(The Return of) Ignatz, by Sam Heldman
Tuesday, September 30, 2003
-I'm still not blogging, but wanted to note that our friend Wieb was quite a great guy.
posted by sam 1:19 PM0 comments
Friday, August 08, 2003
testtesting
posted by sam 4:45 PM
Friday, July 25, 2003
What should a judge do if he or she can prevent the slaughter of millions?Recognizing that books can be (and have been) written about the moral/legal topics involved in this post -- and that a little blog post can only skim the surface -- let me say this:
If I were ever given a judgeship (ha ha, no way), you can be assured of this: that if I had a chance to make a ruling that would prevent the slaughter of millions of innocents, I would do it. Even if I had to fudge the precedents a bit, and even if I realized that I was basing my decision in large part on my own preferences, I would do it. I would prevent the slaughter of millions of innocents, if I could. Wouldn't you? And if I thought that the institutional role of "judge" required me to make a ruling that allowed the slaughter of millions, then I wouldn't be a judge. I would resign in protest -- and would, in fact, refuse the judgeship in the first place, if I foresaw this possibility. Wouldn't you? [UPDATE: The classic questions in this regard tend to be phrased in terms of judges in Hitler's Germany, and 19th century U.S. judges dealing with fugitive slave issues. Think about those examples before saying that you would elevate "the rule of law" above all other considerations.]
And we are supposed to believe that Bill Pryor -- who (according to himself and to his mentor Sen. Sessions) believes that abortion is the slaughter of millions of innocents -- wouldn't fudge the precedents a bit, or otherwise stretch the boundaries of the law whenever he could, to prevent such slaughter? I just don't buy it, given his demonstrated willingness to stretch the law to reach towards the results he favors in even less monumental contexts.*
Does this mean that I think that people who believe that abortion is the slaughter of innocent millions are ipso facto incapable of being "good judges"? No. It means that -- at least when we're talking about somebody with a track-record of bending legal principles to his own liking -- I predict that such person would in fact fudge the applicable precedents whenever he could, on the issue of abortion. And nobody owes anyone else an apology for making such a prediction, or for taking it into account when deciding as a political matter whether he or she supports or opposes the nomination. This is true, no matter what (religion, science, parental influence, you name it) impels the nominee towards the belief that abortion is the slaughter of innocent millions.
*(In this vein, I will also mention one thing that Pryor's defenders often cite: the fact that he gave a narrowing construction to an Alabama anti-abortion law, to bring it more in line with existing Supreme Court precedent. This is, to me, no proof that he set aside his own beliefs and preferences. It is, instead, precisely what a person would have done, had he (a) held the powers and authority of Attorney General, and (b) been determined to do whatever was in his power to reduce the "slaughter". The law, given a narrowing construction, prohibited some abortions; had he not narrowed it, it would have been struck down and would have prohibited no abortions. So I am completely unconvinced by this assertion that he set aside his preferences, in that episode.)
UPDATE: Thanks to Juan Non-Volokh for paying attention to this post, even if he disagrees with my assertion that Bill Pryor has a track record of fudging precedents and bending legal principles to his own liking. For prior explanations and support for my assertion in this regard, you might perhaps look to my posts on Pryor and Bush v. Gore and Pryor and Hope v. Pelzer
posted by sam 1:16 PM
Wednesday, July 23, 2003
got an Apple computer, and love music?Got an Apple computer? Love music? Then you need Clutter, a freeware thingy that sees what you're playing in iTunes, and gets the album cover for you from Amazon -- and allows you to cover your desktop with album covers, and then when you say to yourself, "you know, that album cover reminds me, I'd love to listen to King Bennie Nawahi right now," you can click on the album cover and it starts up iTunes for you and there you go.
posted by sam 8:27 AM
Monday, July 21, 2003
the future of IgnatzSo it was a year ago yesterday, or today, or something like that, that I started this silly blog. I am much older and wiser now. And I find myself with a decreased desire to spout off, at least for a few weeks. This does not constitute a true "hiatus", which seems to be the accepted term in blogtopia, because I reserve the right to spout off on whatever sporadic basis I feel like, in between now and whatever future time I decide to become a full-time spout-offer again.
What I would like to ask you to do, if you care to, is to set your RSS reader, or whatever other sort of aggregator you've got, to check Ignatz for you periodically. That way, I won't have the feeling that I've got to pretend that I've got something worth saying when I really don't, just to keep you in the habit of checking. And, if I ever do have something worth posting, your aggregator will tell you that Ignatz has returned. You may find, in a few weeks or months, that I have joined a group blog, which might well be the right answer for a part-time spouter.
Because this is not a blog goodbye, there is no occasion for musing on the nature of things, or for a list of all the people whom I would like to thank. Thanks. Sam
posted by sam 9:11 AM
Friday, July 18, 2003
GREAT presentation on the White House e-mail systemFrom here, you can download a brilliant Powerpoint presentation on the user-unfriendliness of the White House's "who cares what you think?" email policy. Definitely worth a look.
posted by sam 4:02 PM
By the way, I forgot to point out ...
... that all credit for the NYT story about the White House's bizarre "we don't care what you think" email system should go to the AFL-CIO. Read the Times story.
posted by sam 2:05 PM
You know how I said you should be reading Votelaw?
This morning, Ed Still offers a detailed and reasonable hypothesis as to why Bill Pryor and his defenders are trying to avoid scrutiny of RAGA fundraising -- a hypothesis under which Pryor would have been violating Alabama law, and indeed his own officially-stated interpretation of Alabama law. This clearly warrants a serious investigation, without artificially short time limits.
posted by sam 8:43 AM
Greetings, Metafilter readers
If you're coming to read stuff about Bill Pryor (a recurring topic on this blog, since his nomination was first floated in January), please poke around in the archives for my thoughts. You can be assured that, despite what many of his supporters may tell you, the opposition to his nomination is NOT anti-religious or anything of the sort. Please check out the archives here; if your time is short, maybe start here. That April archive page has a lot of the most detailed stuff that I've written. Thanks.
posted by sam 7:53 AM
The White House
The White House doesn't really want to know your opinion, thanks very much.
[update: Really. Go try to send them a webmail. Go to whitehouse.gov, figure out how to get to the webmail page (it's not prominent!), see if you can get a connection (it was very hard for me, this morning), then navigate your way through the forms. Don't forget to declare yourself Mr. or Ms. or whatever -- you will be chided in red letters, and will (if you're like me) say "forget it." Along the way, note the oddly selective choices for subject matter.]
posted by sam 7:14 AM
The White House
also thinks that gay people and Canadians -- or at least gay Canadians -- are inherently non-credible.
posted by sam 7:13 AM
Thursday, July 17, 2003
Bill PryorAs you may know, the Judiciary Committee had a fight this morning over whether to proceed to a vote on the nomination, or whether to take more time to investigate the newly-obtained documents about RAGA fundraising. That fight is, I believe, unresolved at this point -- but from the sounds of it this morning, I expect Senator Hatch to ram this through to a vote this evening.
If so, then the time will have come to contact all Senators, not just those on the Committee, if you (a) care to do so, and (b) haven't done so already. You can see that a very large coalition of environmental groups -- so I am told, the largest coalition of national environmental and planning groups, and the largest-ever coalition of local grassroots environmental organizations, ever to oppose any of President Bush's judicial nominees -- has prepared a letter to all Senators about this nomination. The letter can be downloaded in pdf format from Earthjustice here.
posted by sam 3:36 PM
fun in the Court of Appeals
My last 11th Circuit argument was on the same day as, with the same panel as, the Alabama Ten Commandments case.
And my luck holds: I just found out that my next 11th Circuit argument, in September, will be on the same day as (and presumably with the same panel as) the Alabama vibrator law case! That should be a great argument to see. Here, for vibrator law afficionados, is the Circuit's decision the first time around. The District Court has once again held the law unconstitutional, and Attorney General Pryor has appealed again. It will be, among other things, an interesting test of the impact of the Supreme Court's recent decision in Lawrence v. Texas.
posted by sam 12:07 PM
Bill Pryor
Today is the day for Pryor's vote in the Judiciary Committee. Word is that Sen. Specter will demonstrate his lack of moderateness and will vote in favor the nomination, giving rise to a pure party-line vote, and that then there will be a filibuster.
Note this post from Balasubramania's Mania, demonstrating that even if Pryor's actions in litigation and speeches aren't enough to win your opposition, his high-level involvement with the Republican Attorney Generals' Association could be. The post links to this article from the Wash. Post, which ought to mark the beginning of serious investigations (both public and private) into the fundraising of that organization (which Pryor helped to found). Here's how it starts:Republican state attorneys general in at least six states telephoned corporations or trade groups subject to lawsuits or regulations by their state governments to solicit hundreds of thousands of dollars in political contributions, according to internal fundraising documents obtained by The Washington Post.According to the Bham News, Democrats will request a delay in the Committee vote in order to look into this further; but I'm not holding my breath for Sen. Hatch to say "that's fair!"
One of the documents mentions potential state actions against health maintenance organizations and suggests the attorneys general should "start targeting the HMO's" for fundraising. It also cites a news article about consolidation and regulation of insurance firms and states that "this would be a natural area for us to focus on raising money."
[UPDATE: Via Ed Still's Votelaw, you can find a link to Nina Totenberg's informative coverage of the RAGA fundraising issue, including her discussion of the leak by Senate Republican staff to a friendly pro-Pryor writer in an effort to preempt any investigation of the issue. In fact, Ed at Votelaw was writing about RAGA fundraising and Bill Pryor six months ago, which just goes to show that everybody should be reading Votelaw.]
posted by sam 7:11 AM
Tuesday, July 15, 2003
Bill PryorLeah, one of the summer team at Atrios's site, has this reminder that Bill Pryor's committee vote has now been set for Thursday (two days from now), and that there is still some question as to how Sen. Specter will vote; Leah also gives you various ways to make your opinions known to the Senators.
I doubt very much that Sen. Specter would vote against the nomination in such a way as to kill it in committee; but it is possible that he will vote only to let it go to the Senate floor without a recommendation. Those of you with voting rights in Maine and other states with Republican Senators who style themselves "moderate", in particular, should make your voices heard. If the Republicans think that they might lose a floor vote, then they will be likely to let the nomination languish (as they are currently doing with the fellow who's been nominated to the District Court in Arkansas).
posted by sam 3:07 PM
media bias alert!
Good thing those guys at The Corner are on the alert -- they've discovered that the purportedly boring and purportedly neutral C-SPAN is actually in the thrall of the homosexual agenda! Look here:YES, REALLY, C-SPAN BIAS
The only guest on C-SPAN's "Washington Journal" this morning was Elizabeth Birch, , head of the Human Rights Campaign, the hard gay-left group now pressing all the Democratic candidates to support what proponents call "gay marriage." No debate. First question: "Do you think that President Bush has been detrimental to gays and lesbians?" So much for balance.
[remainder of The Corner item, not having anything to do with C-SPAN, omitted]
Horrifying -- that C-SPAN had Ms. Birch on without a right-winger to debate her!. Bias? No doubt. You can tell, because, it's been a long long time -- 2 days, in fact -- since they had a right-winger on, to push the right-wing "religious" viewpoint on political debates, without anyone to debate her from the left. (Note: and Birch got forty eight minutes, while the right-winger only got forty three).
And how dare the biased C-SPAN journalist ask a question that was based on the possibility that the head of the HRC might believe that the Bush Administration has been detrimental to gays and lesbians?!
Remember: you can't trust anything the New York Times says.
posted by sam 1:01 PM
Monday, July 14, 2003
what to blog about?This is the final week before my one-year blogiversary, at which time I will decide whether to shut old Ignatz down (as previously hinted without much subtlety) or instead to go to a reduced-blogging mode. And as I think about whether to blog, what better thing to blog about than blogging? And so, naturally, my thoughts turn in part to the question, "Do I really want to be part of a cultural activity in which the most widely-applauded guy is so transparently lame? If that's what blogging's about, shouldn't I spend the time practicing the banjo instead?"
That's where my mind was this morning, in particular, on reading this item from the Instapundit, which reads in full "SPEED LIMITS KILL, according to this piece in the New York Times." Fits right in with that particular brand of libertarianism that is so in vogue in the blogworld these days, right? There's only one little problem: the linked article says exactly the opposite. It says, plain as day:according to a recent academic study, raising speed limits to 70 miles per hour, and even higher, has no effect whatsoever on the death rates of young and middle-aged male drivers. That's right, guys: if you're under 65 and you find yourself cruising the great wasteland somewhere between Denver and Portland, say, you can rev things up with a clear conscience -- soon maybe even in Oregon, whose Legislature is considering upping its maximum speed limit from a poky, painful 65 to a brisk and wholesome 70.. There is literally no sentence in the article that says anything like "SPEED LIMITS KILL," or even (less colorfully) that death rates are lower if speed limits are higher. As quoted above, the article says exactly the opposite.
Like most studies that seem to grant us leave to indulge our lazy, bad habits, this one comes with an asterisk, unfortunately, that it would be cruel not to disclose (despite the fact that as a young male Westerner I'd love to bury the finding in a footnote): higher speed limits do increase the death rates of women and the elderly.
This is blogging at its best, I suppose.
posted by sam 11:01 AM
Friday, July 11, 2003
no blogsorry, no blogging today -- out of pocket.
posted by sam 9:50 AM
Thursday, July 10, 2003
-* TalkLeft notes that Bill Moyers's will be discussing the Bill Pryor nomination tomorrow night.
* You know how you always hear that modern academia has been infected with a cynical and nihilistic disdain for the very concept of searching for "facts" and "truth"? It's true.
posted by sam 8:40 PM
Wednesday, July 09, 2003
Bill PryorJust in time for tomorrow's Senate Judiciary Committee vote on Bill Pryor's nomination, comes a Washington Times op-ed by noted right-wing lawyer Bruce Fein, about Alabama's Ten Commandments battle. What does it have to do with Bill Pryor's nomination? It is that Fein lambastes the many Republicans who have remained silent and failed to criticize Ala. Chief Justice Moore's position in that litigation.The chief justice of the Alabama Supreme Court, Roy S. Moore, has forgotten that Robert E. Lee surrendered to U.S. Grant at Appomattox Court House, not vice versa. Admired by some political conservatives, Justice Moore denies the constitutional authority of federal courts to issue rulings interpreting the establishment clause of the First Amendment that he is bound to obey.Though Fein doesn't mention it, among the Republicans who have remained publicly silent on the point -- and the Republican who by all rights should have been the most vocal on it -- is Bill Pryor, Alabama's Attorney General. Pryor's official website still includes no mention of the 11th Circuit's decision, many days after the issuance of that decision. And he has not publicly decried the intimations by Chief Justice Moore that Moore might not obey the 11th Circuit's mandate. Instead, Pryor has (according to the Mobile newspaper -- scroll down to last item) hid behind some patently absurd assertion that he shouldn't discuss the case because it might yet go to the Supreme Court. If there is any chance that any Republicans on the Judiciary Committee plan to do anything other than blind adherence to party politics, they should consider Pryor's silence in light of Fein's essay.
That the Alabama chief justice revels in seeking to unravel the rule of law shocks. And what multiplies the shock is the deafening Republican silence over Justice Moore's rebellion against the Constitution despite their characteristic celebration of law and order.
posted by sam 7:29 AM
Tuesday, July 08, 2003
This here post is for the law nerds mostly.One of the things that really gets me grumpy is when defendants, in lawsuits filed in state court, wrongly "remove" the cases to federal court in order to (a) get a friendlier forum or (b) at least slow down the lawsuit by trying. We had a good example, recently, of how ridiculous this can get. Here's the deal.
One of the bases for federal court jurisdiction -- and therefore one of the bases for removal of a case from state to federal court -- is "diversity of citizenship", which exists (under currently-governing statutes) when all the plaintiffs live in different states from all the defendants, and the amount of money at stake exceeds a certain statutorily-set minimum. So, a case where the plaintiffs are from Alabama, and some (but not all) of the defendants are from Alabama, is NOT removable on the basis of "diversity". Got it?
Ok, there's one tiny exception, which is when the "non-diverse defendants" (the Alabama-based defendants, in our example) are listed in the Complaint BUT THERE'S NOT EVEN A CONCEIVABLY, NOT EVEN ARGUABLY, LEGITIMATE CLAIM against them. This is called "fraudulent joinder". Naturally -- being self-interested like just about everybody else -- companies that are sued in state courts try to stretch this tiny little exception into a humongous exception. Natural. The problem is that some federal district courts let the companies get away with this grotesque expansion of "fraudulent joinder", and let cases into federal court that should have stayed in state court.
Take, for instance, Tillman v. R.J. Reynolds. There, an Alabama smoker had filed suit in 1998, against R.J. Reynolds and some Alabama defendants who had sold some of the cigarettes. No diversity, right? Shouldn't be removable to federal court, right? But R.J. Reynolds argued, and the district court agreed, that the retailers were "fraudulently joined" because there was no possible arguable conceivable claim against them -- that any argument for such a claim was completely baseless. Three years later, the Eleventh Circuit wasn't sure that this was right, so -- in the opinion I just linked -- the Circuit asked the Alabama Supreme Court whether there was any claim against the retailers. And last month, the Alabama Supreme Court said "yes, there's a potentially valid claim against the retailers." So all that time -- for about 5 years -- the federal courts delayed the case, when they should have just refused to hear it and let the state courts decide it. The federal courts countenanced that delay, by giving credence to Reynolds's argument that there was OBVIOUSLY no claim against the retailers; but in fact (as the Ala. S.Ct. recognized), not only was that NON-OBVIOUS, it was just WRONG.
Like I said, this sort of thing gets me grumpy.
posted by sam 9:06 PM
Monday, July 07, 2003
-I am sorry. No blogging today.
posted by sam 3:12 PM
Friday, July 04, 2003
Happy Independence DayA good occasion to re-read the Declaration.
posted by sam 7:40 AM
Thursday, July 03, 2003
overtimeOn the Bush Administration's efforts to take away millions of workers' rights to overtime pay (first discussed at Ignatz many months ago, here), read these articles by Bob Herbert and the AFL-CIO.
I see this as another example of the Administration's overconfidence and resulting meltdown. It's one thing to press right-wing policies that hurt average citizens indirectly, or will hurt them in the future; it's quite another, and politically dumber, thing to press policies that will directly and immediately cause millions of households financial distress and overwork.
[UPDATE: Ross at The Bloviator has a different take on the politics of the proposed change. Check it out.]
posted by sam 7:03 AM
Wednesday, July 02, 2003
-If you find that you have too much time and are being too productive, go play with this.
posted by sam 3:04 PM
Constitutional Law
After Lawrence v. Texas, we are seeing a new outpouring of assertions, especially by "conservatives," to the effect that everybody (sometimes, it is said, especially "liberals") tries to enshrine all of his or her policy preferences as constitutional doctrine, and that Lawrence is an exemplification of that purported fact. For instance, in response to Justice Thomas's opinion stating that he's against sodomy laws as a matter of policy but believes that the Constitution permits them anyway, Stuart Buck saysOnce again, Justice Thomas shows that he, perhaps more often than any other Justice, is willing to distinguish between his own political preferences and what the Constitution actually says. And judging from the outpouring of commentary that I've read in the past day, he may be one of only a handful of people in America who are capable of making such a distinction.But really, everyone in America is capable of making that distinction, I think, and everyone who thinks at all about constitutional law makes the distinction easily. Here are some examples, for myself.
(1) I would prefer that the federal labor laws provided that an employer had to recognize a union if a majority of employees signed authorization cards. But I recognize that the Constitution does not so provide; winning that right is a matter of legislation, or of interpreting existing legislation. I could come up with many more examples, and I have no doubt that you could, too.
(2) Some (e.g. Stuart Buck) might say, that's too easy -- it's easy to think of laws you might like to enact that are not constitutionally required, but try to admit that there's a law that you oppose but that is nonetheless constitutional. That's easy too. Just off the top of my head, here's an example: I don't think that lawsuits ought to be removable from state court to federal court on the grounds of diversity of citizenship, and I don't like the fact that 28 U.S.C. § 1441 allows such removal. But I recognize that the law passes constitutional muster. Again, I could come up with more examples, and I have no doubt that you could too.
In other words, there's nothing honorable about Justice Thomas's position in Lawrence. We all are satisfied to leave most things to the legislative process, rather than to constitutional doctrine. We just disagree on the content of constitutional doctrine. Fortunately, Justice Thomas's ultra-crabbed view of the Constitution is not the prevailing view.
posted by sam 9:47 AM
music
I know I keep saying it, but it's worth saying again. If you live in Washington, don't miss the Smithsonian Folklife Festival, which (having started last week) is on again, today through Sunday. Here is the schedule for today, and you can click from there to the schedules for later this week. Today you can see some great Southern traditional music, including Joe Thompson and Clyde Davenport, and can also see an evening concert of Neba Solo, my new favorite: a balofon (like a wooden xylophone, or marimba) player from Mali. He and his band (2 balofons, a drummer, three other percussionists, a singer, and two dancers, when I saw him last week) will rock your world.
[UPDATE: A reader reasonably points out that I have been unfairly neglecting the Scottish music. Fair enough -- though my own view is that British Isles trad music has much better publicists than does old-time music and thus gets an inordinately large share of attention in many venues, I will readily admit that this week also brings some great Scottish music, including Johnny & Phil Cunningham, and the Battlefield Band.]
posted by sam 6:59 AM
Tuesday, July 01, 2003
Can it be true? Have I beat Howard Bashman to the scoop?Looks like the Eleventh Circuit correctly affirmed Judge Thompson's order in the Alabama Ten Commandments case. You can go download the pdf file here (look for Glassroth v. Moore). More later after I read it.
[MORE LATER: A very good opinion, by Judge Carnes. Probably the first-ever use of the new legal term "invited error with a parking space" (see page 19 of the pdf file). And a strong finish, warning Chief Justice Moore not to play George Wallace games with the Court. Bad news, by the way, for Bill Pryor's nomination: a resounding defeat for the State, with a million-dollar-or-so attorneys' fee award to be paid to the Plaintiffs from the State's funds, all of which Pryor could have avoided by an appropriate exercise of his authority as the State's highest legal officer.]
posted by sam 2:22 PM
I have this theory
I have this theory that the blogger "Andrew Sullivan" is actually a fictional creation, designed and nurtured over a period of years by persons unknown after the former journalist Andrew Sullivan somehow disappeared -- and that the purpose of the blogger-"AS" is to lead up to a stunning announcement in Summer 2004 that all AS-following "Eagles" should vote for the Democratic Presidential nominee instead of their former hero President Bush. It will be a great finale to a years-long performance piece: after years of trying to defend the indefensible, he will loudly admit that it's impossible. This will make a few thousand "Eagle" heads explode, a few thousand Eagles stay home from the polls in confusion, and a few thousand actually vote for the Democratic candidate. You can see him starting to move into Act II now, as he tells the Eagles that Bill Pryor's nomination is atrocious. I know that I should not be unveiling the deception, but fortunately very few people read my site.
posted by sam 12:23 PM
Monday, June 30, 2003
-I'm sorry. Not much time for blogging today, nor anything insightful to say.
But my grandfather did once go out on a date with Katharine Hepburn, when they were very young.
posted by sam 2:16 PM
Friday, June 27, 2003
musicYou can hear Los Lobos cover Bob Dylan's "On a Night Like This" here, in Real Audio, from the soundtrack to the upcoming movie "Masked and Anonymous".
posted by sam 7:58 AM
The end of the Supreme Court contest (who cares?)
The Supreme Court predictions contest has ended. I started the contest way back in August with this post. Only one other blogger was brave/idle/silly/intellectually-curious enough to join in: Ted, whose courage puts all others to shame because he had not even graduated from law school when he began the contest. We were "joined", in a sense, by the contest over at Washington University, which pitted a computer against a team of human experts. The experts' team, though anonymous, was a formidable one by all indications, including the head Volokh, who was asked to weigh in on three Constitutional Law cases. True, the folks at WU were doing something a little different and more sophisticated, trying even to predict the vote of each Justice; but their predictions could be fit into the same mold as ours with little fuss, and I tried to do so in a way that was more rather than less generous to their chances. The rules for my contest were a bit oversimple, maybe: a prediction of "affirm" meant "affirm, period," while "reverse" encompassed "reverse, vacate, reverse in part, or any other judgment other than 'affirmed.'" Then, in figuring out what predictions to count as correct, I have generally gone with the simple rule (e.g. you predicted 'reverse,' they reversed in part, you get credit) and have occasionally utilized a "benefit of the doubt" rule to give credit even beyond that – giving people credit when they could reasonably argue that credit is due – but (unless I'm forgetting something) I never found it necessary or appropriate to give myself the benefit of the doubt. If you want to see a chart listing all the predictions and showing who got credit for what in my counting (though I can't imagine that anyone's that interested), send me an email and I'll send you the pdf file.
One more thing: the campaign finance case that will be argued in September is technically part of this Term, but is not counted here.
Drumroll, please: Out of the 73 cases this Term that (a) were argued and (b) resulted in a decision (rather than dismissal as improvidently granted), the number of correct predictions were:
Sam: 55
Experts: 43
Computer: 48
Ted: 41
What does this prove? Take your pick:
(a) I was lucky.
(b) I was clever.
(c) If you believe that the role of a federal appellate judge is to be able to figure out what the Supreme Court would be more likely to do, then President Bush should withdraw the nomination of Mr. Estrada and nominate me instead (I would have suggested that I take the place of Mr. Pryor, but I'm not really in a hurry to move back to Alabama).
(d) That practicing lawyers have better insight than students, academics, and computers.
I'm going with (a), though I'll accept (c).
And let me recommend this to you: if you are a lawyer or law student who either fancies yourself to be, or would like someday to be, something of an expert on appellate law, then you should try this game next Term or some other time. It's a wonderful way to learn about areas of law, to see what sorts of arguments persuade and what don't, and all sorts of other side benefits. I, however, will retire undefeated.
posted by sam 6:53 AM
Thursday, June 26, 2003
retirements?It looks as though I'm the only person who has publicly stopped holding his breath about Supreme Court retirement(s). Notably absent from most news reports is anything like "... and none of the Justices is leaving". Howard Bashman is being just cryptic enough that I wonder if he's heard something that I haven't, but still leaving himself plenty of room not to be wrong. I am tempted to hold my breath again, but I have already proven myself the world's leading expert on Supreme Court predictions (more on that tomorrow, if I get to it) -- so I still say, if anybody's going to retire, he or she should do it within the next 15 minutes or else wait til after the 2004 election.
posted by sam 4:43 PM
Dissenting Justices say the darndest things.
I suppose there's no point in my inviting Justice Scalia over to see the season finale of Queer as Folk on Tivo with us ...
But seriously, he certainly does let his outrage get the better of him, doesn't he? Sometimes dissenting Judges and Justices like to describe majority opinions in broad and outraged tones, predicting broad negative consequences from the majority holdings, or otherwise saying "well, extrapolating logically from the majority opinion, it means such-and-such a thing that I find even more horrific still." But they should be careful about it, unless they just enjoy taking part in culture wars more than they enjoy taking part in the development of the law.
You might think that Justice Scalia would have been reminded about the benefit of holding your tongue, when he saw that Justice O'Connor's concurring opinion in Lawrence used one of his old fiery dissents against him. He had dissented snarkily in Romer, in which the Court struck down an anti-gay referendum as discriminatory; Justice Scalia said, more or less, "you want an anti-gay law? I'll show you one: an anti-sodomy law! How can you get more anti-gay than that?!" He thought that somehow this would make people agree with him; but what it ended up doing, was giving Justice O'Connor something nice to cite as a reason to strike down the anti-sodomy law on equal protection grounds.
So did Justice Scalia, upon seeing Justice O'Connor's draft, think to himself, "gee, I should be careful not to shoot myself in the foot again, no matter how angry I get"? Nope. Instead, his dissent (see especially Part IV) affirmatively argues that, under the Court's reasoning, every law that is based on nothing more than the majority's sense of morality and propriety is unconstitutional. Well, that's fine with me. And indeed he goes out of his way to hint that one of the laws that will fall next, under the binding force of the Lawrence decision, is Alabama's silly law against vibrators. Again, fine with me. I love it when Justice Scalia's anger gets the better of him.
posted by sam 3:14 PM
Questions of the Day
So the big questions of the day are:
(1) Will the Supreme Court celebrate Make Fun of Michael Savage Day by protecting gay sex under the Constitution? Answer: YES. See syllabus here and majority opinion here, both pdf. The Court did overrule Bowers and thereby strike down all remaining anti-sodomy laws, rather than the narrower possibility of just striking down the few that prohibit only same-sex acts. Good news.
(2) Will any of the Justices retire today? Answer: looks like NO. There is, I suppose, the possibility of a press release announcing a retirement this afternoon or tomorrow, but it seems unlikely to me. For that matter, there could be such a press release on any day of the year. But I think it would be bad for the Court as an institution, if one of the Justices announced a retirement at any time this summer after this afternoon; it would look to me, and to many others, as though the timing was somehow planned for some odd selfish or partisan purpose. And so I doubt that any Justice will do such a thing. So I'm going to start relaxing, on this one.
(3) Will the Senate Judiciary Committee's vote on Bill Pryor's nomination be postponed from today? Answer: looks like YES. So we won't have a committee vote until July at the earliest.
Big day. Stay tuned for answers.
posted by sam 9:44 AM
Statistics in Alabama
I mentioned yesterday the despicable veto, by the Governor of Alabama, of the bill to restore voting rights to certain ex-felons. Today's New York Times has an article about the possibility that the veto will, in turn, reduce the Governor's possibility of success in the public referendum on his tax reform plan. So, the veto was stupid politics as well as being just plain wrong. (Even the Birmingham News agrees, for goodness' sake).
Also notice (from the NYT story) the Governor's stunning use of statistics, in his effort to fend off criticism that the ban on ex-felons voting had a disparate impact on Black voters:In the last few years, seven states have dropped or eased restrictions on felons, said Marc Mauer, assistant director of the Sentencing Project, a group in Washington.It's a sad situation, when a State's Governor thinks that the citizens are stupid enough to fall for such blatant misuse of statistics.
"There's been a growing recognition of their broad impact and also of their racially disproportionate impact as well," Mr. Mauer said. In his veto, Mr. Riley argued to the contrary, saying: "Over the last four years, those convicted of felonies in Alabama were almost statistically evenly divided by race. Fifty-four percent were African-American, and 45 percent were white."
The Alabama population is 26 percent black and 71 percent white.
posted by sam 7:14 AM
Happy AMSNFYOP Day
See yesterday's post -- it's Appropriate Michael Savage's Name For Your Own Purposes Day. The topic at hand is, "evil, weenie, or both?" Weighing in favor of "weenie" is the fact that he has sued some websites that have criticized him, while including "STOP LAWYERS" as one of the nine points in his really-nutty-Right plan of action. And also various other things on his website; if he had written it all over a panel truck I'd feel sorry for him and think that there should be more social programs to get help to people like him, but instead he's lucky enough to have a website and a highly paid media position to spout his stuff. If only he were just a weenie, that would be fine; but too bad for us, he's evil too.
posted by sam 6:41 AM
Wednesday, June 25, 2003
two short things* Thanks to Neal Pollack, tomorrow is Appropriate Michael Savage's Name For Your Own Purposes Day; as NP says, "He can't sue us all." (Also see NP's summary of the Michigan Law School decision: "now we're doomed to another 40 years of black lawyers in the Midwest". Funny, in a Randy Newman sort of way.)
* I wish I had more friends who used Apple computers at work; then we could bother each other all day long, with actual mouth-and-ear conversations over the new version of iChat instant messaging. If you are someone that I might like to hear from, and have the software, my iChat name is shldmn . I've got no camera hooked up, so you won't be able to see that my inchoate beard has a good bit of gray in it.
posted by sam 1:01 PM
where's the outrage? and the odd economic analysis?
I see that our blogger-friends on the Right are keeping mum about the President's decision to honor so-called "Black Music Month," a radical departure from the color-blind, group-distinction-eschewing vision that so nobly drives the Right's race-related rhetoric these days. Should I be concerned that the use of racial categories, in the bestowing of Presidential honors, will cause reasonable but conservative white purchasers of music to think less highly of Joe Thompson on the purported grounds that he is merely a beneficiary of some undeserved race-based preference?
posted by sam 10:45 AM
Alabama
I have previously said complimentary things about Alabama's Republican Governor here, because he is tackling tax reform. Those things remain true. However ...
My warm feelings towards him have almost entirely disappeared, because of his inexcusable veto of the legislation that would have restored voting rights to many ex-felons. The law would have brought much-needed fairness to Alabama's law on this issue, with no downside except to the partisan interests of the Republican Party. (See here). On this issue, the Governor chose partisanship over fairness. I imagine that Ed Still will have more on the issue.
posted by sam 6:26 AM
Justice for Janitors
An op-ed from the Post about the SEIU's successes in the "Justice for Janitors" campaign.
posted by sam 6:20 AM
Tuesday, June 24, 2003
If ...If I had to spend my blogging time either criticizing all the things that Instapundit says liberals and leftists must criticize in order show their bona fides, or explaining the reasons why Instapundit is a buffoon for saying such things, I'd never get any law practice done. So, here is the Ignatz rule: if I haven't said something about a given topic, there is nothing that can you can reasonably infer from that, especially if you've never met me. There are, at any given moment, one point three zillion things that I'm not blogging about, and only a very very few that I am blogging about. That's just life, you know.
posted by sam 2:13 PM
Bazzle!
I love that name -- Bazzle. Sounds like a muppet, or a minor character in Harry Potter. But really, it was a very important Supreme Court decision, issued yesterday, that got overshadowed by the major news that the Supreme Court narrowly decided not to make the law worse on affirmative action. Here (pdf) is the opinion. Here is where I discussed the case before it was argued.
Last week, the news was full of stories about Congressional efforts to corral all significant class actions into federal courts, rather than letting them be litigated in state courts. (Companies think that federal courts are less hospitable to class actions, and so naturally companies want to be in federal court because without class actions there can be no effective enforcement of many consumer and employment laws). Thanks to the trend exemplified in Bazzle, however, the choice between federal or state courts might end up being a moot point in many class actions -- because more and more, in consumer-company or employee-employer relationships, we see arbitration "agreements" being slipped in amongst the fine print, such that you "agree" that you will arbitrate rather than sue if you ever have a claim against the company.
Companies also like to claim that, in arbitration, there's no such thing as a class action -- that each consumer, or employee, must fight his or her fight alone, shouldering all the costs. Companies take this stance, naturally, because they don't want class actions -- they want most of their behavior to go unchallenged by the people whom it affects. But Bazzle is good news for consumers and employees in this regard: the Court seemingly rejected the theory that there is something ipso facto impossible or improper about having an arbitrator certify a class and grant relief to the class.
I have said before that -- in contrast to some progressive lawyers -- part of my brain welcomes arbitration, because (a) many arbitrators are better for consumers and employees than are many judges, and (b) arbitration can be a powerful tool for fairness, if the arbitrator is a good one. So, I welcome the opportunity to present a good class action to an arbitrator, if that opportunity ever comes.
There still remain many battles to be fought, as companies make new efforts to shove arbitration "agreements" down consumers' and employees' throats that explicitly forbid class arbitration. Then we will really get down to the nub of the question: are companies allowed to do that, so as to protect their own ability to violate consumer and employment laws with relative impunity? Bazzle didn't reach that question in its fullest form, because the Court held that the arbitrator should have been allowed to determine whether a class action was appropriate under the language of this "agreement". Still, Bazzle is a very important step towards ensuring that corporations cannot grant themselves immunity from effective enforcement of the laws, because Bazzle recognizes that arbitral class actions are appropriate.
posted by sam 10:02 AM
Monday, June 23, 2003
Supreme CourtBig news today at the Supreme Court: 5 decisions. You can read all the opinions by downloading pdfs from the Court's own site here.
As I predicted, the Court upheld Michigan's Law School admissions plan, but rejected the Undergraduate plan. Watch various more erudite bloggers for analysis: I have my eye on Prof. Balkin and Marty Lederman.
The Court also struck down California's law regarding Holocaust-era insurance disputes, upheld the internet filtering law regarding federally-funded libraries, and (seemingly, at least) allowed arbitrators to hear class actions. More later.
posted by sam 11:05 AM
Saturday, June 21, 2003
Alabama(testing, one two three ... I find myself in "New Blogger," whatever that means, so I hope this works.)
I mentioned, the other day, that Kip at Long Story, Short Pier had written about the laudable efforts of Alabama's newish Republican Governor to reform the State's regressive and inadequate tax system. (I exaggerated, somewhat, Kip's status as an Alabama native; he is one, to be sure, but it seems like he grew up not just in Alabama but everywhere and may even still be in the process, as I am).
Anyway, through Kip (see this post) I learn of an Alabama-based blogger named Michael Bowen whose blog, A Minority of One, is chock full of information on the tax issue. This story will be hot for the next few months, and I plan on reading Bowen's blog to keep up.
posted by sam 7:30 AM
Friday, June 20, 2003
big week coming upOh, it's a big week coming up.
Harry Potter tomorrow (Remember, you heard it here first: my theory is that Snape is dead. Not that he gets killed -- that he got killed years ago, and is a ghost). Bob Mould at Fort Reno on Monday. Supreme Court decisions, and either retirements or not, probably done by Thursday. The Smithsonian Folklife Festival starting Wednesday.
Maybe the sun will even come out.
posted by sam 3:47 PM
unions
Nathan Newman has three great recent posts, in response to other people's questions and/or misconceptions, about (1) Unions and grassroots political activity, (2) Why unions have troubling organizing workers, and (3) Who is in unions. Recommended reading.
posted by sam 7:49 AM
Thursday, June 19, 2003
musicWhen I first spent time here in Washington DC, in (if I remember correctly) the summer of 1984, I wandered down to the Mall one day and found myself in the middle of the Smithsonian Folklife Festival. On a kiosk was a big picture of the great fiddler Tommy Jarrell, and it turned out that he was playing that day. So I heard him, and then talked to him, and I have loved Washington ever since.
I mention it because, although Tommy died not long after that, some of the greatest living old-time fiddlers will again be on the Mall for the Folklife Festival over the next couple of weeks, starting in a few days. You can see, among others, Joe Thompson, Clyde Davenport, and Ralph Blizard. They will all blow your mind, and improve your life tremendously.
posted by sam 11:52 AM
Wednesday, June 18, 2003
PryorAgain via Howard, Bill Pryor's nomination is scheduled for Judiciary Committee vote tomorrow (though it may well be put off til next week). Don't delay! Please call your Senator -- no matter where you live (even in Alabama, just for fun), especially if you've got somebody from your State on the Committee. If you haven't been here before, you'll find lots of stuff on Pryor's nomination by scrolling through my June Archives and by following the many links therein to earlier stuff.
posted by sam 12:51 PM
well now this is odd!
Odd, odd, odd -- it doesn't seem like Senator Hatch is being consistent! We see here via Howard Bashman that the two Senators from New York oppose two New York District Court nominees. And we saw here that Senator Hatch's deeply-held principle is that in such cases, where the two home-state Senators oppose a District Court nominee, he will oppose the nominee too in deference to the home-State Senators! But there is no indication in the article that Senator Hatch has told the Bush Administration of his strongly-felt belief and his intention to vote against these nominees if they come up for vote, so as to lead to the quick withdrawal of these nominees and the nomination instead of someone whom the two home-State Senators can support. Seems like if there was really a judicial emergency here, and if Senator Hatch really believes what he said he believes, that's what he'd do. Odd, odd, odd.
posted by sam 12:05 PM
Tuesday, June 17, 2003
premature Supreme Court wrap-up (advantage blogosphere?)By the end of next week or shortly thereafter, Supreme Court wrap-ups will be everywhere; the Court will probably put out its last 10 opinions next week (although they could conceivably run into the week of the 30th), and you will see analysis and summaries galore. Here at Ignatz, we're beating the rush: here's the almost-wrap-up of the Supreme Court Term. Why? Because there's time, today. And because everybody else's end-of-Term wrap-up will be fixated on gay sex, affirmative action, internet porn, and Nike ads; those cases among others are still to be decided, and they'll receive all the attention.
So here's an oddly incomplete view of what's happened so far:
The big story: the so-called "federalism" trend is dead as a dodo, buried and decaying. Well, maybe that's an overstatement, but if we keep saying it, it might turn out to be true. This Term, the "state sovereignty" (and now even municipal-almost-sovereignty) advocates lost several cases, often unanimously, thus proving that there are people (including Bill Pryor) who make Chief Justice Rehnquist look like a moderate on this states' rights business. Nevada v. Hibbs (upholding right to sue states for violating Family & Medical Leave Act); Calif. Tax Bd. v. Hyatt (upholding right to sue a state in another state's court); Cook County (upholding right to sue cities under qui tam statute); Jinks (rejecting far-out theory of municipal shield against federal laws).
The worst outrage (so far, at least): the juxtaposition of the three strikes cases (Andrade and Ewing) with the punitive damages case (State Farm). The glib non-lawyerly take is that the Court cares a great deal about limiting the punishments that can be imposed on lawless corporations, but has no interest in limiting the punishments that can be imposed on lawless humans. The erudite lawyerly take is that the Court cares a great deal about limiting the punishments that can be imposed on lawless corporations, but has no interest in limiting the punishments that can be imposed on lawless humans. These cases, taken together, are a Rosetta Stone for the worst tendencies of the Rehnquist Court. There really is no way to reconcile them, I think.
The big losers this Term: prisoners and ex-cons. Lost just about every case there was to lose. US v. Bean (restoration of firearms privileges); Overton v. Bazzetta (visitation privileges); Smith v. Doe and CT v. Doe (rights of sex offenders); Demore v. Kim (deportation proceedings). Things also didn't go so well for habeas corpus petitioners and for criminal defendants on direct appeal, but those categories were an at least partially mixed bag.
Where the interesting cases are (with one week to go): Intellectual Property. See Eldred v. Ashcroft (upholding the perpetual-ownership-of-Mickey copyright extension act); Dastar v. Fox (attempting to clear up the interplay between trademark and copyright, so as to allow more copying of public domain works); Moseley v. Victoria's Secret (trademark dilution law as applied to a cheesy store with a name sort of like "Victoria's Secret").
Labor Law: Not a damn thing. Not a single labor law case. That's very unusual.
Most frustrating case: Chavez v. Martinez (regarding rights of criminal suspect in interrogation). Can't even tell what the law is, after this case. What a mess.
Most boring case of the year A hard-fought category. Winner by a nose is Hillside Dairy v. Lyons, a Milk Law case that is so boring that it probably wouldn't even make it into a law school textbook on Milk Law.
There might or might not be another installment of this, in the next day or so. To be more precise, there should be (so that I can discuss employment law, civil procedure, arbitration and some interesting random stuff) but who knows?
posted by sam 10:22 AM
Monday, June 16, 2003
be carefulDoes anyone still need to be reminded to double-check the address field of an email before hitting "send" (and, above all, to use "reply all" only with the utmost caution)? If so, read the story of the summer law clerk in a fancy New York firm, here (scroll down just a little).
posted by sam 7:12 AM
Friday, June 13, 2003
Pryor on SouterI wrote yesterday about Bill Pryor's "joke" about Justice Souter. Today, the Washington Post explains in more detail why that "joke" and a related comment to the same effect are strong evidence against Pryor's nomination.
posted by sam 10:33 AM
-
The other day, I praised Alabama's Republican Governor for tackling the state's regressive and inadequate tax system. Kip, at Long Story Short Pier (who grew up among "Heart of Dixie" license plates as I did), writes with more detail, insight and flair than I do, as usual.
posted by sam 8:45 AM
Thursday, June 12, 2003
PryorBill Pryor was, to his credit, candid about many of his positions in his hearing yesterday. I know this from reading the newspapers; I couldn't listen to much of the hearing myself, because some of the voices involved are like fingernails on a chalkboard to me. If you want to read some praise of Pryor's refusal to backpedal from some of his beliefs, you can of course go to the National Review. But one of the items praised in the NR's piece jumped out at me as having been the complete opposite of candor. That was (according to NR) Pryor's explanation of his "joke" at the end of a Federalist Society speech, "Please God, no more Souters":Senator Schumer asked Pryor: "What's wrong with Justice Souter?" For a moment it appeared that Pryor would retreat, as he began to explain that his remarks were a "perhaps feeble attempt at humor." But then Pryor stiffened again, saying he was simply responding to Souter's outspoken opposition to majority decisions in some federalism cases. "I have on several occasions disagreed with decisions of Justice Souter," Pryor explained. When asked why he had singled Souter out, Pryor gave a simple answer: Because Souter had written the opposing opinions. The issue went away.If Pryor responded as the NR reports that he did, this was a blatant departure from honesty. Pryor's swipe at Justice Souter came immediately after Pryor urged that the best hope for "federalism" was that then-Gov. Bush would be elected as President and thus be in a position to appoint judges. In this context, Pryor's singling out of Justice Souter can have only one reasonable meaning: that Pryor said "no more Souters" rather than "no more Ginsburgs or Breyers" because Justice Souter had been appointed by the first President Bush, and turned out to be a grave disappointment to those who want Republican judicial appointees to generate Republican-favored outcomes. Bill Pryor thus squarely put himself in that camp: he doesn't like it when Republican judicial appointees aren't reliable votes for the outcomes that the nominating President's supporters prefer, at least in significant cases. More colloquially, it meant "Please, God, don't let W mess up like his Daddy did, and appoint a judge who's not a reliable vote." That is, I think, the only reasonable interpretation of his remarks on that occasion. If he backpedaled on that, he was not as candid as his supporters would like us to think.
See also Prof. Balkin's remarks on the hearing.
posted by sam 12:33 PM
music
The schedule is now up for the summer's free concert series at DC's Fort Reno Park. For instance, don't miss Bob Mould on Mon. June 23. It's the best chance for those of us with kids, low tolerance for cigarette smoke, and reasonable bedtimes to see great music all summer long.
posted by sam 9:45 AM
Wednesday, June 11, 2003
-Today is Bill Pryor's hearing before the Senate Judiciary Committee. I will not be doing a blogathon on it today, because there are other things on my plate. But I will be checking in at How Appealing for links to coverage of the hearing, and you should too if you're interested.
Meanwhile, the chorus in opposition to the nomination grows. The National Association of Criminal Defense Lawyers has publicly opposed the nomination, as have a coalition of environmental groups. Plus, see the Community Rights Counsel's report detailing Pryor's anti-environmental record.
posted by sam 7:11 AM
Tuesday, June 10, 2003
fame, such as it isIgnatz is quoted -- though not by name -- in the text accompanying footnote 180 in the report issued by the Alliance for Justice opposing Bill Pryor's nomination. (Here is the post from which the quote was taken, and the quote was only mangled a little bit!). You can access the long report -- which covers many of the same topics as PFAW's report, discussed here yesterday -- at the Alliance's site. (Or you can directly download the pdf document at this link).
posted by sam 4:06 PM
It's Not About Federalism
Federalism, state's rights, whatever you want to call it -- it's big news in the legal world these days, and in the political world. It's the buzzword of many folks on the right, who argue that it is a set of neutral principles that are merely about where political power is located rather than being a mask for a certain set of policy goals. I say "hogwash," but you knew that. Medical marijuana, tort "reform," Bush v. Gore, "partial birth abortion," on and on the list goes -- most folks on the right prefer intrusive federal government actions when those intrusive federal government actions are to their substantive liking, and don't when they aren't, and the same is true of me, I happily admit. So it's useful to show that the "federalism"/states'-rights talk is (on the part of all but a handful of people, who might actualy believe it and be willing to abide by the consequences even when they don't like them on specific policy issues) just hooey. Towards that end you would likely enjoy reading a new series of periodic reports put out by the Brennan Center at NYU, called "It's Not About Federalism," that focuses on rightwingers' departures from the putative principles of federalism when it serves their purposes. You can sign up to receive these by email at this page, and can then also view the back issues that you've missed. Highly recommended.
posted by sam 2:46 PM
-
I get Howard Bashman to read the Washington Times so that I don't have to. This morning Howard points out that Nat Hentoff -- many a right-winger's favorite civil-libertarian columnist -- comes out strongly against Bill Pryor's nomination.
posted by sam 7:27 AM
Monday, June 09, 2003
Bill PryorPeople for the American Way has put out an extensive report (available for download, along with other information, here) about Bill Pryor's record, showing why his nomination should be defeated. It will even tell you things that you didn't already know from reading Ignatz! (Thanks to Southern Appeal for the pointer, despite his being wrong about the merits of the nomination).
posted by sam 5:09 PM
Supreme Court
The Supreme Court decided a case today that's a good lesson for those who like to giggle or grouse about that darn liberal Ninth Circuit when that darn liberal Ninth Circuit gets unanimously reversed by the Supreme Court. The case, Desert Palace v. Costa, was previously discussed here at Ignatz. It has to do with the burdens of proof in employment discrimination cases. The Ninth Circuit ruled for the plaintiff, interpreting the law in a way contrary to the way that several other courts had interpreted it. And you know what? The Supreme Court unanimously agreed (pdf opinion) with the Ninth Circuit, unanimously rejecting the views of several other circuits that had ruled in favor of employers; the Ninth Circuit held that those other Circuits had departed from the plain language of the statute. So, next time you hear someone giggling or grousing about liberal jurists ignoring plain statutory language, or about the Ninth Circuit's craziness being demonstrated by a unanimous reversal, think "Costa"!.
posted by sam 10:48 AM
good morning
I really do plan on getting back in the swing of things.
Meanwhile, remember to get in the habit of reading the American Const. Society group blog.
And have I mentioned that Alabama's Republican governor deserves praise for tackling the difficult problem of reforming Alabama's inadequte, and regressive, tax system? I like it when I can praise Republicans, you see. All the precise details are beyond me, and there may of course be some things that I would have preferred be done differently -- but this does not detract from my applause for his courage in tackling the issue. Really. No sarcasm here.
posted by sam 10:17 AM
Friday, June 06, 2003
I am ever so sorry for not blogging. Here are some things: The "comp time" bill, a disastrous-to-workers proposed change to overtime laws, was beaten back. AG Ashcroft is not so happy that he's got gays and lesbians working for him. Bill Pryor's coming up next week, and I'm even sort of hoping that he doesn't get filibustered but instead gets defeated with a few non-nut Republicans voting against him. (Call me crazy, but remember his views on, e.g., constitutional protection against sex discrimination as being just some kind of p.c. silliness).
posted by sam 4:29 PM
Thursday, June 05, 2003
Bill PryorThe Senate Judiciary Committee has set the hearing on Bill Pryor's nomination to the 11th Circuit for next week. (news courtesy of Howard Bashman). It may well be put off, at least for a week or so. For my previous postings about why I so strongly oppose his nomination, read this and the links therein, and this and this and this and this and this and this and this and this and this and this.
posted by sam 7:04 AM
Tuesday, June 03, 2003
-I'm leaving town again now, and will resume blogging sometime later this week. Meanwhile, don't forget to start regularly reading the American Constitution Society group blog.
posted by sam 10:55 AM
Ten Commandments
So the second most important case on tomorrow's 11th Circuit oral argument docket in Montgomery (after mine) is of course the Alabama Ten Commandments Installation in the State Judicial Building Case, Glassroth v. Moore. The Circuit just posted its decision of last Friday in another Ten Commandments case, this one involving a small icon of the Commandments as part of a court seal. The Court upheld that use of the Commandments. Opinion (pdf) here. Judge Edmondson, who will be presiding on Wednesday, was part of the panel in this just-decided case as well; and it is therefore somewhat interesting that Judge Edmondson concurred only in the judgment, distancing himself from some statements in the majority opinion that would tend to support the case against the Alabama monument. Does this mean that Judge Edmondson is leaning towards reversing the District Court in the Alabama case, and upholding the monument? I wouldn't read that much into it, frankly. Judge Edmondson rather often concurs only in the judgment, if he thinks that the majority opinion says too much about things other than the precise case before the court. He quite possibly wanted to leave his doctrinal options open, but I would still be stunned if he or indeed any Judge voted to uphold the Alabama monument; such a vote would be so plainly contrary to precedent, that I can't imagine a sensible judge voting that way.
posted by sam 10:52 AM
Monday, June 02, 2003
Supreme Courtreally, I'll get back to blogging in earnest soon, I promise. Now I'm getting ready for tomorrow's trip to lovely Montgomery AL. But I do have time to note that this morning the Supreme Court issued a good decision in the important trademark-with-copyright-overtones case Dastar (previously discussed here, and opinion now available in pdf here) -- and an awful opinion (pdf here) in Beneficial Nat. Bank v. Anderson, about the important but unsexy topic of "complete preemption" removability, previously discussed here. (Awful in what sense? In its result, in its departure from longstanding precedent, and in its lack of any compelling reasoning).
posted by sam 12:18 PM
Wednesday, May 28, 2003
-One more thing before I go: Bill Altreuter reports that the New York state court system is instituting a new set of fees for lawsuits, including a $45 fee every time you want to file a motion! I've never run across anything remotely like that; we're all used to paying a filing fee to file a case, or to file an appeal -- but to have to continue to pay money as the case goes along is new to me. I'm not saying that I'm sure that it's a bad idea or unfair (assuming that there is still a way for people to proceed "in forma pauperis" without paying the fees if they don't have enough $). But it strikes me as very odd, and I may decide later today that I'm against it. You never know.
posted by sam 11:08 AM
-
A month without sunshine in DC has made me grumpy and heavy. So I am leaving again -- off to Boston for a conference of lawyers who represent teachers. (OK, all "moderate Democrats": grouse about teachers' unions, at will. I'm not listening, but you can assume that I disagree). There will probably be no blogging here the rest of the week.
By the way: why did Chief Justice Rehnquist vote with the majority -- indeed why did he write the opinion -- in yesterday's decision upholding the application of the Family & Medical Leave Act to the states? Isn't that a surprise, given his leadership of the "federalism" trend of holding laws unconstitutional when they allow suits against states (e.g., the Americans with Disabilities Act, the Age Discrimination in Employment Act)? Here's my theory: he voted that way because in the Justices' post-argument conference, when it came his turn to vote on the case, there was already a majority to uphold the Act (Justice O'Connor having voted with the "liberals"). So Justice Rehnquist's choice was whether to vote with the majority, which would give him the chance to assign the opinion to himself and thereby ensure that the opinion did as little damage to the "federalism" trend as possible -- or to vote with the dissenters and risk a majority opinion that undermined the trend substantially. (The Chief Justice gets to assign the opinion, if and only if he's in the majority; if he's not, then the senior Justice in the majority gets to assign it, to my understanding.). And so -- though I conjecture that he almost certainly would have voted to hold the law unconstitutional IF Justice O'Connor had voted that way too -- he joined the majority and assigned the opinion to himself. This is pure conjecture on my part, but it makes sense I think. And note that I am not, in my mind at least, accusing him of anything beyond the pale; my hazy understanding is that the ability to do this maneuver is one of the recognized and accepted great things about being the Chief Justice.
posted by sam 7:42 AM
Tuesday, May 27, 2003
VotelawEd Still has moved his great blog to a new Movable Type-driven site. Still a wonderful source for election law and related topics.
posted by sam 12:16 PM
Ten Commandments Oral Argument
Next week, in Montgomery, the Eleventh Circuit will hear oral arguments in the case challenging the large monument celebrating the Ten Commandments in the Alabama Supreme Court building. The panel, I am informed by the Clerk's Office, will be Chief Judge Edmondson, Judge Carnes, and District Judge Story from N.D. Ga. Don't expect cynical or snarky comments about the panel from me; not only do I have an argument before the same panel on the same day, but I wouldn't even make cynical or snarky comments about this panel to my best friends under cover of darkness. By the way, in a massive bummer, the Court has NOT made arrangements for lawyers in the other cases on the docket to have special seating to hear the Commandments case, so I will either have to skip that one or stand in line with the activists and the politicians.
posted by sam 8:57 AM
Monday, May 26, 2003
-A nice guy named Mitchell Freedman, with whom I've had some blog-related email, has published an "alternative history" book starting from the premise that Robert F. Kennedy survived the assassination attempt. The book is called "A Disturbance of Fate" and (from review on Amazon, etc.) sounds very interesting, especially if you're a fan of alternative histories or are a political junkie. He's doing a reading at the B&N in downtown DC on June 12. Check it out.
posted by sam 7:52 AM
Sunday, May 25, 2003
short items* The Atlanta newspaper has an article on Bill Pryor's nomination, titled "Judicial nominee a conservative true believer."
* I wish that the sun would come out; it's been gray and rainy for years, I think.
* You know you're desperate when your defense requires the assertion that criminal lawyer Leonard Weinglass, who used to represent you, sabotaged your case. I don't completely blame Mumia's defense for trying this argument; after all, much of habeas corpus law (unfortunately, I think) depends on proving that your former lawyer screwed up beyond belief; and so if that's what you have to argue in order to save your life or liberty, it's natural that you'd want to argue it no matter how far-fetched it might seem to other people. But based on what I know of Weinglass -- including having seen him do the best appellate argument I've ever seen anyone give, calmly winning a reversal of a conviction before a rather conservative panel of judges -- it's impossible for me to believe the allegation of "sabotage". (link via How Appealing)
posted by sam 3:16 PM
Friday, May 23, 2003
Bill PryorTalkLeft has an informative piece on Bill Pryor and the death penalty. here.
posted by sam 7:32 AM
-
Slacktivist has a brilliant explanation of the times, drawing on Walker Percy. here. (via Atrios).
posted by sam 7:17 AM
Thursday, May 22, 2003
Free James Brown!Bill Altreuter has a consistently great site, where he talks about the practice of law, music, food, and other things that matter. Today he hits a couple of things that happen to come together in my mind: the weather in Ithaca, and the pardon of James Brown. I have some great old friends who live in Ithaca, who recorded a song about the weather there: "I Live Where it's Gray". (Supposedly, whereas kids elsewhere bother their parents by asking incessantly "why is the sky blue?", kids in Ithaca ask, "why is the sky gray?"). You can listen to it here. And when I had the privilege of playing in the old-time band competition at the Galax VA fiddlers' convention in 1989 with some of those friends, we were joined on bass by Dave Grant, who befuddled the locals a bit by yelling "Free James Brown!". Now, on some other plane, Dave Grant is smiling because James Brown's been pardoned.
posted by sam 10:46 AM
on punishing jurors
Unlike me (see below), Gary O'Connor is doing what a blogger should do; in response to the silly Slate article suggesting that jurors should be punished for reaching "wrong" verdicts, Gary explains that this went out hundreds of years ago, for good reasons. See this post, and scroll down to the last section.
posted by sam 10:10 AM
filthy savage
Via Seeing the Forest, I learn that right-wing nut radio personality Michael "Savage" has sued various websites that make fun of, and express opposition to, his hateful and ignorant rants. Among them is Savage Stupidity. I spent some time on that website this morning, looking at the Complaint that "Savage" filed, and looking at various materials on that site. The suit is clearly frivolous in a legal sense, because the site is obviously protected by the First Amendment. (I suppose that it's theoretically possible that there was some actionable stuff on the site at some earlier date that has been taken down in response to the suit, but I see no indication anywhere that such is the case). You can donate to the defense at Savage Stupidity, or take other action as you see fit.
posted by sam 8:37 AM
Wednesday, May 21, 2003
only one month ...One month from now, two notable things will happen.
The first show of the 2003 season of concerts at DC's Fort Reno Park -- a long-running tradition of great local bands, free and outside on summer evenings; and
The release of Harry Potter V.
posted by sam 3:04 PM
blogging about blogging
I find that I am not much of a blogger these days. Here's what made me realize this fact, with the most clarity. When I read the article in Slate a couple of days ago, proposing that jurors be fined for reaching the "wrong" verdict and financially rewarded for reaching the "right" verdict, the fullest extent of my thinking about the article was, "that's the stupidest damn thing I've ever read in my life." I was right, of course, and I make no apologies for reaching that conclusion, in my own mind, with so little internal deliberation or fancy exposition. But it doesn't make me much of a blogger, does it? Surely the least I could have done, would be to write a hundred words or so about it. Please accept my apologies for my failure to have done so.
posted by sam 12:36 PM
Tuesday, May 20, 2003
-Hello. All I have time to say, so far today, is read this thing that Warren Buffett wrote (link via Atrios).
posted by sam 1:44 PM
Monday, May 19, 2003
home againBack home again, after 2300 miles of driving (thank you, Screamin' Jay Hawkins, for your help). Bourbon Street still smells like urine, in case you were wondering. Catching up on what I have meant to blog:
* You can download a free Wilco EP, by going to the band's site and following where it says "click here for free EP" or something like that. Actually, you can download it IF (a) you have a copy of Yankee Hotel Foxtrot (the band's last record) and (b) are patient (because the servers are overloaded).
* Plenty of people beyond myself are speaking out about Bill Pryor's nomination to the Eleventh Circuit. Unsurprisingly, his brief in Texas v. Lawrence is a main reason. Here is a fascinating article about the origins of that brief. And here is a NYT editorial.
* Expect some Supreme Court decisions today, and maybe even some interesting ones. Marty Lederman explains at SCOTUSblog.
* Law Prof. Lawrence Solum's exchange with Prof. Balkin et al. (see here for Solum's latest and here for Balkin's) is an interesting debate over Solum's effort to find some neutral principles of "how to do constitutional law" that would assertedly take the politics out of the enterprise. Returning to Screamin' Jay Hawkins, I reply cynically "yeah, when pumpkins look like pickles" (Jay's better version of "when pigs fly") -- there has never been a time when Constitutional Law was done that way, and I don't think that there ever will. Nonetheless, it is useful and informative to think about why or why not, and about what alternatives there might be.
posted by sam 7:11 AM
Monday, May 12, 2003
I'm off (but you already knew that)Blogging will be intermittent or nonexistent this week, because I am heading to (among other places) New Orleans, to speak at a program on labor law.
posted by sam 7:05 AM
Sunday, May 11, 2003
insider trading tipMake sure that you are not holding Ignatz shares on July 21, 2003.
posted by sam 7:16 AM
-
Happy Blog Birthday to Max.
posted by sam 7:10 AM
Friday, May 09, 2003
Bill Pryor on Bill PryorSo Alabama AG Bill Pryor, nominated to the U.S. Court of Appeals for the Eleventh Circuit, has issued a press release responding to those who have attacked his stance on the Voting Rights Act of 1965. Here are two quotes. The first is from his press release:I believe the Voting Rights Act is one of the greatest and most necessary laws in American history. I have expressed some concern that Congress should consider minor changes to that vital law to end procedural and political abuses that do not affect minority voters and were never intended by Congress.. Now here is a quote from Bill Pryor's testimony to the Senate Judiciary Committee, in 1997. After discussing some litigation under the Voting Rights Act -- including a case in which I participated, which was an effort to increase the opportunity of Black voters to elect candidates of their choice to Alabama's appellate courts, and other cases that involved expansion of local governing bodies so that Black voters would be able to elect a candidate of their choosing to multi-member boards -- Pryor called these rulings a "dramatic" and "intrusive abuse of judicial power", and further said to the Senate:I encourage you to consider seriously, for example, the repeal or amendment of section 5 of the Voting Rights Act, which is an affront to federalism and an expensive burden that has far outlived its usefulness, and consider modifying other provisions of the Act that have led to extraordinary abuses of judicial power.Pryor's Senate testimony was not -- despite the apparent assertion in his press release -- talking about "procedural and political abuses that do not affect minority voters"; instead he was talking about judicial decrees that were designed to improve the strength of minority voters but that Pryor felt had gone too far or otherwise erred. And he was not -- despite the apparent assertion in his press release -- talking about "minor changes". He was instead expressly talking about repeal of Section 5 itself, along with other changes to the law. The repeal of Section 5, as anyone familiar with the Act could tell you, would be no "minor change"; Section 5 is one of the major provisions of the law, with a focus and effect different from the other provisions of the law. And he was not -- despite the implication in his press release -- talking about simply putting things back to the way that Congress had "intended"; instead, his attack on Section 5 was expressly based on a vision of "federalism," though no such "federalism" had been any part of Congress's intent in enacting Section 5 in the first place.
The best thing that Bill Pryor has going for his nomination, I think, is his reputation for candor. But if this press release is any indication, he may be voluntarily giving up that one advantage.
posted by sam 1:16 PM
nudity
Fred at Bureaucrat by Day has a very informative post about the nude models in Philadelphia who wanted to organize a union. Recommended reading if you care about workplace fairness issues. (permalinks may be screwing up; if so, go here and look at posts for May 8.)
posted by sam 7:33 AM
Thursday, May 08, 2003
labor lawThe labor lawyers among you (are there any who read this silly blog these days?) may be interested to know that NLRB General Counsel Rosenfeld has recently issued a "Report on Recent Case Developments," available here, with a special (though by no means exclusive) focus on current cases that raise issues under last year's Supreme Court decision in BE&K.
posted by sam 4:49 PM
-
I don't even feel bad about not having anything mildly interesting to say today, because Ted Barlow is back from hiatus, and reading his stuff is much better than reading my stuff.
posted by sam 4:23 PM
Wednesday, May 07, 2003
-Hello. Little time for blogging today. I am writing a not-very-exciting brief to the NLRB (oh, by the way, you can still download my paper about the basics of labor law if you want) and am going to the American Constitution Society lunch. Maybe inspiration will strike later. More about civil rights leaders' opposition to the Pryor nomination here.
posted by sam 11:22 AM
Tuesday, May 06, 2003
Bill Pryor, and the footsoldiers of the Civil Rights movement.In Birmingham a few days ago there was a major celebration of the 40th anniversary of central events in the Civil Rights Movement. In the course of the event, many heroes and footsoldiers of the Movement -- including Rev. Vivian, Rev. Shuttlesworth, and others -- signed a letter proclaiming their opposition to Bill Pryor's nomination to the 11th Circuit. See article here.
Let me be plain, because I know that some people will want to cry foul or pretend that I am saying something inflammatory and unwarranted: I am not accusing Bill Pryor of being a white supremacist. As far as I know, the signers of the letter are not, either. I do believe, though, that "states' rights" doctrine has been used throughout American history to justify positions that are to the advantage of white people and to the disadvantage of Black people (this is, I trust, completely undisputed by any reasonable person) -- and that, whether or not some intentional group-based hatred is involved on the part of any current individual so-called "federalist", the doctrine is used by Pryor and others at this point in American history to justify positions that are systematically to the disadvantage of Black people, women, disabled people, older people, gay people, poor people ...
posted by sam 9:51 AM
Monday, May 05, 2003
PryorI have been debating about Bill Pryor's comparison of gay sex and necrophilia, with the anonyblogger at Southern Appeal, if you're interested. In addition to his other flaws, his comments for some reason will not load in a Safari browser, so you may have to use the dreaded Internet Explorer or something.
posted by sam 2:01 PM
-
Marty Lederman -- taking a deserved break from long posts about campaign finance -- remarks this morning about what he finds to be a rather unusual legal usage of the word "dehors" (meaning, more or less, "beyond") in the opinion this morning in Telemarketing Assocs. Marty has apparently spent too little time among Southern lawyers; I have, unless I am dreaming, more than once heard a lawyer indignantly complain about his or her opponent during oral argument, "Now Judge, he's de-hoorin' the record!" (meaning, more or less, stating facts that aren't supported by evidence).
posted by sam 12:01 PM
-
My weekend was made much more wonderful by staying away from my blog. I am now ducking my head back in just long enough to say, I recommend that you read this commentary on the Pledge case by ace legal reporter/commentator Tony Mauro. Link via Howard (a phrase which can henceforth be written as LvHB, because the thought appears so often here and on other law-oriented blogs).
posted by sam 7:14 AM
Friday, May 02, 2003
Gee whiz, more about IOLTA?Here are two things that are true about me: (1) I worry a lot about being wrong, because I don't like to be wrong; but (2) I will ultimately admit it if I'm wrong. So I've spent too much time worrying about the difference between opt-out and mandatory IOLTA programs today, because Bill Pryor's arch-supporter Feddie thinks that the difference is absolutely vital, and that it perfectly explains why Bill Pryor did not rise to the defense of Alabama's IOLTA program for funding legal services for poor people. Thus what I saw as an example of Pryor not defending a state law when he thought or hoped that the law was unconstitutional, Feddie sees as Pryor wisely doing nothing because Alabama's program (being an opt-out program) was really in no jeopardy because the Supreme Court litigation dealt precisely with a mandatory program.
Good news for me is that I still don't think, after further research, that I was wrong. I think that the best explanation of the situation is not that Bill Pryor (hyper-prolific amicus brief filer though he is) decided merely to sit this one out because Alabama's law wasn't really in any danger. I think that the only fair inference is that he sat this one out because he agreed with his ideological friends at Washington Legal Foundation in their attack on IOLTA. Why do I say this? Because (1) by my count, 14 other states with opt-out (or perhaps even with truly lawyer-voluntary) IOLTA programs did join in the defense of IOLTA in the Supreme Court. For those playing along at home, and guided by the categorization of IOLTA programs on this page, those States seem to be Indiana, Kansas, Maine, Mississippi, Nevada, New Hampshire, New Mexico, North Carolina, Oklahoma, Rhode Island, South Carolina, South Dakota, Tennessee, and Utah. Now one could either hypothesize (as Feddie does) that those AGs were all really just doing some politically-motivated nonsense that was totally unnecessary given that their programs were in absolutely no jeopardy, or infer that those AGs had some good reason for thinking that "opt-out" programs were in some substantial legal danger if the attack on the mandatory programs had succeeded. And (2) I think that the latter inference is more reasonable -- that those AGs had a good reason for thinking that their programs (and Alabama's) were in real jeopardy too, because from what I can glean it appears that WLF's theory ultimately was that client consent -- not lawyer consent, which is all that an opt-out program provides -- was required to make IOLTA programs constitutional, and that (though it would be easier to start the litigation by attacking mandatory programs) the constitutional theory that WLF was pursuing was (at least arguably) equally applicable to opt-out programs. If you're interested, and I cant imagine that you really would be, see for instance fn 225 of this (pdf) article.
So, with that longwinded anxiety out of the way, I arrive where I started: I think that anyone who believes that Alabama's program was in the clear, and in no jeopardy from WLF's attack, is being naive about how aggressive WLF would have gladly been if they had succeeded in attacking the mandatory programs first, or is being too confident in predicting that all courts would have agreed that the "opt-out" distinction was legally relevant. Bill Pryor surely didn't think either of those things, because he's too smart. He stayed out of the fray, I firmly believe, because he thought that mandatory IOLTA programs should be struck down, even if that would seriously jeopardize Alabama's program. And he didn't even file a brief -- which he could have -- saying "even if you strike down Washington's program, you shouldn't intimate that opt-out programs would be unconstitutional as well."
So, with that even more longwinded anxiety, I will continue to cite Pryor's behavior in the IOLTA case as an example of a time when he did not rally to the defense of state law. If anyone has factual or legal information that should convince me that in fact all the other opt-out State AGs were ignorant of the legal certitude that their programs were beyond attack, or were just doing PC politics, please feel free to let me know: sam at heldman dot net. [updated after initial posting to tone down some anger]
posted by sam 4:54 PM
confirmations
Thanks to Juan Non-Volokh for responding to my post below, in which I took issue with some of his commentary. If he is defending his characterization of the defeat of Sessions's nomination as "obstruction" in a negative sense -- and I'm not sure he is -- I just can't agree, based on the record. The Senate Judiciary Committee heard testimony -- some of which was undisputed by now-Sen. Sessions, and most or all of which was presumably found credible by the majority of the Committee (thus leading to the negative result on the nomination) -- that Sessions, while sitting as U.S. Attorney in Mobile, had said that he used to think that the Klan was ok until he found out that they smoked marijuana; that a white lawyer who represented Black people in voting rights cases was a disgrace to his race; that the NAACP was an unAmerican or anti-American organization; etc. If Non-Volokh is suggesting that Senatorial reliance on these points was a mask for ulterior motives that can fairly be called "obstruction" -- and again I'm not sure that he is -- I must disagree. That testimony was surely enough, in itself, to justify any reasonable Senator in opposing the nomination.
Non-Volokh also asks what else I found incorrect in his posting. Mostly, I was referring to his reference to Senate Democrats as having begun the pattern of "obstruction" (again with a bad connotation) in the Reagan era. He admitted, as I read his post, that this was in response to a dogged effort by the Reagan administration to nominate based on ideology, more so than had then-recent Administrations; but still he decried Senatorial response as some bad "obstructionism". I disagree; if a first cause must be identified for the so-called current spiral, then wouldn't it be more fair to place the blame on President Reagan's program of more ideological nominations?
posted by sam 12:14 PM
