[Edit: I wrote this before I saw that Patrick had posted the far more substantive and thoughtful post below on the same subject. But I will leave it up anyway.]

About twelve years ago, when I was still a federal prosecutor, I was picking a jury for a civil rights case involving a couple of unusually stupid aspiring skinheads who had been harassing a multiracial family in my neighborhood. Race was a predominant issue in the case, and the judge reasonably made racial attitudes one of the subjects of voir dire. The deputy public defender, with whom I had a tumultuous relationship, was relentlessly striking African-Americans from the jury, leading to a regrettable exchange in the hallway in which I told her that if the lawyer thing didn't work out she had a great career ahead of her as the night manager of the Birmingham Denny's.

Anyway, just as she was watching for people who would be inclined to convict skinheads for racial harassment whether or not the evidence was sufficient, I was watching for people who were inclined to think that minorities were grievance-mongers who would make up violent harassment. Midway through voir dire, a white woman from Orange County responded as follows to one of the judge's questions:

"Oh, I don't have any problem with black people," she said, "or whatever it is you are supposed to call them these days."

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Walter Olson, a scholar who blogs at Overlawyered, Point of Law, and Secular Right, has, not surprisingly, some rather strong and well-informed views on the excesses of the American legal system, particularly in the field of tort law.  Philosophically (and full disclosure: I practice law in the field of insurance defense), I agree with many of Mr. Olson's views and enjoy his writing.  But if Mr. Olson were to appear on a jury panel in a personal injury case I was defending, even though I would believe him when he promised to decide the case fairly to both parties, on its merits, and applying the law as instructed by the judge, I would fully support my opponent's decision to remove the author of Overlawyered ("Chronicling the High Cost of our Legal System") from the jury pool by peremptory challenge.

Mr. Olson, on the other hand, would prefer that the plaintiff not be able to make that decision.  And he has plenty of company:

In the interest of fair trials, attorneys can dismiss people from jury pools for dressing strangely, for being fat, even for just looking at them funny.

What lawyers can't do is dismiss potential jurors based on their race, gender or ethnicity. Yet, attorneys and academics say, it happens all the time.

To root out discrimination in the jury room, critics have called for a radical solution: Get rid of peremptory strikes, which typically allow lawyers to dismiss a limited number of jurors, no questions asked.

The peremptory strike, or challenge, has an old pedigree in American law.  It allows one of the parties to a case (civil or criminal) to exercise his judgment and discretion to remove potential jurors he believes cannot or will not judge the case fairly, without going through the painful and alienating process of questioning a juror to the point where he breaks down, in the style of a witness on Perry Mason, with the admission, "No! I cannot give your client a fair trial because I am biased against grocery stores accused of leaving banana peels on their floors!" … or more commonly, against large corporations or civil plaintiffs generally, or against accused criminals generally, or against people of certain races and ages.  In some courtrooms, before some judges, that open admission is what it takes to get a juror dismissed for "cause," where the court itself recognizes that the juror should not serve.

In a society where racism is now considered one of the worst social sins, it can be difficult to get people to admit that they have even a little bias, even arguably sensible bias of the sort that compelled Jesse Jackson once to admit that when he's walking on the streets of DC, he feels relief when the person following him turns out not to be a young, black male.  When a criminal defendant is a young, black male, and his freedom is on the line, he has a deep interest in seeing to it that those who share similar biases not sit in judgment of him, especially those who aren't as honest about their prejudices as Jesse Jackson.

And so, in the interest of perceived fairness as much as anything else, we allow attorneys to remove potential jurors they suspect might not be able to judge the case fairly.  Since the trial process is adversarial, we can assume that both or all parties will similarly exercise their peremptory challenges to remove jurors who might be partisans for the opponents to arrive at some level of perceived fairness.

One check on the peremptory is that, since Batson v. Kentucky, at least in criminal cases, the use of peremptory challenges to exclude jurors solely on the basis of race is prohibited and judges are expected to conduct inquiry where that's suspected to be the case.  Opponents of the peremptory challenge, as in the Journal story linked above, cite abuses of peremptories with ridiculous excuses, such as the attorney who claims he dismissed the sole black  juror on a panel for being obese, because obese people cannot be fair, but that's a breakdown on the judge's end.  We expect and allow judges to rein in this form of abuse, and many others, in the course of a trial, and where judges don't do their jobs we have appellate courts.   Yet opponents of the peremptory challenge don't lobby for abolishing the closing statement, or the use of scientific evidence, even though there is as much room for judicial error or abuse in control of statements and witnesses as there is in jury selection.

Or opponents of the peremptory challenge complain that its use creates only perceived fairness, rather than actual fairness.  That may or may not be true (because actual fairness is impossible to achieve in a courtroom not run by God) but consider the importance of the perception of fairness to actual litigants illustrated in State v. Thomas, decided this week by the North Carolina Court of Appeals:

After the jury was impaneled and the trial was underway, the trial court learned that one of the seated jurors attempted to contact an employee in the District Attorney's Office prior to impanelment. The juror visited the District Attorney's Office with the intention of greeting a friend, but was unsuccessful in his attempts to speak with her. Voir dire was reopened, the trial court questioned the juror, and allowed the parties to do so as well. After questioning, defense counsel requested that the juror be removed. The trial court denied this request and found that there would be no prejudice to either party to keep the juror seated. Defendant argues that his counsel informed the trial court that he had a peremptory challenge left and wished to use it to remove the juror.

The trial court denied that request, and the case went forward.  In reversing Thomas's conviction, the Court of Appeals emphasized the importance of the peremptory challenge.  Even if the court was satisfied that this juror, who had friends in the DA's office and wished to socialize with them before trial, could give Thomas a fair hearing, it seems that Thomas felt differently.

I'll bet you would too, if you were in Thomas's shoes.

Opponents of the peremptory emphasize the errors created by use of the peremptory, and "society's" interest in a smooth litigation process, free of bothersome appeals and reversals.  Or they claim that individual excluded jurors somehow have a right to sit on a jury (if that's true, it's a right most would prefer not to exercise).  Like Scott Greenfield, I don't consider jury service a right.  I consider it a duty.  A trial does not belong to society, nor does it belong to a juror.  It belongs to the parties, the plaintiff and the defendant (or in criminal cases, the defendant who is facing the crushing weight of the state).  Their perceptions are what matter, and impeding their ability to get what they perceive to be a fair trial creates the perception of injustice.

Which in a democracy that depends for its legitimacy on public faith in the courts, surely and certainly leads to actual injustice.

It's nice that some things in a criminal defense lawyer's life remain constant. Among them — at the American Bar Association's annual White Collar Committee boondoggle (last year in Miami, this year in San Francisco) lawyers will backbench, skip continuing legal education sessions, network, and bludgeon their livers mercilessly. It's primarily a business development opportunity — white collar lawyers get a disproportionately high percentage of their work from attorney referrals, particularly among the ex-AUSA mafia. So today the ballrooms are sparsely scattered with people listening to the actual presentations, and the hallways are jammed with hung over attorneys wondering whether mortgage workout fraud will be the Next Big Thing and hoping that DoJ will start indicting big, retainer-paying companies again.

It's a different experience for me this year. I'm still not feeling 100% after a recent cold, so though I went to three cocktail parties last night to schmooze, I drank sparingly. As I am occasionally reminded, you learn more that way. Lawyers become incautious about firm politics in their cups.

Today: presentations on recent mega-cases, an internal investigation seminar, a mortgage fraud discussion, perhaps a SEC brush-up. Then the party my own firm is sponsoring, at which I will once again restrain myself, for the novelty if nothing else.

California, like several other states, has legalized marijuana for certain medical purposes. Previously, the feds were affirmatively hostile to this, routinely raiding medical marijuana dispensaries in California on the theory that federal law barring distribution of marijuana trumped California law. As a matter of existing law under the Supremacy Clause, the feds were almost certainly right; as a matter of public policy and principles of federalism, they were almost certainly wrong.

Now the new Attorney General — though clearly no friend to the drug legalization movement — has signaled that such raids will not continue under the Obama administration. They're not legalizing the stuff, they're just announcing a prudent and appropriate discretion in the use of DEA resources.

Now comes the part where we find out which conservatives actually stand behind federalist rhetoric. Who will come out and denounce Obama as pot-promoting and soft-on-drugs? Who, at this point, will continue to assert that the Great War on Drugs justifies federal policy overriding democratically enacted state policy?

I've argued before that society gets encrusted with poorly-thought-out and burdensome laws because legislators want to be seen as doing something — ANYTHING — to address perceived social ills, and (most frequently and temptingly) to Think Of The Chiiiiildruuuun. Hence lawmakers — particularly state and local lawmakers — ignore their oaths to uphold the state and federal constitutions as they scramble to be the first and loudest to address crippling social problems like saggy pants or swearing in front of kids, and logic, good sense, and the rule of law be damned. Meanwhile the notion that our public servants should only pass genuinely necessary laws, and only when they follow the rules in the owner's manual, is steadily eroded.

A closely related specimen of legislative self-indulgence is the "I just want to start a dialogue" law — the bill proposed not out of a reasonable hope that it will be passed, but out of a hope that it will inspire discussion of some social issue the legislator wants to talk about. Once again, such legislators promote contempt for the rule of law — they use the legislative process as a plaything or a soapbox, not as a rule-bound tool for the people's business. Case in point — West Virginia House of Delegates Member Jeff Eldridge. Eldridge has offered a bill to ban Barbie — yes, the doll — in West Virginia.

H. B. 2918
(By Delegate Eldridge)
[Introduced March 3, 2009; referred to the Committee on the Judiciary.]

A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §47-25-1, relating to banning the sale of "Barbie" dolls and other dolls that influence girls to be beautiful.

Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §47-25-1, to read as follows:
ARTICLE 25. BARBIE DOLLS.
§47-25-1. Unlawful sale of Barbie dolls.
It shall be unlawful in the state to sell "Barbie" dolls and other similar dolls that promote or influence girls to place an undue importance on physical beauty to the detriment of their intellectual and emotional development.

NOTE: The purpose of this bill is to ban the sale of Barbie dolls and other similar dolls.

Why would Eldridge do such a thing? Was he savaged by a Barbie in his callow youth? Does the existence of Barbie dolls cause him to dwell painfully on his smooth, featureless groin? Nope. Barbie is bad for girls' self-esteem, and Eldridge just wants people to talk about it, you know:

Meanwhile, Delegate Jeff Eldridge said he knows the bill he proposed doesn't "have a lot of teeth," but said he introduced it because he wanted to get the conversation started about brains before beauty.

The proposal that Barbie dolls hurt little girls by forcing them to dwell on beauty over brains is a debatable one. I played with G.I. Joe dolls and Star Wars "action figures" as a child, and it does not appear that I was imprinted with the notion that martial prowess reigns supreme over intellect. Although I have worked hard to look like Jabba the Hutt. But even if dolls with freakish cleavage do pose some sort of potential psychological threat, that's an issue for worrisome progressive parents to one-up each other about at book-club meetings. ("Why, we don't even let little Dakota LOOK at gendered dolls. We give her nongendered stick persons." "You call your child 'her'? Do you think that's healthy?") The state has no conceivable business in policing how our childrens' toys influence their self-esteem and gender roles. And Jeff Eldridge has no business proposing to use the power of the state to tell parents what dolls they should buy for their kids to protect their feelings.

Eldridge has even less business using the legislative process like a literary salon, as a tool to create debate over whatever fuzzy-headed social issue catches his attention, rather than an official instrument of the people's business. Doing so establishes that he sees the people as his servants, not the other way around — he sees the mechanism of the state as something he is entitled to manipulate for his personal amusement. That's one way that people cease to be free — when they allow whatever disappointed junior-high-class-vice-president types who go into state and local government to use the mechanism of the state like a Twitter account.

When he took office, Jeff Eldridge took an oath:

Every person elected or appointed to any office, before proceeding to exercise the authority, or discharge the duties thereof, shall make oath or affirmation that he will support the constitution of the United States and the constitution of this state, and that he will faithfully discharge the duties of his said office to the best of his skill and judgment . . . .

Eldridge is an oathbreaker.

Sounds too good to be true, part I: You run a small, low-margin business in California.  You're in a dangerous line of work, such as window cleaning or security contracting.  A consultant tells you that with a little reorganization of your business, you can avoid paying premiums for California's state-mandated workers compensation insurance, saving thousands of dollars a year.

Sounds too good to be true, part II: "Good news, Enrique, you're being promoted.  You're no longer a security guard.  You're the Senior Vice President Of Being Shot At By Liquor Store Robbers In Watts."

It is too good to be true: Enrique, the Senior Vice President Of Being Shot At By Liquor Store Robbers In Watts, is shot by a liquor store robber in Watts.  Enrique's estate sues you for a massive judgment of medical and funeral expenses and lost wages, plus civil penalties.  The District Attorney would also like to have a word with you, about criminal penalties for failing to carry workers compensation insurance.

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It continues to amaze me that anyone familiar enough with the internet to send an email or comment on a web site thinks that it could possibly be a good strategy to say "shut up or I will sue you/report you/retaliate against you."

Case in point: Kathy Kelly of the Capital Post-Conviction Project of Louisiana.

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The brief and embarrassing (albeit entertaining) fracas between Rush Limbaugh and RNC chair Michael Steele ended the way anyone who has recently observed Republican politics could have predicted — with Steele on his knees, asking forgiveness. Now, one could make a perfectly good argument that Steele's attack on Limbaugh was erratic, unfocused, and (even if one thinks that Limbaugh's role in the party ought be questioned) not constructive. But the whole episode ought to leave the hard Left snickering and licking their chops at what use they can make of the appearance that Republicans have adopted a policy of servility towards a talk-show host.

Meanwhile, Limbaugh continues to inspire other eruptions of idiocy. One of the most recent is the fault of Andrew Breitbart, who in response to Rush's CPAC speech penned one of the most violently moronic paragraphs in the history of political discourse:

Anonymous liberal commentators, the rabid pests of the new media, sought out the most popular conservative blogs to flood the zone with familiar Rush Limbaugh slanders. Their goal: To demoralize the right with layer upon layer of media domination. Only talk radio with its emphasis on Socratic debate over raw emotionalism and with Mr. Limbaugh in the driver's seat has escaped the left's clutches of pure media dominance.

That's not the sort of stupid that you are born with, or that is thrust upon you. That's stupid you have to achieve through hard work. Republicans, to recover from electoral defeat and take advantage of economic chaos, need to display the capacity to lead. When people think about leadership qualities, "tendency to be demoralized and intimidated by anonymous blog comments" is not high on the list. Nor is the sort of heroic self-delusion required to view talk radio as "Socratic." If Republicans continue to pursue a policy of whining about media bias — a complaint that tends to collapse under the weight of its inconsistency with conservative market theory — they're going to continue to lose. "Follow us because mean people treat us badly" is not a beacon of hope during a depression. Yet some Republicans stay doggedly on this path — most of all Breitbart, who has created an entire web site to complain about how mean the cool kids are.

We haven't had one of these on the front page in some time:

Simply caption this photo in the comments.  Be warned that a number of our old-school readers, who have followed this blog since it was an outgrowth of a gaming forum, are masters at this challenge.  I only hope that this image is worthy of their consideration.

Previously I expressed hope — quite probably a naive and foolish hope – that the electoral rout of the Republicans might lead that party to a journey of self-examination, reformation, and renewal, a journey that leads to a more libertarian promotion of policies actually connected to individual liberty and responsibility rather than meretricious cultural thuggery. I'd also like a pony and all my hair back, please.

Since November, I've been watching carefully for signs that the party has set that course — or any coherent course — in response to the election and in response to the fiscal atrocities underway in Washington.

I'm pretty sure that a slap-flight between the RNC chair and Rush Limbaugh is not the sign I was hoping for.

When I was a fed, one of my favorite supervisors ever had the classic Churchill deserve victory poster in his office. This is not a party that deserves victory.

John McCain is using Twitter, and he has a question. I leave the answer to you.

Hat tip to Feministing.

"The Recording Industry Association of America’s successes in the sphere of eradicating copyright infringement are now being spoken of by everyone. Even our enemies are forced to admit that the successes are substantial. And they really are very great.

It is a fact that by January 1 of this year over 30,000 file sharers throughout the USA had been sued. That means that by March 3, 2009, we had overfulfilled the five-year plan of copyright infringement litigation by more than 100 per cent.

It is a fact that on February 28 of this year the lawsuits targeting infringers had already succeeded in collecting upwards of a figure in judgments which cannot be disclosed at this time, for legal fees not unreasonably exceeding the amounts collected, which is more than 90 per cent of the plan. It must be admitted that the diminution in revenue earned by RIAA-member labels over the past five years — compared to that which was forecast before the implementation of our five year plan to eliminate illegal infringement — is a tremendous achievement.

What does all this show?

That a radical turn of the American public toward respect of copyright may be considered as already achieved."

(With apologies to the estate of Josef Vissarionovich Stalin for any infringement of that author's copyright in the speech, Dizzy with Success – Concerning Questions of the Collective Farm Movement)

Last month I blogged about NSCAM — pardon me, NCCAM — the National Center for Complementary and Alternative Medicine, at which your tax dollars are used to research stuff like whether it is a good idea to try to heal your colon cancer with aromatherapy or various forms of crystal-fondling (hint: no).

Now, Via PZ Myers at Pharyngula — who really really hates religion, but not nearly as much as he would if he had to moderate a deacon meeting with me — I see that Senator Tom Harkin (D-Iowa) is all upset because NCCAM is getting icky science all over his hope and belief. First, Harkin is mad because the system is so strongly biased in favor of shots and xrays and science and stuff and against feeling good about crystals:

Clearly, the time has come to “think anew” and to “disenthrall ourselves” from the dogmas and biases that have made our current health care system – based overwhelmingly on conventional medicine – in so many ways wasteful and dysfunctional.

“It is time to end the discrimination against alternative health care practices.

Most importantly, though, Harkin is mad because the folks at NCCAM just don't understand what being the beneficiary of an earmark is all about. If some helpful Democratic Senator from Iowa gets you and all your pals employed at a nice shiny center to study the impact of moonbeams and warm kum-bah-yahs on heart disease, then by God, you'd better find some beneficial effects on the fucking heart disease, capiche? Because if you don't validate your purpose — if you don't show your loyalty to your patron by validating the money he brought home to you — why, you're just throwing it all away:

One of the purposes of this center was to investigate and validate alternative approaches. Quite frankly, I must say publicly that it has fallen short. It think quite frankly that in this center and in the office previously before it, most of its focus has been on disproving things rather than seeking out and approving.

Damn scientists and their scientific method. What's the deal? It's like you're sawing a hole in the bottom of the trough, dudes.