From the farther shores of political lawsuit-filing, from a farther-shores kinda guy: “On November 13, Alan Keyes and his vice-presidential running mate in California, Reverend Wiley Drake, and other members of the American Independent Party, filed a new lawsuit over Barack Obama’s eligibility to be president. … All the other cases have been dismissed because the plaintiffs were said to lack standing. This is the first case with a presidential candidate-plaintiff.” (”Alan Keyes Files Lawsuit Over Obama Eligibility”, Richard Winger Ballot Access News, Nov. 16; Keyes v. Bowen, PDF; Scott Moss, Concurring Opinions, Nov. 17).

I’m not in the business of political forecasts, and I don’t think I’ve ever made any claims for my skill in that department. Even so, I’m pleased to report that I was among the winners in National Journal’s “prediction poll of top political bloggers” for the 2008 elections. Mine were the most accurate predictions among participating bloggers in the “right” category; the winners for “left” and “center” respectively were Chris Bowers of OpenLeft and Joe Gandelman of The Moderate Voice. Earlier coverage here.

ABA Journal: “Who Isn’t a Lawyer on Obama’s Transition Team?”

The “light at the end of the tunnel for law firms”! Tons more regulation, no more attempts to limit lawsuits, a “boom” in financial disputes, new union contracts to negotiate all over the place! Let’s hope Larry Bodine is proved wrong (Legal Marketing Blog, Nov. 5)

• Lots of coverage of litigation-reform angles of the election over at my other website, Point of Law (here, here, here, and here). For me the heartbreaker of the evening reform-wise was the surprise defeat of the very fine Chief Justice of the Michigan Supreme Court, Clifford Taylor. He will be sorely missed.
• Interesting perspective from Bill Marler, the Seattle plaintiff’s attorney who’s become well-known for virtually “owning” the issue of food poisoning in the press: “Obama may actually see tort reform as a way to show he is a moderate”. [Jane Genova, Law and More]
• Voters in California and elsewhere ignored the urgings of this site and wrote anti-same-sex-marriage provisions into their constitutions. There are many possible interpretations, but one is that the California Supreme Court will be Exhibit #2,971 toward the proposition that judicial activism does not always improve the well-being of its intended beneficiaries. Garrison Keillor titled one of his Lake Wobegon books We Are Still Married, and Eugene Volokh looks at the question of whether same-sex couples previously wed in California can say that (Nov. 5; more, Dale Carpenter, Jonathan Rauch). In other news, “Yesterday, 57 percent of Arkansas voters decided that the state’s 9,000 children in foster care are better off there than adopted by a gay couple.” [Radley Balko, Reason "Hit and Run"]
• As to Topic A, the presidential election, I’ve decided to retire to the countryside and raise heirloom eggplants. Just kidding! Actually, as one who sat the election out after Giuliani quit the race, I’m happy for my friends and colleagues who are happy, awestruck by the historic moment like everyone else, and hoping for the best (i.e., centrist governance) policy-wise.

Various well-known bloggers talk about how the blogs did this year in stimulating discussion, challenging errors and omissions in the general press, and so forth. I contribute a quote about how “when you sit out an election without backing a candidate, you become painfully aware of how easy it is for blogs turn themselves into an echo chamber for their side’s talking points. Not attractive.” Some blogs I turned to this fall for politics coverage in part because I couldn’t always guess ahead of time what line they’d take: Steve Chapman, Megan McArdle, Marginal Revolution, Culture11’s Confabulum, Ann Althouse, Virginia Postrel, Mickey Kaus (not an exhaustive list by any means).

Coyote’s recommendations.

On the campaign contributions front. (Dr. Wes, Oct. 29).

• District court tosses $5.2 million punitive damage award against TASER in closely watched case [CalPunitives, Feral Child]
• You mean demanding that opponent submit to a “PET brain scan” is vexatious? [The Briefcase, Stemple v. Dunina, Ohio]
• Election’s implications for federal courts [NLJ, NYT, Steven Calabresi @ WSJ]
• Don’t even think of using “the cash machine legal clinic” as your slogan if Louisiana implements tough new lawyer-ad rules [New Orleans City Business]
• Our long national slide toward “election by litigation” [Hillyer, D.C. Examiner] Plus: America’s Most Irresponsible Public Figure® RFK Jr. emerges as “election law huckster” [Weigel, Reason "Hit and Run"]
• While privacy laws ratchet ever tighter on private actors, publicly available court documents blare out Social Security numbers and other sensitive data [Ambrogi]
• Which is the worse deal, using your own bank’s ATM or patronizing one of those awful payday-loan outfits? No peeking [Coyote]
• “DMCA: Ten Years of Unintended Consequences” [EFF]

[Note: see important update/P.S. at end].

As you may recall, I wrote a piece last week for City Journal taking issue with various calls around the liberal blogosphere for having the McCain-Palin campaign investigated or even prosecuted for supposed incitement to violence against its opponents (a charge for which credible evidence appears severely lacking in the first place). Along the way, I criticized a Concurring Opinions post by University of South Carolina associate professor Susan Kuo in which Kuo first endorsed the charge that the Republicans were engaged in “character assassination” and “peddling fear, hate, and outrage to an audience that appears highly susceptible to this message” and then helpfully laid out potential theories under which criminal liability might be assigned to inflammatory campaign speech of such a sort. I said I found it bizarre that Kuo entirely omitted mention of the First Amendment to the U.S. Constitution, and went on to cite a relatively recent (1982) case in which a unanimous Court had cited the First Amendment as protecting even fairly extreme language of incitement which was soon thereafter followed by actual violence. These circumstances, I concluded, virtually ensure that no American court would countenance a prosecution of McCain, Palin, or their campaign staffs for incitement on current evidence absent a rapid and spectacular change in Constitutional jurisprudence from its present stance.

Now Professor Kuo has responded in a new post at Concurring Opinions by calling me names. She writes that it was predictable that “the Thought Police” — she links that phrase to my piece — would quickly emerge to “chastise” her “for committing crimethink”.

Before turning to this amazing charge and unpacking its heavy freight of irony, let’s dispose briefly of a couple of Kuo’s incidental points. First, she claims I champion the idea that “the mere existence of the First Amendment invalidates the notion of criminal liability for political speech”. In fact, as even a hurried reading of my post should have revealed, I made just the opposite point: I noted that there are some circumstances (such as, but not necessarily limited to, intent to incite violence combined with co-ordination with those who commit the bad acts) where notwithstanding the Amendment political speech can cross a line into crime. I also noted that reasonable minds could differ about whether the Supreme Court drew the line on incitement in the right place in its 1982 case. In short, Kuo attributes to me an extreme position of her own invention.

Kuo also suggests that her post merely laid out a hypothetical (or “thought experiment”) about what the law might do as opposed to prescribing what it should do. I have no problem with hypotheticals and have been known to use them myself, recognizing that they can be (though I don’t think they were in this case) a bracingly non-normative device in which the actual prescriptive views of the narrator are irrelevant or impossible to discern. I simply think this hypothetical was rendered both bizarre and misleading by its omission of the First Amendment, by which the courts of this land have greatly curtailed the scope of criminal liability for incitement.

Now back to the question of who should get tagged with the dismissive Orwell-invoking cliche “Thought Police”. Let’s review the bidding. Sarah Palin and GOP surrogates stir up controversy by using blunt and divisive language to question Barack Obama’s judgment in the Bill Ayers matter. Voices around the liberal blogosphere then call for Palin & Co. to be criminally investigated and even prosecuted for riding this campaign issue too hard. Kuo, entering the debate, does not call these bloggers and Huffington Post writers “Thought Police” for suggesting that speech that offends them be subject to legal sanction, but instead conveys their views uncritically if not sympathetically. She then takes up her hypothetical of possible enforcement action against McPalin, outlining theories under which prosecutors might bring such charges and judges might agree to impose punishment, but does not label these hypothetical prosecutors or judges “Thought Police” for punishing the impassioned expression of political opinion. No, the only time the Thought Police make an entrance at all is after the fact, when someone presumes to criticize her. Only then does she detect, with fearful intake of breath, the sound of the hobnailed boots ascending the stairs. And it turns out to be that scary libertarian bogeyman, me!

I suppose I should take offense, but I haven’t managed to get past the comic aspect (& Ambrogi, Legal Blog Watch).

Important P.S.: I heard from Prof. Kuo herself this afternoon and we had a talk that was pleasant and in no way confrontational. She said her second post, to which this one responds, was dashed off in a spirit of light-hearted banter and that the last thing she meant was to call names or give insult. Obviously, it came across differently to me, and I reacted as one might to a seriously meant attack. As I noted, almost everyone who blogs has had the experience of writing something intended as funny that fails to register that way with part or all of the audience. And it’s probably also true that, as someone tender of my libertarian credentials, I’m especially apt to have my buttons pushed by any suggestion of being cast as Thought Police. Anyway, I’m glad to take Prof. Kuo at her word when she says she meant no offense, and I hope commenters at this site as well as Concurring Opinions will do the same (see also update post).

[Cross-posted from Point of Law]. I’ve got a new piece just up at City Journal in which I examine last week’s boomlet of interest around the liberal blogosphere in the notion that by riling up campaign crowds about Obama’s links to Bill Ayers, John McCain and (especially) Sarah Palin have engaged in “incitement to violence” of a “borderline criminal” nature that perhaps should even draw the attention of the Secret Service or FBI. (For examples of this boomlet, look among the several hundred occurrences of “Palin + incite” at Technorati between October 7 and 13; I also include a sampling as links in my piece). The article originated in a short post at Point of Law that City Journal asked me to expand into a longer treatment. I must say I find it fascinating that many bloggers, Huffington Post writers, etc. could so casually jettison the hard-won victories of free-speech liberalism, which fought long and hard against “incitement” theories by which criminal penalties might be applied to inflammatory speech. The idea of exposing your opponents to investigation or even arrest because you don’t approve of the contents of their speeches doesn’t seem like a particularly liberal one to me.

More: Stephen Bainbridge takes note.

• Kodachrome photos from New Deal era [via Susan Cartier Liebel] #
• “Bailout Watch” site [CEI] #
• Be very alarmed on credit panic [Nouriel Roubini] #
• Knew there was trouble when the toaster salesman offered a free bank. #
• Word of the day, “bageling”: when a stock goes to zero, i.e. “O” [ClusterStock] #
• “The GOP’s Wall Street friends”? Think again [David Frum] (& followups here and here) #

• @carney John Carney on short selling “I want a personal uptick rule. No one can be mean to me unless it’s preceded by good news about me.” #
• Megan McArdle on the run on money market funds, thanks @petewarden Atlantic #
• George Will implicitly endorsing Obama? Sure looks like it WaPo #
• Kevin LaCroix keeps a tally of credit crisis investor lawsuits D&O Diary thanks @lilyhill #
• Moose causes 9-car pileup right here in the NYC suburbs, Sarah come help White Plains Journal-News #
• Politicshome USA is pretty neat election site even aside from their flattering the heck outta me Overlawyered #

PoliticsHome.com offers “minute by minute coverage of campaign ‘08 — all on a single screen”; it’s the developing U.S. branch of an innovative British site launched earlier this year. Among its features is an “Online 100″ poll (see right-hand column)

The PoliticsHome Online 100 Panel consists of the 100 leading online voices in the United States. Each day until November 4th, the ‘Online100′ panel will answer 5 strategic questions anonymously and the results will be posted on PoliticsHome. Find out how the blogosphere is calling the election on PoliticsHome.

The panel includes Arianna Huffington, Karl Rove, Joe Klein, Joe Trippi, Mike Allen, Mark Halperin, Mark Blumenthal, Dana Milbank, Jonah Goldberg, John Fund, Jake Tapper, Chuck Todd, Marc Ambinder and Andrew Sullivan.

I’m not nearly as well known as many of the above names, but they’ve included me in the Online100 as well, and we’ve been answering questions about various campaign issues (the consensus is that Obama’s response to Palin was his worst strategic mistake lately; as for predictions of who’s going to win, the two candidates are locked in a dead heat at the moment.) Especially if you’re a politics junkie, check it out today.

It seems from the numbers that in recent decades the Democrats have tended to nominate lawyers for President and Vice President, and that the Republicans have tended not to. (Volokh, Sept. 18).

Los Angeles: “David Birke and his attorney Johnny Birke filed a complaint Aug. 27 against seven talk show hosts of KRLA-AM (870), Salem Communications Corporation and its owner Edward Atsinger III, alleging that they use the public airwaves to push Republican beliefs. David and Johnny Birke would not say whether they were related, citing attorney-client privilege. … Radio hosts Laura Ingraham, Dennis Prager, Michael Medved, Hugh Hewitt, Dennis Miller, Mike Gallagher and Kevin James are named as defendants in the suit.” The various defendants have defrauded the public and violated FCC obligations “by using their radio license to discuss only Republican issues, Johnny Birke said Monday.” (Veronica Rocha, “KRLA sued over content”, Glendale News-Press, Sept. 8). Radio Equalizer (Sept. 9) notes one presumed irony: “KRLA has in the past featured a show on the subject of lawsuit abuse.”

The Montana governor now claims he was just making up all those stories about using underhanded tactics to make sure his candidate won the U.S. Senate race, but his audience at the trial lawyers’ convention seemed to lap it up at the time. (Kirk Johnson, “Montana Officials Chastise Governor Over Boasts in Speech to Lawyers’ Group”, New York Times, Sept. 12; Rusty Shackleford, MT Pundit, Sept. 8; Robert Struckman, “Gov. Schweitzer’s Tampering Comments Spark Controversy”, New West Network, Sept. 10; Charles S. Johnson, “Schweitzer catches heat over July speech”, Helena Independent Record, Sept. 11; Jennifer McKee, “Bit of truth found in Gov. Schweitzer’s joke”, Missoulian, Sept. 12; speech).

• Eeeeeeuw: House of Meats employees show reporter “they have all ten of their fingers” after customer reports human digit in her dish of oxtails [BayNews 9 Tampa]
• Press keeps digging into Joe Biden ties to asbestos bar [American Lawyer, more links in PoL roundup]
• Black eye for big law site FindLaw with reports that it’s been selling law firms links in editorial material, a practice sure to raise Google wrath [Oilman, Kevin O'Keefe/Real Lawyers Have Blogs, ABA Journal, Search Engine Land, National Post] More: WSJ on FindLaw’s denial; O’Keefe.
• Overlawyered favorite Fred Baron, of Rielle Hunter generosity, much in evidence at Democratic convention [Dallas Morning News, ABC News] Texas trial lawyer Steve Susman is only individual lawyer listed as convention sponsor [AmLaw Daily, scroll]
• As if legislative expansion of the Americans with Disabilities Act weren’t worry enough, 1,000 pages of new DoJ regulations will add billions in costs, as by requiring that 50 percent of miniature golf holes be wheelchair-accessible [Las Vegas Review-Journal via ABA Journal]
• “Bond reduced for two fen-phen attorneys” in Kentucky [Lexington Herald-Leader, more]
• Cozen O’Connor and insurers dealt big setback as Second Circuit’s Judge Jacobs rules they can’t sue Saudi government over 9/11 [Philadelphia Inquirer, more; related on FOIA, Legal Intelligencer; earlier here and here]
• Jury awards $500,000 in malpractice suit against D.C.-based plaintiffs’ firm Cohen Milstein Hausfeld & Toll [Legal Times]
• Australia: “A serial protester who injured a policewoman during the G20 riots wants her conviction overturned so she can still practise as a lawyer.” [Melbourne Herald Sun, Julia Dehm]