(The Return of) Ignatz, by Sam Heldman

Thursday, October 31, 2002

Your tax dollars at work, if you live in Alabama

Alabama Attorney General Bill Pryor has appealed the ruling (discussed here and elsewhere a while back) striking down as unconstitutional the state's anti-vibrator law. I try to maintain a healthy respect for elected officials even when I disagree with their acts, but I have to say, that's a nutty waste of public resources. (This is not to say that the State might not win the appeal; there are some judges on the U.S. Court of Appeals for Eleventh Circuit who might well have such a narrow view of the constitutional right to privacy as to say that a state can ban vibrators if it wants. But from a public-good perspective, I can't imagine any plausible argument that the public will be well served by this appeal, successful or not.)

posted by sam 6:59 AM 0 comments

Re the President's "plan" to speed up the nomination and confirmation of federal judges, this Washington Post article tells all we need to know (not that you couldn't have figured it out yourself). If you read nothing else about this issue, read this paragraph from the Post.
The Democrats who control the Senate are unlikely to approve such a plan, but for Bush, that is largely beside the point. Republican officials said the timing was designed to dramatize the stakes going into the elections, when just a few races will decide whether Democrats keep their majority. The strategy, drafting proposals for major changes in the way judges are chosen without consulting senators of either political party, suggested an eagerness by the White House to expand its powers rather than to broker compromise on a delicate issue.

While various people may have various thoughts about how the process should work -- and for my part, I think that it should involve much more consultation with the Senate prior to nomination than this President has done -- substance wasn't really the point of the President's proposal. If the President had wanted faster confirmation of judges by this Senate, he would have worked with them on the selection of nominees. If he wants a rubber stamp, he needs a Republican Senate. And that's all that this proposal is about: getting a Republican Senate.

posted by sam 6:49 AM 0 comments

Wednesday, October 30, 2002

I have these two things to say today:

1) I hope that if I die (and all signs suggest that I will someday), my friends and colleagues will gather in a big party a few days later to laugh and smile together, and to get each other pumped up to work on the things that were important to me and are important to them. Anybody who thinks such behavior is unseemly will be unwelcome at my party.

2) I am usually quite a snob about old-time (i.e., banjo-fiddle, etc., southern traditional and early-20th-century) music. So, when I saw a picture and a blurb in the New Yorker about a young group who's playing old-time music with a punk vibe, I was dubious. But I went to their web site, and it seems that to their credit they don't think that they invented the concept (I've got friends who were doing it almost thirty years ago, and Earl Johnson was doing it in the 1920's) and that they didn't skip the step of learning how to play their instruments. Check out this band -- the Old Crow Medicine Show -- at their site, and download some pretty great mp3s. (Listen to "Tear it Down" first, I suggest).

posted by sam 12:34 PM 0 comments

Supreme Court

First case up for Wed 11/6 is Norfolk & Western R. Co. v. Ayers; there's no published lower court opinion to link. It's an FELA case, which means that it arises under the Federal Employers' Liability Act, which provides that railroad employers are liable for injuries that they inflict negligently (or worse) on their employees. The injuries here were caused by workplace exposure to asbestos. There are two questions presented: (1) whether the jury should have been allowed to award damages to the plaintiffs on account of their fear that, already suffering from asbestosis, they might develop asbestos-related cancer in the future (the jury was allowed to, and did, award such damages, but the railroad claims that there was not enough corroborating evidence of any real emotional distress on that account); and (2) whether the jury should have been instructed to apportion responsibility between the railroad and other culpable entities that were not parties to the case, and therefore should have awarded damages against the railroad only according to the percentage of its fault -- or whether the railroad was properly held liable for all of the plaintiffs' asbestos-related injuries because the railroad was one of the responsible parties.

The somewhat interesting thing about this case is that it presents one of those relatively rare contexts in which the U.S. Supreme Court is unabashedly acting as a maker of common law. In most cases, only state courts get to do that; and the Supreme Court, in most cases, is supposed to pretend that it's only interpreting a statute or the constitution, not making law. But here, the Supreme Court gets to unashamedly say what the Justices think would be the "best" rule to adopt. For a look at how they answered somewhat related questions in an FELA case a few years ago (in favor of the railroad), see Metro North v. Buckley (1997).

For more discussion of the case, see this article from law.com. And read this amicus brief from Trial Lawyers for Public Justice, which to my eye is very convincing in arguing that there is longstanding support in traditional tort caselaw for the recoverability of fear-of-cancer damages.

I'll skip to the chase, and again you can call me a cynic all you want; but based on reading Buckley, and based on what I think I know about the Court's majority's general views on asbestos liability, trial lawyers, etc., I'm betting that the Court will rule for the RR on at least one of these questions presented (likely both) and therefore REVERSE.

posted by sam 6:10 AM 0 comments

Tuesday, October 29, 2002

A guy named Michael Peter pleaded guilty to a federal indictment, and served his time. Then, after he got out, the U.S. Supreme Court held (in somebody else's case) that the acts that he was alleged to have done -- and that he admitted doing, in his plea -- weren't even a crime under the statute that he was charged with violating. So naturally, he wants to have the conviction deleted from his record, presumably so that he can vote, etc. Sounds reasonable, right? But the Government opposed it, even though the Government agreed that his activity turns out not to have been a crime after all. Think about it: why would the U.S. Government think it good law or good policy to oppose a guy's effort to have his conviction expunged, when the thing to which he pleaded guilty turns out not to have been a crime? I suppose it's just the elevation of procedural fetishism over substantive justice; the same thing that drives much of criminal law in the appellate courts these days. Fortunately, the U.S. Court of Appeals for the Eleventh Circuit rejected the Government's position in this opinion yesterday. Interesting case, I think; and we will now see whether the U.S. tries to take it to the Supreme Court.

FURTHER THOUGHTS: It is conceivable that there were other facts, not mentioned by the Court of Appeals, that would have shown that the government's position was at least arguably fair and reasonable, not just procedurally fetishistic. For instance, what if the defendant had also been facing other charges that he was almost certain to be convicted on (say, hypothetically, some tax evasion charges), and this plea deal resulted in the dropping of those charges in exchange for his guilty plea on the other (now legally-unsupportable) count. Then, in that hypothetical situation, you might say that it wouldn't be fair to let the guy back out of the plea deal, having taken advantage of its good aspects by getting the tax counts dropped. But again this is all hypothetical, so far as the Eleventh Circuit's opinion shows -- though it is always a good idea to remember, as I did when thinking further about this, that courts don't always mention in their opinions the facts and arguments that weigh against the decision.

posted by sam 6:50 AM 0 comments

Kieran Healy, a professor at the University of Arizona, continues to have a great blog, including this exchange (see comments too) about gun control. Well worth reading.

posted by sam 6:42 AM 0 comments

Monday, October 28, 2002

Supreme Court Next up for discussion and prediction: Tuesday Nov. 5 brings two cases that ask whether LONG sentences for minor offenses under California's 3 strikes law are unconstitutional under the Eighth Amendment. This post will be LONG too, but I hope it will be worth it to you.

Ewing v. California, coming on direct appeal from the state courts, involves a guy who tried to steal some golf clubs (c. $1200 worth, according to what I've seen) after having prior convictions for burglary and robbery. He got a sentence of 25 years to life. The state supreme court's decision is apparently not published. Lockyer v. Andrade, coming up on the State's petition for review of the Ninth Circuit's grant of habeas corpus relief, involves a guy who stole 9 videotapes from K-Mart and got – get this – life in jail without the possibility of parole for at least 50 years because he had some prior non-violent felony convictions. The Ninth Circuit ruled in Andrade's favor (pdf file, opinion by the brilliant and nice Judge Paez).

These cases are a good example of the truth of something I read just the other day, in a fascinating book called Courting Justice: Gay Men and Lesbians v. the Supreme Court by Joyce Murdoch & Deb Price. Justice Douglas told the story that when he first went on the Court, Chief Justice Hughes said to him,
"Justice Douglas, you must remember one thing. At the constitutional level where we work, 90 percent of any decision is emotional. The rational part of us supplies the reasons for supporting our predilections."
So now, whenever anybody accuses me of being a cynic about Supreme Court decisionmaking, I'll just footnote Hughes, C.J.

But there is not only emotion in these cases, there is also a relevant – though conflicting and messy – series of Supreme Court precedents. Start with Rummel v. Estelle (1980), upholding a life sentence with possibility of parole after 12 years for a guy with prior convictions who cheated somebody out of $120. Then comes Hutto v. Davis (1982), upholding 40 years for 9 oz. of pot. Looking bad for Ewing and Andrade, huh? But then comes Solem v. Helm (1983), holding unconstitutional a sentence of life without parole for a guy, with prior convictions, who was convicted of passing a bad check.

So by this point in 1983 – thanks to these three 5-4 (or practically so, in the case of Hutto v. Davis) decisions – the law is impenetrable. It looks like maybe the rule is "life without parole for a non-violent offense is too much, but anything short of that is ok". And the Justices are always divided as to what the underlying doctrine here is: can the courts review a sentence to see whether it's "proportionate" to the crime, in the courts' view? or not? It would have been nice if the Court had cleared up this mess in Harmelin v. Michigan (1991) but instead they just made it worse. There was no majority opinion in Harmelin, Rehnquist, C.J. and Scalia, J. said, in effect, "all criminals lose. no constitutional review of felony sentences for proportionality." O'Connor, Kennedy, and Souter, JJ., say "some very very narrow constitutional review of sentences for proportionality, but life without parole for 650 grams of coke is ok by us." Four justices, of whom Justice Stevens is the only one left on the Court, dissented from the upholding of that sentence.

So where are we? Let's take Ewing first. We know, from some non-precedential musings about the denial of cert in a case a few years ago, that the four quasi-liberal justices think that there's a serious constitutional question here. Assume that they are for reversal, then; this is just a working assumption and as you will see it makes no difference to the outcome of my prediction. We know – not to a dead certainty, but pretty well – that Chief Justice Rehnquist and Justice Scalia think that this review of length of sentences is no business of the courts; and it's a good guess that Justice Thomas will join them in this view. So you've got 3 for affirmance. Now you are seeing, again, why they say that Justice O'Connor (and to some extent Justice Kennedy) are the swing votes on this Court. So what will Justice O'Connor think? Here are our clues: she was among the dissenters in Solem, who would have upheld life without parole for passing a bad check, and she also joined Justice Kennedy's opinion in Harmelin saying that review for proportionality is very limited and deferential. If life without parole for a bad check was ok in 1983 – and if she hasn't changed her mind very much since 1983, and Harmelin suggests that she may have just a little, but probably not very much – then Justice O'Connor will vote to "ding" Ewing, and Justice Kennedy probably will too based on his opinion in Harmelin, and so Ewing loses. Therefore I say AFFIRM in Ewing

What about Andrade? In one sense, his case is stronger than Ewing's, because he got a longer sentence for more piddly crimes, and crimes that were right on the cusp between misdemeanor and felony. (As Judge Paez's Ninth Circuit opinion described it, these sometimes-felony-sometimes-misdemeanor crimes are called "wobblers" in California.). This not-quite-felony nature of the crimes could have made the difference for Justice O'Connor, if this case were coming up on direct review. But there are a couple of wrinkles in Andrade that make it hard to get to affirmance. First, there's a question as to whether Andrade's notice of appeal was timely, when he appealed from the District Court to the Ninth Circuit; and if it wasn't, then he loses here. And, perhaps even more importantly, because his case is on habeas corpus review, the stringent (I would say "horrible") recent statutory limitations on federal habeas review come into play, such that he can win only if the state court decision was not just wrong but also an unreasonable application of clearly established U.S. Supreme Court precedent, which means something like "obviously wrong". My best guess is that, based on one or both of these points, Justices Kennedy and O'Connor will vote to REVERSE in Andrade along with the Chief and Scalia and Thomas, JJ. (Note: under the rules I've made for myself, "vacate" and "reverse" are the same in terms of my predictions; so "vacated on account of the appellate jurisdiction problem" would count as a correct guess on my part). In short, both defendants will lose. But the law will still be a mess, with a significant chance of no majority opinion that 5 justices agree on in either case.

posted by sam 12:10 PM 0 comments

Sunday, October 27, 2002

Short notes:

Article in the Birmingham paper today about the continued racial segregation of many schools in rural Alabama; things are improving somewhat in that regard (almost 50 years post-Brown), but not quickly, and the impact on all kids' education is disastrous as recounted in this article.

Had a great trip this weekend to Poplar Spring Animal Sanctuary, near DC, which takes in (among others) mistreated animals from factory farms, etc. (Don't infer from this phrasing that some animals are generally treated well at factory farms and that "mistreatment" is aberrational; mistreatment of animals is business as usual). If you think it's cool to oppose PETA and/or make fun of vegetarians, you would learn something by going to talk to the folks at Poplar Spring about the life stories of the animals there.

Thanks to Fritz Schranck for reading and writing about my labor law post below. He also mentions some criminal activity by a union official. I used to be defensive about the existence of wrongdoing within unions; now, being old and wise, I do recognize that any human institution has humans in it, and none are perfect.

Thanks to Ed Still for bringing to my attention this article (link will probably expire soon) by an Alabama Baptist pastor who opposes the courthouse display of the Ten Commandments.

posted by sam 3:48 PM 0 comments

Friday, October 25, 2002


Think that American labor law is too tilted in favor of the employees? Think that the shrinking percentage of workers who are organized is attributable to employees' brilliant realization that they don't need unions because they have such good employers? Try this case on for size, Wake Electric, which was just announced on the NLRB's weekly summary of new cases yesterday.

First, a little background. When employees want to be represented by a union, then unless they can get their employer to agree to recognize the union (which is very unusual in most industries), they have to get the NLRB to hold an election. Even getting to the point of having an election requires overcoming lots of procedural hurdles and dodging lots of potshots from the company. And if the NLRB does order an election, then both sides (company and union) are required to refrain from doing things to unfairly entice, or to scare the bejeezus out of, the employees. If the side that wins the election is then found to have violated those rules, there will be a re-run election. But if the company did really serious things to destroy the union organizing effort, then a second election isn't necessary; instead, the NLRB is supposed to order the company to bargain with the union without requiring a further election. This has been the law, from the Supreme Court on down, for decades. See NLRB v. Gissel Packing Co. (which is why such orders, to remedy serious unlawful behavior by companies, are called "Gissel bargaining orders".

OK, so let's go to Wake Electric. The employees convinced the NLRB to hold an election, after a majority of employees in the relevant unit signed cards indicating that they wanted union representation. Despite this majority support, the union ended up losing the election by a lopsided vote, when the election was held about six weeks after the majority had signed their authorization cards. What happened in those six weeks to destroy the union's support? Here's what, even according to the two Bush recess-appointees on the Board:
The judge’s unfair labor practice findings that we adopt involve soliciting and promising to remedy grievances, promising benefits if employees ceased their support for the Union, polling employees to determine whether they would ask the Union to withdraw its election petition, telling employees that their union activities would damage their relationships with other electric cooperatives and cause the latter to discontinue helping employees during emergencies, telling employees that it would be futile to select the Union, threatening employees with unspecified reprisals, threatening employees with discharge, creating an impression of surveillance of union activities, and accelerating the resignation dates of four employees and granting them severance pay.
In simpler words, the company repeatedly offered the employees new sorts of wonderful things if they would disavow the union, interrogated employees about their beliefs, threatened employees with various adverse consequences up to and including discharge if they voted the union in, and other things. Here's how Member Liebman described it:
Those unfair labor practices included three separate threats to discharge employees for engaging in union activities, as well as granting significant benefits to employees shortly before the election. … And these were not the only violations of the Act. Far from it: they were accompanied by a drumbeat of other unlawful actions, some of which were committed by high management officials and were directed at nearly all employees. Those included soliciting and promising to remedy grievances, promising benefits if the employees rejected the Union, polling employees to determine whether they would cause the Union to withdraw its representation petition, telling employees that it would be futile to select the Union, threatening employees with unspecified reprisals and with the loss of assistance from other electric cooperatives if they supported the Union, creating the impression that employees’ union activities were under surveillance, and accelerating the resignation dates of four employees to keep them from voting in the election. In uttering one of the discharge threats, supervisor Pernell even assaulted employee Garrett in Garrett’s own home, and punched a hole in the wall of Garrett’s bedroom. Nor did the unlawful conduct end with the election: Pernell threatened employees with discharge even after the election, thus demonstrating a likelihood that the Respondent would continue to violate the Act in the future in order to keep the Union out.
The Administrative Law Judge, who heard all the evidence, found that this was a case that cried out for a Gissel order.

But the two recess-appointee Members of the Board, over the dissent of Member Liebman, decided otherwise. In their view, it will be good enough to hold an election and make the company post a notice promising not to do those things any more. So, three and a half years after they were beaten into submission the first time, the employees will get nothing more than another chance to vote. Meanwhile, with no real adverse consequences, the company has been (as the union-buster consultants love to say) "union-free" for those 3 1/2 years.

This is not, I promise you, an isolated case. This is the sort of thing that we see all the time in our practice. This is what you get when you have a labor law with no teeth, and companies with no respect for the law.

I would have written something about Paul Wellstone instead, but his death makes me too sad; outrage is unfortunately an easier emotion from which to write.

posted by sam 3:53 PM 0 comments

Just once more on the Commandments

This will be my last post about the Ten Commandments in the Alabama Judicial Building for a while. But there was something eating at me about the news report about the parties' final arguments before Judge Thompson, and I couldn't quite put my finger on it until I started thinking about the oral argument in a case before the U.S. Supreme Court more than 30 years ago.

The case was Cohen v. California, known to law students far and wide as the "F**k the Draft" case. (I use the asterisks only because I want to avoid the impersonal wrath of internet filters). Cohen was arrested for wearing his denim jacket with those words on it, in the hallways of an L.A. County Courthouse. He contended that this conviction violated his First Amendment rights; and the Supreme Court agreed by a 5-4 vote.

Cohen's lawyer, Melville Nimmer, is said to have figured that in order to win, he had to say the word out loud in oral argument. If he was squeamish about it, he knew, this would be an implicit concession that saying the word in a courthouse was beyond the pale. And sure enough, when he rose to begin his argument, the Chief Justice telegraphed to him that he shouldn't say that nasty word ("it will not be necessary for you to dwell on the facts," etc.). But Nimmer stood his ground, and said it plainly and simply; and the roof did not collapse, and he won the case. Here's a link to a Real Audio of the argument, courtesy of www.oyez.com, if you don't believe me.

What does this have to do with the Ten Commandments trial in Montgomery? It's that Judge Thompson is reported to have said that the question presented – and the way that he would likely begin his opinion – is "Can the state acknowledge God?". And one of the plaintiffs' lawyers responded that the question instead was "whether God can be acknowledged by the state in this way?" Now, I am second to no one in my admiration for Judge Thompson; and I know that it's much easier to be an armchair second-guesser than to be the one doing an oral argument; and I know that you can't always believe what you read in the paper.

But it seems to me that, just as it was imperative to say "F**k the draft" even when the Chief Justice said not to, so it would have been important to say in this case, "No, your honor, that's not the question at all, and let me explain why, because it's really the heart of the case, even though it will be appalling to some people: to "acknowledge" something is to admit that it exists, that it is true. The verb 'acknowledge' presupposes that the thing being acknowledged is, in fact, demonstrably and recognizedly true. If something's not quite obviously true, but you want to declare that it is true, what you're doing is not 'acknowledging'; you're 'contending' or 'asserting'. And, your honor, although you may perhaps, in your personal capacity, believe in the existence of God (the God of the Christian Bible) as strongly as you believe in the existence of the world itself -- that is not an agreed-upon truth, and it's not the government's place to assert that it is the truth. It's not a matter of 'acknowledging' God; it's a matter of debating whether God in the Christian sense exists, and more precisely whether government has the right to take sides in that debate. That's what this case is about, your honor; and so I respectfully submit that if you start your opinion in the way that you just said you might, you are well on the way to the wrong answer in this case." Just as Mr. Nimmer said that word that made the authorities cringe, the way to win this case is to say, out loud and without shame, that the existence of the (judeo-)Christian God is not a "fact" that the government can recognize as such. The question is not whether the state can "acknowledge" God; the question is whether the state can assert the existence of God in this particular fashion. Again, it's quite possible that the plaintiffs' lawyers made this point well, and that Judge Thompson indicated that he understood that this was what's at stake; but if so, you wouldn't know it from reading the Mtgmry Advertiser.

Yes, I know that if my mother-in-law sees this she might cringe; but she lovingly accepts me despite the fact that my level of certainty in God's existence is about 25 percent of hers.

posted by sam 7:05 AM 0 comments

Thursday, October 24, 2002

Music If you don't already know about NPR's online music show "All Songs Considered," you might want to check it out. Each episode offers either an audio-only, or audio-with-a-little-video, Real Player program of various music that might not otherwise make it onto your radar screen. This week has, for instance, Charlie Christian (pioneering jazz guitarist), odd electronic music courtesy of David Byrne, etc. I find Real player very annoying technically (ultimately had to do a little workaround to get it to play), but it's worth it in this instance.

posted by sam 4:19 PM 0 comments

Supreme Court Next up for discussion and prediction is Sattazahn v. Pennsylvania, a death penalty case. As you probably know, death cases are tried in two phases, by and large: a guilt phase, and then (if the defendant is found guilty) a sentencing phase. Sattazahn was convicted of murder, and the jury could not reach a verdict in the sentencing phase. Therefore, under PA law, the trial judge was required to sentence him to life. Sattazahn successfully appealed his conviction, and won a retrial. He was convicted again, and this time the jury agreed on the death penalty. His argument is that, under the Double Jeopardy and/or Due Process clauses, he shouldn't be subject to the death penalty on retrial. The Supreme Court of Penn. disagreed (opinion and dissent (both pdf files)).

The legal landscape is that the Supreme Court decided some years ago, in Bullington v. MO, that if the jury in the sentencing phase at the first trial decides against death, then there can be no death penalty on a subsequent retrial (when, as here, the first conviction is overturned on appeal). But this case is different, because there was no actual jury verdict of "we agree on a life sentence" the first time around; there was a failure of the jury to reach a verdict, which led to a life sentence under state law. The question is whether this makes a difference. Chief Justice Rehnquist, by the way, was among the dissenters in Bullington, so he quite likely won't want to expand Bullington here.

The government's argument, essentially, is that "jury's failure to decide" is very different from "jury's decision against death penalty." For instance, when a jury fails to reach a verdict on guilt, we allow a retrial – rather than saying "the prosecution had its one chance, and it failed to convict, so the defendant goes free." The State's argument is that the failure-to-reach-a-verdict-on-sentencing is analogous to failure-to-reach-a-verdict-on-guilt in that sense, so a retrial on sentencing is constitutionally permissible.

Sattazahn's argument is (to oversimplify greatly; see his brief ( big pdf here through Findlaw)) that this isn't like a "hung jury" on the question of guilt, because this jury deadlock (under PA law) required and resulted in a judicial decision not to impose the death penalty. In other words, this deadlock led to a result, rather than calling for a do-over. And this, he says, brings the case within the rule of Bullington under the procedures set forth in Pennsylvania law. He says that Pennsylvania could write a law that says a jury deadlock in the sentencing phase will leave the option of death "on the table" for another sentencing phase; but, he says, Pennsylvania hasn't done that, and so he was entitled to rest comfortable with the fact that he wouldn't be put to death.

You may call it an exercise in projection of my own thinking rather than prediction, if you want, but I think that the Court will REVERSE in this case. (After all, they did grant certiorari, and without any showing that there was a split among the lower courts on the topic; this means that at least four Justices thought the defendant's argument was good enough to spend the Court's resources deciding, and that those four weren't sure of their inability to get a fifth vote on the merits.). All it takes is the four kind-of-liberals plus either Justice O'Connor or Justice Kennedy. And Justice O'Connor wrote the opinion in Arizona v. Rumsey that expanded a little bit on Bullington, so she might well provide the fifth vote for a little further expansion here too.

posted by sam 7:10 AM 0 comments

Wednesday, October 23, 2002

Bob Dylan covering a Warren Zevon song ("Mutineer"), in Real Audio on Bob's site here.

posted by sam 11:34 AM 0 comments

Blogging about blogging about blogging I try to avoid blogging about blogging these days -- for instance, writing (or even thinking) about whether Instapundit is sillier than Andrew Sullivan or vice versa. But I will, in this post, blog about blogging about blogging, only long enough to say that I don't read Little Green Footballs (because the few times I went I was immediately turned off by the mob mentality) and don't know a thing about Anil Dash, but this piece by him (link via Atrios) is worth reading and I agree with most of what he says. I try to avoid engaging with the folks who call themselves "warbloggers", "anti-idiotarians," and "_______-pundits", because I get my fill of pointless verbal combat through the practice of law, thank you. Sometimes, on some days, I wish that I was more like Billy Bragg, who mentioned yesterday at the AFL-CIO that he'd spent part of the day having a phone conversation with a fan who worked at the IMF, in which they argued about globalization economics; Billy Bragg apparently has endless energy to debate, and a faith that people can be convinced by a good argument. Most days, I have neither the energy nor the faith. Thank goodness, though, for the writers in the column over there (<----) who do.

posted by sam 11:21 AM 0 comments

Howard Bashman continues to read the Montgomery Advertiser and links to news reports there about the Ten Commandments trial in Alabama. Howard's expectation of an appeal by the losing side -- an expectation shared by everybody including Judge Thompson, who is hearing the case -- prompts me to note this: This case will likely cost the taxpayers of the State of Alabama a lot of money. And I'm not even talking about the expense of the defense of the case, to the extent that the State is bearing that expense. (The State is bearing at least part of the defense expense, as shown by the fact that part of the defense team is the Attorney General's office. See, for instance, these documents from the case, link courtesy of Ed Still). What I'm talking about, instead, is the expense of the award of attorneys' fees to the plaintiffs' lawyers under 42 U.S.C. § 1988 after they win -- which, as I've posted before, they are due to do, unless the Supreme Court makes an astounding change in the law. In cases about violations of the constitution under 42 U.S.C. § 1983, section 1988 provides that the winning plaintiffs are entitled to have their fees paid by the losing defendant. And in a case like this -- where the defendant is a state official, sued in his official capacity -- the fees are to be paid by the State. See, e.g., Hutto v. Finley. So (unless there is some agreement by the plaintiffs' lawyers that they won't seek a fee award (which would be highly unusual), or a plan by the religious right to have a big bake sale to pay the plaintiffs' fees in the event of a plaintiffs' victory), this effort by Chief Justice Moore to overturn decades of constitutional law will cost the State's taxpayers a good pop of money, if his effort is unsuccessful. You can make your own judgment as to whether this sheds light on whether Chief Justice Moore's actions were a worthy exercise of governmental authority; my view, as previously stated, is that his actions were unwise and unconstitutional. But at least the litigation will put some money in the pockets of some progressive lawyers and organizations!

posted by sam 10:31 AM 0 comments

Supreme Court Getting a head start on November's Supreme Court arguments (starting 11/4), here's a summary and a prediction for Pierce County v. Guillen, yet another case for the Rehnquist Court about "states' rights" and the limits on the Congress's constitutional authority. As you know, the dominant "conservative" wing of the Court has been on a tear for the last few years, in (a) asserting limits on the subjects that Congress can legislate about, and (b) creating a "states' rights" doctrine with various facets, such as the holding that states are immune from many types of lawsuits. (see an earlier post here). But this time, a "pro-states'-rights, anti-Congress" ruling by the conservative Supreme Court majority would paradoxically help plaintiffs who are suing their state or local government. Here, it's the Trial Lawyers of America who are saying "state's rights! state's rights!". And the local officials are saying "oh, don't worry about that old state's rights stuff this time."

The case has to do with 23 U.S.C. § 409. Local governments are supposed to gather and generate information on dangerous roads and intersections, so they can get federal funding to make them safer. But they don't want to be sued for knowingly allowing those dangerous places to remain dangerous in the meantime; so section 409, in order to make it harder for the plaintiffs' lawyers to prove cases like that, says that certain documents relating to highway safety issues can't be got-at in discovery and can't be used in court.

In a decision available here, the Washington State Supreme Court interpreted the reach of section 409 very broadly (holding that it shields a whole lot of things from discovery and from use at trial), and then said that this was (in large part) unconstitutional; in a rough summary, the contention is that Congress has no business, under the Constitution, telling state courts what to do in lawsuits that are governed by state law.

Ted at Supreme Court Blog has a good explanation of the case. I wind up at the same result as he does (in fact, we do seem to be agreeing on most cases, which must mean that we're right), though with a couple of different twists in my logic. For instance, I think that, as argued in the Solicitor General's brief (pdf), the Supreme Court might start by reading the statute somewhat more narrowly than the Wash.S.Ct. did, and then upholding it. But anyway, the Court will find something not to like in the state court's analysis, and will therefore REVERSE. My gut hunch (note: I could make it look fancier and more legal, but don't feel like it right now) is that road safety is so close to the heart of "commerce" – and commerce is so close to the heart of federal legislative power – that the Congress can pretty much do what it wants and what it thinks best about road safety.

posted by sam 7:27 AM 0 comments

Tuesday, October 22, 2002

I've been talking for the last few days about the installation, by Ala. Chief Justice Moore, of a Ten Commandments monument in the State Judicial Building. I had also mentioned some days ago, for the benefit of those who don't follow Alabama's judicial doings so closely, that if Chief Justice Moore's name rang a bell, it might be because of his concurring opinion in a case involving homosexuality. It was a custody case, in which Chief Justice Moore wrote that (based on biblical as well as legal texts) homosexuality was an abomination, and that a parent who engaged in the behavior was presumptively unfit to have custody of a child. Chief Justice Moore wrote:
I write specially to state that the homosexual conduct of a parent -- conduct involving a sexual relationship between two persons of the same gender -- creates a strong presumption of unfitness that alone is sufficient justification for denying that parent custody of his or her own children or prohibiting the adoption of the children of others. … Homosexual conduct is, and has been, considered abhorrent, immoral, detestable, a crime against nature, and a violation of the laws of nature and of nature's God upon which this Nation and our laws are predicated.
There's much more in the opinion (linked above), that you may find interesting to read – not only about homosexuality, but about the nature of law and the relationship between law and religious morality. You may strongly disagree with it, as I do.

The purpose of this post is not to re-plow that ground, but to point out that last Friday, Chief Justice Moore issued a somewhat similar opinion (this time, dissenting from the denial of certiorari). This time, the issue was the effect of a parent's heterosexual adultery on a child custody determination. The trial court had awarded custody of the six-year-old kid to the mom, despite her having committed adultery; among the reasons for this decision was that, if the dad had custody, the kid would spend 10 to 12 hours per day in day care, and some weeks per year staying with relatives away from his home city while his dad was at work training, etc. The intermediate Court of Appeals affirmed. And the Alabama Supreme Court denied review. In his dissent from that denial of review, Chief Justice Moore indicated that in his view, adultery – like homosexual conduct – should create a strong presumption that the person is unfit for child custody. Indeed, though there is some ambiguity in the opinion on this point, Chief Justice Moore suggests that this presumption should be "conclusive". And the opinion takes some (but not all) of its inspiration from religious belief: that marriage is "divine" and "sacred" and "religious" and the like.

In an odd way, I am pleased to see that Chief Justice Moore's views do maintain a strict consistency: he's not just against gay sex and gay parents. It would have been worse, in my view, for him to advocate against custody for gay parents while letting the straight sex-law-breakers slide. So that's the good part, from my perspective. The other good part, from my perspective, is that Chief Justice Moore's opinions on these matters do not command a majority of the Court; indeed, no other Justice has joined his opinion in either case. Still, the practical advice is rather clear: if you're married but are feeling urges that you can't quite shake, don't accept that transfer to Alabama!

posted by sam 7:17 AM 0 comments

For those who follow the decisions of the U.S. Court of Appeals for the Eleventh Circuit, my most recent set of case summaries is now posted here.

posted by sam 6:47 AM 0 comments

Monday, October 21, 2002

Word on the street here in the Nation's capital is that Billy Bragg will be playing, free, in the lobby of the AFL-CIO building tomorrow at 12:30.

posted by sam 3:30 PM 0 comments

As you've probably read elsewhere, the Supreme Court declined today to rule that it is unconstitutional to execute a person who was under 18 at the time of his offense. The Court didn't hold that it's ok to do it; the Court just, without opinion, denied the petition that raised the issue. Four justices -- the ones who pass for liberal in the current climate, Justices Stevens, Souter, Ginsburg & Breyer -- dissented. Their dissent is available through Jurist here.

This issue offers an interesting (interesting to us nerds, at least) glimpse into number-counting at the Court. Everyone has heard (even if most have since forgotten, perhaps) that it only takes 4 votes out of the nine justices to grant certiorari in a case -- i.e., to put it on the docket, such that the whole court will decide the case on the merits. Some people were wondering, a few weeks ago, why only three Justices voted to stay an execution in which this same issue was raised -- more pointedly, they wondered, why didn't Justice Souter, who presumably thought the practice unconstitutional, join in the vote to stay and grant certiorari? I posited at the time that it was because he was smart enough to know that -- if the case was put on the docket and forced to a decision -- the court would uphold the practice 5-4, and Justices are often clever enough not to vote for certiorari in a case where they know they will wind up in the minority. (Better to have no Supreme Court decision, than a Supreme Court decision you disagree with).

So how come Justice Souter provided the fourth vote today? Because this was not a certiorari petition, but an original habeas corpus petition. Granting such a petition -- and, apparently, even putting it on the docket for argument, so it seems -- takes 5 votes. So, by providing a fourth vote for the dissent in this case, Justice Souter didn't force the Court to take the case on its merits and decide it; instead, the case provided the opportunity for, so to speak, a free dissent-by-four, a dissent without the bummer of a bad majority 5-4 opinion.

So what will happen next time this issue is presented by a certiorari petition? My guess is that the four Justices who dissented here will NOT vote for certiorari, because (again) they don't want the Court to take the case only in order to reject their views in a majority opinion. Their point has been made, and there it will sit until perhaps the Court's composition changes materially.

posted by sam 2:37 PM 0 comments

Saturday, October 19, 2002

My friend and colleague Mike Carr's EcoBlog is definitely up and running, and worth your attention, with posts about politics, environmental policy, etc.

posted by sam 9:14 AM 0 comments

Time for more "Ten Commandments in the courthouse" discussion, inspired (after my post on the topic yesterday) by an article this morning from law.com about a somewhat similar dispute in Pennsylvania.

We're all in agreeance (I know, it 's not a word, but it's a recurring phrase at local union meetings throughout the south, and I love it) -- we're all in agreeance that we're not the Taliban and don't want to be like them. Most people in this country didn't even know what the nature of the government in Afghanistan was, before September of last year. But one who did was Justice Johnstone of the Alabama Supreme Court. Last August, soon after Chief Justice Moore installed his monument, Justice Johnstone took what I think was an extraordinarily brave stand (brave, considering that judges and justices in Alabama are elected) against it, pointing out (among other things) that government in the name of God is not the way we do things in this country. He contrasted us, in that respect, with (among other examples) the Taliban in Afghanistan. See, e.g., this news account. You can expect some nasty attack ads against Justice Johnstone, when it comes time for him to run for reelection, based on this. But the point is a simple and, I think, very good one: one of the things that makes our nation what it is, is that our government does not purport to govern in the name of God.

In the legal move technically known as "I know you are but what am I," however, a determined supporter of courthouse-installation-of-Ten-Commandments has filed a brief in the U.S. Court of Appeals claiming that it is taking down a Commandments plaque that would make us like the Taliban (more precisely, like its destruction of old Buddhist monuments). That's what the law.com story is about. The lawyer's legal argument is not entirely laughable -- wrong, but not entirely laughable -- in that he says that there's a big difference from a legal point of view between (a) officials' action in putting up such a plaque here and now; and (b) officials' decision to refrain from taking down such a plaque that was put there c. 70 years ago. He says that (b) is not unlawful even if (a) is. As I said, not entirely laughable, but legally wrong, I think. (It's sort of like saying "Well, I didn't institute the rule that our family business wouldn't hire Black people. My grandfather did when he ran this business. I just haven't changed it because I've been too busy to do the paperwork that the change would entail, and I want to honor the memory of my grandfather by leaving things the way he had them").

On the other hand, I do recognize the value of facing the fact that our cultural values have changed over time and that we can't always go painting over old stuff. It's a recurring issue for those of us who love traditional banjo-fiddle music and recorded string band music of the 1920s and 1930s. ("I thought we were talking about the Taliban?"). The Weems String Band's "Davy Davy," for instance, is one of the greatest musical recordings ever -- an eerie string-band sound -- but has one verse with a racial epithet (you can guess which one), not used in anger but still offensive to current ears. I'd like to digitize that verse out somehow in the copy I listen to, but then again I wouldn't because history is real.

So -- into which category does "an old Ten Commandments plaque in the courthouse" fall? Is it "perpetuation of unlawfulness" (like my employment-discrimination hypothetical)? Or is it "refusal to paint over cultural history"? I think it's the former, because I think that keeping such a plaque up really does have actual current bad effects on our society, in fostering the incorrect understanding that there is an official (even if non-denominational, perhaps) religious belief in this country. And, in contrast to the Weems String Band, the only thing being preserved by preservation of the plaque is the past endorsement of religion; there's no other content in which that now-inappropriate endorsement is embedded. And unlike the Buddhas in Afghanistan, we're not really talking about a major piece of cultural history here; we're talking about a brass plaque, not a unique and irreplaceable historical work. That's what's really offensive to me about the guy's argument: the equation of just another 70-year old brass plaque in a county courthouse with a massive, historically significant, 1500-year-old statue from another culture.

So, in the end, the main lesson of the story about the guy's brief in the Pennsylvania case is that exaggerated rhetoric in a legal brief might be fun to write; but you should usually let one of your colleagues edit it out or tone it down, because nothing falls flatter than an incorrect and nasty "I know you are but what am I" argument.

UPDATE: Via Howard Bashman, this Mtgmry Advertiser story about Friday's trial testimony.

posted by sam 7:48 AM 0 comments

Friday, October 18, 2002

I've added a couple of new links to other blogs that I'm reading regularly now: Ed Still's VoteLaw (the other blog-by-liberal-lawyer-who's-lived-in-DC-and-Birmingham) and Kieran Healy's blog. Try them both if you haven't already, please.

posted by sam 1:59 PM 0 comments

Interested in the continuing trial in Montgomery about Alabama Chief Justice Moore's installation of a Ten Commandments monument in the State's Judicial Building? Want to impress your friends at cocktail parties? Start by reading Stone v. Graham from the U.S. Supreme Court, holding unconstitutional a Kentucky statute that provided for the posting of the Commandments in school rooms. One of the principles of law in this area -- as shown by the Stone decision -- is that an action like this is unconstitutional if it's religiously motivated. Now sometimes, in some public-display cases, it's hard to tell just what the motive was, because the decision to install the display was made by a group (of city councilmembers, or the like), and it's sometimes hard to attribute a mutual motive to multiple members of a group. But there's no such problem here: the decision to install the monument was made by Chief Justice Moore, so a religious motive on his part would rather clearly make the installation unlawful under current law. And, to his credit (I say "to his credit" because I applaud candor even when I disagree with what is said), he really makes no bones about the fact that his motive is religious. (See, e.g. this Google cache of a news article, in which Chief Justice Moore is quite plain about this. See also this poem that he wrote, unless perhaps it's a fake but I have no reason to believe that it is). Under Stone, then, this installation was prettly plainly unconstitutional. Then notice who dissented from Stone (hint: he wore a Gilbert-and-Sullivan-inspired robe during the Clinton impeachment proceedings), and muse to your friends that there is a distinct chance that, a couple of years from now, the Supreme Court will use this case as a vehicle to fundamentally rewrite Establishment Clause law.

posted by sam 1:07 PM 0 comments

[post that was formerly here has been taken down a few minutes after posting, because -- although I still firmly believe it was correct -- it's quite possible that I was posting it more out of anger than in order to be useful. See discussion of funk, infra.]

posted by sam 8:52 AM 0 comments

Everybody's getting into the Supreme Court prediction game. See here (via Volokhs) and here (in which I fear that the computer may be cheating, by reading news reports of oral arguments before making its predictions). I am no longer avant-garde, but merely faddish.

Meanwhile, despite getting more pleasing links from more good people, I'm in a blog funk this morning and yesterday, oddly the result of the DC sniper and more precisely the rampant speculation in some popular corners of the blog world that it's one (or more) of them Arabs. As the police have now told us, this may or may not be true, but reports to that effect are unreliable and fixating on them is counterproductive. The lesson in this, to me, is that blogging is often an utterly useless activity -- useless to anyone but the blogger at least -- unless you actually know a good deal more than the average person does about what you're talking about, or are particularly good at writing in an honest and persuasive way about shared knowledge or insight. (The people in the left-hand column over there tend to fall into at least one of these categories -- particularly knowledgeable or particularly good at honest insight and expressive writing -- and often into both). So I find myself limited in what I'm willing to spout off about, because I am very aware of the limits of my own expertise (such as it is) and eloquence. Maybe something will happen today that I know something about ...

posted by sam 7:04 AM 0 comments

Thursday, October 17, 2002

I'm spending most of the day writing a time-pressured and unfortunately not-very-exciting brief, so not much blogging today. But, while writing, I am enjoying the streaming music (entire album, apparently) of the Flaming Lips, whom I have not listened to before now but the sound is pretty cool on first listen.

posted by sam 1:24 PM 0 comments

Because there are no Supreme Court arguments today on which I can predict the outcome, I am going to go out on a limb with another sort of prediction: I'll bet that the not-yet-read verdict in Ira Einhorn's case is "GUILTY." Any takers?

posted by sam 11:31 AM 0 comments

Wednesday, October 16, 2002

I just made some donations to political campaigns, and it feels good! Even better than spouting off about my political/legal opinions. Try it, if you haven't lately.

posted by sam 10:11 AM 0 comments

There's a trial going on in the U.S. District Court for the Middle District of Alabama (that's the one in Montgomery), challenging the installation of a Ten Commandments statue in the State Supreme Court's building. The statue was placed there secretly by Chief Justice Moore, who also made national news with his views in a custody case, that (among other things) homosexuality is an abomination. The federal judge hearing the Ten Commandments-statue case, Judge Thompson, is extraordinarily scholarly. He also sometimes takes some time to issue rulings (presumably because he wants to be meticulous), so do not be surprised if this trial fails to end with a ruling from the bench.

posted by sam 7:38 AM 0 comments

I always think "great post!" when somebody writes exactly what I was thinking, minus the head-slapping plus a dose of eloquence. In that category is this post from Kieran Healy, responding brilliantly to the Instapundit's applause of some kids who assaulted PETA protesters.

posted by sam 6:48 AM 0 comments

According to a report from law.com, the oral argument in Syngenta v. Henson went so poorly for the defendant-petitioner, that the plaintiff-respondent hardly even bothered to argue (using only 10 of his allowed 30 minutes). Looks like defendants won't be able to use the All Writs Act as a basis for removal any more. See my earlier post here to see what I'm talking about, if you're not a removal jurisdiction afficionado.

posted by sam 6:37 AM 0 comments

Tuesday, October 15, 2002

Today brings the Supreme Court's first decision of the October 2002 Term. The Court dismissed Ford Motor Co. v. McCauley, the case that I'd discussed here among other places. By "dismissing as improvidently granted," the Court said in effect "oops. never mind. we're not going to decide this case."

The Supreme Court's order this morning has already been mentioned, naturally, by Howard Bashman and Tom Goldstein. "First with the scoop" is not my market niche. What is my market niche? Not quite sure. I'm disappointed in the Court's ruling, because I think that the various questions of jurisdiction that were presented by the case were important-enough-to-decide rather than too-messy-to-decide-right-now. But they didn't ask me. So I'll chalk this one up as neither a win nor a loss in my predictions game (I get to make up the rules, after all).

posted by sam 12:31 PM 0 comments

Very good post from Jeff Cooper about statutory interpretation in the real world, taking off from the New Jersey ballot-change issue.

And another inspired spot from Blah3, who does (do?) amazing things with simplicity.

posted by sam 7:19 AM 0 comments

Monday, October 14, 2002

I am rarely polite enough to post thanks to other people for being great writers/thinkers and/or for saying nice words about things that I have written. I am trying to be more sociable, though. In that vein, though you probably already know it, both Rittenhouse Review and Sisyphus Shrugged are great sources; and I appreciate their kind words very much. My life is better since I started reading Mark Kleiman's site and the Goldstein & Howe SCOTUSblog. Even if he's not a leftist radical, I like both Howard Bashman and his site a great deal, and I thank him for clueing me in to the fact that a post about sex, combined with a second-generation link from Instapundit, can put your hit-counter on "Tilt." And I hope that my friend and colleague Mike Carr gets hooked on doing his new EcoBlog, because he's got more thoughts and mental energy than anybody, if we can just convince him to start spouting off in public.

posted by sam 9:21 PM 0 comments

Supreme Court I've now posted descriptions and predictions for all 4 cases to be argued this week. Go here (including links there) for the first three. The last one, Miller-El v. Cockrell, I'd discussed earlier here back when it was scheduled for the Term's first day. Here's a few more words on it.

It's about the burdens of proof, when it comes to proving that a prosecutor struck a prospective juror because of race rather than because of some legitimate reason. To do such a thing is unlawful. For years, in order to prove such a thing, a defendant had to show first that the prosecutor's office had a pattern of such racially-motivated strikes; and once such a pattern was shown, the prosecutor had a heavy burden (i.e., a difficult time) in showing that the particular strike in question was nonetheless race-neutral. Think of this model (e.g., Swain v. AL) as a steam locomotive: hard for the defendant to start and get up to speed, but hard for the prosecutor to stop once it's up to speed. Then -- in what was widely hailed as a victory for defendants -- the Supreme Court decided in Batson v. KY that a defendant didn't have to start by showing such a pattern; a jury-strike could be reviewed to determine whether it was race-motivated, even without such a historical pattern of prosecutorial racism, but the prosecutor's burden in showing a race-neutral reason was not so heavy under this new standard. Think of this as a Vespa -- easy for the defendant to start up, but not as much momentum as a steam locomotive.

In this case, Miller-El wants to be driving the locomotive, because he says he's got the evidence of historical pattern (so it should, he says, be very hard for the prosecutor to rebut his claim of racial motivation). The U.S. Court of Appeals says that the Vespa is all there is, anymore; no steam locomotives to be had these days, and the prosecutor had enough counter-evidence of his good (race-neutral) motivations to stop a little old Vespa. My prediction of an AFFIRMANCE -- i.e., a victory for the prosecutor -- is largely just rough number-counting. I can't get to 5 for reversal. Cynicism, or awareness of certain recurring patterns -- call it what you will. There is, of course, a possibility that I'm wrong, and if so it would likely be because of complex procedural issues about "certificates of appealability" that I don't have time to get into right now.

After this (on Wednesday of this week), no more arguments until Nov. 4.

posted by sam 8:00 AM 0 comments

While I was doing my deep-breathing exercises so as not to get bent out of shape by Jane Galt's anti-union post (see below), Max Sawicky was also responding to it with facts, logic, and kindness. It seems -- from reading the updates and comments on Max's and Mark Kleiman's sites -- that Ms. Galt has at least clarified that her position is that government should help neither labor nor management in labor disputes, that the current balance of government intervention is tilted too far in labor's favor, and that (if I'm understanding her position correctly) the entire Wagner/Taft Hartley apparatus should be repealed leaving a perfect state of nature in labor relations. Here's what I can add, from the particular perspective of a lawyer who knows this stuff for a living. I won't get into trying to prove that unions are good and employers bad, because that's not something you can "prove" to somebody who already has her mind made up to the contrary.

Here, I think, is Ms. Galt's central belief that drives her argument: "Power between unions and companies is asymmetrical in our labor system; a union worker can decline to work for a company, but a company can't look outside the union for labor." From this, she says, unions can hold employers hostage with unreasonable demands. But that's simply not how it works, based on my years of experience being closely involved with negotiations (and the breakdown of negotiations) in many industries in many states. As to "a company can't look outside the union for labor," unions aren't employment services -- don't provide workers -- in most industries. They do in construction and a few other industries, but only if a particular employer voluntarily agrees to use the union's hiring hall. This is not governmental compulsion on the side of unions.

And in all industries covered by the Wagner/Taft-Hartley apparatus (i.e., most private-sector industries other than railroads and airlines), here's the basic framework for bargaining. Both sides bargain hard. There is literally nothing in federal law that requires either side to agree to anything that it doesn't want to agree with. If the parties can reach a deal that satisfies both of them, they do. The power dynamic depends largely on the thing that (I would suppose) an economist would tell you that the power dynamic should depend on: that is, are there people out there who would be ready, willing, and able to come to work for wages/working conditions that are less good than what the union is trying to get? If the union thinks that the company won't give enough, the union can go on strike. This does not -- does not, does not, does not -- mean that the company has to shut down. The company can hire replacements/scabs and keep on working. The Company can, so long as it had bargained honestly and in good faith to an impasse with the union, pay the replacement/scabs what it was proposing to pay the union-represented employees. If the union's position is not strong -- i.e., if the union really was trying to get more than its legitimate bargaining power allowed -- then the company will do ok with these replacements/scabs, and the strikers will get hungry, and the strike will be unsuccessful. If the company has not violated the law in some separate way, then it does not have to take the strikers back, even if they ask nicely and are willing to take the lower wages/worse working conditions, if the work rolls are filled by the replacements/scabs. And then the scabs will hold a decertification election, they will vote out the union, and the company will smile. It is not uncommon; what keeps it from happening more often is not federal compulsion, but negotiations and compromise. This is the real deal of labor law: unions don't hold a monopoly on available labor, and federal law does not require (either explicitly, or indirectly) an employer to capitulate to any union demand. It's just bargaining -- the kind of stuff that free-marketers are supposed to love.

By the way, since Ms. Galt seems to urge that the federal labor laws be repealed, it's interesting to note that many union activists feel the same way. Before concluding that the labor-law balance favors labor (which isn't even right on its face, as described above), consider the various things that unions are prohibited from doing under the labor laws. Secondary boycotts (the thing that management most fears), intermittent strikes, requiring full dues payments from union-represented employees who want to be freeloaders -- etc. etc. etc. If the employers want a state of nature, there are many in labor who would agree. But "remove the restrictions on employers," on its own, doesn't constitute a return to that blissful libertarian paradise.

posted by sam 6:59 AM 0 comments

Sunday, October 13, 2002

Mark Kleiman has responded well to a silly post by Jane Galt re the docks and Taft-Hartley. This shows you the difference between ideological lawyers (like me) and wise professors (like Mark) -- he kept his cool, and addressed the situation with a combination of socratic dialogue and humor. I, by contrast, have the almost uncontrollable urge to pick her post apart with angry advocacy, showing that Ms. Galt does not correctly understand -- or does understand, but is choosing not to correctly describe -- the fundamental principles as to what power the NLRA (Wagner Act) gives to unions and their members. [Note: I just wrote and posted several more sentences after this, of the sort of angry advocacy that Ms. Galt's post brought out in me. Now I've erased it -- not because there was anything incorrect in my refutation-as-drafted (there wasn't; trust me, or get yourself a basic Labor Law textbook, or send me an email if you really want to know) -- but because it's Sunday night, and I'd rather relax than get in an argument with a person I've never met.]

posted by sam 8:19 PM 0 comments

This weekend's self-indulgence was the purchase of two great records:

1) "20 Years of Dischord," a 3-disk retrospective (1980-2000) of DC's homegrown punk label, with at least one cut from every band that has recorded for Dischord. Best known is Fugazi; others are great too. Some good loud noise, and an inspiring history of people who did it themselves.

2) "Dr. John Plays Mac Rebennack," finally reissued on CD with additional cuts. Fantastic solo piano in the New Orleans tradition. I had just been wondering, the other day while culling through LPs in preparation for an upcoming move, if anybody would ever put this out on CD. Turns out that it happened just in the last few weeks. Even if Dr. John's hipster gumbo stuff ("Right Place, Wrong Time") is a little too cute for you, this is pure artistry.

What these have in common -- in addition to (or as the cause of) being fantastic music -- is that they represent music as the expression of a certain community. It's not the least-common-denominator stuff, that gives you that same sort of feeling that you get when you're sitting in a Marriott on a business trip and can't remember for the life of you what city you're in. It is -- whether solo piano drawing on a community's history, or bands expressing what's going on in a community now -- music of a place. Both highly recommended.

These purchases almost made up for the trauma of having my child's picture (and mine) taken with Caillou yesterday morning. Caillou is bad enough as a saccharine cartoon figure; but standing next to someone in a creepy Caillou costume taller than me was highly disturbing. If you have, or are on track to have in the near future, a two- or three-year old, here's the deal: Caillou bad, Kipper good. Simple as that, really.

posted by sam 2:36 PM 0 comments

Saturday, October 12, 2002

According to Wilco's website, the band will be doing a live webcast of its show at the 9:30 Club, here in DC, next Tues (10/15). It is embarrassing to have become such an old crank that I didn't make the effort to get tickets, but I guess I am. (oh, all the second-hand smoke ... and a babysitter ... and I have to get up early on Wednesday ...). But, all you young whippersnappers out there snickering, I was already grown up and practicing law when I saw Uncle Tupelo at a tiny club in Birmingham, back when Tweedy looked just like Wayne's World -- so I can be an old crank now if I want to.

posted by sam 7:40 AM 0 comments

Friday, October 11, 2002

The General Counsel of Brookstone must be breathing a great sigh of relief, as Howard Bashman has brought to our attention the recent decision of U.S. Dist. Ct., N.D. Ala., striking down as unconstitutional the Alabama statute prohibiting the sale or importation of devices intended for stimulation of the genitals. (Just kidding, of course -- everybody knows that those Brookstone devices are for back massage, or calf massage, or something. Don't sue me.). Go immediately to Howard's site to download and read the opinion -- immensely scholarly, with citations to those two noted historians of sexuality, Michel Foucault and Richard Posner. (Really). I love, love, love, the fact that Foucault has been cited in a published judicial opinion. Fancy French philosopher posthumously comes to Alabama to save the vibrators. If you live in a state other than Alabama, you may think this is all a hoax, because surely no state would do something so silly as to outlaw vibrators. It is not a hoax. Kudos to the plaintiffs' lawyers, whoever they were, for compiling an impressive historical analysis to support their constitutional argument.

Further thought: I keep singing to myself Beck's brilliant line, "I want to defy the logic of all sex laws." It's one thing to break a law and another, much more challenging thing, to defy the logic of it entirely. He must have been reading Foucault.

posted by sam 4:06 PM 0 comments

NLRB Summaries of recent cases have now been posted here in the sub-blog.

posted by sam 3:31 PM 0 comments

Supreme Court I've already discussed next Tuesday's cases here and here. (Monday's a holiday; no court that day). Wednesday brings a great case – great at least for those of us who are law nerds, and interested in the interplay between the Rehnquist Court and the U.S. Congress. It's U.S. v. Bean. And it will be argued for the Respondent by blogger/Supreme Court practitioner extraordinaire Tom Goldstein. Although I'm finding this a very hard one to call, I'm sure that Tom will sleep better this weekend by virtue of my prediction that the Court will AFFIRM.

It's about guns, except that it's not really about guns but about the workings of Congress. As you probably know, if you've been convicted of a felony then (in general) you're not allowed to have a gun. Under 18 U.S.C. § 925(c), though, the Congress said some years ago that you could petition the ATF to restore your gun privileges – and if ATF denied your application, you could file a lawsuit to have a judge review the ATF's decision. But subsequently, for about a decade now, the Congress has – in each year's budget statute(s) – prohibited ATF from spending any money (i.e., from doing anything) on processing those applications. So they sit. The question in this case is whether this means that Mr. Bean and every other applicant is hosed, or whether they can call this a constructive denial by ATF and file suit to have that "denial" reviewed by a judge. The Fifth Circuit said that judicial review is available – that the appropriations statutes haven't repealed the statutorily-granted right to judicial review. So the Fifth Circuit, affirming the trial court, gives Mr. Bean his guns back because he's a good fellow and not one of them real bad sort of ex-cons.

If you think that you know how the case should come out, stop for a second. Pretend that it's not about getting the right to own a gun, but the right to get marijuana for medicinal purposes. Imagine that there's a statute that says you can apply for a permit for medical pot, and can get judicial review of that denial; but then the Republican-dominated Congress prohibits the agency from processing applications. Does this mean that everybody's hosed, or that judges can grant the applications? Do you feel the same way as you did when it was about guns? If so, good for you – you're "thinking like a lawyer," as they say. (Unless you really love both guns and marijuana, or really hate both of them, and are just doing result-oriented thinking. If so, go to law school, but leave your pot and pistol behind.)

My own impulse – coming from the perspective of a guy whose livelihood is based on the model of judges being able to review things to make sure that they're done fairly – is that judicial review is so important to a well-functioning non-arbitrary government, that avowedly not doing anything on an application, for the foreseeable future and maybe forever, is tantamount to a denial and therefore Mr. Bean can go on to court (as the statute says he can, when his application is denied). I have something of an impulse to say to the Congress, "If you want to repeal the darn statute, then do it. But until you do, judicial review remains available because that's what the statute says."

But I talked about this case with a close friend who is high-up on the staff of a Congressional Appropriations Sub-Committee, and it seemed quite obvious to him – based on what he does for a living, and how he understands the world of laws – that the "no-appropriations-for-THAT" statutes were just as good as a repeal of the whole statute. The way he sees it, there's no "denial" and therefore no place for judicial review unless the ATF actually reviews the application, and that's what Congress told them not to do. When I asked him why the Congress doesn't just repeal it if they want to, he said (more or less) "Our work here is messy, just as yours is. That's just the way it works."

My prediction of affirmance is largely based on two things: (1) the Supreme Court is made up of lawyers, and lawyers tend to think that – other things being equal – the availability of judicial review of administrative action and inaction is important to keeping government rational; and (2) some of our Justices seem to take a bit of joy in poking Congress in the eye from time to time, and so it's quite easy to see some of these Justices saying "we don't care, really, how messy your system of committees and subcommittees and budget riders and whatnot is; if you want to repeal a law, you've got to really repeal it."

posted by sam 2:22 PM 0 comments

After too much delay by me, new updates of Eleventh Circuit caselaw have now been posted in the sub-blog. NLRB updates will be posted later today, if practicable.

posted by sam 10:13 AM 0 comments

Thursday, October 10, 2002

Since becoming fixated on this blog world, I have realized how much I wish that I knew something about economics. Fortunately, I have (among others) Max Sawicky to teach me. He's got a great post today about the earnings of dockworkers, and the spin that we often hear (from those who would undermine their concerted efforts) that they're making gobs of money.

Because I'm no economist but simply a student of honest and dishonest forms of argument, I've been marvelling at this spin, too. The fantastic thing about it, I think, is that this cry ("Those guys are earning $100,000 or more per year! That's highway robbery!") comes, by and large, from those who tend to believe -- in most other contexts -- in less- rather than more-regulated markets. So, I would ask the people raising that stink, "So you have a better way, than by means of collective bargaining, to determine how much those people 'ought' to be earning? What is it, pray tell? And wouldn't you think that people doing very difficult work that is so vital to the nation that a ten-day stoppage imperils us all (we're told), and who are so nearly-irreplaceable (or at least in such short supply) that the talk a few weeks ago was that the military would have to be trained to take their jobs if they walked out, because nobody else could do it -- wouldn't you think that people fitting that description 'should' make a darn good living, whatever 'should' might mean in this context?" Maybe those people would answer that these guys are getting more than a "correctly functioning" market would give them, because they are organized into a union. If that's their best answer -- that, by virtue of collective bargaining, employees have more negotiating power than they "should" -- I can only say "ha ha ha" in order to keep myself from saying something worse.

posted by sam 2:01 PM 0 comments

Supreme Court A guest commentator at the awesome Goldstein & Howe SCOTUS blog says that predicting Supreme Court outcomes is "a fools' game at best." Unafraid of foolishness, and not taking it personally, I say: Next up for prediction is Sprietsma v. Mercury Marine. The case is about motorboat propeller guards; the plaintiff's wife was killed because the boat didn't have one, and the plaintiff filed a lawsuit under state law for defective design.

States traditionally have the power to make the legal standards governing product safety, whether by regulation or by lawsuits culminating in jury decisions. But the federal government also has the power to set standards over such things, and – by virtue of the Constitution's Supremacy Clause – a federal statute can be written so as to "preempt" (that is, displace) state law on the topic. The Congress can also give a federal agency the power to make the rules in a given area; and state standards can be preempted if they're inconsistent with a federal regulation.

The case gets difficult here, because what we're talking about in this case is not a regulation, but the absence of a regulation requiring propeller guards. The defendant says – and the Illinois Supreme Court agreed – that this absence of a regulation amounted to a considered decision that guards should be optional, such that this decision should preempt a contrary state rule. The plaintiffs say that this wasn't really a considered regulatory decision that propeller guards should be optional, but more like a punt, and so doesn't prevent the states from doing what they think is best for safety. The Solicitor General agrees with the plaintiffs.

So, given that the case comes down to this pretty specific question about the nature of this particular decision/nondecision by federal regulators – and given that the background cynical factors are in a nice equipoise in a case like this (the subconscious "I think that tort lawsuits are out of control, but on the other hand I want to protect state authority against the encroachment of those federal bureaucrats" or "I think that lawsuits about defective products are a great thing, but on the other hand I trust the wise decisions of those able federal regulators") – my working rule here is, "The Solicitor General's Office usually wins, more often than not," and so I'll say REVERSE.

By the way, a look at my competitor at Supreme Court blog (not the Goldstein Howe site; a different one) shows that our predictions are largely the same so far, with the exception of Nextwave and Eldred. You are seeing, in live action before your eyes, the creation of "conventional wisdom" about Supreme Court results.

posted by sam 6:41 AM 0 comments

Wednesday, October 09, 2002

First it was Cesar Chavez on a postage stamp, now it's a feminist, socialist, labor activist, ACLU-founder on Alabama's state quarter. I don't know whether to claim victory for the Left in the culture wars, or to admit defeat-by-co-optation.

posted by sam 3:11 PM 0 comments

No surprise, a U.S. Dist. Judge has granted the government's request for a TRO on the docks. No surprise (see Findlaw's collection of some of the government's filings here), the Government sought and received an order prohibiting the Union and its members from doing any slowing-down, even though it was the Companies that have putatively jeopardized Christmas by shutting down the docks. No surprise, there's no indication in the Government's brief of any evidence that a concerted effort by Union members to follow safety rules (even at the cost of some speed) would "imperil the national health or safety" within the meaning of Taft-Hartley, so as to warrant (even arguably) such an injunction against the Union. No surprises today, just disgust.

posted by sam 10:14 AM 0 comments

I wish that everybody was as good at honesty and clear thinking and persuasive writing as Ampersand. (All of a sudden I'm the pseudo-Instapundit, with terse sentences of praise telling you nothing about the linked post? Well, just go read it.)

posted by sam 7:19 AM 0 comments

Supreme Court While (again) reading tea-leaves from oral argument is risky business, it seems that my prediction about yesterday's Supreme Court case on bankruptcy and telecom licensing will likely be correct.

Today brings oral argument in Eldred, the copyright-extension case. Prepare yourself for doom and gloom and outrage from many residents of the internet, after they read reports that the oral argument didn't go perfectly for Prof. Lessig. Remind yourself that the holding of the case will be neither "the internet is dead" nor "Disney gets to own everything forever" -- and that, in general, our current Supreme Court does not specialize in recogizing new constitutional rights for the benefit of the little guy. Remember again what Joe Hill said: "Don't mourn -- organize." (He wasn't talking about downloading Napster).

posted by sam 6:53 AM 0 comments

A compelling opinion-piece in law.com this morning about the importance of repealing ex-felon disenfranchisement statutes, which keep millions of people from voting even after they've served their time, even for relatively minor offenses.

posted by sam 6:41 AM 0 comments

Tuesday, October 08, 2002

I had earlier asked Nathan Newman to give a lengthier explanation as to why we on the labor side were opposed to a Taft-Hartley injunction on the docks, even when the injunction would run against management (which is the side causing the current work stoppage, by a lockout). Nathan, as expected, did a good job in explaining. Now comes word (AP story via Jurist) that the President has already got his report from the Board of Inquiry -- awfully quick and awfully sketchy, to my eye (though I know and respect at least one of its members), including no assertion of any specific facts to show that this is indeed a national emergency cognizable under the provisions of Taft-Hartley -- and has told AG Ashcroft to go get an injunction.

In the AP story reporting on this, we see all that we might ever need to see, in order to see that this requested injunction -- although nominally sought in order to stop management's lockout -- is really giving management a great boost. Here's the quote, from the AP story:

"I'm sorry it has come to this," PMA President Joseph Miniace said of Bush's move, "but we have got to get this behind us."

The petition asked for an 80-day "cooling-off period" and was signed by five of Bush's Cabinet secretaries. Bush wants the court to require work at the ports to "resume at a normal pace."

This shows two things: (1) management actually wants this injunction (note that the spokesman didn't say "we'll whip the government's ass in court, we want to keep our lockout going" but said "we've got to get this behind us," clearly implying that the government's suit for an injunction will achieve that management-desired result; and (2) that the President's real objective is to get work to "resume at a normal pace", meaning that -- without any basis in anything the Board of Inquiry's report said -- he thinks that the problem was not management's complete shutdown of the docks, but the putative (or actual, I don't know myself) work-to-rule slowdown by labor that allegedly preceded the lockout, and that the real target of this executive-branch power play is labor.

So my question to Nathan has been answered not only by Nathan, but by the President. Thanks!!

posted by sam 8:15 PM 0 comments

Nathan Newman has a good set of materials relevant to the President's invocation of the Taft-Hartley injunction machinery on the docks.

posted by sam 4:33 PM 0 comments

I said I'd get off the Lautenberg/Forrester stuff, but I'm back in again -- because, like Profs Kleiman and Volokh, I believe that it's important to try to be factually correct in one's spouting-off (aka blogging). My inference as to what the legal contexts and arguments probably were -- and I say "probably," because none of us has seen the briefs yet -- is a lot like Prof. Kleiman's, but with one wrinkle. (Go read his first, and come back). What I am guessing different is based on my understanding -- from articles like this and this -- that what was at stake here was a top slot on the ballot in some counties by virtue of having been the choice of the local party notables. Now, why the local party notables get to designate a favorite to receive the top slot is beyond me -- I can't see it in the law, and it doesn't seem just to me -- but this is the pretty clear implication of news stories like this. And when Treffinger dropped out, the party notables wanted to give their nod instead to Forrester. I'm inferring that one of the big arguments was whether this change was to be governed by the time limit of code section 19:23-12, and, if so, whether it was too late. This would make perfect sense of the quote (in NYT) from Forrester's lawyer, arguing -- just as the Democrats later did -- that missing an election-law deadline can be forgiven. As I mentioned to Prof. Volokh yesterday by email, I don't think that Forrester was doing anything wrong in this, any more than the Democrats were; the wrongness came when the Republicans made a legal argument later, that was (based on my educated but not demonstrably perfect understanding of the facts) flatly contrary to an argument that they had successfully made a few months before.

UPDATE: Further thought: If none of us lawyers and law-profs can figure out where in the New Jersey Code it says that a County's party organization bigdogs get to designate somebody for the "organization line" on the ballot (as referred to in the news stories above), yet this practice exists without express legislative authorization (if it does), and Forrester doggedly fought through the courts to get the benefit of it -- then isn't this, in an even broader but equally stark sense, inconsistent with Forrester's argument to the U.S. Supreme Court that, under Art. I Sec. IV of the Constitution, defining the protocols for Senate elections is the sole province of state legislatures? Yes, I know -- New Jersey voters don't care about this, and neither should I. But I told you below, I'm a nerd.

UPDATE UPDATE: Prof Kleiman has a further, and utterly convincing to me, articulation at a temporary site (due to blogspot/blogger malfunction) here. Definitely worth reading. Now I'm really done with it, at least til somebody comes forward with Forrester's briefs as filed in the New Jersey courts.

posted by sam 3:28 PM 1 comments

Supreme Court Today's prediction is for the first case on the argument calendar for next week, Syngenta v. Henson. This is another good one for Jeff Cooper's civil procedure class, or maybe for a second-year Fed Courts class. The question, in paraphrase, is whether the federal All Writs Act, 28 U.S.C. sec. 1651, provides a basis for removal jurisdiction of a state-court case, where the prosecution of that state court case would violate a federal class action settlement. [later editorial insert: The deal with class action settlements, by and large, is that they're supposed to end all litigation on the matter. The defendants in this case were peeved because, after they settled a class action, some guy kept prosecuting a state-court case that should have been dismissed as having been resolved by the class action settlement. Defendants were unsuccessful in putting a stop to this diehard litigant in state court, so they removed the case to federal court so that the federal court would put a stop to it once and for all.] "Removal" is the act by which a defendant -- by the mere expedient of filing a piece of paper in state court and a piece of paper in federal court -- sucks up a case from a state courthouse and plops it in the federal courthouse instead. (Removal was also the context of yesterday's argument in Ford v. McCauley, discussed below). There are limits on the types of cases in which defendants can do this. The question in this case is whether, when no other statute confers the right of removal over a state-court case like this, does the All Writs Act do the trick, on the theory that the All Writs Act gives the federal courts the power to do whatever's necessary to enforce their own judgments. To understand the case (now that you know these basics), the best thing to do is to read the Eleventh Circuit's decision -- a beautifully written and argued opinion, I think, the kind of opinion that boosts my faith in the wisdom of the federal appellate bench. I think that it's airtight, and plainly correct based on the reasons that the Court gives, and so the Supreme Court will AFFIRM (thereby resolving a circuit split). [The Eleventh Circuit's answer, by the way, was NO -- the All Writs Act is not a basis for removal jurisdiction.]

posted by sam 12:05 PM 0 comments

Monday, October 07, 2002

Jeff Cooper writes (as always) with more erudition than I have, about today's Supreme Court argument in Ford v. McCauley, the diversity-jurisdiction amount-in-controversy case. He seems a little saddened that I described it as "boring." Perhaps he will be happier to know that I actually consider it (and all the intricacies of diversity jurisdiction) fascinating, and have written dozens of briefs about this area of law. I am a nerd. It's just that I thought it would be boring to most of the rest of you.

The case also shows the difficulties of predicting Supreme Court outcomes, which is the game I have assigned myself this year. I feel pretty confident in predicting that (if they get past issues of appellate jurisdiction), the Justices will overwhelmingly adopt the "either party's viewpoint" test for valuation of injunctive relief -- in contrast to the Ninth Circuit's "plaintiff's viewpoint" rule. (Believe it or not, I've written briefs about this arcane and narrow question myself). And they'll set forth some guidance for how to place a $ value on injunctive relief. The hard part is guessing whether they'll apply their new test themselves -- and thus affirm the Ninth Circuit's decision "on other grounds" -- or reverse and remand with instructions to the Ninth Circuit to take the first stab at it. This is symptomatic of the difficulties in guessing the outcomes of many cases: I feel pretty (maybe too) confident in predicting much of what the majority opinion will say, in terms of big outlines of "what the law is", but many cases then come down to quite narrow case-specific and fact-specific details that will drive the last portion of the opinion and that will dictate the precise result.

UPDATE: Dahlia Lithwick, who is the only good thing about the Supreme Court these days, says (among many funny things) that the Ford v. McCauley argument was all about appellate jurisdiction, so it looks like they probably won't even get to the amount-in-controversy question (if you can tell anything from oral argument, and telling anything from oral argument is often a dicey proposition).

posted by sam 5:56 PM 0 comments

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