SharksWithLasers -- Seth Cooper

A CUTTING-EDGE BLOG FOR THE WORLD OF THE 21st CENTURY, Currently operated by Seth L. Cooper, a 27 year-old attorney in Seattle (sethlcooper at comcast dot net)

Friday, February 27, 2004

DISASTER DATE...BUT KINDA FUNNY: While it is my general preference to keep this blog focused upon intellectual topics and current events, its always nice to throw in a personal anecdote every now and again.

On President’s Day, I hung out with a girl whose name I won't mention. This girl is nineteen-and-a-half, and so probably too young and immature for me to begin with—but I decided to give her the benefit of the doubt. Anyway, I picked her up down towards Woodinville. She wanted to look at some pet stores with the idea of getting something for a friend of hers. So we went around for a while and all was fine and good. It started to get towards evening and both of us were hungry. She told me that she would like to eat at her new place of work. This was a little surprising to me, since I figured most people wouldn’t want to go eat at their job, notwithstanding the fact that her place of work was a Pizza Hut and I was certainly willing to take her out to a much nicer place. In any event, I decided to go along with it, since even Pizza Hut can be pretty good every now and again.

The two of us arrived at Pizza Hut. While we were seated at the table, my date continued to keep her attention focused upon the back of the restaurant, to see which of her co-workers were there. She then asked me if I wouldn’t mind her going and talking to a few of her friends at work, and I said that I was fine with that. On the drive over she had told me that the work atmosphere was really relaxed and that she liked flirting with this other guy she works with. Thus, I figured that’s what she was going to do when she left the table. To be honest, I was totally fine about it, in part because I was starting to have some misgivings about her anyway and knew that there was absolutely zero chances of a future between her and I. So why spoil her fun and get bent out of shape over all of it myself?

She came back a few moments later, very quiet and she appeared to be tearing up a bit. I asked her what was the matter and she just shook her head and mumbled something about hating her manager. From this point on, she became very quiet. She continued to gaze over towards the back of the restaurant or down at her food, avoiding me. In attempt to keep things from getting totally awkward, I began to ask her all sorts of questions about things, just to keep some sort of conversation going and lighten things up. I really didn’t succeed in this regard, however, since she usually mumbled one-word answers and nothing more.

“Cooper,” I thought to myself, “this is really weird.” “And she’s got a strange look in her eyes.” Then it struck me. Well, of course. She had earlier let on to the fact that she’s bi-polar, which gave me concerns. Perhaps now it was becoming evident. At this point, I began to wonder how I was going to get myself out of it all.

The next moment, the manager came right over. The manager apologized to my date, but also told her that the pizza boy she’d been talking to can be very easily distracted and has a hard time focusing. The manager then told my date that she would be to talk with her other employee during his next break.

With that, the manager left, and for the next few minutes she continued to act strange and despondent. “My, that was awkward,” I thought. So, we continued to eat our food and I continued to try and make conversation with her—but no luck. By now, I was actually a bit angry. To be perfectly honest, she could've been sleeping with the pizza boy, for all that I cared. But the fact of the matter was that I was paying for the date and I expected to have at least some sort of company! I didn’t think that was too much to ask.

In any case, a few minutes later, she got back up again and went to the back of the restaurant, behind the counter. She came back, and once AGAIN, continued in her odd behavior. “She’s snapped!” I thought to myself. “This is crazy! What am I going to do?!”

Fortunately, I didn’t have to do much of anything. My date finally spoke up and told me that her manager had asked her to work for a few hours, since Pizza Hut was very busy. I was rather surprised by this, and figured she could be lying. The place certainly wasn’t crowded and didn’t appear busy. But that ultimately didn’t matter to me—this was my big chance…my chance to escape! I asked her if she would be able to get herself a ride home. She replied that she would be okay. In my mind, the choice was perfectly clear: “Cooper, get out of there! Go now!”

Seizing the opportunity, I hastily paid the bill, boxed up what was left and got up. She waved from across the table and I promptly made my way to the exit, continuing to my truck at a brisk pace. I didn’t want to leave her the time to change her mind. Without a hitch, I started up the car and sped off.

On the drive home, I was actually laughing to myself. This girl was crazy. CRAZY! I was relieved just to be out of that situation. Apparently, the pizza boy might very well have been more to her liking than the lawyer. Well, he can have her. And good luck to him, too. You certainly can’t win ‘em all, and that’s one that I’m more than happy to lose.

(Downtown Seattle, WA)

Thursday, February 26, 2004

NOTA BENE: Hugh Hewitt scored a cool radio interview gig with National Security Adviser Dr. Condoleezza Rice. The transcript is available at Hugh's website. Of particular interest is the following statement by Rice:

" is absolutely the case that when you look back at the period immediately following the collapse of the Soviet Union, we did not invest in our intelligence agency in a way that we needed to and we paid a price for that and we’re continuing to have to have rebuild them."

It is an interesting interview on national security issues and hotspots that is well worth the read.
FULL REVIEW OF FIRST AMONG EQUALS: The aforementioned SU Review published an (understandably) abridged version of my review of Judge Kenneth W. Starr's "First Among Equals." I will provide the (full) version I submitted below.


By Seth Cooper

To write a one-volume summary about the US Supreme Court and its major lines of jurisprudence over the last fifty years is no easy task. Yet, Judge Kenneth Starr is more than up to the task in “First Among Equals,” recently released in paperback.

Contrary to all the venomous nonsense you may have heard from James Carville & Co. during the Clinton Impeachment crisis, Starr is a brilliant legal mind and has had a stellar career in the law. A former Chief Justice Warren Burger, Starr has had a successful private practice, served as a judge on the U.S. Court of Appeals for the D.C. Circuit, and also served as Solicitor General, arguing cases before the U.S. Supreme Court.

He brings his insight and experience into this book, writing a short introduction to some of the early landmark cases in U.S. Supreme Court during the tenure of the Great Chief Justice John Marshall, followed by short biographical sketches of the Court’s current roster. Starr then provides sharp and succinct analysis of constitutional case law concerning a variety of issues, such as affirmative action, the rights of criminal defendants, the powers of the President, and federalism. The concluding chapter is devoted entirely to Bush v. Gore (2000).

Much of Starr’s analysis describes the cases and views of the justices in light of the two competing judicial philosophies adhered to the respective members of the court: textualism and common-law constitutionalism. As Starr notes, Justice Antonin Scalia has been a champion of textualism, an approach to statutory and constitutional interpretation that requires a jurist to discern the meaning of the text, according to its structure, history, logic and original understanding. Textualism is often wrongly confused with “strict constructionism” or an attempt to discover what law was “intended” to mean in the minds of those who made the law, rather than the search for the meaning of the words actually adopted.

This judicial philosophy stands in contrast to that of common-law constitutionalism, in which constitutional law is created through judicial decision-making by judges in individual cases, with the constitution’s text and its original understanding holding a less prominent position. This judicial philosophy is all but synonymous with the “living Constitution” concept, which holds that our “understanding” of the Constitution’s meaning “evolves” over time as our society continues to “evolve.” The values that underlie Constitution are to be expounded by the judges based upon the ideals of the contemporary age.

Starr spends a great deal of time in the First Amendment realm. (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.) There is obviously much room to work with here, and Starr ably describes recent developments in the areas of free speech and religious establishment jurisprudence.

One important development is the increasing role of “viewpoint neutrality” in the context of religious speech. This simply means that speech involving religious perspectives is to be treated on an equal footing with secular viewpoints. The seminal case in this regard remains Rosenberger v. Rector (1995), where the court held that a student newspaper with a Christian message couldn’t be denied support from student fees collected for student groups and group publications when secular groups were given such support. As Starr points out, “[o]nce government establishes a ‘forum,’ a place where speech and assembly can take place, then it may not discriminate against certain views or perspectives.”

Since the initial publication of Starr’s book, the Court continued this approach in Zelman vs. Simmons-Harris (2002) in upholding a school voucher program that would allow state funds to be used to pay for students in failing in public schools to go to private or parochial schools instead. Critics claim this violates the separation of church and state, but the Court held that so long as such funds were disturbed for the purpose of education available for students to attend secular private schools that they could likewise be available for students to attend religious private schools, irregardless of the religious viewpoints at the latter institutions.

Of course, this free speech line of cases is marginally at odds with the Court’s modern Establishment Clause jurisprudence, which began with Everson v. Board of Education (1947). It was there that the Court held that the First Amendment’s Establishment Clause applied to the states as well as the federal government, that the Amendment erected a “wall of separation” between church and state, and that both are to be entirely neutral towards religion and irreligion. On its face, this may seem entirely acceptable and consistent with the recent developments in “viewpoint discrimination” cases, but a number of cases decided in Everson’s wake tell another story, in which those with religious viewpoints have been subjected to much discrimination, with providing an approving nod.

According to Starr, “Everson effectively denied the idea that religion has public value in a democracy.” In the wake of Everson, Christmas nativity scenes would disappear from public property, voluntary prayers would be eliminated from school classrooms, and other religious expressions by adults and children that might happen to give the appearance of government approval would be stopped by the Court.

Starr hoped that the Court would reverse itself in this area, when as Solicitor General he argued the case of Lee v. Weisman (1992). The Court did not see things his way, holding that a nonsectarian, consensual prayer offered at a high school graduation ceremony violated the separation of church and state. According to the Court, the offering of such a prayer was coercive and discriminatory against those who held different beliefs.

Indeed, the Court has showed no signs of slowing down in this regard, as in Santa Fe Independent School District v. Doe (2000), it was held unconstitutional for student-led and student initiated prayers before a high-school football tame. In a biting dissent, Chief Justice William Rehnquist opined that “the majority opinion bristles with hostility to all things religious in public life.”

In another line of cases, the Court has also recognized, in many instances, a freedom from coerced support of speech with which the individual disagrees. In Abood v. City of Detroit (1977), the Court upheld the right of a teacher to avoid paying fees to a union to the extent that the fees subsidized the union’s political activities. The Court similarly held in Keller v. California (1990) that a state bar association could require lawyers to pay annual fees, “but it could not use the money to finance anything other than its efforts to regulate, discipline, and control the bar and seek improvements in the administration of justice.”

Of course, the Court’s recent approach to the subject of political campaign contribution and spending limits are rather difficult to square with the Abood and Keller decisions. Starr served as Chief Justice Warren Burger’s clerk when the Court decided Buckley v. Valeo (1976). In that case, the Court dealt with a campaign finance reform bill passed by Congress that regulated the amount of money that could be contributed to and spent by political campaigns. The Court upheld contribution limits, per candidate, per election cycle, as well as public financing of campaigns, but it struck down provisions limiting how much money campaigns could expend. How are limits on contributions legal while limits on expenditures illegal? As Starr poignantly asks: “Isn’t an expenditure the flip side of a contribution? Shouldn’t they rise and fall together?” The Court upheld a similar state statute in Nixon v. Shrink Missouri PAC (2000), with the majority asserting a policy judgment that such laws protect the integrity of the process. Justices Clarence Thomas and Scalia, however, were of the view that such contributions and expenditures involved political speech, which lies at the very core of the First Amendment. Starr does not hide his disdain for campaign finance laws, and happened to be involved in a recent case before the Supreme Court on the so-called McCain-Feingold campaign finance law that was decided since his book went to press.

Starr’s book provides a solid and easy-to-read primer on the Supreme Court and some important decisions for the last half-century. Yet, as enjoyable as his book may be, I would much prefer to read his work in the form of a judicial opinion. For while reading it I could not help but think that had Starr not been appointed as Independent Counsel to investigate President Clinton, that he just might be sitting on the High Court today.
SU REVIEW: I'm pleased to say that Juliana, the editor of the much distinguished SU Review, just dropped by the Disco office to personally hand-deliver copies of the latest issue, hot off the press.

I'm rather flattered to say that I appear in a small picture on the front cover, standing besides John Rhys-Davies (aka Gimli the Dwarf, aka Sallah, friend of Indiana Jones) for our Disco event with him in January. It was my first gig on security detail, directing audience traffic, watching out for psycho fans, keeping crazies away from the celebrity. Although a little tiring, it was a total blast. Not to mention it was a cool event! The event was based around an informal chat between JRD and film-critic Michael Medved. JRD was truly a gentleman, very interesting to listen to, and kind enough to wait well over an hour after the event to sign autographs and take pictures for EVERYONE who would wait. Michael is always great before an audience, of course. And on top of it all, I've become known to some as Disco's bouncer!

By the way, I have two articles printed in this issue of the SU Review, one of which is my introduction of Professor James Bond for the 2003 Theodore J. Stiles Memorial Award, which we at the Puget Sound Lawyers' Division of the Federalist Society presented to him, back in December. That was another great event, with Judge Michael McConnell of the 10th Circuit Court of Appeals giving the keynote address. It was very flattering to be billed on that program, to say the least. The text of my intro for Prof. Bond is available at SU Review Online.
THE RULE OF BLAH: I recently read an article by John Rosenthal in the Hoover Institute's Policy Review concerning the International Criminal Court (ICC), of which I am thankful that our nation is a not signatory member. The article does much to show the ICC as an EU pet-project, beholden by factions and special interests, and utterly uncommitted to the rule of law as we understand it.

At this point I think it no longer intellectually healthy or stimulating for me to read any more materials that criticize the ICC, as I should instead read more scholarship supporting it. The reason I say this is that at present I really can't think of ANY good reason why the U.S. should put itself under the jurisdiction of the ICC.

Just to be clear, I have no problems with multi-national or international tribunals created on an ad hoc basis to deal with wartime atrocities. We did so after World War II to deal with Nazi war crimes, for instance. But at this point I don't see what benefit would ensue from the creation of a permanent international tribunal that is not available from an ad hoc tribunal, created and tailored for the circumstances.
MORE ON MARRIAGE: As a wonderful follow-up to the blog from the previous day, I recommend Prof. Mary Ann Glendon's op-ed in the Wall Street Journal. Prof. Glendon has always impressed me--no doubt, she's the Learned Hand Professor of Law at Harvard Law School, after all. Her book Rights' Talk was a very impressive piece of scholarship, for which I will hopefully have an Amazon review of it posted sometime in the near future. She's also written some fine work in First Things.

Of course, this is not to overlook The Onion, as they're as on the ball as ever!

Tuesday, February 24, 2004

PRESIDENTIAL SUPPORT OF DEFENSE OF MARRIAGE AMENDMENT: As most everyone knows, today's big news story is that President Bush announced that he is in favor of a constitutional amendment to the Constitution, defining marriage as the union of one man and one woman. He did not specify what particular language he supports in such amendment.

Despite my reluctance to amend our Constitution and the fact that I would prefer to let states decide the issue, I fully support the President on this matter. The bottom line is that if the people do not amend the Constitution, the federal courts will amend it through judicial fiat. If the people do not act, they will ensure that an unelected and unnacountable tribunal to redefine the basic building block of civil society.

I have been following the commentary of Ramesh Ponnuru on the marriage amendment issue. As always, he has been razor sharp and insightful. In fact, I don't believe I have ever read an article by him with which I did not wholeheartedly agree--including his article concluding that affirmative action is not unconstitutional under the 14th Amendment's Equal Protection Clause, mind you.

In any event, I understand that Congressman George Nethercutt, now a Republcan candidate to oppose Sen. Patty Murray for her seat in the Senate, has publicly opposed the President. Considering all the support he has been given by the President and Vice President, I am surprised. More to the point, I am disappointed because this issue is much bigger than Congressman Nethercutt, and as a lawyer he should know better. The U.S. Supreme Court has laid down the framework for the redefinition of marriage with the underlying logic of the recent Texas v. Lawrence (2003) decision. It is only a matter of time before a non-traditional couple or trio with marriage license issued by their local state challenges the the Federal Defense of Marriage Act (passed overwhelmingly by Congress and President Clinton, pursuant to the Article IV Full Faith and Credit Clause) on Equal Protection or Right of Privacy or some sort of Substantive Due Process/Liberty grounds.

For the record, I support an amendment that would prohibit state courts from redefining marriage as well. However, I am quite willing to allow states to grant various sorts of domestice partnership benefits--just as long as it is achieved through the democratic process.

Finally, I think it imporant that this isn't a mere ban on homosexual marriage, as amendment opponents would claim. Rather, this is a DEFENSE OF MARRIAGE AMENDMENT. This is important because there are forces at work on the fringes that want polygamy and a whole host of other false notions of "marriage" to be given Constitutional protection. The logic of the Planned Parenthood v. Casey (1994) "sweet mystery of life passage" and the Lawrence decision contradict the Supreme Court decisions from the 19th Century upholding prohibitions against polygamy. Homosexual marriage may be the immediate threat to traditional marriage, but it is by no means the only serious one.

Monday, February 23, 2004

FEDERALISM FIRESIDE READING! As much as I may enjoy purchasing books at Barnes & Noble dot com and avoiding all sales tax, I still think there’s something messed up with a system where that allows me to do just that but would also require me to pay that tax at the local B&N store. It would seem that the system we have now certainly won’t continue forever, particularly as e-commerce continues to grow.

In any event, over the weekend I read an interesting booklet called Sell Globally, Tax Locally, by Dr. Michael Greve of the American Enterprise Institute (AEI). Greve proposes a system of origins-based sales taxation for all of e-commerce, and for the sales of all goods, for that matter. I found it a very interesting read. Well, interesting if you happen find taxation and federalism interesting. And I just so happen to.

A few months ago, Disco hosted Dr. Philip Munoz of AEI for an lunch event about two First Amendment Free Exercise/Non-Establishment cases pending before the U.S. Supreme Court. I told Munoz about how I’d personally hosted his colleague, Greve, for an event at Seattle University’s law school on cartels and interstate compacts. Apparently, Greve works on the “smoker’s floor” at AEI. Smoker’s floor…how East Coast!

Aside from being a total crack-up, I’ve always found Greve’s work to be top-rate scholarship and entirely sensible (not to mention witty), and I’m sure I will be blogging about more of his work with the Federalism Project in the future.

His pamphlet on taxation makes a strong case for origins-based sales tax in e-commerce over destination-based sales tax. In other words, we should compute sales taxes on e-commerce items based upon the tax rates of the producer’s principal place of business, rather than upon the tax rates of the consumer’s jurisdiction.

I particularly appreciate the importance he places upon the notion that one state’s rights ends where another state’s rights begin. According to Greve:

An origin-based tax regime permits each state or country to tax and regulate its own businesses and citizens as it sees fit. Each jurisdiction’s regulatory autonomy and authority however would stop at the border—precisely where they ought to stop. A destination-based tax regime, in contrast, imposes tax collection, reporting and remittance obligations on out-of-state parties…a destination-based regime entails an extraterritorial imposition of a coercive regime that can be enforced by civil and criminal sanctions.

It was ever the concern of the Framers that big states would beat up upon little states or that a group of states would pick on another state. Somehow, this fact seems lost to many people, including Supreme Court Justices.

Sunday, February 22, 2004

AMBIENT TECHNO WORKOUT? During the two trips I made to the gym this weekend, the satelite feed was tuned in to what can be described as an ambient techno/trans music channel. The whole time during my workouts I was never quite sure whether I thought that stuff was cool or whether it was freaking me out...