(The Return of) Ignatz, by Sam Heldman

Monday, September 30, 2002

You would have thought that a few nice relaxing days in rural Oregon would have taken my mind off of judicial nominations. But it didn't happen -- largely because among the people I was spending time with, was one of President Clinton's judicial appointees, who was subjected to years and years of lies and partisan dawdling before finally being confirmed. So now I'm torn, again: should Senate Democrats play "payback, with interest" or should they instead play "we won't stoop to your level?"

Meanwhile, I figured out that the entire current confirmation mess is really just a complicated setup for the ascension of White House Counsel Alberto Gonzales to the Supreme Court. By bringing Justice Owen to the public attention (through her nomination to the Fifth Circuit), the pro-Gonzales forces induced Democrats to say "See here -- she was a judicial activist reactionary, not like that comparitively moderate and sensible and judicious then-Justice Gonzales." Then, by bringing Mr. Estrada to the public attention (and getting the pundits to tell us that, if he's confirmed to the DC Circuit, he'll be on deck for the Supreme Court), the pro-Gonzales forces will induce Democracts to say, "If it's a Hispanic Supreme Court Justice you're after, then for goodness' sake don't pick a young one with no judicial experience like Estrada!! How about Gonzales instead please??". See, it's all just a setup. Whether the President has been let in on this, I don't know.

posted by sam 1:34 PM 0 comments

Thursday, September 26, 2002

blogging hiatus I am heading out to help some friends get married, so you will have to make it through the Estrada hearing without me. I'll try to find web access and post something if I see (via CNN in some airport) that he has testified, "Well, Senator, since I'm under oath, I do just have to say that, yes, I would decide cases based on my own personal political preferences." But I don't think that will happen.

By the way, I am also on the side of Keith vs. Mick on this one. Any rock star who accepts a knighthood should hang up his lycra pants forever.

posted by sam 6:56 AM 0 comments

Wednesday, September 25, 2002

Now here's something disturbing: I'm in the top few results for a "google/yahoo" search on the following words: BUsh v. Gore Right decision Conservative stop whining [sic sic sic].

posted by sam 8:03 PM 0 comments

This news story (thanks to MaxSpeak for raising my blood pressure with it) about Dick Armey's moronic and offensive comments about Jews -- along with this story about a Republican member of Congress, Joe Wilson, calling another member of Congress anti-American -- has me humming to myself the old Union song "Which Side Are You On?" We really are, I think, in one of those episodes of American history which tests our committment to our democratic (small "d") ideals, to free debate and to equality and to freedom and to responsive government. I'm on the side that's for those things, which means that I'm on the side against those nitwits.

Forgive my soapbox, please. And yes -- as Tom Tomorrow showed in his cartoon at the back of this week's New Yorker -- there's something slightly pathetic about political blogging to a tiny audience. But this sort of behavior from powerful elected officials -- especially in conjunction with the real prosecutorial and legislative overreaching that (for instance) TalkLeft analyzes on a daily basis -- really is dangerous.

posted by sam 11:15 AM 0 comments

Further on judicial nominations and Senator Hatch Jeff Cooper explains very well an additional reason why Senator Hatch is not credible in his rhetoric about deference to Presidential prerogative in judicial nominations: Senator Hatch's own behavior in setting the schedule and agenda of the Senate Judiciary Committee while Republicans held the Senate during the Clinton Administration. As Jeff points out, Hatch killed some nominations through the back-door method of not ever allowing them to come to a floor vote at all, for no discernible reason other than ideology.

Ideology and politics then, ideology and politics now. Anyone who pretends otherwise is either fooling himself or trying to fool you. And there's an old saying in Alabama ...

posted by sam 5:44 AM 0 comments

Tuesday, September 24, 2002

Judicial nominations I know that I've got to start thinking about other things, but once again Senator Hatch has got me feeling angry. (Despite this angry feeling, thanks to Howard Bashman for pointing out Senator Hatch's remarks). This time, what makes me angry is this. We start with the fact that Senator Hatch's remarks begin with an ode to Senatorial deference to the Presidential prerogative to pick judges: "I believe that to the extent ideology is a question in judicial confirmations, it is a question answered by the American people and the Constitution when the President is constitutionally elected." Therefore, he suggests, the Senate's role is just to make sure that the nominees are "judicious," by which he apparently means something like "competent and ethical".

So how does he explain his own vote, in a straight party-line Senatorial vote, against Clinton nominee Ronnie White? Senator Hatch doesn't even pretend that White was anything other than "judicious". Instead, Senator Hatch tells us that he voted against White only because then-Senator Ashcroft (know who he is??) and the other Senator from Missouri -- both Republicans, of course, like all people who voted against White -- were voting that way. Not because Senator Hatch thought that White would make a bad judge, or anything of the sort -- just that he thought that if the two home-state Senators didn't want White, he would completely defer to their judgment.

It seems rather clear to me that if Senator Hatch gets to make up this principle -- that it's a good idea to vote however the home-state Senators want you to, regardless of what your own beliefs are -- even when it has no basis whatsoever in the Constitution, then he's hardly in a position to criticize other Senators for voting according to the principles that they think are best, or to lecture them on their supposed duty to do what the President wants.

There. I made it through another whole post about Senator Hatch without resorting to name-calling.

UPDATE: I think that I was a little too mellow here. What I meant to say, on further reflection, was this:

Senator Hatch tells us that there's a HIGH PRINCIPLE, presumably of constitutional dimension, that a Senator must vote for a President's judicial nominee unless the nominee is incompetent or unethical or something of that sort. But then he tells us that this HIGH PRINCIPLE has just one teeny little footnote, which is that according to Senator Hatch's own particular version of the arcane protocols of Senatorial backscratch, you should vote against a nominee if the home-state Senator wants you to, even if it's obvious to everyone that the homestate Senator's vote is in violation of the HIGH PRINCIPLE. (This is paraphrase, I know -- but it's fair even if somewhat flamboyant, I think). This HIGH PRINCIPLE with teeny footnote is so idiosyncratic that it's hard even to take it seriously, and certainly so idiosyncratic that no other Senator should feel ashamed for not agreeing with it.

There -- a little more blunt, and still without name-calling.

posted by sam 3:56 PM 0 comments

Supreme Court The beginning of October is coming soon, which means that I'd better get up to speed with my Supreme Court predictions. Most people have too much sense to be making these predictions, it seems, except for me and the courageous blogger at "Supreme Court Blog". There is, however, still plenty of time to get in the game, or to snicker on the sidelines.

Today's prediction's are these:

October 7 (I had wrongly thought this case was to come later, but they changed the schedule on me).

Ford Motor Co. v. McCauley is about how to calculate the amount in controversy for diversity jurisdiction, in a class action that involves (among other things) a demand for injunctive relief. Back up for a second. The deal here is this: federal trial courts have jurisdiction over state law cases (as contrasted to cases brought under federal laws) only if the amount in controversy exceeds $75,000. Why? Because that's what the statute says, that's why. This, of course, raises all sorts of questions about how to calculate the amount in controversy – and there's a whole lot of litigation about this, largely because defendants prefer federal courts over state courts and plaintiffs often prefer state courts, so there's a lot of manouevering and arguing about "amount in controversy." The Ninth Circuit's opinion, finding the amount in controversy too small to support federal jurisdiction, is here. My prediction goes along the following lines: if the case doesn't get bogged down on questions of appellate jurisdiction (as distinct from the "amount in controversy" question), most – I think all, in fact – Justices will agree that the Ninth Circuit was wrong in holding that the injunctive relief has to be valued only from the plaintiff's viewpoint in a class action. But there's likely to be some disagreement over precisely how injunctive relief should be measured, and – again, if they reach this point – the Justices are likely to send the case back to the Ninth Circuit for further consideration according to some new test that the Court announces. But it's equally likely, in my view, that the case won't get that far, because it's not at all clear that the Ninth Circuit had appellate jurisdiction to decide the case, because (a) orders remanding (sending back) cases to state court are generally not reviewable on appeal, and (b) there's some other procedural oddness that the Supreme Court asked for supplemental briefing on. Fortunately, under the rules of my contest (in which "VACATE" is subsumed within "REVERSE"), I win either way, just by saying "REVERSE".

Ok, that was boring. Now here's an interesting one, for October 9:

Eldred v. Ashcroft Everybody who cares about the internet already knows about this one. It's the case about the constitutionality of the extension of existing copyrights – more bluntly, it's the reason why Disney can still sue you and win if you copy Mickey. To oversimplify, everything created before 1923 was supposed to go into public domain (if it wasn't already there) by 1998, but the Congress extended the terms of copyright so that now it will be 20 years longer. The DC Circuit upheld the extension here. I was talking by email a few days ago with a lawyer who knows a lot more about this case than I do, and I'd had enough beers to pontificate with abandon, and here's what I came up with:
the dynamics are:

1) worried about the over-influence of big-media (-->tendency towards reversal) v. not worried about the over-influence of big media

2) think they know what the "FRAMERS" had in mind (-->tendency towards reversal) v. who knows what they had in mind

3) hate the congress (-->tendency towards reversal) v. don't hate the congress

4) don't care about what other countries do (-->tendency towards reversal) v. care

5) think that First Amendment has a lot to say about how businesses should be allowed to do business (-->tendency towards reversal) v. don't

I said that night that, based on these dynamics, the government would win 6-3. I still think so, but have changed my mind about the three; now I think that the dissenters will be Scalia, Thomas, and Kennedy. But anyway, my prediction is: AFFIRM

posted by sam 2:58 PM 0 comments

For those wondering why Republican operatives in Alabama think it's clever to make ludicrous charges and demonize Democrats, look no further than the example of the President, who said yesterday regarding the homeland security bill (quote courtesy of ABC's "The Note"), ""The House responded [to what Bush wants], but the Senate is more interested in special interests in Washington and not interested in the security of the American people." Now, look: I know that, more than some people, I long for a political debate that is actually a good-faith reasonable debate on policy. And I know that I am more attuned to the horribleness of Republican actions that depart from that model, than to Democratic actions that do the same. But this is outrageous, and it shows why many of us, myself included, don't trust the President farther than we could throw him.

posted by sam 11:20 AM 0 comments

for labor lawyers only The NLRB's General Counsel has a new memo out, a directive to Regional Directors about handling ULP charges under Bill Johnson's/BE&K. (If you ignored the title of this post, and want to know what this is about, it's about the circumstances under which the filing of a lawsuit can itself be a violation of federal labor laws).

posted by sam 8:34 AM 0 comments

The flap in Alabama about Charlton Heston's endorsement of the Democratic Governor is getting funnier, until it stops being funny and becomes infuriating. Here's what I mean. I noted a couple of days ago that this endorsement had been made, and that the Republican challenger's spokesperson implied that it was just the Alzheimer's disease talking. Since then, this has been the repeated assertion of various Republican spokespeople: that Heston was "manipulated", "coerced", and "taken advantage of" by the Democrats. What was Heston doing in Alabama, subjecting his poor pitiful self (to hear the Republicans say it) to such devilish treatment? Why, he was on a tour promoting Republican candidates!

Funny -- that when he was endorsing Republicans he was clear-eyed, sharp-witted, and deserving of your deference when you decide how to cast your vote, but when he endorsed a Democrat he was not capable of thought due to his Alzheimer's disease.

But, not funny and in fact infuriating -- that the Republican spokespeople would so readily dishonor a man that they pretend to idolize, and that they would reflexively demonize Democrats with completely groundless accusations.

posted by sam 7:22 AM 0 comments

Beck's new record is in stores today, and is fantastic. It will improve your life.

posted by sam 6:26 AM 0 comments

Monday, September 23, 2002

Judicial nominations again

Having finally finished my draft of a very boring brief, and with my kid off at daycare, I can write at some length about judicial nominations again, this time about Miguel Estrada's nomination to the DC Circuit. Many people are writing about it, including many who are more erudite than I am. But here, for the reading pleasure of my AOL-rightwing-flamers and others, is a practicing liberal lawyer's take.

I ended up supporting Prof. McConnell's nomination to the Tenth Circuit for two reasons: mostly because he is reputed by those who know him to be an open-minded and good-hearted and intellectually honest person (even though hard-hard-right on at least some issues), and also, as a subsidiary reason, because we were talking about a nomination to the Tenth Circuit rather than to a court that regularly sets the national agenda on important legal issues. I would oppose Prof. McConnell if he were nominated to the Supreme Court, I think, because I think that being hard-hard-right is enough reason in and of itself to warrant political opposition to a Supreme Court nominee. But for the Tenth Circuit, intellectual honesty and open-mindedness is good enough in the current political climate. Yes, I know that I bow to unfortunate political reality somewhat more readily than some of my friends do, but there you have it.

But I oppose Mr. Estrada's nomination for the same two reasons: because of what I have been able to learn about his thinking, and because of the Court to which he has been nominated. I'll address those in backwards order.

(1) The U.S. Court of Appeals for the D.C. Circuit is sometimes called the second-highest court in the nation. This is technically wrong, because all of the U.S. Courts of Appeals are at the same level, but it has some metaphorical truth to it. The D.C. Circuit is particularly important to our nation's legal culture because of the types of cases it hears. To take one example especially dear to my heart: under 29 U.S.C. 160(f), any company found guilty by the National Labor Relations Board of violating the National Labor Relations Act can appeal to the D.C. Circuit, rather than to the Circuit where the company does business, if the company thinks that the judges of the D.C. Circuit would be more favorable. This is called forum-shopping – congressionally-sanctioned, and perfectly lawful. And it's an example of what could happen to the law all over the country if the D.C. Circuit tilts farther to the Right than it is now. One bad labor-law decision from that Circuit could wipe out any whole category of labor rights in every workplace in the nation; even if the NLRB tried to continue enforcing its view of the law despite one adverse ruling from the D.C. Circuit, any company could secure an immediate reversal in the D.C. Circuit. No other Circuit has this sort of nationwide power in labor law. Similarly, the DC Circuit is the Circuit of choice – both by statute, and by litigants' forum-shopping choice – for many companies challenging many sorts of administrative-agency action. Environmental law, telecommunications law, energy law, workplace law, freedom-of-information law, every other sort of administrative law that affects lives, is disproportionately heard by the D.C. Circuit as contrasted to other Circuits.

Moreover, the D.C. Circuit hears a disproportionate number of other important cases, raising issues vital to our democracy, by virtue of its geographic jurisdiction; in other words, lots of the big stuff relevant to our relationship with our government happens here, and so many of the important lawsuits about the extent of governmental power are filed in the District Court here, and the D.C. Circuit is the appellate court for those cases.

So, in short, a bad judge on the D.C. Circuit is quite a bad thing, with consequences on a nationwide scale. I don't think that any lawyer who stays aware of federal court decision-making would disagree with a word that I've said in this section (1), about the power and importance of the D.C. Circuit.

(2) So why is Mr. Estrada a bad choice for the D.C. Circuit? The answer is that there is good reason to believe that not only is he very Right-wing, but also that he is closed-minded, intensely partisan, and intellectually dishonest. The best explanation I've seen of the evidence for this, is in this article from the Nation. It is quite chilling, particularly this page, which goes well beyond usual-suspects sound-bytes and offers facts upon which you can make up your own mind.

Most important to me was the quotes from his former supervisor in the Solicitor General's office. That's the section of the U.S. DOJ that writes and argues cases in the U.S. Supreme Court for the government. There is a long and honorable tradition in that Office of trying to be non-political, to be almost judicial in seeking a balanced and honest approach to the law rather than trying to advance a political agenda. They don't always stick to this tradition – after all, the S.G.'s position on Roe v. Wade, for instance, does change with Administrations – but that's their aspiration and their tradition. So, how somebody behaves in the S.G.'s office is a pretty good indicator of how he or she would behave as a Judge. How did Estrada behave in that office? Here's what his former boss says: that he was so "ideologically driven that he couldn't be trusted to state the law in a fair, neutral way".

That quote alone is enough to prove, to anybody who wants a judge who can be trusted to judge honestly rather than in an intellectually-dishonest ideologically-driven way, that Estrada is not the person for the job. The only way to disprove this – to rehabilitate Estrada's candidacy for a lifetime position of great power – is to show that the person who said it is himself a lying partisan who is simply engaging in partisan combat, or is a nut.

So here's what I can tell you that goes beyond what The Nation says. The other day – in an effort to determine for myself whether Paul Bender, the former supervisor who said that about Estrada, is a partisan hothead who would be willing to say false things about Estrada in order to derail him – I asked a friend if she knew anything of him. (I had thought, for reasons of geography and personal history, that she might.) Her reaction was immediate and strong: that Bender is the farthest thing from a partisan, that he is mild and scholarly and warm and honest and the kind of person who would not say such a thing unless it was perfectly true. And I've looked around, and have not found any indication anywhere to dispute her assessment of him.

So, unless you WANT the nation's most important appellate court to have judges who fudge the law to reach right-wing results, this nomination deserves your full attention and a letter to your Senator. If I had a Senator I'd write one, but all I have is this silly blog.

posted by sam 1:52 PM 0 comments

Eleventh Circuit New decisions from the 11th Cir are summarized in the sub-blog, including the application of Morgan to 42 U.S.C. sec. 1981. Fascinating, huh?

posted by sam 7:26 AM 0 comments

Sunday, September 22, 2002

Guns and Politics Speaking of NASCAR-and-gun Democrats (as Max Sawicky was a few days ago), the AP is reporting that Charlton Heston has endorsed Don Seigelman, Democratic Governor of Alabama, for reelection. (Also, check out the final comment from the Republican spokesperson, who seems to imply that the endorsement might just be the effects of Alzheimer's Disease.)

posted by sam 7:28 AM 0 comments

Saturday, September 21, 2002

NLRB New NLRB decisions summarized in the sub-blog.

posted by sam 7:49 AM 0 comments

Coming soon: a post in which there's no hint of the queasy middle-of-the-roadness (or statesmanlike conduct?) that I displayed regarding the McConnell judicial confirmation debate. In the upcoming post I will argue that confirmation of the next high-profile Court of Appeals nominee on deck must be fought with every ounce of Democratic strength. It will be so convincing that it will even sway this dude. Hint: in contrast to the nice things said about McConnell's open-mindedness and intellectual honesty by those who knew him, this fellow has impressed many people with his closed mind, abrasive manner, and willingness to fudge legal arguments to reach a desired result. Can't get into it right now, because my kid's about to wake up. Maybe he'll take a nap later and I'll get to it.

posted by sam 7:19 AM 0 comments

Judge Weinstein, of the federal court in Brooklyn, has apparently (according to this story in law.com) certified a class of all smokers (with some exceptions) solely for the purpose of determining how many zillions of dollars should be awarded in punitive damages against the tobacco industry and then divvying the money up among the class. This is proof to Industry of the old adage, "be careful what you ask for: you just might get it." For years we've been hearing from companies the complaint "this punitive damage system is a silly lottery in which some plaintiffs get a random jackpot, and it's even worse because we can get socked with punitive-award after punitive-award without any consideration of whether we've already been punished enough by prior awards!" Judge Weinstein's order nicely answers these two complaints: this class-action device will make sure that there are no lottery jackpots (i.e., nobody gets more than his or her reasonable share), and will make sure that the company is punished just the right amount once-and-for-all rather than over-punished through a series of awards. Does this mean that the companies will say "thank you, Judge Weinstein"? Don't hold your breath. Will the Court of Appeals affirm Judge Weinstein's order? Again, don't hold your breath.

posted by sam 6:55 AM 0 comments

Friday, September 20, 2002

Every time I think that I'm not being sufficiently "left" on this blog -- coming off as too complacent or mealy-mouthed or professionally-careful, compared to some of the hotter voices whom I love over in my "links" list at left -- some anonymous person always comes through with a helpful pat on the back, reminding me that I really am a good leftist. Such as this morning's helpful mail from an anonymous friend at AOL (why are they all from AOL?):
Regarding your bits on judicial nominees:  man, are you ever full of sh-t.  You really, really are not worth the time spent doing the reading.  Here's why (besides the fact you are so consistently wrong):  it is already obvious what your position will be on everything; so, no need to check in and check out the 'thought' process.  By the way, I understand that your law firm, the 'people's defender,' has some pretty swanky saunas and such.  I guess there's no need to suffer while being saints, eh?

How very nice -- I hadn't even realized that I was a saint! Thanks for the hagiography, friend.

But I suppose he's right, that anybody who tries to do some good professionally must do so under a vow of poverty -- and so, not being one for vows of poverty, and having a 2.5 yr old to provide for, as well as a yearning for new CDs and good Thai food, I suppose I'll have to start representing companies. Darn. I knew this life was too good to be true.

posted by sam 4:51 PM 0 comments

Thursday, September 19, 2002

Supreme Court Howard Bashman was, this morning, kind enough to tell one of his many fans that the site with the Supreme Court predictions is this one. It's nice that one person, at least, is interested. So, in that spirit, here is the second installment, covering the cases to be argued on Tues Oct. 8 (first installment was here):

FCC v. Nextwave When a company goes into bankruptcy, its creditors can't just run into the office and repo its stuff; bankruptcy law has orderly processes and special rules to govern the divvying up of the debtor's stuff, and/or providing that the debtor gets to keep its stuff during the course of the bankruptcy proceeding. So, remember a few years ago when the government (through the FCC) auctioned off some wave frequencies? This case is about whether, when a company that has successfully bid to obtain a communication license enters bankruptcy still owing money to the FCC, the FCC can simply cancel the license and sell it to somebody else. Or, on the other hand, does the license have to get treated like everything else in bankruptcy, as the DC Circuit essentially held? Decision of the DC Circuit is here. This is one of those many cases where, if the Congress doesn't like the outcome, it can change the law. The case could easily come out either way, but because Bankruptcy Law is a behemoth that swallows up everything in its path, my prediction is: AFFIRM

Barnhart v. Peabody Coal. The Sixth Circuit, in an unpublished decision, held that where the Social Security Administration was supposed to "assign" coal miners to mine operators for purposes of making the operators responsible for benefit payments by a certain date in 1993, according to statute, and the SSA didn't complete the assignment process by that time, the SSA can't now make any more assignments. A high potential that this case will get bogged down in procedural/jurisdictional stuff. Prediction: not only that it's hard to imagine a more boring case about the usually-interesting topic of coal miners, but that the S.Ct. will: REVERSE (in fact, a good candidate for "first opinion on the merits issued in November or early December, unanimous, with the writing-Justice being quietly disgruntled about having been given such a weenie assignment" – but you never know).

By the way, things start to get interesting with the next installment -- including the Eldred case. Coming soon.

UPDATE: Wait, this won't do at all: the Supreme Court is messing with my contest, in that I see from their website they have made some changes to the October argument schedule since I downloaded it earlier this summer. Miller-El v. Cockrell has been moved to the second week in October, and the Ford Motor Co. class action case (on which I have, in contrast to some other cases, educated thoughts -- hint: the answer may well be "Vacated because of a lack of appellate jurisdiction") has been moved up to the first day. Anyway, I've got plenty of time to get my predictions in order before the Term starts, as do you if you want to play along.

posted by sam 8:50 AM 0 comments

Wednesday, September 18, 2002

I've just spent what little blogging energy I have, today, posting a comment over on Nathan Newman's site, re his post on Prof. McConnell.

posted by sam 2:45 PM 0 comments

Tuesday, September 17, 2002

I really don't just keep on listening to music that I listened to in college, I swear. (Will Oldham, for instance, wasn't even recording then, so far as I know.) But if you have nostalgia for the same things that I have nostalgia for, then you may like to go to Camper Van Beethoven and find the lots of perfectly lawful mp3s of great songs such as "The Day that Lassie Went to the Moon" and "History of Utah". Hint: hit "reload", and the song that you get when clicking the "mp3" link will change. And you can right-click that link, to download to disk.

posted by sam 9:33 PM 0 comments

I know that practically everybody with a blog has, after a few weeks of blogging, pointed out with glee some odd google search that brought traffic. But, despite knowing that this is a worn-out topic, I announce with great pride that I am within the top ten on Google for the search "sniffing shoes". I would like to thank everyone who made this possible.

posted by sam 2:27 PM 0 comments

Judicial nominations The rightwingers are pulling out all the stops for the confirmation of Prof. McConnell, as evidenced by (to take just one example) the outrageously-titled op-ed to which Howard Bashman links. [note: by "right-wingers pulling out all the stops", I don't mean Howard; I mean the op-ed, and others like it.]. That piece, like so many others, urges that it is utterly inappropriate to take issues of ideology into account in order to oppose him. Now, I do recognize that some people say these things honestly; I think that Howard Bashman is undoubtedly one of them.

But plenty of people say these things dishonestly. Remember, for instance, that when President Clinton nominated an indisputably-brilliant law professor, Prof. William Fletcher, to a federal appellate position, the right wing delayed his confirmation for three years, and 75 percent of the Senate's Republicans voted against him. What was the basis for their objections? Ideology; they thought he was too liberal. How do we know this? We know it, for example, from this document -- a google html-version of a pdf document on the Senate's own site, describing the reasons that Prof. (now Judge) Fletcher's opponents in the Senate gave for opposing him. One of the main reasons, they said, was that he thought too highly of Justice Brennan, who was one of those dreaded liberals. Read this document, and then try to pretend that Republicans didn't "do" ideology in judicial confirmations.

Here's what I think about the confirmation of Prof. McConnell, on further reflection: If he proves his reputed brilliance and intellectual honesty by explicitly pointing out in strong words that the delay in, and opposition to, his confirmation based on ideological qualms is no worse than what Republicans did when they held most of the cards in the Senate -- then I will publicly announce my unqualified support for him. As the beneficiary of letters of support from liberal law professors, he has good reason by the same token to take such a principled stand even when it's somewhat galling to the pure politicians on "his side". Such a statement is, I think, a small thing to ask in order to prove his ability to see beyond politics; and it would go a long way towards bettering both the nomination and the confirmation processes. If he is truly an independent thinker, he should have no qualms about doing this little bit to raise the level of integrity in the debate over judicial nominees.

posted by sam 1:05 PM 0 comments

Monday, September 16, 2002

An experience on the phone this morning with my internet service provider inspired this proposal for new federal legislation:

That any entity providing goods or services in interstate commerce that offers customers the option of purchasing those goods or services by telephone, must maintain a telephone-staffing system by which customers can obtain answers to their questions regarding bills they have received, with "on hold" times for these billing inquiries being not materially longer than those experienced by customers seeking to purchase the goods or services.

If someone who is good at writing statutory language could polish this up, then we can start a mass movement. Legislation like this would vastly improve the mood of the Nation, starting with me.

posted by sam 1:02 PM 0 comments

"Math Class for Poets" has an informative post about fonts in legal writing. Really -- it's quite interesting. I wish that most of my work was in the Seventh Circuit, which (according to that post) encourages use of the lovely Century Schoolbook font family. Instead, I'm often in Alabama's appellate courts, which require -- get this -- Courier 13. It makes every page look like a blown-up xerox of something typed on a manual typewriter. It's horrible.

posted by sam 7:54 AM 0 comments

Sunday, September 15, 2002

NLRB As explained at more length in the sub-blog, this week's update from the NLRB is short and unexciting. Things continue to be slow over there, with two vacancies and two recess appointees and only one full-fledged Member. This is both good and bad; good because it means they're not putting out any bad decisions, and bad because it means they're not putting out any good decisions. Labor law violations are going unremedied; but what else is new?

posted by sam 2:58 PM 0 comments

Eleventh Circuit New updates of Eleventh Circuit decisions in the sub-blog answer such burning questions as "Can Congress pass criminal laws under the Spending Clause" and "Can it really be true that two lame radio stations in Tallahassee both want to use the nickname 'The Breeze'?"

posted by sam 2:47 PM 0 comments

Judicial nominations Howard Bashman notes that the next high-profile judicial nomination on deck is that of Michael McConnell to the Tenth Circuit. My prediction is that he'll get confirmed. In contrast to rejected Fifth Circuit nominee Justice Owen -- as to whom there was a wide range of legal issues on which she was rejectable as a matter of reason/ideology -- the opposition to McConnell seems pretty narrowly focussed on abortion and religious freedom/establishment issues. Those are important issues to most of us, and McConnell does seem pretty far out there on these issues; but by themselves and without consumer rights and employment rights issues too, these issues are too "hot" to be the sole basis for many Senatorial votes against a nominee, especially to "just" the Tenth Circuit (who ever knew there even was such a thing?) and so close to November. Plus which, those issues make up a tiny portion of the docket of a federal appellate court. If this were a nomination to the Supreme Court, where those issues make up a bigger portion of the docket, the outcome might well be different.

Yes, it's also said that he loves the Supreme Court's "state sovereignty" cases; but I don't think you'd get very far trying to reject a lower-court nominee on the grounds that he agrees with the Supreme Court. And yes, according to People for the American Way he's said a nutty thing about opposing one-person-one-vote caselaw; it would be tempting to go against him on this ground as payback for the rejection of Lani Guinier, but we Democrats are bigger-hearted than that. So, after giving the requisite assurances that he'll follow the law, and getting some admonishments that he'd better, and being told that this doesn't mean that he'd get confirmed to the Supreme Court, he'll get through. (This is a political prediction, not a declaration of my own position. I'll need to think a bit more before giving my final answer, but I'm leaning towards "yes" based on what I know now.) And let's try to believe all those people (including Prof. Tribe) who tell us that he's too smart and decent to have an already-made-up-mind on every type of case that comes before him.

posted by sam 7:28 AM 0 comments

I wish that I had the mental energy, and the ability to translate passion and fact into good hot writing, that Max Sawicky has.

posted by sam 6:47 AM 0 comments

Saturday, September 14, 2002

Labor Thanks very much to Ann at Two Tears in a Bucket for her nice remarks about my earlier post on the labor issues on the docks. And, like Ann, I hope that the various unions involved can quit bickering among themselves.

posted by sam 2:15 PM 0 comments

I've avoided writing explicitly about the apparently-coming War, so far, because I don't have any information beyond what everyone who pays attention already has, or anything else that might make my opinion useful to those who agree with me or to those who don't. But listening to Hunter Thompson's interview on CNN -- including an almost-comprehensible recounting of a recent conversation with Bob Dylan -- reminded me of Dylan's astounding performance at the height of GulfWarMania, when he played a raw "Masters of War" and offered a cryptic biblical reference about faith in our ability to change our ways. Though I don't take my political cues from Dylan (much less Hunter Thompson), that performance does a better job than I can do of summing up my thoughts: an innate distrust of those who urge war, and a faith that there is almost certainly a better way. You will see that there is just a little equivocation here -- i.e., not a principled strict pacifism, but a very strong leaning-that-way-in-all-but-the-most-extreme-situations. Put into more practical terms, it's something like "Is it extraordinarily clear that war will bring about good results rather than bad (or at least that we'd collectively rather die trying), and that every other alternative will not?" I don't think that anyone has directly and convincingly answered this question "yes" as to the present situation. And I do think that it's fair and right to put the burden of persuasion on those who advocate war (particularly "preemptive" war) -- and to make that burden an extremely heavy one -- because human history has shown that war is an option too readily chosen by the powerful, and that it doesn't make the world better nearly as often as our leaders promise. Do you care what I think? Probably not. But now you know.

UPDATE: Because I've lost a few braincells myself (though not as many as Hunter Thompson, I hope), it's hard to remember where I first saw the link to his interview. Probably from Atrios, where I get much of my news.

posted by sam 1:53 PM 0 comments

Friday, September 13, 2002

Once again, Overlawyered is under-careful. The site -- which I talked about once before, and which portrays itself as reporting on the horrible excesses of plaintiffs' lawyers -- reports today that a court in Scotland has awarded 3500 Pounds in damages against an epileptic man because the sight of him having a seizure was distressing to the plaintiff. This calls to mind the good rule of thumb: that if it sounds too stupid to be true, it probably isn't true.

Here's the great thing about the web. I clicked on the newspaper article to which Overlawyered linked. From there I clicked on the prominently-displayed site of "Epilepsy Action Scotland". On that organization's home page is a link to a page about the case -- and there I found, within about 5 seconds of having begun to check out whether the story was too stupid to be true, THAT IT'S NOT TRUE! The organization explains that the shocking press reports got it wrong.

So why didn't Overlawyered, in a post dated today, take the less-than-a-minute it took to see whether the story was true? And will they correct the post once I send them a friendly email?

UPDATE: Overlawyered stands by its headline -- "Epileptic ordered to pay £3,500 for contorted face" -- even though the information I sent (of which overlawyered does not dispute the accuracy) could hardly be any more clear that this is simply not true. Overlawyered thinks he's right; I think he's wrong, and that this is the sort of disinformation that the "tort reform" and more generaly anti-lawyer movements rely on because the facts are not on their side.

posted by sam 3:34 PM 0 comments

More on the Supreme Court Eugene Volokh, my second-favorite Volokh (but my favorite seems to have disappeared into the bowels of the Harv. L. Rev. the last few weeks), tells about another Supreme-Court-prediction thingy in which he is participating. So -- especially because he is now officially "the one to beat" for "legal liberals" -- I truly hope that he'll make his predictions public by entering my contest described below.

posted by sam 2:53 PM 0 comments

The Times has an enjoyable article today about a web link from the State Department's site to the Republican National Committee. This reminded me -- though I will say at the outset that what I'm about to tell you is probably not illegal I suppose, but is somewhat appalling if you think like I do -- of the "other links" page at the official site of Alabama's Attorney General. Scroll down to the area listing sites where you can learn about "public policy on the web," and here (as of today) is the full list:

The American Center for Law & Justice
The American Center for Law & Justice for Alabama
The American Enterprise Institute
American Legislative Exchange Council
The Heritage Foundation
The Federalist Society
Family Research Council
Institute for Justice
Justice Fellowship
National Rifle Association
National Right to Life
Of the People
The Rutherford Institute
Washington Legal Foundation

I hope that if I were the AG (which I won't ever be, of course, so no need to point it out with glee) I would have the sense not to put up a mirror-image list of groups that I like, but would instead have either no list at all or a list that at least aimed at something like balance.

So towards that end, I have submitted to the AG's webmaster (using the form provided on the site) a few mainstream liberal groups for balancing-linkage: AFL-CIO, People for the American Way, the Human Rights Campaign, the ACLU, Trial Lawyers for Public Justice, and NARAL. I eagerly await their addition to the page.

posted by sam 2:19 PM 0 comments

Supreme Court Because I'm not inspired on any other topic today, yet still have the burning desire to see my own words on the screen, today will be the first installment in my entries in the first ever Blog-Supreme-Court-Prediction contest. As will become clear, my writing on this will not strive for humor as such; the Supreme Court is just not very funny, except when Dahlia Lithwick is writing about it. In fact, a major theme beginning with today's predictions is that the Supreme Court is really quite boring for the most part. Moreover, there will be no conscious allusions to pop songs from the 1980s, as Howard Bashman has the IP rights to that trope.

So, risking whatever reputation I might have for knowing what I'm talking about, here are my prediction for the first day's cases, to be argued Oct. 7. This gives you plenty of time to rev up your blog and make your own predictions if you care to compete.

As previously explained in the ground rules for the contest, it is completely fair if I change my mind up til (and including) the day before each argument.

Oct. 7

Yellow Transportation v. Michigan. Wow, what a boring case to start the new term's argument calendar, about the amounts of the fees that states are allowed to impose on truckers, under a federal statute allowing states to impose certain fees on truckers. This is the dirty little secret of the Supreme Court: (a) many of the cases aren't very exciting, either legally or sociologically; and (b) if Congress doesn't like the results, it can – for the most part (except of course when dealing with constitutional issues) rewrite the law. Making this case even more boring is that it will probably wind up being mostly a boring case about the proper amount of deference to administrative agencies' interpretation of statutory language, not just a boring case about truckers. Here's the Michigan Supreme Court's opinion. Prediction: REVERSE

Miller-El v. Cockrell is a capital case, certiorari to the Fifth Circuit (decision). The case is about striking juries. As you know if you've been to jury duty, each side gets to strike a given number of people from the jury pool in order to pick a jury. But it's unconstitutional for prosecutors (or defense lawyers, for that matter) to strike potential jurors because of their race. The lower courts, in this case, concluded that the prosecutor didn't have that race-based motivation here. But the question is, in essence, whether the lower courts were using the right legal standard to decide whether that was the prosecutor's motivation. Because the Court (upon agreeing to hear the case) reframed the "issue presented" to make it dry as toast, and because it will take a lot to make this very-conservative Court give a new trial to a guy who was convicted in 1986, I'm going to say AFFIRM but hope that they surprise me.

posted by sam 12:38 PM 0 comments

Thursday, September 12, 2002

For those who might think that I have been too down on Alabama lately -- and for the edification of Max Sawicky, who mistakenly thought that "goober" was a term of disrespect -- let me point out that it is my understanding that George "Goober" Lindsey earned a master's degree in English literature from Columbia.

posted by sam 8:50 PM 0 comments

It is wonderful to live in a country where people have the freedom to put appallingly divisive and arrogant signs outside their churches, and where I have the freedom to point out that they are appallingly divisive and arrogant. As people in Alabama often say, "thank God for Mississippi."

posted by sam 2:06 PM 0 comments

I suppose that most of us who write blogs tend to check our stats from time to time to see who's reading and how they got here. Wasting my time in this fashion, I just found that somebody who works for the U.S. Courts in the Central Time Zone was reading this blog, having found through a Google search that I was talking about the defense efforts to recuse Judge Clemon of the U.S. District Court in B'ham from major employment-discrimination cases by hiring his nephew's lawfirm. Fortunately for me, I've got no fear about who might be peeved by what I wrote on that topic. But the experience has temporarily dampened my enthusiasm for excoriating the Fifth Circuit for a substantively and procedurally outrageous decision issued on Tuesday. Soon enough, I suppose, I'll re-shake the fear of biting the hands that decide my cases. And then I'll shake the lingering depression that came from thinking about death so much yesterday, and get back up to speed.

posted by sam 11:50 AM 0 comments

Wednesday, September 11, 2002

Today I'm thinking of the sign I see outside the Friends' meeting house in my neighborhood every day: "How does your life help to remove the causes of war?" If you think that this is implicitly a blame-America sentiment, I disagree; it's a question that every person, no matter where, can usefully ask. If you think it unlikely that we'll ever eliminate war entirely, I sadly agree. But we can surely make some movement in that direction over time, through the same virtues that were in evidence a year ago: courage, community, and selflessness. And so it's one good question to ponder on a day like today.

[edited during the day to make sure that I have said what I want to say]

posted by sam 7:38 AM 0 comments

Tuesday, September 10, 2002

Re "Homeland Security", Jeff Cooper (as he often does) says something that I agree with, and says it better than I could say it.

posted by sam 10:00 AM 0 comments

A reader who fancies himself to be my antagonist sent me this AP story about falling crime rates. The story quotes experts who attribute the drop to (a) improvements in the economy – i.e., more jobs – during the Clinton era; and (b) tougher sentencing laws. ("Specialists said the decade-long decrease in violent results mainly from the strong economy in the 1990s and tougher sentencing laws"). My correspondent – focusing, I think, on the "tougher sentencing laws" and thinking that he's a mindreader – says to me, "I seriously doubt this fits into your little world view. Quick, think of some other explanation....".

So I'm taking the bait.

Yes, of course tougher sentencing laws have some tendency to drive down crime rates. This happens because some would-be criminals are in jail, and because some people are rational actors whose decision as to whether to do a crime or not is rationally affected by their understanding as to how swift, how sure, and how long their punishment would be. Does this mean that criminal punishment should be as swift and sure and long as we can possibly make it, to reduce crime even further? Of course not. The reason is that we are dealing with human lives here. We as a society – or, let me speak for myself here, I as me – want to avoid some seriously bad effects that would come from making criminal punishment too swift, sure, and severe. I want to avoid railroaded false convictions, and I want to avoid ruining people's lives by having them rot in prison for periods that are disproportionate to the seriousness of their offenses. And I know that some people just aren't rational actors, who aren't motivated by a rational economic calculus in their decisionmaking, so the length of the punishment won't deter them.

But let's take this insight – that tougher punishments do deter some law-breaking – and apply it to a group that is a bunch of rational economic actors who are motivated by a rational economic calculus in their decisionmaking. That is: FOR-PROFIT CORPORATIONS. If we want (say) to have a labor law that actually deters labor-law violations, let's take my nagging correspondent's insight and make the punishments sure, swift, and severe. As it stands, the current system is like every conservative politician's caricature of the criminal justice system: it's slow (labor law cases take literally years to be decided, by the NLRB's administrative law system, then the NLRB itself, and then a U.S. Court of Appeals, before any remedy can be enforced); conviction of the guilty is by no means assured because of underfunded prosecutors, legal technicalities that can cause dismissal of the cases, and some judges who are soft on the defendants; and punishments are not enough to deter any future lawbreaking. Indeed, the punishments in labor law literally aren't even a slap on the wrist: the NLRB's ONLY monetary remedies are compensatory, not punitive. If we want the labor-law "crime" rate to go down, those are the things we need to fix: make actual punishments for labor-law violations, and make the system faster, and make it more certain that the wrongdoers will be prosecuted and convicted. If it's good enough for a guy with a smidgen of crack in his pocket, it's good enough for corporate America.

Interestingly, the U.S. Supreme Court has before it, this Term, a couple of cases that will test whether corporations get treated better than petty criminals along these lines. First, the Court has from California a couple of cases about whether that State's "three strikes" law is cruel and unusual punishment in violation of the Eighth Amendment. In one of the cases under review, the guy got 50 years for stealing a hundred dollars (or so) worth of videotapes. In another, the guy got 25 years for stealing three golf clubs. (These are the Ewing and Andrade cases, described on this page). Meanwhile, the Court is also going to be reviewing whether a large pop of punitive damages imposed on State Farm was unconstitutional. (scroll down to the description of the State Farm case on this page). If – as some experts predict – State Farm wins and the losers in California lose, then the Court had better give a pretty good explanation of why corporations seem to fare better in this sort of thing (i.e., in getting the Supreme Court to overturn the severe punishments imposed on them) than people do.

posted by sam 6:46 AM 0 comments

Monday, September 09, 2002

Here's my short and not-very-substantive blogpost for today. I love Max Sawicky's description of Instapundit and the like (offered in the course of an illuminating post on economics, Sweden, Mississippi, and Prescott Bush): "Bloggers who portray themselves as mainstream men-for-all-seasons not-bound-by-the-chains-of-ideological-illusion disdainful-of-labels slave-to-no-party-or-faction latitudinarian-beacons-of-political-tolerance who are actually pretty darned conservative, if you really want to know."

posted by sam 6:25 AM 0 comments

Sunday, September 08, 2002

Labor Continuing to lean on Two Tears in a Bucket for my blogtopics, I'm going to talk about strikes and lockouts for a minute. The big news on the West coast docks, as discussed by the links compiled by Ann at Two Tears and also in this link courtesy of Nathan Newman is that the Administration is talking about sending in the military to scab if there's a strike.

So let's back up for a minute to talk about labor law, because this will then shed light on what the Administration is trying to do rhetorically.

When there is no current collective bargaining agreement in force, either side can use what we labor lawyers sometimes call the "economic weapons" in order to try to bend the other side to its will. The weapon in labor's arsenal is the strike: "We won't work for what you're offering! We're leaving en masse -- if you want us back, buckle." The weapon in management's arsenal is the lockout: "if you won't take what we're offering, then there's no work to be done here and no pay! Go home until you buckle!" There are lots of intricacies as to what precise tactics are permissible in given types of situations, but those are the outlines.

So, let's imagine that you are the President and you are sincerely neutral as between labor and management but you don't want any work stoppage -- neither strike nor lockout. Do you accomplish your sincerely neutral goal by preparing to send in the military to do the work on the docks? NO! First of all, that only addresses one side of the situation; it only deters a strike, and does nothing to deter a lockout. It treats labor as "the problem", not management. And notice -- reading the stories that Ann and Nathan have linked to -- that the party threatening to shut down the docks is Management, threatening a lockout. It is even conceivable that what will happen is that management will lockout the union-represented employees and THEN the Administration will send in the troops to scab. Unfathomably unfair, and unlawful -- but conceivable.

Second, if the President thinks that it's really necessary that the government halt a work stoppage in order to avoid a national emergency -- whether the work stoppage is a strike or a lockout -- he has the same legal tool at his disposal no matter whether it's a strike or a lockout: the provisions of 29 U.S.C. sec. 176 through 180. (Go here and scroll down to the part on national emergencies). I wouldn't like it if the Administration stopped a strike in that way. I wouldn't think it good policy or good law -- but such an order could put an end to a strike OR a lockout, at least long enough to get the parties to an agreement. And those sections of the statute specifically say that they can be used against either strikes or lockouts (if it's a real national emergency; if it's not, the government has to keep its nose out of the situation).

So why are we being told that the military is being prepared to scab? The worst case scenario is the one I mentioned above -- that it will be management that uses its economic weapon, the lockout, and rather than stopping it under the Taft-Hartley Act, the military actually steps in to help management in that. The best case scenario is that this is merely Karl Rove stuff: theater, designed to make us all believe that Labor is The Problem, that management's talk of a lockout is somehow fundamentally different from and better than rumblings about a strike or slowdown, and that the only people strong enough to stand up to a bunch of union thugs is the military. Either way, it's an outrage.

UPDATE: It occurs to me, after breakfast, that there's a third possibility as to why the military is being prepared to scab: that the Administration does not believe that a dock strike would actually come within the legal definition of a national emergency, in the sense relevant here -- thus making resort to the President's Taft-Hartley powers (discussed above) unavailable as a matter of law -- but the Administration wants to physically intervene in favor of management in this labor dispute anyway. It should go without saying that, if this is what they're up to, it's unlawful.

UPDATE UPDATE: It also occurs to me that I should say a little more to explain my assertion that sending in the military to do the scab work, after mgmt locks out the union-represented workers, would be grotesquely unfair. Part of the reason is that, in labor relations, each side's weapon is also somewhat painful to itself. This is what keeps the weapons from being overused and is what tends to bring the parties back to the table more quickly: a strike hurts the company, but it's also somewhat hard on the workers who are on strike, and a lockout hurts the workers but it also in various ways hurts the company that imposes it. If the President supplies scabs during a lockout, though, he's making management's weapon (the lockout) much stronger: it would hurt labor just as it would in the normal course, and (by virtue of the military intervention) would not have the usual backfire-effect on management (because work would continue thanks to the scabs). So, again, taking such action -- rather than the action that the law might arguably allow if federal intervention is warranted at all, which is to seek an injunction against a work stoppage under Taft-Hartley -- would be a radical intervention on the side of managment. We'll see if it happens.

posted by sam 8:04 AM 0 comments

Saturday, September 07, 2002

more from the "broad brush strokes" department Via Two Tears in a Bucket, this story in which the Southern Baptists say that the Catholics are anti-semites because the Catholics have decided not to try to make the Jews into Christians. As Ann at Two Tears says, "sigh."

What particularly caught my eye was this quote from the Southern Baptist spokesperson: "Asking Christians to abandon evangelism, even for a single ethnic group, is akin to asking Jews to eat ham and cheese sandwiches." Has everybody in the world lost the art of using the word "some" -- as in "some Christians believe that it's important to convert others," and "some Jews keep Kosher, while some think ham and cheese sandwiches are best with hot mustard"? I know our President has forgotten the word -- as when he said the other day that the American people are mad about the rejection of Justice Owen. (Not me! Not me!) So here's my substantive post for today: THE WORD "SOME" IS QUITE A USEFUL ONE. TRY TO USE IT IN A SENTENCE. Here's an example, which is true: "Some Jewish vegetarians are good at baking hams, such as my Great Aunt Henrietta, who was also able to bowl a 300 game although legally blind."

posted by sam 3:37 PM 0 comments

Friday, September 06, 2002

The new name came to me as I was walking to day care at the end of the day and thinking about my exchange with cartoonist Ampersand, below. As he could explain better than I, Ignatz threw bricks that were actually (at least in the view of their primary target) missives of love. The authorities, however, saw them as detrimental to public order.

And beginning tomorrow, I will be trying a new routine that may do better for my mental life: one substantive post a day, and maybe one throwaway in addition to that. I won't be routinely giving repeated props to all my friends at the left, though they know that I care. I won't be telling you what the New York Times or the Washington Post or even law.com have to say; you can read them if you care. We'll see how it goes.

posted by sam 8:25 PM 0 comments

Instead of finishing my brief, I have decided to change the name of the blog, to "Wolves Howling." It somehow seems to fit my mood today. The url, as you can see, remains the same. To those few wonderful bloggers who have links to me in their lists, I say, don't bother to change the reference unless you like the new name as much as I do. And, since you ask, the phrase is the name of a fiddle-tune recorded by the Stripling Bros., who were Alabama's premier recording artists in the "hillbilly" genre in the 78 rpm era. It's a really cool recording. I'll even send you an mp3 of it if you want, if the nice guy in Vermont who made the 78-to-mp3 transfer says he doesn't mind. By the way, I don't usually traffic in mp3s, but it's my understanding that sound recordings of that era weren't covered by federal copyright law, so the whole Eldred thing is irrelevant to old sound recordings of public domain tunes, and I don't know of any state's law that applies so as to limit the copying of them. If anybody knows different, please advise.
UPDATE: Wait, that won't do at all. Too close to The Daily Howler. This sort of serious decision should never be made as an excuse to take a break from work; it requires sustained thought.

posted by sam 3:01 PM 0 comments

NLRB This week's update from the Board includes only one case, a routine affirmation of an ALJ's calculation of a discriminatee's backpay award.

posted by sam 2:32 PM 0 comments

this brilliant analysis from the cartoonist at Alas, a Blog, made me think this:

It's easy to disprove the thesis "all daily strips with talking (incl. thinking) animals are pure genius". (Garfield. QED.) But is it possible to disprove the thesis that "no daily strip without a talking (incl. thinking) animal has ever been pure genius"?

UPDATE: Thanks for the prompt and erudite answer, again from Alas, a Blog. "All other daily strip genres must bow down (chanting "we're not worthy! we're not worthy!") before the talking possums, kats and beagles." To which I would only add (and I see that Ampersand might agree) "... and big-nosed penguins and stuffed tigers."

posted by sam 12:32 PM 0 comments

Eleventh Circuit A bunch of recent Eleventh Circuit decisions, including the ones alluded to below, are summarized here in the sub-blog.

posted by sam 12:21 PM 0 comments

not that I'm going to spend today obsessing on Ann Coulter (having moved on from Sullivan), but this article should lay to rest any doubts as to whether she's even trying to tell the truth.

posted by sam 7:18 AM 0 comments

The class action decision issued yesterday by the Third Circuit -- already discussed by Howard Bashman and also discussed here on law.com -- is very important. If I get my brief finished today, maybe I'll make time to explain this bald pronouncement. I might even find time to comment on the defamation and ballot-access Eleventh Circuit decisions that Howard also noted. It would help if I could take whatever speed-reading and time-management courses that Howard must have taken, that allow him to cover so much turf so quickly and so knowledgeably.

posted by sam 6:50 AM 0 comments

If you are interested in a story about a major law firm issuing an astoundingly nasty press release about a partner who left for another firm, read this from law.com. If, on the other hand, you are interested in an article about the downside to public access to court electronic records (hint: the title is "Dirty Laundry"), read this from the NYT.

posted by sam 6:45 AM 0 comments

Many thanks to Fritz Schranck, who heard my increasingly-angry comments about Sullivan and Kaus, and said some insightful things that helped to soothe my Southern liberal psyche. So today, I woke up with the words of the great poet Kris Kristofferson on my mind:
'cause everybody's got to have somebody to look down on, who they can feel better than at any time they please, someone doing something dirty [that] decent folks can frown on, if you can't find nobody else then help yourself to me.

posted by sam 6:40 AM 0 comments

Thursday, September 05, 2002

more about guilty southern liberals Taking a break from my brief, I find -- from following Kaus's link to Instapundit and going from there -- that various people are talking about Sullivan's and Kaus's psychiatric diagnosis of me and my brethren. So far, it appears, I am the only person in the world flabbergasted by the arrogance of the suggestion that Southern liberals don't really have honest and considered opinions as other folks do, just manifestations of personal psychology.

I used to think of everybody who disagreed with me in that way, too. In law school I was fond of saying that Libertarians are just Republicans who like to smoke dope. Before I grew up a bit, I thought that I understood Justice Clarence Thomas's opinions as a manifestation of his psychology, even though I'd never met the man.

But I don't think that way anymore. So, rather than trying to figure out why Andrew Sullivan and Mickey Kaus say the silly things that they do (is it that the former is ashamed of being British and therefore looking for someone to look down on, and the latter was taunted about a certain Disney character in elementary school?), I eagerly await their belated recognition that they have said something silly, or their explanation that everybody's political opinions are just psychological symptoms. And yes, you can see that this is getting under my skin a bit. So I'll calm down, and await the wisdom of a good blogger who told me that he'd be weighing in on the subject later on ...

posted by sam 3:43 PM 0 comments

no time to blog much today -- between writing a brief asking U.S. Dist. Ct. to enforce a labor arbitrator's award (over the company's frivolous suit to vacate), and taking my dog to the vet (she's ok, thanks for asking) -- but just enough time to note this great recently-added spot from your friends at blah3. And to say that Beck's streaming preview of his new songs continues to be absolutely fantastic in an oddly Gordon-Lightfootish way.

posted by sam 2:59 PM 0 comments

no, really, is he just trying to be silly? More from Andrew Sullivan postulating that Southern liberals are just trying to curry favor with non-Southerners; he quotes and agrees with a reader who says "In any lefty circle, being a white Southerner is perceived as a huge character fault, regardless of that Southerner's ideologies. Lefties hear a Southern accent and cringe. So to earn points with colleagues in notoriously left-leaning newsrooms, Southerners overcompensate for the flaw of being Southern by abandoning all sense of reason and out-lefting anyone in sight."

Let me be plain about this: I don't think that gay people who are outspoken hyper-conservative moralizers are just taking that stance in order to gain favor with right-wing homophobes and to overcome the perceived character flaw of being gay. I think that Sullivan would rightly be pissed if I opined that this manipulative/psychological motivation, rather than actual thought, was the most notable reason for his political beliefs and the beliefs of his gay conservative allies. So why in the world does he feel free to say a precisely-analogous silly thing about Southern liberals?

It's kind of like Orrin Hatch on judicial confirmations. (Not that Senator Hatch is gay, so far as I know). Consistency's not the hobgoblin of little minds. Consistency is what keeps us from talking bs all the time.

UPDATE: And now Kaus, too, is jumping on Sullivan's bandwagon, claiming that every Southerner more left than himself (which is starting to include a vast number, as he runs towards the Right) is a "Guilty Southern White Boy" motivated by inappropriate regional psychology rather than the presumably more wonderful and intellectual and well-thought-out things that impel Kaus towards the political positions he takes. Now, I'm not usually one to get mad at Southern stereotyping; I loved O Brother Where Art Though, though the music was mostly anachronistic. (email me if you want my lecture, and web resources, on that). But this is frankly getting offensive.

posted by sam 7:37 AM 0 comments

I love reading all the people on the left-hand side of this page. But this morning I am especially loving TalkLeft because the site is chock-full of actual information and factual support for their opinions.

posted by sam 7:11 AM 0 comments

Anybody who spends any time on the web, and still calls the NEA anti-American or soft on 9-11 after the publication of this from Spinsanity ("The big NEA-Sept. 11 lie: How the conservative Washington Times helped create a myth about the teachers' union and Sept. 11 that has become conventional wisdom.") just isn't trying to tell the truth.

posted by sam 6:58 AM 0 comments

I'd mentioned the other day the issue regarding defense efforts to recuse Judge Clemon, in N.D. Ala., by hiring his nephew. Today's news, for those following the story, is that Judge Smith is reconsidering his earlier order, and has asked the parties for more information. The issue -- as far as I can tell from reading the newspaper, which is always a perilous way to get your legal information -- is not whether Judge Smith still believes that the defense was manipulating the system to get rid of Judge Clemon. The new issue is whether the plaintiffs were manipulating the system too, in order to get Judge Clemon assigned in the first place (by designating the case, in the Civil Cover Sheet, as "related" to a case already on his docket). If the manipulative motivation is proven -- and I don't know if it will be, or (even leaving aside the issue of "proof") if this was their motivation -- this strategem would seem to come within what Ernie the Attorney was talking about, re gamesmanship in litigation.

posted by sam 6:44 AM 0 comments

Whom does AG Ashcroft install on a committee whose purpose is to advise DOJ and HHS on the implementation of the Violence Against Women Act? How strange -- it's people who have vociferously criticized the Act as unconstitutional, pointless, and worse. Maybe next they'll appoint drug dealers to the U.S. Sentencing Commission?

posted by sam 6:39 AM 0 comments

Wednesday, September 04, 2002

anything that reflects poorly on Mac OS X, and temporarily silences Jeff Cooper, makes me doubly sad.

posted by sam 6:23 PM 0 comments

serenity now. serenity now Let me try to say this without screaming. As Howard Bashman points out, Senator Hatch has said (in connection with the upcoming vote on the non-confirmation to the Fifth Circuit of Texas S.Ct. Justice Owen) that it marks "the attempt by some to introduce ideology and base politics into the confirmations process".

Serenity now. This is hypocrisy because -- though he wasn't as bad as some in this regard -- Senator Hatch was among those who voted in a party-line vote against Pres. Clinton's nomination of Mo. S.Ct. Justice Ronnie White to the federal bench. (see, for instance, this lovely page from the Eagle Forum's site). It is simply not plausible to say that this was anything other than "ideology and base politics". White was a long-time sitting Judge, well-qualified from any point of view. Whether it was raw partisan politics, or ideology about criminal-law decisions, or both, Hatch's vote was precisely what he is now decrying.

Serenity now. There are two responsible positions that one can take on judicial nominations: either (a) neither party should take ideology and politics into account when it controls the Senate and the President is of the other party (the perfectly reputable stance that Howard took the other day); or (b) it is acceptable for either party to take ideology and politics into account (the stance that I take, though like most who take this stance I think that the power should be used sparingly -- but that it should be used in this instance with a vote against Owen).

Serenity now. But it is irresponsible for any U.S. Senator to pretend that only the other party has ever done it.

posted by sam 2:34 PM 0 comments

Eleventh Circuit How's this for a fact pattern, from yesterday's publication by the Eleventh Circuit of a previously non-published opinion:
On May 8, 1999, Dacosta attended a business class at Georgia Military College taught by Appellant. Dacosta asked Appellant a question about his teaching method; he ignored her question, though he answered similar questions posed by male students in the class. Dacosta later asked the same question; this time, Appellant not only failed to answer the question, but walked out of the classroom. Dacosta followed him out the door, seeking to approach Appellant about the question that he had persistently refused to address. Upon seeing that Dacosta had left the classroom herself, Appellant darted back inside the classroom, and slammed the door in Dacosta's face in an effort to deny her reentry to the room. Dacosta held up an arm in an attempt to protect herself from the door; her arm shattered the glass window on the door and became lodged in the cracked pane. Appellant then violently swung the door several times in an attempt to knock Dacosta back from the door. After this effort proved unsuccessful, Appellant reached through the cracked glass pane and shoved Dacosta's face, still trying to forcibly dislodge her arm from the window. At this point, several students in Dacosta's class restrained Appellant until the police arrived and arrested Appellant for criminal battery. Dacosta incurred medical expenses of over $5,000 as a result of the incident.

The Circuit decides that these facts don't consitute a violation of a substantive due process right under the Fourteenth Amendment. Whether that's right or not is something I don't have time to opine on, right now.

posted by sam 11:32 AM 0 comments

race discrimination in public accomodations Because Google told me that it was similar to my site, I looked at The Sound and the Fury. Through that site I find that somebody called "Overlawyered," which purports to "explore[ ] an American legal system that too often turns litigation into a weapon against guilty and innocent alike, erodes individual responsibility, rewards sharp practice, enriches its participants at the public's expense, and resists even modest efforts at reform and accountability," has linked -- with implied disapproval of the plaintiffs and their lawyers, to judge by the mission-statement quoted above -- to this article. The article is about a settlement of a suit alleging race discrimination against customers by a Wendy's in Cullman, Alabama.

So, what are we to make of the implicit claim that this settlement is part of what is wrong with our legal system? Is it that the author of overlawyered believes that we should repeal the decades-old federal statute prohibiting race discrimination in public accomodations, so that restaurants in Cullman will be able to refuse to seat Black people if they want? I know that some law-and-economics types, and some racists, believe this (note that I am not saying that those groups are the same); but they're wrong. Is the author saying that the allegation of racially discriminatory motive was implausible and that this was just a shakedown settlement? If so, the author should spend more time in Cullman, Alabama; there are plenty of white people who aren't racists there, but there are way too many who are, and it's entirely plausible that this was race discrimination. (It wasn't too long ago that Cullman had a sign at the city limits telling Black people to get out of town before sundown, referred to (e.g.) here). That's quite obviously why Wendy's settled the case: because there was a risk that they would lose. How the enforcement of civil rights laws through good-faith lawsuits, and the settlement of those lawsuits, constitutes "overlawyering" or something wrong with our society is frankly beyond me.

UPDATE: Oops, I meant "Taco Bell," not "Wendy's". I got confused. The point remains the same.

posted by sam 10:00 AM 0 comments

arbitration as a condition of employment Thanks very much, Howard, for asking my opinion on the Ninth Circuit's decision (pdf) yesterday, holding that an employer can lawfully refuse to hire a person because he or she refuses to sign an agreement that all claims -- including federal discrimination claims -- will be arbitrated rather than litigated in court. I've touched on the topic tangentially before, but here's my answer: (1) The decision was probably correct -- which is not to say that the law should be that way, but that this decision makes the best sense of the applicable Supreme Court precedents and statutory language; (2) It's not so bad, really, even from a "what the law should be" perspective; and (3) (what else do you expect me to say) it highlights the need for LABOR ORGANIZATIONS!

First, the decision was legally correct. The Supreme Court -- like it or not -- has issued a series of opinions that expanded the reach of the Federal Arbitration Act, a statute making arbitration agreements enforceable even in states (like Alabama) that traditionally disfavor arbitration. Under these Supreme Court precedents, an agreement to arbitrate an employment-discrimination claim is pretty clearly enforceable if the provisions of the arbitration agreement are fair (see my earlier post touching on this issue). While the federal employment discrimination statutes could nonetheless be written so as to declare that claims under those statutes can't be forced to arbitration over an employee's objection, the language of the anti-discrimination statutes doesn't really so provide, to my eye. Or to many other people's eyes, apparently. Finally, though the federal anti-discrimination statutes also have anti-retaliation provisions -- such that employees can't be fired for doing things that they reasonably believe are protected by the anti-discrimination statutes (such as complaining about sex harassment, for instance) -- the Ninth Circuit's decision echoes the Eleventh Circuit's recent decision in holding that the anti-retaliation provisions provide no solace for a guy who was fired because he refused to agree to arbitration.

Second, is this such a bad thing? Not really, in my view. I recognize that my view is somewhat outside the mainstream, for lawyers who represent employees in discrimination cases; those lawyers tend to worry that arbitration will not be as friendly a forum as federal court. My view -- again assuming that the procedural aspects of the arbitration agreement are fair (i.e., no provisions making arbitration too expensive from the employee's point of view, or limiting discovery too strictly, or purporting to limit the remedies that the arbitrator can award, or stacking the arbitrator-picking process in the employer's favor) -- is that arbitration is one of the greatest things since sliced bread for employment-related disputes. Why do I believe this? Because that's been union-side gospel for fifty years, at least as to the resolution of disputes arising under collective bargaining agreements, and I'm fully convinced based on my experience that arbitration could also be good and fair for statutory discrimination cases. It's just a matter of developing a generation of arbitrators who are good and fair when handling these cases. Then, arbitration really can be a fair and inexpensive and speedy alternative to court -- and you may just find (as we often do in labor arbitrations) that arbitrators who spend day after day seeing how workplaces really function are somewhat more forgiving of employees' minor foibles and screwups than are federal judges, and more sensitive to unfairness and discrimination, and that this ends up making arbitration a more successful forum for plaintiffs.

Third, what do we need to do, in order to develop that level of fairness in the arbitration of employment-discrimination cases? The answer, as Joe Hill said, is "Don't mourn -- organize!" In the current climate, to call these arbitration provisions "agreements" is something of a sick joke; for the vast majority of unorganized employees, there's nothing remotely like a true negotiation and agreement of employment terms, so the employer imposes whatever terms it wants and you're fired if you don't say "thanks boss." This, I think, was the core insight that the dissent had, in the Ninth Circuit case, and the reason why I would perhaps rule for the employee on this issue if I were on the Supreme Court: that the FAA enforces only arbitration agreements, and these forced provisions aren't agreements in the freely-negotiated sense contemplated by that statute. But I'm not on the Supreme Court, and the folks on it won't buy this argument. So, again, don't mourn -- organize. If employees organize themselves and opt for union representation, then they will be able to do the two crucial things that will make arbitration work here: (1) they will be able to collectively bargain about how the arbitration system will work, such that it's fair (or even, if they want to, negotiate adamantly that they won't arbitrate statutory claims; and (2) they will let arbitrators know that the unions are large repeat players on the statutory-arbitration scene, giving arbitrators an incentive to be fair so that both sides will agree to their selection in future cases.

How about that for a long-winded answer to Howard's question? Now time's up -- or more precisely, my kid's up, and I got to go. Sam

posted by sam 7:17 AM 0 comments

Tuesday, September 03, 2002

legal ethics and real ethics Ernie the Attorney has a thoughtful post on procedural gamesmanship, legal ethics, and real life ethics. While I agree with his major theme -- which is, if I'm reading him correctly, roughly that playing "by the rules" isn't always the same as contributing to a fair system of justice -- the two examples he picks are close enough to my own life that I think that I can explain some details about them, which may in turn shed some light on the larger questions by example.

The first thing Ernie mentions is the marked pattern, in the U.S. District Court for the Northern District of Alabama, of defendants in large employment-discrimination cases hiring a certain law firm because one of its partners is the nephew of Chief Judge U.W. Clemon, who is perceived by company lawyers as the most liberal judge in the District. In that way, they get Judge Clemon off their cases. (As Ernie notes, there was a big story about this in the Wall Street Journal the other day, but it was while I was off on a boondoggle in Las Vegas so I didn't blog about it). To lay my cards on the table, I admire Judge Clemon immensely and I like him immensely as a person. There is absolutely no reason for anyone to suggest that he's anything but fair. (The fact that his rulings may, in some patterns, tend to differ from those of some Republican appointees does not prove otherwise, unless you've got a peculiarly employer-centric definition of the word "fair".)

Here's what I can add to what Ernie said about it, and this is what makes all the difference, I think: that manouevering to recuse Judge Clemon by hiring his nephew's firm is not lawful, if that's the motivation for hiring that firm. And that's why, last week, another U.S. District Judge from the District stepped in to stop it. (also here).

The other topic that Ernie mentions is the inclusion of "non-diverse defendants" (i.e., defendants who live in the same state as the plaintiff) so as to keep a case in state rather than federal court. Plaintiffs' lawyers often do this, when they believe that the case will have more success in state court, and I admit that I've made something of a sub-specialty in writing briefs in support of this tool. So when Ernie points out that this is a kind of gamesmanship, my mind eagerly runs to the justifications and to the things that make it different from the manouevering to get rid of Judge Clemon.

And here's the distinction: the Supreme Court has said, for decades, that the motivation of the plaintiffs' lawyers for including those non-diverse defendants is irrelevant, and that it's OK for plaintiffs' lawyers to do whatever they can do to keep the case in state court if they want. In the recusal situation, the law says that motivation matters; in the diversity-jurisdiction situation, the law says that motivation doesn't matter.

Why should motivation matter in the one case and not in the other? I think that one good reason is that, in trying to stay in state court and avoid removal to federal court, the plaintiff's lawyer is not saying or otherwise indicating to the world that he or she believes that a certain judge or judges won't provide a fair shake. Instead, the tactic is -- and should be seen as -- motivated more by the differences in procedural law that will govern in state or federal court. If (say) the state courts have a more class-friendly set of precedents as to whether class actions should be certified -- or a set of precedents about summary judgment that tends to mean that more cases get to trial -- or a jury pool drawn from one county rather than several -- this is a perfectly reputable reason to prefer state court. So when the defense lawyer says "that darn plaintiff's lawyer was trying to avoid federal court," the proper answer is "so what? that doesn't amount to a personal attack on the dignity of the federal court, and doesn't detract from public trust in the judicial system." But when the defense lawyer tries to make sure that the company's case is heard by one federal judge rather than another -- which is to say, in the Northern District of Alabama, almost-certainly a white Republican appointee rather than a Black Democratic appointee -- then this does amount to, or is at least publicly perceived as, an attack on a jurist's fairness. That's why motivation matters in the one context, but not the other.

Does this mean that I think that playing by the rules and keeping a lawful motivation in your heart is, in and of itself, sufficient to make legal practice a morally sound endeavor? Not quite, not always. But the law (which is to say, lawyers and other law-makers) does better in formulating truly just rules, than most non-lawyers give us credit for.

posted by sam 9:33 PM 0 comments

my education in Economics Max Sawicky has begun to answer my wish, with the first in a series of posts about the EPI report on the State of Working America. Highly recommended reading -- real information, the sort that makes this world wide web thing worth spending time on.

posted by sam 6:10 PM 0 comments

couldn't be sillier if he tried I think that I just read the silliest thing that I've ever read on a blog. Not the most evil, just the silliest. And of course it comes from Andrew Sullivan, who is (scroll down to the lowest entry of the day) saying (in paraphrase) that Southern liberals aren't really liberals because they've thought things through or because they have opinions, but because they're expiating some guilt for being born Southern or are trying to win approval from non-Southerners. (Sullivan postulates that it's important to differentiate those Southern-psychiatric-liberals from some (his word) "genuine" Southern liberals, but gives no clue as to how he proposes to do the differentiating or which of us will get his stamp of approval as "genuine"). Any evidence for this supercilious junior-psychologist "Southerners don't really think as deeply as I do, they just act according to their hidden subconscious imperatives or social climbing" nonsense? Of course not. Is it barely conceivable that this is another one of those often-remarked instances where Sullivan is attributing to others the faults that he finds in himself -- i.e., that he takes the stances that he takes, not because he believes them but in order to curry favor?

posted by sam 3:24 PM 0 comments

Judicial nominations My fondest wish for the moment is that Howard Bashman keeps blogging long enough to show us that he really means this, so that he will be a respected conservative voice in favor of the confirmation of Judge Paez to take the seat of Justice Scalia in the summer of 2005. NB: there is no ironic wink or nudge in this post.

posted by sam 3:06 PM 0 comments

Trial lawyers The Post tells us this morning that John Edwards' association with those dreaded "trial lawyers" will be perilous for him if he runs for President. Here are two things I have to say about that (and should mention before proceeding that I'm not really a "trial lawyer" in the current pop understanding of that phrase, but some of my friends and colleagues are):

1) It is to Edwards' everlasting credit that -- at least so far -- he has done the exact opposite of what most politicians would do, when subjected to such attacks. His response has been "Damn right I'm a trial lawyer, and I'll tell you why." Contrast this to (say for instance) our President, who pretends to be a born-and-bred member of whatever group suits his political needs at the moment. This honesty, perhaps more than anything else, is the reason why Edwards (despite his relative lack of political experience) will make some serious headway.

2) With specific reference to trial lawyers as campaign contributors -- which is the primary topic of the Post article -- the dynamic is much like what I was discussing in my labor day post (just below this one). One thing that trial lawyers and unions have in common -- and the thing that makes them so very scary to Republican operatives -- is that they are some of the few holders of large pots of money whose interests are aligned with the great majority of people in this country, who don't have large pots of money. You can say all day long that this alignment of interests is not perfect -- and you're right, the alignment is not perfect, but it's plenty close to scare the Republicans. Trial lawyers make their money by deterring large corporations from harming people (physically and economically). So is it any wonder that the Republicans, which is largely the party of the corporations, vilify trial lawyers and call their money tainted and accuse them of causing the downfall of the culture? And why should you believe it, unless you are the head of an insurance company? If you want to engage in a reasonable debate over whether medical malpractice awards should be capped, that's fine; reasonable minds might differ on that. But as soon as someone avoids that sort of rational argument and says (as one Republican operative said to the Post) that trial lawyers are the ones who are "screwing the little guy", then we know that we are in the land of corporate spin.

posted by sam 7:30 AM 0 comments

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