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: Begging the Question

Legal Miscellany

By "Milbarge" and "Fitz-Hume"

1. The Justice Department approved the proposed merger of the two satellite radio companies, XM and Sirius. The FCC still has to give the okay, but this is obviously a positive step towards completing the deal. I wrote in favor of the merger back here. (Disclosure: I'm an XM subscriber.) Here are contrasting takes from Reason's Radley Balko and the Washington Post's Steven Pearlstein.

2. The Supreme Court has granted a Fourth Amendment qualified immunity case to decide if it should overrule Saucier v. Katz. Some links, discussion, and details from Prof. Kerr at the VC here, and Prof. Althouse here. I have written about this issue a few times -- see here, here, and here. Most of that was in the context of the famous "Bong Hits 4 Jesus" case.

Basically, Saucier requires courts to determine first if the right in question in the suit was violated, and if so, to then determine if it was "clearly established" at the time. The most common criticism is that it's often easier to decide the latter question (and that avoids having to make a constitutional ruling). I support Saucier and wouldn't mind seeing its approach extended to other doctrines -- for example, Fourth Amendment cases (requiring a ruling on the merits before moving on to ask if good faith applies) and habeas cases (especially ineffective assistance of counsel cases, requiring a ruling on performance before moving on to prejudice). But it looks like it might not last much longer.

3. This week the Supreme Court decided Medellin v. Texas (link to long opinion available from SCOTUSBlog here), concerning the intersection of the treaty power, federalism, and state criminal procedural rules. I won't get into the merits, but I did notice that the opinion cited a precedent from 1884 called the Head Money Cases. I had never heard of this one before, but I'm sorry I missed it when I wrote a post asking "Where have all the Cases cases gone?" I'm still in favor of bringing back the "Cases" naming convention when appropriate, so I was happy to see this citation. Plus, it's just funny to say "the Head Money Cases."

Full post as published by Begging the Question on March 26, 2008 (boomark / email).