FISA: Big Brother and Some Big Picture Questions

On Friday the House of Representatives took a bold step towards, well, representing the people, in voting to pass their version of the FISA amendment, which unlike the Senate bill does not provide amnesty for telecommunications companies. (NYT) These companies may have ("or may not have," but I would comfortably wager must have because otherwise why all the fuss?) worked with the government to spy on American citizens without a warrant.

This latest development in the FISA fight is both heartening and an opportune moment for reflection on how progressives should think about this now old trick of conflating our security with our civil liberties in order to get us complacent about abuses of government power at the sacrifice of our basic rights.

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With "Protectors" Like This...

Cross posted from TortDeform.Com

"It is a universal truth that the loss of liberty at home is to be charged to the provisions against danger, real or pretended, from abroad."--James Madison

Senator Dodd read this quote during hearing statements last fall over whether telecommunications companies that illegally spied on the American public should be granted retroactive immunity for violating our constitutional right to privacy. Yesterday, the Senate Judiciary Committee's proposed amendment to the FISA bill, which would have eliminated the option of so-called "liability protection" for telecom law-breakers, was tossed out by a 60-34 vote. Next up was the SSCI bill, which would grant retroactive immunity to telecoms. As Senate considered that bill its supporters--a largely Republican group with a hefty sprinkling of Dems in the mix--made every effort to block any amendments that would have addressed its glaring civil liberties concerns. And on this Monday at 4:30 p.m., the Senate will vote on whether to stop considering amendments to the SSCI bill and just move forward with passing it.

I've ranted about this issue before. But the Administration's apparently increasing gall and contempt for the law notwithstanding, and its undying commitment to shielding corporate friends from the effect of the law aside, let's focus instead on the lie of so-called "liability protection" and what it really means for the public and our civil justice system.

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In Pre-Caucus Raucus, Obama Jabs Edwards and Trial Lawyer Profession

Cross posted from

The Iowa caucus is tonight, and the candidates aren't holding any punches. Poll results show Obama, Clinton, and Edwards fighting neck and neck to win Iowans and inspire them to get out the vote. I also read that the candidates are expected to spend $200 per voter to affect its outcome.  

In this environment, aggresive tactics and hard-hitting critiques of their opponents are to be expected. As a matter of fact, when the candidates aren't putting up their best fight, they face criticism for being too nice or diplomatic.

But it would be nice if these political jabs were based on something other than pure personal attacks that do nothing but play into the conservative agenda. Like Obama's quick jab at the trial lawyer profession, interpreted as a challenge against successful former trial lawyer and competitor John Edwards. According to WaPo, in a recent speech Obama emphasized to voters that he's "a normal person" who was squarely middle class until winning his Senate position. He reflected on how he could have taken lucrative career opportunities but that his dedication to public service prevented him from doing so. "That's why I didn't become a trial lawyer," he adds.

To my pleasant surprise, this comment has generated a good little bit of 'net-based broo haha among the left. For instance, Kos at DailyKos and TPM Cafe ask whether Obama's criticism is really meant to suggest that because Edwards was a trial lawyer he is less commited to public service. TPM Cafe includes a link, courtesy of the Edwards campaign, to a video statement by Sandy Lakey, Edwards' former client whose daughter was seriously injured by a faulty drain cover. (See here) They say this is the best response to Obama's challenge.

Obama's remarks not only assault a profession that is driven by representing "normal people"-who he claims to be and represent-in legal battles against Goliath-like opponents like big businesses; they also just don't make sense politically. For someone whose appeal is largely based on his fresh perspective and willingness to advocate for the average person, his attack of Edwards looks suspiciously stale and similar to those made in the last election.

Atrios succinctly critiques this move by Obama as something that looks like pandering to the conservative right. Alas, Obama's not alone among the candidates in his willingness to vilify trial lawyers. In fact, actually a while back I wrote about remarks made by Edwards which, ironically, appeared to advance the tort "reform" agenda more than hilight the importance of our civil justice system.

In this sense one could say that the attack on civil justice is a bi-partisan effort among the candidates. It's not just the trial lawyer remark, it's the willingness to accept what the right has said about the civil justice system, and to operate from that framework. Obama's quick willingness to suggest that the profession is antithetical to public service is just symptomatic of that problem.

By the way, a cursory little search for pro-civil justice statements among the candidates yielded very little meat. (Anyone got anything on this? Please feel free to share links in the comments section) It's like this isn't an important issue for them unless they're using it to attack one another or to jump on the tort "reform" bandwagon. Oh, how I'd love it if we could get the candidates talking about how we can improve the civil justice system for real people, so that they can use it more effectively to protect and advocate for themselves. (Stay tuned on this... more to come soon.)

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Industry's Basic Justification For Preemption Is Wrong

Cross-posted from Tort Deform

by Brian Wolfman, Director of Public Citizen Litigation Group

The basic idea of the federal preemption doctrine is easily stated:  It is a constitutionally mandated choice-of-law principle that demands that federal law trumps state law when the two conflict or in the rare instance when the comprehensiveness of federal law on a topic demands no role for state law on that topic.  But application of that principle can be terribly difficult.  It requires that one master its basic tenets -  the Supreme Court's jurisprudence interpreting the constitution's Supremacy Clause from which the preemption requirement flows.  It requires an understanding of the fundamentals of statutory construction, because, generally, preemption turns on whether legislation enacted by Congress expressly or impliedly ousts state law.  And, because present-day preemption issues tend to involve policing the borderline between a federal regulatory scheme and state law-making authority, familiarity with administrative law is often a must.

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Big Noise in the Mitten State: Part 4 - Gesundheit 911

Cross-posted from Tort Deform

By Professor Henry Greenspan

It came as a shock.  Everyone anticipated that Pfizer would make significant cut-backs.   But when the company announced in late January that it would be closing down all their Michigan facilities, and particularly the large Global Research and Development Center in Ann Arbor, we were completely taken by surprise.

"Pfizer's gut punch" proclaimed The Ann Arbor News.  $13 million in tax revenues.   2,500 jobs.  $4 million in charitable donations.  People said: "It's like the Twin Towers collapsing here.""A crater opened and swallowed everything up.""It's like a death in the family."

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