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, June 10, 2005

SPITZER SLAPPED DOWN AT TRIAL. "Prosecution by press release won't do in court," says today's OpinionJournal editorial. I won't pretend to have any particular familiarity with the facts in the case of former Bank of America broker Theodore Sihpol. But the editorial provides an interesting read about a recent courtroom defeat for NY Attorney General Eliot Spitzer.

I don't remember too many high profile cases involving AG Spitzer actually making it to trial. His forte seems to be in getting defendants to make settlements on generous terms for the state of New York.

But alas, Sihpol and his case proceeded to trial. A New York jury apparently thought the State's case against him for "late trading" was weak. They sided with Sihpol on 29 counts. The jurors weren't as convinced as AG Spitzer was that late trading was unlawful.

Seeing as AG Spitzer is one of America's most powerful unelected leaders--elected by New Yorkers, perhaps, despite the fact that many of his high-profile lawsuits have profound effects nationally--I like to read articles discussing the latest developments in his interesting tenure as NY AG.

In any event, the editorial closes by noting the U.S. Department of Justice's ability to secure verdicts in major fraud cases, whereas AG Spitzer has used NY's Martin Act to prosecute legally questionable cases. My thought is: Why don't other states get the message and pass Martin Act equivalents? It's seems more reasonable than not that enterprising state legislators would wish to keep their states on equal footing with NY and get in on the aggressive litigation action. (Not that that would necessarily be a good thing.)

Short of a more desirable situation in which federal authorities deal with business and commercial matters of interstate import, it's a wonder why other states haven't taken cue from AG Spitzer and become more agressive. Maybe we should just give the states more time...

(Chelan, WA)

Wednesday, June 08, 2005

MUCH-NEGLECTED CLAUSE MAKES A COMEBACK--SORTA. The U.S. Supreme Court's ruling that Congressional power extends to a prohibition of private, non-commercial use of marijuana for medicinal purposes pursant to a state law in Gonzales v. Raich has garnered much attention. This was another case that implicated the parameters of the Commerce Clause of the U.S. Constitution. For me, however, what was particularly intriguing about the case was the attention paid to the Necessary & Proper Clause--a Clause that has been paid scant attention in recent...well, decades.

Justice Scalia brings a clarity to the extent of the Necessary & Proper Clause's operation that had heretofore been unseen in Commerce Clause cases. In this regard, I found his concurring opinion the most interesting and exciting. Justice Scalia discarded the notion that Congress cannot regulate non-commercial activities or wholly intrastate activities, per se. Instead, he reoriented the analysis to legitimate means to Congressionally appropriate ends (the "necessary" component of the Necessary & Proper Clause). Additionally, Justice Scalia took note of the "proper" component of the clause as it pertains to state sovereign immunity. Previously, the state sovereign immunity cases seem to have focused almost entirely upon the Tenth Amendment.

At this point, I still have to gather my thoughts as to whether the Controlled Substance Act can extend to the defendants in the case. Arguably, one could hold to the framework enunciated by Justice Scalia but find that Congress' power to regulate still does not reach the activities involved in the case. But I can say that I'm clearly of the view that Justice Steven's application of Wickard v. Fillburn's "aggregate effects" test undermines the enumerated powers provided in Article I, Section 8 of the Constitution. Further, Justice Thomas has some worthwhile points in his dissenting opinion.

(North Seattle--Green Lake, WA)

Monday, June 06, 2005

AMNESTY INTERNATIONAL LOSING GROUND ON GITMO/GULAG COMPARISON. AI leadership had recently equated grabbed headlines for ridiculously equating the U.S. military-operated prison in Guantanamo Bay, Cuba, to a Soviet gulag. Since those outrageous public pronouncements, AI has found its reputation tarnished and undermined.

First, as Kenneth Anderson pointed out in the recent Weekly Standard article "An American Gulag?", AI's recent human rights report is devoid of such a comparison or conclusion:

With the release of its 2005 human rights report, Amnesty International got all the headlines that even an organization that lives for press attention could possibly hope to get. It did so by lobbing rhetorical hand grenades--each delivered in press statements but, revealingly and characteristically, not found in the text of the report itself...

And now, leadership of AI has found itself having to backtrack on its earlier, baseless public statements about Gitmo. Tuesday's editorial in OpinionJournal notes the recent retraction of certain remarks:

"Clearly, this is not an exact or a literal analogy," said William Schulz. "In size and in duration, there are not similarities between U.S. detention facilities and the gulag. . . . People are not being starved in those facilities. They're not being subjected to forced labor."

Like Anderson, the editorial writers goes on to take AI to task for the absurd statements of its leaders. It comes as little surprise that the editorial would mention Natan Sharansky. It is people like Sharansky and Jean Bethke Elshtain who have carefully argued that when someone loses moral clarity and ends up equating the forces of the Ameriacn military with anti-western democracy jihaddists, that same someone simply gets the facts WRONG. And these are important facts to get RIGHT--especially when you're working in the area of human rights...

(North Seattle--Green Lake, WA)