Archive for January, 2009

The times they are a-changin’

Monday, January 26th, 2009

In January 1961, some people met up at a lunch counter in Rock Hill, South Carolina. The blacks and whites did not know each other. The blacks sat down and requested service, and got thirty days in jail for their trouble. The whites showed up to hurl taunts, insults, eggs, and fists.

Forty-eight years later, a black man is inaugurated as President of the United States, and the local paper runs a story about the confrontation at the lunch counter all those years ago. Two of the white men separately call up the paper and say they were there, and are ashamed, and think it’s time to apologize. So the paper got some of these folks back together, and here’s what happened.


Thursday, January 22nd, 2009

Big news from the Supreme Court today on the issue of qualified immunity, in a case called Pearson v. Callahan. Here’s a summary from Prof. Kerr at Volokh, and more from Prof. Althouse and Steve Minor. The Court, in a much-anticipated move, overruled the 2001 case Saucier v. Katz, and held that Saucier‘s two-step mode of analysis was no longer mandatory, but instead would now be discretionary.

Long-time readers know that I opposed overruling Saucier, and I won’t re-hash my argument again in this post. I’ll just link to previous writings here, here, here, and (especially) here. Steve Minor’s post also links to several of his prior posts on the doctrine.

Briefly, I’m not as optimistic as the (unanimous) Court that future courts will continue to decide the constitutional questions. And I think that presents the dangers of stagnating the development (and not necessarily expansion, I also mean clarification) of the law and failing to provide guidance to lower courts and litigants. It will simply prove too easy, I fear, to skip right to step two, since it will usually be the easier question to answer. I understand the principle of constitutional avoidance, but (a) it’s a prudential doctrine, not an Article III mandate, and (b) Pearson will tempt lower courts to rely on the avoidance doctrine to skip straight to the “clearly established” prong of Saucier.

One final thought: I wonder if I’m alone in seeing a parallel between Pearson and the Booker line of cases. A mandatory but constitutionally-suspect guideline is made discretionary but still somewhat advisory? It’s a bit of a stretch, I admit. But I suspect that the lower courts will be much more eager to exercise their discretion in qualified immunity cases than they have proven to be so far in sentencing cases.

File this under "D" for "Duh!" and "Disappearing"

Wednesday, January 14th, 2009

I saw an interesting story in the New York Times about a blue-ribbon task force study concluding that the supposed threat to children from online sexual predators is vastly overblown, if not a myth approaching moral panic status. I wonder how often police from different jurisdictions end up talking to each other in chat rooms.

Anyway, I suspect this story will fade away and no one — certainly not lawmakers — will remember it the next time some high-profile case grabs headlines and demands action…”for the children.”

Run for the Borders

Tuesday, January 6th, 2009

I’m working on posts about my book reading in 2008 and 2009, and it got me thinking about bookstores. Specifically, Borders. The company’s stock price has plummetted, and rumors have been swirling that Borders will declare bankruptcy or even go out of business altogether. As readers will recall, I got a Borders gift card for Christmas, and then I read this item in the Times about how gift card sales are down at stores where consumers think the store won’t be around long enough to use the card.

I like going to Borders (and its somewhat healthier sister, Barnes & Noble) for the same reason I enjoying going to any bookstore — the chance to browse around, people watch, read some cover flaps and back covers, and discover something I wasn’t looking for. But I find myself going less and less unless they rope me in with a huge coupon offer, in the range of thirty to forty percent off. Even then, I have to do some homework to find books I can’t find at an even better price on Amazon.

Sometimes, I prefer having the book right away, and it’s worth paying a little more for that. But that margin is shrinking. I’m sure I’ll always continue going to bookstores, especially funky used book stores. But when I go to Borders or B&N, I take a notepad to jot down books that look interesting, so I can go home and check the Amazon price. It’s probably not a sustainable business model to slash prices forty percent across the board. Maybe they should start charging a two-coffee minimum.