic voting) that House votes should not last longer than 15 minutes, to prevent endless arm-twisting. But their reminders about some of the phony issues and false panaceas that litter the recent history of Congress — Remember the House bank scandal? The Contract With America? Term limits? — do make you despair of American politics. Issues and arguments come and go, depending entirely on whose ox is gored.

Recherché complaint, check out "Activism, Inc.: How the Outsourcing of Grassroots Campaigns Is Strangling Progressive Politics in America," by Dana R. Fisher. Fisher, who teaches sociology at Columbia, is upset about the professionalization of grass-roots campaigning, which he believes has sliced the bottom rung off the political ladder and keeps inspired young people from entering politics and pointing it in a more salubrious direction.

Every current left-wing beef — in one handy volume, what you need is Mark Green’s’s latest collection of complaints, "Losing Our Democracy: How Bush, the Far Right and Big Business Are Betraying Americans for Power and Profit." Green, the former Naderite and long-term New York politician, has been producing volumes like this with unflagging enthusiasm since 1970.

Cutting Edges Odds & Ends
Politics and Economics (this time, not "the economy, stupid" but "the war …") Here are a few lessons from Andrew W. Mellon’s biography: "the economic impact of Mellon’s tax-cutting at a time when few earned enough to pay income tax at all, and is too uncritical of his support for the gold standard, tight money and balanced budgets even as the Depression closed in, policies modern economists agree exacerbated the economy’s collapse. And we soon learn that Mellon compromised the integrity of his "public service" at Treasury by continuing to oversee his business empire, covertly intervening with other government officials for his own interests, and even using the department’s tax specialists to prepare — and artfully minimize — his own taxes.

H.R. 1704, the "Second Chance Act," has bipartisan support and cleared the House Judiciary committee, although some of the provisions FAMM was most eager to see enacted were stripped. The likelihood of the Second Chance Act’s passage during the upcoming "lame-duck" session remains uncertain. But even if does fail bipartisan support will likely continue in the 110th Congress, hopefully carrying it towards final passage. Rep. John Conyers (D-Mich.) will become Chair of the House Judiciary committee, replacing sentencing reform foe Rep. F. James Sensenbrenner (R-Wis.), who orchestrated attacks on judicial discretion and sponsored the egregious "Booker-fix" bill. Rep. Robert "Bobby" Scott (D-Va.) will become Chair of the House Subcommittee on Crime, Terrorism and Homeland Security, where sentencing bills begin.

Prayer
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