Gay marriage is just fine and dandy for these Univ. of Georgia undergrads: Here's what passes for "debate" these days on college campuses everywhere. Sounds more like religious bigotry to me. How sad.

"All judicial nominees deserve fair hearings": So sayeth the Mobile Register (Quin's most excellent paper).

"Please pray for ailing pope, urges senior Vatican cardinal": Will do. And I encourage others to do the same.

The 411 on the Supreme Court's cert. grants is kindly provided by the folks over at SCOTUSBlog, which you can access here.

As for me, I'll be following the Court's review of this case closely.

What I am listening to right now: Sting's new CD (released today), "Sacred Love." I've only listened to the first two tracks, but so far, so good. IMHO, Sting is the coolest man on the planet (even if he is a lib)--which reminds of this cartoon by the New Yorker (first one).

Robert Bork was a guest on the EWTN news program, "The World Over," on September 26. The video of this program can be viewed here; it should be about 50 minutes in length. So far, there doesn't seem to be a transcript available.

Cass Sunstein's new book is thoughtfully reviewed by Benjamin Wittes for the Weekly Standard. Wittes takes particular aim at chapter 8, which contains Sunstein's empirical claims about what he (Sunstein) sees as a heavy ideological component in the work of federal judges. Sunstein's position has been loudly invoked by Messrs. Schumer, et al., in the confirmation wars. Here's a short paragraph of Wittes's I think may lead you to read the whole thing:

"In short, Sunstein has framed his data to portray an ideologically riven judiciary whose gulf is breached chiefly by judges' infidelity to their own convictions in the face of social pressures. Yet his data are more consistent with what the naive person who still believes in the rule of law would have guessed: Most judges are trying to put their views aside and apply the law, and much of the time, there is no reason to doubt their success."

CIA flap: Does anyone smell a rat here?

Let's, for a moment, suspend reality, and presume that Karl Rove makes it a habit to expose CIA operatives. Which she (Plame) isn't. And which he (Rove) wouldn't.

The article from Novak ran in JULY. It is now, basically, OCTOBER. Could it be that silly season has started in the campaign wars? Could it be that Joe Wilson, Kerry contributor and registered Dem, is playing politics here? Hmmmmm, could be.......

Dear Abby is a liberal
Ok, so maybe this isn't news to you all, but have you ever read what your teenage daughters, wives and sisters read in Dear Abby? I know and recognize that men read it to, but let's be honest here -- more women than men read this drivel, er, column.

At any rate, did anyone happen to catch Abby's response to a young girl who is pregnant, scared and can't talk to her parents? Did Abby say to try to talk to her parents? Did Abby say to talk to a pastor, minister or priest? Did Abby say to go to a trusted family member or teacher?

Um, no.

Abby said to call Planned Parenthood because they'll give her the options.

Thanks, Abby. Another child's blood is now on your hands. Good work.

Fun facts!
The irony of the "do not call" case. The judge who issued the ruling on the do not call registry is registered on the do not call registry. You just gotta love it.

Battle of the Bourbons: Be sure that you don't miss Will Baude's musings on the sweet elixir of life.

Attention all grammar geeks, this article from the New Yorker is for y'all (LvCS).

"The Fuhrer Takes Direction" Mark Steyn's essay on Leni Riefenstahl is well worth reading.

Do not call redux: Events obviously have overtaken this, but for the Mobile Register's take on the FIRST judge's opinion throwing out the do-not-call registry, read here:

'Do not call' registry should be reinstated

09/27/03


CALLING IN the latest report on progress toward killing bad court decisions: One down, one to go.

First, a federal judge in Oklahoma City was wrong to get in the way of a national "do not call" registry that is intended to give people protections against telemarketers. Congress was wise to quickly pass a new law to overturn that decision.

Unfortunately, yet another court has put an even bigger, but equally ill-advised, roadblock in the registry's way. Because this judge ruled on constitutional grounds, only a higher court -- not Congress -- can overturn him.

That constitutional question will take longer to work through, so let's focus on the first case and Congress' admirably quick response.

The first ruling seemed in error, and Congress' reaction well-advised, not merely because the judge's decision could delay a popular program. The ruling seemed in error because its legal reasoning was skewed.

Yes, the registry allowing people to block telemarketing calls has proved enormously popular. Already, 50 million Americans have signed up for the call-blocking option, which is scheduled to take effect Wednesday.

The decision by U.S. District Judge Lee R. West (now probably made moot by Congress) was based on a technicality. Judge West wrote that the Federal Communications Commission, not the FTC, has the authority to set up such a no-call list. He convincingly cited the relevant statutes from the 1990s to show that the FTC's role originally was not to block unwelcome calls, but merely to stop "deceptive ... and other abusive telemarketing acts or practices" for the purpose of fighting "interstate telemarketing fraud."

In effect, the judge said that the FCC can, but hasn't, blocked annoyances -- while the FTC can stop fraud but not mere annoyances.

He would be correct, except that Congress itself had already clearly acknowledged the FTC's authority to do both. Indeed, earlier this year Congress appropriated funds in one bill for the FTC to establish and run the no-call registry, and in another bill it authorized the FTC "to collect fees for the implementation and enforcement of a 'do-not-call' registry."

That's about as clear as can be. To overcome that clarity, the judge resorted to sophistry: "The legislation upon which the FTC has relied does not unequivocally grant the FTC the authority under the relevant existing law to promulgate a do-not-call registry. It merely recognizes that the FTC has done so."

That's bizarre. Why would Congress explicitly provide money for an agency, and allow the agency to raise further funds, to do something that Congress doesn't want it to do? Congress already had expressed its clear intent this year. Twice.

On Capitol Hill, the near-unamimous criticism of the judge's ruling was instructive. When both parties in an otherwise contentious Congress are in agreement about the meaning of the laws they themselves have passed, that's a good sign that a judge has thin grounds (if any) to rule otherwise.

Granted, Congress always ought to be more clear in writing much of its legislation. It should not allow so much leeway for executive agencies to interpret, and fill in the gaps of, the laws Congress passes.

On the flip side, judges these days seem far too prone to rule in favor of the bureaucrats, against the elected lawmakers in Congress, when the bureaucrats assume non-specified authority as a prerogative.

But in this case, there is no dispute between Congress and the agency, the FTC. By explicitly providing funding for the FTC to establish the registry, Congress clearly overrode its own earlier division of duties between the FTC and the FCC. Nevertheless, Congress on Thursday was forced to pass yet another law leaving no doubt on the matter.

It never should have come to that. Even before passing the new law making its intent explicit, Congress' authorization in this matter was not merely implied, but obvious.

The fact is that year in and year out, Congress uses spending bills to provide authorization to agencies throughout the government. Congress' processes are so convoluted that, if its use of spending bills for that purpose weren't allowable, then probably half of the federal government each year would not be operational.

Maybe the judge doesn't understand the congressional process. But that's no excuse for overruling a law that not only is legitimate, but also extraordinarily popular.

--

The second judge's ruling, meanwhile, though more serious, will prove no more popular nor any more legally sound than the first. In an editorial next week, we'll explain why.

James Q. Wilson argues there is "No Substitute for Parties" -- political parties, that is.

Mark Steyn is running a contest geared to the California recall results. Check it out.

The wasteland of K-12 "social studies" classes is charted by Brendan Miniter on OpinionJournal today. He reviews a book, Where Did Social Studies Go Wrong?, published recently by the Thomas B. Fordham Foundation, and concludes with this:

"Rather than just indict social studies, Fordham's authors offer solutions. Principal among them is to recognize that facts have an objective basis, and aren't mainly a matter of opinion. They add that students respond well to knowledge-based education and are capable of understanding historical perspectives that are different than their own experiences--they can think outside their own skin."

Read the whole thing.

The "elephantine mass" of asbestos litigation is diagnosed by UC San Diego economist Michelle White in the summer 2003 issue of Cato's Regulation magazine (scroll down to "Liability"). The gist of it is conveyed in this sentence: "Unlike other mass torts, asbestos litigation has no natural ending point because the number of potential plaintiffs and potential defendants is virtually unlimited."

Crescat Sententia's cool new digs can be found here. Check 'em out. And while you're over there, you can also read--if you haven't had a chance to do so yet--Will Baude's interview of me from a month or so ago (just before my clerkship ended). It was an honor to be asked to participate in CS's 20 questions segment, and, quite frankly, I feel a little like a pig in a prom dress compared to the other, far more distinguished individuals with whom I am grouped. In any event, if you aren't already reading CS you should. The blog is, as Judge Posner has eloquently noted, quite "good."

Ole Miss Conservative points to 2 very interesting items from California, having nothing to do with The Recall: 1) "Portrait of a Hollywood Republican" (an interview of Ben Stein), and 2) "Republican party seeks to draft Miller into politics" (that's satirist Dennis Miller, and the idea is for him to challenge Barbara Boxer!).

K Street

I dunno. I have now watched three episodes of K Street on HBO and I just don't know what to think. It seems to be fast becoming "The James Carville Show" which in and of itself is tough to watch. And it is not that I don't appreciate Mary Matalin.....but a) I just don't get their relationship -- never have, never will and b) her voice annoys me. And Carville? Man, I need a valium after watching him.

And I can understand, in theory, why fictional characters are needed for explanation purposes, but their roles already seem a bit far-fetched. The chick from the firm seems to be evolving into some kind of obligatory lesbian character -- it's not clear yet. And Tommy seems to be a rather strange figure who sees apparitions of some type and cruises the streets of Washington for ladies of the evening. Not your garden variety lobbyist. Or maybe it is and I've just missed that side of K Street. Worst of all is this mystery partner for their so-called lobbying firm who seems to have questionable affiliations and more than a secretive side. He is just PAINFUL to watch. As if Mary would really put up with the schmuck for more than 10 minutes.

What is most troublesome of all is the strained attempt by all the Washingtonians (from Senators to journalists) to be "on camera" and deliver their lines with feigned nonchalance. Now, I would be the first to admit that things would have to be jazzed up for the outside the beltway audience because watching paint dry -- an accurate description of most meetings in DC -- is not terribly good television. But this is a bit over-the-top.

I just dunno.

CD recommendation: I don't do this much, but I highly recommend "Early American Choral Music, Vol. 1," featuring the music of American composer William Billings (1746-1800). Words simply cannot describe the beauty of the music on this CD. I give it my highest recommendation.

"Sen. Orrin Hatch: The Oregonian confuses issues on judicial nominations": SJC Chairman Orrin Hatch has written a marvelous letter to the editor to the Oregonian in response to this editorial penned by that paper a few weeks ago (entitled "Nation's filter for judges working"). In the letter, Hatch notes, inter alia, that:

Your claim that appeals court nominee Bill Pryor was "caught in an investigation for his work in GOP fund-raisers" doesn't even make sense. Mr. Pryor's fund raising for the Republican Attorneys General Association is public knowledge and was entirely legal. Senate Democrats' own inquiry found that his testimony about his activities was truthful and fully corroborated.

The truth is exactly opposite of your claim that Mr. Pryor "favors mandated school prayer." The U.S. Court of Appeals unanimously agreed with his opinion as Alabama Attorney General that the First Amendment protects voluntary, student-initiated prayer, but not teacher-led prayer. He told the Judiciary Committee "there could be no school-sponsored, government-sponsored religious activity."

You offer nothing contradicting Mr. Pryor's promise to the Committee: "As a judge, I would follow all precedents of the Supreme Court faithfully, even those with which I strongly disagree." Justice Douglas Johnstone, the only Democrat on the Alabama Supreme Court, agreed in his assessment that Mr. Pryor "is doing his duty -- and a splendid job of it -- regardless of the consequences."

Alias season premiere is tonight!: Don't miss it.

"Morris Dees' Defamation": It's hard to believe that anybody takes Morris Dees, or his Southern Poverty Law Center, seriously. Indeed, IMHO, Dees is to Southern liberalism what Chief Justice Roy Moore is to Southern conservatism. Those two are meant for one another.

"Gay marriage stirs conservatives again--Right wing braces for Mass. ruling": The Boston Globe has this report (LvHB).

Paul Johnson essays for Forbes: A fan of SA (and a former student of mine) has discovered an archive of the short pieces written by the noted historian for Forbes during 2003, here. Thanks, Joseph!

"Pope Announces 31 New Cardinals, One Name Secret": Reuters has the 411 here.

Conservatives-in-academe update: The David Brooks column I noted yesterday has generated an interesting exchange at Professor Bainbridge.

Charles Krauthammer makes the case that Ted Kennedy has lost his mind.

The Left, always "on message": As the Washington Post reported yesterday, a recent study by the U.S. Office of Management & Budget (the second item shown here) concludes that the benefits dervied from environmental regulations outweigh their costs. The Post story states that this news "has pleasantly surprised some environmentalists who doubted the Bush administration would champion the benefits of government regulations, and fueled arguments that the White House should continue pushing clean-air standards rather than trying to weaken some."

So, we moved from "pleased" to "fueled" in the same sentence. That sounds about right, as in the next paragraph:
"'I'm sure the true believers in the Bush administration will brand this report as true heresy because it defies the stereotype of burdensome, worthless regulations,' Sen. Richard J. Durbin (D-Ill.) said yesterday. 'They clearly don't understand that the government regulations are there to protect you -- and they work.'"
Durbin is "sure" of this, in spite of the fact that the report bears the imprimatur of the Administration. No matter. Also, this report is used by the Honorable Member to defend all regulations, not just the ones actually studied. "They" "work." Now there's a sophisticated argument!

Can the Post reporter find a critic of the Administration outside government to carp and complain? But of course:
"'The data is prospective rather than retrospective,' said Gary Bass of OMB Watch, a watchdog organization. 'We don't have an adequate data set. My guess is that if we did, the benefits would exceed the cost in a wider spread than the OMB report shows.'"
I'm a little surprised, actually, that the Post headline wasn't something along the lines of, "Administration Suppresses Data Showing True Value of Environmental Regulations."

As you may have heard, Alabama lost yesterday to Arkansas, 34-31, in double overtime. But it was actually worse than the score suggests. Alabama had managed to eke out a 10-10 tie by the end of the first half, and then ripped off three unanswered touchdowns in the 3rd quarter. So the loss involved Alabama blowing a 21-point lead. No excuses will be offered here.

On the other hand, it was fun to listen to my son, John, explain the basics of the game of football to John Derbyshire.

Reminder: Derbyshire is speaking to the Montgomery Federalist Society on Tuesday, Sept. 30, at 12 noon. Call Jack Park for details, 334-242-7401.

A wee bit o' good news

I have been asked to host a radio show on Radio Free republic. Ok, so its not WJFK with full syndication, but it's a start, eh? ;)

My first show will be Wednesday night at 8 PM EST -- tune in at www.freerepublic.com - click on the Radio Free Republic icon. I'll let you know who the guest is when he confirms!

Good stuff.....

David Brooks, the conservative op-ed columnist at the NY Times, has written an interesting essay today explaining how conservative students are deterred from pursuing academic careers.

I'm headed to Tuscaloosa this morning to watch the Tide play Arkansas (2:30 central on CBS); dinner at Dreamland to follow. The weather is fine -- not quite fall, but getting there -- and I can't think of a better place in the world to be.

Is this a great country, or what?

The Slippery Slope: I am off to buy the newest Lemony Snickett book for my son, and to get some munchies for the ND/Purdue game. I may post later this evening. Y'all have a great Saturday (wherever y'all are).

"Critics Say Frist and GOP Not Tough Enough":

Senate Republicans have failed to play "hardball" with Democrats over the filibuster of President Bush's judicial nominations and other issues, say critics, some of whom suggest Majority Leader Bill Frist doesn't have what it takes to get the job done.

You can read the rest of the article here.

"Irish fans growing impatient": When what they need to do is simply grow up. I am with you Coach Willingham. Hang in there.

"Judges and Politics: Cass Sunstein gets it wrong"; So sayeth Benjamin Wittes of the Weekly Standard in this review of Sunstein's new book, "Why Societies Need Dissent." (Hat tip to Adam White of Ex Parte and White Noize).

Rep. Jim Marshall (D-GA) to replace Sen. Zell Miller (D-GA)?: I almost fell out of my chair laughing when I read this reader comment in one of Professor Reynolds's posts over at Instapundit. Are you freakin' kidding me? Jim Marshall couldn't win a state wide race here in Georgia if his life depended on it. The Republican nominee, which will almost certainly be Rep. Johnny Isakson, would trounce him (that is, of course, assuming he could even get the dem nomination--which he can't and won't). Marshall just barely beat my good friend Calder Clay in the last election, and CC Rider will whip his rear the next time 'round. Marshall for the U.S. Senate? I don't think so.

Who supports Chief Justice Roy Moore?!: The Foundation for Moral Law does. They really like to play fast and loose with the exclamation point, which, of course, reminds me of this Seinfeld episode, and this particular exchange between Elaine and one of her many suitors:

Elaine: Well, I was just curious why you didn't use an exclamation point?

Jake: What are you talking about?

Elaine: See, right here you wrote "Myra had the baby", but you didn't use an exclamation point.

Jake: So?

Elaine: So, it's nothing. Forget it, forget it, I just find it curious.

Jake: What's so curious about it?

Elaine: Well, I mean if one of your close friends had a baby and I left you a message about it, I would use an exclamation point.

Jake: Well, maybe I don't use my exclamation points as haphazardly as you do.

Elaine: You don't think that someone having a baby warrants an exclamation point.

Jake: Hey, I just chalked down the message. I didn't know I was required to capture the mood of each caller.

Elaine: I just thought you would be a little more excited about a friend of mine having a baby.

Jake: Ok, I'm excited. I just don't happen to like exclamation points.

Elaine: Well, you know Jake, you should learn to use them. Like the way I'm talking right now, I would put an exclamation points at the end of all these sentences! On this one! And on that one!

Jake: Well, you can put one on this one: I'm leaving!

And later this exchange between Elaine and her boss Mr. Lippman:

Elaine: You wanted to see me, Mr. Lippman?

Lippman: I was just going over the Jake Jarmel book and I understand you worked with him very closely.

Elaine: Yes, krhm, yes I did.

Lippman: And, anyway I was just reading your final edit, um, there seems to be an inordinate number of exclamation points.

Elaine: Well, I felt that the writing lacked certain emotion and intensity.

Lippman: Oh, "It was damp and chilly afternoon, so I decided to put on my sweatshirt!"

Elaine: Right, well...

Lippman: You put exclamation point after sweatshirt?

Elaine: That's that's correct, I-I felt that the character doesn't like to be ch-ch-chilly...

Lippman: I see, "I pulled the lever on the machine, but the Clark bar didn't come out!" Exclamation point?

Elaine: Well, yeah, you know how frustrating that can be when you keep putting quarters and quarters in to machine and then *prrt* nothing comes out...

Lippman: Get rid of the exclamation points...

Elaine: Ok, ok ok ...

Lippman: I hate exclamation points...

Elaine: ...ok I'll just....

Re-call this ruling: Having read the opinion cn the Do Not Call registry from Judge Nottingham (anybody have any info on the backgrounds of either Nottingham or West, by the way?), several things jump out at me. First, the decision is cogent: well explained and well written. Second,the decision doesn't hold together logically. Sure, each component part is well reasoned. As in: Consideration A is decided reasonably on its own merits, as is Consideration B, as is Consideration C (etc.) But the problem is that the several issues involved are each examined in a vacuum, as if A and B and C have no inter-related bearing on each other. In short, the judge did not treat the regulation at issue as the coherent whole that it is. I'll write a more detailed explanation over the weekend, or perhaps Monday, but for now, my conclusion: Throwing out the do-not-call registry on First Amendment grounds is not defensible. My prediction is that if this reaches the Supreme Court, it will vote either 8-1 or 9-0 that Judge Nottingham was wrong and that the Registry is indeed constitutional. The only potential dissenter would be Scalia, who is almost an absolutist on First Amendment issues. But if he dissents, I predict that not even Thomas will join him. (Okay, I am now going to hedge my prediction for if it reaches the Supremes: I can envision a scenario, very unlikely, in the 1-in-1,000 realm of possibility, that there could be two dissenters: Scalia and, oddly enough, Breyer. How's that for something to ponder?) Anyway, as I said, more explanation to follow when I have more time.....

Majority Leader Bill Frist: Bill Pryor's confirmation to the 11th Circuit is a "top priority" of the GOP's senate agenda: You can read his statements to this effect here.

"Senate should confirm Bill Pryor to 11th Circuit Court of Appeals": Here's a strong endorsement of Attorney General Pryor's nomination to the Eleventh Circuit from the editor and publisher of the Montgomery Independent, Bob Martin.

Excluding the Catholic viewpoint from public debate: Yet another liberal hit piece on Catholics by the left wing media. Why any real Catholic votes Democratic is beyond my understanding.

"Pickering Deserves Another Unanimous Confirmation": Another excellent commentary by John Nowacki of the Free Congress Foundation.

"Ala. Justice Moore to Get Nov. 12 Trial" The AP has this report.

Adam White's op-ed in this week's Harvard Law Record is devoted to a review of Judge Bork's new book.

I suggest that you get into the habit of looking at the Record every Friday morning, for Adam's column. The paper is published on Thursdays.

National Review's 2003 education survey is featured in the October 13 issue of the magazine, and is also available online beginning here. The lead essay by Victor Davis Hanson is superb.

Public service blogging by the Ole Miss Conservative: Click here for "OMC's Handy-Dandy Guide to Websites Opposing Dem Pres Candidates."

Bashman rules the Blawgosphere: My good friend Plainsman explains why.

Update: One of my favorite libs, D. of Sub Judice, also has some thoughts on the ever increasing influence of Bashman, noting:

I agree with Plainsman. Howard is indispensible. Question, though: why is the Alabama S.G. wasting his time arguing the merits of an important appeal on a blog? Could it be that he thinks that the panel (and its law clerks) read Howard daily too, and wants to make sure that he get his voice heard? If so (and I think this is the likely explanation), does Howard owe the plaintiffs in the case a sur-reply? If I were the attorney for plaintiffs, I would shoot Howard an email post haste, which praised him, and then offered some more arguments on the merits. Prediction: in one year, writing an email to Howard Bashman, hoping for a positive mention in the blog, will become part of what it means to zealously represent a client in a high profile appellate case. Yikes.

More on South Bend's decision not to air the new NBC sitcom "Coupling": The Chicago Sun-Times has this report.

Well wishes: Here's hoping that Pope John Paul II recovers quickly from his current illness. My thoughts and prayers go out to him.

Court to hear Moore lawyers urge delay in judicial ethics case: The AP has this report.

And the award for best name for a new conservative blog goes to . . . . "The Vatican of Liberalism," which is not in the least bit liberal. Check it out. (Thanks to HH for the pointer)

Sen. Jeffords will vote for Pickering: Well, color me surprised. Although I appreciate that Jeffords is doing the right thing (this time), I still don't care for the man.

Bill Pryor, the Man in the Middle: Here's an in depth interview of Alabama Attorney General Bill Pryor by Christianity Today that will no doubt be of interest to SA's readers. (LvSB)

I love this part of the interview:

You also said that the Supreme Court had created a constitutional right to murder an unborn child. Do you also stand by that statement?

I do.

Put that in your pipe and smoke it, NARAL et al.

And this response from Pryor is simply excellent:

Your position on states' rights has drawn some concern in some quarters. In the past, some people have used "states' rights" arguments to resist civil rights advances. Where do you stand?

I, first of all, rarely, if ever, use the term states' rights. I believe that a central feature of our Constitution is federalism, which means that the founding fathers created a federal government with strong powers to represent our interest in foreign affairs, national security, and in promoting the free flow of interstate commerce.

Following the Civil War, the federal government was given a role in protecting civil rights from abuses by the states. I support the proper role of the federal government, but there is left to the states a broad authority to deal with most matters of public policy.

. . . .

But I'm not one who believes in no role for the federal government. I believe in federalism. I share James Madison's perspective that we need a balance of power. And there's clearly a proper role for the federal government.

Political grandstanding 101: This lesson is brought to you by (suspended) Chief Justice Roy Moore (LvADF).

More on the federal marriage amendment: Here's the latest. Hot off the wires:

-Federal Marriage Amendment Debate Heats Up on Capitol Hill (Crosswalk.com)

-Questions and Answers: What's Wrong With Letting Same-Sex Couples "Marry?" (FRC) (LvADF).

-Alliance for Marriage Pushes for Federal Amendment (Catholic Herald)

-Marriage Protection Week announced; Southern Baptists in key partnership (BP News)

-GOP May Endorse Marriage Amendment (Focus on the Family)

-We need a marriage amendment (The Daily Journal)

Lies, Damn lies, and stats used by defenders of the Ninth Circuit: My boy CC lays the smackdown on the Ninth Circuit here.

Another new conservative-law-professor blog! Check out The Right Coast, a group blog comprised of members of the U. of San Diego law faculty: Gail Heriot, Saikrishna Prakash, Michael Rappoport, Maimon Schwarzschild, Thomas Smith, and Christopher Wonnell. I'll check this one regularly!

More on the "Do Not Call" opinion: At first read, it strikes me as very odd that the judge in the "Do Not Call" registry case ruled as he did. In effect, he said Congress gave the authority to set up the registry not to the FTC, but to the FCC -- and that therefore the FTC does not have the lawful right to put it into effect. That would be fine if indeed there were a clear, or even fairly clear, dispute between Congress and the FTC. Executive agencies all too often run afoul of congressional intent and assert way more law-promulgating (and thus effectively legislative) authority than was ever intended by the Constitution. But in this case Congress and the FTC are so much in concert that Congress TWICE this year expressly provided the FTC either authority or funding to implement the registry. Yes, it is arguable that earlier authorizations gave this kind of power to the FCC while reserving to the FTC the right to guard not against instrusiveness but only against fraud. But when Congress appropriates money to one agency to carry out a quite specific function, as Congress did this year, that congressional action (signed into law by the President, of course) therefore BECOMES itself an authorization. Whether it's a good practice or not, the fact is that Congress authorizes agency actions by way of Appropriations bills all the time. I know, because I worked for the Appropriations Committee, and at one point in 1995 we tried to change that practice. But, in the long run, to no avail. If Congress's agency-authorizations via Approps bills were not to be given any weight by the courts, half the agencies and departments of the US Government would be operating illegitimately. Therefore, this judge is splitting hairs betwen the FCC and FTC for no reason: Congress now HAS authorized the FTC to implement the registry, so the agency jurisdictional battle (if there were indeed such a thing, other than in the minds of the telemarketing companies that are the plaintiffs in this suit) is effectively moot. I predict Judge Lee's ruling to be overturned as decisively as the en banc Ninth Circuit overrode the three-judge panel on the California recall election.

The rollout of Trial Lawyers, Inc., which SA noted yesterday, has received a decent amount of press attention, including stories in the Wall Street Journal, the Washington Times, and UPI.

Say hello to the newest member of the First Brigade: ProfessorBainbridge.com, one of my favorite new blawgs. Check it out.

DO NOT CALL: I guess the word is getting out now that federal district judge Lee. R. West in Oklahoma City has ruled that the FTC does not have the authority to create the national Do Not Call registry. From the news story I've read, this seems to be a bizarre decision.... but I should probably withhold comment until I get more details than AP usually provides. Can anybody here post a link to the decision, or the text at least of the executive summary thereof? Also, what can anybody tell me about Judge West?

Update: Here's the text of the opinion.

New blog for law students: Lawrence Solum, proprietor of the amazingly good Legal Theory Blog, has recently launched the