Archive for January, 2010

Good enough for government work

Thursday, January 21st, 2010

Here’s all you need to know about federal habeas corpus review of state-court decisions. It comes from the transcript of the Supreme Court’s oral argument in Berghuis v. Smith (available here at SCOTUSBlog).

Under the Anti-terrorism and Effective Death Penalty Act (AEDPA), federal courts reviewing state-court rulings for constitutional error are supposed to grant deference to the state courts’ decisions, and not throw out those holdings unless they are — not just wrong — an unreasonable application of clearly established federal law. Courts have spent about fifteen years trying to parse out the intricacies and nuances of this language. Chief Justice John Roberts hit upon a very succinct and pithy distillation in the Berghuis argument.

The case involved the proper standard a court should apply to determine whether members of a particular minority group are systematically under-represented in jury pools for criminal trials. (Here is a nice overview from SCOTUSwiki.) A fair amount of the argument revolved around various statistics, and percentages, and methods of analyzing group representation, and whether the state supreme court used the correct test for assessing the prisoner’s jury claim. Justice Stephen Breyer, in sort of a roundabout way, asked the state’s lawyer a question about the absolute numerical difference versus the expected sample size (or something), and basically said he didn’t want to get the math wrong and “write something, like, saying 2 and 2 is 6.”

Chief Justice Roberts tied this circumlocution back to the governing statute:

[I]t’s not that you are going to say: 2 plus 2 is 6. I suppose, under AEDPA, all you have to do is say: 2 plus 2 is somewhere between 3 and 5, right?

And that’s the bottom line in federal habeas. The state court, in ruling on someone’s federal constitutional rights, can say, in essence, that “2 plus 2 is somewhere between 3 and 5,” and a federal court cannot (or at least should not) overturn that decision, even when it acknowledges that 2 plus 2 is clearly 4 and the state court’s didn’t get that right. Now, you can debate the wisdom — and even the constitutionality — of that policy, and you can certainly debate how well the federal courts abide by that dictate, and you can debate whether the state court in the Berghuis case even managed to get in the right ballpark. But you’ll never see a more cogent summation of the rule.

The Me Decade (for the right price)

Monday, January 11th, 2010

I don’t really understand all the consternation over what to call the last decade. I agree that there doesn’t seem to be much consensus on the right name, but I fail to see why this is much of a problem. Whether you say “the zeros” or “the aughts” or some other name, people pretty much know what you’re talking about.

For the record, I think we’ll eventually call the decade “the oh’s,” because we’re likely to refer to the years in that decade as “twenty-oh-eight” rather than “two thousand and five” or whatever. My hunch is based on the fact that we refer to every other year by saying the first two digits as if they were one number, like “nineteen-oh-six” and “eighteen-oh-four.” “Twenty-oh-X” seems easier to me, hence the number of people who catch themselves saying “twenty-oh-ten” for this year.

Still, we could do away with all the confusion by just giving the naming rights for each decade to the highest bidder. I’m not sure how the payment system would work — maybe they could make donations to the U.S. Treasury — but it’s not like it wouldn’t be worth a lot to the bidders.

In this spirit, I propose naming the decade that just ended “the googles.” It works well because those “o’s” in “google” look like the zeros in the years. And, of course, the provenance of the company name is a math term with a lot of zeros in it. Plus, it’s hard to dispute that this wasn’t Google’s decade. We could even give the decade’s naming rights to Google for a reduced fee, both in gratitude for how much easier it’s made things, and also because the decade is over.

The real bidding war can start with the current decade. Why do we have to call it “the teens”? Ugh — moody, awkward teenagers are not the kind of brand association we want with our calendars. Someone else should step up. What about “the AT&T’s”? As in, “Will Sarah Palin run in AT&Twelve?” I’m sure that a certain Japanese car company would be all over the following decade, “the toyotas.” Future history books will talk about how “in twenty-toyota-five, a Chinese rocket landed on the moon.” Oh, I’m sorry, I meant “a Chinese rocket landed on the big M&M in the sky.”

I know what you’re saying: How are we going to write these numbers? I’m way ahead of you. Part of the naming-rights deal would include a license to use the company’s logo as part of the year name. So the “1″ in “2012″ would be replaced by the little blue AT&T globe icon. And the second “2″ in “2025″ would be replaced by Toyota’s circle-t thing logo.

I think this is a win-win for everybody, and I want to see it happen. I just hope I live until “the Gatoradeys.” I think 20G4 (that’s “twenty-gatoradey-four”) will be a pretty good year.

Cautiously Optimistic About 2010

Monday, January 4th, 2010


Happy new year from an old friend of the blog. She’s nicer than she appears.